New questions continue to arise in the fight against forum shopping by patent trolls. The Supreme Court’s recent ruling in TC Heartland LLC v. Kraft Foods Group Brands LLC, 581 U.S. ____ (2017) appeared to undermine an important basis patent plaintiffs had used to haul defendants into remote courts. But new developments, which have arisen since the ruling, show that the forum problem is still with us.
The patent venue statute, 28 U.S.C. §1400(b), provides that civil patent infringement cases “may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” In TC Heartland, the Supreme Court clarified that in this statute, the term “resides” means only the defendant’s state of incorporation.
Before TC Heartland, the term “resides” had been interpreted according to a broader venue standard that made defendants subject to patent lawsuits wherever they made sales. Under the old standard, merely shipping allegedly infringing goods into a district was often sufficient grounds to establish venue. This allowed plaintiffs to file lawsuits in district courts far from the defendants’ home states, typically to take advantage of what are perceived as more favorable procedures and plaintiff-friendly juries.
One consequence of the old standard was the concentration of patent troll litigation in a handful of districts. According to a Price Waterhouse Coopers study, the Eastern District of Texas alone accounted for 40 percent of decisions involving non-practicing entities (NPEs) between 1996 and 2015. This tactic significantly increased the cost of defending against infringement claims by forcing defendants to spend large sums on discovery to prove the inappropriateness of the plaintiff’s preferred court. It also often placed defendants at a substantial disadvantage, as they were forced to hire unfamiliar local counsel and litigate far from home.
The ruling in TC Heartland was expected to curtail a significant amount of forum shopping in patent infringement cases. According to a report by Unified Patents, the ruling appears to have triggered a shift of new activity from the Eastern District of Texas to Delaware, where many companies are incorporated. The same shift is expected for California courts, given the high number of technology, software and medical device companies headquartered in the Golden State. But developments since the Supreme Court’s decision have shown that the venue issue is far from settled. Instead, courts are shifting their analysis to the second phrase of §1400(b), the ambiguous and unsettled “regular and established place of business” standard.
In a move that some have argued is designed to hold on to its vast patent infringement docket, the Eastern District of Texas has fired one of the early volleys in this new fight. In Raytheon Co. v. Cray, Inc., No. 2:15-CV-01554-JRG (E.D. Tex.), U.S. District Judge Rodney Gilstrap issued a memorandum opinion and order on June 29, establishing four factors the court will use to analyze whether a defendant has a “regular and established place of business” in the district sufficient to support venue. The factors consider: (1) the extent to which a defendant has a physical presence in the district, including but not limited to property, inventory, infrastructure, or people; (2) the extent to which a defendant represents, internally or externally, that it has a presence in the district; (3) the extent to which a defendant derives benefits from its presence in the district, including but not limited to sales revenue; and (4) the extent to which a defendant interacts in a targeted way with existing or potential customers, consumers, users, or entities within a district, including but not limited to through localized customer support, ongoing contractual relationships, or targeted marketing efforts.
By reopening the avenues that plaintiffs had previously used to establish that defendants “reside” in remote jurisdictions, Judge Gilstrap’s factors pose a serious problem for defendants who want to remove their cases from the Eastern District of Texas to their home district. They may force defendants into expensive discovery and venue litigation, and the somewhat ambiguous nature of these factors creates uncertainty about where the thresholds for venue truly lie.
Cray, Inc. has since filed a petition for a writ of mandamus with the Federal Circuit, asking to throw out the Gilstrap factors test before it leads to further venue abuse in infringement cases. We anticipate more litigation in this vein as plaintiffs look for ways to keep cases in their favorite courts.
While the factors proposed by Judge Gilstrap are not binding on courts in other states, there are concerns that other districts could adopt similar tests. For example, in Nike, Inc. v. Sketchers U.S.A., Inc., No. 3:16-CV-00007 (D. Ore.), the District Court of Oregon has ordered discovery about the defendant’s sales and other contacts with the district after the defendant sought removal under the TC Heartland standard.
There is, however, some light for defendants hoping to have litigation moved to their home states. At least one case has applied TC Heartland to deny the plaintiff’s request for discovery. On July 24, 2017 in OptoLum, Inc. v. Cree, Inc., No. CV-16-03828-PHX-DLR (D. Ariz.), the Arizona district court held that the defendant had not waived its venue defense by failing to raise it in its initial pleading, citing TC Heartland as a “sea change” in patent venue law that justified allowing the defendant to request a venue transfer to its home state of North Carolina. The plaintiff asked for preemptive discovery about venue before the court’s ruling on the motion. The court denied the discovery, stated that “the Supreme Court has cautioned that the provisions of §1400(b) are not to be liberally construed,” and transferred the case immediately to North Carolina.
As Raytheon, Nike, and OptoLum show, the TC Heartland decision has not settled the patent venue problem once and for all, but it has given defendants a strong argument that patent lawsuits against them should be filed in their home states, not in the state that’s most convenient to the plaintiff.
We at Slater Law Group will be watching closely as the patent infringement venue landscape continues to evolve. We hope that TC Heartland will give our clients relief from the expense and headache involved with defending against lawsuits in far away places, and we are uniquely poised to assist our clients with the growth of patent infringement litigation expected in California. Of course, until the forum shopping trend comes to an end, clients can rely on Slater Law Group’s extensive experience working with local counsel in other jurisdictions to bring cases home to California.


This letter concerns your product Fat Burning Lean Pills which is labeled and/or offered for sale as a dietary supplement. The product labeling for your Fat Burning Lean Pills declares methylsynephrine as a dietary ingredient. This ingredient is also called, among other names, Oxilofrine and p-hydroxyephedrine (hereinafter referred to as methylsynephrine).
Under section 201(ff)(1) of the Federal Food, Drug, and Cosmetic Act (the Act) [21 U.S.C. § 321 (ff)(1)], a dietary ingredient is a vitamin; mineral; herb or other botanical; amino acid; dietary substance for use by man to supplement the diet by increasing the total dietary intake; or a concentrate, metabolite, constituent, extract, or combination of the preceding substances. Methylsynephrine is not a vitamin, a mineral, an herb or other botanical, or an amino acid. In addition, according to our research, methylsynephrine is not a dietary substance for use by man to supplement the diet by increasing the total dietary intake. Finally, methylsynephrine is not a concentrate, metabolite, constituent, extract, or combination of a vitamin; mineral; herb or other botanical; amino acid; or dietary substance for use by man to supplement the diet by increasing the total dietary intake. Accordingly, methylsynephrine is not a dietary ingredient within the definition set forth in section 201(ff)(1) of the Act. Declaring methylsynephrine in your product labeling as a dietary ingredient causes your products marketed as dietary supplements to be misbranded under section 403(a)(1) of the Act [21 U.S.C. § 343(a)(1)] in that the labeling is false or misleading in any particular.
Additionally, the product labeling for your Fat Burning Lean Pills declares methylhexanamine as a dietary ingredient. This ingredient is also called, among other names, dimethylamylamine, DMAA, or 1,3-dimethylamylamine and will be referred to in the rest of this letter as "methylhexanamine". Methylhexanamine is not a dietary ingredient. Rather, it is an unsafe food additive that causes your methylhexanamine-containing product to be adulterated under section 402(a)(2)(C)(i) of the Act [21 U.S.C § 342(a)(2)(C)(i)] because it is a food to which methylhexanamine, a drug approved under section 505 of the Act [21 U.S.C. § 355], has been added.
Although some marketers of dietary supplements containing methylhexanamine have argued that methylhexanamine is a dietary ingredient under section 201(ff)(1) of the Act because (1) it is a constituent of a botanical, namely the geranium Pelargonium graveolens (P.graveolens), under section 201 (ff)(1)(C) or (F) because methylexanamine is not an herb or other botanical, nor is it a constituent of a botanical. Further, FDA has reviewed scientific literature and has concluded that the totality of the scientific evidence does not demonstrate the presence of methylhexanamine in P. graveolens. 1 Therefore, methylhexanamine is not a constituent of P. graveolens that could qualify as a dietary ingredient under section 201 (ff)(1)(F).
Additionally, methylhexanamine does not qualify as a dietary ingredient under section 201 (ff)(1)(E) of the Act because, to the best of FDA's knowledge, no evidence exists that methylhexanamine is a dietary substance for use by man to supplement the diet by increasing total dietary intake. Because the scientific evidence does not demonstrate the presence of methylhexanamine as a constituent of geraniums, the possibility that geraniums may have been consumed as a food or drink by humans does not demonstrate that methylhexanamine is a dietary substance. Further, to the best of FDA's knowledge, methylhexanamine itself is not commonly used as a food or drink by humans.
Finally, methylhexanamine does not qualify as a dietary ingredient under any other prong of section 201 (ff)(1) of the Act. Methylhexanamine is not a vitamin, mineral, amino acid, herb, or other botanical. Moreover, to the best of FDA's knowledge, methylhexanamine is not a concentrate, metabolite, constituent, extract or combination of a dietary ingredient.
If a substance is not generally recognized as safe (GRAS) by qualified experts for its intended use in food and does not qualify for any of the other exemptions from the food additive definition, 2 it is a food additive. Food additives require premarket approval based on data demonstrating safety. Any food additive that has not been approved for its intended use in food is deemed to be unsafe and causes the food to be adulterated under section 402(a)(2)(C)(i) of the Act. Adulterated foods cannot be legally imported or marketed in the United States.
Section 201(s) of the Act [21 U.S.C § 321(s)] exempts dietary ingredients used in dietary supplements from the food additive definition. However, non-dietary ingredients intended for use in dietary supplements, such as the methylhexanamine used in your products, are not exempt from the food additive definition and must meet the same requirements as substances added to conventional foods. In other words, a non-dietary ingredient added to a dietary supplement must be used in accordance with a food additive regulation or be GRAS for its intended use, unless it qualifies for another exception to the food additive definition.
Methylhexanamine is not generally recognized as safe under its conditions of use in your dietary supplement product. In fact, methylhexanamine is known to have cardiovascular risks. It narrows the blood vessels and arteries, which increases cardiovascular resistance and frequently leads to elevated blood pressure. This rise in blood pressure may increase the work of the heart such that it could precipitate a cardiovascular event, which could range from shortness of breath to tightening of the chest and/or a possible myocardial infarction (heart attack). Because methylhexanamine does not qualify as a dietary ingredient and is not GRAS or otherwise exempt from the food additive definition, your Fat Burning Lean Pills product is adulterated under section 402(a)(2)(C)(i) of the Act because it contains an unsafe food additive.
The introduction or delivery for introduction into interstate commerce of any food that is adulterated is a prohibited act under section 301(a) of the Act [21 U.S.C. § 331(a)). Further, it is a prohibited act under section 301(ll) of the Act [21 U.S.C. § 331(ll)] to introduce or deliver for introduction into interstate commerce any food to which a drug approved under section 505 of the Act has been added, unless the added drug was marketed in food before being approved under section 505.3 Methylhexanamine was approved as a drug in 1948 under section 505 of the Act and, to the best of FDA's knowledge, was not marketed in food prior to such approval, either on its own or based on its alleged presence as a component of P. graveolens. In the absence of such evidence, your Fat Burning Lean Pills product is in violation of section 301 (II) of the Act.
We request that you take prompt action to correct the violation cited above, as well as any other violations associated with your Fat Burning Lean Pills product or other products marketed by your firm that list methylsynephrine and/or dimethylamylamine as dietary ingredients in the product labeling. It is your responsibility to ensure that your firm complies with all requirements of federal law and FDA regulations.
Failure to immediately cease distribution of your Fat Burning Lean Pills product, and any other products you market that list methylsynephrine and/or dimethylamylamine as dietary ingredients in the product labeling, could result in enforcement action by FDA without further notice. Sections 302 and 304 of the Act provide for seizure of violative products and injunction against the manufacturers and distributors of violative products [21 U.S.C. §§ 332 and 334).
Additionally, we note that methylsynephrine is not approved as a food additive or prior sanctioned for use in dietary supplements. Further, FDA's review of this substance does not identify a basis to conclude that the substance is GRAS for use in food. If you contend that this substance is GRAS for use in food, please provide your basis for concluding that methylsynephrine is GRAS for use in dietary supplements, including supporting data or other documentation.
We request that you advise us in writing, within 15 days of receipt of this letter, as to the specific steps that have been or will be taken to correct these violations, including any steps taken with respect to product currently in the marketplace. Your response should also include an explanation of each step taken to ensure that similar violations do not recur, as well as documentation to support your response. Your written reply should be directed to Aaron Dotson, United States Food and Drug Administration, Center for Food Safety and Applied Nutrition, 5100 Paint Branch Parkway, Office of Compliance (HFS-608), Division of Enforcement, College Park, Maryland 20740-3835. If you have any questions, please contact Aaron Dotson at aaron.dotson@fda.hhs.gov.
1. FDA’s review of the scientific literature on this topic is summarized in a letter to USPlabs, LLC, dated April 18, 2013. The letter is posted on the agency’s website at http://www.fda.gov/AboutFDA/CentersOffices/OfficeofFoods/CFSAN/CFSANFOIAElectronicReadingRoom/ucm350199.htm2.
2. Under section 201(s) of the FD&C Act [21 U.S.C. § 321(s)], the following types of substances are excluded from the food additive definition: (1) pesticide chemical residues in or on a raw agricultural commodity or processed food; (2) pesticide chemicals; (3) color additives; (4) substances used in accordance with a “prior sanction” (i.e., a sanction or approval granted prior to the enactment of the Food Additives Amendment of 1958 under the Act, the Poultry Products Inspection Act, or the Meat Inspection Act; (5) new animal drugs; and (6) dietary ingredients in or intended for use in a dietary supplement.
3. Section 331 (II) also contains other exceptions not relevant here. See 21 U.S.C. § 331(II)(2)-(4).


10 sn The numbers used in the chapter, seven, three, and five, carry the symbolism in the Bible of perfection and completeness (see J. J. Davis, Biblical Numerology). Job’s “seven sons” are listed first because in the East sons were considered more valuable than daughters (recall Ruth, who is “better than seven sons” [Ruth 4:15]).
11 tn The verb begins the sentence: “and there were born.” This use of the preterite with vav (ו) consecutive, especially after the verb הָיָה (hayah, “to be”), is explanatory: there was a man…and there was born to him…” (IBHS 551-52 §33.2.2b).
12 tn The word means “cattle, livestock, possessions” (see also Gen 26:14). Here it includes the livestock, but also the entire substance of his household.
13 tn Or “amounted to,” “totaled.” The preterite of הָיָה (hayah, “to be”) is sometimes employed to introduce a total amount or an inventory (see Exod 1:5; Num 3:43).
14 tn The word עֲבֻדָּה (’avuddah, “service of household servants”) indicates that he had a very large body of servants, meaning a very large household.
17 tn The perfect verb with the ו (vav), וְהָלְכוּ (vÿhalÿkhu, “they went”) indicates their characteristic action, actions that were frequently repeated (GKC 335-36 §112.dd).
19 tn The sense is cryptic; it literally says “house – a man – his day.” The word “house” is an adverbial accusative of place: “in the house.” “Man” is the genitive; it also has a distributive sense: “in the house of each man.” And “his day” is an adverbial accusative: “on his day.” The point is that they feasted every day of the week in rotation.
20 tn The use of קָרָא (qara’, “to call, invite”) followed by the ל (lamed) usually has the force of “to summon.” Here the meaning would not be so commanding, but would refer to an invitation (see also 1 Kgs 1:19, 25, 26).
21 tn Normally cardinal numerals tend to disagree in gender with the numbered noun. In v. 2 “three daughters” consists of the masculine numeral followed by the feminine noun. However, here “three sisters” consists of the feminine numeral followed by the feminine noun. The distinction appears to be that the normal disagreement between numeral and noun when the intent is merely to fix the number (3 daughters as opposed to 2 or 4 daughters). However, when a particular, previously known group is indicated, the numeral tends to agree with the noun in gender. A similar case occurs in Gen 3:13 (“three wives” of Noah’s sons).
22 tn The verse begins with the temporal indicator “and it happened” or “and it came to pass,” which need not be translated. The particle כִּי (ki, “when”) with the initial verbal form indicates it is a temporal clause.
23 tn The verb is the Hiphil perfect of נָקַף (naqaf, “go around”), here it means “to make the round” or “complete the circuit” (BDB 668-69 s.v. II נָקַף Hiph). It indicates that when the feasting had made its circuit of the seven sons, then Job would sanctify them.
24 tn The form is a preterite with vav (ו) consecutive. The same emphasis on repeated or frequent action continues here in this verse. The idea here is that Job would send for them, because the sanctification of them would have consisted of washings and changes of garments as well as the sacrifices (see Gen 35:2; 1 Sam 16:5).
26 tn The first verb could also be joined with the next to form a verbal hendiadys: “he would rise early and he would sacrifice” would then simply be “he would sacrifice early in the morning” (see M. Delcor, “Quelques cas de survivances du vocabulaire nomade en hébreu biblique,” VT 25 : 307-22). This section serves to explain in more detail how Job sanctified his children.
sn In the patriarchal society it was normal for the father to act as priest for the family, making the sacrifices as needed. Job here is exceptional in his devotion to the duty. The passage shows the balance between the greatest earthly rejoicing by the family, and the deepest piety and affection of the father.
27 tn The text does not have “according to”; the noun “number” is an accusative that defines the extent of his actions (GKC 373-74 §118.e, h).
28 tn The clause stands as an accusative to the verb, here as the direct object introduced with “perhaps” (IBHS 645-46 §38.8d).
29 tn Heb “sons,” but since the three daughters are specifically mentioned in v. 4, “children” has been used in the translation. In this patriarchal culture, however, it is possible that only the sons are in view.
30 tn The Hebrew verb is בָּרַךְ (barakh), which means “to bless.” Here is a case where the writer or a scribe has substituted the word “curse” with the word “bless” to avoid having the expression “curse God.” For similar euphemisms in the ancient world, see K. A. Kitchen, Ancient Orient and Old Testament, 166. It is therefore difficult to know exactly what Job feared they might have done. The opposite of “bless” would be “curse,” which normally would convey disowning or removing from blessing. Some commentators try to offer a definition of “curse” from the root in the text, and noting that “curse” is too strong, come to something like “renounce.” The idea of blaspheming is probably not meant; rather, in their festivities they may have said things that renounced God or their interest in him. Job feared this momentary turning away from God in their festivities, perhaps as they thought their good life was more important than their religion.
31 tn The imperfect expresses continual action in past time, i.e., a customary imperfect (GKC 315 §107.e).
32 sn The text draws the curtain of heaven aside for the reader to understand the background of this drama. God extols the virtue of Job, but Satan challenges the reasons for it. He receives permission to try to dislodge Job from his integrity. In short, God is using Job to prove Satan’s theory wrong.
33 tn The beginning Hebrew expression “and there was – the day” indicates that “there came a day when” or more simply “the day came when.” It emphasizes the particular day. The succeeding clause is then introduced with a preterite with the with vav (ו) consecutive (see E. Dhorme, Job, 5).
34 sn The “sons of God” in the OT is generally taken to refer to angels. They are not actually “sons” of Elohim; the idiom is a poetic way of describing their nature and relationship to God. The phrase indicates their supernatural nature, and their submission to God as the sovereign Lord. It may be classified as a genitive that expresses how individuals belong to a certain class or type, i.e., the supernatural (GKC 418 §128.v). In the pagan literature, especially of Ugarit, “the sons of God” refers to the lesser gods or deities of the pantheon. See H. W. Robinson, “The Council of Yahweh,” JTS 45 (1943): 151-57; G. Cooke, “The Sons of (the) God(s),” ZAW 76 (1964): 22-47; M. Tsevat, “God and the Gods in the Assembly,” HUCA 40-41 (1969/70): 123-37.
35 tn The preposition עַל (’al) in this construction after a verb of standing or going means “before” (GKC 383 §119.cc).
36 sn The word means “adversary” or with the article “the adversary” – here the superhuman adversary or Satan. The word with the article means that the meaning of the word should receive prominence. A denominative verb meaning “to act as adversary” occurs. Satan is the great accuser of the saints (see Zech 3 where “Satan was standing there to ‘satanize’ Joshua the priest”; and see Rev 12 which identifies him with the Serpent in Genesis). He came among the angels at this time because he is one of them and has access among them. Even though fallen, Satan has yet to be cast down completely (see Rev 12).
37 tn The imperfect may be classified as progressive imperfect; it indicates action that although just completed is regarded as still lasting into the present (GKC 316 §107.h).
38 tn Heb “answered the Lord and said” (also in v. 9). The words “and said” here and in v. 9 have not been included in the translation for stylistic reasons.
39 tn The verb שׁוּט (shut) means “to go or rove about” (BDB 1001-2 s.v.). Here the infinitive construct serves as the object of the preposition.
40 tn The Hitpael (here also an infinitive construct after the preposition) of the verb הָלַךְ (halakh) means “to walk to and fro, back and forth, with the sense of investigating or reconnoitering (see e.g. Gen 13:17).
sn As the words are spoken by Satan, there is no self-condemnation in them. What they signify is the swiftness and thoroughness of his investigation of humans. The good angels are said to go to and fro in the earth on behalf of the suffering righteous (Zech 1:10, 11; 6:7), but Satan goes seeking whom he may devour (1 Pet 5:8).
41 tn The Hebrew has “have you placed your heart on Job?” This means “direct your mind to” (cf. BDB 963 s.v. I שׂוּם 2.b).
sn The question is undoubtedly rhetorical, for it is designed to make Satan aware of Job as God extols his fine qualities.
43 tn The same expressions that appeared at the beginning of the chapter appear here in the words of God. In contrast to that narrative report about Job, the emphasis here is on Job’s present character, and so the participle form is translated here asa gnomic or characteristic present (“turns”). It modifies “man” as one who is turning from evil.
44 tn The Hebrew form has the interrogative ה (he) on the adverb חִנָּם (khinnam, “gratis”), a derivative either of the verb חָנַן (khanan, “to be gracious, show favor”), or its related noun חֵן (khen, “grace, favor”). The adverb has the sense of “free; gratis; gratuitously; for nothing; for no reason” (see BDB 336 s.v. חִנָּם). The idea is that Satan does not disagree that Job is pious, but that Job is loyal to God because of what he receives from God. He will test the sincerity of Job.
46 tn The verb שׂוּךְ (sukh) means “to hedge or fence up, about” something (BDB 962 s.v. I שׂוּךְ). The original idea seems to have been to surround with a wall of thorns for the purpose of protection (E. Dhorme, Job, 7). The verb is an implied comparison between making a hedge and protecting someone.
47 sn Here the verb “bless” is used in one of its very common meanings. The verb means “to enrich,” often with the sense of enabling or empowering things for growth or fruitfulness. See further C. Westermann, Blessing in the Bible and the Life of the Church (OBT).
48 tn Or “substance.” The herds of livestock may be taken by metonymy of part for whole to represent possessions or prosperity in general.
49 tn The verb פָּרַץ (parats) means “to break through.” It has the sense of abundant increase, as in breaking out, overflowing (see also Gen 30:30 and Exod 1:12).
50 tn The particle אוּלָם (’ulam, “but”) serves to restrict the clause in relation to the preceding clause (IBHS 671-73 §39.3.5e, n. 107).
51 tn The force of the imperatives in this sentence are almost conditional – if God were to do this, then surely Job would respond differently.
sn The two imperatives (“stretch out” and “strike”) and the word “hand” all form a bold anthropomorphic sentence. It is as if God would deliver a blow to Job with his fist. But the intended meaning is that God would intervene to destroy Job’s material and physical prosperity.
52 sn The formula used in the expression is the oath formula: “if not to your face he will curse you” meaning “he will surely curse you to your face.” Satan is so sure that the piety is insincere that he can use an oath formula.
53 tn See the comments on Job 1:5. Here too the idea of “renounce” may fit well enough; but the idea of actually cursing God may not be out of the picture if everything Job has is removed. Satan thinks he will denounce God.
54 tn The particle הִנֵּה (hinneh, “behold”) introduces a foundational clause upon which the following volitional clause is based.
55 tn The versions add a verb here: “delivered to” or “abandoned to” the hand of Satan.
56 tn Heb “in your hand.” The idiom means that it is now Satan’s to do with as he pleases.
58 tn The Targum to Job adds “with permission” to show that he was granted leave from God’s presence.
59 sn So Satan, having received his permission to test Job’s sincerity, goes out from the Lord’s presence. But Satan is bound by the will of the Most High not to touch Job himself. The sentence gives the impression that Satan’s departure is with a certain eagerness and confidence.
60 sn The series of catastrophes and the piety of Job is displayed now in comprehensive terms. Everything that can go wrong goes wrong, and yet Job, the pious servant of Yahweh, continues to worship him in the midst of the rubble. This section, and the next, will lay the foundation for the great dialogues in the book.
61 tn The Targum to Job clarifies that it was the first day of the week. The fact that it was in the house of the firstborn is the reason.
62 tn Heb “his”; the referent (Job) has been specified in the translation for clarity.
63 tn The use of the verb “to be” with the participle gives emphasis to the continuing of the action in the past (GKC 360 §116.r).
64 tn The LXX has “the spoilers spoiled them” instead of “the Sabeans swooped down.” The translators might have connected the word to שְָׁבָה (shavah, “to take captive”) rather than שְׁבָא (shÿva’, “Sabeans”), or they may have understood the name as general reference to all types of Bedouin invaders from southern Arabia (HALOT 1381 s.v. שְׁבָא 2.c).
sn The name “Sheba” is used to represent its inhabitants, or some of them. The verb is feminine because the name is a place name. The Sabeans were a tribe from the Arabian peninsula. They were traders mostly (6:19). The raid came from the south, suggesting that this band of Sabeans were near Edom. The time of the attack seems to be winter since the oxen were plowing.
65 tn The Hebrew is simply “fell” (from נָפַל, nafal). To “fall upon” something in war means to attack quickly and suddenly.
67 tn Heb “the edge/mouth of the sword”; see T. J. Meek, “Archaeology and a Point of Hebrew Syntax,” BASOR 122 (1951): 31-33.
68 tn The pleonasms in the verse emphasize the emotional excitement of the messenger.
69 tn The particle עוֹד (’od, “still”) is used with the participle to express the past circumstances when something else happened (IBHS 625-26 §37.6d).
70 tn The Hebrew expression is literally “yet/this/speaking/and this/ arrived.” The sentence uses the two demonstratives as a contrasting pair. It means “this one was still speaking when that one arrived” (IBHS 308-9 §17.3c). The word “messenger” has been supplied in the translation in vv. 16, 17, and 18 for clarity and for stylistic reasons.
71 sn The “fire of God” would refer to lightning (1 Kgs 18:38; 2 Kgs 1:12; cf. NAB, NCV, TEV). The LXX simply has “fire.” The first blow came from enemies; the second from heaven, which might have confused Job more as to the cause of his troubles. The use of the divine epithet could also be an indication of the superlative degree; see D. W. Thomas, “A Consideration of Some Unusual Ways of Expressing the Superlative in Hebrew,” VT 3 (1953): 209-24.
72 tn Or “from the sky.” The Hebrew word שָׁמַיִם (shamayim) may be translated “heaven[s]” or “sky” depending on the context.
74 tn The verb פָּשַׁט (pashat) means “to hurl themselves” upon something (see Judg 9:33, 41). It was a quick, plundering raid to carry off the camels.
76 tn The use of the particle הִנֵּה (hinneh, “behold”) in this sentence is deictic, pointing out with excitement the events that happened as if the listener was there.
77 sn Both wind and lightning (v. 16) were employed by Satan as his tools. God can permit him such control over factors of the weather when it suits the divine purpose, but God retains ultimate control (see 28:23-27; Prov 3:4; Luke 8:24-25).
78 tn The word מֵעֵבֶר (me’ever) is simply “from the direction of”; the word עֵבֶר (’ever) indicates the area the whirlwind came across.
80 sn It was the custom to tear the robe in a time of mourning, to indicate that the heart was torn (Joel 2:13). The “garment, mantel” here is the outer garment frequently worn over the basic tunic. See further D. R. Ap-Thomas, “Notes on Some Terms Relating to Prayer,” VT 6 (1956): 220-24.
81 sn In mourning one normally put off every adornment that enhanced or embellished the person, including that which nature provided (Jer 7:29; Mic 1:16).
82 tn This last verb is the Hishtaphel of the word חָוָה (khavah; BDB 1005 s.v. שָׁחָה); it means “to prostrate oneself, to cause oneself to be low to the ground.” In the OT it is frequently translated “to worship” because that is usually why the individual would kneel down and then put his or her forehead to the ground at the knees. But the word essentially means “to bow down to the ground.” Here “worship” (although employed by several English translations, cf. KJV, NASB, NIV, NRSV, CEV) conveys more than what is taking place – although Job’s response is certainly worshipful. See G. I. Davies, “A Note on the Etymology of histahawah,” VT 29 (1979): 493-95; and J. A. Emerton, “The Etymology of histahawah,” OTS (1977): 41-55.
85 tn The two verbs are simple perfects. (1) They can be given the nuance of gnomic imperfect, expressing what the sovereign God always does. This is the approach taken in the present translation. Alternatively (2) they could be referring specifically to Job’s own experience: “Yahweh gave [definite past, referring to his coming into this good life] and Yahweh has taken away” [present perfect, referring to his great losses]. Many English versions follow the second alternative.
86 sn Some commentators are troubled by the appearance of the word “Yahweh” on the lips of Job, assuming that the narrator inserted his own name for God into the story-telling. Such thinking is based on the assumption that Yahweh was only a national god of Israel, unknown to anyone else in the ancient world. But here is a clear indication that a non-Israelite, Job, knew and believed in Yahweh.
87 tn The last clause is difficult to translate. It simply reads, “and he did not give unseemliness to God.” The word תִּפְלָה (tiflah) means “unsavoriness” or “unseemliness” in a moral sense. The sense is that Job did not charge God with any moral impropriety in his dealings with him. God did nothing worthless or tasteless. The ancient versions saw the word connected with “foolishness” or “stupidity” (תָּפֵל, tafel, “to be tasteless”). It is possible that “folly” would capture some of what Job meant here. See also M. Dahood, “Hebrew-Ugaritic Lexicography XII,” Bib 55 (1974): 381-93.


This cause is before the Court on the Motion for Summary Judgment on All Undecided Claims (d/e 168) filed by Defendants Meijer, Inc. and Whitmor, Inc., and the Motion for Partial Summary Judgment (d/e 189) filed by Plaintiff Design Ideas, Ltd. Because genuine issues of material fact remain, the Motions for Summary Judgment are DENIED.
Plaintiff originally filed suit in March 2015 against Defendants Meijer, Inc. (Meijer), Whitmor, Inc. (Whitmor), and The TJX Companies, Inc. (TJX). In November 2015, Plaintiff filed a First Amended Complaint asserting copyright infringement under the Copyright Act of 1976, 17 U.S.C. § 101, et seq., unfair competition under the U.S. Trademark Act, 15 U.S.C. § 1051, et seq. (Lanham Act) and violations of the Digital Millennium Copyright Act, 17 U.S.C. § 1201, et seq. (DMCA). The First Amended Complaint also contains state law claims asserting unfair competition, violations of the Illinois Deceptive Trade Practices Act, 815 ILCS 510/1, the Illinois Consumer Fraud and Deceptive Practices Act, 815 ILCS 505/2, and breach of contract.
A few weeks before Plaintiff filed this action, Meijer, Whitmor, and TJX filed a lawsuit in the Western District of Michigan seeking a declaratory judgment that they did not violate the Lanham Act, the Copyright Act, or the DMCA. In June 2015, the Court enjoined the defendants from prosecuting that declaratory judgment action. Opinion (d/e 12) (Mills, J.).
In August 2016, the Court granted partial summary judgment on liability in favor of Plaintiff on Plaintiff's copyright claims in Count I. Opinion (d/e 115). In December 2016, Plaintiff and Defendant TJX filed a Stipulation of Voluntary Dismissal.
Defendants Meijer and Whitmor (collectively referred to as Defendants) have now filed a motion for summary judgment on all remaining claims: Count III, Federal Unfair Competition Under the Lanham Act; Count IV, violation of the DMCA; Count VII, common law unfair competition; Count VIII, violation of the Illinois Deceptive Trade Practices Act; Count IX, violation of the Illinois Consumer Fraud and Deceptive Business Practices Act; and Count X against Meijer for breach of the 2007 Settlement Agreement. Defendants also seek summary judgment that the only recovery to which Plaintiff is entitled on Count I is Defendants' profits from the sale of CANARY CLIPS in 2013 until Defendants stopped selling CANARY CLIPS in August 2014, which total $14, 095.64.
Plaintiff seeks summary judgment on Count III, the trademark claim, and Count IV, the DMCA claim. Although Plaintiff asserts in its reply that Plaintiff is entitled to summary judgment on Counts VII, VIII, and IX, Plaintiff has forfeited that argument by not raising the claims in its motion for summary judgment and memorandum in support thereof. See Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009) (“[T]he district court is entitled to find that an argument raised for the first time in a reply brief is forfeited.”).
Despite the cross-motions for summary judgment, the parties dispute many of the facts in this case. Moreover, Plaintiff failed to strictly comply with Local Rule 7.1(D)(1)(b) and (2)(b), which require including as exhibits all relevant documentary evidence and providing citations for the documentary evidence that supports each fact or disputed fact. Plaintiff has, however, supplied much of the missing documentary evidence in its reply. Therefore, the Court will disregard only those “facts” for which the Court could not find documentary support or which did not contain a citation to the document evidence unless Defendants nonetheless admitted the fact.
Plaintiff is in the business of creating, manufacturing, and distributing decorative gift items and housewares. One such item is the SPARROWCLIP, which is a clothespin with a bird design on top. Plaintiff claims to own intellectual property rights in both the SPARROWCLIPS design and the trademark. From February 2009 through May 2016, Plaintiff sold its SPARROWCLIPS to over 750 customers with sales over $615, 000.
Between May and August 2012, Meijer placed five orders for SPARROWCLIPS from Plaintiff. At some point, Defendants became interested in manufacturing a bird clip. Meijer admits it purchased retail quantities of SPARROWCLIPS from Plaintiff and that it hired Whitmor to produce the copies. The parties dispute whether Meijer directed Whitmor to directly copy Plaintiff's SPARROWCLIPS.
In September 2012, Whitmor sent a set of Plaintiff's original SPARROWCLIPS that Whitmor purchased from The Container Store to a Chinese manufacturer, Sunny Living. Whitmor asked Sunny Living if it had a mold of the goods and sought pricing. Sunny Living had a mold producing exact duplicates of SPARROWCLIPS. The Sunny Living factory had only used the mold to manufacture bird clips that were shipped to Japan and never shipped bird clips from that mold to the United States.
Sunny Living asked Whitmor what colors Meijer wanted for the copies of the SPARROWCLIPS. Whitmor instructed Sunny Living to copy the colors used in Plaintiff's SPARROWCLIPS sold at The Container Store. Defendants did not inquire whether Plaintiff had authorized that mold or attempt to learn the origin of the Sunny Living mold.
In January and May 2013, Whitmor imported retail quantities of “Canary Plastic Clothespins”-CANARY CLIPS- from China. Whitmor also offered CANARY CLIPS to Target and TJX.
Defendants sold CANARY CLIPS in a plastic bag with a header card. When Meijer and Whitmor sold CANARY CLIPS, Meijer included its tradename, Wholesale Merchandisers, Inc.. and Whitmor included its name, Whitmor, on the packaging. Neither Meijer nor Whitmor provided any identifying information on the CANARY CLIP itself. The information provided by Meijer and Whitmor on the packaging was meant for and applied to the packaging for the CANARY CLIPS, not the clip itself.
Plaintiff sold SPARROWCLIPS in various types of packaging, including a plastic box and a plastic bag with a header card. Plaintiff's packaging for SPARROWCLIPS contains both the name SPARROWCLIPS and its source, Design Ideas: “SPARROWCLIPS, DESIGN IDEAS © 2008 Design Ideas Ltd.” or SPARROWCLIPS, DESIGN IDEAS” and “© 2011 Design Ideas Ltd.” The fonts, background designs, and background colors on the header cards used by Defendants and Plaintiff are different.
In addition, Plaintiff's SPARROWCLIPS have imbedded on each individual clip the author's name and Plaintiff's tradename: “p.waiwiriya for design ideas.” This information was not imbedded in the CANARY CLIPS.
Defendants contend, and Plaintiff disputes, that Whitmor's Vice President, Scott Felsenthal, reached out to outside counsel to ensure that its own distribution of the clips was appropriate. The parties also dispute that, based on counsel's response, Felsenthal expanded his search to include a search of copyright registration and that he did not find registrations related to the SPARROWCLIPS design or bird clips or clips. Whitmor never contacted Plaintiff to ask whether SPARROWCLIPS were trademarked or copyrighted.
Defendants stopped selling CANARY CLIPS around August 2014, shortly after receiving Plaintiff's cease and desist letters. Meijer's profits on the sale of CANARY CLIPS did not exceed $4, 809.78. Whitmor's profits on the sale of CANARY CLIPS did not exceed $9, 285.86.
Plaintiff submitted a copyright application to the U.S. Copyright Office for the SPARROWCLIPS on April 4, 2013. The Copyright Office issued a registration certificate on May 29, 2013.
On February 5, 2016, Plaintiff filed an application to register the mark “SPARROWCLIPS.” On September 13, 2016, the United States Patent and Trademark Office (PTO) issued a trademark registration for SPARROWCLIPS.
Applicant believes its SPARROWCLIPS mark is inherently distinctive. The bird design on the goods is not of any particular type of bird, and the mark is unitary. Nonetheless, Applicant submits herewith a 2(f) claim for SPARROW, since it has used the mark since 2008, as well as a disclaimer of CLIPS. However, if the Examining Attorney believes either or both are not necessary, applicant requests the Examining Attorney to delete them from the application. Thank you kindly.
The examining attorney reviewing the SPARROWCLIPS application did not delete the Section 2(f) claim from the SPARROWCLIPS application. In the PTO's Trademark Snap Shot Publication Stylesheet, the field titled “Section 2F In Part” is marked “YES.” The Registration Certificate states: “SEC. 2(F) As to ‘SPARROW.'” The following facts pertain to Plaintiff's breach of contract claim. In 2007, Plaintiff and Meijer entered into a Settlement Agreement to resolve a controversy between the parties related to another line of Plaintiff's products. Meijer denied in the Agreement that it infringed Plaintiff's products. The Agreement required that Plaintiff purchase merchandise identified in an attachment to the Agreement totaling $250, 753 and to purchase additional merchandise totaling $1, 000, 000 by September 30, 2009. The parties agree that Meijer satisfied all of its purchase obligations under the Agreement.
The Settlement Agreement also required Meijer “not [to] purchase, order, create, manufacture, sell, or distribute any other goods identical or substantially the same as Design Ideas' . . . (iii) containing any Design Ideas intellectual property or  use any Design Ideas intellectual property, or (iv) use any Design Ideas intellectual property . . . except as provided herein” Agreement ¶ 2(b) (d/e 172-14). Plaintiff alleges that Meijer breached this section of the Agreement with its conduct related to its infringing CANARY CLIPS.
Paragraph 8 of the Agreement provided: “The parties hereby agree to cooperate with each other in furtherance of the purpose, terms[, ] and provisions of this Agreement[.]” Agreement ¶ 8 (d/e 172-14). Plaintiff contends that Paragraph 8 requires Meijer to further the purposes of the Agreement and that a major purpose of the Agreement was “ongoing, future sales, which is shown by the express terms [of the Agreement] . . .” Defs. SOF ¶ 145 (d/e 169); Pl. Resp. at 5 (d/e 178).
Plaintiff claims, and Defendants deny, that Meijer threatened Plaintiff with a loss of business should Plaintiff continue to defend its intellectual rights in the SPARROWCLIPS. Plaintiff further claims, and Defendants deny, that Meijer actualized the threat as shown by the lost sales after Plaintiff refused to drop the instant enforcement and that Meijer instructed Meijer's buyers to cease business with Plaintiff. The parties do agree, however, that, in 2015, after the present lawsuit was filed, Meijer stopped product development efforts with Plaintiff and only agreed to continue purchasing three product programs that were already in place.
Summary judgment is proper if the movant shows that no genuine dispute exists as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The movant bears the initial responsibility of informing the court of the basis for the motion and identifying the evidence the movant believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). No. genuine issue of material fact exists if a reasonable jury could not find in favor of the nonmoving party. Brewer v. Bd. of Trs. of the Univ. of Ill., 479 F.3d 908, 915 (7th Cir. 2007). When ruling on a motion for summary judgment, the court must consider the facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in the nonmoving party's favor. Blasius v. Angel Auto., Inc., 839 F.3d 639, 644 (7th Cir. 2016).


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On 11October 2017, it was opened a traditional regional exhibition of works of Transcarpathian artists on the occasion of the Artist's Day at the "Uzhhorod" gallery. Authors from all over the region presented their graphics and works of decorative and applied arts. The diversity of styles, technique and texture is really impressive.
Here are samples of ceramics, carvings, a lot of watercolours, pastels, mixed and author’s techniques.
The famous Transcarpathian artist Odarka Dolhosh during the opening of the exhibition noticed: "Today we see that Transcarpathia lives with painting, filled with colouring of the region. But, at the same time, we have something to show to graphic artists, masters of decorative and applied arts. This exhibition is multifaceted, interesting and diverse. It certainly stands out against a background of all others."
People's Artist of Ukraine Volodymyr Mykyta stressed that his colleagues moved forward, and almost every author has something new in his works: "Earlier, one could see the same motives, and now the authors are in search – this is the very creativity", the artist said.
Among over 80 exhibits one can find works not only of the actual members of the Transcarpathian organization of the National Union of Artists of Ukraine, but also the works by young authors who managed to prove themselves well. In particular, the works of L. Korzh-Radko, O. Dolhosh, L. Borshosh-Litun, M. Peter, O. Lypchei, L. Savko, Y. Kopanskyi, I. Demian, V. Tymko, Y. Miravchyk-Rakovych, E. Levadska, O. Alfeddi, V. Pal, I. Klisa, L. Slobodska, Y. Hahel, V. Kohutych, V. Filesh, O. Kofel, Y. Dulenko, T. Ivanytska, A. Moshkola, K. Lyvrints, V. Manailo-Prykhodko, S. Zavadiak, O. Kondratiuk, I. Didyk, V. Kuzma, V. Myhovych, R. Pylyp, T. Danylych, M. Khodanych, P. Khodanych, N. Popova, Y. Yehorova-Rohova, O. Sopilniak, M. Rosul, V. Sochka, V. Kinch, V. Vinkovskyi, M. Mykhailiuk are presented here.
According to the results of the exhibition, which will last until the end of the month, the candidates for the Prize named after Bokshai and Erdeli will be determined.
L. Borshosh-Litun. Autumn Tenderness, 2017.
Y. Hagel. Explosion In Tiffany,2017.
Y. Hagel. Top View, 2017.
T. Danylych, M. Khodanych, P. Khodanych Iconostasis, 2017.
I. Demian Young Gentleman, 2017.
I. Didyk When Cicadas Fade Down, 2017.
O. Dolhosh In Contre-jour, 2017.
O. Dolhosh Cacti On The Windowsill, 2017.
Y. Dulenko Ancient Uzhhorod, 2017.
T. Ivanytska Golden Bush, 2017.
V. Kinch Wooden Churches of Transcarpathia, 2017.
V. Kinch Violinist. Verkhovyna Melody, 2017.
V. Kohutych Creation of Harmony, 2017.
O. Kofel Petefi Square, 2017.
V. Kuzma On Golgotha Mountain, On The Cross, 2017.
E. Levadska To I. Kupala, 2017.
K. Lyvrints Harmony of Chaos, 2017.
K. Lyvrints Arrow of Zeus, 2017.
O. Lypchei Hunting Still life, 2017.
V. Manailo-Prykhodko Oh, Ill Bring You A Jug Of Pure Water, 2017.
V. Myhovych Autumn Uzhhorod, 2017.
M. Mykhailiuk A. Novak, 2010-2013.
M. Mykhailiuk V. Pilat, 2013-2016.
A. Moshkola Flowers In The Garden, 2017.
A. Moshkola Underwater World, 2017.
V. Pal Dialogue Is Necessary, 2017.
M. Peter Fairy-tale Forest, 2017.
M. Peter Forest Dawn, 2017.
R. Pylyp Grape Vine, 2017.
N. Popova Psychological Games, 2016.
N. Popova Dance With Knives.
M. Rosul Floating Duck, 2017.
L. Slobodska Pear Tree from the series My Garden, 2017.
L. Slobodska Apple Tree from the series My Garden, 2017.
V.Tymko Window. Autumn Nest, 2017.
V.Tymko Window. Autumn Nest, 2017 (2).

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Amberto Garcia appeals the dismissal, for want of jurisdiction, of his petition for writ of habeas corpus. The respondents, Attorney General Janet Reno and Richard Cravener, Director of the Immigration and Naturalization Service ("INS") (collectively, the "government"), raise substantive and procedural objections to the appeal. We affirm.
Garcia is a national of Mexico who married a U.S. citizen in 1978 and consequently attained lawful permanent residency in the United States. After he received at least his third conviction of driving while intoxicated ("DWI") under Texas law,1 the INS instituted deportation proceedings under 28 U.S.C. § 1227(a) (2) (A) (iii), which renders deportable any resident alien convicted of an aggravated felony. After a removal hearing, an immigration judge found Garcia removable and ordered his removal to Mexico.
Garcia reserved appeal to the Board of Immigration Appeals (the "BIA") but ultimately failed to perfect the appeal.2 He did not file an appeal to this court for direct review of the removal order but, instead, filed a habeas petition in district court under 28 U.S.C. § 2241. The district court dismissed the petition, concluding that 8 U.S.C. § 1252 restricts jurisdiction over such appeals to direct review in the court of appeals. Alternatively, the court held that it lacked subject matter jurisdiction because Garcia had failed to exhaust his statutory and administrative remedies, is not in the custody of the government for habeas corpus purposes, and failed to file the petition timely.
Garcia argues on appeal, as he did before the district court, that the BIA improperly interpreted the term "crime of violence" to include DWI, resulting in the removal order.3 The government argues that the proper forum for such a challenge is not via habeas petition under § 2241, but instead by petition for direct review, as specified in 8 U.S.C. § 1252(b) (9). We review de novo the dismissal of a § 2241 petition on the pleadings. See Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000).
This matter is controlled by Max-George v. Reno, 205 F.3d 194 (5th Cir. 2000), in which we held that 8 U.S.C. § 1152(b) (9) denies all federal habeas jurisdiction under § 2241 for certain criminal aliens, including those removed under § 1227(a) (2) (A) (iii), as Garcia was. See id.at 201. We further held that any habeas jurisdiction remaining under the Constitution was insufficient to encompass the petitioner's claim in that case, "'because the Supreme Court long ago made it clear that this writ does not offer what [petitioner] desire [s]: review of a discretionary decision  by the political branches of government.'" Id. at 202 (citing Yang v. INS, 109 F.3d 1185 1195 (7th Cir. 1997)) (modifications in original).
At first glance, § 1252(b) (9) might raise concerns under the Suspension Clause, given that 8 U.S.C. § 1252(a) (2) (C) prohibits direct review of any final removal order under § 1227(a) (2) (A) (iii). As we noted, however, in Max-George, 205 F.3d at 199, even under § 1252(a) (2) (C), a court of appeals has jurisdiction to determine its own jurisdiction. When confronted with a petition for review from a criminal alien, a court of appeals must make three specific inquiries before dismissing the petition as barred by § 1252(a) (2) (C): (1) whether specific conditions act to bar jurisdiction over the petition for review; (2) whether the conditions that bar jurisdiction for example, as in this case, deportation for an aggravated felony have been "constitutionally applied"; and (3) if the jurisdictional bar applies, whether the remaining quantum of judicial review satisfies the Constitution. See Max-George, 205 F.3d at 199-201.
Garcia's challenge whether his crime is a ground for removal under § 1227(a) (2) (A) (iii) would properly be heard on direct review. In that posture, this court, in determining whether § 1252(a) (2) (C) applies to deny us jurisdiction to review the removal order, necessarily would inquire into whether DWI is a crime of violence.
Unfortunately, Garcia failed to petition for judicial review of his removal order; instead, he merely filed a habeas petition under § 2241. Unless his claim falls within the scope of the constitutionally-protected writ, the district court was without jurisdiction.
Garcia's claim is different from Max-George's, because he challenges the BIA's interpretation of "crime of violence," while Max-George challenged on due process grounds the retroactive application of § 1227(a) (2) (A) (iii) to cover a crime committed before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act. See id. at 195. The difference in the challenges does not present a valid basis on which to distinguish Max-George, however. The provision that barred habeas jurisdiction in Max-George applies to " [j]udicial review of all law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter . . . ." 8 U.S.C. § 1252(b) (9).
Thus, § 1252(b) (9) plainly applies to Garcia's habeas challenge, which deals with the BIA's interpretation of "crime of violence" as defined by 18 U.S.C. § 16. For this reason, the district court was without jurisdiction to entertain Garcia's appeal, so that court's dismissal for want of jurisdiction is AFFIRMED.
The record is murky with respect to Garcia's conviction record. While he admits, in his habeas petition, to only three convictions, the government's motion to dismiss references nine separate DWI convictions between 1984 and 1997.
In reference to the failure to appeal, Garcia's habeas petition describes the "negligence and malpractice" of his former counsel. The petition raises no issues regarding ineffective assistance of counsel, however, and we will not raise the issue sua sponte.
Under 8 U.S.C. § 1227(a) (2) (A) (iii), an alien who commits an aggravated felony is rendered deportable. Title 8 U.S.C. § 1101(a) (43) (F) defines "aggravated felony" to include a "crime of violence," as defined in 18 U.S.C. § 16, which defines "crime of violence" as "a felony . . . that, by its nature, involves substantial risk that physical force against the person or property of another may be used in the course of committing the offense." Because we have no jurisdiction to review the BIA's interpretation in a habeas posture, see infra, we express no view on whether DWI can reasonably be termed a "crime of violence."


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Welcome to the home page for the SHUCS project.
Effective security controls are critical for trustworthy operation of large computer systems, central to large enterprises and critical infrastructure, especially with physical distribution. Without tools such as access control and firewalls and the like, it becomes impossible to reason about, define, detect, and prevent adversarial action moving the system into a state that violates any of several key security goal.
However, these real-world systems involve large populations of humans, who use, configure, and maintain these systems. Fieldwork and much research reveal human users continually circumvent and misuse these security controls. These humans do not intend their circumventions as attacks, but rather as a way to efficiently achieve their job activities and organizational goals.
Many in the computer security research community overlook the reality of this circumvention. But such circumvention is ongoing, ubiquitous, often required, and seldom rebuked. Furthermore, since system security depends on correct use and operation of the security tools being circumvented, effective security requires a way to address such circumventions scientifically. Failure to understand and analyze these circumventions (or workarounds) means we build and deploy security that doesn't work---but we pretend that it does.
In this project we extend the science of security to take into account how good-intentioned humans behave/misbehave, so that our resulting systems are more effective, and more responsive to real-world needs and realities.
Our paper Workarounds to Computer Access in Healthcare Organizations: You Want my Password or a Dead Patient? was covered in Quartz Magazine, The Register, The Security Ledger, slashdot.org, boingboing and the Risks Digest.
Our early work in simulation of human security behavior was covered in The Economist.
Below are selected publications by topic. Here is a comprehensive list.
J. Blythe, R. Koppel, S.W. Smith.
Circumvention of Security: Good Users do Bad Things.
IEEE Security and Privacy. 11 (5): 80--83. September/October 2013.
SOUPS 2018: Usable Security vs. Workflow Realities (an earlier version was presented at USEC 2018).
and Modeling Human Security Behavior.
R. Koppel, J. Blythe, V. Kothari and S.W. Smith.
Security for the Collective Reality of the Smart Home.
J. Blythe, V. Kothari, S.W. Smith, R. Koppel.
Workshop on Usable Security (USEC 2018).
R. Koppel, J. Blythe, V. Kothari, S.W. Smith.
Password Logbooks and what their Amazon Reviews Reveal about their Users' Motivations, Beliefs, and Behaviors.
2nd European Workshop on Usable Security (EuroUSEC 2017).
Beliefs About Cybersecurity Rules and Passwords: A Comparison of Two Survey Samples of Cybersecurity Professionals Vs. Regular Users.
S.W. Smith, R. Koppel, J. Blythe, V. Kothari.
International Symposium on Human Aspects of Information Security and Assurance (HAISA 2015).
R. Koppel, S.W. Smith, J. Blythe, V. Kothari.
Workarounds to Computer Access in Healthcare Organizations: You Want My Password or a Dead Patient?
Driving Quality in Informatics: Fulfilling the Promise.
IOS Press, Studies In Health Technology and Informatics, Volume 208, pp 215-20, February 2015.
S.W. Smith and R. Koppel.
Healthcare Information Technology's Relativity Problems: A Typology of How Patients' Physical Reality, Clinicians' Mental Models, and Healthcare Information Technology Differ.
Journal of the American Medical Informatics Association. 21: 117-131, 2014.
J. Blythe and A. Tregubov.
FARM: Architecture for Distributed Agent-based Social Simulations.
IJCAI/AAMAS workshop on Massively Multi-agent Simulations.
C. Novak, J. Blythe, R. Koppel, V. Kothari, S.W. Smith.
Modeling Aggregate Security with User Agents that Employ Password Memorization Techniques.
Who Are You?! Adventures in Authentication (WAY 2017); Symposium on Usable Privacy and Security.
B. Korbar, J. Blythe, R. Koppel, V. Kothari, and S.W. Smith.
The AAAI-16 Workshop on Artificial Intelligence for Cyber Security (AICS).
V. Kothari, J. Blythe, S.W. Smith, R. Koppel.
Measuring the Security Impacts of Password Policies Using Cognitive Behavioral Agent-Based Modeling.
ACM Symposium and Bootcamp on the Science of Security (HotSoS).
Agent-Based Modeling of User Circumvention of Security.
ACySE '14: Proceedings of the 1st International Workshop on Agents and CyberSecurity.

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§ 159-3 Privies, septic tanks, etc., prohibited.
§ 159-4 Declaration of nuisance.
§ 159-5 Compliance with regulations required.
§ 159-6 Rules and regulations.
§ 159-7 Violations and penalties.
§ 159-9 Connection, customer facilities, and tapping fees.
§ 159-10 Sewer rentals or charges.
§ 159-11 Computation of sewer rentals or charges.
§ 159-13 Time and method of payment.
§ 159-14 Liens for sewer rentals; filing and collection of liens.
§ 159-15 Meters and other measuring devices.
§ 159-16 Segregation of sewer revenues.
§ 159-17 Adoption of additional rules and regulations.
§ 159-18 Violations and penalties.
§ 159-19 Declaration of purpose.
§ 159-20 Form for sewer rent bill.
§ 159-21 Violations and penalties.
§ 159-23 Appointment of pretreatment administrator.
§ 159-24 Discharge of sanitary sewage to public sanitary sewage system required.
§ 159-25 Admission of industrial wastes, holding tank wastes, septage and trucked industrial wastes to public sanitary sewage system.
§ 159-26 Permitting and licensing.
§ 159-27 Unacceptable wastes and discharges.
§ 159-28 Violation notice, remedies and penalties.
§ 159-30 Fees and surcharges for certain users and industrial wastes and sampling schedules.
§ 159-31 Rates for transportation and treatment of sewage from properties outside Springettsbury Township.
§ 159-33 Inspection of on-lot systems and pumping of septic and treatment tanks.
§ 159-34 Access to septic or treatment tanks.
§ 159-35 Written report of inspection and pumping required.
§ 159-36 Inspection of known or alleged malfunctioning on-lot systems.
§ 159-37 Notice to owner of on-lot systems of pumping requirement.
§ 159-38 Definition of "pumped."
§ 159-39 Additional maintenance requirements.
§ 159-40 Periodic pumping required.
§ 159-41 Conditions requiring more frequent pumping.
§ 159-42 Aerobic treatment tanks.
§ 159-45 Access to on-lot systems for pumping; diversion of surface water.
§ 159-46 Access to tanks for pumping.
§ 159-47 Prevention of unlawful discharge of sewage.
§ 159-48 Rates and charges for services.
Sewer Authority — See Ch. 8, Art. I.
Plumbing standards — See Ch. 146.
Stormwater management — See Ch. 173.
Water — See Ch. 217.


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Some observers have touted the recent decision by the U.S. Court of Appeals for the D.C. Circuit in EME Homer City Generation v. EPA, No. 11-1302 (D.C. Cir. Aug. 21, 2012), as a victory for the electrical power, coal and natural gas industries in the U.S.
By striking down the Cross-State Air Pollution Rule (the “Transport Rule”), the court undermined a key components of EPA’s strategy to restrict emissions from the nation’s coal-fired electrical generation plants. The Transport Rule was the result of EPA’s effort to define regulatory responsibilities under the “good neighbor” provision of the federal Clean Air Act (“CAA”), which requires States to restrict emissions within their borders when they adversely affect downwind air quality. Specifically, the Transport Rule imposed new limits on emissions of sulfur dioxide (“SO2”) and nitrogen oxides (“NOx”) that would “contribute significantly to nonattainment in … any other State” of applicable national ambient air quality standards (“NAAQSs”). After EME Homer, those requirements are now off the books.
While the Transport Rule may be history, that does not mean other requirements won’t be adopted to take its place. The matter has been remanded for further action by EPA, which must continue to administer the Rule’s predecessor, the 2005 Clean Air Interstate Rule (“CAIR”), until a replacement can be developed. In the meantime, courts have upheld other components of EPA’s regulatory strategy, including the “endangerment finding” and regulations limiting greenhouse gas emissions (Coalition for Responsible Regulation v EPA, No. 09-1322 (D.C. Cir. June 26, 2012)); the one-hour NAAQS for NO2 (American Petroleum Institute v. EPA, No. 10-1079 (D.C. Cir. July 17, 2012)); and new NAAQS for SO2 (National Environmental Development Association v. EPA, No. 10-1252 (D.C. Cir. July 20, 2012)).
What may be more important than the practical consequences is the Court of Appeals’ affirmation of the principals of federalism underlying the CAA. Under these principals, States—not EPA—have the primary responsibility for carrying out the nation’s environmental laws. EPA sought to bypass the role of the States when it adopted the Transport Rule, and the Court of Appeals rightly found that attempt to be unlawful.
The 2-1 majority opinion relied on two separate arguments to justify invalidating the Transport Rule. The first focused on how to interpret the good neighbor provisions in light of decisions regarding earlier attempts to implement them. In Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000), the court approved EPA’s use of cost considerations to lower an upwind State’s obligations under EPA’s 1998 NOx Rule (the precursor to CAIR). In North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), the court addressed a challenge to CAIR and found that while EPA could consider cost under the good neighbor provisions, it could not do so to require States to clean up more than their own share of pollution in downwind jurisdictions. In EME Homer, the court found that the Transport Rule required upwind States to do exactly that, in contravention of Michigan and North Carolina.
One might disagree with the majority’s conclusion—as the Judge Rogers did in a vigorous dissent—that the Transport Rule thus imposed “massive emissions reduction requirements on upwind States without regard to the limits imposed by the statutory text” of the good neighbor provision. It is harder to disagree with the majority’s separate conclusion, that by simultaneously adopting Federal Implementation Plans (“FIPs”) for the Transport Rule, EPA denied States the opportunity to implement the Rule through their own State Implementation Plans (“SIPs”), as required by the scheme of cooperative federalism on which the CAA is based.
The D.C. Circuit is not alone in admonishing EPA to be more mindful of the line separating its role in carrying out federal environmental policy from that of the States. In Texas v. EPA, No. 10-60614 (5th Cir. Aug. 13, 2012), the Fifth Circuit repudiated EPA‘s attempt to wrest control of the Texas new source review (“NSR”) permitting program. EPA disapproved the program sixteen years after it had been submitted as a proposed revision to the Texas SIP, “unraveling” approximately 140 permits issued by Texas pursuant to state law. The administrative record reflected that EPA’s action was simply based on the Agency’s preference for a different drafting style in developing the program. According to the court, such action “disturbs the cooperative federalism” that the CAA envisions and was arbitrary and capricious.
In both EME Homer and Texas, EPA argued that courts should defer to its decisions because of its special expertise in regulating complex air quality issues. That may be true, but it also misses the point. States have such expertise, too, and there is no reason to assume that EPA’s approach is superior, particularly where EPA has previously approved relevant state plans (EME Homer) or allowed such plans to be implemented over many years without acting to disapprove them (Texas). As the D.C. Circuit previously stated, the model of federalism adopted in the CAA means that EPA cannot “force particular control measures on the states” in the first instance. See Virginia v. EPA, 108 F.3d 1297, 1410 (D.C. Cir. 1997). Where EPA acts inconsistent with this principle, its actions should continue to be rejected.

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In TranBen, Ltd. v. Department of Transportation, CBCA 5448 (Jan. 26, 2017), the Civilian Board of Contract Appeals (“Board”) recently applied a restrictive view of the implied duty of good faith and fair dealing under an indefinite delivery/indefinite quantity (“IDIQ”) contract. In its appeal seeking almost $14 million, TranBen, Ltd. (“TranBen”) alleged that the Department of Transportation (“DOT” or “Government”) breached the implied duty by misleading the Internal Revenue Service (“IRS”) about the availability of paper vouchers in order to receive IRS guidance allowing DOT to issue transit subsidies on debit cards, instead of vouchers, without rendering them taxable. The Board dismissed the appeal for failure to state a claim in a troubling decision that calls into question the viability of the implied duty under an IDIQ contract where the Government satisfies its minimum ordering obligation. At the very least, the Board’s decision indicates contractors should be even more vigilant, at the early stages of IDIQ contract formation, to ensure that their legitimate expectations are protected through express contract language.
Under an IDIQ contract awarded in 2009, TranBen supplied paper vouchers through which DOT distributed tax-free mass transit subsidies to federal employees in the D.C. area. The IDIQ contract had a minimum guaranteed order of $1 million, and DOT purchased nearly $270 million worth of vouchers before the contract expired in 2013. However, more than 75% of the orders came in the first two years of performance. In 2011, DOT began shifting the transit benefit program from paper media toward electronic media, including debit cards. One precondition for using debit cards was to ensure that the IRS would not consider the cash reimbursements loaded on the debit cards taxable. To that end, DOT apparently told the IRS that paper vouchers were no longer readily available, which caused the IRS to concur in DOT’s position that transit subsidies on debit cards should not be taxable.
At the Board, TranBen alleged that DOT’s representation to the IRS regarding the availability of paper vouchers was misleading, evidenced by the fact that DOT continued to purchase vouchers from TranBen after 2011. TranBen generally asserted that because of DOT’s resultant shift from paper vouchers to debit cards, DOT ordered fewer vouchers than TranBen reasonably anticipated. The Government filed a motion to dismiss for failure to state a claim.
Relying on the well-established rule, stated in Travel Centre v. Barram, 236 F.3d 1316 (Fed. Cir. 2001), that an IDIQ contract requires the Government to order only a stated minimum quantity of supplies or services, the Board began by determining that the change in quantities ordered over time under TranBen’s contract did not constitute a change to or breach of the contract because DOT had no ordering obligation beyond the $1 million guarantee. Then, the Board recognized that, despite the “seemingly categorical” rule in Travel Centre that the Government satisfies its legal obligation under the contract once it orders the minimum quantity, the Board “and other tribunals have recognized that the Government can breach an IDIQ contract’s implied duty of good faith and fair dealing despite ordering the minimum.” Guided by the principle that the implied duty is limited and has to be connected to the bargain contemplated in the contract, the Board next addressed each of the three specific ways TranBen alleged that DOT’s reduction in purchasing paper vouchers violated the duty.
First, TranBen alleged that DOT violated the implied duty by not informing TranBen before contract award that DOT planned to start buying debit cards instead of vouchers. However, based on Scott Timber Co. v. United States, 692 F.3d 1365 (Fed. Cir. 2012), the Board held that DOT “could not have breached the covenant of good faith and fair dealing by its pre-award conduct because the covenant did not exist until the contract was signed.” Characterizing TranBen’s allegation regarding pre-award dealings as resembling a breach of the pre-award duty to disclose superior knowledge, the Board could not grant relief on such a basis because TranBen did not assert a superior knowledge ground in its certified claim or complaint.
Second, citing Centex Corp. v. United States, 395 F.3d 1283 (Fed. Cir. 2005), TranBen averred that DOT’s misstatements to the IRS eliminated TranBen’s ability to fully perform under the contract by reappropriating the benefits that TranBen expected from the contract. However, the Board found that both parties fully performed the contract: TranBen fully performed by filling DOT’s orders, and DOT fully performed by ordering at least the minimum quantity and paying for same. To so conclude, the Board reiterated that an IDIQ contract requires the Government to order only the stated minimum quantity. Further, distinguishing Centex Corp. by noting that the guaranteed minimum is the only consideration provided by the Government in forming an IDIQ contract, the Board reasoned that TranBen could not reasonably expect DOT’s orders to exceed that minimum.
Last, citing Malone v. United States, 857 F.2d 787 (Fed. Cir. 1988), and E&E Enterprises Global, Inc. v. United States, 120 Fed. Cl. 165 (2015), TranBen argued that DOT’s refusal to explain to TranBen why it told the IRS that paper vouchers were not readily available amounted to a lack of cooperation. The Board held that those cases were distinguishable because TranBen did not allege that DOT: (1) withheld information necessary for performance, (2) caused TranBen to waste work, or (3) actually interfered with contract work.
Therefore, based on this case’s restrictive view of the implied duty, contractors in the early stages of IDIQ formation should openly discuss with the contracting agency factors that may affect performance in excess of the guaranteed minimums. Then, contractors should attempt to negotiate the implementation of any expectations about those factors as contract terms. More concretely, for example, if contractors wish to be timely informed about agency actions that may negatively impact the agency’s ability to purchase in excess of an IDIQ contract’s guarantee, then contractors should attempt to memorialize such an expectation as an express contract term.

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"Opening the Door Theory" to Improper Evidence Rejected | Law Offices of Mark L. Horwitz, P.A.
In Redd v. State, 49 So. 3d 329 (Fla. 1st DCA 2010), the defendant was convicted of trafficking in cocaine when police found cocaine in three locations in his house. In reversing the conviction, the court set forth an analysis of the prosecution's often used argument that the Defendant "opened the door" to otherwise inadmissible evidence.
A bag containing cocaine was in plain view inside an open cabinet in the laundry room. In order to see this cocaine however, one had to enter the room and walk in front of the cabinet.
Also in the laundry room was a box containing trophies and plaques won by the defendant. In the box was another plaque with the names of one of the other occupants of the house. In addition, one of the other occupants had clothing in the laundry room.
The police also found a second bag containing 84 grams of a cocaine mixture in the dining room. This cocaine however, was hidden in a basket underneath an artificial plant. There was a smaller baggie containing suspected cocaine in a drawer of the china cabinet in the dining room.
Finally, the police found 5 small baggies, two of which contained cocaine residue. One of the baggies contained the defendant's fingerprint. However, there was no indication that the fingerprint was on a baggie that contained cocaine residue. In this particular dresser, the police also found other items associated with the defendant, including a high school diploma.
The issue in the case was whether the defendant possessed the quantifies of cocaine found in the other rooms to support the charge of trafficking in cocaine.
The state's theory was that the defendant was in constructive possession of the contraband. Therefore, the state had to prove that the defendant had dominion and control over the contraband, knew of its presence and knew of its illicit nature.
The court reversed the conviction because the state failed to prove the defendant's constructive possession.
Defense counsel, in cross examination of the officers, asked why one of the other defendants was not charged with possession of cocaine even though a small amount of cocaine was found in plain sight of that persons' bedroom.
In order to pursue this line of inquiry the defense counsel asked the following question of the police officer.
At that point [when Thomas was charged], what did you know about Dennis Redd that you didn't know about . . . Thomas in regard to possession of cocaine?"
Possession of the cannabis on Mr. Thomas was a result. Post-Miranda Officer Shallar spoke with [Thomas] and he was very up front, very adamant that all the marijuana we originally found in the first room, he took ownership of what was his and that's the reason. Based on his confession, he admitted [that] all the marijuana was his. The cocaine was just a residual amount on the dresser.
Defense counsel then asked the officer, "[W]hat about the cocaine in other parts of the house?"
[A]ll the identifiable material that was found in and around those products of cocaine either linked back to [Appellant], Bobbi Morris or possibly Ben Ratliff. So to charge [Thomas] with something on the other end of the house that I had no evidence of - any kind of evidence, a name, a document, a fishing award, I think would have been a push to charge him with it in my opinion.
The state attorney on re-direct, solicited from Sergeant Byrd the nature of Mr. Thomas' cooperation. Over defense counsel's hearsay objection, Sergeant Byrd testified that he had learned from Officer Shallar that Thomas reported the location of the cocaine in the artificial plant. Also over defense counsel's objections, Byrd testified that Thomas told Shallar that the cocaine belonged to Appellant and Ratliff.
The appellate court then discussed the concept of opening the door. It recognized that the concept allows for the admission of otherwise inadmissible evidence when it is necessary to "qualify, explain, or limit evidence previously admitted." In support of this, the court cited to Rodriguez v. State, 753 So. 2d 29, 42 (Fla. 2000). The appellate court went on to state, "This evidentiary principle is 'based on considerations of fairness and the truth-seeking function of a trial." Rodriguez at 42.
The concept was further described as applying when one party's evidence presents an incomplete picture and fairness demands the opposing party be allowed to follow up in order to clarify and make the picture complete. Brunson v. State, 31 So. 3d 926, 928 (Fla. 1st DCA 2010).
The court then goes on to analyze the importance of controlling this general concept of opening the door.
It stated, "Because fairness is the key concern of this evidentiary principle, the mere fact that testimony may be characterized as incomplete or misleading does not automatically trigger the admission of otherwise inadmissible evidence under the 'opening the door' rule." Hill v. State, 933 So. 2d 667, 670 (Fla. 1st DCA 2006). TheHill case is cited for the proposition that the state is not entitled to present evidence that a defendant has committed an unrelated crime merely because the defendant's testimony can be characterized as false or misleading.
The court noted that the state must demonstrate a legitimate need to resort to such evidence to correct a false impression. Hill v. State, 933 So. 2d 667, 670 (Fla. 1st DCA 2006), Alcantar v. State, 987 So. 2d 822, 825 (Fla. 2d DCA 2008). The court noted that if care is not taken in this regard, the opening the door rule threatens to become a pretext for the illegitimate use of inadmissible evidence and the fairness-promoting purpose of the rule would be lost.
The court went on to note that deciding whether fairness requires the admission of evidence under the opening the door principle, a court should consider the general unreliability of the inadmissible evidence. Ramirez v. State, 739 So. 2d 568, 580 (Fla. 1999). It noted that the more unreliable the evidence is, the less likely it is that fairness requires the admission of such evidence.
While the court noted that hearsay is sometimes admissible under the opening the door principle, the court must keep in mind the inherent unreliability of hearsay as a factor in considering when such hearsay evidence is to be admitted under the principle.
In considering whether to admit hearsay evidence from a co-defendant or a potential co-defendant, any inquiry as to whether such hearsay is admissible under the opening the door theory should keep in mind that such testimony is especially suspect because the co-defendant or potential co-defendant has a strong motivation to implicate others.
The court noted that for this reason, an out of court statement made by a co-defendant is "even less credible than ordinary hearsay." Ramirez v. State, 739 So. 2d 568 at 580.
The court ruled that the defense did not open the door to allow the double hearsay testimony which the state elicited over objection during re-direct of Sergeant Byrd.
In essence, the inadmissible hearsay went to the crux of the case for the state.
Thomas' double hearsay statement that Appellant owned the cocaine was the main evidence that connected Appellant to the cocaine in the dining room. Other than the uncorroborated hearsay from Thomas, the State's case was entirely circumstantial. Thus, without Thomas' erroneously admitted statements, Appellant's motion for judgment of acquittal would have been subject to the "special standard of review" governing circumstantial cases. See State v. Law, 559 So. 2d 187, 188 (Fla. 1989). That is, the State would had been required to produce some evidence inconsistent with the defendant's reasonable hypothesis of innocence.
Without Thomas' statements, the state would not have been able to prove its case of trafficking in over 28 grams.

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The controversy here is governed by the application of some basic principles applicable to the defence of qualified privilege and the circumstances that may render that defence unavailable in answer to a defamation claim.
 First, qualified privilege attaches to the occasion on which a communication was made, not to the communication itself: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC),  2 S.C.R. 1130, at para. 143; RTC Engineering Consultants Ltd. v. Ontario (Ministry of the Solicitor General & Correctional Services-Office of Fire Marshall) 2002 CanLII 14179 (ON CA), (2002), 58 O.R. (3d) 726 (C.A.), at para. 14; and Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC),  3 S.C.R. 3, at para. 78.
 Second, on an occasion of qualified privilege, one person may defame another without attracting liability for defamation. The law presumes that the defamatory statement was made honestly and in good faith: RTC Engineering, at para. 14. Said somewhat differently, the legal effect of the defence of qualified privilege is to rebut the inference, one that naturally emerges from the publication of defamatory words, that they were spoken with malice: Hill, at para. 144.
 Third, as the term “qualified privilege” would itself suggest, the privilege is not absolute: RTC Engineering, at para. 18.
 Fourth, qualified privilege may be defeated when the information communicated in the statement is not reasonably appropriate in the context of the circumstances existing on the occasion when the information was given: Hill, at paras. 146-147; RTC Engineering, at para. 18; Botiuk, at para. 80; and Douglas v. Tucker, 1951 CanLII 54 (SCC),  1 S.C.R. 275, at p. 286.
 Several principles furnish the guidance necessary to a just determination of this ground of appeal.
 First, qualified privilege may be lost if the dominant motive for the statement was malice: Hill, at para. 144; RTC Engineering, at para. 18; and Botiuk, at para. 79.
s malice: Hill, at para. 144; Botiuk, at para. 79; and Horrocks v. Lowe,  A.C. 135 (H.L.), at p. 149.
 Second, to defeat a defence of qualified privilege, the dominant motive for publishing the statement must be actual or express malice: Hill, at para. 144; Botiuk, at para. 79; and Horrocks v. Lowe,  A.C. 135 (H.L.), at p. 149.
 Third, malice means spite or ill-will, but also includes any indirect motive or ulterior purpose that conflicts with the sense of duty or mutual interest that the occasion giving rise to qualified privilege created: Hill, at para. 145; and Botiuk, at para. 79.
 Fourth, malice can also be established by showing a defendant spoke or wrote dishonestly or in knowing or reckless disregard for the truth: Hill, at para. 145; Botiuk, at para. 79; and RTC Engineering, at para. 18.
 Further, the onus rests on the plaintiff to prove malice by inference, extrinsic evidence, or both. This follows from the effect of qualified privilege, which is to rebut the inference of malice that arises from the fact of publishing defamatory words: Hill, at para. 144; Raymond E. Brown, Brown on Defamation, loose leaf, 2nd ed. (Toronto: Carswell, 2011), at p. 16-2.
 Finally, whether a plaintiff has established malice to rebut a defence of qualified privilege is a question of mixed fact and law, heavily dependent on the facts disclosed by the evidence adduced at trial and subject to the palpable and overriding standard of review on appeal: Chohan v. Cadsky, 2009 ABCA 334 (CanLII), 2009 ABCA 334, 464 A.R. 334, leave to appeal to S.C.C. refused,  S.C.C.A. No. 496, at para. 87; and Cimolai v. Hall, 2007 BCCA 225 (CanLII), 2007 BCCA 225, 44 C.P.C. (6th) 389, at para. 30.

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