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Consumers are protected under the law from unfair or deceptive practices by sellers.
Salesperson made promises about the quality of a product, such as a car, which turned out not to be true, and now the client wants a remedy.
Client thinks they were treated unfairly by a business and that the business took advantage of them, and now the client wants a remedy.
A number of promises were made to a client about the quality of a product, but the promises were not put in a written sales contract, and now the salesperson says that the promises are not binding.
Trade practices legislation for the protection of consumers was first enacted in the 1970s as the Trade Practices Act. Its successor statute, the Business Practices and Consumer Protection Act, was enacted in 2004. Both statutes build on the law of contract, but try to cover situations where the common-law principles of contract law are insufficient to give a consumer a remedy.
Section 4 of the Business Practices and Consumer Protection Act generally defines a deceptive act or practice as any form of representation capable of deceiving or misleading a person. The case law has interpreted this to mean an action that tends to lead the consumer to make an error of judgment. Section 4 also lists specific actions deemed to be deceptive, including misrepresentations (that is, untrue representations) about the quality of a product, prior history of a particular product (for example, a car), the price advantage the seller is offering, or the availability of an item.
Section 4(3)(c)(iii) says it is a deceptive practice to give an estimate that is “materially less” than the price eventually determined or demanded by the supplier if the consumer has not expressly consented to the higher price before the goods or services are supplied.
A number of reported court decisions have found some types of conduct to be deceptive practices under previous legislation (the Trade Practices Act). Most of the decisions involved representations by salespeople about the quality of consumer products, particularly cars.
In Steiner v. Personal Motors Ltd., the court found that a salesperson had made statements “grossly exaggerating” the condition of a car, and that the statements were deceptive within the meaning of the Trade Practices Act. The buyer was awarded exemplary damages of $500 as well as specific and general damages. Rushak v. Henneken is a 1991 Court of Appeal decision dealing with representations made about a car that summarizes the relevant legal principles and case law. In Casillan v. 565204 B.C. Ltd., the BC Supreme Court applied the principles in Rushak v. Henneken and found that a used car salesperson engaged in a deceptive act or practice under the Business Practices and Consumer Protection Act when a salesperson told a potential buyer that the powertrain of a car was under warranty without confirming if that was in fact the case. In fact, there was no powertrain warranty and the car engine needed to be replaced within five months of purchase, due to a major powertrain malfunction. The court awarded the buyer statutory damages of $13,512.61 under section 171 of the Business Practices and Consumer Protection Act, which was the cost of the engine replacement. In Simpsons-Sears Limited v. Paddock, the court awarded damages under the Trade Practices Act where a lower quality of roofing shingle than was represented in the sales contract was used.
Was undue pressure put on the consumer?
Was the consumer taken advantage of because of physical or mental infirmity, ignorance, illiteracy, age or inability to understand anything related to the transaction?
Was the price charged to the consumer grossly above usual market prices?
At the time of the transaction, was there no reasonable probability that the consumer would ever be able to make full payment of the total price?
Were the terms of the transaction so harsh or adverse to the consumer as to be inequitable?
In Pacific Finance Acceptance Co. Ltd. v. Turgeon, the court found the conduct of the plaintiff-creditor unconscionable under the Trade Practices Act. In that case, the consumer-borrowers were initially given three months’ relief from loan payments, but were later pressured into refinancing at a higher interest rate under threat of legal action to claim the three payments. The court dismissed the creditor’s claim for the balance remaining on the outstanding loan agreement.
A consumer can bring a civil action in Small Claims Court or Supreme Court under the Act.
Consumer Protection BC can bring a civil action (and take other administrative steps) against the seller on behalf of one or more consumers.
The Crown can prosecute a seller that has contravened the Act.
Section 171 of the Business Practices and Consumer Protection Act allows a consumer to bring an action for damages arising from a contravention of the Act, including a deceptive or unconscionable practice. If an unconscionable act or practice has occurred in a consumer transaction, section 10(1) provides that the transaction is not binding on the consumer. In effect, a consumer can use the Act either to bring an action or to defend against a claim by a seller.
One particular advantage for consumers bringing an action under the Act is the admissibility of parole evidence. In essence, this rule says that where there is a written contract that appears to contain all of the terms agreed to between the parties, the courts usually will not take notice of unwritten statements (for example, verbal promises or representations) that go beyond or contradict the terms of the written agreement.
Historically, this rule was a problem for consumers because most written consumer contracts had a clause specifically saying the agreement stood for the entire agreement, and there were to be no other representations or promises made between the parties. If a consumer tried to say in court that a salesperson made a verbal promise or representation about something they bought, and the promise or representation turned out not to be true, only in very limited situations would the court admit the consumer’s testimony about the verbal promise as part of the court case.
Section 187 of the Business Practices and Consumer Protection Act says that in any proceeding involving a consumer transaction (as defined under the Act), the parole evidence rule does not exclude or limit the admissibility of evidence relating to the understanding of the parties to the agreement, or to a particular term of it. The equivalent section in the Trade Practices Act was applied in the Findlay case, which is discussed above.
The Business Practices and Consumer Protection Act says it is an offence to contravene the Act. This means that sellers can be prosecuted in the criminal courts for deceptive or unconscionable practices. Where there is a prosecution and a conviction, a judge can, in addition to imposing fines or jail, order the seller to compensate a consumer for losses suffered as a result of the offence.
Copies of all sales documents, warranties, correspondence, advertisements, sales brochures, or other promotional materials.
Conversations between the consumer and salespersons or others acting on behalf of the seller, including conversations made before, during, and after the making of any contract.
Any attempts by the consumer to resolve the complaint, and details of any promises of compensation that may have been made by the seller.
The particular product or service that the consumer is complaining about.
Attempt to resolve the matter directly with the seller: The usual first step is to attempt to negotiate a resolution (for example, ask for a refund or some money back to compensate for a product that has been misrepresented). The consumer may have to consider court action if a settlement cannot be negotiated.
Complain to Consumer Protection BC: You can ask them to pursue a remedy on behalf of the consumer, and possibly other consumers who may have been the subject of deceptive or unconscionable practices. The advantage here is that the Business Practices and Consumer Protection Act has a number of remedies under the Act only granted to Consumer Protection BC (and not to consumers in their own court action). The consumer also gets the benefit of any court actions by Consumer Protection BC without incurring legal costs.
For most routine cases, the consumer should expect to negotiate or litigate for themselves.
This page was last edited on 11 October 2018, at 06:12.

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Earlier this month, in MCM Portfolio LLC v. Hewlett-Packard Company (case number 15-1091), the Federal Circuit heard arguments challenging whether or not AIA reviews are constitutional under Article III of the Constitution. In January, MCM Portfolio LLC (MCM) appealed the final written decision of the Patent Trial and Appeal Board (PTAB) of the inter partes review (IPR) of U.S. patent number 7,162,549 (directed to controller chips for coupling a computer system with a flash storage system).
In the appeal brief, MCM argued, among other things, that any action to cancel or revoke a patent must be tried in an Article III court with access to a jury under the Seventh Amendment to the Constitution. MCM alleged that patents are the property of their owners and even the government must resort to the Courts if there is an issue related to the patent - regardless of who is to blame for any issue. MCM believes that by allowing AIA reviews to decide the validity of patents, Congress has denied patent owners their rightful access to a jury trial in violation of the Seventh Amendment.
The USPTO responded by arguing that Congress has not taken away any rights, but, rather, has merely offered a different path to determine the validity of a patent. The USPTO’s position is that a patent is a public right that can only be granted by the USPTO and thus the PTAB is an appropriate agency to determine the validity of a patent.
The MCM case is another example of a patent owner seeking to find a way to remove adjudicative authority from the PTAB, as the AIA process continues to invalidate patents at an alarming rate. The Court’s decision with respect to this matter could potentially have a huge impact on this process, as a favorable ruling for MCM could essentially strip the PTAB of any AIA petition review power.
On August 26, 2015, in CBM2015-00022, the Patent Trial and Appeal Board (PTAB) refused to terminate a Covered Business Method (CBM) proceeding as being moot in view of a district court decision that the challenged claims of the patent are invalid under 35 U.S.C. 101.
More specifically, MyMedicalRecords, Inc., the owner of U.S. Patent No. 8,301,466 (‘466 patent) for “Method and system for providing online records” informed the PTAB that on December 23, 2014, the District Court for the Central District of California held that each of the challenged claims of the ‘466 patent is directed towards patent ineligible subject matter. MyMedicalRecords had initially appealed the District Court’s decision, but subsequently had the case voluntarily dismissed at the Federal Circuit. Accordingly, MyMedicalRecords asserted to the PTAB that issue of subject matter eligibility was settled and that it would be proper for the PTAB to dismiss the CBM proceeding under 37 C.F.R. 42.72, rather than enter a judgment. The cited rule, 37 C.F. R. 42.72, states “[t]he Board may terminate a trial without rendering a final written decision where appropriate . . . .” The PTAB determined that it would be inappropriate to dismiss the CBM.
In refusing to dismiss the CBM proceeding, the PTAB stated that the CBM instituted against claims 8-12 of the ‘466 patent is distinct and independent from the appeal from the District Court’s holding. In particular, the PTAB stated that the CBM was not at a preliminary phase. Rather, the PTAB had already issued a decision to institute review of the ‘466 patent by the time MyMedicalRecords requested that the CBM be dismissed.
The PTAB then proceeded to find that challenged claims 8-12 are indeed patent ineligible because they merely recite the concept of user management performed by a generic computer, do not improve the functioning of the computer itself, and do not provide an improvement to another technology or technical field. In reaching its decision, the PTAB relied on the declaration of an expert that the recited elements of the claims, such as a server, storing files in a computer readable storage medium, a user interface on a computing device, passwords, and receiving files that include image format files, were well-known conventional concepts on September 12, 2005, the priority date of the ‘466 patent.
The takeaway from CBM2015-00022 is that the PTAB is not required to dismiss a proceeding regarding the patentability of challenged claims when concurrent litigation has reached a conclusion on the patentability of the claims. Rather, the proceeding at the PTAB is independent and distinct, and is likely to go forward if the PTAB has already issued a decision to institute review of the challenged patent.
A second set of proposed rule changes to AIA post-grant proceedings was published by the Patent Office on August 20, 2015. The proposed rule changes cover many different aspects of AIA proceedings but, are generally favorable to patent owners. While this post discusses several issues addressed in the proposed rule changes, the proposal (available here) is worth reading in its entirety as it provides useful insight as to how the Patent Office intends to address various issues in AIA proceedings.
One issue addressed in the proposed rule changes is one of the most contentious issues for patent owners since the enactment of the AIA–namely, the procedure for amending claims in AIA proceedings. The proposed rule changes, although acknowledging improvements in this area are needed, do not include any specific rule changes for motions to amend claims. Rather, the proposed rule changes contemplate improving and clarifying the claim amendment process by designating appropriate PTAB decisions as precedential or informative.
One such decision discussed in the rule proposal is the PTAB’s MasterImage decision, which the Board recently designated as “representative”. The MasterImage decision clarified the requirements for patent owners to demonstrate their proposed amendments are patentable (see MasterImage 3D, Inc. v. RealD Inc., IPR2015–00040, Paper 42 (PTAB July 15, 2015)), and many, including PTAB Chief Judge Nathan Kelley, believe the MasterImage decision paves the way for easier claim amendments in AIA proceedings.
The Patent Office also indicated in the proposed rule changes that it would stand pat on its “broadest reasonable interpretation” (“BRI”) claim construction standard currently applied in AIA proceedings. This decision is not surprising in light of the Board recently receiving the Federal Circuit’s blessing to apply the BRI standard. See In re Cuozzo Speed Technologies LLC, No. 2014-1301 (Fed. Cir. July 8, 2015). The Patent Office also clarified in the proposed rule changes that it would apply a Phillips-type claim construction standard where the challenged patent is expired or will expire during the post-grant proceeding. Although the Board had already been applying the Phillips district court claim construction standard in some of these cases, there was no firm rule, so the proposed rules provide at least some clarity to AIA proceedings.
The proposal also includes rule changes that would permit patent owners to include expert declarations and other testimonial evidence in response to challengers’ petitions. Under current rules, patent owners are not entitled to submit testimonial evidence in preliminary responses, which many have argued put patent owners at a disadvantage by allowing petitioners’ evidence to go unanswered before trial is instituted. The proposed rule changes would allow patent owners to rebut expert testimony and evidence at the institution stage, rather than having to wait until trial is instituted to present rebuttal evidence.
The proposed rules will not be finalized until after the public commentary period ends on October 19, 2015. The proposed rule changes, while not drastically changing current practice, would favor patent owners by, among other things, allowing patent owners to rebut expert testimony and evidence prior to institution of a trial, and by allowing the Office to further refine claim amendment procedures through appropriate PTAB decisions. Practitioners should stay tuned for a final rule announcement in the coming months.
Of the many procedural wrinkles of post-grant reviews, Petitioners may sometimes overlook the seemingly trivial matter of standing. A recent decision illustrates how this issue should be considered more cautiously.
In Acxiom Corporation v. Phoenix Licensing, LLC, the PTAB denied the institution of a CBM review upon finding that the sole remaining petitioner, Acxiom Corporation, lacked standing under § 18(a)(1)(B) of the America Invents Act. See Acxiom Corp. v. Phoenix Lic., CBM2015-00068. Initially, Acxiom had filed the Petition jointly with three other entities – AT&T Mobility, LLC, AT&T Services, Inc., and Ford Motor Company. Upon Joint Motions to Terminate, the other three entities were removed from the Petition, leaving only Acxiom. The PTAB found the Petition failed to show standing for Acxiom.
Regarding Acxiom, the Petition stated in the “Grounds for Standing” section that, “Acxiom Corporation and AT&T Services, Inc. are both real parties-in-interest to and/or privies of one or more parties who have been sued for infringement.” The PTAB found this statement deficient because (1) no persuasive evidence was provided to show that the parties sued for infringement are Acxiom ‘s real party-in-interest or privies of Acxiom and (2) Acxiom’s statement that it was privy of one or more parties who have been sued for infringement could not have justified standing, even if true.
Regarding the first point, the PTAB’s decision makes clear that the Board will not confer standing based on unsupported assertions alone. Practitioners are advised to articulate the evidentiary basis for such assertions. Regarding the second point, the PTAB explicitly clarified that privy status can only confer standing when the party sued is a privy of a Petitioner, but not the converse. Looking to legislative history of the AIA, the PTAB noted that the word “privy… effectively means customers of the petitioner.” 157 Cong. Rec. S5432 (daily ed. Sept. 8, 2011)(statement of Sen. Schumer). In other words, a Petitioner may only have standing based on privy status if a customer of the Petitioner is the party sued. The converse does not hold: the fact that a party is sued does not confer standing to every customer of that party.
In Arctic Cat, Inc. v. Polaris Industries, Inc. (Case IPR2014-01427), the Patent Trial and Appeal Board (PTAB) recently denied a motion for additional discovery filed by Arctic Cat during the inter partes review of U.S. Patent No. 8,596,405 (the ‘405 Patent ).
By way of its motion, Arctic Cat sought the production of marketing and customer survey documents that it contended were highly relevant to Polaris’ argument that the ‘405 Patent is nonobvious in view of the commercial success of Polaris’ RZR vehicle. In ruling on the motion, the PTAB evaluated the Garmin factors and found against Arctic Cat with respect to whether the additional discovery requests would have been overly burdensome to answer.
One of Arctic Cat’s key arguments against the overly burdensome nature of the additional discovery requests was that the requests were “narrower” than those to which Polaris had already been ordered to respond by the district court in co-pending litigation. Arctic Cat essentially argued that Polaris simply had to review and produce before the PTAB what it had already reviewed and produced before the district court.
Polaris argued in response that, unlike the discovery requests before the district court, Arctic Cat’s additional discovery requests before the PTAB required Polaris to designate whether each of the documents was by nature a marketing presentation or a consumer survey. Polaris also argued that the additional discovery requests before the PTAB were not limited by the same search terms, e-mail restrictions, and custodian restrictions that were agreed-upon by the parties before the district court. Hence, Polaris contended that it was unclear whether its actions in producing documents before the district court would have been sufficient to satisfy its obligations before the PTAB. On this basis, Polaris argued that the additional discovery requests by Arctic Cat were overly burdensome to answer, and the PTAB agreed.
As a takeaway, it may be helpful for a moving party to craft its additional discovery requests before the PTAB to mirror exactly those that were previously made in co-pending litigation. This could diffuse the opposing party’s argument that the additional discovery requests are overly burdensome. Had Arctic Cat not attempted to make its litigation discovery requests “narrower” for use in the inter partes review, the PTAB may have actually sided with Arctic Cat on the “overly burdensome” Garmin factor.
IPR Petitioners often wrestle with determining how much content to put into a petition (and related declarations and exhibits) before considering breaking a petition into multiple filings. On the one hand, insufficient detail of anticipation or obviousness can cause a failure of institution of proceedings. On the other hand, at some point an overly lengthy filing can prevent institution of an IPR on its own. Further, the cost of each petition may drive clients to seek to maximize the information in any particular filing.
This question came to a head in a recent decision in which the PTAB denied institution for a variety of reasons, but most notably because the petition was unduly lengthy. See Apple, Inc. v. ContentGuard Holdings, Inc., IPR2015-00356. In the underlying Petition, Apple filed an IPR challenging the validity of ContentGuard’s patent, U.S. Patent No. 8,001,053 (the ‘053 patent) related to digital rights management (DRM). The petition was filed based on two separate 35 U.S.C. § 103 grounds, both based on U.S. Patent No. 6,389,538 to Gruse. The PTAB determined that the Petitioner did not demonstrate a reasonable likelihood of prevailing based on either ground because the ‘053 patent “describes and claims a particular scheme among the many possible schemes” of DRM and the Gruse reference showed general schemes of DRM without disclosing the particular scheme of the ‘053 patent.
Yet, the PTAB’s other bases for denial of institution are more important than the defects of the § 103 grounds. First, the PTAB took significant exception to the unnecessarily lengthy nature of the Petition, and particularly to the fact that the Petition included excessive irrelevant content.
The PTAB noted that the Expert Declaration used by Petitioner was an “omnibus declaration” that was used in multiple other petitions. As a result, the Expert Declaration included significant information not pertinent to the challenge of the ‘053 patent. Similarly, the PTAB noted that while the Petition included sixty-one exhibits totaling 30,298 pages, fifty-one exhibits were not cited in the Petition, ostensibly because they were related to other petitions. Elaborating on the problem posed by this extraneous content, the PTAB stated, “petitioners, ‘should avoid submitting a repository of all the information that a judge could possibly consider, and instead focus on concise, well-organized, easy-to-follow arguments supported by readily identifiable evidence of record.’ (citing to 77 Fed. Reg. at 48,763) The Petition widely misses that mark.” IPR2015-00356 at 18-19.
Based on the PTAB’s final written decision, it appears that a large part of the problem was the Petition’s reliance on information that the Board did not need, whatsoever. Although finding the magic length of a Petition may be difficult, a clear lesson from this decision is to strike any extraneous content and avoid omnibus declarations like the one used by Petitioner.
This written decision includes one final lesson – always fully comply with all mandatory Petition requirements. The Petitioner failed to completely disclose all matters related to the ‘053 patent. Citing to 35 U.S.C. § 312(a)(4), the PTAB noted that mandatory requirement of “any other judicial or administrative matter that would affect, or be affected by, a decision in the proceeding.” (quoting 35 C.F.R. § 42.8(b)(2)) Apparently, Petitioner failed to cite several litigation matters directly related to the ‘053 patent and also failed to cite to litigation matters related to other patent applications related to the ‘826 matter. The PTAB determined that, although the institution would not be granted on § 103 grounds, the institution could have been denied by the failure to provide mandatory notices.
When filing a Petition (or any filings before the PTAB), be mindful of the discretion and power of the Board. This decision suggests that taking shortcuts may be severely sanctioned and lead to adverse outcomes for a party.
One of the terms at issue was “gateway… connected to said packet-switched network in such a way that network packets sent between at least two other computers.” The patent owner argued that the “two other computers” should be construed as only the sender/computer and the receiver/computer. The Board adopted Microsoft’s construction of “any two computers connected on the network to the gateway, including the caching computer.” The Board then found the claim anticipated.
In reversing, the Court found that the Board erred in concluding that the “two other computers” could include the caching computer. The Court found the claim’s explicit requirement of a caching computer and “two other computers” and the specification’s treatment of the caching computer and the “two other computers” supported a more narrow construction. While confirming the “broadest reasonable interpretation” claim construction standard, the Court reinforced the “reasonable” aspect of this standard. The Court reversed two additional constructions and remanded to the Board for additional validity findings.
The Court also affirmed the Board's denial of patent owner's Motion to Amend.
Since the inception of post-grant proceedings (e.g., inter partes reviews (IPRs), post-grant reviews (PGRs)) under the America Invents Act (AIA), many patent owners have viewed the Patent Trial and Appeals Board (PTAB) as somewhat of a slaughterhouse for patents. In particular, as the number of granted IPR petitions rises, so does the number of patents invalidated by the PTAB. Many, in fact, view the entire process as heavily tilted in view of the IPR petitioners. There may be hope on the horizon, however, for patent owners’ chances in future proceedings.
- Requiring the PTAB to use the claim construction standard used in district courts as opposed to the “broadest reasonable interpretation” standard currently used.
- Limiting multiple challenges to the same patent.
- Limiting the number of PTAB members of a panel that granted the review to be allowed to take part in the final decision of the review (i.e., to avoid the instance of a decision-making panel viewing the patent unfairly based upon the decision to grant the review).
- Requiring the party filing a petition to do so under an obligation similar to the Rule 11 obligations of the Federal Rules of Civil Procedure (which allows sanctions to be imposed on attorneys who file frivolous suits).
- Amending the estoppel rules in PGRs to only estop a patent owner from raising issues in later court proceedings that the patent owner actually did raise in the PGR (as opposed to also including estoppel for issues that “could have been raised” during the PGR).
By drafting this bill, the senate appears to empathize with the plight that many patent owners have experienced during the AIA review process. As such, the PATENT Act is something for patent owners to keep an eye on because if it eventually passes, then the idea of successfully overcoming an AIA review may not be as daunting.


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Professor Victor Stepanovich Kuksenko, doctor of physical and mathematical sciences, passed away at the age of 79 on August 16, 2015 in St. Petersburg, Russia. He was an outstanding scientist who made valuable contributions into the physics of strength and suggested the model of earthquakes relying on the kinetic approach to the strength of solids.
Victor Stepanovich Kuksenko was born on November 4, 1935 in Stavropol region. In 1964 he graduated from the Polytechnic Institute in St. Petersburg. From 1964 and till his death he worked at the Ioffe Physical-Technical Institute of Russian Academy of Sciences. His scientific advisor was academician Serafim N. Zhurkov. In 1970 V. Kuksenko received his PhD in physics and in 1978 he received his Doctor of Science degree from the Ioffe Institute. His research focused on physics of polymers, mechanics of fracture of solids, earthquakes prediction, rock bursts, and dynamic fracture of large-scale objects. In 1988 V. Kuksenko was appointed Head of Laboratory of Physical Basis of Fracture Prediction, and later he became Head of Department for Physics of Strength.
Victor Kuksenko was one of the most prominent experts in the fields of physics of strength of heterogeneous solids and macrofracture prediction. His work was highly appreciated and widely recognized both by Russian and international scientific communities.
The scientific activity of V. Kuksenko can be divided into two stages, the research into fracture at the micro- and macrolevel, united by a common kinetic approach to this problem. While investigating the origin and evolution of submicron cracks in polymers under loading, he formulated the micromechanical model of crack evolution in polymers. These investigations were described in his book "Microdestruction of Polymeric Materials" which was translated into English and published in the USA.
V. Kuksenko successfully applied the data obtained in studies of microdestruction to the analysis of macrodestruction of heterogeneous materials (including rocks). He elaborated a two-stage model of rock fracture, including a primary chaotic crack accumulation followed by their localization, and also formulated the criterion for transition from cracks of one scale level to the next one. The research conducted in his laboratory resulted in the development of physical principles of macrofracture prediction and manufacture of instrumental complexes for prediction of destruction of large objects (pipelines, tunnels, etc.) as well as rock bursts in mines in real time.
V. Kuksenko conducted his research in close cooperation with a number of leading institutions in Russia and all over the world, such as Institute of Physics of the Earth RAS, the US Geophysical survey and the Seismological Bureau of China.
V. Kuksenko was one of the organizers of the International school-seminar "Physical and Forecasting Rock Destruction", which has been held on a regular basis since 1982.
Five doctoral and fifteen PhD dissertations were researched and defended under Professor V. Kuksenko's scientific supervision.
He published over 180 papers and participated in many Russian and international conferences (England, Germany, the USA, Italy, Greece, Japan, etc.) with numerous reports (including plenary and invited lectures).
V. Kuksenko was a member of many scientific councils of the Russian Academy of Sciences and was an expert for the Russian Foundation for Basic Research and other councils.
Numerous researchers successfully continue to develop Victor Kuksenko's ideas in solving one of the major fundamental problems in seismology, i.e., prediction of fracture of heterogeneous materials and also of large-scale industrial constructions and natural catastrophic events, such as earthquakes.
Victor Kuksenko was an inspiration to his colleagues and students. He was a talented person and a kind and supportive friend for many of us. His death is a great loss to all of us. Our thoughts are with his family.

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[250 U.S. 363, 364] Messrs. Gregory L. Smith, of Mobile, Ala., and Henry L. Stone and Edward S. Jouett, both of Louisville, Ky., for appellant and plaintiff in error.
Mr. Rush Taggart, of Louisville, Ky., for appellee and defendant in error.
These suits, the earlier begun in the District Court of the United States, the later in a court of the State of Mississippi, are bills in equity containing the same allegations and seeking the same relief. They both seek a decree that State judgments of condemnation by emient domain, giving to the telegraph company the right to erect its poles along the railroad's right of way across the [250 U.S. 363, 365] State of Mississippi, are void. The State case was decided first and was in favor of the defendant in error. Western Union Tel. Co. v. Louisville & N. R. Co., 107 Miss. 626, 65 South. 650. Then in the District Court the telegraph company pleaded the State decree as a conclusive adjudication and moved that the bill and a supplemental bill be dismissed. Against the supplemental bill it also set up an injunction in its favor granted by another Court of the United States, reported in Western Union Tel. Co. v. Louisville & N. R. Co. (D. C.) 201 Fed. 946, and 207 Fed. 1, 124 C. C. A. 573. The bills were dismissed upon both grounds. 233 Fed. 82, 147 C. C. A. 152. The constitutional questions raised are presented equally in the State case and as we shall deal with them under that, 107 Miss. 626, 65 South. 650, it may be assumed, subject to those questions, that the other decision was right, as we see no reason to doubt.
The Mississippi proceedings in eminent domain are limited in their effect to determining the amount of damages to be paid. If the right to condemn is disputed that is left to be decided by a suit in equity. Vinegar Bend Lumber Co. v. Oak Grove & Georgetown R. R. Co., 89 Miss. 84, 105-107, 110, 113, 43 South. 292. The railroad company resorted to such a bill in this case. So far as it alleged a failure to comply with the State laws the State decision is conclusive against it, and of course it connot complain of not being given a hearing simply because it is referred for that hearing to a different suit from that in which the value of the property is fixed. The separation is familiar. United States v. Jones, 109 U.S. 513, 519 , 3 S. Sup. Ct. 346. Passing these matters by, the first contravention of the Fourteenth Amendment alleged is that under the Mississippi laws the right could be taken only for a new line, whereas the bill avers that the telegraph company wanted the right not for a new line but for the purpose of maintaining an existing line that it had maintained theretofore under a contract with the railroad now brought to an end. To this the Supreme Court replied that, the judgments being [250 U.S. 363, 366] right upon their face, if the telegraph company attempted to use them to maintain an existing line instead of a new one its rights could be determined when the attempt was made. The Fourteenth Amendment knows no difference between the two purposes, and the extent to which the telegraph company is confined to one of them under the State laws is for the State court to decide. No constitutional right is infringed when the State court postpones discussion until the attempt is made. The decree as well as the opinion saves the railroad's right in that event.
It is argued that the judgments are void because they do not fix the exact location of the telegraph poles within the specified right of way. But they allow only one line of poles to be set up, and require it to be erected 'in such manner and at such distance from defendant's (the railroad's) track as in no way to interfere with the operation of trains of said defendants, or with any proper and legitimate use thereof by defendants, or the use by any telegraph or telephone company now existing thereon, and so as not to be dangerous to persons or property, and subject to all the stipulations and agreements in said petition contained.' The petition contains a agreement that if, after the erection of the poles, etc., 'it should become necessary for the said defendant to change the location of its tracks, or construct new tracks, or side tracks, where the same do not now exist, and for such purpose to use or occupy that portion of said right of way on which petitioner's poles are, or may be set, cross arms placed thereon and wires strung, your petitioner will, at its own expense upon reasonable notice from said defendants, remove said poles, cross arms and wires to such other point, or points, on said defendant's right of way as shall be designated by said defendant.' This agreement is binding. Mobile & Ohio R. R. Co. v. Postal Telegraph Cable Co., 76 Miss. 731, 752, 753, 26 South. 370, 45 L. R. A. 223. The description has been held to satisfy the requirements of [250 U.S. 363, 367] State law and it would be extravagant to say that the Fourteenth Amendment made it bad.
It is contended that the State had no power to condemn for the use of the telegraph company any part of the right of way of an interstate road or bridge over navigable waters. Support for the argument is sought in Western Union Telegraph Co. v. Pennsylvania R. R. Co., 195 U.S. 540 , 25 Sup. Ct. 133, 1 Ann. Cas. 517. That case shows, to be sure, that the Act of July 24, 1866, c. 230, 14 Stat. 221, R. S. 5263 (Comp. St. 10072), purporting to grant to any telegraph company the right to construct and maintain lines along the post roads of the United States and to cross navigable streams, did not of itself give the right to appropriate private property. But it equally shows that Congress gave its assent to the acquisition of such rights in post roads by any means otherwise proper, as against any objection that it was an interference with interstate commerce, and such is the implication of the cases. 'State sovereignty under the Constitution is not interfered with.' Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U.S. 1 , 12; Western Union Telegraph Co. v. Richmond, 224 U.S. 160, 169 , 32 S. Sup. Ct. 449; Western Union Telegraph Co. v. Louisville & Nashville R. R. Co., 207 Fed. 1, 11, 12, 124 C. C. A. 573. The present decision is enough to establish that the condemnation followed the State law. See also Cumberland Telephone & Telegraph Co. v. Yazoo & Mississippi Valley R. R. Co., 90 Miss. 686, 44 South. 166. No act of Congress prevents the State proceedings having their intended effect.
We think it unnecessary to deal with the sm ewhat meticulous objections to the form in which the Mississippi decree was pleaded and proved in the District Court or to repeat the answer of the defendant in error to the contention that if proved it was not an adjudication. If the bill in the District Court had not been disposed of by the State decree it would be dismissed under our present decision. Two days before the answer setting up the [250 U.S. 363, 368] State decree the railroad filed a supplemental bill alleging that the telegraph company had no longer any rights except under the condemnation proceedings but that it still was using its old line. The telegraph company pleaded in reply an injunction, mentioned above, granted by another Court of the United States, forbidding the railroad to interrupt the telegraph in the use of its wires upon the railroad's right of way, the declared purpose being to preserve the status quo for a certain time, or until the condemnation could be carried out. 207 Fed. 1, 5, 124 C. C. A. 573. If for any reason the supplemental bill does not fall with the bill this earlier action in the Sixth Circuit (while it stands, see 252 Fed. 29, 164 C. C. A. 141), properly was regarded as precluding contrary action in the Fifth.

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Congress’ primary purpose in establishing the Vaccine Program2 was to promote the nation’s health by protecting its current supply of vaccines and by encouraging the development of new vaccines. See H.R. Rep. No. 99-908, 99th Cong., 2nd. Sess. (1986). This goal would be furthered, Congress decided, by prohibiting civil lawsuits against vaccine manufacturers for vaccine-related injuries until claimants had first processed their claims through the Vaccine Program. Due to the “no fault,” informal and generous nature of the Program, Congress believed that most, if not all, claims for vaccine-related injuries would be resolved in the Program without resort to civil litigation. Congress also provided, however, that a dissatisfied petitioner could reject the Program’s ultimate decision and then file a civil lawsuit with certain limitations. See §§ 21-23.
The question presented by this case is regarding § 16(a)(2).3 The legislative history of the Vaccine Act itself is silent as to whether a “discovery rule” or “equitable tolling” is applicable to § 16(a)(2). This is significant, the government argues, because the Vaccine Program is a waiver of sovereign immunity and must be strictly construed. In other words, the government says, unless the statute expressly permits the “discovery rule” and “equitable tolling,” they are not available to petitioners. However, petitions in the Vaccine Program are not entering lawsuits against the federal government. For this reason, the Vaccine Program is not a waiver of sovereign immunity. Instead, it is a remedial insurance program administered by the Secretary of Health and Human Services. It is not funded by the general treasury, but by a special excise tax on vaccines, which directly funds the Vaccine Trust Fund. Indeed, in light of the Act’s clearly stated goals of an inclusive Vaccine Program, one intended to divert injured persons away from civil litigation, both a “discovery rule” and “equitable tolling” must be available to petitioners. Any other interpretation, leaving civil litigation as the sole available remedy,4 would undoubtedly frustrate Congressional intent.
In Brice, Judge Newman stated that the majority’s patent refusal to permit equitable tolling with respect to § 16(a)(2) no matter how worthy the petitioner or how compelling the petition was “neither a necessary interpretation of the Vaccine Act, nor a tolerable one.” Brice, 240 F.3d at 1374 (dissenting opinion). Surely, Judge Newman will agree, the “discovery rule” should also be available to petitioners, as it “opens the door to a petitioner upon whom the door should not be shut.” Id. Any other interpretation of the statute serves only to undermine Congressional intent.
Finally, in the view of amici, the circumstances of this particular case support an equitable tolling of § 16(a)(2). Dr. Melissa Cloer (“Dr. Cloer”) exercised due diligence in presenting her claim once she became aware of the cause of her injury.
2 The Vaccine Act, which established the Vaccine Injury Compensation Program, is located at 42 U.S.C. §§ 300aa-1 et seq. For convenience, future references will be to the “Vaccine Act,” the “Act” or the “Vaccine Program.” Individual sections to the Act will include only the section number.
3 “[I]f a vaccine-related injury occurred as a result of the administration of such vaccine, no petition may be filed for compensation under the Program for such injury after the expiration of 36 months after the date of the occurrence of the first symptom or manifestation of onset. . .of such injury.” § 16(a)(2).
4 In Brice v. Sec’y of HHS, the Federal Circuit observed, “We need not decide in this case whether a petitioner who fails to file a timely petition under the Program may still pursue traditional tort remedies.” 240 F.3d at 1368. However, the answer to this question is both relevant and important. Certainly, vaccine manufacturers may argue that untimely filings by children and adults in the Program cut off traditional state tort remedies. Indeed, one of the purposes of the Vaccine Act is to shield vaccine manufacturers from lawsuits. However, most states toll statutes of limitations for minors and for brain-damaged individuals. It is inconceivable that Congress would have intended such a sweeping preemption of the rights of children and mentally handicapped persons without a single word in the statute. The Vaccine Act expressly states that, except as otherwise provided, “State law shall apply to a civil action brought for a vaccine-related injury or death.” § 22(a). The Vaccine Act does not provide that untimely petitioners in the Program forfeit all rights to civil litigation. Indeed, such an interpretation is incongruous with Congressional intent, will be firmly rejected by state courts, and, should be rejected by this Court.


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G.R. No. 183239, June 02, 2014 - GREGORIO DE LEON, DOING BUSINESS AS G.D.L. MARKETING, Petitioner, v. HERCULES AGRO INDUSTRIAL CORPORATION AND/OR JESUS CHUA AND RUMI RUNGIS MILK., Respondents.
GREGORIO DE LEON, DOING BUSINESS AS G.D.L. MARKETING, Petitioner, v. HERCULES AGRO INDUSTRIAL CORPORATION AND/OR JESUS CHUA AND RUMI RUNGIS MILK., Respondents.
Before us is a petition for review on certiorari which assails the Resolution1 dated January 7, 2008 and the Resolution2 dated June 2, 2008 of the Court of Appeals (CA) in CA-G.R. CV No. 87212.
Petitioner filed with the Regional Trial Court (RTC) of Manila an action for breach of contract with damages and a prayer for a writ of preliminary attachment against respondent Hercules Agro Industrial Corporation, represented by Jesus Chua, and respondent Rumi Rungis Milk. The case was docketed as Civil Case No. 98-89938 and was raffled off to Branch 20.
4. P6,358.40 representing payment for the analysis of the delivered milk and the milk sample.
The case against defendants Hercules Agro Industrial Corporation and Jesus Chua are hereby DISMISSED for want of evidence. The counterclaims of defendants Hercules Agro Industrial Corporation and Jesus Chua is hereby DISMISSED absent concrete evidence to support it.
On October 19, 2005, petitioner, through counsel, filed a Motion for Time,5 asking for an additional period of 10 days from October 19, 2005 to file a motion for reconsideration. Petitioner, subsequently, filed on October 24, 2005 his Motion for Partial Reconsideration6 of the September 23, 2005 decision. In an Order7 dated October 27, 2005, the RTC denied the Motion for Time, as the period for filing a motion for reconsideration is non-extendible.
On November 2, 2005, respondent Rumi Rungis Milk filed its Motion for Reconsideration8 of the September 23, 2005 decision and to dismiss the complaint for lack of jurisdiction over the defendant foreign corporation not doing business in the Philippines. On January 9, 2006, the RTC issued its Order 9 denying respondent Rumi Rungis Milk's motion for reconsideration.
On February 13, 2006, petitioner filed a Notice of Partial Appeal10 from the Order dated January 9, 2006.
On February 15, 2006, the RTC issued an Order11 which stated that petitioner's notice of partial appeal cannot be given due course as the same had been filed beyond the reglementary period to appeal. Petitioner filed a Motion for Reconsideration, Supplement to Petitioner's Motion for Reconsideration and Reply to respondent's comment.
Earlier, on February 13, 2006, petitioner also moved for partial execution12 of the RTC Decision dated September 23, 2005. The RTC denied the motion, since the case against respondent Rumi Rungis Milk was not yet final and executory as its notice of appeal13 had been timely filed. Petitioner’s partial reconsideration was denied in an Order14 dated June 1, 2006 for failure of petitioner or counsel to appear on the date the motion was set for hearing. Petitioner had also filed a Notice of Appeal15 of the June 1, 2006 Order.
On November 16, 2006, petitioner received a notice16 from the CA requiring him to file appellant's brief which he did on December 28, 2006.17 On the other hand, respondent Rumi Rungis Milk filed a motion for extension of time to file its appellant’s brief, which the CA denied in a Resolution dated March 15, 2007.
Respondent Hercules Agro Industrial Corporation filed a Motion18 to strike out or dismiss petitioner's appeal and motion for leave of court to lift the amended order of attachment and release the properties in custodia legis. Petitioner filed his Opposition thereto with motion for refund of overpayment of fees.
On January 7, 2008, the CA issued its first assailed Resolution, which ordered petitioner’s brief stricken off the records and dismissing the appeal.
In so ruling, the CA found that the appeal could not be legally entertained, since it was filed out of time and denied due course by the RTC. With regards to petitioner’s contention of overpayment of appeal and docket fees, his claim of refund should be referred to the Chief Justice through the Court Administrator, pursuant to A.M. No. 05-9-256-MeTC dated October 12, 2005. Respondent’s Motion to Lift the Amended Order of Attachment dated September 25, 2000 and release the properties in custodia legis should be filed before the trial court. Leave of court to file said motion is, therefore, denied.
The CA also ordered the Appellant's Brief dated March 5, 2007, filed by respondent Rumi Rungis Milk, expunged from the records taking into account the Resolution promulgated on March 15, 2007 denying respondent Rumi Rungis Milk's motion for extension of time to file appellant's brief and dismissing its appeal.
Both petitioner and respondent Rumi Rungis Milk filed their respective motions for reconsideration, which the CA denied in its second assailed Resolution dated June 2, 2008.
Hence, this petition filed by petitioner.
The issue for resolution is whether the CA erred when it ordered petitioner's appellant's brief filed with it be stricken off the records.
The records show that the RTC Decision dated September 23, 2005 was received by petitioner on October 4, 2005; thus, he had until October 19, 2005 within which to file an appeal or a motion for reconsideration. Petitioner, however, filed on October 19, 2005 a motion for time praying for an additional 10 days or until October 29, 2005 to file his motion for partial reconsideration. The RTC denied the motion to which we agree, since such motion is a transgression of the mandatory prohibition on the filing of a motion for extension to file a motion for reconsideration.
It has, likewise, been explicitly stated in Section 2, Rule 40 and Section 3, Rule 41 of the 1997 Rules of Civil Procedure that in appeals from municipal trial courts or regional trial courts, no motion for extension of time to file a motion for reconsideration shall be allowed.
As the period to file a motion for reconsideration is non-extendible, petitioner's motion for extension of time to file a motion for reconsideration did not toll the reglementary period to appeal; thus, petitioner had already lost his right to appeal the September 23, 2005 decision. As such, the RTC decision became final as to petitioner when no appeal was perfected after the lapse of the prescribed period.
We find the arguments devoid of merit.
The Seventh Day Adventist Conference Church of Southern Philippines, Inc. case cited by petitioner has no application in this case, since the former did not deal with the issue on the period to appeal as herein discussed.
Petitioner's insistence that the RTC Order dated February 15, 2006 denying due course to his notice of partial appeal had not attained finality, because of the RTC's failure to rule on his motion of reconsideration therefrom, is not meritorious. It has already been established that as early as October 19, 2005, the reglementary period within which petitioner could appeal the September 23, 2005 decision had already lapsed. Petitioner, therefore, has no more right to file a notice of partial appeal from the January 9, 2006 Order which denied respondent Rumi Rungi Milk's motion for reconsideration of the September 23, 2005 decision.
Petitioner argues that jurisprudence is replete with instances wherein an expressly non-extendible period for filing a pleading was nevertheless extended.
While procedural rules may be relaxed in the interest of justice, it is well-settled that these are tools designed to facilitate the adjudication of cases. The relaxation of procedural rules in the interest of justice was never intended to be a license for erring litigants to violate the rules with impunity. Liberality in the interpretation and application of the rules can be invoked only in proper cases and under justifiable causes and circumstances. While litigation is not a game of technicalities, every case must be prosecuted in accordance with the prescribed procedure to ensure an orderly and speedy administration of justice.
To be sure, the relaxation of procedural rules cannot be made without any valid reasons proffered for or underpinning it. To merit liberality, petitioner must show reasonable cause justifying its non-compliance with the rules and must convince the Court that the outright dismissal of the petition would defeat the administration of substantial justice. x x x. The desired leniency cannot be accorded absent valid and compelling reasons for such a procedural lapse. x x x.
Petitioner's plea that the rules be not strictly applied so that the ends of justice will be served is not meritorious. We found that petitioner had not shown any satisfactory reason which would merit the relaxation of the rules. Petitioner moved for motion of time to file his motion for partial reconsideration alleging heavy volume of work and the need to attend to other urgent matters in other equally urgent cases, which we cannot consider as exceptional circumstances to justify the non-observance of the rules of procedure.
WHEREFORE, the petition for review is DENIED. The Resolutions dated January 7, 2008 and June 2, 2008 of the Court of Appeals are hereby AFFIRMED.
Velasco, Jr., (Chairperson), Bersamin,* Villarama, Jr.,** and Leonen, JJ., concur.
* Designated additional member in lieu of Associate Justice Jose Catral Mendoza, per Raffle dated July 12, 2010.
1 Penned by Associate Justice Ramon M. Bato, Jr., with Associated Justices Andres B. Reyes, Jr. and Jose C. Mendoza (now a member of this Court), concurring; rollo, pp. 62-64.
3 Id. at 77-107; Per Judge Marivic T. Balisi-Umali.
19 226 Phil. 144 (1986).
20Habaluyas, Inc. v. Japson, supra, at 148.
21 271 Phil. 40 (1991).
22 Rolloque, v. Court of Appeals, supra, at 50.
23Prieto v. Court of Appeals, G.R. No. 158597, June 18, 2012, 673 SCRA 371, 377.
24Spouses Batingal v. Court of Appeals, 403 Phil. 780, 789 (2001).
26 528 Phil. 647 (2006).
27Ram’s Studio and Photographic Equipment, Inc. v. Court of Appeals, 400 Phil. 542, 548-549 (2000).
28 G.R. No. 198357, December 10, 2012, 687 SCRA 643.

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An alien seeking to establish eligibility for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2000), on the basis of a marriage-based visa petition must prove that the marriage was bona fide at its inception in order to show that the visa petition was "meritorious in fact" pursuant to 8 C.F.R. § 1245.10(a)(3) (2007).
This 2007 BIA decision was addressing the bona fides of a marriage upon which lawful permanent resident status was sought. The father and his son sought to be grandfathered for adjustment of status under INA § 245(i) based on the father's unproven (and seemingly fake) marriage to a prior petitioning spouse. The prior I-130 was denied for failing to demonstrate that the first marriage was "not fraud" in the face of a lack of evidence of its validity and conflicting stories during interviews.
The statutory and regulatory provisions as well as the underlying benefit request forms were different than the those in a case pending in the U.S. District Court in the Eastern District of Michigan regarding an I-751 filed "jointly" more than a full year after divorce paperwork was filed. The concept as to the marriage having been "meritorious in fact" as well as the evidence needed to prove the "bona fide" nature of the marriage are applicable to both cases. The CR-1 spouse entered the U.S. and the divorce papers were filed after only a few months. Over a year later the estranged couple filed a joint I-751 that was apparently supported by fraudulent evidence of a bona fide and continuing marriage. The I-751 was approved without an interview mere days before the divorce was finalized. The apparent fraud came to light years later when the LPR filed a form N-400 seeking naturalization. The case clearly involves a re-assessment as to whether or not the joint I-751 was "meritorious in fact" or bogus (as in fraudulent). The relevant evidence came to the attention of USCIS years after the fact and they acted upon it expeditiously.
Approvable when filed means that, as of the date of the filing of the qualifying immigrant visa petition under section 204 of the Act or qualifying application for labor certification, the qualifying petition or application was properly filed, meritorious in fact, and non-frivolous ("frivolous" being defined herein as patently without substance). This determination will be made based on the circumstances that existed at the time the qualifying petition or application was filed. A visa petition that was properly filed on or before April 30, 2001, and was approvable when filed, but was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing, will preserve the alien beneficiary's grandfathered status if the alien is otherwise eligible to file an application for adjustment of status under section 245(i) of the Act.
8 C.F.R. § 1245.10(a)(3) (emphasis added).[FN1] In order for a visa petition to be "approvable when filed," therefore, the visa petition must have been (1) properly filed, (2) meritorious in fact, and (3) not frivolous. Inasmuch as the record indicates that the visa petition was properly filed and there is no evidence that it was patently without substance, the dispositive issue in this case is whether the visa petition was "meritorious in fact."
There is little case law construing the terms "approvable when filed" or "meritorious in fact." However, as a matter of first impression, we agree with the United States Court of Appeals for the First Circuit that in order for a visa petition to be "approvable when filed" in this context, there must be a showing that the marriage on which it is based was bona fide. See Lasprilla v. Ashcroft, 365 F.3d 98 (1st Cir. 2004). It is not enough to show merely that a marriage existed. Furthermore, in order to be "meritorious in fact," the visa petition must be based on a genuine marriage in which the parties intended to share a life as husband and wife, not a marriage of convenience designed solely to confer an immigration benefit on one of the parties. This is confirmed by the explanation of the "approvable when filed" standard in the Federal Register, which provides as an example that a visa petition is not approvable when filed if it "is fraudulent or if the named beneficiary did not have, at the time of filing, the appropriate family relationship or employment relationship that would support the issuance of an immigrant visa." Adjustment of Status To That Person Admitted for Permanent Residence; Temporary Removal of Certain Restrictions of Eligibility, 66 Fed. Reg.16,383, 16,385 (Mar. 26, 2001) (Supplementary Information). In the marriage context, a "fraudulent" visa petition would include one where the marriage was not entered into in good faith."
[FN1] We note that the situation presented in this case does not fall within the parameters of the last sentence of 8 C.F.R. § 1245.10(a)(3). That sentence addresses changes in circumstances arising after the filing of an initially approvable visa petition that cause the petition to be withdrawn, denied, or revoked. The lead respondent has not demonstrated that his petition meets the "changed circumstances" exception. See 8 C.F.R. § 1245.10(a)(4)."
Jara -Riero & Jara -Espinol at pp. 268-269.
Regardless of the actual errors within the written decisions issued by USCIS in the Michigan District Court case of Vismalou and Franciso Uy Ben Dee, the underlying sequence of events bears out the ultimate conclusion. The so-called marriage failed but the joint petitioners did not disclose this critical fact. It was uncovered much later and has come back to haunt them.
Another important case addressing the concept of "meritorious in fact" which also sheds light on the approach that is needed in re-assessing the merits of the original case comes from the Fourth Circuit when it also had to consider an alien's denied request for adjustment under INA § 245(i). However, in the Fourth Circuit case the underlying petition was an employment-based I-360 for a 4th preference religious worker.
(1) "…a visa petition is meritorious in fact for purposes of grandfathering under 8 C.F.R. § 1245.10 if, based on the circumstances that existed at the time the petition was filed, the beneficiary of the petition qualified for the requested classification."
(2) "An alien seeking to adjust his status may prove that a previously denied visa application was meritorious in fact by making an appropriate factual showing in removal proceedings, subject to any applicable evidentiary and procedural rules."
(4) "This provision contemplates that evidence other than that actually submitted in support of the petition might be considered for purposes of determining whether an alien is grandfathered."
"The government [argued] that only the evidence on record at the time of the initial filing may be considered, and thus the actual denial of the HCF petition by the INS forecloses any finding that it was meritorious in fact and therefore approvable when filed."
That argument did not prevail in that case and will not stand up if a petitioner and/or beneficiary makes such an argument in order to avoid being held accountable for an earlier deception. Nor will arguments that boil down to assertions that a particular legal or procedural error by the government is too old to serve as a basis to reopen a case granted erroneously when the circumstances involved an apparently successful fraud. INA § 205 empowers the government to revoke any visa for good and sufficient cause at any time. There is no statute of limitations to shield one from the consequences of an earlier seemingly successful immigration fraud.
The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204. Such revocation shall be effective as of the date of approval of any such petition.
8 CFR § 205.2 Revocation on notice.
(d)Appeals. The petitioner or self-petitioner may appeal the decision to revoke the approval within 15 days after the service of notice of the revocation. The appeal must be filed as provided in part 3 of this chapter, unless the Associate Commissioner for Examinations exercises appellate jurisdiction over the revocation under part 103 of this chapter. Appeals filed with the Associate Commissioner for Examinations must meet the requirements of part 103 of this chapter.
There are certain specific circumstances that warrant an "automatic revocation" pursuant to 8 CFR § 205.1 that are inapplicable to the present discussion.
There are some apparent temporal restrictions when an individual attains lawful permanent resident status via the adjustment of status process pursuant to INA § 245 rather than through entry with an actual immigrant visa. Rescission of adjustment of status pursuant to INA § 246 is relatively easy but is limited to five years from date of approval. If the alien challenges the rescission, (s)he may request a hearing before an IJ and then get a right to appeal to the BIA. If the recession is accepted or simply not challenged then there is no appeal available. The statute of limitations does not prevent the commencement of Removal Proceeding under INA § 240 which would also allow for an appeal to the BIA.
(1) The petitioner bears the burden in visa petition revocation proceedings of establishing that the beneficiary qualifies for the benefit sought under the immigration laws. Matter of Cheung, 12 I&N Dec. 715 (BIA 1968), reaffirmed.
The principle stated above is akin to the termination of status that results when an I-829 for EB-5 conditional residents or an I-751 for marriage-based conditional residents is denied.
(ii) Service motion with decision that may be unfavorable to affected party. When a Service officer, on his or her own motion, reopens a Service proceeding or reconsiders a Service decision, and the new decision may be unfavorable to the affected party, the officer shall give the affected party 30 days after service of the motion to submit a brief. The officer may extend the time period for good cause shown. If the affected party does not wish to submit a brief, the affected party may waive the 30-day period.
I can find no statute of limitations on a Government Motion and even if there were then Removal Proceedings are still an option.


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SALISBURY LAND AND IMPROVEMENT COMPANY vs. COMMONWEALTH.
Present: RUGG, C.J., MORTON, LORING, SHELDON, & DE COURCY, JJ.
St. 1912, c. 715, purporting by s. 4 to authorize the Salisbury Beach Reservation Commission to take by right of eminent domain as a public reservation any or all of the land or of the rights in any land in a described portion of the town of Salisbury bounding on the Atlantic Ocean and the Merrimac River, which included when the act was passed an existing seaside resort equipped with cottages and other appartenances, and providing in s. 10 that "Said commission may sell or lease any lands or rights in land taken or acquired by it, which are not needed as a public reservation," with other provisions contemplating the taking, not only of the seashore and other lands purely for reservation purposes, but also other real estate in the designated territory to be sold or leased to private persons, is unconstitutional as an attempt to authorize the exercise of the right of eminent domain in part for a private purpose, and because it is impossible to separate the valid from the invalid portions of the statute.
The interest of the public that the people should be well housed, although proper to be considered in the exercise of the police power, is not a proper subject for the exercise of the right of eminent domain. By RUGG, C. J.
PETITION, filed in the Land Court on January 12, 1911, by the Salisbury Land and Improvement Company, and amended by leave of court on July 13, 1912, by the substitution as petitioners of the trustees of the Salisbury Beach Associates and other persons who after the filing of the petition had acquired the title of the original petitioner, for the registration of title to certain land at Salisbury Beach in Salisbury notwithstanding an attempted taking of such land by the Salisbury Beach Reservation Commission under St. 1912, c. 715, which was alleged by the substituted petitioners to be unconstitutional.
of title as to all land covered by such alleged taking, and at the request of the parties reported the case for determination by this court. If the order of the judge was right, the decree was to be entered as ordered; otherwise, the case was to be remanded to the Land Court for such further proceedings as this court might direct.
H. I. Bartlett, (W. Coulson with him,) for the Salisbury Beach Associates.
J. M. Swift, Attorney General, & E. S. Abbott, for the Commonwealth, submitted a brief.
have not generally been renewed except in a few instances and at a substantial increase in rent.
construed as a whole. That which, by fair intendment, its terms may confer power to accomplish, must be ascertained by a broad consideration of the entire act, bearing constantly in mind the presumption in favor of its validity.
The establishment and maintenance of public parks and reservations out of moneys raised by taxation and the exercise of the power of eminent domain for their acquirement plainly are within the power of the Legislature. It requires no discussion to demonstrate that this is a public purpose. Nor can it be contended reasonably in view of many of our decisions that the taking of the fee rather than an easement in land to this end is not permissible. Higginson v. Treasurer & School House Commissioners of Boston, 212 Mass. 583 and cases cited at 591. The acquirement of beaches by eminent domain and at the public expense for bathing and other purposes of general utility has never been questioned in this Commonwealth. That it is a legitimate exercise of the sovereign power is not open to doubt. See In re Metropolitan Park Commissioners, petitioners, 209 Mass. 381. Looking alone at s. 4 of the act now under consideration, the power conferred does not appear to go beyond the right of acquiring and maintaining land and rights in land for a public park or reservation. But this section must be read in connection with other sections in order to understand the full scope of the act. Section 10 authorizes the commission to "sell or lease any lands or rights in land taken . . . by it, which are not needed as a public reservation." These words are not restricted as to time. They form a part of the original act and are operative contemporaneously with all its other provisions. There is nothing to require a determination that by reason of changed conditions land deemed necessary at the time of taking, has become no longer needed. These words in connection with s. 4 undertake to enable the commission to take "any or all of the land" within the designated area and at the same moment to determine that some of the lands thus taken "are not needed" and immediately to proceed to "sell or lease" such lands. Thus there may be an adjudication that lands are needed for the public use which involves a payment for them out of moneys raised by taxation, coupled with a determination not to devote some of these lands to the enjoyment of the people at large but to sell or lease them for private occupation.
act. The taking, [Note p376] which is made a part of the record, shows generally a careful exclusion of most of the lots not owned by the petitioner, even though in numerous instances this results in an interruption of the shore line and in many others leaves small lots owned by individuals surrounded by land taken. The impression created by looking at the plan of the taking was not inaccurately described in argument as a "checker board" effect. It was found by the Land Court that the commission interpreted the act to authorize them legally to "take such lands as they did take for the purpose of carrying out the intent of the law, which, for the protection of the present cottage owners and people who in the future may become cottage owners or occupants, was to be done by leasing or selling the lands taken." This statement aptly summarizes the effect of the act. It authorizes the taking of land a part of which may never be intended for any public purpose, but for lease or sale for private use. It would be possible for the commissioners, although strictly following the terms of the statute, to take this entire summer colony with its numerous houses and other buildings and substitute themselves for the petitioner as landlord, and lease all the cottages and buildings indefinitely, or ultimately to sell them. The statute would enable the establishment of what in essence would be a scheme for utilizing and developing a seashore summer resort for the benefit of cottagers on a scale of some magnitude. This being the meaning of the statute, it remains to inquire whether it is within the scope of legislative power.
rather than the general good. While incidentally it may be an advantage to the public that private persons prosper, if the essential character of the transaction in its direct object is private benefit to individuals, the purpose is not public. In a general sense it is of public interest that the people be well housed, but this does not authorize the State to become the general landlord. That subject is a proper one for the exercise of the police power but not of eminent domain. It was said by the Supreme Court of the United States, speaking through Mr. Justice Harlan in Madisonville Traction Co. v. St. Bernard Mining Co. 196 U. S. 239, 251: "It is fundamental in American jurisprudence that private property cannot be taken by the government, national or state, except for purposes which are of a public character, although such taking be accompanied by compensation to the owner. That principle .. . grows out of the essential nature of all free governments. " Private property cannot be taken directly or indirectly for a private end. It cannot be seized ostensibly for a public use and then diverted to a private use. Legislation which is designed or which is so framed that it may be utilized to accomplish the ultimate result of placing property in the hands of one individual for private enjoyment after it has been taken from another individual avowedly for a public purpose is unconstitutional. It would enable that to be achieved by indirection which by plain statement would be impossible. These principles have been expounded at length in early decisions and recent opinions of this court with affluent citation of authorities. It is not necessary to do more than refer to a few of them. The case at bar is indistinguishable from them. Lowell v. Boston, 111 Mass. 454. Wilkins v. Jewett, 139 Mass. 29. Mead v. Acton, 139 Mass. 341. Opinion of 'the Justices, 204 Mass. 607. Opinion of the Justices, 204 Mass. 616. Opinion of the Justices, 211 Mass. 624. See also Hairston v. Danville & Western Railway, 208 U. S. 598; Sanborn v. Van Duyne, 90 Minn. 215; Brown v. Gerald, 100 Maine, 351.
tem "no longer needed" therefor may be sold (St. 1892, c. 251, s. 1), while the metropolitan park commission "for all purposes not inconsistent with the purposes specified in the act establishing said commission" are given certain modified rights of granting interests in lands. Statutes like these where the right to sell or lease manifestly is purely incidental to the chief public end and is confined by fair intendment to land or buildings either once actually needed and used, which have ceased so to be needed, or which by lease may promote the general public aim, afford no support to the broad powers here attempted to be created. See Boston v. Boston Elevated Railway, ante, 41. The same is true of the right to develop and sell power as incidental to a public undertaking. St. 1895, c. 488, s. 3. United States v. Chandler-Dunbar Water Power Co. 229 U. S. 53, 72, 73. An absolute and unqualified power to sell and lease such as the present statute confers is different in kind from the carefully guarded powers conferred by the statutes to which we have referred. Moreover, a right to sell, when no longer needed, property taken or used for a public enterprise, requiring extensive works of construction where during the period of excavation or building land might be needed which would have no use on the completion of the work, is quite distinguishable from land taken for park or reservation purposes.
The taking here is not of a vast extent of wild or unsurveyed land whose agricultural and other possibilities are undiscovered. It is in one of the oldest towns of the State, is relatively small in area, and is a settled community with a large number of cottages and all its characteristics thoroughly capable of easy comprehension. It requires no discussion to distinguish the power conferred by the present statute from that given to the metropolitan park commission and other like officers to construct or lease buildings manifestly in furtherance of the convenient use by the people of the parks and reservation. A shelter or a restaurant or a bath house, to which all have access on equal terms, do not stand on the same basis as a resort to a considerable extent devoted to cottages to be leased to private families, and from which when leased or sold the public must be excluded.
supporting the numerous statutes establishing irrigation districts. Fallbrook Irrigation District v. Bradley, 164 U. S. 112. Clark v. Nash, 198 U. S. 361. Strickley v. Highland Boy Gold Mining Co. 200 U. S. 527. See Otis Co. v. Ludlow Manuf. Co. 186 Mass. 89; S. C. 201 U. S. 140; Turner v. Nye, 154 Mass. 579, 582; Wurts v. Hoagland, 114 U. S. 606. But this principle has no relation to the case at bar. Hellen v. Medford, 188 Mass. 42, affords no support to the contention of the Commonwealth. The statute there under consideration was held to be unconstitutional, but the plaintiff was not in a position to take advantage of it, a principle frequently applied but having no bearing upon the issues here raised, where the petitioner from the beginning has assailed this statute and has done nothing to waive its rights.
It is impossible to separate the valid from the invalid parts of this statute. The power of the commission to take land is inextricably interwoven with the power to sell and lease land so taken. It cannot be determined how the Legislature would have dealt with the subject matter if their attention had been directed specifically to the point that land and buildings, including a large number of dwelling .houses, could not be taken for the purpose of lease and sale under the changed conditions of being in the neighborhood of a public reservation and the expense of the undertaking lessened by the revenue to be derived therefrom. Different financial and other questions would have been presented, which might have caused the General Court to have refrained from action or to have enacted a statute of other tenor. Edwards v. Bruorton, 184 Mass. 529. Commonwealth v. Hana, 195 Mass. 262, 267.
We feel constrained to pronounce the statute unconstitutional. It becomes unnecessary to pass upon the other questions raised by the report.
Case remanded to the Land Court for further proceedings in accordance with this opinion.
[Note p373] Section 4 authorizes the commission "to acquire in fee, by purchase, gift or by right of eminent domain, in the name of the Commonwealth, and thereafter to maintain and make available for the inhabitants of the Commonwealth as a public reservation for the use, exercise and recreation of the inhabitants of the Commonwealth, any or all of the land or any or all of the rights in any land in" a specific portion of the town of Salisbury bounding on the Atlantic Ocean and Merrimac River.
"Section 10. Said commission may sell or lease any lands or rights in land taken or acquired by it, which are not needed as a public reservation for the use, exercise and recreation of the inhabitants of the Commonwealth, with or without restrictions as to its use as it may deem advisable, and may make sales of the grass, sand, and other materials in said reservation. The town of Salisbury shall levy, assess, and collect a tax on all buildings and personal estate in said reservation not owned by the Commonwealth in the same manner as if the said reservation had not been created, and shall collect a tax on all land in said reservation not taken, acquired or used by said commission for the purposes of this act.
"Section 11. The town of Salisbury shall have the general charge and supervision of the education of the children resident in the reservation as in the case of other children resident in the said town."
[Note p376] In the decision of the judge of the Land Court it was stated that "This taking was filed by said Salisbury Beach Reservation Commission under the advice of counsel specially employed by said commission and without the knowledge of the Attorney General."

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Be forewarned, the following journey through chapter 7 bankruptcy law is a bit technical, so if you are considering filing for chapter 7 bankruptcy, consult a bankruptcy attorney.
A chapter 7 bankruptcy case begins with the debtor filing a petition with the bankruptcy court serving the area where the individual lives or where the business debtor is organized or has its principal place of business or principal assets.
The courts must charge a $306 filing fee. Normally, the fees must be paid to the clerk of the court upon filing. With the court’s permission, however, individual debtors may pay in installments. 28 U.S.C. § 1930(a); Fed. R. Bankr. P. 1006(b); Bankruptcy Court Miscellaneous Fee Schedule, Item 8. The number of installments is limited to four, and the debtor must make the final installment no later than 120 days after filing the petition.Fed. R. Bankr. P. 1006. For cause shown, the court may extend the time of any installment, provided that the last installment is paid not later than 180 days after filing the petition. If a joint petition is filed, only one filing fee, one administrative fee, and one trustee surcharge are charged. Chapter 7 debtors should be aware that failure to pay these fees may result in dismissal of the case. 11 U.S.C. § 707(a).
Among the schedules that an individual chapter 7 debtor will file is a schedule of “exempt” property. The Bankruptcy Code allows an individual debtor to protect some property from the claims of creditors because it is exempt under federal bankruptcy law or under the laws of the debtor’s home state. 11 U.S.C. § 522(b). Many states have taken advantage of a provision in the Bankruptcy Code that permits each state to adopt its own exemption law in place of the federal exemptions. In other jurisdictions, the individual debtor has the option of choosing between a federal package of exemptions or the exemptions available under state law. Thus, whether certain property is exempt and may be kept by the debtor is often a question of state law. The debtor should consult an attorney to determine the exemptions available in the state where the debtor lives.
Filing a bankruptcy under chapter 7 “automatically stays” (stops) most collection actions against the debtor or the debtor’s property. 11 U.S.C. § 362. But filing the petition does not stay certain types of actions listed under 11 U.S.C. § 362(b), and the stay may be effective only for a short time in some situations. The stay arises by operation of law and requires no judicial action. As long as the stay is in effect, creditors generally may not initiate or continue lawsuits, wage garnishments, or even telephone calls demanding payments. The bankruptcy clerk gives notice of the bankruptcy case to all creditors whose names and addresses are provided by the debtor.
Between 20 and 40 days after the chapter 7 petition is filed, the case trustee will hold a meeting of creditors. If the U.S. trustee or bankruptcy administrator schedules the meeting at a place that does not have regular U.S. trustee or bankruptcy administrator staffing, the meeting may be held no more than 60 days after the order for relief. Fed. R. Bankr. P. 2003(a). During this meeting, the trustee puts the debtor under oath, and both the trustee and creditors may ask questions. The debtor must attend the meeting and answer questions regarding the debtor’s financial affairs and property. 11 U.S.C. § 343. If a husband and wife have filed a joint petition, they both must attend the creditors’ meeting and answer questions. Within 10 days of the creditors’ meeting, the U.S. trustee will report to the court whether the case should be presumed to be an abuse under the means test described in 11 U.S.C. § 704(b).
It is important for the chapter 7 debtor to cooperate with the trustee and to provide any financial records or documents that the trustee requests. The Bankruptcy Code requires the trustee to ask the debtor questions at the meeting of creditors to ensure that the debtor is aware of the potential consequences of seeking a discharge in bankruptcy such as the effect on credit history, the ability to file a petition under a different chapter, the effect of receiving a discharge, and the effect of reaffirming a debt. Some trustees provide written information on these topics at or before the meeting to ensure that the debtor is aware of this information. In order to preserve their independent judgment, bankruptcy judges are prohibited from attending the meeting of creditors. 11 U.S.C. § 341(c).
In order to accord the debtor complete relief, the Bankruptcy Code allows the debtor to convert a chapter 7 case to case under chapter 11, 12 or 13 as long as the debtor is eligible to be a debtor under the new chapter. However, a condition of the debtor’s voluntary conversion is that the case has not previously been converted to chapter 7 from another chapter. 11 U.S.C. § 706(a). Thus, the chapter 7 debtor will not be permitted to convert the case repeatedly from one chapter to another.


NANCY A. BERRYHILL, Acting Commissioner of the Social Security, Administration, Defendant.
Plaintiff Merri Ellen Miller applied in September 2012 for Disability Insurance Benefits under Title II of the Social Security Act, alleging she has been disabled since May 2012. Acting for the Commissioner of the Social Security Administration following a hearing on July 7, 2015, administrative law judge Michael Carr issued a decision on August 25, 2015, that Ms. Miller is not disabled. The Appeals Council denied review of the ALJ's decision on November 15, 2016, rendering the ALJ's decision for the Commissioner final. Ms. Miller timely filed this civil action under 42 U.S.C. § 405(g) for review of the Commissioner's decision. The parties consented to the magistrate judge conducting all proceedings and ordering the entry of judgment in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.
Ms. Miller asserts that the Commissioner's decision must be reversed and remanded because (1) the ALJ did not address her counsel's post-hearing submission regarding vocational evidence; (2) the ALJ erred in his evaluation of a medical opinion; and (3) the ALJ's credibility analysis is flawed because he did not address Ms. Miller's lengthy work history.
The court will first describe the legal framework for analyzing disability claims and the court's standard of review, and then address Ms. Miller's specific assertions of error.
To prove disability, a claimant must show she is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). Ms. Miller is disabled if her impairments are of such severity that she is not able to perform the work she previously engaged in and, if based on her age, education, and work experience, she cannot engage in any other kind of substantial gainful work that exists in significant numbers in the national economy. 42 U.S.C. § 423(d)(2)(A). The Social Security Administration has implemented these statutory standards by, in part, prescribing a five-step sequential evaluation process for determining disability. 20 C.F.R. § 404.1520.
Step one asks if the claimant is currently engaged in substantial gainful activity; if she is, then she is not disabled. Step two asks whether the claimant's impairments, singly or in combination, are severe; if they are not, then she is not disabled. A severe impairment is one that “significantly limits [a claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). The third step is an analysis of whether the claimant's impairments, either singly or in combination, meet or equal the criteria of any of the conditions in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. The Listing of Impairments includes medical conditions defined by criteria that the SSA has predetermined are disabling, so that if a claimant meets all of the criteria for a listed impairment or presents medical findings equal in severity to the criteria for a listed impairment, then the claimant is presumptively disabled and qualifies for benefits. 20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant's impairments do not satisfy a listing, then her residual functional capacity (RFC) is determined for purposes of steps four and five. RFC is a claimant's ability to do work on a regular and continuing basis despite her impairment-related physical and mental limitations. 20 C.F.R. § 404.1545. At the fourth step, if the claimant has the RFC to perform her past relevant work, then she is not disabled. The fifth step asks whether there is work in the relevant economy that the claimant can perform, based on her vocational profile (age, work experience, and education) and RFC; if so, then she is not disabled.
The claimant bears the burden of proof at steps one through four. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If the claimant meets that burden, then the Commissioner has the burden at step five to show that work exists in significant numbers in the national economy that the claimant can perform, given her vocational profile and functional capacity. 20 C.F.R. § 404.1560(c)(2); Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).
Judicial review of the Commissioner's (or ALJ's) factual findings is deferential. A court must affirm if no error of law occurred and if the findings are supported by substantial evidence. Dixon v. Massanari, 270 F.3d 1171, 1176 (7thCir. 2001). Substantial evidence means evidence that a reasonable person would accept as adequate to support a conclusion. Id. The standard demands more than a scintilla of evidentiary support, but does not demand a preponderance of the evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001).
The ALJ is required to articulate a minimal, but legitimate, justification for his decision to accept or reject specific evidence of a disability. Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004). The ALJ need not address every piece of evidence in his decision, but he cannot ignore a line of evidence that undermines the conclusions he made, and he must trace the path of his reasoning and connect the evidence to his findings and conclusions. Arnett v. Astrue, 676 F.3d 586, 592 (7thCir. 2012); Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
Ms. Miller was born in 1962, was 50 years old as of her alleged disability onset date in May 2012, and was 53 years old at the time of the ALJ's decision. Ms. Miller has a lengthy work history. Her earnings record shows that she accrued covered earnings in every quarter since she was 21 years old. (R. 224-25). The most recent work before her disability onset date was as a distribution clerk with the United States Postal Service. That job required standing 8 hours per work day and longer if one worked overtime, and a lot of lifting (an average of 20 to 25 pounds through the work day), pushing, pulling, bending, twisting, and stooping. (R. 42-45).


CRIMINAL POSSESSION OF A WEAPON IN THE FOURTH DEGREE – SWITCHBLADE KNIFE.
“Switchblade Knife” is defined in New York as any knife that has a blade which opens automatically by hand pressure applied to a button, spring or other device within the knife’s handle. (For the exact definition of “Switchblade Knife” see NY Penal Law § 265.00(4)).
It is an “A” Misdemeanor to possess a switchblade knife (Penal Law § 265.01(1) – Criminal Possession of a Weapon in the Fourth Degree). However, it is not a crime to possess a switchblade knife if it is for use while fishing, hunting or trapping and you have a valid license to fish, hunt or trap issued pursuant to section 11-0713 of the New York Environmental Conservation Law (See Penal Law § 265.20(a)(6).
Although not stated in the statute, in order to be convicted in New York of illegally possessing a switchblade knife, you must “knowingly” possess the knife (See Model Jury Charge for Criminal Possession of a Weapon in the Fourth Degree (CJI 2d N.Y. Penal Law § 265.01(1); People v. Ford, 66 N.Y.2d 428, 440, 497 N.Y.S.2d 637).
For example, in People v. Wood, 869 N.Y.S.2d 401 (1st Dept. 2008), defendant’s conviction was overturned where the trial judge refused to instruct the jury that the prosecution had to prove that defendant knew the item he possessed was in fact a switchblade knife.
If you or a loved one have been charged with any New York weapons offense including illegal possession of switchblade knife, illegal possession of a pistol or possession of any other weapon, contact Tilem & Campbell toll free at 1-877-377-8666 for a free consultation or visit us on the web at www.tilemandcampbell.com or www.888AnyCrime.com.
Can you tell me more details about this case, were there any other circumstances surrounding the “naked possession” of a switch blade?