text:
The Complainant is Rolex Watch U.S.A., Inc., New York, New York, United States of America, represented by Gibney, Anthony & Flaherty, LLP, United States of America.
The Respondent is Vadim Krivitsky, Philadelphia, Pennsylvania, United States of America.
The disputed Domain Name <rolexdealer.com> is registered with Register.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 12, 2008. On March 13, 2008, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name at issue. On March 18, 2008, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
The Center appointed W. Scott Blackmer, G�rald Page and William F. Hamilton as panelists in this matter on April 29, 2008. The Panel finds that it was properly constituted. Each member of the Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainant, a New York corporation, states that it is the exclusive distributor in the United States of Rolex watches, watch bracelets, and related products produced by its Swiss parent corporation, Rolex S.A., which operates a website at “www.rolex.com”.
The Complainant owns federal trademark registrations in the United States of America for the ROLEX trademark, including Registrations Nos. 101819 (registered January 12, 1915) and 1753843 (registered February 23, 1993).
The ROLEX mark has been used in commerce continuously since 1905, and in the United States since 1912. The Complaint and the website of the Complainant’s parent corporation indicate that there are thousands of authorized Rolex dealers and jewelers certified to service Rolex watches throughout the world, sales of Rolex watches in the United States of America amount to hundreds of millions of dollars annually, and the ROLEX mark appears in extensive advertising as well as sponsorships of sports events and charities. The ROLEX mark has been characterized as famous in judicial and UDRP proceedings. See, e.g., American Rolex Watch Corp. and Montres Rolex, S.A. v. Ricoh Time Corp., 491 F.2d 877 (USCA 2d Cir. 1974); Rolex Watch U.S.A., Inc. v. Spider Webs, Ltd., WIPO Case No. D2001-0398.
The Domain Name was registered on July 31, 1999. The website to which it resolves allows website visitors to send an email to the Respondent at <[….]@aol.com>, but the website does not otherwise identify the Respondent or his business, and he has not submitted a Response in this proceeding.
The website is headed with the phrase, “under construction”. It displays pop-up advertising from the DoubleClick Internet advertising network, as well as links labeled “we buy sterling”, “antiques, coins”, and “watches”. A website visitor selecting the “watches” link is taken to a web page at “www.silverbuyerinc.com”, which in turn displays links for categories including “Rolex Watches”. This link leads to websites displaying third-party advertising links for Rolex and other watches, including those offered by Swiss competitors such as Omega and distributors of relatively inexpensive replica or counterfeit “Rolex” watches.
The Internet Archive “Wayback Machine” at “http://web.archive.org” includes no archived pages for a website associated with the Domain Name until 2001, when the website appeared substantially as it does now.
According to the Complaint, the Complainant became aware of the Domain Name in December 2000; its legal counsel sent the Respondent a cease-and-desist letter in March 2001, to which there was no response. Counsel for the Complainant sent three more cease-and-desist letters in 2005, which are attached to the Complaint, without response. The Complaint states that counsel contacted the Respondent by telephone in November 2005 and that the Respondent said in this conversation that he had no intention of using the Domain Name but also refused to transfer it to the Complainant.
This Complaint followed, more than two years later, without further communications between the Complainant and the Respondent.
The Complainant argues that the Domain Name is confusingly similar to the ROLEX mark, which it incorporates in its entirety. The Complainant asserts that the Respondent is not an authorized dealer in Rolex products and has no rights or legitimate interests in the Domain Name.
The Complainant argues that the ROLEX mark is famous worldwide and must have been known to the Respondent when he registered the Domain Name. The Complainant concludes that the passive use and advertising use of the Domain Name, along with the Respondent’s failure to respond to complaints of trademark infringement, indicate the Respondent’s bad faith.
The Panel notes, as a preliminary matter, that the substantial time that has passed since the original registration of the Domain Name is no impediment to proceeding to the merits of the claim. Generally, laches is not available as a defense to a proceeding under the Policy. The E.W. Scripps Company v. Sinologic Industries, WIPO Case No. D2003-0447 (the Policy does not contemplate a defense of laches, which is inimical to the Policy’s purposes); Tax Analysts, Inc. v. eCorp, WIPO Case No. D2007-0040. Moreover, the Respondent has been on notice since March 2001 of the Complainant’s contentions, and the website has not changed since then. Thus, even if the doctrine of laches were applicable, the Respondent could not demonstrate any prejudice caused by the “delay.” The Hebrew University of Jerusalem v. Alberta Hot Rods, WIPO Case No. D2002-0616.
The Complainant indisputably has rights in the registered ROLEX trademark. The Domain Name incorporates the mark in its entirety and adds the generic word “dealer”. This addition does not suffice to distinguish the Domain Name from the ROLEX mark, particularly as it is undisputed that Rolex products are, in fact, distributed by authorized dealers worldwide. Thus, the addition of the word “dealer” serves to increase rather than decrease the likelihood of confusion.
The Panel finds, therefore, that the Domain Name is confusingly similar to the Complainant’s ROLEX mark.
It is undisputed that the Complainant has not authorized the Respondent to use the ROLEX mark. There is no evidence in the record that the Respondent has been known by a name corresponding to the Domain Name or has used the Domain Name for legitimate noncommercial purposes. The Respondent has not come forward with evidence of preparations to use the Domain Name in connection with a legitimate business enterprise, and it appears that the website associated with the Domain Name has been “under construction” since it was registered nearly nine years ago.
The use of the Domain Name for third-party advertising in the interim cannot be considered a use in connection with a “bona fide offering of goods or services”, where the Domain Name incorporates a well-known and distinctive trademark (not, for example, a dictionary word or descriptive phrase) and the website links to advertising for products that compete with the Complainant’s. Moreover, the Respondent is not making legitimate use of the ROLEX mark in the Domain Name on behalf of authorized or unauthorized dealers in Rolex products, since the website associated with the Domain Name leads visitors to advertising for different and even competing products. See, e.g., Advance Magazine Publishers Inc. d/b/a Cond� Nast Publications v. MSA, Inc. and Moniker Privacy Services, WIPO Case No. D2007-1743; Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903.
The Panel finds, therefore, that the second element of the Complaint has been established.
The Domain Name is used for commercial advertising, much of it for watches and jewelry. Given the fame of Rolex watches in the United States (where the Respondent is located) and elsewhere, and the distinctiveness of the ROLEX mark, the most probable explanation for the registration and subsequent advertising use of the Domain Name is precisely an intention to mislead Internet users seeking a Rolex dealer and present them with (presumably paid) advertising for other products, consonant with the illustration of bad faith in paragraph 4(b)(iv).
Finally, the Respondent’s failure to respond to repeated communications from the Complainant, or to the Complaint itself, also supports an inference of bad-faith disregard for the trademark rights of others.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <rolexdealer.com> be transferred to the Complainant.

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


HALO ELECTRONICS, INC. V. PULSE ELECTRONICS, INC. AND STRYKER CORP.
Both Halo and Stryker challenged the Federal Circuit’s Seagate standard following jury trials in which a jury found willful infringement. In Halo, the district court declined to award enhanced damages under § 284. The district court found that Pulse presented a not objectively baseless trial defense and, therefore, Halo failed to establish the objectively recklessness under the first step of Seagate.
In Stryker, the district court awarded enhanced damages and trebled the amount of damages. The Federal Circuit vacated the award of treble damages because it concluded that Zimmer had asserted reasonable defenses at trial.
Next, the Supreme Court found the Seagate requirement of clear and convincing evidence to prove recklessness “inconsistent with § 284.”13 Again, the Supreme Court cited its Octane Fitness decision as instructive. In Octane Fitness, the Supreme Court reversed a clear and convincing evidentiary burden that the Federal Circuit had required for attorneys’ fees under § 285 because the statute did not set a heightened standard and “patent-infringement has always been governed by the preponderance of the evidence standard.”14 Thus, the preponderance of evidence standard now applies to enhanced damages under § 284.
§ 284 will be reviewed by the Federal Circuit for abuse of discretion.
1Seymour v. McCormick, 16 How. 480, 488 (1854).
2Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 508 (1964).
4Bard Peripheral Vascular, Inc. v. W.L. Gore & Assoc., Inc. 776 F.3d 837, 844 (Fed. Cir. 2015).
5Seagate, 497 F. 3d, at 1371.
6See Bard Peripheral Vascular, Inc. v. W. L. Gore & Assoc., Inc., 682 F. 3d 1003, 1005, 1008 (Fed. Cir. 2012); Spectralytics, Inc. v. Cordis Corp., 649 F. 3d 1336, 1347 (Fed. Cir .2011).
7Halo Electronics, Inc. v. Pulse Electronics, Inc., Case No. 14-1513, __ U.S. ___, (2016) (slip op. at 8).
8Octane Fitness LLC v. ICON Health & Fitness Inc., 572 U.S. __ (2014) (slip op. at 7).
9Halo, __ U.S. ___, (2016) (slip op. at 9).
11Id., slip op. at 10.
12Id., slip op. at 11.
13Id., slip op. at 12.
15Highmark Inc. v. Allcare Health Management System, Inc. 572 U.S. __ (2014) (slip op. at 1).
16Halo, __ U.S. ___, (2016) (slip op. at 12-13).
17Id., slip op. at 13.
18Justices Kennedy and Alito joined the concurring opinion.
19Halo, __ U.S. ___, (2016) (concurring slip op. at 2)(emphasis in original).


The only way slavery and genocide can exist openly in a society is with the participation of the government – and indirectly the people. In the United States the final check on tyranny was supposed to be the judicial department, composed of courts governed by judges whose judicial power was intended to be checked by juries of citizens.
But a predictable thing occurred when the judges nixed juries (by employing procedural technicalities to get around their constitutional authority) and mixed with the rich and powerful… The judges took sides; the wrong side — the side of the rich of powerful against providing justice for the people. See e.g. Dahlia Lathwick, “This Court Erred: The Supreme Court has almost always sided with the wealthy, the privileged, and the powerful, a new book argues” Slate (September 30, 2014) reviewing 2014 book by Constitutional Law Professor Erwin Chemerinsky, The Case Against the Supreme Court. See also “Do the “Haves” Come Out Ahead over Time? Applying Galanter’s Framework to Decisions of the U.S. Courts of Appeals, 1925-1988”, 33 Law & Soc’y Rev. 811 (1999); Galanter, Mark, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change” (1994).
As my two previous articles on “the evolution of debt slavery in modern times” assert, american courts have consistently used their Article III judicial power to benefit the rich and powerful at the cost of providing justice for the people. In the Dred Scott v Sanford ruling the Supreme Court concluded the entire race of black people was not entitled to seek justice in american courts because they were merely property which was meant to be bought and sold by wealthy white americans.
And unfortunately american judges have typically had no clue about the difference between good and evil or right and wrong or justice and injustice because of their longstanding and unflinching loyalty to the rich and powerful.
One of the Supreme Court’s most recent cases perpetuating modern day debt slavery is its unanimous opinion in Henson v Santander Consumer USA Inc. In that case the Court held the Fair Debt Collection Practices Act, which was enacted by Congress to prevent “debt collectors” from using unfair and unconscionable debt collection practices against the consumers, including homeowners, does not apply to debt buyers. Translation: Debt Buyers can use unfair and unconscionable practices to collect debts they have purchased for pennies on the dollar and cannot be held liable for those injuries such practices cause to the lives, liberties, property, and happiness of the people.
Santander is the modern day moral equivalent of Dred Scott in that it treats debtors as property the wealthy can abuse. Santander eschews any notions of justice or equity in order to motivate the sale of bad debt to unethical hedge funds who use every unconscionable trick in the book to attack and hurt american consumers to collect bad debt.
Congress’ goal in enacting the Fair Debt Collection Act was to prevent unscrupulous downstream debt buyers from bombarding Americans with bad faith debt collection practices and then the Supreme Court comes along and tells these creep companies and their soulless lawyers that they can mistreat the people in order to collect purported debts, which often are not owed.
How does Santander reflect justice or even good public policy?
The obvious answer is it does not. Santander, just like the Dred Scott case, starts from the dubious proposition that: “[i]t is not the province of the court to decide upon the justice or injustice…” and then misinterprets legislation to insure the continued redistribution of wealth to the 1%, which has always been its practice except for a brief period of time when FDR threatened to pack the Supreme Court in order to squelch this habit.
There is circumstantial evidence the Supreme Court sought to facilitate the impact the 2008 financial collapse. This collapse was utilized to transfer middle class wealth from this Nation’s people to its Wall Street sociopaths; a plan which the facts suggest has resulted in one of the one of the most massive genocides ever known. Cf. Miller, Pam, Church of the Gardens Press, El Abandonado, (2017); The Guardian,”Mortality rate for homeless youth in San Francisco is 10 times higher than peers” (April 14, 2016); “Homeless die 30 years younger than average (December 11, 2011). See also infra and bibliography, part IV.
The circumstantial evidence against the Supreme Court includes, among other things, an unusual (perhaps unlawful) change in the Federal Rules of Civil Procedure which occurred in 2007.
28 USC §2072(a) provides the Supreme Court shall have the power to promulgate general rules of practice and procedure of the United States District Courts. But going through the judicial rule-making process would have taken more time than was needed to help the bankers.
So in 2007 (just before the 2008 financial collapse) the Supreme Court judicially interpreted Federal Rules of Civil Procedure 8 and 12(b) in such a way as to give judges almost absolute power to prevent homeowners’ cases from being decided pursuant to a trial by jury. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S.554 (2009).
The Supreme Court determined in Iqbal and Twombly that to obtain a trial, including a trial by jury, a party must prepare a complaint which would be plausible to a federal judge. Prior to this time it was only necessary to establish a possible claim, not one a federal judge found plausible.
The concern over the Supreme Courts unusual change in the rules was palpable. Indeed, it was immediately criticized by many of this nations most well known and respected legal scholars. See Arthur R. Miller, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 Duke L.J. 1 (October 2010); Stephen N. Subrin, Thoma O. Main, THE FOURTH ERA OF AMERICAN CIVIL PROCEDURE, 162 U. Pa. L. Rev. 1839 (June 2014) See also Bibliography below, section I. And many state court’s refused to fall in line because of the Supreme Court’s underhanded use of judicial decision making as a basis for changing the rules of procedure for district courts. See Hawkeye Foodservice Distrib. v. Iowa Educators Corp., 812 N.W.2d 600, 607-608 (2012). See also Bibliography below, section I.
The 2007 rule change had an extremely negative impact on the American people who owed debt, homeowners particularly.
Many of us believe the new rule was perpetrated by those who knew the result would likely be the genocide which is still ongoing today.
This is significant because even the Federal Judicial Center had to admit the effect of the instantaneous rule change on homeowners and others litigating financial instruments was devastating. See Id., page 14, Table 4 which substantiates that over 91% of claims filed by lawyers in these type of cases got dismissed under Iqbal/Twombly’s judge-centric plausibility standards.
America’s 21st century court system doesn’t even resemble the judicial department which our forefathers intended we should have.
But we certainly don’t have these rights any longer thanks to the Supreme Court, which has systematically usurped these rights to benefit the rich at the expense of the people.
Indeed, most people get so bludgeoned via abusive federal judicial processes that few can last long enough to ever obtain a trial. See Scott E. Stafne, scottstafne.com, Scorched Earth Litigation Model, September 15, 2015. It is no understatement to suggest america’s judicial system kills and/or injures those who are forced to encounter its abuse. See e.g., Caught.net & the Pro Se Way (last accessed October 10, 2017); Huffer, Karin,Legal Abuse Syndrome: 8 Steps for Avoiding the traumatic Stress Caused by the Justice System (2013).
In September of this year well respected Seventh Circuit Court of Appeals Judge Richard Posner, actually retired because of the unfair treatment other federal judges gave pro se litigants.
Pro se litigants include those people who can’t afford a lawyer to represent them and must therefore negotiate the byzantine, bizarre, and corrupt federal judicial gauntlet by themselves before staff attorneys and federal judges who do not like them very well.
According to Posner (and consistent with my observations over the last decade) “most judges regard [pro se litigants who can’t afford lawyers] as kind of trash not worth the time of a federal judge.” Because these arrogant judges believe pro se arguments are worthless their appeals are not decided by federal judges or law clerks, but staff attorneys. Posner reports the judges of the 7th Circuit simply rubber stamp the decisions of these “staff lawyers” who decide the pro se appeals.
Here is a copy of an interview with Judge Posner which describes his observations in his own words.
DL: As you’ve explained in several interviews — with the Chicago Daily Law Bulletin, with me for these pages, and with Adam Liptak of the New York Times — you resigned in part because of your disagreements with colleagues about the Seventh Circuit’s treatment of pro se litigants. I know you discuss this in detail in your new book (affiliate link) — can you offer us a little preview?
RAP [Richard A. Posner]: Pro se litigants, by definition, don’t have a lawyer. This generally means they don’t have money to hire a lawyer. So they have to litigate for themselves. They’re handicapped by not having money and not having a lawyer, and they also tend to have limited education. About half of our appeals are by pro se’s, and about half of those are prison inmates.
When pro se litigants appeal, their appeal papers are given to a staff attorney. We have about 20 staff attorneys who are appointed for two years, and a few supervisors. The staff attorneys tend to be good students from good schools, hired right after they graduate. Despite their good credentials, they tend to be hostile to the pro se’s. It’s not their own feelings; it’s that they sense — correctly — that the judges don’t really care much about the pro se’s, find them nuisances, and are not interested in them. So that percolates down to the staff attorneys, and they have a tendency to go against the pro se appeals even when they have apparent merit.
I didn’t think the pro se litigants were getting a fair break. I made various suggestions, all of which were rejected. I wasn’t making progress in helping the pro se’s. And I didn’t have good relations anymore with the other judges — not really on a personal level, but we just didn’t see eye to eye on the pro ses.
So I stepped down from the bench and published my newest book, which is now out: Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments (affiliate link).
Judge Posner, who took the time to review some of these staff attorney’s decisions, correctly discerned that delegating judicial power to “baby lawyers”, without any meaningful supervision by active Article III judges, was improper. To me, this is rather obvious!!!
It is important to understand Judge Posner did not resign until after all the other judges on the Seventh Circuit refused to require (or even allow) these baby “staff lawyers” decisions regarding pro se appeals to be meaningfully reviewed by active Article III judges, as I believe is required by the Constitution.
“First, while [Judge Posner] is certainly entitled to his own views about such matters as our Staff Attorney’s Office and the accommodations we make for pro se litigants, it is worth noting that his views about that office are not shared by the other judges on the court, and his assumptions about the attitudes of the other judges toward pro selitigants are nothing more than that—assumptions.
Merely saying that the judges who are the subject of Posner’s allegations “don’t share Posner’s views” about their alleged wrongdoing does nothing to reassure the public that the 7th Circuit’s attitude toward pro se litigants is as frivolous as Posner has alleged.
It is a major red flag when judges aren’t even willing to follow the rules of their own court, and that certainly does appear to be the case with the judges in the 7th Circuit. Systematic discrimination by judges against a class of people, pro se litigants in this case, is wrong and against the law. Wood’s public response is not good enough. A grand jury should be empanelled and the judges and staff attorneys and law clerks should be required to testify under oath so that a factual determination may be made as to whether or not the judges on the 7th Circuit are systematically discriminating against the pro se litigants.
This admission has staggering repercussions when one realizes most court cases today involve pro se litigants. See e.g. ABA Law Journal, “86 percent of low-income Americans’ civil legal issues get inadequate or no legal help, study says” (June 14, 2017); Legal Services Corporation, The Justice Gap: measuring the Unmet Civil Legal Needs of Low-income Americans (June 2017); Lawyerist.com, “Measuring the Access-to-Justice Gap: Nearly 70% of All Civil Defendants Aren’t Represented” (2016) ; ABA Journal, “Can the access-to-justice gap be closed” (2016).
The reality that our courts more often than not decide cases where only one side is able to effectively present their side to a judge or jury is at odds with those basic tenets of justice the Revolutionary war was fought to achieve. Clearly, constitutional history establishes that the people who ratified the Constitution were led to believe the Constitution was designed so judges would not become judicial tyrants, unchecked by juries and the Congress. See Federalist Paper No. 78.
Yet, that is exactly what has happened.
And scholars the world over who observe the American judicial system quickly appreciate america’s courts and judges have little, if anything, to do with justice or fairness.
The “honest to God” truth is America’s Article III judicial department has dismantled those basic constitutional checks on its power which were established to prevent it from devolving into the tyrannical judocracy it has become. Looks at the facts. The facts dispute virtually all the myths our courts perpetuate to make us believe our judicial branch performs its constitutional duties.
MYTH: “Only the United States makes routine use of jury trials in a wide variety of non-criminal cases.” SeeWikipedia.
TRUTH: Less than 5% of cases filed ever get to trial let alone a trial by jury.
MYTH: America has an adversarial system of justice where both sides are competently represented before a neutral judge and jury.
TRUTH: Over half the cases presented to these supposedly neutral judges (who apparently don’t like or respect 99% of us) are handled by non-lawyers who have no experience with the mostly counter intuitive archaic rules of procedure and evidence which make litigation more a game than a search for truth. See Bibliography, Past IV.
MYTH: the United States judicial system is based on the common law.
TRUTH : The common law system of precedent has not existed in America for sometime. Compare e.g. Anastasof v. United States, 223 F.3d 898 (8th Cir. 2000) (Courts are required to make and follow precedent) with Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001)(Judges can decide when they want and if they want to create precedent) with Judge Posner’s observations that today courts need not even explain their reasons for their decisions by simply stating “Appeal Dismissed”. See supra.
In case No. 3 of the Nuremberg Trials 16 defendants who were former German judges, prosecutors or officials in the Reich Ministry of Justice, were found guilty of committing war crimes and crimes against humanity. The tribunal found, in effect, that while on paper the rights established by the Weimar Constitution were retained by the Nazis, there was a progressive degeneration of the judicial system under Nazi rule and that substantially every principle of justice enumerated by prior German law was violated by the Hitler regime.
The same can be said about about the United States judicial system. Our courts have attacked our constitutionally protected jury system to the point where it is for all practical purposes now extinct. The common law is no longer predictable because judges no longer believe their rulings must be anchored to precedent. Far too many judges act as despots who can berate, belittle, and harm those who appear in their ostentatious court rooms.
Obviously, if as James Madison postulated justice is the goal of government, our courts and the other two branches of our government have failed us. We need good competent judges who are paid to ferret out the truth in a pragmatic way; not baby or senile lawyers awed by their power and the courtesan legal cabals which seek their favor. If our constitutional system is now dead let’s move on to one that actually attempts to provide justice for a free people.
Ever wonder how many millions of people the american courts have caused to be evicted since the Supreme Court made it so easy for them to do so in 2007? Me too.
The scale of this entire foreclosure migration is deceptively large. The 10 million households that lost their homes dwarf the number that left the Great Plains during the Dust Bowl (that was about 2.5 million people). In fact, it is larger than the 6 million blacks who moved north during the Great Migration — a movement that spanned decades.
Emily Badger, “How the Housing Crisis Left Us More Racially Segregated,” Washington Post, May 8, 2015.
Next question. What happens to the people our courts force onto the streets? Just as you would expect, there are very few recent studies on this as well.
However, way back in 2011 when courts were accelerating foreclosures and homelessness, virtually everyone knew the banks had rigged the system and were blatantly using forged documents to take people’s homes. (see e.g. 2011 60 Minutes programs and Congressional Hearings). Turns out the courts didn’t care about either the forgeries or the health crises, including deaths, such injustice was causing the people. See Bibliography, Part V.
NHS choices; your health, your choices “Homeless die 30 years younger than average (December 11, 2011).
But no one wants to have to care about their lost neighbors because then we all become complicit in these crimes by the united states against this nation’s own people.
In United States of America v. Alstötter, et al. (“The Jurists’ Trial”), 3 T.W.C. 1 (1948), 6 L.R.T.W.C. 1 (1948), 14 Ann. Dig. 278 (1948) the Court well stated the gravity of judges relying on false evidence when imposing death and/or severe sentences on citizens, who have been robbed of their freedom.
He [the judge defendant] formed his opinions from dubious records submitted to him before trial. By his manner and methods he made his court an instrumentality of terror and won the fear and hatred of the population. From the evidence of his closest associates as well as his victims, we find that Oswald Rothaug represented in Germany the personification of the secret Nazi intrigue and cruelty. He was and is a sadistic and evil man. Under any civilized judicial system he could have been impeached and removed from office or convicted of malfeasance in office on account of the scheming malevolence with which he administered injustice.
“In a well-functioning judicial system, negotiated resolutions of litigated disputes should reflect not only the interests of the disputants but also a reasonable approximation of the factual and legal merits of claims.” Brooke D. Coleman, “THE EFFICIENCY NORM” 56 B.C. L. Rev 1777 (2015) Just as this observation did not apply in the Dred Scott case it does not apply to the vast majority of those of us who find ourselves trapped in court proceedings today. This is because our government views those of us who cannot shell out cash for a court’s favorable ruling as something less than the free people our Constitution intended would be entitled to justice.
I. WAS IQBAL PLANNED BY THE COURTS TO FACILITATE FORECLOSURES?
Clermont, Kevin M. and Yeazell, Stephen C., “Inventing Tests, Destabilizing Systems” (2010). Cornell Law Faculty Publications. Paper 201.
Lisa Eichhorn, A Sense of Disentitlement: Frame-Shifting and Metaphor in Ashcroft v. Iqbal, 62 Fla. L. Rev. 951 (2010).
Robert G. Bone, Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal, 85 Notre Dame L. Rev. 849, 849 (2010) This article can be downloaded from link.
Hawkeye Foodservice Distrib. v. Iowa Educators Corp., 812 N.W.2d 600, 607-608 (2012).
“For the most part, state high courts have declined to adopt the new standard announced in Twombly and Iqbal. See Cent.Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 537 (Del. 2011); Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 424 (Tenn. 2011); McCurry v. Chevy Chase Bank, FSB, 169 Wn.2d 96, 233 P.3d 861, 863-64 (Wash. 2010); Roth v. DeFeliceCare, Inc., 226 W. Va. 214, 700 S.E.2d 183, 189 n.4 (W. Va. 2010). But see Doe v. Bd. of Regents, 280 Neb. 492, 788 N.W.2d 264, 278 (Neb. 2010). These courts have given a variety of reasons for refusing to incorporate the new federal standard in their state rules. For example, the Washington court concluded that the plausibility factor adds a determination of the likelihood of success on the merits, so that a trial judge can dismiss a claim, even where the law does provide a remedy . . ., if that judge does not believe it is plausible the claim will ultimately succeed.
Kenneth S. Klein, Ashcroft v. Iqbal Crashes Rule 8 Pleading Standards onto Unconstitutional Shores, 88 NEB. L. REV. 261 (2009).
Kenneth Klein, Is Ashcroft v. Iqbal the Death (Finally) of the “Historical Test” for Interpreting the Seventh Amendment?, 88 Neb. L. Rev. 467, 471–72 (2010).
Joe. S. Cecil, Federal Judicial Center, “Of Waves and Water: A Response to Comments on FJC Study Motions to Dismiss for Failure to State a Claim after Iqbal,” Draft Posted March 19, 2012. Paper can be downloaded from link.
II. IQBAL/TWOMBLY BENEFITS CORPORATIONS AND THE WEALTHY AT THE EXPENSE OF THE PEOPLE.
Stein, Alex and Parchomovsky, Gideon, “Empowering Individual Plaintiffs” (2017).
Alexandra D. Lahav, ARTICLE & ESSAY: THE ROLES OF LITIGATION IN AMERICAN DEMOCRACY, 65 Emory L.J. 1657(2016) paper can be downloaded from link.
Professor Alexander Reinart interviews Professor Brooke Coleman of Seattle Law about her her article “One percent Procedure” at Cardozo School of Law civil procedure workshop. Link is to recording of that interview.
Sarah Staszak, SYMPOSIUM: “Procedural Change in the First Ten Years of the Roberts Court”. Cardozo Law Review 38.2 (2016). Web.
The degeneration of the american empire’s legal system has been accompanied by litigation models which rely on the disparity of resources between the parties (not the facts or law of any specific case) as the primary basis for resolving cases.
It is my observation that the “Scorched Earth” litigation model, named after General Sherman’s infamous military campaign, is used in virtually 100% of all foreclosure litigation. This model is based on the business premise that banks and servicers should spend whatever money is necessary to win so as to deter homeowners (and any potential lawyers who might be inclined to represent them) from challenging any foreclosure judicially.
I have personally seen this multi-billion dollar industry spend more in litigation costs than the worth of the houses they are foreclosing on. I have been told by servicers’ lawyers that their clients do not factor in defense costs for purposes of settling with homeowners (even where the homeowner has obtained a summary judgment of liability against the servicer) because they want homeowners and their lawyers to know that they will spend whatever it takes to win in court.
The point they are making is one Americans should contemplate: Are we now living in a totalitarian society where the courts are rigged and judicial decisions are decided not by the merits, but the money the parties are willing and/or can afford for litigation?
III. JURY TRIALS ARE VIRTUALLY EXTINCT IN THE UNITED STATES NOTWITHSTANDING THEY ARE GUARANTEED BY THE CONSTITUTION.
Honorable William G. Young, “A Lament for What Was and Can Yet Be.” 32 Boston College International and Compararive law Review (2009).
Drew A. Swank, The Pro Se Phenomenon, 19 BYU J. Pub. L. 373 (2005).
In America, the judiciary has increasingly had to grapple with the question of how far a judge can go in guiding or assisting an SRL in such a way as to avoid the possibly harsh or unjust consequences resulting from their lack of familiarity with the judicial process? Despite calls for clarification of the judge’s role in these circumstances, the current reluctance of the U.S. judiciary to assist SRLs is fostered by both the traditionally passive role of the adversarial trial judge, and by the general rule of non-assistance in U.S. case law. Yet most U.S. trial judges have realized that they must assist SRLs to some extent to avoid the harsh results that can occur when SRLs lacking sufficient legal knowledge represent themselves in court.
Gillian K. Hadfield, ”Higher Demand, Lower Supply? A Comparative Assessment of the Legal Resource Landscape for Ordinary Americans”, 37 Fordham Urb. L.J. 129 (2009) Article can be obtained from link.
Jessica Dixon Weaver, Overstepping Ethical Boundaries? Limitations on State Efforts To Provide Access to Justice in Family Courts, 82 Fordham L. Rev. 2705 (2014).
ARTICLE: Adversary Breakdown and Judicial Role Confusion in “Small Case” Civil Justice, 2016 B.Y.U.L. Rev. 899 (2016) This article can be downloaded from link.
ABA Journal, “Can the access-to-justice gap be closed” (2016).
ABA Commission on the Future of Legal Services.
The Commission presents this compendium of scholarly papers on the future of legal services. With the generosity of the University of South Carolina Law Review and its faculty advisors and members, the papers of leading academicians have been gathered.
WHAT WE KNOW AND NEED TO KNOW ABOUT LEGAL STARTUPS – Daniel W. Linna Jr.
Paul R Tremblay. “Surrogate Lawyering: Legal Guidance, sans Lawyers.” Georgetown Journal of Legal Ethics, Forthcoming (2017).
VI. DATA REGARDING NUMBER OF FORECLOSURES IN U.S.
VII.THE BASIS FOR CREATING A PRIVATE JUSTICE SYSTEM IN LIEU OF ARTICLE III COURTS.
Andrew D. Bradt “A RADICAL PROPOSAL”: THE MULTIDISTRICT LITIGATION ACT OF 1968,” 165 U.Pa. Rev. 831 (March 2917)(hypothesizing that federal judges knew there was about to be a mass tort explosion and accordingly developed and lobbied for the passage of of a statute to concentrate power in the hands of the federal judiciary. This much like the th conduct I hypothesize occurred when the Supreme Court changed the Federal Rules by abrogating the seminal case of Conley v Gibson.
Judith Resnik, Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights, 124 Yale L.J. 2804 (2015).
Tagged 99%, corrupt, crisis in the U.S., judicial system, justice, lack of justice.


text:
The Damages Directive,2 which has now been implemented in all Member States, has continued to shape the private antitrust litigation landscape in the EU in 2018. The Damages Directive is intended to achieve greater harmonisation between private competition enforcement regimes across Member States, in pursuit of the expressed aim of the European Commission (Commission) to encourage greater private enforcement of competition law. It is also intended to foster a complementary relationship between public and private enforcement.
While the Damages Directive sets out a series of minimum requirements, Member States retain discretion over a range of areas, and there remain significant variations between national regimes post-implementation. Major changes and areas of difference are discussed in greater detail below, but the effect in many jurisdictions has been to create a unique regime for competition damages claims that is distinct from general civil litigation claims.
Another recent development has been an increased focus on the potential introduction of a harmonised class action regime. Following the publication of the Commission report on the practical implementation of the Commission Recommendation 2013/396/EU in January 20183 and the Commission proposal for the 'New Deal for Consumers'4 in April 2018, the debates on collective redress mechanisms have accelerated at both the EU and Member State levels.
In terms of litigation activity, there has been an upward trend in antitrust litigation across the EU. Of particular note are the follow-on damages claims arising from various Commission decisions that have been litigated (often in parallel) in multiple Member States.
Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU), alongside Regulation 1/2003,5 provide the foundation of the legislative framework for private antitrust enforcement: these directly applicable provisions afford EU citizens the substantive right to bring damages claims for harm suffered as a result of a breach of EU competition law.
These legal instruments do not, however, address the procedural elements of private antitrust enforcement. Until the introduction of the Damages Directive, there was no single EU legal instrument addressing how antitrust claims could be brought in practice. As discussed in Section I, the Damages Directive set out to create 'a more level playing field for undertakings operating in the internal market'6 by stipulating the minimum requirements that Member States' national laws must meet.
Despite this, the extent of harmonisation should not be exaggerated. The Damages Directive does not address a number of important practical matters, such as costs and funding, collective redress and injunctive relief. Moreover, for issues such as jurisdiction and governing law, it is necessary to turn to other pieces of EU legislation (see further below). Even where the Damages Directive does address a particular issue, there is scope for divergence in the interpretation (and therefore the implementation) of its provisions. This is apparent in, for example, how certain Member States have chosen to treat the provisions relating to limitation.
These provisions have significantly extended the limitation periods in a number of Member States.11 Pre-implementation, this was an area where there was wide divergence between Member States, both in terms of the length of limitation periods and the point at which they began to run. Compare, for example, the UK (six years after the cause of action accrued) with Spain (one year from the date the injured party discovered the harm). This meant that limitation periods often used to play an important role for claimants when selecting the jurisdiction in which to bring a claim.
Nonetheless, some divergence will remain. The Damages Directive does not prevent Member States from imposing limitation periods in excess of five years or absolute limitation periods.12 Moreover, different interpretations of ambiguous provisions will preserve divergence in this area (as well as others).
Claims may also be brought in the jurisdiction where the harmful event occurred (meaning either where the cartel was definitively concluded or where the claimant company has its registered office).16 Alternatively, if a claimant is a consumer, the claim may be brought in the jurisdiction where the consumer is domiciled.
The European Court of Justice (ECJ) has recently considered the application of jurisdiction agreements in competition law cases. In Apple Sales International,17 the ECJ held that the mere fact that a jurisdiction clause does not explicitly refer to claims based on competition law does not automatically prevent it from applying to actions for damages for abuse of dominance based on Article 102 TFEU. The decision contrasts with the ECJ's earlier decision in CDC,18 which held that an explicit reference to claims based on competition law is a prerequisite for applying a jurisdiction agreement to cartel-related claims based on violations of Article 101 TFEU.
For events that gave rise to damage after 11 January 2009, the governing law applicable to a restriction of competition is determined by the Rome II Regulation.19 Under the Rome II Regulation, the governing law will be the law of the country where the market is affected.20 When the market is affected in multiple countries, a claimant may choose to base its claim on the law of the Member State where it is bringing its claim, as long as the market of that Member State is directly and substantially affected by the restriction of competition that gives rise to the claim.21 This enables claimants to have their case for antitrust damages heard by one court applying one law, even where more than one defendant is involved or damage occurred in several EU Member States.
In recent years, Member State courts have considered the application of choice of law rules under the Rome II Regulation (and the respective national rules pre-dating the Rome II Regulation) in the context of competition law claims.23 This developing jurisprudence may result in a preliminary ruling request to the ECJ.
EU competition law applies to any conduct that has an appreciable effect on trade between Member States. The EU courts and the Commission have long considered to what extent, and in what circumstances, EU competition law can apply extraterritorially (i.e., to non-EU undertakings and to conduct that takes place outside the EU) without infringing the principles of public international law. The two main legal tests that have been developed to limit the extraterritorial reach of EU competition law are the implementation test24 and the qualified effects test.25 The former requires that the practices that restrict competition are implemented in the EU (e.g., by direct sales into the EU), and the latter requires that such practices have immediate, substantial and foreseeable effects in the EU. The relationship between the implementation test and the qualified effects test was clarified in Intel,26 where the ECJ observed that the tests pursue the same objective and that EU competition law is applicable if either one is satisfied.
In recent years, Member State courts have started to examine the limits of extraterritorial application of EU competition law in the context of private enforcement,27 and it remains to be seen whether a consistent approach will be adopted across the EU.
The move towards harmonisation of the disclosure regimes across Member States is one of the most significant changes brought about by the implementation of the Damages Directive. Previously, there was a wide disparity between jurisdictions with sophisticated and well-established disclosure regimes (such as the UK), which were considered claimant-friendly, and jurisdictions where extensive disclosure did not feature in civil litigation (notably Germany and the Netherlands, although these nevertheless remained popular jurisdictions for bringing proceedings for other reasons). EU legislators considered the lack of extensive disclosure regimes in such countries to be an obstacle to effective private enforcement of competition law on the basis that it maintained the information asymmetry that may exist between a party allegedly having suffered loss and an infringer of competition law.
For legal systems unaccustomed to extensive disclosure exercises, these new rules may require a significant cultural change (although a combination of transitional rules37 and the need for national courts to acclimatise may mean it will be a number of years before the full effects become apparent). In particular, the references in the Damages Directive to disclosure of relevant categories of evidence will mark a significant change in jurisdictions where disclosure was previously limited to specific documents identified in a disclosure request.38 However, while there is likely to be some degree of harmonisation between Member States going forward, the Damages Directive sets only minimum requirements,39 and a number of jurisdictions have taken the opportunity to go further by creating a substantive right to disclosure (as opposed to giving national courts a mere discretion). It remains to be seen whether these regimes will develop to match the extensive disclosure seen in the UK.
The ECJ examined the scope of publication of leniency material in a Commission decision in the Evonik Degussa and AGC Glass Europe cases.46 In Evonik Degussa, the ECJ found that the content of a leniency statement can be referred to in a Commission decision, provided that the source cannot be identified and the precise contents of the submission cannot be reconstructed. These principles were affirmed in AGC Glass Europe. These decisions form part of an ongoing line of cases concerning the confidential nature of materials relating to Commission decisions, which is very significant in the context of private actions for damages in the national courts. The primary motivation for these appeals was to reduce civil claims risk.
The Damages Directive is silent on the issue of experts, but the Commission recognises the importance of expert advice in private competition actions, and has published, commissioned and contributed to various guidelines for judges and other practitioners on obtaining and assessing expert evidence.47 This is driven in particular by the complexities of quantifying harm, which in practice requires significant data, with both claimants and defendants routinely engaging economic experts to assess the amount of loss suffered.
The use of experts and their role in court proceedings vary from Member State to Member State. Rules differ, for example, regarding whether experts should be party-appointed or court-appointed, and the weight given to their findings. Dutch, English, French and German courts are willing to deal directly with economic reports prepared by experts appointed by the parties, for example, while judges in certain other jurisdictions tend to rely solely on court-appointed experts when addressing economic questions.
Member States also differ significantly in the level of partiality permissible to a party-appointed expert, and this question will clearly bear on the weight that the court places on expert evidence. For example, in English courts, party-appointed experts owe a duty to the court, while in Germany there is no express requirement towards objectivity, and so party-appointed experts are treated as potentially partisan extensions of the party in question.
Experts need not always be economics or accounting professionals. There is a growing trend in antitrust cases for industry experts to testify, lending their knowledge of the dynamics and operation of certain markets, particularly in cases concerning complex distribution chains. This serves the dual purpose of educating the court on the market in question and ensuring that economists approach the market on the basis of correct assumptions.
The Recommendation provides, among other things, that collective redress should be based on express consent of the relevant claimants (i.e., the opt-in model); that any exceptions to this principle (such as opt-out proceedings) should be 'duly justified by reasons of sound administration and justice';53 and that there should be safeguards for minimising the risk of excessive litigation.
On 25 January 2018, the Commission published a report on the practical implementation of the Recommendation. As anticipated, the report shows that the availability of collective redress mechanisms, and safeguards against the abuse of such mechanisms, is not consistent across the EU. On the one hand, some Member States (including Belgium, France, Lithuania and the UK) have actively promoted collective redress since 2013. On the other, there are nine Member States that do not provide for any possibility of collective redress for damages arising from breaches of EU law. The report indicates that the Commission will continue to promote and analyse the Recommendation.
Following the publication of the Commission report, on 3 October 2018, a study entitled Collective redress in the Member States of the European Union was published.54 The study, which was commissioned at the request of the European Parliament's Committee on Legal Affairs, aims to provide further assessment of the current state of play of collective redress at both the Member State and EU levels; evaluate the opportunity of a European intervention; and provide the European Parliament with concrete recommendations.
Separately, on 11 April 2018, the Commission published a proposal for the 'New Deal for Consumers', which aims to enhance consumer protections through, among other things, the introduction of new measures supporting collective redress.
These recent publications contribute to a growing debate on collective redress, and the various proposals will likely be subject to further discussions at both the EU and Member State levels.
With a view to assisting in relation to the complicated issue of quantification, in 2013 the Commission published a Communication on quantifying harm in antitrust damages actions,55 together with a more detailed Practical Guide,56 to provide national courts and parties to damages actions with an overview of the main economic methods and empirical insights available. The Practical Guide covers various techniques for estimating prices in a counterfactual non-infringement scenario, including observation of comparator data, interpolation and regression analysis.
The passing-on defence was already recognised in many Member States prior to implementation of the Damages Directive, but some changes to national legislation have been required, for example, to transfer the burden of proof from the claimant to the defendant (as in France) or to introduce a presumption in favour of indirect purchasers (as in Hungary and the Netherlands).
On 5 July 2018, the Commission launched a consultation on draft guidelines designed to give national courts practical guidance on how to estimate the passing-on of overcharges. The draft guidelines set out the applicable legal framework and discuss the economics of pass-on (including the economic theory and quantification methods). The consultation period closed on 4 October 2018.
The Damages Directive is intended to facilitate greater follow-on litigation in the Member States, as well as to ensure the optimal interaction between private and public enforcement.
The Damages Directive further provides that a final decision in another Member State must be taken as prima facie evidence by a court that an infringement occurred.66 It is noteworthy that some Member States have already gone further in this regard, with German law providing that a final decision by any Member State's NCA will be treated as binding proof of an infringement before the German courts. Implementation has differed significantly across other Member States ranging from Austria (which has followed Germany in making other NCA decisions binding on national courts) to Hungary (which has taken a more restrictive approach by implementing a rebuttable presumption of an infringement in this situation). Regardless of these discrepancies, the overall effect should be to reduce the base evidentiary hurdle to establishing a breach of competition law for follow-on claimants in the EU.
As explained above, the Damages Directive also introduced changes to other key issues that affect follow-on damages, such as limitation and disclosure. The net effect has been to increase venue choice for claimants, with many jurisdictions where the private enforcement regimes were arguably underdeveloped now adopting broadly similar rules.
The Damages Directive stipulates that Member States must ensure that national courts give full effect to applicable legal professional privilege under EU or national law when ordering the disclosure of evidence.67 It is otherwise silent on the issue of privilege. There is no requirement to apply EU privilege laws,68 meaning that the privilege regimes of individual Member States will be applicable to damages proceedings brought in national courts.
The rules protecting communications between a lawyer and his or her client vary considerably between Member States. Broadly, a distinction can be drawn between common law and civil law jurisdictions, with the scope of privilege generally more extensive in the former.69 This stems from the fact that disclosure obligations in civil law jurisdictions were typically (prior to the implementation of the Damages Directive) much narrower than they were under common law.70 This reduced the need for the protection of sensitive legal advice in such jurisdictions. Overlaying this broad distinction is a patchwork of different specific rules. For example, German law hardly recognises the concept of legal privilege at all. In Ireland, the UK, Poland, the Netherlands and Portugal, legal privilege is recognised for in-house counsel as well as external counsel. In the Netherlands and the UK, privilege is extended to communications with lawyers qualified outside the EEA.
It will be interesting to observe whether Member States with narrower concepts of legal privilege will adapt their regimes in light of the increased disclosure obligations under the Damages Directive to provide defendants with additional protection.
While the Recitals to the Damages Directive emphasise that damages actions represent only one element of an effective private enforcement system (which should also involve consensual dispute resolution),71 the Damages Directive does not mandate any alternative dispute resolution mechanisms. Nor does it regulate settlement procedures generally. However, it did introduce three measures aimed at incentivising the use of consensual dispute resolution mechanisms and increasing their effectiveness.
Thirdly, and most significantly, the Damages Directive seeks to ensure that an infringing party that pays damages through consensual dispute resolution should not be placed in a worse position in relation to its co-infringers than it would otherwise have been in absent the consensual settlement. This might be the case, for example, if a party, even after a consensual settlement, continued to be fully jointly and severally liable for the harm caused by the infringement, and therefore remains open to contribution proceedings from other co-infringers. To address this, Member States are to ensure that, following a consensual settlement, the claimant's claim is reduced by the settling co-infringer's share of the harm75 (which is not necessarily the amount it has actually paid),76 and the claimant can only pursue its remaining claim against non-settling co-infringers.77 Importantly, non-settling co-infringers shall not be permitted to recover contribution for the remaining claim from the settling co-infringer.78 This creates significant incentives for defendants to offer an early settlement.
Further, in addition to a class actions regime (discussed in Section VII), a number of Member States have collective settlement regimes pursuant to which groups of claims can be settled, including on an opt-out basis. For example, in the UK the collective action regime available in the Competition Appeal Tribunal also includes an opt-out collective settlement regime. In the Netherlands, the Dutch Act on the Collective Settlement of Mass Claims similarly provides for an opt-out mechanism that facilitates collective settlement through a binding declaration from the Amsterdam Court of Appeal.
Arbitration is listed among the consensual dispute resolution mechanisms that are actively promoted by the Damages Directive.79 Although the Damages Directive does not prevent claimants from submitting damages claims to arbitration, it is silent on more specific issues such as whether (and how) to include contractual arbitration clauses in respect of competition claims.
Arbitration is still relatively rare as a means of resolving competition disputes in Europe, due in part to an inherent tension between arbitration as a private system of dispute resolution and EU competition law as a public system designed to protect consumer welfare and the integrity of the internal market. There are other more specific obstacles to the widespread adoption of arbitration in this field; for example, competition claims often involve a large number of claimants or defendants, or both, from different levels of the distribution chain, which can be problematic where each party has an independent contract with its own arbitration clause (or lack thereof).
On the other hand, both arbitration and antitrust claims invariably arise in an international context, and arbitral tribunals are accustomed to complex, multiparty cases. Further, a recent decision by the English High Court80 to stay court proceedings so as to give effect to an arbitration clause indicates that antitrust arbitration may be becoming increasingly accepted in the sphere of private enforcement.
The Damages Directive further provides that Member States must ensure that any individual infringer can recover a contribution from co-infringers, in accordance with the relative responsibility for the harm of each co-infringer.83 Again, a carve-out is in place to ensure that immunity applicants can only be required to contribute an amount up to the harm caused to their own direct and indirect purchasers.84 The Damages Directive does not explain what is meant by relative responsibility for harm, and this will be left to Member States to decide.85 Notably, the Damages Directive does not specify a limitation period for contribution claims, meaning that this too will be a matter to be decided at a national level.
These changes represent a novel development for many jurisdictions, including the UK, France, Germany and the Netherlands, and could complicate the recovery process for contribution claimants.
A major development on the horizon is the UK's withdrawal from the EU. At present, the UK is one of the most important jurisdictions within Europe for private enforcement actions, and claimant firms have expressed confidence that it will remain as such after the UK leaves the EU. Fundamental to whether this will be the case is the extent to which claimants will be able, post-Brexit, to rely on infringement decisions issued by the Commission as a basis for founding a follow-on claim in the UK. If the UK and EU Parliaments ratify a withdrawal agreement under the terms agreed in November 2018, which is not certain at the time of writing, the whole body of EU law will continue to apply to and in the UK until the end of the transition period (i.e., 31 December 2020, unless extended pursuant to the agreement). Accordingly, the Commission would maintain jurisdiction over investigations initiated before the end of that period and claimants would be able to rely on EU law (and the relevant Commission decisions) to initiate private antitrust proceedings before the UK courts. In contrast, if the UK and EU Parliaments do not ratify the agreement, EU law will cease to apply to and in the UK in March 2019. Practically, however, it is likely that claimants would still be able to initiate claims based on breaches of EU competition law (and rely on the relevant Commission decisions) if these claims are framed as foreign tort claims.
More generally in relation to EU law, it is only over the next few years that the effect of the Damages Directive will become clear. It seems likely at this stage that its major impact will be to increase venue choice for claimants, as jurisdictions that might not previously have been considered become more appealing to claimants.
1 William Turtle and Camilla Sanger are partners and Olga Ladrowska is an associate at Slaughter and May.
2 Directive 2014/104/EU of 26 November 2014 (Damages Directive).
3 Commission report on 'the implementation of the Commission recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union law' (COM(2018) 40 final).
ba proposal on representative actions for the protection of the collective interests of consumers and repealing the Injunctions Directive 2009/22/EC (COM(2018) 184 final).
5 Regulation (EC) No. 1/2003 of 16 December 2002.
6 Recital 9, Damages Directive.
7 Article 10(3), Damages Directive. The limitation period in a number of jurisdictions (e.g., the UK and the Netherlands) already met this requirement, while in others (e.g., Germany and Spain), it was extended by the national implementing legislation.
8 Article 10(2), Damages Directive.
9 Article 10(4), Damages Directive. There has been some criticism, for example by the City of London Law Society in its response to the UK government's consultation on the national legislation implementing the Damages Directive, that Article 10(4) is not clear as to whether an appeal on penalty alone will suspend the limitation period, and whether an appeal by one addressee suspends the limitation period for all addressees. Such questions were previously addressed by the English courts in relation to the former limitation provisions in the cases of BCL Old Co v. BASF  EWCA Civ 434 and Deutsche Bahn AG v. Morgan Advanced Materials plc  UKSC 24. At an EU level, these ambiguities could result in a preliminary ruling request to the European Court of Justice.
10 Article 18(1), Damages Directive. Recital 48 states that 'consensual dispute resolution mechanisms' will include out-of-court settlements, arbitration, mediation and conciliation.
11 By way of example, consider a scenario in which the Commission opened an investigation in 2018 in respect of behaviour that took place between 2010 and 2016, and reached an infringement decision in 2021, with an appeals process lasting until 2024. In this case, the limitation period would only begin to run in 2025, and would last a minimum of five years, until 2030. Therefore, the company would be at risk of a damages claim for almost 15 years after it ceased its anticompetitive conduct.
12 The Damages Directive does allow for long-stop dates to be put in place. Recital 35 states that 'Member States should be able to maintain or introduce absolute limitation periods that are of general application, provided that the duration of such absolute limitation periods does not render practically impossible or excessively difficult the exercise of the right to full compensation'. For example, in the Netherlands a 20-year long-stop limitation period will apply, starting on the date on which the damage was inflicted, irrespective of the victim's awareness.
13 Regulation No. 1215/2012 of 12 December 2012 (Recast Brussels Regulation).
14 Article 4(1), Recast Brussels Regulation.
15 Article 8(1), Recast Brussels Regulation.
16 Article 7(2), Recast Brussels Regulation. See case C-352/13 Cartel Damage Claims (CDC) Hydrogen Peroxide SA v. Akzo Nobel and Others (2015) and case C-27/17 AB flyLAL-Lithuanian Airlines v. Starptautiska lidosta 'Riga' VAS (2018). On 10 July 2018 the ECJ received another preliminary ruling request regarding Article 7(2) in case C-451/18 Tibor-Trans Fuvarozó és Kereskedelmi Kft. v. DAF Trucks NV.
17 Case C-595/17 Apple Sales International et al v. EBizcuss.com (2018).
18 Case C-352/13 Cartel Damage Claims (CDC) Hydrogen Peroxide SA v. Akzo Nobel and Others (2015).
19 Regulation No. 864/2007 of 11 July 2007 (Rome II Regulation).
20 Articles 4 and 6, Rome II Regulation.
21 Article 6(3)(b), Rome II Regulation.
22 Article 14, Rome II Regulation.
23 See, for example, Deutsche Bahn AG & Others v. MasterCard Incorporated & Others  EWHC 412.
24 See, for example, case C-89/85 A Ahlström Osakeyhtiö and others v. Commission of the European Communities (1994).
25 See, for example, case T-102/96 Gencor v. Commission (1999).
26 Case C-413/14 P Intel Corp v. Commission (2017).
27 See, for example, Iiyama (UK) Ltd & Others v. Samsung Electronics Co Ltd & Others  EWCA Civ 220.
28 Article 3(1), Damages Directive.
29 Article 4, Damages Directive.
30 Article 12(1), Damages Directive.
31 Case C – 557/12 Kone AG and others v. ÖBB-Infrastruktur AG (2014).
32 Article 5(1), Damages Directive.
33 Article 5(1), Damages Directive.
34 Article 5(1), Damages Directive. Competition authorities are also expressly permitted to submit observations to the national courts on the proportionality of such disclosure requests (Article 6(11)).
35 Article 5(4), Damages Directive. For instance, through redacting sensitive passages in documents, conducting hearings in camera, restricting the persons allowed to see the evidence, and instructing experts to produce summaries of the information in aggregated or otherwise non-confidential form (see Recital 18).
36 Article 5(6), Damages Directive.
37 For instance, the new provisions on disclosure only apply to claims where proceedings were commenced on or after 27 December 2016 in Germany and 27 May 2017 in Spain.
38 Article 5(2), Damages Directive.
39 Article 5(8), Damages Directive.
40 Defined as an oral or written presentation voluntarily provided to a competition authority (or a record thereof) describing the provider's knowledge of a cartel and describing its role therein, which presentation was drawn up specifically for submission to the competition authority with a view to obtaining immunity or a reduction of fines under a leniency programme, and not including pre-existing information (i.e., evidence that exists irrespective of the proceedings of a competition authority: e.g., contemporaneous documents) (Articles 2(16) and 2(17), Damages Directive).
41 Defined as a voluntary presentation to a competition authority acknowledging the provider's participation in an infringement of competition law, which was drawn up specifically to enable the competition authority to apply a simplified or expedited procedure (Article 2(18), Damages Directive).
42 Article 6(6), Damages Directive. Previously, national courts were expected to undertake a balancing exercise of weighing up the need to facilitate private enforcement of competition law by allowing disclosure of leniency documents versus the public interest in protecting the effectiveness of leniency regimes.
43 Recital 26, Damages Directive.
44 Article 6(5), Damages Directive.
45 Article 6(4)(c), Damages Directive.
46 Case C-162/15 P Evonik Degussa v. Commission (2017) and case C-517/15 AGC Glass Europe and Others (2017).
47 See, for example, 'Study on the Passing-on of Overcharges', RBB Economics et al (2016); Communication from the Commission on quantifying harm in action for damages based on breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union (2013/C 167/07); and Commission Staff Working Document: Practical Guide – quantifying harm in actions for damages based on breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union (SWD (2013) 205).
48 Commission Recommendation of 11 June 2013 on 'common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union law' (2013/396/EU).
49 Green Paper on 'Damages actions for breach of the EC antitrust rules' (COM(2005) 672 final).
50 White Paper on 'Damages actions for breach of the EC antitrust rules' (COM(2008) 165 final).
51 Communication of 11 June 2013 titled 'Towards a European Horizontal Framework for Collective Redress' (COM(2013) 401 final).
52 Recital 7, the Recommendation.
53 Paragraph 21, the Recommendation.
54 Study, Collective redress in the Member States of the European Union (Policy Department for Citizens' Rights and Constitutional Affairs, October 2018).
55 Communication from the Commission on quantifying harm in actions for damages based on breach of Article 101 or 102 of the Treaty of the Functioning of the European Union (2013/C 167/07).
56 Commission Staff Working Documents: Practical Guide – quantifying harm in actions for damages based on breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union (SWD(2013) 205).
57 Article 17(2) and Recital 47, Damages Directive.
58 Article 3, Damages Directive.
59 Article 17(1), Damages Directive.
60 Article 17(1), Damages Directive.
61 Article 17(3), Damages Directive.
62 Article 13, Damages Directive.
63 Article 14, Damages Directive.
64 Article 9(1), Damages Directive.
65 Article 16(1) Regulation (EC) No. 1/2003, codifying case C-344/98 Masterfoods Limited v. HB Ice Cream Limited (2000).
66 Article 9(2), Damages Directive.
67 Article 5(6), Damages Directive.
68 Note that under EU law, legal professional privilege is considered a limitation on the Commission's investigatory powers and has consequently been defined narrowly. For example, the EU concept of privilege does not extend to advice given by in-house counsel.
69 In common law jurisdictions (such as the UK, Ireland and Cyprus), privilege will protect confidential documents or communications that have been created for the purpose of giving or obtaining legal advice or in preparation for litigation.
70 For example, under English common law a party is required to disclose all documents on which it relies; which adversely affect or support its or another party's case; or that it is required to disclose by a relevant practice direction.
71 Recital 5, Damages Directive.
72 Article 18(1), Damages Directive.
73 Article 18(2), Damages Directive.
74 Article 18(3), Damages Directive.
75 Article 19(1), Damages Directive.
76 According to Recital 51 of the Damages Directive, 'the claim of the injured party should be reduced by the settling infringer's share of the harm caused to it, regardless of whether the amount of the settlement equals or is different from the relative share of the harm that the settling co-infringer inflicted upon the settling injured party'.
77 Article 19(2), Damages Directive.
78 Article 19(2), Damages Directive.
79 See Recital 48, Damages Directive.
80 Microsoft Mobile OY (Ltd) v. Sony Europe Limited et al  EWHC 374.
81 Article 11(1), Damages Directive.
82 Article 11(4), Damages Directive.
83 Article 11(5), Damages Directive.
84 Article 11(5), Damages Directive.
85 Recital 37, Damages Directive does provide that relevant criteria for assessing contribution to harm will include turnover, market share or role in the cartel.
86 Article 11(3)(a), Damages Directive.
87 Article 11(3)(b), Damages Directive.
88 Article 11(2), Damages Directive.
89 Article 11(2), Damages Directive.
90 In relation to the consumer redress legislation, it was announced on 6 December 2018 that the legislation will not be adopted before EU elections in May 2019.
91 The jurisprudence of the ECJ on private enforcement of EU antitrust law is ever-growing. In 2018, Member States requested preliminary rulings on, among other things, the question of which parties are liable for compensation of damage caused by cartel conduct (cases C-724/17 Vantaan kaupunki v. Skanska Industrial Solutions Oy, NCC Industry Oy, Asfaltmix Oy) and the question of what activities amount to participation in a cartel agreement (case C-228/18 Gazdasági Versenyhivatal v. Budapest Bank Nyrt and Others).

matches: v. EWCA v. UKSC v. v. v. v. v. v. v. v. v. v. EWCA v. v. v. v. v. v.


Yale H. Iverson, Des Moines, Iowa, for appellants.
Stephen Robinson, Asst. Atty. Gen., Des Moines, Iowa, for appellees; Richard C. Turner, Atty. Gen. and Lorna L. Williams, Asst. Atty. Gen., Dept. of Justice, Legal Services, Dept. of Social Services, Des Moines, Iowa, on brief.
This is an appeal from the district court's1 dismissal of a civil rights action brought under 42 U.S.C. § 1983, on the ground that appellants' claims were barred by the doctrine of Res judicata. We affirm.
The parental rights of appellants, Donna Jean and Kester Gene Robbins, were terminated in 1973 by the District Court of Worth County, Iowa. This action was taken after three hearings, on the issue of the Robbins' fitness as parents, revealed that conditions in their home remained deplorable despite three years and over 1000 hours of assistance and guidance by the Iowa Homemaker Health Aide Service.2 The Iowa state district court based its decision on two sections of Iowa's termination statute, one of which was not pleaded in the petition. Appellants appealed to the Iowa Supreme Court. That court agreed that appellants were denied procedural due process because the district court found a basis for termination not alleged in the petition.3 However the supreme court found sufficient evidence of the Robbins' repeated refusal to give their children necessary parental care and protection to justify termination.4 This section had been pleaded and was relied upon alternatively by the state district court in ordering termination. Appellants did not appeal the Iowa Supreme Court's decision to the United States Supreme Court. Instead they filed this § 1983 action in federal district court.
The federal district court granted appellees' motion to dismiss on the ground that appellants' § 1983 action was barred by the doctrine of Res judicata, known in Iowa as claim preclusion. Appellants appeal the dismissal of their claim.
In Green v. American Broadcasting Companies, Inc., 572 F.2d 628, 632 (8th Cir. 1978) we held that an issue may not be relitigated in a second lawsuit where that issue had previously been litigated in a prior lawsuit which involved the same cause of action. Furthermore, issues which might have been raised in the first lawsuit may not be raised in a second lawsuit arising out of the same cause of action. To determine whether the causes of action are the same in each lawsuit we examine whether or not the primary right and duty, and the delict or wrong are the same in each action. Engelhardt v. Bell & Howell Co., 327 F.2d 30, 32 (8th Cir. 1964). An application of the principle of Res judicata additionally requires that the parties in both lawsuits have a close relationship, bordering on near identity, since the second claim is entirely barred by the application of Res judicata. Green v. American Broadcasting Companies, Inc., supra, 572 F.2d at 631.
While Green v. American Broadcasting Companies, Inc., supra, did not involve constitutional issues, this circuit and several other circuits have held that the principle of Res judicata applies to § 1983 actions and operates as a bar to the relitigation of constitutional issues actually raised as well as to constitutional issues that could have been raised in a prior lawsuit if the second suit concerns the same operative nucleus of fact. Goodrich v. Supreme Court of South Dakota, 511 F.2d 316, 318 (8th Cir. 1975); Jenson v. Olson, 353 F.2d 825, 827 (8th Cir. 1965); Rhodes v. Meyer, 334 F.2d 709, 716 (8th Cir. 1964); Scoggin v. Schrunk, 522 F.2d 436, 437 (9th Cir. 1975), Cert. denied, 423 U.S. 1066, 96 S.Ct. 807, 46 L.Ed.2d 657 (1976); Blankner v. Chicago, 504 F.2d 1037, 1042 (7th Cir. 1974), Cert. denied, 421 U.S. 948, 95 S.Ct. 1678, 44 L.Ed.2d 101 (1975); Lovely v. Laliberte, 498 F.2d 1261, 1263 (1st Cir.), Cert. denied, 419 U.S. 1038, 95 S.Ct. 526, 42 L.Ed.2d 316 (1974).
Applying these principles to the instant case it is apparent that the parties to the termination proceedings in the Iowa state courts and the § 1983 action are identical. Donna Jean and Kester Gene Robbins resisted termination of their parental rights in the Iowa state courts and presently complain that their civil rights were violated by the termination. It is equally apparent that the causes of action in each proceeding are the same. Appellants argued in state court as they do here that their parental rights were unjustly and unconstitutionally terminated. Thus their § 1983 action is based on the same nucleus of operative fact before the Iowa courts. Appellants had the opportunity to raise these issues before the Iowa Supreme Court and having failed to do so cannot now attempt to circumvent the doctrine of claim preclusion by merely alleging a different theory of recovery where the actions arise out of the same transaction. Gatzemeyer v. Vogel, 589 F.2d 360 (8th Cir. 1978).
c. That following an adjudication of neglect or dependency, reasonable efforts under the directions of the court have failed to correct the conditions leading to the termination.
b. That the parents have substantially and continuously or repeatedly refused to give the child necessary parental care and protection.