For decades, patent holders could effectively file a lawsuit in any district where a defendant made sales, thanks to a broad interpretation of the phrase “resides” in 28 U.S.C. § 1400(b). With this reading, the patent world saw the rise of forum shopping, a practice which allows plaintiffs to bring suit in a court they believe more favorable to them, and as such, there was an influx of cases to historically plaintiff-friendly dockets such as the Eastern District of Texas. This concern led in part to the Supreme Court’s consideration of the TC Heartland case during its last term.1TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S.Ct. 1514 (2017).
In TC Heartland, the Supreme Court definitively struck down this broad reading of the venue statute and clarified that its previous case, Fourco Glass Co. v. Transmirra Prod. Corp.,2Fourco Glass Co. v. Transmirra Prod. Corp., 353 U.S. 222 (1957) is still good law in that “resides” should only refer to a company’s place of incorporation. With this change, patent plaintiffs were left to determine the meaning of the rather untouched second clause of section 1400(b), which allows for a venue “where the defendant has committed acts of infringement and has a regular and established place of business.”3Id.
Enter Rodney Gilstrap, a judge in the Eastern District of Texas who historically has had the largest patent docket of any district judge in the country. In a written opinion denying a motion to transfer out of his district, Gilstrap laid out a four-factor test which he believed properly encompassed the meaning of a “regular and established” place of business.4See Raytheon Co. v. Cray, Inc., No. 2:15–CV–01554–JRG, 2017 WL 2813896, at *11 (E.D. Tex. June 29, 2017). His interpretation would allow for a broad reading of “regular and established” and would have found venue proper when a company had only a minimal connection to the district.
The Federal Circuit struck down this interpretation on appeal.5See In re Cray Inc., 871 F.3d 1355, 1362 (Fed. Cir. 2017). The court’s new interpretation requires: 1) a physical place in the district; 2) it must be a regular and established place of business; and 3) it must be the place of the defendant.6See id. at 1360. In the case at issue, the presence of one employee who teleworked from his home was not enough to establish venue.7See id. at 1366.
While the Supreme Court and Federal Circuit decisions seem to offer more clarity for domestic defendants, there is little guidance for international defendants in establishing venue. The Supreme Court specifically noted that their holding was limited to “domestic” defendants.8TC Heartland, 137 S.Ct. at 1517. With this limitation, along with recent changes to the regular venue statute and the long-standing idea that foreign business entities can be sued for patent infringement in any district, the issue is ripe for review by the highest court.
Additionally, neither court seemed to heavily focus on the remaining prong of the clause, which relates to “where the defendant has committed acts of infringement.”928 U.S.C. § 1400(b). This standard hasn’t raised significant issue to date, but courts may see more arguments made to this point, possibly if a situation arises where the defendant has a regular and established place of business but no facts pointing to infringing activity in the district.
Following TC Heartland, many defendants in ongoing litigation argued the case was an intervening change in law that allowed for a court to revisit the defense’s venue objection later down the line, with some courts even ordering additional briefing.10See, e.g., Symbology Innovations, LLC v. Lego Sys., Inc., No. 2:17–cv–86, 2017 WL 4324841, at *3 (E.D. Va. Sept. 28, 2017). Courts are often granting these motions, with the exception of those cases where the court found the venue defense waived given that the cases were simply too far along that a transfer would have prejudiced the opposition.11See, e.g., Elbit Sys. Land & C4I Ltd. v. Hughes Network Sys., LLC, No. 2:15-CV-00037-RWS-RSP, 2017 WL 2651618, at *20 (E.D. Tex. June 20, 2017).
Plaintiffs looking to argue venue now should use the following factors to help show that venue is proper under the Federal Circuit’s standard: the defendant owns, leases, or pays for a physical location in the district; the employee in the location is hired for their location specifically or the employment is otherwise conditioned on their continued residence in the location; the location is marketed to the public; the employer would look to establish a new place of business if the employee moved out; and the remote office in the district is similar to the main office of the business.12See David Tellekson et al., Federal Circuit Provides Much Needed Patent Guidance Post TC Heartland, FENWICK (Sept. 22, 2017), https://www.fenwick.com/publications/Pages/Federal-Circuit-Provides-Much-Needed-Patent-Venue-Guidance-Post-TC-Heartland.aspx.
GLTR Staff Member; Georgetown Law, J.D. expected 2019; Princeton University 2015. ©2018, Stephanie Goldberg.


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M. Sanchez, O. Fryazinov, P.-A. Fayolle, A. Pasko, Convolution filtering of continuous signed distance fields for polygonal meshes, Computer Graphics Forum, vol. 34, No. 6, September 2015, pp. 277–288.
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O. Fryazinov, A. Pasko, Reliable detection and separation of components for solid objects defined with scalar fields, Computer-Aided Design, vol. 58, No. 1, 2015, pp. 43–50.
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M. Sanchez, O. Fryazinov, T. Vilbrandt, A. Pasko, Morphological shape generation through user-controlled group metamorphosis, Computers & Graphics, vol. 37, No. 6, 2013, pp. 620-627.
P.-A. Fayolle, A. Pasko, Segmentation of discrete point clouds using an extensible set of templates, The Visual Computer, vol. 29, No. 5, 2013, pp. 449-465.
A. Belyaev, P.-A. Fayolle, A. Pasko, Signed Lp-distance fields, Computer-Aided Design, vol. 45, No. 2, 2013, pp. 523–528.
O. Fryazinov, T. Vilbrandt, A. Pasko, Multi-scale space-variant FRep cellular structures, Computer-Aided Design, vol. 45, No. 1, 2013, pp. 26–34.
P.-A. Fayolle, A. Pasko, Optimized surface discretization of functionally defined multi-material objects, Advances in Engineering Software, Elsevier, vol. 45, No. 1, 2012, pp. 301–312.
T. Vilbrandt, C. Vilbrandt, G. Pasko, C. Stamm, A. Pasko, Digitally interpreting traditional folk crafts, IEEE Computer Graphics and Applications, vol. 31, No. 4, July/Aug. 2011, pp. 12-18.
O. Fryazinov, P.-A. Fayolle, T. Vilbrandt, G. Pasko, A. Pasko, Feature based volumes for implicit intersections, Computers & Graphics, vol. 35, No. 3, 2011, pp. 524-531.
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O. Fryazinov, A. Pasko, P. Comninos, Fast reliable interrogation of procedurally defined implicit surfaces using extended revised affine arithmetic, Computers and Graphics, Vol. 34, Issue 6, 2010, pp. 708-718.
D. Kravtsov, O. Fryazinov, V. Adzhiev, A. Pasko, P. Comninos, Embedded implicit stand-Ins for animated meshes: a case of hybrid modelling, Computer Graphics Forum, Volume 29, Issue 1, 2010, pp. 128-140.
Electronic version: PDF (600K), video on YouTube.
T. Vilbrandt, A. Pasko, C. Vilbrandt, Fabricating Nature, Technoetic Arts, Vol. 7, Issue 2, 2009, Intellect, UK, pp. 165-174.
Pasko A., Adzhiev V., Constructive function-based modeling in multilevel education, Communications of the ACM, Volume 52 , Issue 9, 2009, pp. 118-122.
Sourin A, Sourina O, Wei L, Gagnon P. Visual Immersive Haptic Mathematics in Shared Virtual Spaces, Transactions on Computational Science III, LNCS5300, Springer, LNCS Volume 5300/2009, pp 1-19, 2009.
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T. Nieda, A. Pasko, T. L. Kunii, Detection and classification of topological evolution for linear metamorphosis, The Visual Computer, vol. 22, No. 5, May 2006, pp. 346-356.
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R. Cartwright, V. Adzhiev, A. Pasko, Y. Goto, T. Kunii, “Web-based shape modeling with HyperFun”, IEEE Computer Graphics and Applications, vol. 25, No. 2, 2005, pp. 60-69.
G. Pasko, A. Pasko, T. Kunii, “Bounded blending for function-based shape modeling”, IEEE Computer Graphics and Applications, vol. 25, No. 2, 2005, pp. 36-45.
Kulish V, Sourin A, Sourina O. Human Electroencephalograms Seen as Fractal Time Series: Mathematical Analysis and Visualization. Computers in Biology and Medicine, Elsevier-Pergamon, 2005;36(3):291-302.
Sourina O, Korolev N. Visual Mining and Spatio-Temporal Querying in Molecular Dynamics. Journal of Computational and Theoretical Nanoscience, American Scientific Publishers, Vol. 2, No. 4, 2005, 492-498.
V. Adzhiev, P. Comninos, M. Kazakov, A. Pasko, “Functionally based augmented sculpting”, Computer Animation and Virtual Worlds, vol. 16, No. 1, 2005, pp. 25-39.
G. Pasko, A. Pasko, T. Kunii, “Space-time blending”, Computer Animation and Virtual Worlds, vol. 15, No. 2, 2004, pp. 109-121.
G. Pasko, A. Pasko, “Trimming implicit surfaces”, The Visual Computer, vol. 20, No. 7, 2004, pp. 437-447.
B. Schmitt, A. Pasko, C. Schlick, “Constructive sculpting of heterogeneous volumetric objects using trivariate B-splines”, The Visual Computer, 2004, vol. 20, Nos. 2-3, 2004, pp. 130 - 148.
C. Vilbrandt, G. Pasko, A. Pasko, P.-A. Fayolle, T. Vilbrandt, J. R. Goodwin, J. M. Goodwin, T. L. Kunii, “Cultural heritage preservation using constructive shape modeling”, Computer Graphics Forum, vol. 23, No.1, 2004, pp. 25-41.
Ohtake Y., Belyaev A., Alexa M., Turk G., Seidel H.-P., “Multi-level partition of unity implicits”, ACM Transactions on Graphics (SIGGRAPH 03 Proceedings), vol. 22, No. 3, 2003, pp. 463-470.
E. Kartasheva, V. Adzhiev, A. Pasko, O. Fryazinov, V. Gasilov, “Surface and volume discretization of functionally based heterogeneous objects”, Journal of Computing and Information Science and Engineering, ASME Transactions, vol. 3, No. 4, 2003, pp. 285-294.
Ohtake Y., Belyaev A., Pasko A., “Dynamic mesh optimization for polygonized implicit surfaces with sharp features”, The Visual Computer, vol. 19, No. 2-3, 2003, pp. 115-126.
V. Adzhiev, P. Comninos, A. Pasko, “Augmented sculpture: computer ghosts of physical artefacts”, Leonardo, MIT, vol. 36, No. 3, 2003, pp. 211-219.
Pasko A., Okunev O., Savchenko V., “Minkowski sums of point sets defined by inequalities”, Computers and Mathematics with Applications, Elsevier Science, vol. 45, No. 10/11, 2003, pp. 1479-1487.
V. Adzhiev, E. Kartasheva, T. Kunii, A. Pasko, B. Schmitt, “Hybrid cellular-functional modeling of heterogeneous objects”, Journal of Computing and Information Science in Engineering, Transactions of the ASME, vol. 2, No. 4, 2002, pp. 312-322.
B. Schmitt, A. Pasko, V. Adzhiev, C. Schlick, “Constructive texturing based on hypervolume modeling”, Journal of Visualization and Computer Animation, vol. 12, No. 5, 2001, pp. 297-310.
Pasko A., Adzhiev V., Schmitt B., Schlick C., “Constructive hypervolume modeling”, Graphical Models, special issue on Volume Modeling, vol. 63, No. 6, November 2001, pp. 413-442.
Pasko A., Savchenko V., Sourin A., “Synthetic carving using implicit surface primitives”, Computer-Aided Design, Elsevier, vol. 33, No. 5, April 2001, pp. 379-388.
Adzhiev V., Kazakov M., Pasko A., Savchenko V., “Hybrid system architecture for volume modeling”, Computers & Graphics, Pergamon Press, vol. 24, No. 1, 2000, pp. 67-78.
Savchenko V., Pasko A., “Transformation of functionally defined shapes by extended space mappings”, The Visual Computer, vol. 14, No. 5/6, 1998, pp. 257-270.
Sourina O, Boey SH. Geometric query types for data retrieval in relational databases. Data & Knowledge Engineering, Vol. 27, No. 2, 1998, 207 - 229.
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Pasko A.A., Pilyugin V.V., Pokrovskiy V.N. “Geometric modeling in the analysis of trivariate functions”, Computers and Graphics, vol.12, Nos.3/4, 1988, pp.457-465.
G. Pasko, D. Kravtsov, A. Pasko, Real-time space-time blending with improved user control, in Motion in Games, R. Boulic, Y. Chrysanthou, T. Komura (Eds.), Lecture Notes in Computer Science, vol. 6459, Springer, 2010, pp. 146-157.
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O. Fryazinov, A. Pasko, Interactive ray shading of FRep objects, WSCG’2008, Communications Papers proceedings, 2008, pp. 145-152.
Wei L, Sourin A, Sourina O., Function-based Haptic Interaction in Cyberworlds, Proc. 2007 International Conference on Cyberworlds, 24-27 October, Hannover, IEEE CS, pp.225-232, 2007.
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E. Kartasheva, V. Adzhiev, P. Comninos, A. Pasko, B. Schmitt, Modelling with implicit complexes, ACM SIGGRAPH 2005, Sketches, LA, USA, August, 2005.
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E. Kartasheva, V. Adzhiev, A. Pasko, O. Fryazinov, V. Gasilov, “Discretization of functionally based heterogeneous objects”, 8th ACM Symposium on Solid Modeling and Applications (June 16-20, 2003, Seattle, USA), G. Elber and V. Shapiro (Eds.), ACM Press, 2003, pp. 145-156.
Ohtake Y., Belyaev A., Seidel H.-P., “A multi-scale approach to 3D scattered data interpolation with compactly supported basis functions”, Shape Modeling International 2003, Seoul, Korea, IEEE Computer Society, 2003, pp. 153-161.
M. Kazakov, A. Pasko, V. Adzhiev, “Interactive metamorphosis and carving in a multi-volume scene” GRAPHITE2003 (Melbourne, Australia, 11-14 February, 2003), Publication of ACM SIGGRAPH, 2003, pp. 103-110.
B. Schmitt, A. Pasko, C. Schlick, “Shape-driven deformations of functionally defined heterogeneous volumetric objects”, GRAPHITE2003 (Melbourne, Australia, 11-14 February, 2003), Publication of ACM SIGGRAPH, 2003, pp. 127-134.
Ohtake Y., Belyaev A. “Dual/primal mesh optimization for polygonized implicit surfaces”, ACM Solid Modeling Symposium (June 17-21, 2002, Saarbrucken, Germany), ACM Press, K. Lee and N. Patrikalakis (Eds.), pp. 171-178.
G. Pasko, A. Pasko, M. Ikeda, T. Kunii “Bounded blending operations”, Shape Modeling International 2002, Banff, Canada, IEEE Computer Society, 2002, pp. 95-103.
K. Levinski and A.Sourin “Interactive function-based artistic shape modeling”, 2002 International Symposium Cyber Worlds: Theory and Practice 2002, Tokyo, Japan 6-8 November, IEEE Computer Society, 2002, pp.521-528.
Lai Feng Min, A. Sourin K. Levinski, “Function-based 3D Web visualization”, 2002 International Symposium Cyber Worlds: Theory and Practice 2002, Tokyo, Japan 6-8 November, IEEE Computer Society, 2002, pp.428-435.
K. Levinski, A. Sourin “Interactive polygonisation for function-based shape modelling”, Eurographics 2002, Short Presentations ISSN 1017-4565, pp.71-79, 2002.
Lai Feng Min, A. Sourin “Function-defined shape node for VRML”, Eurographics 2002, Short Presentations, ISSN 1017-4565, pp.207-215, 2002.
M. B. H. Shanat, P.-A. Fayolle, B. Schmitt, T. Vilbrandt “Haniwa : a case study of digital visualization of virtual heritage properties”, EUROGRAPHICS UK, Leicester, UK, 2002.
M. Kazakov, V. Adzhiev, A. Pasko “Fast navigation through an FRep sculpture garden”, Shape Modeling International 2001, IEEE Computer Society, 2001, pp.104-113.
Y. Ohtake, A. Belyaev, A. Pasko “Dynamic meshes for accurate polygonization of implicit surfaces with sharp features”, Shape Modeling International 2001, IEEE Computer Society, 2001, pp. 74-81.
A.Sourin, "Functionally based virtual computer art", The 2001 ACM Symposium on Interactive Computer Graphics, I3D2001, Research Triangle Park, NC, USA, 19-21, March, 2001, pp.77-84.
E. Fausett, A. Pasko, V. Adzhiev “Space-time and higher dimensional modeling for animation”, Computer Animation 2000, University of Pennsilvania, PA USA, May 3-5 2000, pp.156-165.
V. Adzhiev, R. Cartwright, E. Fausett, A. Ossipov, A. Pasko, V. Savchenko, "HyperFun project: a framework for collaborative multidimensional F-rep modeling", Implicit Surfaces ‘99, Eurographics/ACM SIGGRAPH Workshop (Bordeaux, France, September 13-15 1999), J. Hughes and C. Schlick (Eds.), pp. 59-69.
B. Schmitt, A. Pasko, V. Savchenko “Extended space mapping with Bezier patches and volumes”, Implicit Surfaces ‘99, Eurographics/ACM SIGGRAPH Workshop (Bordeaux, France, September 13-15 1999), J. Hughes and C. Schlick (Eds.), pp. 25-31.
V. V. Savchenko, A. A. Pasko “Evolutionary optimization of functionally defined shapes: case study of natural optical objects”, Computer Graphics International ‘99 (Canmore, Alberta, Canada, June 7-11, 1999), IEEE Computer Society, 1999, pp. 20-24.
Savchenko V.V., Pasko A.A., Sourin A.I., Kunii T.L. “Volume modelling: representations and advanced operations”, Computer Graphics International ‘98 (June 22-26 1998, Hannover, Germany), IEEE Computer Society, 1998, ISBN 0-8186-8445-3, pp.4-13.
Belyaev A.G., Pasko A.A., Kunii T.L. “Ridges and ravines on implicit surfaces”, Computer Graphics International ‘98 (June 22-26 1998, Hannover, Germany), IEEE Computer Society, 1998, ISBN 0-8186-8445-3, pp.530-535.
Pasko A. “On Escher’s spirals - Polygonization of 2-manifolds with boundaries”, Implicit Surfaces ‘98, Eurographics/ACM SIGGRAPH Workshop (Seattle, USA, 15-16 June 1998), J. Bloomenthal and D. Saupe (Eds.), University of Washington, ISSN 1024-0861, 1998, pp.77-80.
Pasko A., Okunev O., Savchenko V. “Minkowski sums of solids defined by real functions”, Differential/Topological Techniques in Geometric Modeling and Processing ‘98, Workshop Proceedings (April 7-8, 1998, Pohang, Korea), BOOKPLUSpress, Korea, 1998, pp. 129-139.
Pasko A., Savchenko V. “Projection operation for multidimensional geometric modeling with real functions”, Geometric Modeling: Theory and Practice, W. Strasser, R. Klein, R. Rau (Eds.), Springer-Verlag, Berlin/Heidelberg, 1997, pp. 197-205.
Miura K.T., Pasko A.A., Savchenko V.V. “Parametric patches and volumes in the functional representation of geometric solids”, CSG 96 (Winchester, UK, 17-19 April 1996), Information Geometers, pp.217-231.
Adzhiev V.D., Pasko A.A., Sarkisov A.V. “HyperJazz project: development of geometric modelling systems with inherent symbolic interactivity”, CSG 96 (Winchester, UK, 17-19 April 1996), Information Geometers, pp.183-198.
Savchenko V.V., Pasko A.A., Kunii T.L., Savchenko A.V. “Feature based sculpting of functionally defined 3D geometric objects”, Multimedia Modeling. Towards Information Superhighway, T.S.Chua, H.K.Pung and T.L.Kunii (Eds.), World Scientific, Singapore, 1995, pp.341-348.
V.V.Savchenko, A.G.Basnakian, A.A.Pasko, S.V.Ten, R.Huang “Simulation of a growing mammalian cell colony: collision-based packing algorithm for deformable particles”, Computer Graphics: Developments in Virtual Environments, R.Earnshaw and J.Vince (Eds.), (CG International’95 Conference, Leeds, UK, June 26-30), 1995, Academic Press, pp.437-447.
Savchenko V., Pasko A. “Reconstruction from contour data and sculpting 3D objects”, Journal of Computer Aided Surgery, vol.1 Supl., Proceedings of Second International Symposium on Computer Aided Surgery ISCAS’95 (October 14, 1995, Tokyo, Japan), 1995, pp.56-57.
Pasko A., Savchenko V. “Algebraic sums for deformation of constructive solids”, Third ACM Symposium on Solid Modeling and Applications, C.Hoffmann and J.Rossignac (Eds.), Salt Lake City, Utah, USA (May 17-19, 1995), ACM Press, 1995, pp.403-408.
A.Sourin, A.Pasko “Function representation for sweeping by a moving solid”, Third ACM Symposium on Solid Modeling and Applications, C.Hoffmann and J.Rossignac (Eds.), Salt Lake City, Utah, USA (May 17-19, 1995), ACM Press, 1995, pp.383-391.
V.V.Savchenko, A.A.Pasko “Collision detection for functionally defined deformable objects”, The First International Workshop on Implicit Surfaces, Grenoble, France, April 18-19, Eurographics Workshop, B.Wyvill and M.-P. Gascuel (Eds.), INRIA, 1995, pp.217-221.
Savchenko V., Pasko A. “Parallel polygonization of implicit surfaces on transputers: algorithm, time performance evaluation and rendering results”, in Transputer Research and Applications 7, H.Arabnia (Ed.), NATUG-7, Proceedings of the Seventh Conference of the North American Transputer Users Group, October 23-25 1994, Atlanta, GA, IOS Press, 1995, pp.22-30.
Pasko A.A. and Savchenko V.V. “Blending operations for the functionally based constructive geometry”, Set-theoretic Solid Modeling: Techniques and Applications, CSG 94 Conference Proceedings, Information Geometers, Winchester, UK, 1994, pp.151-161.
Adzhiev V.D., Beynon W.M. and Pasko A.A. “Interactive geometric modelling based on R-functions: an agent-oriented approach”, Set-theoretic Solid Modeling: Techniques and Applications, CSG 94 Conference Proceedings, Information Geometers, Winchester, UK, pp.253-272, 1994.
Pasko A., Savchenko V. “Offsetting operations for the functionally based constructive geometry”, Proceedings of 6th International Conference on Engineering Computer Graphics and Descriptive Geometry (ICECGDG), 19-23 August 1994, Tokyo, Japan, K.Suzuki and K.Yoshida (Ed.), vol.1, 1994, pp.201-204.
Pasko A.A. and Savchenko V.V. “Solid noise in the constructive solid geometry”, EDUGRAPHICS’93 and COMPUGRAPHICS’93, Combined Proceedings, Ed. H.P.Santo, ACM, Portugal, 1993, pp.351-357.
Savchenko V.V., Pasko A.A. “Simulation of dynamic interaction between rigid bodies with time-dependent implicitly defined surfaces”, Parallel Computing and Transputers, Proceedings of the 6th Australian Transputer and Occam User Group Conference, November 1993 Brisbane, Australia, ed. D.Arnold et al., IOS Press, 1994, pp.122-129.
Pasko A.A., Adzhiev V.D., Prostakov I.A. “Multivariate functions visualization: the inductive approach”, Proceedings of 3rd Eurographics Workshop on Scientific Visualization (Viareggio, Italy, April 1992), 1992, pp.303-316.
T. Vilbrandt, O. Fryazinov, C. Stamm, A. Pasko, A Web Oriented Function-based Volume Modeling Framework, Technical Report TR-NCCA-2008-02, ISBN 1-85899-123-4, The National Centre for Computer Animation, Bournemouth University, UK, 2008, 12 p.
M. Kazakov, A. Pasko, V. Adzhiev, “Fast isosurface polygonization with embedded sharp features extraction”, Technical Report HCIS-2003-04, Hosei University, Tokyo, Japan, April 7, 2003, 11 p.
Electronic version: scanned section Internal system specification (PDF, 1.9 Mb) (pages 10-14).
Pasko A.A., Pilyugin V.V., Pokrovskiy V.N. “Using computer geometry for analysis of functions of three variables”, Communications of Joint Institute of Nuclear Research, JINR P10-86-310, Dubna, Russia, 1986, 10 p. (in Russian).

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Public Interest Litigation (PIL) generally means litigation or a petition for the protection of public interest. It is not established in the court of law, by the aggrieved party himself but by the court itself or any other private party. PIL is the power given to the public by the court through judicial activism. However, the person filing the petition must prove to the satisfaction of the court that the PIL is being filed for a public interest, not for any personal or political vendetta.
Such cases where the victim cannot approach the court himself due to lack of required resources or is being been suppressed upon, the court can itself take the cognizance of the matter and commence on the petition.
The Supreme Court of India in People’s Union for Democratic Rights & Others v. Union of India & Others [AIR (1982) 3 SCC 235] defined PIL as, “….is a cooperative or collaborative effort by the petitioner, the State of public authority and the judiciary to secure observance of constitutional or basic human rights, benefits and privileges upon poor, downtrodden and vulnerable sections of the society”.
The term “PIL” first originated in the United States in the mid-1980s. The Indian PIL is an improved version of the US PIL. Prior to 1980s, only the aggrieved party has the locus standi to file a case and seek remedy for his grievance the non-affected persons had no locus standi to do so. As a result of this, there was hardly any link between the rights given by the Constitution, laws laid down by the legislature and the vast majority of illiterate citizens of the nation.
This scenario gradually changed during the post-emergency period. As the Supreme Court tackled the problems of justice by bringing radical changes made in the requirements of locus standi to file a petition. The magnificent efforts of Justice P N Bhagwati and Justice V R Krishna Iyer were instrumental in this juristic revolution of the eighties to change over the Apex Court of India into a Supreme Court for all Indians. Justice V. R. Krishna Iyer and P. N. Bhagwati perceived the likelihood of giving access to equity to poor people and the abused individuals by unwinding the guidelines of standing.
The primary reported case of PIL in 1979 concentrated on the inhuman conditions of prisons and under trial prisoners. In Hussainara Khatoon v. Province of Bihar [AIR (1979) SC 1369], the PIL was filed by an advocate based on the news item published in the Indian Express, featuring the situation of thousands of under trial prisoners grieving in different prisons in Bihar. These proceedings prompted the release of more than 40,000 under trial prisoners. Right to speedy justice emerged as a basic fundamental right which had been denied to these prisoners.
The era of PIL movement was started by Justice P. N. Bhagawati in the case of S.P. Gupta v. Union of India [AIR (1982) SC 149], it was held that “any member of the public or social action group acting bona fide” can invoke the Writ Jurisdiction of the High Courts or the Supreme Court looking for remedy against infringement of a legal or constitutional rights of people who because of social or economic or some other incapacity cannot approach the Court. By this judgment PIL turned into a potent weapon for the requirement of “public duties” were executed in action or misdeed resulted in public injury.
PIL can be filed only where any “public interest” is affected at large. Because if just a single individual is affected then that is not a ground for filing PIL.
These are a portion of the conceivable areas where a PIL can be filed.
Where a manufacturing plant/industry is causing air pollution and individuals nearby are getting affected.
Where some “Banquet Hall” plays a boisterous music, in night causing noise pollution.
Where some development organization construction organization is chopping down trees, causing environmental pollution.
Where poor individuals, are influenced, in light of government’s arbitrary decision to impose heavy “tax”.
For guiding the police/Jail authorities to take suitable choices concerning jail reforms, for example, isolation of convicts, delay in the trial, production of under trial before the court.
For abolishing child labor, and reinforced labor.
Where privileges and rights of working ladies are affected by sexual harassment.
For keeping a check of corruption and wrongdoing including a high political officer.
For maintaining Roads, Sewer and so on in great conditions.
For expulsion of Big Hoarding and billboard from the busy street to reduce traffic.
Who can file a PIL?
Any person can file Public Interest Litigation the only necessary condition is that the petition must be filed in public interest. There is no need for the traditional necessity that only the aggrieved party must who is directly affected must file his case in a court of law. PIL is the special power given to the court to protect the public interest at large.
He is a member of the public acting bona fide in the interest of public and having sufficient interest in instituting an action for compensating the public wrong.
He is merely a meddlesome busybody.
His action is not motivated by any personal gain.
In the case of M.C.Mehta v. Union of India [AIR (1987) 4 SCC 463], Shriram Food and Fertilizers Industry a subsidiary of Delhi Cloth Mills Limited was producing caustic and chlorine. On December fourth and sixth 1985, a major spillage of oleum gas occurred from one of the units of Shriram Food and Fertilizers Limited in the core of the capital city of Delhi which brought about the demise of a few people.
The spillage was caused by a series of mechanical and human errors. This spillage happened because of the blasting of the tank containing oleum gas because of the collapse of the structure on which it was mounted. Within two days, another spillage, however this time a minor one occurred because of the escape of oleum gas from the joints of a pipe.
On sixth December, 1985 by the District Magistrate, Delhi under Section 133(1) of Cr.P.C, directed Shriram that inside two days Shriram should stop carrying on the manufacturing of dangerous and deadly chemicals and gases and so on at their establishment in Delhi and within 7 days to remove such chemicals and gases from Delhi. At this point, M.C. Mehta moved to the Supreme Court to guarantee compensation by filing a PIL for the misfortunes caused and argued that the shut foundation should not be permitted to restart. So this was one of the instances of PIL.
Indian Council for Enviro-legal Action v. Union of India [AIR (2011) 8 SCC 161] chemical industry were causing an issue of contamination, infringing the right to life, NGO filed a petition to for the benefit of the oppressed individuals.
PILs can be filed either in High Courts or the Supreme Court of India. One needs to do intensive research before filing a PIL. If there should be an occurrence of filing a PIL concerning several people, it is important and the best course for the petitioner to consult all affected groups.
When one chooses to file a PIL, he must gather all relevant data and documents to back his case. One can argue in person or appoint an advocate to fight the case.
If a person wants to file PIL in a High Court he can file under Article 226 of the Indian Constitution and if any person wants to file PIL in Supreme Court he can do it under Article 32 of Indian Constitution yet Article 226 is something recognized from Article 32 of Indian Constitution. Under Article 32 that individual can go to Supreme Court whose only fundamental rights are infringed. One can also approach Supreme Court for infringement of a constitutional right and also the court can take up a petition based on the “nature of the case”. Thus both the courts have the power to take up a PIL.
A Public Interest Litigation is filed in the same way as a Writ Petition.
In High Court, two copies of the petition must be filed. Also, an advance copy must be served to each respondent and the proof of such service must be affixed to the petition.
In Supreme Court, five copies of the petition must be filed. The respondent is served a copy of petition only when the notice is issued.
A court fee of Rs.50, per respondent, must be affixed with the petition.
The proceedings for a PIL commence and carry on similar to any other case.
Between the proceedings, if the judge deems fit he may appoint a commissioner to investigate the allegation.
After filing of the reply by the respondent and rejoinder by the petitioner, the final hearing takes place and gives his final judgment on the matter.
Against Whom can a PIL be Filed?
A Public Interest Litigation cannot be filed against any private party per se. It can be only filed against a State Government or Central Government, Municipal Authorities. However, a private party can be included as one of the respondents in a PIL.
A PIL cannot be filed solely against a private party without making the concerned Government or Authority a party to it.
By creating a new domain of Human Rights: by enhancing the significance of the fundamental right to equity, life, and personal liberty. In this procedure, the right to speedy trial, free legal aid, dignity, means and livelihood, education, housing, medical care, sanitization, right against torture, sexual harassment, solitary confinement etc. develop as human rights.
By Democratization of access of Justice: by reducing the traditional rules of locus standi. Any public person can approach the court on behalf of the aggrieved class.
By tailoring new Kinds of Reliefs: in PIL cases court can provide any relief to the victims under its writ jurisdiction.
By supervising the state institutions: through invigilation on the institutions like jails, juvenile homes etc, the court could bring gradual improvement in their administration. This has been characterized as creeping jurisdiction.
By fashioning new techniques of truth-finding: the court can take help of socio-legal commissions of inquiry or National Human Rights Commission or even CBI to inquire the human rights violations. This is called as investigative litigation.
Thus from the above words, it can be concluded that Public Interest Litigation is a procedure to put any public problem in the eyes of law. However, as it is said that nothing can be perfect hence there are some pros and cons. A person can misuse the right to file a PIL by filing petitions on another party over a personal vendetta. It is the most important job of the court to bifurcate such petitions from the true PILs which are acting as a voice of the aggrieved classes. Public Interest Litigation is the power given to the public by courts through judicial activism.
In the present time, PIL does require a complete rethink and restructuring. Overuse or abuse of PIL can only make it ineffective. Since PIL is an extraordinary remedy available at a reasonable cost to all citizens of the country, it ought to be used as a substitute for ordinary cases or as a means to provide justice to the problems faced by the public.

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It is no secret that many Americans consider the law a black art, and lawyers its conjurers. Some of this derives from simple unfamiliarity with our method and jargon. But much of the blame for public cynicism must be borne by lawyers and judges who have engaged in the most transparent sophistries to serve our own commercial interests. The common law anti-arbitration doctrine is a prime example. In Mississippi, it has been expressed this way: mere "private persons cannot by a contract to arbitrate oust the jurisdiction of the legally constituted courts." McClendon v. Shutt, 115 So.2d 740, 741 (Miss. 1959). Mel Brooks provided an apt translation of this tautology when Governor LePetomaine announced to his cabinet in "Blazing Saddles," "Gentlemen! We must protect our phony baloney jobs!"
Alas, the common law is no joking matter. Mississippi common law ignored arbitration agreements for 180 years, from 1817 until 1998. For the reasons explained below, this effectively prevented employers and non-union employees from contracting reliably to resolve their disputes extrajudicially. On April 2, 1998, with little comment or fanfare, the Mississippi Supreme Court removed the bar, in IP Timberlands operation Company, Ltd. v. Denmiss Corporation, 726 So.2d 96 (Miss. 1998). By way of saying good riddance, this paper lays out the indelicate truth about the common-law anti-arbitration doctrine, and explains what is now feasible.
I. Why Such Fear and Loathing of Arbitration at Common Law?
Before Denmiss, all published Mississippi Supreme Court opinions employed the logic that pre-dispute arbitration agreements are invalid because they divest our courts of jurisdiction. Its clear, however, that Mississippi was, as late as the Roaring Twenties, in step with the times, and that the anti-arbitration rule has a long, if undistinguished, ancestry.
According to Mr. Justice Hunts majority opinion in Insurance Co. v. Morse, 87 U.S. 445, 452 (1874), the House of Lords unanimously reversed prior law to hold, in the maritime charter case of Thompson v. Charnock, 8 T. R. 139 (1799), that a right of action having accrued, "an agreement to refer all matters in difference to arbitration is not sufficient to oust the Courts of Law or Equity of their jurisdiction." This and many similarly oblique explanations may indicate that our professional forefathers reversed prior law and invalidated pre-dispute arbitration agreements in order to forestall insurers use of arbitration agreements to cut lawyers out of claims adjustment. Whether or not thats so, jurists thereafter rarely deigned to explain the doctrines rationale, resorting instead to shorthand references to numerous, summarized authorities, with accompanying epithets, like "obnoxious to the law." The buzz words: arbitration would "oust courts of jurisdiction." Flaherty v. Metal Products Corp., 83 So.2d 9, 10 (Fla. 1955).
In the nineteenth century, Mr. Justice Story seems to have been alone in sensing the need to defend the anti-arbitration doctrine from higher ground. In his Commentaries On Equity Jurisprudence As Administered in England and America § 670 (3rd Ed., Little & Brown, Boston 1843), the Justice sought retroactively to ground the rule in judicial doubt "whether such [arbitration] tribunals possess adequate means of giving redress . . . ." Jurists, he said, rightly worry that the "regular administration of justice might be greatly impeded or interfered with by such stipulations if they were specifically enforced." See Morse, 87 U.S. at 452; Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 121 (1924) (quoting and relying upon Justice Storys treatise). "At all events, courts of justice are presumed to be better capable of administering and enforcing the real rights of the parties, than any mere private arbitrators, as well from their superior knowledge, as their superior means, of sifting the controversy to the very bottom." Justice Story wrote in an era when our courts required pleading by hyper-technical form and permitted trial by ambush. See generally George D. Warner, Warners Griffith Mississippi Chancery Practice (Rev. ed. 1991). How undue, relatively speaking, could the arbitration process have been?
[t]he mere executory agreement to submit [a matter to arbitration] is generally revocable, otherwise nothing would be easier than for the more astute party to oust the courts of jurisdiction. By first making the contract, and then declaring who should construe it, the strong could oppress the weak, and in effect so nullify the law as to secure the enforcement of contracts usurious, illegal, immoral, or contrary to public policy.
Perhaps Justice Story did not attack along this line because he acknowledged courts settled authority to vacate clearly erroneous arbitration awards. But so did the Georgia Supreme Court. And the cases suggest that arbitration was used primarily to resolve realty and commercial disputes between people and organizations of roughly equal bargaining power. So why the nascent class warfare rhetoric? Your author reads this as populist political cover for attorneys "nekkid" self interest.
Until Denmiss, the Mississippi Supreme Court carried on the "oust the courts" tradition, even permitting a party to breach an arbitration agreement while keeping the consideration paid for his promise to arbitrate. Jones v. Harris, 59 Miss. 214, 215-16 (1881). See also Machine Products Co v. Prairie Local Lodge No. 1538, 94 So.2d 344, 348-50 (Miss. 1957) (affirming dismissal of unions common law suit to enforce arbitration clause of collective bargaining agreement). We ignored scholars polite suggestions that the doctrine may be idiocy produced by professional inbreeding. As Yale Dean Wesley Sturges put it in his 1953 Mississippi Law Institute address, under Mississippis unadulterated form of the rule, a recalcitrant party to an arbitration agreement may "fish with hope for a favorable award in a common law arbitration, but when he comes to doubt that the arbitrator will go in his favor, he may, if he wishes to do so, revoke by the notice." Wesley A. Sturges, Arbitration and Award, 25 Miss. L.J. 181, 183 (1954). So, a doctrine probably designed to protect barristers turf in 18th century England ruled in Mississippi two centuries later. Trade unionists, it seems, are the second most fervent protectionists.
II. Choice of Law Was the Only Clear Way Out.
Until Mississippi law was changed, Mississippians who wished to contract reliably to arbitrate their employment disputes had to choose other law. They could provide that another states law would govern their contract. Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 619 So.2d 908, 914-15 (Miss. 1993) (agreement, including arbitration clause, between Mississippian and corporation doing business here, properly designated New York law as governing for all substantive purposes, but party seeking arbitration waived that right by first litigating.). Alternatively, or in addition, they were best advised to draft their agreement with an eye toward enforcement under the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq. (1925).
[a] written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
9 U.S.C. § 2 (1925). In doing so, Congress exercised the full extent of its power to regulate interstate commerce. Allied Bruce-Terminix Companies., Inc. v. Dobson, 115 S.Ct. 834, 841 (1995). Therefore, one hoping for FAA enforcement of an arbitration agreement has an easy first step. Almost every one is employed "in commerce." It is enough that the employment involves transmission of salary checks across state lines, or use of the U.S. Mail, or use of public telephone lines. See Arce v. Cotton Club of Greenville, Inc., 883 F. Supp. 117, 119-20 (N.D. Miss. 1995).
Until recently, the second step was a doozy. Section 1 of the Act broadly defines the "maritime transactions" and "commerce" to which the FAA applies, then ends with these words: "but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." 9 U.S.C. § 1 (1925). Some courts read this as if the sentence ended with the word "employment," effectively barring FAA application to any employment contract containing an arbitration clause. Arce, 883 F. Supp. at 119-20. Some legislative history supports this view. In several cases, the Fifth Circuit Court of Appeals was able to avoid the issue because the arbitration agreement was collateral to, but not contained in, an employment agreement and, therefore, not subject to the Section 1 exclusion. See Alford v. Dean Witter Reynolds, Inc., 939 F.2d 229, 230 (5th Cir. 1991); Williams v. CIGNA Fin. Advisors, Inc., 56 F.3d 656, 659-60 (5th Cir. 1995). Then, in Rojas v. TK Communications, Inc., 87 F.3d 745, 748 (5th Cir. 1996) (ordering arbitration of Title VII claims), the Fifth Circuit held "that § 1 is to be given a narrow reading." To read it broadly, said the Court, is to delete by judicial fiat the illustration that employment contracts of seamen and railroad employees fall outside the FAA. Instead, the Court adopted the majority view that the FAA applies to all except those groups and others actually engaged in the movement of goods across state lines. Since Rojas, the Fifth Circuit has applied the same analysis to Title VII, ADA and ADEA claims. Miller v. Public Storage Management, Inc., 121 F.3d 215, 218 (5th Cir. 1997).
Some continue to advise employers that the question is sufficiently debatable that it may turn on who appointed the reviewing judge. When feasible, they continue to make employment dispute arbitration agreements collateral to, but not part of, employment contracts.
They will also note that the reviewing judge might not be appointed. He or she might be elected. This is because an FAA claim for enforcement of an arbitration agreement does not present a federal question over which a United States District Court has subject matter jurisdiction. Consequently, "a party seeking to enforce rights created by the FAA must do so in state court unless federal jurisdiction is independently established by the allegations of the plaintiffs own complaint or unless the case is already in federal court." Prudential-Bache Sec., Inc. v. Fitch, 966 F.2d 981, 989 (5th Cir. 1992).
Finally, the draftsman should note that any effort to enforce a pre-dispute agreement to arbitrate employment disputes must survive allegations that the agreement is an unconscionable contract of adhesion by which the employer seeks to evade discovery, bar claims, and restrict the remedies of his oppressed employees. The burden of proof is on the party resisting arbitration. Graef v. Chemical Leaman Corp., 106 F.3d 112, 117 (5th Cir. 1997). And, the FAA requires arbitration of a claim of fraud in the inducement, adhesion or unconscionability directed to the employment contract which contains an arbitration clause. Rojas, 87 F.3d at 749. Nevertheless, litigants should recognize that the Gilmer line of cases favoring FAA enforcement of employment dispute arbitration agreements stands in stark contrast to the line of cases rejecting an employees obligation to try his civil rights claims through his unions arbitration process. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 51-57 (1974); Darby v. North Mississippi Rural Legal Services, Inc., 154 L.R.R.M. 3060, 3061-62 (N.D. Miss. 1997) (union-represented lawyer not required to arbitrate his ADA claim). The rationale of Gardner-Denver is that union-directed arbitration is not a trustworthy forum for resolving individual employees statutory claims. Employers should not expect enforcement of a process which appears untrustworthy or employer-dominated on its face. Thus, an employer may not use a private arbitration agreement to bar timely statutory claims as untimely under the agreement. Kramer v. Smith Barney, 80 F.3d 1080, 1084-85 (5th Cir. 1996). Nor will a court enforce a pro-employer award made in plain disregard of applicable law. Montes v. Shearson Lehman Brothers, Inc., 128 F.3d 1456, 1458-60 (11th Cir. 1997). However, the possible admission of hearsay will not bar enforcement. Graef, 106 F.3d at 117. And, the arbitration agreement need not comply with the Older Workers Benefit Protection Act in order to provide an appropriate forum for adjudication of federal age discrimination claims. Williams, 56 F.3d at 660-61. The arbitration agreement need not exclude claims which are deemed inappropriate for arbitration under state law. Miller, 121 F.3d at 218 (holding that FAA applies to arbitration of Texas workers compensation retaliation claim, contrary Texas law not withstanding).
The right to enforce an arbitration agreement is waivable, and waiver may be inferred from an apparent election to litigate a claim or defense in court. Williams, 56 F.3d at 661-62 (CIGNA did not waive right to arbitration by first moving therefor after removing action, filing motion to dismiss, moving to stay proceedings, answering, asserting counterclaim and exchanging discovery); Cox, 619 So.2d at 913 (waiver found where defendant, party to arbitration agreement, first sought arbitration eighteen months after suit was filed, as things began to go badly in pre-trial motions and discovery). A party to an arbitration agreement may not arbitrate some of his available claims and then litigate other claims which he could have asserted in the arbitral forum. Southern Constructors Group, Inc. v. Dynalectric Co., 2 F.3d 606, 610 (5th Cir. 1993) (rejecting what Judge Wiener called the "blind-hog-occasionally-finds-an-acorn" approach to litigation).
Absent waiver, 9 U.S.C. § 3 (1925) provides for a stay of pending litigation upon proof that the parties agreed to arbitrate the underlying claim or claims. However, dismissal is appropriate when the arbitration agreement so provides, or when all claims asserted in the litigation are subject to arbitration. See Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1163-64 (5th Cir. 1992).
In short, the only significant obstacle to Mississippians ability to contract reliably for arbitration of employment disputes was, and still is, the prospect that Mississippi judges, harboring the common laws hostility to arbitration generally, will ignore the FAA, and that permissive interlocutory appeals will prove unavailing. State law litigation of employment disputes is on the rise. Astute counsel for employment plaintiffs suing Mississippi employers often choose to abandon or recharacterize federal claims in order to avoid removal of actions filed in Mississippi courts. By doing so, they also keep any arbitration enforcement issues in the local forum. If that forum is hostile to arbitration, the law might prove a dead letter. This problem was not just theoretical, and Denmiss may yet be found inadequate solution, unless the Mississippi Supreme Court grants a mandamus petition or two to make the point.
On October 25, 1945, Denkmann Lumber Company, which later assigned all rights to Denmiss Corporation, executed agreements with International Paper Corp. and Southern Kraft Timberland Corp.( a division of International Paper, which subsequently assigned its rights to IP, which then assigned its rights to IP Timberlands Operating Co.), in which Kraft leased approximately 140,000 acres of Mississippi land and 95,000 acres of Louisiana land. The Mississippi agreement stated that in consideration of $1,000,000 cash paid by Kraft, and a further sum of $1,250,000, Kraft would receive a ninety-nine year lease. The additional sum of $1,250,000 could be paid immediately in cash or a sum equal to the total price of the timber estimated to be on said lands by a cruise made in the manner provided in the agreement could be substituted. The agreement authorized the timber cruise to be made by a certain firm from Arkansas. If, however this firm was not available, the agreement provided for each party to nominate one arbitrator and then these arbitrators were to nominate a third arbitrator, and these three were to select another firm to complete the timber cruise. In addition, if the two original arbitrators were unable to agree upon the third arbitrator, then the agreement provided for one of the Judges of the United States District Court for the State of Mississippi to so designate.
At any time between January 1, 1986, and December 31, 1995, to purchase all of said lands, not theretofore released from it, at a price to be fixed by three arbitrators to be named at that time--one by Denkmann, it successors and assigns, one by Kraft, its successors and assigns, and the third by the two so named; or in case they shall be unable to agree upon said third arbitrator, said third arbitrator shall be named upon application by either party by one of the Judges of the United States District Courts for the State of Mississippi, after notification to the other party of intent to apply to such judge for such appointment, given in writing at least thirty (30) days in advance of such application, such amount so fixed to be paid upon execution and delivery of the deed conveying such lands, with warranty as in other instance.
In 1960, the Mississippi Legislature decided to create the Ross Barnett Reservoir and wanted to purchase 21,320 acres of the land leased to IP. At this time, Denkmann Lumber Co. shareholders, who were now shareholders in Denmiss Corp., received a letter revealing this information and reminding them that IP held these lands under a long term lease that still had eighty-five years to run. The letter further stated that the shareholders did hold a reversionary interest in the land at the end of the lease term. After some negotiation, these Denkmann distributees received $10 per share for their reversionary interests, and conveyed a warranty deed subject to the lease. Further, in a later letter, another agent for the distributees informed them that it would be impossible to establish a true value for the interests traded for stock since they were all reversionary. Several letters were written during this period that referred to the lease being "paid-up." One particular letter referred to IPs right to exercise the purchase option between 1985-1995, and informed the distributees that IP would "be in the drivers seat" with respect to the fact that IP would not be "offering" the current market value of the lands that it could have the use of through 2044.
On November 20, 1985, Denmiss sent IP a document titled "Notice of Default," in which Denmiss alleged numerous violations of the 1945 agreement, one of which was that the second purchase option, which was to begin on January 1, 1986, was unenforceable. IP originally filed suit in U.S. District Court, Middle District of Louisiana, on August 15, 1986 to confirm its property rights under the agreement, however a 1990 U.S. Supreme Court decision destroyed the diversity jurisdiction and the case was dismissed. Then on March 13, 1990 IP filed suit against Denmiss in the Leake County Chancery Court. On August 15, 1990, Denmiss filed suit against IP in Hinds County Circuit Court. Upon motion, the Leake County Chancery Court transferred suit to the Hinds County Chancery Court, which subsequently transferred to the Hinds County Circuit Court.
On March 31, 1992, IP exercised the purchase option under the Mississippi agreement and named Russell Milliken as its arbitrator pursuant to the purchase option to fix the purchase price. IP contended there was "no vagueness or uncertainty" about the meaning of the option, and performance of the option would terminate Denmisss claims for breach of contract. On September 3, 1992, the circuit court ruled that the purchase option was definite and would be enforced, and denied Denmisss motion to dismiss. On September 4, 1992, Denmiss agreed to proceed with the arbitration provision pursuant to the lease agreement, but declared that the agreement would not serve as a waiver of its earlier position. Denmiss named William C. Humphries as its arbitrator. IP subsequently filed a motion to compel arbitration that was denied by Judge James E. Graves, Jr. Judge Graves did not release the basis of his opinion, but stated that the provision in the purchase option concerning arbitrators was merely an appraisal provision that required appraisers to fix the value of the lands as of the time of the appraisal.
Upon additional evaluation of the contract clause in question and considerable examination of relevant case law and theory, this Court determines that arbitration has indeed been completed by way of the appraisal process. Three appraisers were chosen in compliance with the contract clause of the 1945 agreement and this Courts previous orders. Two of the three appraisers agreed upon a fixed price of the lands in question and thus a price to exercise the option has been properly set. Defendants essentially contend that they were not given an opportunity to present evidence or challenge the decision of the appraisers in a hearing. Clearly, they viewed the process as an arbitration process as evidenced by the request for an evidentiary hearing.
Judge Graves concluded by holding that the purchase price of the property would be set at $38,500,000.
This Court hereby overturns the former line of case law that jealously guarded the courts jurisdiction. Again, we expressly state that this Court will respect the right of an individual or an entity to agree in advance of a dispute to arbitration or other alternative dispute resolution.
Mississippi case law has not construed an arbitration provision to have had contemplated appraisal. Arbitration provisions are now recognized to be valid even before a dispute arises.
The Court noted that arbitration was used in one other provision in the contract; the provision that allowed Kraft to pay either $1,250,000 or pay the value determined by a timber cruise conducted by the named firm or one chosen by three arbitrators. Under this provision of the agreement, the use of the term "arbitrators" cannot be reconciled with the use of "appraisers". Although, arbitrators often are not limited to such a narrow decision as choosing another firm of timber estimators, the selection of an impartial and fair firm of estimators would be important to both Denkmann and Kraft. Thus, the use of the term arbitrators in this provision suggested that the parties did, in fact, contemplate arbitration. These parties would not have chosen appraisers to choose an estimator. The term arbitrators inherently includes the investigation and procedures as applied by arbitrators. The Court concluded that it was possible that the parties intended that the three arbitrators conduct a hearing, hire an appraiser(s) if they wanted and then fix the price of the lands. Therefore, the Court held that the provisions in the contract unambiguously called for arbitrators in the truest sense of the word and that the agreement was an agreement to arbitrate.
The Court then addressed the issue of whether or not the Federal Arbitration Act applied to the contract at issue. The Court acknowledged that the Arbitration Act creates a body of substantive law that is applicable in both state and federal courts. Stating that doubts as to the availability of arbitration must be resolved in favor of arbitration, the Court determined that the timber industry meets the minimum threshold of affecting or bearing upon interstate commerce, and thus initiating the Federal Arbitration Act. After stating that Mississippi case law regarding arbitration and the Federal Arbitration Act are consistent with one another, the Court declined to disturb an agreement that knowledgeable and experienced parties freely had entered. The Court further held that under the Act, the sole function of courts is to determine whether the claim is referable to arbitration and, once that decision is made, the courts may not delve into the merits of the case.
Justice McRae, joined by Justice Sullivan, concurred with the majoritys decision to reverse and remand to the Circuit Court of Hinds County, but dissented with the decision that the Federal Arbitration Act was applicable. Justice McRae argued that the contract at issue did not involve interstate commerce, since the lease only included land in Mississippi counties. Agreeing that the 1945 contract did unambiguously call for arbitration, Justice McRae concluded that the arbitration provisions of Miss. Code Ann. §11-15-1 (1972) were applicable instead. Justice McRae further disagreed with the majoritys decision to overrule those cases which "jealously guarded the courts jurisdiction" over arbitration cases.
Denmiss reached the Court with the FAAs applicability undisputed, if the Court found that the agreement required arbitration, rather than apprisal. Nevertheless, and arguably by dicta, the Court used Denmiss to reverse Mississippis tradition of common law hostility to pre-dispute arbitration agreements. This suggests strong support for this alternative forum for civil disputes.
Since Denmiss, the Mississippi Supreme Court has taken two opportunities to extend or to clarify its strong support of arbitration agreements. In Americrete, Inc. v. West Alabama Lime Co., 758 So. 2d 415, 418 (Miss. 2000), the Court held to prior opinions that arbitrators have no duty, independent of an arbitration agreement, to explain their awards. However, a Chancellor reviewing an arbitration award has a duty to make findings and conclusions so as to provide a basis for appellate review. In Smith Barney, Inc. v. Henry, So. 2d , 2001 WL 26466 (Dkt. # 1998-CA-01218-SCT, January 11, 2001), the Court held that the beneficiaries of a deceased party to an arbitration agreement are bound thereby. As a matter of law, the Court ruled, death of a party does not extinguish the duty to arbitrate claims within the agreements scope. The agreement in question expressly bound "heirs, executors, successors, administrators . . . ."
The Fifth Circuit Court of Appeals has issued three significant arbitration opinions since Denmiss. In Subway Equipment Leasing Corporation v. Forte, 169 F.3d 324 (5th Cir. 1999), the Court ruled that a franchisor did not waive arbitration when (a) two of its corporate affiliates sued franchisees for breach of equipment and real estate leases, or (b) franchisor encouraged affiliates to file petitions for the franshisees involuntary bankruptcy. However, said the Court, the stay of litigation obtained by the franchisor in seeking to enforce the arbitration agreement also must stay the affiliates claims in litigation. In Williams v. CIGNA Financial Advisors Inc., 197 F.3d 752 (5th Cir. 1999), the Court held that an ADEA plaintiff did not prove, as required, that an adverse arbitration award showed "manifest disregard" for the applicable law. Nor did the plaintiff show, as alleged, that his obligation to pay half the costs of the arbitration had substantially prejudiced the prosecution of his claim. In Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524 (5th Cir. 2000), the Court affirmed the application of equitable estoppel to require arbitration of a tortious interference claim, because the claim required contract interpretation and the contract required that questions of interpretation and enforcement be resolved by arbitration. It mattered not, said that Court, that the litigant demanding arbitration was not a contract party.
Mississippi federal judges have published nine significant arbitration opinions since Denmiss. Mississippi Insurance Managers, Inc. v. Providence Washington Insurance Company, 72 F. Supp. 2d 689 (S.D. Miss. 1999) held that an arbitration clause in an agreement survives the agreements termination with respect to disputes which arose during the life of the agreement. Patterson v. Red Lobster, 81 F. Supp. 2d 681 (S.D. Miss. 1999) denied enforcement of an employers dispute arbitration policy because the dispute arose before the policy was implemented and the plaintiff employees had demonstrated that they did not intend to be bound thereby. American Family Life Assurance Company of Columbus v. Anderson, 77 F. Supp. 2d 759 (S.D. Miss. 1999), revd wout pub. op., 228 F.2d 410 (5th Cir. 2000), applied the Colorado River discretionary abstention doctrine to dismiss an employers suit to enforce an arbitration agreement because the employer had first filed the same claim in Hinds Circuit Court, and that Courts ruling was imminent. In Herrington v. Union Planters Bank, 113 F.Supp.2d 1026 (S.D. Miss. 2000), the Court enforced an arbitration requirement found in a credit card statements notice of amendment. Acceptance was implied from continued use of the card after receipt of the notice. Borrowers were required to arbitrate Real Estate Settlement Procedures Act (RESPA) claims against lenders and brokers in Blount v. National Lending Mortgage Corporation, Inc., 108 F. Supp. 2d 666 (S.D. Miss. 2000) and Smith v. Equifirst Corporation, 117 F. Supp. 2d 557 (S.D. Miss. 2000). In each case, the Court ruled that the borrowers had failed to demonstrate that the arbitration agreement or the arbitration process was procedurally or substantively unconscionable. The Court issued similar opinions in Bank One, N.A. v. Coates, 2001 WL 12866 (S.D. Miss. 3:00cv671LN, January 2, 2001) (installment purchase of home satellite system) and in Pridgen v. Green Tree Financial Servicing Corporation, 88 F. Supp.2d 655 (S.D. Miss. 2000) (installment purchase of mobile home). The result was the same in Raesly v. Grand Housing, Inc., 105 F. Supp. 2d 562 (S.D. Miss. 2000), with one exception: all claims were referred to arbitration except the written warranty claim arising under the Magnuson-Moss Warranty Act, because that Act expressly bars binding arbitration of such disputes.
Mississippis common law hostility to arbitration was an antiquated embarrassment which encouraged perverse lawyering and judging. Nevertheless, thanks to the Federal Arbitration Act, it was avoided in many cases by Mississippians who wished to contract reliably to resolve their employment disputes by arbitration. The Mississippi Supreme Court has now sided with the FAA, in substance. If the Court grants mandamus petitions to compel trial court respect for arbitration agreements, employers and their non-union employees may agree reliably to cut their lawyers take.


14:48 - 3) Continuing in the field of expertise upon entering the U.S.
One of the most frustrating problems in any immigration practice is turning down good clients. For the business-immigration side of my practice, this occurs regularly in EB-1 Extraordinary Talent cases when the client presents some good evidence of national and international awards and acclaim in their field but falls short of the stringent requirements for this visa. For me this mostly happens for athletes, but also for those in the entertainment field and other areas.
This typically is the case for older clients, where they present great documents showing success and awards…but those document being from 10 years earlier. Some of them have transitioned from playing the sport as an athlete to becoming a coach/trainer or sports broadcaster, or sometimes a musician has changed from a performing artist to producer or teacher. The transition could mean that although they were once able to obtain Lawful Permanent Residency in the U.S. through the EB-1 program, their current facts may give them difficulties.
The first time I ran into this problem was when I first started practicing immigration law and I wasn’t aware of the issues presented when a client had not sustained their ability in a particular field after having moved on or evolving into other areas of that field. In this instance, I submitted the case for a former award winning martial art athlete that was now a full-time trainer. On the Form I-140, I simply stated that the job title was “Martial Artist” but provided evidence of both athletic success and coaching success. The USCIS sent me back a very polite Request for Evidence (or RFE) saying that I needed to choose: either the Beneficiary was an athlete or a coach. He could not be both for these purposes. Luckily in that case my client had established himself as a stronger coach than he ever was as a player and I dodged a bullet in this nuanced area of Employment-Based Immigrant Visas.
I most recently dealt with this issue during a case consultation I had was with a former athlete that won his last international award in 2007, but had not had noteworthy success as an athlete from that time until his retirement in 2012. After retiring from playing, he made the transition to coaching. He was in the process of working his way up to the top of that field, recently becoming the national coach for his team. But he wasn’t happy when I told him that I didn’t think he could use his history as a player, and that his current coaching was probably not enough yet to show sustained success to the level needed to be a strong EB-1 candidate.
Today I am going to analyze some case history to help practitioners through this murky area. This issue must be coming up a lot since I see it so many times in AAO decisions and when other immigration attorneys come to me for consultations and guidance about their cases. This information will also help your judgment of which cases to take on based on case history.
I will begin by doing a general overview of the pertinent regulation, going over two recent AAO decisions touching upon this issue and then providing guidance and tips on the three important areas of the 2nd part of the two part analysis of an EB-1 case.
The First part of the analysis is to show that the alien has extraordinary ability in the sciences, arts, education, business, or athletics through extensive documentation. Showing evidence of one great award like an Olympic medal does this, or satisfying 3 of the 10 criteria listed in the regulation.
(ii) They have sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.
Also it must be shown that the Beneficiary (or Petitioner, if self-petitioning) is seeking to enter the U.S. to continue work in the area of extraordinary ability, and that the alien’s entry in the U.S. will substantially benefit prospectively the U.S.
My analysis today will be focused of this second prong of the Kazarian analysis.
I want to first get into the recent AAO decision in Matter of K-S-Y-. This case discussed how an individual could demonstrate EB-1eligibility during a career transition from competing as an athlete to coaching the next generation of athletes. In this case the Beneficiary had once had great success as a Judo athlete and competitor but was now a coach. The case was still approved despite the transition.
In the final merits determination, the totality of the evidence was considered. The AAO said that the Beneficiary has demonstrated a long, successful, and recent career as a professional judo athlete at the highest level of national and international competition. But defining the cognizable area of extraordinary ability or expertise was complicated when the Beneficiary is transitioning to another phase of his or her career. Though the Beneficiary demonstrated extraordinary ability as a judo athlete in this case, the Petitioner listed on the Form I-140, that his proposed employment in the United States was as judo coach. In a personal statement, it was indicated that he planed to open a judo academy, train promising young players, and eventually coach an American judo team in the Olympics.
The question presented in this case was whether - and if so, how - a petitioner's area of extraordinary ability or expertise may properly encompass both athletic competition as well as coaching other athletes.
In its decision, the AAO cited the USCIS Adjudicator's Field Manual (AFM), saying it provided an analytical footpath by which a petitioner may transition from athlete to coach and yet remain within his or her area of expertise as such: In general, if a beneficiary has clearly achieved recent national or international acclaim as an athlete and has sustained that acclaim in the field of coaching/managing at a national level, adjudicators can consider the totality of the evidence as establishing an overall pattern of sustained acclaim and extraordinary ability such that it can conclude that coaching is within the beneficiary's area of expertise.
Also, note that where the beneficiary has had an extended period of time to establish his or her reputation as a coach beyond the years in which he or she had sustained national or international acclaim as an athlete, depending on the specific facts of the case, adjudicators may place heavier, or exclusive, weight on the evidence of the beneficiary’s acclaim as a coach or a manager.
The success of this case was because the athlete (here a Judo expert) obviously had a great career as an athlete, but the AAO though that the Beneficiary’s athletic acclaim was recent enough. Less than a year before submitting this Petition, the Beneficiary had placed second in national competitions and was a member of his country’s national team. He filed the petition in this case within seven months of his last major competitive achievement. So the closeness of filing and last competition was a key factor in its approval.
To support his top-coaching claim, the petitioner provided evidence that he trained judo athletes preparing for the 2014 Asian Games and Commonwealth Games, the 2016 Olympic games, and other international competitions soon after retiring as a player. These considerations supported a finding that the beneficiary’s extraordinary ability and sustained acclaim as a judo athlete extended to his work as a judo coach.
The beneficiary also had educational degrees in coaching, licensing for coaching, wrote about his field, and coached a university team. These preparatory steps taken by the Beneficiary throughout his career as an athlete further supported a finding that coaching was within his area of expertise. Importantly, the case does not make clear how long the time between fields can be. In this case the official coaching position was short-term, but the Beneficiary was able to provide documentations supporting his build up to a top coaching position.
Alternatively, in the recent EB-1 case of Matter of H-W-, a Table Tennis Coach’s appeal was dismissed. Here, the petitioner had left the proposed “area of employment box” on Form I-140 as blank, but within the brief had listed his area of expertise simply as “table tennis.” The RFE by the Director said that coaching and competing were not the same thing. The Director’s denial said that the Beneficiary’s coaching history was weak, but the Beneficiary did show a one-time major achievement award as an athlete, satisfying the first prong of an EB-1 adjudication. But the Petitioner's most recent accomplishment as an athlete predated the filing of the petition by approximately 10 years. Thus the evidence did not confirm that the Petitioner sustained his acclaim as an athlete through the date of filing.
Case law and regulations have established that competitive athletics and coaches rely on different sets of skills and in general are not in the same area of expertise. The AAO has recognized the existence of a nexus between competing and coaching or training. But that it would be too speculative to assume that every extraordinary athlete's area of expertise includes coaching. To resolve this issue, the following vague balance is sometimes appropriate. In a case where an alien has clearly achieved recent national or international acclaim as a competitor and has sustained that acclaim as a trainer at a national level, they can consider the totality of the evidence as establishing an overall pattern of sustained acclaim and extraordinary ability such that it can conclude that training is within the petitioner's area of expertise.
The first thing to do in these cases is to control the narrative of the job title within their field of sustained achievement (and what that job will be after entering the U.S.) by choosing the right position title on Form I-140 and in the cover letter. According to the case of Lee v. INS., viewing competitive athletics and coaching or training as separate areas of expertise has been upheld in Federal Court. For example, in the principal case of Lee v. Ziglar, the court held that a very successful Korean baseball player could not get an approved EB-1 since his success was not through coaching. The Beneficiary in that case was a lower level baseball coach for a major professional U.S. team at the time of filing the Petition, but was still denied despite massive success as an athlete in his home country. So it is key that practitioners pick a job title within the field of expertise that the person is best known for and is still doing.
But note that the USCIS Director had been called out for using semantics about the language used when defining a job position, as in the approved 2005 AAO decision, where the Petitioner listed his position as a Squash “professional”. The Director said the facts showed success as a player and as a coach, but not as a “Professional.” The AAO found that making a distinction based on this terminology was inappropriate and the case was approved. However (in my opinion), the Beneficiary’s coaching experience was weak: The Beneficiary had coached students that won national and international tournaments. But these were junior teams and he was not the head coach. Other students he coached competed in under 17 championships, or national women’s over 30 competitions, not professionals at their prime. But there was some other work history and experience that helped push this case towards an approval.
Another dispute about the job title and how specific it should be was in GRIMSON v. I.N.S. The Director had rejected a hockey player that received acclaim for playing the specific hockey position of an “enforcer.” The case made its way to the District Court, which found that the Director simply rejected the notion that a hockey enforcer can have extraordinary ability. The court found that the Petitioner had presented evidence sufficient to demonstrate that he is currently among the top players in the world at what he does and had reached the very top of his field of endeavor. The court concluded that the decision to reject plaintiff's role and unquestioned ability as an enforcer was without rational explanation.
As discussed earlier, in Matter of H-W-, the coach had won a worthy one-time award as an athlete, but that award was won 10 years before the filing that petition. The decision said that even if it was found that the Petitioner established eligibility as an athlete, because the Petitioner intends to work in the US as a coach or trainer, he must demonstrate that his area of expertise includes coaching. In 2012, the AAO released a denial of a Karate Practitioner and Coach where it found that the Petitioner’s most significant accomplishments predated the filing of his petition by 15 or more years.
As discussed in the most recent AAO decision of the Judo player, a particular timeframe within which the transition from competing to coaching being deemed sufficiently recent to allow evidence of previous athletic acclaim has not been established. But in that case they approved a mixed athlete/coach petition that was filed only 7 months after the Beneficiary’s last competition as an athlete.
In Russell v. INS a petitioner met the "extraordinary ability" standard as a hockey athlete but was now retired. He had not indicated any plans to continue working in the area of professional hockey in the United States. The case was denied since the Petitioner was no longer playing in his field.
In another important EB-1a case, the Director on its own narrowed the possible field of future work related to the alien’s approved area of extraordinary talent. The Federal District Court decision of Buletini v. INS, overruled the “AAU,” in its decision to deny a distinguished doctor, concluded that [e]ven if the petitioner (here a doctor) could be said to have risen to the very top of his field based on these accomplishments, the petitioner has not explained how these accomplishments are related to the future practice of medicine at a clinic in Detroit. It was found that it couldn’t be concluded that the petitioner has provided clear evidence that he has the prospect of continuing work in the United States related to the particular area in which he claims to have extraordinary ability. However, the District Court found that the AAU's concern that plaintiff will not continue work in the sciences is irrational in light of the clear evidence that plaintiff intends to continue working in the medical profession. The AAU acknowledged that the petitioner intended and expected to "practice medicine at a clinic in Detroit." But the court held that the regulation does not require the alien to continue work on the specific topic or topics of research for which the alien has previously gained notoriety. The court found that the AAU abused its discretion by limiting the characterization of plaintiff's field to the narrow topics on which plaintiff has previously done research.
Part 6 of the Form 1-140 is entitled '"Basic Information About the Proposed Employment'" and requests details regarding a petitioner's intended work. The Petitioner left this section of the form blank. He did not submit a personal statement regarding his intended future employment, an employment contract, or other materials regarding this requirement. The Director's request for evidence (RFE) asked for items regarding the Petitioner's intended employment and included specific examples of suitable documents. Despite this specific request, the Petitioner does not indicate. even on appeal, in what capacity he will work in the United States. Based on the totality of the record, it is unclear whether the Petitioner intends to work in the United States as a dancer, a choreographer, or an instructor. The Petitioner did not submit sufficient initial evidence of extraordinary ability in any of these roles. The two satisfied criteria relate to the Petitioner's experience as a dancer. The Petitioner's filings suggest, however. that he has transitioned in his professional career from a dancer to an instructor and choreographer. The Petitioner's "'work book" indicates that he stopped dancing for in 2013. On the Petitioner's Form G-325. Biographic Information. he specified that his only employment since 2009 has been as a self-employed choreographer. A letter dated June 7, 2014. from . owner of in Pennsylvania, affirms that the Petitioner is the instructor for a children's dance program that takes place at the gym two nights per week. In generaL we consider dancing, choreographing. and instructing to be different areas of ability. As a result, even if the Petitioner were able to establish his extraordinary ability as a dancer, instructing or choreographing would not be considered within the same area of expertise. See Lee v. Ziglar, 23 7 F. Supp. 2d 914 (N.D. Ill. 2002). There are limited circumstances. however, in which we allow an individual to transition from one role to another and be considered within the same area of expertise. See Adjudicator's Field Manual (AFM) ch. 22.2(i)(l )(C) (allowing a transition from athlete to coach in the case of recent acclaim as an athlete and evidence of coaching at the national level). In this case, however, the Petitioner has not demonstrated an overall pattern of sustained acclaim and extraordinary ability that extends to either his work as a choreographer or instructor. such that we might consider one of them to be within the same area of his expertise. See id.
...these documents do not substantiate any particular level of ability attained by the Petitioner as a choreographer. Lastly, the Petitioner has given letters showing he has been employed in the United States teaching dance at The letter from students' parents expressing gratitude for the Petitioner's instruction does not confirm a pattern of sustained acclaim extending from the Petitioner's career as a dancer to instructing. as contemplated by the AFM. See id. As a result. the evidence does not reflect a sufficient nexus between dancing, choreography, and instructing to consider any of the two within the same area of expertise.
 SIDE NOTE: Svetlana VISINSCAIA, Plaintiff, v. Rand BEERS, et al., Defendants. Civil Action No. 13–223 (JEB) United States District Court, District of Columbia. December 16, 2013 – Note that the USCIS argued that it is only bound by Kazarian in the 9th circuit in a 2013 case. That court did not decide on that issue.
 SIDE NOTE: On appeal, the Petitioner states that a position on the national judo team is effectively the most difficult association membership for a judo athlete to obtain, particularly in Korea, which has the third-most Olympic medals in judo of any nation. The Petitioner was a member of the Korean national judo team in 2000, 2004, 2005, 2006, 2007, 2008, 2011, and 2012. Letters from Olympic medalists and refer to training with the Petitioner at the national training center. In addition, the record shows that the Petitioner placed first, second, or third in selection matches that determine who would be on the national team. Only those with the highest level of performance made the team, and that selection was performed by judo judges at the national level.
 SIDE NOTE While 8 C.F.R. § 204.5(h)(3)(ii) expressly references a plurality of "associations in the field which require outstanding achievements of their members," we construe this criterion broadly as inclusive of a singular "association." A narrower interpretation could preclude individuals, who in fact clearly have extraordinary ability in their field, from establishing eligibility if their field is one in which only a single such association, no matter how distinguished, exists. See, e.g., Buletini v. INS, 860 F. Supp. 1222, 1230-31 (E.D. Mich. 1994) (single award satisfies "prizes or awards" criterion at 8 C.F.R. § 204.5(h)(3)(i)).
 SIDE NOTE: about substituting student award: Chapter 22.2(i)(l )(A) of the APM provides that a foreign national "who is an Olympic coach whose athlete wins an Olympic medal while under [his] principal tutelage would likely constitute evidence comparable to that in 8 CPR 204.5(h)(3)(v)," the criterion requiring original contribution of major significance.
 Moreover, in the documentation in support of coaching was unclear from the evidence if the petitioner single-handedly trained his athletes or instead trained them in a collaborative manner with other coaches and the significance or prestige of the awards or prizes presented to the athletes the Petitioner had trained.


In United States ex. Rel. Wood v. Allergan, Inc., No. 10-CV-5645 (S.D.N.Y.), Relator John Wood brought FCA claims against Allergan, Inc. (Allergan) alleging that Allergan provided free drugs to physicians to induce the physicians to prescribe Allergan drugs to their patients, most of whom were Medicare and Medicaid recipients. However, Wood was not the first relator to bring FCA claims against Allergan – two prior actions were pending under seal when Wood filed his complaint (as well as a first amended and second amended complaint). By the time the Wood complaint was unsealed, the prior two actions had been dismissed. The government decided not to intervene, and Wood subsequently filed a third amended complaint. Thus, there was a pending action when Wood filed his complaint but not when Allergan sought dismissal under the first-to-file rule.
The FCA’s first-to-file rule states “[w]hen a person brings an action under [the FCA], no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.” 31 U.S.C. § 3730(b)(5). Allergan filed a motion to dismiss on several grounds, including that the Wood complaint violated the first-to-file rule because two prior actions were pending when Wood initially filed his claims. Notably, the statute of limitations had expired on most of Wood’s claims while his case was under seal; thus, if the district court granted Allergan’s motion to dismiss and dismissed the action without prejudice, Wood would effectively be precluded from re-filing due to the expired statute of limitations.
The district court ultimately denied Allergan’s motion to dismiss. However, recognizing the divide among federal courts regarding whether a violation of the first-to-file rule could be cured by an amended pleading, the district required the parties to meet and confer to discuss whether an interlocutory appeal would be appropriate. Allergan subsequently moved for interlocutory certification of the court’s order, culminating in the Second Circuit’s recent decision to consider the issue.
1 United States ex rel. Carter v. Halliburton Co., 866 F.3d 199, 2017 U.S. App. LEXIS 13867, at *22 (4th Cir. 2017); United States ex rel. Shea v. Cellco P’ship, 863 F.3d 923 (D.C. Cir. 2017).
2 We wrote about the D.C. Circuit case.
3 See U.S. ex rel. Chovanec v. Apria Healthcare GRP Inc., 606 F.3d 361, 362 (7th Cir. 2010); U.S. ex rel. Gadbois v. Pharmerica Corp., 809 F.3d 1, 6 (1st Cir. 2015).


Before: ALDISERT* , ALARCON and RYMER, Circuit Judges.
In this action Alan Silva-Zamudio appeals his conviction and sentence for conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a) (1). We hold that, because Appellant waived his right to appeal as part of a valid written plea agreement, the plea agreement should be enforced and the appeal dismissed.
Appellant and another defendant were arrested for delivering five pounds of methamphetamine to an informant. Appellant then entered into a written agreement to plead guilty to conspiring to possess approximately 2.27 kilograms of methamphetamine with intent to distribute.
In that plea agreement, the parties agreed to "jointly recommend" a base offense level of 36 under the United States Sentencing Guidelines. The government further agreed to recommend three levels off for acceptance of responsibility and an additional one level downward departure "in the interest of justice," and to recommend 121 months, the minimum mandatory sentence of the guideline range. In return, Appellant agreed not to recommend any other departures and agreed not to appeal "unless the court imposes a custodial sentence greater than the high end of the offense level recommended by the government pursuant to this agreement." ECR 14-15. The court sentenced Appellant to 121 months in custody and five years supervised release.
The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1294(1) and 18 U.S.C. § 3742. The appeal was timely filed under Rule 4(b), Federal Rules of Appellate Procedure.
The major question for decision is whether this appeal should be dismissed because Appellant waived his right to appeal. We review de novo the validity of such a waiver. United States v. Buchanan, 59 F.3d 914, 916 (9th Cir. 1995), cert. denied, 1995 WL 624963. We review the district court's interpretation of the plea agreement for clear error. United States v. Floyd, 1 F.3d 867, 869 (9th Cir. 1993).
This court has consistently upheld the validity of waivers of appeal. See, e.g., United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991); United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1991), cert. denied, 112 S. Ct. 1488 (1992). In particular, an express waiver of the right to appeal is valid if knowingly and voluntarily made. United States v. DeSantiago-Martinez, 38 F.3d 394, 395 (9th Cir. 1992), cert. denied, 115 S. Ct. 939 (1995). So long as the sentence has been imposed in accordance with the plea agreement, no exception exists to the waiver. Bolinger, 940 F.2d at 480 (9th Cir. 1991).
In exchange for the Government's concessions in this plea agreement, defendant waives any right to appeal or to collaterally attack the conviction and sentence, unless the court imposes a custodial sentence greater than the high end of the offense level recommended by the Government pursuant to this agreement.
First, the district court could not have applied the safety valve provision, which requires "a sentence in accordance with the applicable guidelines," because the low end of the applicable guidelines range (here, 121 months) exceeds the statutory mandatory minimum, 120 months. See Violent Crime Control and Law Enforcement Act of 1994, 18 U.S.C. § 3553(f). Second, the district court was plainly aware of its discretionary options when it sentenced Appellant in accordance with the plea agreement and the presentence report. And third, there were no additional factors that the district court was required to consider.