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The State and Local Legal Center’s (SLLC) Supreme Court amicus brief in Los Angeles v. Patel, which IMLA joined, is all that you expect from an amicus brief…and more. It makes not one but all the usual amicus arguments: don’t rule that state and local governments can be sued for yet another thing, if you rule against the city in this case many other cities and states will be affected, and a ruling against the city will likely impact many similar but unrelated statutes and ordinance.
A Los Angeles ordinance requires hotel and motel operators to keep specific information about their guests and allows police to inspect the registries without warrants. Motel operators claim this ordinance is facially invalid under the Fourth Amendment. The Ninth Circuit agreed, because the ordinance fails to expressly provide for pre-compliance judicial review before police can inspect the registry.
The State and Local Legal Center (SLLC) filed a Supreme Court amicus brief in Los Angeles v. Patel arguing that Fourth Amendment facial challenges should be disfavored and that if the ordinance in this case is unconstitutional similar hotel registry ordinances across the country—and laws and ordinances requiring record keeping and inspection of other businesses—may be unconstitutional.
A facial challenge to the ordinance in this case requires a court to determine whether all searches that might be conducted pursuant to the ordinance are unconstitutional (as opposed to an as-applied challenge where the court would decide whether a particular search under the ordinance violates the Fourth Amendment).
In Heien v. North Carolina the Supreme Court held that a reasonable mistake of law can provide reasonable suspicion to uphold a traffic stop under the Fourth Amendment.
A police officer pulled over a car that had only one working brake light because he believed that North Carolina law required both brake lights to work. The North Carolina Court of Appeals, interpreting a statute over a half a century old, concluded only one working brake light is required.
When the vehicle’s occupants behaved suspiciously, the officer asked to search the car. They consented, and the officer found cocaine. The owner of the car argued that the stop violated the Fourth Amendment because driving with one working brake light doesn’t violate North Carolina law.
Last Friday the Supreme Court’s docket went from boring to big with the grant of just one case: King v. Burwell. The issue in this case is whether tax credits for low and middle income health insurance purchasers are available under the Affordable Care Act (ACA) if insurance is purchased on a federal exchange rather than a state exchange. Only 16 states and the District of Columbia have established exchanges.
The ACA makes tax credits available to those who buy health insurance on exchanges “established by the State.” The Internal Revenue Service (IRS) interpreted that language to include insurance purchased on federal exchanges too.
The Fourth Circuit in King v. Burwell upheld IRS’s interpretation, concluding that “established by the State” is ambiguous, when read in combination with other sections of the ACA, and could include federal exchanges. The “board policy goals of the Act,” persuaded the court that the IRS’s interpretation was permissible.
The implications of the Supreme Court ruling that health insurance purchased on federal exchanges is not eligible for subsidies is huge. Many people who want to buy insurance on the exchange would no longer be able to afford it without the subsidy. And many who don’t want to buy insurance, depending on their income, would no longer be subject to the individual mandate that penalizes people for not buying insurance. Similarly, large employers that don’t offer health insurance to fulltime employees would no longer have to pay a penalty.
On the same day in July a three-judge D.C. Circuit panel ruled opposite to the Fourth Circuit. The entire D.C. Circuit was going to rehear the case, but it has been asked to not rule in that case pending Supreme Court resolution of King v. Burwell.
Image courtesy of Flickr from Kjetil Ree (creative-commons license, no changes made).
Will Statutes of Repose Make a Come Back?
If preemption is your passion, this Supreme Court term has been a disappointment. CTS Corp. v. Waldburger is one of just two preemption cases this term. To the extent local governments benefit from decisions finding no preemption, this case is a victory. But practically speaking, it is probably a Pyrrhic one.
Justice Kennedy is better known for his rhetorical flair than his practical guidance. But his majority opinion in Town of Greece v. Galloway provides a roadmap local governments can follow to stay out of trouble when beginning city council meetings with a prayer.
Town of Greece resolves two issues: whether prayers must be nonsectarian and whether prayers before city council meetings are coercive.
In Heien v. North Carolina a police officer pulled over a car because he thought that North Carolina law required that motor vehicles have two working brake lights. It turns out the officer was wrong. The North Carolina Court of Appeals concluded that state law requires motor vehicles to only have one working brake light.
When the driver and the passenger offered different stories as to where they were going, the officer asked to search the vehicle. Consent was granted and cocaine was found.
This morning, the Supreme Court called for the views of the United States Solicitor General (“CVSG”) on whether the Court should grant cert in Comptroller of the Treasury of Md v. Wynne, No. 13-485. The case concerns how the dormant commerce clause limits local taxation.
The Court uses the CVSG procedure with respect to only about 10 petitions a year. It indicates at least some degree of interest: the chances of a cert-grant increase significantly in such cases.
IMLA and its partners filed the only amicus brief in the case, which we discussed here.

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The notice of the Administrator shall be deemed to be a finding under section 7410(a)(2)(H)(ii) of this title which requires a plan revision with respect to so much of the applicable implementation plan as is inadequate to prevent or eliminate the endangerment referred to in subsection (a) of this section. Any foreign country so affected by such emission of pollutant or pollutants shall be invited to appear at any public hearing associated with any revision of the appropriate portion of the applicable implementation plan.
This section shall apply only to a foreign country which the Administrator determines has given the United States essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given that country by this section.
Recommendations issued following any abatement conference conducted prior to August 7, 1977, shall remain in effect with respect to any pollutant for which no national ambient air quality standard has been established under section 7409 of this title unless the Administrator, after consultation with all agencies which were party to the conference, rescinds any such recommendation on grounds of obsolescence.
Section was formerly classified to section 1857d of this title.
1977—Pub. L. 95–95 completely revised section by substituting provisions establishing a mechanism for the Administrator to trigger a revision of a State implementation plan under section 7410(a)(2)(H) upon a petition of an international agency or the Secretary of State if he finds that emissions originating in a State endanger the health or welfare of persons in a foreign country for provisions calling for the abatement of air pollution by means of conference procedures.
1970—Subsec. (a). Pub. L. 91–604, §4(b)(2), inserted "and which is covered by subsection (b) or (c) of this section" after "persons".
Subsec. (b). Pub. L. 91–604, §§4(b)(3), (4), (5), 15(c)(2), redesignated former subsec. (d)(1)(A), (B), and (C) as (b)(1), (2), and (3), substituted "Administrator" for "Secretary" wherever appearing, and added subsec. (b)(4). Former subsec. (b), which related to the encouragement of municipal, State, and interstate action to abate air pollution, was struck out.
Subsec. (c). Pub. L. 91–604, §§4(b)(3), (6), 15(c)(2), redesignated former subsec. (d)(1)(D) as (c) and substituted "Administrator" for "Secretary" and "Secretary of Health, Education, and Welfare" wherever appearing and "subsection" for "subparagraph" wherever appearing. Former subsec. (c), which related to the procedure for the promulgation of State air quality standards, was struck out.
Subsec. (d). Pub. L. 91–604, §§4(b)(4), (6), (7), (8), 15(c)(2), redesignated former subsec. (d)(2) and (3) as (d)(1) and (2), in (d)(1) substituted "Administrator" for "Secretary" wherever appearing and "any conference under this section" for "such conference", and in (d)(2) substituted "Administrator" for "Secretary". Former subsec. (d)(1)(A), (B), and (C) were redesignated as (b)(1), (2), and (3), respectively, and subsec. (d)(1)(D) was redesignated as (c).
Subsec. (e). Pub. L. 91–604, §15(c)(2), substituted "Administrator" for "Secretary" wherever appearing.
Subsec. (f). Pub. L. 91–604, §15(c)(2), substituted "Administrator" for "Secretary" wherever appearing and "Environmental Protection Agency" for "Department of Health, Education, and Welfare".
Subsec. (g). Pub. L. 91–604, §§4(b)(9), 15(c)(2), substituted "Administrator" for "Secretary" and "subsection (c)" for "subparagraph (D) of subsection (d)".
Subsecs. (i), (j). Pub. L. 91–604, §15(c)(2), substituted "Administrator" for "Secretary" wherever appearing.
Subsec. (k). Pub. L. 91–604, §4(b)(3), (10), substituted provisions relating to compliance with any requirement of an applicable implementation plan or with any standard prescribed under section 7411 of this title or section 7412 of this title, for provisions relating to the enjoining of imminent and substantial endangerment from pollution sources.
1967—Subsec. (b). Pub. L. 90–148 substituted reference to subsec. (c), (h), or (k) of this section for reference to subsec. (g) of this section.
Subsecs. (c), (d). Pub. L. 90–148 added subsec. (c), redesignated former subsec. (c) as (d), inserted in par. (2) provisions for the delivery prior to the conference of a Federal report to agencies and interested parties covering matters before the conference, raised from three weeks to thirty days the required notice of the conference, and inserted provisions for notice by newspapers, presentation of views on the Federal report, and transcript of proceedings. Former subsec. (d) redesignated (e).
Subsec. (e). Pub. L. 90–148 redesignated former subsec. (d) as (e). Former subsec. (e) redesignated (f) and amended.
Subsec. (f). Pub. L. 90–148 redesignated former subsec. (e) as (f) and inserted in par. (1) requirement that all interested parties be given a reasonable opportunity to present evidence to the hearing board. Former subsec. (f) redesignated (g) and amended.
Subsec. (g). Pub. L. 90–148 redesignated former subsec. (f) as (g) and substituted reference to subsec. (d) of this section for reference to subsec. (c) of this section. Former subsec. (g) redesignated (h) and amended.
Subsec. (h). Pub. L. 90–148 redesignated former subsec. (g) as (h) and substituted reference to subsec. (g) of this section for reference to subsec. (f) of this section. Former subsec. (h) redesignated (i) and amended.
Subsec. (i). Pub. L. 90–148 redesignated former subsec. (h) as (i) and substituted reference to subsec. (f) of this section for reference to subsec. (e) of this section and raised the per diem maximum from $50 to $100. Former subsec. (i) redesignated (j).
Subsec. (j). Pub. L. 90–148 redesignated former subsec. (i) as (j).
Subsec. (k). Pub. L. 90–148 added subsec. (k).
1965—Subsec. (b). Pub. L. 89–272, §101(2), substituted "this title" for "this Act", which for purposes of codification has been changed to "this subchapter".
Subsec. (c)(1)(D). Pub. L. 89–272, §102(a), added subpar. (D).
Subsec. (d)(3). Pub. L. 89–272, §101(2), substituted "subchapter" for "chapter".
Subsec. (f)(1). Pub. L. 89–272, §102(b), designated existing provisions as cl. (A) and added cl. (B).
"(4) the United States and Canada have a tradition of cooperative resolution of issues of mutual concern which is nowhere more evident than in the environmental area.
"(b) It is the sense of the Congress that the President should make every effort to negotiate a cooperative agreement with the Government of Canada aimed at preserving the mutual airshed of the United States and Canada so as to protect and enhance air resources and insure the attainment and maintenance of air quality protective of public health and welfare.
"(c) It is further the sense of the Congress that the President, through the Secretary of State working in concert with interested Federal agencies and the affected States, should take whatever diplomatic actions appear necessary to reduce or eliminate any undesirable impact upon the United States and Canada resulting from air pollution from any source."


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Preservation lawyer, Michael Gruen, speaks about his decades long career and some of the significant cases he's been involved in, particularly In the Matter of Allison v. the New York City Landmarks Preservation Commission and Lutheran Church v. City of New York.
Michael Gruen has been involved in preservation related law for decades. He first became aware of historic preservation while living in Los Angeles when the fate of Watts Towers was being debated. In New York, he’s worked directly on preservation cases through the Municipal Art Society where he was a volunteer on the law committee, including such prominent cases such as Lutheran Church v. City of New York, and Penn Central Transportation Co v. City of New York. He also helped to draft the 1973 Amendments to the New York City Landmarks Preservation Law. More recently, he was involved in Stahl York Avenue LLC v. the City of New York, In the Matter of Allison v. the New York City Landmarks Preservation Commission, and the cases focused on Pier 55.

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BALTIMORE & O. R. CO.
Argued March 6 and 7, 1922.
Messrs. Frank E. Harkness and Rush C. Butler, both of Chicago, Ill., and John A. Howard, of Wheeling, W. Va., for appellant.
The distribution of coal cars in times of car shortage has been a fertile field of controversy. The subject has received much attention from Congress, the Interstate Commerce Commission and the courts. Definite rules for distribution were promulgated by the Commission; and they remained in force for many years. Among these was the so-called assigned car rule declared by the Commission in Railroad Commission of Ohio v. Hocking Valley Railway Co., 12 I. C. C. 398, and Traer v. Chicago & Alton Railroad Co., 13 I. C. C. 451, and sustained by this Court in Interstate Commerce Commission v. Illinois Central Railroad Co., 215 U. S. 452, 30 Sup. Ct. 155, 54 L. Ed. 280.1 As an incident of the war this rule was modified by the Railroad Administration acting in conjunction with the Fuel Administration, and the assignment of cars for railroad fuel was abandoned. When by the Transportation Act, 1920, provision was made for restoring the railroads to private control, section 1 of the Act to Regulate Commerce was amended, among other things, by inserting a paragraph numbered 12, which deals specifically with the distribution of coal cars. Act Feb. 28, 1920, c. 91, § 402, 41 Stat. 456, 476.
In June, 1920, the Lambert Run Coal Company, a West Virginia corporation, which owns and operates a mine in that state, brought, in the circuit court of Marion county, this suit against the Baltimore & Ohio Railroad Company, a Maryland corporation. The bill alleged that there was an acute car shortage; that the railroad had refused to make the distribution required by paragraph 12 of section 1 of the Act to Regulate Commerce, and in violation thereof distributed cars in accordance with its own rules 8, 9, and 10, set out in the margin2, and that this course was resulting in irreparable injury to plaintiff. The bill prayed that the railroad be restrained from observing these rules and that it be required to furnish cars in accordance with the established ratings.
Plaintiff then moved in the District Court for an interlocutory injunction. The defendant, insisting that the proceeding was one to stay an order of the Commission, objected to a consideration of the motion in the absence of two other judges as provided by Act Oct. 22, 1913, c. 32, 38 Stat. 208, 220 (Comp. St. § 998). Both this objection and the motion to dismiss were overruled by the District Judge; and an interlocutory injunction in accordance with the prayer of the bill was issued. From this order defendant appealed to the Circuit Court of Appeals for the Fourth Circuit. That court stayed the injunction pending the determination of the appeal, and later reversed the decree below with directions to dissolve the injunction and dismiss the bill. 267 Fed. 776. The reasons given by the Circuit Court of Appeals for its decision are, in substance, that the car distribution rule complained of appeared on uncontroverted facts to be that prescribed by the order of the Commission issued April 15, 1920; that this order was issued under paragraph 15 of section 1 of the Act to Regulate Commerce; that it was within the emergency powers there conferred; that the rights and duties prescribed by paragraph 12 of that section were not absolute, but were subject to suspension or modification by the Commission in case of emergency, as provided in paragraph 15; and that, therefore, the bill should have been dismissed. It added that the District Court erred in issuing the injunction for the further reason that, since the relief sought was to enjoin an order of the Commission, it could be granted only by a court of three judges.
The decree of the District Court was properly reversed; but we are of opinion that the Circuit Court of Appeals had no occasion to pass upon the merits of the controversy and that the direction should have been to dismiss the bill for want of jurisdiction and without prejudice. The rule of the railroad here complained of was that prescribed by the Commission. To that rule the railroad was bound to conform unless relieved by the Commission or enjoined from complying with it by decree of a court having jurisdiction. By this suit such a decree was in effect sought. The appellate court was therefore correct in holding that in such a suit an injunction of the District Court could be granted only by three judges.
To the situation here presented, cases like Healy v. Sea Gull Specialty Co., 237 U. S. 479, 35 Sup. Ct. 658, 59 L. ed. 1056, relied upon by appellant, have no application. For, while it is true that a plaintiff by his first pleading determines what right he will sue on and that the defenses, set up either anticipatorily by him or in due course by the defendant, cannot affect the jurisdiction when it depends on that right, yet the plaintiff may not, by alleging a frivolous claim or a fictitious situation, confer upon a court jurisdiction which, as determined by the plaintiff's real cause of action, it has not. The Fair v. Kohler Die Co., 228 U. S. 22, 25, 33 Sup. Ct. 410, 57 L. Ed. 716. And the vital interest of the United States was one which the plaintiff could neither ignore nor prejudice by indirection. Compare International Postal Supply Co. v. Bruce, 194 U. S. 601, 24 Sup. Ct. 820, 48 L. Ed. 1134; Naganab v. Hitchcock, 202 U. S. 473, 26 Sup. Ct. 667, 50 L. Ed. 1113; Goldberg v. Daniels, 231 U. S. 218, 34 Sup. Ct. 84, 58 L. Ed. 191; Louisiana v. McAdoo, 234 U. S. 627, 34 Sup. Ct. 938, 58 L. Ed. 1506. The District Court should therefore have dismissed the bill as soon as it became apparent that the suit was one to set aside an order of the Commission. Robinson v. Anderson, 121 U. S. 522, 7 Sup. Ct. 1011, 30 L. Ed. 1021; Excelsior Wooden Pipe Co. v. Pacific Bridge Co., 185 U. S. 282, 287, 22 Sup. Ct. 681, 46 L. Ed. 910; Devine v. Los Angeles, 202 U. S. 313, 338, 26 Sup. Ct. 652, 50 L. Ed. 1046. And the Circuit Court of Appeals, in remanding the cause to the District Court, should have directed a dismissal for want of jurisdiction and without prejudice.
See, also, Rail & River Coal Co. v. Baltimore & Ohio R. Co., 14 Interst. Com. R. 86; Hillsdale Coal & Coke Co. v. Pennsylvania R. Co., 19 Interst. Com. R. 356; In re Irregularities in Mine Ratings, 25 Interst. Com. R. 286; Coal & Oil Investigation, 31 Interst. Com. R. 193, 217; In re Assignment of Freight Cars, 57 Interst. Com. R. 760; Southern Appalachian Coal Operators' Association v. Louisville & Nashville R. R. Co., 58 Interst. Com. R. 348; Corona Coal Co. v. Southern Ry. Co. (D. C.) 266 Fed. 726.
'8. Private cars and cars placed for railroad fuel loading in accordance with the decisions of the Interstate Commerce Commission in Railroad Commission of Ohio et al. v. H. V. Ry. Co., 12 Interst. Com. R. 398, and Traer v. Chicago & Alton Railroad Co. et al., 13 Interst. Com. R. 451, will be designated as 'assigned' cars. All other cars will be designated as 'unassigned' cars.
See, also, Fidelity Trust Co. v. Gill Car Co. (C. C.) 25 Fed. 737, 738-740; Swift v. Philadelphia, etc., R. R. Co. (C. C.) 58 Fed. 858, 861; Summers v. White, 71 Fed. 106, 109, 17 C. C. A. 631; Auracher v. Omaha & St. L. R. Co. (C. C.) 102 Fed. 1, 2; Crowley v. Southern Ry. Co. (C. C.) 139 Fed. 851; Zikos v. Oregon Ry. & Nav. Co. (C. C.) 179 Fed. 893, 899; R. J. Darnell, Inc., v. Illinois Central R. Co. (C. C.) 190 Fed. 656, 658; Philadelphia & Reading Ry. Co. v. Sherman, 230 Fed. 814, 145 C. C. A. 124.


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Protecting your privacy is very important to us. The legal standards require comprehensive transparency regarding the processing of personal data. Only if the processing is comprehensible to you as the data subject, you are sufficiently informed about the meaning, purpose and scope of the data processing. Below we therefore inform you in detail about the way your data is handled when using this website and your rights regarding your personal data.
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During the years at issue, West Virginia imposed a gross receipts tax on wholesale sales of tangible property by out-of-state producers, but not in-state producers. The State Tax Commissioner upheld the tax assessed on sales by appellant National Mines Corp., rejecting National's claim that the tax was unconstitutional. Before National filed an appeal in the State Circuit Court, this Court, in Armco, Inc. v. Hardesty, 467 U.S. 638 , invalidated the State's tax scheme as discriminatory against interstate commerce. After the State Supreme Court of Appeals ruled, in another case, that Armco did not apply retroactively, the Circuit Court upheld the State's collection of the assessed taxes.
For the reasons stated in Ashland Oil, Inc. v. Carlyl, ante p. 916, Armco applies retroactively to the taxes assessed against National.
Petitioner National Mines Corp. (National) is principally engaged in the business of producing and selling coal. Among its other activities, National mines coal in Kentucky and Pennsylvania and sells it wholesale in West Virginia. During the period relevant here, West Virginia imposed a gross receipts tax on wholesale sales of tangible property. W.Va.Code 11-13-2c (1983). Local producers were subject to taxes on their production activities, but exempt from the tax on wholesale activities. 11-13-2.
On December 22, 1980, the State Tax Department of West Virginia assessed $475,345.02 in business and occupation tax (plus interest and penalties) for the period January 1, 1975, through December 31, 1979, on National's wholesale sales of coal in West Virginia. National filed a petition for reassessment, asserting that the tax violated the Due Process Clause [497 U.S. 922, 923] of the Fourteenth Amendment and the Commerce Clause of the Federal Constitution. The State Tax Commissioner upheld the assessment, concluding that the tax was fairly apportioned, that the measure of the tax was reasonably related to the benefits conferred by the State, and that the tax did not discriminate against interstate commerce.
A few days before National appealed to the State Circuit Court, this Court issued its opinion in Armco Inc. v. Hardesty, 467 U.S. 638 (1984), which held that the West Virginia business and occupation tax sought to be collected from petitioner was unconstitutional. National's action was held in abeyance while the West Virginia Supreme Court of Appeals considered a similar challenge to the state tax in light of Armco. See Ashland Oil, Inc. v. Rose, 177 W.Va. 20, 350 S.E.2d 531 (1986). After analyzing the retroactivity of Armco under a state law test that it considered to "follow closely the analysis employed by the United States Supreme Court in Chevron Oil Co. v. Huson, 404 U.S. 97, 106 -107 (1971),"177 W.Va. at 23, n. 6, 350 S.E.2d at 534, n. 6, the court concluded that Armco applied prospectively only. The State Supreme Court thus permitted the State to collect the gross receipts taxes due for fiscal years prior to the date of decision in Armco. 177 W. Va., at 25-26, 350 S.E.2d, at 536-537.
The State Circuit Court in this case followed Ashland Oil to uphold the State's collection of the assessed taxes. The West Virginia Supreme Court of Appeals refused to consider National's petition for appeal.
In its petition for certiorari to this Court, National contends, among other claims, that the state court erred in following Ashland Oil's nonretroactivity decision and allowing the State to enforce an unconstitutional tax statute. We agree. For the reasons stated today in Ashland Oil, Inc. v. Carlyl, ante p. 916, we hold that Armco applies retroactively under the reasoning of either the plurality or the dissent in American Trucking Assns., Inc. v. Smith, 496 U.S. 167 [497 U.S. 922, 924] (1990). Because the State Circuit Court failed to consider the constitutionality of the taxes assessed against National in light of our decision in Armco, we grant the petition for certiorari, reverse the judgment of the State Circuit Court, and remand for further proceedings not inconsistent with this opinion.

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A non-resident seller of a single item in an eBay auction can't be sued for breach of contract in the buyer's home state, according to a case decided this week by the Ninth Circuit Court of Appeals. In Boschetto v. Hansing, plaintiff, a resident of California, purchased a vintage Ford Galaxie from defendant, a resident of Wisconsin, through the eBay internet auction site. Plaintiff arranged for the car to be shipped to California, and found on inspection that it didn't fit the advertised description. He sued in California for breach of contract and fraud.
Defendant moved to dismiss for lack of personal jurisdiction in California. The district court held, and the Ninth Circuit agreed, that a single sale through eBay does not establish the "minimum contacts" with California necessary for personal jurisdiction there. The fact that eBay, as a conduit for the sale, could be viewed by anyone in the state does not alter the analysis.
The court acknowledged that the result might be different if defendant seller had used eBay as its primary marketing method and made regular sales there.
See our earlier reports on the link between the internet and personal jurisdiction here and here.
The Oregon Court of Appeals held yesterday in Snider v. Production Chemical Manufacturing, Inc., that an order denying a petition to compel arbitration must be appealed within 30 days of the order. In that case, the party seeking to arbitrate proceeded to a jury trial and appealed the arbitration issue after judgment was entered. Judge Robert Wollheim, writing for the court, held that the appeal was untimely and the Court of Appeals lacked jurisdiction. This result is mandated by the Uniform Arbitration Act, which Oregon adopted in 2003.
Last week, in Edwards v. Arthur Andersen, a unanimous California Supreme Court held that the state legislature has restricted the ability of employers to prevent employees from working for a competitor. As a result of the ruling, noncompetition agreements that do not fit into one of the California's statutory exemptions are void.
Edwards rejects a recent 9th Circuit finding that California's Business and Professions Code section 16600 contained a "narrow restraint" exception allowing companies to use noncompete agreements so long as the pacts restrict only "a small or limited part" of their employees' future ability to work. In rejecting the "narrow restraint" exception, the state supreme court noted that it is up to the legislature either to relax the statutory restrictions or to adopt additional exceptions to the prohibition-against-restraint rule under §16600.
California employers may still be able to prevent former employees from soliciting customers because California's Uniform Trade Secrets Act gives employers the right to protect certain company information, including, in some narrow circumstances, client lists. However, Edwards generally reaffirms the principle of employee mobility in California.
Edwards also discusses the permissible breadth of employee release agreements, holding that agreements in which employees release "any and all" claims do not waive statutory protections such as the employee indemnity protection of Labor Code section 2802. Accordingly, California employers should review their employment agreements to ensure they accomplish what is intended and are consistent with this decision.
Edwards affirms a 2006 Court of Appeal ruling; see our report on that opinion here.
On August 8, 2008, the Washington Department of Labor & Industries will issue a draft policy addressing the uncertainy created by the 2007 Washington State Supreme Court decision in Stevens v. Brink's Home Security regarding travel time in company vehicles. The draft policy is intended as a guide "in the interpretation and application of the relevant statutes, regulations, and policies and may not be applicable to all situations." The policy states that whether travel or commute time is compensable depends on the specific facts and circumstances of each individual employee, employer, and work week. If the travel or commute time is considered "hours worked" under the Washington statutes, then it is compensable. "Hours worked" means all hours when an employee is authorized or required by the employer to be on duty on the employer's premises or at a prescribed workplace. The policy lays out the three elements of the definition of "hours worked:"
3. on the employer's premises or at a prescribed workplace.
If any of the three elements is not satisfied, then the time spent driving in a company-provided vehicle is not considered "hours worked."
The policy states that "time spent driving a company-provided vehicle from the employers' place of business to the job site is considered hours worked. Time spent driving or riding as a passenger from job site to job site (if the job site is not at the employer's main business location) is considered hours worked." The policy further states that "time spent driving a company-provided vehicle during an employee's ordinary travel, when the employee is not on duty and performs no work while driving between home and the first or last job site of the day is not considered hours worked."
Employers should examine their personnel policies to be sure that employees have clear guidance regarding company vehicle use.
See our earlier post about the Brink's case here.
Almost exactly a year after we reported the Court of Appeals’ decision that payments to corporate directors are "wages" for the purpose of unemployment taxation, the Oregon Supreme Court reversed that decision. The Supreme Court held "that the legislature did not intend to include corporate directors, serving solely as directors, within the statutory definition of an ‘employee’ of a corporation for purposes of the unemployment tax, because directors are not ‘employed by’ the corporation in the same sense as other persons who provide ‘service for an employer*** for remuneration.’" The ruling brings Oregon law in line with federal tax law, under which directors serving in their capacity as directors are not "employees" and payments to directors are not wages for unemployment tax purposes.
You can access the Supreme Court’s Decision in Necanicum Investment Co. v. Employment Department here. To view our earlier report on the Court of Appeals decision, go here.
August 1, 2008 - Ernie Bootsma, chair of Ater Wynne's Emerging Business Group, will be the featured guest today on the innaugural show of StartUp Portland, a new business radio program for entrepreneurs, private investors and "those interested in getting into the game," according the show's website. The show is hosted by Ben Edtl, a local software entrepreneur and Ater Wynne client, who discusses the life and trials of the entrepreneur and interviews local guests on the front lines of emerging business and the local economy. StartUp Portland airs on KBNP/AM 1410 at 4 p.m. on Fridays. It is co-sponsored by Ater Wynne, the Oregon Entrepreneurs Network and 4/20 Design.


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D.C. Law Library - § 4–1371.14. Failure to make report.
↪ Chapter 13. Child Abuse and Neglect.
↪ Subchapter V. Child Fatality Review Committee.
↪ § 4–1371.14. Failure to make report.
§ 4–1371.13. Immunity from liability for making reports.
Chapter 14. Placement of Children in Family Homes.
§ 4–1371.14. Failure to make report.
Any person required to make a report under § 4-1371.12 who willfully fails to make the report shall be fined not more than $100 or imprisoned for not more than 30 days, or both. Violations of § 4-1371.12 shall be prosecuted by the Corporation Counsel of the District of Columbia, or his or her agent, in the name of the District of Columbia.
For temporary (90 day) addition of section, see § 14 of Child Fatality Review Committee Establishment Emergency Act of 2001 (D.C. Act 14-40, April 25, 2001, 48 DCR 5917).
For temporary (90 day) addition of section, see § 14 of Child Fatality Review Committee Establishment Legislative Review Emergency Act of 2001 (D.C. Act 14-82, July 9, 2001, 48 DCR 6355).
For temporary (225 day) addition of section, see § 2 of Child Fatality Review Committee Establishment Temporary Act of 2001 (D.C. Law 14-20, September 6, 2001, law notification 48 DCR 9090).

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Gerard Egan, Philadelphia, Pa., for intervenors Eugene Aaron, Beggy Abrams Charlotte Baumgarten Maurice Fox.
Steven M. Coren, Steven E. Berkowitz, Philadelphia, Pa., for Bay Cities National Bank.
J. Michael Baldwin, Deloitte Touche, Alan J. Davis, Ballard Spahr Andrews Ingersoll, Philadelphia, Pa., Gregg G. Laswell, Houston, Tex., Peter J. Deeb, Walter R. Milbourne, Miles Shore, Philadelphia, Pa., for Atlantic Financial Federal David Barr, Leslie Aitken and Raymond Gianinni.
David J. Stutman, Fox, Rothschild, O'Brien Frankel, Philadelphia, Pa., for Commerce Bank.
Edward F. Borden, Jr., Philadelphia, Pa., for Mark Phyllis Roseman. David C. Redford, John K. Spiller, Hoffman, Sutterfield Ensenat Bankston, Houston, Tex., for Commercebank.
JAMES McGIRR KELLY, District Judge.
Presently before the Court is Defendant Deloitte Touche's ("Deloitte"), formerly known as Deloitte, Haskins Sells, motion for summary judgment against the DiGiovannis, the Krumins, the Marcuccis, the Duffys, Dr. Goldman, Dr. Lemole and Mr. Heil, pursuant to Rule 56 of the Federal Rules of Civil Procedure. This court has subject matter jurisdiction over this action under 28 U.S.C. § 1331.
This action involves the Plaintiffs' investment in tax shelter, the Triad 1985-VII limited partnership offering by Triad American Energy, Inc. ("Triad"). Defendant Deloitte's involvement in Triad consisted of reviewing Triad's financial forecast and preparing an Accountants' Review Report. The reports were included in the Triad 1985-VII offering memorandum.
The Plaintiffs claim that Deloitte was negligent in misrepresenting and supplying certain false information and in failing to warn them of misrepresentations and omissions of material fact. Defendant Deloitte asserts that Plaintiffs in making their investments neither relied on the forecast nor on the Accounting Review Report.
Under Fed.R.Civ.P. 56(c), summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." This Court is required, in resolving a motion for summary judgment pursuant to Rule 56, to determine whether "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In making this determination, the evidence of the nonmoving party is to be believed, and the district court must draw all reasonable inferences in the nonmovant's favor. See id. at 255, 106 S.Ct. at 2513.
While the movant bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact, Rule 56(c) requires the entry of summary judgment "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Therefore, the party opposing the motion must come forward with "more than a mere scintilla of evidence in its favor" and "`cannot simply reassert factually unsupported allegations contained in its pleading.'" Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Anderson, 477 U.S. at 249, 106 S.Ct. at 2510 and Celotex, 477 U.S. at 325, 106 S.Ct. at 2553).
Defendant asserts that the claims against it are state common law claims governed by either Pennsylvania or Texas law. Pennsylvania and Texas have both adopted § 552 of the Restatement (Second) of Torts "Information Negligently Supplied for the Guidance of Others". See Browne v. Maxfield, 663 F. Supp. 1193, 1202 (E.D.Pa. 1987). The Restatement provides that a plaintiff must show false information, justifiable reliance, causation, and pecuniary loss. Id.
Defendant contends that the named plaintiffs did not rely on the Accountant Review Report in their investment decisions. Defendant asserts that the deposition testimony of each Plaintiff admits that there was no knowledge of Deloitte's involvement upon making their investment decisions.
In response, Plaintiffs assert that Pennsylvania law does not require Plaintiffs to prove direct reliance in order to maintain a fraudulent misrepresentation claim. Plaintiffs contend that they justifiably relied on the advice of their accountants, who in turn relied on the misrepresentations and omissions contained in the Accountant Review Report prepared by Deloitte.
We agree with Plaintiffs and find that direct reliance can be imputed through their relationships with their accountants. Direct reliance remains a requirement of common law claims. Peil v. Speiser, 806 F.2d 1154, 1163 n. 17 (3d Cir. 1986); see Rosenberg v. Digilog, 648 F. Supp. 40 (E.D.Pa. 1985). This requirement is satisfied where plaintiffs fall into the category of foreseeable users who rely on such reports for their intended business purpose. See Rosenblum v. Adler, 93 N.J. 324, 461 A.2d 138 (1983). It is not clear in what capacity this reliance must exist. This court finds the requirement to be satisfied where the plaintiffs' accountants have relied on the financial reports and thus advise their clients based on this information. But see Cammer v. Bloom, 711 F. Supp. 1264 (D.N.J. 1989).
It is foreseeable that the Accountants Review Report was created for the benefit of potential investors. It is also foreseeable that Plaintiffs, as lay investors, would seek the financial guidance of personal accountants.
The Plaintiffs admit that they did not rely on the Accountant Review Report created by Deloitte in rendering their decision to invest. However, Plaintiffs relied on the advice of their accountants. (Marcuccis' Dep. at 31, 36); (Krumins' Dep. at 60); (Goldman Dep. at 65); (Heil Dep. at 10, 36-37); (Lemole Dep. at 210-213); (Paul Duffy Dep. at 120, 129); (Barbara Duffy Dep. at 122). The personal accountants, acting as representatives of the Plaintiffs, relied on Deloitte's Accountant Review Report. (Rosenman Aff. ¶ 3), (Thomas Dep. p. 259.) It is in this capacity as financial representatives for the plaintiffs, that this Court finds the direct reliance requirement to be satisfied.
Accordingly, Deloitte's motion for summary judgment shall be DENIED.


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Thanks to Robert Thomas for posting the amicus briefs in support of the government agency in Koontz v. St Johns River Water Management District, No. 11-1447 (cert. granted Oct. 5, 2012). As I've mentioned, my colleague and I filed an amicus brief in support of the property owner. In it, we focused on how exactions law protects "property owners from a government’s extortionate leveraging of the police power to obtain benefits for which the government would otherwise have to pay for. The unconstitutional conditions doctrine provides this protection through both the Takings Clause and the Due Process Clause." The District failed to engage this argument at all. None of the amici address it convincingly.
As important, the doctrinal foundation of Nollan and Dolan – this Court’s doctrine of unconstitutional conditions – simply does not permit the application of their tests to the suggested conditions at issue in this case. As the first step in any unconstitutional conditions inquiry, a claimant must demonstrate that he or she is being asked to give up a clear constitutional right in exchange for a discretionary benefit. See, e.g., Speiser v. Randall, 357 U.S. 513, 518-19 (1958). In the takings context, that requires the claimant to show that the permit condition would be a per se taking if required by the government unilaterally. See Dolan, 512 U.S. at 384; Nollan, 483 U.S. at 831. However, none of the conditions proposed by the District constitutes a per se taking, and thus Mr. Koontz’s claim fails even this threshold requirement under both Nollan and Dolan. Furthermore, applying Nollan and Dolan outside the context of per se takings would once again blur the clear line that this Court drew between the Takings Clause and the Due Process Clause in Lingle v. Chevron, 544 U.S. 528 (2005), when it overturned Agins v. City of Tiburon, 447 U.S. 255 (1980), and reaffirmed the limited reach of Nollan and Dolan.
In contrast, the Due Process Clause provides a doctrinally sound and measured means for addressing governmental overreaching. It can be used to review abusive conditions without the contortions needed to fit monetary payments into Takings Clause jurisprudence. Moreover, due process’ more deferential review acknowledges the many private property protections that states already provide. It also promotes the policy of resolving land use disputes at the state and local levels. As Justice Alito explained, when reviewing an impact fee case while sitting on the Third Circuit, “[l]and use decisions are matters of local concern” and a federal court should not be a “zoning board of appeals." United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 402 (3d Cir. 2003).
Petitioner’s proposal to extend the Nollan/Dolan standards where government has denied a permit application and imposed no exaction is illogical, unworkable, and unnecessary." While it touches on the unconstitutional conditions doctrine as the basis for exactions law, it dismisses that basis as worthy of consideration: "It is undeniable the Nollan/Dolan standards involve a “special application” of this doctrine, Lingle, 544 U.S. at 547, but this case is more appropriately resolved by directly addressing the proper scope of the Nollan/Dolan standards, and the underlying rationales for these standards, rather than by resorting to abstract discussion of the unconstitutional conditions doctrine.
In short, the sound scientific and legal framework that bounds mitigation conditions requires a reasonable relationship between wetland functions lost due to permitted activity and wetland functions to be gained through wetland mitigation permit conditions. This required nexus between wetland functions lost and gained is essential to achieving “no net loss” of wetland functions and services.
The government’s denial of a development permit can be the basis for a Fifth Amendment claim for compensation under Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), but not under an exaction-takings theory. Similarly, the exaction-takings framework does not provide the appropriate analysis for a taking premised on the government’s conditioning of a permit on the expenditure of money.
The oral argument on January 15 is approaching quickly. Your humble correspondent will be in attendance. Before then, however, we'll see the property owner's reply brief next week. In the meantime, catch up on the previous briefs in this case in my archives.


The term "community referral services" means services provided under contract or through interagency agreements to assist families in obtaining needed information, mutual support and community resources, including respite care services, health and mental health services, employability development and job training, and other social services, including early developmental screening of children, through help lines or other methods.
The term "community-based and prevention-focused programs and activities designed to strengthen and support families to prevent child abuse and neglect" includes organizations such as family resource programs, family support programs, voluntary home visiting programs, respite care programs, parenting education, mutual support programs, and other community programs or networks of such programs that provide activities that are designed to prevent or respond to child abuse and neglect.
(C) have disabilities or chronic or terminal illnesses.
Such services shall be provided within or outside the home of the child, be short-term care (ranging from a few hours to a few weeks of time, per year), and be intended to enable the family to stay together and to keep the child living in the home and community of the child.
A prior section 208 of Pub. L. 93–247 was renumbered section 207 and is classified to section 5116g of this title.
Another prior section 208 of Pub. L. 93–247 was classified to section 5116g of this title prior to the general amendment of this subchapter by Pub. L. 103–252, §401(a).
2010-Par. (1). Pub. L. 111–320, §139(1), (2), redesignated par. (2) as (1) and struck out former par. (1). Prior to amendment, text of par. (1) read as follows: "The term 'children with disabilities' has the same meaning given the term 'child with a disability' in section 1401(3) or 'infant or toddler with a disability' in section 1432(5) of title 20."
Par. (2). Pub. L. 111–320, §139(2), redesignated par. (3) as (2). Former par. (2) redesignated (1).
Par. (3). Pub. L. 111–320, §139(2), (3)(A), redesignated par. (5) as (3) and inserted ", including the services of crisis nurseries," after "short term care services" in introductory provisions. Former par. (3) redesignated (2).
Par. (3)(A), (B). Pub. L. 111–320, §139(3)(B), substituted "child abuse or neglect" for "abuse or neglect".
Par. (3)(C). Pub. L. 111–320, §139(3)(C), substituted "have disabilities or chronic or terminal illnesses." for "have disabilities, chronic, or terminal illnesses."
Par. (5). Pub. L. 111–320, §139(2), redesignated par. (5) as (3).
2003-Par. (1). Pub. L. 108–36, §129(a), substituted "given the term 'child with a disability' in section 1401(3) or 'infant or toddler with a disability' in section 1432(5) of title 20" for "given such term in section 1401(a)(2) of title 20".
Pars. (3), (4). Pub. L. 108–36, §129(b), added par. (3) and struck out former pars. (3) and (4), which related, respectively, to family resource and support programs and outreach services.
For definitions of terms used in this section, see section 3 of Pub. L. 93–247, set out as a note under section 5101 of this title.


In this multi-part series, we will explore many areas of JOAs, from basic to advanced. In this first article, we will take a look at the basic purpose and function of a JOA.
Typically, the fee oil and gas estate is owned in several undivided fractional shares. These owners then execute oil and gas leases to multiple lessees, who then own the associated leasehold estate in undivided fractional shares. These lessees then often assign undivided fractional shares of those oil and gas leases to third parties. The result is that any given oil and gas property is typically concurrently owned by numerous cotenants. The parties may hold leases that cover various undivided interests in a single tract of land, or they may own leasehold interests in nearby tracts of land and wish to pool their interests together in order to drill a well.
What rights and obligations do these cotenants owe one another in their exploration and development activities? In Texas, any of the cotenants may drill for and produce oil and gas without the consent of the other cotenants. Patrick H. Martin and Bruce M. Kramer, Williams & Meyers, Oil and Gas Law Abridged Fifth Edition, §503 (LexisNexis Matthew Bender 2013). However, the entire dry-hole risk is borne by this operating cotenant, who must also account to the other cotenants for their share of production, less their proportionate share of the cost of drilling for, producing and operating the property. Common law principles are, unfortunately, not sufficiently clear as to which costs the operating cotenant is entitled to recover from the non-operating cotenants. Allen Cummings, The Joint Operating Agreement – The Basics, The State Bar of Texas Oil, Gas and Energy Resources 101, Chapter 4, October, 2012, Houston, Texas One commentator fittingly dubbed this the “Cotenant Problem.” Id. A joint operating agreement can solve this “cotenant problem,” and provide a contractual basis for parties to understand their rights and obligations. Id.
However, this is not to say that leasehold cotenants always have competing interests. Often times, oil and gas lessees will desire to include other parties in the exploration and development projects in order to share risks and raise capital. John Orban, Money in the Ground: Insider’s Guide to Oil and Gas Deals (4.4th ed. Meridian Press 2000). For example, many of the ongoing methods of raising money for the exploration and development of oil and gas properties involves the purchase and sale of undivided interests in the leasehold estate to investors. Id. Additionally, one of the most common methods of spreading the costs and risks of exploration, drilling a development is by selling or “farming out” undivided fractional leasehold interests in the oil and gas properties. Patrick H. Martin and Bruce M. Kramer, Williams & Meyers, Oil and Gas Law Abridged Fifth Edition, §503.2 (LexisNexis Matthew Bender 2013). In each of these scenarios, the parties involved will likely share common fundamental goals, and their respective interests are more or less aligned. Michael E. Curry, The Operating Agreement – After the Honeymoon, State Bar of Texas, 31st Ann. Oil, Gas & Min. L. Inst. (Apr. 2005). However, a joint operating agreement will provide these parties with a structure to handle future disputes, unanticipated differences, and points of contention that frequently develop. Id.
For the reasons described above, a JOA is typically entered into when more than one party holds title to the oil and gas leasehold estate in a prescribed geographical area. The standard Form 610 establishes a contractual basis for these multiple leasehold cotenants to operate the properties, jointly share costs and liabilities, and own equipment and production in proportion to their respective percentage of ownership and burdens. Hill v. Heritage Res., Inc., 964 S.W.2d 89, 109 (Tex.App.-El Paso 1997, pet. denied); Patrick H. Martin and Bruce M. Kramer, Williams & Meyers, Oil and Gas Law Abridged Fifth Edition, §503 (LexisNexis Matthew Bender 2013). The JOA describes the terms and conditions under which the operator is to conduct operations, such as drilling of the initial well, Form 610-1989, Article V.A. a voting mechanism for specifying future subsequent operations, Form 610-1989, Article VI.A. and how the costs for all such operations are to be paid. Form 610-1989, Article VII. The Form 610 covers a multitude of other matters, Williams & Meyers, supra note 4, at §503.2 including how the interests of the parties are to be calculated, Form 610-1989, Article III. how the parties will handle title examination and title issues, Form 610-1989, Article IV. and several issues related to future acquisitions and/or dispositions within the contract area. Form 610-1989, Article VIII.
Under a JOA, the leasehold cotenants appoint one party as “operator,” who is then has full control of conducting and directing all operations in the contract area, under the confines of the JOA. Form 610-1989, Article V. The remaining cotenants are then considered “non-operators,” who only retain indirect control of the operations in the contract area, such as voting on subsequent operations, electing whether to consent to subsequent operations, and certain inspection rights. See, e.g., Form 610-1989, Article VI.B.
Come Big or Stay Home, LLC v. EOG Resources, Inc.
Seagull Energy E & P, Inc. v. Eland Energy, Inc.
4. ↑ Patrick H. Martin and Bruce M. Kramer, Williams & Meyers, Oil and Gas Law Abridged Fifth Edition, §503 (LexisNexis Matthew Bender 2013).
6, 7, 9, 12. ↑ Id.
8. ↑ John Orban, Money in the Ground: Insider’s Guide to Oil and Gas Deals (4.4th ed. Meridian Press 2000).
10. ↑ Patrick H. Martin and Bruce M. Kramer, Williams & Meyers, Oil and Gas Law Abridged Fifth Edition, §503.2 (LexisNexis Matthew Bender 2013).
11. ↑ Michael E. Curry, The Operating Agreement – After the Honeymoon, State Bar of Texas, 31st Ann. Oil, Gas & Min. L. Inst. (Apr. 2005).
13. ↑ Hill v. Heritage Res., Inc., 964 S.W.2d 89, 109 (Tex.App.-El Paso 1997, pet. denied); Patrick H. Martin and Bruce M. Kramer, Williams & Meyers, Oil and Gas Law Abridged Fifth Edition, §503 (LexisNexis Matthew Bender 2013).
14. ↑ Form 610-1989, Article V.A.
15. ↑ Form 610-1989, Article VI.A.
16. ↑ Form 610-1989, Article VII.
18. ↑ Form 610-1989, Article III.
19. ↑ Form 610-1989, Article IV.
20. ↑ Form 610-1989, Article VIII.
21. ↑ Form 610-1989, Article V.
22. ↑ See, e.g., Form 610-1989, Article VI.B.
Thanks for the article. I look forward to reading the rest of the series on JOAs.
Thanks Michael! Hope all is well. We need to get Chris and meet up again some time.
Timely analysis , I loved the specifics ! Does someone know where my business can access a template NY DTF ST-140 example to use ?


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Tisman, G., Herbert, V., Go, L. T., Brenner, L.: “In Vitro Demonstration of Immunosuppression Without Bone Marrow Suppression by Alcohol and Bleomycin.” Clin. Res. 19:730, 1971.
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Herbert, V., Tisman, G., Go, L. T., Brenner, L.: “Test for Megaloblasiosis: The dUSuppression Test Using 125 IUdR.” Clin. Res. 20:490, 1972.
Tisman, G., Herbert, V., Go, L. T., Brenner, L.: “Human Serum Factor in Granulocyte DNA Regulation In Virto: Relation to Colony Stimulation Factor.” Clin. Res. 20:503, 1972.
Tisman, G., Herbert V., Go, L. T., Brenner, L.: “Effects on Human Bone Marrow of Cyclic AMP (CAMP), Theophyllinc and Prostaglandin (PGEI).” Clin. Res. 20:503, 1972.
Tisman, G., Herbert V, Edlis, H., Go, L. T., Brenner, L.: “Difference in DNA Metabolism in Tumor vs. Host Cells: Predicting Patient Response to Chemotherapy.” J. Clin. 51:98A, 1972.
Tisman, G., Herbert V., Go, L.T., Brenner, L.: “Alcohol and Infection: The Suppression by Ethanol of Human Myelopoiesis.” Amer. J. Clin. Nutr. 15:460, 1972.
Tisman, G., Engelberg, M., Bateman, J.: “Lymphocyte Immunoglobulin (Ig) Receptors and Mitogen Responsiveness: Aids in Determining Early Stage Lymphoproliferative Disease and Therapy.” Clin. Res. 21, 1972.
Tisman, G., Bateman, J., Marshall, G. J.: “Aggressive Immunocytoma-B Type: Possible Relation to Steroid Treated Autoimmune Disease.” American Soc. of Hematology Meeting Program. 347:149, 1972.
Tisman, G., Herbert, V.: “Effect of Lithium on Granulopoiesis.” American Soc. of Hematology Program. 233:111, 1972.
Tisman, G., Safire, G., Wu, S. G.: “Lithium Carbonate Stimulation Test in Blood Disorders.” Clin. Res. 23:103A, 1975.
Tisman, G., Safire, G., Wu, S. G.: “Lithium Carbonate Protection Against Cancer Chemotherapy Induced Leukopenia.” Clin. Res. 23:115A, 1975.
Tisman, G., Wu. S. G., Safire, G., Rodriguez, E.: “Measurement of B12 Binders in Cancer Patients.” Clin. Res. 23:283A, 1975.
Tisman, G., Wu, S. G., Safire, G., Rodriguez, E.: “A Study ofIn Vivo B12 Binders.” Clin. Res. 23:284A, 1975.
Tisman, G., Wu, S. G.: “Intralesional PPD for Therapy in Malignant Melanoma.” Proceedings of the American Association for Cancer Research (AACR). 16:204, 1975.
Breast Cancer." Clin. Res. 24:381A, 1976.
Tisman, G., Kellon, D.B., Wu, S.G., Safire, G.E.: "Failure of Lithium to Induce Leukocytosis in a Patient with Granulocytic Leukemia in Complete Remission.” Clin. Rcs. 24:322A, 1976.
Methotrexate.” Clin. Res. 24:550A, 1976.
Tisman, G., Hittle, T., Halley, J.: “Skin Inflammation Caused by Cancer Immunotherapy with Intradermal Connaught. Tice and Glaxo BCG.” Clin. Res. 25:412A, 1977.
Tisman, G., Wu, S.G., Hittle, T.: "Scrum Ferritin as a Parameter of Response to Cancer Chemotherapy." Clin. Res. 24:580A, 1977.
Tisman, G., Wu, S.G., Hittle, T., Stevens, T., fox, M.: “Treatment of Metastatic colon Cancer with 5-FU, MeCCNU, BCG and Leucovorin." Proceedings of the American Association for Cancer Research (AACR). 19:217A, 1978.
Malignancy." Clin. Res. 27:54A, 1979.
Adjuvant Therapy of Cancer, Tucson, Arizona, 1979.
Tisman, G., Isacoff, W.H., Drakes, T.: “Salvage of Breast Cancer Adjuvant Treatment Failures with High Dose Methotrexate and 5FU." Proceedings of the American Association for Cancer Research (AACR). 20:565, 1979.
Tisman, G., Wu, S.C., Strum, S.B. "Methotrexate Directed 5FU Incorporation into RNA of Tumor but NotNormal Bone Marrow Cells." Proceedings of the American Association for Cancer Research (AACR). 20:1061, 1979.
Tisman, G., Isacoff, W.H., Block, J.B.: “Treatment of Advanced Colorectal Carcinoma with High Dose Methotrexate (HD-MTX) Given Alone and in Combination with 5-Fluorouracil (5FU).” Proceedings of the American Society of Clinical Oncology (ASCO). 20:C-373, 1979.
Wu, S.G., Kosch, A., McNamee, L.J., Strum, S.B., Tisman, G.: “Short-Term Intra-Arterial Infusion of Cis-Platinum Diammine Dichloride (CPDD) for Regional Control of Cancer.” Proceedings of the American Society of Clinical Oncology (ASCO). 20:C-631, 1979.
Tisman, G., Kosch, A.: “Successful Control of Local Tumors with Intra-Arterial Infusions of Cis-Platinum Diammine Dichloride (CPDD). "The Western Association of Gynecologic Oncologists, Seventh Annual Meeting, 1979.
Tisman, G., Wu, S.G.: “Evaluation of a Four Hour (Short-Term) and Long-Term (Clonogenic) In Vitro Assay for Murine L1210, Human Tumor and Human Bone Marrow Cell Sensitivity to Drugs. “Program Human Tumor Cloning, Agenda for Workshop on Human Tumor Cloning Methods, 1980.
Tisman, G., Wu, S.G.: “Evaluation of the Human Tumor Stem Cell Assay in the Clinical Practice of Oncology.” Proceedings of the American Association for Cancer Research (AACR). 21:139, 1980.
Tisman, G., Wu, S.G., Tisman, N.: “Evaluation of Human Tumor Cell Sensitivity to Both Low and High Concentrations of Methotrexate (MTX).” Clin. Res. 29:065A, 1981.
Tisman, G., Wu, S.G., Tisman, N.: “The Clinical and Laboratory Evaluation of a Modified Tumor Stem Cell Assay for the Determination of Human Tumor Cell Sensitivity.” Clin. Res. 29:065A, 1981.
Tisman, G., Wu, S.G.: “The ‘Clonogenic Cluster’: An Interesting Laboratory Observation.” Proceedings of the American Association for Cancer Research (AACR). 22:236, 1981.
Tisman, G., Wu, S.G.: “The Clinical and Laboratory Evaluation of a Modified Tumor Stem Cell Assay For The Determination of Human tumor Cell Drug Sensitivity.” Proceedings of the American Society of Clinical Oncology (ASCO). 22:364, 1981.
Tisman, G., Hsu, M.Y.K.: “Clonogenic Clusters in Clonogenic Assays for Predictions of Chemotherapy Sensitivity.” Third Conference on Human Tumor Cloning, Tucson, Arizona, 1982.
Tisman, G., Neuman, D.: “Attempts to Quality Control and Standardize the Human Tumor Stem Cell Assay (HTSCA).” Third Conference on Human Tumor Cloning, Tucson, Arizona, 1982.
Tisman, G., Neuman, D.: “Attempts to Quality Control and Standardize the Human tumor Cell Assay (HTSCA).” Clin. Res. 30:070A, 1982.
Hsu, M.Y.K., Tisman, G., Neuman, D., Joseph, R.: “HTSCA in Cancer Chemotherapy Planing.” Proceedings of the American Society of Clinical Oncology (ASCO). 1:30, 1982.
Tisman, G., Neuman, D., Hsu, M.Y.K.: “Continued Studies With a Modified Clonogenic Assay.” Proceedings of the American Society of Clinical Oncology (ASCO). 1:31, 1982.
Neuman, D., Tisman, G., Dine, M.: “Attempts to Quality Control and Standardize the Human Tumor Stem Cell Assay (HTSCA).” Proceedings of the American Society of Clinical Oncology (ASCO). 1:31, 1982.
Tisman, G., Neuman, D., Hsu, M.Y.K.: “Studies of Clonal Heterogencity of Human Tumors in the Soft Agar Clonogenic Assay.” Proceedings of the American Association for Cancer Research (ARRCR). 23:139, 1982.
Tisman, G., Hsu, M.Y.K. and Neuman, D.: “The Human Tumor Stromal Cell Assay (HTSCA).” Clin. Res. 30:748A, 1982.
Tisman, G., Hsu, M.Y.K., Neuman, D.: “The Human Tumor Stromal Cell Assay: Confusion With the Human Tumor Stem Cell Assay.” Clin. Res. 30:748A, 1982.
Tisman, G., Hsu, M.Y.K., Neuman, D.: “Cis-Platunum Activity In Vitro Against Melanoma.” Proceedings of the American Society of Clinical Oncology (ASCO). 1983.
Tisman, G., Flener, V., Hsu, M.Y.K., Neuman, D., Buck, L., Tisman, N., Chakhmakhchian. H., Serena, D.: “Outpatient High Dose Cis-Platinum Continuous Infusion Chemotherapy.” Proceedings of the American Society of Clinical Oncology (ASCO). 3:27, 1984.
Tisman, G., Hsu, M.Y.K., Neuman, D., Buck, L., Tisman, N., Chakhmakhchian, H., Serena, D.: “Clonal Heterogeneity in Soft Agar Assay of Human Tumors.” Proceedings of the American Association for Cancer Research (AACR). 25:28, 1984.
Tisman, G., Flener, B., Jones, J., Buck, L.: “Possible Potentiation of Fluoropyrimidine Anti-Tumor Activity by Pteroylgutamic Acid (Folic Acid) and Cyanocobalamin (B12).” Clin. Res. 33:459A, 1985.
Tisman, G., Flener, V., Jones, M., Buck, L.: “Overcoming Colon Cancer Resistance to Hepatic Artery Infusional 5FUdR Chemotherapy with Folinic Acid.” Clin. Res. 33:459A, 1985.
Tisman, G., Flener, V., Jones, M., Buck, L.: “Continuous Subcutaneous Infusion of Cancer Chemotherapy for Ambulatory Patients.” Proceedings of the American Society of Clinical Oncology (ASCO). 4:47, 1985.
Tisman, G., Flener, V., Jones, M., Buck, L.: “Possible Enhancement of 5-Fluorouracil Clinical Activity by Large Doses of Pteroylglutamic Acid (Folic Acid).” Proceedings of the American Association for Cancer Research (AACR). 26:159, 1985.
Tisman, G., Flener, V., Jones, M.< Buck, L.: “Reestablishing Hepatic Tumor Arterial Perfusion with Urokinase.” Proceedings of the American Association for Cancer Research (AACR). 27:191, 1986.
Tisman, G., Nguyen, H., Buck, L.: “Development of Computer Software to Manage Chemotherapy Dosing and Evaluate Patient Response.” Proceedings of the American Society of Clinical Oncology (ASCO). 6:230, 1987.
Tisman, G., Flener. V., Jones, M., Buck, L.: “Sequential Methotrexate (MTX)-5FU-Leucovorin Plus Adriamycin-Cytoxan Alternating Chemotherapy as Adjuvant Chemotherapy for Breast Cancer.” Proceedings of the American Association for Cancer Research (AACR), 28:198, 1987.
Tisman, G., Van Antwerp, R.: “Treatment of the Myelodysplastic Syndrome of Refractory Anemia with Ringed Sideroblasts with Interferon 2 Alpha (Schering).” Proceeding of the American Society of Clinical Oncology (ASCO). 7:720, 1988.
Tisman, G.: “Intermediate Dose Thiotepa for Refractory Ovary Cancer.” Proceedings of the American Association for Cancer Research (AACR). Vol. 29:881, 1988.
Vu, T., Bateman, R., Flener, V., Tisman, G.: “The Parmacokinetic Parameters of High-Dose Leucovorin-FUdR I.V. Therapy Associated with Clinical Toxicity: Possible Modulation of 5-FUdR Pharmacokinetics by Leucovorin and Dipyridamole: Possible Enhanced Toxicity in B12 Deficiency.” Proceedings of the American Federation of Clinical Research. Vol. 37:862A, No. 3, 1989.
Tisman, G., Baca, L., Richards, S.: “Stressing the dU Suppression Test: An Easily Controlled Laboratory Model to Study Folate and B12 Metabolism of Human Immunocytes.” Clinical Research. Vol. 37:354A, No. 3, 1989.
Tisman, G., Vu, T., Bateman, R., Vanyo, L., Ramos, M: “Evaluation of a New, Sensitive, Peripheral Blood dU Suppression Test: Uncovering Occult Early Folate Deficiency.” Proceedings of the American Society of Hematology. Vol. 74:217A, No. 7, 1989.
Tisman, G., Vu, T., Bateman, R., Vanyo, L, Ramos, M.: “A Phase One Study of a New Anti B12 Therapy for Cancer Patients: Out-Patient Inhalation of N20; and a New Test to Monitor its Anti-B12 Activity: dU Suppression of Peripheral Blood Mononuclear Cells.” Proceedings of the American Society of Hematology. Vol. 74:306A, No. 7 1989.
Vanyo, L., Vu, T., Bateman, R., Conners, S., Tisman, G.: “New Laboratory Evidence Suggesting 5FUdR May Be A Better Chemotherapy than 5-FU When Modulated by Leucovorin.” American Society of Clinical Oncologist. Vol. 9:78, 1990.
Vu, T., Vanyo, L., Conners, S., Ramos, M., Tisman, G.: “Interactions Between Vitamin B12 and LiCl on Human Buffy Coat and L1210 Murine Leukemia Cells. Lithium is a Potent Modulator of Cellular Nucleotide Metabolism and Vitamin B12 Uptake.” In Press in The International Symposium on Present Status and Perspectives of Lithium in Biology and Medicine, European Academy, Nonwiler/Trier (Germany), 1990.
Vanyo, L., Vu, T., Amin, J., Conners, S., Ramos, M., Tisman, G.: “Lithium Enhancement of Vitamin B12 Transport in L1210 Murine Leukemia Cells.” Proceedings of the American Federation of Clinical Research, Vol. 38:775A, No. 3, 1990.
Vu, T., Vanyo, L., Conners, S., Amin, J., Ramos, M., Tisman, G.: “Hydroxocobalamin May Be A Potent Inhibitor of the de Novo Pathway of DNA Synthesis.” Proceedings of the American Society of Clinical Research, Vol. 38:777A, No. 3, 1990.
Tisman, G., Vu, T., Amin, J., Bateman, R., Vanyo, L.: “Measurement of B12 on Transcobalamin II (HoloTC II) Using Microfine Glass: Significance of Evaluating B12 Absorption Following Chemotherapy.” Proceedings of the American Society of Hematology, Vol. 76:187A No. 10 Supp. 1, 1990.
Vu, T., Amin, J., Ramos, M., Tisman, G.: “A New and Rapid Test to Measure differing Transcobalamin II Proteins: Significant Variations in Metastatic Liver Disease. A New Test to Quantitate Serum HoloTC II.” American Federation of Clinical Research. Vol. 39:32A, No. 1, 1990.
Tisman, G., Vu, T., Amin, J., Ramos, M., Flener, V.: “A new and Rapid Test to Measure B12 on Transcobalamin II Using Microfine Glass: Use In Evaluating Metastatic Liver Disease and B12 Depletion Following Chemotherapy.” Proceedings of the American Association for Cancer Research, (AACR) Vol. 32:1220, 1991.
Tisman, G., Vu, T., Amin J., Flener, V., Ramos, M.: “Laboratory and Clinical Evidence that Large Concentrations of Hydroxocobalamin Inhibit Tumor Cell Growth.” Proceedings of the American Society of Clinical Oncology (ASCO), Vol. 10:330, 1991.
Tisman, G., Vu, T., Amin, J., Ramos, M., Vanyo, L.: “Cancer Patients are Frequently in Negative Vitamin B12 Balance and Exhibit hyperhomocysteinemia” Proceedings of the American Federation for Clinical Research (AFCR) Vol. 39:667A, No. 3, 1991.
Tisman, G., Vu, T., Amin, J., Flener, V., Ramos, M.: “Correlating Toxicity and Tumor Response of Continuous 5-FU Intravenous Infusions by Measuring Serum 5-FU and Homocysteine Levels in Cancer Patients.” Proceedings of the American Federation for Clinical Research (AFCR) Vol. 39:668A, No. 3, 1991.
Tisman, G., Vu, T., Amin, J., Vanyo, L., Flener, V., Ramos, M.: “Measurement of Serum Homocysteine Levels Using TLC: Correlation Between Pretreatment Homocysteine Levels and Toxicity Following Chemotherapy in Cancer Patients.” Presentation to American Society of Hematology (ASH) 33rd Annual Meeting, 1991.
Tisman, G., Vu, T., Vanyo, L., Amin, J., Malkin, S.: “Methyltetrahydrofolate Depletion Causes Decreased Cellular Transport of Cobalamin. Pure Folate Depletion May Cause Secondary Intracellular B12 Depletion.” Presentation to American Society of Hematology (ASH) 33rd Annual Meeting, 1991.
Tisman, G., Vu, T., Amin, J., Ramos, M.: “Hydroxyurea Administration Causes Decreased Levels Of Circulating Holotranscobalamin II.” Submitted for presentation to the American Society of Clinical Oncology (ASCO) May 17-19, 1992.
Tisman, G., Vu, T., Amin, J.: “Hydroxyurea Decreases Holotranscoblamin II: Possible Case of a Drug Self-Modulating Its Direct Effects On DNA Synthesis By Causing Secondary B12 Deficiency.” Submitted for presentation to the American Association of Cancer research (AACR) 1992.
Tisman, G., Amin. J., Vu, T., Bateman, R., Luzko, G., Cordts, B., Malkin, S.: “Measurement of Red Cell B12 and HoloTCII Levels: The Key to the Evaluation of True B12 Deficiency” Submitted for Presentation to American Society of Hematology (ASH) 34th Annual Meeting 1992.
Amin, J., Vu, T., Brenner, M., Ramos, M., Flener, V., Tisman, G.: “Chemotherapy Associated Occult Tissue Depletion of B12 in Cancer Patients, Impact on Mucosal and Hematological Toxicity.” Submitted for Presentation to American Association for Cancer Research, Inc. (AACR) 1993.
Perry Shen, Leland Foshag, Richard Essner, Glenn Tisman, Guy Gammon, Hejing Wang, Robert Elashoff, Donald Morton. “Postoperative Adjuvant Therapy Using a Polyvalent Melanoma Vaccine Improves Overall Survival of Patients with Primary Melanoma.” John Wayne Cancer Institute, Santa Monica, CA. Proceedings ASCO p 2059 1999.
Vinay M. Shah, Hanh T.H. Nguyen, Mercedita Ramos, Glenn Tisman: “The Value of Immediate Determination of C-Reactive Protein in the Hematology-Oncology Clinic.” Glenn Tisman, MD. A Medical Corporation, Whittier, CA., Blood, Vol. 104, #11, November 2004, Abstract# 3801 p 36b-37b.
Ashley S. Plant, Glenn Tisman, MD.: “Frequency of Combined Deficiencies of Vitamin D and Holotranscobalamin in Cancer Patients.” Glenn Tisman, Medical Oncology, Whittier, CA, Blood, Vol. 104, #11, November 2004, Abstract# 3674 p 4b.
Hanh T.H. Nguyen, Vinay Shah, Mercedita Ramos, Glenn Tisman, MD.: “Holotranscobalamin Deficiency and Hyperhomocysteinemia Are Common in Newly Diagnosed Cancer Patients.” Glenn Tisman, Medical Oncology, Whittier, CA, Blood Vol. 104, #11, November 2004, Abstract #3675 p 4b-5b.
Tisman, G., Herbert, V., Go, L.T. and Brenner, L. “Inhibition by Penicillamine of DNA and Protein Synthesis by Human Bone Marrow.” Pro. Soc. Exp. Biol. & Med. 139:355-363, 1972.
Herbert, V. and Tisman, G. “Effects of Deficiencies of Folic Acid and Vitamin B12 on Central Nervous System Function and Development.” In Biology and Brain Dysfunction (G.E. Gaull, Ed.) Plenum Press, New York 1:373-393, 1972.
Herbert, V. and Tisman, G. “Pinpointing Nutritional Anemias.” Consultant 12:117-119, 1972.
Tisman, G. and Herbert, V. “Studies of Effects of Cyclic Adenosine 3’, 5’ Monophosphate in Regulation of Human Hemopoiesis In Vitro.” 9:86-91, 1973.
Tisman, G. and Herbert, V. “Marked Immunosuppression with Minimal Myelosuppression by Bleomycin In Virto.” Blood XLI, 721-726, 1973.
Tisman, G., Herbert, V. and Rosenblatt, S. “Evidence that Lithium Induces Human Granulocyte Proliferation: Elevated Serum Vitamin B12 Binding Capacity In Vitro and Granulocyte Colony Proliferation In Vitro.” Brit. J. Hemat. 24:767-771, 1973.
Tisman, G., Herbert, V., Go, L.T. and Brenner, L.T. “Role of Cyclic AMP in Regulation of Hemopoiesis.” In Vitro 9:86-91, 1973.
Herbert, V., Tisman, G., Go, LT. And Brenner, L.T. “The dU Suppression Test Using II25UdR to Define Biochemical Megaloblastosis.” Brit. J. Hemat. 24:713-723, 1973.
Tisman, G., Herbert, V. and Edlis, H. “Determination of Therapeutic Index of Drugs by In Vitro Sensitivity Test Using Human Host and Tumor Cell Suspensions.” Cancer Chemotherapy Rep. 57:11-19, 1973.
Herbert, V., Tisman, G., Go, L.T. and Brenner, L.T. “B12 Dependence of Cell Uptake of Serum Folate: An Explanation for High Serum Folate and Cell Folate Depletion in B12 Deficiency.” Blood 41:465-469, 1973.
Tisman, G. “Lithium Carbonate Protection Against Drug-Induced Leukopenia in Lymphosarcoma Patients.” IRCS (Research on Cancer, Clinical Pharmacology and Therapeutics; Hematology) 2:1509, 1974.
Herbert, V. and Tisman, G. “Hematologic Effect on Alcohol,” Ann. New York Acad. Sci. 252:307-315, 1975.
Tisman, G., Wu, SG. And Safire, G.E. “Superiority of Cytoxan-Vincristine-Prednisone-Procarbazine in Treatment in Non-Hodgkins Lymphoma.” IRCS (Research on Cancer, Clinical Pharmacology and Therapeutics; Hematology) 3:318, 1975.
Tisman G. and Wu S.G. “Hematological Effects of Lithium Therapy” Editor: Neil Johnson Publisher: D. Blommer, MTP Press, Falcon House, Lancaster, England, 1980.
Tisman, G. and Wu. S.G.: “A Seven Year Laboratory and Clinical Experience with Lithium Carbonate as an Adjuvant to Cancer Chemotherapy. In Lithium Effects on Granulopoiesis and Immune Function.” Edited by Arthur H. Rossof and William A. Robinson. Published: Plenum Press, New York, 1980.
Tisman, G. and Wu, S.G.: “Effectiveness of Intermediate Dose Methotrexate - High Dose 5-Fluorouracil Sequential Combination Chemotherapy in Refractory Breast Cancer and as Primary Therapy in Metastatic Adenocarcinoma of the Colon.” Cancer Treatment Report, 64:829-835, 1980.
Tisman, G.: “Predictors of Tumor Response- An In Vitro Model.” In Modern Radiation Oncology. Harper & Row, Publishers, Philadelphia. Vol. II, Chapter 33:754-767, 1984.
Tisman, G., Tisman, N., Buck, L., Nguyen, H., Jones, M.E. and Orbon, A. “Use of a Computer Program to Analyze Tumor Markers.” International Academy of Tumor Marker Oncology. Journal of Tumor Marker Oncology Vol. 3, No. 2, 1988.
Vanyo, L., Vu, T., Ramos, M., Amin, J., Conners, S., Bateman, R., and Tisman, G.: “Lithium Induced Perturbations of Vitamin B12, Folic Acid and DNA Metabolism.” In The International Symposium on Present Status and Perspectives of Lithium in Biology and Medicine, European Academy, Nonweiler/Trier (Germany) 1990.
Vu, T., Amin, J., Ramos, M., Flener, V., Vanyo, L. Tisman, G.: “New Assay for the Rapid Determination of Plasma Holotranscobalamin II Levels: Preliminary Evaluation in Cancer Patients” American Journal of Hematology 42:202-211, 1993.
Tisman, G., Vu, T., Amin, J., Luszko, M., Ramos, M., Flener, V., Cordts, V., Bateman R., Malkin, S., Browder, T.: “Measurement of Red Blood Cell-Vitamin B12: A Study of the Correlation Between Intracellular B12 Content and Concentrations of Plasma Holotranscobalamin II.” American Journal of Hematology 43:226-229, 1993.
Chapter in The Mount School of Medicine “Total Nutrition”; “Nutrition and Blood Disorders” by Neville Colman, M.D. and Glenn Tisman M.D.; Edited by Victor Herbert, M.D, pp 518-529, 1995. Published by St. Martin’s.
CancerPal: Calculates and projects tumor cell growth characteristics predicting tumor specific growth rates and tumor mass based on past growth rates (Xcode v 4.6.2, for all Apple mobile devices iOS) see http://www.healthsciencereports.com 2012. Available as download from App store. Price = $1.99.
Preliminary name: “Nibs&Mabs” Currently developing an Apple App written in SWIFT, Apple language for Apple mobile devices, which is an Atlas and eBook translating molecular biology of tyrosine kinases, cell signaling, and an encyclopedia of investigational drugs for the practicing physician and molecular biologists A searchable handheld encyclopedia of drugs, tumor targets, and molecular targets so far contains 1400 investigational drugs and their targets and cartoons of mechanisms of action. 2016.

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