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Jami Farris handles diverse business disputes. She tries cases and handles appeals for plaintiffs and defendants in state and federal courts, and she arbitrates before the American Arbitration Association, the National Arbitration Forum, and the Financial Industry Regulatory Authority.
She is admitted to practice before the United States Supreme Court, the U.S. Courts of Appeals for the Federal, Fourth, and Seventh Circuits, the U.S. Court of Federal Claims, and the U.S. Courts for the Western, Middle, and Eastern Districts of North Carolina.
Excel Trade, Ltd. v. Snack Company, American Arbitration Association – Portland, OR (2017). Represented an international snack food company defending against claims related to the termination of its international sales broker of more than 10 years. Negotiated a confidential settlement.
Speedway Motorsports, International, Ltd. v. Bronwen Energy Trading, Ltd, et al., 707 S.E.2d 385 (N.C. Ct. App. 2011), 706 S.E.2d 262 (N.C. Ct. App. 2011), Mecklenburg County, North Carolina Superior Court, Business Court, case no. 08-CVS-9450. Obtained confidential settlements and $36 million judgment in 2015 against parties to petroleum financing support agreement. Our clients sued British and Dominican contracting parties, Arizona principal and French and Swiss banks in North Carolina to recover funds debited from SMIL's bank account in Switzerland related to first demand guarantees issued to support purchase price of oil in petroleum transactions.
The Tire Hanger Corp. v. My Guy Concierge Service, et al., United States District Court for the Central District of California, case no. 5:14-cv-00549 (2014). Represented a national chain of car dealers defending against claims of alleged infringement of two patents for tire hanging devices used with automotive lifts. Negotiated a confidential settlement.
Usher v. Hospital (2014). Plaintiff was a 40-year-old who was paralyzed in a single car accident. He alleged the intensive care nurses’ failure to reposition him resulted in a deep tissue injury and osteomyelitis. The injury had not healed at the time of trial – four years after the hospitalization. Plaintiff had incurred almost $700,000 in medical expenses and alleged damages for pain and suffering. Plaintiff’s counsel asked the jury to award their client $3 million. The jury returned a verdict of no negligence after two weeks of trial. The judgment was affirmed by the North Carolina Court of Appeals in 2016.
CK Southern Associates v. Charlotte N.C. Hotel Corp., 725 S.E.2d 922, 2012 WL 1995195 (N.C. App. 2012). Obtained a $1,326,392.30 jury verdict after a weeklong trial for our client in August 2010, which was every penny requested. The judgment was affirmed by the North Carolina Court of Appeals in 2012. Our client sued to enforce the reimbursement provisions of a cross easement agreement in an office tower/hotel complex to recover its share of expenses for the major repairs of an outdoor plaza.
Prima Tek II, LLC. v. Klerk’s Plastic Products Manufacturing, Inc. (S.D.Ill. 2005), 525 F.3d 533 (7th Cir. 2008). Obtained no liability judgment in favor of our client which was affirmed on appeal by the Seventh Circuit in 2008 in an action for contempt of court and alleged breach of patent and intellectual property license agreements.
Dudley v. R. James, G. James, and MHC Industrial, Inc., Haywood County, North Carolina Superior Court, case no. 11 CVS 00422 (2012). Obtained summary judgment on all claims in favor of defendants in an action for breach of implied warranty of habitability, negligence, and unfair and deceptive trade practices based on the construction of a home.
Keffer Management Co., LLC v. Domain Administrator, FA1312001534568 (National Arbitration Forum, January 14, 2014). Obtained transfer of domain name incorporating client’s trademark.
Baker-Jacobsen Nissan North v. Domain Administrator, FA1258907 (National Arbitration Forum, June 9, 2009). Obtained transfer of domain name incorporating client’s trade name.
Landrover Houston North v. Texas International Property Assocs., FA1128338 (National Arbitration Forum, January 17, 2008). Obtained transfer of domain name incorporating client’s trade name.
McLeod Addictive Disease Center, Inc. v. WilData Systems Group, Inc., 2008 WL 2397614 (W.D.N.C. June 10, 2008). Obtained enforcement of forum selection clause selecting Ohio as forum.
Jim Myers & Son, Inc. v. Motion Industries, Inc., 140 F.Supp.2d 595 (W.D.N.C. 2001). Obtained dismissal for lack of personal jurisdiction of Michigan engineering firm that supervised construction of sewage treatment plant.
Cowell v. D.C. Boyle, Inc., American Arbitration Association – Gastonia (2005). Obtained a complete defense verdict in an action for breach of home construction contract, even though there were admitted code violations, because of homeowner’s unreasonable refusal to accept warranty work.
Harper v. Town and Country Ford, Inc., American Arbitration Association – Charlotte (2001). Obtained a complete defense verdict in an action for breach of a motor vehicle purchase contract and unfair and deceptive trade practices.

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With seventeen days of competition, 102 sporting events, 2925 athletes, and 92 nations represented, the XXIII Winter Olympic Games (OG) in PyeongChang, South Korea, were likely to involve disputes. The Court of Arbitration for Sport (CAS) established two special divisions designed to address Olympic competitions, following the practice of previous editions of the OG. The “Ad Hoc Division” addresses sport-related disputes while the “Anti-doping Division” (CAS ADD) adjudicates doping claims. This Insight analyzes the creation and functioning of these Divisions and offers an overview of the decisions issued at the PyeongChang Games.
In the early 1980s, the increase in international sport-related disputes, coupled with the absence of any special adjudicatory authority, prompted the International Olympic Committee (IOC) to institute an arbitration system.
The CAS, a permanent judicial body based in Lausanne, dealt primarily with sport-related issues until its mandate was extended to international anti-doping disputes in 2003 following the adoption of the World Anti-Doping Code. However, the specific organizational requirements of the Olympic Games call for special procedures designed to settle disputes within a very short timeframe.
A dedicated structure of the CAS, functioning in situ at the 1996 Olympic Games in Atlanta, was created in the form of the Ad Hoc Division. The same mechanism has been replicated with each subsequent edition of the OG. Similar concerns led to the creation of an additional division during and after the 2016 Games in Rio de Janeiro, dealing with anti-doping disputes. The need for efficiency and speed resulted in succinct and clear rules of procedure for these dispute mechanisms.
The CAS has exclusive jurisdiction for any dispute that arises on the occasion of, or in connection with the Games pursuant to Rule 61.2 of the Olympic Charter. During the Games and during a period of ten days preceding the Opening Ceremony, this competence lies with the Ad Hoc Division. Among the six cases submitted to the Ad Hoc Division during the PyeongChang Games, four applications filed by Russian athletes and members of their entourage against the IOC involved jurisdictional questions. The arbitrators found that they had no jurisdiction in two of these applications because the dispute arose more than ten days before the opening ceremony. Even though the two other disputes were also outside the jurisdiction of the CAS Ad Hoc Division, the IOC “accepted” the arbitrators’ jurisdiction to decide on the merits.
During the OG, the CAS anti-doping division, upon delegation of the IOC Executive Board, adjudicates alleged violations of the Anti-doping Code. At other times, these questions are handled by anti-doping institutions. In Korea, the CAS ADD registered four cases relating to violations of anti-doping rules promulgated by the IOC or any of the International Federations and confirmed that Anti-Doping Rule Violations (ADRV) were committed in each of them.
Each division is headed by a president and a co-president. The president selects arbitrators to sit on the panels adjudicating specific disputes. The Ad Hoc Division in PyeongChang was comprised of nine arbitrators and the CAS ADD had six selected from lists drawn up by the Board of the International Council of Arbitration for Sport. These arbitrators come from varying legal traditions and are all experienced lawyers, judges, or professors, specialized in sports law and arbitration, with several having a prior career in sport. A Court office, led by the CAS secretary general, receives the written applications and supports the Divisions.
From the moment the Court office registers the application, the president of the division constitutes a panel of arbitrators. The panel is usually composed of three arbitrators, but the president may, at her discretion, appoint a sole arbitrator if it appears appropriate under the circumstances. The panel must issue its decision within twenty-four hours of receiving the application. During the PyeongChang Games, single arbitrators were appointed in all cases submitted to the CAS ADD.
If the president finds that two cases are linked, she may submit the cases to the same panel. The hearings may also be joined. The first two applications filed by the Russian athletes and the members of their entourage during the PyeongChang Games were submitted to the same panel of arbitrators and their hearings were joined. A common panel also examined the third and fourth cases concerning the Russian appeal.
Proceedings before the two divisions are normally twofold: an exchange of written statements followed by hearings. However, panels may decide to dispense with the hearing and rule solely on the basis of written submissions. The panel for the third and fourth Russian applications ruled on the basis of the written submissions to deal with jurisdictional issues.
Panels may make either a final or a partial award, and the latter may involve a referral to the regular CAS procedure for any unresolved parts. In PyeongChang, the Ad Hoc Division rendered only final awards. By contrast, the CAS ADD made partial awards in its four anti-doping cases. It issued provisional suspensions, which disqualified the athletes from the Games. The procedure on the merits of the cases will continue after the Games and the same panels will give final awards. CAS ADD final decisions may be appealed to the CAS Ad Hoc Division or the CAS after the end of the Olympic Games.
Parties may be represented or assisted in proceedings before the Ad Hoc Division and CAS ADD. The CAS provides a pool of pro bono lawyers for athletes. The Seoul Bar Association made a pool available during the PyeongChang Games.
The Ad Hoc Division and the CAS ADD acted in a specific context, navigating both geopolitical affairs and doping issues. In December 2017, the IOC banned Russia from participating in the 2018 Olympic Winter Games. This ban occurred after two IOC disciplinary commissions investigated the results of the 2016 McLaren Report accusing Russia of a massive state-sponsored doping program between 2011 and 2015.
The Oswald Commission investigated alleged doping violations by Russian athletes at the 2014 Olympic Winter Games in Sochi. It found forty-three Russian athletes ineligible to participate in any capacity in any future Olympic Games. The Commission also decided to disqualify them from the events in which they participated in Sochi, as well as withdraw the medals of those who had won. Forty-two of these athletes successfully appealed the IOC’s decision before the CAS. The CAS annulled the sanctions and reinstated the athletes’ individual results achieved in Sochi in twenty-eight cases. The CAS deemed the evidence collected insufficient to establish an anti-doping rule violation. Nonetheless, these athletes were not invited to participate in the PyeongChang Olympic Games, an issue they appealed before the Ad Hoc Division of the CAS at the beginning of the Games. As noted above, in two cases the panel of arbitrators found that it lacked jurisdiction and in two other cases the arbitrators dismissed the claims on the merits.
The Schmid Commission focused on the so-called “Russian Institutionalized Doping Conspiracy,” particularly in the context of the Sochi Games. Based on its findings, the IOC Executive Board suspended the Russian Olympic Committee (ROC) from the 2018 Winter Olympic Games, allowing the invitation of individual Russian athletes as “Olympic Athletes from Russia” and the possibility of lifting the suspension for the Closing Ceremony provided that the decisions taken by the IOC were respected and implemented by both the ROC and the invited athletes and officials. A panel listed athletes, support staff, and officials that would be invited to participate under the Olympic flag and a banner bearing the name “Olympic Athletes from Russia.” The IOC suspension decision indicated criteria for the selection of such persons and established the Olympic Athletes from Russia Implementation Group (OARIG) to assess the behavior of the delegation during the Games. Among other things, the Implementation Group mentioned in its report that Anti-Doping Rule violations (ADRV) were committed by two Russian athletes, referring to two decisions rendered by the CAS ADD. The OARIG qualified these violations as “individual and isolated, and did not show a pattern of systematic organized doping activity.” However, after receiving the report, the IOC unanimously decided not to lift the suspension for the Closing Ceremony. Russia was eventually reinstated as part of the Olympic family three days after the closing ceremony of the Olympic Games in PyeongChang.
The Ad Hoc Division and the Anti-doping Division played an important role in the conduct of the PyeongChang Winter Olympic Games. While their primary function is the adjudication of sports-related disputes, they also play a preventative role by ensuring compliance with the rules. The events at this Winter Olympics, in particular, have brought into sharp focus the need for these mechanisms, and their capacity to operate in an efficient and flexible way. Perhaps, this is a model that could be replicated in other domains.
About the Authors: Laurence Boisson de Chazournes is a Professor of Law at the University of Geneva and Member of the CAS Ad hoc Division for the XXIII Olympic Winter Games. Ségolène Couturier is a Researcher at the Faculty of Law of the University of Geneva, and former high-ranking Sportsperson.
 Antonio Rigozzi, L’importance du droit suisse de l’arbitrage dans la résolution des litiges sportifs internationaux, 132 Revue de droit suisse 301 (2013).
 Arbitration Rules Applicable to the CAS Ad Hoc Division for the Olympic Games, Court of Arbitration for Sport, http://www.tas-cas.org/en/arbitration/ad-hoc-division.html [hereinafter Ad Hoc Division Rules]; Arbitration Rules Applicable to the CAS Anti-doping Division for the 2018 Olympic Winter Games, Court of Arbitration for Sport, http://www.tas-cas.org/en/arbitration/anti-doping-division.html [hereinafter Anti-doping Division Rules].
 Ad Hoc Division Rules, supra note 2, art. 1.
 Results to be compared to the twenty-eight procedures registered up until the close of the Rio Olympic Games.
 Viktor Ahn et al. v. IOC, CAS OG 18/02, Court of Arbitration for Sport (Feb. 9, 2018), http://www.tas-cas.org/fileadmin/user_upload/Award_OG-02.pdf; Aleksandr Legkov et al. v. IOC, CAS OG 18/03, Court of Arbitration for Sport (Feb. 9, 2018), http://www.tas-cas.org/fileadmin/user_upload/Award_OG_18-03.pdf; Tatyana Borodulina et al. v. IOC, CAS OG 18/04, Court of Arbitration for Sport (Feb 8, 2018), http://www.tas-cas.org/fileadmin/user_upload/Award_OG_18-04.pdf; Pavel Abratkiewicz et al. v. IOC, CAS OG 18/05, Court of Arbitration for Sport (Feb. 9, 2018), http://www.tas-cas.org/fileadmin/user_upload/Award_OG_18-05.pdf.
 CAS OG 18/04, supra note 5; CAS OG 18/05, supra note 5.
 The arbitrators found that the IOC decision did not constitute a sanction but rather an eligibility decision, and that there was no evidence the special commissions in charge of the selection of the Russian athletes improperly exercised their discretion CAS OG 18/02 and CAS OG 18/03.
 Olympic Charter, R. 59.2.4, available at https://www.olympic.org/documents/olympic-charter.
 Anti-doping Division Rules, supra note 2, pmble.
 Press Release, CAS ADD, First Case Registered by the CAS ADD in Pyeongchang (Feb. 13, 2018), http://www.tas-cas.org/fileadmin/user_upload/Media_Release_ADD1_.pdf; Press Release, CAS ADD, The CAS ADD Acknowledges the Voluntary Suspension of the Slovenian Ice Hockey Player Ziga Jeglic (Feb. 20, 2018), http://www.tas-cas.org/fileadmin/user_upload/Media_Release_ADD201818_02.pdf; Press Release, CAS ADD, New Case Registered by the CAS ADD in Pyeongchang (Feb. 19, 2018), http://www.tas-cas.org/fileadmin/user_upload/Media_Release_ADD_p2018__English__2.pdf; IOC v. Aleksandr Krushelnitckii, Partial Award on Anti-Doping Rule Violation, CAS ADD 18/03, Court of Arbitration for Sport, (Feb. 22, 2018), http://www.tas-cas.org/fileadmin/user_upload/ADD_18-03_Partial_Award.pdf.
 Ad Hoc Division Rules, supra note 2, art. 4; Anti-doping Division Rules, supra note 2, art. 4.
 Press Release, CAS, The Court of Arbitration for Sport (CAS) Prepares to Open Two Temporary Offices for the Pyeongchang Winter Olympic Games (Jan. 26, 2018), http://www.tas-cas.org/fileadmin/user_upload/Media_Release_PyeongChang_2018.pdf.
 See Code of Sports-Related Arbitration, S1–S11, available at http://www.tas-cas.org/fileadmin/user_upload/Code_2017_FINAL__en_.pdf.
 The offices were led by the CAS Secretary General Matthieu Reeb.
 Anti-doping Division Rules, supra note 2, art. 18.
 CAS OG 18/02, supra note 5; CAS OG 18/03, supra note 5.
 Anti-doping Division Rules, supra note 2, art. 20.
 Press Release, CAS, First Case Registered by the Anti-Doping Division of the Court of Arbitration for Sport (CAS) in Pyeongchang (Feb. 13, 2018), http://www.tas-cas.org/fileadmin/user_upload/Media_Release_ADD1_.pdf; Press Release, CAS, The CAS Anti-doping Division Acknowledges the Voluntary Suspension of Slovenian Ice Hockey Player Ziga Jeglic (Feb. 20, 2018), http://www.tas-cas.org/fileadmin/user_upload/Media_Release_ADD201818_02.pdf; Press Release, CAS, Nadezhda Sergeeva is Found Guilty of an Anti-Doping Rule Violation with Trimetazidine – The Team OAR, (Sergeeva/Kocherzhova) in the Women’s Bobsleigh Event is Disqualified from the Olympic Winter Games 2018 (Feb. 24, 2018), http://www.tas-cas.org/fileadmin/user_upload/Media_Release_ADD_2018__English__7.pdf [hereinafter Nadezhda Sergeeva Press Release]; Press Release, CAS ADD, Aleksandr Krushelnitckii is Found Guilty of an Anti-Doping Rule Violation with Meldonium – The Team OAR in the Mixed Doubles Curling Event is Disqualified from the Olympic Winter Games 2018 (Feb. 22, 2018), http://www.tas-cas.org/fileadmin/user_upload/Media_Release_ADD_2018__English__6.pdf.
 See Anti-doping Division Rules, supra note 2, art. 8.
 Richard H. McLaren, The Independent Person 2nd Report (Dec. 9, 2016), https://www.wada-ama.org/sites/default/files/resources/files/mclaren_report_part_ii_2.pdf.
 Aleksandr Zubkov et al. v. IOC, CAS (2018).
 CAS OG 18/02, supra note 5; CAS OG 18/03, supra note 5; CAS OG 18/04, supra note 5; CAS OG 18/05, supra note 5.
 See McLaren, supra note 22.
 Decision of the IOC Executive Board, Int’l Olympic Committee 1–2 (Dec. 5, 2017), available at https://stillmed.olympic.org/media/Document%20Library/OlympicOrg/IOC/Who-We-Are/Commissions/Disciplinary-Commission/IOC-DC-Schmid/Decision-of-the-IOC-Executive-Board-05-12-2017.pdf.
 The Invitation Panel was chaired by Valerie Fourneyron, the Chair of the Independent Testing Authority.
 Olympic Athletes from Russia Implementation Group Report, Int’l Olympic Committee 8 (Feb. 25, 2018), available at https://stillmed.olympic.org/media/Document%20Library/OlympicOrg/News/2018/02/2018-02-25-OARIG-REPORT.pdf [hereinafter OARIG Report].
 Nadezhda Sergeeva Press Release, supra note 20; CAS ADD 18/03, supra note 10.
 OARIG Report, supra note 30, at 8, 11.

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Respondent Crow Indian minor was struck by a motorcycle in the parking lot of a school located within the Crow Indian Reservation but on land owned by the State of Montana. Through his guardian, the minor brought a damages action in the Crow Tribal Court against petitioner School District, a political subdivision of the State, and obtained a default judgment. Thereafter, the School District and its insurer, also a petitioner, brought an action in Federal District Court for injunctive relief, invoking as a basis for federal jurisdiction 28 U.S.C. § 1331, which provides that a federal district court "shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." The District Court held that the Tribal Court had no jurisdiction over a civil action against a non-Indian, and accordingly entered an injunction against execution of the Tribal Court judgment. The Court of Appeals reversed, holding that the District Court had no jurisdiction to enter such an injunction.
1. Section 1331 encompasses the federal question whether the Tribal Court exceeded the lawful limits of its jurisdiction. Since petitioners contend that federal law has divested the Tribe of its power to compel a non-Indian property owner to submit to the civil jurisdiction of the Tribal Court, it is federal law on which petitioners rely as a basis for the asserted right of freedom from Tribal Court interference. They have, therefore, filed an action "arising under" federal law within the meaning of § 1331. Pp. 471 U. S. 850-853.
2. Exhaustion of Tribal Court remedies is required, however, before petitioners' claim may be entertained by the District Court. The existence and extent of the Tribal Court's jurisdiction requires a careful examination of tribal sovereignty and the extent to which that sovereignty has been altered, divested, or diminished, as well as a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and administrative or judicial decisions. Such an examination and study should be conducted in the first instance by the Tribal Court. Pp. 471 U. S. 853-857.
any relief. Whether the federal action should be dismissed or merely held in abeyance pending the development of the Tribal Court proceedings is a question that should be addressed in the first instance by the District Court. P. 471 U. S. 857.
736 F.2d 1320, reversed and remanded.
A member of the Crow Tribe of Indians filed suit against the Lodge Grass School District No. 27 (School District) in the Crow Tribal Court and obtained a default judgment. Thereafter, the School District and its insurer, National Farmers Union Insurance Companies (National), commenced this litigation in the District Court for the District of Montana; that court was persuaded that the Crow Tribal Court had no jurisdiction over a civil action against a non-Indian, and entered an injunction against further proceedings in the Tribal Court. The Court of Appeals reversed, holding that the District Court had no jurisdiction to enter such an injunction. We granted certiorari to consider whether the District Court properly entertained petitioners' request for an injunction under 28 U.S.C. § 1331. 4 69 U.S. 1032 (1984).
October 25, 1982, Judge Roundface entered findings of fact, conclusions of law, and a judgment for $153,000 against the School District. Sage v. Lodge Grass School District, 10 Indian L.Rep. 6019 (1982). A copy of that judgment was hand-delivered by Wesley Falls Down to the school Principal who, in turn, forwarded it to National on October 29, 1982.
"from attempting to assert jurisdiction over plaintiffs or issuing writs of execution out of Cause No. Civ. 82-287 of the Crow Tribal Court until this court orders otherwise. [Footnote 1]"
was that the Crow Tribal Court lacked subject matter jurisdiction over the tort that was the basis of the default judgment." Id. at 214.
of action." [Footnote 8] Petitioners contend that the right which they assert -- a right to be protected against an unlawful exercise of Tribal Court judicial power -- has its source in federal law, because federal law defines the outer boundaries of an Indian tribe's power over non-Indians.
have also been confronted with a series of questions concerning the extent to which a tribe's power to engage in commerce has included an immunity from state taxation. [Footnote 13] In all of these cases, the governing rule of decision has been provided by federal law. In this case, the petitioners contend that the Tribal Court has no power to enter a judgment against them. Assuming that the power to resolve disputes arising within the territory governed by the Tribe was once an attribute of inherent tribal sovereignty, the petitioners, in essence, contend that the Tribe has to some extent been divested of this aspect of sovereignty. More particularly, when they invoke the jurisdiction of a federal court under § 1331, they must contend that federal law has curtailed the powers of the Tribe, and thus afforded them the basis for the relief they seek in a federal forum.
divested the Tribe of this aspect of sovereignty, it is federal law on which they rely as a basis for the asserted right of freedom from Tribal Court interference. They have, therefore, filed an action "arising under" federal law within the meaning of § 1331. The District Court correctly concluded that a federal court may determine under § 1331 whether a tribal court has exceeded the lawful limits of its jurisdiction.
Respondents' contend that, even though the District Court's jurisdiction was properly invoked under § 1331, the Court of Appeals was correct in ordering that the complaint be dismissed because the petitioners failed to exhaust their remedies in the tribal judicial system. They further assert that the underlying tort action "has turned into a procedural and jurisdictional nightmare" because petitioners did not pursue their readily available Tribal Court remedies. Petitioners, in response, relying in part on Oliphant v. Suquamish Indian Tribe, 435 U. S. 191 (1978), assert that resort to exhaustion as a matter of comity "is manifestly inappropriate."
"While Congress never expressly forbade Indian tribes to impose criminal penalties on non-Indians, we now make express our implicit conclusion of nearly a century ago that Congress consistently believed this to be the necessary result of its repeated legislative actions."
Id. at 435 U. S. 204.
confers jurisdiction of such a case in any court of the United States."
"The conclusion seems to me irresistible, not that such questions are justiciable nowhere, but that they remain subject to the local jurisdiction of the Chocktaws."
"Now it is admitted on all hands . . . that Congress has paramount right to legislate in regard to this question, in all its relations. It has legislated, insofar as it saw fit, by taking jurisdiction in criminal matters, and omitting to take jurisdiction in civil matters. . . . By all possible rules of construction, the inference is clear that jurisdiction is left to the Choctaws themselves of civil controversies arising strictly within the Chocktaw Nation."
altered, divested, or diminished, [Footnote 19] as well as a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and administrative or judicial decisions.
Our conclusions that § 1331 encompasses the federal question whether a tribal court has exceeded the lawful limits of its jurisdiction, and that exhaustion is required before such a claim may be entertained by a federal court, require that we reverse the judgment of the Court of Appeals. Until petitioners have exhausted the remedies available to them in the Tribal Court system, n 4, supra, it would be premature for a federal court to consider any relief. Whether the federal action should be dismissed, or merely held in abeyance pending the development of further Tribal Court proceedings, is a question that should be addressed in the first instance by the District Court. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
The Court of Appeals believed that the petitioners' due process and equal protection claims had no merit because Indian tribes are not constrained by the provisions of the Fourteenth Amendment. Further, although recognizing that the Tribe is bound by the Indian Civil Rights Act, 25 U.S.C. § 1301 et seq., the Court of Appeals held that a federal court has no jurisdiction to enjoin violations of that Act. See Santa Clara Pueblo v. Martinez, 436 U. S. 49 (1978). Finally, although the majority assumed that a complaint alleging that a tribe had abused its regulatory jurisdiction would state a claim arising under federal common law, it concluded that a claim that a tribe had abused its adjudicatory jurisdiction could not be recognized, because Congress, by enacting the Indian Civil Rights Act, had specifically restricted federal court interference with tribal court proceedings to review on petition for habeas corpus.
After the District Court's injunction was vacated, tribal officials issued a writ of execution on August 1, 1984, and seized computer terminals, other computer equipment, and a truck from the School District. A sale of the property was scheduled for August 22, 1984. On that date, the School District appeared in the Tribal Court, attempting to enjoin the sale and to set aside the default judgment. App. to Brief in Opposition 1a-9a. The Tribal Court stated that it could not address the default judgment issue "without a full hearing, research, and briefs by counsel," id. at 4a; that it would consider a proper motion to set aside the default judgment; and that the sale should be postponed. Petitioners also proceeded before the Court of Appeals, which denied an emergency motion to recall the mandate on August 20, 1984. The next day, JUSTICE REHNQUIST granted the petitioners' application for a temporary stay. On September 10, 1984, he continued the stay pending disposition of the petitioners' petition for certiorari. 469 U.S. 1032 (1984). On September 19, the Tribal Court entered an order postponing a ruling on the motion to set aside the default judgment until after final review by this Court. App. to Brief in Opposition 15a. Subsequently, the Court of Appeals stayed all proceedings in the District Court. On April 24, 1985, JUSTICE REHNQUIST denied an application to "dissolve" the Court of Appeals' stay. Post, p. 1301.
Illinois v. City of Milwaukee, 406 U. S. 91, 406 U. S. 100 (1972).
See Romero v. International Terminal Operating Co., 358 U. S. 354, 358 U. S. 392-393 (1959) (opinion of BRENNAN, J.); cf. County of Oneida v. Oneida Indian Nation, 470 U. S. 226, 470 U. S. 235-236 (1985); Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 451 U. S. 640 (1981); United States v. Little Lake Misere Land Co., 412 U. S. 580, 412 U. S. 592-593 (1973); Erie R. Co. v. Tompkins, 304 U. S. 64, 304 U. S. 78-79 (1938).
American Well Works Co. v. Layne and Bowler Co., 241 U. S. 257, 241 U. S. 260(1916).
See, e.g., United States v. Wheeler, 435 U. S. 313, 435 U. S. 323 (1978); United States v. Mazurie, 419 U. S. 544, 419 U. S. 557 (1975); cf. Turner v. United States, 248 U. S. 354, 248 U. S. 354-355(1919).
Escondido Mutual Water Co. v. La Jolla Bands of Mission Indians, 466 U. S. 765, 466 U. S. 788, n. 30 (1984) ("[A]ll aspects of Indian sovereignty are subject to defeasance by Congress"); Rice v. Rehner, 463 U. S. 713, 463 U. S. 719 (1983); White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 448 U. S. 143 (1980); United States v. Wheeler, 435 U.S. at 435 U. S. 323.
White Mountain Apache Tribe v. Bracker, 448 U.S. at 448 U. S. 142; Santa Clara Pueblo v. Martinez, 436 U.S. at 436 U. S. 55-56.
Thus, in recent years we have decided whether a tribe has the power to regulate the sale of liquor on a reservation, Rice v. Rehner, supra; the power to impose a severance tax on oil and gas production by non-Indian lessees, Merrion v. Jicarilla Apache Tribe, 455 U. S. 130 (1982); the power to regulate hunting and fishing, Montana v. United States, 450 U. S. 544 (1981), Puyallup Tribe v. Washington Dept. of Game, 433 U. S. 165 (1977); and the power to tax the sale of cigarettes to non-Indians, Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134 (1980).
See, e.g., Mescalero Apache Tribe v. Jones, 411 U. S. 145 (1973); cf. White Mountain Apache Tribe v. Bracker, supra.
"Their incorporation within the territory of the United States, and their acceptance of its protection, necessarily divested them of some aspects of the sovereignty which they had previously exercised. . . . In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status."
"The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe. Thus, Indian tribes can no longer freely alienate to non-Indians the land they occupy. Oneida Indian Nation v. County of Oneida, 414 U. S. 661, 441 U. S. 667-668; Johnson v. M'Intosh, 8 Wheat. 543, 21 U. S. 574. They cannot enter into direct commercial or governmental relations with foreign nations. Worcester v. Georgia, 6 Pet. 515, 31 U. S. 559; Cherokee Nation v. Georgia, 5 Pet. at 30 U. S. 17-18; Fletcher v. Peck, 6 Cranch 87, 10 U. S. 147 (Johnson, J., concurring). And, as we have recently held, they cannot try nonmembers in tribal courts. Oliphant v. Suquamish Indian Tribe, [435 U.S. 191 (1978)]."
"Faced by attempts of the Chocktaw Tribe to try non-Indian offenders in the early 1800's, the United States Attorneys General also concluded that the Choctaws did not have criminal jurisdiction over non-Indians absent congressional authority. See 2 Op.Atty.Gen. 693 (1834); 7 Op Atty Gen. 174 (1855). According to the Attorney General in 1834, tribal criminal jurisdiction over non-Indians is, inter alia, inconsistent with treaty provisions recognizing the sovereignty of the United States over the territory assigned to the Indian nation and the dependence of the Indians on the United States."
435 U.S. at 435 U. S. 198-199.
Cohen, Handbook of Federal Indian Law 253 (1982) ("The development of principles governing civil jurisdiction in Indian Country has been markedly different from the development of rules dealing with criminal jurisdiction").
"In the civil field, however, Congress has never enacted general legislation to supply a federal or state forum for disputes between Indians and non-Indians in Indian country. Furthermore, although treaties between the federal government and Indian tribes sometimes required tribes to surrender non-Indian criminal offenders to state or federal authorities, Indian treaties did not contain provision for tribal relinquishment of civil Jurisdiction over non-Indians."
Cf. Kennerly v. District Court of Montana, 400 U. S. 423 (1971); William v. Lee, 358 U. S. 217 (1959).
See, e.g., New Mexico v. Mescalero Apache Tribe, 462 U. S. 324, 462 U. S. 331-332 (1983); Merrion v. Jicarilla Apache Tribe, 455 U.S. at 455 U. S. 137; Washington v. Confederated Tribe of Colville Indian Reservation, 447 U.S. at 447 U. S. 152.
New Mexico v. Mescalero Apache Tribe, 462 U.S. at 462 U. S. 332; Merrion v. Jicarilla Apache Tribe, 455 U.S. at 455 U. S. 138, n. 5; White Mountain Apache Tribe v. Bracker, 448 U.S. at 448 U. S. 143-144, and n. 10; Morton v. Mancari, 417 U. S. 535, 417 U. S. 551 (1974); Williams v. Lee, 358 U.S. at 358 U. S. 223.
We do not suggest that exhaustion would be required where an assertion of tribal jurisdiction "is motivated by a desire to harass or is conducted in bad faith," cf. Juidice v. Vail, 430 U. S. 327, 430 U. S. 338 (1977), or where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court's jurisdiction.
Four days after receiving notice of the default judgment, petitioners requested that the District Court enter an injunction. Crow Tribal Court Rule of Civil Procedure 17(d) provides that a party in a default may move to set aside the default judgment at any time within 30 days. App. 17. Petitioners did not utilize this legal remedy. It is a fundamental principle of long standing that a request for an injunction will not be granted as long as an adequate remedy at law is available. See, e.g., Rondeau v. Mosinee Paper Corp., 422 U. S. 49, 422 U. S. 57 (1975); Sampson v. Murray, 415 U. S. 61, 415 U. S. 88 (1974).
Cf. Weinberger v. Salfi, 422 U. S. 749, 422 U. S. 765 (1975).
National Farmers Union Insurance Cos.


text:
Researchers who have studied air quality in the São Paulo Metropolitan Region (SPMR) for the past 30 years say that the total concentration of pollutants emitted by cars, trucks, and industries has fallen and that city residents are now breathing cleaner air than in the 1980s. Air quality has improved thanks to decreased concentrations of the main components of pollution, including both gases and microscopic particles. The bad news is that despite the reductions, the levels of some pollutants are still almost twice as high as those accepted by the World Health Organization (WHO) (see graph).
This drop in the amount of pollutants released into the atmosphere is a consequence of public policies implemented to control vehicular pollution that led to the development of more efficient, less polluting engines (see Pesquisa FAPESP Issue No. 224). Part of the decline is also due to the combined effect of mixing ethanol with gasoline and the upsurge in the number of flex-fuel cars, which currently account for more than half of light vehicles in the SPMR. Since 1993, increasingly higher proportions of ethanol—which emits less carbon monoxide (CO), hydrocarbons (HC), and nitrogen oxides (NOx) than gasoline—have been added to this petroleum by-product. Every liter of gasoline in Brazil now contains 27% ethanol. Two other factors helped improve air quality for São Paulo residents: the adoption of cleaner industrial production processes (for example, oil-fired boilers have been replaced with electric ones) and the relocation of many factories to other cities in the 1980s and 1990s.
From 1988 to 2015, cars circulating in São Paulo emitted 20 times less CO, NOx, and particulate matter, while HC emissions decreased 40-fold. There was also a threefold decline in emissions of these same pollutants by heavy vehicles, like trucks and buses—which were only regulated later—according to analyses by researchers at the Institute of Astronomy, Geophysics and Atmospheric Sciences of the University of São Paulo (IAG-USP), published in three articles released by the journals Atmospheric Environment, Atmospheric Chemistry and Physics, and Journal of Transport & Health in 2017. However, despite improvements to engines and the use of either pure ethanol or ethanol mixed with gasoline, data from Cetesb (Companhia de Tecnologia de Saneamento Ambiental), the agency that monitors air quality in the SPMR, show that light vehicles, like cars and motorcycles, and heavy vehicles continue to be the prime sources of air pollution in São Paulo.
Improvements in air quality have not been even greater in recent years largely because the number of vehicles in the region soared from one million in 2000 to nearly seven million in 2014. “Although vehicles are more efficient and pollute less, the fleet has grown a lot,” points out physicist Maria de Fátima Andrade, of IAG-USP, who led the three studies. With more cars on the streets, fuel consumption rose 25% in volume in less than a decade, from 5.5 billion liters per year in 2007 to nearly 7 billion in 2014, according to data from Brazil’s National Petroleum Agency.
What most worries experts today is the pollution component called particulate matter (PM)—a mixture of very small solid particles or liquid droplets—because it presents a major human health risk. PM is produced directly when engines burn fuel or forms in the atmosphere from certain gases. Particle size is inversely proportionate to the ability to trigger health problems: the smaller the particulates, the longer they remain suspended in the air and the greater their potential to wreak damage. Since they are so small, they easily penetrate the respiratory tract and accumulate there, where they can trigger pulmonary inflammation, exacerbate illnesses like asthma, and even cause problems in other organs.
In the SPMR, Cetesb monitors the concentration of both inhalable coarse particles (less than 10 micrometers in diameter, or PM10) and inhalable fine particles (less than 2.5 micrometers). Levels of both have been falling, although they remain above WHO guidelines. But Cetesb does not monitor the level of even smaller, or ultrafine, particles, which measure less than 50 nanometers in diameter. Vehicles running on gas produce larger amounts of ultrafine particles than those fueled by ethanol.
Published in July 2017 in the journal Nature Communications, a study done in collaboration with researchers from the USP Physics Institute (IF-UPS) reported a 30% hike in the concentration of ultrafine particles in the city of São Paulo from January to May 2011, a period when ethanol prices skyrocketed and drivers of flex-fuel cars began consuming more gasoline than ethanol. Pollution data were gathered at the IF-USP station and used to feed statistical models that took into account traffic, meteorological information, and consumer behavior. “Modeling indicated that when ethanol prices went back down, gas consumption dropped and the concentration of these particles measured in the atmosphere also decreased,” says physicist Paulo Artaxo, a professor at IF-USP and one of the authors of the study.
According to pathologist Paulo Saldiva, of the USP School of Medicine (FMUSP), reducing the concentration of fine and ultrafine particles in the air is literally a matter of life or death. “People’s vulnerability to air pollution varies, and a portion of them die from health problems caused by pollution, especially those triggered by these tiny particles,” says Saldiva, leader of a study that estimated that around 3,500 people in the city of São Paulo die from pollution every year (see Pesquisa FAPESP Issue No. 129). “They accumulate in the pulmonary alveoli and from there can easily reach the central nervous system and other parts of the body,” says Saldiva, who also leads an FMUSP team that is currently investigating whether there is a link between prolonged exposure to pollution and the development of Alzheimer’s disease in humans. Some time ago, his group noted that the offspring of rodents exposed to urban environmental pollution had low birth weights because placental problems hampered the transfer of nutrients. The researchers also found indications that prolonged exposure to pollutants, especially fine and ultrafine particles, harms lung development.
1. Narrowing the uncertainties on aerosol and climate changes in São Paulo State: NUANCES-SPS (No. 08/58104-8); Grant Mechanism Thematic project; Program FAPESP Research Program on Global Climate Change (RPGCC); Principal Investigator Maria de Fátima Andrade (USP); Investment R$3,297,909.37.
2. GoAmazon: interactions of the urban plume of Manaus with biogenic forest emissions in Amazonia (No. 13/05014-0); Grant Mechanism Thematic project; Program FAPESP Research Program on Global Climate Change (RPGCC); Principal Investigator Paulo Eduardo Artaxo Neto (USP); Investment R$4,290,930.31.
ANDRADE, M. F. et al. Air quality in the megacity of São Paulo: Evolution over the last 30 years and future perspectives. Atmospheric Environment. V. 159, pp. 66-82. June 2017.
PACHECO, M. T. et al. A review of emissions and concentrations of particulate matter in the three major metropolitan areas of Brazil. Journal of Transport & Health. V. 4, pp. 53-72. March 2017.
VARA-VELA, A. et al. Impact of vehicular emissions on the formation of fine particles in the Sao Paulo Metropolitan Area: A numerical study with the WRF-Chem model. Atmospheric Chemistry and Physics. V. 16, No. 2, pp. 777-97. January 2017.
SALVO, A. et al. Reduced ultrafine particle levels in São Paulo’s atmosphere during shifts from gasoline to ethanol use. Nature Communications. July 2017.
Léo Ramos Chaves Aerial view of Ibirapuera Park, a region of heavy traffic on São Paulo’s south sideLéo Ramos Chaves Researchers who have studied air quality in the São Paulo Metropolitan Region (SPMR) for the past 30 years say that the total concentration of pollutants emitted by cars, trucks, and industries has fallen and that city residents are now breathing cleaner air than in the 1980s. Air quality has improved thanks to decreased concentrations of the main components of pollution, including both gases and microscopic particles. The bad news is that despite the reductions, the levels of some pollutants are still almost twice as high as those accepted by the World Health Organization (WHO) (see graph). This drop in the amount of pollutants released into the atmosphere is a consequence of public policies implemented to control vehicular pollution that led to the development of more efficient, less polluting engines (see Pesquisa FAPESP Issue No. 224). Part of the decline is also due to the combined effect of mixing ethanol with gasoline and the upsurge in the number of flex-fuel cars, which currently account for more than half of light vehicles in the SPMR. Since 1993, increasingly higher proportions of ethanol—which emits less carbon monoxide (CO), hydrocarbons (HC), and nitrogen oxides (NOx) than gasoline—have been added to this petroleum by-product. Every liter of gasoline in Brazil now contains 27% ethanol. Two other factors helped improve air quality for São Paulo residents: the adoption of cleaner industrial production processes (for example, oil-fired boilers have been replaced with electric ones) and the relocation of many factories to other cities in the 1980s and 1990s. From 1988 to 2015, cars circulating in São Paulo emitted 20 times less CO, NOx, and particulate matter, while HC emissions decreased 40-fold. There was also a threefold decline in emissions of these same pollutants by heavy vehicles, like trucks and buses—which were only regulated later—according to analyses by researchers at the Institute of Astronomy, Geophysics and Atmospheric Sciences of the University of São Paulo (IAG-USP), published in three articles released by the journals Atmospheric Environment, Atmospheric Chemistry and Physics, and Journal of Transport & Health in 2017. However, despite improvements to engines and the use of either pure ethanol or ethanol mixed with gasoline, data from Cetesb (Companhia de Tecnologia de Saneamento Ambiental), the agency that monitors air quality in the SPMR, show that light vehicles, like cars and motorcycles, and heavy vehicles continue to be the prime sources of air pollution in São Paulo. Improvements in air quality have not been even greater in recent years largely because the number of vehicles in the region soared from one million in 2000 to nearly seven million in 2014. “Although vehicles are more efficient and pollute less, the fleet has grown a lot,” points out physicist Maria de Fátima Andrade, of IAG-USP, who led the three studies. With more cars on the streets, fuel consumption rose 25% in volume in less than a decade, from 5.5 billion liters per year in 2007 to nearly 7 billion in 2014, according to data from Brazil’s National Petroleum Agency. Only one of the main pollutants assessed by the IAG-USP team showed no consistent reduction: ozone, a secondary pollutant produced when compounds released by engines react with sunlight and substances in the atmosphere. Concentrations of this gas, which irritates the airways and increases the risk of infection, declined through the mid-2000s but then began climbing again, although current levels still remain under those of the mid-1990s. In addition to the gases released into the air by vehicular exhaust, the fuel vapors that are released when gas is pumped at a service station seem to contribute significantly to the formation of ozone and other secondary pollutants. For every liter pumped into a fuel tank, a few milliliters escape into the atmosphere in the form of vapor. This may not seem like much but, according to Andrade, given the quantity of fuel that is pumped in the SPMR, it may ultimately have a significant impact, even more so than exhaust emissions from cars and trucks. “The scale of evaporative processes is not adequately taken into account,” says Andrade. “It’s possible that the impact of these vapors is being underestimated.” What most worries experts today is the pollution component called particulate matter (PM)—a mixture of very small solid particles or liquid droplets—because it presents a major human health risk. PM is produced directly when engines burn fuel or forms in the atmosphere from certain gases. Particle size is inversely proportionate to the ability to trigger health problems: the smaller the particulates, the longer they remain suspended in the air and the greater their potential to wreak damage. Since they are so small, they easily penetrate the respiratory tract and accumulate there, where they can trigger pulmonary inflammation, exacerbate illnesses like asthma, and even cause problems in other organs. In the SPMR, Cetesb monitors the concentration of both inhalable coarse particles (less than 10 micrometers in diameter, or PM10) and inhalable fine particles (less than 2.5 micrometers). Levels of both have been falling, although they remain above WHO guidelines. But Cetesb does not monitor the level of even smaller, or ultrafine, particles, which measure less than 50 nanometers in diameter. Vehicles running on gas produce larger amounts of ultrafine particles than those fueled by ethanol. Published in July 2017 in the journal Nature Communications, a study done in collaboration with researchers from the USP Physics Institute (IF-UPS) reported a 30% hike in the concentration of ultrafine particles in the city of São Paulo from January to May 2011, a period when ethanol prices skyrocketed and drivers of flex-fuel cars began consuming more gasoline than ethanol. Pollution data were gathered at the IF-USP station and used to feed statistical models that took into account traffic, meteorological information, and consumer behavior. “Modeling indicated that when ethanol prices went back down, gas consumption dropped and the concentration of these particles measured in the atmosphere also decreased,” says physicist Paulo Artaxo, a professor at IF-USP and one of the authors of the study. Léo Ramos Chaves One of the busiest thoroughfares in the city of São Paulo: Marginal do Rio Pinheiros AvenueLéo Ramos Chaves From womb to old age According to pathologist Paulo Saldiva, of the USP School of Medicine (FMUSP), reducing the concentration of fine and ultrafine particles in the air is literally a matter of life or death. “People’s vulnerability to air pollution varies, and a portion of them die from health problems caused by pollution, especially those triggered by these tiny particles,” says Saldiva, leader of a study that estimated that around 3,500 people in the city of São Paulo die from pollution every year (see Pesquisa FAPESP Issue No. 129). “They accumulate in the pulmonary alveoli and from there can easily reach the central nervous system and other parts of the body,” says Saldiva, who also leads an FMUSP team that is currently investigating whether there is a link between prolonged exposure to pollution and the development of Alzheimer’s disease in humans. Some time ago, his group noted that the offspring of rodents exposed to urban environmental pollution had low birth weights because placental problems hampered the transfer of nutrients. The researchers also found indications that prolonged exposure to pollutants, especially fine and ultrafine particles, harms lung development. In Saldiva’s opinion, there is an urgent need for initiatives to improve public transit, such as the adoption of cleaner fuels and new technologies that cut travel time, bringing pollution levels in line with WHO guidelines. “Prolonged exposure to pollution presents a risk that is hard for us to avoid, because it does to the body what a cigarette does to a smoker,” he says. “I decide whether or not to smoke, but I have no way of making this type of choice when it comes to breathing São Paulo air.” Projects 1. Narrowing the uncertainties on aerosol and climate changes in São Paulo State: NUANCES-SPS (No. 08/58104-8); Grant Mechanism Thematic project; Program FAPESP Research Program on Global Climate Change (RPGCC); Principal Investigator Maria de Fátima Andrade (USP); Investment R$3,297,909.37. 2. GoAmazon: interactions of the urban plume of Manaus with biogenic forest emissions in Amazonia (No. 13/05014-0); Grant Mechanism Thematic project; Program FAPESP Research Program on Global Climate Change (RPGCC); Principal Investigator Paulo Eduardo Artaxo Neto (USP); Investment R$4,290,930.31. Scientific articles ANDRADE, M. F. et al. Air quality in the megacity of São Paulo: Evolution over the last 30 years and future perspectives. Atmospheric Environment. V. 159, pp. 66-82. June 2017. PACHECO, M. T. et al. A review of emissions and concentrations of particulate matter in the three major metropolitan areas of Brazil. Journal of Transport & Health. V. 4, pp. 53-72. March 2017. VARA-VELA, A. et al. Impact of vehicular emissions on the formation of fine particles in the Sao Paulo Metropolitan Area: A numerical study with the WRF-Chem model. Atmospheric Chemistry and Physics. V. 16, No. 2, pp. 777-97. January 2017. SALVO, A. et al. Reduced ultrafine particle levels in São Paulo’s atmosphere during shifts from gasoline to ethanol use. Nature Communications. July 2017.

matches: V. V. V. V. V. V.


On February 24, 2015, Justice Demarest of the Kings County Commercial Division issued a decision in ECD NY, Inc. v. Britt Realty, LLC, 2015 NY Slip Op. 25052, certifying a class of beneficiaries of the Lien Law Article 3-A trust funds.
Article 3-A of the Lien Law creates trust funds out of certain construction payments or funds to assure payment of subcontractors, suppliers, architects, laborers, as well as specified taxes and expenses of construction. New York courts have held that the primary purpose of Article 3-A is to ensure that those who have directly expended labor and materials to improve real property at the direction of an owner or general contractor receive payment for work performed. Section 70(2) of the Lien Law provides that funds received by an owner in connection with each improvement constitute a separate trust and the owner is the trustee thereof. Further, any transaction by which any trust asset is paid, transferred or applied for any purpose other than a purpose of the trust before payment or discharge of all trust claims with respect to the trust, is a diversion of trust assets.
Pursuant to Lien Law § 77(1), an action under Lien Law Article 3-A must be brought as a representative action for the benefit of all beneficiaries of the trust, and the practice, pleadings, forms and procedure shall conform as nearly as may be to the practice, pleadings, forms and procedure in a class action as provided in article nine of the civil practice law and rules. However, this section also provides that the requirement of numerosity, pursuant to CPLR § 901(a)(1) may be waived at the discretion of the Court. Plaintiff asserts that the class should be certified as all beneficiaries of the Lien Law Article 3-A trust funds received by Britt Realty, LLC and North 7-8 Investors, LLC in connection with the development project located at North 7th Street and North 8th Street, in Brooklyn, New York. Plaintiff has stated that it has identified at least one other subcontractor that is owed payment by Britt and North 7-8 in connection with the Project, but has not identified this party.
Defendants argue that class action certification is not warranted because plaintiff has failed to satisfy the numerosity requirement of CPLR § 901(a)(1) and has failed to adduce any evidence of a class. Defendants assert that the numerosity requirement should not be waived because plaintiff has failed to identify any similarly situated parties. Defendants’ argument must fail as absence of information regarding other potential members of a class is not fatal to an action under Article 3-A of the Lien Law. Presumably defendants’ compliance with their obligations to disclose records under Lien Law § 76 will provide the information necessary to identify members of the proposed class.
Section 77(1) of the Lien Law permits any party with a trust claim to bring an action to enforce the claim on behalf of all the potential beneficiaries. Maintaining this action as a class action is, in accordance with the intent of the Lien Law, superior to other available methods because it eliminates the risk of inconsistent determinations of the claims of the individual members of the class and avoids the unnecessary costs and delays of multiple lawsuits. The policy favoring class certification in cases like that herein is so strong in New York that the failure to comply with the requirements of CPLR Article 9 is not fatal to certification, but may be cured upon notice to potential trust beneficiaries.
Plaintiff has successfully established the prerequisites to class action certification in the context of Article 3-A other than numerosity, namely that (1) there are questions of law or fact common to the class which predominate over any questions affecting only individual members, (2) the claims or defenses of the representative party are typical of the claims or defenses of the class, and (3) the representative party will fairly and adequately protect the interests of the class. As noted by the plaintiff, with respect to the question of commonality or predominance set forth in CPLR § 901(a)(2), the questions of law raised in this action are identical among potential class members, specifically, whether a trust was formed, whether trust funds were diverted, and whether the class members are beneficiaries of the trust. Defendants argue that plaintiff fails to establish the prerequisite of commonality because only plaintiff has filed a mechanic’s lien against the Project. This argument must fail because Lien Law § 71(4) provides that there is no requirement that a beneficiary of trust assets file a valid lien or even have the right to file a lien as a condition precedent to application of Article 3-A.
With respect to the prerequisite of typicality set forth in CPLR § 901(a)(3), plaintiff’s claims that it performed work on the premises constituting permanent improvements thereto, that the work was not paid for, and that the defendants diverted trust funds, are virtually identical to the claims of potential class members. As for the prerequisite of adequacy of representation set forth in CPLR § 901(a)(4), plaintiff asserts that it will fairly and adequately protect the interests of the proposed class because its claim for damages, in the amount of $708,603.00, is substantial and because plaintiff has the same rights and interests as the other members of the class. Furthermore, if plaintiff’s claim is successful, all creditors who establish valid trust claims will share pro rata in the trust funds which are recovered in this action.


text:
Set up and electrotyped. Published January, 1920.
The fundamental fact on which the proposal of this book is based is that the purchasing power of the dollar is uncertain and variable, that is, that the price level is unstable.
The war has caused the greatest upheaval of prices the world has ever seen. Inseparably connected with this upheaval is grave and world-wide industrial discontent. Because of this and because of the perplexity of business men as to future movement of prices, there has been much discussion going on of the question whether the level of war prices will drop or whether it can be stabilized.
To show that permanent stability can be secured is the chief aim of this book; and a specific and detailed plan for this purpose is presented.
The first sketch of this plan was published in 1911 (in my Purchasing Power of Money). It was later presented before the International Congress of Chambers of Commerce at Boston, September, 1912, and again before the American Economic Association, December, 1912. The plan was elaborated in the Quarterly Journal of Economics, February, 1913.
In October, 1917, I gave the Hitchcock lectures at the University of California, using much of the material published now, for the first time, in this book. In the spring of 1918 a Committee of the American Economic Association, on the Purchasing Power of Money in relation to the War, indorsed the principle of stabilization and commended the subject to the earnest attention of statesmen and economists.
By this time academic economists had been largely won over to the idea, it having run the gantlet of their criticism for several years. The general support of economists marks the first milestone in the progress of the idea.
Latterly a beginning has also been made toward arresting the attention of the business and industrial world, the interests of which are most at stake. Their general approval, if obtained, will mark the second milestone.
Until recently it has seemed premature to ask men in political life to press for the actual adoption of the plan. Their action, if taken, will mark the third and final milestone.
Appendix IV, §3, gives the names and comments of prominent leaders in all three fields—economics, business, politics—who have approved the idea.
When I first propounded the plan for stabilizing the dollar I supposed that I was the first to do so. It soon appeared, however, that the same thought had occurred independently to a number of others.
The bibliography in Appendix VI gives references to the published writings in which substantially the very plan here presented has been outlined by others.
There are a few anticipators who have never published their views but have kindly sent me copies of manuscripts or letters describing them. The following is a complete list in chronological order of anticipators, so far as known to me: John Rooke, 1824; the late Simon Newcomb, astronomer and economist, 1879; Professor Alfred Marshall, Cambridge, 1887; Aneurin Williams, M.P., 1892; Professor J. Allen Smith, now Dean, University of Washington, 1896; D.J. Tinnes, Hunter, North Dakota, 1896; William C. Foster, Boston, Mass., 1909; Professor Harry G. Brown, University of Missouri, 1911; Henry Heaton, Atlantic, Iowa, 1911.
This list could be lengthened considerably if the authors of plans radically different, but having the same purpose in view, were to be included. Among these authors is the late Alfred Russel Wallace, the naturalist.
The only essential feature of the plan in which, apparently, I have not been anticipated is the provision (mentioned at the end of Chapter IV and described, in detail, in Appendix I, §2) regarding speculation in gold.
The fact that the plan has been worked out independently in so many cases and by men so able and clear-headed is, I venture to think, strong evidence of the soundness of the proposal. It also affords me the opportunity to promote the plan the more impersonally and, I hope, with more chance of success than if it were merely one man's idea.
My thanks are due to the large number of persons who, through many years, by criticisms and suggestions, have helped me gradually develop the present formulation of the plan. I wish especially to express my thanks to Prof. Wm. H. Taft and Mr. Morison R. Waite, who supplied important legal data bearing on the problems of Appendix I, §6; to Dr. Royal Meeker, Prof. Wesley Clair Mitchell, Dr. B. M. Anderson, Jr., and Prof. Percy W. Bidwell, who supplied valuable criticism of portions of the appendix; to Mr. Philip P. Wells, formerly legal counsel of the National Conservation Association, who has helped frame the tentative draft of an act to stabilize the dollar given in Appendix I, §9; to my brother Herbert W. Fisher, whose criticisms have assisted me in improving the form of presentation; and to Miss Clara Eliot, formerly instructor in sociology in Mills College, who has helped at every stage of the work.
Every objection or difficulty which has been raised has been, I believe, frankly faced and discussed. Such discussion has been relegated to the appendix, in order that the text might be confined to stating the plan which, as will be seen, is so simple that any one can readily grasp it. It has been my ambition to reach and convince every available reader.
If the particular plan here proposed is not the best to accomplish its purpose, I hope a better one will be proposed.
It is also my hope that readers will spread the idea of stabilization by whatever methods seem to them most effective for promoting legislative action, national or international. I should be glad to be kept informed of such activities as well as to receive suggestions and criticisms.
As a movement for stabilization, in some form, seems inevitable in the immediate future, I shall be glad to make the best use I can of the return postal card inserted here for the convenience of the reader should he desire to stamp, sign, and mail it.
The general reader will be chiefly interested in the five chapters of the text, of which Chapter IV is the chief.
Those who find any difficulty in accepting the argument in the text are referred to Appendix II, of which §1 and §3 will probably be found of most general use.
The General Summary is designed for those who think they have not time to read the book.
The Summary by Sections will supply the starting point for reading any special part of the text desired.
The analytical table of contents, the index, and the running page headings have been constructed to facilitate the use of the book as one of reference.
Chapter II may help those who do not yet believe that the so-called "high cost of living" is, at bottom, a shrunken dollar.
Chapter III is commended especially to those who imagine that there is little wrong with our present monetary system.
Appendix IV, §3, is for those craving good company in espousing new ideas.
Appendices I and III and Appendix II, §2, are intended chiefly for technical economists.
Appendix VI gives references for further study and verification.
B. Changing the Assumption as to the "Lag"
C. Changing the Assumption as to the "Tendency"
D. Changing the Assumption as to the "Brassage"
E. Changing the Assumption as to the "Adjustment"
F. Changing the Assumption as to the "Influence"
B. "The Plan Only Corrects Those Deviations in the Purchasing Power of the Dollar Which Are Due to Gold Causes"
C. "It Assumes 'the Gold Theory'—That High Prices Are Due to the Abundance of Gold"
D. "It Assumes the Quantity Theory of Money"
E. "It Contradicts the Quantity Theory"
F. "It Aims to Fix All Prices"
G. "It Would Interfere with Supply and Demand"
H. "It is a Plan to Control thc Value of Gold"
I..."It Works Only through the Flow of Gold"
J. "It Would Shift to the Government the Losses Now Borne by Private Contracting Parties"
K. "It Would Make a Pretext for Raising Prices"
L. "It Would 'Tamper' with the Standard of Value"
M. "Changes in the Weight of the Dollar Cannot Affect Its Value because Only Government Fiat Can Fix the Value of Money"
N. "It Is a Fiat Money System"
A. "A Goods-Dollar Is Not Ideal"
B. "People Could 'Contract Out' "
C. "It Would Be Destroyed by War"
D. "It Could Not Check Rapid Change"
E. "It Is Too Inelastic"
F. "The Correction Comes Too Late"
A. "It Has Never Been Tried"
B. "The Tide May Turn"
C. "It Requires Governmental Interference"
D. "We Could Not Interest Other Countries"
E. "The Evils Are Unreal"
The Same System Modified by the Omission of "Free Coinage"

matches: §3 §2 §6 §9 §1 §3 §3 §2