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About the Article: This article introduces the concept of creation of Biological Databases and the laws/rights which govern/regulate them and other intellectual property. This article is under the publication type "Popular Article" and as such is intended for anyone interested regardless of their educational background. With a hope that people from varied backgrounds will equally enjoy reading this article.
Bioinformatics is an emerging discipline of science and technology. The National Center for Biotechnology Information (NCBI, 2001) defines Bioinformatics as “a field of science in which Biology, Computer Science, and Information Technology merge into a single discipline”. Within the framework of Bioinformatics, there are three sub-disciplines: First one deal with the development of new algorithms and statistics to help assess relationships among members of large data sets. The second one deals with the analysis and interpretation of various types of data viz. nucleotide (DNA/RNA) and amino acid sequences, protein domains, and protein structures constituting biological databases and the third sub-discipline deal with the development and implementation of tools that enable efficient access and management of different types of information.
The origin of this discipline in a crude form can be traced to the time when father of genetics, Gregor John Mendel selected certain traits such as height, flower color, seed shape and color in pea plants and started experimentation with these traits, along with maintaining records of the experimental data (a primitive biological database). He then converted the phenomenon observed into mathematical relations and tried to understand how these traits move over generations after generations and came out with founding principles of classical genetics. After Mendel, biological record keeping and understanding biological phenomenon by mathematical relations have come a long way.
The recent history of biological databases starts with the first protein sequences reported by Frederick Sanger for bovine insulin in 1956, consisting of 51 residues. For this pioneering work, he was awarded his first Nobel Prize in Chemistry in 1958. Later on, the first nucleic acid sequence of yeast alanine tRNA with 77 bases was reported by a group led by Robert Holley from Cornell University in 1965. In 1977, Sanger and colleagues introduced the “dideoxy” chain-termination method or Sanger method for sequencing DNA molecules that were eventually used to sequence the entire human genome as well as many other model systems in biology.
Margaret Dayhoff, a pioneer in the application of mathematics and computational methods to the field of biochemistry gathered all the available sequence data to create the first biological protein database and published a book “Atlas of Protein Sequence and Structure”. She developed many of the tools used today in database design and utilization. In 1980, Dr. Dayhoff developed an on-line database system that could be accessed by telephone line, the first sequence database available for interrogation by remote computers.
The rapid advancement in genetics and molecular biology tools and technology led to an era of “-omics” such as Genomics, Proteomics, Transcriptomics, Metabolomics etc. These, in turn, have generated a massive amount of data from the high throughput molecular biology approaches with which we deal with the genome, proteome etc. This huge amount of data needed to be made available as well as accessible and this was a challenge in itself. This challenge was successfully tackled by using information technology resources also knowns as Information and Communication Technology (ICT). It gave a flexible, smart and rapid way of storing, managing, querying and retrieving large and complex biological data (viz. sequences and structures). It has also helped in handling, managing, and maintenance of data generated from various biological systems. For this purpose of maintaining growing biological data in digital form, biological databases were created that initially acted as a storehouse of biological data with limited user’s access such as student, researchers, and the pharmaceutical industry. Later on, the arrival of internet and improvement in technologies, the biological database incorporated many other types of databases related to biological material such as gene expression database, metabolic pathway database, disease database etc. Since then, biological database accessibility, sharing and spread increased across the globe. Today, biological databases such as NCBI, EMBL, and DDBJ are governed under the aegis of the International Nucleotide Sequence Database Collaboration (INSDC) that makes policies for access, use, and advisory to submitters and also to the user communities.
Subsequently, human genes (579) got mapped by in-situ hybridization in 1981. In 1988, The Human Genome Organization (HUGO), an international organization of scientists was founded. The first complete genome map was published for the bacterium Haemophilus influenzae in 1995. Since then, many prokaryotic and eukaryotic genomes have been sequenced such as Mycoplasma genitalium (1995), Escherichia coli in 1997, Caenorhabditis elegans and Brewer’s Yeast (Saccharomyces cerevisiae) in 1998, Arabidopsis thaliana (2000) and human genome in 2001. These projects along with independent work generated huge sequences and structural databases that evolved many database institutions such as NCBI, EMBL, DDBJ, and PIR.
As stated earlier, the rapid evolution in biological data generation has brought technical challenges. Some of the challenges are the huge investment of tax payer’s money, a skilled human resource to develop a biological database for storage and management, software/tools to analyze the biological data and development of advanced tools and technologies to meet the future needs and challenges. Such creations fall under the domain of intellectual property. Therefore, it requires protection from misappropriation and piracy. Protections to software and databases can be ensured by applying appropriate national intellectual property laws.
1. Copyright: Generally considered to be the exclusive legal right granted by national law to the author of a work to disclose it as his own creation, to reproduce it and to distribute or communicate it to the public in any manner or by any means, and also to authorize others to use the work in specified ways. Most copyright laws distinguish between economic and moral rights, which together constitute copyright. There are usually certain limitations made by the law as to the kind of works eligible for protection and as to the exercise of the rights of authors comprised in the copyright. For example, Copyright is given to the database and software in India.
2. Patent: A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application. For example, patent granted to the bioinformatics software in the USA.
3. Trademark: A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trademarks are protected by intellectual property rights. For example GenBank®; BLAST is a registered trademark of the National Library of Medicine.
A biological database is a large, organized, stable entity associated with information technology and software to store, update, query, and retrieve components of the data stored within the system. Biological databases have been classified as Primary, Secondary, Composite and Integrated databases.
Primary databases are those biological databases which contain the raw sequences of nucleic acid (DNA and RNA), protein sequences and biochemical reactions. For example, the National Center for Biotechnology (NCBI), European Molecular Biology Laboratory (EMBL) and DNA Data Bank of Japan (DDBJ) and Protein Data Bank (PDB). Primary databases play a great role in bioinformatics research. They are updated regularly and contain a massive amount of experimentally obtained data. These databases are mostly maintained by public funding. Many of the primary databases are freely accessible to anyone and so are based on open access. The reason behind keeping them out of IP protections are, first, mostly the data generated are the outcome of work carried out by government-funded or socially funded research bodies and thus are made available free to the public for their use and secondly, it will not stifle the further development in the field of biology.
Secondary databases are derived biological database from the information available in primary databases. These databases are well analyzed, upgraded and annotated version of primary databases of the nucleic acid and protein sequences. For example, Protein databases like Swiss-Prot, CATH, KEGG, OMIM, SCOP, and PROSITE. Such up-gradation makes the secondary database more useful to understand the structure and function of biomolecules. The improvement and upgradation need an input of labor, skill, technology, and capital that usually come from individuals or enterprises so some of the secondary databases are not freely available in public domain and thus need or given protection under IP laws if it satisfies the criteria of originality and creativity. Protection ensures the investors return and motivation alive to keep working in this area.
Composite databases are those biological databases which contain information from a variety of primary databases. For example, NCBI. These databases fall under the norms of primary databases.
Integrated databases are biological databases containing biological data obtained from different related organisms. Integrated data help in comparative analysis or studies and provide a great understanding of the evolutionary relationship and synteny between the genomes of different organisms. For example, ATIDB (Arabidopsis thaliana Integrated Database). It provides a database derived from genome and transcriptome sequences between the model organisms, Arabidopsis and related Brassica species and helps in comparative studies.
At present, a common standard IP protection across globe is followed under the TRIPS agreement accepted by parties to the World Trade Organization (WTO) except EU where the European Commission (EC) itself had issued the database directive and established its own sui generis regime for biological databases protection.
TRIPS contain the provisions for the protection of databases as well as computer software. Part II of the TRIPS Agreement provides protection to the computer programs and compilations of data under copyright. Article 10.1 of the TRIPS Agreement clarifies that computer programs are open to copyright protection as works of literature and that this is irrespective of the manner in which they are presented. Correspondingly, Article 10.2 provides protection for data compilations which does not depend on whether the individual elements of the data compilation are open to copyright protection in their own right. After the TRIPS Agreement entered into force, World Intellectual Property Organization (WIPO) explicitly regulated the protection of computer programs and data compilations in an auxiliary agreement to the Berne Convention (Arts 4, 5 WIPO Copyright Treaty).
Worldwide the different protection strategies exist for the biological database. Here, comparative analysis of the strategies used in the USA, EU, and India are discussed below.
The USA gives copyright protection to the biological databases. Before 1991, copyright laws were used to protect databases in the USA but after that, US courts added the concept of “originality” or “creativity” factor for getting the copyright that led to exclusion from copyright protection because they did not meet the original criteria. US supreme courts interpreting the position on the copyright protection accorded to compilations held that facts are not copyrightable but the compilation of facts is, provided there is a sufficient degree of originality in the compilation in terms of indices employed etc., (Fiest Publication, Inc. v. Telephone Services Company, Inc. (1991). Thus, the biological databases are accepted as the compilation of facts and copyright protections are granted.
2. Sui-generis or quasi-copyright System.
The EU directive on copyright protection of database provides for the protection of the content of the database coupled with protection for the database if there is originality in the selection of arrangement of material. Such protection is based on the justification that a person who has made a substantial investment in obtaining, verifying or presenting the database must have exclusive right over it.
The Sui generis (Latin, of its own kind) system could be used to protect the database maker investment on some special but non-original databases which involved huge capital, human resource, and material resource. It was meant for the first time to protect database by a special right, later a balance was made by adopting dual mechanism. The copyright protection was available to countries and parties who were the member of Berne convention or TRIPS agreement, while sui generis was available only to makers who are nationals of EU member states.
The Copyright Act, 1957 of India grants protection to the original expression. Computer Programs have been considered as a “literary work” under the copyright act 1957. Section 2 (o) of the act defines ‘literary work’ and includes computer programs, tables, and compilations including computer databases (which includes biological databases also). This provision was inserted in 1999 and come into force in the year 2000.
In Burlington Home Shopping Private Limited v. Rajnish Chibber & Another (1995 PTC 278) a matter came before Delhi High Court to decide the protection of database and court held that a compilation of addresses developed by anyone by devoting time, money, labour and skill amount to a “literary work”, though the sources might be commonly situated. Similarly in Bharat Matrimony Com. P., Ltd., Chennai v. People Interactive (I) Pvt. Ltd., Chennai, 2009 AIHC (NOC) 433(Mad) was held that “literary work” includes a computer program and compilation including computer databases. Though cases on biological database protection are absent in India, similar protection can be obtained for the compilation of biological databases (Bioinformatics database) derived from sequencing of nucleic acid and proteins.
Section 13 of the copyright act 1957, provides the categories of work in which the copyright subsists which includes original literary work. The author of a work is the first owner of the copyright in the work. However, in case of employer-employee, if a work is made in course of employment under a contract of service or apprenticeship, the employer shall be the first owner of the copyright in the above of any contract to the contrary. The computer software is granted protection as a copyright in India unless it leads to a technical effect and is not a computer program per se. The Copyright Act protects the author’s economic and moral rights in the copyrighted work as stated in section 14 and 57 respectively. Even though the TRIPS Agreement does not specifically protect the moral rights, but the same is protected under the Copyright Act, 1957.
Section 51 of the Copyright Act, 1957 of India defines infringement of copyright and states that a person infringes the copyright of another if he/she although not authorized to do so, commits any act which only the copyright holder has exclusive rights to do. Civil remedies to copyright infringements are provided in chapter XII of Copyright Act, 1957, granting injunction and damages for copyright infringement and criminal liability provisions are provided in chapter XII of the Act, 1957 wherein abetment of infringement is also unlawful and punishable with imprisonment of up to three years and a fine up to Rs. 2 Lacs.
The difference between USA and EU strategy of biological database protection is that EU gives much emphasis over the economic aspect for database creation while the USA gives primacy over “originality and creativity” in the material. On the other hand, similarity lies in the fact that both provide copyright protection to the databases. Indian copyright law has tried to strike a balance by ensuring originality along with the economic aspect of the author.
The biological databases are compilations of biological sequences and other data types, and if biological sequences are unpatentable, then biological databases are also unpatentable. To make it patentable, they have to be related to a statutory subject matter. On the other hand, the databases are not themselves patentable, patent protection may be given for the database– related inventions. Patent protection in India is given to those inventions that satisfy the criteria of novelty, inventiveness and industrial use. The biological database is not granted patent protection because they don’t fulfill the above-mentioned criteria.
Patent protection for DNA, RNA and Protein Sequence extends only to biological and physical compositions and not to the abstract biological sequence information that describes the composition. Therefore, a patentee could only prevent from using the composition itself and not the information within the molecule. It was held by the Supreme Court of the United States in Diamond vs. Diehr (1981), that to qualify as the patentable subject matter the biological sequence has to be categorized as a process, machine or apparatus. An idea itself is not patentable and neither the principle in the abstract.
In State Street Bank & Trust Co. v. Signature Financial Group, Inc. case (1998), it was held by US Court of Appeals for Federal Circuit that even if information per se is not patentable as a tangible product, a process of producing the information may be patentable. Secondly, patent protection would extend only to the process for creating the database and not the database itself. It would limit the value of the patent because a competitor wanting to infringe the patented product can simply make the product in a non-infringing way.
There is no trade secret or trademark given for primary databases. For secondary databases, protection from trade secret law is available. It is because of the secondary database creator studies and analyzes the primary data and adds many important features that need huge capital and skilled human resource. Thus, he/she may not make all of it public or may charge money for accessing the database. However, it should be noted that trademark law will only protect the content of the database.
The database developer can get protection from the copyright law and can prevent the third parties, from copying, accessing contents, by using contract law. For the non–original database, the contract law is the only mode of protection where database developer can prevent the breach of faith and infringement. Presently, two types of contracts are available for the protection of databases namely Shrink-wrap and Click-wrap/Web-wrap/Browse-wrap contracts. Shrink-wrap license is used for the databases in compact discs (CDs) and the license is put down in writing during the packaging. Once user uses the products, he/she agrees to all the terms and conditions of the product. Click-wrap/Web-wrap/Browse-wrap licenses are meant for the internet users. When the buyers want to access the content in the database, they should enter “agree” online which means that they have agreed to the contract.
Biological databases play a great role in the present era of globalization. These databases are linked with information and communication technology across the globe and can be accessed, shared and used for development and promotion of science. In this regard, appropriate protection to database and knowledge to persons associated with this domain is very pertinent. In the next issue under this section, other aspects of Bioinformatics and IPR will be taken up and discussed in details.
THANK YOU MUNIBA. GOOD JOB DONE BY YOU TOO..KEEP IT UP..
Dear Dr. Arun, Looking forward to more enlightening articles on this aspect of Bioinformatics..
Thank you for this enlightening article. One question though, If someone publishes a database on the web, where copyright impingement is highly probable, whom does the publisher report to and what can be done to prevent it?
The legal protection of database is available to author/publisher as copyright, the moment the work or database comes into public domain.
But for playing safe and taking advantage of copyright law, the publisher need to get this database registered in copyright office. By doing so, publisher can take action & things will be more or less in his favour, otherwise various evidences need to be produced before the court that the work taken by other people without his permission belong to his property.
Publisher can report/approach court of law to get civil & criminal remedies as prescribed under section 57 of copyright act.
One more thing,under sec 14 author has moral right to protect his work from modification, mutilation and distortion.

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§ 42-2 Statement of purpose.
§ 42-4 Word usage; definitions.
§ 42-6 Basis for establishing areas of special flood hazard.
§ 42-7 Interpretation and conflict with other laws.
§ 42-9 Penalties for noncompliance.
§ 42-10 Warning and disclaimer of liability.
§ 42-11 Designation of local administrator.
§ 42-12 Floodplain development permit.
§ 42-13 Application for permit.
§ 42-14 Duties and responsibilities of local administrator.
§ 42-16 Standards for all structures.
§ 42-19 Manufactured homes and recreational vehicles.
§ 42-22 Conditions for variances.
Editor’s Note: This local law also repealed former Ch. 42, Flood Hazard Areas, adopted 12-15-1981, as amended in its entirety 9-1-1987 and as further amended.


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A list of important events, such as the registration date of the domain and the mark, can affect the outcome of the UDRP.
Complainant is CyberRiskPartners, LLC (“Complainant”), represented by Arthur P. Herold, Jr., Florida, USA. Respondent is Drew Bartkiewicz, pro se (“Respondent”), Connecticut, USA.
The domain name at issue is <cloudinsure.com>, registered with Tucows Domains Inc.
Complainant submitted a Complaint to the Forum electronically on December 17, 2018; the Forum received payment on December 17, 2018.
On December 17, 2018, Tucows Domains Inc. confirmed by e-mail to the Forum that the <cloudinsure.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On December 20, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 9, 2019 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@cloudinsure.com. Also on December 20, 2018, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
A timely Response was received and determined to be complete on January 9, 2019.
On January 14, 2019, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed M. KELLY TILLERY, ESQUIRE as Panelist.
Complainant uses the CLOUDINSURE mark in its connection with its business. Complainant has rights in the CLOUDINSURE mark through its trademark registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Supplemental Register Reg. No. 4,682,961, registered Feb. 3, 2015). Respondent’s <cloudinsure.com> domain name is identical to Complainant’s mark, except for the addition of a “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <cloudinsure.com> domain name as Respondent has no ownership interest in Complainant’s business.
Respondent registered and uses the <cloudinsure.com> domain name in bad faith. Respondent registered the disputed domain name without Complainant’s permission.
Respondent registered and used the <cloudinsure.com> domain name prior to Complainant’s business formation and its trademark registration. Respondent has owned and operated the disputed domain name since March, 2010.
Complainant fails to provide evidence of infringement or Respondent’s lack of rights or legitimate interests.
Respondent did not register or use the <cloudinsure.com> domain name in bad faith. Respondent has never attempted to sell the disputed domain name to Complainant or the general public. Respondent does not display any content at the disputed domain name’s resolving website that could create consumer confusion. The disputed domain name was registered on March 17, 2010.
1) Complainant has met its burden to prove by a preponderance of the relevant, credible, admissible evidence that Respondent’s Domain Name is identical to a Trademark in which Complainant has rights.
2) Complainant has not met its burden to prove by a preponderance of the relevant, credible, admissible evidence that Respondent has no rights or legitimate interest in respect of the Domain Name.
3) Complainant has not met its burden to prove by a preponderance of the relevant, admissible evidence that Respondent’s domain name has been registered and is being used in bad faith.
Complainant claims rights in the CLOUDINSURE mark based upon registration of the mark with the USPTO on the Supplemental Register (e.g., Reg. No. 4,682,961, registered Feb. 3, 2015). Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (registration with USPTO sufficient to establish complainant’s rights in HOME DEPOT mark). In addition, Respondent does not dispute that Complainant has rights. The Panel therefore holds that Complainant’s registration of the CLOUDINSURE mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).
Complainant next argues Respondent’s <cloudinsure.com> domain name is identical to the CLOUDINSURE mark, as the name merely adds a “.com” gTLD to the mark. Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See F.R. Burger & Associates, Inc. v. shanshan lin, FA 1623319 (Forum July 9, 2015) (“Respondent’s <frburger.com> domain name is identical to Complainant’s FRBURGER mark because it differs only by the domain name’s addition of the top-level domain name “.com.”). In addition, Respondent does not dispute that the domain name is identical to the mark. The Panel therefore determines that the <cloudinsure.com> domain name is identical to the CLOUDINSURE mark per Policy ¶ 4(a)(i).
Respondent claims that the site to which the domain name resolves does not promote any activity which would cause confusion with that of Plaintiff. While that may be true and relevant to a trademark infringement analysis, it is not relevant here as the marks are identical and that suffices under this first prong of the UDRP.
Respondent contends that its registration of the <cloudinsure.com> domain name predates Complainant’s earliest claimed rights in the CLOUDINSURE mark. Respondent’s disputed domain name was created on March 17, 2010, about one year and seven months before Complainant LLC was even formed. While there is some authority that predating of a complainant’s earliest claimed rights in a mark may preclude a complainant’s asserted rights in a mark under Policy ¶ 4(a)(i), See Twin Lakes Telephone Cooperative Corporation v. DNS ADMIN / BEST WEB LIMITED, FA 1725012 (Forum May 23, 2017) (complainant failed to establish rights in the TWIN LAKES COMMUNICATION marks for purposes of the policy, because registration of respondent’s domain name predated registration of complainant’s mark by approximately five years), such does not govern here as there is no evidence of record of actual use (only registration) prior to Complainant’s use.
The WHOIS information of record identifies the Registrant of the at-issue domain name as “Drew Bartkiewicz,” and no evidence of record indicates Respondent was authorized to register a domain name incorporating Complainant’s mark. Respondent also does not claim to either be commonly known by the domain name or to have been authorized by Complainant to register or use the domain name. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the <cloudinsure.com> domain name.
Complainant fails to make any assertions or produce any evidence under Policy ¶¶ 4(c)(i) or (iii). Failure to make assertions or produce evidence may preclude a complainant’s claim under Policy ¶ 4(a)(ii). See Larry S. Nichter, M.D. and Jed H. Horowitz, M.D., a Medical Corporation, DBA Pacific Center for Plastic Surgery v. DOMAIN ADMINISTRATOR / THOUGHT CONVERGENCE, INC., FA 1702547 (Forum Jan. 3, 2017) (finding for respondent when complainant failed to adequately allege respondent’s lack of rights and legitimate interests in the disputed domain name); see also Tech Traders LLC / David Page v. Insuladd Environmental Products, FA 1738720 (Forum Aug. 3, 2017) (respondent had overcome complainant’s contentions under the Policy, because complainant failed to make the required prima facie showing of respondent’s lack of rights and legitimate interests in the disputed domain name).
Complainant has not established a prima facie case in support of its arguments that Respondent lacks rights and legitimate interests under Policy ¶ 4(a)(ii). See High Adventure Ministries v. JOHN TAYLOE / VOICE OF HOPE, FA 1737678 (Forum Aug. 9, 2017) (complainant’s failure to satisfactorily meet its burden suggests respondent has rights and legitimate interests in the domain name under UDRP ¶ 4(a)(ii)); see also JJ206, LLC v. Erin Hackney, FA 1629288 (Forum Aug. 25, 2015) (respondent may defeat a complainant’s established case by showing it has made demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services).
In addition, Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
Complainant makes no arguments and produces no evidence under Policy ¶ 4(a)(iii). Failure to assert and support with evidence a respondent’s bad faith registration or use may allow a Panel to find for the respondent. See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Forum Mar. 9, 2005) (complainant failed to establish that respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish Policy ¶ 4(a)(iii)); see also Builder’s Best Inc. v. Okada, D2004-0748 (WIPO Nov. 17, 2004) (“…[T]o warrant a finding of bad faith under the Policy, in general, there must be some evidence of knowledge that the Respondent knew the domain name was identical or similar to the Complainant’s mark, not just ‘someone’s’ mark.”).
The Panel finds that Complainant has failed to meet the burden of proof of bad faith registration and use under Policy ¶ 4(a)(iii). See Tristar Products, Inc. v. Domain Administrator / Telebrands, Corp., FA 1597388 (Forum Feb. 16, 2015) (“Complainant makes conclusory allegations of bad faith but has adduced no specific evidence that warrants a holding that respondent proceeded in bad faith at the time it registered the disputed domain name. Mere assertions of bad faith, even when made on multiple grounds, do not prove bad faith.”); see also Chris Pearson v. Domain Admin / Automattic, Inc., FA 1613723 (Forum Jul. 3, 2015) (finding that the complainant could not establish the respondent registered and used the disputed domain name in bad faith because it failed to present evidence that would support such a holding).
Since Respondent’s registration of <cloudinsure.com> domain name predates Complainant’s first claimed rights in the CLOUDINSURE mark, Complainant cannot prove registration in bad faith per Policy ¶ 4(a)(iii), and as the Policy requires a showing of bad faith registration and use. See Platterz v. Andrew Melcher, FA 1729887 (Forum Jun. 19, 2017) (“Whatever the merits of Complainant’s arguments that Respondent is using the Domain Name in bad faith, those arguments are irrelevant, as a complainant must prove both bad faith registration and bad faith use in order to prevail.”); see also Faster Faster, Inc. DBA Alta Motors v. Jeongho Yoon c/o AltaMart, FA 1708272 (Forum Feb. 6, 2017) (“Respondent registered the domain name more than a decade before Complainant introduced the ALTA MOTORS mark in commerce. Respondent therefore could not have entertained bad faith intentions respecting the mark because it could not have contemplated Complainant’s then non-existent rights in [the mark] at the moment the domain name was registered.”).
The Panel concludes that Respondent has rights or legitimate interests in the <cloudinsure.com> domain name pursuant to Policy ¶ 4(a)(ii), and finds that Respondent did not register or use the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Record Connect, Inc. v. Chung Kit Lam / La-Fame Corporation, FA 1693876 (Forum Nov. 3, 2016) (the issue of bad faith registration and use was moot once the panel found the respondent had rights or legitimate interests in the disputed domain name); see also Sheet Labels, Inc. v. Harnett, Andy, FA 1701423 (Forum Jan. 4, 2017) (because the respondent had rights and legitimate interests in the disputed domain name, its registration of the name was not in bad faith).
The Panel further finds that Respondent has not registered or used the <cloudinsure.com> domain name in bad faith as it finds that Respondent has not violated any of the factors listed in Policy ¶ 4(b) or engaged in any other conduct that would constitute bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Haru Holding Corporation v. Michael Gleissner / NextEngine Ventures LLC, FA 1685263 (Forum Aug. 30, 2016) (finding that where a respondent has not violated any of the factors listed in Policy ¶ 4(b) or engaged in any other conduct that would constitute bad faith, lack of rights or legitimate interests on its own is insufficient to establish bad faith); see also Uhrenholt A/S v. FILLIP NIELSEN, FA 1646444 (Forum Dec. 21, 2015) (finding that mere assertions of bad faith, without evidence, are insufficient for a complainant to establish bad faith under Policy ¶ 4(a)(iii)).
Respondent further contends that it did not register or use the <cloudinsure.com> domain name in bad faith as its registration of the disputed domain name predates. Predating may preclude a complainant’s claim of bad faith against the respondent. See Gumwand Inc. v. jared brading, FA 1794058 (Forum Aug. 6, 2018) (“Any rights Complainant may have acquired in the GUMWAND mark since its first use in commerce in February 2014 were not in existence in 2012 when the Domain Name registration occurred. Thus, there is no evidence that Respondent registered the Domain Name in bad faith.”). The Panel may therefore find Respondent did not register or use the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Accordingly, it is Ordered that the <cloudinsure.com> domain name REMAIN WITH Respondent.

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July 1 marks the third year of the effective date of the Reform Act. Happy birthday to the Court of Workers’ Compensation Claims; the Appeals Board is a month away from its birthday.
July also means the year is already half over, which makes it a suitable time to look back at the case law from the Appeals Board over the past six months. This installment will look at cases where causation was at issue, while the next post will focus on everything else—an Appeals Board pot pourri of sorts.
But first, let’s take a quick look at the numbers. So far this year, the Board issued 37 appellate opinions: seven compensation appeals and 30 expedited appeals. Of these, 16 appeals resulted in issuance of memorandum opinions, while the majority presented issues of fact or law of significance to warrant full opinions. This article delves only into the full opinions.
Starting with the compensation appeals, Bass v. The Home Depot U.S.A., Inc. involved the compensability of an alleged work-related aggravation of an employee’s underlying arthritis. The Board affirmed the trial court’s ruling that Mr. Bass’ independent medical examiner did not rebut the presumption of correctness afforded to the opinion of an authorized treating physician. The Board reached a similar conclusion in Darraj v. McKee Foods Corp., while reiterating that self-represented litigants will be held to the same standard as attorneys. Mr. Darraj also faced a language barrier.
Then in Panzarella v. Amazon.com, Inc., the Board clarified that a physician rendering a causation opinion doesn’t need to use the particular words or phrases within the statute’s definition of “injury.” Rather than a “rigid recitation” of the statute, there must be sufficient evidence from which the trial court can conclude that the statutory requirements are satisfied. The opinion harmonizes well with Edwards v. The Job Shoppe U.S.A., an expedited appeal in which the Board rejected the employer’s “overly-narrow interpretation” of an authorized treating physician’s report, affirming the trial court’s grant of additional medical benefits. The implication is that trial courts and the Appeals Board should consider the record as a whole.
As in Edwards, preexisting conditions played a significant role in two additional cases where the authorized treating physicians appeared to give equivocal causation opinions.
Second, in Stallion v. TruGreen, L.P., the authorized physician concluded that Mr. Stallion didn’t require further treatment, but if he did, it would be for non-work-related degenerative disc disease. The trial court ordered additional medical benefits, which the Board reversed, reasoning that no physician had rendered an opinion that satisfied the statutory requirements necessary to establish a compensable aggravation.
Moving on, another preexisting injury case—Berdnik v. Fairfield Glade Community Club—definitely merits a read by any Tennessee workers’ compensation practitioner. In the case, the employer provided neither treatment nor a panel but denied the claim based largely upon Ms. Berdnik’s history of chronic back problems. Fairfield Glade later requested an IME, where the physician concluded the alleged injury was not work-related. The trial court found the employee was unlikely to prevail at a hearing on the merits but nonetheless ordered a panel. The Appeals Board reversed the panel order, citing the IME physician’s opinion as the only medical proof in the case. The Board cautioned employers not to construe its opinion as carte blanche to ignore their obligations under the Claims Handling Standards, and it referred Fairfield Glade to the Bureau’s Compliance Unit for consideration of a penalty.
The Appeals Board revisited the willful misconduct defense in Roper v. Allegis Group. The Board affirmed the trial court’s ruling that Allegis Group didn’t prove a willful violation of a safety rule, rejecting its argument that an employee’s lack of a valid excuse to follow a safety rule constitutes “willfulness.” The judges characterized this as an overly broad interpretation of Mitchell v. Fayetteville Public Utilities, which would allow employers to deny benefits to employees whose “merely negligent or reckless actions” result in a violation of a known safety rule.
Finally, in Morales v. Boshwit Brothers, the Board examined causation in the context of workplace assaults. Mr. Morales, an apartment complex groundskeeper, suffered serious gunshot wounds from an unknown assailant while mowing the lawn. The Appeals Board reversed the trial court’s ruling that the street-risk doctrine did not apply. The Board noted, among other considerations, that signage invited prospective renters on to the property to view available units.
Part two of this article runs next week. In the meantime, have a safe and happy Independence Day (and remember that all Bureau offices are closed that day but are open on July 3).
If Not Magic Words, Then What?

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[285 U.S. 434, 435] Messrs. Joseph L. Lewinson and W. H. Douglass, both of Los Angeles, Cal., Nat Schmulowitz, J. C. McKinstry, Joseph Haber, Jr., and Charles L. Firebaugh, all of San Francisco, Cal., for petitioner.
[285 U.S. 434, 437] Mr. Alfred Sutro, of San Francisco, Cal., for respondent.
The bill alleges misappropriation and embezzlement of moneys of the corporation by its officers, with appropriate details to bring the respondent within the terms of the foregoing provision. The superior court sustained a demurrer to the complaint, for reasons not material here, and rendered final judgment accordingly. An appeal was taken to the state supreme court; and, while that appeal was pending, the provision of the state constitution above quoted was repealed. Thereupon, respondent moved to dismiss the appeal, on the ground that the cause of action had abated by reason of the repeal of the provision of law upon which it was based. The court sustained the motion and dismissed the appeal, Coombes v. Franklin (Cal. Sup.) 1 P.(2d) 992; and subsequently denied a petition for rehearing (Cal. Sup.) 4 P.(2d) 157.
In substance, it was held that the right accorded to corporate creditors was created by, and dependent alone upon, the constitutional provision, said to have the force of a statute; and that when that was repealed, the right fell with it, being still inchoate, not reduced to possession nor perfected by final judgment. It was conceded that the liability created by the Constitution was in its nature contractual and, as a matter of law, entered into and became a part of every contract between the corporation and its creditors. But this contractual liability, it was said, was conditioned by the power reserved over corporate laws by section 1, art. 12, of the Constitution, as follows: 'All laws now in force in this State concerning corporations, and all laws that may be hereafter passed pursuant to this section, may be altered from time to time or repealed.' [285 U.S. 434, 441] In virtue of this reservation of power, the state court held that the repeal of the liability provision was a known contingency constituting a part of the contract as much as the provision which imposed the liability.
The decision of the Supreme Court of a state construing and applying its own Constitution and laws generally is binding upon this court; but that is not so where the contract clause of the Federal Constitution is involved. In that case this court will give careful and respectful consideration and all due weight to the adjudication of the state court, but will determine independently thereof whether there be a contract, the obligation of which is within the protection of the contract clause, and whether that obligation has been impaired; and, likewise, will determine for itself the meaning and application of state constitutional or statutory provisions said to create the contract or by which it is asserted an impairment has been effected. Scott v. McNeal, 154 U.S. 34, 45 , 14 S. Ct. 1108; Mobile & Ohio Railroad v. Tennessee, 153 U.S. 486 , 492, etc., 14 S. Ct. 968; Stearns v. Minnesota, 179 U.S. 223, 232 , 233 S., 21 S. Ct. 73; Louisiana Ry. & Nav. Co. v. New Orleans, 235 U.S. 164, 170 , 35 S. Ct. 62; Huntington v. Attrill, 146 U.S. 657, 684 , 13 S. Ct. 224; N. O. Waterworks v. La. Sugar Co., 125 U.S. 18, 38 , 8 S. Ct. 741; Bridge Proprietors v. Hoboken Co., 1 Wall. 116, 144; Jefferson Branch Bank v. Skelly, 1 Black, 436, 443.
In substance, the contention of respondent here is that the reserved power provision, read into the contract as one of its terms, authorizes an extinction by repeal of the creditor's cause of action, unless previously reduced to final judgment.
The authority of a state under the so-called reserved power is wide; but is not unlimited. The corporate charter may be repealed or amended, and, within limits not now necessary to define, the interrelations of state, corporation, and stockholders may be changed; but [285 U.S. 434, 442] neither vested property rights nor the obligation of contracts of third persons may be destroyed or impaired. Tomlinson v. Jessup, 15 Wall. 454, 459; Lake Shore, etc., Railway Co. v. Smith, 173 U.S. 684, 690 , 19 S. Ct. 565. Compare Greenwood v. Freight Co., 105 U.S. 13, 17 , 19 S.; Shields v. Ohio, 95 U.S. 319 , 324. The right of this petitioner to enforce respondent's liability had become fully perfected and vested prior to the repeal of the liability provision. His cause of action was not purely statutory. It did not arise upon the constitutional rule of law, but upon the contractual liability created in pursuance of the rule. Although the latter derived its being from the former, it immediately acquired an independent existence competent to survive the destruction of the provision which gave it birth. The repeal put an end to the rule for the future, but it did not and could not destroy or impair the previously vested right of the creditor (which in every sense was a property right, Ettor v. Tacoma, 228 U.S. 148, 156 , 33 S. Ct. 428; Pritchard v. Norton, 106 U.S. 124, 132 , 1 S. Ct. 102) to enforce his cause of action upon the contract. Ettor v. Tacoma, supra; Hawthorne v. Calef, 2 Wall. 10, 22; Steamship Company v. Joliffe, 2 Wall. 450; Ochiltree v. Railroad Company, 21 Wall. 249, 252, 253; Harrison v. Remington Paper Co. (C. C. A.) 140 F. 385, 390, etc., 3 L. R. A. (N. S.) 954, 5 Ann. Cas. 314; Knickerbocker Trust Co. v. Myers (C. C.) 133 F. 764, 767.
'The court below gave a retrospective effect to the amendatory and repealing act by holding that the effect of the repeal was to destroy the right to compensation which had accrued while the act was in force. The obligation of the city was fixed. The plaintiffs in error had a claim which the city was as much under obligation to pay as for the labor employed to do the grading. It was a claim assignable and enforceable by a common-law action for a breach of the statutory obligation.
In the Hawthorne Case, supra, it was held that a state statute, incorporating a railroad company, which provided that the shares of the stockholders should be liable for the debts of the corporation, in effect pledges the liability or guarantee of the stockholders to the extent of their stock to the creditors of the company. 'They thereby virtually agree to become security to the creditors for the payment of the debts of the company, which have been contracted upon the faith of this liability.' Haw [285 U.S. 434, 444] thorne supplied the corporation with materials to build its road and obtained judgment against it. Being unable to satisfy the judgment, he brought suit against Calef, a stockholder. The state Supreme Court rendered judgment against Hawthorne on the ground that the individual liability provision had been repealed by subsequent legislation, passed two months after the debt was contracted, and that such repeal had taken away the right to enforce the stockholders' liability. This court reversed on the ground that when the debt was contracted with the company the creditor held the stockholders' liability as security for its payment and the repealing act, by abolishing it, impaired the obligation of that contract.
Respondent, however, insists that long prior to the extension of credit to the corporation by petitioner's assignor, the decisions of the Supreme Court of California had established that the repeal of a law creating such a liability as that here involved extinguishes the cause of action; and that this amounted to a construction of the constitutional provision which entered into the contract and will be followed and applied by this court. Warburton v. White, 176 U.S. 484, 495 , 20 S. Ct. 404; Ennis Water Works v. Ennis, 233 U.S. 652, 657 , 34 S. Ct. 767. But upon a careful consideration of the California cases referred to, we are of opinion that they fail to establish the premises upon which the conclusion is based.
The distinction between the section of the Code and the constitutional provision, therefore, is clear. In the former the liability is wholly statutory; in the latter it is contractual.
In Willcox v. Edwards, supra, the court had under consideration a constitutional provision repealing a former provision of the constitution making valid certain contracts for the sale of stocks on margin. The right to sue for the recovery of money paid under such a contract, the court held, was not a vested right depending upon a quasi contract arising by operation of law from the terms of the original constitutional provision, but a right dependent upon that provision standing alone; and that upon its repeal, without a saving clause, pending litigation fell for want of authority to maintain it. But it plainly appears that the decision would have been otherwise if the court had deemed the right to be contractual.
The case here is entirely different. There the obligation which was imposed upon the relatives was purely statutory. No act was contemplated on their part by way of assumption of an obligation in order to fix the liability. No element of a contract was present. Here both parties acted. The creditor extended credit to the corporation; and his action in so doing, under the state constitutional provisions, brought into force for his benefit the costitutional obligation of the director, which, by becoming a director, the latter had voluntarily assumed and, thereby, in the eye of the law, created against himself a contractual liability in the nature of a suretyship. Harrison v. Remington Paper Co., supra, page 388 of 140 F., 3 L. R. A. (N. S.) 954, 5 Ann. Cas. 314. Doubts which otherwise might have existed in respect of the character and effect of the transaction are no longer open. It is settled by decisions of this and other federal courts (Ettor v. Tacoma, and cases cited in connection therewith, supra) that, upon the facts here disclosed, a contractual obligation arose; and the right to enforce it, having become vested, comes within the protection of both the contract impairment clause in article 1 , 10, and the due process of law clause in the Fourteenth Amendment, of the federal Constitution.
I am unable to concur in the reversal of this judgment.
The Supreme Court of California has said that the liability thus created is contractual (Dean v. Shingle, 198 Cal. 652, 246 P. 1049); but only in a qualified sense, as the expression of a legal fiction, is the statement true, nor did the court that made it intend otherwise. The liability would not be destroyed though the directors when assuming office and repeatedly thereafter were to repudiate the obligation utterly. They would be held for all their protestations upon a liability imposed by law. Indeed, they would have to answer to the creditors though they had ceased to be directors before the debts were in existence. If we put aside deceptive labels, borrowed from the law of quasi contracts, the tangle is unraveled. The petitioner had a contract with the corporation and not with any one else (Crane v. Hahlo, 258 U.S. 142, 146 , 42 S. Ct. 214), but annexed by law to the obligation of that contract was a liability purely statutory imposed on the directors. Compare Christopher v. Norvell, 201 U.S. 216, 225 , 26 S. Ct. 502, 5 Ann. Cas. 740; Bernheimer v. Converse, 206 U.S. 516, 529 , 27 S. Ct. 755. The decisions in California, when analyzed, will be found to hold nothing to the contrary. They amount merely to this, that the liability created by the statute, which is enforceable also by the shareholders, is not penal but remedial, and is limited to the damage resulting to the corporation from the loss of the embezzled moneys as if the director were a surety to the corporation for the acts of its defaulting officer. Dean v. Shingle, supra; compare, Winchester v. Howard, 136 Cal. 432, 64 P. 692, 69 P. 77, 89 Am. St. Rep. 153. In any event, this Court is not controlled by the label which the state court may affix to a liability growing out of a given state of facts. It determines for itself whether within the meaning of the Constitution the product is a contract to be pro- [285 U.S. 434, 450] tected by the power of the nation. Appleby v. City of New York, 271 U.S. 364, 380 , 46 S. Ct. 569; Coolidge v. Long, 282 U.S. 582, 597 , 51 S. Ct. 306. As to this, its judgment is guided by realities and not by words. The section of the Constitution whereby contracts are secured against impairment is aimed at true agreements, and not at quasi contracts as distinguished from agreements implied in fact. Crane v. Hahlo, 258 U.S. 142, 146 , 42 S. Ct. 214; Louisiana v. New Orleans, 109 U.S. 285, 288 , 3 S. Ct. 211. Here whatever duty was assumed by a director through the acceptance of his office, was one that he owed in the first instance to the corporation itself, though the creditors and shareholders were privileged to enforce it. Dean v. Shingle, supra. Payment to the corporation before action brought would establish a defense, and even after action brought, any surplus remaining would go into the treasury. A distinction may exist between a liability cast upon directors and one cast upon the shareholders, who are quasi partners in the venture. Corning v. McCullough, 1 N. Y. 47, 49 Am. Dec. 287. To develop the implications of the distinction is unnecessary now.
I start then with the assumption that the petitioner had a contract with a corporation secured in certain contingencies by a statutory liability. I add the assumption that the state of California was not at liberty, after the contract had been made and a cause of action had accrued thereunder, to make the security defeasible if it was indefeasible in its origin. Either the article of the Constitution prohibiting the impairment of contracts (U. S. Constitution, art. 1, 10) or the Fourteenth Amendment (which, however, is not invoked) might then stand in the way. Hawthorne v. Calef, 2 Wall. 10; Steamship Co. v. Joliffe, 2 Wall. 450; Ettor v. Tacoma, 228 U.S. 148 , 33 S. Ct. 428; Forbes Pioneer Boat Line v. Board of Commissioners, 258 U.S. 338 , 42 S. Ct. 325. The difficulty with the petitioner's case is this, that his security in its origin was not vested, but contingent. The meaning of the California Constitution [285 U.S. 434, 451] is whatever the courts of California declare it to be. The obligation of the petitioner's contract is whatever the law of California attached to the contract at the hour of its making. Long before that time, the Supreme Court of that state had held that under the law of California a statutory cause of action, whether penal or remedial, may be canceled or modified by repeal or amendment until it has ripened into a judgment. Moss v. Smith, 171 Cal. 777, 788, 155 P. 90; Napa State Hospital v. Flaherty, 134 Cal. 315, 66 P. 322; Willcox v. Edwards, 162 Cal. 455, 466, 123 P. 276, Ann. Cas. 1913C, 1392. Compare Combes v. Franklin (Cal. Sup.) 1 P.(2d) 992, Id. ( Cal. Sup.) 4 P.(2d) 157, the decision under review. Consistent with these decisions is a provision of the Political Code: 'Any statute may be repealed at any time, except when it is otherwise provided therein. Persons acting under any statute are deemed to have acted in contemplation of this power of repeal.' California Political Code, 327, quoted in Moss v. Smith, supra, at page 787, of 171 Cal., 155 P. 90, 94. I assume for present purposes that the rule thus announced would be held of no effect if the statute and decisions declaring it had been made after Coombes became a creditor. Made as they were before that time they were reservations or conditions limiting the statutory liability, and to be read into the statute, and hence into any contract to which the statute was an incident, as if written there in words. Citizens' Savings Bank v. Owensboro, 173 U.S. 636, 644 , 19 S. Ct. 530; Farmers' Bank v. Fed. Reserve Bank, 262 U.S. 649, 660 , 43 S. Ct. 651, 30 A. L. R. 635. 'The claim of an irrepealable contract cannot be predicated upon a contract which is repealable.' Hammond Packing Co. v. Arkansas, 212 U.S. 322, 346 , 29 S. Ct. 370, 378, 15 Ann. Cas. 645. Either the petitioner took his cause of action subject to such infirmities or contingencies as were attached to it by the law of the state of its creation, or he did not take anything.
This view of the case puts aside as irrelevant the provision of the California Constitution permitting the [285 U.S. 434, 452] amendment of corporate charters, and sustains the repeal upon the ground that the liability by the law of its creation was defeasible in its origin.

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Magliacane v. City of Gardner et al.
Shapiro Haber & Urmy LLP has filed a class action lawsuit against the City of Gardner, Massachusetts, Suez Water Environmental Services, Inc. and AECOM Technical Services, Inc. The suit alleges that Gardner and the companies the City hired to manage its water supply were negligent and they sold, supplied, and distributed corrosive water to Gardner residents and businesses. That corrosive water is alleged to have caused damage to copper heating coils, water heaters, and boilers. Some residents allegedly had to replace copper heating coils on multiple occasions. The class action is brought on behalf of all residents and businesses in Gardner whose copper heating coils, water heaters, and boilers have been damaged by the corrosive water.
The Complaint alleges that Gardner and its water companies have known for years that the water was corrosive and failed to implement their own plan to protect against corrosion that was recommended by City consultants. The Complaint further alleges that the City and its water companies knew for years that they could fix the problem by adjusting the water chemistry through the addition of a orthorphosphate corrosion protector. In August 2017, Gardner announced its plan to add orthophosphates to the water supply. Nevertheless, Shapiro Haber & Urmy claims that as of the time the case was filed, this solution had still not been implemented. To read the class action complaint click here.
Aspinall v. Philip Morris Companies, Inc.
Shapiro Haber & Urmy LLP is currently representing a certified class of Massachusetts residents and other regular purchasers from neighboring states who bought Marlboro Lights cigarettes in Massachusetts between approximately 1994 and 1998. The consumers challenge the labeling of such cigarettes as "Lights" and delivering "Lowered Tar and Nicotine" as false and misleading, in violation of the Massachusetts consumer protection statute. You can read the Plaintiffs’ Third Amended Class Action Complaint by clicking here, and the Defendants' Answers to the Complaint by clicking here.
The case was originally certified as a class action in October of 2001 and affirmed by the Supreme Judicial Court of Massachusetts in August of 2004, which is reported at 442 Mass. 381 (2004). The favorable decision of the Supreme Judicial Court in this action has been essential in ensuring the rights of Massachusetts consumers to bring their claims for unfair and deceptive business practices in the form of a class action.
The firm also successfully prevailed against Philip Morris' argument that a consumers' claims under state law were preempted by federal law and the actions of the Federal Trade Commission, before both the Massachusetts Superior Court and the Supreme Judicial Court, which is reported at 453 Mass. 431 (2009).
Following a five week trial in late 2015, the Court found that by making health reassurance claims about Marlboro Lights, Philip Morris engaged in willful and knowing violations of the Massachusetts consumer protection laws. The Court awarded the Class damages in the statutory of $4,942,500, plus prejudgment interest calculated at the rate of 12% per year starting on November 25, 1998. To read the Court’s Findings of Fact and Conclusions of law please click here.
On April 26, 2016, the parties reached a proposed settlement of this case that will be reviewed by the Court at a hearing on September 29, 2016. Under the proposed settlement, Philip Morris has agreed to pay the Class the full amount that was awarded by the Court after the trial, which totals $15,273,815. If the settlement is approved, Class members who submit valid and timely Claim Forms will receive equal shares of the net recovery, up to a maximum amount of $225 per Class member.
To learn more about the settlement and how to submit a Class Form, please visit the settlement website: www.MALightsSettlement.com.
Shapiro Haber & Urmy LLP represents a class of purchasers of General Motors’ sales of cars with false statements on the new car window labels. On the new car window labels for several vehicle models, including the 2014 Cadillac CTS Sedan and the 2014 Cadillac CTS VSport, General Motors stated that the cars had achieved 5-star National Highway Traffic Safety Administration (NHTSA) safety ratings for three different crash tests. In fact, those model cars had not been crash tested by the NHTSA at all. General Motors has admitted that the new car window labels falsely represented that the cars had been crash tested and received 5-star NHTSA safety ratings when, in fact, they had not been crash tested at all. It has done so in letters to some Cadillac purchasers. Click here to see an example of that letter.
Shapiro Haber & Urmy has brought a class action in the United States District Court for the Southern District of Florida on behalf of people who purchased General Motors cars with false new car window labels. That action is entitled Carriuolo v. General Motors Company, No. 14-61429. Click here to see the Class Action Complaint in that case. The District Court certified a class of Florida purchasers of the 2014 Cadillac CTS Sedans, and the Court of Appeals for the Eleventh Circuit has affirmed the certification of the class.
If you purchased a 2014 Cadillac, we would welcome the opportunity to speak with you, regardless of where you live. There would be no cost or obligation on your part in speaking with us. Please call Patrick Vallely or Edward Haber at (617) 439-3939 or 1-800-287-8119, e-mail us at shu@shulaw.com, or click here to contact us through our website.
Shapiro Haber & Urmy is representing Campaign for a Commercial Free Childhood (CCFC), a non-profit organization named as a cy pres recipient in the Settlement Agreement in Fraley v. Facebook, a class action lawsuit alleging that Facebook used members’ likenesses and names without consent – including minors between ages 13 and 17.
After Shapiro Haber & Urmy conducted an independent review of the settlement, CCFC determined that the settlement is “in direct violation of [its] mission to help parents raise healthy families by limiting commercial access to children.” CCFC then took the unprecedented step of rejecting the cy pres award and supporting the brief filed by Public Citizen on behalf of minors objecting to the settlement.
Further details on the Fraley v. Facebook case and CCFC’s objections can be found in recent articles by The Consumerist, the New York Times, and CCFC’s press release.
Shapiro Haber & Urmy has filed a class action lawsuit on behalf of all persons who used credit or debit cards at Target stores in Massachusetts between November 27 and December 15, 2013, and whose personal and/or financial information was taken. The case is Heller v. Target Corporation, Case Number 1:13-cv-13257 in the United States District Court, District of Massachusetts. If you used a credit or debit card at a Target store in Massachusetts between November 27 and December 15, 2013, and your personal and/or financial information was taken in the data breach, you would be a member of the putative class we seek to represent in the Heller action.
If you wish to join the lawsuit or discuss your rights in connection with the lawsuit, please contact us at 800-287-8119 or (617) 439-3939, or click here to contact us through our website.
Shapiro Haber & Urmy LLP is prosecuting a consumer class action on behalf of all persons who received arbitration awards against seven major auto insurance companies operating in Massachusetts in connection with underinsured, uninsured and third-party bodily injury motorist claims. The plaintiffs challenge the insurance companies' failure to pay interest from the date of the arbitration awards to the date that the insurance company paid the awards, and seek to recover the unpaid interest. In addition, the action seeks to recover triple damages and attorneys' fees under the Massachusetts' consumer protection statute. On February 25, 2009, the Superior Court held that insurance companies have a common law duty to pay post-award interest on arbitration awards from the date of the award to the date of payment. On March 3, 2010, the Court also ruled, among other things, that the applicable rate of interest on arbitration awards is 12% per annum.
Plaintiffs have reached settlements with six of the seven insurance companies. The Court has granted final approval to the settlements. As part of the settlements, these insurance companies have agreed to pay post-arbitration award interest to class members at 12% per annum, plus prejudgment interest on that amount. In addition, the settling companies have agreed to implement policies going forward whereby they will pay post-arbitration award interest at 12% per annum on all arbitration awards going forward except in a few specific situations.
Plaintiffs and their counsel continue vigorously to prosecute the case against Defendant Hanover Insurance Company. On May 21, 2012, the Court denied Hanover’s motion for a ruling that it could not be liable under Massachusetts’ consumer protection statute for its failure to pay post-arbitration award interest. In doing so, the Court ruled that the “evidence strongly suggests that Hanover had a company-wide policy of not paying interest, knowing that the amount at stake for any individual claim was too small to be pursued in court.” On June 28, 2012, the Court certified a class of all persons who obtained arbitration awards against Hanover Insurance Company or Hanover insureds under Massachusetts automobile insurance policies from March 26, 2003 to the present, including uninsured, underinsured or third-party bodily injury claims. Excluded from the class are any persons who were paid post-award interest at the time they were paid their arbitration awards.
Shapiro Haber & Urmy LLP, along with its co-counsel in Florida, is prosecuting a class action on behalf of medical service providers in the State of Florida against various health maintenance organizations ("HMOs") alleging that the HMOs failed to pay claims of non-participating medical service providers for medical services provided to the HMOs' insureds in a timely fashion, in violation of the prompt pay provisions of Florida's Health Maintenance Organization Act, Fla. Stat. § 641.355 (the "Act").
This case has already been to the Florida Supreme Court, where Shapiro Haber & Urmy LLP and its Florida co-counsel prevailed with a seminal ruling by the Florida Supreme Court that the prompt pay provisions under the Act are incorporated into the contracts between the HMOs and their insureds. The Court also ruled that non-participating medical service providers are third-party beneficiaries of those contracts and accordingly they may sue the HMOs for their failure to comply with the prompt pay provisions of the Act. Foundation Health v. Westside EKG, 944 So.2d 188 (Fla. 2006). The case is currently back in the trial court (Circuit Court of the 17th Judicial Circuit, in and For Broward County).
Shapiro Haber & Urmy LLP is counsel in a putative class action case filed in the Central Division of the District of Utah against Zions First National Bank and its parent Zions Bancorporation. The case alleges that Zions First National Bank and seven other subsidiaries of Zions Bancorporation (Amegy Bank of Texas, California Bank & Trust Co., The Commerce Bank of Oregon, The Commerce Bank of Washington, National Bank of Arizona, Nevada State Bank, and Vectra Bank Colorado) charged and collected excessive overdraft fees in connection with debit card transactions, manipulating the order in which credits and debit card charges were posted to customer accounts so as to maximize the number of overdrafts charged against the accounts, thereby increasing the overdraft fees collected from customers.
If you now have or have in the past had accounts with any of these banks, we would be interested in speaking with you about your experiences with them. Please call us at (617) 439-3939 or (800) 287-8119.
Shapiro Haber & Urmy LLP is co-counsel in a case filed in the United States District Court for the Southern District of Florida against Re$ubmitIt, LLC, BSG Financial, LLC, and BankAtlantic. The class action complaint alleges that Defendants improperly and unlawfully took $50 directly from Plaintiff’s bank account, without Plaintiff’s authorization or consent, as a purported “fee” for re-submitting to Plaintiff’s bank account a check that had been returned due to insufficient funds.
On August 7, 2012, the Judge in this case denied the Defendants’ Motions to Dismiss, finding that the Plaintiff’s Class Action Complaint contains plausible allegations that would be violations of the law if proven at trial.
If you have been charged a fee by Re$ubmitIt or any other company because you gave a store or other business a check which was returned due to insufficient funds (in addition to the fee charged by your bank), we would like to hear from you. You may have a claim against the company that charged you that fee, or against a company like Re$ubmitIt that took the money out of your bank account. Call us at (617) 439-3939 or click here to contact us through our website.
Shapiro Haber & Urmy LLP has filed a consumer class action against Wozo, LLC, Tatto, Inc., and Acknowledge, Inc. in the United States District Court for the District of Massachusetts for knowingly employing misleading and deceptive online advertising and violating the Electronic Funds Transfer Act. The Complaint alleges that Defendants advertised “free” posters with a 99-cent shipping fee. However, Defendants failed to adequately disclose that, in signing up for the “free” poster offer, consumers’ credit or debit cards would also be charged $29.99 each month for membership in a “poster club” in which they would receive two arbitrarily chosen posters per month. On March 28, 2012, the Judge in this case denied the Defendants’ Motions To Dismiss, finding that the Plaintiff’s First Amended Class Action Complaint contains plausible allegations that would be violations of the law if proven at trial.
Shapiro Haber & Urmy LLP is representing a group of lenders in a suit pending in Suffolk County (MA) Superior Court that alleges legal malpractice against the law firm that represented the lenders with respect to a mortgage on commercial real estate. The complaint alleges that the law firm had undisclosed conflicts of interest and failed to disclose material facts.