The Wave of Website and Other ADA Accessibility Claims – What You Should Know | Littler Mendelson P.C.
Title III of the Americans with Disabilities Act (ADA), providing for equal access for persons with disabilities in places of public accommodation, has made the country far more accessible. Yet, given its highly technical (and often ambiguous) design, plaintiffs’ firms and disability rights advocates file claims over unlawful barriers and technical violations against even the most conscientious places of public accommodation (e.g., hotels, restaurants, theaters, convention centers, stores, service establishments, healthcare facilities, transportation depots, libraries, recreation places, schools, etc.). Fortunately for companies, Title III limits liability to injunctive relief and attorneys’ fees for prevailing parties, and creates opportunities to moot – or even foreclose – claims by eliminating barriers promptly or through a comprehensive remediation plan.
Although the 2008 amendments to the ADA (the ADAAA), which expanded interpretations of who is protected under the law, should not have appreciably impacted Title III claims in the same manner as employment claims, and 2010 changes to the design standards and regulations governing places of public accommodation did not radically alter the landscape for businesses, Title III claims are nonetheless on the rise. In 2014, the Wall Street Journal reported that Title III lawsuits had increased by 55% from the prior year.1 The U.S. Department of Justice (DOJ), which enforces Title III, received 6,391 accessibility complaints in fiscal year 2015 – representing a 40% increase over claims in the prior fiscal year. Claims cover areas as diverse as barriers to wheelchairs in physical facilities, parking lots, gas station pumps, acceptance of service animals, effective communication for deaf and hard-of-hearing individuals, access to treatment in healthcare facilities and website accessibility by vision and hearing-impaired persons. Although this article focuses mainly on website accessibility, the basic principles of self-monitoring and eliminating barriers through alterations and training hold true for all Title III claims.
Over the past few months, companies across the country have received demand letters from plaintiffs’ firms and some disability rights advocacy groups alleging the company is violating Title III of the ADA because its website is not sufficiently accessible to individuals with disabilities – mainly vision impairments, but hearing impairments are at issue too if a website includes video. The letters claim that unless the company modifies its website to meet the standards in the World Wide Web Consortium’s (W3C) Web Content Accessibility Guidelines (WCAG 2.0 AA), the company will continue to violate Title III. The demand letter then asks recipients to pay a settlement (based on fees and costs) and agree to modify their websites and permit the plaintiffs’ experts to assist and monitor whether the website stays in compliance with the WCAG 2.0 AA standards.
Dozens of lawsuits have also been filed in the past few months seeking to force companies to modify their websites to conform to the WCAG 2.0 AA Guidelines.
Web Content Accessibility Guidelines are a set of technical standards developed through an open, collaborative process involving both individuals and organizations around the world. Its goal is to provide a single, shared standard for web content accessibility that meets the needs of individuals, organizations and governments internationally. The WCAG 2.0 AA standards also have been incorporated into an ISO standard by the International Organization for Standardization, but the ISO standard is not law.
What Types of Issues Might Individuals with Disabilities Encounter in Accessing Websites?
Individuals with disabilities—such as vision-impaired or hearing-impaired individuals—may require assistive devices and specialized software to access the Internet. These devices often include software that enables them to magnify the content of a web page, reads the content to them, or enables them to use a braille reader to read a website. Some individuals with disabilities cannot use a mouse and can only navigate with a keyboard, touchscreen or voice recognition software. For persons with hearing impairments, the visual aspects of a website are accessible but video on a website may not be. Plaintiffs claim that many websites or elements of companies’ websites are not compatible with reading devices and deprive individuals with disabilities the ability to use and enjoy the services offered on the web.
What Does Title III of the ADA Require?
Title III of the ADA requires individuals with a disability be offered the “full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.”2 It requires that places of public accommodation make reasonable modifications to eliminate barriers to that enjoyment, including changing policies and procedures, removing structural barriers and providing auxiliary aides and services to enable disabled individuals to enjoy the place of public accommodation. There are 12 categories of places of public accommodation in Title III, but given that the statute was passed in 1990, there are no references in that list to the Internet or websites.3 Regulations and standards expected to be issued by the Department of Justice, however, may seek to change this. Nevertheless, the DOJ recently announced it would not promulgate such regulations until at least 2017. By contrast, the U.S. Department of Health and Human Services and the Federal Access Board (discussed below) are moving more quickly to issue regulations or standards that would incorporate WCAG 2.0 AA. Because of legislation passed in 2011, airlines must already meet these standards.
The Ninth Circuit and a few other courts have taken a hybrid approach, finding that to be considered a place of public accommodation, there must be “some connection between the good or service complained of and an actual physical place.”6 In one of the most well-known cases challenging the accessibility of websites, National Federation of the Blind v. Target Corp., the district court denied a motion to dismiss a Title III suit to the extent the claim was that the inaccessibility of the website impeded the full enjoyment of goods and services found in Target stores.7 The court then noted that because Target’s website and physical stores appeared to be heavily integrated, the scope of the coverage of the website under Title III could be quite broad. The case settled, and representatives from Target have since made presentations on accessibility at the National Federation of the Blind’s national convention.
Significantly, Title III website accessibility may not apply to business-to-business websites. Also important, for companies that require applicants to apply for employment through a website, an ADA Title I issue may arise in regard to ADA accessibility and accommodations. Remedying that issue should not require WCAG 2.0 AA compliance, but some means of providing accommodation to a vision-impaired applicant should be available, even if that accommodation is simply providing an alternative way for an individual to submit his or her application.
What Regulations or Guidelines Have Been Issued to Require Websites to Meet Certain Accessibility Standards?
The DOJ, which is charged with enforcing Titles II and III of the ADA, has taken steps to provide guidance in this area, but it has moved slowly. Over five years ago, it began the rulemaking process by issuing an Advanced Notice of Proposed Rulemaking on the accessibility of website information and services. The DOJ sought public comment on its proposal that state and local governments and places of public accommodation make their websites and related services accessible to individuals with disabilities.8 In the Notice, the DOJ asked for public input as to whether it should adopt the standards in WCAG 2.0 AA. It acknowledged that there may be more effective alternatives to what is set forth in the WCAG 2.0 AA Guidelines. At the same time, it noted that the rights of individuals with disabilities must be balanced against the difficulty of providing alternative, accessible means of accessing services through the web.9 The comment period lasted nearly six months.
After years of delay, this past fall, the DOJ announced that it expects to issue a proposed rule under Title II of the ADA, which covers public entities – i.e., state and local governments, departments and instrumentalities – in fiscal year 2016.10 The DOJ stated it plans to use the information it learns from the notice and comment period on that proposed rule to draft regulations and standards under Title III of the ADA in fiscal year 2018. Based on the DOJ’s projected timeline, it will not issue regulations until well after a new administration takes office in January 2017.
Even in the absence of clear regulatory standards, the DOJ and private plaintiffs have embraced the position that websites should be accessible. In fact, the DOJ seems to be asserting in its investigations and settlement agreements that WCAG 2.0 AA is the only means of providing website accessibility to vision-impaired consumers and users.11 Absent regulatory requirements, however, that position seems questionable. Although DOJ’s settlements are not binding legal authority, they reveal DOJ’s consistent position on websites.
In the meantime, the Architectural Barriers and Compliance Access Board (Access Board), an independent federal agency that promotes equality for people with disabilities by developing accessibility guidelines and standards, issued a proposed rule in 2015 that would update the accessibility requirements for information and communication technology in the federal sector covered by Section 508 of the Rehabilitation Act.12 Section 508 is not applicable to the private sector, except potentially by contract with the federal government. The proposed rule, however, would incorporate by reference the WCAG 2.0 AA Guidelines and apply them to not only web-based content, but to non-web-based electronic documents and software. The comment period closed May 25, 2015, and the Access Board currently projects it will issue the final rule by October 2016.13 Many observers predict that the Access Board’s proposed rule, which essentially incorporates the entirety of WCAG 2.0 AA, provides a preview to the content for DOJ rules and standards governing places of public accommodation under Title III.
What Would Complying with WCAG 2.0 AA Entail?
Create content that can be presented in different ways (e.g., with a simpler layout) without losing information or structure.
Make it easier for users to see and hear content by, among other things, separating foreground from background.
Make all functionality available from a keyboard, provide users with sufficient time to read and use content, not design content in a way that is known to cause seizures and provide ways to help users navigate, find content and determine where they are on the website.
Maximize compatibility with assistive technologies on user computers and devices.
Making these types of changes to an existing website or designing a new website with all of this functionality is both a time-consuming and expensive undertaking, and may not ultimately be required if the DOJ adopts a different or nuanced standard. This reality makes a quick remedial plan nearly impossible and is in sharp contrast to the remedial fix of an accessible ramp, which can be built in a day or two. WCAG 2.0 AA developmental plans may take 12-24 months to complete, with costs as high as half a million dollars.
The absence of clear direction from the courts or the DOJ leaves companies in a difficult position. Even in areas where courts have determined that at least some websites are places of public accommodation, the standard by which a court will judge whether a website is sufficiently accessible so that it complies with Title III remains unsettled. It certainly is possible that reader devices, electronic braille and connections made to live persons who can assist a vision-impaired person (among other options) may be viable alternatives to WCAG 2.0 AA in providing reasonable accessibility, but no courts have yet analyzed that issue in any depth. As for hearing-impaired persons, the video issue is less complicated – embedded transcripts and closed captioning are far easier and less expensive remedies than WCAG 2.0 AA implementation.
Since many website cases were filed in late 2015 and early 2016, it will take time for trial courts to rule and for any appeals to be heard. If the DOJ adheres to its recently revised timeline, it will at best be another year or two until proposed standards will be available. Even if the standards the DOJ proposes are adopted, the agency will almost certainly provide a grace period after it publishes its final rule to allow companies to come into compliance with the standards. Of course, the DOJ, the private bar and disability advocacy groups can – and most certainly have been – making demands and suing in the interim.
If a company is contemplating rolling out a new website, it may want to work with its website designers and vendors on designing the website to meet the Level AA requirements of WCAG 2.0, to the extent practicable and readily achievable. The cost of such an approach, however, is an important consideration. Companies that are not developing a new website may still opt to assess their level of accessibility, and collaborate with their website designers and vendors with experience in website accessibility and with counsel experienced in Title III litigation over other available options to promote accessibility as well as the risks and benefits inherent in such alternatives.
Companies may want to review the WCAG 2.0 AA Guidelines to understand the types of issues the guidelines address and determine if there might be other website modifications that would improve the accessibility of their website for disabled individuals. For example, could the company refer disabled customers to a telephone line through which they could obtain information that is otherwise available on the website? If a company has video on the website, could the same content be provided in written form or with close captioning? Could the company increase the font size used on the website or include a feature that would enable users to increase the font size? Could the company use simpler, sans serif fonts that tend to be easier to read by most people and by many forms of assistive technology? Could the company adopt a uniform style sheet for its website pages to make navigation easier, particularly for users who rely upon electronic braille?
Companies should also continue to monitor how the courts are dealing with these issues, and consider ways to respond if and when they receive a complaint from a customer about website accessibility. The same level of thought should be applied to the accessibility of physical locations. Companies should also anticipate that similar accessibility claims may be on the horizon regarding phone and tablet apps.
The authors are among a group of attorneys in Littler’s Leave of Absence and Disability Accommodations Practice Group who deal with Title III matters.
1 Angus Loten, Disability Lawsuits Against Small Businesses Soar, Wall St. J., Oct. 15, 2014, available at http://www.wsj.com/articles/disabled-access-new-legal-push-1413411545.
2 42 U.S.C. § 12812(a).
3 42 U.S.C. § 12181(7).
4 See, e.g., Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999) (noting that websites would be covered by Title III); Carparts Dist. Ctr., Inc. v. Automotive Wholesaler’s Assn’n of New England, 37 F.3d 12 (1st Cir. 1994) (finding that insurance offerings are subject to Title III).
5 See, e.g., Stoutenborough v. National Football League, Inc., 59 F.3d 580 (6th Cir. 1995) (finding that unlike stadiums, access to TV broadcasts is not covered by Title III); Ford v. Schering Plough Corp., 145 F.3d 601 (3d Cir. 1998) (finding that a public accommodation is a physical place).
6 Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000).
7 452 F. Supp. 2d 946 (N. D. Cal. 2006).
8 Advanced Notice of Proposed Rulemaking, Non-Discrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, 75 Fed. Reg. 43,460 (July 26, 2010).
10 U.S. DOJ Statement of Regulatory Priorities (Fall 2015), available at http://www.reginfo.gov/public/jsp/eAgenda/StaticContent/201510/Statement_1100.html.
11 See, e.g., U.S. DOJ, Press Release, Justice Department Enters into a Settlement Agreement with Peapod to Ensure that Peapod Grocery Delivery Website is Accessible to Individuals with Disabilities Nov. 17, 2014, available at http://www.justice.gov/opa/pr/justice-department-enters-settlement-agreement-peapod-ensure-peapod-grocery-delivery-website.
12 Notice of Proposed Rulemaking, Information and Communications Technology (ICT) Standards and Guidelines, 80 Fed. Reg. 10,880 (Feb. 27, 2015).


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However, we would like to point out that data transmission via the World Wide Web can generally have security gaps.
If you wish to use our company's services and do not want to use the means of data transmission via the World Wide Web, it is also possible to contact us by phone.
The provider of the pages automatically collects and stores information in server log files, which your browser automatically transmits to us.
and to provide law enforcement agencies with the information required for criminal prosecution in the event of a cyber attack.
This data is stored for a maximum of 7 days as a technical precaution to protect the data processing systems against unauthorised access.
When you submit your application (either online or by mail), we collect and process various personal data items related to your application. In particular, this includes your contact information (name, address, telephone number and e-mail), application documents (cover letter, CV, references or other certificates and qualifications). As part of an online application via the application form, transmission shall only be effected via an encrypted site in line with the currently accepted state of the art in order to ensure that your personal data and application documents are protected against manipulation and unauthorised access. After sending, you will receive an e-mail confirming receipt of the documents. Personal data related to your application is collected and processed exclusively for the purposes of filling positions within our company. Your data will only ever be forwarded to internal departments and specialist units that are responsible for the specific application process. Your personal application data shall not be passed on to other companies without your prior express consent. Your application data shall not be used or shared with third parties beyond the scope described here.
Your personal application data shall generally be erased automatically three months after the application process has ended. This does not apply if erasure is contrary to legal provisions, if storage for a longer period is required for the purposes of providing evidence, or if you have expressly agreed to have your data stored for a longer period, e.g. for future job postings. If an employment contract is concluded with an applicant, the transmitted data shall be stored for the purposes of handling the employment relationship in accordance with the legal requirements.
If you send us enquiries via the contact form, your details from the enquiry form, including the contact data you have provided on the form, shall be stored for the purposes of processing the enquiry or if there are follow-up questions. We shall not disclose this data to third parties without your consent. The data entered in the contact form shall therefore be processed solely on the basis of your consent (Art. 6 (1) (a) GDPR). You may withdraw this consent at any time. An informal e-mail message to us is sufficient for this purpose. The legality of the data processing carried out up to withdrawal remains unaffected by the withdrawal. The data entered by you in the contact form shall remain with us until you request that we delete it, withdraw your consent to store it or the purpose for storing the data no longer applies (e.g. after your request has been processed). Mandatory statutory provisions - in particular retention periods - remain unaffected. Such personal data transmitted to us by you on a voluntary basis shall be stored for the purposes of handling your enquiry or contacting the data subject. This personal data is not passed on to third parties.
We collect, process and use personal data only to the extent that they are necessary for the establishment, content or modification of the legal relationship (stock data). This is based on point (b) of Art. 6 (1) GDPR, which allows the processing of data for the performance of a contract or precontractual measures.
We collect, process and use personal data on our website (usage data) only to the extent that this is necessary in order to enable users to use the service and to charge them for the service.
Additional information that is required for the preparation, execution and fulfilment of the contract you have entered into.
The data processing is based on your request and is necessary in accordance with point (b) of Art. 6 (1) GDPR for the stated purposes for the proper processing of the contract.
The data collected by us are stored until the end of the statutory retention period (10 years after the end of the calendar year in which the customer relationship was terminated) and then erased, unless we are obliged to longer storage due to tax and commercial retention and documentation periods (from the German Commercial Code (HGB), German Penal Code (StGB) or German Fiscal Code (AO)) or you have consented to longer storage.
Your personal data will not be disclosed to third parties for purposes other than those mentioned below.
Your personal data will be disclosed to third parties to the extent that this is required according to point (b) of Art. 6 (1) sentence 1 GDPR for the execution of the contract. This includes in particular the disclosure to service providers such as transport and logistics companies. The data provided may only be used by the service providers for the stated purposes.
Our website uses plugins from the YouTube site operated by Google. The operator of the sites is YouTube, LLC, 901 Cherry Ave., San Bruno, CA 94066, USA. If you visit one of our pages featuring a YouTube plugin, a connection to the YouTube servers is established. The YouTube server is informed about which of our pages you have visited. If you are logged in to your YouTube account, YouTube allows you to associate your browsing behaviour directly with your personal profile. You can prevent this by logging out of your YouTube account. YouTube is used to help make our online offering appealing. This constitutes a legitimate interest pursuant to Art. 6 (1) (f) GDPR.
This page uses web fonts provided by Google to ensure the uniform representation of fonts. When you open a page, your browser loads the required web fonts into your browser cache to display texts and fonts correctly.
For this purpose, your browser has to establish a direct connection to the Google servers. Google thus becomes aware that our web page was accessed via your IP address. The use of Google web fonts is done in the interest of a uniform and attractive presentation of our online offering. This constitutes a legitimate interest pursuant to Art. 6 (1) (f) GDPR. If your browser does not support web fonts, a standard font is used by your computer.
This site uses the Google Maps map service via an API. The provider is Google Inc., 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA. To use the Google Maps functions, it is necessary to save your IP address. This information is generally transmitted to a Google server in the USA and stored there. The provider of this site has no influence on this data transfer. The use of Google Maps is done in the interest of making our online offering appealing and to facilitate the location of places specified by us on the website. This constitutes a legitimate interest pursuant to Art. 6 (1) (f) GDPR.
This site uses SSL or TLS encryption for security reasons and for the protection of the transmission of confidential content, such as orders or enquiries you send to us as the site operator. You can recognise an encrypted connection in your browser’s address line when it changes from “http://” to “https://” and the lock icon is displayed in your browser’s address bar.
We hereby expressly prohibit the use of contact data published in the context of our legal notice requirements with regard to sending advertising and information materials that have not been expressly requested. The operators of the websites reserve the express right to take legal action in the event of unsolicited advertising information being sent, such as via spam e-mails.
We process and store your personal data only for the period of time required to achieve the respective purpose of storage or as required by the various retention periods provided for by law.
After discontinuation of a storage purpose or after expiry of the retention period provided by law, the personal data is routinely blocked or deleted for further processing in accordance with the statutory regulations.
You are entitled, at any time, to obtain information about what categories and information with regard to your personal data are processed by us for what purpose and how long and according to what criteria this data is stored and whether automated decision making, including profiling, is used in this context. Moreover, you are entitled to find out what recipients or categories of recipient to whom your data has been or will be disclosed, in particular with respect to recipients in third countries or international organisations. In this case, you are also entitled to be informed of the appropriate safeguards related to the transmission of your personal data.
In addition to the right to lodge a complaint with a supervisory authority and the right to information about the origin of your data, you have the right to erase and rectify your data as well as the right to restrict or object to the processing of your personal data. In all the aforementioned cases, you have the right to request a free copy of your personal data that is processed by us from the data processor. For all further copies which you request or which go beyond the data subject's right of access, we are entitled to charge a reasonable administration fee.
You have the right to request the rectification of your inaccurate personal data without undue delay and - taking into account the purposes of the processing - the right to have incomplete personal data completed, including by means of providing a supplementary statement.
If you wish to exercise the right to rectification, you can contact our data protection officer or the data controller at any time.
You have the right to request the immediate erasure of your data ("right to be forgotten"), in particular if storage of the data is no longer necessary, if you have withdrawn your consent to data processing, if your data has been unlawfully processed or collected or if there is a legal obligation to erase the data under EU or national law.
However, the right to be forgotten does not apply if there is a prevailing right to freedom of expression or information, if storage of the data is required for compliance with a legal obligation (e.g. retention obligations), if archiving purposes prevent erasure or if storage is necessary for the establishment, exercise or defence of legal claims.
You have the right to request that the controller restrict the processing of your data if you are contesting the accuracy of the data, if the processing is unlawful, if you oppose the erasure of your personal data and are requesting instead that processing of your data be restricted, if the personal data is no longer needed for the purposes of processing or if you have objected to the processing of your data pursuant to Article 21(1), as long as it is not yet clear whether there are any legitimate reasons on our part which outweigh yours.
You have the right to the portability of your personal data which you have provided to our company in the form of a commonly used format, so that you can have this data transferred to another controller without hindrance as long as you have consented and the processing is carried out by automated means.
You have the right to object to the collection, processing or use of your personal data for the purposes of direct marketing or market and opinion research as well as general commercial data processing, unless we can demonstrate compelling legitimate grounds for the processing which override your interests, rights and freedoms. Moreover, you may not exercise your right to object if a legal provision provides for the collection, processing or use of the data or imposes an obligation to collect, process or use the data.
You may lodge a complaint with a supervisory authority at any time, e.g. with the competent supervisory authority for the Bundesland [Federal State] of your habitual residence or with the competent authority responsible for us.
You may withdraw your consent to the processing of your personal data at any time and without giving reasons. This also applies to the withdrawal of declarations of consent that have been granted to us before the entry into force of the EU General Data Protection Regulation.
In the processing of personal data for which we obtain consent from the data subject, Art. 6 (1) sentence 1 a) of the General Data Protection Regulation (GDPR) serves as the legal basis.
In the processing of personal data which is required to fulfil a contract to which the data subject is a party, Art. 6 (1) sentence 1 b) General Data Protection Regulation (GDPR) serves as the legal basis. This regulation also covers processing procedures which are necessary for carrying out the steps prior to entering into a contract.
If the processing of personal data is necessary for compliance with a legal obligation to which our company is subject, Art. 6 (1) sentence 1 c) (GDPR) serves as the legal basis.
If processing is necessary in order to safeguard a legitimate interest of our company or a third party and if the interests, fundamental rights and freedoms of the data subject do not override the former interest, Art. 6 (1) sentence 1 f) serves as the legal basis for the processing. The legitimate interest of our company lies in the performance of our business activities as well as in the analysis, optimisation and maintenance of the security of our online offering.
We only transfer data if there is a legal obligation to do so. This is the case if state institutions (e.g. law enforcement agencies) request information in writing or there is a court order.
No transmission of personal data to what are referred to as third countries outside the EU/EEA area shall take place.
We hereby point out that the provision of personal data is required by law in certain cases (e.g. tax regulations) or may result from contractual regulations (e.g. information relating to or provided by the contracting party). For example, for the purposes of concluding a contract it may be necessary for the data subject/contracting party to provide their personal data so that we can process their request (e.g. an order). An obligation to provide personal data primarily arises when entering into a contract. If no personal data is provided in this case, the contract cannot be concluded with the data subject. Before the data subject provides personal data, the data subject may consult our data protection officer or the controller responsible for processing. The data protection officer or the controller responsible for processing shall then explain to the data subject whether the provision of the required personal data is legally or contractually stipulated or is required to conclude the contract, and whether the data subject is required to provide the personal data based on their request or what consequences the non-provision of the desired data has for the data subject.
As a company which is aware of its responsibility, we shall refrain from automatic decision making or profiling in the context of our business relationships.

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Kumaraswamy M, Collignon S, Do C, Kim J, Nizet V, Friend J. Decontaminating surfaces with atomized disinfectants generated by a novel thickness-mode lithium niobate device. Appl Microbiol Biotechnol. 2018 Aug; 102(15):6459-6467. PMID: 29804135.
Askarian F, Lapek JD, Dongre M, Tsai CM, Kumaraswamy M, Kousha A, Valderrama JA, Ludviksen JA, Cavanagh JP, Uchiyama S, Mollnes TE, Gonzalez DJ, Wai SN, Nizet V, Johannessen M. Staphylococcus aureus Membrane-Derived Vesicles Promote Bacterial Virulence and Confer Protective Immunity in Murine Infection Models. Front Microbiol. 2018; 9:262. PMID: 29515544.
Kumaraswamy M, Do C, Sakoulas G, Nonejuie P, Tseng GW, King H, Fierer J, Pogliano J, Nizet V. Listeria monocytogenes endocarditis: case report, review of the literature, and laboratory evaluation of potential novel antibiotic synergies. Int J Antimicrob Agents. 2018 Mar; 51(3):468-478. PMID: 29337066.
Sakoulas G, Kumaraswamy M, Kousha A, Nizet V. Interaction of Antibiotics with Innate Host Defense Factors against Salmonella enterica Serotype Newport. mSphere. 2017 Nov-Dec; 2(6). PMID: 29242830.
Sakoulas G, Olson J, Yim J, Singh NB, Kumaraswamy M, Quach DT, Rybak MJ, Pogliano J, Nizet V. Cefazolin and Ertapenem, a Synergistic Combination Used To Clear Persistent Staphylococcus aureus Bacteremia. Antimicrob Agents Chemother. 2016 11; 60(11):6609-6618. PMID: 27572414.
Kumaraswamy M, Lin L, Olson J, Sun CF, Nonejuie P, Corriden R, Döhrmann S, Ali SR, Amaro D, Rohde M, Pogliano J, Sakoulas G, Nizet V. Standard susceptibility testing overlooks potent azithromycin activity and cationic peptide synergy against MDR Stenotrophomonas maltophilia. J Antimicrob Chemother. 2016 May; 71(5):1264-9. PMID: 26832758; PMCID: PMC4830416 [Available on 05/01/17].
Sakoulas G, Kumaraswamy M, Nonejuie P, Werth BJ, Rybak MJ, Pogliano J, Rice LB, Nizet V. Differential Effects of Penicillin Binding Protein Deletion on the Susceptibility of Enterococcus faecium to Cationic Peptide Antibiotics. Antimicrob Agents Chemother. 2015 Oct; 59(10):6132-9. PMID: 26195528; PMCID: PMC4576044.
Lin L, Nonejuie P, Munguia J, Hollands A, Olson J, Dam Q, Kumaraswamy M, Rivera H, Corriden R, Rohde M, Hensler ME, Burkart MD, Pogliano J, Sakoulas G, Nizet V. Azithromycin Synergizes with Cationic Antimicrobial Peptides to Exert Bactericidal and Therapeutic Activity Against Highly Multidrug-Resistant Gram-Negative Bacterial Pathogens. EBioMedicine. 2015 Jul; 2(7):690-8. PMID: 26288841; PMCID: PMC4534682.

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G.R. No. 162802, October 09, 2013 - EDS MANUFACTURING, INC., Petitioners, v. HEALTHCHECK INTERNATIONAL INC., Respondent.
EDS MANUFACTURING, INC., Petitioners, v. HEALTHCHECK INTERNATIONAL INC., Respondent.
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking the reversal of the Decision1 dated November 28, 2003 and Resolution2 dated March 16, 2004 of the Court of Appeals (CA) in CA-G.R. CV No. 69420.
The plaintiff Healthcheck Inc. is a Health Maintenance Organization (HMO) that provides prepaid health and medical insurance coverage to its clients. To undergird its program, it maintains a network of accredited hospitals and medical clinics, one of which is the De La Salle University Medical Center located at Dasmariñas, Cavite. Being within the access of this medical facility, the defendant Eds Manufacturing Inc. with about 5,000 employees at Imus, Cavite saw fit in April 1998 to obtain insurance coverage from it. They entered into a one-year contract from May 1, 1998 to April 30, 1999 in which HCI was to provide the 4,191 employees of EMI and their 4,592 dependents as host of medical services and benefits. Attached to the Agreement was a Service Program which listed the services that HCI would provide and the responsibilities that EMI would undertake in order to avail of the services. Putting the Agreement into effect, EMI paid the full premium for the coverage in the staggering amount of P8,826,307.50.
“1) Healthcheck to furnish EMI with list of procedural enhancements by 7/24 (FRI)-hospitals & professional fees payment.
2) Healthcheck to reduce no. of accredited hospitals to improve monitoring of bills for payment & other problems.
3) EMI to study the possibility of adding ‘LIABILITY CLAUSE’ to existing contract; to furnish HC copy for its review.
4) No renewal of contract w/ HC should there be another suspension of services in any hospitals to be chosen (w/ regard to item #2.) w/in the present contract period.
Although HCI had yet to settle its accounts with it, DLSUMC resumed services on July 24. In another meeting with EMI on August 3, HCI undertook to settle all its accounts with DLSUMC in order to maintain its accreditation. Despite this commitment, HCI failed to preserve its credit standing with DLSUMC prompting the latter to suspend its accreditation for a second time from August 15 to 20. A third suspension was still to follow on September 9 and remained in force until the end of the contract period.
Until the difficulties between HCI and its client came to a head in September 1998, complaints from EMI employees and workers were pouring in that their HMO cards were not being honored by the DLSUMC and other hospitals and physicians. On September 3, EMI formally notified HCI that it was rescinding their April 1998 Agreement on account of HCI’s serious and repeated breach of its undertaking including but not limited to the unjustified non-availability of services. It demanded a return of premium for the unused period after September 3, giving a ballpark figure of P6 million.
What went in the way of the rescission of the contract, the fly in the ointment so to speak, was the failure of EMI to collect all the HMO cards of the employees and surrender them to HCI as stipulated in the Agreement. HCI had to tell EMI on October 12, 1998 that its employees were still utilizing the cards even beyond the pretermination date set by EMI. It asked for the surrender of the cards so that it could process the pretermination of the contract and finalize the reconciliation of accounts. Until we have received the IDs, HCI said, we will consider your account with us ongoing and existing, thus subject for inclusion to present billing and payment.
- Healthcheck’s accreditation with DLSUMC was suspended on July 17, August 15 and Sept. 9, 1998 by reason of Healthcheck’s unjustified failure to pay its benefits to the hospital.
- That Healthcheck’s accreditation with other hospitals and individual physicians was also suspended on various dates for the same reason.
- That, in effect Healthcheck managed to comply with its obligation only for the first 4 months of the year-long contract, or 1/3 thereof.
HCI pre-empted EMI’s threat of legal action by instituting the present case before the Regional Trial Court of Pasig. The cause of action it presented was the unlawful pretermination of the contract and failure of EMI to submit to a joint reconciliation of accounts and deliver such assets as properly belonged to HCI. EMI responded with an answer alleging that HCI reneged on its duty to provide adequate medical coverage after EMI paid the premium in full. Having rescinded the contract, it claimed that it was entitled to the unutilized portion of the premium, and that the accounting required by HCI could not be undertaken until it submitted the monthly utilization reports mentioned in the Agreement. EMI asked for the dismissal of the complaint and interposed a counterclaim for damages and unutilized premium of P5,884,205.
On appeal, the CA reversed the decision of the Regional Trial Court (RTC) of Pasig City and ruled that although Healthcheck International, Inc. (HCI) substantially breached their agreement, it also appears that Eds Manufacturing, Inc. (EMI) did not validly rescind the contract between them. Thus, the CA dismissed the complaint filed by HCI, while at the same time dismissing the counterclaim filed by EMI.
Undeterred, EMI filed a Motion for Partial Reconsideration against said decision. However, the same was denied in a Resolution dated March 16, 2004.
THE COURT OF APPEALS, WHILE CORRECTLY OVERTURNING THE RTC’S DECISION BY DISMISSING THE COMPLAINT, COMMITTED A REVERSIBLE AND GROSS ERROR WHEN IT LIKEWISE DISMISSED THE COUNTERCLAIM ON THE GROUND THAT PETITIONER EMI DID NOT ACTUALLY RESCIND THE CONTRACT WHICH RULING BY THE APPELLATE COURT ALREADY WENT BEYOND THE AGREED/SUBMITTED ISSUES FOR ADJUDICATION.
THE COURT OF APPEALS COMMITTED SERIOUS ERROR OF LAW IN ADMITTING THE UTILIZATION REPORTS AS COMPETENT EVIDENCE OF THE PURPORTED NON-RESCISSION, WHEN SUCH EVIDENCE IS DOUBLE HEARSAY INASMUCH AS THE PERSON WHO PREPARED THE SAME DID NOT TESTIFY IN COURT AND HIS UNAVAILABILITY WAS UNEXPLAINED.
Simply, the issue is whether or not there was a valid rescission of the Agreement between the parties.
In the present case, it is apparent that HCI violated its contract with EMI to provide medical service to its employees in a substantial way. As aptly found by the CA, the various reports made by the EMI employees from July to August 1998 are living testaments to the gross denial of services to them at a time when the delivery was crucial to their health and lives.
However, although a ground exists to validly rescind the contract between the parties, it appears that EMI failed to judicially rescind the same.
Clearly, a judicial or notarial act is necessary before a valid rescission can take place, whether or not automatic rescission has been stipulated. It is to be noted that the law uses the phrase “even though” emphasizing that when no stipulation is found on automatic rescission, the judicial or notarial requirement still applies.
What is more, it is evident that EMI had not rescinded the contract at all. As observed by the CA, despite EMI’s pronouncement, it failed to surrender the HMO cards of its employees although this was required by the Agreement, and allowed them to continue using them beyond the date of the rescission. The in-patient and the out-patient utilization reports submitted by HCI shows entries as late as March 1999, signifying that EMI employees were availing of the services until the contract period were almost over. The continued use by them of their privileges under the contract, with the apparent consent of EMI, belies any intention to cancel or rescind it, even as they felt that they ought to have received more than what they got.
1 Penned by Associate Justice Mario L. Guariña III, with Associate Justices Martin S. Villarama, Jr. and Jose C. Reyes, Jr., concurring; rollo, pp. 30-38.
6Viloria v. Continental Airlines, Inc., G.R. No. 188288, January 16, 2012, 663 SCRA 57, 86-87.
7 144 Phil. 1 (1970).
9 497 Phil. 490 (2005).
10Pryce Corporation v. PAGCOR, supra, at 505.
11F.F. Cruz & Co., Inc. v. HR Construction Corporation, G.R. No. 187521, March 14, 2012, 668 SCRA 302, 327.
12 418 Phil. 286, 294 (2001).
I agree that Healthcheck International, Inc.’s violation of its contract with Eds Manufacturing, Inc. is substantial. Its violation is enough ground for Eds Manufacturing, Inc. to resolve (or rescind) the contract in accordance with Article 1191 of the Civil Code.
Our jurisprudence, however, is replete with rulings clarifying when the resolving party needs to obtain a judicial decree of resolution.
However, We have also held that failure to judicially resolve the contract does not invalidate the resolution and that the right to resolve need not be invoked judicially. This is based on Article 1191 which makes the power to resolve an implication of reciprocal obligations. This means that the power emanates from the quality of the obligation – not from a stipulation or judicial decree.
The courts step into the picture only when the party who allegedly violated the contract disputes the other party’s unilateral resolution.6 In that case, the court determines whether there is indeed substantial breach of the contract to justify the party’s unilateral resolution of the contract.
In other words, the party who deems the contract violated may consider it resolved or rescinded, and act accordingly, without previous court action, but it proceeds at its own risk. For it is only the final judgment of the corresponding court that will conclusively and finally settle whether the action taken was or was not correct in law. But the law definitely does not require that the contracting party who believes itself injured must first file suit and wait for a judgment before taking extrajudicial steps to protect its interest. Otherwise, the party injured by the other’s breach will have to passively sit and watch its damages accumulate during the pendency of the suit until the final judgment of rescission is rendered when the law itself requires that he should exercise due diligence to minimize its own damages (Civil Code, Article 2203).
There is, therefore, support in saying that a judicial decree is not necessary to constitute a valid resolution. It is only necessary when the ground for the resolution is in dispute. A judgment on the validity of the resolution settles whether the unilateral resolution is proper.
In other words, while resolution may be valid even without a judicial decree, the other party may question in court the act of resolution in case of abuse by the resolving party. The party who unilaterally resolves a contract runs the risk of having his or her action corrected by the court by declaring it as invalid if he or she abuses or erroneously uses his or her power to resolve.
The invalidity of Eds Manufacturing, Inc.’s resolution of its contract with Healthcheck International, Inc. based on its failure to institute a judicial action for resolution is, therefore, disputable. Nevertheless, Eds Manufacturing, Inc.’s resolution is invalid because of its employees’ continued use of Healthcheck International, Inc.’s services even after the contract period. This contradicts the alleged intention to resolve the contract.
WHEREFORE, I vote to AFFIRM the Court of Appeals Decision dated November 28, 2003 and Resolution dated March 16, 2004.
1Rubio de Larena v. Villanueva, 53 Phil. 923 (1928); Iringan v. Court of Appeals, G.R. No. 129107, September 26, 2001, 366 SCRA 41, 47.
4 Philippine Amusement Enterprises, Inc. v. Natividad, No. L-21876, September 29, 1967, 21 SCRA 284, 289 cited in Tan v. Court of Appeals, G.R. No. 80479, July 28, 1989, 175 SCRA 656, 662.
5 Adelfa Properties, Inc. v. Court of Appeals, G.R. No. 111238, January 25, 1995, 240 SCRA 565, 588; See also Sps. Eduardo and Agustin v. CA, G.R. No. 84751, June 6, 1990, 186 SCRA 375, 381.
6Adelfa Properties, Inc. v. Court of Appeals, supra note 5, at 588.
7 G.R. No. L-28602, 146 Phil. 108 (1970).
10Casiño, Jr. v. Court of Appeals, G.R. No. 133803, September 16, 2005, 470 SCRA 57, 67-68 citing Multinational Village Homeowners Association, Inc. v. Ara Security & Surveillance Agency, Inc., G.R. No. 154852, October 21, 2004, 441 SCRA 126, 135.

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Stephen J. Eisenberg, Madison, Wis., for defendant-appellant.
Mark A. Cameli, Asst. U.S. Atty., Madison, Wis., for plaintiff-appellee.
Ms. Mae Braxton appeals from her conviction for aiding and abetting the distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (1982). Ms. Braxton alleges errors in the admission of the testimony of two government witnesses and in the instructions given the jury by the trial judge. We affirm her conviction.
On December 10, 1987, Ms. Braxton was charged in Count I of a five-count indictment returned against her and four other persons with aiding and abetting the distribution of cocaine on July 16, 1987. On February 4, 1988, Magistrate James Groh, Jr. ordered the severance of Count I against Ms. Braxton for a separate trial.
A pretrial conference was held on January 8, 1988 before Magistrate Groh at which Braxton's attorney said that he would probably be filing an alibi motion under Federal Rules of Criminal Procedure 12.1. Braxton was given fifteen days to file the notice of alibi and the government made no objection. Magistrate Groh's Order on Preliminary Pretrial Conference memorialized that Braxton had been given until January 25, 1988 to file the notice. The government never made a written demand for the notice of alibi which Braxton filed on January 22, 1988. The notice listed three individuals who would testify that Braxton was not at her residence in Janesville but was at a different location with them at approximately 8:30 p.m. on July 16, 1987, the day and time when the distribution of cocaine allegedly took place at Ms. Braxton's home.
The government concedes that it never submitted a written notice stating the names and addresses of the witnesses upon whom it would rely to establish Ms. Braxton's presence at her home. However, Braxton was apparently aware of the probability that the government would rely on the testimony of Detective Suzanne Waddell (the undercover agent assigned to the case) and that of co-defendant Nels Quam. Ms. Braxton admitted possessing a police report prepared after an interview with Mr. Quam. She does not contest the government's statement that it provided her counsel on February 24, 1988 (approximately one month before trial) with copies of two other reports prepared by the government after interviews with Nels Quam, as well as a report made based on interviews of Ms. Braxton's alibi witnesses. She does not argue that she was prevented in any way from contacting Mr. Quam in order to prepare before the trial began.
The trial was conducted on March 22 and 23, 1988. The government called Officer Suzanne Waddell as its first witness. She testified that she saw Ms. Braxton at approximately 8:00 p.m. at her apartment and described her appearance. Ms. Waddell further testified that she left the residence and returned in the company of Nels Quam at approximately 8:30 p.m. to speak with Ms. Braxton's son, Jessie Leavy. She said that she approached Jessie Leavy, asked him if she could purchase seven quarter grams of cocaine, and then watched Leavy enter the apartment and walk over to Ms. Braxton. Waddell testified that Leavy put his hand in his pocket, moved it towards the defendant, and then put his hand back in his pocket and left the residence. Ms. Waddell said that she did not see Braxton take money or give him cocaine. However, she did testify that Leavy gave her seven quarter grams of cocaine and then she overheard Braxton say she had been shorted twenty dollars. The government then called John Nied to testify to the authenticity of the cocaine and rested its case.
During this testimony, Braxton objected pursuant to Rule 12.1(b), but the court overruled the objection. Braxton objected two more times pursuant to Rule 12.1(b) in the first day of trial. The trial judge called a bench conference at which counsel for Ms. Braxton objected that she was not provided with a written notice pursuant to Rule 12.1(b). The government responded that the written demand required by Rule 12.1 had not been made by the government. The defendant claimed that her notice of alibi was made pursuant to the Magistrate's order. The government also argued that the defendant had not been prejudiced by the procedures used, because the name of the only witness the government could possibly have called to rebut Ms. Braxton's alibi defense had been disclosed to her, i.e., Nels Quam. The court overruled the objection and permitted the testimony of Officer Waddell to stand.
Defendant presented her case by testifying, along with two alibi witnesses, that she was not at her apartment at 8:30 p.m. on July 16, 1987. Before the second day of trial, Ms. Braxton moved to prevent Nels Quam from testifying in rebuttal on the grounds that his testimony would not rebut anything that the government did not already know before the defense made its case and that the government had already rested its case-in-chief so it could not now have Quam testify to Braxton's presence at her apartment. The court denied this motion. Quam testified that he went with Officer Waddell to Ms. Braxton's apartment and spoke with her there. He testified further that he believed it was Mae Braxton's voice that he heard yell out the window that the money paid by Waddell and Quam was twenty dollars short.
Ms. Braxton's attorney moved, at a side bar conference, to strike Quam's testimony because it was improper rebuttal and that the information should have been brought in during the government's case-in-chief. The court ruled that the testimony was properly admitted. The court reasoned that under the authority of United States v. Cerro, 775 F.2d 908 (7th Cir.1985), the government was not obligated to provide Ms. Braxton with the evidence that it would use to impeach her defense even though she had given notice of the defense. The court said that rebuttal should be offered to those defenses which are brought in during defendant's testimony. The court also indicated that if, in fact, the testimony was cumulative, the objection of Ms. Braxton was not timely.
Before trial, Braxton requested four specific jury instructions: Devitt & Blackmar Burden of Proof Instruction 11.14, Devitt & Blackmar Alibi Instruction 13.08 or her proposed theory of defense instruction, and a "testimony of an accomplice" instruction. The court refused to give the Devitt & Blackmar 11.14 and 13.08 instructions, and gave the less expansive Seventh Circuit Instructions 2.06 and 4.03 instead. The court gave a theory of defense instruction which included Seventh Circuit 4.03 (alibi instruction) and an accomplice instruction but neither were as broad as those requested by defendant.
The jury returned a guilty verdict on March 23, 1988. The court sentenced Ms. Braxton on May 12, 1988.
With regard to the admission of the testimony of Officer Waddell and Mr. Quam, we may reverse the trial court's decision " 'only upon a clear showing of abuse of discretion.' " United States v. Garver, 809 F.2d 1291, 1297 (7th Cir.1987) (citation omitted). Absent " 'a significant showing of unfair prejudice, evidence with substantial probative value should not be excluded.' " Ibid. (citation omitted). With regard to allegedly erroneous instructions, we view them in the context of the whole, Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973), and if they " 'treat the issues fairly and accurately they will not be interfered with on appeal.' " United States v. Croft, 750 F.2d 1354, 1366 (7th Cir.1984) (citation omitted).
A. Admission of Waddell and Quam Testimony.
Rule 12.1 requires that a defendant provide a notice of alibi when the government has demanded it.1 In addition, Subsection (b) of that rule requires that the government provide in response to this alibi notice a list of the rebuttal witnesses it plans to use. However, the court in United States v. Bouye, 688 F.2d 471 (7th Cir.1982) found that a defendant's gratuitous and unsolicited disclosure of alibi witnesses does not obligate the government pursuant to Rule 12.1(b) to furnish the names of rebuttal witnesses linking the defendant to the scene of the crime.
Braxton argues that she was ordered to provide the notice of alibi, so that the government was required formally to provide the names of rebuttal witnesses. Nevertheless, it is undisputed that the government never requested the alibi notice pursuant to Rule 12.1. The magistrate granted defendant an extension of time to file the notice at her request, but did not order her to file it. As the government puts it, "the only difference between Bouye and the instant case is that Bouye sent his notice of alibi to the government without apparently giving advance notice of his intent to do so to the trial court." Brief of Plaintiff-Appellee at 11-12.
In addition, even though the government did not have a duty to respond to the notice of alibi, the government did provide Braxton with copies of all reports of interviews with Quam as well as those the investigating officers made in reference to defendant's proposed alibi witnesses. Finally, Ms. Braxton does not dispute that she knew that Waddell would testify and that she could contact Mr. Quam before trial. It is difficult, therefore, to see how she was prejudiced by not having formal notice of rebuttal witnesses.
The government is not required to provide a defendant with a list of all prospective government witnesses. United States v. Napue, 834 F.2d 1311, 1317 (7th Cir.1987). Rule 12.1 does not apply here and there is no general requirement that either side give notice of impeachment evidence. United States v. Cerro, 775 F.2d 908, 914-15 (7th Cir.1985).
Ms. Braxton argues that her case is governed by Mauricio v. Duckworth, 840 F.2d 454 (7th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 177, 102 L.Ed.2d 146 (1988), a habeas corpus case in which we found that the defendant's due process rights were violated when the government withheld the identity of alibi rebuttal witnesses. However, as the government points out, Mauricio is distinguishable from the present case, since under the Indiana rules a defendant is always required to provide a notice of alibi in contrast to the federal rules where a defendant, such as Ms. Braxton, is only required to provide notice when the government demands it. In addition, there is no evidence in the present case, as there was in Mauricio, that the government tried to withhold the identity of alibi witnesses.
Braxton's reliance on Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), is also misplaced, since that case is different from the present one. In Taylor, the prosecutor had filed a written demand for a notice of alibi, but defense counsel failed to include the name of one witness until the trial had already begun. Defense counsel claimed that he did not know where the witness was until just before the trial. After hearing the proffered testimony of this witness which showed that counsel did, in fact, know how to locate the witness, the district court refused to let the witness testify. The trial court found that defense counsel's refusal to provide information as to this witness's whereabouts to be, "a blatant violation of the discovery, willful violation of the discovery rules." Taylor, 108 S.Ct. at 650. In contrast to the Taylor case, the government did not violate a discovery rule in the present case, and Braxton could not possibly have been surprised by the witnesses called by the government. The case of United States v. Myers, 550 F.2d 1036 (5th Cir.1977), cert. denied, 439 U.S. 847, 99 S.Ct. 147, 58 L.Ed.2d 149 (1978), is a case cited by Braxton which deals with a demand by the government rather than a voluntary production of the notice of alibi as in the present case.
Braxton makes a separate argument that the government should not have been allowed to present Quam as a rebuttal witness rather than in its case-in-chief. However, defendant's only legal authority for this proposition is that the court has discretion in determining the proper scope of rebuttal with respect to evidence which could be introduced in the case-in-chief. Geders v. United States, 425 U.S. 80, 86-87, 96 S.Ct. 1330, 1334, 47 L.Ed.2d 592 (1976); Hochstadt v. Worcester Found. for Experimental Biology, 545 F.2d 222, 226 (1st Cir.1976). These authorities, however, undermine the very proposition that defendant would have them support. They show the discretion that a district judge has in ordering the evidence, and do not, therefore, require the government to put certain evidence in its case-in-chief absent an order from the trial judge. Braxton argues that she was prejudiced because "[i]f Quam had testified in the government's case-in-chief, it is possible the defense would have been different and certain testimony would not have been offered at all." Brief of Defendant-Appellant at 18. However, she cites no legal authority to show that the district court committed reversible error by allowing the government to put on its case as it did.2 In any event, she knew that Quam was a prospective government witness, had copies of government interview reports with Quam and could have contacted him before trial to determine her defense and whether to testify.
Ms. Braxton argues that the trial court instructions, as a whole, were so prejudicial as to require reversal under the authority of United States v. Crouch, 528 F.2d 625, 631 (7th Cir.), cert. denied, Carlyle v. United States, 429 U.S. 900, 97 S.Ct. 266, 50 L.Ed.2d 184 (1976). She claims that three of the instructions were insufficient: the burden of proof instruction, the alibi instruction and the accomplice instruction.
1. Burden of Proof Instruction.
The government has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the government throughout the case. The defendant is not required to prove her innocence or to produce any evidence.
Docket No. 147, p. 36. Ms. Braxton argues that these instructions were insufficient in three ways. First, she argues that the jury should have been instructed that the defendant begins the trial with a "clean slate." She argues, secondly, that the jury should have been told that they could not convict her on "mere suspicion or conjecture." Finally, she requested an instruction that if the evidence could lead to a conclusion of guilt or innocence that the jury should find her innocent (the "two conclusion instruction").
We point out the preference of the Committee on Federal Criminal Jury Instructions of the Seventh Circuit for "eliminating confusing and unhelpful elaborations which sometimes accompany instructions on the presumption of innocence." Committee Comment, Seventh Circuit Instruction 2.06, at 17. The "clean slate" portion of the Devitt & Blackmar 11.14 is an elaboration of the presumption of innocence instruction. The Supreme Court wrote of the requested instruction that "it appears to have been well suited to forestalling the jury's consideration of extraneous matters ..." Taylor v. Kentucky, 436 U.S. 478, 488 n. 16, 98 S.Ct. 1930, 1936 n. 16, 56 L.Ed.2d 468 (1978). An instruction to the jury that a defendant begins a trial with a "clean slate" is preferred by the Eighth Circuit, United States v. Hollister, 746 F.2d 420, 424 (1984) and the Fifth Circuit, United States v. Walker, 861 F.2d 810, 813 n. 4 (5th Cir.1988). See also Mathes, Jury Instructions and Forms for Federal Cases 2.01, 27 F.R.D. 39, 48 (1961).
However, the principle that the defendant begins the trial with no evidence against her is included in Seventh Circuit Instruction 4.03 both in the presumption of innocence section and in the part of the burden of proof instruction which provides that "[t]he defendant is not required to prove [her] innocence or to produce any evidence." This statement, along with the caution that the presumption of innocence "remains with the defendant throughout every stage of the trial," shows the jury that a defendant begins a trial with no evidence against her.
In addition to these instructions, the judge cautioned the jury not to rely on anything about the proceedings against Ms. Braxton except the evidence presented against her at trial. Docket No. 147, pp. 35-36. The court warned the jury not to rely on the indictment, on any media reports or on anything else heard about the case outside the courtroom. Ibid. Finally, in the court's pre-trial instructions, the judge did instruct the jury that the defendant "starts out with a clean slate." Docket No. 140, p. 7.
We have found no reversible error in cases in which no presumption of innocence instruction at all was given, so long as the jury's instruction regarding the government's burden of proof was sufficient. See, e.g., United States v. De John, 638 F.2d 1048, 1058 (7th Cir.1981). In De John, we relied on the principle laid out in United States v. Lawson, 507 F.2d 433, 442 (7th Cir.1974), cert. denied, 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 762 (1975), that "[t]he essential aspect of the matter ... is that the jury clearly understand that there must be proof persuasive beyond a reasonable doubt." The instructions at issue before us made that burden clear to the jury.
Ms. Braxton's argument that the jury should have received the two conclusion instruction has no merit, since we have found such an instruction to be acceptable, but not necessary. United States v. Larson, 581 F.2d 664, 669 (7th Cir.1978). The instruction is most appropriate in cases in which the evidence against the defendant is primarily circumstantial. United States v. Cruz, 603 F.2d 673, 675 (7th Cir.1979), cert. denied, 444 U.S. 1071, 100 S.Ct. 1014, 62 L.Ed.2d 752 (1980). This is not such a case.
The final error claimed by Ms. Braxton with regard to the reasonable doubt instruction is that the jury should have received an instruction against conviction on "mere suspicion or conjecture." However, such an instruction--which shows what evidence would be insufficient to show guilt beyond a reasonable doubt--is an unnecessary elaboration on the burden of proof instruction. We have found it "inappropriate for judges to give an instruction defining 'reasonable doubt,' " because " '[a]ttempts to explain the term "reasonable doubt" do not usually result in making it any clearer to the minds of the jury.' " United States v. Glass, 846 F.2d 386, 387 (7th Cir.1988) (quoting Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954)). This reasoning also applies to attempts to show what "reasonable doubt" is not.
2. Theory of Defense Instruction.
Defendant argues that the jury should have been given the Devitt & Blackmar 13.08 alibi instruction,4 rather than the Seventh Circuit Instruction 4.03 that was given. In addition to Instruction 4.03, the trial court included a theory of defense instruction incorporating Ms. Braxton's specific alibi. Although Ms. Braxton gives no reason why she was entitled to the Devitt & Blackmar Instruction, she argues that an instruction should have been given which referred to the testimony of her alibi witnesses under the authority of United States v. Martin-Trigona, 684 F.2d 485, 493 (7th Cir.1982).
The holding of Martin-Trigona is that a defendant is entitled to a theory of defense instruction when it is supported by the law and the evidence, not that a defendant is entitled to any particular theory of defense instruction. An error to guard against when a defendant relies on an alibi defense is the possibility of misleading the jury into finding that the defendant's failure to prove her alibi defense is evidence of her guilt. This error occurs when the jury has not been cautioned by an alibi instruction that the burden of proving defendant's guilt does not shift from the government to the defendant who claims an alibi. United States v. Burse, 531 F.2d 1151, 1152 (2d Cir.1976). See also Wright v. Smith, 569 F.2d 1188, 1192 (2d Cir.1978).
The defendant claims that she was not present at her residence on July 16, 1987 at the time the alleged offense was to have occurred.
Evidence has been introduced that the defendant was not present at the time and place where the crime charged in the indictment is alleged to have been committed. The government has the burden of establishing beyond a reasonable doubt the defendant's presence at that time and place.
Docket No. 147, pp. 39-40. The instruction, which includes Seventh Circuit Instruction 4.03, properly reminds the jury that the burden of proof is on the government. The trial court did not err by failing to incorporate into the instruction a full summary of Ms. Braxton's alibi evidence.
Ms. Braxton argues that the accomplice instruction given by the court was deficient in three ways. She argues that the jury should have been instructed that "it should never convict a defendant upon the unsupported testimony of the alleged accomplice unless the jury believes that unsupported testimony beyond a reasonable doubt." Brief of Defendant-Appellant at 24. She argues that the instruction should have included a discussion of the plea agreement entered into by accomplice Nels Quam and the possible impact that Quam's hope of benefits could have on his credibility. Finally, she asserts that the court erred by not instructing that Quam's guilty plea should not be used against her.
"The general rule is that accomplice instructions are preferred when accomplices testify against defendants, due to the inherent unreliability of this testimony, but the failure to give such an instruction is not reversible error." United States v. McCabe, 720 F.2d 951, 955 (7th Cir.1983). The failure to give an accomplice instruction is not error if the accomplice testimony is sufficiently corroborated. Id. at 956.
You have heard testimony of Nels J. Quam who has received benefits from the government in connection with this case. You may give his testimony such weight as you feel it deserves keeping in mind that it must be considered with caution and great care.
Docket No. 147, p. 37. The instruction is the Seventh Circuit Testimony of Informer Instruction 3.20. That form instruction leaves it to the discretion of the district judge whether or not to name the specific benefit. See footnote to Instruction 3.20 at p. 42. The informant instruction was appropriately used, since the same unreliability problem is present whether it is an accomplice cooperating with the government in exchange for a reduced sentence or an informer, in exchange for money or other benefits.
Ms. Braxton's complaint that the court erred by not instructing that there could be no conviction upon unsupported accomplice testimony unless the jury believed the testimony beyond a reasonable doubt has no merit here. Nels Quam's testimony was extensively corroborated by that of Officer Waddell. In addition, the warning to consider the testimony "with caution and great care" served the purpose of instructing the jury not to convict based only on accomplice testimony unless it found Quam's testimony to be highly credible.
Defendant complains specifically that the accomplice instruction given by the trial judge referred to benefits already received but not to those yet to be realized. She argues that United States v. Dailey, 759 F.2d 192, 200 (1st Cir.1985), stands for the proposition that "failure to instruct the jury as to the benefits obtained by an accomplice witness is error" and that, accordingly, the instruction should have included a specific reference to future benefits. However, the Dailey court's holding was that accomplices who had signed conditional plea agreements should be able to testify at trial in spite of the risk of perjury. The lower court's decision to bar the testimony was, therefore, reversed. The reviewing court then instructed the district court on remand to read the plea agreements to the jury, but did not hold that the failure to do so was error. The better practice is for the court to instruct the jury about the plea agreement and the benefits that the accomplice hopes to receive so that the jury knows as much as possible about an accomplice's incentive to falsify testimony. See Pattern Criminal Instructions 24, at p. 32 (Federal Judicial Center 1988). However, the failure to do so in the present case was not reversible error, particularly since Ms. Braxton was able to bring out, and the jury was aware of, the details of Nels Quam's plea agreement--including the possibility of future benefits--in cross-examination. Docket No. 141, pp. 34-36.
Finally, Ms. Braxton asserts that the court erred by failing to warn the jury not to rely on Nels Quam's guilty plea as evidence against her. The presence or absence of a limiting instruction is one factor in determining the prejudicial impact of the admission of a co-defendant's guilty plea. United States v. Fleetwood, 528 F.2d 528, 532 (5th Cir.1976). The government did not attempt to use Mr. Quam's guilty plea as evidence against Ms. Braxton but only to mitigate any potential harm to the witness's credibility caused by cross-examination about the guilty plea. Therefore, Ms. Braxton was not prejudiced by the introduction of the plea even without an instruction. In fact, Ms. Braxton's attorney told the government that he was planning to put the plea agreement into evidence if the government did not. Docket No. 141, p. 31. Although the better practice is to give a cautionary instruction, see Seventh Circuit Instruction 3.23 and Comment, it was not reversible error to omit it here.
The trial court did not err by admitting the testimony of Officer Waddell and Nels Quam, since the government was not required pursuant to Rule 12.1(b) to provide a formal list of witnesses to rebut Ms. Braxton's alibi. Even if Rule 12.1 required production of the list, Ms. Braxton was not prejudiced by failing to receive it. In addition, it was not error for Nels Quam to testify in rebuttal rather than in the government's case-in-chief. The district court's instructions to the jury did not constitute reversible error even though a more thorough accomplice instruction would have been beneficial to the jury. Ms. Braxton's conviction is affirmed.
(a) Notice by Defendant. Upon written demand of the attorney for the government stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days, or at such different time as the court may direct, upon the attorney for the government a written notice of his intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish his alibi.
(b) Disclosure of Information and Witness. Within ten days thereafter, but in no event less than ten days before trial, unless the court otherwise directs, the attorney for the government shall serve upon the defendant or his attorney a written notice stating the names and addresses of the witnesses upon whom the government intends to rely to establish the defendant's presence at the scene of the alleged offense and any other witnesses to be relied on to rebut testimony of any of the defendant's alibi witnesses.
Fed.R.Crim.P. 12.1(a), (b) (emphasis added).
It is not required that the government prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense--the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs.
The jury will remember that a defendant is never to be convicted on mere suspicion or conjecture.
The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to a defendant; for the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.
So if the jury, after careful and impartial consideration of all the evidence in the case, has a reasonable doubt that a defendant is guilty of the charge, it must acquit. If the jury views the evidence in the case as reasonably permitting either of two conclusions--one of innocence, the other of guilt--the jury should of course adopt the conclusion of innocence.
Evidence has been introduced tending to establish an alibi, which amounts to a contention that the defendant was not present at the time when or at the place where he is alleged to have committed the offense charged in the indictment.
If, after consideration of all the evidence in the case, you have a reasonable doubt as to whether the defendant was present at the time and place the alleged offense was committed, you must acquit him.
The jury will bear in mind the government's burden of establishing the involvement of the defendant, and all other essential elements of the offense as defined in these instructions, by proof beyond a reasonable doubt.

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V(2)(b) 110, 111, 173 Rome Convention on the Law Applicable to Contractual Obligations of 19 June 1980, OJ CO27 of 26 January 1998 64 Art. 1(2)(d) 64 Art. 3(3) 66 Art. 4(1) 64 Art. 4(2) 65 Art. 5 66, 67, 70, 71 Art. 5(2) 70, 71, 72 Art. 5(3) 71 Art. 7(1) 66, 67 Art. 7(2) 67 Art. 16 67 Statute of the International Court of Justice 1945 Art. 38(1)(c) 62 United Nations Convention on Contracts for the International Sale of Goods 1980 (Vienna Convention) 62 xxix ACKNOWLEDGEMENTS This book is the result of four years of research for a PhD dissertation, which I successfully submitted in December 2007.
48 Judicial proceedings define and limit the space in which the argumentation takes place; participation, roles, issues and the processes forming opinions and decisions are regulated. 49 Habermas, like Rawls, argues that equal participation of the parties has to be guaranteed through procedural rules. For dispute resolution, Rawls’ and Habermas’ theories mean that due process (as defined above: equal treatment and rationality) in itself is not sufficient. It is not sufficient to merely ensure that the parties are treated equally and that decisions are rational, accurate and according to the rule of law.
These illegal police tactics caused a loud outcry in Germany, and demands were made that torture should never be used, regardless of the circumstances. However, the discussion largely overlooked the fact that the threat of torture in this case was not used to obtain a confession for conviction (which would have been inadmissible in court) but in order to save another person’s life. Balancing the boy’s right to life with the right to bodily integrity of the accused may lead to the conclusion that torture could be justified in some very rare and extreme cases (albeit that it is far from clear whether torture is effective).

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