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This agreement was written in Italian: https://atoka.io/it/tos/. In case of conflict between any translated versions of this Agreement and the Italian version, the latter will prevail.
In view of the above premises the Parties agree and stipulate the following TOS for non-exclusive use of the Atoka Platform.
Intellectual Property: The term "Intellectual Property" identifies any intellectual property right that is governed, from time to time, by patents, semiconductor chip protection, copyright, industrial secrecy, trademarks, and any other Registered and unregistered intellectual property rights, as well as any applications, renewals, extensions, reinstatements and reinstatements that are currently in effect or can be implemented in the future all over the world.
2.1 - Platform User License. SpazioDati, in compliance with the terms and conditions of this TOS, undertakes to provide the Customer with a limited, non-exclusive license to use the Atoka Platform which allows the Customer directly to access a database consisting of economic and commercial data relating to Italian and British companies, to generate business contact lists (lead) and receive business and economic information related to the companies, as well as to use related analysis capabilities, through a SAAS (Software as a Service ) made available on the Internet. The Customer is aware and expressly accepts that the Atoka Platform is a tool reserved for professional users, with the consequence that this TOS is not subject to the rules of consumer contracts. However, the Customer will be provided with the initial free trial of 5 days (Trial) during which he will be able to check the functionality of the Atoka Platform and during which he can retire at any time without any commitment or cost. In the use of the Atoka Platform, the Customer agrees to comply with the operating instructions of SpazioDati based on any indications deriving from laws, regulations, authority provisions or self-regulatory codes in the country of origin and destination of messages or in the course of transposition that SpazioDati intends to comply with. It is understood that the processing of data related to the use of the platform will in any case be in accordance with the current rules, provided that the Customer assumes the role of the Data Controller and SpazioDati, using for this purpose its own organizational structure, assumes the role as described in section 2.3 below. Due to the nature and operation of the Atoka Platform, the Parties acknowledge that, in accordance with and subject to the provisions of this TOS, the Client will be able to directly and autonomously manage the IT tools made available by SpazioDati and will be the same Customer, under his sole responsibility, to manage, as Data Controller, the data extracted independently from the Atoka Platform, thereby defining the purpose of processing such data.
2.3 - Processing of personal data. SpazioDati undertakes to provide the Customer with all the information and collaboration necessary for him to fulfill his obligations under Legislative Decree 196/2003, including the regulations set out in Annex B (Technical Measures on Minimum Measures Safety).
SpazioDati guarantees that the personal data and the treatments of which SpazioDati itself is the Owner will be protected in compliance with the obligations of Articles 31, 33, 34 and 35 of Legislative Decree 196/2003. In particular, SpazioDati guarantees that the personal data being processed will be kept and monitored, also in relation to the acquired knowledge, the nature of the data and the specific characteristics of the treatment, in order to minimize it, the adoption of appropriate and preventive security measures, the risks of destruction or loss, even accidental, of the data itself, unauthorized access or processing which is not allowed or does not comply with the purpose of the collection. In addition, pursuant to Article 25 of the Technical Specifications for Minimum Security Measures, SpazioDati attests the compliance of its organization and its information system with the provisions of the aforementioned technical regulations. SpazioDati will be processing the data as it is owned by the Customer, following the instructions given by the Customer that, also through periodic checks agreed in advance with the appointed manager, will be able to supervise the strict observance of the legal and contractual provisions. In this sense, SpazioDati will provide its officers with all the written instructions and procedures required to comply with the law and the TOS.
The designation for SpazioDati's responsible has a duration equal to the duration of this TOS and will be deemed revoked upon the dissolution of the TOS itself, for whatever cause.
Upon termination of the contractual relationship, the Customer's personal data and copies thereof will be permanently removed from the SpazioDati information system (including any paper archives), subject to statutory obligations, as provided in art. 2.7 of this TOS.
2.4 - Consent of message recipients. The Customer expressly declares that he is aware that, in order to use the data extracted independently from the Atoka Platform in order to send messages in automated mode, the recipients must have the consent to receive the messages, except in the cases expressly provided by law where consent is not required. Collecting the consent concerns both the recipients of the messages by e-mail and the recipients of the SMS messages. The Consent must necessarily comply with the requirements set forth in the applicable law and be therefore quoted, expressed, free, informed and referred to specific treatments. This constitutes an essential obligation on the part of the Customer. In the event of non-compliance, even for this purpose, of this essential obligation, SpazioDati reserves the right to terminate TOS pursuant to art. 8.7. It is understood that for the correct use of the data in the Atoka platform the user is required to refer to the further operational information at any time at the following link: https://atoka.io/faq. The Customer is required to verify the possible updating of such operating information that may be modified without notice by SpazioDati in accordance with organizational requirements and any regulatory changes that may occur.
2.5 - Additional functions and interoperability. The Atoka Platform provides the Customer with functionality, tools and applications for integration with external software ("API" or "Interoperability Functions"). Through the APIs, the Customers can create custom integrations between the Atoka Platform and third-party applications in order to make it more convenient for any data updating automation. The Customer is solely responsible for the use of interoperability functions and undertakes to use them with appropriate tools and with respect to the contents of this TOS. The usage through Atoka Platform of features made available by third parties may be subject to the acceptance of the terms and conditions of such third parties.
2.6 - Cancellation of Customer Data. After 10 (ten) days from the expiration date or termination of the TOS for any cause, SpazioDati will be entitled to cancel the data archived on behalf of the Customer in the Atoka Platform, including any residual claims as specified in Article 7.1. These data will be available to be consulted and downloadable freely by the Customer within the term indicated above using the normal functionality of the Atoka Platform. In the event of suspension of access to the Platform for Administrative Violations (see Article 4.2), the Customer will only be able to access after the cause of the blockage has been removed. Without prejudice to this possibility of cancellation, longer retention times may also be dictated by requirements other than those indicated in this TOS, in particular in the case of inspections by the Criminal Investigation Department or bodies responsible for any controls.
2.7 - Customer Support. By merely accessory and instrumental fruition of the Atoka Platform, SpazioDati is committed to providing the Customer with technical support for reports related to the proper operation of the Atoka Platform in accordance with section 5 Minimum Functionality Guarantee.
3.1 - The Owner of Atoka Platform. SpazioDati is the sole exclusive owner of all rights and interests for the Atoka Platform, and any related Intellectual Property, including any resulting developments. Atoka is a registered trademark and the website, the Atoka Platform and the information contained therein, are the property of SpazioDati or, however, it has received a specific authorization for their use and disclosure to third parties by legitimate holders. Unauthorized copying and disclosure is prohibited in violation of Intellectual Property Rights.
In particular, the Customer declares that he is aware that the data obtained from this service is contained in a data bank protected under the terms and for the purposes of the copyright law. It is forbidden, inter alia, to reproduce and transfer, in whole or in part, by any means of such data.
However, the extraction and re-use of the whole or a substantial part of the same database as well as the extraction or re-use of non-substantial parts of its content are prohibited if such activities are repeated and systematic.
It is therefore forbidden to use any automatic data collection (so-called: scraper) practice and it is not allowed to make platform screenshots or to make automatic calls using the account assigned to the Customer.
It is understood that all information that the Customer will integrate into the platform by integrating, editing, and updating their company listings may be published by SpazioDati, subject to compliance with their quality standards and verifying the correctness of the data. Therefore SpazioDati as a result of the inclusion of the same data by the Customer on the platform, acquires the full intellectual property of the information it decides to publish and has the right to use without the Customer's exclusive use rights on the data themselves.
4.1 - Beginning, duration and termination of the Platform license. The TOS is automatically renewed for an equal duration (eg 1, 3, 12, 24, 36 months, etc.) in the absence of a waiver that the Parties will be able to exercise until the expiration date of the TOS through the specific functionality inside of your personal account in Atoka. To stop the subscription just click on your username on the top right after you log in to Atoka. In the drop-down menu that opens, click the "Account Setup" item and in the next window click "Stop subscription". The termination of the service will be confirmed by email to the address indicated in the user's profile and will be effective from the next billing period, as indicated within the user account settings, unless otherwise agreed upon when the subscription 'Subscription (eg quarterly, semi-annual or annual subscriptions with monthly payments'), in which case the deactivation of the service is permitted only after the deadline set for acceptance of the promotion. During the initial period of 5 (five) free trial days (so-called: Trial), the Customer may withdraw from the Atoka Platform license free, at no cost, at any time.
4.2 - Corresponding, billing and payments. For the provision and use of the Atoka Platform, as well as for the provision and provision of ancillary and instrumental performances provided by this TOS and for the enjoyment of any further options offered by the Atoka Platform, to pay a periodic fee and / or a one-time fee in the times and in the ways indicated in the order "Online" if the purchase is made in such a manner. Notwithstanding the provisions of Articles 7.1 and 7.2 below. Payment may be made by wire transfer or credit card. In the event that the Customer fails to pay the fee as agreed above, SpazioDati may, at its sole discretion and at any time, disable the use of the Platform, upon notice to the Customer. After spending 10 (ten) calendar days without the Customer having provided the balance of the agreed amount, SpazioDati will be authorized to block the Customer's access to the Platform and / or declare the termination of the contract right pursuant to art. 8.7 of this TOS and then delete all the data present, without prejudice to SpazioDati's right to require in any case the payment of the entire fee under the TOS. The payment of all sums due to SpazioDati on the basis of this TOS can not be delayed or suspended for any reason, even in the presence of controversial pending disputes, notwithstanding Art. 1460 of the Italian Civil Code - that the Client may claim his rights only through a separate procedure and only after the fulfillment of his obligation to pay the fee. In the case of payment by credit card, we will activate the recurring payment method, which provides, at the date of renewal, the preauthorized automatic charge of the amount corresponding to the use of the Atoka Platform and the options already activated for a period of one year but without notice to be exercised by the Customer with express communication in accordance with the terms and conditions set out in Section 4.1. If the TOS automatic renewal is not successful for any reason (for example, but not limited to: overdue credit card or lack of necessary funds) this will result in immediate blocking of sending features and notification at the same time of non-payment to the Customer's Administrative Contacts selected for receiving administrative information. After a further 10 (ten) calendar days without the Customer having made the payment, SpazioDati may block access to the Platform and / or declare the termination of the contract right pursuant to art. 8.7 of the TOS and proceed with the subsequent deletion of the Customer's data, subject to the right of SpazioDati to collect and / or permanently retain the fees for the entire contract period. The Parties agree that in the event of a delay in payment of the aforementioned fee, the deadline for interest will be payable pursuant to Legislative Decree no. 231 of October 9, 2002 and subsequent amendments. The periodic fee of the Atoka Platform, its related options, ancillary services and assistance may be subject to annual variation from the next renewal. In the event of an increase, SpazioDati will inform the Customer, upon notice of at least 60 (sixty) days prior to the due date, by email communication to the Client's email address identified in the administrative section of Administration Contacts compiled by the Customer. The new tariffs will be applied from the TOS renewal date and will remain unchanged at least for the next contract period. In the event that the Customer does not intend to accept the new tariffs, the Customer shall, in accordance with Article 4.1, cancel the Terms and Conditions; Failure to terminate within the terms of this TOS, which is to be deemed to be forfeit, will be considered as unconditional acceptance by the Customer of the new tariffs, which will therefore legitimately be applied from the date of renewal.
5.1 - Availability of Atoka Platform. With the present TOS SpazioDati is obliged to make available the Atoka Platform with an up-time availability rate of 99%, 24 hours per day and 365 days per year. The Parties acknowledge that in any case, SpazioDati may not be charged with the non-availability of the Atoka Platform due to facts and circumstances attributable to the Customer or to any person whose behavior the Customer is required to answer, such as, but not limited to, the availability of a suitable Internet network at the Customer, hardware problems, software, and internal networks to the Customer's organizational structure.
5.2 - Customer Support. In an Instrumental and accessory way, to ensure the correct use and full functionality of the Atoka Platform, SpazioDati is committed to provide technical assistance for reporting on issues related to the proper operation of the Atoka Platform.
5.3 - List of authorized contacts to apply for assistance. Technical support via Email, as described in point 5.2 above, will be provided by SpazioDati exclusively for contacts (Email addresses) previously entered by the Customer in the appropriate section of the Atoka Platform. It will be the exclusive charge of the Customer to keep this list constantly updated. SpazioDati will under no circumstances be liable for technical assistance provided as a result of missing / delayed updating or incorrect or negligent compilation by the Customer of the list of Administrative Contacts authorized to request assistance.
(ii) to be legitimate and to authorize SpazioDati to exercise all the rights necessary to execute this TOS. Nothing in this article shall limit or exclude the liability of any of the Parties for serious misconduct, without prejudice to the exceptions provided in this TOS.
6.2 - Responsibility for Customer Failure. The Customer undertakes to keep SpazioDati entirely free of any damages, loss, liability, costs, charges and expenses, including any legal fees, which would be incurred or sustained by SpazioDati or for which it was requested (i) the Customer has fulfilled the obligations assumed with the subscription of this TOS and (ii) the representations and warranties provided by the Customer with the subscription of this TOS have been made and are truthful, correct, complete, and not misleading. The Customer also undertakes to keep SpazioDati entirely free from any damages, losses, liabilities, costs, charges and expenses, including any legal expenses that would be incurred or sustained by SpazioDati or for which it was the subject of the request of payment, in any case connected to the sending of information contained within the Customer's messages, even in claims for damages claimed by third parties to any title.
6.3 - Responsibility for using the platform. The Customer acknowledges and recognizes that the use of the Atoka Platform will be in full compliance with this TOS and that consequently the Customer will be solely and directly liable. The Customer undertakes to communicate and subscribe to its employees and to anyone who will have access to the Atoka Platform on the basis of existing relationship with Customer, the obligation to comply with the obligations arising from this TOS, ascertaining in any case that they are aware of it and are committed to doing everything possible to ensure that these obligations are observed in a timely fashion. SpazioDati and its employees and / or collaborators are not responsible for the use of the Atoka Platform by the Customer and for this purpose the Customer irrevocably obliges, expressly granting third parties the benefit of declaring that they want to profit, keep in full free and disguised SpazioDati and its employees and collaborators from any damages or prejudice, either contractually or non-contractually, that would derive, directly or indirectly, from the use of the Atoka Platform and the execution of this TOS by the Customer. Such provisions remain valid and effective even after the termination of the effects of this TOS, for any case that has occurred, including the expiry of the terms, resolution or withdrawal of the TOS.
6.4 - Failures due to external events. SpazioDati will not be held responsible in any way for the malfunction of the Atoka Platform or of the impossibility or difficulty of performing the ancillary services arising from the responsibilities of the telephone, electrical and national network operators, as an example but not exhaustive following breakdowns, overloads, interruptions, etc.
6.5 - Causes of major force. SpazioDati shall not be held responsible in any way for any failure to comply with this TOS arising out of causes outside its own sphere of reasonable control or for causes of major force or unforeseeable circumstances, such as, but not limited to, popular tumults, terrorism acts and war, strikes, riots, air trumpets, hurricanes, floods, fires, landslides and landslides.
6.6 - Interruptions because of exceptional events. SpazioDati is committed to maintain the efficiency and functionality of the Atoka Platform; If it is forced to interrupt its use for exceptional or maintenance events, it will be as short interruptions or suspensions as possible, providing timely updates to the Customer. SpazioDati will define the appropriate access procedures and reserves the right to improve them at any time; It will also provide the Customer, upon request, all the technical specifications for accessing the Atoka Platform and making proper use of it in accordance with this TOS.
6.7 - Failure by third parties. SpazioDati will also not be liable for third party behaviors or omissions that affect the operation of the Atoka Platform, including, but not limited to, slowdowns or failure of telephone lines and computers handling telematic traffic between the Customer and the Atoka Platform.
6.8 - Third Party Services. In case the Customer uses the Atoka Platform functionality provided by third parties, including network operators, the following predictions will apply: SpazioDati allows access to such features, subject to their being subject to terms, conditions, and limitations imposed by its suppliers and that in no case SpazioDati will be liable for the failure or incorrect operation of the same. In case third parties change, suspend or interrupt the provision of such functionality, SpazioDati may consequently change, suspend or interrupt access to such services without notice. Additionally, SpazioDati will be authorized to suspend the use of the Atoka Platform that is directly dependent on the services offered by such third parties. In any case, SpazioDati reserves the right to use different providers to ensure the functionality of the Atoka Platform, where necessary. In this regard, the Customer authorizes SpazioDati to provide these third parties with all the necessary information.
6.9 - Limitation of Liability. Without prejudice to cases of serious or gross negligence, the liability of SpazioDati for failure to comply with this TOS can in no case exceed the amount of 20% of the amount paid by the Customer to SpazioDati during the period between the date of the last Renewal / expiration of the platform license, or between the Activation Date unless there is any subsequent renewal / expiration date and the date on which, in contract terms, the damage was first verified by referring to the consideration periodical period above, proportionally to the period mentioned above, up to a maximum of 12 months.
7.1 - Data Aggregates. As agreed between the parties, SpazioDati has all the rights to use the statistical information, data and aggregate analysis thereof, resulting from the use of the Atoka Platform by its Customers. Such aggregated data does not include personal data and the Customer expressly authorizes SpazioDati to use the same in order to improve the functionality of the Atoka Platform or at the end of statistical information, which is always published in aggregate form.
7.2 - Publicity. The Customer authorizes SpazioDati to use their name and logo in presentations, marketing materials, customer lists, financial reports. Except as provided in art. 3.1 and 3.2 of this TOS, the use by the Customer of the logo, trade name and any other distinctive sign related to the Atoka Platform must be previously requested by the Customer in written and authorized form, always in written form, from SpazioDati.
7.3 - Free trial. Atoka can offer free trial periods of the Atoka Platform to new Customers.
7.4 - Customer Data Processing Mode. Based on the personal data provided by the law, any information related exclusively to a natural person, the Customer acknowledges that SpazioDati will process the data (including those related to its own delegates and appointed by him to manage the relations with SpazioDati), in accordance with current legislation and, as indicated in the information provided by art. 13 Legislative Decree 196/03 (viewable at https://www.iubenda.com/privacy-policy/551896), without the need to acquire immediate consent from the Customer (pursuant to Article 23 of Legislative Decree 196/03) because, inter alia, the processing of such data is necessary to execute a TOS of which is part of the Customer, exclusively and solely for the purpose of carrying out the services provided in this TOS.
7.6 - Expressive clause. This TOS will automatically be resolved in accordance with Article 1456 of the Italian Civil Code, by simple written communication sent by email and / or PEC in cases of default of the essential obligations contained in Articles 2.4 - Consent of message recipients, 4.2 - Consideration, invoicing and payments. In any case, SpazioDati's right to demand the payment of the fee for the whole agreed period and / or to retain it in full, even if not fully utilized, remains unjudged.
7.7 - Validity of contractual clauses. The terms of this TOS are fully effective and accepted by the Customer even if they are used in a non-inertial and / or temporary way by the functionality provided by SpazioDati.
7.8 - Tax burdens. Any tax burdens arising from the execution of the TOS, including any advertising tax, is borne by the Customer.
7.9 - Applicable law and jurisdiction. This TOS is regulated and interpreted in accordance with Italian law, and the Parties expressly agree that any dispute regarding the validity, effectiveness, interpretation and execution of this TOS will be subject to exclusive jurisdiction of the Forum of Trento.
7.10 - Final Clauses. This TOS, which forms an integral part of and substantially all of the annexes mentioned herein, abrogates and supersedes any previous agreement, understanding, negotiation, written or oral agreement concerning the subject matter of this TOS. In case one of the Parties does not promptly rely on the rights recognized by one or more clauses in this TOS can not be understood as a general renunciation and pay off on the rights and duties in the established clause, nor will it prevent that party from subsequently claiming the punctual and strict observance of any and all contractual clauses. Should one or more clauses in this TOS be declared void or ineffective by the competent judicial authority, the remaining TOS will continue to be valid between the Parties, unless such clause has been a decisive factor in the conclusion of this contract.

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art. 2
art. 8
art. 8
Art. 1460
art. 8
art. 3
art. 13


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Action by the Anglo-Colombian Development Company, Limited, against Stella Hamilton Stapleton, executrix of the last will and testament of the estate of Daniel Casey Stapleton, deceased. Decree for defendant, and plaintiff appeals. Affirmed.
W.C. Sullivan, of Washington, D.C., for appellant.
G.E. Hamilton, J.J. Hamilton, G.E. Hamilton, Jr., Edmund Brady, and H.R. Gower, all of Washington, D.C., for appellee.
Before MARTIN, Chief Justice, and ROBB, Associate Justice, and GRAHAM, Presiding Judge of the United States Court of Customs Appeals.
The Anglo-Colombian Development Company, Limited, an English corporation, a subsidiary of the Consolidated Goldfields of South Africa, Limited, was formed for the purpose of acquiring land, options over mining rights and mining concessions, in Colombia, South America, and for operating the same especially for gold and platinum, and on March 17, 1911, the company entered into a written agreement with Daniel Casey Stapleton, since deceased, whereby Stapleton was appointed agent of the company in Colombia, with the stipulation that he should devote so much of his time and attention to the affairs of the company as the company's business should require. The employment was to begin on March 18, 1911, and was to continue until determined by either party by giving not less than six months' notice to the other party.
Immediately after the execution of the contract, Stapleton went to Colombia, and entered upon his duties as the company's agent, remaining there during the course of his employment, except for trips from time to time to England, the United States, and Panama. His duties as agent required the supervision of the plaintiff's operations at various points in Colombia, including remote regions in the interior, especially in obtaining land, stock in other companies, options on mineral rights, concessions from the government of Colombia, and the preservation and protection of all such properties and rights. The Colombian government at various times had granted to other parties rights to some of the properties which had been granted to the company, and it was one of Stapleton's duties to try to protect and enforce the company's rights under such circumstances.
The company had its headquarters in London, an office and representative in New York, and an office in Colombia, as well as a store and several camps there. Its active field operations were conducted in Colombia; other persons than Stapleton being in direct charge of the engineering operations, there being also an assistant manager, with a bookkeeper and other assistants or clerks, in the Colombian office, and the store and camps of the company. Stapleton's activities were such that he was seldom at headquarters.
The company's business in Colombia was financed, in part at least, through an account conducted in its name with a New York bank, and the company gave a power of attorney to Stapleton, empowering him to draw upon this account for any money for the time being standing to its credit there, and to hold and use the same for the purposes of the company. In the course of the business Stapleton issued checks upon the New York bank account in payment of labor, supplies, etc., and also at times for cash purporting to be for use by him in the company's business. These checks were returned, when paid, to the company's bookkeeper in Colombia, and the amounts were then charged by the bookkeeper to the proper accounts. In respect to the checks issued by Stapleton for the cash to be used directly by him, the bookkeeper would often be unable to make appropriate entries until instructed by Stapleton as to the uses made of the funds thus drawn. From the beginning of his employment Stapleton was remiss in making such reports, and the company repeatedly complained to him because of his failure to regularly report the uses made of such withdrawals. Until such withdrawals were explained to the bookkeeper they were charged to Stapleton's account, or to a suspense account pending explanations; these accounts continually showed large debit balances.
In the year 1916, the company passed from the control of the Goldfields Company to the South American Gold Platinum Company, although the company's corporate existence was continued as before. The transfer was made as of November 30th of that year, and at that time the aforesaid account charged to Stapleton showed an overdraft of more than $40,000, and the suspense account about $20,000. No more checks were charged to Stapleton's account after the transfer, and no further instructions or explanations were given by him as to the uses made of the funds already charged. The new company demanded such explanations, but Stapleton, who had returned to this country, stated that he was unable to report upon the items without seeing the canceled checks, which were then in the office in Colombia. Soon afterwards informal notice was given to Stapleton of the ending of his employment as agent, and on March 26, 1917, formal written notice to that effect was served upon him. In the fall of 1916 Stapleton moved to Washington, D.C., and continued his residence here, except for occasional temporary absences, until his death on May 3, 1920.
Decedent's widow thereupon became executrix of his estate, and on December 10, 1920, the company, as plaintiff, filed its present bill in the lower court, alleging that the amounts of said debit balances, to wit, $40,000 and $20,000, had been misappropriated by Stapleton, and that he had thereby become a trustee for the company in those sums, and that all of the property and assets of his estate, or so much thereof as may be necessary for the purpose or appropriate to that end, should be impressed with a trust in favor of the company in lieu of the trust funds and properties thus misappropriated; praying also for an accounting, and that the executrix be required to pay over to the company the amount found in such accounting to be due to the company from decedent's estate.
The lower court, after hearing all the testimony introduced by plaintiff, dismissed the bill, finding as a fact that no fraud, deception, or concealment was shown to exist, and that plaintiff's cause of action was barred, both by the statute of limitations and laches.
We agree with the findings and conclusions of the lower court. If the action is regarded as one upon an account, it accrued at the date of the last item of the account, to wit, December 31, 1916, at which time the amounts of the debit balances were fully known to all the parties. 37 Corpus Juris, 865. This suit, however, was not filed until December 10, 1920, after the lapse of more than three years from the time when the cause had thus accrued. Under section 1265, D.C. Code, it is provided that an action at law upon an account shall not be brought after three years from the time when the right to maintain it shall have accrued. The statute provides for various exceptions and interruptions to the general rule, but none of them applies in fact to this suit. During the period from December, 1916, until Stapleton's death, he had his home in the District of Columbia, as was well known to the company, and at any time during that period suit could have been brought against him and service had upon him here.
If, on the other hand, the suit is considered as one in equity for an accounting, the same limitation applies in the absence of fraud or concealment. "Courts of equity in cases of concurrent jurisdiction consider themselves bound by the statutes of limitation which govern actions at law." Met. Nat. Bank v. St. Louis Despatch Co., 149 U.S. 436, 448, 13 S. Ct. 944, 948 ( 37 L. Ed. 799); Baker v. Cummings, 169 U.S. 189, 18 S. Ct. 367, 42 L. Ed. 711; Stearns v. Page, 7 How. 819, 12 L. Ed. 928.
"But, whatever may be the substantial merits of this case, it is very clear to us that there is one consideration which must dispose of it adversely to the appellants. The suit is for an accounting. It is a case where there is concurrent jurisdiction at common law and in equity. A plea of the statute of limitations would undoubtedly be a bar to the demand at common law. This statute must be equally held in equity as a bar to this proceeding." Morris, J., in Patten v. Warner, 11 App. D.C. 149.
See, also, Trust Co. v. Darling, 21 App. D.C. 132; Darling v. Birney, 54 App. D.C. 318.
"Where there has been no change of circumstances between the parties and no change with reference to the condition and value of the property, a court of chancery will run very nearly if not quite up to the measure of the statute of limitations as applied in analogous cases in a court of law. But where there has been a change of circumstances with reference to the parties and the property, and still more where death has intervened, so that the mouth of one party is closed, and those who represent his interests are not in a predicament to avail of the explanations which he might have made, out of the charities of the law and in consideration of the fact that fraud is never to be presumed, but must always be proved and proved clearly, the courts limit very much, in such cases, the measure of time within which they will grant relief, because the presumption comes, in aid of the dead man, that he has gone to his account with a clear conscience."
See Mackall v. Casilear, 137 U.S. 556, 11 S. Ct. 178, 34 L. Ed. 776; Naylor v. Foreman-Blades Lumber Co. (D.C.) 230 F. 658; Humphreys v. Walsh (C.C.A.) 248 F. 414, 419.
That doctrine should receive especial consideration in this case, wherein decedent's widow, serving as executrix, is called upon to account for transactions occurring years past in a foreign country, of which it is hardly possible that she could possess any knowledge, and where she would be faced with great difficulty in acquiring such knowledge, and this in the face of the fact that the plaintiff could have brought the suit at any time within three years following the accrual of the cause, while decedent was still living, and openly had his residence in the same jurisdiction as that in which the present suit is brought.
It is claimed by plaintiff that Stapleton was a trustee for the company in respect to the moneys alleged to have been misappropriated, and therefore that no limitation under the circumstances should bar its demand. We do not think that Stapleton was a trustee for the company in the sense imputed by plaintiff. 2 C.J. 425. And in no sense could the trust reposed in him be regarded as a bar to the defense of laches. 37 C.J. 795, 903, 909.
The decree of the lower court is affirmed, with costs.

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Mr. Lewis trains, counsels, and represents school districts in matters involving special education and discrimination under the Individuals With Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973, and other related laws. His represents school districts in state and federal courts, mediation sessions, and administrative due-process hearings.
Mr. Lewis is rated by Martindale-Hubbell as BV Distinguished ®.
F.M. v. Madison City Board of Education, U.S. District Court, Northern District of Alabama (decided March 30, 2018).
Sparman v. Blount County Board of Education, U.S. District Court, Northern Districto of Alabama (decided September 19, 2016).
Laura A. v. Limestone County Board of Education, U.S. Eleventh Circuit Court of Appeals (decided April 28, 2015).
N.B. v. Demopolis City Board of Education, 112 LRP 58398 (U.S. Dist. Court, S.D., Ala. 2012).
In re Cherokee County Board of Education, 111 LRP 5931 (2010).
C. C. v. Huntsville City Board of Education, 106 LRP 6294 (2006).
R.S. v. Madison City Board of Education, 106 LRP 12373 (2006).
W. M. v. Huntsville City Board of Education, 44 IDELR 77 (2005).
B. R. v. Florence City School System, 42 IDELR 129 (2004).
C. G. v. M.C.S.S., 47 IDELR 59 (2006).
D. K. v. Limestone County Board of Education, 41 IDELR 225 (2004).
K. B. v. M.C.S.S., 44 IDELR 174 (2005).
In re Disabled Student, 22 IDELR 931 (1995).
In re Limestone County Board of Ed., 31 IDELR 122 (1999).
“Be Aware of the Obligations Imposed by Section 504 of the Rehabilitation Act,” Alabama School Boards (magazine), spring 2007.
“New IDEA Should Boost Discipline and Curb Frivolous Lawsuits,” Alabama School Boards (magazine), January-February, 2005.
Advanced Section 504 and ADA School Compliance Issues, July 21, 2015, Mega Conference sponsored by the Alabama Department of Education, Mobile, Alabama.
Section 504 Legal Overview and Update, July 23, 2105, Mega Conference sponsored by the Alabama Department of Education, Mobile, Alabama.

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Noe v. Superior Court – It is a Violation of the Labor Code to Willfully Misclassify Employees as Independent Contractors.
In June 2015, the California Court of Appeal – 2nd District, issued its decision in Noe v. Superior court, which provided that California Labor Code § 226.8 makes it unlawful for an employer to engage in the willful misclassification of an employee as an independent contractor. Willful misclassification is defined as “avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.” The Court further held that § 226.8 does not provide for a private right of action; however a company that is aware of a violation may still be penalized by the State.
The Court of Appeal ultimately held that the trial court incorrectly interpreted the phrase “engaged in” within the meaning of § 226.8, it means to participate or be involved in, therefore the section can extend beyond the employer who actually made the misclassification to anyone who was involved in it. Because the purpose of the statute is to prevent an employer from engaging in the act of willful misclassification, liability only extends to the employers who actually participate in the misclassification. Therefore an employer cannot be penalized under § 226.8 on their status as co-employer.
The court also concluded that § 226.8 does not provide for a private right of action. There is no language in the statute indicating that the penalty is directly recoverable by the employees, which means that the provision is only enforceable by the Labor Commissioner and employees cannot bring a private suit.
This means that any employer involved in the voluntary and knowing misclassification of employees can be liable under California Labor Code § 226.8. An employer is not shielded from liability just because he did not make the actual misclassification. This prevents an employer from utilizing a lower-tier, joint employer to make employee classifications in order to evade civil penalties.
This also means that an employer cannot be liable based on his status as a co-employer alone. Because the purpose of the statute is to penalize an employer for engaging in misclassification, the employer must have actually taken part in the misclassification in some way. An employer cannot be liable under the statute if he has no knowledge of the misclassification. Therefore an employer is not liable for merely employing an individual who has been misclassified or based on co-employer status alone.
The fact that the statute does not provide for a private cause of action means an employee cannot bring a lawsuit against the employer; the penalty for a violation is enforceable only through the Labor Commission.


WHC, Inc. v. Tri-State Road Boring, Inc.
WHC, Inc.v.Tri-State Road Boring, Inc.
APPEAL FROM 19TH JUDICIAL DISTRICT COURT, EAST BATON ROUGE PARISH, STATE OF LOUISIANA, HONORABLE CHARLES WILLIAM ROBERTS, J.
William W. Stagg and Mark C. Andrus, Lafayette, for plaintiff-appellee WHC, Inc.
Robert H. Wood, New Orleans, for third party defendant-appellee Exxon Pipeline Co. and Exxon Corp.
S. Alfred Adams, Baton Rouge, for defendant-appellant Tri-State Road Boring, Inc.
Before EDWARDS, SHORTESS and SAVOIE, JJ.
Tri-State Road Boring, Inc. (Tri-State) field a third party action against Exxon Corporation, U.S.A., and Exxon Pipeline Company(Exxon) and a reconventional demand against WHC, Inc. (WHC) in WHC's main demand against Tri-State and its surety, American Manufacturers Mutual Insurance Company (American), for damages for breach of contract. The trial court sustained Exxon's exception of no cause of action and ordered Tri-State to amend its complaint to allege specific acts constituting malice or defamation. Tri-State amended. The trial court sustained Exxon's second exception of no cause of action and dismissed Tri-State's third party action. Tri-State brings this appeal.
WHC contracted with Exxon to construct a heating oil pipeline at Exxon's Maryland Terminal in East Baton Rouge Parish, Louisiana. WHC subcontracted with Tri-State for performance of pit excavation, welding, road boring and casing installation on the project. On March 16, 1982, shortly after Tri-State attempted to bore through the Louisiana Highway 19 road bed and the Associated Illinois Central Railroad track beds, it began experiencing a series of interruptions and equipment failures and breakdowns. WHC attributed these problems to Tri-State's improper and substandard boring work and use of inferior, inadequate equipment. Alleging "the complete inability of Tri-State's to perform its contract in a timely and workmanlike manner," WHC dismissed Tri-State from the project on April 5, 1982, hired a new road boring contractor and sued Tri-State for breach of contract. Tri-State reconvened against WHC and filed a third party action against Exxon asserting a claim in tortious interference with contract, tortious interference with business and defamation of business reputation.
In addition, this Court has reviewed the supplemental and amending petition which was filed by Tri-State and finds it to be mere conclusions of law. There are no allegations of fact of any particular things that were done, any particular act on any particular date that influenced or caused the problem between WHC, Inc., and Tri-State. Even an allegation of certain derogatory statements isn't sufficient because a derogatory statement is not necessarily defamatory.
In its first petition, Tri-State alleged that "WHC, through its duly authorized employees and/or agents together with agents and/or employees of third party defendants, Exxon Pipeline Company and Exxon USA arbitrarily and capriciously dismissed Tri-State from the job precluding Tri-State from finishing all of the work that was to be done"; that WHC and Exxon "collectively caused Tri-State to be dismissed from this project without just cause and without any warning whatsoever"; that Exxon "interfered with the contractual and business relationship between Tri-State and WHC and caused WHC to order Tri-State from the job site; and that because of the illegal interference with the business relationship between Tri-State and WHC," Exxon has "damaged the business reputation of Tri-State with WHC and with other contractors on whom Tri-State relies to secure its business."
In its second petition, filed pursuant to the trial court's initial ruling, Tri-State accused Exxon employees of making derogatory and "numerous false statements and protestations" to WHC-Dixie to the effect that Tri-State was not performing in a timely or workmanlike manner; that, prior to discharge by WHC, Exxon employees directly communicated a discharge order to a Tri-State employee; that other Exxon employees commented among themselves and to WHC-Dixie employees about the Exxon employee who "had exceeded the scope of his authority in ordering Tri-State off of the . . . job;" that Exxon employees had actual knowledge they had no privity of contract with Tri-State and thus no authority to fire them; and that Exxon employees "proceeded to the physical work site to make sure that Tri-State removed its equipment and employees from Exxon's property."
Tri-State also alleged that this illegal interference with the business relationship damaged Tri-State's business reputation with WHC and others and that American Manufacturers Mutual Insurance Company refused to issue surety bonds to it after its removal from the Exxon work site.
Basically, Tri-State's initial and amending petitions make three allegations: (1) Exxon was involved in a concerted effort with WHC to arbitrarily, capriciously, and without just cause dismiss Tri-State, thus preventing its successful completion of the contract; (2) Exxon interfered with the contractual and business relationship between Tri-State and WHC by making derogatory and false statements about Tri-State's performance and exceeded its authority by going over WHC's head to fire Tri-State; and (3) Exxon damaged Tri-State's business reputation with WHC and other contractors on whom Tri-State relies to secure its business.
In addition, Exxon has filed in the record answers to Tri-State's interrogatories which admit that: "[i]t was generally known and believed" by both WHC and Exxon personnel that Tri-State "was not performing the work timely or in a satisfactory manner, did not appear to have reliable equipment and sufficient or trained personnel . . ." and that an Exxon employee told its project engineer that he "should not have voiced his dissatisfaction with Tri-State's performance and activities in the presence of third parties other than WHC . . ."
The peremptory exception of no cause of action is used to question whether any legal remedy is available to the plaintiff under the allegations of the petition. Since no evidence may be introduced in its support, the exception is triable only upon the face of plaintiff's petition and any attached documents. LSA-C.C.P. art. 931. All well-pleaded facts are accepted as true, with any doubts resolved in favor of the sufficiency of the petition. The reviewing court must determine whether the law affords a remedy under the circumstances alleged, under any theory of the case. Sanborn v. Oceanic Contractors, Inc., 448 So.2d 91 (La. 1984); Elliott v. Merritt, 457 So.2d 1216 (La.App. 1st Cir. 1984); writ denied, 461 So.2d 315 (La. 1984); Ustica Enterprises, Inc. v. Costello, 434 So.2d 137 (La.App. 5th Cir. 1983).
Although policy reasons prohibit damages for recovery from an indirect tort, interference with a contract, recovery is possible for direct, intentional torts or breaches of either legal or contractual duties. "[T]here must be an ease of association between the rule of conduct, the risk of injury, and the loss sought to be recovered." PPG Industries, Inc. v. Bean Dredging, 447 So.2d 1058,1061 (La. 1984); Hill v. Lundin Associates, Inc., 260 La. 542, 256 So.2d 620, 622 (1972); Sanborn, 448 So.2d at 94; Ledet v. Continental Grain Co., 380 So.2d 655, 657 (La.App. 4th Cir. 1980).
The Louisiana Supreme Court has not expanded the interpretation of LSA-C.C. art. 2315 to permit recovery for indirect economic damages caused by tortious interference with contractual relations. The general approach has been to dismiss the case for failing to state a cause of action for which legal relief can be granted. PPG Industries, Inc. v. Bean Dredging, 447 So.2d 1058 (La. 1984); Moss v. Guarisco, 409 So.2d 323 (La.App. 1st Cir. 1981); writ denied, 412 So.2d 540 (La. 1982).
Tri-State alleged that Exxon employees made derogatory and false statements about its untimely and unsatisfactory performance, and that these remarks damaged its business reputation. "In determining whether the petition states a cause of action, every reasonable interpretation must be afforded its language so as to maintain the sufficiency of the petition and to afford plaintiff his day in court." Adserv Corporation v. Lincecum, 385 So.2d 432, 434 (La.App. 1st Cir. 1980); Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La. 1975).
If plaintiff's petition establishes the essential elements of defamation, then he may seek a remedy under that cause of action. These essential elements have traditionally been (1) defamatory words; (2) publication (communication to someone other than the person defamed); (3) falsity; (4) actual or implied malice; and (5) resulting injury Jenkins v. Ouachita Parish School Board, 459 So.2d 143, 146 (La.App. 2nd Cir. 1984). writ denied, 462 So.2d 652 (La. 1985). The petition must also allege fault on the part of the defendant, but an allegation of falsity alone fails to satisfy this "fault" requirement. The United States Supreme Court has held that states should retain "a wide latitude in defining the standard of recovery for defamation" in First Amendment cases involving rights of freedom of speech and of the press of private individuals, but included of prohibition against using "liability without fault" as a standard of liability. Ritchey v. Azar, 383 So.2d 360, 364, n. 2 (La. 1980); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).
Although the Louisiana Supreme Court used Gertz principles where private individuals were involved as plaintiff and defendants, some Louisiana courts have questioned the applicability of Gertz: to defendants not associated with the news media. See Mashburn v. Collin, 355 So.2d 879, 885, n. 32 (La. 1977); Wattigny v. Lambert, 408 So.2d 1126, 1130 n. 1 (La.App. 3rd Cir. 1981), writ denied, 410 So.2d 760 (La. 1981); cert. denied, 457 U.S. 1132, 102 S.Ct. 2957, 73 L.Ed.2d 1349 (1982); and Rosen v. Reed, 351 So.2d 1284 (La.App. 1st Cir. 1977), writ denied, 353 So.2d 1340 (La. 1978), in Judge Landry's concurring opinion. Since the United States Supreme Court decided that the plaintiff in Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, n. 16, 61 L.Ed.2d 411 (1979) was not a public figure, it did not raise that issue about New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) or its progeny. In Wattigny v. Lambert, 453 So.2d 1272 (La.App. 3rd Cir. 1984), involving a public figure (father of the plaintiff in the first Wattigny case). it was held that the New York Times standard has equal application whether the defendant is a member of the media or not, and the U.S. Supreme Court makes no distinction between freedom of speech and the press. Therefore, a public official must prove actual malice even by a private individual defendant.
Also rejecting the argument that Gertz could be distinguished from defamation actions involving private individuals and thus provide less constitutional protection to the defendant, the court in Wattigny v. Lambert, 408 So.2d 1126 (La.App. 3rd Cir. 1981), would hold a defendant liable only if a finding of fault is made. The Wattigny court used the traditional tort analysis, considering the essential elements of a defamation action to be fault, causation and damages, with LSA-C.C. art. 2315 according constitutional protection under Gertz, since plaintiff must prove fault on defendant's part to maintain the action. The Third Circuit held that the essential elements in an identical defamation action (two practicing attorneys, both private individuals) are the same as for any other offense or quasi-offense under LSA-C.C. art. 2315. Using the Hill v. Lundin Associates duty-risk analysis, the court in Wattigny decided that a requirement of malice, either express or implied, is not a requirement under LSA-C.C. 2315, but could be taken into consideration in the award of damages or to destroy an otherwise valid privilege. Wattigny, 408 So.2d at 1133-34.
We disagree with the trial judge that the statements attributed to Exxon were merely derogatory, but not necessarily defamatory. Accepted as true, Tri-State's allegations that Exxon employees made numerous false statements about their operating in an untimely, unworkmanlike manner are capable of a defamatory meaning, since they tend to injure Tri-State's reputation among those with whom it conducts business. If the alleged statements falsely provoked WHC's termination of the contract and prevented obtaining of bonding, damage occurred. Especially in the context of the Exxon engineer's alleged discharge of Tri-State and Exxon's alleged threat to terminate WHC's contract if it refused to fire Tri-State (which if true could show fault or even malice), these summaries of oral statements could be considered defamatory. The test is the effect the statements are "fairly calculated to produce and the impression [they] would naturally engender in the minds of the average persons among whom [they are] intended to circulate." Weatherall v. Department of Health and Resources, 432 So.2d 988, 993 (La.App. 1st Cir. 1983), writ denied, 437 So.2d 1150 (La. 1983).
Although the trial judge found that the allegations were not particular enough, vague allegations in Jenkins, 459 So.2d at 146, were found to be broad enough to require the admission of evidence on the elements of defamation. Also. Exxon has admitted, in answer to interrogatories that are a part of this record, that its project engineer should not have been critical of "Tri-State's performance and activities in the presence of third parties other than WHC . . ." and that Tri-State "was not performing the work timely or in a satisfactory manner, did not appear to have reliable equipment and sufficient or trained personnel."
Accordingly, considering both the original and amending petitions, along with the judicial admission of record we find that a cause of action has been stated by Tri-State for defamation. In view of this finding, other issues raised by Tri-State in this appeal may be pretermitted. The trial Court's decision dismissing Tri-State's third party action is reversed, and this matter is remanded for further proceedings consistent with the opinion. Costs of this appeal are taxed to Exxon.
SAVOIE, J., concurs in the result.


CERTIORARI TO THE COURT OF APPEALS OF MICHIGAN.
Argued April 26, 2005. Decided June 20, 2005.
Petitioners, a trucking company engaged in both interstate and intrastate hauling and a trucking association, asked Michigan courts to invalidate the State's flat $100 annual fee imposed on trucks engaged in intrastate commercial hauling, see Mich. Comp. Laws Ann. § 478.2(1), claiming that it discriminates against interstate carriers and imposes an unconstitutional burden on interstate trade because trucks carrying both interstate and intrastate loads engage in less intrastate business than trucks carrying only intrastate loads. The State Court of Claims rejected the claim, holding that, because the fee is regulatory and intended for the Michigan Motor Carrier Act's administration, it is not amenable to apportionment; that it is an appropriate exercise of the State's police power; and that it does not implicate the Commerce Clause because it falls only on intrastate commerce. The State Court of Appeals affirmed, and the State Supreme Court declined review.
Held: Michigan's fee does not violate the dormant Commerce Clause. That Clause prevents a State from "jeopardizing the welfare of the Nation as a whole" by "plac[ing] burdens on the flow of commerce across its borders that commerce wholly within those borders would not bear." Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. 175, 180. Applying this Court's dormant Commerce Clause principles and precedents here, nothing in § 478.2(1) offends the Commerce Clause. The flat fee is imposed only on intrastate transactions. It does not facially discriminate against interstate or out-of-state activities or enterprises. It applies evenhandedly to all carriers making domestic journeys and does not reflect an effort to tax activity taking place outside of the State. Nothing in this Court's case law suggests that such a neutral, locally focused fee or tax is inconsistent with the dormant Commerce Clause. That is not surprising, since States impose numerous flat fees on local business and service providers, e.g., insurers and auctioneers. The Constitution neither displaces States' authority to shelter their people from health and safety menaces nor unduly curtails their power to lay taxes to support state government. The record, moreover, shows no special circumstances suggesting that Michigan's fee operates as anything other than an unobjectionable exercise of the State's police power. Neither does it show that the flat assessment unfairly discriminates against interstate truckers. Because the costs the fee seeks to defray, e.g., those of regulating vehicular size and weight, would seem more likely to vary per truck or per carrier than per mile traveled, a per-truck, rather than a per-mile, assessment is likely fair. And petitioners provide no details of their preferred alternative miles-traveled system or point to evidence of its practicality. Nor is there any reason to infer that the State's lump-sum levy on purely local activity erects an impermissible discriminatory roadblock. American Trucking Assns., Inc. v. Scheiner, 483 U.S. 266, distinguished. As for petitioners' "internal consistency" argument — that if every State did the same as Michigan, an interstate trucker doing local business in multiple States would have to pay a fee of several hundred or thousand dollars — any interstate firm with local outlets normally expects to pay local fees uniformly assessed on all those engaging in local business. Pp. 433-438.
255 Mich. App. 589, 662 N.W. 2d 784, affirmed.
Robert Digges, Jr., argued the cause for petitioners. With him on the briefs were Charles Rothfeld and Evan Tager. Henry J. Boynton, Assistant Solicitor General of Michigan, argued the cause for respondents. With him on the brief were Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and David A. Voges, Michael A. Nickerson, Glenn R. White, and Emmanuel B. Odunlami, Assistant Attorneys General.
Malcolm L. Stewart argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, Mark B. Stern, Sushma Soni, Jeffrey A. Rosen, Paul M. Geier, and Dale C. Andrews.
Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States of America by Christopher J. Wright and Robin S. Conrad; for Deeco Services, Inc., dba Deeco Transportation, et al. by Robert E. McFarland; and for the Eagle Forum Education Legal Defense Fund by Douglas G. Smith.
Briefs of amici curiae urging affirmance were filed for the State of Illinois et al. by Lisa Madigan, Attorney General of Illinois, Gary Feinerman, Solicitor General, Nadine J. Wichern, Assistant Attorney General, and Dan Schweitzer, and by the Attorneys General for their respective States as follows: Troy King of Alabama, M. Jane Brady of Delaware, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Thomas J. Miller of Iowa, G. Steven Rowe of Maine, Thomas F. Reilly of Massachusetts, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Brian Sandoval of Nevada, Kelly A. Ayotte of New Hampshire, Eliot Spitzer of New York, Wayne Stenehjem of North Dakota, Jim Petro of Ohio, W.A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Lawrence E. Long of South Dakota, Mark L. Shurtleff of Utah, and Darrell V. McGraw, Jr., of West Virginia; and for the National Conference of State Legislatures et al. by Richard Ruda and James I. Crowley.
BREYER, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and STEVENS, O'CONNOR, KENNEDY, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., post, p. 439, and THOMAS, J., filed opinions concurring in the judgment.
In this case, we consider whether a flat $100 fee that Michigan charges trucks engaging in intrastate commercial hauling violates the dormant Commerce Clause. We hold that it does not.
A subsection of Michigan's Motor Carrier Act imposes upon each motor carrier "for the administration of this act, an annual fee of $100.00 for each self-propelled motor vehicle operated by or on behalf of the motor carrier." Mich. Comp. Laws Ann. § 478.2(1) (West 2002). The provision assesses the fee upon, and only upon, vehicles that engage in intrastate commercial operations — that is, on trucks that undertake point-to-point hauls between Michigan cities. See Westlake Transp., Inc. v. Michigan Pub. Serv. Comm'n, 255 Mich. App. 589, 592-594, 662 N.W. 2d 784, 789 (2003). Petitioners, USF Holland, Inc., a trucking company with trucks that engage in both interstate and intrastate hauling, and the American Trucking Associations, Inc. (ATA), asked the Michigan courts to invalidate the provision. Both petitioners told those courts that trucks that carry both interstate and intrastate loads engage in intrastate business less than trucks that confine their operations to the Great Lakes State. Hence, because Michigan's fee is flat, it discriminates against interstate carriers and imposes an unconstitutional burden upon interstate trade.
The Michigan Court of Claims rejected the carriers' claim for three reasons. First, the $100 fee "is regulatory and intended" for the Motor Carrier Act's administration, which includes "regulation of vehicular size and weight, insurance requirements and safety standards." App. to Pet. for Cert. 44a. Such a fee "is not amenable to a fee structure based on apportionment by usage rates." Ibid. Second, the fee reflects a "legitimate expression of the [S]tate's concern that the welfare of its citizens be protected," and hence an appropriate exercise of the State's police power. Ibid. Third, the fee does not implicate the Commerce Clause because it falls only on intrastate, not interstate, commerce. Id., at 45a.
The Michigan Court of Appeals affirmed. It did not agree that the intrastate nature of § 478.2(1) sheltered the fee from Commerce Clause scrutiny. 255 Mich. App., at 617-619, 662 N.W. 2d, at 802. Nonetheless, the court rejected the truckers' claim because the statute "regulates evenhandedly," id., at 621, 662 N.W. 2d, at 804, and because the record lacked any "evidence that any trucking firm's route choices [were] affected by the imposition of the fee," id., at 621, 662 N.W. 2d, at 803-804. Rather, the record indicated that any "effect . . . on interstate commerce is incidental," rendering the truckers' claim of discrimination "a matter of pure speculation." Ibid.
The Michigan Supreme Court denied petitioners leave to appeal. Westlake Transp., Inc. v. Michigan Pub. Serv. Comm'n, 469 Mich. 976, 673 N.W. 2d 752 (2003). We granted their petition for certiorari and consolidated the case with Mid-Con Freight Systems, Inc. v. Michigan Pub. Serv. Comm'n, post, p. 440, a case in which interstate truckers sought review of a separate state motor carrier fee. We now affirm the Michigan court's judgment sustaining § 478.2(1).
Our Constitution "was framed upon the theory that the peoples of the several states must sink or swim together." Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 523 (1935). Thus, this Court has consistently held that the Constitution's express grant to Congress of the power to "regulate Commerce . . . among the several States," Art. I, § 8, cl. 3, contains "a further, negative command, known as the dormant Commerce Clause," Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. 175, 179 (1995), that "create[s] an area of trade free from interference by the States," Boston Stock Exchange v. State Tax Comm'n, 429 U.S. 318, 328 (1977) (internal quotation marks omitted). This negative command prevents a State from "jeopardizing the welfare of the Nation as a whole" by "plac[ing] burdens on the flow of commerce across its borders that commerce wholly within those borders would not bear." Jefferson Lines, supra, at 180.
Thus, we have found unconstitutional state regulations that unjustifiably discriminate on their face against out-of-state entities, see Philadelphia v. New Jersey, 437 U.S. 617 (1978), or that impose burdens on interstate trade that are "clearly excessive in relation to the putative local benefits," Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). We have held that States may not impose taxes that facially discriminate against interstate business and offer commercial advantage to local enterprises, see, e.g., Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U.S. 93, 99-100 (1994), that improperly apportion state assessments on transactions with out-of-state components, Central Greyhound Lines, Inc. v. Mealey, 334 U.S. 653 (1948), or that have the "inevitable effect [of] threaten[ing] the free movement of commerce by placing a financial barrier around the State," American Trucking Assns., Inc. v. Scheiner, 483 U.S. 266, 284 (1987).
Applying these principles and precedents, we find nothing in § 478.2(1) that offends the Commerce Clause. To begin with, Michigan imposes the flat $100 fee only upon intrastate transactions — that is, upon activities taking place exclusively within the State's borders. Section 478.2(1) does not facially discriminate against interstate or out-of-state activities or enterprises. The statute applies evenhandedly to all carriers that make domestic journeys. It does not reflect an effort to tax activity that takes place, in whole or in part, outside the State. Nothing in our case law suggests that such a neutral, locally focused fee or tax is inconsistent with the dormant Commerce Clause.
This legal vacuum is not surprising. States impose numerous flat fees upon local businesses and service providers, including, for example, upon insurers, auctioneers, ambulance operators, and hosts of others. See, e.g., Wyo. Stat. § 33-36-104 (Lexis 2003); S.C. Code Ann. § 38-7-10 (West 2002). Although we have "long since rejected any suggestion that a state tax . . . affecting interstate commerce is immune from Commerce Clause scrutiny because it attaches only to a `local' or intrastate activity," Commonwealth Edison Co. v. Montana, 453 U.S. 609, 615 (1981), we have also made clear that the Constitution neither displaces States' authority "to shelter [their] people from menaces to their health or safety," D.H. Holmes Co. v. McNamara, 486 U.S. 24, 29 (1988) (internal quotation marks omitted), nor "unduly curtail[s]" States' power "to lay taxes for the support of state government," McGoldrick v. Berwind-White Coal Mining Co., 309 U.S. 33, 48 (1940).
The record, moreover, shows no special circumstance suggesting that Michigan's fee operates in practice as anything other than an unobjectionable exercise of the State's police power. To the contrary, as the Michigan Court of Appeals pointed out, the record contains little, if any, evidence that the $100 fee imposes any significant practical burden upon interstate trade. See 255 Mich. App., at 620-622, 662 N.W. 2d, at 803-804. The record does show, for example, that some interstate trucks "top off" some interstate hauls with intrastate pickups and deliveries. See Brief for Intervening Plaintiffs-Appellants in Nos. 226052, 226122 (Ct.App.Mich.), Exh. 3, Affidavit of James C. Crozier ¶ 7 (licensing and fuel manager of TNT Holland Motor Express, Inc., describing this practice). But it does not tell us the answers to such questions as: How often does "topping off" occur across the industry? Does the $100 charge make a difference by significantly discouraging interstate carriers from engaging in "topping off"? Does the possibility of obtaining a 72-hour intrastate permit for $10 alleviate the alleged problem? See § 478.2(3); see also Brief for Respondents 2, n. 3 (4,928 temporary permits were issued in 2004). If the fees ($100 and $10) discourage "topping off," does that local commercial effect make a significant interstate difference? Would a variable fee (of the kind the truckers advocate) eliminate such difference? The minimal facts in the record tell us little about these matters. Compare App. 60-61, Supplemental Affidavit of Thomas R. Lonergan ¶ 10(e) (official of the Michigan Public Service Commission stating that topping off is rare for most interstate carriers because it disrupts schedules and shipping patterns), with Reply Brief for Intervening Plaintiffs-Appellants in Nos. 226122, 226137 (Ct.App.Mich.), Exh. A, Supplemental Affidavit of James C. Crozier ¶ 6 (TNT Holland frequently tops off interstate loads). And at oral argument, ATA conceded the absence of record facts that empirically could show that the $100 fee significantly deters interstate trade. Tr. of Oral Arg. 5.
Neither does the record show that the flat assessment unfairly discriminates against interstate truckers. The fee seeks to defray costs such as those of regulating "vehicular size and weight," of administering "insurance requirements," and of applying "safety standards." App. to Pet. for Cert. 44a. The bulk of such costs would seem more likely to vary per truck or per carrier than to vary per mile traveled. See 255 Mich. App., at 612-617, 662 N.W. 2d, at 799-801. And that fact means that a per-truck, rather than a per-mile, assessment is likely fair. Cf. Jefferson Lines, 514 U.S., at 199 (rejecting taxpayer's discrimination claim in part because "miles traveled within the State simply are not a relevant proxy for the benefit conferred upon the parties to a sales transaction"). Nothing in the record suggests the contrary.
Nor would an effort to switch the manner of fee assessment — from lump sum to, for example, miles traveled — be burden free. The record contains an affidavit, sworn by a Michigan Public Service Commission official, that states that to obtain the same revenue (about $3.5 million) through a per-mile fee would require the State to create a "data accumulation system" capable of separating out intrastate hauls and determining their length, and to develop related liability, billing, and auditing mechanisms. App. 64, Second Supplemental Affidavit of Thomas R. Lonergan ¶ 2. This affidavit, on its face, suggests that the game is unlikely to be worth the candle. While petitioners argue the contrary, they do not provide the details of their preferred alternative administrative system nor point to record evidence showing its practicality. See Jefferson Lines, supra, at 195 (State is not required to use a particular apportionment formula just because it may be "possible" to do so).
Petitioners insist that they do not need empirically to demonstrate the existence of a burdensome or discriminatory impact upon interstate trucking, or (presumably) the unfairness of the assessment in relation to defrayed costs, or (presumably) the administrative practicality of the alternatives. They say that our earlier case, American Trucking Assns., Inc. v. Scheiner, 483 U.S. 266 (1987), requires invalidation of the $100 flat fee, even in the absence of such proof. We disagree.
In Scheiner, this Court invalidated a flat $25 "marker fee" and a flat "axle tax" that Pennsylvania levied upon all trucks (interstate and intrastate) that used its roads, including trucks that merely crossed Pennsylvania's borders to transport, say, Ohio goods to New Jersey customers. See id., at 273-275. Data showed that the fees imposed a cost per mile on interstate trucks that was approximately "five times as heavy as the cost per mile borne by local trucks." Id., at 286. The assessments largely helped to raise revenue "to improve and maintain [the State's] highways and bridges," id., at 270, thereby helping to cover costs likely to vary significantly with truck-miles traveled, see ibid. And the assessments did "not even purport to approximate fairly the cost or value of the use of Pennsylvania's roads." Id., at 290. In light of these considerations, Pennsylvania's lump-sum taxes "threaten[ed] the free movement of commerce by placing a financial barrier around the State of Pennsylvania." Id., at 284. We concluded that "[i]f each State imposed flat taxes for the privilege of making commercial entrances into its territory, there [was] no conceivable doubt that commerce among the States would be deterred." Ibid.
The present fee, as we have said, taxes purely local activity; it does not tax an interstate truck's entry into the State nor does it tax transactions spanning multiple States. See 255 Mich. App., at 592-594, 662 N.W. 2d, at 789. We lack convincing evidence showing that the tax deters, or for that matter discriminates against, interstate activities. See supra, at 434-435. Nor is the tax one that, on its face, would seem to call for an assessment measured per mile rather than per truck. See supra, at 435-436. Consequently, we lack any reason to infer that Michigan's lump-sum levy erects, as in Scheiner, an impermissible discriminatory roadblock.
Petitioners add that Michigan's fee fails the "internal consistency" test — a test that we have typically used where taxation of interstate transactions is at issue. Generally speaking, that test asks, "What would happen if all States did the same?" See, e.g., Goldberg v. Sweet, 488 U.S. 252, 261 (1989); Jefferson Lines, supra, at 185 (test looks to the structure of the tax to see whether its identical application by every State "would place interstate commerce at a disadvantage as compared with commerce intrastate"). We must concede that here, as petitioners argue, if all States did the same, an interstate truck would have to pay fees totaling several hundred dollars, or even several thousand dollars, were it to "top off" its business by carrying local loads in many (or even all) other States. But it would have to do so only because it engages in local business in all those States. An interstate firm with local outlets normally expects to pay local fees that are uniformly assessed upon all those who engage in local business, interstate and domestic firms alike. See, e.g., Commonwealth Edison, 453 U.S., at 623-624 (dormant Commerce Clause does not seek "to relieve those engaged in interstate commerce from their just share of state tax burden even though it increases the cost of doing business" (internal quotation marks omitted)); cf. Jefferson Lines, supra, at 187-188 (in context of sales tax, "the Commerce Clause does not forbid the actual assessment of a succession of taxes by different States on distinct events as the same tangible object flows along"). A motor carrier is not special in this respect.
In sum, petitioners have failed to show that Michigan's fee, which does not seek to tax a share of interstate transactions, which focuses upon local activity, and which is assessed evenhandedly, either burdens or discriminates against interstate commerce, or violates the Commerce Clause in any other relevant way. See Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 (1977) (noting that a tax will be sustained where it is applied to an activity with a "substantial nexus" to the taxing State; where, if applied to interstate activity, it is "fairly apportioned"; where it does not discriminate; and where it is "fairly related to the services provided").
For these reasons, the judgment of the Michigan Court of Appeals is affirmed.
Michigan imposes a flat fee on trucks that engage in purely intrastate commercial operations. I agree with the Court that this fee does not violate the negative Commerce Clause. Unlike the Court, ante, at 433, 437-438, I reach that determination without adverting to various tests from our wardrobe of ever-changing negative Commerce Clause fashions: the balancing approach from Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), the four-factor test from Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977), and the internal-consistency test from cases such as American Trucking Assns., Inc. v. Scheiner, 483 U.S. 266 (1987). Instead, I ask whether the fee "facially discriminates against interstate commerce" and whether it is "indistinguishable from a type of law previously held unconstitutional by this Court." West Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 210 (1994) (SCALIA, J., concurring in judgment). As the Court correctly concludes, Michigan's fee meets neither of those conditions. It does not facially discriminate against interstate commerce, ante, at 434, and it is distinguishable from petitioners' best analogue, the fees invalidated in Scheiner, which applied to interstate trucks even when they engaged in no intrastate business, ante, at 436-437.
I would affirm the judgment of the Michigan Court of Appeals because "`[t]he negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application,' Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 610 (1997) (THOMAS, J., dissenting), and, consequently, cannot serve as a basis for striking down a state statute." Hillside Dairy Inc. v. Lyons, 539 U.S. 59, 68 (2003) (THOMAS, J., concurring in part and dissenting in part).