Victor WORLEDGE, Matthew Hall, Lynne Kelly, and Michael Bartholic, and all others similarly situated, Plaintiffs and Appellees, v. RIVERSTONE RESIDENTIAL GROUP, LLC, HSC Real Estate, Inc., Creekside ICG Apartment Portfolio III, LLC, NW Apartment Portfolio II Wildflower, LLC, NW Apartment Portfolio II Shiloh Glen, LLC, and 4000 Mullan Road LLC, Defendants and Appellants.
For Appellants: David M. McLean, Christy S. McCann, Browning, Kaleczyc, Berry & Hoven, P.C., Missoula, Montana (for Creekside ICG Apartment Portfolio III, LLC, Apartment Portfolio II Wildflower, LLC, and NW Apartment Portfolio II Shiloh Glen, LLC), W. Scott Mitchell, Michael P. Manning, Holland & Hart, LLP, Billings, Montana (for Riverstone Residential Group, LLC and HSC Real Estate, Inc.), Perry J. Schneider, Hannah Stone, Milodragovich, Dale & Steinbrenner, P.C., Missoula, Montana (for 4000 Mullan Road, LLC). For Appellees: Christopher W. Froines, Froines Law Office, Inc., Missoula, Montana.
2. Whether the District Court abused its discretion in determining that the proposed class satisfied M.R. Civ. P. 23(a)'s prerequisites to class certification.
3. Whether the District Court abused its discretion by certifying the class under M.R. Civ. P. 23(b)(3).
¶ 3 Appellants Creekside, Wildflower, Shiloh Glen, and Mullan (collectively, “Owners”) are owners of multi-unit apartment buildings located in Montana: Creekside, Wildflower, and Mullan own apartment complexes in Missoula, and Shiloh Glen owns an apartment complex in Billings. Appellant Riverstone and its predecessor, HSC (collectively, “Riverstone”), are property management companies that collectively managed Owners' apartment complexes during times relevant to the complaint. Appellees are current or former tenants of Owners' apartment complexes who signed leases for those apartments through Riverstone: Worledge resides at Creekside, Kelly resides at Wildflower, and Vlahovich formerly resided at Creekside.
¶ 4 On June 11, 2013, Worledge, Vlahovich, and Kelly filed a complaint on behalf of themselves and other unnamed plaintiffs (collectively, “Tenants”) who entered into rental agreements with Riverstone to rent apartments at Owners' apartment complexes. On October 21, Tenants filed a First Amended Complaint, Statement of Class Action, and Jury Demand. Tenants' First Amended Complaint alleged that rental agreements at all four apartment complexes were almost identical and contained provisions that violated the Montana Residential Landlord and Tenant Act (Landlord–Tenant Act), §§ 70–24–101 through 442, MCA, and the Montana Security Deposit Act (Security Deposit Act), §§ 70–25–101 through 206, MCA. To support these allegations, Tenants filed as exhibits several of the named parties' leases with Riverstone. Between November 2013 and February 2014, Riverstone and Owners filed their answers to the complaint.
¶ 5 On March 13, 2014, Tenants moved to certify a class action under M.R. Civ. P. 23. Tenants alleged that the following provisions included in Riverstone leases are prohibited by law: cancellation fees and liquidated damages clauses; provisions requiring the complete forfeiture of security deposits instead of qualified deductions; provisions requiring payment of non-refundable fees; provisions requiring non-refundable pet deposits; provisions exonerating Riverstone and Owners from any risk associated with Tenants' loss of personal property; provisions requiring Tenants to pay all of Owners' and Riverstone's attorney's fees, regardless of fault; and provisions requiring Tenants to indemnify Riverstone and Owners for any injuries to guests.
A rental agreement may not provide that a party: (1) agrees to waive or forego rights or remedies under [the Landlord–Tenant Act]; (2) authorizes any person to confess judgment on a claim arising out of the rental agreement; or (3) agrees to the exculpation or limitation of liability resulting from the other party's purposeful misconduct or negligence to indemnify the other party for the liability or the costs or attorney's fees connected therewith.
Section 70–24–202, MCA. Provisions prohibited under § 70–24–202 are unenforceable, and, “If a party purposefully uses a rental agreement containing provisions known by the party to be prohibited, the other party may recover, in addition to ․ actual damages, an amount up to 3 months' periodic rent.” Section 70–24–403, MCA. The Security Deposit Act contains a list of deductions that a landlord may make from a tenant's security deposit and provides, “A person may not deduct or withhold from the security deposit any amount for purposes other than those set forth [in that list].” Section 75–25–201, MCA.
¶ 7 Tenants sought class certification under M.R. Civ. P. 23(b)(3). Rule 23(a) sets forth four threshold requirements to class certification: numerosity, commonality, typicality, and adequate representation. M.R. Civ. P. 23(a). Rule 23(b)(3) requires a court to find that “the questions of law or fact common to the class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” M.R. Civ. P. 23(b)(3). Thus, Rule 23(b)(3) adds two requirements—predominance and superiority—to the prerequisites under Rule 23(a).
¶ 8 In their motion to certify, in addition to the named parties' Riverstone leases, Tenants filed as exhibits four letters from Riverstone to residents of each apartment complex. The letters, dated May 1 and May 3, 2013, purported to change certain provisions of the Riverstone leases to “better comply with Montana Law.” The letters were written on Mullan, Shiloh Glen, Wildflower, and Creekside letterhead and were signed “Mullan Reserve Management,” “Shiloh Glen Management,” “Wildflower Management,” and “Creekside Apartments Management,” respectively. Otherwise, the letters were substantively identical.
¶ 9 In their responses to Tenants' motion to certify, Riverstone and Owners argued that Tenants had not submitted sufficient evidence to meet their burden of proof and thus had not met any of the Rule 23 requirements. Riverstone and Owners argued that, among other issues, Tenants did not submit evidence to support their claim that there were over 1,000 class members (numerosity); Tenants did not prove that class members had substantially similar lease agreements (commonality); the named plaintiffs could not represent tenants for apartment complexes where they had never lived (typicality and adequate representation); and the court could not resolve whether Riverstone and Owners violated the Security Deposit Act without performing an individual analysis for each class member (predominance).
¶ 10 On April 11, 2014, Tenants filed a motion to amend their first amended complaint by removing Vlahovich and adding named Plaintiffs Hall, a former resident at Mullan, and Bartholic, a former resident at Shiloh Glen. Also on April 11, Tenants filed a reply brief regarding their motion to certify, attaching four additional exhibits—Exhibits H, I, J, and K—to rebut Owners' and Riverstone's assertions that Tenants did not meet the Rule 23 requirements. Exhibit H was a spreadsheet identifying each potential class member, his or her move-in and move-out dates, the name of the apartment complex in which he or she resided, and which of the seven allegedly prohibited provisions his or her lease contained. Exhibit I was an affidavit by Susan Mayer, president and CEO of Litigation Abstract, Inc., the company that generated the spreadsheet. Exhibit J was an affidavit by attorney Klaus Sitte, testifying to the legislative intent of the committee, of which he was a member, that drafted the Landlord–Tenant Act. Exhibit K consisted of several filings in lawsuits brought by Owners against Tenants in which Owners sought to enforce allegedly prohibited attorney's fees provisions in the leases.
¶ 11 Riverstone and Owners opposed Tenants' motion to amend and moved to strike Tenants' Exhibits H, I, J, and K, arguing that the exhibits presented new, inadmissible evidence that Tenants could not present for the first time in a reply brief. Riverstone and Owners noted that courts are hesitant to admit such evidence because it deprives the opposing party of an opportunity to respond. On June 11, 2014, the District Court denied the motions to strike, finding the exhibits admissible.2 The court reasoned that, though parties may not include new arguments in a reply brief, Tenants merely had submitted new evidence in direct rebuttal to Riverstone's and Owners' response briefs. Additionally, the court allowed Riverstone and Owners fourteen days to file sur-replies, supplemental briefing, or supporting evidence to address Tenants' new exhibits, and twenty-one days to request further hearings. On June 25, 2014, Riverstone and Owners all filed sur-replies. Neither Riverstone nor Owners requested hearings or additional time.
All persons who had apartment rental agreements with Riverstone Residential Group, or its predecessor, acting as agents for apartment owners Creekside, Wildflower, Shiloh Glen, and 4000 Mullan Road apartments between June 11, 2011, to present, where the rental agreements contained illegal rental provisions in violation of the Montana Residential Landlord Tenant Act and/or the Montana Security Deposit Act.
On the same day, the court issued an order granting Tenants' motion to amend their first amended complaint. The court determined that whether Tenants could add new named plaintiffs did not impact class certification because the court had certified the class based on Tenants' first amended complaint, which satisfied Rule 23 without naming a plaintiff that was a resident of either Mullan or Shiloh Glen. In spite of making this determination, the court noted that adding two new plaintiffs did not prejudice Riverstone or Owners because Tenants did not assert any new legal theory, there was no dispositive motion pending, Tenants did not act in bad faith, and the amendments were submitted before the deadline set by a joint scheduling order.
¶ 13 Riverstone and Owners appeal the District Court's class certification.
¶ 14 “Trial courts have the broadest discretion when deciding whether to certify a class,” Sieglock v. Burlington N. & Santa Fe Ry. Co., 2003 MT 355, ¶ 8, 319 Mont. 8, 81 P.3d 495, because they are in the “best position to consider the most fair and efficient procedure for conducting any given litigation,” Chipman v. Nw. Healthcare Corp., 2012 MT 242, ¶ 17, 366 Mont. 450, 288 P .3d 193. Accordingly, we will not upset the District Court's decision to certify a class unless we determine that the court abused its discretion. Mattson v. Mont. Power Co., 2012 MT 318, ¶ 17, 368 Mont. 1, 291 P.3d 1209. A court abuses its discretion when it acts “arbitrarily without conscientious judgment or exceed[s] the bounds of reason.” Mattson, ¶ 17. “To the extent that the ruling on a Rule 23 requirement is supported by a finding of fact, that finding ․ is reviewed under the ‘clearly erroneous' standard.” Mattson, ¶ 17 (quoting Miles v. Merrill Lynch & Co., 471 F.3d 24, 40–41 (2d Cir.2006) (internal quotation marks omitted)). Rulings on issues of law are reviewed de novo. Mattson, ¶ 17 (citing Miles, 471 F.3d at 40–41).
¶ 16 Riverstone and Owners argue that the District Court abused its discretion by considering material first submitted with Tenants' reply brief. We have held many times that we “will not address the merits of an issue presented for the first time in a reply brief” State v. Makarchuk, 2009 MT 82, ¶ 19, 349 Mont. 507, 204 P.3d 1213 (quoting Pengra v. State, 2000 MT 291, ¶ 13, 302 Mont. 276, 14 P.3d 499) (emphasis added and internal quotation marks omitted). However, we have not addressed a case where, as here, a plaintiff presents new evidence in response to a defendant's challenge that the plaintiff has not met her evidentiary burden.
¶ 17 Courts that strike new evidence offered for the first time in a plaintiff's reply brief are typically driven by fairness to the parties, reasoning that admitting such evidence “deprives a defendant of an opportunity to meaningfully respond.” Bennett v. Sprint Nextel Corp., No. 09–2122–EFM, 2013 U.S. Dist. LEXIS 41161, at *6–7 (D.Kan. Mar. 25, 2013); see also Tovar v. U.S. Postal Serv ., 3 F.3d 1271, 1273 n. 3 (9th Cir.1993) (striking new evidence presented in a reply brief after the defendant argued that “the new information was outside the record and that including it in a reply brief deprived the [defendant] of an opportunity to respond”); In re Taco Bell Wage & Hour Actions, No. 1:07–cv–01314–OWW–DLB, 2011 U.S. Dist. LEXIS 109169, at *19 (E.D.Cal. Sept. 26, 2011) (“New evidence or analysis presented for the first time in a reply will not be considered.”) (citations omitted). Courts also have stricken new evidence offered in a reply brief when it was available to the plaintiff before she submitted a motion to certify. See Armstrong v. Genesh, Inc., No. 11–1161–CM, 2011 U.S. Dist. LEXIS 142722, at *2 (D.Kan. Dec. 12, 2011) (noting, “The court could consider the newly-submitted evidence and give defendant an opportunity to respond, but the court believes this measure is unnecessary”); Lang v. Kan. City Power & Light Co., 199 F.R.D. 640, 651 (W.D.Mo.2001) (granting a defendant's motion to strike expert testimony offered in a reply brief when the plaintiffs, in interrogatories and in discussions with the court, had indicated that they would not use expert testimony).
¶ 18 Neither of these concerns applies to the evidence at issue here: Tenants did not have access to the spreadsheet and testimony providing its foundation before submitting their motion to certify, and the District Court gave Riverstone and Owners an opportunity to file sur-replies and to request a hearing. Riverstone and Owners argue that the District Court abused its discretion by admitting the new evidence without allowing them an opportunity to conduct discovery regarding that evidence or to obtain an expert of their own, and that fourteen days was insufficient time to file a sur-reply. However, Riverstone and Owners filed sur-replies without ever requesting additional time or hearings, and agreed that they had had a sufficient opportunity to respond.
¶ 19 In its order denying the Defendants' motions to strike, the District Court pointed out that, if it granted the motions, it could deny Tenants' motion to certify without prejudice because the motions to strike were based on lack of evidence, rather than a failed legal argument. Accordingly, the court concluded, “The only result of Defendants' tactical maneuver here would be to delay these proceedings by several months, multiply fees on both sides, and make this Court revisit the exact issues that are currently before it with the same or similar evidence.” The court determined that, because it gave Riverstone and Owners an opportunity to respond and to request additional hearings, Riverstone and Owners would not be prejudiced by the new evidence.
¶ 20 The District Court preempted concerns about accepting the new evidence by allowing Riverstone and Owners the opportunity to file sur-replies and to request further hearings. Although Riverstone and Owners argue that they were unable to rebut Mayer's statement that Tenants' damages are easy to ascertain, Riverstone and Owners have not demonstrated what they would have gained from additional discovery on the contents of the spreadsheets that may have affected the class certification ruling. Tenants do not seek actual damages, but seek only the statutory damages available under § 70–24–403, MCA. Tenants claim that Riverstone's inclusion, rather than enforcement, of allegedly prohibited provisions in Riverstone leases violated the Landlord–Tenant Act and the Security Deposit Act. Further, Riverstone's form letter to residents of all four apartment complexes purporting to eliminate the allegedly prohibited lease provisions implicitly acknowledges that those provisions are easily identified and uniform across all Riverstone leases. The court did not act arbitrarily, without conscientious judgment, or exceed the bounds of reason by admitting Tenants' evidence in these circumstances. The District Court did not abuse its discretion in denying Riverstone's and Owners' motions to strike.
¶ 21 2. Whether the District Court abused its discretion in determining that the proposed class satisfied M.R. Civ. P. 23(a)'s prerequisites to class certification.
¶ 22 Class actions are “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Mattson, ¶ 18 (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01, 99 S.Ct. 2545, 2557 (1979)). “Departure from the usual rule is justified if the class representative is part of the class and has the same interest and injury as the class members.” Sangwin v. State, 2013 MT 373, ¶ 12, 373 Mont. 131, 315 P.3d 279 (citation omitted). Discussed above, Rule 23 of the Montana Rules of Civil Procedure governs class certification in Montana.
¶ 23 Under Rule 23(a) the party seeking certification must establish that the class meets the requirements of numerosity, commonality, typicality, and adequate representation. Chipman, ¶ 43. A district court may certify a class only if it is satisfied, after conducting a “rigorous analysis,” that each of these requirements is met. Chipman, ¶ 44 (citations omitted). Conducting a “rigorous analysis” may entail analyzing some merits issues, but only to the extent that those issues are relevant to determining whether the Rule 23 requirements are satisfied. Chipman, ¶ 44.
¶ 24 Riverstone and Owners dispute the District Court's determination that the proposed class satisfied Rule 23(a)'s commonality, typicality, and adequate representation standards; they do not dispute numerosity.
¶ 25 To meet the commonality requirement, Tenants must show that “there are questions of law or fact common to the class.” M.R. Civ. P. 23(a)(2). Historically, Montana followed federal jurisprudence imposing a “relatively low,” easily satisfied burden on plaintiffs to prove commonality. Chipman, ¶ 47. That standard required plaintiffs to demonstrate a “common nucleus of operative facts”—that “a single issue was common to all class members, regardless of differences among the class.” Chipman, ¶ 47 (internal quotations and citations omitted). However, in Wal–Mart Stores, Inc. v. Dukes, 564 U.S. ––––, 131 S.Ct. 2541 (2011), the U.S. Supreme Court “significantly tightened” the federal commonality requirement. Sangwin, ¶ 18 (quoting Chipman, ¶ 47). Under Wal–Mart, claims by class members and their representatives “must depend upon a common contention of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal–Mart, 564 U.S. at ––––, 131 S.Ct. at 2545.
¶ 26 The District Court determined that the class in this case satisfied Rule 23(a)(2)'s commonality requirement even under Wal–Mart's more stringent standard because the validity of the prospective class members' claims hinged on a single issue: whether Tenants all had leases through Riverstone that contained at least one prohibited provision entitling them to statutory damages under Montana law. In reaching its decision, the court conducted a rigorous analysis of the facts and relied on our recent precedent construing the commonality requirement.
¶ 27 In Chipman, we considered a district court's certification of a class of employees who sued their employers, a parent healthcare company and its subsidiaries, over benefit buy-back programs. Chipman, ¶¶ 5–6. Although the employers contended that each employee had different circumstances requiring a fact-specific, individual analysis, the district court found that the employers implemented a uniform buy-back policy with respect to all employees. Chipman, ¶ ¶ 51–52. We affirmed, recognizing that although dissimilarities within the proposed class existed, “common facts connect all class members in relation to the ultimate resolution” of the dispute. Chipman, ¶ 52 (“A court's determination of whether a standardized group contract exists and the legal obligations of the parties will generate common answers applicable to all class members.”).
Defendants considered the leases so similar that a uniform letter was sent to all ‘residents' at each of the four buildings ․ purportedly striking certain provisions from the leases, stating that provisions would not be enforced, or unilaterally changing the language of the contracts. The letters acknowledged that there were differences in the leases, but implied that the single generic letter was sufficient to address any of the problems in lease language.
¶ 29 Riverstone and Owners do not dispute that all of the leases for the putative class members contained at least one of the seven challenged provisions.3 Because Tenants' allegations concern the general business practice of Riverstone and Owners to use leases with allegedly prohibited provisions, the court determined that slight differences in the leases did not preclude commonality. Following our reasoning in Chipman, we agree that, although “[d]issimilarities within the proposed class exist, ․ common facts connect all class members in relation to the ultimate resolution of this dispute.” Chipman, ¶ 52. Determining in a class-wide proceeding whether the standard form leases used by Riverstone violate the Landlord–Tenant Act will “generate common answers apt to drive the resolution of the litigation.” Chipman, ¶ 48 (quoting Wal–Mart, 564 U.S. at ––––, 131 S.Ct. at 2551) (emphasis removed). Further, Tenants are not requesting actual damages, but only those set pursuant to the statutory formula, which the District Court noted easily could be calculated based on each class member's monthly rent. That Tenants did not all pay the same amount of rent is not an obstacle to this determination. Such individualized damage inquiries generally do not preclude class certification. See Mattson, ¶ 38 (citations omitted).
¶ 30 The District Court also rejected Riverstone's and Owners' argument that Tenants' Security Deposit Act claims rendered the class inappropriate. The court reasoned that, although enforcement of the security deposits provisions determines whether a landlord has violated the Act, Tenants' filings in this case concerned only the inclusion of allegedly unlawful provisions in the leases, not specific wrongful deductions from security deposits. Riverstone argues that Tenants impermissibly attempted to bootstrap their Security Deposit Act claims into the rental agreement prohibitions of the Landlord–Tenant Act. Riverstone faults the District Court for failing to analyze whether the mere inclusion of provisions in a lease that could authorize deductions in violation of the Security Deposit Act is a violation of the Landlord–Tenant Act. The Tenants' First Amended Complaint seeks a declaratory ruling that leases with the allegedly prohibited provisions are unenforceable. Whether a lease may violate the Security Deposit Act without an attempt to enforce an allegedly prohibited provision is an issue of law at the heart of the Tenants' complaint. Likewise, the issue whether the inclusion of certain security deposit provisions in violation of the Security Deposit Act violates the Landlord–Tenant Act is an issue of law that can be decided by a court at one time for all class members. Accordingly, the District Court correctly concluded that it was inappropriate to rule on those issues at the certification stage.
¶ 31 Additionally, the fact that not all class members have Security Deposit Act claims does not preclude class certification. As with provisions that allegedly violate the Landlord–Tenant Act, certain leases contained certain of the allegedly prohibited provisions while others did not, but the slight differences between leases do not preclude commonality on the issue whether the provisions violate Montana law.
¶ 32 Finally, Owners contend that the District Court's use of an “and/or” clause in its definition—“All persons who had apartment rental agreements ․ contain[ing] illegal rental provisions in violation of the [Landlord–Tenant Act] and/or the [Security Deposit Act]”—renders the class “so amorphous and diverse, it cannot be reasonably clear that the proposed class members have all suffered a constitutional or statutory violation.” (quoting Adashunas v. Negley, 626 F.2d 600, 604 (7th Cir.1980)). Owners assert that this ambiguity necessitates an impermissible determination on the merits. We disagree. The District Court's class definition clearly encompasses persons who had a lease through Riverstone that contained at least one provision in violation of Montana statutory law. The court's use of “and/or” under these circumstances does not invalidate its certification of a class because, although some leases allegedly violate the Landlord–Tenant Act, some allegedly violate the Security Deposit Act, and some allegedly violate both Acts, an individual lease need contain only one of the challenged provisions in order to fall under the class definition. Although there may be dissimilarities as to which of the seven allegedly prohibited provisions each lease contains, Riverstone's use of a form letter to all tenants acknowledges that the provisions easily are identified in Riverstone's standard form leases. As in Chipman, the common issue—whether Riverstone leases contained provisions in violation of Montana law—connects all members in relation to the ultimate resolution of the dispute.
¶ 33 The proposed class satisfies Rule 23(a)(2)'s commonality requirement under the more stringent Wal–Mart standard. All class members are connected by the existence of allegedly prohibited provisions in their leases with Owners through Riverstone. The District Court, after conducting a thorough analysis of the facts and circumstances of this case, did not abuse its discretion in determining that Tenants' proposed class met Rule 23(a)(2)'s commonality requirement.
¶ 34 Mullan argues that the District Court erred in certifying a class against it when there was no relationship between Mullan and any of the named plaintiffs. Under M.R. Civ. P. 23(a)(3), “the claims or defenses of the representative parties [must be] typical of the claims or defenses of the class.” Typicality, which “tends to merge” with commonality, Sangwin ¶ 21 (citation omitted), is “designed to ensure that the named representatives' interests are aligned with the class's interests, the rationale being that a named plaintiff who vigorously pursues his or her own interests will necessarily advance the interests of the class.” Diaz v. Blue Cross & Blue Shield, 2011 MT 322, ¶ 35, 363 Mont. 151, 267 P.3d 756 (citations and quotation marks omitted). Typicality is not a demanding standard: it is met if a named plaintiff's claim “stems from the same event, practice, or course of conduct that forms the basis of the class claims and is based upon the same legal or remedial theory.” Sangwin, ¶ 21 (quoting Diaz, ¶ 35) (emphasis removed and internal quotation marks omitted). “The event, practice, or course of conduct need not be identical.” Sangwin, ¶ 21 (citing Diaz, ¶ 35).
¶ 35 Generally, typicality “prevents plaintiffs from bringing a class action against defendants with whom they have not had any dealings.” Sangwin, ¶ 21 (citation omitted). However, an exception to this general rule occurs in “instances in which all defendants are juridically related in a manner that suggests a single resolution of the dispute will be expeditious.” Murer v. Mont. State Comp. Mut. Ins. Fund, 257 Mont. 434, 438–39, 849 P.2d 1036, 1039 (1993) (citing LaMar v. H & B Novelty and Loan Co., 489 F.2d 461, 465 (9th Cir.1973)). In Chipman, we noted that courts have applied this “juridical link doctrine” to “circumstances in which ‘all the defendants took part in a similar scheme that was sustained either by a contract or conspiracy, or was mandated by a uniform state rule,’ such that it was ‘appropriate to join as defendants even parties with whom the named class representative did not have direct contact.” ‘ Chipman, ¶ 40 (quoting Payton v. Cnty. of Kane, 308 F.3d 673, 679 (7th Cir.2002) (emphasis in original)) (citing Moore v. Comfed Sav. Bank, 908 F.2d 834, 838–39 (11th Cir.1990); Fallick v. Nationwide Mnt. Ins. Co., 162 F.3d 410, 423–24 (6th Cir.1998)). We further noted that “many courts have applied the juridical link doctrine to allow a plaintiff to join additional defendants with identical obligations under a contract.” Chipman, ¶ 40 (citing Weld v. Glaxo Wellcome, Inc., 434 Mass. 81, 746 N.E.2d 522, 530 (Mass.2001); In re Activision Sec. Litigation, 621 F.Supp. 415, 432 (N.D.Cal.1985)).
¶ 36 Considering sample leases from each apartment complex, the District Court determined that leases for apartments at Shiloh Glen and Mullan were substantially similar to leases for apartments at Wildflower and Creekside, so that class members who resided in those complexes would have the same claims as the named plaintiffs. The contractual relationship between Owners and Riverstone, and their use of common leases, thus constituted the juridical link between Owners and the named plaintiffs, whether or not the named plaintiffs resided in a particular owner's complex. Mullan contends that Tenants have not met the typicality requirement because prospective class members that resided in Mullan would have different claims or defenses requiring an individual factual analysis for each complex, especially given that Mullan was not in operation until 2012. Despite this contention, Riverstone and Owners have not shown why the common class question—whether certain lease provisions violated Montana law—would not be answerable on a class-wide basis. The named parties share this common question with current and former residents of Shiloh Glen and Mullan, even if the named parties never resided in those complexes. Mullan further contends that “each owner had a separate relationship with Riverstone” warranting an individual factual analysis. However, the District Court determined that Owners all used similar leases through Riverstone, and that Riverstone served as a property manager for all four apartment complexes; none of the Appellants have rebutted these determinations.
¶ 37 Moreover, in its July 30, 2014 order granting Tenants' motion to amend their first amended complaint, the District Court allowed Tenants to add former residents of Mullan and Shiloh Glen as named plaintiffs. The court concluded that Riverstone and Owners would suffer no prejudice because the addition was not necessary to its ruling on class certification. We have observed that “class action certification orders ‘are not frozen once made,” ‘ and that a district court has broad discretion to alter or amend such orders “based on the circumstances developing as the case unfolds.” Diaz v. State, 2013 MT 219, ¶ 28, 371 Mont. 214, 308 P.3d 38 (quoting Amgen Inc. v. Conn. Ret. Plans & Trust Funds, ––– U.S. ––––, ––––, 133 S.Ct. 1184, 1202 n. 9 (2013)). The addition of new class representatives ameliorated Mullan's concerns. Tenants' failure to include residents from all four complexes in their initial or first amended complaints does not defeat the propriety of class certification.
¶ 38 The District Court concluded that Owners' use of the Riverstone leases constituted an event, practice, or course of conduct that the class representatives share with the class. The District Court did not act unreasonably in making this determination; its findings of fact were not clearly erroneous, and its conclusions of law were correct. The District Court did not abuse its discretion in determining that Tenants satisfied Rule 23(a)(3)'s typicality requirement.
¶ 39 “Adequate representation requires that the named representatives' attorney is qualified, competent, and able to conduct the litigation, and that the named representatives' interests are not antagonistic to the class interests.” Sangwin, ¶ 27 (citing Chipman, ¶ 57). The parties do not dispute that Tenants' attorneys are qualified to bring this action. Rather, Riverstone contends that the named parties do not adequately represent the interests of the class, claiming that the named parties do not have Security Deposit Act claims because Riverstone has not yet deducted any amount from their security deposits. As discussed earlier, Tenants seek a ruling that certain provisions of the Riverstone leases violated the Security Deposit Act and are thus unenforceable. Because that remedy does not depend on a determination that a deduction from a security deposit has been made, Tenants' interests in resolving this issue are not antagonistic to the class interests. Tenants also claim entitlement to statutory damages due to the Defendants' “knowing inclusion” of prohibited lease provisions. Whether they are entitled to that remedy for their Security Deposit Act claims is an issue of law appropriate for resolution on a class-wide basis, even if the class representatives do not share identical provisions in their leases with all members of the class. The District Court did not abuse its discretion in determining that Tenants adequately can represent the class.
¶ 40 3. Whether the District Court abused its discretion by certifying the class under M.R. Civ. P. 23(b)(3).
The matters pertinent to the[se] findings include: (A) the class members' interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.
¶ 42 We have recognized that “class determination is appropriate when the class members' claims ‘depend on a common contention that is capable of classwide resolution.’ “ Sangwin, ¶ 37 (quoting Chipman, ¶ 48). In Sangwin, we held that the question the district court certified—whether the State breached health insurance contracts with plaintiffs by denying insurance claims—did not meet Rule 23(b)(3)'s predominance requirement. In reaching that decision, we noted that the plaintiffs conceded that determining whether an individual's claims were properly denied necessitated an individual assessment of each claim and its underlying documentation before the plaintiffs could establish liability. Sangwin, ¶ 36. Because common issues did not predominate over the individual circumstances giving rise to denial of individual insurance claims, the question certified was “incapable of being resolved on a classwide basis.” Sangwin, ¶ 37.
¶ 43 In this case, the District Court concluded that Tenants met the Rule 23(b)(3) predominance and superiority requirements. The court noted that the circumstances in Sangwin were different from the circumstances in this case because, here, the question is whether the lease agreements contained prohibited provisions, not whether the allegedly prohibited provisions were wrongfully enforced. The District Court thoroughly considered each pertinent issue listed in Rule 23(b)(3), finding that: (1) because each individual plaintiff's claim was small, it was “reasonable to expect that the individual plaintiffs would want to pool their resources in pursuing a claim;” (2) there was no pending or prior litigation on this issue by or against class members; (3) it was desirable to concentrate the litigation of the claims in one forum “to conserve judicial resources and avoid disparate results and potentially over 800 different lawsuits based on the same or similar leases and same legal theories;” and (4) it likely would not be difficult to manage the class action.
¶ 44 Riverstone and Owners assert that the District Court abused its discretion by certifying a class that does not meet the requirements of predominance or superiority. According to Riverstone, individual questions regarding damages and individual questions regarding separate defenses available to each defendant predominate over any common questions. Riverstone bases much of its argument that Tenants cannot meet the predominance requirement on its contention that Tenants' Security Deposit Act claims require individual analysis. We already have concluded that the Security Deposit Act claims do not require individual factual analysis. We apply the same reasoning to the predominance requirement. Tenants allege that the inclusion of certain provisions in the Riverstone leases itself violated the Security Deposit Act; they do not allege that Riverstone has enforced those provisions in violation of the Security Deposit Act. Therefore, Tenants' inclusion of prospective class members with Security Deposit Act claims does not preclude Tenants from meeting the predominance requirement.
¶ 45 Riverstone also contends that Tenants cannot meet the predominance requirement for Tenants' Landlord–Tenant Act claims because the Landlord–Tenant Act gives courts discretion to award damages on a case-by-case basis. See § 70–24–403(2), MCA (“If a party purposefully uses a rental agreement containing provisions known by the party to be prohibited, the other party may recover, in addition to ․ actual damages, an amount up to 3 months' periodic rent.” (emphasis added)). Individual damages calculations typically do not defeat a finding that common issues predominate. 2 William B. Rubenstein, Alba Conte & Herbert Newberg, Newberg on Class Actions § 4:54, 206–09 (5th ed.2011); see also Sangwin, ¶ 37; McDonald v. Washington, 261 Mont. 392, 403–04, 862 P.2d 1150, 1157 (1993) (holding that, although damages calculations required each member of a class individually to prove a quantity of gasoline purchased at supracompetitive prices and the prices paid, this did not preclude class determination because the common issues that determined liability predominated).
¶ 46 In Mattson, we determined that a class met the predominance requirement even when class members' individual damages calculations varied significantly due to the widely varying characteristics of the class members' damaged shoreline properties. Mattson, ¶¶ 40–41. We noted, “The only individual questions in this lawsuit relate to the amount of damages,” which “does not negate class certification as to liability.” Mattson, ¶ 41 (emphasis in original). As previously stated, Tenants allege that each class member's claim requires one common question to be answered: whether Montana law prohibited certain provisions in the Riverstone leases. This is a common question of law that can be decided by a district court at one time, avoiding hundreds of individual trials. Tenants demonstrated the ease of determining whether any individual class member's lease contains a prohibited provision through their spreadsheet consolidating the approximately 800 leases and identifying which of the allegedly prohibited provisions each lease contained. Tenants' claims for damages pursuant to a statutory formula-up to three months' rent—present a stronger case for predominance than did the Mattson class members' claims because the circumstances in Mattson required an in-depth individual analysis of the wide-ranging characteristics and value of each damaged shoreline property.
¶ 47 Mullan asserts that Tenants have not met predominance because, in order to be liable under the Landlord–Tenant Act, a party must “purposefully” use a rental agreement with prohibited provisions. Section 70–24–403(2), MCA. Mullan contends that the District Court did not consider the fact that each of the Owners may have an individual defense. Specifically, Mullan asserts that its liability hinges on individual factual analyses to determine whether a purported class member was an actual tenant of Mullan and whether his or her tenancy coincided with a period in which the lease agreement contained prohibited provisions. According to Mullan, these individual issues “clearly predominate” over the common question whether the Riverstone leases contained prohibited provisions. We disagree. As discussed above, Tenants' spreadsheet demonstrates a simple method of ascertaining the answers to both of these questions. Extensive individual inquiries analyzing time periods during which Tenants resided in a particular apartment complex and whether a particular lease contained a particular provision will not be necessary. Accordingly, the District Court's findings of fact were not clearly erroneous, its legal conclusions were correct, and it did not abuse its discretion in determining that a common question predominates over the individual questions in this case.
¶ 48 Riverstone and Owners contend that class adjudication is inferior to other available methods for fairly and efficiently adjudicating the controversy. The District Court rejected these arguments, concluding that the simplest way to determine whether provisions in the Riverstone leases violated Montana law would be to consider the seven provisions in one single trial, rather than holding over 800 individual trials. The District Court did not abuse its discretion in making this determination. Individual tenants likely could not afford to bring separate claims for what is an alleged illegality in a standard lease form widely used by Riverstone. By contrast, as the District Court noted, a class action would save the resources of the courts and parties by permitting a common question of whether Riverstone leases contained prohibited provisions to be litigated in an economical fashion.
¶ 49 We affirm the District Court's decision and order.
1. Vlahovich was dismissed, and Plaintiffs Matthew Hall and Michael Bartholic were added, in the Second Amended Complaint.
2. However, the District Court explained in its certification order that it would not consider the Sitte affidavit because “Sitte is an attorney and his affidavit essentially provides his interpretation of the Landlord Tenant Act and legislative intent.” This ruling is not challenged on appeal.
3. Moreover, a review of Tenants' spreadsheet indicates that the majority of Riverstone leases contained several of the allegedly prohibited lease provisions.
We concur: JAMES JEREMIAH SHEA, PATRICIA COTTER, MICHAEL E. WHEAT and JIM RICE.


Can You Be Evicted from Residential Care Facility in California?
Can A Person Be Evicted From A Residential Care Facility?
If you or your loved one is currently being threatened with being evicted from a residential care facility or have recently been removed from one, contact my office for a free and confidential case evaluation.
The facility must strictly follow the law and if they don’t, the resident may be able to sue the facility for damages. A residential care facility is a highly regulated business and evicting a resident from a residential care facility is a complex legal procedure.
California has specific laws to protect residents in residential care facilities from being wrongfully evicted from their facility. See, Health and Safety Code § 1569.54(a)(2); 22 Cal Code Regs § 87701.3 – (steps to protect resident who must be relocated from transfer trauma).
To protect elderly persons, California law that must be complied with to lawfully transfer or evict a resident. Health and Safety Code § 1569.269(a)(22).
If the facility changes its purpose and no longer accommodates people like the resident.
If the resident is engaged in behavior that is a threat to the physical and/or mental health and safety of themselves or others. 22 Cal. Code of Regulations § 87224(b).
But even if good cause exists to evict the resident, the facility must follow strict legal procedures, or the resident will be allowed to stay and may sue the facility for any harm they suffered.
Eviction procedures are complex, and California has extensive regulations that govern eviction procedures in residential care facilities.
First, the facility must establish that they have a lawful reason for evicting the resident.
Second, the facility must follow the proper eviction procedures. Those procedures start with providing the resident an eviction notice.
Depending on the reason for the eviction, the facility may provide, 3-days, 30-days or 60-days’ notice.
Evicting a person from a residential care facility on 3 days’ notice is even more complicated. If you, a loved one or a friend has received a 3-day notice at their facility, contact me for a free consultation.
There are many rules and procedures that must be followed. If any rule or eviction procedure is overlooked, then the resident may have significant recourse against the facility.
A 3-day eviction notice may only be used if (1) the resident must have engaged in behavior that threatens the safety of themselves or others; and (2) the facility has first obtained written permission from the Department of Social Services. 22 Cal. Code of Regulations § 87224(b).
The facility has the burden of providing evidence that supports evicting the resident on 3-days’ notice.
To evict a resident for (any reason listed in 22 Cal. Code of Regulations § 87224(a)) the residential care facility must give the resident 30 days written notice. See, 22 Cal. Code of Regulations § 87224(a).
If the resident has lived at the facility more than 1 year, the facility must give 60 days’ written notice. California Civil Code §§ 1946.1(b)(c).
All evictions notices provided to residents in residential care facilities MUST be in writing. If the notice is not in writing, then the facility may not lawfully evict the resident.
The notice must contain all the following. If it doesn’t, then the notice is not legally valid. If you have been served with an eviction notice, contact my office for a free review and consultation. Health and Safety Code §1569.683; 22 Cal. Code of Regulations § 87224.
All necessary information regarding the residents right to file a complaint with the department of social services regarding the eviction AND information about how to contact the state ombudsman.
Any eviction notice served on a resident of a residential care facility that does not contain any of this information is invalid.
The eviction notice must also be properly served on both the resident and the resident’s responsible person. That means personally serving the notice on the resident and mailing a copy to the resident’s responsible person.
A responsible person means a person that has authority to act for the resident.
Typically, the responsible person is a guardian, conservator, the residents authorized agent (power of attorney or health care directive), their spouse, domestic partner, family member or person chosen by the resident to act in the capacity of a responsible person.
In cases, where the facility has served a 3-day notice they are also required to provide a copy to the Department of Social Services.
If you or a loved one are being evicted from a residential care facility, contact my office for a free case evaluation. I can review the notice and give you advice regarding your options.
Further, facilities may not use the eviction process to retaliate or otherwise discriminate against residents.
Residents at residential care facilities are also afforded all protections under state landlord-tenant law. That includes the Federal Fair Housing Act, the California Fair Employment and Housing Act and the American’s with Disabilities Act, (ADA).
A resident at a residential care facility has the same rights as an ordinary tenant living in an apartment. They may sue their landlord for violations of those rights. That may include, wrongful eviction, retaliation, and engaging in unfair and deceptive business practices.
In addition, the resident facing an eviction at a residential care facility may also be protected by the American with Disabilities Act. Here’s a list of some of the options that could be available to you.
One of the first tools available to a resident and their attorney is filing a complaint with the Department of Social Services and requesting an investigation of the facility.
This investigation may turn up violations of the resident’s rights that immediately halt the facilities efforts to remove them.
Second, a resident may also hire an attorney and challenge the eviction in court. In some cases, an attorney can find violations that will prevent the facility from completing the eviction.
In other cases, an attorney can identify violations that allow the resident to sue the facility for their failure to follow the law in starting an eviction.
A good lawyer can be a great resource for a resident facing an eviction. I strongly urge you to contact my office if you are in the situation.
Some of the violations an attorney may find could give rise to a separate lawsuit for several violations of the law. In many cases, the violations are clear and can be easily proven.
Here is a list of some potential causes of action that may arise when a residential care facility doesn’t follow the law evicting a resident.
If a residential care facility forcibly tries to remove a resident without following the legal procedures required to evict them, that could give rise to an action for wrongful eviction.
Such an action may include allegations that the facility violated California Civil Code § 1160 (if refuses to readmit patient after a short stay at the hospital and his or her medical condition is still appropriate for an RCFE).
It may also include an allegation of forcible entry and detainer under California Civil Code §1159 (if the facility enters the resident’s room and attempts to forcibly remove the resident by (“force, threats or menacing conduct”).
If the facility locks the resident out or removes their possessions from the facility, then it may include allegations of violations of Civil Code § 739. That code section comes with significant remedies for a tenant. They include any actual damages sustained by the resident, $100.00 for each day the landlord remains in violation of the statute, attorney’s fees for the resident’s lawyer, injunctive relief to prevent the continued violation.
It is illegal to retaliate against or attempt to evict a resident for an unlawful purpose. California Civil Code § 1942.5 et seq.
Makes any complaint with the Department of Social Services or another agency about the tenantability of the residence.
Further, it is unlawful retaliation for a residential care facility to evict a resident for organizing other residents or exercising their other rights under the law.
And of course, it is always illegal to retaliate against a resident for exercising any right granted to them under the Federal or California Fair Housing Act.
That includes a resident complaining about violations of fair housing laws at the facility or cooperating or assisting law enforcement in their investigation or efforts to investigate fair housing violations.
In addition to wrongful eviction, a facility that physically removes an elder from the facility or locks them out may also be sued for elder abuse.
California has extensive laws that protect people over the age of 65 from certain types of physical and financial harm. See, California Welfare and Institutions Code §§ 15600 – 15675.
(a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.
(b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. California Welfare and Institutions Code § 15610.07.
If the resident proves the actions of the facility in attempting to evict them rise to the level of elder abuse, the resident may be awarded additional damages. These include attorney’s fees and potentially punitive damages.
If you or a loved one are being evicted from a residential care facility, contact my office for a free case evaluation.
© Scott Fikes. All Rights Reserved.


text:
Kenneth M. Katz is counsel in the firm’s New York office where he handles complex litigation and investigations with a focus on accounting and financial matters.
Ken has substantial experience representing accounting firms, financial institutions, and professionals. Ken has represented clients in regulatory investigations by the U.S. Securities and Exchange Commission (SEC), the Public Company Accounting Oversight Board (PCAOB), the U.S. Commodity Futures Trading Commission (CFTC), and the CME Group. Ken also assists clients in their internal investigations, including investigations of the clients’ compliance with SEC and CFTC regulations, anti-money laundering laws, and trading regulations.
Ken has been involved in high-profile and cross-border disputes. Ken represented the trustee in the liquidation of Lehman Brothers Inc., where he defended the trustee’s determination of the largest customer claim in SIPA’s history and assisted the trustee in curing the former broker-dealer’s failure to comply with customer protection rules. Ken also represented certain European entities of Nortel Networks in a trial conducted simultaneously in the U.S. and Canada to determine the allocation of billions of dollars of proceeds from the sale of the former enterprise’s assets.
Ken also represents clients in a broad range of civil matters including actions alleging violations of securities laws, fraud, malpractice, negligence, and breach-of-contract.
Representations of Big 4 accounting firms and individual auditors in SEC and PCAOB investigations and enforcement proceedings regarding the auditors’ compliance with generally accepted auditing standards (GAAS) and generally accepted accounting principles (GAAP).
Representation of bank in CFTC and CME Group investigations regarding compliance with trading rules.
Internal investigation of bank’s compliance with anti-money laundering rules.
Impax Laboratories, Inc. v. Turing Pharmaceuticals AG, 16 Civ. 3241 (S.D.N.Y. Nov. 16, 2016) (dismissing unjust enrichment claim).
Bain Capital Partners, LLC v. Ernst & Young Global Limited, No. 14-1765-BLS1 (Mass. Super. Ct.) (representation of Big 4 network coordinating entity in civil fraud action).
Certain Funds, Accounts And/Or Investment Vehicles v. KPMG, L.L.P., 798 F.3d 113 (2d Cir. 2015) (affirming dismissal of discovery petition in aid of foreign proceedings against Big 4 coordinating entity).
Longview Power, LLC v. First American Title Insurance Co., Adv. Proc. No. 14-50369 (Bankr. D. Del.) (representation of MUFG Union Bank, N.A., as collateral agent for lenders of Longview Power, in insurance coverage action).
In re Nortel Networks Inc., No. 09-10138 (Bankr. D. Del.) (representation of Joint Administrators of Nortel Networks U.K. Limited and certain of its affiliates in dispute over the allocation of more than $7 billion of sales proceeds among Nortel estates).
In re Lehman Brothers Inc., No. 08-01420 (Bankr. S.D.N.Y.) (representation of the trustee for the SIPA liquidation of an SEC-regulated broker-dealer).
Investigated broker-dealer’s compliance with SEC-administered customer protection rules and successfully moved to cure compliance failures.
Defended trustee’s determination of the largest customer claim in SIPA’s history.
Oaktree Capital Mgmt., L.P. v. KPMG, 2:12-CV-956 JCM (GWF), 2013 WL 4006437 (D. Nev. Aug. 5, 2013) (dismissing securities action brought by ShengdaTech noteholders against third party auditors and underwriter); ShengdaTech Liquidating Trust v. Hansen, Barnett & Maxwell, P.C., No. 3:13-cv-00563 (D. Nev.) (respondeat superior claim against international coordinating entity of network of professional firms).
Ross v. Lloyds Banking Grp., PLC, Nos. 12-4600-cv(L), 13-729-cv(Con), 2013 WL 5273067 (2d Cir. Sept. 19, 2013) (affirming dismissal of securities claim).
Tradex Global Master Fund Ltd. v. Blue Point Mgmt. LTD., No. 27-CV-18648 (Minn. Dist. Ct. Mar. 7, 2011) (dismissing class action claims against foreign audit firm under doctrine of forum non conveniens); In re Arrowhead Capital Mgmt. LLC Class Litig., 712 F. Supp. 2d 924 (D. Minn. 2010) (dismissing class action claims against foreign audit firm for lack of federal subject matter jurisdiction).
Kingsway Financial Services, Inc. v. PricewaterhouseCoopers LLP, No. 03 Civ. 5560 (S.D.N.Y.) (securities fraud claims concerning acquisition of a property and casualty insurer).
Weiss v. Twardy, No. 08-0035, 330 Fed. Appx. 230 (2d Cir. May 22, 2009) (affirming dismissal of securities action against Big 4 accounting firm), aff’g In re: Priceline.com, Inc. Sec. Litig.,342 F. Supp. 2d 33 (D. Conn. 2004).
Bullmore v. Ernst & Young Cayman Islands, No. 0104314/2005, 2006 WL 4682212 (N.Y. Sup. April 12, 2006) (dismissal of state law claims against the U.S. firm of the Ernst & Young network), aff’d, 45 A.D.3d 461 (1st Dep’t 2007).
Pro bono representations in immigration, housing, contract, and civil rights matters.

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There is no dispute as to the times when Sasha and Andrews were in the United States and when they were in Argentina. Sasha was born in New York City on June 16, 1993. (Def. Exh. #17) For a few weeks in April, 1994, Sasha and Andrews were in Argentina. From April to November, 1994, they were in New York City. From November, 1994 until May, 1995, they were in Argentina. From May, 1995 to November, 1995, they were in Waltham, Massachusetts residing at Andrews' mother' home. From November, 1995 to June, 1996, they were in Argentina. They left Argentina and arrived in New York on June 14, 1996. From June, 1996 until the present, Sasha has lived in Massachusetts with Andrews, first at his grandmother's home in Waltham and later at an apartment Andrews rented in Watertown. He has not returned to Argentina.
It is also not disputed that Andrews and Sasha went to Argentina in November, 1994 so that they could reside with Zuker while he worked on a planned Compact Disc ("CD") (Exh. #8) and that Zuker worked on the production and marketing of the CD in Argentina at least through June, 1996 when Andrews and Sasha returned to the United States. Zuker alleges that Andrews wrongfully retained the child in the United States in June 1997, a year after she and Sasha returned to the United States. (Exh. 3, p. 2) The Court's task is to decide what was the "habitual residence" of the child at the time when the alleged wrongful retention is said to have occurred. This task actually breaks down into resolving subsidiary issues.
The Court is not bound to accept Zuker's allegation that the wrongful retention occurred in June, 1997. The date of the retention is important because Article 12 of the Convention provides that if the Court finds that Sasha has been wrongfully retained and the filing of the petition in this Court ("the judicial authority of the Contracting State") occurred more than a year after the wrongful retention, the Court cannot order a return of the child if" . . . the child is now settled in its [sic] new environment." Since the petition was filed on September 4, 1997, if the wrongful retention was more than a year prior to that date, the question of whether Sasha is now settled in his new environment would have to be resolved.
Thus, the question with respect to "habitual resident" is tied to that period of time "immediately before" the retention. The date of retention pinpoints the period of time at which the "habitual residence" of the child is to be determined.
In order to be entitled to the requested relief, Zuker must show that respondent Andrews is wrongfully retaining their son Sasha from the place of Sasha's "habitual residence." Wanninger v. Wanninger, 850 F.Supp. 78, 80 (D. Mass., 1994). Zuker argues that Argentina is Sasha's habitual residence.
The term "habitual residence" is not defined under the Convention. Instead, a child's "habitual residence" is to be determined by examining the specific facts and circumstances at hand. Meredith v. Meredith, 759 F.Supp. 1432, 1434 (D.Ariz., 1991). Courts should not interpret the term technically or restrictively. Rydder v. Rydder, 49 F.3d 369, 373 (8 Cir., 1995).
[T]here must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. That is not to say that the propositus intends to stay where he is indefinitely. Indeed his purpose while settled may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode, and there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.
[A] child's habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a "degree of settled purpose" from the child's perspective . . ..
[A] determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child's circumstances in that place and the parent, shared intentions regarding their child's presence there.
Feder, 63 F.3d at 224.
Cases similar to the one at bar illustrate further the requirement that there be a "settled purpose." For instance, in Slagenweit, the parents had agreed that the child would travel from Germany, where she lived with her mother, to live with her father indefinitely in Iowa. The parties agreed the child would live with her father while her mother prepared to return to school, and that while in Iowa the child would be able to obtain needed medical attention superior to that which had been available to her in Germany. Eight months later, the child's mother demanded her return, and the father refused. Slagenweit, 841 F.Supp. 266.
The court found that the child was not being wrongfully retained in Iowa. While the parties agreed the child's habitual residence initially had been in Germany, it had changed to Iowa as "a result of a change in geography and a passage in time." Id. at 269. Over that period of eight months (which the court characterized as "a substantial passage of time," Slagenweit, 841 F.Supp. at 269, the court concluded the child had become a residence of Iowa through her involvement with her father and his girlfriend and through the medical community responsible for her treatment. The court deemed it significant that the parents initially had agreed that the child would live in Iowa for an indefinite period of time, and by the time the mother objected to the child's continued presence there, she was well-established in her new home in Iowa. Id.
In Levesque, a German citizen attempted to reconcile with her estranged husband by moving with their child to the United States, where he (the child's father) had been transferred from his army post in Germany. They lived in Kansas for nearly a year, after which time she returned to Germany with their child to visit her family. She returned to Kansas five weeks later, only to go back to Germany with the child almost immediately. He (the child's father) agreed that she could return with the child to Germany, but he believed they would be gone only for a short time. Problems had developed in the marriage again, and shortly after the mother and child returned to Germany, it became apparent that she planned to remain in Germany with the child. Approximately three weeks later, the child's father flew to Germany, took the child without the mother's consent, and returned with the child to the United States. Levesque, 816 F.Supp. at 663.
The court ordered that the child be returned to Germany. Even though the child had lived with both parents in Kansas for nearly a year, the court concluded that the child's habitual residence switched to Germany after the couple agreed that the mother would return there with the child for an indefinite period of time. Id. at 666. This arrangement "amounted to a purpose with a sufficient degree of continuity to enable it properly to be described as settled." Id. (quoting Bates).
In Falls, a German woman agreed that her child and the child's father would move from the family's residence in Germany to the United States for an indefinite period of time. The couple was experiencing financial difficulty, so they intended that he and the child would live with his parents in Massachusetts and look for work. The couple's relationship deteriorated during the separation, and eight months later, she sought her child's return to Germany. Falls, 871 F.Supp. at 100-01. The court held that during those eight months, the child had become sufficiently settled in Massachusetts so that it had become the child's habitual residence. Id. at 102.
An additional factor which seemed important to the Falls court was the child's young age; he was twenty-one months old when his mother sought his return to Germany, after a stay in this country of eight months. The court remarked, "He [the child] had become completely accustomed to life in this country with his father and grandparents; he barely knew his mother." Falls, 871 F.Supp. at 102. Indeed, at least one other court has noted that a short period of time can be quite significant in the life of a young child. In Feder, the child's habitual residence was found to be Australia, even though he had lived there only six months. "Evan moved, with his mother and father, from Pennsylvania to Australia . . . and stayed in Australia for close to six months, a significant period of time for a four-year old child." Feder, 63 F.3d at 224 (emphasis added). This approach is consistent with the directive in Feder that the court must look to the child's circumstances, and to whether the child has become acclimated to the new locale, in determining the habitual residence, rather than to the parents' future intentions for the child. Id.
While I credit Andrews' testimony that she never intended that she and Sasha would live in Argentina forever and that when she moved to Argentina in November, 1994, she intended to come back to the United States when Zuker's work in Argentina was finished, that does not establish that Sasha's habitual residence was not in Argentina during the months-long periods he and Andrews lived there. Thus, I find that in June, 1996, after seven months in Argentina, Argentina was Sasha's habitual residence even though Andrews wanted desperately to return to the United States with him months before the actual return.
The court must first determine when the alleged wrongful retention began. As indicated, supra, Zuker contends that the wrongful retention commenced in July, 1997. In Slagenweit, the court held that the wrongful retention began when "the noncustodial parent . . . clearly communicate[d] [the] desire to regain custody and assert[ed] [the] parental right to have [the child] live with [him or] her." Slagenweit, 841 F.Supp. at 270. In that case, the court determined that this occurred when the noncustodial parent first asked that the child be returned to her in Germany and the custodial parent refused.7 And in Falls, the court likewise stated that the retention became wrongful, if at all, when the child's mother asked that the child be returned to her in Germany and the father refused. Falls, 871 F.Supp. at 102.
I find that Zuker first asked that Andrews and Sasha return to live with him in Argentina in or about July, 1996, a month after Andrews and Sasha left Argentina. (Exh. 1) It is more difficult to determine when it was that Andrews refused to return to Argentina because she has admitted lying to Zuker, albeit allegedly under duress, as to her intentions.8 She also admitted to giving mixed messages as to her intentions when she was in the United States in 1995. (Tr. 113).
There is also another dimension to the problem. On the record before me, although it is undoubtedly true that after her return to the United States in June, 1996, she told Zuker that she did not want to return to Argentina, it was not until July of 1997 that she told him that she and Sasha would not live with him in the United States and that she did not "want anything to do with him." (Tr. 75) Evidently, it had been a shared intention for a long period of time that when Zuker finished his work in Argentina, the couple would live together in the United States, perhaps in California. (Tr. 74, 110-111, 126, 131) While I credit Andrews' testimony that by February, 1997 when she learned that Zuker had been unfaithful to her, she resolved not to live with him again, there is nothing in the record to indicate that she informed Zuker of this until July, 1997. While this was due to the fact that she wanted to be able to retrieve the property she had left in Argentina and to collect the money which Zuker owed her, it nonetheless left Zuker in the dark as to her true intentions.
However, the petition alleges that Andrews wrongfully retained Sasha in the United States away from his habitual place of residence which Zuker alleges was Argentina. The retention occurred when Zuker knew that Andrews was not going to return Sasha to Argentina. Until he knew that Andrews would not return, it would be unfair to require Zuker to file a petition based on alleged wrongful retention.
After a month or so [after Andrews and Sasha went to the United States in June, 1996] I requested their return to Argentina to which Patricia answered that the summer was nice in [sic] USA and in Argentina was winter. She continued extending their visit with excuses like "I have some patients I'm treating", etc. During that time she requested some items which I sent, and some money, which I wired, always thinking it would help their promp [sic] return to Argentina.
To compose, produce, record and publish a CD is a very complex attainment with many people involved so I was busy and time was flying for me to realize what was going on. Suddenly a few months ago she moved out her [sic] mother's place and rented her own. For a while I didn't know where they were since although she was calling, she wouldn't give me her new address.
Accordingly, I find that applying the law to the facts of this case, that Andrews' retention of Sasha occurred in or about February, 1997 when she moved into her own apartment in Watertown, Massachusetts because, based on all that occurred up until that point, it was by that act that Andrews communicated to Zuker that she was not going back to Argentina.
I further find that Zuker knew that Andrews had moved into her own apartment shortly after it happened. (Tr. 101) He asked his friend, Maxie, to help Andrews move. (Tr. 102) On May 7, 1997, he gave. Andrews a document authorizing her to sell the New York City apartment and referred to Andrews' Watertown address in the body of the document. (Exh. 14) In sum, the retention of Sasha from what was his habitual residence in June, 1996 did not occur until February, 1997.
Accordingly, I rule that in February, 1997, Sasha's habitual residence was in Massachusetts.
As I indicated, I find that as of June, 1996, Argentina was Sasha's habitual residence. If I am incorrect and that the retention occurred in July, 1996 when Zuker asked Andrews to return Sasha to his habitual residence in Argentina, Zuker's petition was not filed until over a year later, i.e., in September, 1997. The issue becomes whether the requested return of Sasha to Argentina should be denied because at the time the petition was filed, i.e., September, 1997, Sasha had become "settled" in his new environment in Massachusetts.
When the petition is filed more than a year after the retention, the respondent must show "evidence that the child[ ] [is] in fact settled in or connected to the new environment so that, at least inferentially, return would be disruptive with likely harmful effects . . .. [T]here must be ‘substantial evidence of the child's significant connections.'" In re Robinson, 983 F.Supp. 1339, 1345 (D. Colo. 1997) (quoting Public Notice 957, 51 Fed.Reg. at 10,509).
In Robinson, the court found the children had become sufficiently settled in their new environment, since they enjoyed active involvement with the respondent's extended family, were enrolled in school and doing well, were active in extracurricular activities, and had established friendships. Id. at 1346. In In re Wojcik, 959 F.Supp. 413 (E.D.Mich. 1997), the court likewise found the children were settled in their new environment because they had been attending school or day care consistently; they had friends and relatives in the area; and they attended church regularly with their mother. Id. at 421. In contrast, the court noted that the uncontroverted evidence demonstrated the father's family in France was "indifferent to the children at best." Id.
The court in In re Petition for Writ of Habeas Corpus for Coffield, 644 N.E.2d 662 (Ohio Ct.App. 1994), held that the child in question there had not become settled in his new environment at the time the petition for his return had been filed. But the child's father apparently had been trying to conceal their whereabouts, and so over a period of three years he had exposed the child only to a limited group of friends and relatives, "i.e., people whom [the father] could trust." The child was not enrolled in school or other activities and had not made friends in the community at large. Thus, the court held the boy was not settled in his new environment, so the Article 12 defense did not apply. In re Petition for Writ of Habeas Corpus for Coffield, 644 N.E.2d at 666.
Both the Wojcik and Robinson courts relied in part on the fact that the children at issue in those cases were "old enough to allow meaningful connections to the new environment to evolve." Robinson, 983 F.Supp. 1345. Both courts contrasted David S. v. Zamira S., 151 Misc.2d 630, 574 N.Y.S.2d 429 (1991), in which the court held that children who were 3 and 112 years old were "not yet involved in school, extracurricular, community, religious or social activities which children of an older age would be," and so were not settled in their new environment. Id. at 636, 574 N.Y.S.2d at 433. In contrast, the children in Wojcik were 8 and 5 years old at the time of the hearing, Wojcik, 959 F.Supp. at 421; the children in Robinson were approximately 10 and 6 years of age. Robinson, 983 F.Supp. at 1341.
In sum, I rule that as of June, 1996, Sasha's habitual residence was Argentina. I rule that it was in February, 1997 that Andrews communicated by both word and deed that she would not return to Argentina with Sasha as Zuker had requested in July, 1996. Thus, any wrongful retention occurred in February, 1997. However, I further find that in February, 1997, Sasha's habitual residence was in Massachusetts and it remained so. Thus, Andrews' retention of Sasha was not "wrongful" because she was not retaining him from what was then his habitual place of residence. Alternatively, if the date of Andrews' retention was July, 1996, I rule that when the Zuker's petition was filed over a year later on September 4, 1997, Sasha was settled in his new environment.
Accordingly, it is ORDERED that Zuker's Petition for return of Sasha to Argentina be, and the same hereby is, DISMISSED as without merit and judgment to that effect shall enter forthwith.
1 Zuker is also a permanent resident alien of the United States.
2 Zuker and Andrews never married.
3 Prior to the evidentiary hearing, the parties consented to have the case reassigned to the undersigned United States magistrate judge for all purposes, including trial and entry of judgment, pursuant to 28 U.S.C. �636(c).
4 There is no dispute in this case that at whatever time the retention, wrongful or otherwise, took place, Zuker had rights of custody and was actually exercising those rights or would have been exercising them but for the retention. See Tr. 160.
6 This fact distinguishes this case from the case of Levesque v. Levesque, 816 F.Supp. 662, discussed, supra, at pp. 7-8. In that case, the parents had agreed that the child would return to Germany with the mother for an indefinite period of time. I find that in the instant case, there was no agreement between the parents that Sasha would return to the United States with Andrews for an indefinite period of time in the sense that the period would be lengthy. It is true that there was no agreement on a "definite" period of time during which Andrews and Sasha would remain in the United States in the sense of agreement on a particular span of days or months. But Zuker expected that the time would be short and Andrews expected that Sasha would never return to Argentina to reside. Put another way, I do not find that Zuker agreed in June, 1996 that Andrews' and Sasha's visit to the United States would be more than a few weeks to a month.
7 In Schroeder v. Vigil-Escalera Perez, 76 Ohio Misc.2d 25, 664 N.E.2d 627 (1995), the court cited Slagenweit with approval in a case involving similar facts. The court in that case held that any wrongful retention did not begin until the parties actually "began a battle over custody of the child." Id. at 33-34, 664 N.E.2d at 632 (citing Slagenweit).
8 When she and Sasha left Argentina in June, 1996, she told him that she'd come back for a visit when they had enough money and also told him that they would be back in two weeks. (Tr. 134).
9 The case of David S., 151 Misc.2d 630, 574 N.Y.S.2d 429, is not to the contrary. The holding of that case was based on a lack of evidence submitted that the children had become settled in their new environment. There was no evidence that the children had "formed meaningful relationships" or that they attended "nursery school." Id., 151 Misc.2d at 636, 574 N.Y.S.2d at 433.

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MassVOTE provides an in-depth Timeline of voting rights history in America in honor of Black History Month.
Credit to http://www.massvote.org/ via their newsletter.
As you know, February is Black History Month. Here at MassVOTE, we have taken these past few weeks as a period of reflection on the ever-changing nature of enfranchisement in America. Throughout our brief history of just a few centuries, the central conflict in this country has been between those that envision a government determined by and working for all of its people, and those who dream of a country that guarantees the rights of a select few at the expense of all others. We wanted to take this opportunity to elaborate on that history, so we made this timeline of the legal history of voting rights in America. Voting is central to the equality of all Americans, and we believe this timeline not only demonstrates that, but also how critical African American history, in addition to the histories of people of color and women, are to American history as a whole.
1776: Although the Declaration of Independence has just been signed and the United States’ independent status has not yet been recognized by many countries, the right to vote begins in America as a legal privilege almost exclusively available to white, property-owning, Protestant men.
1788: With the ratification of the Constitution, all slaves are counted as 3/5’s of a single person on the national census.
1790: The Naturalization Act bars all persons of Asian descent from becoming naturalized. Only “free white” immigrants are recognized as eligible for naturalization.
1792: New Hampshire becomes the first state to eliminate its property requirements, thereby extending the right to vote to almost all white men.
1807: Women lose the right to vote in every state in the US for the next 113 years.
1828: Maryland becomes the last state to remove religious restrictions when it passes legislation enfranchising Jews. White men can no longer be denied the right to vote on the basis of their religion.
1848: The Treaty of Guadalupe-Hidalgo renders the lands now known as Arizona, California, New Mexico, Texas, and Nevada US territory. All Mexican persons within these territories are declared US citizens, but simultaneously denied the right to vote by English proficiency, literacy, and property requirements along with violence, intimidation, and racist nativism.
1856: North Carolina becomes the last state to eliminate its pr operty requirements. The right to vote is extended to all white men in America.
1857: In the landmark case Dred Scott v. Sandford, the US Supreme Court rules that “a black man has no rights a white man is bound to respect.” African Americans are further deprived of the right to citizenship and, by extension, the right to vote.
1866: The first Civil Rights Act grants citizenship, but not the right to vote, to all persons born in the USA.
1882: Congress passes the Chinese Exclusion Act, which establishes restrictions and quotas on Chinese immigration while legally excluding Chinese persons from citizenship andvoting.
1889-1890: Poll taxes and literacy tests specifically designed to reduce African American voting power are introduced in Southern states for the first time.
1890: The Indian Naturalization Act allows Native Americans to acquire citizenship.
1896: Louisiana is the first state to implement a grandfather clause in its election policy. No male citizen whose grandparent was deprived of the right to vote may exercise that right himself.
1915: The US Supreme Court finds Oklahoma’s grandfather clause unconstitutional in Guinn v. United States.
1919-20: The Nineteenth Amendment is adopted by Congress and ratified by the states into law. The right to vote is now guaranteed to all citizens regardless of gender.
1922: The US Supreme Court rules that persons of Japanese origin are insufficiently white to qualify for citizenship in Takao Ozawa v. United States.
1923: The US Supreme Court declares persons of Indian descent, even “high caste Hindus”, as ineligible for citizenship because they cannot be legally recognized as "white" persons.
1924: The Indian Citizenship Act of 1924 declares all non-citizen Native Americans born in the USA to be citizens with the right to vote.
1937: Georgia’s poll taxes are found constitutional by the US Supreme Court in Breedlove v. Suttles.
1943: The Chinese Exclusion Act is repealed, and Chinese persons are now eligible for naturalization.
1946: Filipinos receive the right to naturalization after almost 50 years of colonialism.
1946: Federal courts find white primary systems in Georgia unconstitutional in King v. Chapman.
1948: The last state laws denying Native Americans the right to vote are overturned.
1952: The McCarran-Walter Act recognizes the right to citizenship of first-generation Japanese Americans.
1957: The Civil Rights Act of 1957 authorizes the US Attorney General to file lawsuits on behalf of African Americans denied the right to vote.
1960: The Civil Rights Act of 1960 is passed, making collection of state voter records mandatory and authorizing the Justice Department to investigate and access the voter data and history of all states in order to carry out civil rights litigation.
1964: The passage and ratification of the 24th Amendment outlaws poll taxes nationwide.
1964: The concept of one person, one vote is upheld by the US Supreme Court as the national standard applying to all legislative bodies in Reynolds v. Sims.
1964: The Civil Rights Act of 1964 is passed, making discrimination on the basis of race, national origin, gender, or religion in voting, public areas, the workplace, and schools illegal.
1965: The Voting Rights Act is signed into law, prohibiting any election practice that denies the right to vote to citizens on the basis of race and forces jurisdictions with histories of voter discrimination to submit any changes to its election laws to the government for federal approval prior to taking effect.
1966: The Supreme Court affirms the Voting Rights Act’s constitutionality in South Carolina v. Katzenbach.
1970: Temporary provisions of the Voting Rights Act are renewed for the next five years.
1971: The 26th Amendment sets the national voting age to 18 and over.
1974: The Supreme Court rules that states may deny convicted felons the right to vote in Richardson v. Ramirez.
1975: The Voting Rights Act’s special provisions are once again extended. New amendments permanently banning literacy tests and mandating assistance to language minority voters are also added.
1975: The US Supreme Court finds Texas redistricting in Bexar County unconstitutional due to its enervating effects on minority voting power in White v. Regester.
1976: The Supreme Court rules in Beer v. United States that preclearance of election changes deemed unfair to minority voters are in compliance with the Voting Rights Act so long as “retrogressive” changes do not occur.
1982: The Voting Rights Act is extended for 25 years.
1986: Voting rights for people of color are strengthened by the US Supreme Court’s decision to declare multi-member state legislative districts in North Carolina unconstitutional in the Thomburg v. Gingles case.
1990: The passage of the Americans with Disabilities Act ensures that election workers and polling sites provide a variety of services designed to ensure the possibility of persons with disabilities to vote.
1992: The language minority provisions of the Voting Rights Act are extended for the next 15 years.
1993: The National Voter Registration Act requires states to permit mail-in registration, and make registration services available at DMVs, unemployment offices, and other state agencies.
1995: The Supreme Court rules that race may not be the “predominant factor” in redistricting in Miller v. Johnson.
2002: The Help America Vote Act creates minimal standards of election administration, provides for provisional ballot voting, and sets aside funds to help states improve outdated voter systems.
2004: The Supreme Court found claims of partisan gerrymandering nonjusticiable in Vieth v. Jubelirer.
2006: The Voting Rights Act is extended for another 25 years.
2009: The Military and Overseas Empowerment Act establishes more efficient means for troops stationed overseas and expatriates to request and receive absentee ballots through the mail or electronically.

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The recent decision of the European Court of Justice (CJEU) in the case between Slovakia vs. Achmea BV (Case C-284/16) seems to have caused a ripple effect for investment arbitration: In the case against the Swedish investor Vattenfall (ICSID ARB 12/12), the Federal Republic of Germany has now requested the arbitral tribunal to dismiss the case for lack of jurisdiction following the CJEU’s Achmea decision. A decision of the tribunal is expected later this year. It will definitely be the next punch in this highly politicized area of law. But will it be a knock-out punch for the pending arbitration?
Briefly to the background of this recent development in the Vattenfall case: On 6 March 2018, the CJEU decided that full effectiveness of EU law is not guaranteed if an arbitral tribunal decides a dispute between an EU investor and a Member State of the EU. In the case before the CJEU, an arbitral tribunal seated in Germany had awarded the Dutch company Achmea damages in an amount of EUR 22.1 million against Slovakia. The tribunal found that the country had violated the Bilateral Investment Treaty (BIT) between the Netherlands and Slovakia when it closed its sickness insurance market only a few years after it had opened the market to private investors in 2004. Slovakia approached the competent German courts to set aside the award arguing a violation of several provisions of EU law, in particular regarding the Treaty on the Functioning of the European Union (TFEU). The German Federal Court of Justice submitted the question to the CJEU whether the arbitration agreement in the BIT was compatible with the TFEU. The CJEU answered the question loud and clear: “No, they are not!” (see our previous GAN-article on the decision of the CJEU here: https://globalarbitrationnews.com/ecj-stops-investment-arbitration-intra-eu/).
The implications of the Achmea decision are currently the hottest topic in investment arbitration. Over the last two months, countless articles have been written and speeches given debating the consequences of the CJEU’s decision. It is impossible to find a panel discussion without a reference to Achmea. In general, the majority opinion seems to go along the following lines: Arbitrations based on BIT’s between two EU member states are no longer possible because of the negative effects on EU law. However, this does not include arbitrations based on the dispute resolution provision in the Energy Charter Treaty (ECT) to which the EU itself is a party. It does also not effect ICSID arbitrations which are distinguished by their denationalized character. But is this opinion correct?
At least the German government and its legal advisors in the case against Vattenfall seem to take a different position. The Vattenfall case is based on the ECT and conducted under the rules of ICSID. It was reported in German news that in late April 2018 Germany has requested the tribunal to dismiss Vattenfall’s claim as inadmissible based on the reasoning of the Achmea decision by the CJEU (“Deutschland hält Vattenfall-Klage für unzulässig”, FAZ, 8 May 2018). The actual meaning of the Achmea decision – so apparently the argument of the state – is that arbitration proceedings between investors from the EU and a EU member state are per se inadmissible. If the tribunal were to adopt such a reasoning, this could be a knock-out punch for investment arbitration in Europe.
However, it seems unlikely that the arbitral tribunal will dismiss the Vattenfall case for lack of jurisdiction: First, the CJEU itself did not argue such far-reaching consequence in its decision. The CJEU interpreted EU law and answered the questions put before the court. Nowhere did the CJEU state that investment arbitration shall per se and always be inadmissible if a EU investor and a EU member state are involved. Secondly, the CJEU had reviewed a Bilateral Investment Treaty, not a Multilateral Treaty like the Energy Charter. It is kind of hard to argue that the EU itself signed and thus is bound by the Energy Charter Treaty but that now the EU, via EU Law, requests its member states to ignore its contractual undertakings from the Energy Charter Treaty, i.e. to allow investors to initiate arbitration proceedings. Not only principles of equity and good faith advocate against such reasoning. And finally, the independent arbitral tribunal is not required to accept the Achmea decision as binding law. Quite interestingly, the self-executing character of awards in ICSID arbitrations should prevent state courts or the CJEU to “correct” an award in an enforcement stage or to otherwise interfere. So there is hope, that the Vattenfall arbitration survives the Achmea-attack.
Prof. Dr. Joerg Risse LL.M. (Berkeley) is a member of the Dispute Resolution Group at Baker McKenzie in Frankfurt. Being double-qualified as an attorney-at-law in Germany and in New York (USA), he represents his clients in international arbitrations before all major arbitral institutions. Since Prof. Risse is frequently appointed to act as an arbitrator or mediator, his clients also benefit from his "judiciary" outlook on a case. Prof. Risse teaches advocacy skills and dispute resolution at the University of Mannheim. Prof. Risse is ranked by Chambers Global 2015 as one of the top two arbitration counsels in Germany and among the most in-demand arbitrators. Handelsblatt/Best Lawyers 2015/2016 honors him as "Lawyer of the Year" in international arbitration. According to Juve (2010 - 2015), he is a "leading name" in arbitration, and Who is Who Legal 2015 declared him one of the top seven commercial mediators in Germany. Prof. Risse advises in post merger and acquisition disputes, in particular in price adjustment disputes, reps and warranty claims and claims raised against transaction advisers. His second main area of practice are disputes related to large infrastructure projects such as power plants, offshore wind farms, electricity networks, public transport projects or airports. Most of his clients are from the “old economy”, including turn-key contractors for large projects and companies from the chemical, automotive, medical and mass transport industry. Prof. Risse has particular experience in ADR-proceedings where he advises his clients in settlement negotiations, mediation and adjudication proceedings. Prof. Risse can be reached at Joerg.Risse@bakermckenzie.com and +49 69 299080.
Dr. Max Oehm, LL.M. is a member of the Dispute Resolution team at Baker McKenzie in Frankfurt. Max advises on international arbitration and commercial litigation matters. He represents clients in cases focusing on large industrial projects such as power plant construction and gas storage facilities. Max teaches at the University of Mannheim, Germany. Max Oehm can be reached at Max.Oehm@bakermckenzie.com and +49 69 29908334.

matches: CJEU CJEU CJEU CJEU CJEU CJEU CJEU CJEU CJEU CJEU


Warren County, VA--Wendy Ellen Tenney and Brian Wayne Tenney, of 63 Limeton Church Road in Bentonville VA, have been charged in relation to the incident on September 12, 2018.
Wendy Ellen Tenney was charged on September 13th with six felony counts of § 40.1-103, Cruelty and injuries to children and on September 14th sixteen counts of § 3.2-6570, Cruelty to animals and three counts of § 3.2-6503, Inadequate care of animal.
Brian Wayne Tenney was charged on September 13th with six felony counts of § 40.1-103, Cruelty and injuries to children and on September 14th sixteen counts of § 3.2-6570, Cruelty to animals, three counts of § 3.2-6503, Inadequate care of animal and one count livestock running at large.