Can the commission of an out-of-state aggravated sexual assault support a conviction for continuous sexual abuse of a child?
No. An element of continuous sexual abuse of a child is two or more violations of the enumerated Penal Code sections. A perpetrator cannot commit an act that violates the Texas Penal Code while outside of Texas, so an act of sexual abuse that occurs outside of Texas cannot be one of the two or more required violations. Read opinion.
The statutory language could be read more expansively to include a contingency to the element requirement: any act that is a violation of the enumerated Penal Code sections, or that would be a violation if committed in this state. However, there is no evidence of legislative intent to support this more expansive reading. The Legislature may add this contingency language, as it appears in other statutes, to plainly indicate its intent to include the use of out-of-state offenses. Read opinion.
This is a decision of purely statutory construction, not policy. If the Legislature intended to include the commission of out-of-state offenses within the scope of the offense of continuous sexual abuse of a child, it will need to amend the statute to make that clear.
Is failure to present any punishment-phase evidence in a capital murder case deficient performance?
Yes. Defense counsel acted deficiently when she failed to present any punishment-phase evidence on the defendant’s behalf. This deficiency deprived the defendant of the right to a fair trial. Read opinion.
“Cataloguing all of the ethical and professional lines trial counsel crossed in charting this course without her client’s knowledge or consent would consume far more ink than I care to spill on the matter. Suffice it to say, her ludicrous attempt to hold the trial court hostage resulted in a death sentence she was duty-bound, but did shamefully little, to oppose. It is a bitter task indeed to reward trial counsel’s unprofessionalism by giving her what she has apparently wanted all along: a new punishment hearing for [the defendant]. Still, in light of the habeas court’s finding that [the defendant] was oblivious to trial counsel’s strategy, we should not hold [the defendant] accountable for the decisions of his lawyer.” Read opinion.
The Court is incorrect that an inquiry into prejudice is not required. Defense counsel did not entirely fail to subject the State’s punishment evidence to meaningful adversarial testing. She participated in the State’s punishment case, including cross-examining witnesses. The case should be remanded for findings on the issue of prejudice and defense counsel’s conduct evaluated under the Strickland prejudice prong. Read opinion.
This decision has no precedential value. The majority opinion is a two-page per curiam opinion that contains no analysis and is barely two pages long. Someone not already aware of this case would have to read Judge Keasler’s concurring opinion to determine what actually happened. And as Judge Keasler suggests, it is disgusting. The defendant’s trial counsel apparently did not care if she lost her law license, and the State Bar should seriously take her up on that offer.
Is a warrant that authorizes a search for both “mere evidence” and items from another warrant subdivision subject to the heightened requirements of a mere evidentiary warrant?
No. Under Criminal Procedure Art. 18.02(a), warrants can authorize a search for specific categories of items in Arts. 18.02(a)(1-9, 12) or a more general search under the catch-all Art. 18.02(a)(10). Items subject to seizure under this catch-all article are called “mere evidence,” and the warrant issued is a mere evidentiary warrant. A mere evidentiary warrant must have a supporting affidavit that meets the heightened requirements of Art. 18.01(c). A warrant issued under one of the specific categories of Arts. 18.02(a)(1-9, 12) may also authorize a search for mere evidence without being subject to the additional requirements of a mere evidentiary warrant. Read opinion.
This is a good decision. There is a good deal of statutory analysis, but not a lot of caselaw support for the court’s decision. Expect to see this decision reviewed by the Court of Criminal Appeals. Even so, it should still hold up. There is also a good discussion allowing the consideration of allegedly constitutionally protected speech to be part of the probable cause determination. Read opinion.
Does a defendant have standing to complain about the search of a cell phone that was gifted to a third party and subsequently stolen?
No. Only the wronged or injured party has the right to complain of an illegal search or seizure under Code of Criminal Procedure Art. 38.23. Although the defendant purchased the cell phone in question, he gave the phone to his girlfriend for her use. Because the defendant did not own the phone at the time of the theft, his legal right was not invaded, and he does not have standing to complain about the search of the cell phone. Read opinion.
This is a straightforward application of the law on standing and deference to a trial court’s findings of fact. The opinion does not state how law enforcement gained access to the stolen cell phone. If you desire to make the same argument that was made in this case, make sure that the facts line up (and that the trial judge is willing to make findings of fact in your favor).
Is a municipal law enforcement agency authorized or required to release audio or video recordings from a body-worn camera to members of the public, members of the governing body of the municipality, and civilian employees of the municipality? And if so, when? Read request.
As more law enforcement agencies utilize body-worn cameras, more requests for the resulting recordings will be made by the public and others. This Attorney General Opinion request was made by a state legislator, so it could be that some legislation is being contemplated regarding the disclosure of such recordings. It should be noted that Occupations Code §1701.659 makes it a Class A misdemeanor for an officer to release such a recording without the law enforcement agency’s approval. There is also a general limitation on the disclosure of such recordings in §1701.660, along with provisions for the disclosure of such recordings in §§1701.661, 1701.662, and 1701.663.
Is postmortem toxicological analysis conducted pursuant to the request of a medical examiner or forensic pathologist subject to accreditation by the Forensic Science Commission? Read request.
This requests centers on the proper construction of Code of Criminal Procedure Art. 38.35(a)(4)(F).
TDCAA will host our 2017 Key Personnel and Victim Assistance Coordinator Seminar at the beautiful Westin Oaks Hotel at the Houston Galleria November 8 to 10. The seminar will include specialized tracks for key personnel and VACs, with presentations on witness fee guidelines, discovery vs. work product, tactical organization, protective orders, help for witnesses with immigration concerns, and a legislative update. For further details or to register online for the course, click here.


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At the beginning of March 2018, the Court of Justice of the EU ("CJEU") clarified the limits of the private investor principle, also known as the "market economy operator criterion" ("MEO criterion") in two fundamental rulings.
In SNCF Mobilités v Commission (case C-127/16) the CJEU clarified the limitations of the applicability of the MEO criterion. The CJEU ruled that the MEO criterion is not applicable to the implementation of a compensatory measure (the forced sale of favoured activities) of unlawful State aid because it has the objective of remedying the distortion of competition.
In Commission v FIH Ehrversbank (case C-579/16 P) the CJEU clarified which elements should not be used when applying the MEO criterion. The CJEU ruled that when applying the MEO criterion the risks relating to previously granted State aid should not be taken into account during the assessment of the state measure.
The MEO criterion means that a transaction between a Member State and an undertaking does not grant an advantage to the undertaking when the Member State acts in an economically rational way and its actions can be compared with that of an economic operator under normal market conditions, such as an investor or creditor. The MEO criterion does not apply when the Member State acts in its capacity as a state (public authority), for example, by using its state prerogatives in areas such as social security. When applying the MEO criterion, it must be assessed whether the beneficiary company could have enjoyed the same advantage under normal market circumstances.
In previous case law, the CJEU followed a broad approach regarding to the applicability of the MEO criterion. In the judgments of EDF (case C-124/10) and Frucona Košice (case C-73/11 P), the CJEU ruled that the MEO criterion is applicable when the Member State acts in its capacity as a shareholder of the undertaking regardless of whether the advantage was granted via prerogatives that only belonged to States (for instance, tax exemptions). For the State aid test, the form of action is in principle not relevant, but the nature, subject, context and objectives are. EDF dealt with the question of whether the economic reasons for the investment, in the form of a tax exemption, are comparable to those of a private investor under the same market circumstances. When a private investor would have made a similar investment for the same amount the MEO criterion is satisfied. In SNCF Mobilités the CJEU ruled that the sale at market price or through an open and transparent tender procedure, which normally corresponds to the application of the MEO criterion, does not necessarily mean that the MEO criterion is applicable. The CJEU confirmed that the MEO criterion is not applicable to the conditional sale of assets to remedy unlawful State aid. The rationality of such a forced sale cannot be compared to the economic rationality of a private investor.
The broad 'applicability' of the MEO criterion must be distinguished from aspects that can and cannot be take into consideration regarding the 'application' of the MEO criterion. The CJEU has ruled in the ING Group case (C-224/12 P) that the applicability of the MEO criterion to the assessment of whether the early repayment of rescue and restructuring aid constitutes new State aid, cannot be excluded. The application of that criterion entailed the examination of the economic rationality of the amendments proposed by the Dutch state to the terms governing repayment of the capital injection, which had previously been made by means of State aid, by reference to the approach that a private investor might have adopted.
In the FIH Ehrversbank judgment, the CJEU clarified the distinction between the applicability and application of the MEO criterion. In line with its ruling in Land Burgenland (joined cases C-214/12 P, C-215/12 P en C-223/12 P), the CJEU ruled in the FIH Ehrversbank judgment that the risks for the Member State associated with the previously granted State aid should not be taken into account when applying the MEO criterion on a latter measure. Both the previously approved State aid and the latter measure were granted by the Member State in the capacity of its public powers and not in the capacity of market participant.
In the FIH Ehrversbank case, the CJEU ruled that it is for the Commission to ask the Member State concerned to provide it with all the relevant information enabling it to determine whether the conditions for applying the MEO criterion are satisfied. The CJEU follows the established case law from the EDF case (case C-124/10). In the EDF case, the CJEU additionally ruled that the evidence must be produced before the adoption of the decision to implement the investment in question. In the most recent EDF case (case T-747/15) the General Court concluded that France did not meet these requirements. This is in line with SACE (case C-472/15 P) in which the CJEU confirmed that a Member State can only successfully argue that its investment does not result in State aid on the basis of MEO criterion if it can demonstrate that its investment decision is based on a prior economic assessment of the profitability of the investment. Such evidence cannot be produced retroactively. However, see Frucona Košice (case C-300/16 P) for a different approach, in which the CJEU ruled that the Commission should have concluded a comprehensive investigation when applying the MEO criterion irrespective of the relevant information provided by the Member State. Although in this case it shifted the burden of proof to the Commission, the CJEU seems not to have intended that the Commission should also have taken account of economic assessments made after the investment decision.

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Hamilton, Alexander, et al. & Wayne LaPIerre. The Federalist. Deluxe edition. Photo available. Birmingham. Library of American Freedoms. Palladum Press. 2000. 618 pps. Octavo. Gilt decorated hard cover. Leather. Gilt edges. First edition thus. Important reference work. Fine copy.
Hamilton, Bob. Gene Autry and the Thief River Outlaws. An Original Story Featuring Gene Autry. Photo available. Racine. Whitman Publishing. 1944. 256 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy in near fine (very light shelf wear) dust jacket (in mylar).
Hamilton, Charles. In Search of Shakespeare. A Reconnaissance into the Poet's Life and Handwriting. Photo available. San Diego. Harcourt, Brace & Jovanovich. 1985. Octavo. Soft cover. First edition. Illustrated. Fine copy.
Hamilton, David & Denise Couttes. David Hamilton. Collection Privee. Photo available. Paris. Editions Robert Laffont. 1976. 4to. Hardcover. First edition. Illustrated in black, white and color with photographs by David Hamilton. Fine copy in fine dust jacket (in mylar).
Hamilton, David (ed). The Metropolitan Opera Encyclopedia. A Comprehensive Guide to the World or Opera. Photo available. New York. Simon & Schuster. 1987. Octavo. Hardcover. First edition. Illustrated in color and black & white. Fine copy in fine dust jacket (in mylar).
Hamilton, Geneva. Where the Highway Ends. A History of Cambria, San Simeon and the Ranchos. Photo available. San Luis Obispo. Central Coast Press. 1999. Octavo. Soft cover. Reprint. Illustrated. Important reference work. Fine copy.
Hamilton, Kate. Dressage. An Approach to Competition. Photo available. New York. Howell House. 1988. Octavo. Hard cover. Illustrated. Fine copy (book plate on end paper) in fine dust jacket (in mylar).
Hamilton, Mark. Neothink. Superpuzzle. Three parts. Photo available. Henderson. Integrated Managment Assoc. 2013. 1210 pps 4to. Gilt decorated soft cover. Reprint. Important reference work. Fine copy.
Hamilton, Mark. Neothink. Superpuzzle. Three parts. Inscribed by the author. Photo available. Henderson. Integrated Managment Assoc. 2013. 1210 pps 4to. Gilt decorated soft cover. Reprint. Important reference work. Inscribed by the author "Mike, you already know all that is in this book. In reading it, you will remember. Best, Mark:. Fine copy.
Hamilton, Mark. The Nouveau Tech Package of Inside Secrets. Nouveau Tech Secret Society. The Nouveau Tech Discovery. Photo available. Henderson. Neo-Tech Books. 2010. 4to. Soft cover. Reprint. Illustrated. Near fine copy (some yellow highlighting, first 20 +/- pages).
Hamilton, Nigel. Monty. The Making of a General. 1887-1942. Photo available. New York. McGraw-Hill Book Co. 1981. 871 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Hamilton, Virginia & Barry Moser. In the Beginning. Creation Stories from Around the World. Photo available. San Diego. Harcourt, Brace & Jovanovich. 1988. Octavo. Hard cover. First edition. Illustrated in black, white and color by Barry Moser. Fine copy in fine dust jacket (in mylar).
Hamilton, Virginia & Lambert Davis. The Bells of Christmas. Photo available. San Diego. Harcourt, Brace & Jovanovich. 1989. Octavo. Hardcover. First edition. Illustrated in black, white and color by Lambert Davis. Fine copy in fine dust jacket (in mylar).
Hamilton, Virginia. Drylongso. Photo available. San Diego. Harcourt, Brace & Jovanovich. 1992. Octavo. Hard cover. First edition. Illustrated in black, white and color by Jerry Pinkney. Fine copy in fine dust jacket (in mylar).
Hamilton, Virginia. Her Stories. African American Folktales, Fairy Tales, and True Stories. Photo available. New York. Blue Sky. 1995. 4to. Hard cover. First edition. Illustrated in black, white and color by Leo & Diane Dillon. Fine copy in fine dust jacket (in mylar).
Hamilton-Paterson, James. Empire of the Clouds. When Britain's Aircraft Ruled the World. Photo available. London. Faber and Faber. 2010. Octavo. Hardcover. Reprint. Illustrated. Fine copy in fine dust jacket (in mylar).
Hamlen, Joseph. Flight Fever. Photo available. Garden City. Doubleday. 1971. 372 pps. Octavo. Hardcover. Stated first edition. Illustrated. Important reference work. Fine (book plate) copy in fine dust jacket (in mylar).
Hamlin, Rick. Tournament of Roses. 100 Year Celebration. Photo available. New York. McGraw-Hill. 1988. Octavo. Hard cover. First edition. Illustrated in black, white and color. Fine (owner inscription on end paper) copy in fine dust jacket (in mylar).
Hamm, Jack. Cartooning the Head & Figure. Photo available. New York. Perigee. 1982. 4to. Soft cover. First edition thus. Illustrated. Fine copy.
Hammacher, A.M. The Evolution of Modern Sculpture. Tradition and Innovation. Photo available. New York. Harry N. Abrams. 1969. 4to. Hardcover. First edition. Illustrated in black, white and color. Tipped-in plates. Fine copy in fine dust jacket (in mylar).
Hamman, Rick. California Central Coast Railways. Photo available. Boulder. Pruett Publishing Company. 1980. 309 pps. 4to. Hardcover. First edition. Illustrated. Fine copy in fine (light wear at spine tip) dust jacket (in mylar).
Hammel, Eric. Ambush Valley. I Corps, Vietnam, 1967 - The Story of a Marine Infantry Battalion's Battle for Survival. Photo available. Pacifica. Pacifica Military History. 1990. 335 pps. Octavo. Soft cover. First edition. Illustrated. Important reference work. Fine copy.
Hammel, Eric. Munda Trail. Turning the Tide Against Japan in the South Pacific. Photo available. New York. Orion. 1989. Octavo. Hardcover. Reprint. Illustrated. Fine (owner name on end paper) copy in fine dust jacket (in mylar).
Hammelburg, Olaf. Connecting Worlds: The Coffee Trails. From Farmer to Consumer. Photo available. The Hague. Connecting Worlds Production. 2008. 4to. Decorated hard cover. First edition. iIlustrated in black, white and color. Important reference work. Fine copy.
Hammersley, Frederick. Frederick Hammersley. Organics and Cut-ups. 1963-1965. Photo available. Venice. La Louver. 2014. Octavo. Soft cover. First edition. Illustrated in black, white and color. Important reference work. Fine copy.

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Sections were omitted pursuant to section 5316 of this title which terminated the authority to make grants or loans under this chapter after Jan. 1, 1975.
Section 1500, Pub. L. 87–70, title VII, § 701, June 30, 1961, 75 Stat. 183; Pub. L. 89–177, title IX, § 901(b), (c), Aug. 10, 1965, 79 Stat. 494; Pub. L. 89–754, title VI, § 605(b), (c), Nov. 3, 1966, 80 Stat. 1279; Pub. L. 91–609, title IV, § 401, Dec. 31, 1970, 84 Stat. 1781, set forth Congressional declaration of findings and purpose for open-space land provisions.
Section 1500a, Pub. L. 87–70, title VII, § 702, June 30, 1961, 75 Stat. 184; Pub. L. 88–560, title X, § 1001, Sept. 2, 1964, 78 Stat. 806; Pub. L. 89–117, title IX, §§ 902(a), (b), 903, 904, 909(b), (c), Aug. 10, 1965, 79 Stat. 495, 497; Pub. L. 89–754, title VI, § 605(d), Nov. 3, 1966, 80 Stat. 1279; Pub. L. 90–19, § 18(c), (d), May 25, 1967, 81 Stat. 25; Pub. L. 90–448, title VI, § 606(a), Aug. 1, 1968, 82 Stat. 534; Pub. L. 91–152, title III, § 303, Dec. 24, 1969, 83 Stat. 391; Pub. L. 91–609, title IV, § 401, Dec. 31, 1970, 84 Stat. 1781, related to authorizations, limitations and restrictions, etc., respecting grants to States and local public bodies for acquisition and development of open-space land.
Section 1500b, Pub. L. 87–70, title VII, § 703, June 30, 1961, 75 Stat. 184; Pub. L. 89–117, title IX, § 905, Aug. 10, 1965, 79 Stat. 495; Pub. L. 90–19, § 18(c), May 25, 1967, 81 Stat. 25; Pub. L. 91–609, title IV, § 401, Dec. 31, 1970, 84 Stat. 1782, related to planning requirements.


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Steve has a unique ability to fight zealously for his clients’ vision of justice. Steve draws from his personal life experiences, a distinguished legal education, and years of legal practice to offer his clients a rare combination of compassion and tenacity. I always have confidence that when I send someone Steve's way that they will find a legal advocate like none other. Bridgette Harwood, Co-Director of Network for Victim Recovery of D.C.
Steven J. Kelly is a Partner at Sanford Heisler Sharp, LLP, a national firm with offices in Washington, DC, New York, California, Tennessee, and Maryland. He is located in the firm’s Washington and Baltimore offices. Mr. Kelly received his law degree from Georgetown University Law Center in 2003.
Mr. Kelly is one of a handful of lawyers in the country capable of truly fighting for a victim’s rights in both criminal and civil cases. Recent advances in law provide victims of violence with a number of critical rights in criminal cases. By protecting victim safety, privacy and the victim’s right to meaningfully participate in the criminal process, we prevent our clients from being re-victimized from the criminal process and strengthen the victim’s ability to bring civil claims against perpetrators and responsible third parties.
Steve currently represents seven female scientists in their landmark Title IX class action lawsuit against Dartmouth College in New Hampshire federal court. Brought on behalf of current and former female graduate students and undergraduates in Dartmouth’s Department of Psychology and Brain Sciences (“PBS”), the lawsuit alleges that Dartmouth willfully ignored more than a decade of widespread sexual harassment and gender discrimination by tenured professors in the department.
Mr. Kelly has been fighting for crime victims since 1988 when his older sister was raped and murdered. While in high school, he developed a curriculum on preventing violence and treating the victim with dignity and respect that is still taught in Maryland schools. As a teenager, Mr. Kelly fought for an amendment to Maryland’s constitution for crime victim rights. After college, Kelly led a non-profit devoted to matching crime victims with a lawyer. While at Georgetown University Law Center, Mr. Kelly helped fight for what became the Crime Victim Rights Act of 2004. He has been recognized for his advocacy by the National Crime Victim Law Institute, the Governors of Florida and Maryland, the American Bar Association, the Maryland Crime Victim Resource Center and American University, and others.
Mr. Kelly represents victims of criminal and sexual violence in criminal and civil proceedings on cases involving: sexual violence in schools, colleges, universities and graduate schools; child sexual abuse; criminal and sexual assaults at hotels, banks, ATMs, retail stores, apartment buildings; drunk and impaired driving, voyeurism and other civil cases arising from criminal acts.
Prior to joining Sanford Heisler Sharp, Mr. Kelly was a partner at the regional law firm of Silverman, Thompson, Slutkin & White, where he founded a crime victim practice group. Prior to that, Mr. Kelly litigated anti-trust and complex commercial ligation cases for Miles & Stockbridge and DLA Piper.
Mr. Kelly has litigated numerous landmark cases for crime victims, including Paroline vs. U.S., U.S. Supreme Court; Prout, et al. v. St. Paul’s School, D. N.H., Doe v. Cabrera, D.D.C., Smolinski v. Gleason, Conn. S.C.; Doe v. Bardell, D. Md.; Jane Doe, et al. v. Kesher Israel, et al., D.C. Superior Court; Doe v. Penn Parking, et al., D.C. Superior Court; Doe v. Cardin School, Baltimore City Circuit Court; Ceaser v. Morgan State University, Baltimore City Circuit Court.

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Pennsylvania PUC v. Pennsylvania R. Co.
ALBANESE v. NEDERL. AMERIK MAATS.
Gunther v. San Diego & Arizona Eastern R. Co.
Walker Process Eqpt., Inc. v. Food Machinery Corp.
UNITED STATES v. HUCK MANUFACTURING CO.
Steelworkers v. R. H. Bouligny, Inc.
HODGES v. BUCKEYE CELLULOSE CORP.
ROSENBLATT v. AMERICAN CYANAMID CO.
FTC v. Mary Carter Paint Co.
Leh v. General Petroleum Corp.
U.S. v. UTAH CONSTRUCTION AND MINING CO.
Gondeck v. Pan American World Airways, Inc.
Jones & Laughlin Steel Corp. v. Gridiron Steel Co.
KASHARIAN v. METROPOLITAN LIFE INSURANCE CO.
SIMMONS v. UNION NEWS CO.
HERALD PUBLISHING CO. v. WHITEHEAD-DONOVAN CORP.
Federal Trade Commission v. Texaco, Inc.
United Gas Improvement Co. v. Continental Oil Co.
UNITED STATES v. LEITER MINERALS, INC.
United States v. Atlas Life Ins. Co.
McCLELLAN v. CHESAPEAKE & OHIO RAILWAY CO.
United States v. Midland-Ross Corp.
FPC v. Union Electric Co.
Watts v. Seward Sch. Bd.
FTC v. Consolidated Foods Corp.
WESTERN & SOUTHERN LIFE INS. v. NATIONAL LABOR REL.
Burnett v. New York Central R. Co.
Labor Board v. Metropolitan Life Ins. Co.
CHICAGO & N.W. R.W. v. CHICAGO MIL. ST. PAUL & PAC. R.
Textile Workers Union v. Darlington Mfg. Co.
Radio Union v. Broadcast Svc. of Mobile, Inc.
TRANS-LUX DIST. CORP. v. BOARD OF REGENTS UNIV. N. Y.
United State v. Boston & Maine R.
BLAAUW v. GRAND TRUNK WESTERN RAILROAD CO.
Crider v. Zurich Ins. Co.
FPC v. Amerada Petroleum Corp.
Davis v. Baltimore & Ohio Railroad Co.
California v. Lo-Vaca Gathering Co.
SEC v. American Trailer Rentals Co.
Arrow Transportation Co. v. Cincinnati etc. Ry. Co.
THORN v. HARRISBURG TRUST CO.

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If we process data in a third country (ie outside the European Union (EU) or the European Economic Area (EEA)) or in the context of the use of third party services or disclosure or transmission of data to third parties, this will only be done if it is to fulfill our (pre) contractual obligations, on the basis of your consent, on the basis of a legal obligation or on the basis of our legitimate interests. Subject to legal or contractual permissions, we process or have the data processed in a third country only in the presence of the special conditions of Art. 44 et seq. GDPR. That the processing is e.g. on the basis of specific guarantees, such as the officially recognized level of data protection (e.g. for the US through the Privacy Shield) or compliance with officially recognized special contractual obligations (so-called “standard contractual clauses”).
You have acc. Art. 77 GDPR the right to file a complaint with the competent supervisory authority.
Processing is based on Art. 6 para. 1 lit. b (execution of order transactions) and c (legally required archiving) GDPR. The information marked as required for the establishment and fulfillment of the contract is required. We disclose the data to third parties only in the context of extradition, payment or in the context of legal permissions and obligations to legal advisors and authorities. The data will be processed in third countries only if necessary for the fulfillment of the contract (for example, on customer’s request upon delivery or payment).
In order to run our business economically, to recognize market trends, customer and user needs, we analyze the data we have about business transactions, contracts, inquiries, and so on. We process stock data, communication data, contract data, payment data, usage data, metadata on the basis of Art. 6 para. 1 lit. f. GDPR, whereby the persons concerned include customers, prospects, business partners, visitors and users of the online offer.
The analyzes are conducted for business analysis, marketing and market research. In this way we can view the profiles of the registered users with ads e.g. to consider their purchase transactions. The analyzes serve to increase the user-friendliness, the optimization of our offer and the business administration. The analyzes are for us alone and are not disclosed externally, unless they are anonymous, aggregated value analyzes.
If these analyzes or profiles are personal, they will be deleted or anonymised upon termination of use, otherwise after two years from the conclusion of the contract. Incidentally, the overall business analyzes and the general trend provisions are created as anonymously as possible.
When contacting (eg via contact form, e-mail, telephone or via social media), the information of the user is processed to process the contact request and its processing according to. Art. 6 para. 1 lit. b) GDPR processed. User information may be stored in a customer relationship management system (“CRM system”) or similar request organization.
We delete the requests when they are no longer needed. We check the need every two years; In addition, the statutory archiving obligations apply.
When users leave comments or other posts, their IP addresses may be based on our legitimate interests in the manner of Art. 6 para. 1 lit. f. GDPR is stored for 7 days. This is for our own safety when someone leaves behind inappropriate content (insults, prohibited political propaganda, etc.) in comments and posts. In this case, we may be sued for the comment or post and are therefore interested in the identity of the author.
In addition, we reserve the right to be consistent with our legitimate interests. Art. 6 para. 1 lit. f. GDPR processes the information of users for the purpose of spam detection.

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Art. 6


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Recently, in ACIT v. Grant Thornton,1 the Delhi bench of the Income-tax Appellate Tribunal (“Tribunal”) held that income derived by foreign limited liability partnerships (LLPs) from providing legal and accounting services to an Indian taxpayer would be taxable on a residence basis as income from independent personal services under applicable international tax treaties.
The taxpayer was a partnership firm providing international accounting and advisory services to its clients in India and abroad. For the assessment year in consideration (AY 2010-11), the taxpayer had filed its return of income declaring its total income at INR 6,46,22,387.
During the course of scrutiny proceedings initiated against the taxpayer under section 143(2) of the Income-tax Act, 1961 (“ITA”), the Assessing Officer (“AO”) noticed that the taxpayer had claimed deductions totaling INR 1,41,08,805 against payments made to certain foreign LLPs for rendering professional services to the taxpayer’s overseas clients in the UK, the USA, France, and the Netherlands. The taxpayer had not withheld tax at source on these payments on the basis that they constituted income from independent personal services, which was not taxable in India under India’s international tax treaties with the UK, the USA, France and the Netherlands. However, the AO rejected this argument on the basis that the provisions on independent personal services in the relevant tax treaties only applied to income derived by individuals, whether in their own capacity, or as members of partnership firms, and not to income derived by LLPs (i.e., entities distinct from their members). The AO therefore recharacterized these payments as fees for technical services (FTS) and disallowed the entire amount under section 40(a)(i) of the ITA for failure to withhold tax at source.
On appeal, the disallowance was deleted by the Commissioner of Income-tax (Appeals) (“Commissioner”). On reviewing the provisions on independent personal services in India’s tax treaties with the UK, the USA, France and the Netherlands, the Commissioner was of the opinion that these provisions were “definitely applicable” to income derived by both partnership firms and LLPs, and that the AO had rejected the taxpayer’s arguments on a “flimsy” basis. Accordingly, the Commissioner held that the payments constituted income from independent personal services, which were not taxable in India, as the thresholds for triggering source taxation of such income had not been crossed under any of the relevant tax treaties. The Commissioner also found that the payments did not constitute FTS as no technical knowledge had been ‘made available’ to the taxpayer in lieu of these payments. In either case, since the income itself was non-taxable, the question of withholding tax at source did not arise.
Aggrieved by the order of the Commissioner, the Revenue appealed to the Tribunal.
The Tribunal dismissed the Revenue’s appeal and affirmed the Commissioner’s order on both counts, thereby allowing the taxpayer’s claim for deductions against payments made to foreign LLPs.
The Tribunal concurred with the Commissioner’s finding that the provisions on independent personal services in the relevant international tax treaties were applicable to income derived by individuals, whether in their own capacity, or as members of partnership firms, and therefore did not find any error in the Commissioner’s order. The Tribunal did not specifically address the AO’s argument that the provisions on independent personal services were not applicable to LLPs.
The Tribunal noted that the provisions on FTS under the relevant tax treaties were attracted only if some technical knowledge had been ‘made available’ to the taxpayer in the process of providing professional services to the taxpayer’s overseas clients. As the Revenue had failed to establish that any technical knowledge had been made available to the taxpayer, the Tribunal applied the more beneficial provisions of the relevant tax treaties over the provisions of the ITA (which did not contain a ‘make available’ requirement for a payment to qualify as FTS), and held that the payments did not constitute FTS, and hence, were not subject to tax withholding requirements under the ITA.
While the ruling is certainly welcome from a taxpayer perspective, the Commissioner’s and the Tribunal’s analysis of the law appears incomplete and could result in incongruous situations as pointed out below. Not only have both authorities failed to note or appreciate crucial differences in the provisions on independent personal services in the relevant tax treaties (i.e., India’s treaties with the UK, the USA, France, and the Netherlands), both authorities also appear to have ignored prior (diverging) precedent on the issue as well.
From a bare reading of the treaty texts, it is immediately evident that: (i) the India – UK tax treaty (“UK Treaty”) is only applicable in respect of income derived by individuals from the independent personal services; (ii) India’s treaties with the USA and France ostensibly cover income derived by partnership firms from independent personal services, although the scope of the term “partnership firm” is unclear in both cases; and (iii) the India – Netherlands tax treaty (“Netherlands Treaty”) covers income derived by all ‘residents’ from independent personal services and therefore has the widest personal scope among the treaties under discussion. Even in relation to the Netherlands Treaty (the most expansively worded of the treaties under discussion), it is pertinent to note that the United Nations Model Double Taxation Convention (“UN Model Convention”) observes that the article on independent personal services (which is worded similarly in both the Netherlands Treaty and the UN Model Convention) is intended to apply only to income derived by individuals.2 This nuance appears to have been glossed over by both the Commissioner and the Tribunal.
While certain cases have applied the provisions on independent personal services to income derived by corporate entities (including LLPs), these cases have been uniformly rendered in the backdrop of treaties worded in the same expansive manner as the UN Model Convention and the Netherlands Treaty.7 A notable exception here is the decision of the Mumbai bench of the Tribunal in DCIT v. Chadbourne & Parke LLP,8 where the provisions on independent personal services under the India – US tax treaty (“US Treaty”), which are far more narrowly worded than the UN Model Convention or the Netherlands Treaty,9 were applied to determine the taxability of income derived by a US LLP from providing legal services in India.10 However, it is crucial to note that the Tribunal in this case did not examine whether the provisions on independent personal services would be applicable to legal persons in principle, but merely proceeded on the assumption that they were.11 In applying these provisions, the Tribunal relied on the prior decisions in MSEB v. DCIT and Graphite India Ltd v. DCIT,12 even though neither of those decisions had addressed the issue in principle either. More importantly, these decisions create a tax mismatch by effectively treating an LLP providing independent personal services as tax transparent, even though it may not be treated as such under the laws of its home jurisdiction, while at the same time, treating it as tax opaque for other purposes (for instance, where the LLP is providing other technical or business or support services). Consequently, this approach may potentially limit the LLP’s ability to claim foreign tax credit in its home jurisdiction against taxes paid in India, since it could be argued that the Indian taxes were actually borne by the partners / members of the LLP, and not by the LLP itself. The question of who is the “resident” that is paying taxes and is therefore entitled to claim credit could cause issues, similar to the case of trusts.
Seen in this light, it is unusual that a considerable number of cases, including the decision in Grant Thornton, have nevertheless witnessed the provisions on independent personal services being applied to legal persons. With the increasing use of corporate forms in the supply of cross-border services, it would therefore be imperative to clarify the personal scope of these provisions to provide certainty to taxpayer and ensure uniformity in tax administration. Till such time, taxpayers providing professional services should mostly continue to benefit from being classified as providing independent personal services, except where taxes are actually payable in India, in which case, the issue of claiming credit in the home jurisdiction could potentially crop up.
The authors would like to thank Shreetama Ghosh for her assistance in preparing this Hotline.
1 Order dated 10.11.2019 in ITA No. 4143/Del/2015 for AY 2010-11.
3  132 TTJ 20 (Mumbai), relating to AY 1995-96.
4 Linklaters LLP v. DCIT,  185 TTJ 525 (Mumbai – Trib.), relating to AY 2011-12, at paras 34 – 35; and Linklaters LLP v. DCIT,  172 ITD 459 (Mumbai – Trib.), relating to AY 2012-13, at paras 23 – 24. Also see the decision in Christiani & Nielsen Copenhagen v. First ITO,  39 ITD 355 (Bombay).
5  44 SOT 602 (Mumbai).
6 The language of article 15 of the Italy Treaty is comparable to the language employed in corresponding provisions in the Netherlands Treaty and the UN Model Convention.
7 See MSEB v. DCIT,  90 ITD 793 (Mum.) (in the context of the erstwhile UK Treaty, prior to its substitution in 1993); DIT v. Paper Products Ltd,  257 ITR 1 (Delhi) (in the context of the Italy Treaty); CIT v. Sweta Estates (P.). Ltd,  28 taxmann.com 414 (Delhi) (in the context of the India – China tax treaty).
8  93 TTJ 734 (Mumbai).
9 Please see the table above for how the provisions on independent personal services under the US Treaty are worded.
10 While a similar decision was arrived at by the Mumbai bench of the Tribunal in IMP Power Ltd v. ITO,  107 TTJ 522 (Mumbai) (in the context of the UK Treaty, as it stands today), this decision is almost certainly incorrect as it followed MSEB v. DCIT, which was rendered in the context of the erstwhile UK treaty, which was worded differently.
11 Similar approaches were adopted in the twin rulings of the Mumbai bench of the Tribunal and the Bombay High Court in another set of cases relating to a major UK law firm: Clifford Chance v. DCIT,  82 ITD 106 (Mum.); and Clifford Chance v. DCIT,  318 ITR 237 (Bombay).
12  86 ITD 384 (Kol.).
13 See OECD, Issues Related to Article 14 of the OECD Model Tax Convention (2000), available at https://www.oecd-ilibrary.org/content/publication/9789264181236-en (last accessed on February 4, 2019).
15 Id., at page 10: importantly, the OECD noted that countries such as Mexico and Turkey had made observations to the commentary on Article 14 by officially taking the position that Article 14 applied to legal persons.
16 Id., at page 11.

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1. It was not error to deny the defendant's motion to suppress the victim's in-court and out-of-court identifications of the defendant. In the circumstances of this case the "bring-back" procedure employed was "justified by the need for efficient investigation in the immediate aftermath of crime." Commonwealth v. Barnett, 371 Mass. 87 , 92 (1976), cert. denied, 429 U.S. 1049 (1977). See also Commonwealth v. Bumpus, 354 Mass. 494 , 497-502 (1968), cert. denied, 393 U.S. 1034 (1969); Commonwealth v. Denault, 362 Mass. 564 , 566-567 (1972); Commonwealth v. Dickerson, 372 Mass. 783 , 789-791 (1977); Commonwealth v. Lifsey, 2 Mass. App. Ct. 835 (1974); Commonwealth v. Farmer, 5 Mass. App. Ct. 871 , 871-872 (1977). The defendant was apprehended a short distance from the scene of the crime with the stolen television set, and in the "totality of the circumstances" the confrontation was not "so unnecessarily suggestive and conducive to irreparable mistaken identification" that the defendant was denied due process of law. Stovall v. Denno, 388 U.S. 293, 301-302 (1967). Compare Manson v. Brathwaite, 432 U.S. 98 (1977); Commonwealth v. Gordon, ante 230 (1978). 2. There was no need to prove the value of the television set as larceny from a building is a felony itself without regard to the value of the stolen property. G. L. c. 266, Section 20. Commonwealth v. Ronchetti, 333 Mass. 78 , 82 (1955). 3. The evidence against the defendant was overwhelming, and the denial of the defendant's motions for directed verdicts was the only action open to the judge.
FERMAN GONZALEZ vs. POLICE COMMISSIONER OF BOSTON (and a companion case [Note 1]).
v. Civil Serv. Commn., 365 Mass. 368 , 379 (1974). Kelsey v. Panarelli, 5 Mass. App. Ct. 480 , 482 (1977). If we were to consider the contention, we would conclude that it lacks merit with respect to either letter. See Sullivan v. Municipal Court of the Roxbury Dist., 322 Mass. 566 , 577 (1948); Thibeault v. New Bedford, 342 Mass. 552 , 558 (1961). 3. No other question has been argued.
[Note 1] Francis X. Aherne vs. Police Commissioner of Boston.


The granting or denial of a discharge is a cornerstone in bankruptcy jurisprudence. The discharge of one’s debts is the goal of debtors in the bankruptcy process. However, the receipt of a discharge is not without its limitations. Remember, a bankruptcy discharge is only for the “honest but unfortunate debtor.” This section is dedicated the former.
So what does it mean to be honest? There are some bright lines of what honesty is and isn’t. For example, lying on the bankruptcy paperwork is not honest (it is also potentially criminal). Defrauding someone and then attempting to discharge that debt is not honest. Neither is stealing money, breaching a fiduciary duty or perpetrating a willful and malicious injury. However merely filing bankruptcy is not in itself dishonest. Confused creditors oftentimes wrongly assume that their debt cannot be discharged for a number of reasons. If those reasons aren’t on the list of non-dischargeability then the debt is discharged.
This brings us to the question of what debts cannot be discharged? There are two broad categories of debts that aren’t discharged. The first category are specific types of debts that are excepted from discharge. These are set forth in 11 U.S.C. §523. These types of debts apply in all chapters of bankruptcy (unless the chapter states otherwise). The second category of non-discharge only applies in Chapter 7 and is when the entire discharge is denied per 11 U.S.C. §727.
It is important to understand the distinction between the exception of discharge and the denial of discharge. The exception of discharge is where one specific debt is denied but the rest are discharged. The denial of discharge is what is sounds like, all debts are not discharged. It gets a little confusing because most cases filed are Chapter 7. Oftentimes one or more creditors will file both a §523 and a §727 action in a Chapter 7 case. Generally speaking, it is harder to prove a §727 denial of the entire discharge than a §523. But that is difficult to quantify because there are several sections of both statutes with different burdens of proof.
Now that we get the difference between exception and denial of discharge, let’s take a quick look at the types of debts that are covered under these categories. Under §523 the most common types of cases filed to except a particular debt from discharge are stemming from fraud, willful and malicious injury, theft, embezzlement, or breach of a fiduciary duty. Under §727 the list is significantly shorter and similar in feel. Nonetheless, the entire discharge can be revoked for destroying the property of the estate, concealment, improper transfers, lying, not providing information to the trustee, and not obeying a court order (very common).
Remember that the above categories are just that, categories. Discharge litigation is complex stuff and each category has its own set of burdens and specific elements to meet. Moreover, those elements differ by jurisdiction (i.e., Colorado vs California vs Florida etc…). Not only do we at Cohen & Cohen, represent debtors defending these types of cases but also creditors and trustees prosecuting them.
Call today if you need experienced representation with discharge litigation.


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Benson, Richard M. Steamships and Motorships of the West Coast. A Story in Pictures and Words About Some Famous and Unusual Vessels Along the Pacific Coast of North America. Photo available. New York. Bonanza Pub. 1968. 175 pps. 4to. Hardcover. Reprint. Illustrated. Important reference work. Fine copy in near fine dust jacket (in mylar).
Benson, Richard. The Printed Picture. Photo available. New York. The Museum of Modern Art. 2010. 338 pps. 4to. Decorated hard cover. First edition, 3rd printing. Illustrated in black, white and color. Important reference work. Fine copy.
Benson, Ted & Richard Steinheimer. Done Honest & True. Inscribed by the author. Richard Steinheimer's Half Century of Rail Photography. Photo available. Pasadena. Pentrax. 1999. 4to. Soft cover. First edition. Illustrated. Inscribed by the author "Best wishes to Skip! Richard Steinheimer (signed twice)". Fine copy.
Bent, Arthur Cleeland. Life Histories of North American Gulls and Terns. Photo available. New York. Dodd, Mead & Co. 1947. 333 pps. Octavo. Hardcover. First edition. Important reference work. Fine copy.
Bent, Arthur Cleveland. Life Histories of North American Flycatchers, Larks, Swallows, and Their Allies. Becard, Kingbird, Flycatcher, Phoebe, Pewee, Lark, Swallow, Martin. Photo available. New York. Dover. 1963. Octavo. Soft cover. First edition thus. Near fine copy (very light shelf wear).
Bent, Arthur Cleveland. Life Histories of North American Gulls and Terns. Order Longipennes. Photo available. New York. Dodd, Mead & Co. 1947. Octavo. Hardcover. First edition. Fine copy.
Benteah, Terry. Architectural Recording Project. Zuni Home Improvement Program. Photo available. Zuni Archaeology Program. Pueblo of Zuni. 1982. 4to. Spiral bound. First edition. Illustrated. Important reference work. Near fine copy (very light shelf wear).
Bentein-Stoelen M.R. & W. Meuwissen. Middelheim. Catalogue de la Collection. Musee de Sculpture en Plein Air. Openluchtmuseum Voor Beeldhouwkunst. Open Air Museum of Sculpture. Freiluftmuseum fur Plastik. Photo available. Anvers. np. 1971. 4to. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Bentham, Jeremy. Doctor Who. The Early Days. Photo available. London. W.H. Allen. 1986. 4to. Hard cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Bentley, James. The Most Beautiful Country Towns of Tuscany. Photo available. London. Thames & Hudson. 2001. 4to. Hard cover. First edition. Illustrated in black, white and color with photographs by Alex Ramsay. Fine copy in fine dust jacket (in mylar).
Bentley, James. The Most Beautiful Villages in Brittany. Photo available. London. Thames & Hudson. 1999. 4to. Hard cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Bently, Peter. The Dictionary of World Myth. Photo available. New York. Facts on File. 1995. Octavo. Soft cover. Illustrated. Fine copy.
Benz, M. 'Buddy'. Flowers: Geometric Form. Photo available. College Station. San Jacinto Publishing. 1980. 4to. Hardcover. Revised edition. Illustrated in black, white and color. Important reference work. Scarce. Fine copy in fine dust jacket (in mylar).
Beranbaum, Rose Levy. The Cake Bible. Photo available. New York. William Morrow. 1988. Octavo. Hard cover. Reprint. Illustrated in black, white and color. Near fine copy (several small spots on end paper) in very good (light shelf wear) dust jacket (in mylar).
Beren, Joel (ed). Let Them Eat Cheesecake. The Art of Olivia. Photo available. Roslyn. Ozone Productions. 1993. 108 pps. 4to. Hardcover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Berenbaum, Michael. A Promise to Remember. The Holocaust in the Words and Voices of Its Survivors. Photo available. Boston. Bulfinch. 2003. 4to. Decorated hard cover. First edition. Illustrated. With CDRom. Fine copy in fine dust jacket (in mylar).
Berg, A. Scott. Lindberg. Photo available. New York. G.P. Putnam's Sons. 1998. Octavo. Hardcover. First edition. Full number line. Illustrated. Pulitzer prize winner. Fine copy in fine (price clipped) dust jacket (in mylar).
Berg, A. Scott. Lindberg. Collector's Edition. Photo available. Norwalk. The Easton Press. 1998. Octavo. Gilt decorated hard cover. Black leather. Gilt edges. First edition thus. Illustrated. Pulitzer prize winner. Fine (owner name on end paper) copy.
Bergan, Philip J. et al. The Fields and the Law. Photo available. New York. Federal Bar Council. 1986. 71 pps. Octavo. Soft cover. First edition. Illustrated. Important reference work. Fine copy (small stain on spine).
Bergan, Ronald & Anthony Hopkins. The Great Theatres of London. Photo available. London. Multimedia Books. 1990. Octavo. Hard cover. First edition. Illustrated in black, white and color. Foreword by Anthony Hopkins. Fine copy in fine dust jacket (in mylar).
Bergaust, Erik. Satellite! The First Step into the Last Frontier - The Full Facts About Man's Coming Exploration of Space. Photo available. Garden City. Hanover. 1956. Octavo. Hard cover. First edition. Illustrated. Fine copy in edge worn dust jacket (in mylar).
Berger, A. Understanding Climate Change. Geophysical Monograph 52. IUGG Volume 7. Photo available. Washington. American Geophysical Union. 1989. 4to. Hard cover. First edition. Illustrated. Fine copy.
Berger, Andrew. Hawaiian Birdlife. Photo available. Honolulu. The University Press of Hawaii. 1972. 4to. Hard cover. First edition. Illustrated in black, white and color. Important reference work. Fine copy in near fine (light shelf wear) dust jacket (in mylar).
Berger, Dan. Beyond the Grapes. An Inside Look at Napa Valley. Photo available. Wilmington. Atomium Books. 1991. 4to. Hard cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Berger, Dan. Beyond the Grapes. An Inside Look at Napa Valley. Photo available. Wilmington. Atomium Books. 1991. 256 pps. 4to. Hardcover. First edition. Illustrated in color and black & white. Photographs by Eric Sander. Fine copy in fine dust jacket (in mylar).

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Attorneys at Salinas Law Group represented tenants who were subjected to substandard living conditions. This case settled for $800,000. (Aburto v. Wong, San Francisco County Superior Court).
Attorneys at Salinas Law Group were part of the trial team formed to represent a group of more than 20 tenants who were subjected to substandard living conditions and wrongfully evicted from their homes. This case settled for more than $700,000.
Attorneys at Salinas Law Group represented six tenants in four rental units who were subjected to substandard living conditions and wrongfully evicted from their homes. This case settled for $700,000. (Gamez-Garcia v. Rosen, Alameda County Superior Court Case No. RG05-215454; Lopez v. Rosen, Alameda County Superior Court Case No. RG05-233767).
$585,000 - Settlement for low-wage workers who were not paid for all hours worked.
Attorneys at Salinas Law Group represented 29 individuals living in 15 units at a mobile home park alleging that the families and their children were subjected to a hostile living environment based on their race/national origin and familial status, due to unlawful verbal and other conduct by the landlord's resident managers. This case settled for $520,000. Ceja v. Zeitz, Contra Costa County Superior Court, Case No. MSC05-01097.
Attorneys at Salinas Law Group represented a tenant who was being evicted from her home. The jury returned a verdict in favor of the tenant finding that the landlord was discriminating based on race (among other things). Afterwards, an affirmative lawsuit on behalf of six of the units at the building, alleging racial discrimination, resulted in a settlement of $450,000.
Attorneys at Salinas Law Group represented three employees in a lawsuit alleging that their former employer failed to pay them all of their earned wages and overtime premiums. This case settled for $100,000. Morales v. Lin Empire Buffet, Inc. , Contra Costa County Superior Court, Case No. MSC06-02344.
Attorneys at Salinas Law Group represented 17 individuals living in 12 rental units who were subjected to substandard living conditions during the four-month replacement of the roofing at their complex. This case settled for approximately $250,000. (Shumavon v. Rush, Alameda County Superior Court Case No. RG06-277871).


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Does this look like a collapse?
In separate actions,1 three different plaintiffs, who are all represented by the same attorney, commenced individual lawsuits attempting to challenge the investigative findings, of the National Institute of Standards and Technology ("NIST"), as to how and why the World Trade Center buildings collapsed on 9/11. The focus of the NIST investigation was on the sequence of events "from the instance of aircraft impact to the initiation of collapse for each tower." Plaintiffs claim that a terrorist attack was not responsible for the destruction of the World Trade Center complex ("WTC"). According to plaintiffs, the evidence demonstrates that the destruction of the World Trade Center Towers was caused by a United States secret military "directed energy weapon."2 Plaintiffs' attorney argues that "the defendants knowingly participated in the fraud of furthering the false claim that two wide-body jetliners hit the World Trade Center on 9/11/01."3 (Reynolds Opp'n Mem. at 1).
1 The three related cases that are pending before this Court are: Wood v. Applied Research Associates, Inc., et al, 07 CV 3314 (GBD); Reynolds v. Science Applications Int'l, et ql, 07 CV 4612 (GBD) and Haas v. Gutierrez, et al, 07 CV 2623 (GBD).
2 Plaintiffs also claim that there is significant evidence that the cause of the destruction of World Trade Center building number 7 was a controlled demolition.
3 Reynolds argues that "[t]his case involves the fraud perpetrated by the jetliner crash hoax." (Reynolds Opp'n Mem. at 6).
Wood refers to "... the expressed myth of 9/11 that 19 Arabs did it with box cutters." (Wood Opp'n Mem. at 13). Haas contends that "World Trade Center building number 7 (WTC7) ... was not damaged in any way by any jetliner impact..." "There is evidence of a controlled demolition ... that NIST is overtly seeking to squelch ..." (Haas Opp'n Mem. at 14).
("WTC7").4 On October 16, 2005, NIST issued its "Final Report on the Collapses of the Twin Towers of the World Trade Center;" which report is referred to as "NCSTAR 1." NIST's investigation into the collapse of WTC7 is still proceeding.
("The authorities and restrictions applicable under this chapter ... shall apply to the activities of the National Institute of Standards and Technology in response to the attacks of September 11, 2001.").
5 Plaintiffs Wood and Reynolds sued the following twenty-seven defendants: Science Applications International Corp.; Applied Research Associates, Inc.; Boeing; NuStats; Computer Aided Engineering Associates, Inc.; DataSource, Inc.; GEOSTAATS, Inc.; Gilsanz Murray Steficek LLP; Hughes Associates, Inc.; Ajmal Abbasi; Eduardo Kausel; David Parks; David Sharp; Daniele Venezano; Josef Van Dyck; Kaspar William; Rolf Jensen & Associates, Inc.; Rosenwasser/Grossman Consulting Engineers, P.C.; Simpson Gumpertz & Heger, Inc.; S.K. Ghosh Associates, Inc.; Skidmore, Owings & Merrill, LLP; Teng & Associates, Inc.; Underwriters Laboratories, Inc.; Wiss, Janney, Elstner Associates, Inc.; Silverstein Properties; American Airlines and United Airlines.
Plaintiff Reynolds subsequently dismissed his action against Silverstein Properties, American Airlines and United Airlines.
moved to dismiss the lawsuits as being frivolous, and for lack of federal subject matter jurisdiction and failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(1) and (6), respectively. The motions to dismiss are granted and all three complaints are dismissed with prejudice.
automatically substituted for his predecessor, William A. Jeffrey); Dr. Shyam Sunder, NIST's Lead Investigator; Dr. Theresa McAllister, NIST's Research Structural Engineer; and Catherine Fletcher, Chief of NIST's Management and Organization Division. Haas also named as defendants "John Doe I-V, Contractors Employed by NIST," as well as three defendants, who were also sued by plaintiffs Wood and Reynolds, to wit, Silverstein Properties, Applied Research Associates, Inc., and Science Applications International Corp.. In plaintiff Haas' proposed second amended complaint, he only names the Secretary of Commerce and NIST officials as defendants.
7 Plaintiffs' lawsuits make no allegation with regard to the hijacking of United Airlines Flight 93, which crashed in a field just outside Shanksville, Pennsylvania, or the hijacking of American Airlines Flight 77, which was crashed into the Pentagon in Arlington, Virginia.
damage such as that of destroying the World Trade Center Twin Towers in less than 10 seconds each, as occurred on 9/11/01, down to and including imposition of a disabling stun on human beings for crowd control and/or other psy ops [psychological operations] purposes." (Wood Am. Compl. H 23; Reynolds Compl. ]f 22; Haas Am. Compl. ]f 25).
(7) knowingly makes, uses or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Government[.] 31 U.S.C. € 3729(a)(l-2), (7).
intentionally disseminating contradictory information to the public and concealing the existence of a controlled demolition event at WTC7.10 The aim of the Information Quality Act is to assure that the information publicly released by a federal agency is of the highest quality. It requires the dissemination of true and accurate information, and a mechanism for individuals, affected by that information, to seek and obtain a correction of false or inaccurate information. None of plaintiffs' asserted legal claims can withstand defendants' motions to dismiss.
2000, 114 Stat. 2763, 2763A-153, published at 44 U.S.C. € 3516, note. It further requires that each federal agency "establish administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency that does not comply with the guidelines issued" by the OMB. Id.
10Plaintiff Haas submitted a "Request for Correction" to NIST claiming that a statement appearing in a December 12, 2006 NIST document was contrary to a statement in the NCSTAR 1 report. Although both documents indicate that there was no "evidence" of a controlled demolition event, the NCSTAR 1 report further refers to the lack of "corroborating" evidence that the towers were brought down by controlled demolition. Haas argued to NIST that the phrase '"corroborating evidence,' by definition, indicates that there was some evidence of controlled demolition ..." (Haas Am. Compl. Ex. A, at 26). Unable to secure a forbearance agreement from NIST, Haas commenced the instant action seeking a preliminary and permanent injunction enjoining NIST from continuing its investigation until the outcome of his request for correction was known. NIST has since denied his application, and Haas now seeks leave to file a second amended complaint claiming NIST should be enjoined from continuing its technical investigation until: (1) valid information is dissemination to the public; and (2) a criminal investigation into the controlled demolition of WTC7 is initiated and the outcome thereto is known. (Haas Opp'n Mem. at 18; Haas Aff d Iffl 18-19).
information, unless the individual bringing the action is an "original source" of the information.11 To be an "original source" of publicly disclosed information, a plaintiff must have direct and independent knowledge of information on which the lawsuit's allegations are based, and have voluntarily provided such information to the Government prior to filing the action. See, € 3730(e)(4)(B); Rockwell Int'l Corp. v. United States, - - U.S. - -, 127 S.Ct. 1397, 1407 (March 27, 2007). To even attempt to assert this type of lawsuit, plaintiff must possess and be an original source of at least the substantive information publicly disclosed about the particular fraud. See, United States ex rel. Smith v. Yale Univ., 415 F.Supp.2d 58, 72 (D.Conn. 2006) (quoting United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v. Prudential Ins. Co., 944 F.2d 1149, 1160 (3d Cir. 1991)). A party lacks direct and independent knowledge "if a third party is 'the source of the core information' upon which the ... complaint is based." United States v. New York Med. Coll., 252 F.3d 118, 121(2d Cir. 2001) (quoting United States ex rel. Kreindler & Kreindler v. United Techs. Corp., 985 F.2d 1148, 1159 (2d Cir. 1990)).
No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administration or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. 31 U.S.C. € 3730 (e)(4)(A) (footnote omitted).
simply rely upon their own theoretical examination of information already within the public domain. Plaintiffs' attempted analysis of that information constitutes pure speculation that the NIST participants were involved in a cover-up to conceal the true cause for the towers' collapse. They merely disagree with NIST's investigative findings, and specifically wish to reject the basic factual premise that terrorist destroyed the Twin Towers using passenger-filled airplanes as missile-like weapons. Plaintiffs, understandably, offer nothing more than conjecture and supposition to support their claim that the towers were struck by high powered energy beams. Their personal hypothesis about what should be concluded from publicly disclosed information does not qualify either of them as an original source of information in order to sustain an individual FCA claim on behalf of the Government. See, Kreindler, 985 F.2d at 1159; see also, New York Med. Coll., 252 F.3d at 121-22. Federal jurisdiction over a private FCA action is not created simply by arguing that the review of publicly disclosed information spurs plaintiffs to advance a different theory. Such an argument, based solely on publicly available information, could no more support a federal lawsuit to advance an alternative theory regarding the assassination of President Kennedy, or whether men ever actually landed on the moon.
services of one of its employees, Kevin Ryan, who called attention to [the] incongruity of causal explanation." (Wood Am. Compl. ]f 39; Reynolds Compl. ]f 37). Prior to the commencement of the cases at bar, Kevin Ryan filed suit against UL claiming he was wrongfully discharged because he had sent an e-mail to NIST indicating that: UL had conducted WTC-related metallurgical testing; the official explanation for the destruction of the WTC was not supported by a scientific analysis of the evidence; and there was substantial evidence that all three buildings collapsed from explosive devices. (Ryan v. Underwriters Labs., Inc., No. 06-1770 (S.D.Ind. filed Nov. 16, 2006). Thus, the information at the heart of the Wood and Reynolds litigation "was publicly disclosed because it was available to anyone who wished to consult the [Ryan] court file." Kreindler, 985 F.2d at 1158.
of action for unjust enrichment, payment by mistake, recoupment of overpayment, and fraud.13 However, as plaintiffs' attorney acknowledges, the Congressional grant of private standing to sue in FCA cases does not extend to common law causes of action. See, United States ex rel. Phipps v. Comprehensive Cmty. Dev. Corp., 152 F.Supp.2d 443, 451-52 (S.D.N.Y. 2001); see also United States ex rel. Rockefeller v. Westinghouse Elec. Co., 274 F.Supp.2d 10, 14 (D.D.C. 2003), aff'd sub nom. Rockefeller ex rel. United States v. Washington TRU Solutions, LCC, 2004 WL 180264 (D.C.Cir. Jan. 21, 2004). Plaintiffs asserted these common law claims in a representative capacity on behalf of the United States Government. Neither plaintiffs claim to be personally aggrieved or damaged as a result of the defendants' alleged wrongdoing. All common law claims are, therefore, dismissed for lack of standing. Accordingly, plaintiffs Wood and Reynolds' actions are barred for lack of subject matter jurisdiction.
13 Plaintiff Wood asserted these common law causes of action in her original complaint.
In her amended complaint, she indicates that her action is being brought "under the common law or equitable theories of unjust enrichment, payment under mistake of fact, recoupment of overpayments and common law fraud." (Wood Am. Compl. ]f 1). Nevertheless, no basis for any common law claims are specifically pled in her amended complaint.
14 The implausabily of plaintiffs' theories warrants no further consideration by this Court beyond the insufficiency of the legal claims upon which plaintiffs attempt to advance those theories in their lawsuits.
"must create the possibility for a right to relief that is more than speculative."15 Spool v. World Child Int'l Adoption Agency, 520 F.3d 178, 183 (2d Cir. 2008). Although complaints generally "do[ ] not need detailed factual allegations, [ ] plaintiff[s'] obligation to provide the grounds of [their] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. - -, 127 S.Ct. 1955, 1964-65 (May 21, 2007) (internal citations, quotation marks and original brackets omitted). Plaintiffs' theories about the cause of the 9/11 disaster completely fail to state a cognizable claim for relief.
15 The sufficiency of the pleadings is determined by examination of the complaint, the exhibits attached thereto, and matters incorporated by reference therein. Other independent submissions made by the defendants, with regard to the jurisdictional challenge, were not considered in assessing the legal adequacy of the complaints.
F.Supp.2d 822, 833 (W.D.Mich. 2000), aff'd 24 Fed.Appx. 491 (6th Cir. 2001).
Plaintiffs have pled no factual allegations to support a reasonable inference that defendants knowingly sought payment from the government to which they were not entitled. Plaintiffs wish to reach the conclusion that no compensation was owing to defendants by relying on the other self-serving conclusion that the services they rendered were worthless. In plaintiffs' view, defendants would only be entitled to compensation if NIST had acknowledged plaintiffs' theory that directed energy weapons, and not a terrorist attack, was responsible for the destruction of the WTC. Seeking payment for services rendered to NIST is not unlawful simply because the plaintiffs themselves disagree with NIST's investigative findings. See generally, Mikes v. Straus, 274 F.3d 687, 703 (2d Cir. 2001) ("In a worthless services claim, the performance of the service is so deficient that for all practical purposes it is the equivalent of no performance at all."). Even purported errors based on flawed reasoning, mathematic calculations, or scientific judgments are not false for purposes of the FCA. See, Pfingston v. RonanEng'gCo., 284 F.3d 999, 1003 (9th Cir. 2002); Wang, 975 F.2d at 1421; United States ex rel. Taylor v. Gabelli, 345 F.Supp.2d 313, 329 & n.87 (S.D.N.Y. 2004).
States ex rel. Bahrani v. Conagra, Inc., 465 F.3d 1189, 1194-95 (10th Cir. 2006) (quoting S.Rep. No. 99-345, at 18, reprinted in 1986 U.S.C.C.A.N. 5266, 5283 (1986)). Plaintiffs cannot identify any existing financial obligation any of the defendants owed to the Government, nor can they identify any specific false record or statement that a defendant made to avoid such a purported obligation. The pleadings are therefore also insufficient to state a reverse false claims cause of action.
Twin Towers' collapse. (Id. at 36). Such general and conclusory pleadings fall far short of Rule 9(b)'s pleading standard.
Plaintiffs vaguely allege that, for a number of years, all defendants wrongfully sought payment for services performed in bad faith.16 They do not cite to a single identifiable record or billing submission that they claim to be false, or give a single example of when a purportedly false claim was presented for payment by a particular defendant at a specific time. Additionally, plaintiffs' general attribution, to the defendants, of the purported false statements published in the NCSTAR 1 report is untenable to support a particularized pleading of fraud. Defendants are not the authors of the report, and plaintiffs point to no specific factual assertion relied upon in the report that was allegedly falsely provided by defendants to NIST.
16Both the Wood and Reynolds complaints allege, in pertinent part: The various cost reports, requisitions, billing statements and/or requests for reimbursements submitted by the defendant NIST participants ... all contain false claims for reimbursement and made false statements ... because the true nature and intent was to mislead NIST and to cause a false causal statement concerning what caused the destruction for the WTC complex to occur. *** All such submitted cost reports, invoices, reimbursement claims and the like constitute false claims under the False Claims Act because the defendants knew ... that the actual cause of the destruction of the WTC complex was the result of the use of directed energy weapons. (Wood Am. Compl. Iffl 56, 59-60; Reynolds Compl. Iffl 54, 57-58).
every invoice fraudulent because of an underlying conspiracy to submit fraudulent claims fails to satisfy Rule 9(b)); United States ex rel. Aflatooni v. Kitsap Physicians Serv., 314 F.3d 995, 1002 (9th Cir. 2002) ("The False Claims Act [ ] focuses on the submission of a claim, and does not concern itself with whether or to what extent there exists a menacing underlying scheme.").
Plaintiff Haas' complaint, for violations of the Administrative Procedure Act, 5 U.S.C. € 551 et seq, is also insufficiently pled.17 His claim is premised on NIST's failure to suspend its investigation while his request, seeking a change of information, was under consideration. Because that request has since been denied by NIST, his causes of action, relating to the existence of a pending request, no longer even presents a live controversy for which relief would be available, and is therefore moot. See, White River Amusement Pub, Inc. v. Town of Hartford, 481 F.3d 163, 167-68 (2d Cir. 2007).
17 The complaints also state that Haas is suing, under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), for violations of his Fifth Amendment Due Process rights. The complaints, however, fail to contain any factual allegations to support such a claim, and no constitutional cause of action is specifically pled.
(Haas Opp'n Mem. at 18). Plaintiffs proposed alternative legal theory is unavailing. The Information Quality Act does not create any legal rights, enforceable by unrelated third parties, to information or its correctness. See, Salt Inst, v. Leavitt, 440 F.3d 156, 159 (4th Cir. 2006); Ams. for Safe Access v. United States Dep't of Health & Human Servs., 2007 WL 2141289, at *4 (N.D.Cal. July 24, 2007); In re Operation of the Missouri River Sys. Litig., 363 F.Supp.2d 1145, 1174 (D.Minn. 2004), aff'd in part and vacated in part on other grounds 421 F.3d 618 (8th Cir. 2005). Neither the Information Quality Act, nor the Administrative Procedure Act, create a private right of action upon which plaintiff may independently pursue this litigation.
argues that NIST's "technical investigation [should be] halted until the outcome of the criminal investigation is determined." (Id. \ 18).
19The non-governmental defendants' motions for sanctions, pursuant to 31 U.S.C. € 3730(d)(4) and Fed.R.Civ.P. 11, are denied. A belief, no matter how incredible, that the WTC was destroyed using secret exotic weaponry, does not give rise to even a colorable claim for relief. All plaintiffs, as well as the attorney for the plaintiffs here, are hereby warned that filing further successive untenable actions may result in the imposition of monetary or other serious sanctions. See, Catanzano v. Wallenstein, 142 Fed.Appx. 540 (2d Cir. 2005); Iwachiw v. New York City Bd. of Elections, 126 Fed.Appx. 27, 29-30 (2d Cir. 2005); Pentagen Techs. Int'l Ltd. v. United States, 172 F.Supp.2d 464 (S.D.N.Y. 2001), aff'd 63 Fed.Appx. 548 (2d Cir. 2003).
The defendants' motions to dismiss, filed in each of these three eases, are granted. All three complaints are dismissed with prejudice.2'1 The Wood v. Applied Research Associates. Inc.. et ai. 07 CV 3314 (GBD); Reynolds v. Science Applications Int'l.et a!.. 07 CV 4612 (GBD). and Haas v. Gutierrez, et al. 07 CV 2623(GBD) actions are hereby closed.
20 Dismissal is appropriate as to all defendants, including those who have yet to be served. See, Eisenstein. 4 Fed.Appx. at 26 n.2 ((/noting Lconhard v. United States. 633 F.2d 599. 608 (2d Cir. 1980)).
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