Did the Second Circuit lie about equal access in Texas Gulf Sulphur?
I think so. In working up an article for a symposium on the 50th anniversary of the seminal insider trading decision in SEC v. Texas Gulf Sulphur Co., 401 F.2d 833 (2d Cir.), cert. denied, 394 U.S. 976 (1968), I've found something rather interesting.
The TGS opinion declares that Rule 10b-5 “is based in policy on the justifiable expectation of the securities marketplace that all investors trading on impersonal exchanges have relatively equal access to material information.” In support of that proposition, the court did not cite the text of the statute, which is hardly surprising because Securities Exchange Act § 10(b) nowhere mentions insider trading. Likewise, the court failed to cite any legislative history, which also is not surprising, because there simply is no legislative history that supports the court’s purported policy. Instead, to the extent Congress in 1934 addressed insider trading, it did so via the disclosure and short swing profit provisions of Exchange Act § 16.
The second article upon which the court relied was written by distinguished practitioner Arthur Fleischer, albeit when he was just a mid-level associate at Fried, Frank. In the pages identified by the Second Circuit’s pinpoint citation, there is but a single relevant statement; to wit, “As has been seen, an essential function of the Exchange Act was to create markets free from manipulation and from trading based on undisclosed corporate information.” The supporting footnote refers the reader to footnotes 21-26 and the accompanying text. But that passage simply asserts, without relevant reference to the legislative history, that Sections 10(b) and 16 were broadly directed at preventing abusive trading practices. Nowhere in the passage does Fleischer identify any relevant evidence of a Congressional intent that investors have equal access to information. Indeed, neither equal nor equality are used anywhere in the entire article.
The house TGS built was constructed on sand. The Second Circuit offered no credible evidence of a Congressional intent to ensure that investors had equal access to information. Put bluntly, it was an act of judicial fiat grounded on misrepresentations of authorities of dubious value.
Here's the really odd thing: In multiple searches on Westlaw, I can't find any prior discussion of this point. Did nobody ever bother going and reading the two articles?
 TGS, 401 F.2d at 848.
 See United States v. McGee, 763 F.3d 304, 313 (3d Cir. 2014) (observing that “§ 10(b) does not mention insider trading at all”).
 See Richard J. Morgan, The Insider Trading Rules After Chiarella: Are They Consistent with Statutory Policy?, 33 Hastings L.J. 1407, 1409 (1982) (“Congress failed to provide any legislative history to guide the section's application to insider trading transactions.”).
 See Michael P. Dooley, Enforcement of Insider Trading Restrictions, 66 Va. L. Rev. 1, 56-57 (1980) (“The conventional wisdom is that Congress ... expressed its concern with insiders' informational advantage by enacting section 16.”).
 James Farmer et al., Insider Trading in Stocks, 21 Bus. Law. 1009, 1010 (1966).
 Arthur Fleischer, Securities Trading and Corporation Information Practices: The Implications of the Texas Gulf Sulphur Proceeding, 51 Va. L. Rev. 1271, 1278-80 (1965).
Steve asks if CEO Tony Treadwell has violated Rule 10b-5 by sharing confidential information about a potential merger in the course of seeing his psychologist for therapy.
Steve asks if CEO Tony Treadwell has violated Rule 10b-5 by sharing confidential information about a potential merger in the course of seeing his psychologist for therapy. Salman does not tell us much about the outer limits of the personal benefit standard, other than to reaffirm what Dirks told us: a gift of information to a relative or friend for trading meets the standard. Steve’s hypothetical shrink, however, is neither a friend or relative, so we are relegated to the first prong of Dirks personal benefit standard: “whether the insider receives a direct or indirect personal benefit from the disclosure, such as a pecuniary gain or a reputational benefit that will translate into future earnings.” Dirks v. SEC, 463 U.S. 646, 663 (1983).
Mental health is a personal benefit, I suppose, but it is well to remember that the personal benefit standard is simply refining the inquiry of whether the insider has breached a duty by making the disclosure, i.e., was the disclosure self-dealing. Dirks tells us the standard for liability under Rule 10b-5 is “whether the insider’s purpose in making a particular disclosure is fraudulent.” Id. The purpose of the disclosure by Steve’s stressed-out CEO is not to enrich the CEO, as Dirks requires, but to maintain his mental state. This is a personal purpose, as Steve notes, but it hardly constitutes a fraudulent purpose. A fraudulent purpose, within the meaning of Dirks, requires behavior that would be recognizable as self-dealing. Would any board of directors think that Treadwell’s disclosure was a form of stealing from the corporate till? Formulating Steve’s question this way, I am confident that Justice Powell would say no, and that would be the end of the inquiry from his perspective.
Salman does not change that answer, in my view. The only doctrinal news of note from Salman is the Court’s rejection of the Government’s “noncorporate purpose” standard. The Government’s standard might well have reached Treadwell’s hypothetical disclosure, which underscores the Court’s common sense in rejecting “noncorporate purpose” as the measure of a personal benefit. Absent an explicit broad-ranging prohibition enacted by Congress, what counts as fraud under Rule 10b-5 has to be defined by traditional categories of breach of duty, which give at least some guidance in finding the line between permissible and criminal behavior.
Steve’s hypothetical is excellent in testing the outer limits of the personal benefit test, which was recently at issue in Salman v. US. Steve asks the question: Does CEO Treadwell’s disclosure of the confidential information about the merger to his psychologist constitute an illegal tip under SEC Rule 10b-5? My opinion is no, unless the purpose of Treadwell’s disclosure was to impart a trading advantage to his psychologist. Based on the described facts, it seems that Treadwell disclosed the information without a purpose to impart a trading advantage. Most likely, he did so inadvertently: he could have just said that “an important transaction” was in the works. If he did so inadvertently, he breached the duty of care, but we are reminded by SEC v. Dirks that breaches of the duty of care do not fall within the ambit of the insider trading prohibition.
Now, one might object that I am introducing another (unnecessary) element into the tipping analysis or confusing “purpose” with “scienter.” Maybe so, but I strongly believe that knowing the “purpose” of the disclosure, which is not always easy to do from an evidentiary standpoint, is essential to ascertaining whether the disclosure is or is not improper. For example, to prosecute the crime of public bribery, the prosecution must show the donor’s intent to influence the donee in the exercise of his official discretion. That is, more or less, a “purpose” element.
Of course, there will be evidentiary difficulties. Bill Klein’s first variant of the hypothetical suggests that Treadwell may have a purpose to impart a trading advantage. The facts of the second variant, however, make Treadwell look more innocent.
Your hypothetical nicely demonstrates a potential problem with defining “personal benefit” to include non-monetary benefits. I would agree that it’s easiest to show a breach of fiduciary duty when the personal benefit is monetary. When someone receives money or something close to it in return for inside information, there will almost always be a strong case that there is a breach of fiduciary duty. It may also be the case, though, that passing on a non-monetary benefit could also look like such a breach. Consider a CEO who passes on inside information in hopes of wooing a potential love interest who trades on the information. The CEO does not receive anything monetary, but it seems like he is acting in a way at odds with his fiduciary duties with the shareholders.
In my view, your hypothetical demonstrates that we need something more to assess whether the receipt of personal benefit triggers a breach of fiduciary duty. One thought might be that we could also ask whether the receipt of a personal benefit reflects selfish behavior that is against the interests of the shareholders. Though you are careful to note that in your hypothetical part of the CEO’s motivation is personal, I would argue that the situation you describe would arguably not qualify as selfish behavior. The CEO is just trying to relieve his stress so he can work effectively on behalf of the shareholders. He does receive a personal benefit, but I’m not so sure that this benefit is substantially at odds with the interests of the shareholders. Thus, I think there’s an argument that the CEO would not be a tipper and that the psychologist would not be a tippee, at least under the classical theory of liability.
[S]ome tippees must assume an insider's duty to the shareholders . . . because it has been made available to them improperly. And, for Rule 10b-5 purposes, the insider's disclosure is improper only where it would violate his Cady, Roberts duty. Thus, a tippee assumes a fiduciary duty to the shareholders of a corporation not to trade on material nonpublic information only when the insider has breached his fiduciary duty to the shareholders by disclosing the information to the tippee and the tippee knows or should know that there has been a breach.
463 U.S. 646, 660 (1983) (footnotes omitted). We care about that breach because the breach creates the deception necessary to violate Section 10(b) (which prohibits manipulation or deception in connection with the purchase or sale of a security) and Rule 10b-5 as the doctrinal roots of U.S. Insider trading law applicable to the problem posed by the hypothetical.
Starting at this place, I could just duck the precise question asked and merely assess whether the sharing of the information by the CEO to the psychologist is improper (because of personal benefit or otherwise—assuming the personal benefit test is just one way to determine that). Is it inconsistent with the CEO’s duty to disclose or abstain? That would be the case if the CEO shared the information in self-interest rather than for the benefit of the firm or its shareholders, the beneficiaries of the CEO’s duty to disclose or abstain. I might want more facts to be able to assess that matter, since the facts posed in the original hypothetical indicate no assessment by the CEO of the interests of those constituents.
When one of the constituents of an organizational client communicates with the organization's lawyer in that person's organizational capacity, the communication is protected by Rule 1.6. . . . This does not mean, however, that constituents of an organizational client are the clients of the lawyer. The lawyer may not disclose to such constituents information relating to the representation except for disclosures explicitly or impliedly authorized by the organizational client in order to carry out the representation or as otherwise permitted by Rule 1.6.
Again, I continue to think about all this and find the hypothetical and its focus on the tipper quite inviting . . . .
Steve describes a psychiatrist who trades after learning about a merger from one of his patients, raising the question, “Does Treadwell’s conduct constitute an illegal tip under SEC Rule 10b-5?” We can ask the same question of the psychologist. Steve’s hypothetical is meant to generate discussion, and the possibility for extended discussion is meant to demonstrate just how much Salmon v. US left unanswered.
Unanswered questions are not unusual in insider trading law, and securities litigation generally, but Steve’s question rings out because of how close we got to clarity.
The government argued that the Dirks personal benefit test is met “whenever the tipper discloses confidential trading information for a noncorporate purpose.” Under this permutation, the defendants would have faced long odds. The disclosure was not, say, to obtain strategic or legal advice vital to the merger; rather, the CEO sought only psychic relief. Perhaps a company benefits from a de-stressed CEO, but if that counts passes muster as a corporate purpose, a great many practices would have to be reevaluated.
Salman and several amici asked for clarity, too, but with the opposite polarity. In United States v. Newman, Salman’s counterpart in circuit-splitting, the Second Circuit Court of Appeals held that recipients of information can lawfully trade unless the tip was shared as part of an “exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature.” This requirement would clearly have helped our defendants. Among the few things I remember from 1L tort class is the notion that ordinary occupational stress is rarely a compensable harm, suggesting that its relief would not amount to “objective . . . pecuniary” benefit to the CEO-source.
However, the Court’s decision this month largely overruled Newman, restoring the status quo ante as to quid pro quo. Likewise, the Court declined the government’s invitation consolidate a tougher standard. By refusing both invitations to clarity, the Court again leaves us imagine increasingly puzzling variations on the tipping theme.
The psychologist almost certainly ran afoul the misappropriation theory, by betraying her confidential relationship with the CEO.
If we decide that the CEO’s disclosure didn’t violate a duty to his company, then there is a risk that this disclosure violated Reg FD, which prohibits senior officials of an issuer from sharing information with one shareholder before others.. Trading on the information would then expose the psychiatrist to civil liability.
If this merger was going to involve a tender offer, both defendants may have violated Rule 14e-3, which sets up especially pro-prosecutor rules in that special context.
So the only mystery is whether the government can nail them on the classical theory too. Is that a mystery worth solving? Well, it is a mystery with real consequences because of the way that various elements of insider trading law hang together.
For example, our resolution of the personal benefit question bears directly on the applicable standard in “Possession vs. Use” Debate. Must a trader use proscribed information to plan her trades, or is it enough that she traded (for whatever reason), after having come into possession of such information? Professor Donna Nagy has persuasively argued that the pro-government “use” standard is far more appropriate to the classical theory than the misappropriation theory.
Thus, if the psychologist avoids the classical theory pursuant to Salman, he can argue – successfully or unsuccessfully, as the case may be – that he had long planned to trade and that this information did not influence his conduct. That argument is off the table if we find a personal benefit to the CEO.
Mike Guttentag calls Salman "a Hollow Win for Prosecutors"
The Salman opinion is, however, most notable for how studiously the Court avoids addressing issues related to insider trading law more generally. There are only two footnotes in the opinion, and both are dedicated to clarifying the extent to which it does not address other related topics. Similarly, the opinion uses one paragraph to summarize the Government’s argument that the test for tipper liability should be whether a tip was made for a “noncorporate purpose,” without the additional requirement that the tipper receive a personal benefit. The rest of the opinion ignores the Government’s proposal without explanation.
Another example of this minimalist approach is the Court’s explanation of why it chooses to continue to rely on the Dirks personal benefit test to determine whether there was wrongdoing by the tipper. What little explanation is provided is problematic. The justices cite Dirks for the proposition that a prohibition against insider trading needs to include tipping, “because giving a gift of trading information is the same thing as trading by the tipper followed by a gift of the proceeds.” But this rationale suggests that any gift of material nonpublic information should trigger insider trading liability, and Dirks prohibits only gifts to “a trading relative or friend.” That seems a significant gap in the logic of Dirks, as some commentators have noted. Yet there is no mention of this disconnect in the Salman opinion.
My post US Supreme Court’s ‘Salman v. US’ Decision Answers One Insider-Trading Question, Leaves Others Unresolved is now live on the WLF's Legal Pulse blog.
Beyond standing as a reaffirmation of Dirks with minor clarification, Salman also stands for the proposition that if securities regulation is to evolve, such evolution will have to come from Congressional action, rather than from the Court.
The Supreme Court, in an opinion written by Justice Samuel Alito, held that a jury could infer that the tipper personally benefited from making a gift of confidential information to a trading relative. The Court rejected the Second Circuit’s suggestion in its 2014 opinion in U.S. v. Newman that the tipper must also have received something of a “pecuniary or similarly valuable nature.” The Supreme Court’s December 6, 2016 opinion in the Salman case can be found here.
#SCOTUS Salman opinion: To extent 2nd Circ in Newman held tipper must receive something of “pecuniary nature," rule inconsistent w/ Dirks.
After Oral Argument in “Salman v. US,” Will Supreme Court Meaningfully Limit What Counts as Insider Trading?


After almost a three year battle, Polish cinematographers/ directors of photography are starting a New Millennium as the co-authors of audiovisual creations recognized by Law!
The amendments to the Copyright Act were made by Polish Congress due to European Union Law in nineteen ninety-nine (1999) and in year two thousand (2000) and it has been in force since July 22nd, 2000.
" Art.69. The co-authors of the audiovisual work are those, who had contributed to its creation, and in particular: the film director, the director of photography, the author of the screenplay, the composer of the music and the author of its lyrics."
"Art. 70.1. The producer of the audiovisual work owns all commercial rights to operate those creations used in the audiovisual work as a whole, based on the Creation of Composition Act and on the Use of Existing Composition Act.
4) the appropriate payment relevant to all the copies made for personal use.
3. One using the audiovisual work must remit a payment, which is mentioned in passage 2, to the collecting society or a similar copyright agency.
4. The appropriate payment for using Polish audiovisual work abroad or using foreign audiovisual work in Poland might be arrived at a global figure of money."
The battle for including these several sentences that have changed the status of the director of photography in Poland, took me three years.
Since 1997 we have been collecting the signatures under the declaration supporting our efforts.
The very text of declaration was almost identical to the one made by colleagues from the AIC and the one that was signed for them by many members of the PSC.
A film as a work composed of IMAGES and SOUNDS, MUSIC and WORDS is created only thanks to the creative effort of many people with individual talents acting together in accordance with the views of the director. They are the authors working within their own field, with their own means of expression, who meet one another in the joint production, a film - an audio-visual work.
The art of film image / film photography - cinematography / in the literal translation of the word means writing with light in movement, and defines image in not just the visual sense. Film image, thanks to its unique and peculiar 'calligraphy', sinks deeply into the structure of cinematic work, with which it is inseparably connected. It always re-mains, however, a marked element created by a separate gift.
I see the fundamental importance of the legal definition of the responsibility for the artistic and technical quality of a film print in its many varieties.
I see the necessity of defense of not only the quality of audio-visual creation in all its glory, but first and foremost of the unswerving right of the audience to see the work in the perfect form, in the form imposed upon it according to the intentions of all its creators.
Is it not ludicrous that director, authors of the literary work and music scores are the only film creators recognized by law, whereas Film from its very inception uses IMAGES as its language?
As a consequence I believe that Director of Photography /Cinematographer/ should be recognized by law as the COAUTHOR OF FILM on the same level as the other Authors are recognized by law: Director, Author of Music, Author of Screenplay or Author of Dialogue.
Beside this kind of support, I have asked a couple of leading film directors, screenplay writers and composers for written support, which was due to the expertise about the creative character of our work and the constructive contribution of every cinematographer to the audiovisual work. Such letters were written, for example, by: Andrzej Wajda, Jerzy Hoffman, Krzysztof Piesiewicz and Michal Lorenc.
"Directors of Photography and the Issue of Authorship of Audiovisual Works. An overview of the arguments in favor prepared for the members of IMAGO by Jost Vacano, BVK/ASC".
This wonderful study has been a great help to me on a number of occasions, especially in supporting our arguments to achieve our rights.
Here are some samples of the letters to the Congress and the Senate. Maybe they could help in later battles to our rights.
the director of photography, as a co-author of the audiovisual work, must not be left out of The Copyright Act – the law regulations can not be incompatible with the facts.
There is no reason for the Copyright Act to be written at the dictation of radical advocate of anachronism, which does not show the facts of the case.
The director of photography is undoubtedly an author the film work. That is why without his/her contribution - as Andrzej Wajda says - we would only be able to make just one thing in place of a film: a radio play.
Although it is clear what individual, creative and artistic meaning to a film and a whole culture of the 20th century has the contribution made by cinematographers, we would like to emphasize that visual aspect of every film composition is due to their talent, artistic sensitivity, comprehensive studies/knowledge in the fields of art and self experience and as an intellectual wealth it is protected in a civilized world.
That is why we demand the director of photography ‘expresis verbis’ to be included in the Copyright Act as a co-author of the audiovisual work, to have just the same status and the same protection as others co-authors of any composition named in this document.
We are absolutely certain, that to be honest, if you look into the very merit of this case by such a competent body of Congress it will result in adding to the Copyright Act, this suitable legacy. Because of the significant value of the Copyright Act for the people of film, Mr. Senator Kazimierz Kutz had assured us about his willingness to work together with The Commission on a scale and range declared as suitable.
- text of the supporting declaration with a list of above 300 signatures."
" Representing the opinion of all the generations of cinematographers – the authors of film photography and of all the members of Polish Society of Cinematographers being creatively active in a field of Polish cinematography, we are applying to You Madam and also to the Members of The Commission in case of the wrong-doing law regulation enclosed in a new Copyright Act, which has been just passed in Congress.
Although in the art.69 we are named as the co-authors of the audiovisual compositions, but next articles, especially art.70, which carries the consequences of the previews article, take away immediately our rights that are given to other co-authors. Everyone, except for cinematographers.
Leaving out the director of photography in art.70 of a new Copyright Act and not recognizing his/her copyrights – also the material ones – becomes an important gap that drives to misinterpretation of the real process of making audiovisual work. We are hoping that it has been just another "accident at work", and not another attempt to take away our rights.
Such regulation is not only incompatible with the definition of film as an audiovisual work enclosed in the Cinematography Act, which not only gives higher esteem to the artistic values, which are brought to us by image, but also common sense.
Our contribution to the audiovisual work is plain to see, and leading representatives of Polish cinematography emphasizes it: Andrzej Wajda, Jerzy Hoffman, Krzysztof Piesiewicz and Michal Lorenc. With Your permission we are enrolling their letters as a supplement."
That second letter was written as an intervention after in a text of the amendment passed by Senate in art.70, somehow a word "cameraman" had "disappeared". In practice it meant that we were given the glory, but not the fees. Only after our strong and loud intervention, supported by the Senators, who were film directors, gave back the art.70 its right tone.
 This translation from Polish into English is not officially confirmed by a lawyer.


text:
Beer, J., W. Mende, R. Stellmacher, The role of the sun in climate forcing, Quaternary Science Reviews 19, pp. 403-415, 2000.
Bernasconi, P. N., Foukal, P., Rust, D. M., and LaBonte, B. J., Finding the sources of irradiance variation at sunspot minimum, Memorie della Società Astronomica Italiana, Vol. 76, p. 907, 2005.
Bond, G., W. Showers, M. Cheseby, R. Lotti, P. Almasi, P. deMenocal, P. Priore, H. Cullen, I. Hajdas, G. Bonani, A Pervasive Millennial-Scale Cycle in North Atlantic Holocene and Glacial Climates, Science, Vol. 278, pp. 1257-1266, 1997.
Bond, G., B. Kromer, J. Beer, R. Muscheler, M Evans, W. Showers, S. Hoffman, R. Lotti-Bond,I. Hajdas, G. Bonani, Persistent Solar Influence on North Atlantic Climate During the Holocene, Science, Vol. 294, pp. 2130 – 2136, 2001.
Chapman, G. A., A. D. Herzog, J. K. Lawrence, S. R. Walton, H. S. Hudson, and B. M. Fisher, Precise ground-based solar photometry and variations of total irradiance, JGR 97, 8211-8219, 1992.
Crommelynck, D. and S. Dewitte, Solar constant temporal and frequency characteristics, Sol. Phys.173, 177-191, 1997.
Crowley, T.J., Causes of Climate Change Over the Past 1000 Years, J Vol. 289, pp 270-276, 2000.
Crowley, T.J., Cycles, Cycles Everywhere, Science, Vol. 295, pp. 1473-1474, 2002.
Dikpati, M, de Toma, G., Gilman, P., Predicting the strength of solar cycle 24 using a flux-transport dynamo-based tool, GEOPHYSICAL RESEARCH LETTERS, VOL. 33, 2006.
Douglass, D.H., B.D. Clader, Climate sensitivity of the Earth to solar irradiance, GRL, Vol. 29, No. 16, 2002.
Earth Science Enterprise Strategy, National Aeronautics and NASA Headquarters Washington, DC 20546 http://www.nasa.gov, 2003.
Eddy, J.A., Samuel P. Langley (1834-1906), Journal for the History of Astronomy, 21, 111-120, 1990.
Eddy, J. A., The Maunder Minimum, Science, v.192, pp. 1189-1202, 1976.
Eddy, Jack A. (1977). "The Case of the Missing Sunspots." Scientific American, May, pp. 80-92.
Eddy, Jack A. (1977). "Climate and the Changing Sun." Climatic Change 1: 173-90.
Eddy, Jack A. (1977). "Historical Evidence for the Existence of the Solar Cycle." In The Solar Output and Its Variation, edited by Oran R. White, pp. 51-71. Boulder, CO: Colorado Associated University Press.
Foukal, P. A., and J. L. Lean, Magnetic modulation of solar luminosity by photospheric activity, Astrophys. J., 328, 347– 357, 1988.
Foukal, P.A., Lean, J.L., An empirical model of total solar irradiance variation between 1874 and 1988, Science, v. 247. pp. 556-558, 1990.
Fröhlich, C., Crommelynck, D., Wehrli, C., Anklin, M., Dewitte, S., Fichot, A., Finsterle, W., Jiménez, A., Chevalier, A. and Roth, H. J.; In-Flight Performances of VIRGO Solar Irradiance Instruments on SOHO, Sol. Phys. 175, pp. 267-286, 1997.
Frohlich C., J. Lean, The Sun's total irradiance: cycles and trends in the past two decades and associated climate change uncertainties, JGRL 25, pp. 4377-4380, 1998.
Frohlich, C. and W. Finsterle, VIRGO radiometry and total solar irradiance 1996-2000 revised, Recent Insights into the Physics of the Sun and Heliosphere, Ed. P. Brekke, B. Fleck and J. Gurman, ASP Conference Series, IAU Symposium, Vol. 20.
Frohlich, C., Comparison of the PMOD, ACRIM and IRMB Composite Total Solar irradiance time series, American Geophysical Union, Fall Meeting 2005.
Fröhlich, C, Solar Irradiance Variability since 1978, Space Science Reviews 00: pp. 1–13, 2006.
Hansen, J., et al., Efficacy of climate forcings, Journal of Geophysical Research, Vol. 110, 2005.
Hays, J., Imbrie, J., and Shackleton, N., Variations in the Earth's Orbit: Pacemaker of the Ice Ages: Science, v194, p1121 1976.
Hickey, J.R., Stowe, L.L., Jacobowitz, H., Pellegrino, P. ,Maschoff, R.H., House, F., Vonder Haar, T.H., Initial determinations from Nimbus 7 cavity radiometer measurements, Science, _208_, p. 281, 1980.
Hoyt, D.V, K.H. Schatten, E. Nesmes-Ribes, The one hundredth year of Rudolf Wolf’s Death: Do we have the correct reconstruction of solar activity?, JGRL 21, pp. 2067-2070, 1994.
Hoyt, D. V., Kyle, H. L., A Hickey, J. R., A Maschhoff, R. H., The Nimbus 7 solar total irradiance: A new algorithm for its derivation, JGR, V. 97, pp. 148-227, 1992.
Hu, F.S., Kaufman, D., Yoneji, S., Nelson, D., Shemesh, A., Huang, Y., Tian, J., Bond, G., Clegg, B., Brown, T., Cyclic Variation and Solar Forcing of Holocene Climate in the Alaskan Subarctic, Science, v. 301, pp.1890-1893, 2003.
Intergovernmental Panel on Climate Change, Climate Change 2001: The Scientific Basis, 2001.
Kopp, G., Lawrence, G., and Rottman, G., Total Irradiance Monitor Design and On-Orbit Functionality, SPIE Proc. 5171-4, 2003.
Kosovichev, A., Variability of the solar interior and irradiance, American Geophysical Union, Fall Meeting 2005.
Kyle, H.L., et. Al., Nimbus7 Earth Radiation Budget Calibration History Part I: The solar channels, NASA Reference Publication 1316, 1993.
Kyle, H.L., D.V. Hoyt, J.R. Hickey, A review of the Nimbus-7 ERB solar dataset, Solar Phys, 152, pp. 1-8, 1994.
Lawrence, G.M., Kopp, G., Rottman, G., Harder, J., Woods, T., and Loui, H., "Calibration of the Total Irradiance Monitor," Metrologia 40, 2003, S78-S80.
Lean, J., Beer, J. & Bradley, R. S., Reconstruction of solar irradiance since 1610: Implications for climate change, Geophys. Res. Lett. 22, 3195-3198, 1995.
Lee III, R.B., ET. Al., Long-term total solar irradiance variability during sunspot cycle 22, JGR, v. 100, pp 1667-1675, 1995.
Lindsay, Rebecca, Under a Variable Sun, Earth Observatory, NASA, http://earthobservatory.nasa.gov/Study/VariableSun/variable.html, August 2003.
Livingston, W.C., Wallace, L., White, O.R., Spectrum Line Intensity as a Surrogate for Solar Irradiance Variations, Science, Vol. 240, pp. 1765-1767, 1988.
Livingston, W.C. and Avrett, E.H., Spectroscopic increase of the flux from the solar temperature minimum region between the minimum-activity epochs 1984-87 and 1995-98, EOS, AGU 2003 Fall Meeting, Vol. 84, invited talk, 2003.
Lockwood, M., R. Stamper, Long term drift of the coronal source magnetic flux and the total solar irradiance, JGRL, Vol. 26, No. 16, pp 2461-2464, 1999.
Martin, J.E., Fox, N.P., and Keys, P.J., A cryogenic radiometer of absolute radiometric measurements, Metrologia 21, 147, 1985.
Moberg, A., et al. (2005), Highly variable Northern Hemisphere temperatures reconstructed from low- and high-resolution proxy data, Nature, 433, 613– 617.
Morris, K. L., Total Solar Irradiance Data Available for Studying Trends, American Geophysical Union, Fall Meeting 2005.
Pap, J, Willson, R.C., Frohlich, C., Donnely, R.D., Puga, L, Long-term variations in total solar irradiance, Solar Physics 152, 13-21, 1994.
Pap, J, Mcintosh, P., A Critical Review of Measurements and Models of Composite Total Solar Irradiance American Geophysical Union, Spring Meeting (Joint Assembly) 2005.
Quinn, T.J., J.E. Martin, A radiometric determination of the Stefan-Boltzmann constant and thermodynamic temperatures between -408° C and +1008 C," Phil. Trans. Roy. Soc. London, A316, 85, 1985.
Rice, J., Summary Of The NASA/NIST Total Solar Irradiance Uncertainty Workshop Day 3: Laboratory Intercomparisons, NASA-sponsored NIST workshop on the current status of uncertainties in the Total Solar Irradiance (TSI), July 18-20, 2005.
Scafetta, N., West, B. J., Estimate solar contribution to the global surface warming using the ACRIM TSI satellite composite, Geophys. Res. Lett., 32(24), 2005.
Scafetta, N., West, B. J., Phenomenological solar signature in 400 years of reconstructed Northern Hemisphere temperature record since 1600, Geophys. Res. Lett., V. 112, 2006.
Scafetta, N., A Critical Review of Models of Composite Total Solar Irradiance, American Geophysical Union, Spring Meeting (Joint Assembly) 2005.
ACRIMSAT/ACRIM3 radiometry (Total Solar Irradiance), Poster, American Astronomical Society, January, 2005, San Diego, California.
Shindell, D.T., G. A. Schmidt, M. E. Mann, D. Rind, A. Waple, Solar Forcing of Regional Climate Change During the Maunder Minimum, Science, V. 294, pp. 2149-2152, 2001.
Sofia, S., Variations of Total Solar Irradiance Produced by Structural Changes of the Solar Interior, EOS, Vol. 85, No. 22, pp. 217-224, 2004.
Solanki, S.K., Fligge, M., Solar irradiance since 874 revisited, Geophys. Res. Lett., vol. 25, pp. 341-344, 1998.
Solanki, S.K., Fligge, M., A reconstruction of total solar irradiance since 1700, Geophys. Res. Lett., vol. 26, pp. 2465-2468, 1999.
Solar Influences on Global Change, National Research Council, National Academy Press, Washington, D.C., p. 36, 1994.
Willson, R.C., The active cavity radiometric scale, the international pyrheliometric scale and the solar constant, J. Geoph. Res., 76, p.4325, 1971.
Willson, R.C., Active cavity radiometer type IV, J. Applied Optics, 18, p.179, 1979.
Willson, R.C., S. Gulkis, M Janssen, H.S. Hudson and G.A. Chapman, Observations of Solar Irradiance Variability, Science, v. 211, pp. 700-702, 1981.
Willson, R.C., H.S. Hudson, C. Frohlich and R.W. Brusa, Long-term downward trend in total solar irradiance, Science, v. 234, pp. 1114-1117, 1986.
Willson, R.C., Hudson, H.S., the Sun's luminosity over a complete solar cycle, Nature, v. 351, pp. 42-44, 1991.
Willson, R.C., "Irradiance Observations of SMM, Spacelab 1, UARS and ATLAS Experiments," in The Sun as a Variable Star, IAU Col. 143 proc., Ed. J. Pap, C. Fröhlich, H. Hudson & K. Solanki, Cambridge University Press, pp. 54-62, 1994.
Willson, R. C., Total solar irradiance trend during solar cycles 21 and 22, Science, 277, 1963–1965, 1997.
Willson, R. C., and A. V. Mordvinov, Time frequency analysis of total solar irradiance variations, Geophys. Res. Lett., 26, 3613– 3616, 1999.
Willson, R.C., The ACRIMSAT/ACRIM3 Experiment – Extending the Precision, Long-Term Total Solar Irradiance Climate Database, The Earth Observer, May/June 2001, V. 13, No. 3, pp. 14-17, 2001.
Willson, R.C., Precision of the long-term total solar irradiance database, Proc. Of the 2002 Characterization and Radiometric Calibration for Remote Sensing (CALCON 2002) mtg., Viewgraph 16, 2002.
Willson, R.C., Total Solar Irradiance Variability: Do Observations or Models Imply a Secular Change?, Convener of special sessions SH12B (Oral) and SH21C (Poster), 2002 AGU Fall Meeting, 2002m.
Willson, R. C., and A. V. Mordvinov, Secular total solar irradiance trend during solar cycles 21–23, Geophys. Res. Lett., vol. 30, no. 5, pp. 1199-1202, 2003.

matches: v. V. v. v. V. V. v. v. v. V. V. V.


text:
New Circuit Court Judge Kimberly Moore’s first opinion is likely to be predictive of her future work — short, focused, and to-the-point.
This case involves a pretty neat invention of a tissue holder for an automobile visor. The BPAI had rejected the claims as anticipated, but the PTO later conceded that the cited reference (relating to a golf-tee holder that clips to a lapel) was not anticipatory.
The PTO is fully expected to present a new grounds of rejection. In all likelihood, the patent will never issue because another round of appeal would be prohibitively expensive for this type of invention.
This does not really count as Judge Moore’s first opinion because it is a non-precedential opinion. In a few weeks, we’ll get the real one.
Highway Equipment v. Feco (Fed. Cir. 2006).
The district court dismissed the case with prejudice after the plaintiff gave the defendant a covenant not to sue. Just before trial, the plaintiff gave up and granted a covenant not to sue. The district court dismissed the case, but retained jurisdiction to decide the issue of attorney fees (fees denied).
On appeal, the CAFC first decided the issue of Article III jurisdiction — holding that even after dismissing the case major, the lower court properly retained jurisdiction over the attorney fee issue. The appellate panel then agreed that attorney fees were not justified in this case.
PHG Tech v. St. John (Fed. Cir. 2006).
PHG’s design patents cover ornamental designs for medical label sheets. PHG sued St. John’s for infringement and was awarded a preliminary injunction based on the court’s belief that PHG had a reasonable likelihood of success on the merits.
St. John’s appealed the preliminary injunction (PI) to the Court of Appeals for the Federal Circuit (CAFC).
The first factor is a deal-breaker — if the plaintiff does not show a likelihood of eventually succeeding in the case then a PI should not be awarded. Here, St. John’s argued only the first factor based on its argument that PHG’s patents impermissibly cover designs that are primarily functional.
In this case, the lower court found that there were “a multitude of alternative designs,” but the lower court did not make specific findings as to whether or not those alternative designs altered the utility. St. John’s did, however present expert testimony that the “alternative” designs were not as useful. On appeal, the CAFC was swayed by St. John’s expert and found “clear error” because the lower court (1) did not make any “explicit findings” regarding utility of the alternatives and (2) failed to even mention St. John’s expert report.
“The evidence presented by St. John, in our view, was sufficient to raise a substantial question of invalidity.” Preliminary Injunction Vacated.
Optivus and Loma Linda v. Ion Beam Apps. (Fed. Cir. 2006).
Focused proton beam therapy offers real promise to cancer victims. Optivus and Loma Linda control rights to several relevant patents including a multi-room proton therapy apparatus. The pair sued IBA for patent infringement as well as various business torts (unfair competition) based on IBA’s marketing of its devices without FDA approval.
The district court granted summary judgment in the defendant IBA’s favor on invalidity, noninfringement, and unfair competition. Optivus and Loma Linda appealed.
Death Ray: On motivation to combine prior art, Loma Linda argued that modifying a UW Neutron therapy center by sending protons to the patient would create a “death ray” that would kill the patient. After defining “skill in the art” as familiarity with particle beam technology uses in medical treatment, the CAFC dismissed this “teaching-away” because our PHOSITA would know to turn down the intensity.
Unfair Competition: Marketing Non-Approved Device: The CAFC reversed the dismissal of the California unfair competition claims — holding that California law provides a right of action on unfair competition even where the claim is based on violation of a law and the law does not provide for a private right of action.
Depuy Spine v. Medtronic (Fed. Cir. 2006).
Claim Construction: Depuy tried to get the CAFC to buy into its argument that a the conical wall of the Vertex model was also a spherical wall. Although impressed with its novel argument, the CAFC did not bite at the elementary calculus or basketball analogy showing how, at the limit, cones and spheres are virtually indistinguishable.
Doctrine of Equivalents and Vitiation: This case seems right-on-point with Tronzo, and the patentee learned the appropriate lesson. In Tronzo, the theory of equivalence would have allowed any shape to be equivalent to “generally conical.” Here, however, the patentee argued that there was a special nexus between the claimed spherical shape and the alleged equivalent conical shape. The tailored argument made the difference, and the CAFC agreed that equivalents could apply without vitiating the term. The CAFC also found it important to the DOE analysis that the patent does not label other shapes as either prior art or inferior. [Practice Tip…].
Abraxis (AstraZeneca) v. Mayne (Fed. Cir. 2006).
Mayne attempted to around Abrxis’s anesthetic formulation patent covering DIPRIVAN. The district court, however, found that Mayne’s product still infringed, both directly and under the doctrine of equivalents, despite its replacement of EDTA (“edetate”) with DTPA.
On appeal, the CAFC reversed the direct infringement based on claim construction, but agreed that there was infringement under the DOE.
Infringement under the doctrine of equivalents is reviewed for clear error. To infringe under the DOE, the accused device must perform “substantially the same function in substantially the same way to obtain the same result” as the patented invention.
Even so, the defendant argued under the modern DOE exclusion principle that the patentee’s use of the “restrictive term edetate,” rather than a more generic term, precluded extension of equivalents coverage as a matter of law. The CAFC disagreed, finding that equivalents could be asserted because the inventors “did not clearly disavow” broader coverage.
There is no evidence that the patentees made a clear and unmistakable surrender of other polyaminocarboxylates, or calcium trisodium DTPA in particular, during prosecution.
Furthermore, because the use of DTPA was admittedly unforeseeable, it is proper to extend DOE.
The defendant also asserted that DOE should not be extended to cover DTPA because Mayne was able to obtain a patent to cover that modification. The CAFC did not buy that argument either. As noted above, the patent shows that the equivalent was unforeseeable at the time of the invention (weighing in favor of DOE). In addition, the district court’s fact finding of “substantial evidence of equivalence” withstood CAFC scrutiny.
the language of the ‘471 specification specifically states that the invention of the ‘471 patent is an athletic shoe with a detachable heel: “However, in a radical departure from conventional shoes, the shoe of the present invention incorporates a heel structure, including a detachable rear sole, that significantly alleviates heel wear problems associated with conventional soles and provides enhanced cushioning and/or spring.”.
As could be expected, the boilerplate language at the end of the specification was deemed worthless even though the language asserts that the specification is not limiting in any way.
Abbott Labs. v. Baxter Pharm. (Fed. Cir. 2006).
Way-back-when, Abbott went through a recall of its inhalation anesthetic sevoflurane because of excess Lewis acid buildup. Abbott’s scientists figured-out that mixing water in the solution would bind an deactivate Lewis acids, and stabilize the product. Abbott changed its product and also obtained patent protection.
When Baxter filed its Abbreviated New Drug Application (ANDA) to begin selling its version of a sevoflurane inhaler, Abbott sued for infringement. After a bench trial, the patent was found valid, but not infringed. Abbott appealed.
Our cases have consistently held that a reference may anticipate even when the relevant properties of the thing disclosed were not appreciated at the time.
The CAFC went-on to find that a claim directed to the newly discovered property of the prior art cannot support a patent because it is inherently disclosed by the art.
an inventor may not obtain a patent on a process having the same steps as a prior art process, in which the new process merely identifies a new, advantageous property of the prior art process.
Go Medical v. Inmed (Fed. Cir. 2006).
Go Medical owns a patent on a urinary catheter with a specialized sheath designed to reduce the chance of bacterial contamination. The parties entered into a long-term licensing contract and the defendant began manufacturing and selling the device. In another lawsuit, Go’s patent was found invalid, but that finding was later reversed on appeal. Several months after the invalidity finding (but before its reversal), the defendant stopped paying royalties — placing them in escrow. Go eventually sued for infringement, but the patent was found invalid. (invalidity affirmed on appeal).
Thus, according to the CAFC, the original invalidity finding did not relieve the defendant of its responsibilities to continue to pay its license fees. Further, the defendant’s movement of payments to escrow was not sufficient to avoid license fees because the defendant did not explicitly state that it was “ceasing payments [because it deemed the] patent to be invalid.” Merely placing royalty payments in escrow “until the validity of the patent was resolved on appeal” is insufficient to relieve a licensee from license payments.
Zura discusses the best mode issues here.
Qualcomm v. Nokia (Fed. Cir. 2006).
A 2001 license agreement between Nokia and Qualcomm includes an arbitration clause. The agreement apparently does not cover all of Nokia’s products, and in 2005, and Qualcomm sued Nokia for patent infringement. The parties disputed whether the arbitration clause should apply here. Writing for a two-judge majority, Judge Prost explained that the parties “clearly and unmistakably” intended that the patent questions be arbitrated instead of a court as evidenced by the agreement’s incorporation of the AAA rules.
Halliburton v. M-I LLC (E.D. Tex., Oct 18, 2006).
Halliburton decided to take advantage of the E.D. Texas patent excitement and sued M-I for infringing its patents directed to a method of drilling a borehole without losing “fragile gel” drilling fluid.
Datamize makes clear that adequate support in the specification can make a purely subjective claim term definite. However, when, as here, the specification provides only a subjective definition for a subjective claim term, there is no “objective anchor” by which skilled artisans can identify the bounds of the claims.
Medrad v. Tyco (Fed. Cir. 2006).
In October 2005, I discussed the district court case involving Medrad. In that case, the district court held that a Section 251 Reissue can only be used to correct an error in the specification, drawings or claims and cannot be used to correct a procedural error that is not reflected in the patent grant itself. During prosecution, the patentee had filed a second reissue to correct a mistake made during the prosecution of the first reissue. (The patentee failed to file a supplemental reissue declaration in compliance with PTO Rule 1.175). The lower court found that correction of that mistake did not fall within the guidelines of Section 251.
On appeal the CAFC sided with the patentee by giving a broad meaning to the statutory phrase “[invalid] by reason of the patentee claiming more or less than he had a right to claim in the patent.” In particular, the unanimous appellate panel found that the phrase does not literally mean “claim more or less” but rather that the phrase “encompass[es] any error that causes a patentee to claim more or less than he had a right to claim.” Thus, a reissue can apparently be filed based on any error that would result in invalid claims.
The CAFC has now explicitly opened the door to fee-based regulation at the USPTO.
Figueroa v. U.S. (Fed. Cir. 2006).
Fighting a lost cause, Figueroa sued the U.S. government using PTO fees to fund other federal programs (fee diversion). From FY 1991 to FY 2004, for instance, the PTO collected about $11.1 billion in fee revenue and only spent about $10.6 billion. The remaining $545 million was returned to the general fund.
Figueroa alleged that the PTO fees “exceeded congress’s power under the Patent Clause” of the Constitution and was also an un-apportioned (and thus unlawful) direct tax on intellectual property.
Using a rational-basis test, the two-judge majority found that Congress had plenty of reasons for charging the fees that it did. Most notably, the court found that an acceptable basis for high fees would be to provide incentives against certain types of patent prosecution activities.
[E]ven if fees exceeded the existing and predicted costs of operating the patent system, Congress could also rationally decide to set fees above what is needed to meet the funding needs of the PTO in order to deter the filing and prosecution of certain types of patent applications. The Supreme Court has recognized that Congress may legitimately impose taxes or fees in order to discourage undesirable behavior.
In particular, the court noted that high fees could be used to discourage the filing of applications associated with vanity patents, likely invalid patents, non-commercial uses, and patents designed to inhibit competition.
Prior discussion of Figueroa [Court of Federal Claims].
Information on the case from the prosecuting lawyer.
Nipper’s discussion of the case.
AIPLA amicus brief supporting Figueroa at the Court of Federal Claims.
Aero has patented an air mattress inflation control system that it advertises using the registered mark “ONE TOUCH.” A jury found that Intex (and Wal-Mart) were infringing both the patent and the trademark. The judge awarded $5.80 million for willful patent infringement ($2.95 in compensation, doubled for willfulness) and $1 million for the trademark infringement.
On appeal, the CAFC looked at the damage award and found some double-counting.
This case presents the question of whether Aero’s recovery of both patent and trademark infringement damages represents an impermissible double recovery.
Under Federal Circuit, double recovery for the “same injury” is inappropriate.
At trial, Aero had used similar evidence of Intex sales to show damages for both the patent and trademark claims. Because Aero did not show any other harm to its trademark apart from the sales of the patented product, the CAFC found that the injury was identical, and thus cancelled the trademark recovery.

matches: v. v. v. v. v. v. v. v. v. v. v.


On January 11, 2006, several inmates at the state prison at San Quentin filed lawsuits under 42 U.S.C. § 1983 against the California Department of Corrections in the U.S. District Court for the Northern District of California. The plaintiffs, all of whom were scheduled to be executed by lethal injection, alleged that their constitutional rights were threatened, arguing that lethal injection was cruel and unusual punishment that violated the Eighth Amendment. They further argued that pancuronium bromide, a paralytic agent that acts as a chemical veil over the lethal injection process, disguises the pain and suffering to which a prisoner being executed is subjected, masking the constitutional violation.
On February 13, 2006, these cases were consolidated, with Michael Angelo Morales being treated as the lead plaintiff. On February 14, 2006, the U.S. District Court for the Northern District of California (Judge Jeremy Fogel) conditionally denied the plaintiff's request for a temporary stay of execution, stipulating that the stay would be granted unless the defendants certified in writing that they would either 1) use only sodium thiopental during the execution or 2) agree to obtain an independent verification by a medically qualified individual that the plaintiff is unconscious before he receives the lethal injection. Morales v. Hickman, 415 F.Supp.2d 1037 (N.D.Cal. 2006). The plaintiff appealed. On February 19, 2006, the U.S. Court of Appeals for the Ninth Circuit issued a per curiam denial of the appeal. Morales v. Hickman, 438 F.3d 926 (9th Cir. 2006). The plaintiff sought review by the U.S. Supreme Court. On February 20, 2006, the U.S. Supreme Court denied the petition for certiorari. Morales v. Hickman, 546 U.S. 1163 (2006).
As the execution was about to commence on February 21, 2006, the two anesthesiologists designated by the defendants to certify that the plaintiff was unconscious declined to participate in the execution due to ethical concerns arising from their lack of understanding of certain language in the opinions that had been issued in the case. As a result of this hesitation, the execution did not go forward as scheduled. Later the same day, the District Court (Judge Fogel) again ordered the execution by lethal injection to go forward, using sodium thiopental. For reasons that are not specified in our documents, the execution was not carried out, the defendants were unwilling or unable to execute the plaintiff in accordance with the requirements of the District Court, and a stay of execution to permit an evidentiary hearing issued automatically pursuant to the District Court's order of February 14, 2006.
From September 26-29, 2006, the District Court held an evidentiary hearing to resolve the issue. On December 15, 2006, the District Court (Judge Fogel) issued an opinion holding that it would be unconstitutional to inject a prisoner who was not unconscious and ordering the defendants to review and revise their execution procedures.
On January 16, 2007, the defendants responded to the district court's order, advising the court of their intent to revise the state's execution procedures and asking the court for a protective order that would allow them to obtain accurate and candid information necessary to the revision. On March 6, 2007, the District Court denied the motion for a protective order, holding that it was unnecessary. On May 15, 2007, the State of California issued the Lethal Injection Protocol Review, a document that discussed the history and procedures involved in lethal injection, as well as necessary changes that would be made to the procedure.
On July 2, 2007, the Plaintiffs filed a third amended complaint alleging that the defendant's Lethal Injunction Protocol Review still created "a grave and substantial risk that Plaintiff will not be adequately unconscious during the execution process and, as a result, will experience an excruciatingly painful and protracted death." Accordingly, the Plaintiffs argued that the defendant's protocol represented an unconstitutional risk of severe pain.
On April 16, 2008 , the United States Supreme Court decided Baze v. Rees. In that case, the Court upheld Kentucky's lethal injection protocol as constitutional. Significant to the case at hand, the Kentucky protocol utilized the same three-drug cocktail as California's amended protocol does. The Court established that to show an 8th amendment violation, a plaintiff must prove that a State's lethal injection protocol "creates a demonstrated risk of severe pain. [They] must show that the risk is substantial when compared to the known and available alternatives." The Court found that Kentucky's protocol did not violate this standard. Moreover, the plurality opinion held that "a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard."
On October 8, 2010, the Plaintiffs filed their fourth amended complaint again alleging that the defendant's Lethal Injunction Protocol Review "will subject them to present demonstrated substantial risks of inflicting tortuous pain and suffering under the Eighth Amendment." Furthermore, the Plaintiffs contended that "Defendants' continued use of their three-drug procedure when tested, available alternatives exist establishes that the demonstrated risk of severe pain by Defendants' process is substantial when compared to the known and available alternatives. Defendants have refused to adopt such alternatives in the face of these documented advantages, without any legitimate penological justification for their continued retention of the three-drug protocol."
On October 25, 2010, the Defendants filed a motion to dismiss for a failure to state a claim. The defendants argued, "plaintiffs failed to state a claim for a facial challenge to California's regulations because the regulations are substantially similar to or exceed the regulations approved by the United States Supreme Court in Baze." Moreover, the motion argued, "Plaintiffs have not alleged facts sufficient to state a claim that, as written, California's regulations will necessarily subject Plaintiffs to a substantial risk of serious harm, where serious harm means severe pain." However, the defendants did not challenge the plaintiffs as applied challenge. On December 10, 2010, the court denied the defendants' motion to dismiss. Given the defendants' burden at the motion to dismiss stage of the litigation, the court was unwilling to find that the plaintiffs had failed to state a claim. However, the court made clear that it "intends to monitor closely the scope and pace of any additional discovery so that the merits of Plaintiffs' claims can be adjudicated promptly."
On June 19, 2013 the court granted the plaintiff's motion to intervene and to stay execution for an additional plaintiff. On September 17, 2013 the Court granted another motion to intervene for two more plaintiffs.
On November 7, 2014, the Criminal Justice Legal Foundation filed a lawsuit called Winchell & Alexander v. Beard against the California Department of Corrections and Rehabilitation (CDCR) in Sacramento County Superior Court. The plaintiffs were two individuals whose family members had been murdered by inmates currently on death row who are plaintiffs in Morales v. Hickman. The plaintiffs in Winchell & Alexander argued that as relatives of the victims they had been denied justice by the continued delays of the executions. This case was settled on June 2, 2015 when CDCR agreed to promulgate a single-drug lethal injection regulation within 120 days after the U.S. Supreme Court issued its opinion in Glossip v. Gross. See the CJLF's website for more information.
On June 29, 2015 the U.S. Supreme Court ruled in Glossip v. Gross that the sedative midazolam may be part of the lethal injection protocol. 135 S. Ct. 2726 (2015).
On October 27, 2015 CDCR submitted its notice of proposed adoption of lethal injection regulations to the Office of Administrative Law for publication in the California Regulatory Notice Register, pursuant to the settlement in Winchell & Alexander v. Beard. According to California's Department of Corrections and Rehabilitation's website, the notice was published in the register on November 6, 2015. The proposed regulations would change the death penalty protocol from the three-drug cocktail to a single drug.
In a new setback to efforts to restart executions in California, the state's Office of Administrative Law (OAL) has rejected the new lethal injection protocol proposed by the California Department of Corrections and Rehabilitation. On December 28, 2016, the OAL, which is responsible for reviewing regulatory changes proposed in California, issued a 25-page decision of disapproval, citing inconsistencies, inadequate justification for certain parts of the proposal, and a failure to adequately respond to public comments. The agency gave the Department of Corrections four months to address problems in the protocol. See the Death Penalty Information Center website.
As of Feb. 4, 2018, this case is ongoing.