In short, this Ruling results in changes for IPRs at the PTAB. If the PTAB is to institute an IPR on any Ground in a Petition, it must institute on all grounds.
As the most-active firm practicing at the Patent Trial and Appeal Board (PTAB), we are proud to have shared in our clients’ successes over the years. Fish was one of the first firms to file a post-grant petition in 2012, and since then we have enjoyed being a part of the growth of this important area of legal practice. As a Diamond Seed Funder of the PTAB Bar Association, and through our events and webinars, we have met and spoken with many of you, and we would like to take this moment to express our thanks for your continued support. The past two weeks have been exciting as we learn about the implications of Oil States Energy Services, LLC v. Greene’s Energy Group, LLC and SAS Institute Inc. v. Iancu. Below are our analyses of these opinions, as well as links to resources you may find helpful as you, too, plan for the future.
584 U.S. ____ (2018), 2018 U.S. LEXIS 2630.
Oil States addressed two separate constitutional challenges to inter partes review (IPR): (1) whether IPR violates Article III of the Constitution because it allows an administrative agency—not Article III courts—to extinguish a patentee’s rights; and (2) whether IPR violates the Seventh Amendment because it allows administrative judges, rather than juries, to adjudicate validity. In a 7-2 decision, the Supreme Court affirmed the Federal Circuit, holding that IPR does not run afoul of Article III or the Seventh Amendment. The majority opinion was penned by Justice Thomas, who many thought would find IPR unconstitutional based on his dissent in B&B Hardware, v. Hargis Indus., 135 S. Ct. 1293 (2015), where he opined that decisions of the Trademark Trial and Appeal Board (TTAB) revoking issued trademark rights should not have a preclusive effect in a subsequent trademark infringement suit. Justice Thomas was joined in Oil States by Justices Kennedy, Ginsburg, Breyer, Alito, Sotomayor, and Kagan. Justice Breyer authored a concurring opinion, joined by Justices Ginsburg and Sotomayor. Justice Gorsuch, author of the majority opinion in SAS, filed a dissenting opinion, joined by Chief Justice Roberts.
As to the Article III challenge, the majority found that “[i]nter partes review falls squarely within the public-rights doctrine,” and therefore resides inside the scope of Congress’ authority to assign adjudication to entities other than Article III courts. Slip op., 6. In reaching this conclusion, the opinion reasons that patents are “public franchises” granted by the government to bestow upon the patent owner the right to exclude. Slip op., 7. According to the majority, “[i]nter partes review involves the same basic matter as the grant of a patent,” and “[s]o it, too, falls on the public-rights side of the line.” Slip op., 8. Like other public rights, patent claims are granted subject to the qualification that they may be reexamined and canceled by the United States Patent and Trademark Office (USPTO). Slip op., 9-10.
The opinion addresses prior decisions recognizing patent rights as “private property of the patentee” by noting that “those case(s) were decided under the Patent Act of 1870” and are “best read as a description of the statutory scheme that existed at that time.” Slip op., 10-11. Such precedents, therefore, “do not resolve Congress’ authority under the Constitution to establish a different scheme.” Slip op., 11.
The opinion also dismisses arguments based on historical practice in 18th-century English courts of law, finding that the framers of the Constitution were also aware of a Privy Council proceeding resembling IPR, and yet there is no evidence that the framers sought to preclude such a proceeding. Slip op., 12-14. The opinion similarly disposes of arguments citing the historical adjudication of patent validity in American Article III courts, stating: “That Congress chose the courts in the past does not foreclose its choice of the PTO today.” Slip op., 14-15. Separately, the opinion reasons that similarities between procedures used in IPR and Article III courts do not lead to a conclusion that the PTO is exercising judicial power. Slip op., 15. While IPR includes features of adversarial litigation, it does not make binding determinations as to liability between the parties and therefore remains a matter solely involving public rights. Slip op., 15-16.
In concluding its Article III discussion, the majority opinion emphasizes the narrowness of its holding, expressly leaving open three issues: (1) whether infringement actions can be heard in a non-Article III forum; (2) whether IPR would be constitutional absent review by the Federal Circuit; and (3) whether retroactive application of IPR to pre-America Invents Act (AIA) patents is permissible under the Constitution. Slip op., 16-17.
The opinion only briefly addresses the Seventh Amendment challenge, finding it resolved by the Article III challenge because “when Congress properly assigns a matter to adjudication in a non-Article III tribunal, “the Seventh Amendment poses no independent bar to adjudication of that action by a nonjury factfinder.” Slip op., 17.
that categorically excludes adjudication of private rights other than by Article III courts.
Justice Gorsuch, joined by Chief Justice Roberts, authored a dissent analogizing a patent to a “personal right—no less than a home or a farm” and, therefore, finding that right properly revocable “only with the concurrence of independent judges.” Dissent, 2. The dissent characterizes IPR as a scheme that, while well-intended, “represents a retreat from the promise of judicial independence.” Dissent, 3. From this premise springs concern that a bureaucratic regime is subject to capture by “[p]owerful interests” in such a manner that “the losers will often prove the unpopular and vulnerable.” Dissent, 3. The dissent then embarks on a lengthy discussion of history and precedent, much of which is addressed by the majority opinion, to support its conclusion that the character of patents is such that, once issued, they may be revoked only by Article III courts. Dissent, 3-12.
SAS Institute Inc. v. Iancu, et al., 584 U.S. ____ (2018), 2018 U.S. LEXIS 2629.
In SAS, the Supreme Court addressed the question of whether 35 U.S.C. §318(a) requires the Board to issue a final written decision as to every claim challenged by the petitioner, or permits adjudication of only some of the challenged claims, as the Federal Circuit held. In a 5-4 decision, the Supreme Court reversed the Federal Circuit, holding that the Board must decide the patentability of all of the claims the petitioner has challenged. The majority opinion was penned by Justice Gorsuch (the author of the dissent in Oil States ) and joined by Justices Roberts, Kennedy, Thomas, and Alito. Justices Ginsburg and Breyer authored dissents joined by Justice Sotomayor and, in part, by Justice Kagan.
The majority found that “the plain language of §318(a) supplies a ready answer” to the question presented. Slip op., 4. The text of §318(a) is “both mandatory and comprehensive,” expressly stating that “the [Board] shall issue a final written decision with respect to the patentability of any claim challenged by the petitioner.” Slip op., 4 (original emphasis). In the majority’s view, the word “shall” imposes a nondiscretionary duty, and the term “any” means “every.” Slip op., 4-5. Thus, §318(a) “means the Board must address every claim the petitioner has challenged.” Slip op., 5 (original emphasis). The opinion finds no support in the text of §318(a) to support the director’s claimed power of “partial institution,” and explains that “what can be found in the statutory text and context strongly counsels against the Director’s view.” Slip op., 5.
Starting with pre-institution statutes §311(a) and §312(a)(3), the opinion gleans “that Congress chose to structure a process in which it’s the petitioner, not the Director, who gets to define the contours of the proceeding.” Slip op., 6. And, from comparison with the sister ex parte reexamination statute, it is clear that Congress purposefully departed from a regime in which the director has authority to conduct review and investigation of issued patents “[o]n his own initiative, and at any time.” Slip op., 6 (citing 35 U.S.C. § 303(a)).
As to the institution statute, §314(b), the opinion explains that the director is charged with determining “whether” to institute, which “indicates a binary choice—either institute review or don’t.” Slip op., 7. “Nothing suggests the Director enjoys a license to depart from the petition and institute a different inter partes review of his own design.” Slip op., 7. The opinion rejects the director’s contention that §314(a) authorizes claim-by-claim institution, finding instead that “it simply requires him to decide whether the petitioner is likely to succeed on ‘at least 1’ claim.” Slip op., 7. From here, “the Director need not even consider any other claim before instituting review.” Slip op., 7. Again, comparing the inter partes review statute in §314(a) to the comparable ex parte re-examination statute in §304, the majority opined that Congress knew how to grant claim-by-claim and ground-by-ground authority but deliberately chose not to. Slip op., 7-8. The extent of the director’s discretion under §§314(a) and 314(b) relates to the question of whether to institute review and excludes what claims that review will encompass. Slip op., 8.
As to the remainder of the statute, the opinion notes that §316(a)(8) instructs the director to adopt regulations governing the patent owner’s response to the petition, rather than a response to the director’s institution notice. Slip op., 8. Finally, §318(a) “categorically commands” that all claims be addressed in the Board’s final written decision. Slip op., 9. “In all these ways, the statute tells us that the petitioner’s contentions, not the Director’s discretion, define the scope of the litigation all the way from institution through to conclusion.” Slip op., 9.
The opinion discards the director’s assertion that “linguistic discrepancy” between §314(a) and §318(a) afford the implicit power to institute fewer than all challenged claims. Slip op., 9. According to the majority, the difference in language between these provisions is “fully explain[ed]” by §316(d)(1)(A), which permits the patent owner to cancel challenged claims during the proceeding. Slip op., 9-10.
Having fully vetted the statutory text, the opinion moves on to address the director’s policy argument that “partial institution is efficient because it permits the Board to focus on the most promising challenges and avoid spending time and resources on others.” Slip op., 10. This too was unpersuasive to the majority, which viewed policy considerations of this sort as more appropriately addressed in Congress. Slip op., 10. The opinion further disposes of the director’s suggestion that his office should be afforded deference with respect to its interpretation of an ambiguous statute, under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Slip op., 11. For the many reasons discussed above, the opinion finds the statutory text “deliver[s] unmistakable commands,” leaving “no room . . . for a wholly unmentioned ‘partial institution’ power[.]” Slip op., 12.
Lastly, the opinion rejects the director’s invocation of Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131 (2016), for the proposition that institution decisions are final and nonappealable. Slip op., 12. Here, the opinion re-emphasizes both the narrowness of the holding in Cuozzo and the Court’s prior proclamation that “§314(d) does not ‘enable the agency to act outside its statutory limits.’” Slip op., 13.
Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, authored a one-page dissenting opinion criticizing the majority’s reading of §318(a) as “wooden” and potentially subject to circumvention if the Board simply denies institution on all claims and details which claims have merit. Op., 1. The petitioner could then refile a new petition including only those claims receiving a favorable review in the first instance. Op., 1. Thus, the dissent asks “[w]hy  the statute [should] be read to preclude the Board’s more rational way to weed out insubstantial challenges?” Op., 1.
Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan (in part), authored a full-throated dissent, finding the statutory text of §318 ambiguous because it “contains a gap just after the words ‘challenged by the petitioner.’” Op., 8. The dissent observes that, under Chevron, an agency is granted leeway to enact rules that are reasonable in light of the text, nature, and purpose of an ambiguous statute. Op., 8-9. According to the dissent, the United States Patent and Trademark Office has done so in this instance, and therefore its rules should not be disturbed. Op., 10.


PITNEY BOWES, A Corporation; Pitney Bowes Long Term Disability Plan; George B. Harvey, as Trustee of Pitney Bowes Long Term Disability Plan; Carmine F. Adimando, as Trustee of Pitney Bowes Long Term Disability Plan; Pitney Bowes Group Life Insurance Plan; Pitney Bowes Retirement Plan; Pitney Bowes Major Medical Expense Plan; Pitney Bowes Dental Expense Plan; Michael Critelli, Appellees.
  Sheldon Weinhaus, St. Louis, MO, argued, for appellant.
Keith Rabenberg, St. Louis, MO, argued. (Clark Cole, on the brief), for appellees.
Before MORRIS SHEPPARD ARNOLD, Circuit Judge, JOHN R. GIBSON, Senior Judge, and MELLOY, District Judge.
Donald E. Conley initiated this action in the Circuit Court of Butler County, Missouri, against his employer Pitney Bowes after he had been denied continued disability benefits for a claim arising from injuries suffered in an automobile accident. The company removed the case to the United States District Court for the Eastern District of Missouri because the suit related to benefits under the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (ERISA). The district court granted the defendants's motion for summary judgment, 839 F.Supp. 1364, and this appeal followed. At issue is whether a claimant must exhaust administrative procedures when, contrary to the requirements of his plan, the letter denying his benefits does not inform him of appeal procedures.
ERISA does not explicitly require exhaustion of administrative or plan remedies. The doctrine is, in this context, a creature either of contract or judicial invention. We have required exhaustion in ERISA cases only when it was required by the particular plan involved. See Anderson v. Alpha Portland Industries, Inc., 727 F.2d 177, 180 (8th Cir.1984), aff'd, 752 F.2d 1293 (8th Cir. en banc 1985); cf. Kennedy v. Empire Blue Cross and Blue Shield, 989 F.2d 588, 594 (2nd Cir.1993) ("exhaustion in the context of ERISA requires only those administrative appeals provided for in the relevant plan or policy."). We have declined to apply a broader, judicially-crafted exhaustion requirement in ERISA actions. See Anderson v. Alpha Portland Industries, Inc., 752 F.2d 1293 (8th Cir. en banc 1985) (exhaustion not required for retirees absent explicit plan language extending plan requirements to them). The appellant concedes that the plan which is  the subject of the suit before us does contain, in fact, such a requirement.
The language of the plan requiring exhaustion is complimented, in this case, by language that requires that any notice of denial of benefits be accompanied by explicit instructions informing the plan participant of the procedures for appeal. Section 7.8(a) of the plan document requires that the plan administrator provide to "any person whose claim for benefits has been denied ... a written notification of the denial. The written notification shall include ... an explanation of the claim appeal procedure." This plan language comports with the requirements of 29 C.F.R. § 2560.503-1(f)(4), which dictates that the "[c]ontent of notice ... to every claimant who is denied a claim for benefits ... set forth ... [a]ppropriate information as to the steps to be taken if the participant or beneficiary wishes to submit his or her claim for review."
The present case, therefore, may be distilled to one of contract. Two terms of an ERISA plan are the focus of this dispute, namely, an exhaustion clause and a clause requiring notice of appeal procedures. In deciding whether Mr. Conley's action can survive a motion for summary judgment, "we must begin by examining the language of the plan document. Each provision should be read consistently with the others and the terms must be construed to render none of them nugatory." Jacobs v. Pickands Mather & Co., 933 F.2d 652, 657 (8th Cir.1991).
The terms that are at the center of this dispute are promises that were exchanged as part of a complex agreement. While pension and benefit plans are typically characterized as being unilateral contracts (agreements where an offer is accepted by a performance), the promises in the plan before us are more properly characterized as a bilateral contract (an agreement where promises of future performance are exchanged). See Arthur Linton Corbin, Corbin On Contracts § 21 (one vol. ed. 1952). Accordingly, the part of the plan under consideration is subject to the federal common law of contracts. See Pilot Life Insurance Company v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 1557, 95 L.Ed.2d 39 (1987).
One well-established rule of contract construction is that "[i]n bilateral contracts for an agreed exchange of performances, ... where one party's performance is to be rendered prior in time to that of the other, it is a constructive condition precedent to the latter's duty." Lawrence P. Simpson, Handbook of the Law of Contracts § 152 (1965). See also Restatement (Second) of Contracts § 237 (1981) ("[I]t is a condition of each party's remaining duties to render performances to be exchanged under an exchange of promises that there be no material failure by the other party to render any such performance due at an earlier time."); E. Allan Farnsworth, Contracts § 8.2(B) (2d ed. 1990); John D. Calamari and Joseph M. Perillo, The Law of Contracts § 11-8 (1987); Corbin On Contracts § 657. Such a "performance is as much a condition precedent to the other's duty as though expressly made so." Simpson, § 152; See also, Loud v. Pomona Land & Water Co., 153 U.S. 564, 577, 14 S.Ct. 928, 932, 38 L.Ed. 822 (1894) (agreement to convey land "after the making of the payment and full performance" rendered such payment and performance a condition precedent to the duty to convey. (emphasis in original)). Furthermore, "[w]here the consideration given by each party to a contract consists in whole or in part of promises, all the performances to be rendered by each party taken collectively are treated as performances to be exchanged under an exchange of promises, unless a contrary intention is clearly manifested." Restatement (Second) of Contracts § 232.
Application of these principles to the case at hand is straightforward. Because appellees were obligated to inform appellant of the appeal procedure at the time they denied him benefits, appellees performance had necessarily to precede exhaustion by the plaintiff. A defense under the exhaustion clause, therefore, may not be asserted absent performance of the notice clause, since they  are presumed to be the subject of promises made in exchange for each other.
(8) To help assemble a factual record which will assist a court in reviewing the fiduciaries actions.
Costantino v. TRW, Inc., 13 F.3d 969, 975 (6th Cir.1994). We recognize that judicially-created exhaustion requirements also may further these goals. We believe, however, that the freedom of contract between autonomous parties is a more important principle than even the very important judicially-created doctrine of exhaustion. Furthermore, where exhaustion is a bargained-for term of a contract, freedom of contract is not necessarily inconsistent with the principles underlying exhaustion requirements.
Requiring plan administrators to provide notice of appeals procedure as required by contract and the Secretary's regulations is not inconsistent with the goals that exhaustion typically furthers. Indeed, such a requirement serves much the same purpose as the exhaustion clause, namely, to avert resort to federal litigation where an administrative procedure is available. In fact, inclusion of such a term serves to avoid not only frivolous suits, but mistakenly filed suits as well. To advance the purposes of the Act, the Secretary's regulations, the contract, and the principles underlying the exhaustion and notice terms, we must construe and enforce the whole contract, including the notice of appeals procedure requirement.
In their motion for summary judgment and their supporting memorandum, the defendants-appellees rely expressly and exclusively upon Mr. Conley's failure to exhaust the plan's procedures. They do not allege that Mr. Conley had actual knowledge of the plan's procedures, thereby making any breach of the plan's notice requirements immaterial. The district court appears to have felt that the plaintiff-appellant's possession of the summary plan description gave him constructive knowledge of the appeals procedures. The terms of the plan and the requirements of the regulation, however, confer upon a claimant a right to more than just a copy of the summary plan description. He had a contractual right to information on the appeals procedure included with his notice of denial of benefits. On summary judgment, the movant is not entitled to the benefit of a legal rule that the summary plan description gave claimant constructive knowledge of the appeals procedures.
On appeal, the defendants-appellees further assert that Mr. Conley did not deny having actual knowledge of the plan's procedures. This argument, however, puts the cart before the horse. The defendants-appellees never alleged, either in their answer, their motion for summary judgment, or their memorandum in support of their motion, that Mr. Conley or his attorney had actual knowledge of the plan's appeals process. We do not think that Mr. Conley could be expected  to deny something of which he had not been accused.
Mr. Conley has also made claims under ERISA § 510 for wrongful discharge, and under ERISA § 409 for breach of fiduciary duty. He challenges the entry of summary judgment on these claims because, unlike claims for benefits, they are not within the purview of the plan's administrators and therefore not subject to the plan's exhaustion requirement. The defendant-appellees response to this argument is that it was waived because it was not presented to the district court for consideration upon the defendants-appellees motion for summary judgment.
The district court entered summary judgment on these claims without having been asked to. The motion for summary judgment does not refer specifically to the § 510 and § 409 counts. Therefore, the plaintiff was never placed on notice that he needed to argue that no exhaustion requirement existed for these two counts. Since he could not have known that the motion for summary judgment included the § 510 and § 409 counts, these claims must also be reinstated.
For the foregoing reasons, we reverse the judgment of the district court, and remand for proceedings consistent with this opinion.
I would affirm the judgment of the district court for the reasons articulated in its decision.
Conley's testimony is very clear that after he received the letter denying benefits he turned it over to his lawyer. He felt that he should be getting a pension, disability or something, so retained the lawyer to look after his interests. He let the lawyer handle it and do the work. In addition to the letter, he gave a copy of the benefit plans book to the lawyer. The booklet set forth in clear detail the claim appeal procedure.
The court today elevates form over substance and ignores the factual situation before the district court and on which it ruled. This is not a case where an employee failed to file an application for review because he was not told of the procedures, but rather one where the employee relied on his lawyer, who dropped the ball.
 The Honorable Michael J. Melloy, Chief United States District Judge for the Northern District of Iowa, sitting by designation.
Original Item: "Conley v. Pitney Bowes"


text:
The IFToMM community is mourning the passing of our former President, Professor Adam Morecki. Professor Morecki passed away on May 20th, 2001. In addition to serving IFToMM as President, he served as Secretary General, Chair of the Technical Committee on Robots and Manipulators, and long-time co-chair of the RoManSy Organizing Committee. The Executive Council passed a memorial resolution honoring Professor Morecki at their meeting in Milan on July 6th, 2001. The text of the resolution may be found elsewhere in this newsletter.
The Executive Council approved sponsorship of the journal Problems of Applied Mechanics published by the International Federation of Machines and Mechanisms of Georgia, Tbilisi. This international scientific journal is edited by Professor Nodar Davitashvili, (nodav@hotmail.com) who is also the Georgian chief delegate to IFToMM. The publication languages are Russian and English.
At its meeting, the Executive Council approved the chairs of the Technical Committees and Permanent Commissions for the four years starting January 1st, 2002. An important discussion took place on the Permanent Commission for Publications. Until relatively recently, the only publication sponsored by IFToMM was the journal Mechanism and Machine Theory. As the editor of this journal, Dean Terry Shoup was also chair of the Permanent Council. Since IFToMM is now sponsoring Problems of Applied Mechanics and the electronic Journal on Computational Kinematics, it was felt to be time to separate the role of editor from chairmanship of the Permanent Commission. It was pointed out, that Dean Shoup had exceeded the normal limit of two consecutive terms in that position. Although the Executive Council does have the ability to waive that limit in special circumstances. Dean Shoup graciously agreed to step aside, and to assist me in appointing a new chair. Subsequently, Professor Vincenzo Parenti-Castelli (vincenzo.parenticastelli@mail.ing.unibo.it ), of the University of Bologna agreed to step in as Chair of the Permanent Commission. His appointment was confirmed by an email vote of the Executive Council. On behalf of IFToMM I thank Dean Shoup for his long-term service as Chair of the Permanent Commission, and, of course, for his continuing service as Editor-in-Chief of Mechanism and Machine Theory.
Last year I reported that the updates to the IFToMM Constitution discussed at the World Congress in Oulu had received final approval. An important change was the creation of a Permanent Commission on Communications, replacing the formerly separate functions of the Permanent Commission on Conferences, the Newsletter Editor, and the maintenance of the IFToMM web site, which was not formally accommodated in the IFToMM structure. Professor Dinos Mavroidis (mavro@jove.rutgers.edu) of Rutgers University, assumed the Chair of the new Permanent Commission, with assistance from Professor William Goodwine, of Notre Dame University on conferences, and Professor Leila Notash of Queen's University, Ontario as the Newsletter Editor. I am very pleased to report that this new organization is functioning excellently. This newsletter is one product. To an increasing extent, our web site: http://www.caip.rutgers.edu/IFTOMM/, is becoming a vital means of communication. We owe special thanks to Professor Jorge Angeles, and Professor Gabor Stepan, for designing the new Permanent Commission and writing the necessary constitutional amendments.
It is a pleasure for me to take over the position of Editor of the IFToMM Newsletter from my dear colleague Professor Jorge Angeles who was the first Editor of the Newsletter and has served in this position for the past 10 years. I would like to thank Professor Angeles for all his efforts on and contributions to the Newsletter.
This issue of the Newsletter is the first issue published by the IFToMM Permanent Commission on Communications. Similar to the previous issues, we will publish entries in any of the four IFToMM official languages, English, French, German, and Russian. Contributions submitted in other official languages than English are expected to be accompanied by an English abstract.
I will look forward to receiving your contributions for the 2002 issue of the Newsletter. Please submit your entries as a WORD document or in PDF format, if possible.
The former President of IFToMM Professor Adam Morecki passed away on May 20, 2001. IFToMM EC adopted the resolution in recognition of our late colleague.
The Minutes of 33rd EC Meeting were written and distributed to the members of EC, Chairmen of PC and TC, and IFToMM Member Committees.
SG Tatu Leinonen has visited three member committees in America and Europe. In June he visited in Kaunas, Lithuania, in July in Warsaw, Poland and in August in Montreal, Canada.
For the strategic planning in IFToMM it was decided to set up a committee chaired by Vice President Professor J.-C. Guinot. The Committee will give a report to EC in the next meeting in 2002.
Whereas our colleague Professor Adam Morecki passed away on May 20th, 2001.
Whereas he was a founder of the organization now known as IFToMM, The International Federation for the Promotion of Research and Development Activities in Machines and Mechanisms Science.
Whereas he served said organization as Secretary General from 1984 to 1987, and as President from 1992 to 1995.
Whereas he was a founder of the biennial CISM-IFToMM Symposium on Robotics, and served as a member or co-chair of the organizing committee from the inception of the conference in 1973 up until the present.
Whereas was teacher and mentor to a large number of diplomate and doctoral students in the Warsaw University of Technology and the University of Mining and Metallurgy in Krakow, and a friend and professional colleague to all of us.
Whereas his many and exceptional contributions to his profession were recognized by membership in the Engineering Academy in Poland, by the title of Doctor Honoris Causa at the University of Mining and Metallurgy, by the Joseph F. Engelberger Award of the Robotics Industries Association, by the National Education Medal of Poland, and by the Commander's and Knight's Crosses of the Order of the Rebirth of Poland.
The Executive Council of IFToMM has adopted this resolution in recognition of our late colleague, and directed that it be recorded in the minutes of the 34th meeting of the Executive Council this 6th day of July 2001. It is further directed that a copy of this resolution be delivered to Professor Zofia Morecka as an expression of the sympathy of this body on the occasion of her loss.
As Chair of the Constitution Committee, it is my duty to request input on Constitutional matters, which will be discussed by the Constitution Committee. The Committee will then submit its recommendations on amendments to the General Assembly via the Secretary General.
I am herewith requesting input from all Member Committees. To this end, individuals should send their opinion to the Chair of their Member Committee, who will then forward these opinions to me.
For your information, the members of the Constitution Committee are listed below, along with their addresses.
Mechanical and Electronic Engineering Dept.
Abstract: On 18 September 2001 the IFToMM Permanent Commission on "Standardization of Terminology", also known as IFToMM Commission A, will celebrate thirty years of existence.
The constituent meeting of the commission for "Standardization of Terminology" was held on 18 September 1971, during the works of the 3rd World Congress on the Theory of Machines and Mechanisms in Kupari, Yugoslavia. There were five participants: Professors Baticle (France), Bazjanac (Yugoslavia), Bögelsack (Democratic Germany), Davies (United Kingdom) and Keller (Federal Germany).
As Professors D. Muster (USA) and N. I. Levitskyi, prenominated by the Executive Council as chairman, respectively vice-chairman of the Commission did not attend the Congress, the foundation meeting was chaired by Prof. T. Davies.
Acting chairmen were D. Muster (1972 / 1976), G. Bögelsack (1976 / 1986), J. Prentis (1986 / 1990), T. Leinonen (1990 / 1998), T. Ionescu (since 1998).
Appendix (General Terms Used in TMM).
More than 50 scientists from 23 different countries were directly involved in the work of the Commission up to year 2001. Besides them many others worked on national level. In some countries the IFToMM Terminology was translated into their national languages e.g. in Japan, China, Romania, Czech Republic, Poland.
making our terminology more friendly and usable for extensive application.
Beginning with the 18th Commission meeting (Brno, 1998) the work on terminology expanded, some working principles and new tasks were agreed on and the bases of the first cooperation with the TC on "Nonlinear Oscillations" were established. By re–organization, seven new subcommissions activate today: "Structure and Kinematics", "Dynamics", "Robotics, Machine Control and Measurements", "Biomechanisms", "Mechatronics", "Gearing", "New Ordering System". We decided also upon the premises of adopting a new, more flexible and reliable ordering system of terms.
Important decisions have been taken at the 19th Commission meeting (Kaunas, 2000) in relation with: the new edition of TMM terminology, the basic character of our terminology, the necessity of a proper working instrument, the voluntary character of our activity and its (individual) real costs, the personnel politics considering the meetings participation, effective interest in activity and the new related scientific fields, as well as the aspects of cooperation with IFToMM TCs and PCs.
first, a printed version to be published in MMT Journal as soon as possible (2002), having at its bases the 1990 edition and following mostly its structure and order. Whether or not to introduce in this printed version the "Abbreviations/Symbols for Terms in TMM" and "Graphical Symbols for the Representation of Mechanisms", published previously in MMT Journal in 1997, remained to be discussed. Solutions were found for the introduction and nesting of the new terms in the existing systematized chapters.
introducing new terms & definitions to existing and new chapters. The newly set up chapters, with terms and definitions in English only, in alphabetical order (Dynamics – New Terms, Rotordynamics & Measurement, Vibrations & Nonlinear Oscillations, Stability, Biomechanics, Gearing, Miscellanea) were considered in succession for a "Supplement" added at the end.
partly rearranging the existing divisions of the terminology.
Eventually, with EC approval, the final draft will be prepared according to Publications PC recommendations and set to print.
second, a computer assisted TMM Terminology, built up on "data base" principles and alphabetically arranged (in English), with indexes for correlating the terms in the IFToMM official languages and indexes for relating the terms to the domains/fields/chapters of our science will be put into circulation, after setting up all adjacent problems, in years 2004, 2005. The alphabetical order, solving all problems related to insertion and nesting of (new) terms will prove itself most adequate for this version which will bear no more any resemblance with the teaching courses. This version will be mainly housed on a CD and possibly on IFToMM Internet site.
As far as the basic character of our terminology is concerned, we have to choose between a large-use general version and a strictly limited specific one. Although recently some very qualified professionals were, more or less critical about the present (and future) development of our terminology, which takes over terms from other sciences and technical fields, the criterion of utility must be obeyed. It is my belief that most professionals related to and working in TMM discipline do need a proper reference documentation covering, in terms and definitions, every notion and conceptual category in use. But, being against omitting (old or new) used terms and definitions from our terminology and aware at the same time of the objective "borrowing" process from other sciences I think that a formal differentiation, between own and borrowed terms by some means or other, could be worthwhile in the new edition.
The necessity of a proper working instrument means that the Commission must be able to conceive and develop its activity in a continuous and efficient way and with good results. This implies organizational and structural measures promoting creative work, an activity plan with tasks for each component subcommission and for every member, responsibilities, time terms, cooperation, etc. The reality is that having a voluntary character, our activity is entirely based on member's goodwill and commitment and moreover this activity costs the members time and money. Obviously, the consequences are affecting the Commission power and outcomes.
It is true that the last years were marked by a slight decline in the "personnel" domain, as a result of political and institutional macro changes on international and national levels, natural causes, retirement and lack of interest. In the same time, by different means we tried to counteract this phenomenon and realized to involve in the Commission activities valorous professionals from and outside IFToMM (Prof. L. Pust, Prof. J. S. Rao, Prof. J. Davidson, Prof. Peisach, Dr. P. Goldman). New members were proposed and nominated (Prof. C. Stammers, Prof. D. Levitskiy, Prof. T. Tolocka, Prof. S. Segl'a, Prof. I. Biro, Prof. V. Starzhinsky).
As the TMM terminology must express globally our federation concerns and keep in touch with the latest developments and achievements in science and technology (see also the discussions on TMM 21 topic), it seems evident, on one hand, to ask for a full cooperation with the IFToMM TCs and PCs (which dealing with specific problems are using and developing specific terminologies). On the other hand a timing to the actual circumstances and an enlargement process of our Commission is inevitable in order to cope with the present and future terminological tasks. In this view I think that delegated representatives of IFToMM TCs / PCs are most welcome in our Commission. Featuring this, now having closed the successful experience of terminological cooperation with the "Nonlinear Oscillations" TC, a new cooperation with the "Gearing" TC (Prof. V. Goldfarb, Prof. V. Starzhinsky) is already launched.
The members of our Commission are nowadays: Prof. P. Antonescu (RO), Prof. I. Biro (HU), Prof. G. Bögelsack (DE) – German language editor, Prof. J. Herve (FR), Dr. T. Ionescu (RO) – chair, Prof. A. J. Klein Breteler (NL) – subcommission chair, Prof. J. P. Lallemand (FR) – French language editor and subcommission chair, Prof. T. Leinonen (FI), Prof. D. N. Levitsky (RU), Prof. J. Novotny (CZ), Dr. V. Oravsky (SK), Prof. V. Plakhtin (RU) – Russian language editor, Prof. A. Rossi (IT), Prof. I. Salyi (HU), Prof. Y. L. Sarkissyan (AM), Prof. S. Segl'a (SK) – subcommission chair, Prof. T. E. Shoup (US), Dr. H. Socha (DE), Prof. C. W. Stammers (GB) – English language editor and subcommission chair, Prof. V. E. Starzhinsky (BY) – subcommission chair, Prof. R. T. Tolocka (LT) – subcommission chair, Prof. H. L. Yin (CN), Prof. L. Zhaohui (CN), Prof. H. S. Yan (ROC), Prof. J. Y. Lin (ROC), Prof. Z. Zivkovic (YU). The beloved Prof. A. Morecki, Prof. G. Kunad, Prof. N. I. Manolescu left us and joined the eternity.
attracting of new active members and quantitative and qualitative growth of Commission capacity and work.
The TMM terminology has a historical character, like the TMM science itself; it reflects a certain stage of existence and technical & scientific development. But terminology must be also viewed as a science, "La terminologie est la science des terms: elle etudie leurs caracteristiques, notamment les lois linguistiques et socio – psychologiques de leur naissance et de leur evolution", with a marked historical pattern.  However, a stable equilibrium of Past, Present and Future on the evolution spire will characterize all worthwhile terminological activities.
Acknowledgement: The author expresses his thanks to Prof. G. Bögelsack for his support in realizing this paper.
Bögelsack, G. Twenty – five Years IFToMM Commission A "Standardization of Terminology" – History, Methodology, Results and Future Work, Machanisms and Machine Theory, Vol. 33, No. 1/2, pp. 1 – 5, 1998.
IFToMM Commission A, Terminology for the Theory of Machines and Mechanisms, Mechanism and Machine Theory, Vol. 18, No. 6, pp. 379 – 407, 1983.
IFToMM Commission A, Terminology for Theory of Machines and Mechanisms, Mechanism and Machine Theory, Vol. 26, No. 5, pp. 435 – 539, 1991.
IFToMM Commission A, Abbreviations / Symbols for Terms in TMM, Mechanism and Machine Theory, Vol. 32, No. 6, pp. 641 – 666, 1997.
Hermans, A., La Definition des Terms Scientifiques, Centre de Terminologie de Bruxelles, Meta XXXIV, 3, 1989.
Ionescu, T., Past, Present and Future in TMM Terminology, Proceedings of the Scientific Seminar of 19th Meeting of IFToMM PC on "Standardization of Terminology", pp. 7 – 12, Kaunas, 2000.
I would like to inform you that the Georgian Committee of the International Federation for the Theory of Machines and Mechanisms has established the reviewed and reported International Scientific Journal The Problems of Applied Mechanics on June 23, 2000. The journal is a periodical, manuscripts are submitted in Russian and English (languages of IFToMM) and are considered as scientific works of International level. It was conferred International members of serial edition ISSN1512-0740. The first copy of the scientific journal (No: 1, 2000) was issued in January 2001, the second copy No: 1(2), 2001 was issued in May 2001. The third copy No: 2(3), 2001 has been projected to be issued at the end of June, etc.
Subscription of one-year complete set of the journal (4 issues per year) is available for $120 USD.
Georgian Committee of IFToMM addressed by plead to the Chairman of Publication Professor Terry E. Shoup to give the status of IFToMM to the journal Problems of Applied Mechanics .
Fax: +995 32 536186; +995 32 923206.
Interested people are kindly suggested to contact the responsible for the IFToMM Archives before to send to IFToMM Archives at CISM material. The submitted material will be selected by the Sub-Commission for the IFToMM Archives of the PC for History of MMS.

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Trade dress constitutes a "symbol" or "device" within the meaning of §2 of the Trademark Act, 15 U.S.C. §1052. Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205, 209-210 (2000). Trade dress originally included only the packaging or "dressing" of a product, but in recent years has been expanded to encompass the design of a product. It is usually defined as the "total image and overall appearance" of a product, or the totality of the elements, and "may include features such as size, shape, color or color combinations, texture, graphics." Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 764 n.1 (1992).
Thus, trade dress includes the design of a product (i.e., the product shape or configuration), the packaging in which the product is sold (i.e., the "dressing" of a product), the color of the product or of the packaging in which the product is sold, and the flavor of the product. Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205 (2000); Two Pesos, 505 U.S. 763; Qualitex Co. v. Jacobson Products Co., Inc., 514 U.S. 159 (1995); In re N.V. Organon, 79 USPQ2d 1639 (TTAB 2006). However, this is not an exhaustive list, because "almost anything at all that is capable of carrying meaning" may be used as a "symbol" or "device" and constitute trade dress that identifies the source or origin of a product. Qualitex, 514 U.S. at 162. When it is difficult to determine whether the proposed mark is product packaging or product design, such "ambiguous" trade dress is treated as product design. Wal-Mart Stores, 529 U.S. 205. Trade dress marks may be used in connection with goods and services.
In some cases, the nature of a potential trade dress mark may not be readily apparent. A determination whether the mark constitutes trade dress must be informed by the application content, including the drawing, the description of the mark, the identification of goods or services, and the specimen, if any. If it remains unclear whether the proposed mark constitutes trade dress, the examining attorney may call or e-mail the applicant to clarify the nature of the mark, or issue an Office action requiring information regarding the nature of the mark, as well as any other necessary clarifications, such as a clear drawing and an accurate description of the mark. 37 C.F.R. §61(b). The applicant's response would then confirm whether the proposed mark is trade dress.
When an applicant applies to register a product design, product packaging, color, or other trade dress for goods or services, the examining attorney must separately consider two substantive issues: (1) functionality; and (2) distinctiveness. See TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23, 28-29, 58 USPQ2d 1001, 1004-1005 (2001); Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 775, 23 USPQ2d 1081, 1086 (1992) (only nonfunctional distinctive trade dress is protected). See TMEP §§1202.02(a) et seq. regarding functionality and TMEP §§1202.02(b) and 1212 et seq. regarding distinctiveness. In many cases, a refusal of registration may be necessary on both grounds. In any application where a product design is refused because it is functional, registration must also be refused on the ground that the proposed mark is nondistinctive since product design is never inherently distinctive. However, since product packaging may be inherently distinctive, in an application where product packaging is refused as functional, registration should also be refused on the ground that the proposed mark is nondistinctive. Even if it is ultimately determined that the product packaging is not functional, the alternative basis for refusal may stand.
If the proposed trade dress mark is ultimately determined to be functional, claims and evidence that the mark has acquired distinctiveness or secondary meaning are irrelevant and registration will be refused. TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23, 33, 58 USPQ2d 1001, 1007 (2001).
"was a "common" basic shape or design, whether it was unique or unusual in a particular field, [or] whether it was a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods[.]"
Trade dress can be registered as a trademark.
As the Supreme Court has noted, "It is well established that trade dress can be protected under federal law. The design or packaging of a product may acquire a distinctiveness which serves to identify the product with its manufacturer or source; and a design or package which acquires this secondary meaning, assuming other requisites are met, is a trade dress which may not be used in a manner likely to cause confusion as to the origin, sponsorship, or approval of the goods. In these respects, protection for trade dress exists to protect competition." TrafFix Devices Inc. v. Marketing Displays Inc., 532 U.S. 23, 58 USPQ2d 1001, 1004 (2001).
Trade dress, including product designs, are registerable as trademarks.
Trade dress features, including product designs, may be registered as trademarks subject to certain conditions.
"Trade dress," "product design," and other similar terms can refer to product features for which trademark rights are claimed.
FOOTNOTE 6 "The courts and the public have used the terms "trade dress," "product design," and similar terms, often loosely and interchangeably, to refer to product features as to which trademark rights are claimed."
Product design almost always serves a purpose other than source identification and therefore care must be taken not to misuse or over-extend trademark right on trade dress.
However, the Court states further, "And in Wal- Mart, supra, we were careful to caution against misuse or over-extension of trade dress. We noted that product design almost invariably serves purposes other than source identification." Id., citing, Wal-Mart Stores Inc. v. Samara Bros. Inc., 529 U.S. 205, 54 USPQ2d 1065 (2000).
A product design which is functional cannot be registered.
Primary among the "other requisites" to qualify for trademark protection is the "functionality" test.7 This requirement guards against "misuse" or "over-extension" of trade dress protection. FOOTNOTE 7 "Secondly, applicant must show that the product design has acquired distinctiveness. Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 34 USPQ2d 1161, 1163 (1995)."
That is, a product design which is functional cannot be registered. Valu Engineering Inc. v. Rexnord Corp., 278 F.3d 1268, 61 USPQ2d 1422, 1425 (Fed. Cir. 2002).
Trade dress protection must subsist with the recognition that in many instances there is no prohibition against copying goods and products.
As the TrafFix Court observed: "Trade dress protection must subsist with the recognition that in many instances there is no prohibition against copying goods and products. In general, unless an intellectual property right such as a patent or copyright protects an item, it will be subject to copying. As the Court has explained, copying is not always discouraged or disfavored by the laws which preserve our competitive economy. Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 9 USPQ2d 1847 (1989). Allowing competitors to copy will have salutary effects in many instances. "Reverse engineering of chemical and mechanical articles in the public domain often leads to significant advances in technology." Id." TrafFix, 58 USPQ2d at 1005.
A container for a liquid can be either a product or product packaging.
FOOTNOTE 8 "The possibility that a container for a liquid can be either a product or product packaging is acknowledged in Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205, 54 USPQ2d 1065, 1069-70 (2000) ("a classic glass Coca-Cola bottle, for instance, may constitute packaging for those consumers who drink the Coke and then discard the bottle, but may constitute the product itself for those consumers who are bottle collectors, or part of the product itself for those consumers who buy Coke in the classic glass bottle, rather than a can, because they think it more stylish to drink from the former.")"
Case Finding: The alleged mark is trade dress in the nature of product packaging, not trade dress in the nature of a product configuration because the identified product applicant seeks to register the alleged mark for is beverage and not the container.


Biestek v. Berryhill, No. 17-1184: Petitioner Michael Biestek, a former construction laborer, applied for social security disability benefits after he developed a degenerative disc disease and other ailments. An Administrative Law Judge (“ALJ”) was assigned to hold a hearing to determine whether Biestek could successfully transition to less physically demanding work. The Social Security Administration relied on an expert who testified to the availability of other jobs in the economy, based largely on private market-survey data. But when Biestek requested that the expert turn over those surveys, the expert refused. The ALJ denied Biestek’s application, basing the conclusion on the expert’s testimony. While an agency’s factual findings in such a proceeding are “conclusive” in judicial review so long as they are supported by “substantial evidence,” 42 U.S.C. §405(g), Biestek argued on appeal that the expert’s testimony could not be deemed “substantial evidence” given that the expert refused to provide the underlying data relied upon when specifically requested. The District Court rejected that argument, and the Sixth Circuit affirmed. Today, the Court likewise affirmed, holding that a vocational expert’s refusal to provide private market-survey data during a Social Security disability benefits hearing upon the applicant’s request does not categorically preclude the testimony from counting as “substantial evidence” in federal court under 42 U.S.C. §405(g).
Bucklew v. Precythe, No. 17-8151: Petitioner Russell Bucklew is on death row in Missouri. He argued that the State’s lethal injection protocol would be unconstitutional as applied to him because his unique medical condition would result in the State’s lethal injection protocol causing him severe pain. Bucklew acknowledged that the Court’s decisions in Baze v. Rees, 553 U.S. 35 (2008) and Glossip v. Gross, 576 U.S. __ (2015), provided the controlling standard for facial challenges to a state’s execution protocol, and required the identification of a “feasible, readily implemented” alternative procedure that would “significantly reduce a substantial risk of severe pain.” Bucklew contended, however, that showing was not required in an as applied challenge, and that in any event, he had identified the use of nitrogen gas – which neither Missouri nor any other State had ever used to carry out an execution – as an available alternative method. The District Court and Eighth Circuit both rejected Bucklew’s arguments. The Court today affirmed, holding that anyone bringing a method of execution claim alleging the infliction of unconstitutionally cruel pain – including an as-applied challenge – must meet the Baze-Glossip test, and that Bucklew had failed to present an alternative that could be “readily implemented,” that it was “legitimate” for the State to choose not to be the first to experiment with a new method of execution, and that there was insufficient evidence showing that Bucklew’s proposed alternative method would significantly reduce a substantial risk of severe pain.
Kansas v. Glover, No. 18-556: Whether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary.


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State of Kansas v. C.S.: Client was charged with a DUI after blowing .122. After 5 years of battling, the DUI charge was dismissed in Johnson County District court.
State of Kansas v. J.C.: Client was stopped on K-10 and charged with a DUI and Refusal of a Test. Both charges were dismissed in Johnson County District Court after the filing of motions.
City of Overland Park v. C.M.: Client arrested for DUI after an illegal U-turn and field sobriety tests. Found “Not Guilty” in Overland Park Municipal Court.
State of Kansas v. A.H.: Client charged DUI in Johnson County District Court after being involved in an accident on I-35, being arrested and blowing .103. The case was dismissed after the filing of motions.
City of Overland Park v. L.M.: Client was arrested for DUI and Refusal of a Test after allegedly running into a tree. Both charges were thrown out in Overland Park Municipal Court after the filing of motions.
State of Kansas v. J.K.: Client was stopped in a checklane in Franklin County and charged with DUI in Franklin County District Court after submitting to a Drug Recognition Examination and submitting a urine sample. Charges were dismissed prior to trial.
State of Kansas v. J.C.: Client was stopped for traffic infractions in Olathe and subjected to field sobriety tests. At the jail, the breath test result was .126. The case was dismissed in Johnson County District Court after the filing of motions.
State of Kansas v. M.C.: Client was arrested in Wyandotte County after a car accident on I-70. A blood test revealed a .26 blood alcohol content. Client was found “Not Guilty” after trial in Wyandotte County District Court.
City of Olathe v. R.P..: Client was arrested on a motorcycle and subjected to field sobriety tests and arrested. The case was dismissed in Olathe Municipal Court prior to trial.
City of Olathe v. S.W.: Client was involved in a motorcycle accident in Olathe and taken to the hospital where a blood test was refused. Case dismissed prior to trial in Olathe Municipal Court.
City of Mission v. J.K.: Client found “not guilty” of DUI in Mission Municipal Court.
City of Olathe v. K.G.: Client stopped for weaving out of the marked lanes of the road and arrested for DUI after field sobriety tests. Case dismissed in Olathe Municipal Court after the filing of motions and prior to trial.
City of Spring Hill v. T.S.: Client stopped for traffic infractions in Spring Hill, Kansas. DUI dismissed prior to trial.
City of Olathe v. B.S.: Client involved in a motorcycle accident and taken to the hospital, where a blood test later revealed a BAC of .23. Case dismissed by the Olathe Municipal Court prior to trial.
City of Lawrence v. A.M.: Client stopped for driving without headlights in Lawrence and subjected to field sobriety tests. The breath test at the Douglas County Jail was .095. Client found “Not Guilty” of DUI in Lawrence Municipal Court.
State of Kansas v. S.M.: DUI dismissed in Johnson County District Court prior to trial.
State of Kansas v. F.N.: Client arrested for DUI after allegedly fleeing and eluding police officer. DUI dismissed in Linn County District Court prior to trial.
State of Kansas v. R.M.: Client stopped for traffic violation and subjected to field tests. Breath test was .087. DUI dismissed in Johnson County District Court prior to trial.
City of Mission v. N.P.: Client stopped in a checklane in Mission, KS and charged with DUI after testing. The breath test was a .147. DUI dismissed.
City of Mission v. B.G.: DUI dismissed in Mission Municipal Court.
City of Overland Park v. A.P.: Client found in a vehicle after a car accident and admitted driving. Arrested after field tests and blew a .134 at the Overland Park Municipal Court. Case dismissed prior to trial.
City of Gardner v. C.S.: Client charged with DUI in Gardner Municipal Court after blowing .129 on the breath test machine. Case dismissed after appeal to the Johnson County District Court.
City of Overland Park v. M.B.: Client stopped for going outside of the lane and a wide turn and given field tests before being arrested for DUI and MIP. Client found “Not Guilty” of both charges in Overland Park Municipal Court.
City of Mission v. W.B.: Client stopped in a Mission checklane and blew a .121. DUI was dismissed.
State of Kansas v. K.H.: Client arrested by the Kansas Highway Patrol after driving without lights and allegedly failing field tests. The breath test was .117 at the jail. The case was dismissed after the breath test was suppressed by the court.
City of Gardner v. M.S.: Client found “not guilty” of DUI after trial in Overland Park, Kansas Municipal Court.

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Will Supreme Court Decision Be Death Knell for Life Without Parole?
If I had to name a single U.S. Supreme Court case that effectively highlights the entrenched problems of the American criminal justice system, it would be Montgomery v. Louisiana: from the 1963 murder of Charles Hurt Jr., a white deputy sheriff in East Baton Rouge, to the conviction of Henry Montgomery, a developmentally disabled African-American teenager, to the ensuing half-century during which Montgomery has been warehoused at the Louisiana State Penitentiary in Angola.
In other words, when Montgomery v. Louisiana is viewed through almost any critical lens, the deep fissures in our broken system are clearly apparent: the legacy of Jim Crow as reflected in the disproportionate representation of people of color in today’s courtrooms, jails, and prisons; the nation’s continued reliance on mass incarceration to solve intractable societal ills; and the refusal of many prosecutors, judges, and juries to consider criminal offenders — even those who are children or are intellectually compromised — as worth more than the worst thing they have ever done.
In November 1963, Deputy Hurt was shot and killed in a park in Scotlandville, a town in the segregated South that has since been annexed by Baton Rouge but which at the time was the largest majority African-American town in Louisiana.
At the time of his death, Deputy Hurt was on patrol, looking for kids who were truant from school. One of his daughters has described her late father as someone who “saw beyond race at a time when such vision was uncommon at best” and even initiated a “Junior Deputy” program for boys from Scotlandville.
Immediately after the shooting, there was a wide-ranging search for Hurt’s killer, with hundreds of deputies and police from neighboring parishes setting up roadblocks and making mass arrests in Scotlandville. Dozens, if not scores, of African-American men from 12 to 59 years old were arrested, held and questioned about the murder.
Among those arrested was Henry Montgomery, a mild-mannered 10th-grader with intellectual limitations who had turned 17 only two weeks earlier. Unfortunately nicknamed the Wolf Man due to his oversized teeth (an “alias” that was publicized prior to the trial), Henry lived with his grandparents, as his mother was autistic and had her own challenges.
Detectives brought Henry to his grandparents’ house, where he pointed out a .22 caliber pistol in the rafters and then accompanied them to the park where he re-enacted the crime. The detectives audiotaped Henry’s confession, during which he stated that he had left school to take a nap in the park and had run into Deputy Hurt behind the recreation center. When Hunt was patting him down, Henry panicked and shot him with the pistol he had placed in his jacket pocket.
Five years later, although the mood of the community was calmer, it took another all white and male jury a mere 90 minutes to convict Henry of first degree murder, after which he was sentenced for an offense committed as a juvenile to mandatory life without parole (JLWOP) and sent to Angola.
Fast-forward 50 years. Henry Montgomery is 69 years old and the U.S. Supreme Court has held in a 6-3 vote, written by Justice Anthony Kennedy and including Chief Justice John Roberts along with the liberal contingent of the court, that its June 25, 2012 decision in Miller v. Alabama declaring that life without parole should be reserved for only the “rarest of children” whose crimes reflect “irreparable corruption” applies retroactively.
This means that Montgomery, along with the approximately 1,000 or more inmates whose sentences were imposed before Miller (in states that had subsequently found Miller not to apply retroactively or had not yet addressed the question), will now have an opportunity for release.
In fact, the court in Montgomery has gone a step further than many anticipated by suggesting that, rather than conduct resentencing hearings in which the parties must opine whether the inmate was “permanently incorrigible” at the time of the original sentence, states may instead consider whether the inmate should be considered for parole, i.e., release from prison under specified conditions.
The process by which the court decides that a decision is retroactive was established in its 1989 ruling in Teague v. Lane, which requires retroactive application when the court declares a new rule of “substantive” law but not one of “procedural” law.
With Montgomery, the court ruled that Miller’s prohibition of mandatory life without parole for juvenile offenders was more than a procedural rule merely requiring the judge or jury to consider the defendant’s “youth” before the sentence. Instead, the court ruled that Miller more profoundly “rendered life without parole an unconstitutional penalty” for juveniles whose crimes “reflect the transient immaturity of youth,” and, thus, was the announcement of a new substantive rule.
It remains to be seen whether Montgomery v. Louisiana will be the death knell for JLWOP. As it stands, judges maintain the discretion to conclude that particular juvenile offenders convicted of homicide are, in fact, intrinsically incapable of redemption and will never be fit to re-enter society. There may be resentencing hearings and reviews by parole boards, but there are no guarantees of release, as we have already seen in states that have found Miller to be retroactive.
Yet, it cannot be denied that Justice Kennedy has continued to chip away at what he considers to be “disproportionate” and thus unconstitutional punishment for juveniles: with Roper v. Simmons, it was the death penalty; with Graham v. Florida, it was JLWOP for nonhomicide offenses; and with Miller v. Alabama, it was mandatory JLWOP for homicides.
Tamar Birckhead is a criminal defense attorney, law professor and director of clinical programs at the University of North Carolina at Chapel Hill School of Law.

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be-háwian. Add; to consider, (i) trans.:--Beháues ðæt wyrt londes considerate lilia agri, Mt. L. 6, 28. (2) intrans.:--Uton be-háwian be þám óþrum tídum de sequentibus horis videamus, R. Ben. 40, 21.
be-heáfdian. Add:--Hí beheáfdodon þone cempan, Hml. S. 19, 123: Hml. Th. i. 402, 17. Beheáfdian hine [geseón] gestreón getácnað to see one's self beheaded in a dream betokens gain, Lch. iii. 212, 13. þ-bar; hí hine beheáfdian sceolde, Bl. H. 183, 21: Ors. 6, 30; S. 282, 32: Shrn. 57, 21. Hí læ-acute;dan tó beheáfdianne, 75, 23. Tó beheáfdigenne, Hml. S. 19, 85. Beheáfdienne obtruncandum, An. Ox. 5255. Tó beheáf-diende decollandi, 3092. Wæs beheáfdod capite truncatur, 3022: Ap. Th. 3, II: Chr. 1076; P. 213, I. v. un-beheáfdod.
be-heáfdung. Add; decapitation:--Heó mid beheáfdunge hine ácwealde, Hml. Th. i. 488, 2: Hml. S. 19, 83. Tó beheáfdunge gelæ-acute;d, Ap. Th. 3, 17. Beheáfdinge, Shrn. 154, 8. Læ-acute;ded tó þæ-acute;re beheáf-dunge, 72, 34. Ðá áræfnode hé þá beheáfdunge, 129, II. Underfón hé beheáfdunge, Hml. Th. i. 420, 7. Beheáfdunge underhnígan capitalem sententiam subire, An. Ox. 3042.
be-heáfodlic; adj. Capital:--Beheáfodlicne dóm capitalem senten-tiam, An. Ox. 4042.
be-healdan. Add: I. to hold, occupy, (a) a place:--Þá wíc beheóld hálig gást, hreðer weardode, El. 1144. Seó þe flóda begong beheóld hund missera, B. 1498. (b) an office:--Þegn nytte beheóld, B. 494. Seleweard sundornytte beheóld ymb aldor Dena, 667. II. to hold, contain:--Bihaldne contentus, Mt. P. 10, 15. (a) to have efficacy:--Ne beheóld hit nán þing seó scipfyrding búton folces geswinc there was nothing in all this preparation but labour for the people, Chr. 999; P. 133, 10. Cweþað þá ðe syndan stunte þæt mycel forhæfednes lytel behealde that there is very little in great abstinence, Wlfst. 55, 24. (b) to have meaning, signify:--Wit gesáwon swefen, ac wyt nyton hwá hyt unc átelle, hwæt hit behealde what its meaning is. Gen. 40, 8. III. to hold, keep a law:--Godes beboda utan wé behealdan, Bl. H. 39, 4. IV. to hold, keep, maintain:--Hí mé onhwyrfdon of þæ-acute;re gecynde þe ic æ-acute;r cwic beheóld, Rä. 72, 4. Þá woruldsæ-acute;lþa beheóldon on þé heora ágen gecynd fortuna servavit circa te propriam constantiam, Bt. 7, 2; F. 16, 31. V. to keep, guard, preserve:--Hé hine nó ne beheóld wið ðá gæ-acute;stlican scylde sese a spiritalibus vitiis minime custodit, Past. 315, 1. Engel þá menigeo beheóld, Exod. 205. Ðá ðe hiá seolfa hygdiglige beheóldon qui seipsos castraverunt, Mt. L. 19, 12. Beheald þé on þínum lífe þ-bar; þú dó wel þínum bearnum, Nar. 50, 24. Behealdað eów wið leásum wítegum adtendite a falsis prophetis, Hml. Th. ii. 404, 3: Bl. H. 241, 9: Past. 317, 9: 449, 36. Ðæt hí hí behealden ðæt hí innan ne áfeallen, Past. 439, 9. Ðá ðe heá búta éghwoelcum flita behaldan, Mt. L. 5, 9 note. Hié for duste ne mehton geseón hú hí hí behealdan sceolden, Ors. 5, 7; S. 230, 16. Hit æ-acute;r hit nolde behaldan wið unnyt word otiosa covere verba negligit, Past. 279, 4. On sibbe behealden, Ps. Th. 75, 2. VI. to take care, beware:--Beheald þæt ðú ðás dæ-acute;de ne dó, Hml. Th. i. 38, 25: Lch. i. 332, 6: ii. 318, 19. Behealdað ðæt Adam ne ete of ðám treówe, Hex. 26, 15. Behaldas attendite, Mt. L. 6, I. Tó behaldenne cavendum, 16, 12. Tó behal-danne evitandum, Lk. p. 7, 15. VII. to behold, (I) intrans. To look:--Gif se yrðlincg behylt underbæc, Hml. S. 16, 178. Beheald æfter þé, Bl. H. 245, 6. Beheald on mé, 229, 30. Hé hét his cnapan behealdan tó þæ-acute;re sæ-acute;, Lch. iii. . 276, 24. Behealden(d)ra prospicientium, Kent. Gl. 1030. (2) trans, (a) to look at, gaze on:--Ic þé beheóld, Bl. H. 235, 26. Hí beheóldon Moises aspiciebant tergum Moysi, Ex. 33, 8: Kr. 64. (b) to watch, observe:--Hiæ-acute; biheóldun (-heáld-. L.) hine obseruabant eum. Mk. R. 3, 2. Ne behealdon gé heofenan ne sunnan, Deut. 4, 19. Mid ðí heó behealdende wæs (intueretur) mid hwylcum þingum hé upp togen wæ-acute;re, Bd. 4, 9; Sch. 394, 6. (c) to see:--Folc óðer wundor beheóld líge scínan, Exod. 109. Behealdan videre, Wülck. Gl. 255, 31. (d) of the mind, to regard, consider, observe, (a) with acc.:-- Gif þú míne unrihtwísnesse behealdest, Bl. H. 89, 16. Beheald mé holdlíce and gehýr mé intende in me et exaudi me, Ps. Th. 54, l. (β) with clause:--Æ-acute;lc gleáw mód behealt hwelcne ende hí habbaþ, Bt. 7, 2; F. 18, 23. Heó beheóld hú þæt þing gewurde considerante even-tum rei, Ex. 2, 4. Beheald hú þás men þínum ðeówe dóþ, Bl. H. 229, 22: Bt. 36, 5; F. 180, 5. Behealdan gé hwæþer gé hit hire gecýþan willen, H. R. 9, 7. [O. Sax, bi-haldan: O. Frs. bi-halda: O. H. Ger. pi-haltan.] v. next word.
be-healden; adj. (ptcpl.). I. cautious, reserved:--Ðonne hé wilnað ðæt hé sciele rícsian, hé bið swíðe forht and swíðe behealden; ðonne hé hæfð ðæt hé habban wolde, hé bið swíðe ðríste, Past. 57, 4. II. intent, assiduous:--Hé wæs geornfull and behealden (intentus) in Godes hýrnessum, Gr. D. 224, 13. v. bi-healdan in Dict.
be-healdend, es; m. A beholder, spectator:--Geflit cymeð þám behealdendum in quaestionem ueniat intuentibus, Bd. I. I; Sch. 9, 18.
be-healdenness, e; f. I. observance:--Bihaldenisses obser-vantiae, Rtl. 16, 17. Bihaldennise observantiam, 9, I. II. con-tinence:--Bihaldennises continentiae, Rtl. 104, 4.
be-hédan. Substitute: v. be-hýdan: be-héfe, es; m. Dele.
be-héfe; adj. Add: useful, needful:--Behéfe (utilis) ic eom eal-lum folce, Coll. M. 26, 25. Cræft behéfe and neódþearf ars utilis et necessaria, 27, 27: 18, 16. Sibling þé swá behéfe swá ðín hand, Hml. Th. i. 516, 15. Mé þingð behéfe þing þ-bar; ic gecýðe, Angl. viii. 335, 2: 303, 26. Drihtne bihoefe is Domino necessarius est, Mk. R. II, 3. Sýn gehwám behéfe þing (necessaria) gesealde, R. Ben. 57, 17: 132, 4. Land ðæ him gehændre beó and behéfre terra quae eis uicinior sit uel utilior, C. D. v. 137, 21. Sélost and hire behéfast, Hml. S. 33, 252. Feówer þing synt ealra þinga behéfost þám árwyrðan men, Wlfst. 247, II. Þing þe behéfuste synt tó witanne, Angl. viii. 321, 40. v. níd-, un-behéfe.
be-héflic; adj. Useful, needful, necessary:--Ús þingð wel behéflic thorn-bar; wé hine gehandlion, Angl. viii. 308, 15. Hé ys behéflic tó cunnane, 314, 18.
be-héfness, e; f. Utility, advantage, convenience:--Behéfnes com-moditas, i. utilitas, Wrt. Voc. ii. 132, 4. Lífes éces behéfnyssa (com-moda), Hy. S. 5, 21: 114, 9. Behéf[nyssum] commoditatibus, An. Ox. 56, 306.
be-helian. Add:--Ðæt mód mid ðæ-acute;re beheleð his fét, Past. 241, 20. Heofon behelað eal ðæt him beufan bið, Sal. K. p. 178, 9. Moyses behelede ðá bierhto his ondwlitan, Past. 459, 19. þ-bar; fex hí behelede on æ-acute;lce healfe, Hml. S. 7, 147. Þá heortan æt þínum burhgeatum behele (-a, v. l.), Lch. i. 328, 24. Se preóst þá húselláfe behelie mid corporale, Ll. Th. ii. 358, 24. Ðeáh hé his þeáwas behelie, Prov. K. 58. Ðæt ðá loccas ðá hýd behelien (-igen, v. l.), Past. 141, 9. Ðæt hié hié gehýden and beheligen under ðæ-acute;m ryfte ðæ-acute;re leásunga, 239, 25. Behýd and behelod mid ðæ-acute;re eorþan, Bt. 15; F. 48, 25. Ðá triówa ðe ðé sindon opene, hí sindon git mid manegum óþrum behelede, 7, 2; F. 18, 4. Heora synna beóð behelede (tecta), Ps. Th. 31, I. [O. Frs. bi-hella: O. H. Ger. pi-hellen velare.] v. be-hylian.
be-heófian. Add:--Yfelu beheófian mala plangere, Scint. 44, 5.
be-heonan. Add: prep. dat. On this side of:--Biheonan cis, Wrt. Voc. ii. 104, 5. Beheonan, 14, 31. Behionan Humbre, Past. 3, 14. Behienan Wendelsæ-acute;, Chr. 885; P. 78, 31. Behinon (-heonan, v. l.) sæ-acute; 878; P. 76, 9. Ge beheonan sæ-acute;ge begeondan, Shrn. 114, 5.
be-heopian. Add: cf. Gen. 2701: be-hicgan. v. be-hycgan.
be-hindan. Add: I. prep. (l) dat.:--Behindan him sylfum tæ-acute;lan, Bl. H. 65, l. Hé þæ-acute;r wunode behindan óþrum mannum, Gr. D. 278, 21. Ðeáh hí sín behindan ðæ-acute;m ðe læ-acute;ssan hádes bióð, Past. 411, 23. (2) with acc.:--Ðeáh hé dó God behindan hine, Past. 373, I. Gong bi-hionda mec uade retro me, Mk. R. 8, 33. II. adv.:--Ðá Deniscan sæ-acute;ton þæ-acute;r behindan, Chr. 894; P. 86, 4. Hié gebunden his handa be-hindan, Bl. H. 241, 29. Behindon forlæ-acute;tan, Nar. 7, 3, Stód bihianda stans retro, Lk. L. 7, 38. Cwom bihianda venit retro, Mk. L. 5, 27. Behianda (bihionda R.), Lk. L. 8, 44.
be-hípian to heap up:--Behýpedan ingesserunt, An. Ox. 3322. v. heápan.
be-híwian to feign, dissimulate:--Behíwiende dissimulans, R. Ben. I. 16, 7.
be-hlæ-acute;man. Dele, and see next word.
be-hlæ-acute;nan. Add: to surround, encompass:--Foldbúende se micla dæg mægne bihlæ-acute;neð (-hlæmeð, MS.), swá þeóf hæleð forféhð slæ-acute;pe gebundne, Cri. 870. Eal engla werod behlæ-acute;nað (cf. embtrymmað. Wlfst. 137, 15) ðone Metod, Dóm. L. 116.
be-hleápan. Add:--Ic on behleápe insilio, Ælf. Gr. Z. 191, 4.
be-hóf, es; n. I. behoof, need, use:--þ-bar; hé æ-acute;nne scylling hæfde tó his ágenum behófe (nytte, v. l.) ut unum solidum in expensis propriis haberet, Gr. D. 158, 23. Hé sende æfter pallium tó arþ-bar;. UNCERTAIN behóue (ad opus), Chr. 780; P. 52, 14. þ-bar; feoh syllan tó þæs cynges behófe, 1094; P. 229, 23. II. need, want:--Tó behófe ad indigentiam, An. Ox. 27, 34. Cf. Lk. p. 8, 18 where behófe glosses prodigi. v. níd-behóf.

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


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Before ANDERSON, McKAY, and LUCERO, Circuit Judges.
Plaintiff appeals the district court's orders (1) dismissing his claims against defendant University of Colorado and its employees, defendants Romero and Waskeiwicz, for lack of subject matter jurisdiction, and (2) granting defendants Godfrey, Keycorp, and Leake's combined motion to dismiss and motion for summary judgment. We affirm.
In April 1995, plaintiff applied for a Law Access Program loan to defray the cost of an overseas educational program. The loan was initially denied based on information contained in plaintiff's credit report. After a telephone discussion between plaintiff and defendant Leake, the loan was resubmitted and approved, and in May 1995 funds were disbursed to the University of Colorado by Society National Bank, a wholly owned subsidiary of Keycorp. The check was sent to plaintiff's parents, who deposited the loan in plaintiff's account. Defendants Waskeiwicz and Romero, who are employees of the University of Colorado, participated in the loan application and disbursement process.
In September 1995, plaintiff filed case number 95-WY-2458-AJ, seeking damages from numerous defendants, including defendants Leake and Society National Bank, for injuries allegedly caused by the initial loan denial and the subsequent loan approval and disbursement. Defendant Godfrey represented defendants Leake and Society National Bank in the case. Summary judgment was granted in favor of defendants, which we affirmed in Galbraith v. Ameritrust of Cleveland, No. 96-1437, 1997 WL 459814 (10th Cir. Aug. 13, 1997).
In September 1996, plaintiff filed his current claims against the University of Colorado, Waskeiwicz, Romero, Keycorp, and Leake for their roles in the loan denial and disbursement proceedings, and against defendants Leake, Keycorp, and Godfrey for their conduct during the prior litigation. The district court dismissed plaintiff's claims against defendants University of Colorado, Waskeiwicz, and Romero based on the Eleventh Amendment, and granted the remaining defendants' combined motion to dismiss and motion for summary judgment. This appeal followed.
We review de novo a dismissal for lack of subject matter jurisdiction. See Painter v. Shalala, 97 F.3d 1351, 1355 (10th Cir. 1996). We also review summary judgment rulings de novo, applying the same standard as the district court. See Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 851 (10th Cir. 1996). Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In addition, the preclusive effect of a former judgment is a question of law which we review de novo. See Griego v. Padilla (In re Griego), 64 F.3d 580, 584 (10th Cir. 1995).
The Eleventh Amendment bars suits in federal court for damages against states, state agencies, and state officials in their official capacities, unless the state unequivocally waives its immunity or Congress expressly abrogates the state's immunity in creating a statutory cause of action. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 97-102 (1984). The University of Colorado is an agency of the state entitled to Eleventh Amendment immunity. See Rozek v. Topolnicki, 865 F.2d 1154, 1158 (10th Cir. 1989) (holding University of Colorado immune under Eleventh Amendment).
Employees Waskeiwicz and Romero also are entitled to immunity under the Eleventh Amendment for acts performed in their official capacity. See Kentucky v. Graham, 473 U.S. 159, 169 (1985) (holding official capacity suit is suit for damages against state barred by Eleventh Amendment). Plaintiff has not shown that his claims were brought against these defendants in their personal capacities. Further, his claims are simply state law tort claims, which do not provide an independent basis for jurisdiction in federal court. The district court was correct, therefore, in dismissing plaintiff's claims against defendants University of Colorado, Waskeiwicz, and Romero for lack of jurisdiction.
The district court was also correct in granting the remaining defendants' combined motion to dismiss and motion for summary judgment. The claims against defendants Keycorp and Leake, arising out of the loan denial and the subsequent loan approval and disbursement, are barred by res judicata. The four elements necessary for application of this doctrine have been satisfied: the former lawsuit ended with a judgment on the merits, the parties are identical or are in privity, the current suit is based on the same cause of action, and plaintiff had a full and fair opportunity to litigate his claims in the prior suit. See Nwosun v. General Mills Restaurants, Inc., 124 F.3d 1255, 1257 (10th Cir. 1997).
The outrageous conduct claims against Leake and Keycorp, arising out of their conduct during the prior litigation, were properly dismissed because (1) plaintiff's allegations were insufficient to show, as a matter of law, that defendants' conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community," Rugg v. McCarty, 476 P.2d 753, 756 (Colo.1970) (en banc) (quotations omitted), and (2) the appropriate remedy for defendants' alleged falsehoods and procedural violations was a motion for sanctions in the prior suit, which the district court denied, see R. I, doc. 22, exs. I & J; Henry v. Kemp, 829 P.2d 505, 506-07 (Colo.Ct.App.1992) (holding Colorado Rule of Civil Procedure 11 was exclusive remedy, and that tort claim for alleged Rule 11 violation could not be asserted in separate proceeding).
Finally, plaintiff's defamation and outrageous conduct claims against Godfrey, based on his allegedly false statements during the previous litigation, were properly dismissed because such statements were absolutely privileged. See Buckhannon v. U.S. West Communications, Inc., 928 P.2d 1331, 1334-35 (Colo.Ct.App.1996) (holding attorney privileged to make allegedly false derogatory statements during course of litigation, shielding attorney from tort claims such as defamation and intentional infliction of emotional distress). The fraud claim also was properly dismissed because plaintiff failed to present evidence of a fraudulent loan transaction.
The judgment of the United States District Court for the District of Colorado is AFFIRMED. The mandate shall issue forthwith.

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


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Mr. Arthur V. Lynch is known as one of the premier trial lawyers in the New York metro area. He has tried cases throughout New Jersey, the five boroughs of New York City and the surrounding suburban counties outside of New York City. He has also been invited to participate and litigate cases in Ohio and North Carolina. His 20 years as a defense attorney prior to switching sides provide him with a unique perspective on handling personal injury cases for consumers. He has achieved many awards/settlements of over $1,000,000. In 2014, The New Jersey Law Journal recognized him in the Personal Injury Hall of Fame. In January 2019, Mr. Lynch was appointed by Superior Court, Passaic County Judge Raymond Reddin to act as a law guardian to examine whether a settlement was fair and reasonable for a child that suffered brain damage as a result of the actions of a drunk driver.
The New Jersey Law Journal recognized him in the Personal Injury Hall of Fame in 2014. He was also featured in the National Law Journal’s “Big Money Wins of 2013” for a multi-million-dollar settlement he obtained at trial during that year. The journal placed this settlement among the nation’s top 50 verdicts/settlements. He is Certified by the Supreme Court of New Jersey as Civil Trial Attorney. He has also gained entry into the Multi-Million Dollar Advocates Forum. He was selected as a member of The National Trial Lawyers, Top 100 Trial Lawyers in 2014. Arthur has also been recognized as a Super Lawyer for several years.
Mr. Arthur V. Lynch has many verdicts and settlements that approach and exceed $1,000,000. He is a sought-after speaker on trial practice issues for continuing legal education courses for attorneys. He is often hired by other attorneys to handle personal injury cases.
*Note some of the matters above were settled for limited amount shown based on available insurance coverage for the defendants involved.
*Mr. Lynch has many additional verdicts not listed here as well as hundreds of settled matters.
Arthur Lynch has been featured on the front page of The New York Law Journal and has published noteworthy books and other literature on insurance issues. He has appeared in the New Jersey Law Journal, most recently in October of 2014. The first, entitled The New York Tort Threshold, is a legal treatise authored to teach personal injury attorneys as well as people in the insurance field about the complicated insurance issues that surround injury claims arising from automobile accidents. The second, The 10 Commandments for Buying Insurance, co-authored with James S. Lynch, is a comprehensive book geared toward consumers regarding automobile, homeowner’s and life insurance.
Arthur continuously speaks and teaches other lawyers on issues concerning trial practice. He has been a regular speaker on these issues for the New Jersey Association for Justice as well as local bar organizations. He takes great pride in teaching others. Some of the issues that he has lectured on are: direct examination, cross examination, opening statements, demonstrative evidence and trying to make the complex easily understandable.
Mr. Arthur V. Lynch started working as a stock boy and later as a cashier in his father’s health and beauty aid store (think CVS with no prescriptions) at the age of 10. His father, Jay, was the owner of this neighborhood store located in the Bronx. Almost every weekend, Arthur would work in the store along with his brother Jim, now his law partner. They had to be at the store before 5:00 a.m., otherwise the newspapers that were thrown off the truck on to the sidewalk would be stolen. The phrase “Can I help you?” was imbedded in Arthur at an early age by Jay, who implored that every person who came into the store looking for merchandise had to be helped. At age 12, he graduated to the job of cashier. The truism that the “customer is always right” was something that was discussed every day. The store was near a subway and bus stop, and making sure that the customers were served quickly and with a smile was very important.
Prior to law school, Arthur held a wide variety of jobs: groundskeeper, ($2.30/hour), dishwasher, warehouse worker, auto-body shop helper, fast food restaurant worker, deli counter man, construction worker. All of these jobs required him to connect with people and to work hard. Arthur’s father was known in the community as an honest businessman. On more than one occasion, Arthur personally observed someone try to tempt him with some goods that had “fallen off the truck,” or in other words stolen. Arthur’s father always threw the “seller” out of the store and told him never to come back. Jay would never permit someone to damage his integrity. Arthur never forgot that. The value of hard work and honesty was instilled early on.
Arthur’s grandfather, Arthur V. Lynch, was an attorney who was a professor at St. John’s University. He was unusual in that he became a professor after spending his career as a successful trial attorney in New York City. Arthur’s grandfather ultimately became one of the most popular professors at the school because he brought his real-world experience to the classroom. He pushed for new and innovative classes like Legal Medicine.
Growing up, Arthur’s uncle – his father’s brother – Harry V. Lynch was a practicing attorney, having continued in the firm established by his father, Arthur. Harry practiced primarily in Orange County, New York. Harry represented people who had been injured or as he put it, someone who had a “bad break in life.” He was on the cutting edge of the law and was involved in cases that changed the old traditional common law in New York State. Back then, there were strict limitations on what someone could recover if they were injured by someone who did not take care of their property. Arthur saw the legal field as one where he could help people and change things.
Arthur’s mother, Helen, was a junior high school teacher who was assigned some of the most troubled kids. She enjoyed the challenge of her career and never complained about it. The reward would come years later, when a former student stopped her in the supermarket to tell her that their time in the classroom forever changed them, motivating them to become a better person.
Arthur wanted a career that would be challenging and rewarding. He wanted to help people like his mother did and also change things like his grandfather was doing. There were so many attorneys in the family besides his own grandfather. His grandmother, Elizabeth T. Lynch, (one of the few female attorneys in her graduating class) and her father, James J. O’Byrne, had been attorneys. The idea of becoming an attorney had always been in the back of his mind.
Arthur followed his grandfather, grandmother, and uncle to St. John’s Law School in Queens, New York. He graduated from St. John’s University School of Law in 1988. He had the distinction of being the first third-generation graduate in the history of the school. The New York Daily News reported the event.
Arthur began his career at Composto & Longo in Brooklyn. The firm was known as stepping stone for those who aspired to the bench. At the time, the firm boasted an Appellate Division Justice as well as several Supreme Court Justices. Even today, there remains a sitting Supreme Court Justice, the Honorable Guy J. Mangano, Jr. (Justice Mangano worked in the office directly next to Arthur). Arthur was admitted to the bar of the State of New York on November 16, 1988. He was believed to be the first person who took the bar in July of 1988 to be admitted to practice law in the State. The Composto firm was retained by Allstate, Liberty Mutual, and others to defend people who had caused an accident in which someone was injured.
In early 1989, Arthur tried his first case. Over the next four years with the Composto firm, Mr. Lynch was involved in over 100 cases that reached the trial stage. In this time frame, Mr. Lynch probably was involved in more jury trials than most attorneys have in their entire career.
Arthur decided to move on and was employed as an attorney defending cases for Progressive Insurance Company. The firm was based in White Plains, New York, however, he spent most of his time in Brooklyn and Queens. The time spent at Progressive was not as court-intensive and Arthur had more time in the office. The time was well spent, as Arthur developed a pre-computer system that permitted him to have an immediate update on every case that he handled. In addition, the customer service sense that was instilled in him by his father (calling people back when they called, etc.), made him extremely popular with Progressive.
By 1994, Arthur’s brother, Jim, had also become an attorney. Following law school, Jim chose to work for Pitney, Hardin, Kipp and Szuch in Morristown, New Jersey. The Pitney firm – one of New Jersey’s largest – handled large corporate cases. Jim was assigned to the environmental law department. He found the work unrewarding, and after 2 years, he left the Pitney firm to establish his own law firm. Arthur and Jim had always dreamed of joining forces and getting involved in a practice area where they could help people, not corporations. Arthur had experience handling personal injury cases for the defense. Jim, therefore, had to play catch up and learn how to handle personal injury cases. He was and (is) smart, tough and willing to learn.
On April 1, 1994, Jim and Arthur set up shop in a small office on Windermere Avenue in Greenwood Lake, New York. They resolved to help people and handle plaintiff’s personal injury cases. The law firm was two doors down from their uncle, Harry V. Lynch, who had operated the family firm also named Lynch & Lynch. Harry’s health, unknown to Jim and Arthur, was failing.
Jim and Arthur got a slow start, however, hard work and dedication prevailed. After about a year, there was enough plaintiff’s personal injury business to keep the firm going. Something else happened. The people that Arthur and Jim had worked for were also calling. Jim began to try plaintiff’s cases for other lawyers, and Arthur began to field calls from Progressive and the Composto firm to handle work for them.
Harry eventually realized that he could not continue running the family firm, which had been in operation since 1942. He turned over some of his cases to Jim and Arthur, which they completed on behalf of the family firm. Since Arthur and Jim took over what was left of the family firm, they now could trace the roots of their operation back to 1942.
Jim’s reputation as a plaintiff’s attorney was growing. He was taking cases that no one wanted and winning them for his clients. Other lawyers were noticing, and sent him their cases to handle. The success that Jim was experiencing was exactly what they had envisioned when they joined forces.
Arthur was being pulled in a different direction. When Arthur left Progressive, upper management was disappointed that he was no longer an employee of the company. They took the unusual step of placing him on the list of those approved to handle cases for their company. He was only 31 years of age when approved by Progressive.
Progressive began to send Arthur the cases that had difficult clients, difficult attorneys and other tasks that other established firms refused to handle. The results for Progressive were excellent, as was the customer service. They began sending more and more cases, which brought Arthur closer to New York City and New Jersey. In 1996, Arthur and Jim decided to move closer to where the business took them, which was Newark, New Jersey. They later moved to Paramus, New Jersey.
Arthur and Jim had always been interested in the latest technology for their firm. Early on, they understood that computers and databases would transform the legal industry. This was in stark contrast to rest of the industry. At that time, the people running law firms were much older and most of them typically never used computers. Therefore, the firms did not understand how information was changing the industry. Arthur was constantly trying to improve his customer service and met with management to find out what they needed. They wanted quick, reliable customer service. In a conversation with an insurance adjuster, Arthur realized that he could send a “Lotus note” from the outside directly to insurance adjuster’s computer. This “discovery” became transformational to Arthur’s relationship with Progressive. Instead of waiting 7 days to hear from an attorney, which was the standard, Arthur was sending an update within hours by e-mail.
According to Progressive’s attorney rating system, Arthur’s early adoption of e-mail to interact with the company made him their highest rated attorney for responsiveness and customer service in the New York/New Jersey area. The employees of Progressive could send out their files to any attorney on the list, which was composed of dozens of attorneys and firms. Since Arthur was the easiest to do business with and obtained excellent results, Progressive began to send files, seemingly by the truckload. Arthur took on a partner, Victor Timoshenko to help handle the work. By 2001, Arthur was told that his firm handled the most cases from Progressive of any firm in the country. In 2002, Arthur was told that his firm had 80% of the litigated files in the Downstate New York/New Jersey area. Other insurance companies had heard of Arthur and the firm and were sending him their cases as well. Over the years, Arthur defended cases from Farmers, Travelers and others.
The insurance companies were sending cases not only because Arthur was dedicated to customer service, but because he was winning in Court. Over the course of a twelve-year period from 1996-2008, Mr. Lynch won every case that he tried. In these cases, the jury always awarded less money than the insurance company’s final offer. In many instances, the jury came back with no award at all.
Jim’s practice as a plaintiff’s attorney continued to surge. He had built a practice based upon the cases that other attorneys trusted him to handle as well as word of mouth. Arthur was always in the background, helping out Jim with his cases when possible. However, he was busy with his own practice, which was composed of work from insurance companies. Over time, Mr. Lynch became more and more convinced that there were consumers – plaintiffs – who would unjustly leave the courthouse with little or no compensation. Even though the jury did not know that the cases involved insurance, almost every personal injury case involves an insurance company. He felt that in many cases, the insurance carrier was the winner, while the consumer, who deserved more, was the loser.
Even though Mr. Lynch was on the “winning” side, he began to feel that he was not doing justice by taking cases from the insurance carriers. He also noticed that there were many lawyers who represented plaintiffs that did not prepare their cases well enough or understand the correct legal arguments that had to be made. This caused the attorneys to lose their cases or have very poor outcomes.
More importantly, he began to question what he was doing and whether “winning” for multi-billion-dollar insurance companies was really helping people or changing things for the better – which was the reason that he became an attorney in the first place.
Jim’s reputation among other lawyers and in the community was soaring. Arthur had begun to work more closely with Jim on his cases. In 2006, they tried their first plaintiff’s case as co-counsel. The result was a $1 million verdict. By 2008, he felt that he needed help to maintain the level of service and commitment to excellence that he had always provided. At that point, Arthur was ready to end his twenty-year relationship with the insurance companies.
In 2009, Mr. Lynch began trying cases exclusively for the plaintiffs, or consumers. Based upon his defense experience and the insights that very few attorneys have, he knew all the defense arguments and tactics. He also understood that representing clients and trying cases on the plaintiff’s side was different and more difficult.
Presently, Arthur tries cases on behalf of consumers (plaintiff) who have been injured because of the dangerous conduct of someone else. He understands that although he has a long and successful track record, he must continue to work hard each and every day to represent the clients that have selected him as their attorney.
Over the years, he has volunteered his time as a Foreclosure Mediator, having been appointed by the State of New Jersey to hear such cases. He has also been a volunteer for the Planning Board and handled zoning issues in his local community. He has also coached baseball, softball, soccer and basketball in his community. Mr. Arthur V. Lynch continues to play men’s softball on a team with his son, as well as his brother Jim, his law partner. He resides in northern New Jersey with his wife Alice and their three children.
*Mr. Lynch has many additional verdicts not listed here and hundreds of settled matters.

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