CompuServe Incorporated, Plaintiff, vs. Cyber Promotions, Inc. and Sanford Wallace, Defendants.
[**1] Plaintiff's motion for a preliminary injunction GRANTED.
For COMPUSERVE INC, An Ohio Corporation, plaintiff: Robert W. Hamilton, Jones Day Reavis & Pogue, Columbus, OH.
For CYBER PROMOTIONS INC, a Pennsylvania Corporation, defendant: Alan Charles Witten, McShane, Breitfeller & Witten, Columbus, OH. Ralph A Jacobs, Unknown.
This case presents novel issues regarding the commercial use of the Internet, specifically the right of an online computer service to prevent a commercial enterprise from sending unsolicited electronic mail advertising to its subscribers.
Plaintiff CompuServe Incorporated ("CompuServe") is one of the major national commercial online computer services. It operates a computer communication service through a proprietary nationwide computer network. In addition to allowing access to the extensive content available within its own proprietary network, CompuServe also provides its subscribers with a link to the much larger resources of the Internet. This allows its subscribers to send and receive electronic messages, known as "e-mail," by the Internet. [**2] Defendants Cyber Promotions, Inc. and its president Sanford Wallace are in the business of sending unsolicited e-mail advertisements on behalf of themselves and their clients to hundreds of thousands of Internet users, many of whom are CompuServe subscribers. CompuServe has notified defendants that they are prohibited from using its computer equipment to process and store the unsolicited e-mail and has requested that they terminate the practice. Instead, defendants have sent an increasing volume of e-mail solicitations to CompuServe subscribers. CompuServe has attempted to employ technological means to block the flow of defendants' e-mail transmission to its computer equipment, but to no avail.
This matter is before the Court on the application of CompuServe for a preliminary injunction which would extend the duration of the temporary restraining order issued by this Court on October 24, 1996 and which would in addition prevent defendants from sending unsolicited advertisements to CompuServe subscribers.
For the reasons which follow, this Court holds that where defendants engaged in a course of conduct of transmitting a substantial volume of electronic data in the form of unsolicited [**3] e-mail to plaintiff's proprietary computer equipment, where defendants continued such practice after repeated demands to cease and desist, and where defendants deliberately evaded plaintiff's affirmative efforts to protect its computer equipment from such use, plaintiff has a viable claim for trespass to personal property and is entitled to injunctive relief to protect its property.
2. Some networks are "closed" networks, not linked to other computers or networks. Many networks, however, are connected to other networks, which are in turn connected to other networks in a manner which permits each computer in any network to communicate with computers on any other network in the system. This global Web of linked networks and computers is referred to as the Internet.
3. [**4] The nature of the Internet is such that it is very difficult, if not impossible, to determine its size at a given moment. It is indisputable, however, that the Internet has experienced extraordinary growth in recent years. ... In all, reasonable estimates are that as many as 40 million people around the world can and do access the enormously flexible communication Internet medium. That figure is expected to grow to 200 million Internet users by the year 1999.
11. No single entity--academic, corporate, governmental, or non-profit--administers the Internet. It exists and functions as a result of the fact that hundreds of thousands of separate operators of computers and computer networks independently decided to use common data transfer protocols to exchange communications and information with [**5] other computers (which in turn exchange communications and information with still other computers). There is no centralized storage location, control point, or communications channel for the Internet, and it would not be technically feasible for a single entity to control all of the information conveyed on the Internet.
American Civil Liberties Union v. Reno, 929 F. Supp. 824, 830-832 (E.D.Pa. 1996). In 1994, one commentator noted that "advertisements on the current Internet computer network are not common because of that network's not-for-profit origins." Trotter Hardy, The Proper Legal Regime for "Cyberspace", 55 U.Pitt.L.Rev. 993, 1027 (1994). In 1997, that statement is no longer true.
n1 This term is derived from a skit performed on the British television show Monty Python's Flying Circus, in which the word "spam" is repeated to the point of absurdity in a restaurant menu.
CompuServe subscribers use CompuServe's domain name "CompuServe.com" together with their own unique alpha-numeric identifier to form a distinctive e-mail mailing address. That address may be used by the subscriber to exchange electronic mail with any one of tens of millions of other Internet users who have electronic mail capability. E-mail sent to CompuServe subscribers is processed and stored on CompuServe's proprietary computer equipment. Thereafter, it becomes accessible to CompuServe's subscribers, who can access CompuServe's equipment [**7] and electronically retrieve those messages.
[*1019] Over the past several months, CompuServe has received many complaints from subscribers threatening to discontinue their subscription unless CompuServe prohibits electronic mass mailers from using its equipment to send unsolicited advertisements. CompuServe asserts that the volume of messages generated by such mass mailings places a significant burden on its equipment which has finite processing and storage capacity. CompuServe receives no payment from the mass mailers for processing their unsolicited advertising. However, CompuServe's subscribers pay for their access to CompuServe's services in increments of time and thus the process of accessing, reviewing and discarding unsolicited e-mail costs them money, which is one of the reasons for their complaints. CompuServe has notified defendants that they are prohibited from using its proprietary computer equipment to process and store unsolicited e-mail and has requested them to cease and desist from sending unsolicited e-mail to its subscribers. Nonetheless, defendants have sent an increasing volume of e-mail solicitations to CompuServe subscribers.
In an effort to shield its equipment from [**8] defendants' bulk e-mail, CompuServe has implemented software programs designed to screen out the messages and block their receipt. In response, defendants have modified their equipment and the messages they send in such a fashion as to circumvent CompuServe's screening software. Allegedly, defendants have been able to conceal the true origin of their messages by falsifying the point-of-origin information contained in the header of the electronic messages. Defendants have removed the "sender" information in the header of their messages and replaced it with another address. Also, defendants have developed the capability of configuring their computer servers to conceal their true domain name and appear on the Internet as another computer, further concealing the true origin of the messages. By manipulating this data, defendants have been able to continue sending messages to CompuServe's equipment in spite of CompuServe's protests and protective efforts.
Defendants assert that they possess the right to continue to send these communications to CompuServe subscribers. CompuServe contends that, in doing so, the defendants are trespassing upon its personal property.
This Court will now address the second aspect of plaintiff's motion in which it seeks to enjoin defendants Cyber Promotions, Inc. and its president Sanford Wallace from sending any unsolicited advertisements to any electronic mail address maintained by CompuServe.
CompuServe predicates this aspect of its motion for a preliminary injunction on the common law theory of trespass to personal property or to chattels, asserting that defendants' continued transmission of electronic messages to its computer equipment constitutes an actionable tort.
Its chief importance now, is that there may be recovery ... for interferences with the possession of chattels which are not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value [**13] of the thing with which he has interfered. Trespass to chattels survives today, in other words, largely as a little brother of conversion.
Prosser & Keeton, Prosser and Keeton on Torts, § 14, 85-86 (1984).
In order to constitute a conversion, it was not necessary that there should have been an actual appropriation of the property by the defendant to its own use and benefit. It might arise from the exercise of a dominion over it in exclusion of the rights of the owner, or withholding it from his possession under a claim inconsistent with his rights. If one take the property of another, for a temporary purpose only, in disregard of the owner's right, it is a conversion. Either a wrongful taking, an assumption of ownership, an illegal use or [*1021] misuse, or a wrongful detention of chattels will constitute a conversion.
Both plaintiff and defendants cite the Restatement (Second) of Torts to support their respective positions. In determining a question unanswered by state law, it is appropriate for this Court to consider such sources as the restatement of the law and decisions of other jurisdictions. Bailey v. V & O Press Co., Inc., 770 F.2d 601, 604-606 (6th Cir. 1985) (where court considered positions expressed in the Restatement (Second) of Torts in interpreting Ohio's principles of comparative negligence); Garrison v. Jervis B. Webb Co., 583 F.2d 258, 262 n. 6 (1978); see also Wright, Miller & Cooper, Federal Practice and Procedure, § 4507 (West 1996).
Electronic signals generated [**16] and sent by computer have been held to be sufficiently physically tangible to support a trespass cause of action. Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559, 1567 (1996); State v. McGraw, 480 N.E.2d 552, 554 (Ind. 1985) (Indiana Supreme Court recognizing in dicta that a hacker's unauthorized access to a computer was more in the nature of trespass than criminal conversion) and State v. Riley, 121 Wash. 2d 22, 846 P.2d 1365 (1993) (computer hacking as the criminal offense of "computer trespass" under Washington law). It is undisputed that plaintiff has a possessory interest in its computer systems. Further, defendants' contact with plaintiff's computers is clearly intentional. Although electronic messages may travel through the Internet over various routes, the messages are affirmatively directed to their destination.
(d) bodily harm is caused to the possessor, or harm is caused to some person or thing [*1022] in which the possessor has a legally protected interest.
Therefore, an interference resulting in physical dispossession is just one circumstance under which a defendant can be found liable. Defendants suggest that "unless an alleged trespasser actually takes physical custody of the property or physically damages it, courts will not find the 'substantial interference' required to maintain a trespass to chattel claim." (Defendant's Memorandum at 13). To support this rather broad proposition, defendants cite only two cases which make any reference to the Restatement. In Glidden v. [**18] Szybiak, 95 N.H. 318, 63 A.2d 233 (1949), the court simply indicated that an action for trespass to chattels could not be maintained in the absence of some form of damage. The court held that where plaintiff did not contend that defendant's pulling on her pet dog's ears caused any injury, an action in tort could not be maintained. 63 A.2d at 235. In contrast, plaintiff in the present action has alleged that it has suffered several types if injury as a result of defendants' conduct. In Koepnick v. Sears Roebuck & Co., 158 Ariz. 322, 762 P.2d 609 (1988) the court held that a two-minute search of an individual's truck did not amount to a "dispossession" of the truck as defined in Restatement § 221 or a deprivation of the use of the truck for a substantial time. It is clear from a reading of Restatement § 218 that an interference or intermeddling that does not fit the § 221 definition of "dispossession" can nonetheless result in defendants' liability for trespass. The Koepnick court did not discuss any of the other grounds for liability under Restatement § 218.
A plaintiff can sustain an action for trespass to chattels, as opposed to an action for conversion, without showing [**19] a substantial interference with its right to possession of that chattel. Thrifty-Tel, Inc., 46 Cal. App. 4th at 1567 (quoting Zaslow v. Kroenert, 29 Cal. 2d 541, 176 P.2d 1 (Cal. 1946)). Harm to the personal property or diminution of its quality, condition, or value as a result of defendants' use can also be the predicate for liability. Restatement § 218(b).
An unprivileged use or other intermeddling with a chattel which results in actual impairment of its physical condition, quality or value to the possessor makes the actor liable for the loss thus caused. In the great majority of cases, the actor's intermeddling with the chattel impairs the value of it to the possessor, as distinguished from the mere affront to his dignity as possessor, only by some impairment of the physical condition of the chattel. There may, however, be situations in which the value to the owner of a particular type of chattel may be impaired by dealing with it in a manner that does not affect its physical condition. ... In such a case, the intermeddling is actionable even though the physical condition of the chattel is not impaired.
The Restatement (Second) of Torts § 218, comment h. [**20] In the present case, any value CompuServe realizes from its computer equipment is wholly derived from the extent to which that equipment can serve its subscriber base. Michael Mangino, a software developer for CompuServe who monitors its mail processing computer equipment, states by affidavit that handling the enormous volume of mass mailings that CompuServe receives places a tremendous burden on its equipment. (Mangino Supp. Dec. at P12). Defendants' more recent practice of evading CompuServe's filters by disguising the origin of their messages commandeers even more computer resources because CompuServe's computers are forced to store undeliverable e-mail messages and labor in vain to return the messages to an address that does not exist. (Mangino Supp. Dec. at PP7-8). To the extent that defendants' multitudinous electronic mailings demand the disk space and drain the processing power of plaintiff's computer equipment, those resources are not available to serve CompuServe subscribers. Therefore, the value of that equipment to CompuServe is diminished even though it is not physically damaged by defendants' conduct.
Next, plaintiff asserts that it has suffered injury aside from the [**21] physical impact of defendants' messages on its equipment. Restatement § 218(d) also indicates that recovery may be had for a trespass that causes [*1023] harm to something in which the possessor has a legally protected interest. Plaintiff asserts that defendants' messages are largely unwanted by its subscribers, who pay incrementally to access their e-mail, read it, and discard it. Also, the receipt of a bundle of unsolicited messages at once can require the subscriber to sift through, at his expense, all of the messages in order to find the ones he wanted or expected to receive. These inconveniences decrease the utility of CompuServe's e-mail service and are the foremost subject in recent complaints from CompuServe subscribers. Patrick Hole, a customer service manager for plaintiff, states by affidavit that in November 1996 CompuServe received approximately 9,970 e-mail complaints from subscribers about junk e-mail, a figure up from approximately two hundred complaints the previous year. (Hole 2d Supp. Dec. at P4). Approximately fifty such complaints per day specifically reference defendants. (Hole Supp. Dec. at P3). Defendants contend that CompuServe subscribers are provided with a simple [**22] procedure to remove themselves from the mailing list. However, the removal procedure must be performed by the e-mail recipient at his expense, and some CompuServe subscribers complain that the procedure is inadequate and ineffectual. (See, e.g., Hole Supp. Dec. at P8).
Many subscribers have terminated their accounts specifically because of the unwanted receipt of bulk e-mail messages. (Hole Supp. Dec. at P9, Hole 2d Supp. Dec. at P6). Defendants' intrusions into CompuServe's computer systems, insofar as they harm plaintiff's business reputation and goodwill with its customers, are actionable under Restatement § 218(d).
The interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land, is not given legal protection by an action for nominal damages for harmless intermeddlings with the chattel. In order that an actor who interferes with another's chattel may be liable, his conduct must affect some other and more important [**23] interest of the possessor. Therefore, one who intentionally intermeddles with another's chattel is subject to liability only if his intermeddling is harmful to the possessor's materially valuable interest in the physical condition, quality, or value of the chattel, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest of the possessor is affected as stated in Clause (c). Sufficient legal protection of the possessor's interest in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference.
Restatement (Second) of Torts § 218, Comment e (emphasis added). Plaintiff CompuServe has attempted to exercise this privilege to protect its computer systems. However, defendants' persistent affirmative efforts to evade plaintiff's security measures have circumvented any protection those self-help measures might have provided. In this case CompuServe has alleged and supported by affidavit that it has suffered several types of injury as a result of defendants' conduct. The foregoing discussion simply underscores that the damage [**24] sustained by plaintiff is sufficient to sustain an action for trespass to chattels. However, this Court also notes that the implementation of technological means of self-help, to the extent that reasonable measures are effective, is particularly appropriate in this type of situation and should be exhausted before legal action is proper.
Under Restatement § 252, the owner of personal property can create a privilege in the would-be trespasser by granting consent to use the property. A great portion of the utility of CompuServe's e-mail service is that it allows subscribers to receive messages from individuals and entities located anywhere on the Internet. Certainly, then, there is at least a tacit invitation for anyone on the Internet to utilize plaintiff's computer [*1024] equipment to send e-mail to its subscribers. n2 Buchanan Marine, Inc. v. McCormack Sand Co., 743 F. Supp. 139 (E.D.N.Y. 1990) (whether there is consent to community use is a material issue of fact in an action for trespass to chattels). However, in or around October 1995, CompuServe employee Jon Schmidt specifically told Mr. Wallace that he was "prohibited from using CompuServe's equipment to send his junk e-mail messages." [**25] (Schmidt Dec. at P5). There is apparently some factual dispute as to this point, but it is clear from the record that Mr. Wallace became aware at about this time that plaintiff did not want to receive messages from Cyber Promotions and that plaintiff was taking steps to block receipt of those messages. (Transcript of December 15, 1996 Hearing at 81-86).
n2 That consent is apparently subject to express limitations. See Kolehmainen Dec. at P2 and discussion infra.
Defendants argue that plaintiff made the business decision to connect to the Internet and that therefore it cannot now successfully maintain an action for trespass to chattels. Their argument is analogous to the argument that because an establishment invites the public to enter its property for business purposes, it cannot later restrict or revoke access to that property, a proposition which is erroneous under Ohio law. See, e.g., State v. Carriker, 5 Ohio App. 2d 255, 214 N.E.2d 809 (1964) (the law in Ohio is that a business invitee's privilege [**26] to remain on the premises of another may be revoked upon the reasonable notification to leave by the owner or his agents); Allstate Ins. Co. v. U.S. Associates Realty, Inc., 11 Ohio App. 3d 242, 464 N.E.2d 169 (1983) (notice of express restriction or limitation on invitation turns business invitee into trespasser). On or around October 1995, CompuServe notified defendants that it no longer consented to the use of its proprietary computer equipment. Defendants' continued use thereafter was a trespass. Restatement (Second) of Torts § § 252 and 892A(5); see also Restatement (Second) of Torts § 217, Comment f ("The actor may commit a new trespass by continuing an intermeddling which he has already begun, with or without the consent of the person in possession. Such intermeddling may persist after the other's consent, originally given, has been terminated."); Restatement (Second) of Torts § 217, Comment g.
Id. at PP2 and 3. Defendants Cyber Promotions, Inc. and its president Sanford Wallace have used plaintiff's equipment in a fashion that exceeds that consent. The use of personal property exceeding consent is a trespass. City of Amsterdam v. Daniel Goldreyer, Ltd., 882 F. Supp. 1273 (E.D.N.Y. 1995); Restatement (Second) of Torts § 256. It is arguable that CompuServe's policy statement, insofar as it may serve as a limitation upon the scope of its consent to the use of its computer equipment, may be insufficiently communicated to potential third-party users when it is merely posted at some location on the network. [**28] However, in the present case the record indicates that defendants were actually notified that they were using CompuServe's equipment in an unacceptable manner. To prove that a would-be trespasser acted with the intent required to support liability in tort it is crucial that defendant be placed on notice that he is trespassing.
[*1025] As a general matter, the public possesses a privilege to reasonably use the facilities of a public utility, Restatement (Second) of Torts § 259, but Internet service providers have been held not to be common carriers. Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F. Supp. 1361 (N.D.Cal. 1995). The definition of public utility status under Ohio law was recently articulated in A & B Refuse Disposers, Inc. v. Bd. Of Ravenna Township Trustees, 64 Ohio St. 3d 385, 596 N.E.2d 423 (1992). The Ohio Supreme Court held that the determination of whether an entity is a "public utility" requires consideration of several factors relating to the "public service" and "public concern" characteristics of a public utility. 596 N.E.2d at 426. The public service characteristic contemplates an entity which devotes an essential good or service [**29] to the general public which the public in turn has a legal right to demand or receive. Id. at 425. CompuServe's network, Internet access and electronic mail services are simply not essential to society. There are many alternative forms of communication which are customarily used for the same purposes. Further, only a minority of society at large has the equipment to send and receive e-mail messages via the Internet, and even fewer actually do. The second characteristic of a public utility contemplates an entity which conducts its operations in such manner as to be a matter of public concern, that is, a public utility normally occupies a monopolistic or ogopolistic position in the relevant marketplace. Id. at 425-426. Defendants estimate that plaintiff serves some five million Internet users worldwide. However, there are a number of major Internet service providers that have very large subscriber bases, and with a relatively minor capital investment, anyone can acquire the computer equipment necessary to provide Internet access services on a smaller scale. Furthermore, Internet users are not a "captive audience" to any single service provider, but can transfer from one service [**30] to another until they find one that best suits their needs. Finally, the Ohio Supreme Court made clear that a party asserting public utility status is required to support that assertion with evidence going to the relevant aforementioned factors. Id. at 427. Defendants have not argued that CompuServe is a public utility, much less produced evidence tending to support such a conclusion. Therefore, CompuServe is not a public utility as that status is defined under Ohio law and defendants can not be said to enjoy a special privilege to use CompuServe's proprietary computer systems.
Plaintiff has shown that it will suffer irreparable harm without the grant of the preliminary injunction.
It is improbable that granting the injunction will cause substantial harm to defendant. Even with the grant of this injunction, defendants are free to disseminate their advertisements in other ways not constituting trespass to plaintiff's computer equipment. Further, defendants may continue to send electronic mail messages to the tens of millions of Internet users who are not connected through CompuServe's computer systems.
Finally, the public interest is advanced by the Court's protection of the common law rights of individuals and entities to their personal property. Defendants raise First Amendment concerns and argue that an injunction will adversely [**40] impact the public interest. High volumes of junk e-mail devour computer processing and storage capacity, slow down data transfer between computers over the Internet by congesting the electronic paths through which the messages travel, and cause recipients to spend time and money wading through messages that they do not want. It is ironic that if defendants were to prevail on their First Amendment arguments, the viability of electronic mail as an effective means of communication for the rest of society would be put at risk. In light of the foregoing discussion, those arguments are without merit. Further, those subscribing to CompuServe are not injured by the issuance of this injunction. Plaintiff has made a business decision to forbid Cyber Promotions and Mr. Wallace from using its computers to transmit messages to CompuServe subscribers. If CompuServe subscribers are unhappy with that decision, then they may make that known, perhaps by terminating their accounts and transferring to an Internet service provider which accepts unsolicited e-mail advertisements. That is a business risk which plaintiff has assumed.
Having considered the relevant factors, this Court concludes that the preliminary [**41] injunction that plaintiff requests is appropriate.
Based on the foregoing, plaintiff's motion for a preliminary injunction is GRANTED. The temporary restraining order filed on October 24, 1996 by this Court is hereby extended in duration until final judgment is entered in this case. Further, defendants Cyber Promotions, Inc. and its president Sanford Wallace are enjoined from sending any unsolicited advertisements to any electronic mail address maintained by plaintiff CompuServe during the pendency of this action.


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Ansel et al. Pharmaceutical Dosage Forms and Drug Delivery Systems, 6.sup.th Ed. pp. 213-221. Williams & Watkins. 1995. cited by applicant .
Pelham et al. Once-a-Day Concerta Methylphenidate Verses Three-Times-Daily Methylphenidate in Laboratory and Natural Settings. Pediatrics. vol. 107(6):1-15. Jun. 1, 2001. cited by applicant .
Greenhill et al. Double-Blind, Placebo-Controlled Study of Modified-Release Methylphenidate in Children With Attention-Deficit/Hyperactivity Disorder. Pediatrics. vol. 109(3):1-7. Mar. 1, 2002. cited by applicant .
Swanson et al. Comparison of Once-Daily Extended-Release Methylphenidate Formulations in Children With Attention-Deficit/Hyperactivity Disorder in the Laboratory School (The Comacs Study). Pediatrics. vol. 113(3):206-216. Mar. 3, 2004. cited by applicant .
Product Literature, Concerta.RTM., (methylphenidate HCI) Extended-release Tablets, rev Nov. 2010. cited by applicant .
Product Literature, Daytrana.RTM. (methylphenidate transdermal system), revised Dec. 2009. cited by applicant .
Metadate CD.RTM., Product Label, 2013. cited by applicant .
Metadate CD.RTM. NDA Approval Letter from the Department of Health and Human Services, dated Feb. 2, 2001. cited by applicant .
Quillivant.RTM. XR, Highlights of Prescribing Information, Label Revised Dec. 2013. cited by applicant .
Quillivant.RTM. XR NDA Approval Letter from the Department of Health and Human Services, dated Sep. 27, 2012. cited by applicant .
Focalin.RTM. XR, Highlights of Prescribing Information, Label Revised Jan. 2012. cited by applicant .
Focalin.RTM. XR NDA Approval Letter from the Department of Health and Human Services, dated May 26, 2005. cited by applicant .
Methylin.RTM. ER NDA Approval Letter from the Department of Health and Human Services, dated May 9, 2000. cited by applicant .
Ritalin-SR.RTM., Product Label, Dec. 13, 2013. cited by applicant .
Ritalin-SR.RTM. NDA Approval Letter from the Department of Health and Human Services, dated May 21, 2004. cited by applicant .
Ritalin-LA.RTM., Product Label, Dec. 13, 2013. cited by applicant .
Ritalin-LA.RTM. NDA Approval Letter from the Department of Health and Human Services, dated Jun. 5, 2002. cited by applicant .
Kathala, U.S. Appl. No. 15/200,625, filed Jul. 1, 2016. cited by applicant .
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1. An aqueous pharmaceutical liquid suspension suitable for oral ingestion comprising: (i) a particulate drug-ion exchange resin complex-matrix comprising a pharmaceutically acceptable drug which is carbinoxamine bound to a pharmaceutically acceptable water insoluble ion exchange resin to form said particulate drug-ion exchange resin complex, said particulate drug-ion exchange resin complex being in a matrix with a water insoluble polymer or copolymer or a hydrophilic polymer, which polymer or copolymer is present in an amount of about 3% to about 30% by weight, based on the weight of said particulate drug-ion exchange resin complex-matrix, said ion exchange resin being a cation exchange resin, and (ii) a cured, high tensile strength, water permeable, water insoluble, non-ionic polymeric diffusion modified release barrier coating over said particulate drug-ion exchange resin complex defined in (i), said cured, high tensile strength, water permeable, water insoluble, non-ionic polymeric, modified release, diffusion barrier coating applied as an aqueous dispersion, wherein said cured, high tensile strength, water permeable, water insoluble, non-ionic polymeric, modified release diffusion barrier coating comprises: (a) about 75% w/w to about 90% w/w polyvinylacetate polymer; (b) a stabilizer comprising polyvinylpyrrolidone, and (c) about 2.5% w/w to about 20% w/w of plasticizer effective to enhance the tensile strength of said cured, high tensile strength, water permeable, water insoluble, non- ionic polymeric, modified release diffusion barrier coating, whereby said cured, high tensile strength, water permeable, water insoluble, non-ionic polymeric, modified release, diffusion barrier coating is over the particulate drug-ion exchange resin complex-matrix and provides a modified release profile to said pharmaceutically acceptable drug in said particulate drug- ion exchange resin complex-matrix.
2. The suspension according to claim 1, wherein said cured, high tensile strength, water permeable, water insoluble, non-ionic polymeric, modified release, diffusion barrier coating has an elongation factor of between about 125% and about 400%.
3. The suspension according to claim 1, wherein said particulate drug-ion exchange resin complex-matrix of (i) is capable of passing through a number 40 mesh screen.
4. The suspension according to claim 1, wherein said particulate drug-ion exchange resin complex-matrix of (i) comprises about 5% to about 20% by weight of said water insoluble polymer or copolymer or a hydrophilic polymer.
5. The suspension according to claim 1, wherein said particulate drug-ion exchange resin complex-matrix comprises said particulate drug-ion exchange resin complex and said hydrophilic polymer.
6. The suspension according to claim 5, wherein said hydrophilic polymer in said particulate drug-ion exchange resin complex-matrix comprises polyvinylpyrrolidone.
7. The suspension according to claim 1, wherein said particulate drug-ion exchange resin complex-matrix comprises said particulate drug-ion exchange resin complex and said water insoluble polymer or copolymer.
8. The suspension according to claim 7, wherein said water insoluble polymer in said particulate drug-ion exchange resin complex-matrix comprises polyvinylacetate, wherein said particulate matrix comprises said particulate drug-ion exchange resin complex, a stabilizer comprising polyvinylpyrrolidone and an effective amount of a surfactant.
9. The suspension according to claim 1, further comprising an orally ingestible drug bound to a pharmaceutically acceptable, water insoluble ion exchange resin to form an uncoated particulate drug-ion exchange resin complex, wherein said drug in said uncoated complex is either the same as or different from the pharmaceutically acceptable drug in (i).
10. The suspension according to claim 1, wherein said plasticizer comprises about 5% to about 10% w/w of said cured modified release barrier coating.
11. The suspension according to claim 10, wherein said plasticizer comprises triacetin.
12. The suspension according to claim 1, wherein said cured, high tensile strength, water permeable, water insoluble, non-ionic polymeric, modified release diffusion barrier coating further comprises a surfactant.
13. The suspension according to claim 1, wherein said cured, high tensile strength, water permeable, water insoluble, non-ionic polymeric, modified release diffusion barrier coating comprises about 25% to about 50% by weight of the particulate drug-ion exchange resin complex-matrix defined in (i).
14. The suspension according to claim 13, wherein said cured, high tensile strength, water permeable, water insoluble, non-ionic polymeric, modified release diffusion barrier coating comprises about 30% to about 45% by weight of the particulate barrier coated drug-ion exchange resin complex-matrix defined in (i).
15. An aqueous pharmaceutical liquid suspension suitable for oral ingestion comprising: (i) a particulate carbinoxamine-cation exchange resin complex comprising carbinoxamine bound to a pharmaceutically acceptable water insoluble cation exchange resin to form said particulate carbinoxamine-cation exchange resin complex, said particulate carbinoxamine-cation exchange resin complex optionally being in a matrix with a water insoluble polymer or copolymer or a hydrophilic polymer, and (ii) a cured, high tensile strength, water permeable, water insoluble, non-ionic polymeric, modified release diffusion barrier coating over said particulate carbinoxamine-cation exchange resin complex-optional matrix defined in (i), said cured, high tensile strength, water permeable, water insoluble, non-ionic polymeric, modified release diffusion barrier coating applied as an aqueous dispersion, wherein said cured, high tensile strength, water permeable, water insoluble, non-ionic polymeric, modified release diffusion barrier coating comprises: (a) about 75% w/w to about 90% w/w polyvinylacetate polymer; and (b) a stabilizer comprising polyvinylpyrrolidone, and (c) about 2.5% w/w to about 20% w/w of plasticizer effective to enhance the tensile strength of said cured, high tensile strength, water permeable, water insoluble, non-ionic polymeric, modified release diffusion barrier coating, whereby said cured, high tensile strength, water permeable, water insoluble, non-ionic polymeric, modified release diffusion barrier coating is over the particulate carbinoxamine-cation exchange resin complex-optional matrix and provides a modified release profile to said pharmaceutically acceptable drug in said particulate carbinoxamine-cation exchange resin complex-optional matrix.
16. The suspension according to claim 15, wherein the matrix is present and comprises the particulate carbinoxamine-cation exchange resin complex and about 3% to about 30% by weight of the hydrophilic polymer, based on the weight of the particulate carbinoxamine-cation exchange resin complex-matrix.
17. The suspension according to claim 15, wherein the matrix is present and comprises the particulate carbinoxamine-cation exchange resin complex and about 5% to about 20% by weight of the hydrophilic polymer, based on the weight of the particulate carbinoxamine-cation exchange resin complex-matrix.
18. An aqueous pharmaceutical liquid suspension suitable for oral ingestion comprising: (i) a particulate carbinoxamine-cation exchange resin complex-matrix comprising carbinoxamine bound to a pharmaceutically acceptable water insoluble cation exchange resin to form said particulate carbinoxamine-cation exchange resin complex-matrix, wherein the matrix comprises the particulate carbinoxamine-cation exchange resin complex and a polymer or copolymer in an amount of about 3% to about 30% of the particulate carbinoxamine-cation exchange resin complex-matrix; and (ii) about 25% w/w to about 50% w/w cured, high tensile strength, water permeable, water insoluble, non-ionic polymeric, modified release diffusion barrier coating over said particulate carbinoxamine-cation exchange resin complex defined in (i), said cured, high tensile strength, water permeable, water insoluble, non-ionic polymeric, modified release diffusion barrier coating over the particulate carbinoxamine-cation exchange resin complex-matrix and provides a modified release profile to said pharmaceutically acceptable drug in said particulate carbinoxamine-cation exchange resin complex-matrix.
19. The suspension according to claim 18, wherein the modified release barrier coating is present in an amount of about 30% w/w to about 45% w/w of the barrier coated particulate carbinoxamine-cation exchange resin complex.
An example of an anion exchange resin is a cholestyramine resin, a strong base type 1 anion exchange resin powder with a polystyrene matrix and quarternary ammonium functional groups. The exchangeable anion is generally chloride which can be exchanged for, or replaced by, virtually any anionic species. A commercially available Cholestyramine resins is PUROLITE.TM. A430MR resin. As described by its manufacturer, this resin has an average particle size range of less than 150 microns, a pH in the range of 4-6, and an exchange capacity of 1.8-2.2 eq/dry gm. Another pharmaceutical grade cholestyramine resin is available as DUOLITE.TM. AP143/1094 [Rohm and Haas], described by the manufacturer as having a particle size in the range of 95%, less than 100 microns and 40%, less than 50 microns. The commercial literature from the suppliers of these and other resin is incorporated herein by reference (PUROLITE A-430 MR; DOW Cholestryramine USP, Form No. 177-01877-204, Dow Chemical Company; DUOLITE AP143/1083, Rohm and Haas Company, IE-566EDS--February 2006).
Cation exchange resins, e.g., AMBERLITE IRP-69, are particularly well suited for use with drugs and other molecules having a cationic functionality, including, e.g., acycloguanosine, timidazole, deferiprone, cimetidine, oxycodone, remacemide, nicotine, morphine, hydrocodone, rivastigmine, dextromethorphan, propanolol, betaxolol, 4-aminopyridine, chlorpheniramine, paroxetine, duloxetine HCl, atomoxetine HCl, risperidone, atovaquone, esmolol, naloxone, phenylpropranolamine, gemifloxacin, oxymorphone, hydromorphone, nalbupherin, and O-desmethylvenlafaxine, as well as prodrugs, salts, isomers, polymorphs, and solvates thereof, as well as other drugs identified herein and/or known in the art. Cationic exchange resins are readily selected for use of these basic drugs or other drugs identified herein and/or are those which are known to those of skill in the art.
The drugs that are suitable for use in these preparations include drugs for the treatment of respiratory tract disorders such as, for example, antitussive expectorants such as dihydrocodeine phosphate, codeine phosphate, noscapine hydrochloride, phenylpropanolamine hydrochloride, potassium guaiacolsulfonate, cloperastine fendizoate, dextromethorphan hydrobromide and cloperastine hydrochloride; bronchodilators such as dl-methylephedrine hydrochloride and dl-methylephedrine saccharinate; and antihistamines such as fexofenadine HCl- or dl-chlorpheniramine maleate. Other drugs useful for the invention include drugs for the treatment of digestive tract disorders such as, for example, digestive tract antispasmodics, including scopolamine hydrobromide, metixene hydrochloride and dicyclomine hydrochloride, drugs for the treatment of central nervous system disorders such as, for example, antipsychotic drugs including phenothiazine derivatives (chlorpromazine hydrochloride, etc.) and phenothiazine-like compounds (chlorprothexene hydrochloride, etc.) antianxiety drugs such as benzodiazepine derivatives (chlordiazepoxide hydrochloride, diazepam, etc.), alprazolam, etc., antidepressants such as imipramine compounds (imipramine hydrochloride, etc.), respiradone, SSRIs like sertraline HCl, paroxitene HCl, venlafaxine HCl, etc., antipyretic analgesics such as sodium salicylate, and hypnotics such as phenobarbital sodium; opioid analgesics drugs such as alfentanil, allyprodine, alphaprodine, anileridne, benzylmorphine, bezitramide, buprenorphine, butorphanol, clonitazene, codeine, cyclazocine, desmorphine, dextromoramide, dexocine, diampromide, dihydrocodeine, dihydromorphine, dimexoxadol, dimepheptanol, dimethylthiambutene, dioxaphetly butyrate, dipipanone, eptazocine, ethotheptazine, ethylmethylthiambutene, ethylmorphine, etonitazene fentanyl, heroin, hydrocodone, hydromorphone, hydroxpethidine, isomethadone, ketobermidone, levallorphan, levorphanol, levophenacylmorphan, lofentanil, meperidine, meptazinol metazocine, methadone, metopon, morphine, morphine sulfate, myrophine, nalbuphine, narceine, cicomorphine, norlevorphanol, nomethadonel nalorphine, normophine, norpipanone, opium, oxycodone, ixmymorphone, papavreturn, pentazocine, phenadoxone, phenmorphan, phenazocine, phenoperidine, iminodine, piritamide, propheptazine, promedol, properidine, propiram, proposyphene, sufenanil, tramadol, tiline, salts thereof, mixtures of any of the foregoing, mixed mu-agonists/antagonists, mu-antagonist combinations, and the like; and drugs for the treatment of respiratory system disorders such as, for example, coronary dilators including etafenone hydrochloride, calcium antagonists such as verapamil hydrochloride, hypotensive drugs such as hydrazine hydrochloride, propranolol hydrochloride and clonidine hydrochloride, a peripheral vasodilators/vasoconstrictors such as tolazoline hydrochloride, respiradone, other respiratory agents such as predinisolone, prednisolone sodium phosphate, albuterol, albuterol sulfate, terbutaline, etc. Antibiotics may also be useful including macrolides such as, oleandomycin phosphate, tetracyclines such as tetracycline hydrochloride, streptomycins such as fradiomycin, sulfate, and penicillin drugs such as amoxicillin, dicloxacillin sodium, pivmecillinam hydrochloride and carbenicillinindanly sodium. Chemotherapeutic drugs may also be used including sulfa drugs such as sulfisomidine sodium, antituberculosis drugs such as kanamycin sulfate, and antiprotozoan drugs such as amodiaquine hydrochloride. An excellent sustained releasing effect is obtained in basic drugs for the respiratory tract such as dihydrocodeine phosphate, dl-methyl-ephedrine hydrochloride and phenylpropanolamine hydrochloride. Acidic drugs that can be used in the present invention include, for example, dehydrocholic acid, diflunisal, ethacrynic acid, fenoprofen, furosemide, gemfibrozil, ibuprofen, naproxen, phenyloin, progencid, sulindac, theophylline, salicylic acid and acetylsalicylic acid. Basic drugs that can be used in the present invention include, for example, acetophenazine, amitriptyline, amphetamine, benztropine, biperiden, bromodiphenhydramine, brompheniramine, carbinoxamine, chloperastine, chlorcyclizine, chorpheniramine, chlorphenoxamine, chlorpromazine, clemastine, clomiphene, clonidine, codeine, cyclizine, cyclobenzaprine, cyproheptadine, desipramine, dexbrompheniramine, dexchlorpheniramine, dextroamphetamine, dextromethorphan, dicyclomine, diphemanil, diphenhydramine, doxepin, doxylamine, ergotamine, fluphenazine, haloperidol, hydrocodone, hydroxychloroquine, hydroxyzine, hyoscyamine, imipramine, levopropoxyphene, maprotiline, meclizine, mepenzolate, meperidine, mephentermine, mesoridazine, metformin, methadone, methylepherdine, methdilazine, methscopolamine, methysergide, metoprolol, nortriptylene, noscapine, nylindrin, oxybutynin, oxycodone, oxymorphone, orphenadrine, papaverine, pentazocine, phendimetrazine, phentermine, phenylephrine, phenylpropanolamine, pyrilamine, tripelennamine, triprolidine, promazine, propoxyphene, propanolol, pseudoephedrine, pyrilamine, quinidine, scopolamine, dextromethorphan, chlorpheniramine and codeine. Amphoteric drugs that can be used in the present invention include for example, aminocaproic acid, aminosalicylic acid, hydromorphone, isoxurprine, levorphanol, melphalan, morphine, nalidixic acid, and paraminosaliclic acid.
Useful preservatives include, but are not limited to, sodium benzoate, benzoic acid, potassium sorbate, salts of edetate (also known as salts of ethylenediaminetetraacetic acid, or EDTA, such as disodium EDTA), parabens (e.g., methyl, ethyl, propyl or butyl-hydroxybenzoates, etc.), and sorbic acid. Amongst useful preservatives include chelating agents some of which are listed above and other chelating agents, e.g., nitrilotriacetic acid (NTA); ethylenediaminetetracetic acid (EDTA), hydroxyethylethylenediaminetriacetic acid (HEDTA), diethylenetriaminepentaacetic acid (DPTA), 1,2-Diaminopropanetetraacetic acid (1,2-PDTA); 1,3-Diaminopropanetetraacetic acid (1,3-PDTA); 2,2-ethylenedioxybis[ethyliminodi(acetic acid)] (EGTA); 1,10-bis(2-pyridylmethyl)-1,4,7,10-tetraazadecane (BPTETA); ethylenediamine (EDAMINE); Trans-1,2-diaminocyclohexane-N,N,N',N'-tetraacetic acid (CDTA); ethylenediamine-N,N'-diacetate (EDDA); phenazine methosulphate (PMS); 2,6-Dichloro-indophenol (DCPIP); Bis(carboxymethyl)diaza-18-crown-6 (CROWN); porphine; chlorophyll; dimercaprol (2,3-Dimercapto-1-propanol); citric acid; tartaric acid; fumaric acid; malic acid; and salts thereof. The preservatives listed above are exemplary, but each preservative must be evaluated in each formulation, to assure the compatibility and efficacy of the preservative. Methods for evaluating the efficacy of preservatives in pharmaceutical formulations are known to those skilled in the art. Preferred preservatives are the paraben preservatives include methyl, ethyl, propyl, and butyl paraben. Methyl and propyl paraben are most preferable. Preferably, both methyl and propyl paraben are present in the formulation in a ratio of methyl paraben to propyl paraben of from about 2.5:1 to about 16:1, preferably 9:1.
Devices have been described, and many are commercially available, which provide for metered drug administration, including controlled infusion devices (e.g., for patient-controlled analgesia), metered-dose inhalers and implantable pumps. For example, various liquid metering devices for squeezable bottles have been described [U.S. Pat. Nos. 6,997,358, 3,146,919, filed in 1960, U.S. Pat. No. 3,567,079, filed in 1968, and in GB 2201395, filed in 1986.] A device for dispensing multiple compositions is provided in U.S. Pat. No. 6,997,219.
Methods and apparatus for delivery of drugs through nasogastric tubes are well known to those of ordinary skill in the art. See, e.g., E. Bryson, "Drug Administration via Nasogastric Tube", Nurs Times, 2001, Apr. 19-25 97(16):51. The present invention can be readily delivered using such devices. Suitable nasogastric tubes are available commercially and/or have been described. See, e.g., U.S. Pat. Nos. 5,334,166; 5,322,073; 4,619,673; 4,363,323.
The coating solution was prepared by dispersing 825 g of KOLLICOAT.TM. SR-30D polymer, 12 g of triacetin in 462 g of purified water and mixing for 1 hour. The coating process was performed in a VECTOR.TM. FLM-1 fluid bed processor by applying 1,200 g of the coating solution to 600 g of Pseudoephedrine Resin Complex using Wuster process that resulted in 40% weight gain. The coating conditions were controlled at an inlet temperature of about 68-72.degree. C., product temperature of 26-32.degree. C., air flow of 16-19 cfm, nozzle pressure of 2.5 kg/cm.sup.2, accelerator air pressure of 1.0 kg/cm.sup.2 and spray rate of 4-6 g/min so that uniform coating was achieved. The Coated Pseudoephedrine Resin Complex was then placed at 60.degree. C. for 5 hours for curing.
All patents, patent publications, and other publications listed in this specification, as well as priority documents U.S. patent application Ser. No. 14/155,410, filed Jan. 15, 2014; U.S. patent application Ser. No. 14/065,842, filed Oct. 29, 2013, now U.S. Pat. No. 8,747,902, issued Jun. 10, 2014; U.S. patent application Ser. No. 14/044,105, filed Oct. 2, 2013, now U.S. Pat. No. 8,790,700, issued Jul. 29, 2014; U.S. patent application Ser. No. 13/746,654, filed Jan. 22, 2013, now U.S. Pat. No. 8,597,684, issued Dec. 3, 2013; U.S. patent application Ser. No. 13/666,424, filed Nov. 1, 2012, now U.S. Pat. No. 8,491,935, issued Jul. 23, 2013; U.S. patent application Ser. No. 12/722,857, filed Mar. 12, 2010, now U.S. Pat. No. 8,337,890, issued Dec. 25, 2012; U.S. patent application Ser. No. 11/724,966, filed Mar. 15, 2007, now U.S. Pat. No. 8,062,667, issued Nov. 22, 2011; and U.S. Provisional Patent Application No. 60/783,181, filed Mar. 16, 2006, now expired, are incorporated herein by reference. While the invention has been described with reference to a particularly preferred embodiment, it will be appreciated that modifications can be made without departing from the spirit of the invention. Such modifications are intended to fall within the scope of the appended claims.

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Application No. 60


December 30, 1993. Rehearing Denied February 18, 1994.
Appeal from the Circuit Court, Jefferson County, No. CV-90-5709, Marvin Cherner, J.
Marshall Timberlake, T. Dwight Sloan and Marcel L. Debruge of Balch Bingham, Birmingham, for appellant.
Robert A. Jones, Jr. and LaVerne Davis of Jones and Davis, P.C., Birmingham, for appellee.
This appeal arises from the City of Birmingham's action to collect a municipal business license tax from American Bankers Life Assurance Company of Florida ("American Bankers"). The license tax is based upon the gross premiums received on insurance policies issued to citizens of the City. After finding the tax valid and determining that, for purposes of the tax, American Bankers did transact business in Birmingham, the trial court entered a summary judgment in favor of the City for $36,376.37, the amount of the license tax and penalties due for the years 1988 through 1992. American Bankers appeals from that judgment.
The dispositive issue on appeal is whether American Bankers' conduct in issuing insurance policies in Birmingham constitutes transacting business in Birmingham for purposes of the imposition of the municipal business license tax.
A motion for summary judgment may be granted only when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P.; Southern Guar. Ins. Co. v. First Alabama Bank, 540 So.2d 732, 734 (Ala. 1989). The burden is, therefore, upon the moving party to clearly show that there is no material fact in dispute, and all reasonable inferences from the evidence are to be viewed in the light most favorable to the nonmovant. Southern Guar. Ins. Co., supra, at 734.
Rule 56 is read in conjunction with the "substantial evidence rule," § 12-21-12, Ala. Code 1975, for actions filed after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989). In order to defeat a properly supported motion for summary judgment, the opposing party must present substantial evidence creating a genuine issue of fact. Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989).
American Bankers is a Florida corporation, with its home office and principal place of business in Miami, Florida. American Bankers sells disability and credit life insurance policies through various financial institutions in Birmingham, usually in regard to purchases of consumer goods. In a typical transaction, a customer who desires to finance the purchase price of a consumer good may obtain the financing either directly through the seller or by the customer's own efforts through some other lender. The credit application that the customer completes often has a provision permitting the customer to purchase credit-based insurance coverage, which will pay the balance of the debt owed if the customer dies or becomes disabled before paying the debt.
Most retailers do not provide their own financing, so when a customer applies for financing directly through them they forward the customer's credit application to a local lending institution. The loan officer that processes the credit application possesses documents from American Bankers to facilitate the issuance of credit life and disability insurance. If the customer indicates that he wants to acquire such insurance, the loan officer completes the documents and forwards them to the lending institution's home office, which sends them to the American Bankers office in Miami. When the documents are completed at the lending institution, the insurance policy is in full effect, subject only to later review by personnel at the American Bankers Miami office.
"Agent has full power and authority to receive and accept proposals for insurance covering such kinds of insurance as the Company may, from time to time, authorize to be insured; to charge the premium for such proposals in accordance with the manuals, rate charts or other instructions by the Company, to collect, receive and receipt for premiums on insurance and to receive commissions as hereinafter provided.
"The Agent is authorized to effect cancellation of policies placed with the Company by legal notice, in accordance with the terms and conditions of said policies, for non-payment of premiums or for causes inherent in a particular risk or risks, but shall not otherwise cancel policies of Company, nor cancel and replace policies of Company with those of another company or companies without agreement and written instruction by Company. Upon instruction by Company, Agent shall promptly cancel any outstanding policy or certificate."
American Bankers argues that it does not do business in Birmingham and that the sales of its insurance in Birmingham are legally inconsequential and therefore insufficient to serve as a basis for imposing a business license tax upon it.
"(2) To fix the amount of licenses, the time for which they are to run, not exceeding one year, to provide a penalty for doing business without a license and to charge a fee . . . not exceeding $.50 for issuing each license; . . .
"(b) The license authorized by subsection (a) of this section as to persons, firms or corporations engaged in business in connection with interstate commerce shall be confined to that portion within the limits of the state and where such person, firm or corporation has an office or transacts business in the city or town imposing the license."
"(4) Each such insurance company, in cities and towns having a population of more than 50,000, $50.00 and $1.00 on each $100.00 and major fraction thereof of gross premiums, less return premiums, received during the preceding year on policies issued during said year to citizens of said cities and towns."
Schedule 136 of the City of Birmingham License Code, Ordinance No. 85-259, provides for the levy of tax based upon the classification as an insurance company other than fire and marine, in accord with § 11-51-121. This Court has repeatedly upheld occupational license taxes. Estes v. City of Gadsden, 266 Ala. 166, 94 So.2d 744 (Ala. 1957); McPheeter v. City of Auburn, 288 Ala. 286, 259 So.2d 833 (1972); Jolly v. City of Birmingham, 55 Ala. App. 603, 318 So.2d 300 (1975). Further, it is the location of the risks and the premiums received thereon, and not the domicile of the insurance company, that determines the municipality to which the license tax is due. Appleman on Insurance § 10930 (1982).
The City of Birmingham provided overwhelming evidence to show that American Bankers does indeed transact insurance business in Birmingham. American Bankers has been classified under Schedule 136 of the Birmingham License Code since 1985. From 1985 through 1987, American Bankers calculated its tax liability based upon that schedule and remitted payment of its business license tax for those years. Further, as stated above, during the period in question, there were approximately 30 persons registered with the State of Alabama Insurance Commission as agents for American Bankers in the Birmingham area, under Ala. Code 1975, § 27-3-27. Although a representative of American Bankers stated that in the corporation's vernacular the persons who dispense its insurance are "accounts," and not "agents," it is clear that the persons who solicit applications and issue policies for American Bankers act as agents of American Bankers.
Further, the fact that American Bankers does not have an office in Birmingham does not preclude the City from levying its license tax upon American Bankers. Merely transacting business within the city will suffice to subject American Bankers to the tax. Ala. Code 1975, § 11-51-90(b), supra. If we accepted the argument that an insurer with no office in a particular municipality cannot be found to transact business in that municipality, then the insurer could escape all municipal license taxes by stationing its offices in the municipalities of its choice and having its agents collect only premiums from insureds outside the municipalities where those offices are located. Clearly, that would defeat the taxation scheme of the Alabama Code sections set out above.
Because we have determined that American Bankers' activities in Birmingham constituted transacting business for purposes of being subject to the City's license tax, we pretermit discussion of other issues raised on appeal. The judgment of the trial court is affirmed.
MADDOX, SHORES, STEAGALL and COOK, JJ., concur.