The term “utility” means any person who is a local exchange carrier or an electric, gas, water, steam, or other public utility, and who owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for any wire communications. Such term does not include any railroad, any person who is cooperatively organized, or any person owned by the Federal Government or any State.
The term “Federal Government” means the Government of the United States or any agency or instrumentality thereof.
The term “State” means any State, territory, or possession of the United States, the District of Columbia, or any political subdivision, agency, or instrumentality thereof.
The term “pole attachment” means any attachment by a cable television system or provider of telecommunications service to a pole, duct, conduit, or right-of-way owned or controlled by a utility.
For purposes of this section, the term “telecommunications carrier” (as defined in section 153 of this title) does not include any incumbent local exchange carrier as defined in section 251(h) of this title.
Subject to the provisions of subsection (c) of this section, the Commission shall regulate the rates, terms, and conditions for pole attachments to provide that such rates, terms, and conditions are just and reasonable, and shall adopt procedures necessary and appropriate to hear and resolve complaints concerning such rates, terms, and conditions. For purposes of enforcing any determinations resulting from complaint procedures established pursuant to this subsection, the Commission shall take such action as it deems appropriate and necessary, including issuing cease and desist orders, as authorized by section 312(b) of this title.
The Commission shall prescribe by rule regulations to carry out the provisions of this section.
Nothing in this section shall be construed to apply to, or to give the Commission jurisdiction with respect to rates, terms, and conditions, or access to poles, ducts, conduits, and rights-of-way as provided in subsection (f), for pole attachments in any case where such matters are regulated by a State.
in so regulating such rates, terms, and conditions, the State has the authority to consider and does consider the interests of the subscribers of the services offered via such attachments, as well as the interests of the consumers of the utility services.
within the applicable period prescribed for such final action in such rules and regulations of the State, if the prescribed period does not extend beyond 360 days after the filing of such complaint.
For purposes of subsection (b) of this section, a rate is just and reasonable if it assures a utility the recovery of not less than the additional costs of providing pole attachments, nor more than an amount determined by multiplying the percentage of the total usable space, or the percentage of the total duct or conduit capacity, which is occupied by the pole attachment by the sum of the operating expenses and actual capital costs of the utility attributable to the entire pole, duct, conduit, or right-of-way.
As used in this subsection, the term “usable space” means the space above the minimum grade level which can be used for the attachment of wires, cables, and associated equipment.
This subsection shall apply to the rate for any pole attachment used by a cable television system solely to provide cable service. Until the effective date of the regulations required under subsection (e), this subsection shall also apply to the rate for any pole attachment used by a cable system or any telecommunications carrier (to the extent such carrier is not a party to a pole attachment agreement) to provide any telecommunications service.
The Commission shall, no later than 2 years after February 8, 1996, prescribe regulations in accordance with this subsection to govern the charges for pole attachments used by telecommunications carriers to provide telecommunications services, when the parties fail to resolve a dispute over such charges. Such regulations shall ensure that a utility charges just, reasonable, and nondiscriminatory rates for pole attachments.
A utility shall apportion the cost of providing space on a pole, duct, conduit, or right-of-way other than the usable space among entities so that such apportionment equals two-thirds of the costs of providing space other than the usable space that would be allocated to such entity under an equal apportionment of such costs among all attaching entities.
A utility shall apportion the cost of providing usable space among all entities according to the percentage of usable space required for each entity.
The regulations required under paragraph (1) shall become effective 5 years after February 8, 1996. Any increase in the rates for pole attachments that result from the adoption of the regulations required by this subsection shall be phased in equal annual increments over a period of 5 years beginning on the effective date of such regulations.
A utility shall provide a cable television system or any telecommunications carrier with nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or controlled by it.
Notwithstanding paragraph (1), a utility providing electric service may deny a cable television system or any telecommunications carrier access to its poles, ducts, conduits, or rights-of-way, on a non-discriminatory  basis where there is insufficient capacity and for reasons of safety, reliability and generally applicable engineering purposes.
A utility that engages in the provision of telecommunications services or cable services shall impute to its costs of providing such services (and charge any affiliate, subsidiary, or associate company engaged in the provision of such services) an equal amount to the pole attachment rate for which such company would be liable under this section.
Whenever the owner of a pole, duct, conduit, or right-of-way intends to modify or alter such pole, duct, conduit, or right-of-way, the owner shall provide written notification of such action to any entity that has obtained an attachment to such conduit or right-of-way so that such entity may have a reasonable opportunity to add to or modify its existing attachment. Any entity that adds to or modifies its existing attachment after receiving such notification shall bear a proportionate share of the costs incurred by the owner in making such pole, duct, conduit, or right-of-way accessible.
An entity that obtains an attachment to a pole, conduit, or right-of-way shall not be required to bear any of the costs of rearranging or replacing its attachment, if such rearrangement or replacement is required as a result of an additional attachment or the modification of an existing attachment sought by any other entity (including the owner of such pole, duct, conduit, or right-of-way).
Subsec. (a)(4). Pub. L. 104–104, § 703(2), inserted “or provider of telecommunications service” after “system”.
Subsec. (a)(5). Pub. L. 104–104, § 703(3), added par. (5).
Subsec. (c)(1). Pub. L. 104–104, § 703(4), inserted “, or access to poles, ducts, conduits, and rights-of-way as provided in subsection (f),” after “conditions”.
Subsec. (c)(2)(B). Pub. L. 104–104, § 703(5), substituted “the services offered via such attachments” for “cable television services”.
Subsec. (d)(3). Pub. L. 104–104, § 703(6), added par. (3).
Subsecs. (e) to (i). Pub. L. 104–104, § 703(7), added subsecs. (e) to (i).
1994—Subsec. (b)(2). Pub. L. 103–414 substituted “The Commission” for “Within 180 days from February 21, 1978, the Commission”.
1984—Subsec. (c)(3). Pub. L. 98–549 added par. (3).
1982—Subsec. (e). Pub. L. 97–259 struck out subsec. (e) which provided that, upon expiration of 5-year period that began on Feb. 21, 1978, provisions of subsec. (d) of this section would cease to have any effect.
Amendment by Pub. L. 98–549 effective 60 days after Oct. 30, 1984, except where otherwise expressly provided, see section 9(a) of Pub. L. 98–549, set out as a note under section 521 of this title.
Section effective on thirtieth day after Feb. 21, 1978, see section 7 of Pub. L. 95–234, set out as an Effective Date of 1978 Amendment note under section 152 of this title.


text:
GARY MILLER, JAMES TAYLOR, and BARB KING, Defendants.
Plaintiff proceeds pro se from his incarceration in Illinois River Correctional Center on a claim that Defendants violated his procedural due process rights by denying Plaintiff a meaningful opportunity to defend prison disciplinary charges. Defendants move for summary judgment, which is granted. Plaintiff does not explain what evidence he would have presented which might have made a difference in the outcome of the disciplinary proceeding. Plaintiff had already admitted to fighting with an inmate, and an officer reported that the officer saw Plaintiff stomping on the inmate's head with Plaintiff's foot.
The facts are set forth in the light most favorable to Plaintiff, drawing all reasonable inferences in Plaintiff's favor and resolving material disputes in Plaintiff's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment must be denied if a reasonable juror could find for Plaintiff. Id.
Sometime after inmate Stephens left Plaintiff's cell that day, Plaintiff's cellmate-inmate Thompson-returned to the cell, and a fight between Plaintiff and his cellmate ensued. According to the disciplinary report, inmate Thompson told an investigator that Plaintiff had blamed Thompson for inmate Stephens' assault on Plaintiff and then “started to hit me and knocked me down to the floor and proceeded to stomp my head against the door and strike me with closed fist punches numerous times until the Officer stopped him and separated us.” (d/e 1-1 p. 5.) The disciplinary report also stated that Officer Robinson arrived at the scene and observed Plaintiff “standing over Thompson and was appearing to be stomping on Thompson's head with his foot.” (d/e 1-1, p. 4.) These statements are not taken for the truth of what actually happened but instead for what information the disciplinary committee had when the committee made its decision. Plaintiff was also interviewed but he refused to answer any questions other than stating that Plaintiff and Thompson were fighting, whereupon the interviewer warned that, because of Plaintiff's refusal to answer questions, Plaintiff would be charged with assault in both incidents while inmates Stephens and Thompson would receive a lesser charge of fighting. (Pl.'s Dep. 15-16.) Inmate Thompson had to be taken to the hospital after the incident.
The punishment Plaintiff received on the Stephens ticket was not serious enough to trigger procedural due process rights. See Sandin v. Conner, 115 S.Ct. 2293, 2301 (1995)(placement in typical segregation for 30 days did not trigger due process protections). In contrast, Plaintiff's one year of segregation on the Thompson ticket was serious enough to trigger Plaintiff's procedural due process rights, which included the right to call witnesses and present evidence. See Wolff v. McDonnell, 418 U.S. 539 (1974); Rowe v. DeBruyn, 17 F.3d 1047, 1053 (7th Cir. 1994)(year of disciplinary segregation triggered procedural due process protections). Looking at the record in the light most favorable to Plaintiff, Plaintiff did not have a meaningful opportunity to call witnesses or organize his defense because he had no writing utensil.
That is not the end of the inquiry, though. If Plaintiff's defense would not have changed the outcome of the disciplinary hearing, then the refusal to allow him time to gather that evidence amounted to harmless error. Jones v. Cross, 637 F.3d 841, 847 (7th Cir. 2011)(inability to call witnesses at prison disciplinary hearing was harmless error where prisoner's admission was enough evidence to find him guilty of assault); Piggie v. Cotton, 344 F.3d 674, 678 (7th Cir. 2003)(applying harmless error analysis to refusal to call witnesses in disciplinary hearings). Plaintiff does not explain what his defense would have been had he been given time to prepare. He does not explain what his witnesses would have said. More importantly, even if his witnesses might have stated that both inmates were fighting equally or that inmate Thompson started the fight, ample evidence still would have supported the disciplinary committee's finding that Plaintiff was guilty of assault: 1) Plaintiff admitted to fighting; 2) inmate Thompson wound up in the hospital; 3) Officer Robinson reported that he observed Plaintiff stomping on Thompson's head with Plaintiff's foot; and, 4) inmate Thompson told the investigator that Plaintiff knocked Thompson to the floor and stomped on Thompson's head. The committee's decision was more than supported by the evidence they had before them. See Scruggs v. Jordan, 485 F.3d 934 (7th Cir. 2007)(prison disciplinary decision need only be support by “‘some evidence.' . . . [O]nce the meager threshold has been crossed our inquiry ends and we will not reverse the disciplinary board's decision.”)(quoted and other cites omitted). Plaintiff offers no reason why his unspecified defense might have changed the disciplinary committee's decision.
(1) Defendants' motion for summary judgment is granted (d/e 64). The clerk of the court is directed to enter judgment in favor of Defendants and against Plaintiff. This case is closed, with the parties to bear their own costs. All deadlines and settings on the Court's calendar are vacated.

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


A staple cartridge comprising a mechanism configured to overcome an empty/missing cartridge lockout is disclosed.
The present application is a continuation application under 35 U.S.C. §120 of U.S. patent application Ser. No. 14/175,148, entitled SURGICAL STAPLING INSTRUMENT, filed Feb. 7, 2014, now U.S. Patent Application Publication No. 2014/0151434, which is a continuation application under 35 U.S.C. §120 of U.S. patent application Ser. No. 13/369,601, entitled ROBOTICALLY-CONTROLLED SURGICAL END EFFECTOR SYSTEM, filed on Feb. 9, 2012, which issued on Jul. 22, 2014 as U.S. Pat. No. 8,783,541, which is a continuation application under 35 U.S.C. §120 of U.S. patent application Ser. No. 13/118,246, entitled ROBOTICALLY-DRIVEN SURGICAL INSTRUMENT WITH E-BEAM DRIVER, filed on May 27, 2011, now U.S. Pat. No. 9,060,770, which is a continuation-in-part application under 35 U.S.C. §120 of U.S. patent application Ser. No. 11/538,154, entitled ARTICULATING SURGICAL STAPLING INSTRUMENT INCORPORATING A TWO-PIECE E-BEAM FIRING MECHANISM, filed on Oct. 3, 2006, now U.S. Patent Application Publication No. 2007/0084897, the entire disclosures of which are incorporated by reference herein. The present application is a continuation application under 35 U.S.C. §120 of U.S. patent application Ser. No. 14/175,148, entitled SURGICAL STAPLING INSTRUMENT, filed Feb. 7, 2014, now U.S. Patent Application Publication No. 2014/0151434, which is a continuation application under 35 U.S.C. §120 of U.S. patent application Ser. No. 11/141,753, entitled SURGICAL STAPLING INSTRUMENT HAVING AN ELECTROACTIVE POLYMER ACTUATED MEDICAL SUBSTANCE DISPENSER, filed on Jun. 1, 2005, now U.S. Pat. No. 8,905,977, which claims the benefit under 35 U.S.C. §119(e) of U.S. Provisional Patent Application Ser. No. 60/591,694, entitled SURGICAL INSTRUMENT INCORPORATING AN ELECTRICALLY ACTUATED ARTICULATION MECHANISM, filed on Jul. 28, 2004, the entire disclosures of which are incorporated by reference herein.
a mechanism configured to overcome the empty and missing cartridge lockout.


text:
ETHAN A. HITCHCOCK, Secretary of the Interior.
Argued March 17, 18, 1903.
The relator, plaintiff in error, filed its petition in the supreme court of the District of Columbia, asking for a writ of mandamus to compel the defendant, the Secretary of the Interior, to vacate a certain order made by him rejecting selections of land by one Clarke, and to compel the defendant to order such selections passed to patent and to cause to be prepared and presented for signature to the proper officers of the United States of America a patent for the selected land, or for such other relief as might be proper. The court denied the petition, and from that judgment the relator appealed to the court of appeals of the District, which, after a hearing, affirmed the judgment of the court below. The relator has brought the case here by writ of error.
On October 28, 1898, one C. W. Clarke was the owner in fee of certain land in the state of Oregon covered by a patent from the United States to his grantors, which is described in the petition, and the land was situated in a forest reservation in that state, designated as the Cascade Range Forest Reservation. On the day above mentioned Clarke executed a deed, which conveyed in fee and relinquished to the United States the land above described, and the deed was surrender to the register and receiver of the proper land office and received and accepted by them. Certain land was thereupon selected by Clarke, which land had been duly surveyed and classified as agricultural land prior to the selection, and appeared on the records of the Land Department as agricultural land, subject to disposition under the act of June 4, 1897 (30 Stat. at L. 36, chap. 2, U. S. Comp. Stat. 1901, p. 1541), relating to forest reserve lands. A copy of the material portion of that act is set forth in the margin in the case immediately preceding, Cosmos Exploration Co. v. Gray Eagle Oil Co. 189 U. S. ——, ante, 692, 23 Sup. Ct. Rep. 692.
After the selection of the land the register certified that the land thus selected in lieu of the land relinquished to the United States was free from conflict, and that there was no adverse filing, entry, or claim thereto, and he thereupon entered the selected land upon the records and tract books of the land office. The Land Department thereafter required Clarke (without authority of law as averred) to publich a notice of his selection for a period of sixty days, and the register forwarded all the papers to the Commissioner of the General Land Office, together with his above-mentioned certificate, and reported to that office that publication had been ordered pursuant to the circular of the General Land Office of December 18, 1899. Clarke complied with the requirements of the department and published the notice, and on February 6, 1900, before the sixty days had expired, the Kern Oil Company filed in the local office a protest against the selection, with accompanying affidavits, which protest and affidavits were also thereupon forwarded to the General Land Office. The petitioner avers that the protest was insufficient to constitute an issue as to whether or not the land selected by Clarke was vacant land open to settlement at the time of such selection, and it was averred that the protestant, by reason of the non-discovery of mineral in the land, was wholly without standing as an adverse claimant under the law and practice of the Land Department.
On January 2, 1900, Clarke duly conveyed by deed the selected land to the petitioner, and it thereby became vested with all of Clarke's rights in and to the land, and it is still the owner thereof and entitled to demand and receive from the United States a patent therefor. The petitioner then filed in the General Land Office a motion to dismiss the protest.
It was then averred that at the time of the selection by Clarke no other person had any right, title, or interest, vested or inchoate, in or to the land so selected, and that the persons mentioned in the protest and affidavits, and alleged to have been upon the land as locators at or before the time of the selection by Clarke, and under whom the protestant asserted rights, were pretended explorers for minerals who had made no discovery of minerals upon the land or any part thereof, but had merely staked off pretended mining claims for the purpose of deceiving others and discouraging and defeating them from acquiring title to such land under the land laws, and that such staking off initiated no lawful right, inchoate or vested, under such land laws.
The hearing was had before the Commissioner of the General Land Office, and a decision in the matter was given by him, by which he held that the title of the selector did not vest until approval by the Commissioner, and that the land in the selection was yet open to exploration under the mining laws, and if at the date of the decision the land is shown to be mineral it defeats the selection.
From this decision the petitioner appealed to the Secretary of the Interior, and assigned, among other things, that the Commissioner erred in not sustaining the motion to dismiss the protest and in not passing the land selected to patent, and that he also erred in ordering a hearing, and in not holding that the showing of the tract books and land records at the date of the selection governed the character of the land for the purpose of the selection, and also in holding that a discovery of mineral upon the land selected subsequent to the selection and before approval by the Commissioner would defeat such selection; that the Commissioner also erred in calling upon the selector to demand a hearing and assume the burden of proof upon the question of the character of the land, and in directing that at such hearing, if demanded, the character of the land subsequent to the selection should be embraced in the issue.
On April 25, 1901, the defendant rendered a decision in the matter, wherein, as averred, he held that questions respecting the class and character of the selected land were to be determined by the conditions existing at the time when all requirements necessary to obtain title have been complied with by the selector; that the mere recital in one of the forms approved by the respondent, of an accompanying non-mineral and non-occupancy affidavit, constituted a regulation of the department requiring the filing of such affidavit as a condition precedent to the vesting of selector's title; that such alleged regulation was binding upon selector's forest reserve lieu land; that the affidavits filed by the selector Clarke failed to allege non-occupancy, and therefore he had not complied with the requirements necessary to obtain title; that since the said selection by Clarke valuable deposits of mineral petroleum oil had been discovered, and that, in view of the alleged admitted occupancy subsequent to the said selection and the subsequently discovered value of the land for mining purposes, it was apparent that the required proofs of the then non-mineral character and non-occupancy of the land could not then be supplied; that, therefore, the selections must be rejected.
The petition averred that the defendant vacated the order of the Commissioner directing a hearing, and arbitrarily, wrongfully, and unlawfully attempted to reject the selections and destroy the vested rights of Clarke and his grantees.
The protest mentioned in nowise questioned the sufficiency in substance and form of the selection made by Clarke, nor was the point of the alleged insufficiency of the affidavit raised by the Commissioner of the General Land Office in his decision of December 18, 1900, and the United States has in nowise notified the selector of any defect in the exchange, and there is no issue in the record charging a failure to comply with the law.
The affidavits, though not essential to the validity of the contract of exchange tendered by Congress, and accepted and completed by the relinquishment and selection aforesaid, did in law and in fact allege the non-occupancy of the land as understood in the law and the practice of the Land Department, as they expressly negative all the elements of legal occupancy.
A motion for a review of the hearing was made and granted, and was thereafter had before the Assistant Attorney General of the United States for the Interior Department.
On April 12, 1902, the defendant rendered a decision, adhering to the ruling already given, ignoring the curative effect of supplemental affidavits of non-occupancy, and denied the motion for a review.
The defendant arbitrarily refused to pass the selection to patent, and has arbitrarily ordered the case of the selector dismissed from his docket solely because of the alleged absence from the record of selection of a non-occupancy affidavit, and not because of any ground or cause of objection to the selection set up in said protest.
It is then averred that the allegations showing the land selected to be non-mineral in character and unoccupied was an essential averment, for the reason that, unless the lands were non-mineral in character and unoccupied, the same were not vacant lands open to settlement within the intent and meaning of the act of 1897.
The answer then set up the facts as to the protest of the Kern Oil Company and the various hearings and decisions of the Commissioner and the Secretary, in substance as set forth in the petition.
The defendant then averred that by the laws of the United States the duty was imposed upon him to construe the acts governing the disposition of the public lands of the United States, and, in pursuance of the duties so imposed upon him, he was required to construe and apply the terms of the act of Congress of June 4, 1897, and that, in the exercise of his judgment and discretion in that behalf, he did construe the term, 'vacant land open to settlement,' as meaning to exclude land in the actual occupation of any person or persons under the local customs or rules of miners which are by the statute incorporated into and have become part of the laws of the United States; that, in the exercise of his proper duty and function as Secretary of the Interior, the defendant decided that, by reason of the failure of Clarke to show in due and proper form that the lands were at the date of selection subject to selection as 'vacant land open to settlement,' the attempted selection thereof must be rejected, and it thereupon became and was unlawful for this respondent as such Secretary to order any patent or patents to the said lands to issue to the said Clarke as in the said petition prayed to be commanded.
To this answer the petitioner demurred on the ground that the same was insufficient and bad in form and substance. After the demurrer was overruled the petitioner elected to stand by it, and the court thereupon adjudged that the rule to show cause should be discharged, the prayer of petitioner denied, and the petition itself dismissed.
Messrs. Jefferson Chandler, Shirley C. Ward, John M. Thurston, T. C. Van Ness, William C. Prentiss, M. A. Ballinger, and Horace F. Clark for plaintiff in error.
Messrs. John S. Chapman, Morgan H. Beach, Henry H. Glassie, Solicitor General Hoyt, and Assistant Attorney General Van Devanter for defendant in error.
Congress has constituted the Land Department, under the supervision and control of the Secretary of the Interior, a special tribunal with judicial functions, to which is confided the execution of the laws which regulate the purchase, selling, and care and disposition of the public lands.
Neither an injunction nor mandamus will lie against an officer of the Land Department to control him in discharging an official duty which requires the exercise of his judgment and discretion. Marquez v. Frisbie, 101 U. S. 473, 25 L. ed. 800; Gaines v. Thompson, 7 Wall. 347, 19 L. ed. 62; United States ex rel. Dunlap v. Black, 128 U. S. 40, 32, L. ed. 354, 9 Sup. Ct. Rep. 12; United States ex rel. Redfield v. Windom, 137 U. S. 636, 34 L. ed. 811, 11 Sup. Ct. Rep. 197.
In Decatur v. Paulding, 14 Pet. 497, 10 L. ed. 559, it was held that, in general, the official duties of the head of one of the executive departments, whether imposed by act of Congress or by resolution, are not mere ministerial duties. The head of an executive department of the government in the administration of the various and important concerns of his office is continually required to exercise judgment and discretion. He must exercise his judgment in expounding the laws and resolutions of Congress under which he is from time to time required to act.
That the decision of the questions presented to the Secretary of the Interior was no merely formal or ministerial act is shown beyond the necessity of argument by a perusal of the foregoing statement of the issues presented by this record for the decision of the Secretary. Whether he decided right or wrong, is not the question. Having jurisdiction to decide at all, he had necessarily jurisdiction, and it was his duty to decide as he thought the law was, and the courts have no power whatever under those circumstances to review his determination by mandamus or injunction. The court has no general supervisory power over the officers of the Land Department, by which to control their decisions upon questions within their jurisdiction. If this writ were granted we would require the Secretary of the Interior to repudiate and disaffirm a decision which he regarded it his duty to make in the exercise of that judgment which is reposed in him by law, and we should require him to come to a determination upon the issues involved directly opposite to that which he had reached, and which the law conferred upon him the jurisdiction to make. Mandamus has never been regarded as the proper writ to control the judgment and discretion of an officer as to the decision of a matter which the law gave him the power and imposed upon him the duty to decide for himself. The writ never can be used as a substitute for a writ of error. Nor does the fact that no writ of error will lie in such a case as this, by which to review the judgment of the Secretary, furnish any foundation for the claim that mandamus may therefore be awarded. The responsibility as well as the power rests with the Secretary, uncontrolled by the courts.
Neither the case of Roberts v. United States, 176 U. S. 221, 44 L. ed. 443, 20 Sup. Ct. Rep. 396, nor that of American School of Magnetic Healing v. McAnnulty, 187 U. S. 94, ante, 33, 23 Sup. Ct. Rep. 33, decides anything opposing these views.
In the Roberts Case it was simply decided that the duty of the Treasurer to pay the money in question in that case was ministerial in its nature, and should have been performed by him on demand, and that, therefore, mandamus was the proper remedy for his failure to do it.
In the McAnnulty Case it was held that the order of the Postmaster General to the postmaster in the city of Nevada, not to deliver the mail to the relator, was not a justification for such refusal, because the order was given without authority of law, and the postmaster could, notwithstanding such order, be compelled by mandamus to do his duty and deliver the mail. The case has no relevancy to the one in hand.
We are so clearly of opinion that the decision of the defendant in this case was judicial in its nature that further argument upon the subject is needless.
The judgment of the Court of Appeals of the District of Columbia is affirmed.
U. S. Comp. St. 1901, p. 1538.

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


text:
On behalf of Leo V. Duval, Attorney At Law posted in blog on Friday, April 27, 2018.
An arrest for making a false statement to a police officer may understandably be terrifying and even frustrating. However, just because authorities have accused you of lying to a federal agent does not mean you are automatically guilty in the eyes of Lady Justice.
On behalf of Leo V. Duval, Attorney At Law posted in blog on Thursday, April 5, 2018.
Money laundering is a criminal offense that is typically associated with racketeering operations and organized crime. It essentially refers to making a financial transaction -- or multiple ones -- with money you gained by participating in criminal activity.
Did a resisting arrest charge leave you feeling shocked?
On behalf of Leo V. Duval, Attorney At Law posted in blog on Tuesday, February 27, 2018.
Dealing with a criminal charge may not have been in your plans. In fact, you may have considered yourself someone who always tried to do the right thing and did not go out of your way to make unnecessary trouble. However, when the time came to question the unseemly actions of another person, you likely did not hesitate to do so. Unfortunately, you may have questioned the wrong person and ended up facing a criminal charge.
On behalf of Leo V. Duval, Attorney At Law posted in blog on Friday, February 2, 2018.
Even though laws are in place in order to help individuals avoid dangerous or unseemly situations, many people do not fully understand certain laws. As a result, you or any other New York resident could potentially end up facing criminal charges without even fully knowing that you broke the law. Of course, even if you do understand that certain actions fall outside the boundaries of legal behavior, you could make mistakes, wind up in the wrong place at the wrong time or face other circumstances that result in allegations against you.
On behalf of Leo V. Duval, Attorney At Law posted in blog on Friday, January 5, 2018.
The police arresting you for driving under the influence can naturally be intimidating. Your future may run through your mind, as you may worry about the consequences you may face. These possible consequences include jail time and even fines.
On behalf of Leo V. Duval, Attorney At Law posted in blog on Friday, October 6, 2017.
Bribery refers to offering or accepting anything valuable in exchange for being able to influence a government employee or public official. A bribe can be a gift presented or a monetary payment made to secure a government contract or award, for example. Bribes can also involve services, privileges, property or goods.
On behalf of Leo V. Duval, Attorney At Law posted in blog on Thursday, September 7, 2017.
The state of New York has a reputation for having some of the United States' most stringent drug laws. The state classifies substances that are relatively well known, such as cocaine and heroin, along with the compounds that are used in manufacturing them.
On behalf of Leo V. Duval, Attorney At Law posted in blog on Monday, July 31, 2017.
Although a vast number of domestic disputes involve little more than a heated argument, in some cases, the situation can grow out of hand, potentially becoming violent. Penalties for domestic violence are severe if a conviction is obtained, perhaps especially those that result in injuries.
On behalf of Leo V. Duval, Attorney At Law posted in blog on Saturday, June 3, 2017.
Any type of criminal charge is serious, and you would be wise not to underestimate your situation if currently facing white collar crime charges. White collar crime is a term used to describe various types of federal crimes, and a conviction for any of these could lead to serious, life-altering penalties.
On behalf of Leo V. Duval, Attorney At Law posted in blog on Saturday, April 8, 2017.
As a working individual, you undoubtedly fall in line with numerous other people who consider dealing with taxes an inconvenience. Although taxes help fund various programs and institutions, seeing that money leave your paycheck can feel like a considerable blow to your financial situation. Nonetheless, you have a duty to ensure that you pay your taxes, because if you do not, you could face serious repercussions.

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


Export-Import Bank of the United States ("Ex-Im Bank").
Ex-Im Bank is adopting a regulation that establishes policy and prescribes procedures with respect to the testimony of Ex-Im Bank personnel, both current and former, and the production of agency records, in legal proceedings. The regulation is designed to balance concerns such as preserving the time of Ex-Im Bank personnel for the conduct of official business against concerns such as whether the disclosure of information requested is necessary to prevent fraud or injustice. A proposed rule on this subject was published in the Federal Register on October 24, 2005 (70 FR 61395). Ex-Im Bank did not receive any comments on the proposed rule. Ex-Im Bank is accordingly adopting the proposed provisions as a final rule without further change.
Office of the General Counsel, Export-Import Bank of the United States, 811 Vermont Ave., NW., Washington, DC 20571.
Brian J. Sonfield, Assistant General Counsel for Administration, Export-Import Bank of the United States, Phone: (202) 565-3439/Fax: (202) 565-3586.
Section 301 of title 5, United States Code, provides that the head of an Executive department may prescribe regulations for the custody, use and preservation of its records. The Supreme Court has interpreted this statute as allowing Federal agencies to promulgate regulations under the authority of section 301 establishing procedures governing the production of records and testimony by federal agency personnel in legal proceedings in which the agency is not a party. United States ex rel. Touhy v. Ragen , 340 U.S. 462 (1951).
Ex-Im Bank frequently receives demands for: (1) Testimony of its employees or (2) the production of agency records-in legal proceedings to which Ex-Im Bank is not a party. Ex-Im Bank currently does not have any regulations or procedures to address this situation.
The final rule is designed to establish centralized Ex-Im Bank policies and procedures to govern the production of agency records and testimony regarding information acquired in the course of the performance of official duties by current and former Ex-Im Bank personnel in legal proceedings before Federal, state, and local entities (as specified in the regulation) in which Ex-Im Bank: (i) Is not a party; (ii) is not represented; (iii) does not have a direct and substantial interest; and (iv) is not providing representation to an individual or entity that is a party. The rule does not cover requests for information that are not part of legal proceedings, such as requests for records under the Freedom of Information Act, 5 U.S.C. 552.
The regulation is intended to address Ex-Im Bank's need to conserve official personnel resources for the performance of the agency's statutory duties while at the same time accommodating legitimate requests or demands for official records or testimony to the extent possible. The procedures established will also provide necessary internal controls for management of Ex-Im Bank personnel on official duty and for release of Ex-Im Bank records and information.
This regulation will not authorize any Ex-Im Bank personnel to refuse to comply with the law. Rather, the regulation will permit Ex-Im Bank personnel, under certain circumstances, to refuse to comply with a party to litigation's demand or a court order due to: (1) Incomplete compliance with this rule; or (2) a determination by the General Counsel that a challenge to, or immediate review of, the demand or order is legally appropriate.
These procedures will not infringe upon the judiciary or create new privileges not previously recognized by law but will simply make uniform a process of responding to each request or demand for the production of records or testimony by Ex-Im Bank personnel in private controversies. Further, these procedures will not impede Ex-Im Bank personnel's access to the courts in relation to legal matters unrelated to their official duties or not involving the official records of Ex-Im Bank.
In compliance with the Administrative Procedure Act (5 U.S.C. 553), Ex-Im Bank Published a proposed rule on this subject in the Federal Register . This final rule will become effective as noted above.
This rule is not a "major rule," as defined by the Small Business Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in cost or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 25, subchapter II), this rule will not significantly or uniquely affect small governments and will not result in increased expenditures by State, local, and tribal governments, or by the private sector, of $100 million or more (as adjusted for inflation).
Administrative practice and procedure, Government employees, Information, Records.
5 U.S.C. 552 and 552a.
Section 404.7 also issued under E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235.
Section 404.21 also issued under 5 U.S.C. 552a note.
Subpart C also issued under 5 U.S.C. 301, 12 U.S.C. 635.
Sec. 404.24 General provisions.404.25 Applicability.404.26 Definitions.404.27 Demand requirements.404.28 Notification of General Counsel required.404.29 Restrictions on testimony and production of records.404.30 Factors General Counsel may consider in determining whether to authorize testimony and/or the production of records.404.31 Procedure for declining to testify and/or produce records.404.32 Procedure in the event a decision concerning a demand is not made prior to the time a response to the demand is required.404.33 Procedure in the event of an adverse ruling.404.34 Procedure for demands for testimony or production of documents regarding confidential information.404.35 Procedure for requests for Ex-Im Bank employees to provide expert or opinion testimony.404.36 No private right of action.
(3) The offer of expert or opinion testimony by Ex-Im Bank personnel regarding matters related to the performance of their official duties.
(5) Maintenance of the integrity of the agency's deliberative processes.
(c) Congressional demands and requests for testimony or records.
Demand -includes an order, subpoena, or other compulsory process issued by a party in litigation or a court of competent jurisdiction, requiring the production or release of Ex-Im Bank information or records, or requiring the testimony of Ex-Im Bank personnel.
Ex-Im Bank personnel -includes any current or former officer or employee of Ex-Im Bank, including all individuals who have been appointed by, or subject to, the official supervision, jurisdiction, or control of any Ex-Im Bank employees. This definition encompasses all individuals hired through contractual agreements with Ex-Im Bank, such as: consultants, contractors, sub-contractors, and their employees.
Legal proceeding -a case or controversy pending before any federal, state, or local court, including a grand jury proceeding; a proceeding before a federal, state, or local administrative judge, board, or other similar body with adjudicative powers; or a legislative proceeding before a state or local legislative body.
Records -all documentary materials that Ex-Im Bank creates or receives in connection with the transaction of official business, including any materials classified as "Federal records" under 44 U.S.C. 3301 and its implementing regulations.
Testimony -written or oral statements, including, but not limited to, depositions, answers to interrogatories, affidavits, declarations, and any other statements made in a legal proceeding, including any expert or opinion testimony.
(f) Comply with all procedures governing valid service of process.
§ 404.28 Notification of General Counsel required.
Ex-Im Bank personnel receiving a demand for testimony and/or production of records regarding information acquired in the course of their performance of official duties, or due to their official status, shall immediately notify the General Counsel of Ex-Im Bank ("General Counsel") upon receipt of such demand. The General Counsel maintains the exclusive authority to waive the requirements of any or all sections of this subpart and reserves the right to delegate his or her authority under this subpart to other appropriate Ex-Im Bank personnel.
§ 404.29 Restrictions on testimony and production of records.
Ex-Im Bank personnel may not provide testimony and/or produce records regarding information acquired in the course of their performance of official duties, or due to their official status, in connection with any legal proceeding to which this subpart applies, without authorization by the General Counsel. Such authorization must be in writing, unless the General Counsel determines that circumstances warrant an oral authorization, and such oral authorization is subsequently documented.
§ 404.30 Factors General Counsel may consider in determining whether to authorize testimony and/or the production of records.
(k) Compromise of rights and interests-whether the testimony and/or production of records would compromise any of the following: law enforcement interests, constitutional rights, national security interests, foreign policy interests, or the confidentiality of commercial and/or financial information.
§ 404.31 Procedure for declining to testify and/or produce records.
(e) Request a stay of the request or demand pending a determination by the General Counsel.
§ 404.32 Procedure in the event a decision concerning a demand is not made prior to the time a response to the demand is required.
If response to a demand is required before a determination has been rendered by the General Counsel, the U.S. Attorney or such other attorney as may be designated for the purpose will appear with the Ex-Im Bank personnel upon whom the demand has been made, and will furnish the court or other authority with a copy of the regulations contained in this subpart and inform the court or other authority that the demand has been or is being, as the case may be, referred for prompt consideration of the General Counsel. The court or other authority shall be requested respectfully to stay the demand pending determination by the General Counsel.
§ 404.33 Procedure in the event of an adverse ruling.
If the court or other authority declines to stay the effect of the demand in response to a request made in accordance with § 404.32 pending a determination by the General Counsel, or if the court or other authority rules that the demand must be complied with irrespective of the instructions from the General Counsel not to produce the material or disclose the information sought, the Ex-Im Bank personnel upon whom the demand has been made shall respectfully decline to comply with the demand ( United States ex rel. Touhy v. Ragen, 340 U.S. 462).
§ 404.34 Procedure for demands for testimony or production of documents regarding confidential information.
In addition to compliance with the requirements of this subpart, demands to provide testimony and/or produce records that concern information protected by the Privacy Act, 5 U.S.C. 552a, or any other authority mandating confidentiality of certain classes of records or information, must also satisfy the requirements for disclosure imposed by such authority before records may be produced or testimony given.
§ 404.35 Procedures for requests for Ex-Im Bank employees to provide expert or opinion testimony.
No Ex-Im Bank personnel may, unless specifically authorized by the General Counsel, testify in any legal proceeding as an expert or opinion witness as to any matter related to his or her duties or the functions of the Ex-Im Bank, including the meaning of Ex-Im Bank documents. Any demand for expert or opinion testimony shall comply with the policies and procedures outlined in this subpart.
§ 404.36 No private right of action.
Nothing in this subpart shall be construed as creating any right, substantive or procedural, enforceable at law or equity by a party against Ex-Im Bank or the United States.
General Counsel (Acting), Export-Import Bank of the United States.


text:
States, 219 U. S. 79, and Jin Fuey Moy v. United States, 254 U. S. 189, overruled on this point. Pp. 290 U. S. 373, 290 U. S. 386.
2. In the absence of a federal statute governing the subject, the competency of witnesses in criminal trials in federal courts is determined by the common law. P. 290 U. S. 379.
3. In the taking of testimony in criminal cases, the federal courts are not bound by the rules of the common law as they existed at a specified time in the respective states; they are to apply those rules as they have been modified by changed conditions. P. 290 U. S. 379.
4. The reasons anciently assigned for disqualifying a wife as a witness in behalf of her husband in criminal cases can no longer be accepted in the federal courts in view of modern thought and legislation touching the subject. P. 290 U. S. 380.
5. The public policy of one generation may not, under changed conditions, be the public policy of another. P. 290 U. S. 381.
6. The federal courts have no power to amend or repeal a rule of the common law; but they have the power, and it is their duty, in the absence of any congressional legislation on the subject, to disregard an old rule which is contrary to modern experience and thought and is opposed in principle to the general current of legislation and judicial opinion, and to declare and apply what is the present rule in the light of the new conditions. Pp. 290 U. S. 381-383.
7. The common law is not immutable, but flexible, and by its own principles adapts itself to varying conditions. P. 290 U. S. 383.
v. United States, 254 U. S. 189. Petitioner contends that these cases, if not directly contrary to the decisions in Benson v. United States, 146 U. S. 325, and Rosen v. United States, 245 U. S. 467, are so in principle. We shall first briefly review these cases, with the exception of the Hendrix case and the Jin Fuey Moy case, which we leave for consideration until a later point in this opinion.
P. 53 U. S. 365. The court concluded that this could not be the common law as it existed at the time of the emigration of the colonists or the rule which then prevailed in England, and [therefore] the only known rule which could be supposed to have been in the mind of Congress was that which was in force in the respective states when the federal courts were established by the Judiciary Act of 1789. Applying this rule, it was decided that the witness was incompetent.
P. 144 U. S. 303.
Nor can the exclusion of the wife's testimony, in the face of the broad and liberal extension of the rules in respect of the competency of witnesses generally, be any longer justified, if it ever was justified, on any ground of public policy. It has been said that to admit such testimony is against public policy because it would endanger the harmony and confidence of marital relations, and, moreover, would subject the witness to the temptation to commit perjury. Modern legislation, in making either spouse competent to testify in behalf of the other in criminal cases, has definitely rejected these notions, and, in the light of such legislation and of modern thought, they seem to be altogether fanciful. The public policy of one generation may not, under changed conditions, be the public policy of another. Patton v. United States, 281 U. S. 276, 281 U. S. 306.
Compare Holden v. Hardy, 169 U. S. 366, 169 U. S. 385-387.

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


text:
ARBITRATION AWARD JUDGMENT NOT RES JUDICATA, PRECLUDES NO EXTRACONTRACTUAL CLAIMS.
Res judicata was no defense to bad faith and statutory unfair claim handling claims in Fortson-Kemmerer v. Allstate Ins. Co., 198 Wash. App. 387, 393 P.3d 849 (Ct. App., Div. 3, 2017). The defendant underinsured motorist (UIM) carrier tried to preclude these claims with an earlier final judgment that was entered in favor of its policyholder after she successfully arbitrated her underlying UIM claims.
The arbitration did not preclude her bad faith claims, the Court held. The arbitration was on coverage issues and damages covered by UIM. "In this case, [the UIM carrier] will defend in a quasi-fiduciary role," the appellate court ruled.
TRICK OR TREAT! BUT NO ARBITRATION HERE!
In Morrow v. Community Health Sys's, Inc., No. 3-16-cv-1953, 2017 WL 4641797 (M.D. Tenn. October 17, 2017), the Court denied a defendant's motion to compel arbitration. Rarely do any of us quote long passages from any source. For one thing, quoting long swatches of someone else's writing is frowned upon in writing generally, and in writing about legal issues in particular.
But sometimes the way in which the story is told in the original is so concise and to the point that it cannot easily be improved upon.
The First Amended Complaint in this purported class action (Docket No. 73) alleges that Community Health Systems, Inc. (“CHS”) and its direct and indirect subsidiaries (“affiliates”) have a policy and practice of breaching their provider contracts with health insurers, causing monetary damages to third-party beneficiaries of those contracts, including Plaintiff and other potential class members. Plaintiff contends that CHS and its affiliates are required by their provider contracts to submit the bills of insured patients to their respective health insurance carriers and to accept the insurer's contractually agreed-upon discounted payment as full payment for those bills, minus any co-pays or deductibles owed by the patients.
Instead, Plaintiff asserts, the policies and practices of CHS and its affiliates require CHS-owned hospitals to either (1) refuse to submit the medical bills to the patient's health insurance carrier; (2) submit the medical bills to the patient's health insurance carrier, but then refund the insurer's discounted payment and try to collect a larger payment from another source, usually the patient or a third-party tortfeasor; or (3) submit the medical bills to the patient's health insurance carrier, keep the insurer's discounted payment, and then still try to collect the balance of the undiscounted charges from another source, including the patient.
Small wonder that these claims are being pursued in the lawsuit in which they were alleged, albeit under one count or claim: unjust enrichment. The District Court in this case granted the defendant's alternative motion to dismiss as to alleged claims for breach of contract, intentional interference, and conspiracy. The Tennessee Court applied substantive Alabama law to all these claims.
To say again, the Court totally denied the defendant's motion to compel arbitration. Since there was no contract between the parties according to the Court's rulings, it follows that there was no contract provision which could require arbitration.
FREE US ALL FROM MANDATORY ARBITRATION!
Senate Joint Resolution 47 would force people to arbitrate their disputes even if they do not want to.
Joint Resolution 47 would delete the Consumer Financial Protection Bureau's rule prohibiting mandatory arbitration. Understand that the CFPB rule does not require people to sue. Instead the CFPB rule allows people to sue and allows people to arbitrate, but only if they want to.
Repealing the CFPB rule would require mandatory arbitration and take away people's right to join together with other people in any class action to sue.
Urge your United States Senators today to vote for FREEDOM and against Joint Resolution 47!
LENDER FORCE-PLACED AUTO INSURANCE, REPOSSESSION, AND CHURNING HUGE PROFITS.
Other features of this story were addressed in an article published on Monday of this week on Insurance Claims and Issues Blog.
Wells Fargo admittedly placed "collateral protection insurance" on its auto-loan borrowers and forced the premiums onto the borrowers' auto loans. Wells only disputes how many of its customers it did this to.
Wells Fargo also admits that it sometimes force-placed the insurance even when the borrowers already had auto insurance.
Wells Fargo further admits that the force-placed insurance premiums sometimes forced the borrowers into having their cars repossessed because they could not make the payments Wells added to their auto loans.
These admissions come to us courtesy of a report commissioned by Wells Fargo. See Alexa D'Angelo and James Rufus Koren, "Wells Fargo Charged Customers for Unneeded Auto Insurance -- Then Repossessed Their Cars" (Los Angeles Times Online, posted on Friday, July 28, 2017), also accessible at http://www.latimes.com/business/technology/la-fi-wells-fargo-insurance-20170728-story.html.
The consequences of Wells's admitted conduct even go beyond its customers. The pending Consumer Financial Protection Bureau (CFPB) rule prohibiting mandatory arbitration provisions and class-action waivers in consumer contracts is reportedly being held up by the news from Wells. "Some of Wells' auto loan contracts contain arbitration clauses, a spokesman said, which could become a further lightening rod in the dispute over whether customers should be allowed to band together in class-action lawsuits." Kate Berry, "New Wells Scandal Harms Effort to Nix CFPB Arbitration Rule" (American Banker Online, posted on Friday, July 28, 2017), also available by pasting this website into your browser, but be forewarned that American Banker articles all seem to be protected by a paywall requiring a subscription, and this article is certainly one of those: https://www.americanbanker.com/news/new-wells-scandal-harms-effort-to-nix-cfpb-arbitration-rule?brief=00000158-07c7-d3f4-a9f9-37df9bc10000.
Dennis Wall is the author of "Lender Force-Placed Insurance Practices" published by the American Bar Association.
MISSOURI SCHOOL BUS DRIVER DOES NOT HAVE TO ARBITRATE BAD FAITH CLAIMS.
In Leonberger v. Missouri Utd. Sch. Ins. Council, 501 S.W.3d 1 (Mo. Ct. App., E.D., Div. 4, 2016), rehearing and/or transfer denied on June 30, 2016 and again on November 1, 2016 (unreported), a Missouri Court of Appeals held that a Missouri State Statute which bars mandatory arbitration clauses for insurance disputes applied to preclude arbitration of an original insured's alleged bad faith claims (bad faith in settlement, bad faith in defense) and alleged breach of fiduciary duty against his liability carrier and the liability carrier's reinsurance carrier as well.
Section 435.350 of the Missouri Arbitration Act prohibiting mandatory arbitration clauses in insurance contracts does not regulate Appellant's operation as a risk retention group. (Citation omitted.) The purpose of Section 435.350 of the Missouri Arbitration Act is to regulate the business of insurance. (Citation omitted.) The Missouri statute was enacted for the purpose of regulating insurance in that it was designed to regulate the operation of an insurance contract.
Leonberger, 501 S.W.3d 1, under Point III—Preemption.
November 28, 2016, "Shh! WELLS FARGO, INSURANCE CARRIERS, AND SECRET ARBITRATION," and on October 3, 2016, "ARBITRATION OF INSURANCE COVERAGE?"
ARBITRATION OF BAD FAITH CLAIMS DENIED, INJUNCTION AGAINST ARBITRATING GRANTED.
In Portland Gen. Elec. Co. v. Liberty Mut. Ins. Co., No. 3:16-cv-00495-HZ, 2016 WL 4059658 (D. Or. July 27, 2016), two agreements were involved.
First, Portland General Electric ("PGE") had an agreement with a Contractor to build a power plant. That construction contract has an arbitration provision. However, PGE did not sue the Contractor.
PGE also required the Contractor to obtain a Performance Bond from Sureties to indemnify PGE in the event the Contractor defaulted. The Bond is the second agreement at issue here.
PGE made a claim under the Bond. The Sureties refused to pay. PGE sued the Sureties for alleged bad faith, among other things.
The Bond expressly authorized suit against the Sureties in Court. "There is no agreement between PGE and Sureties to submit any proceeding to arbitration." Portland Gen. Elec. Co. v. Liberty Mut. Ins. Co., No. 3:16-cv-00495-HZ, 2016 WL 4059658, at *2 (D. Or. July 27, 2016).
However, the Sureties filed a motion in PGE's case against them, to request arbitration under the Contractor's Construction Contract and to stay PGE's bad faith lawsuit against them. The Contractor quickly claimed against PGE under the Construction Contract and demanded arbitration under the Rules of the International Chamber of Commerce. The Chamber swiftly instituted arbitration proceedings.
To say again, there was no arbitration provision in the Bond issued by the Sureties and PGE did not sue the Contractor. PGE sued the Sureties and filed its own motion to enjoin the Sureties from arbitrating PGE's bad faith claim and other claims against the Sureties.
To the Court, this was a simple case based on the language in the agreements alone: There was an arbitration provision in the Contractor's agreement with PGE, but not in the Sureties' Performance Bond under which PGE made its claims (except for PGE's bad faith claim, of course, which was not under the Bond so much as a result of the Sureties' refusal to perform). "The Court concludes it is not required to stay the case, and it declines to exercise its discretion to impose a stay. Furthermore, the Court enjoins Sureties from participating in [the Contractor's] ICC arbitration." Portland Gen. Elec. Co. v. Liberty Mut. Ins. Co., No. 3:16-cv-00495-HZ, 2016 WL 4059658, at *4 (D. Or. July 27, 2016).
So much for pulling a fast one, at least in this case.
Start-ups are lining up to require their employees to arbitrate labor disputes. "Uber and Lyft, the ride-hailing services, make their drivers sign an arbitration clause." Jessica Silver-Greenberg & Michael Corkery, "Start-Ups Embrace Arbitration to Settle Workplace Disputes" (New York Times Dealbook Online, posted May 14, 2016).
Secrecy seems to be the prime attraction in arbitrating labor disputes. "That secrecy, federal labor officials said, can allow widespread problems to persist because the process bars employees from sharing their experiences with others who might be in similar positions." Jessica Silver-Greenberg & Michael Corkery, "Start-Ups Embrace Arbitration to Settle Workplace Disputes" (New York Times Dealbook Online, posted May 14, 2016).
The results of arbitration will show whether arbitrators rule favorably toward so-called "start-ups" in similar numbers to their rulings in disputes involving large corporations. Start-up corporations have already placed their bets.
What We Have Here Is a Failure to Arbitrate.
Mandatory Arbitration, Waive Jury in Bad Faith Cases?
Photo by NASA/Library of Congress 2014.
I had the good fortune to attend the annual meeting of the American Council on Consumer Interests (“ACCI”) in Clearwater Beach, Florida last week. The ACCI may have assembled the nicest group of people I have ever been around; if they are not in first place for “nicest” in my experience, I cannot recall who would be.
The ACCI members as a group shied away from labels. They did not seem to want to be pinned down even as “academics” or as “regulators.” Their membership is united in its devotion to scholarship regardless of labels. They support one another’s research projects as they focus on the results of their collective research. In short, they focus on evidence.
For example, one presentation featured research which seriously challenges the legal concept of “consent.” In the Roberts Court in Washington, D.C., some five of the Justices accept the notion for example that if a provision is in a contract it only has to be understandable or understood to be legally valid. That point of view is perhaps typical of the law in the abstract, namely, from the point of view of the actor, of the defendant charged with not doing enough to make a contract provision understandable, in this case.
The presentation at the ACCI which touched upon this concept shows that from the point of view of the recipient of the information, even though the contract language may be understood it is still not believed particularly when the contract language would, if enforced by the Courts, take away Constitutional rights. In other words, simply because a contract is understood to take away Constitutional rights does not make many people believe that a contract can do that; it is just the opposite for many people. Here is the publicly available abstract of the research article underlying this presentation: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2516432. The results show the recipients’ point of view of the concept of consent, then: Even though something is understood does not make it true.
In the arena of forced arbitration clauses, five of the current Justices on the U.S. Supreme Court reach the opposite conclusion from the point of view strictly of the party writing the contract: If it is understood, there is consent regardless of whether the provision takes away even Constitutional rights.
Please Read The Disclaimer. ©2015 by Dennis J. Wall, author of "Lender Force-Placed Insurance Practices" (American Bar Association 2015). www.lenderforceplacedinsurance.com. All Rights Reserved.
YOU, ME, OUR CLIENTS MAY BE CONTRACTING OUR RIGHTS AWAY.
A current majority of the U.S. Supreme Court has given effect to a variety of jury trial waivers in various contracts. The contracted waivers of jury trial they have approved go beyond waivers to affirmative agreements: to arbitrate rather than sue, to arbitrate in a certain venue, or to arbitrate according to the usual practice in arbitration proceedings without a record of the proceedings, among other things.
Not-necessarily scientific comments to a survey reflect that many people do not believe what I have just written in the first paragraph above. See Jeff Sovern, "Comments From the Arbitration Study Respondents: Contracts Can't Take Away Your Rights as an American Citizen" posted on November 4, 2014 on Consumer Law & Policy Blog.
Believe it. What is true for me is true for all of us, I am afraid: I cannot do anything about the way things are until I know the way things are.
Mandatory arbitration provisions are becoming commonplace. They are particularly favored by a current majority of the U.S. Supreme Court, which helps to explain their popularity. Mandatory arbitration clauses cannot always be used to compel arbitration, however.
In the case of Griswold v. Coventry First LLC, 2014 WL 3892995, 2014 U.S. App. LEXIS 15362 (3d Cir. August 11, 2014), the mandatory arbitration provision was typical. It was very broad: The arbitration clause encompassed “[a]ll disputes and controversies of every kind and nature between the Parties arising out of or in connection with this Agreement.” [Emphasis added.] The Third Circuit panel in this case described this provision accordingly: "By all accounts, the language in the arbitration provision is fairly standard and interpreted to apply broadly."
The decisions in this case by the U.S. District Court and by the Third Circuit have been concisely summarized in words that cannot be surpassed in their brevity: The Third Circuit "affirmed a federal judge in Pennsylvania's ruling denying a motion to compel arbitration ... because the allegations in his complaint stem from conduct that occurrred separate from the agreement," said Mealey's Insurance in their post on August 12, 2014.
The plaintiffs did not sign the contract that contained the mandatory arbitration provision. They alleged that in a separate agreement with someone else, but not them, the defendant, which the Third Circuit panel described as "a Pennsylvania-based insurer and significant player in the life settlement industry," engaged in conduct giving rise to their alleged claims of "common law fraud, fraudulent concealment, conversion, aiding and abetting the breach of fiduciary duties, unjust enrichment, and also violated state life settlement acts, the Sherman Act, and the Racketeer Influenced and Corrupt Organizations Act (RICO)."
alleged their injury without mention of the purchase agreement. Put simply, Appellees do not allege breach of the purchase agreement; they allege fraud antecedent to the purchase agreement.
The Federal Courts' rulings in this life insurance case are broad enough to extend to all insurance contracts -- and to most if not all other forms of contracts too.


This matter is before the Court on plaintiff's filing of a proposed civil rights complaint.Plaintiff has been granted leave to proceed in forma pauperis. In light of the deficiencies in the complaint discussed herein, however, the undersigned will not direct service of the complaint at this time. Plaintiff, though, will be provided the opportunity by the date set forth below to show cause why the complaint should not be dismissed or to file an amended complaint.
Plaintiff alleges he had recently been diagnosed with diabetes when he was booked into Pierce County Jail on March 9, 2017. Dkt. 1, at 1-4. Plaintiff alleges he was given insulin twice between March 9, 2017 and April 3, 2017. Id. Plaintiff indicates that, because he had only recently been diagnosed with diabetes, he was unaware that blood checks need to be done at least twice a day and he had no reason to doubt the treatment given from the Jail's clinic. Id. Plaintiff contends that on November 6, 2017, he went to an outside medical provider and learned that he was supposed to have been receiving insulin and having his blood checked twice a day. Id. Plaintiff contends Pierce County Jail clinic has failed to meet his needs medically. Id. He contends he went approximately 8 months without insulin. Id. He alleges that on November 10, 2017, he asked a nurse to check his blood sugar level during a Medpass and that his blood sugar levels were 260 and the following day were 240 which he indicates is far too high. Id. Plaintiff indicates the nurse alerted the clinic who put him on blood sugar check twice a day and insulin. Id. Plaintiff alleges he now suffers from loss of quality of eye sight. Id. Plaintiff contends that when he spoke to Dr. Balderrama, he stated that plaintiff's blood sugar was “good” and that he “changed it from the outside doctor's advice to give insulin.” Id. Plaintiff states that even though Dr. Balderrama indicated his blood sugar was “fine” he has been insulin dependent since bringing to Dr. Balderrama's attention that his sugar levels were high and not being monitored. Id. Plaintiff indicates he is now receiving insulin and blood sugar checks twice a day. Id. Plaintiff further describes the medical care he has been receiving as “reckless and wanton.” Id.
The Court must dismiss the complaint of a prisoner proceeding in forma pauperis “at any time if the [C]ourt determines” that the action: (a) “is frivolous or malicious”; (b) “fails to state a claim on which relief may be granted”' or (c) “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(a), (b). A complaint is frivolous when it has no arguable basis in law or fact. Franklin v. Murphy, 745 F.3d 1221, 1228 (9th Cir. 1984).
Before the Court may dismiss the complaint as frivolous or for failure to state a claim, though, it “must provide the [prisoner] with notice of the deficiencies of his or her complaint and an opportunity to amend the complaint prior to dismissal.” McGucken v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992); see also Sparling v. Hoffman Constr., Co., Inc., 864 F.2d 635, 638 (9th Cir. 1988); Noll v. Carlson, 809 F.2d 1446, 1449 (9th Cir. 1987). On the other hand, leave to amend need not be granted “where the amendment would be futile or where the amended complaint would be subject to dismissal.” Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991).
To state a claim under 42 U.S.C. § 1983, a complaint must allege: (1) the conduct complained of was committed by a person acting under color of state law, and (2) the conduct deprived a person of a right, privilege, or immunity secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981). Section 1983 is the appropriate avenue to remedy an alleged wrong only if both of these elements are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985).
Based on his complaint, it appears plaintiff seeks to allege a violation of his Eighth Amendment or Fourteenth Amendment rights. The Eighth Amendment proscribes deliberate indifference to a prisoner's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). When a claim of inadequate medical care is brought by a pretrial detainee, the claim arises under the Due Process Clause of the Fourteenth Amendment. Clouthier v. County of Contra Costa, 591 F.3d 1232, 1243-44 (9th Cir. 2010); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). The claim is nonetheless properly analyzed under Eighth Amendment standards. See id.
Mere negligence in diagnosing or treating a medical condition, without more, does not meet the Eighth Amendment deliberate indifference standard. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir.1988). As pled, plaintiff's complaint fails to support a claim that amounts to more than mere negligence. At most, plaintiff appears to allege that the defendant was negligent in monitoring his diabetic needs. To establish “deliberate indifference, ” a prisoner must show that a specific defendant or defendants purposefully ignored or failed to respond to the prisoner's pain or possible medical need. Id. at 104. A determination of “deliberate indifference” involves an examination of two elements: (1) the seriousness of the prisoner's medical need; and (2) the nature of the defendant's response to that need. McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992). A prison official, accordingly, will not be found deliberately indifferent to a prisoner's serious medical needs “unless the official knows of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. Further, a prisoner can make no claim for deliberate medical indifference unless the denial was harmful. McGuckin, 974 F.2d at 1060; Shapely v. Nevada Bd. of State Prison Comm'rs., 766 F.2d 404, 407 (9th Cir. 1985).
The allegations in plaintiff's complaint are deficient because they lack detail and factual support. Specifically, plaintiff appears to indicate that, at the time of his incarceration, he had only recently been diagnosed with diabetes and was himself unaware of his own medical needs related to his diabetes. It appears from plaintiff's complaint that he had not been told at the time of his diagnosis that he required insulin or blood sugar checks twice a day.
Given that plaintiff himself was unaware of his own medical needs it is unclear from plaintiff's complaint to what extent defendant Balderrama was aware of plaintiff's condition. Furthermore, while the outside medical provider indicated in November 2017 that plaintiff should be receiving insulin and blood sugar checks twice a day, plaintiff offers no facts to indicate that his diabetic condition was the same when he became incarcerated in March 2017 or during the intervening months as it was in November 2017, or that defendant Balderrama was aware of the severity of his condition and deliberately ignored or disregarded it.


text:
YEsportsBet.com website (hereinafter: YEsportsBet.com) thanks to the visitor of the website (hereinafter: User) for visiting this website and for the Users interest in its services. The protection of the Users personal data during his visit to the website is an important concern for YEsportsBet.com. YEsportsBet.com has therefore created data protection notices in which it explains the handling of the Users personal data according to art. 12, 13 and 21 of the General Data Protection Regulation (GDPR). If the User has registered on yesportsbet.com, YEsportsBet.com will inform the User via email of any changes.
The User can visit the Website without providing any personal information. If the User uses the Website for informational purposes only, i.e. does not log in, register or otherwise provides YEsportsBet.com with information about himself, YEsportsBet.com does not collect any personal data, with the exception of the data that the User’s browser transmits to enable the User to visit the Website as well as information that is transmitted to YEsportsBet.com through cookies used for statistical analysis of the use of the Website.
alphanumeric identification information that is related to a user’s identification.
The User’s information, collected by YEsportsBet.com through the aforementioned cookies, will not be used by YEsportsBet.com to create user profiles or to evaluate the Users browsing behavior.
to protect YEsportsBet.com legitimate interests pursuant to Art. 6 para. 1 letter f GDPR in order to make the Website technically available to the User. YEsportsBet.com’s legitimate interest is to offer the User an appealing, technically functioning and user-friendly website and maintain information security regarding cyber risks and prevent cyber risks for third parties from emanating from our website.
For the purpose of statistical analysis of the use of the Website, YEsportsBet.com uses Google Analytics and thus cookies, which enable an analysis of the Users browsing behavior. This enables YEsportsBet.com to improve the quality of the Website and its content. YEsportsBet.com learns how the Website is used and can thus continuously optimize its offer.
The information obtained in the context of the statistical analysis of the Website will not be merged with the User’s other data collected in the context of the Website.
The Website uses Google Analytics, a web analysis service of Google Inc. Google Analytics uses so-called “cookies”: text files placed on the User’s computer, enabling an analysis of the use of the Website by the User. The information generated by the cookie about the Users use of the Website is usually transferred to a Google server in the USA and stored there. However, if IP anonymisation is activated on YEsportsBet.com’s website, Google will shorten the Users IP address within Member States of the European Union or in other contracting states of the Agreement on the European Economic Area beforehand. Only in exceptional cases will the full IP address be transmitted to a Google server in the USA and shortened there. On YEsportsBet.com’s behalf, Google will use this information to evaluate the User’s use of the Website, to compile reports on website activities and to provide the website’s operator with other services relating to the website and internet use. The IP address transmitted by the Users browser in the context of Google Analytics is not merged with other Google data.
On the Website, YEsportsBet.com uses Google Analytics with the extension “_anonymizeIp()”. This arranges for IP addresses to be further processed in abridged form, a direct relation to a person can be ruled out.
clicking this link to prevent future collection by Google Analytics on YEsportsBet.com website. An opt-out cookie is stored in the User’s browser. However, the User should note that he must activate the opt-out cookie in every browser he uses on all end devices and must also reactivate it if necessary once all cookies in a browser have been deleted.
The Website includes links to services such as Google, Facebook, Twitter, Twitch and YouTube. After clicking on the link you will be redirected to the page of the respective provider, i.e. only after clicking on the link, User information will be transferred to the respective provider. For information on the handling of your data when using the Websites of other providers, please check the respective data protection information of these providers.
In addition to the merely informational use of our website, the User can also actively use the Website e.g. to register as a registered user, to register and tag his business or to contact YEsportsBet.com. In addition to the above-mentioned processing of the Users personal data for merely informational purposes, YEsportsBet.com will also process other personal data that YEsportsBet.com requires from the User to process the User’s order or to process and respond to the Users inquiry.
In order to process and answer the Users inquiries to YEsportsBet.com, e.g. via the contact form or YEsportsBet.com’s e-mail address, YEsportsBet.com processes the Users personal data provided by him in this context. In any case, this includes the Users first and last name and e-mail address in order to send an answer, as well as the other information that the User sends to YEsportsBet.com in the context of his message. It is up to the User to make his own decision as to whether and which information he provides in this way.
to protect com’s legitimate interests pursuant to Art. 6 para. 1 lit f GDPR; YEsportsBet.com’s legitimate interest is to answer customer inquiries appropriately.
YEsportsBet.com processes the Users personal data with regard to his application, provided that he makes this data available to YEsportsBet.com. The application documents may contain special categories of personal data.
According to Art. 9 DSGVO, special categories of personal data are data, which reveal racial and ethnic origin, political opinion, religious (e.g. information on religion/confession) or ideological beliefs or trade union membership, as well as the processing of biometric data for unique identification (e.g. photos), health data (e.g. information on the degree of disability) or data on sexual life or orientation. If the User’s CV contains special categories of personal data, YEsportsBet.com does not collect them on purpose. YEsportsBet.com explicitly asks the User not to send such data.
Moreover, if the User contacts YEsportsBet.com via e-mail, YEsportsBet.com processes the data the User may send to YEsportsBet.com. Below, YEsportsBet.com informs the User about the purpose as well as the legal basis of such data processing.
In case the User sends YEsportsBet.com his application, YEsportsBet.com will process the data collected in order to execute the application process. According to Art. 88 para 1 DSGVO in conjunction with Art. 26 para 1 sentence 1 BDSG-new, data processing is permitted, among other things, for the decision on the establishment of an employment relationship. Usually, the applicant data includes the following information: first and last name, if applicable academic degree, date, and place of birth, contact data (address, e-mail, telephone and/or mobile phone number), application documents (cover letter, CV, certificates), language skills, abilities.
Within legal requirements, YEsportsBet.com bases its decisions during the application process on the personal data the User provides YEsportsBet.com. For example, YEsportsBet.com uses the Users professional qualifications in order to decide whether to consider him on the shortlist or to have an interview with him to get a personal impression in order to make a decision whether YEsportsBet.com is offering the User the job he applied for.
If the User – as part of his application documents – voluntarily and contrary to YEsportsBet.com’s explicit request, sends YEsportsBet.com special categories of personal data pursuant to Art. 9 para. 1 DSGVO (e.g. his photo or details of his religion/confession), YEsportsBet.com will store such data on the basis of his consent pursuant to Art. 88 para. 1 DSGVO in conjunction with Art. 26 para 3 sentence 2 BDSG-new. This also applies, if the User provides YEsportsBet.com with further special personal data in the course of the application process.
By voluntarily submitting this data and by accepting this data protection declaration, the User agrees to the storage of this special personal data within the application process. YEsportsBet.com does not take this special personal data into account when making a selection decision unless it is required by law to do so. It is possible, for example, that people with disabilities may receive preferential treatment in some job advertisements in accordance with applicable laws. In these cases, the information is always voluntary and is provided with the Users explicit consent, which the User declares by voluntarily submitting this data and accepting this data protection declaration.
If the User has subscribed to YEsportsBet.com’s newsletter, YEsportsBet.com collects and uses the Users personal data (first name, last name, email address) to send information about the services YEsportsBet.com offers and the products displayed on the Website by email on a regular basis.
For the subscription to the newsletter, YEsportsBet.com uses the so-called double opt-in procedure, i.e. the registration is not complete until the User has confirmed his registration by clicking on the link contained in a confirmation e-mail sent to him for this purpose. If the User does not confirm the subscription, his subscription to the newsletter will automatically be deleted from YEsportsBet.com’s database.
The User can unsubscribe from the newsletter at any time with future effect. Therefore the User has to send an email to info@yesportsbet.com.
The legal basis for the collection of the Users’s personal data is Art. 6 para. 1 lit. a GDPR; YEsportsBet.com will process the User’s data with the User’s consent.
The User can create a user account to use other services which are only accessible for registered Users. For this purpose, the User has to register.
YEsportsBet.com uses the so-called double opt-in procedure for registration, i.e. the registration is not complete until the User has confirmed his registration by clicking on the link contained in a confirmation e-mail sent to him for this purpose. If the User does not confirm the registration, his registration will automatically be deleted from YEsportsBet.com’s database. The indication of the e-mail address is obligatory in order to be able to assign the User to the data contained in YEsportsBet.com’s customer database.
After successful registration, the User can perform certain activities through his user account, such as changing his data, etc.
to safeguard com’s legitimate interests pursuant to Art. 6 para. 1 lit. f GDPR, in order to make the portal technically available to the User. YEsportsBet.com’s legitimate interest is to be able to provide the User with an appealing, technically functioning and user-friendly portal.
YEsportsBet.com processes the Users personal data in order to assert YEsportsBet.com’s rights and enforce YEsportsBet.com’s legal claims. YEsportsBet.com also process the Users personal data in order to be able to defend itself against legal claims. Finally, YEsportsBet.com processes the Users personal data to the extent necessary to defend against or prosecute criminal offenses.
to protect com’s legitimate interests pursuant to Art. 6 para 1 lit. f GDPR, insofar as YEsportsBet.com asserts legal claims or defends itself in legal disputes or YEsportsBet.com prevents or clarifies criminal offenses.
Some sections of the Website contain links to third-party websites. These websites are subject to their own data protection principles. YEsportsBet.com is not responsible for their operation, including data handling. If the User sends information to or through such third-party sites, the User should review the privacy statements of those sites before submitting information that may be associated with him.
Firstly, only YEsportsBet.com’s employees will have access to the Users personal data. In addition, YEsportsBet.com shares the Users personal data with other recipients who provide services to YEsportsBet.com in connection with the Website, insofar as this is legally permitted or prescribed. YEsportsBet.com limits the transfer of the Users personal data to what is necessary. In some cases, YEsportsBet.com’s service providers receive the Users personal data as contract data processors and are then strictly bound by YEsportsBet.com’s instructions when handling the Users personal data. In some cases, the recipients act independently with the Users data, which YEsportsBet.com transmits to them.
Possibly further categories of recipients.
Additionally, YEsportsBet.com may share the Users personal data within the global YEsportsBet.com family of companies, e.g. with YEsportsBet.com subsidiaries. Such data may be used by each YEsportsBet.com entity for internal business and operational purposes as well as for purposes consistent with the purpose for which the information was originally collected or subsequently authorized by you.
YEsportsBet.com operates his business on a global scale. Therefore the Users personal data may be transferred to recipients outside the European Union. In these cases, the recipients are either situated in a country for which an adequacy decision by the Commission exists, or YEsportsBet.com has entered into standard data protection clauses adopted by the Commission or adopted by a supervisory authority and approved by the Commission. The Users can ask the Data Protection Officer of YEsportsBet.com to provide him with a copy of the respective standard data protection clauses.
When using the Website for information purposes only, YEsportsBet.com stores the Users personal data on its servers exclusively for the duration of the Users visit to the Website. After the User has left the Website, the personal data will be deleted immediately.
Cookies installed by YEsportsBet.com are usually also deleted after leaving the Website. However, this does not apply to Google Analytics. These remain stored for the duration of 24 months. YEsportsBet.com also has the option to delete installed cookies itself at any time.
If the User actively uses the Website, YEsportsBet.com initially stores his personal data for the duration of responding to the Users inquiry or for the duration of the Users business relationship. This also includes the initiation of a contract (pre-contractual legal relationship) and the execution of a contract.
Cookies installed by YEsportsBet.com are usually also deleted after leaving the Website by using the log-out link from the Website. However, if a User leaves the Website without logging off, this does not apply to login_code, keep_login, and Google Analytics. Login_code remains stored for the duration of 31 days, keep_login remains stored for the duration of 21 days and Google Analytics remains stored for 26 months. YEsportsBet.com also has the option to delete installed cookies itself at any time.
In addition, YEsportsBet.com will store the Users personal data until any legal claims arising from the relationship with the User becomes time-barred, in order to use them as evidence if necessary. The limitation period is generally between 12 and 36 months, but can also be up to 30 years.
Upon expiry of the limitation period, YEsportsBet.com deletes the Users personal data, unless there is a legal obligation to store such data, for example from the German Commercial Code (sec. 238, 257 para. 4 HGB) or from the Tax Code (sec. 147 para. 3, 4 AO). These retention obligations can last from two to ten years.
Right to information: The User is entitled to request confirmation from YEsportsBet.com at any time within the scope of Art. 15 GDPR as to whether YEsportsBet.com is processing personal data relating to the User; If this is the case, the User is also entitled under Art. 15 GDPR to receive information about such personal data as well as other specific information (inter alia, processing purposes, categories of personal data, categories of recipients, planned storage period, the origin of the data, the use of automated decision-making and, in the case of transfers to third countries, the appropriate guarantees) and a copy of the data.
Right to correction: According to Art. 16 GDPR, the User is entitled to demand correction of the personal data stored about him if it is inaccurate or incorrect.
Right to deletion: The User is entitled, under the conditions of Art. 17 GDPR, to request from YEsportsBet.com the deletion of personal data relating to the User without delay. Among other things, there is no right of deletion if the processing of personal data is necessary for (i) the exercise of the right to freedom of expression and information, (ii) the fulfilment of a legal obligation to which we are subject (e.g. statutory retention obligations) or (iii) the assertion, exercise or defense of legal claims.
Right to the limitation of processing: Under the conditions of Art. 18 GDPR the User is entitled to request from YEsportsBet.com the limitation of the processing of your personal data.
Right to data transferability: The User is entitled, under the conditions of Art. 20 GDPR, to request from YEsportsBet.com the provision of the personal data relating to the User that he has submitted to YEsportsBet.com in a structured, current and machine-readable format.
The right of revocation: The User has the right to revoke his consent to the processing of personal data at any time with effect for the future without incurring any costs other than the transmission costs according to the basic rates.
Right to the objection: The User is entitled to object to the processing of his personal data under the conditions of Art. 21 GDPR, meaning that YEsportsBet.com has to terminate the processing of his personal data. The right of objection exists only within the limits provided for in Art. 21 GDPR. In addition, YEsportsBet.com’s interests may prevent the processing from being terminated, so that YEsportsBet.com is entitled to process his personal data despite the Users objection.
Right of appeal to a supervisory authority: The User is entitled to file a complaint with a supervisory authority, in particular in the Member State of his place of residence, work or suspected infringement, under the conditions laid down in Article 77 GDPR, if the User believes that the processing of personal data concerning him infringes the GDPR. The right of appeal is not prejudicial to any other administrative or judicial remedy.
However, YEsportsBet.com recommends that the User always addresses a complaint to YEsportsBet.com’s email first.
Generally, the User is not obliged to provide YEsportsBet.com with his personal data. However, if he does not provide this information, YEsportsBet.com will not be able to make the Website available to the User, answer his questions and enter into a contract with him. Personal data which YEsportsBet.com does not necessarily require for the above-mentioned processing purposes are marked as voluntary information by a ” if applicable ” or another symbol.
YEsportsBet.com does not use automated decision making or profiling (an automated analysis of the Users personal circumstances).
The User has the right to object at any time to the processing of his data on the basis of Art. 6 para. 1 f GDPR (data processing on the basis of a balance of interests) or Art. 6 para. 1 e GDPR (data processing in the public interest), if there are reasons for this arising from his particular situation. This also applies to profiling based on this provision within the meaning of Art. 4 No. 4 GDPR.
If the User objects, YEsportsBet.com will no longer process the Users personal data, unless YEsportsBet.com can prove compelling and applicable reasons for the processing, which outweigh the Users interests, rights and freedoms, or the processing serves to assert, exercise or defend legal claims.
YEsportsBet.com also process the Users personal data in individual cases for direct marketing purposes. If the User does not wish to receive advertising, he has the right to object to it at any time; this also applies to profiling, insofar as it is associated with such direct advertising. YEsportsBet.com will take this contradiction into account in the future.
YEsportsBet.com will no longer process the Users data for direct marketing purposes if the User objects to the processing for these purposes.

matches:
art. 12
Art. 6
Art. 6
Art. 9
Art. 88
Art. 26
Art. 9
Art. 88
Art. 26
Art. 6
Art. 6
Art. 6
Art. 15
Art. 15
Art. 16
Art. 17
Art. 18
Art. 20
Art. 21
Art. 21
Art. 6
Art. 6
Art. 4