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Boba Fett is on a mission. But this time his objective is not a person, but a thing: a holo-projector containing an irreplaceable recording. The one caveat is that the device is somewhere in the wreckage of a massive Star Destroyer, guarded by Imperial fighters and scheduled for destruction by the Empire to prevent any salvageable parts from falling into Rebel hands.
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text: 682 FXUS63 KGLD 302045 AFDGLD Area Forecast Discussion National Weather Service Goodland KS 145 PM MST Wed Nov 30 2016 .SHORT TERM...(This evening through Thursday) Issued at 1244 PM MST Wed Nov 30 2016 Across the Tri State region this afternoon...the area is looking at mainly sunny skies w/ only extreme NE portions of the region still seeing lingering mid clouds pinwheel thru. These clouds are not inhibiting daytime highs at all as locales are currently seeing mostly lower to mid 40s...w/ NW Yuma County showing upper 30s. Wind gusts continue to remain strong with many seeing a 30-40 mph range. Going into tonight and on thru Thursday...the upper low associated with the cloud cover that affected the CWA thru now...will continue to shift eastward further into the Great Lakes region. Downslope westerly flow works into the area as region sits on a brief zonal pattern ahead of next trough coming into the west. This system pushes into the Rockies into Thursday...giving western zones some increased cloud cover by the end of the day. Temps as a result will be above normal for many locales with highs ranging in the lower to mid 40s. Decreasing winds overnight with clear skies will drop overnight lows into the mid to upper teens...on a decent radiational cooling night. .LONG TERM...(Thursday night through Wednesday) Issued at 145 PM MST Wed Nov 30 2016 Increasing temperatures are anticipated through the weekend during this long term period before the first arctic front of the season impacts the High Plains next week. The area will have a few opportunities for precipitation in this period. However, differences in guidance have caused confidence to be low at this time. Dry weather continues into Thursday night across the region as the upper low in eastern Canada moves further away from the CONUS. Southwesterly flow aloft returns Friday, causing cloud cover to increase as a trough develops over the southwestern portion of the country. The southern end of the trough deepens into a closed low and slows down over Baja California while the northern portion pushes towards the northern and central Plains. It appears that a disturbance wraps around the base of this northern trough as it nears the High Plains Friday night, bringing chances of light snow to the forecast for locations south of Interstate 70. We are on the northern edge of this area of precipitation, with the better moisture to our south, so will have to monitor later guidance to see if this ends up trending south of the region. On Saturday, the closed low pushes further into Mexico while the northern trough quickly moves east of the region. Subsident northwesterly flow aloft returns for the weekend, clearing skies. Dry conditions prevail and temperatures rise through Monday. Southwesterly flow develops on Monday, when the region is currently anticipated to see the warmest temperatures of the period. As the low over Mexico kicks north Monday night, a large upper trough digs into the Rockies and a cold front traverses the High Plains. These systems generate chances for light snow, entering the area from the north overnight. Precipitation chances increase midweek, with the large upper trough making its way east towards the Plains. Depending on temperatures, chances for rain, snow, or a mix of the two are forecast. With this active pattern, models have differences that need to be resolved before confidence in timing, location, and amounts can improve. High temperatures start out the period in the mid 30s to mid 40s on Friday, steadily increasing into the mid 40s to low 50s by Monday. The region then comes under a polar air mass and highs decrease into the 30s on Tuesday and the 20s to low 30s on Wednesday. Low temperatures generally stay in the teens and 20s, with the coldest night being Tuesday night. && .AVIATION...(For the 18Z TAFS through 18Z Thursday afternoon) Issued at 1023 AM MST Wed Nov 30 2016 Conditions...VFR w/ SCT-BKN200 becoming SKC by 00z Thursday. Precip/Wx....None expected. Winds........WNW 20-30kts thru 00z Thursday...then 5-15kts. && .GLD WATCHES/WARNINGS/ADVISORIES... KS...NONE. CO...NONE. NE...NONE. && $$ SHORT TERM...JN LONG TERM...JBH AVIATION...JN

subset: commoncrawl


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What to Expect by Grade for Grade 6
What to Expect by Grade for Grade 6
Critical thinking skills and growing maturity will help your child tackle more complex projects.
The middle-school years mean bigger leaps, and greater connections, in these two disciplines.
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text: Electrodessication, curettage and some other management strategies may be appropriate alternatives to Mohs surgery for some skin lesions, dermatologic surgeon Sumaira Aasi said at the annual meeting of the Pacific Dermatologic Association. The 2012 appropriate-use criteria were created to help maintain the value of Mohs surgery in Medicare reimbursements, Aasi said. Experts from ASDS and other dermatology societies have compiled a list of procedures for which Mohs may and may not be appropriate. Alternative procedures may be better for nonaggressive basal cell or squamous cell carcinoma smaller than 2 centimeters located on the trunk or extremities, primary actinic keratosis with focal squamous cell cancer in situ and bowenoid actinic keratosis, for example.


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December 16, 2010
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United States District Court, C.D. California
January 10, 2014
CONSUMER FINANCIAL PROTECTION BUREAU, Plaintiff,v.MORGAN DREXEN, INC., ET AL., Defendants
Page 1083
For Consumer Financial Protection Bureau, Plaintiff: Jan E Singelmann, R Gabriel D O'Malley, Shirley T Chiu, LEAD ATTORNEYS, PRO HAC VICE, Consumer Financial Protection Bureau, Washington, DC; Kent A Kawakami, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Civil Division, Los Angeles, CA; Amy N Radon, Nandan M Joshi, PRO HAC VICE, Consumer Financial Protection Bureau, Washington, DC; Kristin L Bateman, Consumer Financial Protection Bureau, Washington, DC.
For Kimberly A. Pisinski, Intervenor Plaintiff: Celeste M Brecht, Venable LLP, Los Angeles, CA; Randal M Shaheen, PRO HAC VICE, Venable LLP, Washington, DC.
For Morgan Drexen Inc, Walter Ledda, individually, Walter Ledda, as owner, officer or manager of Morgan Drexen, Inc., Defendants: Gerald A Klein, LEAD ATTORNEY, Klein & Wilson, Newport Beach, CA; Jeffrey Allen Katz, LEAD ATTORNEY, Morgan Drexen, Costa Mesa, CA; Nicholas M DePalma, LEAD ATTORNEY, PRO HAC VICE, Venable LLP, Tysons Corner, VA; Randall K Miller, LEAD ATTORNEY, PRO HAC VICE, Venable LLP, Tyson Corner, VA; Celeste M Brecht, Venable LLP, Los Angeles, CA; Randal M Shaheen, PRO HAC VICE, Venable LLP, Washington, DC.
Page 1084
Before the Court is a Motion to Dismiss (" Motion" ) filed by Defendants Morgan Drexen, Inc. (" Morgan Drexen" ) and Walter Ledda. (Doc. 22.) Plaintiff Consumer Financial Protection Bureau (" CFPB" ) filed an Opposition, and Defendants replied. (Opp'n, Doc. 25; Reply, Doc. 27.) Having considered the papers and supporting documentation submitted by the parties, heard oral argument, and taken the matter under submission, the Court DENIES Defendants' Motion.
A. The CFPB
In 2010, Congress passed and the President signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act (" Dodd-Frank Act" ). Pub. L. No. 111-203, July 21, 2010. The Dodd-Frank Act created the CFPB as an independent agency in the Federal Reserve System, and tasked the agency with " regulat[ing] the offering and provision of consumer financial products or services under the Federal consumer financial laws." 12 U.S.C. § 5491(a). Those laws include 18 pre-existing consumer-protection statutes and Title X of the Dodd-Frank Act. Id. § 5481(14), (12). Title X prohibits a " covered person" or " service provider" from engaging in any " unfair, deceptive, or abusive
Page 1085
act or practice." Id. § § 5531(a), 5536(a)(1).
The CFPB is led by a Director, who is appointed to a five-year term by the President with the advice and consent of the Senate. Id. § 5491(a)-(b). The President may remove the Director only " for inefficiency, neglect of duty, or malfeasance in office." Id. § 5491(c)(3). The CFPB receives its funding from the earnings of the Federal Reserve System. Id. § 5497(a)(1). Each year, the CFPB receives the amount the Director determines to be reasonably necessary to carry out the responsibilities of the CFPB. Id. § 5497(a)(1). The allocation is capped at a percentage of the total operating expenses of the Federal Reserve in 2009--12% for 2013 and thereafter, adjusted for inflation. Id. § 5497(a)(2).
The CFPB is empowered to promulgate rules to implement the federal consumer financial laws, and to enforce those laws through investigation, adjudication, and the commencement of civil litigation. Id. § § 5512, 5531(b), 5561-5565. Pursuant to its enforcement powers, the CFPB commenced the present action against Defendants on August 20, 2013. (Compl., Doc. 1.)
B. The Complaint
Defendant Morgan Drexen is a Nevada corporation offering debt relief services. ( Id. ¶ 5.)[1] Defendant Walter Ledda is the President and CEO of Morgan Drexen. (Compl. ¶ 6.) Morgan Drexen employs the " Attorney Model" of debt relief services. ( Id. ¶ 8.) Under this model, a consumer contracts with an attorney affiliated with Morgan Drexen for debt relief services, but Morgan Drexen, not the attorney, actually performs the debt relief work and receives the majority of the fees. ( Id.)
Morgan Drexen advertises debt relief services through television commercials, radio advertisements, and the internet. ( Id. ¶ 15.) In its commercials, Morgan Drexen claims it can help consumers eliminate their debt through debt relief programs supported by attorneys. ( Id. ¶ 17.) Morgan Drexen's commercials also claim that the advertised services require no up-front fees, and are a way for consumers to avoid bankruptcy. ( Id. ¶ ¶ 19-20.)
When a consumer calls Morgan Drexen, the consumer often hears a recorded testimonial that emphasizes the benefits of avoiding bankruptcy. ( Id. ¶ 27.) One testimonial recites, " I thought I was going to have to claim bankruptcy, but I really didn't want to do that, so I decided to take a chance on the program I saw advertised. . . . I'm debt free now." ( Id. ¶ 27.) After Morgan Drexen obtains information about a consumer's income and debt, the consumer is transferred to a " Legal Intake Specialist." ( Id. ¶ 29.) The Legal Intake Specialist follows a script when speaking with the consumer. ( Id. ¶ 29.) The script states that Morgan Drexen will work with an attorney to allow the consumer " to pay back the debt at a reduced amount, without the scar of filing for bankruptcy." ( Id.)
As the final step of an intake call, a Morgan Drexen employee asks the consumer to access a web portal and electronically sign two contracts, an Attorney/Client Agreement -- Debt Resolution Representation (" Debt Relief Contract" ) and an Attorney/Client Bankruptcy Fee Agreement (" Bankruptcy Contract" ). ( Id. ¶ 34.) Most consumers contact Morgan Drexen to inquire about debt relief services, not bankruptcy related services.
Page 1086
( Id. ¶ 55.) Nevertheless, the vast majority of customers seeking debt relief services sign both the Debt Relief Contract and the Bankruptcy Contract. ( Id. ¶ 37.)
These contracts are four or five pages long, contain many legal terms, and are written in small, single spaced font. ( Id. ¶ 35.) The Debt Relief Contract does not require the payment of up-front fees, but the Bankruptcy Contract requires an engagement fee of between $1,000 and $1,500, a $450 bankruptcy filing fee, and a flat monthly servicing fee of $50. ( Id. ¶ ¶ 41, 48.) The Debt Relief Contract commits an attorney affiliated with Morgan Drexen to represent the consumer in attempting to settle the consumer's debt. However, Morgan Drexen, not an attorney, " performs virtually all of the debt resolution work." ( Id. ¶ 42.) When Morgan Drexen reaches a settlement with a creditor, it emails an attorney, who must choose one of four options, " cancel," " accept," " accept without comments," or " deny." ( Id. ¶ 45.) If the attorney does not respond within 24 hours, the proposal is automatically deemed approved. ( Id. ¶ 45.)
The Bankruptcy Contract limits an attorney affiliated with Morgan Drexen to counseling the consumer with respect to preparation for possibly filing a bankruptcy petition, and with respect to pre- and post-filing claims by creditors. ( Id. ¶ 50.) Morgan Drexen and affiliated attorneys rarely perform any bankruptcy-related work for consumers. ( Id. ¶ 60.)
Based on these and other allegations, the Complaint asserts six counts, four for violations of both the Telemarketing Sales Rule (" TSR" ), 16. C.F.R. § 310, and the Consumer Financial Protection Act (" CFPA" ), 12 U.S.C. § § 5531, 5536(a)(1) (counts 1-4), and two solely for violations of the CFPA (counts 5-6). (Compl. at 15-19.)
A. Whether the CFPB is Constitutional
Defendants argue that the Complaint must be dismissed because the CFPB is unconstitutional. (Defs' Mem. at 3-4, Doc. 22-1.) Specifically, Defendants argue that five structural features of the CFPB, in combination, render the agency unconstitutional under the separation of powers principles of Articles I, II, and III:
(1) The President may remove the Director of the CFPB only for cause (12 U.S.C. § 5491(c)(3));
(2) The CFPB is led by a Director, not a multi-member commission ( id. § 5491(b)(1));
(3) The CFPB is funded from the earnings of the Federal Reserve System, and not by regular congressional appropriations ( id. § 5497(a)(1));
(4) The CFPB may take action to prevent " unfair, deceptive, or abusive act[s] or practice[s] under Federal law in connection with any transaction with a consumer for a consumer financial product or service, or the offering of a consumer financial product or service" ( id. § 5531(a)); and
(5) The CFPB's interpretations of federal consumer financial laws are afforded deference as if the CFPB were the only agency authorized to interpret those laws ( id. § 5512(b)(4)(B)). ( See Defs' Mem. at 6-21.)
" Our Constitution divided the 'powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial.'" Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 130 S.Ct. 3138, 3146, 177 L.Ed.2d 706
Page 1087
(2010) (quoting I.N.S. v. Chadha, 462 U.S. 919, 951, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983)). The Court addresses the structure of the CFPB in relation to each of these categories of constitutionally defined powers.
1. Executive Power
Article II provides that " executive Power shall be vested in a President," who " shall take Care that the Laws be faithfully executed." U.S. Const. art. II, § 1, cl. 1, § 3. " [T]he Constitution provides for executive officers to 'assist the supreme Magistrate in discharging the duties of his trust,'" and also " empower[s] the President to keep these officers accountable--by removing them from office, if necessary." Free Enter. Fund, 130 S.Ct. at 3146 (quoting 30 Writings of George Washington 334 (J. Fitzpatrick ed. 1939)). This authority is not unlimited, however, and " Congress can, under certain circumstances, create independent agencies run by principal officers appointed by the President, whom the President may not remove at will but only for good cause." Free Enter. Fund, 130 S.Ct. at 3146-47.
Defendants assert that the Dodd-Frank Act impermissibly restricts the President's executive power by providing for removal of the Director of the CFPB only for cause. (Defs' Mem. at 8.) Defendants rely principally on Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). (Defs' Mem. at 8.) In Myers, the Supreme Court invalidated a statutory provision that provided for removal of a postmaster only with the advice and consent of the Senate. 272 U.S. at 107, 176.
Not long after Myers, however, the Court revisited congressional restrictions on the President's removal power in Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935). There, the Court held that a provision allowing for removal of a commissioner of the Federal Trade Commission (" FTC" ) only for " inefficiency, neglect of duty, or malfeasance" did not unconstitutionally interfere with the executive power of the President. Id. at 619, 632. Humphrey's Executor is controlling in this case. Then as now, the FTC was empowered to prevent " unfair methods of competition in commerce." Id. at 620. In order to carry out this responsibility, the FTC had the power to investigate, adjudicate, and enforce the prohibition on unfair competition. Id. at 620-21. Despite these powers over commercial activity, the Court upheld a provision allowing for removal of commissioners only for " inefficiency, neglect of duty, or malfeasance." Id. at 619, 632. Similarly, here, the Director of the CFPB may be removed by the President " for inefficiency, neglect of duty, or malfeasance," 12 U.S.C. § 5491(c)(3), and the President therefore retains ample authority to assure the Director is competently leading the CFPB in its mission to enforce federal consumer financial laws.
Defendants argue that Humphrey's Executor is distinguishable because the case concerned removal of FTC commissioners. (Reply at 13.) Courts, Defendants contend, " only tolerate[] the incursion on the President's removal power . . . where there is a multimember commission." (Defs' Mem. at 17.)[2] Defendants' contention,
Page 1088
however, finds no support in Humphrey's Executor. Significantly, Humphrey's Executor did not distinguish Myers on the basis that Myers involved an officer, not a commission. See Humphrey's Executor, 295 U.S. at 627-28. Instead, the Court distinguished Myers on the basis that the postmaster there was performing " executive functions," while the FTC " is an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid." Id. at 628. The CFPB Director's responsibilities and powers are far more similar to an FTC commissioner's than to a postmaster's. Moreover, " the real question is whether the removal restrictions are of such a nature that they impede the President's ability to perform his constitutional duty." Morrison v. Olson, 487 U.S. 654, 691, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988). It is no more difficult for the President to assure that the Director of the CFPB is " competently performing his or her statutory responsibilities," id. at 692, than it was for the President to oversee the leadership of the FTC at the time of Humphrey's Executor. In fact, if the President had needed to fully revamp the leadership of the FTC at that time, he would have been required to affect five separate for cause removals, while only one is required in order to change the leadership of the CFPB.[3] Accordingly, the for cause removal provision of the CFPB, when considered as a part of the CFPB's overall structure and mission, does not impermissibly interfere with the President's power to assure that the laws be faithfully executed.
In a footnote, Defendants argue that two other other provisions of the Dodd-Frank Act interfere with the President's executive power. (Defs' Mem. at 8-9.) First, Defendants argue that Section 1012(b) allows the Director to " simply delegate all of his massive powers to any one he chooses," and thereby " undermines the President's power to appoint and remove executive officials." ( Id.) Defendants, however, fail to identify any actual delegation by the Director that purportedly interferes with the President's executive power. Section 1012(b), moreover, does not allow the Director to delegate his leadership role, but only allows the Director to " delegate . . . any power vested in the Bureau by law." 12 U.S.C. § 5492(b) (emphasis added). This section neither alters the Director's role as head the CFPB, nor lessens the President's authority to assure, by removing the Director for cause if necessary, that the CFPB is competently accomplishing its statutory mission.
Second, Defendants argue that Congress has improperly appointed officers to the Financial Stability Oversight Council (" FSOC" ) by providing that certain existing executive branch officers are members
Page 1089
of the FSOC. (Defs' Mem. at 9 (citing 12 U.S.C. § 5321).) The FSOC and the CFPB are separate entities with distinct missions. Compare 12 U.S.C. § § 5321-22 (FSOC tasked with, among other things, " identifying risks to the financial stability of the United States." ), with 12 U.S.C. § 5491. Even if this Court were to find that the FSOC is unconstitutional, it would not prevent the CFPB from bringing the present action against Defendants. See Free Enterprise Fund, 130 S.Ct. at 3161 (" Because [t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions, the normal rule is that partial, rather than facial, invalidation is the required course." (internal citations and quotation marks omitted)). The Court therefore need not, and does not, consider the constitutionality of the FSOC.
In sum, the Court concludes that the structure of the CFPB, considered as a whole, does not impermissibly interfere with the President's executive power.
2. Congressional Power
i. Appropriations Power
The Constitution provides that " [n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." U.S. Const. art. I, § 9, cl. 7. According to Defendants, the Dodd-Frank Act impermissibly " exempts CFPB from the congressional appropriations power." (Defs' Mem. at 9.) Defendants are mistaken. The Supreme Court has " underscore[d] the straightforward and explicit command of the Appropriations Clause. 'It means simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.'" Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 424, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990) (quoting Cincinnati Soap Co. v. United States, 301 U.S. 308, 321, 57 S.Ct. 764, 81 L.Ed. 1122, 1937-1 C.B. 317 (1937)).
Here, no funds have been appropriated from the Treasury, as the CFPB is funded from the earnings of the Federal Reserve System. See 12 U.S.C. § 5497. The Appropriations Clause " does not in any way circumscribe Congress from creating self-financing programs . . . without first appropriating the funds as it does in typical appropriation and supplement appropriation acts." AINS, Inc. v. United States, 56 Fed.Cl. 522, 539 (Fed. Cl. 2003), aff'd, 365 F.3d 1333 (Fed. Cir. 2004), abrogated on other grounds by Slattery v. United States, 635 F.3d 1298 (Fed. Cir. 2011). See also Am. Fed'n of Gov't Employees, AFL-CIO, Local 1647 v. Fed. Labor Relations Auth., 388 F.3d 405, 409 (3d Cir. 2004) (Congress itself may choose . . . to loosen its own reins on public expenditure. . . . Congress may also decide not to finance a federal entity with appropriations." ). The Court therefore concludes that the structure of the CFPB does not violate the Appropriations Clause.
ii. Legislative Power
" Article I, § 1, of the Constitution vests '[a]ll legislative Powers herein granted . . . in a Congress of the United States.' This text permits no delegation of those powers." Whitman v. Am. Trucking Associations, 531 U.S. 457, 472, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (quoting U.S. Const. art. I, § 9, cl. 7). As a result, " when Congress confers decisionmaking authority upon agencies Congress must 'lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.'" Id. at 472 (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 72 L.Ed. 624, Treas. Dec. 42706 (1928)).
Defendants raise concerns with the CFPB's authority to enforce the prohibition
Page 1090
on " abusive" practices. (Defs' Mem. at 19.) The Dodd-Frank Act, however, contains an intelligible principle to guide the CFPB's power to prevent " abusive" practices. The Dodd-Frank Act defines " abusive" as either " materially interfer[ing] with the ability of a consumer to understand a term or condition of a consumer financial product or service" or " tak[ing] unreasonable advantage of -- (A) a lack of understanding on the part of the consumer of the material risks, costs, or conditions of the product or service; (B) the inability of the consumer to protect the interests of the consumer in selecting or using a consumer financial product or service; or (C) the reasonable reliance by the consumer on a covered person to act in the interests of the consumer." 12 U.S.C. § 5531(d). This standard is at least as specific as other provisions held to constitute " intelligible principles." See, e.g., Yakus v. United States, 321 U.S. 414, 420, 426-27, 64 S.Ct. 660, 88 L.Ed. 834 (1944) (approving agency's power to fix maximum commodity prices that " will be generally fair and equitable and will effectuate the purposes of th[e] Act" (quotation marks omitted)); Am. Power & Light Co. v. S.E.C., 329 U.S. 90, 104-06, 67 S.Ct. 133, 91 L.Ed. 103 (1946) (approving the Securities and Exchange Commission's power to " ensure that the corporate structure or continued existence of any company in a particular holding company system does not 'unduly or unnecessarily complicate the structure' or 'unfairly or inequitably distribute voting power among security holders.'" ).
Defendants contend that the " CFPB's lack of structural protection cannot be reconciled with its broad delegation of power." (Defs' Mem. at 20.) It is true that " the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred." Whitman, 531 U.S. at 474. In Whitman, the Supreme Court noted that Congress was required to " provide [the Environmental Protection Agency] substantial guidance on setting air standards that affect the entire national economy." Id. at 475. " But even in sweeping regulatory schemes [the Supreme Court] ha[s] never demanded . . . that statutes provide a 'determinate criterion' for saying 'how much [of the regulated harm] is too much.'" Id. at 475 (emphasis added) (final alteration in original) (quoting Court of Appeals decision in American Trucking Associations, Inc. v. E.P.A., 175 F.3d 1027, 1034, 336 U.S.App.D.C. 16 (D.C. Cir. 1999), which the Supreme Court reversed in Whitman ). Here, the Dodd-Frank Act provides an intelligible principle suitable to the CFPB's power to enforce the prohibition on " abusive" practices. As described above, an " abusive" practice is specifically limited to four circumstances, each of which specifies the type of harm to be prevented. See 12 U.S.C. § 5531(d). No more " determinate criterion" is required. Consequently, the CFPB's power to regulate " abusive" practices does not violate the Constitution's prohibition on the delegation of legislative power.[4]
3. Judicial Power
" The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." U.S. Const. art. III, § 1. Defendants contend that the Dodd-Frank
Page 1091
Act intrudes on the power of the courts by improperly limiting judicial review of CFPB actions. (Defs' Mem. at 18-19.)
The Dodd-Frank Act provides that where the authority of the CFPB and another agency to prescribe rules under the federal consumer financial laws overlap, the CFPB " shall have the exclusive authority to prescribe rules." 12 U.S.C. § 5512(b)(4)(A). The Dodd-Frank Act further provides that " the deference that a court affords to the [CFPB] with respect to a determination by the [CFPB] regarding the meaning or interpretation of any provision of a Federal consumer financial law shall be applied as if the [CFPB] were the only agency authorized to apply, enforce, interpret, or administer the provisions of such Federal consumer financial law." Id. § 5512(b)(4)(B). Defendants argue that the latter provision impermissibly provides a rule of decision to the federal courts by requiring Chevron deference to CFPB rulemaking even where the CFPB is not entitled to such deference. (Defs' Mem. at 19.)
Under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc, " [i]f Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). However, an agency's interpretation of a statute may not be entitled to deference where multiple agencies " share[] responsibility for the administration of the statute." Rapaport v. U.S. Dep't of Treasury, Office of Thrift Supervision, 59 F.3d 212, 216, 313 U.S.App.D.C. 216 (D.C. Cir. 1995). According to Defendants, the Dodd-Frank Act treads on judicial power by overriding this rule with respect to the CFPB's interpretations.
Defendants are mistaken. There is no contradiction between Rapaport and the Dodd-Frank Act's requirement that CFPB interpretations of federal consumer financial laws be granted deference as if the CFPB was the only agency authorized to interpret those laws. As noted above, the CFPB's rulemaking authority under the federal consumer financial laws is exclusive, and therefore there is no interagency responsibility. Moreover, Chevron deference is inappropriate in cases of interagency responsibility only because there is no " reason to believe that the congressional delegation of administrative authority contemplates" the sort of contradictory results that could arise if Chevron deference were accorded in such cases. Id. at 217. In other words, deference is not owed in such cases only because Congress did not " explicitly le[ave] a gap for the agency to fill." Chevron, 467 U.S. at 843. Where Congress has explicitly granted an agency rulemaking authority, that agency's rules are entitled to deference. Id. Here, Congress' intent to grant the CFPB exclusive authority to interpret the federal consumer financial laws is clear, and it is entirely consistent with Article III for courts to defer to CFPB interpretations in the manner contemplated by Chevron.[5]
Page 1092
4. Other Considerations
Defendants raise other concerns with the structure of the CFPB, but their concerns are not tied to any particular constitutional provision. Defendants, for example, contend that Congress' decision to put one person rather than a multi-member commission at the head of the CFPB places too much power in the hands of single individual. (Defs' Mem. at 14.) In support, Defendants cite to Hamdan v. Rumsfeld for the proposition that " '[t]he accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny.'" 548 U.S. 557, 602, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006) (quoting The Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison)). The quotation appears in a section of Justice Stevens' decision that was not joined by a majority of the Court and that concerned whether a military commission could charge " conspiracy" under the common law of war even though Congress had not positively identified " conspiracy" as a war crime. Id. at 600-02. Justice Stevens determined that " [w]hen . . . neither the elements of the offense nor the range of permissible punishments is defined by statute or treaty, the precedent must be plain and unambiguous. To demand any less would be to risk concentrating in military hands a degree of adjudicative and punitive power in excess of that contemplated either by statute or by the Constitution." Id. The quotation upon which Defendants rely appears in a parenthetical in support of this conclusion. The quotation, however, provides no support for Defendants' claim that Congress acted impermissibly in placing a director at the head of the CFPB. Congress has not granted to the CFPB or its Director authority to manufacture charges without authorization from a statute or precedent. Rather, Congress has provided that the Director will lead the CFPB in enforcing the federal consumer financial laws, and will do so under the authority of the President to remove the Director for cause.
Defendants also argue that multi-member commissions allow for " collegial decisionmaking," open public meetings, and " expert" decisions, and are therefore better equipped to head agencies with substantial responsibilities such as the CFPB. (Defs' Mem. at 14-18.) However, absent some constitutional basis, this Court simply does not have the authority to second guess Congress' policy determination that a single director, rather than a commission, is the best choice to head the CFPB.
Finally, Defendants point out, correctly, that " '[j]ust because two structural features raise no constitutional concerns independently does not mean Congress may combine them in a single statute.'" (Defs' Mem. at 5 (quoting Ass'n of Am. Railroads v. U.S. Dep't of Transp., 721 F.3d 666, 673, 406 U.S.App.D.C. 34 (D.C. Cir. 2013)). This principle does not, however, mandate a conclusion that the CFPB is unconstitutional. Having considered the combined features of the CFPB, and for the reasons described above, the Court concludes that the CFPB complies with the separation of powers principles contained in Articles I, II, and III of the Constitution.
B. Whether the CFPB Has Stated a Claim
1. Legal Standard
When evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
Page 1093
the Court must accept as true all allegations of material facts that are in the complaint and must construe all inferences in the light most favorable to the non-moving party. Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994). Dismissal of a complaint for failure to state a claim is not proper where a plaintiff has alleged " enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint must (1) " contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively," and (2) " plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). " Although for the purposes of a motion to dismiss [the Court] must take all of the factual allegations in the complaint as true, [it] '[is] not bound to accept as true a legal conclusion couched as a factual allegation.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555).
In considering a motion to dismiss, the Court is limited to the allegations on the face of the complaint (including documents attached thereto), matters which are properly judicially noticeable, and " documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading." Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994), overruled on other grounds in Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).
2. Counts I and III for Violation of the TSR
The TSR prohibits a seller or telemarketer from " [r]equesting or receiving payment of any fee or consideration for any debt relief service until . . . [t]he seller or telemarketer has renegotiated, settled, reduced, or otherwise altered the terms of at least one debt pursuant to a settlement agreement, debt management plan, or other such valid contractual agreement executed by the customer" and " [t]he customer has made at least one payment" pursuant to such agreement, plan, or contract. 16 C.F.R. § 310.4(a)(5)(i). The TSR also prohibits a seller or telemarketer from " [m]isrepresenting, directly or by implication, in the sale of goods or services . . . [a]ny material aspect of the performance, efficacy, nature, or central characteristics of goods or services that are the subject of a sales offer" or " [a]ny material aspect of any debt relief service." Id. § 310.3(a)(2).
Count I of the Complaint asserts that Defendants requested and received payment for debt relief services before renegotiating, settling, reducing, or otherwise altering the terms of a consumer's debt. (Compl. ¶ 75.) Count III asserts that Defendants represented that consumers are not charged any advance fee for debt relief services, but in fact charged advance fees. (Compl. ¶ ¶ 81-82.) Defendants move to dismiss both counts for violation of the TSR on the basis that the Debt Relief Contract does not require the payment of up-front fees. (Defs' Mem. at 22.)
In its Complaint, Plaintiff does allege that consumers are not obligated to pay any up-front fees under the Debt Relief Contract. (Compl. ¶ 41.) Consumers are, however, obligated to pay up-front fees under the Bankruptcy Contract. ( Id. ¶ 48.) According to the Complaint, by using both contracts, Defendants " disguise consumers' up-front payments for debt relief services provided by Morgan Drexen as payments for bankruptcy-related work
Page 1094
purportedly performed by . . . [a]ttorneys." ( Id. ¶ 14.)
The FTC, which promulgated the Telemarketing Sales Rule, justified the ban on advance fees for debt relief services in part on the context in which debt relief services are often offered. See 75 FR 48458. The FTC noted that debt relief services " frequently take place in the context of high pressure sales tactics, contracts of adhesion, and deception." Id. Moreover, some " telemarketers of debt relief services have exhorted consumers to fill out the enrollment documents and return the papers as quickly as possible," despite the inclusion of contractual provisions that were potentially detrimental to the interests of consumers. Id. Given these concerns, the TSR cannot be so narrowly construed as to allow a debt relief service to disguise up-front fees using deceptive sales techniques and complicated contractual arrangements. The Court, therefore, will look at the transactions alleged in the Complaint in their entirety in determining whether the Complaint plausibly suggests that Defendants requested and received up-front fees for debt relief work.
According to the Complaint, Morgan Drexen advertises debt relief services, and specifically touts its services as a method for avoiding filing for bankruptcy. (Compl. ¶ ¶ 15-22.) When consumers call Morgan Drexen, they are again told of the benefits of debt relief services over bankruptcy. ( Id. ¶ ¶ 23-30.) Nevertheless, when consumers sign up for debt relief services, they are asked to access a web portal and sign the Debt Relief Contract and the Bankruptcy Contract, both of which are four or five pages long, written in small font, and single spaced. ( Id. ¶ ¶ 34-35.) The vast majority of consumers sign both contracts. ( Id. ¶ 37.) Though Morgan Drexen performs debt relief work for consumers, little or no bankruptcy work is performed. ( Id. ¶ ¶ 42, 49-50.) Nevertheless, the Bankruptcy Contract requires an engagement fee of between $1,000 and $1,500 and a flat monthly servicing charge of $50. ( Id. ¶ 48.) Drawing all inferences in Plaintiff's favor, these allegations plausibly suggest that Defendants request and receive up-front payments not for bankruptcy work, but for debt relief work. Defendants' challenge to counts I and III for violation of the TSR must therefore be rejected.
3. Counts I, III, IV, V, and VI for Violation of the CFPA
The CFPB is not authorized, subject to certain exceptions, to " exercise any supervisory or enforcement authority with respect to an activity engaged in by an attorney as part of the practice of law under the laws of a State in which the attorney is licensed to practice law." 12 U.S.C. § 5517(e)(1). This limitation does not apply to the " offering or provision of a consumer financial product or service . . . that is not offered or provided as part of, or incidental to, the practice of law, occurring exclusively within the scope of the attorney-client relationship" or " that is otherwise offered or provided by the attorney in question with respect to any consumer who is not receiving legal advice or services from the attorney in connection with such financial product or service." Id. § 5517(e)(2). An exception also exists " with respect to any attorney, to the extent that such attorney is otherwise subject to any of the enumerated consumer laws or the authorities transferred under subtitle F or H." Id. § 5517(e)(3). Defendants admit that Plaintiff's alleged TSR violations fit under this last exception. (Defs' Mem. at 23.)
Defendants contend that the CFPB has no authority to assert counts I, III, IV, V, and VI to the extent they are based on the CFPA because Morgan Drexen offers services
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as an " attorney support professional." ( Id. at 23-25.) The Complaint, however, alleges facts which plausibly suggest that Morgan Drexen is not engaged in activities in support of an attorney as part of the practice of law.
According to the Complaint, " Morgan Drexen, not [an attorney], performs virtually all of the debt resolution work" for a consumer. (Compl. ¶ 42.) Morgan Drexen, moreover, directs creditors not to communicate with those attorneys associated with Morgan Drexen. ( Id.) When Morgan Drexen has negotiated a settlement on behalf of a consumer, an attorney need not even respond to the settlement proposal before it is automatically deemed approved. ( Id. ¶ 45.) Construing all inferences in Plaintiff's favor, these allegations plausibly suggest that Morgan Drexen does not actually support attorneys in the practice of law. At the very least, these allegations plausibly suggest that Morgan Drexen's services are not offered as part of, or incidental to, the practice of law. The Court therefore concludes that the CFPB has the authority to assert counts I, III, IV, V, and VI.
4. Tenth Amendment
Defendants contend that this action should be dismissed because the CFPB is attempting to intrude upon the practice of law in violation of the Tenth Amendment. (Reply at 25.)
The Tenth Amendment provides that " [t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X. As the Supreme Court has explained, " the Tenth Amendment 'states but a truism that all is retained which has not been surrendered.'" New York v. United States, 505 U.S. 144, 156, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (quoting United States v. Darby, 312 U.S. 100, 124, 61 S.Ct. 451, 85 L.Ed. 609 (1941)). As a result, a violation of the Tenth Amendment cannot be derived from the text of the Tenth Amendment itself:
The Tenth Amendment . . . restrains the power of Congress, but this limit is not derived from the text of the Tenth Amendment itself, which . . . is essentially a tautology. Instead, the Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States. The Tenth Amendment thus directs [a court] to determine . . . whether an incident of state sovereignty is protected by a limitation on an Article I power.
Id. 156-57. Because Defendants do not contend that the Dodd-Frank Act exceeds Congress' power under the Commerce Clause of Article I, their Tenth Amendment challenge fails.
For the reasons discussed above, the Court DENIES Defendants' Motion.
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ERIC Number: ED184833
Record Type: RIE
Publication Date: 1965
Pages: 211
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A Brief Course in Mathematics for Junior High School Teachers, Part 2. Revised Edition.
Maletsky, Evan M.; And Others
This is part two of a two-part School Mathematics Study Group (SMSG) textbook. The text serves as a means to prepare teachers to teach the SMSG text "Mathematics for Junior High School." The eight chapters found in part two are: (1) Primes and Factors; (2) Decimals, Ratios, and Percents; (3) The Real Number System; (4) Non-Metric Geometry, I; (5) Non-Metric Geometry, II; (6) Measurement; (7) Perimeters, Areas, Volumes; and (8) Descriptive Statistics and Probability. (MK)
Descriptors: Decimal Fractions, Geometric Concepts, Junior High Schools, Mathematics Education, Mathematics Teachers, Number Systems, Percentage, Prime Numbers, Probability, Ratios (Mathematics), Secondary Education, Secondary School Mathematics, Secondary School Teachers, Statistics, Teacher Education, Textbooks
Publication Type: Guides - Classroom - Teacher
Education Level: N/A
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Language: English
Sponsor: National Science Foundation, Washington, DC.
Authoring Institution: Stanford Univ., CA. School Mathematics Study Group.
Identifiers: School Mathematics Study Group
Note: For related document, see SE 030 443.


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June 22, 1998
MINEBEA CO., LTD., et al., Plaintiffs,
GEORG PAPST, et al., Defendants.
Before the Court are defendants' motion to dismiss, plaintiffs' opposition thereto, defendants' reply, and the parties' citations of supplemental authority and responses thereto. Based on plaintiffs' complaint and the submissions of the parties, the Court grants defendants' motion to dismiss Counts VIII and IX but denies defendants' motion with respect to all other counts. An appropriate Order accompanies this Opinion.
This dispute arises out of a series of business transactions between plaintiff Minebea Co., Ltd. ("Minebea"), its subsidiaries, plaintiffs Precision Motors Deutsch Minebea, GmbH ("PMDM"), and Nippon Miniature Bearing Corporation ("NMB"), and defendants Georg Papst and Papst Licensing GmbH ("Papst Licensing").
In 1990, Minebea and Papst-Motoren GmbH & Co. KG ("Papst-Motoren KG"), a German corporation owned and controlled by Papst and his immediate family, entered into a "General Business Agreement" which established a joint venture for the research, development, engineering, manufacture, and sale of hard disk drive motors ("HDD spindle motors"). One of the joint venture entities created was PMDM, and all the joint venture entities were controlled by Papst. As part of the joint venture agreement, Papst-Motoren KG granted Minebea the right to use all its patents, and it was agreed that purchasers of HDD spindle motors from the joint venture or Minebea and its subsidiaries would be free to utilize such motors for their sole intended use -- in hard disk drives -- without any danger of infringing any patents owned or controlled by Papst-Motoren KG or Georg Papst.
Plaintiffs allege that, beginning in 1991, Papst made misrepresentations to Minebea regarding the scope of the joint venture. In particular, Minebea alleges that Papst misrepresented that certain patents had not been previously licensed to Minebea under the General Business Agreement. Minebea relied upon these representations in all of its subsequent discussions and dealings with Papst due to the fiduciary relationship established during the joint venture. Moreover, Minebea alleges that Papst formed Papst Licensing for the purpose of, inter alia, converting valuable joint venture assets to his benefit.
Eventually, in 1993, the parties decided to end the joint venture. They entered into a series of agreements which provided that (1) Papst Licensing would be substituted for Papst-Motoren KG, (2) Minebea would purchase Papst Licensing's interest in PMDM and the other joint venture entity, and (3) Minebea would pay Papst Licensing in return for being granted licenses under various of Papst's patents. The agreements specifically carved out from Minebea's license certain "Drive Patents" owned by Papst and Papst Licensing. Minebea claims that it agreed to this provision based on misleading representations by Papst that the Drive Patents were never included in the General Business Agreement.
Finally, in 1995, Minebea and Papst Licensing entered into a "Settlement Agreement," purportedly to create a "lasting peace" between the parties by granting Minebea and PMDM the patents necessary for them to continue the business of selling HDD spindle motors. Plaintiffs allege that during the process of negotiating the Settlement Agreement, Papst and Papst Licensing continued to misrepresent the number and scope of previous patents licensed to Minebea and PMDM during and after the joint venture. The result of these misrepresentations was that the Settlement Agreement contained a clause reserving certain rights for Papst and Papst Licensing against purchasers of Minebea's HDD spindle motors.
Starting about the spring of 1995, Papst and Papst Licensing began to make claims that plaintiffs' customers were violating certain Papst patents. They alleged that the customers' incorporation of the HDD spindle motors into hard disk drives infringed other Papst patents. Minebea and its subsidiaries learned of the allegations after they received demands for indemnification from their customers. Plaintiffs then filed the instant complaint, alleging that through fraud and deceit, Georg Papst and Papst Licensing had carved out patent rights which had previously been licensed to Minebea and were necessary for the ongoing HDD spindle motor business of Minebea and its subsidiaries.
A. Subject Matter Jurisdiction
Defendants first contend that plaintiffs' complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction because it does not raise a federal question. Defendants further contend that even if some counts of the complaint raise a federal question, the Court should not exercise pendent jurisdiction over the remaining state law counts. Plaintiffs argue that there is an independent federal question in each count of the complaint, or alternatively that there is at least one federal question presented and the Court should exercise supplemental jurisdiction over the remaining claims.
1. Count VII -- Violation of § 43(a)
In Count VII, plaintiffs allege that defendants have violated § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), by falsely claiming that the use of plaintiffs' motors in a hard disk drive infringes upon defendants' patents and that plaintiffs are not licensed under such patents. It appears clear to the Court that false patent infringement and licensing claims may violate the Lanham Act, and therefore this Court has subject matter jurisdiction over Count VII pursuant to 28 U.S.C. § 1331. See, e.g., Laser Diode Array, Inc. v. Paradigm Lasers, Inc., 964 F. Supp. 90, 95 (W.D.N.Y. 1997) ("There is case authority that allegations that a party falsely represented to a business's customers that the business was infringing on the party's patent rights will support such [a Lanham Act claim]." (citations omitted)); Wicker Grp. v. Standard Register Co., 1994 U.S. Dist. LEXIS 20236, 33 U.S.P.Q.2D (BNA) 1678, 1680 (E.D. Va. 1994) (plaintiffs' allegations that defendant made false statements about the scope of its patent and its relationship to plaintiffs' technology adequately pled a Lanham Act violation); Brandt Consol., Inc. v. Agrimar Corp., 801 F. Supp. 164, 170 (C.D. Ill. 1992) (denying motion to dismiss Lanham Act count based on false patent infringement claims).
2. Counts I, X, and XI -- Requests for Declaratory Relief
In Counts I, X, and XI, plaintiffs request a declaration pursuant to the Federal Declaratory Judgments Act, 28 U.S.C. §§ 2201 & 2202 (1994), that: (1) plaintiffs' authorized sales of HDD spindle motors exhaust defendants' patent rights; (2) certain patents allegedly infringed by plaintiffs' customers are encompassed in the licensing agreement; and (3) defendants' patents are invalid and not infringed by plaintiffs' customers.
Defendants first argue that the Court does not have jurisdiction over these declaratory judgment counts because there is no "case of actual controversy." See 28 U.S.C. § 2201(a). Plaintiffs counter that there is a "case of actual controversy" because defendants have notified plaintiffs' customers of possible infringement claims due to their use of Minebea motors. Compl. PP 165 & 166. Plaintiffs further allege that they have "express and implied contractual terms" with customers pursuant to which customers are making "express and implied demands for indemnification" due to defendants' infringement claims. Compl. P 166. Plaintiffs "reasonably apprehend that they may be legally liable for indemnification with respect to such infringement claims by Papst Licensing." Id.
The test for determining whether an actual controversy exists in a patent case has been phrased in many ways, depending on the facts of the particular case. See Arrowhead Indus. Water, Inc. v. Ecolochem, Inc., 846 F.2d 731, 736-37 (Fed Cir. 1988). The two core elements of the test are: "(1) acts of defendant indicating an intent to enforce its patent; and (2) acts of plaintiff that might subject it or its customers to suit for patent infringement." Id. at 737; see also FINA Research, S.A. v. Baroid Ltd., 141 F.3d 1479, 1998 WL 178649, at *2 (Fed. Cir. 1998) ("'There must be both (1) an explicit threat or other action by the patentee, which creates a reasonable apprehension on the part of the declaratory plaintiff that it will face an infringement suit, and (2) present activity which could constitute infringement . . . .'") (quoting Super Sack Mfg. Corp. v. Chase Packaging Corp., 57 F.3d 1054, 1058 (Fed. Cir. 1995), cert. denied, 516 U.S. 1093, 133 L. Ed. 2d 760, 116 S. Ct. 815 (1996)); C.R. Bard, Inc. v. Schwartz, 716 F.2d 874, 879 (Fed. Cir. 1983) (test is whether "plaintiff has sufficient interest in the controversy and . . . [whether] there is a reasonable threat that the patentee or licensor will bring an infringement suit against the alleged infringer"). Plaintiffs' allegations, therefore, meet the actual controversy requirement. See, e.g., Joseph Bancroft & Sons Co. v. Spunize Co. of Amer., 268 F.2d 522, 523 (2d Cir. 1959) (finding an actual controversy when declaratory plaintiff was obligated to pay the attorney's fees and taxable costs of the infringer); Dow Chemical Co. v. Viskase Corp., 892 F. Supp. 991, 996-97 (N.D. Ill. 1995) (approving of the proposition that a manufacturer's obligation to indemnify customers threatened with a patent suit is a sufficient basis for jurisdiction); Wallace & Tiernan, Inc. v. General Elec. Co., 291 F. Supp. 217, 222 (S.D.N.Y. 1968) (finding actual controversy when declaratory plaintiff agreed to indemnify customers against losses from patent claims by defendant).
Defendants, citing BP Chemicals Ltd. v. Union Carbide Corp., 4 F.3d 975 (Fed. Cir. 1993), argue that indemnification obligations are no longer sufficient to create an actual controversy. In BP Chemicals, the plaintiff had indemnification agreements with customers, but the Federal Circuit decided there was no actual controversy because an evidentiary hearing had established that defendant had not threatened to sue plaintiff's customers. Id. at 981. The court did not, as defendants claim, hold that jurisdiction for a declaratory judgment can never be predicated on an indemnification agreement. See id. (holding only that an "agreement to defend or indemnify a third person does not provide the actual controversy whereby the defender or indemnitor may bring a declaratory action on its own behalf when there is no actual controversy involving the indemnitee"). The parties have stipulated for purposes of this motion that defendants have accused several of plaintiffs' customers of infringing a number of defendants' patents. Thus, BP Chemicals does not apply.
Defendants further argue that the Court does not have jurisdiction over Counts I and X because they do not raise a federal question. Defendants base their assertion on the rule that declaratory judgment jurisdiction is determined "by applying the well-pleaded complaint rule not to the declaratory judgment complaint, but to the action that the declaratory defendant would have brought." Speedco, Inc. v. Estes, 853 F.2d 909, 911 (Fed. Cir. 1988) (citing Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 672, 94 L. Ed. 1194, 70 S. Ct. 876 (1950)). Defendants' logic overlooks the fact that the action defendants "would have brought" in this case is one for patent infringement against plaintiffs' customers. This is clearly a claim which "arises under" the patent laws as contemplated by 28 U.S.C. § 1338(a).
Thus, the Court has subject matter jurisdiction over Counts I, X, and XI.
3. Counts II-VI, VIII, & IX -- Fraud, Contract, Conversion, and Intentional Interference with Contractual and Business Relations Claims
Counts II-IV of plaintiffs' complaint allege that Papst fraudulently induced Minebea to enter into the 1995 Settlement Agreement by misrepresenting the nature and scope of the patents listed in Appendix III of the Agreement and otherwise breached its fiduciary obligation to plaintiffs. Count VI requests reformation of the Settlement Agreement, and Count V alleges that defendants converted patents which, according to agreements executed during the joint venture, should have been assigned to plaintiffs.
Section 1338(a) jurisdiction extends only to those cases where "[(1)] a well-pleaded complaint establishes . . . that federal patent law creates the cause of action[,] or [(2)] . . . plaintiff's right to relief necessarily depends on resolution of a substantial question of federal patent law, in that patent law is a necessary element of one of the well-pleaded claims." Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 808-09, 100 L. Ed. 2d 811, 108 S. Ct. 2166 (1988). According to the Federal Circuit, "it is well-settled that if the patentee pleads a cause of action based on rights created by a contract, or on the common law of torts, the case is not one 'arising under' the patent laws." Jim Arnold Corp. v. Hydrotech Sys., Inc., 109 F.3d 1567, 1572 (Fed. Cir.), cert. denied, 118 S. Ct. 338, 139 L. Ed. 2d 262 (1997). Plaintiffs nonetheless argue that their fraudulent concealment and negligent misrepresentation counts "arise under" the patent laws because Minebea will have to prove that Papst's representations regarding the scope of various patents were false. It is not, however, sufficient that plaintiffs' claims allege a single theory under which resolution of a patent law question is essential. If there are "reasons completely unrelated to the provisions and purposes of the patent law why the plaintiff may or may not be entitled to the relief it seeks, then the claim does not 'arise under' those laws." Christianson, 486 U.S. at 810 (internal quotation omitted). One of plaintiffs' theories of fraud and negligent misrepresentation is that defendants concealed the fact that certain patents included in Appendix III had previously been licensed to Minebea. See Compl. PP 92 & 99. Counts II and III do not, therefore, arise under the patent laws.
Nor does the Court have § 1338(a) jurisdiction over plaintiffs' conversion claim or reformation request. "The scope of a licensed patent may control the scope of a license agreement, but that rule of contract law cannot possibly convert a suit for breach of contract into one 'arising under' the patent laws as required to render the jurisdiction of the district court based on section 1338." Ballard Medical Prods. v. Wright, 823 F.2d 527, 530 (Fed. Cir. 1987); see also Jim Arnold, 109 F.3d at 1572 ("The question of who owns the patent rights and on what terms typically is a question exclusively for state courts."); Beghin-Say Int'l, Inc. v. Ole-Bendt Rasmussen, 733 F.2d 1568, 1571 (Fed. Cir. 1984) (stating that "agreements to assign future patent applications does not convert a contract dispute . . . to a federal question appropriate for determination in a federal court"). The only time a contract claim arises under the patent laws is when the question of patent infringement is a necessary element of the case. See, e.g., Scherbatskoy v. Halliburton Co., 125 F.3d 288, 291 (5th Cir. 1997); Datapoint Corp. v. VTel Corp., 1997 U.S. Dist. LEXIS 5770, 42 U.S.P.Q.2D (BNA) 1793, 1795 (S.D.N.Y. 1997). Since plaintiffs' conversion and reformation claims do not require a determination of patent infringement, they do not "arise under" the patent laws.
Though the Court does not have original jurisdiction over these claims, it nonetheless may exercise supplemental jurisdiction over them pursuant to 28 U.S.C. §§ 1338(b) and 1367(c). Defendants urge the Court to decline jurisdiction, arguing that the common law counts raise novel and complex issues of state and foreign law and substantially predominate over the federal claims in this case.
With respect to plaintiffs' fraud, contract, fiduciary, and conversion claims, the Court exercises its supplemental jurisdiction under § 1367(a). The laws implicated are not so complex as to justify the Court's declining to exercise jurisdiction over these claims, which derive from the same "common nucleus of operative fact" as plaintiffs' federal claims. See 28 U.S.C. § 1367(c); United Mine Workers of Amer. v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). Moreover, it is prudent, in the interests of judicial economy, that the Court adjudicate these claims; portions of plaintiffs' federal claims likely will depend on whether the Settlement Agreement should be set aside due to fraud or breach of fiduciary duty. See Gibbs, 383 U.S. at 726-27.
With respect to Counts VIII and IX, however, the Court declines to exercise supplemental jurisdiction. The elements of a claim of intentional interference with contractual relations is currently unsettled in the District of Columbia.
Compare Cooke v. Griffiths-Garcia Corp., 612 A.2d 1251, 1256 (D.C. 1992) ("defendant's intentional procurement of the contract's breach" is an essential element of a claim of tortious interference with contractual relations), with Equity Group, Ltd. v. PaineWebber, Inc., 839 F. Supp. 930 (D.D.C. 1993) (plaintiff must only prove that defendant intentionally interfered with the contract) (citing Dunn v. Cox, 163 A.2d 609, 611 (D.C. 1960)), aff'd, 310 U.S. App. D.C. 434, 48 F.3d 1285 (D.C. Cir. 1995) (per curiam). Since plaintiffs only allege that defendants "intentionally increased the burdens on Plaintiffs under one or more of [the] contracts," Compl. P 132, this unsettled aspect of D.C. law will be at the forefront of the dispute between the parties. See Edmondson & Gallagher v. Alban Towers Tenants Ass'n, 310 U.S. App. D.C. 409, 48 F.3d 1260, 1266 (D.C. Cir. 1995) (noting the conflict in D.C. law and suggesting that when "the entire tortious interference with contract claim may turn on this issue," district courts should decline to exercise supplemental jurisdiction). The Court also declines to exercise supplemental jurisdiction with respect to Count IX, since the tort of intentional interference with business relations requires proof of elements similar to tortious interference with contractual relations.
Compare Cooke, 612 A.2d at 1256, with Genetic Sys. Corp. v. Abbott Labs., 691 F. Supp. 407, 422-23 (D.D.C. 1988).
B. Rule 12(b)(6)
Defendants next contend that the Court should dismiss Counts I-III, VI, VII, X, and XI of plaintiffs' complaint for failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). Claims may not be dismissed under Rule 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see also Kowal v. MCI Communications Corp., 305 U.S. App. D.C. 60, 16 F.3d 1271, 1276 (D.C. Cir. 1994). All factual allegations in plaintiffs' complaint are taken to be true, and the Court gives plaintiffs the benefit of every favorable inference that may be drawn from their allegations of fact.
Kowal, 16 F.3d at 1276.
1. Counts I, VII, X, and XI -- Real Party in Interest Under Federal Rule of Civil Procedure 17(a)
Defendants argue that Counts I, VII, X, and XI should be dismissed because plaintiffs are not the "real party in interest" for those claims. See Fed. R. Civ. P. 17(a). According to the 1966 Committee Notes, "the modern function of the rule . . . is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to ensure generally that the judgment will have its proper effect as res judicata." Id. As previously discussed, plaintiffs have a real interest in the controversies underlying the declaratory judgments. In addition, there is no risk that defendants may face duplicative litigation from plaintiffs' customers, since the declaratory judgments are designed to pre-empt patent infringement actions by defendants.
Counts I, VII, X, and XI, therefore, are not dismissed under Rule 17(a).
2. Counts II, III, & VI
Defendants first allege that plaintiffs have not pled their fraud claims with sufficient particularity, stating "it is impossible to identify where the alleged fraud occurred because one of the elements of fraud is reliance and there is no explanation in Minebea's Complaint of who allegedly relied on any of Papst's statements, or how they allegedly relied on Papst's statements." See Defs.' Mot. To Dismiss at 40; see also Fed. R. Civ. P. 9(b).
The Court disagrees with defendants' characterization of plaintiffs' complaint. The complaint clearly indicates that Minebea relied on statements and letters both during and subsequent to the joint venture which contained misrepresentations regarding the scope of various Papst patents, and that the misrepresentations ultimately led Minebea to be deceived regarding the terms of the 1995 Settlement Agreement.
Defendants further assert that plaintiffs fail to state a claim for fraud or negligent misrepresentation because (1) the representations at issue are opinions, and (2) Minebea was represented by its own attorneys and must be presumed to have knowledge of the contracts it signed. Plaintiffs' complaint, however, contains sufficient allegations of factual misrepresentations to support a fraud claim, even if some of the alleged fraudulent statements may be characterized as opinions.
Furthermore, it cannot be said at this stage of the case that Minebea was not justified in relying upon statements made by defendants regarding the scope of the contracts. It is true that when a plaintiff has the means of knowing, by the exercise of ordinary intelligence, the truth, he is barred as a matter of law from asserting justifiable reliance. Thomas v. N.A. Chase Manhattan Bank, 1 F.3d 320, 324 (5th Cir. 1993) (applying New York law); Jack Kent Cooke, Inc. v. Saatchi & Saatchi North Amer., 222 A.D.2d 334, 635 N.Y.S.2d 611, 613 (N.Y. App. Div. 1995). However, whether plaintiffs could have discovered the truth about a matter through the "exercise of ordinary intelligence" is a question of fact. See Black v. Chittenden, 69 N.Y.2d 665, 669, 511 N.Y.S.2d 833, 503 N.E.2d 1371 (N.Y. 1986). Plaintiffs have alleged that they were kept from discovering some of these misrepresentations because defendants "appropriated for themselves the books and records of PMDM that were created during the period of the joint venture and have refused to provide timely access to these records." Compl. P 93. Plaintiffs also allege that their reliance on defendants' representations was consistent with the "exercise of ordinary intelligence" because of the special fiduciary relationship that existed between the parties. See Thomas, 1 F.3d at 324; see also Ahern v. Scholz, 85 F.3d 774, 794-95 (1st Cir. 1996) (fiduciary relationship may be based on prior business dealings (citing, inter alia, Apple Records, Inc. v. Capitol Records, Inc., 137 A.D.2d 50, 529 N.Y.S.2d 279, 283 (N.Y. App. Div. 1988)). Plaintiffs' fraud and negligent misrepresentation claims may not, therefore, properly be disposed of on a motion to dismiss.
3. Count I -- Patent Exhaustion Claim
Plaintiffs' patent exhaustion claim also may not be dismissed at this stage of the proceeding. One aspect of the patent exhaustion doctrine provides that when a patent holder sells "an incomplete product that has no substantial use other than to be further manufactured into a completed patented and allegedly infringing article," the patent holder cannot claim that the final product infringes his patent. Cyrix Corp. v. Intel Corp., 846 F. Supp. 522, 540 (E.D. Tex.), aff'd 42 F.3d 1411 (Fed. Cir. 1994); see also United States v. Univis Lens Co., 316 U.S. 241, 250-51, 86 L. Ed. 1408, 62 S. Ct. 1088 (1942); Hewlett-Packard Co. v. Repeat-O-Type Stencil Mfg. Corp., 123 F.3d 1445, 1455 (Fed. Cir. 1997) ("When a patentee sells a device without condition, it parts with the right to enforce any patent that the parties might reasonably have contemplated would interfere with the use of the purchased device."), cert. denied, 140 L. Ed. 2d 470, 118 S. Ct. 1304 (1998). Plaintiffs have alleged that the HDD spindle motors have no use other than to create hard disk drives; therefore they state a viable patent exhaustion claim.
Defendants assert that plaintiffs cannot, as a matter of law, raise a patent exhaustion claim because there is express language in the Settlement Agreement contracting out of the patent exhaustion doctrine. See Settlement Agreement P 2.2; Mallinckrodt, Inc. v. Medipart, Inc., 976 F.2d 700, 708 (Fed. Cir. 1992) (patent owners can place a lawful restriction on the use of their patented product). Defendants' position may prove to be correct after further discovery in this case. However, at this stage there is an issue of fact as to whether that clause was designed to contract out of the patent exhaustion doctrine. In addition, plaintiffs have raised issues of fraud in the creation of the Settlement Agreement, which ultimately may preclude defendants from relying on its provisions as a bar.
4. Count VII -- Lanham Act Claim
"To survive a motion to dismiss . . . on a Lanham Act claim, a plaintiff must allege that defendants made statements of fact in their commercial advertising or promotion that were (1) false or misleading, (2) actually or likely deceptive, (3) material in their effects on buying decisions, (4) connected with interstate commerce, and (5) actually or likely injurious to the plaintiff." Dial A Car, Inc. v. Transportation, Inc., 884 F. Supp. 584, 592 (D.D.C. 1995), aff'd, 317 U.S. App. D.C. 240, 82 F.3d 484 (D.C. Cir. 1996); see also Alpo Petfoods, Inc. v. Ralston Purina Co., 286 U.S. App. D.C. 192, 913 F.2d 958, 964 (D.C. Cir. 1990). Plaintiffs allege that Papst "falsely informed [plaintiffs'] customers that [plaintiffs] are not licensed under any of the Asserted Papst Patents, or although licensed to make and sell motors under the Asserted Papst Patents, their use by such customers for their sole intended use in a hard disk drive assembly constitutes patent infringement." Compl. P 30. Defendants' statements appear to be "commercial advertising and promotion" because they were disseminated to the "relevant public" -- plaintiffs' customers -- and allegedly designed to convince those customers that they needed an additional license from defendants to use the device sold to them by plaintiffs. See Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1385-86 (5th Cir. 1996); Riggs Inv. Mgmt. Corp. v. Columbia Partners, LLC, 966 F. Supp. 1250, 1267 (D.D.C. 1997). Finally, plaintiffs allege that defendants' statements affected plaintiffs' sales of their products. Compl. P 126; see also Dovenmuehle v. Gilldorn Mortgage Midwest Corp., 871 F.2d 697, 700 (7th Cir. 1989) (plaintiff need not be in direct competition with defendant but need only show a "reasonable interest to be protected" from the false commercial statements); PPX Enters. v. Audiofidelity, Inc., 746 F.2d 120, 125 (2d Cir. 1984) (same). Count VII, therefore, states a claim under the Lanham Act.
For the foregoing reasons, defendants' motion to dismiss Counts I-VII and X-XI of plaintiffs' complaint is denied. Counts VIII and IX of plaintiff's complaint are dismissed without prejudice for lack of subject matter jurisdiction. An appropriate Order accompanies this Opinion.
Stanley S. Harris
United States District Judge
Date: JUN 22 1998
For the reasons stated in the accompanying Opinion, it hereby is
ORDERED, that defendants' motion to dismiss Counts I-VII and X-XI of plaintiffs' complaint is denied. It hereby further is
ORDERED, that Counts VIII and IX of plaintiffs' complaint are dismissed without prejudice for lack of subject matter jurisdiction.
Date: JUN 22 1998
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Qualitative Research Practice
Abridged edition
Edited by Clive Seale Giampietro Gobo Jaber F. Gubrium
Format: Paperback
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Qualitative Research Practice by Clive Seale
Book Description'This comprehensive collection of almost 40 chapters - each written by a leading expert in the field - is the essential reference for anyone undertaking or studying qualitative research. It covers a diversity of methods and a variety of perspectives and is a very practical and informative guide for newcomers and experienced researchers alike' - John Scott, University of Essex 'The best ways in which to understand the issues and processes informing qualitative research is to learn from the accounts of its leading practitioners. Here they come together in what is a distinctive and wide-ranging collection that will appeal to postgraduates and social researchers in general' - Tim May, University of Salford 'This excellent guide engages in a dialogue with a wide range of expert qualitative researchers, each of whom considers their own practice in an illuminating and challenging way.Overall, the book constitutes an authoritative survey of current methods of qualitative research data collection and analysis' - Nigel Gilbert, University of Surrey Learning to do good qualitative research occurs most fortuitously by seeing what researchers actually do in particular projects and by incorporating their procedures and strategies into one's own research practice. This is one of the most powerful and pragmatic ways of bringing to bear the range of qualitative methodological perspectives available. The chapters in this important new volume are written by leading, internationally distinguished qualitative researchers who recount and reflect on their own research experiences as well as others, past and present, from whom they have learned. It demonstrates the benefits of using particular methods from the viewpoint of real-life experience. From the outside, good research seems to be produced through practitioners learning and following standard theoretical, empirical and procedural formats.But from the inside we learn that qualitative research (like other forms of scientific endeavour) is also a biographical engagement, rendering its scholarly and practical contributions in its own terms. Standards take on practical meaning as the distinct activities of qualitative research resonate throughout the enterprise, complicating its accountability to itself and to others. In an authoritative yet accessible manner, Qualitative Research Practice reveals the special features of this engagement, teaching us that qualitative research is as much a craft and practice as it is a way of knowing. Presenting a comprehensive examination of contemporary and traditional varieties of qualitative research practice, Qualitative Research Practice will be an invaluable resource for advanced students and researchers in any discipline. It is an essential and definitive guide to the major forms of qualitative methods in use today, written by leaders in the relevant fields of research practice.
Buy Qualitative Research Practice book by Clive Seale from Australia's Online Bookstore, Boomerang Books.
Book DetailsISBN: 9781412934206
(246mm x 174mm x 30mm)
Pages: 552
Imprint: SAGE Publications Ltd
Publisher: SAGE Publications Ltd
Publish Date: 30-Oct-2006
Country of Publication: United Kingdom
Other Editions...
Books By Author Clive Seale
Researching Society and Culture, Paperback (December 2011)
Clear, pragmatic and trusted, the text continues to successfully guide students through the complexities of social research providing 'how-to' advice, real world examples and historical background to every part of teaching.
Gender and the Language of Illness, Hardback (July 2010)
An investigation of the influence of gender, social class, age and illness type in the language of people talking about their experiences of illness. It shows evidence of both conformity with and resistance to gender stereotypes.
Health and the Media, Paperback (April 2004)
* A collection of the best contemporary studies on health and the media. * Brings together perspectives from media studies and medical sociology. * Illuminates the influence that the mass media have on health beliefs and behaviour, and on health care practices and policy-making.
Social Research Methods, Paperback (November 2003)» View all books by Clive Seale
"Social Research Methods: A Reader" brings together many of the core classic and contemporary works in social and cultural research methods, giving students direct access to methodological debates and examples of practical research across the qualitative/quantitative divide.
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Author Biography - Clive Seale
Clive Seale is Professor of Medical Sociology at Queen Mary University of London. David Silverman is Visiting Professor in the Business School, University of Technology, Sydney, Emeritus Professor in the Sociology Department, Goldsmiths' College and Adjunct Professor in the School of Education, Queensland University of Technology. He has lived in London for most of his life, where he attended Christ's College Finchley and did a BSc (Economics) at the London School of Economics in the 1960s. Afterwards, he went to the USA for graduate work, obtaining an MA in the Sociology Department, University of California, Los Angeles. He returned to LSE to write a PhD on organization theory. This was published as The Theory of Organizations in 1970. Apart from brief spells teaching at UCLA, his main teaching career was at Goldsmiths College. His three major research projects were on decision making in the Personnel Department of the Greater London Council (Organizational Work, written with Jill Jones, 1975), paediatric outpatient clinics (Communication and Medical Practice, 1987) and HIV-test counselling (Discourses of Counselling, 1997). He pioneered a taught MA in Qualitative Research at Goldsmiths in 1985 and supervised around 30 successful PhD students. Since becoming Emeritus Professor in 1999, he has continued publishing methodology books. David regularly runs qualitative research workshops for five universities in Sydney and Brisbane. He has also run workshops for research students in Finland, Norway, Sweden, Denmark, France, Sri Lanka and Tanzania. Since 2000, he has done voluntary work with people with dementia. resident in an old people's home Besides all this, David's other interests include classical music, literary fiction, bridge, county cricket and spending time with his grandchildren. Jaber F. Gubrium is professor and chair of sociology at the University of Missouri. He has an extensive record of research on the social organization of care in human service institutions. His publications include numerous books and articles on aging, family, the life course, medicalization, and representational practice in therapeutic context. Giampietro Gobo, Ph.D., is Professor of Methodology of Social Research and Evaluation Methods at the Department of Social and Political Studies - University of Milan. He has published over fifty articles in the areas of qualitative and quantitative methods. His books include Doing Ethnography (Sage 2008) and Qualitative Research Practice (Sage 2004, co-edited with C. Seale, J.F. Gubrium and D. Silverman). He is currently engaged in projects in the area of workplace studies.
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WAKE UP CALL: W HOTELS MUSIC FESTIVAL: Amp up your weekend with a can't miss concert scene as W Scottsdale transforms into a three day music festival September 30 - October 2. Music lovers will enjoy performances throughout the hotel, pool parties on the WET Deck, a morning FUEL fitness event, VIP Lounges and more. Featured artists include: Bebe Rexha, Cee Lo Green (DJ set), De La Soul, Jess Glynne, Kungs, Lost Frequencies, Matoma, Mayer Hawthorne and Nico & Vinz and more.
Oktoberfest: It's not just about beer - it's about benefits. Proceeds from this all-day beer festival benefit St. Jude Children's Research Hospital.
Tour de Scottsdale: An endurance rider's dream, this event comes in 30-mile and 70-mile flavors. No matter which you choose, your efforts will benefit the McDowell Sonoran Conservancy.
W'CKED HALLOWEEN PARTY: Embrace your alter ego, put on your most stylish costume and head to W Scottsdale's W'CKED Halloween Happening. Tickets wscottsdaletickets.com VIP Table Reservations 602.405.0099 or firstname.lastname@example.com Room and Package Information wscottsdalehotel.com/halloween2016
ArtFest of Scottsdale: Downtown Scottsdale comes alive as over 200 artists from across the country showcase their work.