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Appeal by defendants from the Circuit Court of Lake county;
the Hon. RALPH J. DADY, Judge, presiding. Heard in this court at
the October term, 1950. Affirmed. Opinion filed February 27,
1951. Released for publication March 16, 1951.
A complaint was filed charging that on December 15, 1949, the Werner Transportation Company, violated par. 228, ch. 95 1/2 of the Revised Statute of the State of Illinois [Jones Ill. Stats. Ann. 85.260], by unlawfully permitting the operation of a motor vehicle with semitrailer attached, and that the center axle of the same was overloaded, etc. A warrant was issued for James Howard Klabough charging him with the violation of the same section of the statute. Another warrant was issued charging the Werner Transportation Company and Klabough with the same offense, charging that the second one occurred on December 21, 1949. Trials were had before a justice of the peace in Lake county and appellants found guilty. An appeal was taken to the circuit court. There the two charges against the defendants were consolidated. The case was tried upon a stipulation of facts before the court without a jury. Both were found guilty and the defendant, Klabough, was fined $5 in each case and the Transportation Company $100 in each case. It is from these judgments that an appeal has been perfected to this court.
The statute regulates the amount of weight that can be carried on the various axles of the trucks being driven on the paved highways of the State of Illinois. In each case it is conceded that the center axle of the trucks was overloaded. One to the amount of eleven hundred pounds and the other to the amount of eight hundred pounds.
It is stipulated that the various people who could be called by the defendants as witnesses would testify that at the time each of these trucks was loaded at Minneapolis, before they started on their journey to Illinois, was properly loaded, but that it is impossible to load a truck so the load will not shift in driving any considerable distance. The appellants now claim that this being true, the court erred in finding them guilty, as they did not intend to have an overload, or knowingly drive a truck when it was overloaded, as these two were.
The statute in question is as follows: "Section 124. (a) It is unlawful for any person to drive or move or for the owner to cause or knowingly permit to be driven or moved on any highway any vehicle or vehicles of a size and weight exceeding the limitations stated in this article or otherwise in violation of this article, and the maximum size and weight of vehicles herein specified shall be lawful throughout this State, and local authorities shall have no power or authority to alter said limitations except as express authority may be granted in this article." "The owner of any vehicle who knowingly operates or permits the operation of such vehicle in violation of the provisions of Section 131 or Section 132, or the driver of any vehicle who operates such vehicle in violation of Section 131 or Section 132 of this Act, shall on conviction thereof for the first offense be fined" etc.
It is the contention of the appellants that before they can be convicted, the State must prove that they knowingly operated a truck while being overloaded. It will be observed that the statute says: "The owner of any vehicle who knowingly operates or permits the operation" etc. It further continues, "or the driver of any vehicle who operates such vehicle in violation of the Statute" etc., shall be punished. Certainly the trucking company knowingly permitted these trucks to be driven on the Illinois highways with the knowledge that the load would shift, so that it would be in violation of the statute. The driver also knew that this load would shift, so that some of the axles on his outfit would be overloaded. We think that the statute is broad enough to cover such a violation as shown by the stipulation in this case.
The appellants have argued in their brief that this statute in question is unconstitutional, as it violates due process of the provisions of equal protection of the Constitution of the State of Illinois, and the Constitution of the United States. The appellants by bringing the case to this court have waived the question whether this law is unconstitutional or not. People v. Andalman, 346 Ill. 149 and People v. Garwood, 317 Ill. 578.
We find no error in this case, and the judgments appealed from should be and are affirmed.
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Giveaway: Two Pairs Of Tickets To See The Old 97's at Saturday's St. Patrick's Day Parade After-Party
'Tis that jolly, drunken time of the year. And this year, at our annual after-party, we're going the all out alt-country route with the Old 97's, The Drams, Eleven Hundred Springs and The O's. Should be a yee-haw time, if that makes any sense (I know; it doesn't).
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April 7, 1983; As Amended.
BATKA, FRANCIS J., APPELLANTv.LIBERTY MUTUAL FIRE INSURANCE COMPANY
Before: GIBBONS, HUNTER and ROSENN, Circuit Judges
Opinion OF THE COURT
GIBBONS, Circuit Judge.
Francis J. Batka, a policyholder of two insurance policies issued by Liberty Mutual Insurance Company, appeals from a judgment in favor of Liberty Mutual Fire Insurance Company in his diversity suit for recovery of the amount of a fire loss occurring to his home and automobile. Liberty Mutual asserted defenses of arson, fraud in the presentation of the fire loss claims, and fraud in the application for the policy. The jury's verdict was in Batka's favor on the arson and fraud in the loss claim, and that aspect of the case is not before us. The jury answered affirmatively, however, two special verdict interrogatories. These asked whether Liberty Mutual had proved by a preponderance of the evidence: (1) that Batka wilfully misrepresented or concealed material facts in the application for insurance when he answered "no" to the question "Has applicant or other occupant of the household had any property or casualty insurance declined or cancelled in the past three years (excluding auto)"; and (2) that Batka wilfully misrepresented or concealed material facts in the application for insurance concerning losses caused by burglary, robbery, theft, fire, wind, vandalism, and water damage, and that the defendant reasonably relied upon the material facts in issuing the policy. The trial court entered judgment in favor of Batka for loss of the automobile, but in favor of Liberty Mutual on the home fire loss. The court also denied Batka's motion for judgment notwithstanding the verdict and for a new trial. Because we conclude that the issue of fraud in the application was submitted to the jury under an erroneous legal standard of proof, we reverse the judgment and remand for a new trial.
Batka's diversity action was filed in the United States District Court for the Eastern District of Pennsylvania. The fire loss occurred, however, on November 6, 1977 in Collingswood, New Jersey. Moreover it is undisputed that the fire insurance policy was issued in that state, and contains the standard provisions required by N.J. Stat.Ann. 17:36-5.20 (West Supp. 1982). Most of the evidence offered by both sides in a protracted trial was addressed to the two issues, arson and false claim, which were decided by the jury in Batka's favor. We summarize the evidence with respect to Liberty Mutual's defense of fraud in the application.
On October 15, 1975 Batka was informed by American Policyholders' Insurance Company that it did not intend to renew its homeowners policy on his home, which would expire on December 13. Norman Krusen, a sales representative for Liberty Mutual, called Batka and arranged to meet him on December 10, 1975 to discuss insurance coverage. At this meeting Krusen asked Batka questions from the Liberty Mutual homeowners insurance application form, sometimes paraphrasing rather than quoting verbatim. Krusen entered Batka's answers on the form, which Batka signed. Question 13 on the application form reads:
Has applicant or other occupant of the household had any property or casualty insurance declined or cancelled by any company during the past three years excluding auto?
Krusen testified that he recalls asking if Batka had been "cancelled or non-renewed," and he checked off Batka's reply to Question 13 as no. There is no evidence that Krusen transmitted to the Liberty Mutual underwriting department information on his variation of the inquiry. On December 10, 1975 the no answer to Question 13 was literally true, because coverage had not been cancelled by American Policyholders' Insurance Company, and Batka's only application to it had not been declined. The American Policyholders' coverage was not "nonrenewed" until three days later, although an expression of intention not to renew had been sent earlier. Moreover Liberty Mutual, on this record, could not have relied on any representation Batka made about non-renewal, to the attention of its underwriting department, and the question does not mention non-renewal.
Question 17 on the application reads:
During the past 3 years have you or other occupants of the household ever had a loss caused by any of these perils:
A. burglary, robbery, theft, holdup, etc.?
B. fire, wind, vandalism, riot or civil commotion, water damage, ruptured plumbing or heating, electrical wiring or appliances etc.?
D. other (except automobile losses)?
According to Krusen, he inquired whether Batka had any losses in the past three years. Batka's answer, as recorded by Krusen on the application, was that he had been the victim of a theft six months ago. There is evidence from which the jury could find that Batka had incurred five theft losses, one vandalism loss and one windstorm loss over three years. Question 17 is ambiguous in asking about " a loss caused by any of these perils," in that it might be construed as an inquiry as to a loss of the type listed, without regard to number. The question does inquire separately about types of loss, however, and a jury could find that Batka failed to reveal that there were vandalism and windstorm losses.
The application was forwarded to an underwriter for Liberty Mutual, Mr. Bax, who approved the issuance of a one year policy. When that policy expired on December 13, 1976 Liberty Mutual renewed it for another year. A Liberty Mutual underwriter testified that underwriting decisions were made on the basis of the inquiries in the application form.
Batka filed a claim following the November 6, 1977 fire, and Liberty Mutual rejected it. This lawsuit followed, with the results described above.
Batka contends that the trial court erred when it denied his motion for judgment notwithstanding the verdict, because there was a complete failure of proof on a necessary element of Liberty Mutual's defense of fraud in the application. That element, it contends, is reliance on the alleged misrepresentation. We reject that contention. We agree that whether one applied Pennsylvania law or New Jersey law the insurer would have to establish such reliance.
With respect to the answer to question 13, we think Liberty Mutual's defense failed, since it never established that the response given to Krusen's inquiry about non-renewals as distinguished from cancellations or declinations was ever brought to the attention of the underwriting department which made the decision to issue the policy. Question 17, however, even if it is construed as inquiring about types rather than numbers of losses, evoked an answer which can be found to have concealed the windstorm and vandalism losses. That written answer was brought to the attention of the underwriting department, and there is testimony from which it could be found that prior loss experience is a material factor in making underwriting decisions.
Batka contends that because Liberty Mutual's renewal policy was a new contract, as a matter of law it could not have been issued in reliance on the information in the application for the original policy. We disagree. There is evidence from which a jury could conclude that renewals are made on the basis of the renewing company's loss experience with the policyholders. That evidence does not, however, preclude reliance on information in the original application as well. The general rule appears to be that in the absence of a new application renewal of a fire insurance policy is made on the assumption that the facts disclosed in the original application are true. See generally Annot., Avoidance of Renewed Fire Policy for Breach of Warranty or Representation First Made in Original Application or Policy, 62 A.L.R. 823 (1929). No authority has been called to our attention suggesting that either Pennsylvania or New Jersey would apply a different rule. Batka relies on Garrison v. Farmers' Mutual Fire Insurance Co., 56 N.J.L. 235, 28 A.8 (S. Ct. 1893), which holds that the risk assumed under the old contract expired with it, and that each renewal is the beginning of a new risk. The case does not speak, however, to representations made to induce the issuance of a policy, but to contractual warranties, which in Garrison were true for the time period covered by the policy in issue. More directly in point is United States Fidelity & Guarantee Co. v. Fridrich, 123 N.J. Eq. 437, 198 A. 378, 381-82 (Ch. 1938), announcing the general rule that underwriters may, in making renewal decisions, rely on the contents of the original application.
There was on this record a jury question whether Liberty Mutual, in issuing the renewal policy, relied on the negative response to the inquiries about vandalism and windstorm losses. Thus the trial court did not err in denying Batka's motion for judgment notwithstanding the verdict.
Batka also contends that his motion for a new trial should have been granted because the trial court erred in submitting the case to the jury with an instruction that Liberty Mutual need prove its fraudulent application defense only by a preponderance of the evidence rather than by clear and convincing evidence.
Pennsylvania requires that an insurer establish the defense of fraud in the application by "clear, precise and indubitable" evidence. Ratay v. Lincoln National Life Insurance Company, 378 F.2d 209 (3d Cir. 1967), cert. denied, 389 U.S. 973, 19 L. Ed. 2d 465, 88 S. Ct. 472 (1968), aff'd on remand, 405 F.2d 286 (3d Cir. 1968); Highmont Music Corp. v. J.M. Hoffmann Co., 397 Pa. 345, 155 A.2d 363, 366 (1959); Gerfin v. Colonial Smelting & Refining Co., 374 Pa. 66, 97 A.2d 71 (1953). Batka contends that Pennsylvania would treat this higher evidentiary burden as a matter of procedural law of the forum and apply its own rule even in a suit on a New Jersey fire insurance policy. See, e.g., Sloniger v. Enterline, 400 Pa. 457, 162 A.2d 397 (1960); Crawford v. Manhattan Life Insurance Co., 208 Pa. Super. 150, 221 A.2d 877 (1966). Thus, he urges, Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941), requires that a diversity court in Pennsylvania do likewise.
Liberty Mutual, on the other hand, contends that Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), requires that the district court identify the jurisdiction having the most significant interest in the underlying transaction, and apply the rules of that jurisdiction which reflect its public policies bearing on the transaction. That jurisdiction, Liberty Mutual contends, is New Jersey.
In this case, however, there is no need to explore Pennsylvania's choice of law rules with respect to evidentiary burdens, because there is no difference between the law of New Jersey and that of Pennsylvania applicable to a defense of fraud in the application. Both states require that the fact-finder be satisfied of the elements of the defense by clear and convincing evidence.
New Jersey characterizes an insurance company's denial of a claim because of misrepresentations in an application as an attempt to rescind the policy. Johnson v. Metropolitan Life Insurance Co., 53 N.J. 423, 440, 251 A.2d 257, 266 (1969). Rescission of a contract is a classic example of equitable relief. That being so, the defense being asserted by Liberty Mutual falls within the well-settled rule in New Jersey distinguishing between the evidentiary burden in any action at law for fraud and that in an equitable action. In a suit for money damages for fraud, the plaintiff need only prove a case by a preponderance of the evidence. In order to obtain equitable relief such as rescission, however, clear and convincing proof is required. A leading case recognizing the distinction is Armel v. Crewick, 71 N.J. Super. 213, 176 A.2d 532 (App. Div. 1961). New Jersey authorities applying the clear and convincing proof standard in equity in fraud cases are legion. See, e.g., Connelly v. Weisfeld, 142 N.J. Eq. 406, 59 A.2d 869 (E. & A. 1948) (suit seeking discharge of executor for fraud); Fortunel v. Martin, 114 N.J. Eq. 235, 168 A.393 (E. & A. 1933) (fraud alleged as defense in mortgage foreclosure); Pahy v. Pahy, 107 N.J. Eq. 538, 153 A. 519 (E. & A. 1931) (allegation that divorce decree was obtained through fraudulent representation of intent to become permanent Nevada resident); Williams v. Witt, 98 N.J. Super. 1, 235 A.2d 902 (App. Div. 1967) (action for annulment on the basis of fraud); Post v. Bacher, 48 N.J. Super. 518, 138 A.2d 538 (App. Div. 1958) (suit alleging that defendant fraudulently induced plaintiff to rescind contract); Brown v. Brown, 28 N.J. Super. 165, 100 A.2d 315 (App. Div. 1953) (collateral attack on validity of Nevada divorce decree); Minter v. Bendix Aviation Corp., 26 N.J. Super. 268, 97 A.2d 715 (App. Div. 1953) (alleged fraud upon court resulting in award of widow's benefits); Clifton v. Cresthaven Cemetery Association, 6 N.J. Super. 391, 71 A.2d 655 (App. Div. 1950) (alleged fraud upon court resulting in settlement decree); Bilowit v. Dolitsky, 124 N.J. Super. 101, 304 A.2d 774 (Ch. Div. 1973) (action for annulment on the basis of fraud); Medivox Productions, Inc. v. Hoffman-LaRoche, Inc., 107 N.J. Super. 47, 256 A.2d 803 (Law Div. 1969) (suit seeking, inter alia, recession and restitution of a fraudulently negotiated contract); Landau v. Rosenbaum, 15 N.J. Super. 524, 83 A.2d 732 (Ch. Div. 1951) (action on note alleging formation of corporation to defraud creditors); Wasserman v. Franklin Trust Co., 142 N.J.Eq. 352, 60 A.2d 307 (Ch. 1948) (action to rescind sale of chattel mortgages and promissory notes); Lundie v. Walker, 126 N.J. Eq. 497, 9 A.2d 783 (Ch. 1939) (allegation of fraud in response to suit for construction of will); Hayward v. Passaic National Bank & Trust Co., 120 N.J. Eq. 512, 186 A. 728 (Ch. 1936), aff'd, 123 N.J. Eq. 592, 199 A. 46 (1938) (suit for nullification of promissory note, bond and mortgage on the basis of fraud); Fellman v. Henderson Building & Loan Association, 120 N.J. Eq. 367, 185 A. 495 (Ch. 1936) (suit to obtain lien priority on property alleged to be fraudulently conveyed); Kelso v. Kelso, 95 N.J. Eq. 544, 123 A.250 (Ch.), aff'd, 96 N.J.Eq. 354, 124 A. 763 (1924) (suit to impress constructive trust on property allegedly obtained by fraud). In only one of these cases -- Post v. Bacher -- is it arguable that equitable relief was not involved,*fn1 and in any event such a breakdown of the law/equity distinction supports rather than undermines the application of the clear and convincing standard to an effort to rescind an insurance contract.
On the other hand, the preponderance of the evidence standard is applied only when a remedy at law for fraud is sought. See, e.g., Fischetto Paper Mill Supply, Inc. v. Quigley Co., 3 N.J. 149, 69 A.2d 318 (1949) (counterclaim for alleged overpayments due to overstatement of weight); Duratron Corp. v. Republic Stuyvesant Corp., 95 N.J. Super. 527, 231 A.2d 854 (App.Div. 1967) (suit to recover money on the basis of nonexistent collateral); Armel v. Crewick, 71 N.J. Super. 213, 176 A.2d 532 (App. Div. 1961) (suit to recover money lost as a result of defendant's misrepresentations of solvency); Newark Live Poultry Co. v. Fauer, 118 N.J.L. 556, 194 A. 270 (S. Ct. 1937), aff'd o.b., 120 N.J.L. 187, 199 A. 12 (E. & A. 1938) (suit to obtain damages resulting when defendant obtained credit through false representations); National Premium Budget Plan Corp. v. National Fire Insurance Co., 97 N.J. Super. 149, 234 A.2d 683 (Law. Div. 1967) (action by finance company to recover from insurer for losses caused by the granting of premium loans to fictitious insureds). While none of these cases, with the exception of Armel, explicitly articulate the law/equity distinction, such an understanding is implicit in those cases which cite to Armel. Moreover, New Jersey's highest court applied a clear and convincing evidence standard in Connelly v. Weisfeld, but a preponderance of the evidence standard in Fischetto. Clearly, New Jersey has long recognized the distinction articulated in Armel.*fn2
One New Jersey case, New Jersey Mortgage and Investment Co. v. Dorsey, 33 N.J. 448, 450, 165 A.2d 297, 298 (1960), requires separate mention. In that case, in reviewing an action on a negotiable note by a holder in due course against its alleged makers, the New Jersey Supreme Court stated that the makers need only establish the defense of fraud in the factum by a preponderance of the evidence. Superficially that holding might appear to support Liberty Mutual's position. But when it is examined in light of the policy reason advanced by the New Jersey courts for making the law/equity distinction with respect to the evidentiary burden for establishing fraud such support evaporates. According to the New Jersey authorities the clear and convincing standard was developed by the chancery courts to avoid too ready circumvention of the Statute of Frauds and the Statute of Wills. See, e.g., Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 161, 165 A.2d 531, 534 (App. Div. 1960) (citing McCormick, Evidence, § 320 at 679 (1954)). A written instrument meeting required formalities was deemed to be invaluable in regulating and ordering private transactions. Too easy access to the relief of rescission or reformation would produce instability in contractual relations. Thus a higher evidentiary burden was imposed before such written instruments could be set aside for fraud in their inducement. See Post v. Bacher, 48 N.J. Super. 518, 520, 138 A.2d 538, 540 (App. Div. 1958). Fraud in the factum, on the other hand, which goes to the very authenticity of the instrument relied upon, presents an entirely different set of policy concerns. That distinction explains why the Dorsey court did not apply the clear and convincing evidentiary standard.
Given the fact that New Jersey treats a defense of fraud in the application as an effort on the part of the insurer to rescind a policy which is otherwise entirely genuine, and for which a premium has been paid, we are confident that New Jersey would apply the equity evidentiary standard in the instant case. Thus the trial court's instruction that the jury could find fraud in the application by a mere preponderance of the evidence was incorrect under either Pennsylvania or New Jersey law. Such an error is "fundamental and highly prejudicial", and requires a new trial. Ostrov v. Metropolitan Life Insurance Co., 379 F.2d 829, 838 & n.10 (3d Cir. 1967). An incorrect instruction as to the evidentiary standard of proof is plain error. The trial court obviously believed as much, addressing the merits of the contention in a post trial motion. The court, however, while concluding that New Jersey law governed, failed to recognize that under Johnson v. Metropolitan Life Insurance Co., 53 N.J. 423, 440, 251 A.2d 257, 266 (1969). Liberty Mutual's defense of fraud in the application would be treated as an application for rescission.
The judgment appealed from will be reversed and the case remanded for a new trial on Liberty Mutuals defense to Batka's fire loss claim of fraud in the application.
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"Greta family accommodation resort" Mounts Bay Waters Apartment Hotel Tip by janet66699
Mounts Bay Waters Apartment Hotel, Perth: 548 reviews and 8 photos
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How a Veteran Combats PTSD with Cooking
In honor of Veterans Day, we have a very special guest blog post from one of our Nomiku community members, Tom. Tom is a veteran, and has been using cooking and food as a means of coping with life after combat. Here's his story below. Thank you for letting us share your story, Tom, and thank you for your service!
My name is Tom. I am a Naval Special Warfare Veteran. I am also disabled. I served the US Navy as a SWCC (Special Warfare Combatant Craft Crewman). We drove high-speed boats to get the Navy SEALs in and out of hot zones.
I've done some things and seen some things that a man shouldn't have to experience.
Don't get me wrong; it was all within the rules of war. But as someone said a long time ago, war is hell.
Now because of my back injury, I am in chronic pain 24/7, 365. Diagnosed with PTSD (Post-Traumatic Stress Disorder), I am also in spiritual and emotional pain. This PTSD tends to make us feel guilty for things we "had" to do. I can no longer work and rely on the use of a wheelchair. I often felt useless and non-productive. Consequently, I spent a lot of my time reading, watching TV – anything to get my mind off of my pain in my back and in my mind.
I used to be married and my wife loved to cook (she wasn't the best, but she tried haha). She would usually do all of the cooking and I'd man the barbecue. It was great teamwork.
Thinking about those times, I started cooking again. And I found that it truly helped me, especially when I would cook for others. When I cook and break bread with my friends, I feel useful. I feel needed. By feeding others and by being in the kitchen, I can focus on making delicious food instead of my pain.
Tom cooked these filets and green beans sous vide. As Tom explained, he had "what they call a 'crisis' with PTSD. I needed a quick great meal to help settle me down. At first I thought I was out of luck because the steaks were frozen solid. But I remembered the Nomiku. I was very, very surprised by the taste. Tasted fresh and crisp. It truly helped (along with prayer) calm me down and get my day back on track."
Cooking, for me, helps keep my mind away from the physical and mental pain I have to deal with everyday, no matter how temporary the relief is. Even my shrink thinks it's a great form of therapy.
And after seeing the Nomiku in a Facebook post, I've found that it's made my life so much easier and my food so much better. Putting a roast in the Nomiku bath until it's a perfect medium rare, then bringing it out to the grill for those always important sear marks (I'm not just a barbecue-r anymore!), I can have a perfectly cooked meal to serve my friends—which they absolutely love. Seriously. I cook a lot now for my PTSD support group, and they honestly think I am blessed from God with the gift of cooking.
As I continue my cooking therapy, as you might call it, I'm looking forward to experimenting more with new recipes and feeding my friends more and more tasty meals. I am very grateful to have found this outlet, and be able to give back to my friends at the same time.
If you, like me, suffer from PTSD, try going into your kitchen. It might help more than you think.
Tom Clark EN1 (SWCC) ret.
Photo courtesy of Tom Clark. Written by Tom Clark, edited for clarity with permission


text:
Mass Casualty Weapons
Overview of Incidents Involving Mass Casualty Weapons
Chemical Weapons
- Pulmonary Agents
- Systemic Asphyxiants
- Blistering Agents
- Nerve Agents
- Anticholinergic Agents
- Incendiary Agents and Hydrogen Fluoride (HF)
- Riot-control agents
- Symptoms
- Diagnosis
- Treatment
Toxins as Weapons
Biological Weapons
Also of Interest
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The liver can be damaged as a result of impact (for example, a motor vehicle crash) or penetrating trauma (such as a knife or gunshot wound). Injuries may range from relatively small hematomas (collections of blood) within the liver to large tears that go deep into the liver. The main problem resulting from liver injury is which of the following?
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ERIC Number: ED231182
Record Type: RIE
Publication Date: 1981-Nov-26
Pages: 12
Abstractor: N/A
Reference Count: 0
Language Policy in Ireland and Canada: A Comparative Survey.
Mackey, W. F.
Both Ireland and Canada are officially bilingual countries. There are similarities between the two countries and differences with regard to numbers of speakers and purposes for which speakers use Irish or French. Yet, a comparison of language policy in the two countries is possible, one which would focus on demographic, economic, social, cultural, political, and juridical aspects of language status. The demographic aspect reviews percentages of unilingual and bilingual French and English speakers in Canada and compares the situation with Ireland. The economics discussion focuses on employment opportunities and notes that the language of work is the one which achieves economic status. The social status of language indicates the importance of education in enhancing language status. For example, the cultural status of a language is dependent upon education, a situation clearly evident in Quebec where both French and English populations have had their own school systems including universities. With regard to the political aspect, linguistic territoriality provides political leverage to enact language policies. Finally, the juridical status of language depends on the decision of the state. In conclusion, a distinction is made between functional and symbolic bilingualism, and it is noted that language autonomy seems to depend on economic advantage. (AMH)
Publication Type: Opinion Papers; Speeches/Meeting Papers
Education Level: N/A
Audience: N/A
Language: English
Sponsor: N/A
Authoring Institution: N/A
Identifiers: Canada (French Provinces); Ireland; Irish (Modern)
Note: Public lecture given under the auspices of Bord na Gaeilge (November 26, 1981). In original publication (ISBN-0-946339-01-5), bound with "Syllabus for Second Language Teaching."


text:
Paul Zeise: Penn State should be in the College Football Playoff ahead of Ohio State
Penn State is 11-2, won the Big Ten, beat a top 10 team in the championship and the No. 3 team in the country.
Police: Crowd riots following Penn State Big Ten win
With damage done to public and private property, State College police label the students' actions an "unlawful disturbance."
Penn State will face USC in Rose Bowl
PSU narrowly missed out on a spot in the College Football Playoff despite being 11-2 overall and 9-1 as the newly crowned Big Ten champs.
Penn State mounts comeback against Wisconsin, 38-31, to win Big Ten championship
Penn State came back from a three-touchdown first-half deficit to claim the program's first Big Ten championship since 2008.
Former Panther coach Chryst has not changed
Former Pitt coach Paul Chryst has Wisconsin on the brink of a Big Ten title in just his second season.
Frankin cranking up the volume as Penn State prepares for test
Penn State coach James Franklin is keeping his team focused on the task at hand as the Nittany Lions play for a Big Ten title.
Even during championship week, Penn State keeps eyes on recruiting
The coaching staff has received some recruiting help from high-profile televised games.
Former Penn State TE Kyle Brady: 'It's only right' for the Big Ten champ to go to the playoff
The All-American member of the Nittany Lions' first Big Ten championship team in 1994 checked in with the Post-Gazette sports podcast.
Penn State prepares for 'the typical corn-fed Wisconsin boys'
The Badgers lead the nation in time of possession but the Nittany Lions haven't allowed a touchdown in its past two games.
Judge orders Penn State to pay McQueary another $5 million
Judge's award follows jury's award of $7.3 million to the former Penn State assistant coach.
PSU's James Franklin says overachieving always big part of good teams
Franklin acknowledges his current team fits that mold thanks to many players overachieving and, in some cases, overcoming injuries.
Penn State's James Franklin named Big Ten coach of the year
Nittany Lions coach James Franklin was named coach of the year by the media while Wisconsin's Paul Chryst was selected by the coaches.
Penn State's long-distance passing impresses Wisconsin coach
Quarterback Trace McSorley has a license to throw long and he isn't shy about it, completing 32 passes of 30 yards or more this season.
Ron Cook: Sorry Penn State and fans, no playoff for you
The Nittany Lions have an understandable beef if they win the Big Ten Conference championship Saturday night against Wisconsin.
Paul Zeise: If conference championships matter, Ohio State should not make the College Football Playoff field
The four teams that should have an inside track to the College Football Playoff are Alabama, Clemson, Washington and Penn State/Wisconsin.
Sean Gentille: How did I get here?
Sitting in a desk at the Post-Gazette, six miles from my mom's house in Greenfield, isn't just a privilege. It's a surprise.
Penn State students camp out for championship tickets
Penn State students braved wind chills below zero as they camped out to purchase tickets for the Big Ten Football Championship
PSU coach says conference championship should carry weight on a playoff resume
James Franklin says he isn't stressing the Nittany Lions' playoff chances, but a possible win in the Big Ten championship should help.
Penn State punches ticket to Big Ten title game with win over Michigan State
Penn State beat Michigan State and will play Wisconsin in the Big Ten championship game in Indianapolis.
Surprising Lions in need of help from Ohio State
Penn State will be watching the Michigan and Ohio State game with interest as it could give the Lions a shot at the Big Ten championship.
Penn State players have faith in QB McSorley
It's the redshirt sophomore's team now, and his leadership has been a huge factor in its success this season.
Childhood Rutgers fan Barkley has no regrets about switching loyalties to Penn State
Superstar running back Saquon Barkley says it was best decision of his life.
It's all about focus for Penn State this weekend
Senior Day, Ohio-State-Michigan are potential distractions for Nittany Lions.
Starkey's Mailbag: Who is the worst kind of guest for Thanksgiving football?
Joe Starkey lists the most annoying house guests for Thanksgiving football and offers some insight on why the sky is blue.
Penn State coach James Franklin wants a packed house for Michigan State game
James Franklin calls out LaVar Arrington and the former Penn State linebacker great says he will attend.
Penn State smothers Rutgers in 39-0 win
The Nittany Lions held the Scarlet Knights to 87 total yards, and Saquon Barkley led the offense with 92 yards rushing.
Penn State's New Jersey players revved up to visit Rutgers
The Nittany Lions' Garden State natives are excited to return to their home state.
Judge handling Sandusky's appeal removes himself from case
The judge who has presided over Jerry Sandusky's criminal case for five years is removing himself from the former coach's appeal.
Experience, leadership among PSU WR Hamilton's newest qualities
Though DaeSean Hamilton's numbers have diminished since 2014, the Nittany Lions receiver now offers more than just catches and yards.
Removing more redshirts a possibility for PSU offensive line unit
The Nittany Lions' offensive line lost Paris Palmer and Connor McGovern Saturday, putting them in a tough spot.
Ron Cook: It's not Tuscaloosa, but it sure is good to be a college football fan in our area now
In totally unexpected turnabouts, Penn State and Pitt are rising in stature and West Virginia could win Big 12 title outright...
Penn State's offensive line displays depth at Indiana amid injury woes
Health issues at linebacker and the offensive line have plagued the Nittany Lions this season, but they have yet to slow the team down.
District college basketball roundup: Penn State puts away Duquesne in the second half
Penn State and Duquesne swapped the lead six times in the second half before the Nittany Lions pulled away.
Penn State roars from behind for 45-31 victory
Penn State struck first, scoring on the game's opening drive on a 10-yard touchdown run by Trace McSorley.
Both secondaries on notice as Penn State faces Indiana
The Hoosiers can move the ball through the air but have had trouble stopping opponents from doing the same.
Franklin tries to keep Penn State on even keel
Nittany Lions turn focus to Indiana and their two weapons at quarterback.
Penn State notebook: From packing cashews to starting in the Big Ten
Paris Palmer reached Penn State via junior college after having to take college recruiting into his own hands.
Indiana coach sees nothing new in the way Penn State plays defense
The Hoosiers have scored just one touchdown in each of the past two years against the Nittany Lions.
Penn State overcomes a two-game spike in penalties
But infractions seem to be a minor problem to fix after another impressive Big 10 victory.
Fallout from Penn State scandal continues to upend Mike McQueary's life
Mike McQueary told a jury he goes to bed saying, 'It'll be fine, Mike. You did the right thing. Eventually it'll work out.'
Penn State avoids trap, thumps Iowa, 41-14
Penn State defeated Iowa, 41-14, at Beaver Stadium tonight for its fifth consecutive victory, running its record to 7-2.
Familiarity breeds success for Penn State's up-tempo attack
Penn State's offense is hoping to keep rolling against Iowa tonight.


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The main aim of this paper is to examine the effectiveness one of the two-stage iterative method known as Half-Sweep Arithmetic Mean (HSAM) method in solving the dense linear systems generated from the discretization of the first and second kinds of linear Fredholm integral equations. In addition, the formulation and implementation of the HSAM iterative… (More)
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10 's
Treblebassclef Heart Detail
Treblebassclef Pendant
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Spanish translation of officialdom
Example Sentences Including 'officialdom'
Shelves of paper pressed in on them: charge-sheets, witness reports, pamphlets: they were surrounded by officialdom.YESTERDAY'S SHADOW (2002)
After all, which baby was which came down to no more than a matter of paperwork, of officialdom.The Touch of Innocents
She felt wretchedly alone, not knowing how officialdom operated here.Death Speaks Softly
Trends of 'officialdom'
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Translation of officialdom from the Collins English to Spanish Dictionary
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Format Maps
Results: 1-1 of 1 | Refined by: Original Format: Maps Remove Part of: Library of Congress Online Catalog Remove Contributor: Burleigh, L. R. Remove Location: Herkimer Remove Subject: Middleville, N.Y. (Herkimer) Remove
MapMiddleville, N.Y. Perspective map not drawn to scale. Bird's-eye-view. LC Panoramic maps (2nd ed.), 590 Available also through the Library of Congress Web site as a raster image. Indexed for points of interest. AACR2: 100; 710
- Contributor: Burleigh, L. R. (Lucien R.) - Burleigh Litho - Burleigh, L. R.
- Date: 1890


text:
Oops! Bar: "Saturday night disco on Alona Beach" Panglao Island Nightlife Tip by Yezber
Panglao Island Nightlife: 9 reviews and 16 photos
The Oops! Bar shows movies in the afternoon, offers live music for dinner on Fridays and the only disco in Alona Beach on Saturday night. Don't miss it!
You can also get a good meal (and when you're a long time and way from home you could try something unusual in this part of the world: Mashed potatoes! ;o) and enjoy their happy hour beers, shakes and long drinks.
Dress Code: Hey... - 12 meters to the ocean... Don't show up in a tux!
Address: Close to Atlantis Divers
Directions: When entering Alona Beach from the main road turn left at the end of the road and pass the Safety Stop bar. 30 m down the path you'll find Oops! Bar.
Theme: Dancing
More Nightlife in Panglao Island (1)
More Reviews (3)
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Two 2-BR Units Combined to Form a 4BR. Each 2BR has its own separate main entrance. Tenant can lease two as is or can request to remove the wall dividing the two units.
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GOOD BUY 2BR Now in BGC! Only Less than P120,000/sqm in a prime location!


text:
Mondomarine's M33 EXPLORER for sale with Northrop & Johnson is one of the few custom explorer yachts available in this size range.
The exterior is modern and stylish, offering a large sundeck guest area with a bar, barbecue and alfresco dining space. Her robust lines draw looks in every port she's cruising. Each deck, including the foredeck, offers seating and lounge areas and are designed to provide both ample sun and shade in order to accommodate all guests. She features a tender garage on the bridge deck aft.
The interior is completely customizable, but a proposed layout includes an on-deck, full-beam, well-proportioned owner's suite with private study and en-suite bathroom and four additional cabins, two doubles and two twins, on the lower deck; all staterooms have en-suite facilities. The proposed interior also will have a spacious skylounge dining space.
Build & Design
- Builder:Mondomarine
- Naval Architect:Hydro Tec
- Exterior Designer:Hydro Tec
- Name:M33 EXPLORER
- Yacht Type:Motor Yacht
- Yacht Subtype:Displacement, Expedition Yacht
- Series, Model, Class:M33 Explorer
- Length Overall:33.4m (109' 6")
- Beam:7.9m (25' 11")
- Builder:Mondomarine
- Year of Build:2017
- Hull Type:Full Displacement
- Number of Decks:3
Performance & Capacities
- Max Speed:13.00kn
- Cruising Speed:12.00kn
- Fuel Capacity:55000.00L / 14529.46USG
- Water Capacity:6600.00L / 1743.54USG
- Make:Caterpillar
- Model:C-18 ACERT
- Type:Diesel
- Quantity:2
- Total Power:1430.00hp
- Hull:Steel
- Superstructure:Aluminium
- Deck:Teak
- Guests:10
- Passenger Rooms:5
- Master Rooms:1
- Double Rooms:2
- Twin Rooms:2
**Approximate price conversion.
Contact the broker for more information
Northrop & Johnson Hong Kong
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Special Order
You have until Feb 1, 2017 to return or exchange items purchased between Nov 1, 2016 and Jan 1, 2017.
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Product Highlights
You Pay: $40.00
The black Piece-A-Fur Wind Protection from Bubblebee Industries is for cutting out the desired size and shape for use when mounting a microphone. The high-quality imitation fur is thick, soft, and durable, which covers the microphone to eliminate wind and other noises. In addition, the fur comes in handy if you work with uneven or problematic surfaces that create friction noise when recording.
|Material of Construction
|Imitation fur
|Dimensions (L x W)
|14.1 x 4.3" (36 x 11 cm)
|Not specified by manufacturer


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Assistant Accountant; Job Code ( 1 - 5 yrs)
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Our Client Requires Position: Assistant Accountant Location: Rajkot (Gujarat) Annual Salary: Negotiable, Based On Current Ctc & Relevant Exp (Mention Current Ctc In Cv) Education: B.Com Experience: Post Qualification 1 To 5 Yrs Of Rel...
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Summary We are seeking an Accounting Assistant to report and record ticket sales, prepare deposits and reconcile bank accounts. Dealing with any ticketing accounting situations is a major function of this position. Responsibilities Prepare and...
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Our Client Requires Position: Accountant Location: Sayla Village- Gujarat (On Rajkot - Ahmedabad Highway ) Annual Salary: 240000 INR, Negotiable based on current CTC and relevant experience Other Benefits: Free Lodging and Boarding facility ...
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Learn more about what you receive with purchase of this case.
September 25, 2007
FLOYD EDWARD TEMPLE, JR., ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,v.CIRCUIT CITY STORES, INC., DEFENDANT.ROGER BENNETT AND RICHARD ALLEN COMBS, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,v.WAL-MART STORES, INC., DEFENDANT.
These two cases derive from a settlement I approved in an antitrust class action against Visa U.S.A. Inc. ("Visa") and MasterCard International Inc. ("MasterCard"). See In re Visa Check/MasterMoney Antitrust Litig. ("Visa/MasterCard III"), 297 F. Supp. 2d 503 (E.D.N.Y. 2003), aff'd, 396 F.3d 96 (2d Cir. 2005) (approving settlement), cert. denied, 544 U.S. 1044 (2005). The defendants here -- Circuit City Stores, Inc. ("Circuit City") and Wal-Mart Stores Inc. ("Wal-Mart") -- were members of the plaintiff class in that action and participants in the settlement. Circuit City, Wal-Mart, and many other named plaintiffs claimed on behalf of millions of merchants in the class that Visa and MasterCard had violated the Sherman Antitrust Act, 15 U.S.C. § 1 et seq., by "us[ing] their considerable market power in the credit card market to force [the merchant-plaintiffs], through 'Honor All Cards' policies, to accept Visa and MasterCard debit cards as well." In re Visa Check/MasterMoney Antitrust Litigation ("Visa/MasterCard IV"), No. 96 CV 5238(JG), 2005 WL 2100930, at *1 (E.D.N.Y. Aug. 31, 2005). In agreeing to settle those claims, Visa and MasterCard promised the merchant-plaintiffs, among other things, that they would rescind their Honor All Cards policies and pay $3.05 billion in damages over a ten-year period. Visa/MasterCard III, 297 F. Supp. 2d at 508.
After I approved the Visa/MasterCard settlement, consumers who had purchased goods and services from the merchant-plaintiffs began to file their own antitrust actions against Visa and MasterCard.*fn1 Some of these post-settlement actions also included Visa/MasterCard merchant-plaintiffs as defendants. See Visa/MasterCard IV, 2005 WL 2100930, at *1-*2 (denying motion to enjoin Ohio indirect purchaser action against Visa, MasterCard, and Ohio merchants).
These two putative class actions, by contrast, name as defendants Visa/MasterCard merchant-plaintiffs but not Visa or MasterCard. The plaintiffs in these cases are Tennessee consumers who purchased goods from Circuit City and Wal-Mart in Tennessee. The plaintiffs claim those merchants passed on to them additional costs they incurred due to the unlawful tying practices of Visa and MasterCard. At issue are two virtually identical complaints*fn2 (differing only in the names and description of the parties) alleging violations of (1) § 1 of the Sherman Act, 15 U.S.C. § 1,*fn3 pursuant to § 4 of the Clayton Act, 15 U.S.C. § 15;*fn4 (2) the antitrust statutes of Tennessee and 23 other states; (3) the consumer-protection statutes of 20 states (not including Tennessee); and (4) the unjust enrichment and civil conspiracy laws of Tennessee and 23 other states. Circuit City and Wal-Mart have moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the complaints for failure to state a claim upon which relief can be granted. The parties filed consolidated briefs on the motions, and I heard oral argument on July 11, 2007. For the reasons set forth below, the motion is granted and the complaints are dismissed without prejudice to a timely amendment.
The plaintiffs allege that the defendants illegally imposed "an extra 'sales tax'" on "every retail transaction between [the defendants] and [their] customers in the United States." Compl. ¶ 1. According to the complaints, the "tax" was initially imposed upon the defendants by Visa and MasterCard, who (and here the complaints refer to the defendants' own allegations as plaintiffs in Visa/MasterCard) "used their considerable market power in the credit card market to force [the defendants], through 'Honor All Cards' policies, to accept Visa and MasterCard debit cards as well." Id. ¶ 2. The "alleged illegal tying" of debit cards to credit cards "required [the defendants] to pay excessive interchange rates (i.e., transaction costs) for the debit card purchases they were compelled to accept." Id.
The plaintiffs allege that the defendants paid the Visa and MasterCard interchange fees "for business reasons." Id. ¶ 3. That is, the defendants sought to "protect [their] own profits" by choosing to pay the fees rather than forego accepting Visa and MasterCard credit cards. Id. ¶ 5. According to the plaintiffs, the defendants then "systematically" passed the cost of those fees on to their retail customers by overcharging them for goods and services, id. ¶ 3; see also id. ¶ 6, which constitutes the alleged "sales tax."
Ultimately, the plaintiffs claim, each defendant conspired with Visa, MasterCard, and the numerous financial institutions that are members of Visa and MasterCard, see id. ¶¶ 13-17, through "an agreement, understanding, and concerted action," id. ¶ 46, to set their retail prices high enough to pass on the costs of the interchange fees to their customers. See also id. ¶ 7 ("[The defendants] knowingly agreed to and acceded to contractual relationships and tying arrangements with Visa and MasterCard that violated federal (and state) antitrust laws and passed the resulting costs [they] incurred . . . on to the Plaintiffs and other retail customers."). The conspiracy allegedly included "discussing, forming and implementing agreements to raise and maintain at artificially-high levels the prices for consumer goods and/or services." Id. ¶ 47.
A. The Standard of Review of a Motion To Dismiss
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal, not the factual, sufficiency of a complaint. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ("When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims."); Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) ("At the Rule 12(b)(6) stage, '[t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims.'" (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)) (prior citations omitted)). Accordingly, I must accept the factual allegations in the complaints as true, and draw all reasonable inferences in the plaintiffs' favor. See Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994), cert. denied, 513 U.S. 816 (1994).
The Supreme Court has recently generated some confusion about the standard governing the legal sufficiency of a complaint. In Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1968-69 (2007), the Court abandoned the longstanding rule of Conley v. Gibson, 355 U.S. 41, 45-46 (1957), "that a complaint should not be dismissed for failure to state a claim 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." The Court held in Twombly that an allegation of facts that could equally support findings of either parallel or concerted action is legally insufficient to state a claim under § 1 of the Sherman Act. Rather, such a complaint must include "allegations plausibly suggesting (not merely consistent with) agreement." 127 S.Ct. at 1966. At the same time, the Court in Twombly explicitly refused to adopt a blanket requirement of "heightened fact pleading of specifics" in § 1 cases, id. at 1974, and the even more recent decision in Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (per curiam), reaffirmed that the notice pleading standard still determines legal sufficiency as a general matter. The Second Circuit has tried to reconcile "[t]hese conflicting signals" by the Court, holding that Twombly "is not requiring a universal standard of heightened fact pleading, but is instead requiring a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (Newman, J.).
In deciding the defendants' motion, I may consider documents attached to the complaint as exhibits, or statements incorporated by reference. Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002).
B. The Sherman Act Claim
The defendants move for dismissal of the plaintiffs' Sherman Act § 1 claim on the ground that the complaint's allegations, if true, do not establish that the plaintiffs suffered an injury that warrants recovery under § 4 of the Clayton Act. Principally, the defendants argue that the indirect purchaser rule bars the § 4 claim. I grant the motion because the plaintiffs' alleged antitrust injury is legally insufficient even if I construe the complaint to avoid application of the indirect purchaser rule.
Ordinarily, only a direct purchaser can bring a § 4 action against a seller for wrongful overcharge. This was the rule established by Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977). In Illinois Brick, the Supreme Court held that certain purchasers of concrete blocks could not sue the manufacturers of the blocks for price-fixing when, even though the purchasers bore a passed-on amount of the manufacturer's overcharge, they were not the first, i.e., the "direct," purchasers of blocks in the chain of sales. 431 U.S. at 736. After Illinois Brick, plaintiffs generally cannot recover under § 4 if their claimed injury*fn5 results from an overcharge first imposed upon and then passed on by an intervening upstream purchaser -- there is a strong, if not conclusive,*fn6 presumption against § 4 recovery for plaintiffs who "are not the immediate buyers from the alleged antitrust violators," even in cases in which immediate buyers "pass on 100 percent of their costs to their customers," because allowing any downstream recipients of a passed-on overcharge to sue would almost always create "difficulties of [damages] apportionment, the risk of multiple recovery, and the diminution of incentives for private antitrust enforcement." Kansas v. Utilicorp United, Inc., 497 U.S. 199, 207-08 (1990).
The Second Circuit recently applied the indirect purchaser rule in Paycom Billing Services, Inc. v. MasterCard International, Inc., 467 F.3d 283 (2d Cir. 2006). In Paycom, the court of appeals affirmed the district court's dismissal of a Sherman Act § 1 claim against MasterCard by a merchant that processed payments for website operators, because, among other reasons, certain of the merchant's allegations could not establish antitrust injury.*fn7 467 F.3d at 285. The merchant argued that MasterCard's "chargeback" policy violated § 1. According to the merchant, when a MasterCard cardholder disputes a transaction with a merchant, and the merchant has not seen the cardholder's payment card (e.g., in an Internet transaction), the chargeback policy requires the issuing bank (the bank that issued the card) to be reimbursed by the relevant acquiring bank (the bank through which the merchant is paid). The acquiring bank, in turn, "usually" requires reimbursement by the merchant, who lacks any guarantee of payment by MasterCard. By contrast, in situations in which the merchant has seen the payment card, MasterCard guarantees repayment. Id. at 286-87. The plaintiff also argued that MasterCard violated § 1 by imposing supracompetitive chargeback penalties on acquiring banks, which "often" passed the overcharge on to the merchants. Id. at 288. The court of appeals rejected these arguments. It explained that because "the chargebacks and chargeback fines and penalties are imposed by issuing banks and MasterCard on acquiring banks," which themselves decide whether to pass on those cost of those disbursements to the merchants who handle the disputed transactions, the merchants are "indirect payor[s] of the chargeback and chargeback fines and penalties," and are therefore barred from suing MasterCard by the indirect purchaser rule. Id. at 291-92.
The rule operates with equal force in tying cases like this one. The dealer who purchases illegally tied goods or services suffers a direct antitrust injury, but the consumer who transacts with that dealer does not, because the consumer's damages flow from the dealer's pass-on of an overcharge. See Link v. Mercedes-Benz of N. Am., Inc., 788 F.2d 918, 929-30 (3d Cir. 1986) (claim against Mercedes by consumers who bought auto parts from franchise dealers was barred by Illinois Brick when plaintiffs tried to show that "Mercedes required [the] dealers to purchase parts exclusively from Mercedes as a prerequisite to franchising . . . result[ing] in higher prices of parts to the retail class"); 2 Phillip E. Areeda, Herbert Hovenkamp, & Roger D. Blair, Antitrust Law ¶ 346h, at 370 (2d ed. 2000) (explaining that indirect purchaser rule can apply to tying claims). Application of the rule to the plaintiffs' tying claims is elementary: The plaintiffs allege they bought goods from Wal-Mart and Circuit City, dealers who were themselves supposedly overcharged for tied payment card services. Because the plaintiffs' claimed injury flows entirely from the overcharge first imposed upon and then passed down the stream of commerce by Wal-Mart and Circuit City, the plaintiffs are indirect purchasers for Illinois Brick purposes. They are therefore barred from bringing this § 1 tying action against Visa or MasterCard.
This conclusion does not end the discussion because the plaintiffs have not sued Visa and MasterCard. They have sued Wal-Mart and Circuit City. They suggest this pleading technique extinguishes any indirect purchaser problem because, with respect to Wal-Mart and Circuit City, the plaintiffs' injury was "direct." See Pl. Br. 21 ("Plaintiffs . . . are more accurately labeled as direct purchasers, who purchased goods and/or services from the Defendants."). This argument is right -- when one party to a sale sues the other, the indirect purchaser rule does not apply because there is no intervening transaction -- but it does the plaintiffs no good. If Wal-Mart and Circuit City are going to be the only defendants, then I must dismiss the complaint because it does not allege that the defendants did anything wrong (at least as far as the Sherman Act is concerned). The complaint states that Wal-Mart and Circuit City simply "knew that the interchange fees being charged by Visa and MasterCard were illegal and that Visa and MasterCard were engaged in an illegal tying arrangement," and then "chose, for business reasons," to pay those fees in exchange for the tied products and to "systematically over-price[] [their] goods and/or services" to recoup the loss. Compl. ¶ 3. If the defendants each performed an independent "business" calculation to pass on the Visa/MasterCard overcharge to their customers, that is no § 1 violation because the conduct involved no "contract, combination . . . , or conspiracy." 15 U.S.C. § 1; see also Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 506 (2d Cir. 2004) ("As [its] language states, § 1 targets concerted action between two or more entities. Independent conduct falls outside the purview of this provision." (citing Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 761 (1984))); United States v. Colgate & Co., 250 U.S. 300, 307 (1919) (section 1 applies only to concerted action).*fn8
Dismissal is the right result here, given the Supreme Court's concern with avoiding, in private federal antitrust cases, complicated problems of tracing and apportionment of damages. See Utilicorp United, 497 U.S. at 209. When an antitrust violator and a plaintiff are separated by more than one transaction, the possible causes of economic loss in each transaction multiply, presenting a challenge for the plaintiff looking to trace her injury to the antitrust violation. See Mid-Atl. Toyota Antitrust Litig., 516 F. Supp. 1287, 1292-93 (D. Md. 1981) ("[T]racing problems exist due to difficulties in attributing price increases, or any discrete portion thereof, to the illegal overcharge as opposed to the interaction of supply and demand or other pricing factors . . . ."). As several state courts have explained in addressing indirect purchaser claims against Visa and MasterCard, a "but for" model of damages must grapple with the complex non-cartel market forces that influence consumer transactions involving large retailers like Wal-Mart and Circuit City, not to mention the possibility that those retailers absorbed some nontrivial portion of the Visa/MasterCard overcharge. See, e.g., Gutzwiller v. Visa U.S.A., Inc., No. C4-04-58, 2004 WL 2114991, at *9 (Minn. Dist. Ct. Sept. 15, 2004), abrogated on other grounds by Lorix v. Crompton Corp., 736 N.W.2d 619, 632 (Minn. 2007). Tracing such damages and apportioning them to each plaintiff will be difficult. See also Areeda et al. ¶ 395a, at 555-58 (explaining "practical problems of measurement" of indirect purchaser damages). It is far easier to assess damages in direct purchaser cases, which is one reason why direct purchasers are more efficient § 4 plaintiffs than indirect purchasers. The Visa/MasterCard case illustrates that efficiency, as Wal-Mart and Circuit City have already "vindicate[d] the public interest in antitrust enforcement" by bringing an action against Visa and MasterCard themselves. Associated Gen. Contractors, Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 542 (1983).
The defendants argue that the difficulties of measuring the plaintiffs' damages will be so acute that any such assessment would be speculative. They make their point as part of a larger argument for dismissal on the ground that the plaintiffs lack antitrust standing. See id. at 540-45 (setting forth factors relevant to antitrust standing, including whether alleged injury is speculative); Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 443 (2d Cir. 2005)(same). I decline to dismiss the complaint on antitrust standing grounds, however, for two reasons. First, while the defendants are correct that proof of damages in this case will be difficult, they have not convinced me that any evidence of damages will be insufficient as a matter of law. After all, antitrust plaintiffs need not prove damages with exactitude at any stage, much less in the pleadings. "[I]t will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference." Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563 (1931); see also New York v. Julius Nasso Concrete Corp., 202 F.3d 82, 89 (2d Cir. 2000) (holding that antitrust plaintiff "need only provide the court with some relevant data from which the [factfinder] can make a reasonable estimated calculation of the harm suffered. In this way, the finder of fact can make a just and reasonable inference of damages based on the proof available" (internal quotation marks omitted)).The defendants have not demonstratedthat no just and reasonable inference of damages is possible in this case. Second, I have no need to address the question whether the plaintiffs' injury is speculative, because I have already concluded dismissal is warranted on the ground that the plaintiffs have not established that they suffered an antitrust injury in the first place. See Balaklaw v. Lovell, 14 F.3d 793, 797 n.9 (2d Cir. 1994) ("[C]courts must [first] determine whether the plaintiff suffered an antitrust injury," and [i]f the answer to that question is yes, they must then determine whether any of the other factors [of the antitrust standing inquiry], largely relating to the directness and identifiability of the plaintiff's injury, prevent the plaintiff from being an efficient enforcer of the antitrust laws.").
The plaintiffs would have me deny the motion to dismiss, despite established policy against devoting judicial resources to determining the antitrust injury of indirect purchasers, because "[w]ithout the actions at bar, [they] -- the only truly innocent victims in the entire retail chain -- are left without a remedy." Pl. Br. 5. This point has force. Notwithstanding the daunting damages issues alluded to above, it seems clear to me that consumers like Temple and Bennett, not merchants like Wal-Mart and Circuit City, were likely the principal victims of the challenged tying arrangements. See Visa/MasterCard III, 297 F. Supp. 2d at 511. If the plaintiffs' allegations are true, viewing this case in combination with the settlement of the merchants' class action suggests that the indirect sellers may have been overcompensated while the indirect purchasers have been left in the red (at least with respect to their federal claims). But the Supreme Court has already balanced the possibility of perfect compensation with the need for administrative efficiency, and concluded that it is better to sacrifice the former for the latter. See Illinois Brick, 431 U.S. at 737 ("However appealing this attempt to [thoroughly] allocate the overcharge might seem in theory, it would add whole new dimensions of complexity to treble-damages suits and seriously undermine their effectiveness."); see also Carter v. Berger, 777 F.2d 1173, 1176-77 (7th Cir. 1985) (explaining how indirect purchaser rule also increases deterrence and avoids multiple recoveries).
The plaintiffs also seek to avoid dismissal by alleging a "combination and conspiracy" among the defendants, Visa, and MasterCard, involving "an agreement, understanding, and concerted action, the objective of which was to raise and maintain at artificially-high levels the prices of consumer goods and/or services." Compl. ¶ 46. Courts have recognized that a vertical conspiracy between direct purchaser and direct seller can make the indirect purchaser's injury cognizable for Illinois Brick purposes. See In re Nifedipine Antitrust Litig., 335 F. Supp. 2d 6, 14-15 (D.D.C. 2004) (collecting cases).*fn9 This is in part because a vertical conspiracy can strip the Illinois Brick complexity out of calculating an indirect purchaser's damages. If the indirect purchaser paid an anticompetitive price due to a conspiracy that included the indirect seller, then the calculation of damages requires no tracing or apportionment, as a pass-on calculation would. The illegal agreement between the conspirators is said to eliminate the possibility that independent market forces caused the anticompetitive price increase.See Mid-Atlantic Toyota, 516 F. Supp. at 1295-96; Areeda et al. ¶ 346h, at 369-70. The plaintiffs argue that such a conspiracy obtains in this case, so their federal claim should not be barred by Illinois Brick.
I need not determine whether allegations of a vertical conspiracy eliminate Illinois Brick problems, whether as a general matter*fn10 or in tying cases particularly,*fn11 because in light of the Supreme Court's recent decision in Twombly the plaintiffs' allegations of a vertical conspiracy are insufficient to state a claim upon which relief can be granted.
As discussed above, the Court held in Twombly that a § 1 allegation of concerted action was legally insufficient when it alleged mere "parallel conduct unfavorable to competition" without "some factual context suggesting agreement, as distinct from identical, independent action." 127 S.Ct. at 1961. The Twombly complaint had claimed that certain telecommunications providers conspired to artificially inflate the price of local telephone and high-speed Internet services, thereby raising the entry costs of competitor local exchange carriers. According to the complaint, the defendants engaged in unfair parallel conduct that adversely affected the local exchange carriers, and made agreements with each other not to compete. See id. at 1962-63. The Court found these allegations insufficient, holding that "an allegation of parallel conduct and a bare allegation of conspiracy" does not state a § 1 claim. Id. at 1966. Rather, the Court required "allegations plausibly suggesting (not merely consistent with) agreement." Id. Under Twombly, then, an allegation of facts that can equally support a possible finding of parallel or concerted conduct is legally insufficient to state a claim under § 1.
As in Twombly, the complaints here allege conduct by the defendants on one hand, and by Visa and MasterCard on the other, that is equally explained by independent decision as by a vertical conspiracy. The plaintiffs claim that the defendants elected to pay the interchange fees imposed by Visa and MasterCard to "protect [their] own profits." Compl. ¶ 5; see also id. ¶ 3 ("for business reasons"). According to the complaints, the defendants then overcharged their customers "[t]o make up for paying these excessive transaction fees." Id. By itself, such passing-on could be due to an independent economic decision by the defendants, as the complaint appears to recognize. See id. ¶ 6 ("[Defendants'] economic expert in the merchants' action stated that '[t]he interchange fee increases the merchants' effective selling costs by acting as a tax on debit card transactions. As a result, the merchant must raise overall prices on their goods and services in order to recover the higher costs." (emphasis added)). Or the passing-on could conceivably be due to a vertical conspiracy between the defendants and Visa and MasterCard. But Twombly requires that the plaintiffs allege facts that push the claim of conspiracy over "the line between possibility and plausibility of entitlement to relief." Twombly, 127 S.Ct. at 1966 (internal quotation marks and alterations omitted). The plaintiffs allege the defendants "entered into an illegal arrangement, contract, agreement, trust, or combination with" Visa and MasterCard, Compl. ¶ 1, "participated in a conspiracy" with Visa and MasterCard, id. ¶ 4, "engaged in a continuing combination and conspiracy" with Visa and MasterCard, id. ¶ 45, and so on. But the complaints mention no facts to support the claim that such an agreement or conspiracy existed, and the "naked assertion of conspiracy," however often repeated, does not do the trick. Twombly, 127 S.Ct. at 1966. Because the complaints, when construed to allege a vertical conspiracy including Visa and MasterCard to avoid application of the indirect purchaser rule, still lack the requisite "amplification" of allegations of such a conspiracy, I must grant the motions to dismiss the federal antitrust claim. Iqbal, 490 F.2d at 158.*fn12
C. The Non-Tennessee State Law Claims
The defendants move to dismiss the claims arising under the laws of states other than Tennessee, arguing that the plaintiffs lack standing to bring them. I agree. The complaints allege that the plaintiffs are citizens and residents of Tennessee, who used debit cards "to purchase goods and/or services [from the defendants] in . . . Tennessee" at prices that "were inflated due to [the defendants'] illegal conduct." Compl. ¶ 12. Nowhere do the plaintiffs allege they were harmed within any other state's jurisdiction.
The plaintiffs must present a justiciable "Case[]" or "Controvers[y]" to invoke the jurisdiction of this Court. U.S. Const. art. III, § 2, cl. 1. They present no such case or controversy if they lack standing to sue, i.e., if they allege no (a) injury-in-fact that is (b) fairly traceable to the defendants' allegedly unlawful conduct and (c) likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Alliance for Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 85 (2d Cir. 2006). Here, the plaintiffs allege no injury within any state other than Tennessee. Such injuries, if they occurred, were suffered by other people. The plaintiffs therefore have no standing to bring claims for injuries under the laws of the non-Tennessee states, and I therefore dismiss those claims for lack of subject matter jurisdiction.
The plaintiffs do not dispute that they lack standing to advance non-Tennessee state law claims on behalf of third parties. Rather, they argue that "it is inappropriate at this juncture in these proceedings to address Plaintiffs' standing with respect to other states' laws, as such a determination is more properly addressed during the class certification proceedings." Pl. Br. 35. I disagree. The Supreme Court has made clear that because Article III standing goes to a federal court's jurisdiction, the court should consider standing as a threshold issue. See City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983); Warth v. Seldin, 422 U.S. 490, 498 (1975).
The plaintiffs attempt to analogize their putative class action to the mass-tort global asbestos settlements at issue in Amchem Products, Inc. v. Windsor, 520 U.S. 591 (1997), and Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), in which the Court held that the class certification issues presented by the settlements were "logically antecedent" to Article III standing considerations. The analogy fails. The class actions in Amchem and Ortiz were pre-negotiated global settlements filed for the sole purpose of settling a vast number claims of actual and potential harm; as I have explained elsewhere, "in both cases, the Supreme Court did not conduct a threshold analysis of the standing of so-called 'exposure only' claimants, perhaps because its ultimate rejection of the class certification made that analysis unnecessary -- there could be no further litigation (or settlement) without court approval of the class." In re AIG Advisor Group Sec. Litig., No. 06 CV 1625(JG), 2007 WL 1213395, at *4-*6 (E.D.N.Y. Apr. 25, 2007) (explaining narrow application of Amchem and Ortiz). In this case, by contrast, the case can move forward on the plaintiffs' Tennessee claims, so a rejection of class certification would not be dispositive. Accordingly, I decline to postpone consideration of the plaintiffs' Article III standing.
D. The Tennessee State Law Claims
The remaining claims in this action require application of Tennessee law. I conclude that the parties should have the opportunity to be heard with respect to whether this case should now be transferred back to the federal court in Tennessee, in deference to that court's expertise in the applicable law.
For the reasons set forth above, the plaintiffs' Sherman Act claims are dismissed for failure to state a claim upon which relief can be granted, the plaintiffs' claims pursuant to laws of states other than Tennessee are dismissed for lack of standing, and the parties are directed to show cause by letter to the Court on or before October 5, 2007 why the case should not be transferred back to the court in which it was filed -- the United States District Court for the Eastern District of Tennessee.
So ordered.
John Gleeson, U.S.D.J.
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2 bungalows for sale in WA2Did you mean?
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3 Bedroom Detached Bungalow For Sale
Parkside Road, Lowton, Warrington, WA3
Offering an abundance of living space both internally and externally this property would make an ideal family home. Arranged over two floors this property boasts a large entrance hallway, four generous reception rooms all with options for use, a fully fitted kitchen...
3 Bedroom Semi Detached Bungalow For Sale
Tennyson Drive, Warrington, Cheshire, WA2
Three bedroom semi detached dormer bungalow occupying a superb size plot. Boasting generous living space throughout this property briefly comprises, large open entrance hallway, spacious lounge, separate dining room, fully fitted kitchen, double bedroom and a...
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What are you most proud of? My husband seemed to like the Father's Day present and keeps it on his dresser. I really like to decoupage, that is 'my way'. I assemble items with a certain subject in mind and then 'decoupage' into a whole project, you might say. What advice would you give someone starting this project? Think the project through thoroughly from start to finish, first. Make sure have all items with you when starting project. Nice to be doing a project based on something you really care about. I am a novice with decoupage and like to sometimes slather 'it' on and have even.used my own recipe of water to glue conglomeration. I am now educating myself more on the subject but what I have done so far looks acceptable. Obviously no runs and drips allowed on projects of decoupage, be tidy. No excessively shiney surfaces for me.
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