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Read the following excerpt from a US court opinion: ``` figure by calculating the amount that MN Supply would have earned had it invested the profits it lost from 1997 to 2002 at an eighteen percent rate of return. Trial Tr. at 809-10. It appears to us that this figure therefore represents “prejudgment interest” under Minnesota law. See ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn.Ct.App.1992) (interpreting expert’s “calculation of the time value of the losses, i.e., what the ZumBerges would have accrued in interest if they would have put the loss amount in the bank each year earning 10% interest” as “prejudgment interest” such that expert’s calculation should not have been considered by the jury); Security Prot. Servs., Ltd. v. Evenson, Nos. C4-92-556, C8-92-561, C6-92-1336, 1993 WL 14338, *3 (Minn.Ct.App. Jan.26, 1993) . We conclude that the District Court correctly ``` What is the most suitable continuation to the opinion? Your options are: A. holding that the proper measure of damages was the present value of all unaccrued payments that the plaintiff would have received if the contract had been performed B. holding that reinstatement was insufficient to remedy a wrongful suspension and that back pay must be awarded as the amount he would have received had he been retained in his job during that period less any amount he might have earned elsewhere C. holding that experts calculation of amount which plaintiff would have earned had it invested all of the money that it sought as damages was evidence of prejudgment interest that should not have been considered by the jury D. holding that regardless of insurers good faith denial of coverage plaintiff is entitled to recover interest to put it in position it would have been in if coverage had not been denied E. holding that the otherwise harmless violation of the automatic stay did not suffice to deprive the irs of the postpetition interest setoff to which it would have been entitled had it first sought a lifting of the stay from the bankruptcy court Reply with [A, B, C, D, E] only.

C

casehold

Read the following excerpt from a US court opinion: ``` is-not that the affidavit fails to “articulate ... the basis for [Brannan’s] belief’ or that it was merely “eonelusory.” Kelly, 21 F.3d at 1555. Rather, the court understands the Plaintiffs to be saying that Brannan intentionally falsified, or recklessly made, his affidavit so that it does, on its face, establish probable cause. Cases which have discussed the arguable probable cause standard have not been concerned with alleged lies by the affiant officer. In Lowe, for example, there was “no dispute as to the facts in the possession of [the defendant police officers] at the time of the issuance of the search warrants.” Id. at 1569. The question was whether those facts constituted arguable probable cause to pursue a warrant against the Plaintiffs. Id.; see also Swint, 51 F.3d at 996 . Plaintiffs have not even attempted to show ``` What is the most suitable continuation to the opinion? Your options are: A. holding that there was not arguable probable cause to conduct extensive searches on night club and its patrons where only evidence was of one patron selling drugs B. holding that qualified immunity applies only if an officer had arguable probable cause to arrest C. holding that search warrant for tavern and its bartender did not permit body searches of all bars patrons D. holding that consent searches do not require probable cause to justify the search of a home E. holding that detaining club patrons in handcuffs for three hours after subjecting them to strip searches and warrant checks was unlawful Reply with [A, B, C, D, E] only.

A

casehold

Read the following excerpt from a US court opinion: ``` Ind. 249, 297 N.E.2d 425, 427 (1973). In this case the injury to Milledge's ankle is without explanation. It is thus classified as a neutral risk in that the cause of the injury is neither personal to Milledge nor distinctly associated with her employment. The injury would not have occurred but for the fact that the conditions and obligations of her employment placed Milledge in the parking lot where she was injured. In turn, The Oaks has not carried its burden of demonstrating that this unexplained accident, which precipitated the ankle injury, was the result of idiopathic causes. Milledge is thus entitled to compensation under the Indiana Worker's Compensation Act. This does not however end our analysis. Milledge sought worker's compensation not for her ankle injury alone, bu 000) ; Workmen's Comp. Appeal Bd. v. Borough of ``` What is the most suitable continuation to the opinion? Your options are: A. holding that consent to search premises includes consent to search washing machine on those premises B. holding that negligence in premises defect context generally means failure to use ordinary care to reduce or eliminate unreasonable risk of harm created by premises condition about which owner or occupier of land is aware C. holding that arising from on premises accidentseven those which under other facts might present a neutral risk ie weather conditionsare compensable D. holding that criminal conduct on premises was not foreseeable E. holding that a release of such claims or other matters arising from the beginning of time to the date of execution of this agreement did not protect the defendant from liability arising from unconstitutional conduct that occurred after the agreements execution Reply with [A, B, C, D, E] only.

C

casehold

Read the following excerpt from a US court opinion: ``` afforded the plan’s administrator discretion in determining eligibility payments, and thus, an ar bitrary and capricious standard of review applied to the administrator’s decision to terminate benefit payments. Id. at 505. Likewise, in Donato v. Met. Life Ins. Co., 19 F.3d 375 (7th Cir.1994), the Seventh Circuit found that the language “upon receipt of proof’; “[a]ll proof must be satisfactory to us”; and “must describe the event, the nature and the extent of the cause for which a claim is mad rd of review applies. The fact that the plan’s language does not contain an explicit grant of discretionary authority to the plan’s administrator is irrelevant. Id.; Sisters of the Third Order of St. Francis v. SwedishAmerican Group Health Benefit Trust, 901 F.2d 1369, 1371 (7th Cir.1990) . Moreover, the Seventh Circuit has repeatedly ``` What is the most suitable continuation to the opinion? Your options are: A. holding that magic words conveying discretion are unnecessary B. holding failure to exercise discretion is abuse of discretion C. holding that a jury could find an intent to discriminate from evidence of use of code words such as all of you and one of them the words themselves are only relevant for what they reveal the intent of the speaker D. recognizing that the court must give meaning to all the words in the claims E. holding that if words of statute are unambiguous there is no room for judicial construction Reply with [A, B, C, D, E] only.

A

casehold

Read the following excerpt from a US court opinion: ``` report promptly their complaints at prison or risk forfeiture of their claims will likely result in “a more efficient grievance procedure” and “lead to the improvement of prison conditions”). Moreover, inmates required to comply with the exhaustion requirement may realize that "monetary damages are unnecessary or that monetary damages would not fully compensate [them] for [their] injuries.” Sal-lee, at 771. 21 .This conclusion is reached, in part, upon review ol an affidavit filed by PRCC Institutional Ombudsman Bedwell and copies of plaintiff’s grievances. These documents go solely toward Couch's argument that plaintiff failed to exhaust his administrative remedies and are properly considered in evaluating Couch's 12(b)(1) motion. See Williams v. U.S., 50 F.3d 299, 304 (4th Cir.1995) . 22 . DOP 10-2.10 states that: [plrior to ``` What is the most suitable continuation to the opinion? Your options are: A. holding that a court may review any evidence such as affidavits and testimony to resolve factual disputes concerning the existence of jurisdiction B. holding that in a motion to dismiss for lack of subject matter jurisdiction a court may resolve disputed factual issues by reference to evidence outside the pleadings including affidavits C. holding that a court may consider materials outside the pleadings to determine its jurisdiction D. holding that in ruling on a rule 12b1 motion the court may consider exhibits outside the pleadings to resolve factual disputes regarding jurisdiction E. holding that on a rule 12b1 motion challenging subjectmatter jurisdiction the court has authority to consider matters outside the pleadings Reply with [A, B, C, D, E] only.

D

casehold

Read the following excerpt from a US court opinion: ``` also be liable for all injuries and property damage sustained by any person or domestic animal as a result of an attack by the dangerous dog. Id. § 2602(12). It is unclear why the Legislature provided for two definitions of one single term in two different subsections of the same statute. Nonetheless, ‘“[i]t is well established the [courts] should, if possible, construe statutes harmoniously.” V.I. Taxi Assoc. v. W. Indian Co., Ltd., 66 V.I. 473, 484 (V.I. 2017) (internal quotations omitted); see also Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016) (‘“A court must therefore interpret the statute as a symmetrical and coherent regulatory scheme, and fit, if possible, all parts into an harmonious whole.”) (internal citations omitted); Shumate v. Patterson, 943 F.2d 362, 365 (4th Cir. 1991) . Thus, all of the terms defined in section ``` What is the most suitable continuation to the opinion? Your options are: A. holding that statutes dealing with same subject matter should be construed with reference to each other as parts of one system B. recognizing possible conflict between the cases C. recognizing the rule that whenever possible statutes should be read in harmony and not in conflict with each other D. recognizing the conflict E. recognizing conflict Reply with [A, B, C, D, E] only.

C

casehold

Read the following excerpt from a US court opinion: ``` that a plaintiff may ultimately lose his ease is not in itself a sufficient justification for the assessment of fees.” Id. at 986 (quoting Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980)). The district court declined to find the complaint “meritless for purposes of § 1988 fees.” R. 304 at 11. As we have made clear in the sanctions discussion above, this is not a case in which the attorneys and parties have filed clearly wasteful or frivolous papers. Nor have they conducted an insufficient legal and factual investigation before filing meritless claims. Therefore, the district court did not abuse its discretion in denying attorneys’ fees pursuant to § 1988. See Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978) ; Munson v. Milwaukee Bd. of Sch. Directors, ``` What is the most suitable continuation to the opinion? Your options are: A. holding that a court may award attorneys fees in a successful lmrda action B. holding a district court may in its discretion award attorneys fees upon a finding that plaintiffs action was frivolous unreasonable or without foundation even though not brought in subjective bad faith C. holding that a finding of plaintiffs bad faith is not a prerequisite to the trial courts exercise of discretion to award fees D. holding that courts may award prevailing title vii defendant attorney fees upon a finding that the plaintiffs action was frivolous unreasonable or without foundation even though not brought in subjective bad faith and fees also may be awarded if plaintiff continued to litigate after its action clearly became frivolous unreasonable or without foundation E. holding that a district court may award attorneys fees while the merits are on appeal Reply with [A, B, C, D, E] only.

B

casehold

Read the following excerpt from a US court opinion: ``` an expert voice identification analysis because his “decision on the trial strategy made that motion unnecessary.” He also testified that, to his knowledge, there was no local expert witness but that he "made the strategic choice before needing to attempt to locate an expert.” 7 . While none of our previous cases explicitly hold that a failure to investigate can be deficient only if such failure leads to the exclusion of admissible evidence, the underlying assumption in our prior cases is that an investigation would have resulted in, at the very least, admissible evidence. See, e.g., Moore v. Johnson, 194 F.3d at 604 (finding failure to investigate defendant's background and the facts underlying an "accidental shooting” theory was professionally unreasonable); Bryant, 28 F.3d at 1418 ; Loyd, 977 F.2d at 157-59 (holding failure to ``` What is the most suitable continuation to the opinion? Your options are: A. holding that there was not deficient performance with regard to the failure to investigate the alibi defense claim because the available testimony provided at best an incomplete alibi as the testimony still allowed for a two to threehour window for the defendant to commit the murder B. holding that the failure to recognize every possible legal argument did not render counsels performance constitutionally deficient C. recognizing that defendant must show 1 that counsels performance was deficient and 2 that counsels errors prejudiced the defense D. holding counsels failure to investigate alibi witness and eyewitnesses to the crime amounted to constitutionally deficient performance E. holding that counsels performance was deficient for failing to investigate readily available evidence of mental impairment Reply with [A, B, C, D, E] only.

D

casehold

Read the following excerpt from a US court opinion: ``` the conduct of defendant’s business,” Tuxxedo Network, Inc. v. Hughes Communications Carrier Servs., Inc., 753 F.Supp. 514, 517 (S.D.N.Y.1990) (Cedarbaum, J.), satisfying the second prong of the test. Fitzpatrick avers that the services performed by excess line brokers are so important that if their services were not available Anglo would have to perform their role itself. Anglo argues that Anglo could not take over the tasks of excess line brokers because insurance brokerage and underwriting are completely different and because excess line insurance is rarely written without a broker. This dispute misses the point of the test, which is the importance of the agents’ services to the principal, not the feasibility of the principals’ performing the agents’ role. Gelfand, 385 F.2d at 121 (emphasis added). The fact that excess line ``` What is the most suitable continuation to the opinion? Your options are: A. holding that test is whether services provided by new york representative are sufficiently important to the foreign corporation that if it did not have a representative to perform them the corporations owm officials would undertake to perform substantially similar services B. holding that a financial guaranty payable in new york is a contract to perform services in new york subjecting foreign guarantor to jurisdiction under 302a1 C. holding that plaintiff who provided similar services which were arguably attendant care services under state law fell within the exemption D. holding that a a representative plaintiff acts as fiduciary for the others requiring the representative to act in the best interest of class E. holding that an architects violation of a licensing statute did not render the contract to perform architectural services void and unenforceable Reply with [A, B, C, D, E] only.

A

casehold

Read the following excerpt from a US court opinion: ``` the poisonous tree. At the hearing in this matter, AUSA Norm Cairns acknowledged that the Tenth Circuit’s case law examining this question does not resolve the instant inquiry. See 2/3/11 Tr. of Proceedings at 70 (“[W]e hope to get some clarification from this Court, potentially from the Tenth Circuit, one way or the other.... [This] was something of a test case[J”). The Court has therefore looked beyond Tenth Circuit authority to out-of-circuit case law, as well as a district court opinion from elsewhere in this Circuit, for guidance. Whereas the Tenth Circuit has expressly held that identity evidence may be suppressed as fruit of the poisonous tree, other circuit courts have held precisely the opposite. See, e.g., United States v. Farias-Gonzalez, 556 F.3d 1181, 1182 (11th Cir.2009) ; United States v. Garcia-Beltran, 443 F.3d ``` What is the most suitable continuation to the opinion? Your options are: A. holding that malicious prosecution claim accrues when underlying prosecution is terminated B. holding probation revocation is not a stage of a criminal prosecution C. holding that identityrelated evidence is not suppressible when offered in a criminal prosecution only to prove who the defendant is D. holding that the due process clause is violated if the prosecution fails to disclose material evidence that is favorable to a criminal defendant E. holding that some of the testimony is not being offered to prove the truth of the matter asserted and there fore is not hearsay Reply with [A, B, C, D, E] only.

C

casehold

Read the following excerpt from a US court opinion: ``` where Board fails to provide adequate statement of reasons or bases, the Court is precluded from effectively reviewing the Board’s adjudication). B. Inadequate Notice With regard to his remaining claims, Mr. Coker seeks remand and argues on appeal that the Secretary failed to provide the notice required by 38 U.S.C. § 5103(a). In supplemental briefing, he asserts that the Secretary “never advised through a VCAA notice letter or otherwise on what evidence would be needed to substantiate any of the aforementioned claims.” Appellant’s Supplemental Brief at 2-3. In this instance, however, the Board found that Mr. Coker had received notice “through the issuance of [Statements of the [C]ase and [Supplemental [Sta , 2005); see also Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir.1995) ; Wilson v. Jotori Dredging, Inc., 999 F.2d ``` What is the most suitable continuation to the opinion? Your options are: A. holding that in appellate proceedings the decision of the trial court has the presumption of correctness and the burden is on the appellant to demonstrate error B. holding that error will not be presumed from a silent record and that without the relevant transcript there is insufficient evidence to review the alleged error and the appellant carries the burden of demonstrating the alleged error in the record C. holding that the appellant who comes to the court of appeals as the challenger of the underlying decision bears the burden of demonstrating the alleged error and the precise relief sought and where the appellant fails to meet this burden the court of appeals is not required to manufacture the appellants argument citing fed rapp p 28a and natl commodity barter assn v gibbs 886 f2d 1240 1244 10th cir1989 D. holding that an appellant bears the burden of demonstrating error on appeal E. holding the appellant carries the burden of demonstrating error in the family courts findings of fact Reply with [A, B, C, D, E] only.

C

casehold

Read the following excerpt from a US court opinion: ``` information from class counsel on the risks and potential value of the litigation;” the “contingency, novelty and difficulty” of the case; and “the skill shown by counsel”). “As always, when determining attorneys’ fees, the district court [is] guided by the fundamental principle that fee awards out of common funds be reasonable under the circumstances.” Glass v. UBS Fin. Servs., Inc., 2007 WL 221862, *14 (N.D.Cal.2007), aff'd, 331 Fed.Appx. 452 (9th Cir.2009) (internal quotation marks and emphasis omitted). 1.The Result Obtained for the Class. “The result achieved is a significant factor to be considered in making a fee award.” In re Heritage Bond Litig., 2005 WL 1594403, *19 (C.D.Cal.2005); see Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983) . As the court previously found, the settlement ``` What is the most suitable continuation to the opinion? Your options are: A. holding that the most critical factor is the degree of success obtained B. holding that the standard for permanent injunction is the same as that for preliminary injunction with the one exception being that the plaintiff must show actual success on the merits rather than likelihood of success C. holding that status as a prevailing party does not by itself entitle a plaintiff to attorneys fees rather the most critical factor in determining a fee awards reasonableness is the degree of success obtained emphasis added D. holding that the quantity of relief obtained as compared to what the plaintiff sought to achieve are key elements in determining the degree of success E. recognizing that the third factor permanence is the most important Reply with [A, B, C, D, E] only.

A

casehold

Read the following excerpt from a US court opinion: ``` identifying physical characteristic outside [the Fifth Amendment’s] protection.” Gilbert v. California, 388 U.S. 263, 266-67, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). This is so because “[t]he handwriting itself (as opposed to the content of a written statement) is physical, not testimonial evidence.” United States v. McDougal, 137 F.3d 547, 559 (8th Cir.1998) (citing Gilbert, 388 U.S. at 266-67, 87 S.Ct. 1951). Thus, it is settled that a defendant in a criminal case may be compelled to furnish a handwriting exemplar and it is also settled that “introducing samples of the defendant’s handwriting at trial do[es] not violate the Fifth Amendment privilege against self-incrimination.” McDougal, 137 F.3d at 559. A prosecutor is likewise permitted to comment on, and indeed prese 10th Cir.1978) . Given these conclusions, it is now necessary ``` What is the most suitable continuation to the opinion? Your options are: A. recognizing that defendant had no right to withhold the requested exemplars B. recognizing right to withhold lifesustaining treatment from a formerly competent adult in a permanent vegetative state C. holding that a plaintiff had no injury in fact and consequently no standing when it had no enforceable contract right against the defendant D. recognizing the right to counsel on appeal E. holding defendant had no constitutional right to a mitigation specialist or a right to an effective one Reply with [A, B, C, D, E] only.

A

casehold

Read the following excerpt from a US court opinion: ``` one-year period was interrupted from May 23, 1997, through December 14, 2006, due to the pendency of the first (1997) PCR application. See id. § 2244(d)(2). Unless some other tolling mechanism is in play, however, the one-year period expired on December 19, 2006 — more than eight months before the petitioner first sought federal habeas relief. In this venue, the petitioner argues that both his second PCR application and his Rule 35(a) motion constituted tolling mechanisms. If this argument is even partially correct (that is, if either of these filings served to toll the limitations period), the federal habeas petition would be timely. Accordingly, we inquire as to the effect of each filing. A. The 2005 PCR Application. Although the petitioner failed to mention the 2005 PCR applic 03) ; Hodge v. Greiner, 269 F.3d 104, 107 (2d ``` What is the most suitable continuation to the opinion? Your options are: A. holding that an unauthorized motion for rehearing does not toll defendants time for filing a notice of appeal B. holding that the timely filing of a motion to reopen or reconsider with the bia does not toll the time period for seeking appellate court review and that the mere act of filing the motion does not render nonfinal the underlying bia decision C. holding filing of motion for reconsideration does not toll the 30day deadline for filing petition for review D. holding that the filing of a motion for reconsideration does not toll the period for seeking judicial review of the underlying order E. holding for the same reason that motion for appointment of counsel does not toll the period for filing a federal habeas petition Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` his version of the incident. McCollough argues that removal of “allegedly” from his statement “conveyed a completely different meaning to the average person” in that the revised statement read as an admission by him that he hit a player with a ball. McCollough’s Brief in Response to Cross-Appeal at 10. [35] The parties’ arguments demonstrate quite clearly that there is a genuine issue of material fact as to the defamatory imputation of the altered statement that was published. The true implication of the statement necessarily requires consideration of extrinsic evidence by the trier of fact. [36] The Defendants also argue that the statement cannot be defamatory because it accurately states what occurred. See Gatto v. St. Richard School, Inc., 114, N.E.2d 914, 924 (Ind.Ct.App.2002) . They point to affidavits of witnesses who ``` What is the most suitable continuation to the opinion? Your options are: A. holding that truth is a complete defense to an action for libel B. holding that probable cause is a complete defense to an action for false arrest C. recognizing a criminal defendants right to present a complete defense D. holding that truth is a complete defense to defamation E. holding that insanity is a complete defense to the criminal charge Reply with [A, B, C, D, E] only.

D

casehold

Read the following excerpt from a US court opinion: ``` entity from Masco because after the trial, La Gard merged with Masco and is now a division of Masco. Hence, we hold that standing was not, and is not, lacking on the part of either La Gard or Masco in this appeal. We, therefore, have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1) (1994), and Mas-Hamilton’s motion to dismiss for lack of jurisdiction is denied. II. Infringement A patent infringement analysis involves two steps. First, the court determines the scope and meaning of the asserted claims. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 372-74, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). Claim construction is a question of law, reviewed non-deferentially on appeal. See Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456, 46 USPQ2d 1169, 1174 (Fed.Cir.1998) (in banc) . Second, the properly construed claims are ``` What is the most suitable continuation to the opinion? Your options are: A. holding we review claim construction de novo on appeal B. holding that we review constitutional challenges de novo C. holding that we review issues of statutory interpretation de novo D. holding that we review a district courts interpretation of a statute de novo E. holding that review of the construction of a sentencing statute is de novo Reply with [A, B, C, D, E] only.

A

casehold

Read the following excerpt from a US court opinion: ``` himself. To the extent VanHoesen sought new counsel because his third assigned attorney proposed to pursue an insanity defense, the request is properly reviewed in the context of defendant’s unwillingness to work with any of the three attorneys appointed for him. See United States v. Schmidt, 105 F.3d 82, 89 (2d Cir.1997) (rejecting defendant’s claim that “she was coerced into self-representation because the district court, on the eve of trial, refused to replace her third court-appointed attorney”). In sum, a court does not deprive a defendant of the Sixth Amendment right to counsel when it is the defendant himself who creates the conflicts that result in a breakdown of attorney-client communication. See generally Morris v. Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) . 3. Sufficiency of the Evidence Having failed ``` What is the most suitable continuation to the opinion? Your options are: A. holding that there is no due process right to appellate review B. holding there is no meaningful distinction between due course and due process C. recognizing that where there is no express attorneyclient relationship there may exist nevertheless a fiduciary obligation or an implied professional relation citations brackets and ellipsis omitted D. holding that the information is not protected by attorneyclient privilege E. holding that there is no right to a meaningful attorneyclient relationship Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` 72 S.Ct. 93, 96 L.Ed. 59 (1951)). In fact, the hotel staff had no authority even to enter Bass’s room, except for housekeeping purposes, unless (1) Bass himself consented or (2) his tenancy was terminated. United States v. Rahme, 813 F.2d 31, 34 (2d Cir.1987) (noting that when “a hotel guest’s rental period has expired or been lawfully terminated, the guest does not have a legitimate expectation of privacy in the hotel room”); United States v. Rambo, 789 F.2d 1289, 1295-96 (8th Cir.1986). In this case, Bass’s tenancy had not been terminated by eviction at the time the police searched his hotel room. Although the hotel manager testified that he personally considered Bass evicted once he had been arrested, the manager’s personal beliefs have no legal import. See Stoner, 376 U.S. at 490 . The manager informed no one at the time that ``` What is the most suitable continuation to the opinion? Your options are: A. holding that forfeiture statute is subject to the fourth amendments prohibitions against unreasonable searches and seizures B. holding that the fourth amendment proscription against unreasonable searches and seizures was applicable to the states under the fourteenth amendment so that evidence seized in violation of the constitution could no longer be used in state courts C. holding sbm is not a violation of the defendants fourth amendment right to be free from unreasonable searches and seizures D. recognizing that the constitutional protection against unreasonable searches and seizures would disappear if it were left to depend upon the unfettered discretion of an employee of the hotel E. holding the parolees signature on parole agreement is not to be taken as an unrestricted consent to any and all searches whatsoever or as a blanket waiver of all constitutional rights to be secure from unreasonable searches and seizures Reply with [A, B, C, D, E] only.

D

casehold

Read the following excerpt from a US court opinion: ``` (7 Otto) 381, 385, 24 L.Ed. 1104 (1878). Keying on this distinction in the nature of the proceeding, Griffin argues that although forfeiture actions “may be civil in form, [they] are in their nature criminal.” One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 697, 85 S.Ct. 1246, 1249, 14 L.Ed.2d 170 (1965) (quoting Boyd v. United States, 116 U.S. 383, 6 5. Ct. 524, 29 L.Ed. 746 (1886)). Consequently, Griffin explains, even if section 881 is a civil remedy, its effect is quasi-criminal and proceedings brought pursuant to the section are therefore subject to the ex post facto clause. It is true that forfeiture statutes like section 881 have been considered criminal for certain purposes. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965) ; Boyd v. United States, 116 U.S. 616, 6 S.Ct. ``` What is the most suitable continuation to the opinion? Your options are: A. holding sbm is not a violation of the defendants fourth amendment right to be free from unreasonable searches and seizures B. holding that evidence obtained through unconstitutional searches and seizures is inadmissible in state court C. holding that the fourth amendment proscription against unreasonable searches and seizures was applicable to the states under the fourteenth amendment so that evidence seized in violation of the constitution could no longer be used in state courts D. holding that forfeiture statute is subject to the fourth amendments prohibitions against unreasonable searches and seizures E. holding that once a motor vehicle has been lawfully detained for a traffic violation the police officers may order the driver to get out of the vehicle without violating the fourth amendments proscription of unreasonable searches and seizures Reply with [A, B, C, D, E] only.

D

casehold

Read the following excerpt from a US court opinion: ``` the PSLRA’s more rigorous standard. Plaintiffs’ allegations regarding Daou’s “pipeline” expectations, however, fail to satisfy the PSLRA’s requirements. The complaint alleges that Daou misrepre-_ sented its “pipeline” expectations, stating that its position was “extremely strong” and “remained healthy and would fuel future earnings growth,” that “visibility of future earnings was outstanding,” and that the company’s “momentum was increasing.” Although these projections might have been overly optimistic when made, they do not rise to the level of a material misrepresentation actionable after enactment of the PSLRA: Congress enacted the PSLRA to put an end to the practice of pleading “fraud by hindsight.” See e.g., Medhekar v. United States Dist. Ct., 99 F.3d 325, 328 (9th Cir.1996) . Silicon Graphics, 183 F.3d at 988. Under the ``` What is the most suitable continuation to the opinion? Your options are: A. holding that it was an abuse of discretion for the district court at the summary judgment stage to consider information from an affidavit based on inadmissible hearsay rather than the affiants personal knowledge B. holding the defendant responsible for the greater of the actual or intended loss C. holding that scienter had not adequately been pled where the plaintiffs provided none of the required facts underlying the complaints allegations as to the information that was supposedly available to the individual defendants D. holding that there is a duty to defend if any of the complaints allegations fall within the risk covered by the policy E. holding that congress intended for complaints under the pslra to stand or fall based on the actual knowledge of the plaintiffs rather than information produced by the defendants after the action has been filed Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` why it answered the special verdict form in the way that it did. The difficulty in granting judgment as a matter of law is in determining whether the jury was engaged in “honestly and in good faith exonerating the servant and capriciously rendering a verdict against the master, or honestly and in good faith finding the servant guilty of [discrimination], but [] capriciously exonerating] him because of the financial ability of the employer to better pay the judgment.” Eckleberry v. Kaiser Found. N. Hosps., 226 Or. 616, 359 P.2d 1090, 1095 (1961). See also Freeman v. Chicago Park Dist., 189 F.3d 613, 615 (7th Cir.1999) (“There is no priority of one answer over another when the verdicts are inconsistent.”); Danner v. International Med. Mkt’g, Inc., 944 F.2d 791, 794 (10th Cir.1991) . We will not intrude on the province of the ``` What is the most suitable continuation to the opinion? Your options are: A. holding that the trial judge rather than the jury makes the determination of whether the defendant violated the implied consent law B. holding new trial should not have been granted because jury was properly instructed C. holding that where appellant moved to recuse trial judge from deciding the motion for new trial the judge of the administrative district was required to designate a judge to hear the recusal motion D. holding that trial judge should have granted new trial rather than judgment notwithstanding the verdict because the judge could not know in what order the jury reached its inconsistent verdicts E. holding that where the meaning of the jurys verdict was not clear in light of the trial courts jury instructions the court of appeals erred in directing entry of judgment for respondent the case should have been remanded to the trial judge who was in the best position to pass upon the question of a new trial in light of the evidence his charge to the jury and the jurys verdict Reply with [A, B, C, D, E] only.

D

casehold

Read the following excerpt from a US court opinion: ``` the petition was filed, however, the Commissioner mailed the taxpayer a second notice of transferee liability with respect to the same liability. See id. The taxpayer petitioned the Court with respect to the second notice. See id. The Court dismissed the second action, stating that the taxpayer had no right to file the second petition because former section 272(f) precluded the Commissioner from mailing the second notice as a valid notice. See id. at 988; cf. Kiker v. Commissioner, 218 F.2d 389, 393 (4th Cir. 1955) (stating that a second deficiency notice issued for a taxable year was not invalid under former section 272(f) because, among other reasons, it determined an additional deficiency on account of fraud); Rowan Cotton Mills Co. v. Commissioner, 140 F.2d 277 (4th Cir. 1944) , aff’g on this issue 1 T.C. 865 (1943). Later, ``` What is the most suitable continuation to the opinion? Your options are: A. holding that where notice of deficiency fails adequately to describe the basis on which the commissioner relies for his deficiency determination burden shifts to the commissioner to prove the accuracy of the deficiency determination B. holding that a party is not entitled to pursue a separate action for deficiency judgment where the foreclosure complaint includes a prayer for a deficiency judgment and the foreclosure court reserves jurisdiction to enter a deficiency judgment C. holding that a second deficiency notice issued for a taxable year was valid where it determined a deficiency in a different type of tax than did the earlier deficiency notice D. holding that a notice of deficiency was invalid where it was the second notice mailed for that year and the taxpayer timely petitioned the court as to the first notice E. holding that former sec 272f does not require that the commissioner wait until the period for filing a petition as to a deficiency notice expires before issuing another deficiency notice as to the same taxable year Reply with [A, B, C, D, E] only.

C

casehold

Read the following excerpt from a US court opinion: ``` which are identical to the requirements- of Paragraph B of Listing 12.08, and substantial evidence supports the ALJ’s conclusion that Turner did not meet those requirements. Compare 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.07 with id. § 12.08. 3. Substantial evidence supports the ALJ’s determination of Turner’s RFC. The RFC was consistent with the opinion issued by State reviewing psychologist Dr. Heather Barrons, the only medical opinion in the record that addressed Turner’s workplace limitations. Though the ALJ failed to mention Dr. Barrons’ opinion in his decision, any error was harmless as the ALJ’s RFC finding was consistent with her opinion and not contradicted by the opinion of any treating or examining physician. Cf. Marsh v. Colvin, 792 F.3d 1170, 1172-73 (9th Cir. 2015) ; Reddick v. Chater, 157 F.3d 715, 725-27 (9th ``` What is the most suitable continuation to the opinion? Your options are: A. holding that remand was not required and that the aljs failure to mention treating physicians opinion was harmless error because the alj adopted the treating physicians recommendations B. holding that an alj may discount a treating physicians opinion where the physician has offered inconsistent opinions C. holding that where a treating physicians opinion is contradicted by a consulting physician the alj must explain on the record the reasons for rejecting the opinion of the treating physician D. holding that the alj is free to reject the opinion of any physician when the evidence supports a contrary conclusion E. holding that the alj erred by failing to mention the contrary opinion of a treating physician Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` immune from liability for gathering additional evidence after probable cause is established or criminal proceedings have begun when they are performing a quasi-judicial function. See, e.g., Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. 984 (stating that “[preparation, both for the initiation of the criminal process and for a trial, may require the obtaining ... of evidence”); Herb Hallman Chevrolet, Inc. v. Nash-Holmes, 169 F.3d 636, 643 (9th Cir.1999) (when the majority of the investigation had been conducted by the time the grand jury was impaneled, the fact that the prosecutor interviewed other witnesses after impaneling grand jury did not preclude him from being protected by absolute immunity); Freeman ex rel. The Sanctuary v. Hittle, 708 F.2d 442, 443 (9th Cir.1983) (per curiam) . However, even after the initiation of ``` What is the most suitable continuation to the opinion? Your options are: A. recognizing that the burden is on the landlord in a lease dispute to establish that the lease contract had been breached and that such breach entitled the landlord to the possession of the property in question B. holding that the goal of contract interpretation is to give effect to the parties reasonable expectations which must be gleaned not only from the contract language but also from extrinsic evidence including evidence of the parties conduct goals sought to be accomplished and surrounding circum stances when the contract was negotiated citation and internal quotation marks omitted therefore this claim is dismissedip breach of covenant of good faith and fair dealinga choice of lawalthough alaska law governs plaintiffs breaehofcontract claim in case of a conflict it is somewhat less clear whether the policys choiceoflaw provision extends to plaintiffs claim that defendant violated the implied covenant of good faith and fair dealing a district court sitting in diversity in new york is bound to apply new york law to determine the scope of the contractual choiceoflaw clause new york courts decide the scope of such clauses under new york law not under the law selected by the clause fin one pub co ltd v lehman bros special fin inc 414 f3d 325 333 2d cir2005 see also trade wind distribution llc v unilux ag no 10cv5716 2011 wl 4382986 at 3 edny sept 20 2011 the scope of a choiceoflaw provision is a threshold question that a federal court sitting in diversity should decide based on the forum states law rather than the law specified in the clause commerce indus ins co v us bank natl assn no 07cv5731 2008 wl 4178474 at 4 sdny sept 3 2008 in determining the scope of the choice of law provision this court must follow new york lawthere is a reluctance on the part of new york courts to construe contractual choiceoflaw clauses broadly to encompass extracontractual causes of action lehman bros 414 f3d at 334 under new york law in order for a choiceoflaw provision to apply to claims for tort arising incident to the contract the express language of the provision must be sufficiently broad as to encompass the entire relationship between the contracting parties krock v lipsay 97 f3d 640 645 2d cir1996 internal quotation mark omitted accordingly under new york law tort claims are outside the scope of contractual choiceoflaw provisions that merely specify what law governs construction of the terms of the contract lehman bros 414 f3d at 335 see also ayco co v frisch 795 fsupp2d 193 203 ndny2011 same a number of courts applying new york choiceoflaw rules have determined that choiceoflaw provisions nearly identical to that contained in the policy which states only that alaska is the governing jurisdiction see policy 3 and defines governing jurisdiction as the state or jurisdiction in which the policy is delivered and whose laws govern its terms id at 10 are insufficiently broad to encompass tort claims see eg lehman bros 414 f3d at 335 noting that contractual language stating that this agreement will be governed by and construed in accordance with the laws of the state of new york without reference to choice of law doctrine was essentially the same as the choiceoflaw clause at issue a new york state choiceoflaw case a clause found not broad enough to reach tort claims incident to the contractual relationship emphasis omitted krock 97 f3d at 645 in the case at hand the choiceoflaw provision in the parties mortgage document stated only that this mjortgage shall be governed by and construed in accordance with the laws of the commonwealth of massachusetts we see no way such language can be read broadly enough to apply to fraudulent misrepresentation first alteration in original document sec sys inc v couponscom inc no 11cv6528 2012 wl 3597769 at 4 wdny aug 20 2012 in this case the choice of law provision is narrow since it only pertains to the nondisclosure agreement this agreement shall be governed by the applicable laws of the state of new york excluding its conflict of law provisions accordingly the court finds that the nondisclosure agreements choiceoflaw provision does not require the application of new york law to related tort claims ayco 795 fsupp2d at 203 the choice of law provision states only that this agreement shall be governed by and construed and enforced in accordance with the laws of the state of new york without giving effect to any conflict of laws provisions new york courts in this circuit have refused to extend similarly worded clauses to govern tort claims citation omitted second alteration in original therefore the court finds that the policys choiceoflaw provision applies only to those of plaintiffs causes of action that sound in contract and not to those that sound in tortbut this conclusion does not resolve the issue the court must still identify which states law it should apply to determine whether a cause of action alleging a violation of the implied covenant of good faith and fair dealing sounds in contract or in tort and once that law has been so identified what result follows the first question is a particularly important one in the context of this case as under alaska law an insureds action against its insurer for breach of the implied covenant of good faith and fair dealing sounds in tort ennen v integon indem corp 268 p3d 277 281 alaska 2012 citing state farm fire cas co v nicholson 777 p2d 1152 115657 alaska 1989 while under new york law parties to an express contract are bound by an implied duty of good faith but breach of that duty is merely a breach of the underlying contract funk v allstate ins co no 13cv5933 2013 wl 6537031 at 4 edny dec 13 2013 citing harris v provident life accident ins co 310 f3d 73 80 2d cir2002 see also aeolus down inc v credit suisse intl no 10cv8293 2011 wl 5570062 at 4 sdny nov 16 2011 new york law does not recognize a cause of action for tortious breach of an insurance contract citing ny univ v contl ins co 87 ny2d 308 639 nys2d 283 662 ne2d 763 770 1995 commerce indus ins co 2008 wl 4178474 at 3 new york law views various bad faith claims against insurance carriers as contractual in nature internal quotation marks omitted quoting new england ins co v healthcare underwriters mut ins co 352 f3d 599 606 2d cir2003 in re worldcom inc sec litig 456 fsupp2d 508 519 sdny2006 to the extent that the plaintiff is attempting to plead a breach of the duty of good faith and fair dealing then under new york law the plaintiff is required to plead as well a viable claim for breach of contract without an adequate pleading of a breach of a term of contract the plaintiff may not plead a breach of the implied duty of good faith and fair dealing thus if the court were to find that alaska law governs the characterization of plaintiffs cause of action then it would likely fall outside the scope of the policys choiceoflaw provision while if the court were to find that new york law governs the characterization of plaintiffs cause of action it would fall within the provisions scope which somewhat curiously would mean that alaska law would then govern the question of whether plaintiffs have sufficiently pleaded a cause of action for the implied covenants breachwhile the answer is not perfectly clear it appears as though the courts obligation to apply new york law to determine the scope of the contractual choiceoflaw clause lehman bros 414 f3d at 333 encompasses an obligation to apply new york law to determine whether a cause of action is contractual or tortious in nature for the purpose of analyzing whether that cause of action falls within the clauses scope in commerce industry insurance company v us bank national association another court in this district was presented with a similar question under similar facts there the defendants counterclaimed against the plaintiffs both of which were insurance companies for breach of contract and bad faith refusal to pay 2008 wl 4178474 at 1 one of the contracts in dispute contained a choiceoflaw provision which provided that the law of the state of new york would apply in the event that the parties disputed the validity or formation of the contract or the meaning interpretationf or operation of any term condition definition or provision of the contract resulting in litigation arbitration or other form of dispute resolution id at 3 the parties disputefd whether this clause coverfed defendants bad faith claim id at 4 after noting that new york courts are generally reluctant to construe choice of law provisions broadly and that extracontractual claims such as tort claims that arise only incidentally to the contract were not covered by the choice of law clause the court then looked to new york law to determine whether defendants badfaith claim was best characterized as contractual or tortious id at 4 internal quotation marks omitted the court held that new york law considers the duty to act in good faith as controlled by the implied covenant of good faith and fair dealing found in every contract and that therefore a bad faith claim is treated as a breach of the underlying contract for the purposes of applying a choice of law provision id internal quotation marks omitted collecting cases the court further noted that the basic holding of the cases to which it had cited that the same states law should govern both the contract and bad faith claims applies with equal force where the choice of law for the contract dispute is determined by a contractual choice of law provision id at 5 an unnecessarily confusing situation would result if different laws were to govern the contract and bad faith claims id internal quotation marks omitted reasoning that the breach of contract and bad faith claims are inextricably intertwined and should be governed by the laws of the same state and noting that new york law governs the claim for breach of contract the court concluded that new york law should also apply to the bad faith refusal to pay claim relating to these contracts idwhile apparently applying though not always explicitly citing to new york law other courts within this district have taken a similar approach both before and after commerce see eg torain v clear channel broad inc 651 fsupp2d 125 138 sdny2009 the court will apply texas substantive law to determine whether the plaintiff was discharged for cause under the terms of the employment agreement and whether the defendant is entitled to indemnification for the settlement payment moreover because the plaintiffs claim for breach of the implied covenant of good faith and fair dealing arises out of the employment agreement that claim is also governed by texas law comprehensive habilitation servs inc v commerce funding corp no 05cv9640 2009 wl 935665 at 10 n 14 sdny apr 7 2009 because breach of the implied covenant of good faith and fair dealing is a contractual cause of action and the choice of law provision applies to the interpretation and enforcement of the contract virginia law applies to the plaintiffs implied covenant claim arising out of the terms of the factoring agreement butvin v doubleclick inc no 99cv4727 2001 wl 228121 at 7 sdny mar 7 2001 the court notes that the parties indicated in their agreement that it would be governed and construed according to delaware law since the implied covenant of good faith is a rule of interpretation rather than a separate obligation the cjourt holds that a claim for breach of the covenant is a contractual cause of action and therefore delaware law applies to the plaintiffs claim regarding the agreement affd 22 fedappx 57 2d cir2001 in re loisusa inc 264 br 69 9798 bankrsdny2001 0ne of the plaintiffs claims which alleges violation of an implied covenant of good faith and fair dealing seeks to enforce a covenant if it is to be done it must be done as an additional term of the agreement the choiceoflaw issue with respect to that claim is not a difficult one this court has little doubt that if illinois law governs the contract it is no jump at all to find that any efforts to engraft implied terms into the agreement should be measured under the law of illinois the court finds the reasoning of these cases to be persuasive as a result it applies new york law to find that alaska law applies to plaintiffs cause of action for violation of the implied covenant of good faith and fair dealingb analysisas explained in the conflict of law analysis above there is an actual conflict between new york and alaska law on this issue and alaska law controls the covenant of good faith and fair dealing is implied in all contracts in alaska casey v semco energy inc 92 p3d 379 384 alaska 2004 generally speaking claims for breach of the duty of good faith and fair dealing are contract claims as under new york law the alaska supreme court has explainedin the case of an ordinary commercial contract between sophisticated business entities a tort for breach arises only when a partys conduct rises to the level of a traditionally recognized tort creating a broader tort remedy would disrupt the certainty of commercial transactions and allow parties to escape contractual allocation of losses therefore an action for breach of the implied covenant of good faith and fair dealing sounds in contract alonestate dept of natural res v transamerica premier ins co 856 p2d 766 774 alaska 1993 citation alteration and internal quotation marks omitted therefore under normal circumstances plaintiffs would not be able to bring a claim for the breach of the implied covenant of good faith and fair dealing separate from a breach of contract action see id holding that generally an action for breach of the implied covenant of good faith and fair dealing sounds in contract alonehowever alaska has recognized a limited cause of action in tort for the breach of the covenant of good faith and fair dealing in certain insurance contracts see municipality of anchorage v gentile 922 p2d 248 261 alaska 1996 insurance companies have been subjected to tort liability for breaching the covenant of good faith in resolving claims covered by their insurance policies see also state farm fire cas co v nicholson 111 p2d 1152 1157 alaska 1989 holding that tort liability exists for an insurers bad faith failure to settle a firstparty claim noble v natl am life ins co 128 ariz 188 624 p2d 866 868 1981 holding that tort liability applies when dealing with its insured on a claim the decision to extend a tort cause of action to these circumstances is based on public policy considerations unique to the insuredinsurer relationship in particular in allowing an insured to bring a tort cause of action for the breach of the implied covenant of good faith and fair dealing the alaska supreme court has recognized the special relationship between insurer and insured the use of standardized contract terms the insurers superior bargaining position over the insured and the fact that the insured seeks protection against calamity rather than commercial advantage transamerica premier ins 856 p2d at 774 see also nicholson 777 p2d at 1157 the adhesionary aspects of the insurance contract including the lack of bargaining strength of the insured the contracts standardized terms the motivation of the insured for entering into the transaction and the nature of the service for which the contract is executed distinguish this contract from most other noninsurance commercial contracts these features characteristic of the insurance contract make it particularly susceptible to public policy considerations alaska pac assurance co v collins 794 p2d 936 947 alaska 1990 due to the unequal bargaining positions which generally exist between insurers and insureds enforcement of this covenant is particularly important in the insurance context characterizing such actions between the insured and insurer as sounding in tort and thereby permitting tort damages will provide needed incentive to insurers to honor their implied covenant to their insureds citations and internal quotation marks omitted as amended on denial of rehg aug 30 1990 the alaska supreme court has reasoned that these exceptional features of the insurance contract justified the creation of a tort action for an insurers bad faith breach transamerica premier ins 856 p2d at 774in deciding against extending the tort cause of action to situations other than the ones described above the alaska supreme court has emphasized that the public policy considerations that formed the basis for extension of the tort cause of action were not present in other circumstances for example in municipality of anchorage v gentile the alaska supreme court considered whether there should be a cause of action in tort for the breach of the implied covenant of good faith and fair dealing where the municipality of anchorage reduced the postretirement medical benefits of its retired police officers and firefighters 922 p2d at 252 in deciding against allowing a tort cause of action the alaska supreme court determined that pjublic policy concerns do not require the imposition of tort liability in this case id at 261 in particular the alaska supreme court reasoned that the underlying concern that warranted a tort cause of action is that without the threat of tort liability insurance companies may be encouraged to delay payment of claims to their insureds with an eye toward settling for a lesser amount than due under the policy id internal quotation marks omitted the alaska supreme court therefore held that the case law that allowed for a tort cause of action related to insurance contracts simply did not apply in that caseit is unnecessary to decide here whether the municipality would be subject to tort liability for failing to deal fairly and in good faith in the settlement of a covered insurance claim that is not the nature of the plaintiffs claim they instead claim that the municipality breached the covenant of good faith and fair dealing by unilaterally decreasing the insurance coverage required by the collective bargaining agreements although insurance is the topic in dispute the municipality breached the collective bargaining agreements not policies of insuranceid thus thealaska supreme court recognized that it was not just the subject matter of insurance that yields this tort cause of action but that special factors must be also be present and it also indicated an aversion to extending the cases providing for a cause of action in tort past the circumstances of those casesthe parties have not cited any case where an alaska court either applied pr declined to apply a tort cause of action for a breach of the implied covenant of good faith and fair dealing in circumstances similar to the case at hand nor has the court found any such case in its own research in the absence of such authority and in light of the public policy considerations explicitly relied on by the alaska courts and persuasive authority from outside the district the court holds that plaintiffs cannot bring a separate claim for the breach of the implied covenant in this case the public policy considerations that alaska courts have relied on in other insurance cases are decidedly not present in this case simply put this is not a case where there are standardized contract terms where the insurer has superior bargaining power and where the insured seeks protection against calamity instead of commercial advantage see transamerica premier ins 856 p2d at 774 see also ppm 3 purchase of the policy is suitable only for persons of substantial economic means and financial sophistication each policy owner will be required to represent that he or she meets certain minimum financial and other suitability standards while the contract is technically an insurance contract it is much more similar to an average commercial contract than to a typical insurance contract nor is this a case about an insurer resolving claims covered by its insurance policy see gentile 922 p2d at 261 the court also finds the reasoning in michael s rulle family dynasty trust v agl life assurance co no 10cv231 2010 wl 2721029 edpa july 7 2010 instructive in that case which is very similar to this case the eastern district of pennsylvania reasoned thatalthough insurance might play a tangential role here it is not the center of the dispute this claim revolves around the investment made as part of a life insurance policy and has nothing to do with the insurance aspect of the policy there is no allegation that agl failed to investigate a claim or that the plaintiff was in an unequal bargaining position and hence found itself signing a contract of adhesion additionally the plaintiff in this case is the rulle trust which is not a person nor is it the insured finally the agl ppm includes minimum suitability requirements for potential policy owners given the circumstances surrounding this policy it is not clear that alaska would recognize a tort for breach of the implied covenant of good faith and fair dealing hereid at 13 citation and internal quotation marks omitted based on this reasoning and the reasoning in the alaska cases see gentile 922 p2d at 260 the covenant of good faith and fair dealing primarily sounds in contract transamerica premier ins 856 p2d at 774 holding that an action for breach of the implied covenant of good faith and fair dealing for a normal commercial contract sounds in contract alone the court declines to allow a cause of action in tort for the breach of the implied duty of good faith and fair dealing in this context and the court grants defendants motion to dismiss this claim5 dutybased tort claimsa choice of lawas stated above plaintiffs tort claims are not governed by the policys choiceoflaw provision under new york law negligence sounds in tort see aegis ins servs inc v 7 world trade co lp 737 f3d 166 177 2d cir2013 un der new york law because a finding of negligence must be based on the breach of a duty a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party citation and internal quotation marks omitted as does negligent misrepresentation see j r elecs inc v business decision n am inc no 12cv7497 2013 wl 5203134 at 6 sdny sept 16 2013 discussing the tort of negligent representation breach of fiduciary duty see in re pfeifer no 12cv13852 2013 wl 5746125 at 7 bankrsdny oct 23 2013 categorizing the breach of fiduciary duty as a tort claim under new york law and professional malpractice see indus quick search inc v miller rosado algois llp no 09cv1340 2013 wl 4048324 at 3 edny aug 9 2013 in this case the plaintiffs primary claim is for legal malpractice which in new york is a species of negligence ie a tort internal quotation marks omitted therefore the court must undertake an independent analysis under new york choiceoflaw rules to identify which states law should apply to the question of whether plaintiffs have stated a claim under these causes of actionthe new york court of appeals has held that the relevant analytical approach to choice of law in tort actions in new york is the interest analysis globalnet fin com inc v frank crystal co inc 449 f3d 377 384 2d cir2006 brackets and internal quotation marks omitted see also empire city capital corp v citibank na 2011 wl 4484453 at 3 sdny sept 28 2011 same new yorks interest analysis requires that the law of the jurisdiction having the greatest interest in the litigation will be applied and the only facts or contacts which obtain significance in defining state interests are those which relate to the purpose of the particular law in conflict in re thelen llp 736 f3d 213 219 2d cir2013 brackets alteration and internal quotation marks omitted certified question accepted sub nom thelen llp v seyfarth shaw llp 22 ny3d 1017 981 nys2d 349 4 ne3d 359 2013 the significant contacts are almost exclusively the parties domiciles and the locus of the tort id at 21920 internal quotation marks omitted under the interestanalysis test torts are divided into two types conductregulating rules such as rules of the road and lossallocation rules such as those limiting damages in wrongful death actions vicarious liability rules or immunities from suit id at 220 internal quotation marks omitted if conflicting conductregulating laws are at issue the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders id internal quotation marks omitted a tort occurs in the place where the injury was inflicted which is generally where the plaintiffs are located lyman commerce solutions inc v lung no 12cv4398 2013 wl 4734898 at 4 sdny aug 30 2013 see also in re optimal us litig 837 fsupp2d 244 261 sdny2011 same feldman law grp pc v liberty mut ins co 819 fsupp2d 247 256 sdny2011 same affd 476 fedappx 913 2d cir2012 here plaintiffs tort claims are conductregulating not lossallocating see defs mem 11 the torts plaintiffs alleged in this case are conductrelating pis mem 3 1013 not disputing defendants position and choosing not to conduct a choice of law analysis except with regard to the statute of limitations issue and merely arguing that they state valid claims under either new york or alaska law see also mark andrew of the palm beaches ltd v gmac commercial mortg corp 265 fsupp2d 366 378 sdny2003 noting that negligence and negligentmisrepresentation claims are based on conduct regulating rules rather than loss allocating rules affd 96 fedappx 750 2d cir2004 wolfson v bruno 844 fsupp2d 348 355 sdny2011 applying conductregulating analysis to legal malpractice claim and collecting cases burns v delaware charter guarantee trust co 805 fsupp2d 12 23 sdny2011 here the plaintiffs allege that the defendants breached their duties of care and were otherwise negligent in fulfilling their obligations to the plaintiffs these alleged legal duties are conductregulating on reconsideration no 09cv8025 2011 wl 3837146 sdny aug 30 2011applying that analysis to the instant action the court finds that the alleged torts occurred in alaska for the same reasons that the alaska statute of limitations applies as explained above thus for the purposes of new yorks interest analysis any torts that defendant committed against plaintiffs occurred in alaska however the law of the state that new yorks interest analysis yields will only be applied if it conflicts with the law of new york if there is no conflict between the law of the two jurisdictions then new york law will apply see lyman 2013 wl 4734898 at 3 since there is no conflict of law with respect to these sections new york law applies to the actual fraud claims alleged in the complaint hayden capital usa llc v northstar agric indus llc no 11cv594 2012 wl 2953055 at 4 sdny july 16 2012 there is no actual conflict between new york and north dakota law and new york law applies internal quotation marks omitted admiral ins co v adges no 11cv8289 2012 wl 2426541 at 2 sdny june 27 2012 no defendant has shown a conflict between new yorks law and that of any other state accordingly the court applies new york law paradigm biodevices inc v viscogliosi bros llc 842 fsupp2d 661 665 sdny2012 new york law applies to the fraudulent transfer claim in the present action because there is no material conflict between the laws of new york and massachusetts governing this claim therefore if new york and alaska law conflict in any material way as to any of plaintiffs asserted causes of action the court will apply alaska law otherwise the court will apply new york lawb negligenceunder alaska and new york law the elements of a negligence claim are 1 that the defendant owed the plaintiff a duty 2 that the defendant breached that duty 3 that the plaintiff was injured and 4 that the breach of the duty was the proximate cause of the plaintiffs injury see eg mitchell v icolari 108 ad3d 600 969 nys2d 503 505 2013 edenshaw v safeway inc 186 p3d 568 571 alaska 2008defendant argues that since plaintiffs claims arise out of an arms length transaction and nothing more there are no duties except those in the policy and therefore plaintiffs negligence claim should be dismissed defs mem 20 moreover defendant argues that alaska law does not permit a claim for negligent performance of a contract seeking to recover purely economic losses id at 21 citing st denis v dept of hous urban dev 900 fsupp 1194 120004 dalaska 1995 alaska pac assurance co 794 p2d at 946 plaintiffs respond that defendant is not necessarily insulated from tort liability by the existence of a contract as there is a legal duty independent of the contract pis mem 1420 in particular plaintiffs argue that there is a duty of care arising out of independent characteristics of the relationship between plaintiffs and defendant id at 1617first defendant is incorrect in its argument that alaska law will not permit a claim for negligence under these circumstances defs mem 2122 defendant cites two cases in support of this position neither of which requires the result it seeks first in alaska pacific assurance company v collins the alaska supreme court rejected a claim for negligent breach of an insurance contract however language in that case actually supports plaintiffs claim see alaska pac assurance 794 p2d at 946 agreeing with the argument that an insurer may be held liable for torts independent from its contractual duties such as fraud but that an action for negligence in breaching a specific contractual duty sounds in contract as defendant correctly argued in the context of plaintiffs breach of contract claim plaintiffs do not successfully allege the breach of a specific contractual duty rather they allege a negligence tort apart from the enumerated contractual duty to provide an annual statement second defendant is correct that reasoning in dicta by the district court for the district of alaska in st denis v department of housing and urban development did indicate that alaska might not allow tort claims based on purely economic loss see st denis 900 fsupp at 120004 it appears that alaska cases foreshadow a general rule precluding negligence actions by those in privity where only economic losses are alleged however this appearance has been firmly rebutted in subsequent alaska supreme court decisions eleven years after the st denis decision the alaska supreme court heldwe have recognized that promises set forth in a contract must be enforced by an action on that contract only where the duty breached is one imposed by law such as a traditional tort law duty furthering social policy may an action between contracting parties sound in tort when a partys actions violate a general duty of care its actions may give rise to an action in tort even if the violation also breaches a contractjarvis v ensminger 134 p3d 353 363 alaska 2006 brackets and internal quotation marks omitted see also banco multiple santa cruz sa v moreno 888 fsupp2d 356 36869 edny2012 holding the same under new york law in reaching this conclusion the alaska supreme court in fact quoted the new york court of appealsa tort obligation is a duty imposed by law to avoid causing injury to others it is apart from and independent of promises made and therefore apart from the manifested intention of the parties thus a defendant may be liable in tort when it has breached a duty of reasonable care distinct from its contractual obligations or when it has engaged in tortious conduct separate and apart from its failure to fulfill its contractual obligationsjarvis 134 p3d at 363 brackets and internal quotation marks omitted quoting ny univ 639 nys2d 283 662 ne2d at 767 thus under alaska law as under new york law a plaintiff may bring a tort claim when the duty breached is imposed by law rather than specifically provided by contract see transamerica premier ins 856 p2d at 772 in the case of an ordinary commercial contract between sophisticated business entities a tort for breach arises only when a partys conduct rises to the level of a traditionally recognized tort quoting arco alaska inc v akers 753 p2d 1150 1154 alaska 1988 thus plaintiffs negligence claim would be cognizable if there was a duty of care distinct from what is required under the contractunder alaska law if no statute regulation contract case law or preexisting relationship establishes the ex istence of a duty of care the question of whether a duty exists is essentially a public policy question mcgrew v state dept of health soc servs div of family youth servs 106 p3d 319 322 alaska 2005 the public policy question involves the following considerationsthe foreseeability of harm to the plaintiff the degree of certainty that the plaintiff suffered injury the closeness of the connection between the defendants conduct and the injury suffered the moral blame attached to the defendants conduct the policy of preventing future harm the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach and the availability cost and prevalence of insurance for the risk involveddsw v fairbanks n star borough sch dist 628 p2d 554 555 alaska 1981 similarly under new york law when determining the existence and scope of a duty courts consider the relationship of the parties whether the plaintiff was within the zone of foreseeable harm whether the injury was foreseeable and other public policy considerations di ponzio v riordan 89 ny2d 578 657 nys2d 377 679 ne2d 616 618 1997 thus while these tests are stated slightly differently they involve the same general considerations as the parties have not alerted the court to an actual conflict between new york and alaska law and the court has not found a conflict it will apply new york law see interstate foods inc v lehmann no 06cv13469 2008 wl 4443850 at 3 sdny sept 30 2008 the parties have not submitted any evidence that there is actually a conflict of law between the law of new york and the law of new jersey with respect to breach of fiduciary duty therefore the court will apply new york law to the plaintiffs claimplaintiffs assert that there were several duties owed to them by defendant that defendant breached to properly vet funds to monitor developments at the funds and provide the trust with any material information regarding the funds and to process the redemption requests accurately and in a timely fashion sac 147 as explained above any claims based on the failure to effect the redemption request are timebarred thus the remaining claims relate to the vetting and the provision of information to the trustplaintiffs fail to state a negligence claim regarding the failure to provide information regarding ssr here plaintiffs have not alleged the breach of a legal duty independent from defendants contractual obligations rather the contract defines the scope of defendants duty 0nce a contractual relationship was entered into between the parties that contract defined the scope of the duties owed to the plaintiff vought v teachers coll columbia univ 127 ad2d 654 511 nys2d 880 88182 1987 in particular where the contract having been negotiated by sophisticated and counseled parties provides that defendant must provide annual statements see policy 22 ppm 30 plaintiffs cannot assert that there was an independent duty in tort to provide additional information in particular here plaintiffs knew at the time of the contract that they would have limited information regarding the underlying investments in fact they specifically contracted that they would not have contact with the underlying fund managers for their own benefit to preserve the tax benefits associated with the policy sac 2 see also id 19 4142 45 101 148 161 172 second dec 20 2002 letter agreement 2 policyowner will not directly or indirectly influence or attempt to influence the managers selection purchase retention or sale of any investment within the fund ppm 32 explaining that one factor considered in determining whether a variable life insurance contract owner is an owner of the assets invested through the policy for tax purposes is whether there is any contact between a variable contract owner and the investment advisor relating to the investment decisions made id at 33 no policy owner should ever attempt to contact an investment advisor rather any and all questions comments or instructions regarding the policy should be addressed only to the company emphasis omitted and plaintiffs knew that the information provided by the underlying funds including ssr would be limited see august 2005 ssr tear sheet 2 listing as one of ssrs risk factors that the fund is not subject to the same regulatory requirements as mutual funds id at 4 warning that ssr will have only limited access to information about the funds ssr invests in plaintiffs who were required to be persons of financial sophistication including being accredited investors qualified purchases and having sufficient knowledge and experience in investments of this type knew that defendant would have access to more information than plaintiffs regarding the underlying investments and indeed specifically contracted for that imbalance ppm 3 10 32 knowing this plaintiffs specifically contracted for the provision of annual statements regarding their investments and nothing else ppm 30 policy 22 given these facts the court does not find that there was a duty imposed by law to provide additional information if plaintiffs wanted defendant to provide all relevant information about the underlying investment funds they could have and should have contracted for such see document sec sys inc v couponscom inc 2013 wl 1945954 at 5 wdny may 9 2013 holding that where two parties dealt at arms length and had an express written agreement covering the subject matter of the dispute that express agreement set forth the duty owed and there was not an additional duty imposed in tort in re natl century fin enterprises inc 846 fsupp2d 828 858 sdohio 2012 applying new york law and noting that the plaintiff is unable to explain how an independent duty could exist when sections 10 and 12 of the agreement defined the scope of the defendants alleged duty of care with respect to the information it supplied to the plaintiff adhered to on denial of reconsideration sub nom crown cork seal co master ret trust v credit suisse first boston corp nos 12cv5803 et al 2013 wl 490717 sdny feb 6 2013 intl ore fertilizer corp v sgs control servs inc 743 fsupp 250 258 sdny1990 since the duty to inspect arose only by virtue of the contract which was freely negotiated by the parties there can be no independent tort liability for failing to take certain steps as part of that inspection affd 38 f3d 1279 2d cir1994plaintiffs provide no support for their theory that defendant could be required to provide information in tort when the contract specifically addresses what information defendant must provide plaintiffs primarily rely on two cases bayerische landesbank new york branch v aladdin capital management llc 692 f3d 42 2d cir2012 and banco multiple santa cruz sa v moreno 888 fsupp2d 356 edny2012 however neither case helps plaintiffs in bayerische landesbank the second circuit held that where an independent tort duty is present a plaintiff may maintain both tort and contract claims arising out of the same allegedly wrongful conduct but if the basis of a partys claim is a breach of solely contractual obligations such that the plaintiff is merely seeking to obtain the benefit of the contractual bargain through an action in tort the claim is precluded as duplicative 692 f3d at 58 in that case the second circuit concluded that the plaintiff had alleged a legal duty though assessed largely on the standard of care and the other obligations set forth in the contract that would arise out of the independent characteristics of the relationship where the plaintiff alleged that it relied on marketing representations from the defendants regarding how they would manage financial portfolios id at 5859 however the factual issue in that case is markedly different from this case in bayerische landesbank the plaintiff alleged that the defendants represented that their interests were aligned with investors that the portfolio would consist of investment grade high quality reference entities that the defendants would manage the reference portfolio in a conservative and defensive manner and that they would act in good faith using a degree of skill care diligence and attention consistent with the practice and procedures followed by reasonable and prudent institutional managers of national standing for similar investment portfolios id internal quotation marks omitted plaintiffs have alleged no such representations here moreover bayerische landesbank does not address the issue here which is plaintiffs attempt to require defendant to do something in tort beyond what was specifically provided for in contractbanco multiple is similarly inapposite in banco multiple the court held that though new york generally treats relationships between insurance companies and policyholders as contractual only because variable annuities are more like investment vehicles than traditional insurance it would allow a negligence action against a company that issued a variable annuity 888 fsupp2d at 36970 374 the court also held that an issuer of a variable annuity could be liable in tort for negligence arising out of independent legal duties in connection with the performance of its contractual duties in that case negligence in processing withdrawal requests where the court found a legal duty independent of the contract id at 374 however the issue in that case is simply not analogous to the one at hand additionally there are cases that hold that plaintiffs might be able to allege legal duties in addition to those explicitly provided for in financial services documents see eg pension comm of the univ of montreal pension plan v banc of am sec llc 716 fsupp2d 236 24243 sdny2010 however those cases also do not address the issue at hand which is whether there can be a negligence duty to provide more information than what is specifically provided for in a contract for the above reasons the court holds that plaintiffs have not plausibly pleaded a claim for negligence in connection with the failure to provide information not required under the contractfinally under the policy defendant was to establish investment options see policy 17 ppm 16 plaintiffs allege that defendant was negligent in putting ssr on its platform the issue here is whether plaintiffs have alleged a duty of care in vetting investment options independent of the contract that was breached by a failure to use reasonable care in vetting in this case plaintiffs have adequately pleaded the existence of a duty that arises from circumstances extraneous to and not constituting elements of the contract bayerische landesbank 692 f3d at 58 plaintiffs allege that they were unable to access information regarding ssr as they were prohibited by contract from communicating with ssr in order to protect the tax benefits that the structure of the investment provided and because the fund did not release information publicly sac 2 15 43 45 moreover the injury to plaintiffsfinancial loss from investing in a fund that allegedly was managed by two unqualified people and where gunlicks served in an allegedly selfinterested rolewas foreseeable see lauer v city of new york 95 ny2d 95 711 nys2d 112 733 ne2d 184 193 2000 whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to the circumstances he would cause danger of injury to the person or property of the other a duty arises to use ordinary care and skill to avoid such danger internal quotation marks omitted see also banco multiple 888 fsupp2d at 368 n 14 new york courts frequently hold that a person undertaking to perform work is charged with the common law duty to exercise reasonable care and skill in the performance of the work alteration and internal quotation marks omitted plaintiffs have adequately alleged that the circumstances known to all parties put defendant in a position to know that not acting with ordinary skill and care with regard to vetting ssr before putting it on the platform would create a danger of financial injury to plaintiffs especially because according to plaintiffs allegations defendant had access to material nonpublic information about ssr that would impact whether an investor would invest in the fund public policy considerations also support the finding of a duty to exercise reasonable care in vetting as the duty the court is recognizing is highly limited would be easy to comply with and protects investorsnext plaintiffs must allege that defendant breached the duty plaintiffs have done so they allege that defendant either failed to vet ssr at all or more likely haphazardly ignored critical information in its rush to become a leading carrier of variable universal life policies which involved signing up as many funds as possible as quickly as possible to defendants platform sac 10 see also id 114 in particular plaintiffs allege that defendant likely ignored ssrs managers stunning lack of relevant experience claiming that one manager had no material experience in the complex world of structured finance corporate receivables financing and assetbased lending while the other had no credit or lending experience and just four years of reported business experience id 11 see also id 111 alleging that neither helland nor law had the requisite material experience in the arcane and complex world of structured finance corporate receivables financing and assetbased lending second plaintiffs allege that defendant also likely ignored ssrs lucrative overtly conflicted partnership with gunlicks id 12 these pleadings plausibly allege that defendant breached its duty of due care in placing ssr on its platformthird plaintiffs must allege that they were injured they have done so as they allege that the trusts capital has been frozen its ssr investment account has steadily declined in stated value and it is now highly likely that it will end with a zero or de minimus balance id 8finally plaintiffs must allege that the breach of the duty was the proximate cause of plaintiffs injury plaintiffs have also satisfied this requirement specifically plaintiffs allege that had they known that defendant had not properly vetted ssr the trust would have made a redemption request immediately and that after ssr suspended redemptions in october 2008 the trust could do nothing as all of its investment in ssr was lost id 19 for the above reasons the court holds that plaintiffs adequately pleaded a claim for negligence in connection with the vetting of ssrc negligent misrepresentationto state a claim for negligent misrepresentation under new york law a plaintiff must allege 1 carelessness in imparting words 2 upon which others were expected to rely 3 and upon which they did act or failed to act 4 to their damage the action also requires that 5 the declarant express the words directly with knowledge or notice that they will be acted upon to one to whom the declarant is bound by some relation or duty of care dallas aerospace inc v cis air corp 352 f3d 775 788 2d cir2003 citing white v guarente 43 ny2d 356 401 nys2d 474 372 ne2d 315 319 1977 see woori bank v citigroup global markets inc no 12cv3868 2014 wl 3844778 at 5 sdny aug 5 2014 same see also beach v citigroup alternative investments llc no 12cv7717 2014 wl 904650 at 21 sdny mar 7 2014 liability for negligent misrepresentation has been imposed only on those persons who possess unique or specialized expertise or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified alteration in original quoting kimmell v schaefer 89 ny2d 257 652 nys2d 715 675 ne2d 450 454 1996under alaska law the tort of negligent misrepresentation consists of the following elements first the tortfeasor must have made a statement in the course of business employment or some other enterprise in which he had a pecuniary interest second the statement must have been false when the tortfeasor made it third the victim must have justifiably relied upon the statement to his detriment fourth the tortfeasor must have failed to exercise reasonable care when making the statement s alaska carpenters health sec trust fund v jones 177 p3d 844 857 alaska 2008 footnotes omitted defendant cites howarth v pfeifer 443 p2d 39 alaska 1968 which held that there must be a relationship between the parties whether growing out of contract or otherwise such that in morals and good conscience the plaintiff has the right to rely upon the defendant for information and the latter owes a duty to give the information with care as evidence that alaska law also requires a special relationship to establish a negligent misrepresentation claim id at 43 this proposition is not supported either by howarth or by more recent case law in howarth the quotation relied upon by defendant was made in the context of whether and what type of privity is required to establish a negligent misrepresentation claim id however this language has not been embraced by alaska courts instead they have followed the guidance of the restatement of torts which does not require a special relationship see eg willard v khotol servs corp 171 p3d 108 11819 alaska 2007 providing the fourfactor test discussed above and citing to the restate ment second of torts 5521 reeves v alyeska pipeline serv co 56 p3d 660 67071 alaska 2002 same valdez fisheries dev assn inc v alyeska pipeline serv co 45 p3d 657 671 alaska 2002 same that said there is one relevant situation under alaska law where the existence of a duty is required for a negligent misrepresentation claim to make a negligent misrepresentation claim based on an omission there must be a duty to disclose specifically under alaska law an omission can constitute a false statement where there is a duty to disclose a duty to disclose may arise when facts are concealed or unlikely to be discovered because of the special relationship between the parties the course of their dealings or the nature of the fact itself us ex rel n star terminal stevedore co v nugget constr inc 445 fsupp2d 1063 1074 dalaska 2006 citations and internal quotation marks omitted because of this conflict between new york and alaska law the court will apply alaska lawfirst plaintiffs allege that defendant recklessly or worse deliberately overstated ssrs assets under management by approximately 100 in a report provided to buchalter in his role as advisor in 2007 sac 18 specifically plaintiffs allege that buchalter on behalf of the trust requested more information about ssr and defendant reported that ssr had 169 million in assets under management but in fact ssr had only approximately half that amount based on the august 2007 aima disclosure questionnaire containing information supplied by ssr id 141 plaintiffs allege that the higher number would misleadingly indicate increased investor acceptance of ssr a misstatement of ssrs presence in the markets in which it invested and most importantly a misstatement of ssrs implied ability to meet potential redemption requests from investors id 18 defendant argues that plaintiffs are simply misreading the documents by comparing a disclosure of gross assets in one document to net assets in theother defs mem 22 defendant explainsthe may 2007 update shows that as of march 31 2007 ssr had 169 million in assets and the funds general partner had 1955 million in assets which included ssrs assets and the assets of the separate ssr ii fund not at issue in this case the aima questionnaire shows that as of july 2007 ssr had 1707 million in assets and the funds general partner had 1985 million in assets which included 278 million in assets in the ssr ii fund the aima questionnaire explains these asset totals are gross as they include the funds leveraged or borrowed assets the aima questionnaire further disclosed that net of leverage ssr had 867 million in assets and ssr ii had 157 million in assets for a total of 1024 million in unleveraged assets under the general partners management plaintiffs have mistakenly compared ssrs gross assets in march 2007 169 million to ssrs net assets in july 2007 867 millionid citations and footnotes omitted plaintiffs respond that defendant never disclosed that it was reporting leveraged assets instead simply reporting fund assets as 169 million pis mem 21 plaintiffs argue this is a misrepresentation because actual assets under management is the true measure utilized by the hedge fund industry and defendant previously represented ssrs actual not leveraged assets under management of 473 million when presenting the investment option to buchalterthe trust in 2005 id at 21there are two reasons why this claim fails first the alleged misrepresentation was made by ssr not by defendant as the may 2007 disclosure was an ssr docu ment a fact evident from the document itself and not contested by plaintiffs counsel at oral argument see may 2007 ssr tear sheet to the extent defendant passed on this document there are no allegations that defendant knew that the document allegedly contained false statements or that defendant was negligent or reckless as to this fact see diblik v marey 166 p3d 23 26 alaska 2007 one element of negligent misrepresentation is the failure to exercise reasonable care or competence in obtaining or communicating the misinformationsecond there was no misrepresentation in may 2007 ssr reported its fund assets for the ssr id fund as 169 million see may 2007 ssr tear sheet this roughly matches the 2007 aima questionnaire from a few months later which reported that the size of the fund was 1707 million gross 867 million net sac ex e aimas illustrative questionnaire for due diligence of fund of hedge fund managers ssr aima questionnaire at 16 plaintiffs argue that defendant previously represented ssrs actual not leveraged assets under management of 473 million when presenting the investment option to buehalterthe trust in 2005 pis mem 21 see also august 2006 ssr tear sheet 1 plaintiffs apparently infer that the 473 million reported in 2005 is net not gross see august 2005 ssr tear sheet 1 from the fact that the aima questionnaire states that the assets under management in 2005 were 704 million thus conceivably indicating that 704 million was the leveraged number and 473 million was the unleveraged number see ssr aima questionnaire 6 however a close reading of the document shows this is not the case rather the discrepancy between the aima questionnaires 704 million number and the ssr documents 473 million number for 2005 is due to the fact that the 473 million represents assets that correspond only to ssrs insurance dedicated id fund while the 704 million represents the assets that correspond both to the ssr id fund and the ssr ii fund furthermore the may 2007 tear sheet states beginning in may 2006 the fund began employing modest leverage which the managers intend to limit to no more than one dollar of leverage per dollar of fund equity may 2007 ssr tear sheet 1 thus the fact that ssr reported unleveraged assets in 2005 when it was not employing leverage says nothing about whether ssr would report leveraged or unleveraged assets in 2007 furthermore the inclusion of that sentence on the may 2007 statement should have raised the possibility to plaintiffs that ssr was now reporting leveraged assets while the 2007 ssr document was ambiguous as to whether it was disclosing leveraged or unleveraged fund assets it did not misrepresent leveraged fund assets as unleveraged fund assetsnext plaintiffs allege that ssrs administrator had been replaced in january 2007 tellingly when ssr was in the process of closing their books for the 2006 year sac 16 plaintiffs further allege that defendant sent buchalter a report in june 2007 erroneously indicating that the replaced ssr administrator still was in place id defendant does not dispute that plaintiffs plausibly pleaded that defendant made a misrepresentation however the negligent misrepresentation claim must still be dismissed this alleged misrepresentation was made in the same document that contained the alleged misrepresentation regarding ssrs assets under management see sac 138 may 2007 ssr tear sheet again this alleged misrepresentation was made by ssr not by defendant and plaintiffs do not allege that defendant knew or was reckless or negligent to the fact that the ssr document it passed on to plaintiffs allegedly contained misrepresentations therefore this claim is dismissed see diblik 166 p3d at 26 one element of negligent misrepresentation is the failure to exercise reasonable care or competence in obtaining or communicating the misinformationfinally plaintiffs allege that defendant misrepresented that it vetted ssr when in fact defendant appears not to have vetted ssr at all sac 10 plaintiffs allege generally that defendant made representations as to researching and vetting of platform funds and monitoring and oversight of the investments id 56 plaintiffs also allege that defendant did not inform the trustee or the advisors of its failure to properly vet ssr id 143 defendant argues that the email plaintiffs rely upon shows that defendant made no such representation regarding vetting defs mem 23 rather defendant argues the email merely identifies ssr as one of the insurance dedicated funds available through defendant which it indisputably was and that plaintiffs claim to have subjectively understood the email to imply a vetting of ssr is irrelevant id however defendants general counsel emailed buchalters counsel in october 2003 to state that he was in the process of adding ssr to defendants platform in the very near future sac 113 internal quotation marks omitted see also id ex l email from joseph a fillip jr to william lipkind oct 17 2003 later defendants director of research sent buchalter an email identifying ssr as one of the insurance dedicated funds available through defendants platform sac 57 agl life assurance company insurance dedicated funds and plaintiffs allege that ssr was one of only 27 funds chosen from the available pool of an estimated 75 to 100 insurancededicated hedge funds in existence to be put on defendants platform sac 4 see also id 60 at the time defendant presented ssr as an approved investment choice there were an estimated 75 to 100 insurancededicated hedge funds in existence defendant presented just 27 insurancededicated funds clearly indicating that it had utilized specific criteria to select said funds and had found that the majority of available funds were not appropriate for its policyholders as such defendant affirmatively preselected ssr from a much larger universe as especially suitable for policyholders such as the trust based on defendants purported vetting and determination utilizing specific criteria considering the allegations and the emails at issue the court concludes that plaintiffs have adequately pleaded an implicit misrepresentation by defendantwhat is left of defendants arguments against the negligent misrepresentation claim is its contention that plaintiffs cannot state a claim for negligent misrepresentation based on assertions made to buchalter however this argument is unavailing for several reasons first that the trust instrument did not identify buchalter as an advisor does not mean that he was not an advisor to the trust as a matter of fact which is exactly what the sac alleges and must be assumed as true on this motion pis mem 22 moreover there would have been no reason for defendant to send its platform funds to buchalter and buchalter alone if defendant did not recognize that he was acting in an advisory capacity id furthermore the restatement second of torts which is followed by alaska courts with regard to the requirements for a negligent misrepresentation tort provides that liability is limited to a loss suffered by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it restatement second of torts 5522 1977 emphasis addedtherefore defendants motion to dismiss the negligent misrepresentation claim is denied as to the alleged vetting misrepresentation and granted as to the alleged fund asset and fund administrator misrepresentationsd professional malpracticeprofessional malpractice is a species of negligence under new york law malpractice means the negligence of a member of a profession in his relations with his client panteleone v envtl engg contracting no 12cv5415 2013 wl 3340483 at 6 edny july 2 2013 citation and internal quotation marks omitted to prevail on a professional malpractice claim a plaintiff must demonstrate the elements of negligence and that the breach of duty was by a professional in a departure from accepted standards of practice id internal quotation marks omitted under alaska law the elements of a cause of action for professional negligence are 1 the duty of the professional to use such skill prudence and diligence as other members of the profession commonly possess and exercise 2 a breach of that duty 3 a proximate causal connection between the negligent conduct and the resulting injury and 4 actual loss or damage resulting from the professionals negligence bukoskey v walter w shuham cpa pc 666 fsupp 181 184 dalaska 1987 internal quotation marks omitted see also johnson higgins of alaska inc v blomfield 907 p2d 1371 1374 alaska 1995 like other negligence actions a claim of professional negligence requires proof of duty breach causation and damages though stated slightly differently the baseline requirements are functionally the same under new york and alaska lawwhile acknowledging that there are distinctions between alaska and new york law on professional malpractice claims defendant asserts that there is no conflict because a life insurer is not a professional under either statefs lawsj supplemental br in supp of def phila fin life assurance cos mot to dismiss pis second am compl under rule 12b6 defis supplemental br 2 dkt no 50 however even assuming the ultimate outcomes would be the same under the laws of new york and alaska that fact would not indicate that no conflict of laws exists to be an actual conflict the difference between the laws of the two jurisdictions need not be outcomedeterminative but must provide differing substantive rules that are relevant to the matter at hand and the difference must have a significant possible effect on the outcome of the trial allgood entmt inc v dileo entmt touring inc 726 fsupp2d 307 313 sdny2010 see also lehman bros 414 f3d at 331 samehere there is a conflict under new york law the term professional encompasses those whose qualities include extensive formal learning and training licensure and regulation indicating a qualification to practice a code of conduct imposing standards beyond those accepted in the marketplace and a system of discipline for violation of those standards chase scientific research inc v nia grp inc 96 ny2d 20 725 nys2d 592 749 ne2d 161 166 2001 applying these characteristics the new york court of appeals has held that insurance agents and brokers are not professionals id 725 nys2d 592 749 ne2d at 167 therefore in new york courts have held that insurance companies or agents cannot generally be sued for professional malpractice beyond a claim for failing to follow the insureds instructions of obtaining the desired insurance highlands ins co v prg brokerage inc no 01cv2272 2004 wl 35439 at 6 sdny jan 6 2004 the new york court of appeals has found that an insured can not state a cause of action for professional negligence against his agent as no special relationship existfs between the parties that could impose a duty of care on the agent beyond that of following the insureds instructions of placing the requested insurance the court of appeals has also found that an insured may not state a claim against an insurance agent for professional malpractice since neither a broker nor agent are required to engage in extensive specialized education or training nor bound by a standard of conduct for which they might be disciplined and are therefore not considered professionals in that they generally cannot be sued for professional malpractice emphasis added citing murphy v kuhn 90 ny2d 266 660 nys2d 371 682 ne2d 972 1997 chase scientific research inc v nia group inc 96 ny2d 20 725 nys2d 592 749 ne2d 161 2001however under alaska law the definition of professional is much more inclusive in alaska professional malpractice involves a professionals breach of a duty of due care which was implied by law as a result of a contractual undertaking breck v moore 910 p2d 599 603 alaska 1996 internal quotation marks omitted a professional is a provider of skilled services johns heating serv v lamb 46 p3d 1024 1037 alaska 2002 in particular the rule adopted by the alaska supreme court is thatwhen a person holds himself out to the public in any particular employment work or trade there is an implied engagement with those who may employ him that he and his employees in that trade or business possess that reasonable degree of knowledge and skill which is ordinarily possessed by others engaged in the same business or trade and that he and they will perform the services which he may be engaged to do diligently and faithfully and with that skill and prudence ordinarily possessed and observed by others engaged in the same or like employmentid internal quotation marks omitted as such alaska courts have applied the professional negligence standard to trades persons including machinists electricians and plumbers id as well as to insurance agents see state farm life ins co v davis no 07cv164 2008 wl 5245332 at 4 dalaska dec 17 2008 generally an agent employed to effect insurance must exercise such reasonable skill and ordinary diligence as may fairly be expected from a person in his or her profession or situation in doing what is necessary to effect a policy in seeing that it effectually covers the property to be insured in selecting the insurer and so on alaska law is fundamentally the same an insurance agent owes a duty to exercise reasonable care skill and diligence in procuring insurance brackets footnote and internal quotation marks omitted see generally christianson v conradhouston ins 318 p3d 390 alaska 2014 discussing a professional negligence claim against an insurance agent as well as other classes of professionals thus defendant qualifies as a professional under alaska lawas a professional under alaska law defendant had a duty to perform the services which itwas engaged to do diligently and faithfully and with that skill and prudence ordinarily possessed and observed by others engaged in the same or like employment johns heating serv 46 p3d at 1037 because the duty existed only with respect to what defendant was engaged to do defendant cannot be liable for professional negligence for failing to provide information when the contract explicitly addressed the information defendant was required to provide for the same reasons addressed above with regard to the claim for negligence however plaintiffs do state a claim for professional negligence with regard to the allegedly inadequate vetting and misrepresentations related theretoe breach of fiduciary dutythe parties have not identified an actual conflict between alaska and new york law as to the elements of a cause of action for breach of fiduciary duty therefore the court will apply the law of new york the forum state see in re refco inc sec litig 826 fsupp2d 478 500 sdny2011 while the plaintiffs claim that new jersey law should apply it is notable that they cite primarily to new york law in their breach of fiduciary duty analysis and at any rate the parties do not indicate that there is any actual conflict between new york and new jersey law with respect to breach of fiduciary duty therefore new york law should apply footnote omitted goodman v goldman sachs co no 10cv1247 2010 wl 5186180 at 11 dnj dec 14 2010 as the defendant has not pointed to any material differences between the law of new jersey and new york the court concludes that no actual conflict exists with respect to the plaintiffs breach of fiduciary duty claim and consequently applies the law of the forum state of new jersey interstate foods 2008 wl 4443850 at 3 the parties have not submitted any evidence that there is actually a conflict of law between the law of new york and the law of new jersey with respect to breach of fiduciary duty therefore the court will apply new york law to the plaintiffs claimunder new york law the elements of a claim for breach of a fiduciary obligation are i the existence of a fiduciary duty ii a knowing breach of that duty and iii damages resulting therefrom johnson v nextel commcns inc 660 f3d 131 138 2d cir2011 under new york law a fiduciary relationship exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation n shipping funds i llc v icon capital corp 921 fsupp2d 94 101 sdny2013 brackets and internal quotation marks omitted see also munn v thornton 956 p2d 1213 1220 alaska 1998 a fiduciary relationship exists when one imposes a special confidence in another so that the latter in equity and good conscience is bound to act in good faith and with due regard to the interests of the one imposing the confidence internal quotation marks omitted at the heart of the fiduciary relationship lies reliance and de facto control and dominance n shipping funds 921 fsupp2d at 101 internal quotation marks omitted it is not mandatory that a fiduciary relationship be formalized in writing and the ongoing conduct between the parties may give rise to a fiduciary relationship that will be recognized by the courts official comm of unsecured creditors v donaldson lufkin jenrette sec corp no 00cv8688 2002 wl 362794 at 9 sdny mar 6 2002 internal quotation marks omitted the existence of a fiduciary duty cannot be determined by recourse to rigid formulas and often is a factual question it arises when a party reposes trust or confidence in another who thereby gains a resulting superiority or influence over the first or when a party exercises de facto control or assumes responsibility for the affairs of another in re parmalat sec litig 684 fsupp2d 453 475 sdny2010 footnotes brackets and internal quotation marks omitted affd sub nom food holdings ltd v bank of am corp 423 fedappx 73 2d cir2011 see also munn 956 p2d at 1220 we have also noted that loyalty and the disavowal of self interest are hallmarks of the fiduciarys role fiduciary relationships are generally defined by a level of trust beyond that in ordinary business relationships brackets citation and internal quotation marks omittedplaintiffs base their fiduciary duty claim on the information imbalance created by the contract and the fact that the policy invested in funds that did not release information publicly plaintiffs argue that this dynamic imposed on the trust a special confidence in defendant to act in good faith and with due regard for the best interests of the trust sac 162 the court disagrees as a primary matter the court notes that plaintiffs do not cite a single case supporting the proposition that the court may find a fiduciary relationship based on the facts alleged here see pis mem nor did the court find any such case in its own research when parties deal at arms length in a commercial transaction no relation of confidence or trust sufficient to find the existence of a fiduciary relationship will arise absent extraordinary circumstances atlantis info tech gmbh v ca inc 485 fsupp2d 224 231 edny2007 brackets and internal quotation marks omitted there is no basis here for finding such extraordinary circumstances while the information imbalance alleged by plaintiffs might otherwise be sufficient to create a question of fact as to whether a fiduciary relationship existed see id at 23132 suggesting that a fiduciary relationship may be alleged between parties in arms length relationships where there is an allegation of obvious disparity between the parties it is not sufficient here when the plaintiffs who were sophisticated investors and were represented by counsel knew that such an information disparity existed and by contract provided only that defendant was required to pass on annual statements for the funds to plaintiffs see document sec sys 2013 wl 1945954 at 5 holding that where a fiduciary duty of confidentiality would otherwise by implied by law but where there was a specific written contract addressing the duty of confidentiality no such fiduciary duty would be applied by lawadditionally plaintiffs do not allege any special relationship with defendant such that they could expect defendant to disavow its own selfinterest and act on behalf of plaintiffs for example plaintiffs have not alleged that they were entitled to rely on defendant for investment advice in one new york state case the supreme court of new york county held that where an insurance company did not serve as an investment advisor in any meaningful way in connection with a variable life insurance policy but merely passed on prospectuses such as the ppm to its insureds from the funds in which the insureds could choose investments such a relationship did not amount to an advisory role that would give rise to a fiduciary relationship ssr ii llc v john hancock life ins co usa 37 misc3d 1204a no 6527932011 2012 wl 4513354 at 11 supct sept 28 2012 judgment entered sub nom ssr ii llc v john hancock life ins co usa 2012 wl 7784415 nysupct oct 17 2012 cf mullerpaisner v tiaa 289 fedappx 461 466 2d cir2008 holding that while by their nature armslength commercial transactions ordinarily do not involve fiduciary relationships where the complaint alleges that the defendants advertise that they have a considerable infrastructure to help people and where they have made public statements that they will help their customers choose among their products a fiduciary duty claim would withstand a motion to dismiss similarly here plaintiffs do not allege that defendant acted as an investment advisor indeed they distinguish michael s rulle family dynasty trust on the ground that here plaintiffs are not alleging that defendant exercised exclusive or any control over investment decisions or that it was responsible for recognizing that ssr was a flawed investment and flndeed that plaintiffs fully admit that the trustee and advisors were exclusively responsible for making investment decisions pis mem 20 as in ssr ii the role of defendant as alleged by plaintiffs does not amount to an advisory role that gives rise to a fiduciary relationship ssr ii 2012 wl 4513354 at 11moreover and more generally several courts applying new york law have found that in the case of arms length negotiations or transactions between sophisticated financial institutions no extracontractual duty of disclosure exists banque arabe et internationale dinvestissement v maryland natl bank 57 f3d 146 158 2d cir1995 see also in re enron corp 292 br 752 78788 bankrsdny2003 holding that where the parties engaged in arms length negotiations and the contract disclaims reliance on information provided by the other party no claim can be stated for breach of fiduciary duty banco espanol de credito v sec pac natl bank 763 fsupp 36 45 sdny1991 in the case of arms length transactions between large financial institutions no fiduciary relationship exists unless one was created in the agreement while the facts of these cases are distinguishable from the facts at hand as here plaintiffs are not a large financial institution the court finds persuasive the reasoning that when sophisticated counseled parties contract and specifically contract about what information needs to be disclosed there is no basis for holding that there is an extracontractual legal duty to disclose therefore the court dismisses plaintiffs claim for breach of fiduciary duty6 unjust enrichmenta choice of lawsome controversy appears to exist as to whether a claim for unjust enrichment is governed by a contracts enforceable choiceoflaw provision or whether it is instead governed by the law of the state that new yorks interest analysis yields being a fundamentally noncontractual cause of action compare fieger 251 f3d at 394 with respect to a quantum meruit claim we are not aware of any published new york decision that has stated the appropriate conflictoflaw test to apply to such a claim under new york law a quantum meruit claim is a claim in quasicontract the plaintiffs claimed entitlement to a commission payment sounds more in contract than in tort arising as it does from the benefit allegedly conferred upon the defendants by the plaintiffs business advice accordingly the court will apply new yorks choiceoflaw analysis for contract claims to the plaintiffs quantum meruit claim citations omitted spirit locker inc v evo direct llc 696 fsupp2d 296 304 n 8 edny2010 the parties agree that new york law applies to the unjust enrichment claim and a choice of law clause in their agreement mandates the application of new york law merrill iron steel inc v yonkers contracting co inc no 05cv5042 2006 wl 2679940 at 3 sdny sept 19 2006 the eourt questions whether the plaintiff may avoid the joint payment agreements choice of law clause when the agreement underlies many of the plaintiffs arguments citing valley juice ltd v evian waters of fr inc 87 f3d 604 610 2d cir1996 in re lois 264 br at 106 the claim for unjust enrichment similarly should be governed by the law of illinois at least the great bulk of the consideration paid by the debtor to the creditors the essence of this claim for unjust enrichment was paid under the agreement and the rights if any to the return of that consideration cannot be considered without at least some consideration of the agreement and its terms footnotes omitted with innovative biodefense inc v vsp techs no 12cv3710 2013 wl 3389008 at 5 sdny july 3 2013 the plaintiff argues that the defendants unjust enrichment counterclaim raises extracontractual allegations and thus should not be governed by the choiceoflaw provision the court agrees claims for unjust enrichment or quantum meruit are noncontractual equi table remedies and are therefore outside the scope of the parties choiceoflaw provision italics footnote and internal quotation marks omitted gross found inc v goldner no 12cv1496 2012 wl 6021441 at 11 edny dec 4 2012 although the guaranty provides for kansas law unjust enrichment is an equitable claim that is outside the scope of the contracts choiceoflaw provision and may be governed by the law of a different state hettinger v kleinman 733 fsupp2d 421 444 sdny2010 the plaintiffs cite new york law and the defendants cite both new jersey and florida law with respect to plaintiffs unjust enrichment claim although the choice of law clause in the independent contractor agreement specifies florida law extracontractual claims are outside the scope of contractual choiceoflaw provisions citations and internal quotation marks omitted cargill inc v sears petroleum transp corp no 03cv580 2004 wl 3507329 at 16 ndny aug 27 2004 with the exception of the breach of contract claim which is subject to minnesota law because of the choice of law provision contained within the relevant agreement the parties common law counterclaims including for unjust enrichment are all governed by new york law if anything can be gleaned from the conflicting case law described above it is that the more an unjust enrichment claim relates to an enforceable contract the more likely it is to be considered contractual in nature for the purposes of new yorks choiceoflaw analysis given the allegations surrounding plaintiffs unjust enrichment claim this line of best fit argues in favor of applying alaska law pursuant to the policys choiceoflaw provision nevertheless because the law is not entirely clear on this point the court will apply both alaska and new york law and will only be forced to choose between the two at this stage if a conflict presents itselfb analysisto state a claim of unjust enrichment under new york law the plaintiff must allege 1 that the defendant was enriched 2 that the enrichment was at the plaintiffs expense and 3 that the circumstances are such that in equity and good conscience the defendant should return the money or benefit to the plaintiff bazak intl corp v tarrant apparel grp 347 fsupp2d 1 34 sdny2004 alteration in original footnote omitted quoting golden pac bancorp v fed deposit ins corp 273 f3d 509 519 2d cir2001 the essence of a claim for unjust enrichment is that one party has parted with money or a benefit that has been received by another at the expense of the first party id at 4 it is well settled that under new york law the existence of a valid and enforceable written contract ordinarily precludes recovery in quasi contract such as unjust enrichment for events arising out of the same subject matter id alteration in original quoting macdraw inc v cit grp equip fin inc 157 f3d 956 964 2d cir1998plaintiffs did not allege in the sac that the unjust enrichment claim was pleaded in the alternative to their breach of contract claim nor did they make this argument in their opposition papers they raised it for the first time at oral argument however under new york law plaintiffs cannot raise the unjust enrichment claim in the alternative to the breach of contract claim because there is a valid and enforceable written contract governing the subject matter beth isr med ctr v horizon blue cross blue shield of nj inc 448 f3d 573 58687 2d cir2006 quoting clarkfitzpatrick inc v long is rr co 70 ny2d 382 521 nys2d 653 516 ne2d 190 193 1987 see also air atlanta aero engg ltd v sp aircraft owner i llc 687 fsupp2d 185 196 sdny2009 dismissing unjust enrichment claim pleaded in the alternative noting that the plaintiffs failure to allege that the contracts at issue were invalid or unenforceable precluded it from seeking quasicontractual recovery for events arising out of the same subject matter courtien commcns ltd v aetna life ins co 193 fsupp2d 563 571 edny2002 the law in new york is that a party may assert causes of action in both breach of contract and quasicontract where there is a bona fide dispute concerning existence of a contract or whether the contract covers the dispute in issue or where one party wrongfully has prevented the other from performing the contract first alteration in original quoting randall v guido 238 ad2d 164 655 nys2d 527 528 1997 thus under new york law this cause of action for unjust enrichment fails and should be dismissedunder alaska law a party seeking to recover for unjust enrichment must show 1 a benefit conferred upon the defendant by the plaintiff 2 appreciation by the defendant of such benefit and 3 acceptance and retention by the defendant of such benefit under such circumstances that it would be inequitable for him to retain it without paying the value thereof ware v ware 161 p3d 1188 1197 alaska 2007 see also alaska sales serv inc v millet 735 p2d 743 746 alaska 1987 same the courts are in accord in stressing that the most significant requirement for recovery in quasicontract is that the enrichment of the defendant must be unjust that is the defendant must receive a true windfall or something for nothing in re avery 461 br 798 822 bankrdalaska 2011 internal quotation marks omitted citing millet 735 p2d at 746though the issue is slightly less clear cut than under new york law the court concludes that as under new york law the existence of a valid contract bars recovery under a theory of unjust enrichment the alaska supreme court has stated that eourts generally treat actions brought upon theories of unjust enrichment quasicontract contracts implied in law and quantum meruit as essentially the same in fact this terminology is generally employed interchangeably often within the same opinion bennett v artus 20 p3d 560 563 n 3 alaska 2001 italics and internal quotation marks omitted see also brady v state 965 p2d 1 13 n 38 alaska 1998 same and the alaska courts have stated that a plaintiff is entitled to the reasonable value of the services rendered to the defendant kinder the doctrine of quantum meruit only when a valid contract does not exist romero v cox 166 p3d 4 9 alaska 2007 internal quotation marks omitted see also krossa v all alaskan seafoods inc 37 p3d 411 419 alaska 2001 noting that plaintiffs may generally recover in quantum meruit for services rendered only when parties to a contract dispute do not have a valid contract mitford v de lasala 666 p2d 1000 1006 n 1 alaska 1983 it is well settled that proof of an express contract covering the services in question precludes relief in quantum meruit cf nicdao 839 fsupp2d at 1071 discussing the requirements for showing unjust enrichment under alaska law and stating that generally aplaintiff may not rely on a theory of implied contract where a valid express contract governs second alteration in original internal quotation marks omitted soules v ramstack 95 p3d 933 940 alaska 2004 enforcement of a valid contract does not constitute unjust enrichment additionally in nicdao v chase home finance an alaska district court dismissed an unjust enrichment claim under alaska law in part because the parties relationship was governed by valid contracts and the plaintiff could not plausibly allege a breach of the contracts at issue 839 fsupp2d at 1071 thus a plaintiff cannot recover for unjust enrichment under alaska law when a valid enforceable contract covers the services in questionthe court has not found an alaska case addressing whether a claim for unjust enrichment can be pleaded in the alternative to a breach of contract case however based on alaskas case law for a complaint to state an unjust enrichment claim that could plausibly warrant relief where a contract is also alleged to exist the plaintiff must allege in the alternative either that the contract is not valid that the contract does not apply or that the money goods or services the grant of which constituted the unjust enrichment was outside the scope of the contract otherwise under the facts alleged by the complaint the plaintiff would not be entitled to relief see us ex rel poong limpert v dick pacghemm joint venture no 03cv290 2005 wl 846204 at 2 dalaska apr 4 2005 noting that in alaska quantum meruit relief is not available to recover the value of services performed if the services are within the scope of the original contraet but if the services are beyond the scope of the contract quantum meruit relief is available and holding that the plaintiffs complaint survived a motion to dismiss because it contained two allegations that the plaintiff provided labor materials and services beyond what was required by the contract and that the defendant has not paid the plaintiff for those items footnotes omitted here plaintiffs have pleaded the existence of a contract and that the payment they made pursuant to the contract unjustly enriched defendant but have not alleged that the contract was invalid or that the payments were outside the scope of the contract even if plaintiffs are able to conclusively prove the truth of these factual allegations they still would not be entitled to relieffor the above reasons plaintiffs fail to set forth an unjust enrichment claim under either alaska or new york law and defendants motion to dismiss this claim is grantediii conclusionfor the above reasons defendants motion to dismiss is denied in part and granted in part in particular the following claims are dismissed the first cause of action for negligence relating to the failure to provide information and the failure to effect the redemption request the second cause of action for negligent misrepresentation related to the alleged misrepresentations about the fund assets and fund administrators as well as any other claims based on those alleged misrepresentations the third cause of action for breach of fiduciary duty the fourth cause of action for professional malpractice related to the failure to provide information and the failure to effect the redemption request the fifth cause of action for breach of contract the sixth cause of action for breach of the covenant of good faith and fair dealing and the seventh cause of action for unjust enrichment the motion is denied as to all other claimsso ordered1exhibit b to the sac contains several documents unnumbered page one is the policy receipt unnumbered pages two to three constitute a letter to the 2002 lawrence r buchalter alaska trust from joseph a fillip jr senior vice president and general counsel for defendant dated december 20 2002 the first dec 20 2002 letter agreement unnumbered pages four to nine constitute a letter to the 2002 lawrence r buchalter alaska trust from joseph a fillip jr senior vice president and general counsel for defendant dated december 20 2002 the second dec 20 2002 letter agreement unnumbered pages ten to twentytwo contain the flexible premium survivorship variable life payout tables unnumbered pages twentythree to fiftyone constitute the flexible premium survivorship variable life insurance contract the policy and unnumbered pages fiftytwo to sixtyfour constitute the buchalters life insurance application for ease of reference each of these documents will be cited separately2 exhibit d to the sac contains correspondence between buchalter and an employee of defendant unnumbered page one is an email from sandy geyelin to larry buchalter dated september 19 2005 unnumbered page two is a list of agl life assurance company insurance dedicated funds agl life assurance company insurance dedicated funds unnumbered page three is an email from sandy geyelin to larry buchalter dated september 21 2005 and unnumbered pages four to nine are an information sheet about ssr dated august 2005 august 2005 ssr tear sheet for ease of reference each of these documents will be cited separately3 the document also lists the significant risks associated with the investment objective and strategy of ssr august 2005 ssr tear sheet 24 in particular ssr was considering legal action against thomas petters see nov 20 fillip letter we are in contact with the managers of ssr on at least a weekly basis to monitor their activities regarding ssrs underlying investments with exposure to petters according to defendant petters was a ponzischemer and it had been discovered that ssr had exposure to investment funds he operated mem of law in supp of def phila fin life assurance cos mot to dismiss pis second am compl under rule 12b6 defs mem 7 dkt no 455 the court notes that plaintiffs allege that they received a summary of the fund in may 2007 sac 76 141 that summary provided at exhibit m states beginning in may 2006 the fund began employing modest leverage which the managers intend to limit to no more than one dollar of leverage per dollar of fund equity sac ex m may 2007 ssr tear sheet at 1 thus it appears that plaintiffs were advised of this change in investment strategy6 this term is not defined in the sac7 moreover it is not clear from the pleadings where the trust beneficiaries live or lived at the lime that the policy was issued8 the court notes as a final matter that the alaska choiceoflaw provision contained in the policy does not impact the courts analysis as to which states statute of limitations applies to buchalters claims in portfolio recovery associates llc v king 14 ny3d 410 901 nys2d 575 927 ne2d 1059 2010 the new york court of appeals considered whether the question of the timeliness of a plaintiffs claims for breach of contract and account stated was to be answered by reference to the statute of limitations of delaware the law of which the parties to the contract at issue had selected to govern their agreement in the contracts choiceoflaw provision id 901 nys2d 575 927 ne2d at 106162 the court described the choiceoflaw provision as standard stating that the contract would be governed by the laws of delaware id 901 nys2d 575 927 ne2d at 1060 the court held that the appellate division had properly concluded that the delaware choice of law clause did not require the application of the delaware threeyear statute of limitations to bar the plaintiffs claims as choice of law provisions typically apply to only substantive issues and statutes of limitations are considered procedural because they are deemed as pertaining to the remedy rather than the right id 901 nys2d 575 927 ne2d at 1061 citations and internal quotation marks omitted there being no express intention in the agreement that delawares statute of limitations was to apply to the parties dispute the choice of law provision cannot be read to encompass that limitations period id see also phillips v audio active ltd 494 f3d 378 384 2d cir2007 choice of law provisions generally implicate only the substantive law of the selected jurisdiction morson v kreindler kreindler llp 814 fsupp2d 220 225 edny2011 choice of law provisions typically apply to only substantive issues and statutes of limitations are considered procedural because they are deemed as pertaining to the remedy rather than the right quoting king 901 nys2d 575 927 ne2d at 1061here the alaska choiceoflaw provision contained in the policy is similarly standard stating only governing jurisdiction ak policy 3 and defining governing jurisdiction as the state or jurisdiction in which the policy is delivered and whose laws govern its terms id at 10 C. holding that the prosecutor was absolutely immune to civil suit for damages when the investigator acting under the authority of the district attorneys office told the plaintiffs landlord that he was not getting as much rent from plaintiffs lease as he could get from someone else because the investigator was performing an investigative function pursuant to the preparation of the prosecutors case and within the scope of the prosecutors duties in initiating and pursuing the states case D. holding that the question of whether an employee was acting within the course and scope of his employment or while performing duties related to the conduct of the employers business for purposes of insurance coverage were questions of fact that precluded summary judgment particularly since there was a question regarding the employees intent in performing the act in question E. recognizing that the state is entitled to prove all of the relevant ci t argues that the trial court erred by admitting the victims hearsay statements through the testimony of her children and of melvin gaither and through the admission of exhibit sixtyone the victims application for an order of protectiona hearsay statement is defined as a statement other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted tenn r evid 801c as a general rule a hearsay statement is not admissible unless it falls within one of the exceptions to the hearsay rule tenn r evid 802 the following standards define our review of the trial courts rulings on the admissibility of hearsayinitially the trial court must determine whether the statement is hearsay if the statement is hearsay then the trial court must next determine whether the hearsay statement fits within one of the exceptions to answer these questions the trial court may need to receive evidence and hear testimony when the trial court makes factual findings and credibility determinations in the course of ruling on an evidentiary motion these factual and credibility findings are binding on a reviewing court unless the evidence in the record preponderates against them once the trial court has made its factual findings the next questionswhether the facts prove that the statement 1 was hearsay and 2 fits under one of the exceptions to the hearsay ruleare questions of law subject to de novo reviewif a statement is hearsay but does not fit one of the exceptions it is inadmissible and the court must exclude the statement but if a hearsay statement does fit under one of the exceptions the trial court may not use the hearsay rule to suppress the statement however the statement may otherwise run afoul of another rule of evidence if a trial court excludes otherwise admissible hearsay on the basis of rule 401 402 or 403 this determination is reviewed for abuse of discretionkendrick v state 454 sw3d 450 47980 tenn 2015 citations omitted see also state v howard 504 sw3d 260 27576 tenn 2016 we now apply these principles to evaluate each of the defendants challenges to the trial courts evidentiary rulings1 admission of the testimony of the childrenthe trial court permitted each of the children to testify about hearing the victim tell the defendant that she was going to call the police concluding that this testimony was nonhearsay offered to show the effect the victims statements had on the defendant not the truth of the victims statements that she planned to call the police the court of criminal appeals affirmed the trial courts decision hawkins 2015 wl 5169157 at 18 and we do as wellthe childrens testimony regarding the victims threats to call the police was offered to establish the effect the victims statements had on the defendant and to establish the defendant murdered her because he believed she planned to call the police this testimony was not offered to establish the truth of the victims threats as a result the childrens testimony about the victims statements was properly admitted as nonhearsay see state v venable 606 sw2d 298 301 tenn crim app 1980 clearly the statement was probative not as proof of the matter asserted therein but because of its effect on the hearer in this case the defendant supplying evidence of his motive in returning to the service station later in the day armed and threatening to kill the declarant see generally neil p cohen et al tennessee law of evidence 8017 6th ed 2011 hereinafter tennessee law of evidence discussing nonhearsay declarations offered to prove the effect on the listener2 testimony of melvin gaitherthe trial court also allowed melvin gaither to testify about the victims statements to him concerning her fear of the defendant the trial court ruled that the victims statements were hearsayoffered for the truth of the matter asserted thereinbut admissible pursuant to the state of mind exception to the hearsay rule tenn r evid 8033 the court of criminal appeals affirmed hawkins 2015 wl 5169157 at 19 and we agree that this evidence was properly admittedthe state of mind exception authorizes the admission of a hearsay statementof the declarants then existing state of mind emotion sensation or physical conditions such as intent plan motive design mental feeling pain and bodily health but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution revocation identification or terms of declarants willtenn r evid 8033 here the defendant initially told the police that the victim left home in anger following an argument with him later the defendant admitted the victim had been murdered but claimed that kt had murdered her after kt and the victim argued the defendant maintained that he had not participated in the murder at all and had only assisted kt in covering up the crime and dismembering and disposing of the victims body the defendant never recanted his statement implicating kt and denying his own involvement in the victims murder the defendants statements placed at issue the victims mental state at the time of her murder the state was entitled to establish that the victim feared the defendant not kt at the time of her murder see smith 868 sw2d at 573 ruling that the victims hearsay statements expressing fear of the defendant were admissible under the state of mind exception and relevant to reveal the falsehood of the defendants statement to the police indicating that he and his wife the victim were reconciling state v trusty 326 sw3d 582 603 tenn crim app 2010 given the proof of the onagain offagain nature of the victims relationship with the defendant we conclude that the statements she made shortly before her death about her fear of the defendant were relevant and admissible under the state of mind exception to show not only her state of mind at thetime she uttered the statements but also her probable mental state and behavior at the time of her death the trial court did not err by admitting mr gaithers testimony about the victims statements pursuant to the state of mind hearsay exception3 application for order of protectionthe defendant next challenges the trial courts admission of the victims january 15 2008 application for an order or protection the application was admitted as exhibit sixtyone through the testimony of deborah coffman a counselor and records keeper for citizens dispute a shelby county government agency that assists persons in completing the application process for orders of protection the victims application included the following statementsthe defendant had the impression that he would be moving with me and my three children when he realized he was not moving he became violent pulling my hair and hit me on my right cheek jaw with his fist he was telling my twelve year old daughter to lock herself in the bathroom and to tell the police that i pulled her hair abused her he was not arrested for his violencehe wants my twelve year old daughter to be around him often sleep with him and she has changed telling lies and disrespectful i hope he hasnt molested her he says no and she says no but both have lied so im just trying to protect me and the childreni dont want him around me or my children i dont trust himthe application also included the victims statement that the defendant had told her she was wrong for taking kt from him and that he could get the victim without even having to touch her because he could get somebody else to get the victimthe trial court admitted the application pursuant to the forfeiture by wrongdoing exception to the hearsay rule explainingand im finding just so well all understand their relationship had deteriorated to such a point the victim and the defendant that at this point i think the recordthat the state has shown by a preponderance of the evidence from this hearing that the reason for the killing the motive for the killing would be to stop her from prosecuting him for things against her and her child because shes here talking about harassing phone calls and things like that so i think tennessee rule of evidence 8046 is going to apply to this case to that extentthe court of criminal appeals affirmed the trial courts ruling hawkins 2015 wl 5169157 at 19 we also affirm the trial courts rulingthe forfeiture by wrongdoing exception authorizes the admission of a hearsay statement against a party that has engaged in wrongdoing that was intended to and did procure the unavailability of the declarant as a witness tenn r evid 804b6 before admitting a hearsay statement under this exception the trial court must conduct a juryout hearing and determine that a preponderance of the evidence establishes 1 Reply with [A, B, C, D, E] only.

C

casehold

Read the following excerpt from a US court opinion: ``` made clear that “[f]or regulation of employees it is not necessary that the act regulated be anything more than an act reasonably deemed by Congress to interfere with the efficiency of the public service.” United Public Workers v. Mitchell, 330 U.S. 75, 101, 67 S.Ct. 556, 570, 91 L.Ed. 754 (1947). Later, with the full development of Pickering cases into a discrete area of First Amendment law, the Supreme Court reinforced United Public Workers’s holding. In 1983, the Court ruled that a governmental employer is not required to “tolerate action which he reasonably believe[s] would” cause the harm against which the prophylactic measure is directed. Connick v. Myers, 461 U.S. 138, 154, 103 S.Ct. 1684, 1693, 75 L.Ed.2d 708 (1983); see also Sanjour v. EPA, 984 F.2d 434, 440 (D.C.Cir.1993) (internal quotation marks and brackets ``` What is the most suitable continuation to the opinion? Your options are: A. holding that it is not B. holding that dismissal is proper for a derivative cause of action but not for a direct cause of action C. recognizing cause of action D. recognizing the cause of action E. holding that employer is not required to tolerate action which it reasonably believed would cause harm Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` with generally accepted accounting principles. 54 Fed. Reg. at 29,974. 4 19 C.F.R. § 177.10(c) appears to apply to rates of duty rather than appraisement issues. 5 Defendant’s Reply Brief did not clarify the Cheurón deference discussion in its brief-in-chief to note the refinement of Chevron found in the Supreme Court’s recent decision in Christensen. The government cannot pick and choose which Supreme Court cases it will follow. 6 Although the court concludes that TD 85-111 is not entitled to Chevron deference under a Christensen analysis, the court does not decide whether a similar policy promulgated through adjudication with the attendant procedural safeguards would warrant greater deference than that granted TD 85-111. Cf. INS v. Aguirre-Aguirre, 526 U.S. 415, 416 (1999) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, ``` What is the most suitable continuation to the opinion? Your options are: A. holding that where statute is ambiguous deference is appropriately accorded to agencys interpretation B. holding regulations entitled to chevron deference C. holding that in the absence of a statutory definition a term should be accorded its ordinary meaning D. recognizing that board of immigration appeals should be accorded chevron deference as it gives ambiguous statutory terms concrete meaning through a process of casebycase adjudication E. holding contract with ambiguous terms should not be dismissed on pleadings Reply with [A, B, C, D, E] only.

D

casehold

Read the following excerpt from a US court opinion: ``` the interrogations lasted more than a few hours. Appellant was offered food by the police and told he was free to leave the station at any time on Friday. Also, the police made sure that Appellant was well rested and fresh before they interrogated him on Saturday. In addition, when the police told Appellant that the hair found in Teresa’s hand matched Appellant’s hair, they were communicating the information that they received from SLED. Even if the information were untrue, it is not, alone, enough to render the confession involuntary. See Von Dohlen, 471 S.E.2d at 695; State v. Rabon, 275 S.C. 459, 272 S.E.2d 634 (1980)(“A misrepresentation, while relevant, may be insufficient to render inadmissible an otherwise valid confession”); State v. Register, 323 S.C. 471, 476 S.E.2d 153 (1996). Since the initial confession was voluntary, ``` What is the most suitable continuation to the opinion? Your options are: A. holding that the state court ruling was objectively unreasonable where prosecution failed to present sufficient evidence that the petitioner murdered a known drug dealer although the state established that the petitioner planned to rob drug dealers for drugs or money the victim was a known drug dealer who kept drugs in his freezer and that freezer was open and empty after the homicide the petitioner and the victim had engaged in drug transactions in the past the petitioner had a motive because he had seen the victim make a pass at the petitioners girlfriend and the petitioner had possessed and once purchased the murder weapon and a similar gun was seen in his home two weeks before the murder evidence placing the petitioner at the scene was conspicuously absent leaving only a reasonable speculation that the petitioner was present B. holding defendants confession was voluntary and admissible when police misrepresented to defendant that he had been seen with the victim the night she was murdered that his tires and shoe matched impressions found at the murder scene and that the police had dna evidence establishing defendants guilt C. holding a defendant was entitled to a directed verdict when none of the evidence presented by the state placed the defendant at the crime scene and the jury was left to speculate as to the defendants guilt D. holding that a police investigators lay opinion that the sole of the defendants athletic shoe matched a shoe print found on the center of the victims bedroom floor was permissible where the investigator had some experience in that area and was clearly testifying that the patterns matched which was not inconsistent with a crime lab report E. holding that case involving evidence such as eyewitness testimony placing the defendant at the scene acknowledgment by the defendant of a dispute with the victim and theft of the victims purse and dna evidence suggesting that the defendant had engaged in sexual relations with the victim could not be deemed entirely circumstantial Reply with [A, B, C, D, E] only.

B

casehold

Read the following excerpt from a US court opinion: ``` Section 1452 provides, in pertinent part, that “[a] party may remove a claim or cause of action to the district court for the district where such civil action is pending, if such district court has jurisdiction-of such claim or cause of action under section 1334 of this title.” Therefore, by its plain language, section 28 U.S.C. § 1452 differs from 28 U.S.C. § 1441(a) in that the former permits “a party” to remove a lawsuit to federal court while the latter permits removal by the “defendant or defendants” in the case. Accordingly, the Court finds that all of the Defendants to this action were not required to join in the notice of removal filed by Defendant American Security Insurance Company under 28 U.S.C. § 1452. See Creasy v. Coleman Furniture Corp., 763 F.2d 656, 660 (4th Cir.1985) . See also Daleske v. Fairfield Cmtys., Inc., ``` What is the most suitable continuation to the opinion? Your options are: A. holding that when a contract is signed by one party but not the other the manifestation of consent by the nonsigning party is sufficient to bind that party B. holding that parties may consent to jurisdiction on noncore matters C. recognizing that in a divorce action one partys limited partnership interest could not be assigned to the other party without the consent of the general partner D. holding that in bankruptcyrelated matters any one party may remove the state court action without the consent of the other parties E. holding that parties can stipulate that they were both parties to a contract and thus the real parties in interest even when one party did not sign the contract Reply with [A, B, C, D, E] only.

D

casehold

Read the following excerpt from a US court opinion: ``` jurisdiction over the supplemental state claims that plaintiff had also filed. Id. at 256. The court, citing 28 U.S.C. § 1367(c)(3), disagreed, stating, “[i]n a federal-question case, the termination of the foundational federal claim does not divest the district court of power to exercise supplemental jurisdiction but, rather, sets the stage for an exercise of the court’s informed discretion.” Id. at 256-257. Perhaps defendants mean to argue that the court must dismiss the pendent state claims because the federal claims have not only been determined to be without merit, but that they never were “substantial” within the constitutional sense in which that term was used in cases such as United Mine Workers v. Gibbs and Newman v. Burgin. Newman v. Burgin, 930 F.2d 955, 963 (1st Cir.1991) , citing United Mine Workers v. Gibbs, 383 U.S. ``` What is the most suitable continuation to the opinion? Your options are: A. holding that the power of a federal court to hear and to determine statelaw claims in nondiversity cases depends upon the presence of at least one substantial federal claim in the lawsuit and the district court has considerable authority whether or not to exercise this power in light of such considerations as judicial economy convenience fairness to litigants and eomity B. holding if the legislature had the power to confer upon the county commissioners jurisdiction to hear and determine the question as to whether or not a town was of undue extent and to deprive it of a part of its territory then the proceeding being statutory before a body of limited powers the record must show affirmatively that such a case was brought before them as they were authorized to hear and determine and that all the jurisdictional facts were found to exist where the jurisdiction and power to hear and determine depends upon the existence of a fact that fact must appear or the proceedings are coram non judice and void C. holding that no substantial question of federal law was required to be answered to determine the plaintiffs statelaw legal malpractice negligence and breach of contract claims D. holding that the power of a federal court to hear and to determine statelaw claims in nondiversity cases depends upon the presence of at least one substantial federal claim in the lawsuit E. recognizing a distinction between the power of a federal court to hear statelaw claims and the discretionary exercise of that power Reply with [A, B, C, D, E] only.

D

casehold

Read the following excerpt from a US court opinion: ``` been dismissed, that a wife “cannot state a claim for loss of consortium due to any alleged violation of [her husband’s] civil rights under Section 1983” (citing. Niehus, 973 F.2d at 533-34)); McNabb v. City of Memphis, No. 03-2334 ML/P, 2004 WL 2384958, at *6 (W.D.Tenn. Mar.8, 2004) (dismissing wife’s loss-of-consortium claim “as [it] relates to the 42 U.S.C. § 1983 claim because a § 1983 claim is personal to the individual claiming injury,” without further discussion except to note that “[p]laintiffs concedefd] that [wife] may not recover for loss of consortium pursuant to § 1983”; however, because plaintiffs also brought state law claims, wife’s loss-of-consortium claim in connection with those was not dismissed); Hakken v. Washtenaw County, 901 F.Supp. 1245, 1255 (E.D.Mich.1995) ; Jenkins v. Carruth, 583 F.Supp. 613, 616 ``` What is the most suitable continuation to the opinion? Your options are: A. recognizing cause of action for loss of consortium B. holding without discussion that since the state tort claims are dismissed there can be no claim for loss of consortium C. holding that a claim for loss of consortium cannot stand because there is no evidence of bodily injury sustained D. holding that wifes recovery for loss of consortium should not be reduced by the proportion of negligence attributable to husband because claim for loss of consortium is independent of the damages claim of the injured spouse E. recognizing loss of consortium claims Reply with [A, B, C, D, E] only.

B

casehold

Read the following excerpt from a US court opinion: ``` defense of her Indian status, and should not be considered for any purpose on appeal. Even so, these offenses show nothing pertinent because, for all we know, they are not even Bruce’s and we have no way of knowing whether tribal jurisdiction was contested or conceded. 2 . United States v. Rogers, 45 U.S. 567, 4 How. 567, 11 L.Ed. 1105 (1846). 3 . See Keys, 103 F.3d at 761(stating that lack of enrollment of two-year old who had been treated as member of the tribe by the tribe and her parents does not control determination of her Indian status); United States v. Broncheau, 597 F.2d 1260, 1263 (9th Cir. 1979) (upholding § 1153 indictment that charged defendant as an Indian against challenge that it was deficient for failing also to charge that he was enrolled as enrollment th Cir.1976) ; United States v. Heath, 509 F.2d 16, 19 (9th ``` What is the most suitable continuation to the opinion? Your options are: A. holding that evidence of having filed an application for enrollment in the yurok tribe and previous entry on the pawnee tribal roll and the fact that defendants had held themselves out to be indians within the meaning of 1153 established indian status under 1153 B. holding that a tribe had the inherent authority to prosecute a nonmember indian for assaulting a tribal member while on the reservation and that federal assault charges stemming from the same incident and filed after the nonmembers tribal assault conviction were based on a separate power source and therefore did not violate the double jeopardy clause C. holding that there was no constitutional problem because defendants were not subjected to federal criminal jurisdiction under 1153 on account of their indian race but because they are enrolled members of the coeur dalene tribe D. holding that indian tribes could only exercise criminal jurisdiction over tribal members and not other indians E. holding that alleged victim was nonindian given that she was not an enrolled member of the oglala sioux tribe or any other tribe and wasnt eligible for enrollment because she had not completed the requirements for tribal enrollment the medical services she had received from the indian health service were not in her own right the fact that the oglala sioux tribe had taken custody and placed the victim under the care of her grandmother an enrolled member was too insignificant an involvement to show tribal recognition as the victim was not enrolled or eligible for enrollment and she did not attend powwows indian dances or other indian cultural events and lived offreservation except for a brief period before she was abused Reply with [A, B, C, D, E] only.

A

casehold

Read the following excerpt from a US court opinion: ``` The Kentucky Supreme Court quickly rejected this claim on direct appeal, stating that “[t]he trial judge determined that the trial strategy used by Bowling’s counsel had a better chance of success than any of which the trial judge could think in light of the strong evidence of guilt presented by the prosecution.” Bowling I, 873 S.W.2d at 180. This claim of ineffective assistance of counsel fails. First, it is not clear that Bowling has shown constitutional deficiency. The Supreme Court has emphasized that the focus of the Sixth Amendment is not on “the accused’s relationship with his lawyer,” but on “the adversarial process.” Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) (quotation omitted); see also Dick v. Scroggy, 882 F.2d 192, 197 (6th Cir.1989) . Yet, the one-hour total consultation time ``` What is the most suitable continuation to the opinion? Your options are: A. holding that an order granting the media the right to interview a defendant in a capital murder case was unreviewable upon appeal in the criminal trial and therefore immediately appealable as a collateral order because the review on appeal would have been too late to cure any damage to the defendant from what was said in the interview B. holding duration of stop was reasonable as it lasted under thirty minutes C. holding that strickland was violated when the defendants counsel among many other deficiencies met with his client in a capital case for less than two hours D. holding that reasonable cause did not justify reopening deportation proceedings when the alien appeared thirty minutes late for the hearing because the alien and his attorney crossed signals about where to meet E. holding in a noncapital case that strickland was not violated when the defendants attorney did not interview the defendant until the night before trial and then for only thirty to fortyfive minutes Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` Allocco v. Dow Jones & Co., Inc., No. 02 Civ. 1029(LMM), 2002 WL 1402084, at *6 (S.D.N.Y. Jun. 27, 2002) (internal citations omitted) (citing Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86, 91 (1983)). New York law “implies a covenant of good faith and fair dealing, pursuant to which neither party to a contract shall do anything which has the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 407 (2d Cir.2006) (internal quotation marks and citation omitted). Accordingly, there can be no covenant of good faith implied unless there is a contract between two parties upon which to imply it. See Broder v. Cablevision Sys. Corp., 418 F.3d 187, 198-99 (internal quotations omitted). Here, the only ``` What is the most suitable continuation to the opinion? Your options are: A. holding that the implied covenant of good faith and fair dealing is limited to performance under a contract B. recognizing the basic principle of contract law that the obligation of good faith is an implied condition in every contract C. holding that the fine print terms at the bottom of an invoice imposing attorney fees were not terms upon which the parties agreed and therefore did not become part of the contract D. recognizing implied covenant to market gas E. holding that the implied covenant can only impose an obligation consistent with other mutually agreed upon terms in the contract Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` is subject to general rules of evidence but is "generally inadmissible"). Justice WALLACE, JR., concurring and dissenting. In my view, the Court is not required to address the difficult issue of whether the reasonable and articulable suspicion standard is a prerequisite to a consent search of a home. Defendant did not raise that issue at his suppression hearing or before the Appellate Division. We have frequently “expressed our reluctance to decide issues that were not addressed in the trial court or the Appellate Division.” Gac v. Gac, 186 N.J. 535, 547, 897 A.2d 1018 (2006). Moreover, “[w]e have applied that principle even when a constitutional issue is presented.” Ibid. Although the majority opinion recognizes that the issue of the standard for a consent search 2d 793 (1990) ; State v. Novembrino, 105 N.J. 95, 145-58, 519 ``` What is the most suitable continuation to the opinion? Your options are: A. holding state has burden of showing exception to prohibition against warrantless searches applies B. holding tacit consent to search of person was insufficient to prove consent to search bags where bags were not in defendants actual possession defendant merely pointed out bags at officers request and officer never specifically asked for consent to search bags C. holding that random searches of subway passengers carryon bags which include the visual inspection of the contents of such bags to be minimal D. holding that there was no reasonable expectation of privacy in the contents of plastic garbage bags left on or at the side of a public street E. holding warrantless searches of garbage bags left on curb for collection invalid under state constitution Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` section 2000e-5(g)(2)(B). Even still, under a proper application of Farrar a court should grant attorney’s fees whenever a plaintiff has successfully established a violation of section 2000e-2(m) and obtained either declaratory or some limited form of injunctive relief. Thus, under Farrar the answer to the first question posed above remains the same because it will only be under the most unusual circumstances that a plaintiff will not be awarded either of these remedies. To be eligible to recover attorney’s fees under section 1988 (the statute at issue in Farrar) a party must be the “prevailing party.” In Farrar the Supreme Court first held that a plaintiff who recovers only nominal damages is in fact a prevailing party for purposes of section 1988. 506 U.S. at 114, 113 S.Ct. at 574 . The Court then went on to decide what amount ``` What is the most suitable continuation to the opinion? Your options are: A. holding jurys finding of liability on partys claim does not bestow prevailing party status when party received no relief on that claim B. holding the prevailing party inquiry does not turn on the magnitude of the relief obtained in response to the question whether a nominal damages award is the sort of technical insignificant victory that cannot confer prevailing party status C. holding that a plaintiff who obtained a preliminary injunction was a prevailing party because he obtained significant courtordered relief that accomplished one of the main purposes of his lawsuit D. holding that the party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorneys fees E. holding that the prevailing party inquiry does not turn on the magnitude of the relief obtained Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` The mere fact that the accident occurred is not sufficient grounds for concluding that Mullins was probably negligent, and the doctrine of res ipsa loquitur is therefore inapplicable. See Drake, 924 P.2d at 1391. In his affidavit, Seligman asserts that the circumstances of the accident support an inference that Mullins may have fallen asleep at the wheel. However, Seligman’s opinion is insufficient to establish that “in the ordinary course of events, [the] injury would not [have] occur[red] except by the negligence of [Mullins].” Drake, 924 P.2d at 1391. Specifically, Seligman has not ruled out other possible causes of the accident and has therefore failed to establish a probability that the accident occurred as a result of Mullins’s negligence. See Mireles, 872 P.2d at 866 . Plaintiffs claim that the accident could only ``` What is the most suitable continuation to the opinion? Your options are: A. holding res ipsa loquitur inapplicable in case where both liability and causation had to be established by expert witnesses B. holding that permitting jury to find malpractice from blood draw without expert testimony by applying the doctrine of res ipsa loquitur instead of eliciting expert testimony as to the standard of care to be reversible error C. holding that in order to state a claim for ineffective assistance of counsel based on the failure to call a witness to testify the claimant must allege 1 the identity of the potential witness 2 that the witness was available to testify at trial 3 the substance of the witnesss testimony and 4 an explanation of how the omission of the testimony prejudiced the case D. holding that the burden of laying the proper foundation for the admission of the expert testimony is on the party offering the expert and admissibility must be shown by a preponderance of the evidence E. holding that while a foundation for an inference of negligence under the doctrine of res ipsa loquitur may be based on the testimony of an expert witness the experts testimony must establish that the occurrence indicates the probability of negligence Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` However, we believe that the ALJ’s limited reliance on the PRFCA was harmless because it was not the sole basis for his conclusion. The ALJ also relied upon substantial objective medical evidence that contradicted the opinions of Drs. Pascual and Gates, Humphreys’ treating physicians. First, the objective diagnostic findings of record contradicted the treating physicians’ opinions. In particular, Humphreys completed an exercise stress test in June 2001, performing at a level of at least 10.1 METS. See Guides to the Evaluation of Permanent Impairments, 170-71 (American Medical Association, ed. 4th ed.1995) (explaining that patients who can exercise from 7 to 16 METS are classified as having no resulting limitations); see also Moore v. Sullivan, 919 F.2d 901, 904 (5th Cir.1990) . Notably, Humphreys was able to exercise for ``` What is the most suitable continuation to the opinion? Your options are: A. recognizing that in the usual case no information or evidence comes to light more than one year after imposition of sentence B. holding that 101 mets is more than enough for the performance of light work C. holding that more than notice to a defendant is required D. holding an attorney does not have a duty to insure or guarantee that the most favorable outcome possible and because no amount of work can guarantee a favorable result attorneys would never know when the work they do is sufficiently more than adequate to be enough to protect not only their clients from error but themselves from liability E. holding that the more transformative the new work the more likely the use of the old work is a fair one Reply with [A, B, C, D, E] only.

B

casehold

Read the following excerpt from a US court opinion: ``` court clearly abused its discretion in denying Dillard’s motion to compel arbitration. Accordingly; without hearing oral argument, we conditionally grant the writ of mandamus and order the trial court to vacate its order denying Dillard’s motion to compel arbitration, and to enter a new order compelling arbitration of Garcia’s claims. Tex. R. App. P. 52.8(c). We are confident the trial court will comply, and our writ will issue only if it does not. 1 . Cf. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 230 n. 2 (Tex.2003) (citing cases supporting the rule that “if a party retains the unilateral, unrestricted right to terminate the arbitration agreement, it is illusory."); Tenet Healthcare Ltd. v. Cooper, 960 S.W.2d 386, 388-89 (Tex.App.-Houston [14th Dist.] 1998, pet. dism’d w.o.j.) ``` What is the most suitable continuation to the opinion? Your options are: A. holding that an employee handbook did not constitute a valid unilateral contract between the employee and employer in the absence of adequate independent consideration B. holding that an arbitration agreement in an employee handbook was illusory where the employer expressly reserved a right to unilaterally rescind any provisions of the handbook C. holding that contractual relationship between student and university did not include terms of the handbook because university retained right to unilaterally modify terms of handbook without notice plaintiff neither negotiated for nor assented to terms of contract and relevant correspondence did not call special attention to handbook D. holding that no modification of the original employment contract occurred when the employer unilaterally issued a new handbook E. holding that an agreement to arbitrate is illusory if as here the employer can unilaterally modify the contract Reply with [A, B, C, D, E] only.

B

casehold

Read the following excerpt from a US court opinion: ``` analysis applies when an aggravating circumstance is invalidated under McConnell. Accordingly, we conclude that the district court did not err by striking the felony aggravating circumstance, determining that the error was prejudicial given that it was the only aggravating circumstance found by the jury, and concluding that the appropriate remedy was a new penalty hearing. CONCLUSION For the reasons discussed above, we reject the State’s contention that McConnell was wrongly decided and conclude that a new penalty hearing is the proper remedy in cases where the sole aggravating circumstance has been struck. We therefore affirm the district court’s findings of fact, conclusions of law, and judgment. Gibbons, C. J., Douglas and Cherry, JJ., concur. 1 120 Nev. 1043, 102 P.3d 606 (2004) , rehearing denied, 121 Nev. 25, 107 P.3d 1287 ``` What is the most suitable continuation to the opinion? Your options are: A. holding that it is unconstitutional to base aggravating circumstance in capital prosecution on felony that was used to obtain firstdegree murder conviction B. holding that reversal of conviction for felony murder was required where jury failed to find the defendant guilty of the underlying felony as essential element of the felony murder offense C. holding that where both firstdegree and felony murder were possible bases for a murder conviction a jury instruction that suggested the jury could rely on felony murder as the predicate offense for a conviction for conspiracy to commit murder was improper because under arizona law a conviction for conspiracy to commit firstdegree murder requires a specific intent to kill D. holding that conspiracy to commit murder is not lesserincluded offense of firstdegree murder E. holding error is not harmless when the accused is convicted of firstdegree murder on a general verdict after a trial in which premeditation and felony murder theories are espoused if the felony underlying the felony murder charge is based on a legally unsupportable theory Reply with [A, B, C, D, E] only.

A

casehold

Read the following excerpt from a US court opinion: ``` to distribute electric power). Second, the Siewerts’ claims are based on “maintenance, operation or inspection.” Minn.Stat. § 541.051, subd. 1(d). The first negligence claim’s reference to “handling, supplying, distributing, selling and placing in the stream of commerce” can reasonably be construed as implicating the “operation” of the electrical system and its components. It falls under the excepti s sufficient to raise a triable issue. Minnesota courts have long rejected the argument that a plaintiff must establish a regulatory or statutory violation to establish a duty element. See Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11, 18 (Minn.1979) (explaining that industry cannot be permitted to set its own standard of care); Muehlhauser v. Erickson, 621 N.W.2d 24, 28 (Minn.App.2000) . Minnesota courts have also held that under ``` What is the most suitable continuation to the opinion? Your options are: A. holding that the jury need not be specifically instructed to find whether there is a connection between the defendant the weapon and the crime B. holding that only one statutory basis is required to find a child in need of aid C. holding in a securities fraud action that a court may only find the lack of materiality where a jury could not reasonably find materiality D. holding that to find negligence jury need not find violation of federal motorcarrier regulation E. holding that the grand jury need not find nonstatutory aggravating factors Reply with [A, B, C, D, E] only.

D

casehold

Read the following excerpt from a US court opinion: ``` the nature and limits of the expert’s testimony. Richey, 498 F.3d at 362. Fautenberry’s counsel could not be faulted for not diagnosing Fautenberry’s mental impairments on their own, but once they decided to present a psychologist to the sentencing panel, they were under an obligation to understand the basics of their witness’s testimony. See Richey, 498 F.3d at 362-63; Skaggs v. Parker, 235 F.3d 261, 269 (6th Cir.2000) (stating that counsel had “a responsibility to present meaningful mitigating evidence” when the court concluded that it was ineffective assistance of counsel when defense attorneys called a neurop-scyhologist who had falsified his credentials and whom counsel knew had previous ly done a laughable job at the first trial); Driscoll v. Delo, 71 F.3d 701, 709 (8th Cir.1995) . Because they failed to grasp the basics of ``` What is the most suitable continuation to the opinion? Your options are: A. holding that it was not error to allow the government to introduce urinalysis laboratory results from a california laboratory through a probation officer who had not prepared the report and without live testimony from the laboratory technicians because the hearsay was reliable and the proposed testimony was of little value B. holding that issuing judge may draw reasonable inferences from the material presented in the warrant application C. holding that an attorney was ineffective for failing to pursue a voluntary intoxication defense because he did not understand the elements D. holding that defense counsel was defective for failing to understand the laboratory tests performed and the inferences that one could logically draw from the results when challenging the states expert E. recognizing that police officers can draw inferences from prior experience Reply with [A, B, C, D, E] only.

D

casehold

Read the following excerpt from a US court opinion: ``` nolle prosequi, the trial court has broad discretion in making its findings regarding “good cause.” In striking the proper balance between the prosecution’s discretion to nolle prosequi an indictment and the Court’s power to prevent abuses of executive prerogative, courts have recognized that the prosecution is first and presumptively the best judge of where the public interest lies, and the trial court should not merely substitute its judgment for that of the prosecution. United States v. Hamm, 638 F.2d 823, 828 (5th Cir. 1981). Some courts have sought to further define the appropriate standard for making such decisions by recognizing that a court should defer to the prosecution’s request for nolle prosequi unless the prosecution is clearly wrong. Id., see Wallace, 848 F.2d at 1468 . Striking the proper balance in this area of ``` What is the most suitable continuation to the opinion? Your options are: A. holding not an abuse of discretion to deny funds B. recognizing the public interest exception C. recognizing courts discretion to deny dismissal if motion is prompted by considerations clearly contrary to public interest D. holding that after siegel courts no longer have the discretion to deny amended exemptions based upon equitable considerations E. holding it was not an abuse of discretion to deny funds Reply with [A, B, C, D, E] only.

C

casehold

Read the following excerpt from a US court opinion: ``` agreement between Local 1812 and USIA, see Collective Bargaining Agreement (“CBA”), Article II, § 1 (noting that bargaining unit includes “[a]ll non-professional and professional non-supervisory domestic General Schedule (GS & GG) ... employees of USIA nationwide”, with exceptions not applicable to Suzal); cf. id., Article XVI, § 3(b)(2) (observing that Smith-Mundt appointees “shall be assigned to positions identified as pay plan GG”), and under the terms of that agreement he could pursue grievances through the negotiated procedure even though he was outside the protection of the civil service laws, see id., Article XXIII, § 2(a) (entitling “any employee” to file a grievance). If dissatisfied with the Voice of America’s disposition of his grievances 743 F.2d 895, 912-15 (D.C.Cir.1984) . But both of Suzal’s theories about why the ``` What is the most suitable continuation to the opinion? Your options are: A. holding that shortterm layoffs of seasonal employees in accordance with conditions agreed upon at the start of employment are not furloughs within the meaning of 7512 B. holding interest derived from shortterm notes is an integral part of lone stars business since the surplus finds are produced by that business the investments are shortterm liquid made with the intent that both the principal and interest are to be used in the regular course of the taxpayers trade or business C. recognizing that in the absence of a statutory definition statutory terms are construed in accordance with their ordinary or natural meaning D. holding that the complaint stated a claim under the flsa where it alleged that parties were an employer and employees within meaning of act and that the defendantemployers operation constitutes an enterprise engaged in commerce within the meaning of the act E. holding that a state is not a person within the meaning of 1983 Reply with [A, B, C, D, E] only.

A

casehold

Read the following excerpt from a US court opinion: ``` Gen. Laws § 21—28—4.01(c)(2)(iii). Based on this change, the Defendant argues that law enforcement officers should be precluded from considering the smell of marijuana when determining if reasonable suspicion exists. (Def.’s Mot. to Suppress 16-17.) The Defendant cites to a case from the Supreme Judicial Court of Massachusetts for support. (Id. at 19-20.) For starters, and to state the obvious, the decisions of the Supreme Judicial Court of Massachusetts do not bind this Court, particularly when there is a First Circuit case that is controlling on this issue. Moreover, the U.S. District Court for the District of Massachusetts declined to adopt the same rule as the state court, citing Staula. See United States v. Thompson, No. 12-10365, 2014 WL 108312, at *3 (D. Mass. Jan. 13, 2014) . Furthermore, although it too would not be ``` What is the most suitable continuation to the opinion? Your options are: A. holding that the odor of marijuana is still a relevant factor in the totality of the circumstances analysis B. holding that the level of detail in testimony is a relevant factor in the totality of the circumstances test of credibility employed by immigration judges C. holding that the government bears the burden of proving voluntary consent under the totality of the circumstances D. holding reasonable suspicion is based on totality of circumstances E. holding that the reasonableness inquiry is based upon the totality of the circumstances in determining whether or not a search was reasonable Reply with [A, B, C, D, E] only.

A

casehold

Read the following excerpt from a US court opinion: ``` (noting as factors relevant to the showing “whether the party has a possessory interest in the things seized or the place searched; whether the party can exclude others from that place; whether the party took precautions to maintain the privacy; and whether the party had a key to the premises”). To meet the first part of the test with regard to items seized, the defendant must show by his conduct that he sought to preserve the items as private. Stallings, 28 F.3d at 60. Here, Defendant expressly disclaims having any ownership interest in the premises or the bag seized. As such, he lacks a sufficient privacy interest to support a motion to suppress the trash bag or the items located therein. See Pierson, 219 F.3d at 806; United States v. Sanders, 130 F.3d 1316, 1317-18 (8th Cir.1997) ; accord United States v. Porter, 107 F.3d 582, ``` What is the most suitable continuation to the opinion? Your options are: A. holding that a dog sniff during a legitimate traffic stop does not constitute a search because there is no expectation of privacy in contraband and a dog sniff does not violate any privacy interest B. holding that the driver of a borrowed car had the requisite legitimate expectation of privacy to support standing for fourth amendment purposes C. holding that the owner of a shoulder bag located on the front seat of his girlfriends car had a legitimate expectation of privacy in the bag and its contents D. holding that a car passenger had a legitimate expectation of privacy in his closed plastic shopping bag found on the floor of the car E. holding that the defendants statements disclaiming ownership of bag constitute a surrender of any legitimate expectation of privacy Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` identical to that at issue. Phila. Indem. Ins. Co. v. Chicago Title Ins. Co., 771 F.3d 391, 399 (7th Cir. 2014). 45 . Rood v. Commonwealth Land Title Ins. Co., 936 A.2d 488, 491 (Pa. Super. Ct. 2007) (internal citations omitted). 46 . In relatively recent unpublished decisions, the Pennsylvania Superior Court has interpreted the duty to defend in title insurance cases, without any suggestion of limiting the scope of the duty to defend either through the language of the policy or as a matter of Pennsylvania law. Stewart Title Guaranty Co. v. McClain, No. 3423 EDA 2014, 2016 WL 1436613 (Pa. Super. Ct. Apr. 12, 2016) (non-precedential); Dutch Run-Mays Draft, LLC v. Lawyers Title Ins. Corp., No. 2002 EDA 2012, 2013 WL 11250726, at *3 (Pa. Super. Ct. Nov. 13, 2013) (non-precedential) . The Court does not cite these ``` What is the most suitable continuation to the opinion? Your options are: A. holding that if there are multiple causes of action and one would potentially constitute a claim within the scope of the policys coverage the insurer would have a duty to defend until it could confine the claim to a recovery excluded from the policy internal quotation marks and citation omitted B. holding that an insurers duty to defend pursuant to an insurance contract arises whenever the complaint filed by the injured party may potentially come within the policys coverage C. holding that an insurer had no duty to defend in the absence of any cause of action amounting to a potentially covered offense under the insurance policy D. holding that apprendi error is harmless if the court finds beyond a reasonable doubt that the result would have been the same absent the error internal quotation marks and citation omitted E. holding that the insurer had no duty to defend the insured because the allegations of the initial complaint did not allege facts which would bring the case within the coverage of the title insurance policy Reply with [A, B, C, D, E] only.

A

casehold

Read the following excerpt from a US court opinion: ``` of access in the context of criminal trials, see Richmond Newspapers, 448 U.S. 555, 100 S.Ct. 2814, the federal courts of appeals have widely agreed that it extends to civil proceedings and associated records and documents. See, e.g., N.Y. Civil Liberties Union v. N.Y.C. Transit Autk, 684 F.3d 286, 305 (2d Cir.2011) (finding a right of access to administrative civil infraction hearings); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1061 (3d Cir.1984) (“We hold that the First Amendment does secure a right of access to civil proceedings.”); In re Cont’l Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th Cir.1984) (finding a right of access to litigation committee reports in shareholder derivative suits); Brown & Williamson Tobacco Corp. v. Fed. Trade Comm’n, 710 F.2d 1165, 1177 (6th Cir.1983) . The California Supreme Court has also so ``` What is the most suitable continuation to the opinion? Your options are: A. holding that the first amendment limits judicial discretion to seal documents in a civil case B. holding that the rigorous first amendment standard should also apply to documents filed in connection with a summary judgment motion in a civil case C. holding that the first amendment right of access applies to a summary judgment motion in a civil case D. recognizing that first amendment provides qualified right of access to judicial documents E. holding that there is no first amendment or common law right of access to documents which played no role in a judicial decision Reply with [A, B, C, D, E] only.

A

casehold

Read the following excerpt from a US court opinion: ``` stay is among the most basic of debtor protections under bankruptcy law.” Id. at 975; see also In re Steenstra, 280 B.R. 560, 566 (Bankr.D.Mass.2002). In re Weber, 283 B.R. 630, 633 (Bankr.D.Mass.2002). Section 362(a)(1) specifically bars “the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under [the Code] ....” 11 U.S.C. § 362(a)(1) (emphasis supplied). The statute is clear. The stay applies only to the debtor and not to co-defendants. Austin v. Unarco Industries, Inc., 705 F.2d 1, 4 (1st Cir.1983) , cert. dismissed, 463 U.S. 1247, 104 S.Ct. 34, ``` What is the most suitable continuation to the opinion? Your options are: A. holding that the automatic stay did not bar the filing of a proof of claim where the debtor actively litigated a separate action during the pending bankruptcy proceeding because to permit the automatic stay provision to be used as a trump card played after an unfavorable result was reached would be inconsistent with the underlying purpose of the automatic stay B. holding that although the automatic stay only applies to proceedings against the debtor counterclaims seeking affirmative relief against a debtor implicate the automatic stay C. holding judgment in violation of automatic stay void D. holding that the automatic stay applies to the debt ors appeal of an order entered in action brought against the debtor in the lower court E. holding that the protections of the automatic stay apply only to actions against the debtor Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` of the evidence____” Section 3731 prior to amendment did not speak to the level of proof. However, the United States Court of Appeals for the Sixth Circuit in construing the False Claims Acts required that allegations in a civil action be proven by showing “specific intent to defraud” the United States by “clear, unequivocal, evidence.” United States v. Ekelman & Associates, Inc., 532 F.2d 545, 548 (6th Cir.1976); United States v. Ueber, 299 F.2d 310, 314-15 (6th Cir.1962). While federal appellate courts are yet to address the issue of retroactive application of the 1986 amendments to the False Claims Act, other federal district courts have reached differing conclusions on the issue. See United States ex rel. Boisvert v. FMC Corporation, No. 86020163 (N.D.Cal. September 9, 1987) ; United States v. Bekhrad, 672 F.Supp. 1529 ``` What is the most suitable continuation to the opinion? Your options are: A. holding that only the amendments listed in lb110c may be applied retroactively using a 3582e2 motion B. holding that the protect act amendments to the standard of review apply retroactively C. holding generally that new rules of law should not be applied retroactively in habeas corpus cases D. holding that only the amendments listed in lb110c may be applied retroactively using a 3582c2 motion E. holding that the 1986 amendments may not be applied retroactively to cut off a defense which existed under the old law Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` would support any theory of innocence. During his plea colloquy, he admitted to the factual basis for his plea, and he has never denied that hundreds of pornographic images of children were found on his personal computer and computer disks in his residence. A mere assertion of innocence is not sufficient to contradict the defendant’s sworn admission of guilt at a plea hearing. See United States v. Rasmussen, 642 F.2d 165, 166-69 (5th Cir.1981); see also Carr, 740 F.2d at 344 (noting that if an assertion of innocence were enough to withdraw a guilty plea, withdrawal would be an automatic right). Felice contends that if he could prove that his attorney was ineffective, he would be entitled to withdraw his plea. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) . Felice alleged that his coun sel was ``` What is the most suitable continuation to the opinion? Your options are: A. holding that ineffective assistance can render a guilty plea involuntary B. holding defendant cannot waive claims of an illegal sentence a sentence violating terms of plea agreement an unknowing and involuntary plea and ineffective assistance of counsel C. holding that counsels failure to advise the defendant of the collateral consequences of a guilty plea cannot rise to the level of constitutionally ineffective assistance D. holding that defendant may raise claim of ineffective assistance of counsel on direct appeal only if ineffective assistance is conclusive from the record E. holding that right to appeal claim of ineffective assistance of counsel alleging that counsel failed to convey plea negotiations timely and adequately inform of consequences of pleading guilty to jury for sentencing waived because plea of guilty to jury was independent of and not supported by alleged ineffective assistance of counsel claims Reply with [A, B, C, D, E] only.

A

casehold

Read the following excerpt from a US court opinion: ``` by the fact that her brother had a drug problem or had been charged with a crime. As to the former rationale, other white jurors had made the same claim and had not been excused; as to the latter, it is not clear from the record that it was this particular juror who stated that her brother had been arrested. The trial court overruled the objection. The Melbourne decision charged the courts with the duty to insure that race-based peremptory challenges do not render the jury selection process fundamentally unfair. The penalty for such an improper peremptory challenge is a new trial. In this case, however, the incomplete, unreconstructed, and unavailable record has impeded this court from the exercise of this important duty. Compare Rozier v. State, 669 So.2d 358 (Fla. 3d DCA 1996) , with Velez v. State, 645 So.2d 42 (Fla. 4th ``` What is the most suitable continuation to the opinion? Your options are: A. holding that trial minutes were not sufficient substitute for transcript of voir dire and could not afford meaningful review when both sides exercised peremptory challenges B. holding that missing portions of transcript of voir dire did not entitle the defendant to a new trial for murder because the alleged errors in jury selection were harmless as a matter of law C. holding that defendants have a right to be present at voir dire D. holding that when the purpose of the request is to compare the testimony of jurors but no such comparison was made at the trial level a court need not provide a free voir dire transcript E. holding that peremptory challenges may not be exercised in a discriminatory manner Reply with [A, B, C, D, E] only.

A

casehold

Read the following excerpt from a US court opinion: ``` property at the time of his bankruptcy filing, which in that case was less than the $7500 homestead exemption. Id. at 115-116. To determine the value of the debtor’s equity, the court subtracted the amount of the other unavoidable liens from the fair market value of the property determined as of time of the bankruptcy filing. Id. at 116. Although the Third Circuit opinion did not expressly acknowledge what the result would be if the amount of the debtor’s equity exceeded the value of the $7500 homestead exemption, the Bankruptcy Court decision had recognized that the debtor could avoid the lien only to the lesser of the amount of the value of his equity or of the amount of his homestead exemption. 160 B.R. 524, 525-26 (Bankr.D.N.J.1993); see also In re Arevalo, supra, 142 B.R. at 115 ; cf. In re Abrahimzadeh, 162 B.R. 676, 680 ``` What is the most suitable continuation to the opinion? Your options are: A. holding that a chapter 13 debtor had standing to avoid a judgment lien to the extent of her exemption amount but not the entire judgment lien B. holding that debtor could not avoid a judicial lien where after accounting for unavoidable liens and mortgages he had no equity in the property and therefore no interest on which to avoid the judicial lien C. holding that 522f1 requires a debtor to have possessed an interest to which a lien attached before it attached to avoid the fixing of the lien on that interest D. holding that a state tax lien was not judicial lien arising from judgment such that it could be avoided in bankruptcy by a chapter 13 debtor E. holding state courts authority under iowa code section 59821 not the lien created there under prevented debtor from claiming the iowa homestead exemption and therefore the debtor could not avoid the lien because the lien did not impair an exemption to which the debtor would have been entitled but for the lien Reply with [A, B, C, D, E] only.

B

casehold

Read the following excerpt from a US court opinion: ``` the employee and such as to render the employee unfit for his or her position, thus making dismissal justifiable and for the good of the service.” Perry v. State Civil Serv. Comm’n, 38 A.3d 942, 951 (Pa.Cmwlth.2011) (citations omitted) (quoting Pa. Bd. of Prob. & Parole v. State Civil Serv. Comm’n, 4 A.3d 1106, 1112 (Pa.Cmwlth.2010)). Here, the Chancellor ultimately found that the University suspended and subsequently discharged Fisler as a result of his poor job performance over an extended period of time following repeated warnings relating to his poor job performance. Continuing and regular poor job performance in the face of repeated warnings certainly meets the requirements for a just cause termination. See, e.g., Wei v. State Civil Serv. Comm’n, 961 A.2d 254, 259 (Pa.Cmwlth.2008) , appeal denied, 601 Pa. 705, 973 A.2d 1008 ``` What is the most suitable continuation to the opinion? Your options are: A. holding that an employee could not be bound to an arbitration agreement that had been mailed to him by his employer acceptance of which was indicated by employees continued tenure with the company where there was no evidence in the record that the employee had received read or understood the document B. holding that an employees injury while on college grounds to report for first day of work before he reached either the administration building where he was to complete payroll forms or the athletic field house where he was to do the work was an injury suffered in the course of the employment C. holding that employees insubordination and continued unsatisfactory work performance provided just cause for employees removal where employee failed to complete or make progress on the project given to him even though he was capable of doing such project was offered help on the project was relieved of certain duties in order to complete the project and had been reprimanded for not having completed the project D. holding that a note delivered by an employees mother which stated that the employee was having a lot of pain in her side and would not be able to work that day and the mothers statement that the employee was sick were insufficient as a matter of law to inform the employer that the employees request to take time off was for a serious health condition within the meaning of the fmla E. holding that employees performance was unsatisfactory in part because he was tardy on a regular basis Reply with [A, B, C, D, E] only.

C

casehold

Read the following excerpt from a US court opinion: ``` King v. VeriFone Hldgs., Inc., 12 A.3d 1140, 1145 n. 24 (Del.2011) (citation omitted); Grimes, 673 A.2d at 1216. 41 . In re Oracle Corp. Deriv. Litig., 824 A.2d 917, 941 n. 62 (Del.Ch.2003). 42 . See N.Y. Stock Exchange, Listed Company Manual § 303A.02 (2013), http://nysemanual. nyse.com/lcm [hereinafter NYSE Rules] ("Independence Tests”). 43 . Byorum Dep. 11:17-21. 44 . Id. at 13:15-16, 88:20-23. 45 . Pis.' Br. in Opp’n 13-14; Byorum Dep. 56:6-60:3. 46 . Byorum Dep. 14:2-9. 47 . Id. at 20:15-20. 48 . Id. at 57:12-17, 60:22-61:4. 49 . Mat 59:14-20. 50 . Beam ex rel. Martha Stewart Living Omnimedia, Inc. v. Stewart, 845 A.2d 1040, 1050-54 (Del.2004); see Byorum Dep. 19:4-6. 51 . Byorum Dep. 16:5-9. 52 . See, e.g., Crescent/Mach I P'rs, L.P. v. Turner, 846 A.2d 963, 980-81 (Del.Ch.2000) ; State of Wisc. Inv. Bd. v. Bartlett, 2000 WL ``` What is the most suitable continuation to the opinion? Your options are: A. holding that there was a sufficiently direct relationship between restricting the defendants selfemployment as a roofer and his bank fraud conviction when the defendant used his roofing business to facilitate the fraud and after his initial sentence he failed to provide information about his business activities to his probation officer B. holding that a defendant who fails to raise a specific issue as the basis for suppression in a motion to suppress to the district court has waived the right to raise that issue on appeal C. holding that the special relationship exception does not apply to the relationship between a student and a school D. holding that an allegation that there was a longstanding 15year professional and personal relationship between the controlling stockholder and a director alone fails to raise a reasonable doubt that the director could not exercise his independent business judgment in approving the transaction E. holding that defendant did not have a special responsibility to exercise independent judgment in the plaintiffs behalf and to look after the plaintiffs interests Reply with [A, B, C, D, E] only.

D

casehold

Read the following excerpt from a US court opinion: ``` reads: The pledge of allegiance to the flag ... shall be rendered by students standing with the right hand over the heart. The pledge of allegiance to the flag shall be recited at the beginning of the day in each public elementary, middle, and high school in the state. Each student shall be informed by posting a notice in a conspicuous place that the student has the right not to participate in reciting the pledge. Upon written request by his or her parent, the student must be excused from reciting the pledge. 2 . See Circle Schools v. Pappert, 381 F.3d 172 (3d Cir.2004) (applying strict scrutiny to, and holding unconstitutional, a requirement that a parent must be notified if a child chooses not to say the pledge); Sherman v. Cmty. Consol. Sch. Dist. 21, 980 F.2d 437 (7th Cir.1992) ; Goetz v. Ansell, 477 F.2d 636, 637-38 (2d ``` What is the most suitable continuation to the opinion? Your options are: A. holding a regulation is contentneutral as long as it is justified without reference to the content of the regulated speech B. holding that it may not C. holding that mandamus is only available to confine an inferior comt to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so D. holding that congress may impose its will on the states as long as it is acting within the powers granted by the constitution E. holding that a school may have its classes recite the pledge so long as it does not compel pupils to espouse its content Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` Court set forth the appropriate standard of judicial review of benefit determinations by fiduciaries or plan administrators in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The Court held that a denial of benefits challenge under 29 U.S.C. § 1132(a)(1)(B) should be reviewed under a de novo standard unless the benefit plan grants the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Firestone, 489 U.S. at 115, 109 S.Ct. 948. When a plan grants such authority, the abuse of discretion standard applies. Id. Thus, Raytheon argues, under Firestone, deference should be given to the administrator’s determination that Ms. Hogan wa , 174 F.3d 606, 611 (5th Cir.1999) . Moreover, we agree with the district court ``` What is the most suitable continuation to the opinion? Your options are: A. holding statutory interpretation is subject to de novo review B. holding that we review issues of statutory interpretation de novo C. recognizing that the standard of review for issues of statutory interpretation and construction is de novo D. holding that the court should review de novo the administrators decision that a property settlement agreement constituted a qdro because it involves interpretation of a settlement agreement and statutory construction not interpretation of the plan E. holding that a settlement agreement is not a court order and therefore a violation of the settlement agreement would not subject a party to contempt Reply with [A, B, C, D, E] only.

D

casehold

Read the following excerpt from a US court opinion: ``` practical and lawful meaning to their terms.” Id. (citing Whitley v. Royal Trails Property Owners’ Association, Inc., 910 So.2d 381 (Fla. 5th DCA 2005)). This Court finds that this observation militates more in favor of Plaintiffs legal position. This Court finds that the cases cited by Defendants are distinguishable because they involved parties to a contracts that attempted to terminate an agreement based on the other party’s alleged breach, unlike the situation in this case where the Defendants that breached are the parties attempting to terminate. See, e.g., Burger King Corp. v. Mason, 710 F.2d 1480, 1490 (11th Cir.1983) (finding some of franchisee’s breaches immaterial); Westcap Gov’t Secs., Inc. v. Homestead Air Force Base Fed. Credit Union, 697 F.2d 911, 913 (11th Cir.1983) . This Court agrees that facts of the cases ``` What is the most suitable continuation to the opinion? Your options are: A. holding that such information is not material under securities law B. holding that in the absence of a termination provision an eight day late delivery of mortgagebacked securities was not so material that it entitled the buyer to terminate the contract C. holding that where an oral contract was removed from the statute of frauds by clear and convincing evidence under arkansas law the defendant could not terminate the contract at its will only a contract of indefinite duration may be so terminated D. holding that a seller could enforce an arbitration provision against a buyer even though only the buyer had signed the provision E. holding an arbitration clause contained in confirmations sent to buyer by seller was part of parties course of dealing and therefore part of the contract after buyer had repeated opportunities to object to the clause and had failed to do so Reply with [A, B, C, D, E] only.

B

casehold

Read the following excerpt from a US court opinion: ``` Bay Boot-ery account. D. In or about July, 1995, Michael caused Thomas Lazarus of Federated Insurance Company to mail an approved estimate, authorizing the payment of over $27,000 for repairs to a late model Mercedes to Finish Line Too in Garden City Park. E. On or about July 10, 1995, Michael caused Federal Insurance Company to issue and send through the mail a check payable to Bristol Manor in the amount of $27,796.37 for repairs to a Mercedes Benz automobile. F. The defendants used or caused to used the mails on numerous other occasions, the precise dates of which are presently unknown. Compl. ¶ 87. Reviewing these allegations as a whole the Court finds that Zigman has sufficiently pled a single instance of mail fraud sufficient to support a RICO claim. See Altman, 48 F.3d at 103 . In paragraph A, Zigman alleges that the ``` What is the most suitable continuation to the opinion? Your options are: A. holding a defendant may be convicted of mail fraud if he knowingly and willfully participates in a fraudulent scheme created and set in motion by others B. holding that the first element of mail fraud knowing participation in a scheme to defraud can extend beyond the specific mailing and that the loss calculation for a mail fraud conviction may include any loss from the fraudulent scheme that the mailing furthered C. recognizing that where the looting is complete before the mailing is made a claim for mail fraud will not lie D. recognizing that a mailing must be sufficiently related to the fraudulent scheme to support a charge of mail fraud E. holding that mailing of titleregistration forms satisfied mailing requirement because they contributed to success of the scheme Reply with [A, B, C, D, E] only.

D

casehold

Read the following excerpt from a US court opinion: ``` friendly or collusive lawsuits between family members.” Reid, 352 So.2d at 1173. Moreover, even if Florida did hot have a stated policy interest in allowing family member exclusions, the West court skipped the analysis of competing state interests when a clause in an out-of-state insurance contract explicitly conflicted with Pennsylvania policies and law. West, 807 A.2d at 920. Thus, the Court must next analyze the relevant contacts the states have with the underlying insurance contract. Florida’s contacts with the insurance policy outweigh Pennsylvania’s interest in the application of its law. See Hammersmith, 480 F.3d at 226-27. Mr. and Ms. Weber are residents of Florida, and so the “place of delivery” for the insurance benefits would also be in that state. Ryan, 619 F.Supp.2d at 138 . Furthermore, the insurance contract was ``` What is the most suitable continuation to the opinion? Your options are: A. holding that when determining the adequacy of a jury charge an appellate court should look to the record and the closing arguments to place the words of the judge in context B. holding that in cases of a false conflict of law a court may apply the law of the forum state C. holding that in determining whether a purchase is for nominal consideration the trial court must look to the reasonable value of the interest acquired D. holding that circuit courts failure to apply statute according to its clear and unambiguous terms amounted to failure to apply clearly established law E. recognizing that a court may look to the place where the failure to receive the expected benefits was felt in determining which law to apply Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` her whole for the wrongs she suffered. As to her additional claims under Title VII, namely her sexual harassment and hostile work environment claims, it is unlikely this Court would be with jurisdiction to entertain them, as it appears that Figueroa has not exhausted her administrative remedies. The charges filed by Figueroa before the EEOC on November 3, 2008; August 10, 2008; September 16, 2010; and March 30, 2011 all contain a checkmark under retaliation, but none under discrimination based on sex. Thus, it appears that Figueroa’s Title VII claims of sexual harassment and hostile work environment have not been under the scrutiny of the EEOC; as such, allowing Figueroa to intervene with them would probably prove futile. See Morales-Vallellanes v. Potter, 339 F.3d 9, 18 (1st Cir.2003) ; and United States v. Glens Falls Newspapers, ``` What is the most suitable continuation to the opinion? Your options are: A. recognizing ageplusgender discrimination claim when complaint brought claims under adea and title vii B. holding that plaintiffs eeoc charge alleging sex discrimination did not encompass claim of sexual harassment subsequently asserted in title vii action in federal court because the facts underlying sexual harassment claim could not be inferred from the factual assertions made in the eeoc charge nor would they have been uncovered absent specific allegations to indicate such a cause of action existed C. holding that plaintiff stated a discrimination claim despite not including a discrimination heading in eeoc complaint because the facts included in eeoc complaint were sufficient to trigger an investigation into whether plaintiff suffered an adverse action because of his religion D. holding that the allegations in the complaint stated a cause of action under section 376313 E. holding that a title vii cause of action is limited to those discrimination allegations in the complaint that have been under the scrutiny of a formal eeoc complaint Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` the afternoon “chopping wood and dismantling a fireplace” was inconsistent with the intoxication defense). Petitioner’s ability to speak intelligibly while allegedly intoxicated also contradicts his intoxication theory. Petitioner’s speech, even after he had consumed all the alcohol that he claims to have consumed, was understandable to both Eggleston and Detective Guevara, as Eggleston was able to repeat Petitioner’s words verbatim at trial, and Guevara testified that Petitioner had explained the details of being robbed by one male and one female on “the footbridge that goes across Little Patuxent Parkway from the waterfront towards the mall.” Such clear, detailed speech is inconsistent with the level of intoxication required to negate a specific intent. See Netter, 79 So.3d at 483 . Furthermore, Petitioner’s decision to wear a ``` What is the most suitable continuation to the opinion? Your options are: A. holding that evidence of an addiction does not warrant an instruction on involuntary intoxication B. holding that in a criminal trial the trial court must correct or amend an improper instruction if the proper instruction is necessary for the jury to understand the case C. holding that the evidence did not generate an intoxication instruction because among other things a witness testified that you could understand what the defendant was talking about D. holding that failure to request jury instruction about manner in which evidence was obtained was not error and thus did not constitute ineffective assistance because defendant was not entitled to instruction E. holding prior testimony was admissible where the witness who first testified during a suppression hearing was murdered after he testified where the defendant was represented by counsel who had extensively crossexamined the witness Reply with [A, B, C, D, E] only.

C

casehold

Read the following excerpt from a US court opinion: ``` Pro/E software in this case constituted a sale of goods, the first issue to be resolved is whether Massachusetts law allows parties to a contract for a sale of goods to contractually limit damages, and provide limitations periods on initiation of contractual claims. Under Massachusetts law, a contractual one year limitations period does not violate Massachusetts public policy, and is expressly permitted under the Massachusetts UCC. Mass. Gen. Law ch. 106 § 2-725; Hays v. Mobil Oil Corp., 930 F.2d 96, 100 (1st Cir.1991). Similarly, the Massachusetts UCC allows parties to a contract for the sale of goods to limit damages as long as such limitation would not be unconscionable. Mass. Gen. Law ch. 106 § 2-719. See also, PC COM, Inc. v. Proteon, Inc., 946 F.Supp. 1125, 1138 (S.D.N.Y.1996) . Similarly, Massachusetts law permits parties ``` What is the most suitable continuation to the opinion? Your options are: A. holding fee splitting provision of arbitration agreement unconscionable under california law B. holding that tort law and the law of punitive damages are not controlled by the contract choice of law provision C. holding that under massachusetts law contractual provision in computer goods sales contract limiting consequential damages was not unconscionable D. holding arbitration provision of automobile installment sales agreement unconscionable E. holding the class action waiver provision of cellular telephone service contract unconscionable Reply with [A, B, C, D, E] only.

C

casehold

Read the following excerpt from a US court opinion: ``` a credit on any amount previously paid the employee pursuant to G.S. § 97-61.5. Further, the remaining provisions of G.S. § 97-61.5 providing for loss of other benefits “if the employee thereafter engages in any occupation which exposes him to the hazards of asbestosis or silicosis without having obtained the written approval of the Industrial Commission as provided in G.S. 97-61.7” must still apply. Under any other interpretation, a plaintiff whose lung impairment is due to silicosis or asbestosis, rather than another occupational lung disease, would be denied access to potential compensation provided by G.S. § 97-31(24), a result which appears to us to be patently unfair and possibly constitutionally infirm. See, e.g., Walters v. Blair, 120 N.C. App. 398, 462 S.E.2d 232 (1995) . By a separate assignment of error, plaintiff ``` What is the most suitable continuation to the opinion? Your options are: A. holding that phrase old ways is not evidence of adea agebased animus as such terms apply more to a persons state of mind than to a persons age B. holding that a plaintiffs lack of knowledge regarding the number of affected persons does not bar class certification when defendant has the means to identify those persons at will C. holding that svp defendants are not similarly situated to other civil detainees because persons subject to illinois svpa possess characteristics which set them apart from the greater class of persons who fall within illinois civil commitment statutes and such persons present different societal problems D. holding that the trial courts authority to initiate workers compensation benefits before the final adjudication was not divested by the legislature and was consistent with the stated purpose of the workers compensation act E. holding a workers compensation statute unconstitutional because it treats persons with asbestosis differently than persons with other occupational diseases and does so without any valid reason Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` of coverage prevented an insured from taking steps to prevent a loss is sufficient to support a jury finding that the misrepresentation was a producing cause of damages.”). Nevertheless, Defendants insist that Plaintiffs claim must be dismissed because she does not allege that Walker provided any false Information — and, accordingly, that she does not adequately allege the second element of a negligent misrepresentation claim. (MTD at 22.) “[T]o prove negligent misrepresentation,” they claim, “a plaintiff must establish that the defendant gave false in formation”; “[misleading but not false information is insufficient....” (MTD at 22.) While at least one Texas court has agreed with Defendants’ contention, see Continental Savings Ass’n v. Collins, 814 S.W.2d 829, 833 (Tex.App.1991) , that court cited no precedent and relied ``` What is the most suitable continuation to the opinion? Your options are: A. holding negligent misrepresentation sufficient B. holding that the furnishing of misleading information cannot support a claim for negligent misrepresentation the information must be false C. holding that the essential element for determining whether or not a claim was a misrepresentation claim within the meaning of section 2680h was reliance by the plaintiff upon the false information D. holding failure to disclose may constitute supplying false information to support negligent misrepresentation claim where such failure breaches a statutory duty E. holding that a defamation claim cannot be sustained for truthful information in a credit report even if the information reported supports misleading inferences Reply with [A, B, C, D, E] only.

B

casehold

Read the following excerpt from a US court opinion: ``` the permissible scope of detention for a routine traffic stop based on an equipment violation. We have held that a police officer may, during a routine traffic stop, “ask about the driver’s authority to operate the vehicle,” check the driver’s license and registration, and ask about travel plans. Holt, 264 F.3d at 1221. The officer may also ask a driver to remove an obstruction from a vehicle’s dashboard if the vehicle’s VIN is not otherwise visible from outside the car. Caro, 248 F.3d at 1245. However, we have generally required that further questioning by an officer of an investigative nature, including a request to search a vehicle, be legitimately related in its investigative purpose to the officer’s reasonable and articulable suspicion of criminal activity. See id. at 1246 ; United States v. Doyle, 129 F.3d 1372, 1377 ``` What is the most suitable continuation to the opinion? Your options are: A. holding an officer could not ask for consent to search a cars passenger compartment for an additional vin when the vin on the dashboard was visible from outside the car B. holding that an evidentiary basis for the search was lacking because gant was arrested for driving with a suspended license an offense for which police could not expect to find evidence in the passenger compartment of his car C. holding that the presence of a gun in a cars passenger compartment supported the possibility that the cars trunk contained ammunition additional weapons andor other contraband D. holding that although search of passenger compartment was legal search of trunk was not E. holding that an officer clearly had probable cause to search the passenger compartment of the vehicle without a warrant based on the burning marijuana he smelled as he approached the car Reply with [A, B, C, D, E] only.

A

casehold

Read the following excerpt from a US court opinion: ``` to lift the restitution lien. First, the Mandatory Victims Restitution Act (“MVRA”) requires full, not partial, restitution. 18 U.S.C. § 3663A, 3771(a)(6); United States v. Grice, 319 F.3d 1174, 1177 (9th Cir.2003) (per cu-riam). The district court does not have the authority to discharge a restitution obligation that is not fully satisfied. Here, the restitution obligation has not been fully satisfied. Moreover, a civil settlement in bankruptcy court does not discharge the criminal restitution obligation mandated by the MVRA. A bankruptcy settlement subsequent to the imposition of restitution in criminal court does not waive the requirement of restitution. See United States v. Edwards, 595 F.3d 1004, 1014 (9th Cir. 2010); see also United States v. Cloud, 872 F.2d 846 (9th Cir.l989) . This is so because restitution serves penal ``` What is the most suitable continuation to the opinion? Your options are: A. holding that because the state was not a party to a settlement agreement a civil release of claims does not and cannot specifically preclude courtordered restitution in a criminal case B. holding that the existence of a prior bankruptcy settlement does not preclude a subsequent criminal restitution order C. holding that a district court may order restitution despite a settlement agreement D. holding that equitable restitution is available but that legal restitution is not E. holding that the dismissal of a civil action in state court does not preclude a restitution order on the same claim Reply with [A, B, C, D, E] only.

B

casehold

Read the following excerpt from a US court opinion: ``` Budget chose a federal forum for a declaration under Hawaii law. In balancing the relevant factors under such circumstances, “[t]his kind of forum shopping could be avoided by requiring district courts to inquire into the availability of state court proceedings to resolve all issues without federal intervention.” Id. Here, we cannot determine from the present record if the district court considered whether Budget could have filed an action for indemnification, or for a declaration under Hawaii law, either on the date this federal action was filed, or on the date the district court decided the merits of the novel state issues presented in the complaint. We are not certain that the district court “came up with the right answer” when it decided the merits. See Golden Eagle, 95 F.3d at 812 . Therefore, the district court’s failure to ``` What is the most suitable continuation to the opinion? Your options are: A. holding that sentencing error is harmless if the error did not affect the district courts selection of the sentence imposed B. holding that the district courts error in exercising jurisdiction was harmless error because the court properly applied the relevant state law to the undisputed material facts and came up with the right answer C. holding that even if the district court erred in sustaining the objection the error was harmless because the witness answered the question in the negative and the court did not strike his answer D. recognizing that where material facts are undisputed the court only decides the application of relevant law E. holding that the district courts error in calculating the amount of drugs at issue was harmless because the error had no impact on the defendants sentence Reply with [A, B, C, D, E] only.

B

casehold

Read the following excerpt from a US court opinion: ``` behavior was consistent with methamphetamine use, his subjective belief — that defendant’s methamphetamine use provided a sufficient basis for concluding that she presently possessed methamphetamine — was not objectively reasonable. Although “‘reasonable suspicion’ is a relatively low barrier[,]” State v. Jones, 245 Or App 186, 192, 263 P3d 344 (2011), and “[c]ertainty about the significance of particular facts is not required for a police officer to hold a reasonable belief that they indicate criminal conduct,” State v. Briggs, 229 Or App 660, 666, 212 P3d 1276 (2009), evidence of methamphetamine use, without more, does not give rise to reasonable suspicion that defendant presently possesses more methamphetamine. Cf. State v. Lavender, 93 Or App 361, 364, 762 P2d 1027 (1988) ; State v. Morton, 151 Or App 734, 739, 951 P2d ``` What is the most suitable continuation to the opinion? Your options are: A. holding police officer had probable cause to believe defendant was operating a motor vehicle under the influence of alcohol B. holding inter alia that experienced officers observations that the defendant was under the influence of either methamphetamine or cocaine did not by itself establish probable cause to believe that the defendant had committed a crime C. holding among other things that the officers observations that the defendant was under the influence of a controlled substance without more did not establish probable cause to believe that the defendant had committed a crime D. holding that where other evidence established probable cause to believe that the defendant possessed controlled substances investigating officers had probable cause to search the defendants purse for similar evidence E. holding that the purpose of a preliminary examination is to determine whether there is probable cause to believe that a crime was committed and whether there is probable cause to believe that the defendant committed it Reply with [A, B, C, D, E] only.

C

casehold

Read the following excerpt from a US court opinion: ``` “Aside from considerations of race, religion or constitutionally protected conduct, none of which appear to be involved here, a public employee still assumes the risk, as far as the Constitution is concerned of being discharged for personal or political reasons.” 285 F.Supp. at 662. More importantly, there was a clear holding of the Pennsylvania Supreme Court that affirmed the legality of such patronage firings. In 1971, Pennsylvania transportation workers sought to challenge the dismissals they anticipated under a forthcoming change of administration. AFSCME v. Shapp, 443 Pa. 527, 280 A.2d 375 (1971). Plaintiffs contended that they “should be entitled to notice and a hearing before discharge, and that political affiliation is not a proper or lawful basis or ground for discharge.” ) , as well as in the strong dissents to the ``` What is the most suitable continuation to the opinion? Your options are: A. holding that a case is moot when the parties lack a legally cognizable interest in the outcome B. holding claim is not cognizable C. holding claim is cognizable D. holding a claim for patronage dismissal was legally cognizable E. holding that claims for negligent mortgage servicing are not legally cognizable under alabama law Reply with [A, B, C, D, E] only.

D

casehold

Read the following excerpt from a US court opinion: ``` remedies before filing their petitions. A court of appeals “may allow the petition to be filed after the 60th day only if there are reasonable grounds for not filing by the 60th day.” 49 U.S.C. § 46110(a); see also Sierra Club v. Skinner, 885 F.2d 591 (9th Cir.1989). We have suggested before that an attempt to exhaust remedies may be a reasonable ground for delay. See Watson v. Nat’l Transp. Safety Bd., 513 F.2d 1081, 1082 (9th Cir.1975) (“Even if we assume that the sixty day statute of limitations ... [is] tolled ... when [petitioner] erroneously filed his petition with the NTSB, the filing was yet several years overdue.”). The Eighth Circuit has explicitly recognized exhaustion as a reasonable ground under § 46110(a). See Reder v. FAA, 116 F.3d 1261, 1263 (8th Cir.1997) . Crediting the lapse of time necessary for ``` What is the most suitable continuation to the opinion? Your options are: A. holding there is no statutory requirement that a taxpayer exhaust administrative remedies before filing a complaint in the tax court B. holding that an unsuccessful attempt to exhaust administrative remedies was a reasonable ground for not filing an appeal by the sixtieth day C. holding that a plaintiff need not exhaust his administrative remedies to bring a retaliation claim D. holding that federal prisoners need not exhaust their administrative remedies before filing suit in federal court E. holding an inmate must exhaust all available administrative remedies before filing suit and if exhaustion was not completed at the time of filing dismissal is mandatory Reply with [A, B, C, D, E] only.

B

casehold

Read the following excerpt from a US court opinion: ``` the encounter and proceed on his or her way. T16 Due to the factors discussed above, we find that Hansen remained seized for Fourth Amendment purposes when, and because, Officer Huntington asked him whether there was alcohol, drugs, or weapons in the vehicle. Likewise Hansen was seized for Fourth Amendment purposes when Officer Huntington requested consent to search the car. The State concedes that Officer Huntington did not have a reasonable articulable suspicion of more serious eriminal activity to justify the investigative questions. Therefore, Hansen was illegally detained when Officer Huntington asked him questions that were not reasonably related in scope to the traffic violation which justified the initial sei-zare. See United States v. Walker, 933 F.2d 812, 816 (10th Cir.1991) . II. Voluntariness of Consent {17 We now turn ``` What is the most suitable continuation to the opinion? Your options are: A. holding that an officers single unrelated question regarding weapons that took only seconds did not unreasonably extend traffic stop B. holding that defendant was unreasonably seized under fourth amendment when officer detained him to ask questions unrelated in scope to the reasons that justified the initial traffic stop C. holding that a traffic stop is reasonable under the fourth amendment when police have probable cause to believe a traffic infraction has occurred D. holding that passengers of automobiles that are pulled over by a police officer for a traffic stop are seized under the fourth amendment E. holding that a traffic stop is valid under the fourth amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring Reply with [A, B, C, D, E] only.

B

casehold

Read the following excerpt from a US court opinion: ``` ACCA sentence was still appropriate, relying in part on Taste’s three Massachusetts “larceny from the person” convictions, it agreed to resentencing in light of Simmons. Accordingly, the district court, accepting the magistrate judge’s recommendation, granted the § 2255 motion as to Taste’s Simmons claim, vacated the judgment, and ordered resentencing. At resentencing in July 2014, the district court concluded that Taste’s prior Massachusetts convictions for larceny from the person were violent felonies for purposes of the ACCA, and again applied the enhanced sentence of 180 months’ imprisonment. The district court imposed the same conditions of supervised release as it did at the first sentencing, including the following special condition: The defendant shall subm (1st Cir.2005) . Next, Taste argues the district court erred ``` What is the most suitable continuation to the opinion? Your options are: A. holding that any error was harmless and thus not plain error B. holding district courts erroneous delegation of authority to probation officer to determine maximum number of drug tests to be administered was not structural error and therefore did not constitute plain error C. holding that because of unsettled case law district courts error was not obvious and therefore not plain D. holding error was structural because of the difficulty of assessing the effect of the error E. holding any improper delegation did not rise to level of plain error Reply with [A, B, C, D, E] only.

B

casehold

Read the following excerpt from a US court opinion: ``` fail to cite this controlling authority. In this case, although Mahabir had yet to filé her appeal when the Superior Court ruled on the attorney’s fees motions, the time to appeal had not expired since the Superior Court did not rule on Mahabir’s motion for reconsideration until March 24, 2014, giving the parties until April 23, 2014, to file a notice of appeal. V.I.S.Ct.R. 5(a)(4) (“the time for filing the notice of appeal for all parties is extended until 30 days after entry of an order disposing of the last” post-judgment motion, except that “[a] motion for attorney’s fees shall not affect the running of the time for appeal”). Therefore, the litigation remained ongoing when the Superior Court ruled on both motions for attorney’s fees. Bryan v. Fawkes, 61 V.I. 416, 448 (V.I. 2014) ; see also Johnson v. McCaughtry, 265 F.3d 559, ``` What is the most suitable continuation to the opinion? Your options are: A. holding that under the circumstances of that case an argument made for the first time in a motion for rehearing was waived B. holding that a case remained pending where the time to file a rehearing petition had not expired C. holding that dismissing a habeas petition as timebarred under the aedpa does not violate the suspension clause because petitioner had years to file the petition and gave no explanation why he failed to file on time D. holding that a coram nobis petition remained pending until the court of appeals denied petitioners application for leave to appeal the appellate divisions denial of his petition E. recognizing that aedpa would not apply to a habeas petition that was pending at the time of its enactment Reply with [A, B, C, D, E] only.

B

casehold

Read the following excerpt from a US court opinion: ``` lab in 1988, but that “the plaintiffs classified status terminated when the legislature [in the 1994 amendments] made all positions of the lab limited appointment positions subject to the approval of the Commission.” The motion justice further ruled that, after the 1994 amendments, “as a matter of law, plaintiff had no constitutionally protected interest [as a limited-appointment, crime-lab employee] * * * to which due-process protections attached.” She based this conclusion on her belief that the 1994 amendments had stripped Wilkinson of his classified full-status employment at the crime lab because the 1994 crime-lab amendments were a specific-effect statute that superseded the general, earlier-enacted provisions of the merit system. See Casey v. Sundlun, 615 A.2d 481, 483 (R.I.1992) . This Court “reviews the granting of a summary ``` What is the most suitable continuation to the opinion? Your options are: A. recognizing the principle that gives precedence to the terms of the more specific statute where a general statute and a specific statute speak to the same concern B. holding that when two statutes are in conflict the more recent and specific statute should prevail so as to repeal the earlier general statute C. holding that a general statute is superseded by a more recent specific statute only if the two statutes are in conflict D. recognizing that a specific statute controls over a general one E. holding that gl1956 43326 embodies a policy of statutory construction that requires courts to give precedence to a specific statute over a general statute when the two are in conflict Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` conelusory allegations, such as “I was coerced,” and the “sufficient facts” required under Powell. Because Felice’s motion relies on conelusory allegations which find no support in the record, he did not provide “sufficient facts which, if proven, would justify relief’ from his earlier guilty plea. Accordingly, the district court acted within its discretion in denying the motion to withdraw without holding a hearing. Felice points to his assertion of innocence to support the withdrawal of his plea. As to his claim of innocence, Felice has made only a bare assertion that he “did nothing wrong.” He points to no facts t e because he did not consider evidence provided by Felice and because he refused to speak to witnesses. See Washington v. Watkins, 655 F.2d 1346, 1363-64 (5th Cir.1981) . Felice’s motion did not identify the ``` What is the most suitable continuation to the opinion? Your options are: A. holding that in order to state a claim for ineffective assistance of counsel based on the failure to call a witness to testify the claimant must allege 1 the identity of the potential witness 2 that the witness was available to testify at trial 3 the substance of the witnesss testimony and 4 an explanation of how the omission of the testimony prejudiced the case B. holding that where movant alleged the names of uncalled witnesses and them anticipated testimony which would have been relevant mitigation evidence in the penalty phase but did not allege that trial counsel knew of the witnesses or that the witnesses were available to testify at trial the movant was not entitled to an evidentiary hearing on his postconviction relief motion because he did not allege facts sufficient to satisfy the standard applicable to his claim C. recognizing that ineffective assistance claims based on uncalled witnesses require a heavy showing by the petitioner because the court is forced to make a hypothetical determination of how an uncalled witness may have testified D. holding that the prosecutors explanation of a defendants subpoena power was a fair reply to defense counsel questioning the absence of testimony from certain witnesses but going a step further to claim uncalled witnesses would bolster the states case exceeded the boundaries of a fair reply E. holding that counsels failure to impeach a witness by showing bias was ineffective assistance Reply with [A, B, C, D, E] only.

C

casehold

Read the following excerpt from a US court opinion: ``` on appeal, and that determination that this Court will consider. 1. There is no direct evidence of pretext. The Ninth Circuit has clarified the type of evidence that will enable a retaliation claim to proceed beyond the summary judgment stage. It held that “[w]hen the plaintiff offers direct evidence of discriminatory motive, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (1998). Direct evidence of discriminatory animus has been recognized by several circuits as “evidence which, if believed, proves the fact without inference or presumption.” Davis v. Chevron, 14 F.3d 1082, 1085 (5th Cir.1994); see also Spengler v. Worthington Cylinders, 615 F.3d 481, 491 (6th Cir.2010) ; Godwin, 150 F.3d at 1222 (finding direct ``` What is the most suitable continuation to the opinion? Your options are: A. holding that direct evidence by definition is evidence that does not require an inferential leap between fact and conclusion B. holding that the admission of unlawfully seized evidence of a crime was admissible if the jury was instructed that the evidence could be considered only in assessing a defendants credibility and not for determining guilt C. holding that evidence that would normally be admissible may be excluded if the evidence was a direct or indirect product of an unlawful search D. holding that a prisoners allegations that a corrections officer retaliated against the prisoner for the prisoners report charging the officer with misconduct properly stated a claim for retaliation noting that aji allegation of retaliation should not be ignored simply because the charge was later dismissed E. holding that direct evidence of retaliation is lacking where the evidence if believed would not require the conclusion that defendant unlawfully retaliated against plaintiff emphasis in original Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` compel arbitration in a forum outside the Northern District of Illinois.” Ferenc v. Brenner, 927 F.Supp.2d 537, 542 (N.D.Ill.2013) (citing Merrill Lynch, 49 F.3d at 327). Normally, when arbitration is dictated, a court compels arbitration in that district and stays the court proceeding. 9 U.S.C. § 3 (“If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration ... the court in which such suit is pending ... shall on application of one of the parties stay the trial of the action until such arbitration has been had .... ”). But when a court is presented with a motion to compel arbitration in a different district, the proper action is to dismiss the complaint for improper venue under Rule 12(b)(3). See Ferenc, 927 F.Supp.2d at 542 ; Faulkenberg, 637 F.3d at 808 (“under § 4 of ``` What is the most suitable continuation to the opinion? Your options are: A. recognizing that in reviewing ruling on motion to compel arbitration we first determine whether party seeking arbitration established existence of arbitration agreement B. holding that trial court properly denied motion to compel arbitration of claims for fraud and unfair and deceptive trade practices because arbitration clause in agreement only applied to indemnification claims and there were no other arbitration clauses in agreement C. holding that in ruling on a motion to compel arbitration a court must consider 1 whether the parties have entered into a valid arbitration agreement 2 whether an arbitrable issue exists and 3 whether the right to arbitration has been waived D. holding that once the party seeking to compel arbitration establishes the existence of an arbitration agreement and that the claims raised fall within the scope of that agreement the trial court must compel arbitration E. holding that claims were subject to arbitration and converting the motion to compel into a motion to dismiss for improper venue because the contract mandated arbitration in california Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` contract, negligence, and breach of fiduciary duties based on PNE defendants’ conduct in canceling the fire insurance. The arbitrator in Case II dismissed all claims of plaintiffs and defendants’, including plaintiffs claim against PNE Media for “the cancellation of the insurance policy and the failure to notify plaintiff of the cancellation.” .It is well settled that under principles of res judicata a final judgment is conclusive “not only as to all matters actually litigated and determined, but also as to matters which could properly have been litigated and determined in the former action. . . .” Fickley v. Greystone Enters., 140 N.C. App. 258, 260, 536 S.E.2d 331, 333 (2000) (citations omitted); See, e.g., Holly Farm Foods, Inc. v. Kuykendall, 114 N.C. App. 412, 442 S.E.2d 94 (1994) (emphasis added). “The procedural history of ``` What is the most suitable continuation to the opinion? Your options are: A. holding that res judicata applies when the question of jurisdiction is raised and determined B. holding res judicata precluded landlord from bringing second action for damages of unpaid future rents after a final judgment determined tenants damages arising out of the breach of lease in landlords first action C. holding second action barred by res judicata because plaintiff asserted identical claims and jurisdictional grounds as the first action D. holding subsequent action not barred by res judicata because the thing sued for in the initial action was an injunction against heathrows threatened breach of contract while the thing sued for in the subsequent action was money damages allegedly sustained as a result of heathrows actual breach of contract where the damages alleged in the subsequent action unlike the damages alleged here arose after trial of the initial action E. holding that res judicata did not apply where a trial courts order was not a final judgment Reply with [A, B, C, D, E] only.

B

casehold

Read the following excerpt from a US court opinion: ``` does not apply so as to preclude a new evidentiary hearing on the enhancement issue, we have still found no basis in the record to conclude the initial hearing on this issue was inadequate. The State has pointed to no error in the district court proceeding that would entitle the State to a new hearing, nor does the record reveal any other matter that hindered the prosecution’s ability to amend the trial information prior to that hearing in order to rely on other prior convictions. In sum, the State had a full and fair opportunity to support its accusation that the defendant was a habitual offender, but its evidence was insufficient. In view of these circumstances, the prosecution is not entitled to a second bite of the apple to remedy its failure of proof. Cf. Woody, 613 N.W.2d at 218 ; M-Z Enters., Inc. v. Hawkeye-Sec. Ins. Co., ``` What is the most suitable continuation to the opinion? Your options are: A. holding that addition of charge for crime committed while the defendant was released on bail did not discharge suretys obligation to produce the defendant on original charge B. holding that in conjunction an information with a narrow charge and an abstract of judgment indicating that a defendant pled guilty to that charge prove the precise elements of the offense to which the defendant pled guilty C. holding state was stuck with unenhanced conviction on reduced charge to which defendant pled guilty and prosecution could not reinstate original charge upon remand the state should bear the consequences of a decision that was based on the states wrong assumption that the habitualoffender statute applied D. holding that jurys failure to address first degree murder charge amounted to a verdict of not guilty on that charge E. holding circuit court had subject matter jurisdiction to accept a guilty plea where defendant was not indicted for the charge to which he pled guilty but signed a sentencing sheet which established defendant was notified of the charge to which he pled guilty Reply with [A, B, C, D, E] only.

C

casehold

Read the following excerpt from a US court opinion: ``` 884 So.2d 950 (Fla. 4th DCA 2004). Affirmed. Conflict ``` What is the most suitable continuation to the opinion? Your options are: A. holding that it is sufficient grounds to revoke a probation if only one condition of the probation is broken B. holding that probation does not constitute a sentence C. holding that probation and suspension of sentence may not be revoked based solely on a violation or criminal offense that was committed before the offender was actually placed on probation D. holding that probation is a sentence for habitualization purposes E. holding that upon revocation of probation a court must grant credit for time served on probation and community control towards any newly imposed term of imprisonment and probation so that the total period of control probation and imprisonment does not exceed the statutory maximum Reply with [A, B, C, D, E] only.

B

casehold

Read the following excerpt from a US court opinion: ``` member, should be separated from the decision on the class action claim, and resolved by the Administration, but guided by this Court’s decision on the merits of the class claim. Any declaratory or injunctive relief granted will thus differentiate between the class-wide claim and the individual claims. The advantages to class-wide resolution of issues such as the one presented here are apparent when noting that three other district courts have decided against the Administration in individual actions by children such as the Andres, and the Commissioner has continued denying such claims. See Agee v. Sullivan, 1991 WL 193636 (N.DAla. Mar. 29, 1991) (citing McAninch and holding that the largest payment possible should be given to the child); McAninch v. Bowen, 693 F.Supp. 353 (W.D.Pa.1988) ; see also Reinkraut v. Shalala, 854 F.Supp. ``` What is the most suitable continuation to the opinion? Your options are: A. holding that congress did not intend to prevent children from voluntarily terminating entitlement to benefits under the account of one disabled parent in order to apply on the account of the other disabled parent B. holding that because the plaintiff was not disabled for the purposes of the ada this court need not to address the other elements of the prima facie case C. holding that an employer did not regard the plaintiff as disabled D. holding that employees requests for accommodation were not protected activity because the evidence did not show that he had a reasonable good faith belief that he was disabled or perceived as disabled E. holding that when an employer takes steps to accommodate an employees restrictions it is not thereby conceding that the employee is disabled under the ada or that it regards the employee as disabled Reply with [A, B, C, D, E] only.

A

casehold

Read the following excerpt from a US court opinion: ``` consistently asked his attorneys to forgo any defense based on insanity or diminished capacity, even in the face of overwhelming evidence of his guilt and the consequent unavailability of any other effective defense. Woodland’s attorneys argue that his refusal to heed their sound legal advice is convincing proof of his inability to consult with counsel and, thus, his incompetence. We disagree. That the accused has the right to control the nature of his or her defense is well established. See State v. Wood, 648 P.2d 71, 91 (Utah 1982); see also Utah Const, art. I, § 12; Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 2540-41, 45 L.Ed.2d 562 (1975) (identifying defendant’s 6th Amendment right to conduct his defense); State v. Penderville, 2 Utah 2d 281, 272 P.2d 195,199 (1954) . In Wood, for example, this court held that ``` What is the most suitable continuation to the opinion? Your options are: A. holding that defendants failure to assert the defense in any pretrial motions did not waive defendants limitations defense because the assertion of a limitations defense in the answer preserved defendants right to raise the defense both during the first trial and before the second B. recognizing a criminal defendants right to present a complete defense C. holding that district court did not abuse discretion in declining to order new competency hearing based on defendants obstinate belligerent and obsessive behavior obsession with his own theories of defense distrust of his attorneys or desire to represent himself at trial D. recognizing defendants right under utah constitution to control his defense and represent himself E. recognizing exception under state constitution Reply with [A, B, C, D, E] only.

D

casehold

Read the following excerpt from a US court opinion: ``` Dr. Callahan to present evidence of successful lumbar fusion surgeries involving pedicle screws performed by him and possibly to present his own calculation of how many pedicle screws he had properly placed in the past. Thus, the danger of unfair prejudice, confusion of issues, misleading the jury, and potential undue delay substantially outweighed the limited legitimate probative value of the other acts evidence. Several courts have excluded evidence similar to that which Plaintiffs sought to introduce. See Lai v. Sagle, 373 Md. 306, 818 A.2d 237, 247 (2003) (noting that “[t]he fact of prior litigation has little, if any, relevance to whether [defendant] violated the applicable standard of care in the immediate case.”); Laughridge v. Moss, 163 Ga.App. 427, 294 S.E.2d 672, 674 (1982) ; Cerniglia v. French, 816 So.2d 319, 322-25 ``` What is the most suitable continuation to the opinion? Your options are: A. holding that evidence of prior similar acts was not proof of medical malpractice or whether the doctor lacked the proper degree of knowledge or skill B. holding that trial court did not err in refusing instruction that would have directed jurors not to consider specific acts of negligence in determining medical centers liability C. holding prior bad acts evidence is admissible where there is an articulation or identification of the consequential fact to which the proffered evidence of other acts is directed D. holding that the trial court did not err in disallowing evidence of alleged previous act of medical malpractice against defendant noting that the general rule in a suit for negligence is that evidence of similar acts or omissions on other and different occasions is not admissible E. holding that trial court did not err Reply with [A, B, C, D, E] only.

D

casehold

Read the following excerpt from a US court opinion: ``` record, we conclude that the defendant was not aware of the consequences of his plea and that he was misled or harmed by the lack of admonishment. Burnett v. State, 88 S.W.3d 633, 638 (Tex.Crim.App.2002). In this context, “harm” means that “appellant probably would not have pleaded guilty but for the failure to admonish.” Id. at 638 n. 14. Reversal is only warranted if “the error may have had a ‘substantial influence’ on the outcome of the proceeding.” Webb v. State, 156 S.W.3d 653, 655 (Tex.App.-Dallas 2005, pet. ref'd). We may assume from the trial court’s statements on the record that, had it been aware that the sentence imposed exceeded the plea agreement, it would have modified the sentence to reflect a $2,000 fine. See State v. Aguilera, 165 S.W.3d 695, 698 (Tex.Crim.App.2005) . Such a modification would have rendered any ``` What is the most suitable continuation to the opinion? Your options are: A. holding that offenses sentenced on the same day by the same judge are not related under the guidelines B. holding that there was no coercion by the trial court where the jury deliberated all day friday and all day saturday C. holding that a telephone request to the court for a continuance the day before the trial was to start was a nullity D. holding that trial court may modify sentence on the same day as the assessment of the initial sentence and before the court adjourns for the day E. holding notice unreasonable where it was served the afternoon of the day before the presentation of the petition to the court Reply with [A, B, C, D, E] only.

D

casehold

Read the following excerpt from a US court opinion: ``` attorney] procured the indictment. See Ray, 561 S.W.2d at 481. The record also shows that appellant used this same argument in requesting his motion in arrest of judgment. But in Ray, the Court of Criminal Appeals held that the appellant failed to meet his burden of showing a violation of the sanctity of the grand jury proceedings because the evidence showed that no one other than grand jurors were present during the grand jury’s voting or deliberations. See id. Therefore, ... the trial court did not abuse its discretion by refusing to grant a hearing on this motion because appellant did not argue that [the district attorney] was present during the grand jury’s vote or deliberations. See id. Id. at *7; see also Walter v. State, 209 S.W.3d 722, 737, 739-40 (Tex. App.—Tex-arkana 2006) , rev’d. on other grounds, 267 S.W.3d 883 (Tex. ``` What is the most suitable continuation to the opinion? Your options are: A. holding that right was available in grand jury proceedings B. holding that under california law tjestifying before a grand jury charged with investigating corruption is one part of an officers job and therefore any speech huppert gave during his grand jury testimony was pursuant to his duties as a police officer C. holding that the defendants were not denied their right to be present during the peremptory strike phase of jury selection where they were present during voir dire had a chance to confer with counsel before the jury was impaneled and were present in the courtroom when the peremptory strikes were given actual effect by the clerks reading off the list D. holding that the state violated a statute by allowing the presence of nonwitness police officers during grand jury proceedings but concluding that because those officers were not present during deliberations the indictments were not void E. holding that the government is not required to present exculpatory evidence to the grand jury Reply with [A, B, C, D, E] only.

D

casehold

Read the following excerpt from a US court opinion: ``` This appeal is dismissed for lack of jurisdiction. Oden v. Northern Marianas College, 440 F.3d 1085, 1090-91 (9th Cir.2006) . APPEAL DISMISSED. ** This disposition is not ``` What is the most suitable continuation to the opinion? Your options are: A. holding that this court lacks jurisdiction to review claims that have not been raised before the bia B. holding that this court does not have jurisdiction over plaintiffs claims because the court may review neither criminal matters nor the decisions of district courts C. holding court of appeals lacks jurisdiction over the governments prosecutorial discretion decisions D. holding that this court lacks jurisdiction over appeals from decisions of the supreme court of the commonwealth of the northern mariana islands which were not completed before may 1 2004 E. holding that the court of appeals lacks the authority to overrule decisions of the supreme court of north carolina and has a responsibility to follow those decisions until otherwise ordered by the supreme court Reply with [A, B, C, D, E] only.

D

casehold

Read the following excerpt from a US court opinion: ``` of that status, not cases adjudicating alleged violations of an alien's substantive due process rights during detention. See, e.g., Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958) (concluding that temporary parole in United States while alien's admissibility was being determined did not entitle alien to benefit of statute giving Attorney General authority to withhold deportation of any alien "within the United States” if alien would thereby be subjected to physical persecution); Menon v. Esperdy, 413 F.2d 644, 647 (2d Cir.1969) (noting that “since a parole does not constitute an admission into the United States ... th[e] appeal involve[d] an exclusion ... rather than an expulsion”); Dong Wing Ott v. Shaughnessy, 247 F.2d 769, 770 (2d Cir.1957) (per curiam) , cert. denied, 357 U.S. 925, 78 S.Ct. 1368, 2 ``` What is the most suitable continuation to the opinion? Your options are: A. holding that parole survives deportation B. holding that the attorney generals discretionary power to suspend deportation did not apply to aliens within the country on parole because parole by statute was not to be regarded as an admission of the alien citation and internal quotation marks omitted C. holding that a statute must be construed so that no part of the statute is rendered surplusage or superfluous internal quotation marks and citation omitted D. holding that deportation does not extinguish term of parole E. holding a parole rule equivalent to a statute Reply with [A, B, C, D, E] only.

B

casehold

Read the following excerpt from a US court opinion: ``` Choice policy” refers to an insurance policy issued by Medica to Randall. 2 . Although Patch and Syring were covered by separate PHP policies, the policy language at issue in this case was identical in each PHP policy. 3 . Allen v. United States, 668 F.Supp. 1242, 1247 (W.D.Wis.1987) (interpreting a federal statute that only allowed subrogation when there was tort liability); Arizona Property & Cas. Ins. Guar. Fund v. Herder, 156 Ariz. 203, 208-09, 751 P.2d 519, 524 (1988) (interpreting "persons or organizations who may be legally responsible” for bodily injuries in limit-of-liability clause involving "amounts otherwise payable for damages” to include only parties who were responsible for the infliction of the injuries); Employers Health, 161 Wis.2d at 945-47, 469 N.W.2d at 175-76 ; Hamed v. County of Milwaukee, 108 Wis.2d 257, ``` What is the most suitable continuation to the opinion? Your options are: A. holding that a clause providing that the insurer has a right to recover damages from a responsible third party referred to a tortfeasor because the use of damages in bodily injury cases means pecuniary compensation resulting from an unlawful or negligent act by a wrongdoer B. recognizing that compensation from a collateral source indepen dent of the wrongdoer will not reduce the damages recoverable from the wrongdoer C. holding that pecuniary damages are not property damages under insureds policy D. holding no right to recover for economic loss resulting from defendants injury to a third party with whom plaintiff has contractual business relationship E. holding that the right to recover a particular measure of damages in a workers compensation case is fixed as of the date of injury Reply with [A, B, C, D, E] only.

A

casehold

Read the following excerpt from a US court opinion: ``` the amended complaint fails to sufficiently plead scienter. In opposition, the plaintiffs contend that the amended complaint sufficiently alleges that the defendants manipulated MSC’s reserves in order to meet predetermined earnings targets. The plaintiffs also assert that the amended complaint adequately pleads scienter. II. DISCUSSION A. The Standard of Review In a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court should dismiss the complaint only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his complaint which would entitle him to relief. See King v. Simpson, 189 F.3d 284, 286 (2d Cir.1999); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996); I. Meyer Pincus & Assocs. v. Oppenheimer & Co., 936 F.2d 759, 762 (2d Cir.1991) . The issue to consider is not whether a ``` What is the most suitable continuation to the opinion? Your options are: A. holding that dismissal is inappropriate unless it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations B. holding that a pro se complaint should not be dismissed unless it appears that the plaintiff can prove no set of facts which would entitle him to relief C. holding that a court may dismiss a claim under 12b6 only if it appears to a certainty that no relief can be granted under any set of facts provable in support of its allegations or if the allegations accepted as true do not present a claim upon which relief legally can be obtained D. holding that rule 12b1 insubstantiality dismissal is appropriate if based on the judges disbelief of a complaints factual allegations whereas a rule 12b6 dismissal is appropriate where while operating under the assumption that all or a set of facts in the complaint are true without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations E. holding that dismissal is proper only if it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief Reply with [A, B, C, D, E] only.

A

casehold

Read the following excerpt from a US court opinion: ``` not constitute a dangerous condition. The undisputed evidence establishes that, on the date of the accident, southbound drivers at the limit line of the railroad crossing had an unobstructed view of the tracks to the northwest despite the configuration of the intersection. Thus, there was no substantial risk of injury to drivers using due care while crossing the railroad tracks. See Cal. Gov’t Code § 830(a) (“ ‘Dangerous condition’ means a condition of property that creates a substantial ... risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.”); id. § 830.2 (defining non-dangerous condition); see also, e.g., Chowdhury v. City of L.A., 38 Cal.App.4th 1187, 45 Cal. Rptr.2d 657, 661-63 (1995) . Appellants’ expert declarations do not raise ``` What is the most suitable continuation to the opinion? Your options are: A. holding that condition included an intended if dangerous cycling of a traffic light B. holding that police officers are entitled to conduct an investigatory stop of a motorist if they have reasonable suspicion that the motorist has committed a traffic violation C. holding that an intersection with inoperative traffic signals due to a power outage was not a dangerous condition as a matter of law because the city could not be charged with foreseeing that a motorist using due care would speed through the intersection without heed to inoperative traffic signals D. holding that the public entity was not required to modify or improve intersection based on changing use E. holding that an improper traffic control device may create a dangerous condition for which the governments immunity from liability is waived Reply with [A, B, C, D, E] only.

C

casehold

Read the following excerpt from a US court opinion: ``` contest, Johnson’s motion to intervene is not precluded by the three-month statutory period contained in Indiana Code section 29-1-7-18. Therefore, we reverse and remand with instructions that Johnson et al be named as a plaintiff in this will contest. Reversed and remanded for proceedings consistent with this opinion. DARDEN, J., and KIRSCH, J., concur. 1 . Morgan also maintains that because Johnson did not address the issue of whether the trial court properly dismissed her Interve-nor’s Complaint as untimely, it is waived. Because this issue is intricately linked with whether Johnson should have been named as a plaintiff to the proceeding rather than a defendant under Indiana Code section 29-1-17-7, we address it. 2 . But see Smith v. Mitchell, 841 N.E.2d 215, 217 (Ind.Ct.App.2006) ``` What is the most suitable continuation to the opinion? Your options are: A. holding that service of summons was insufficient to confer personal jurisdiction over defendant city where a copy of the summons and complaint was delivered to a person other than an official named in rule 4j5 B. holding that the trial court had continuing jurisdiction over all subsequent custody orders once the trial court acquired jurisdiction C. holding that the court lacks jurisdiction where a complaint was filed more than 30 days after the filing of the summons D. holding that the information must establish that the court has jurisdiction over both the subject matter and the parties E. holding that the trial court never acquired jurisdiction over the will contest due to sisters failure to tender a proper summons to interested parties Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` reads in pertinent part as follows: The at e and district court that Rule 11 does not govern state courts. See Miles v. Dorsey, 61 F.3d 1459, 1467 (10th Cir.1995) (explaining that Rule 11 does not apply in state courts). Therefore, it cannot be a basis on which to challenge a plea in a state court criminal proceeding. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) ("[Fjederal habeas corpus relief does not lie for errors of state law.”). 3 . Holt also argued below that this violated the due process clause of the Sixth Amendment, but he failed to persist in that argument before this Court. So, as we discussed regarding Holt's claim that the state court judge’s actions violated Rule 11, we need not consider this argument. See Phillips, 422 F.3d at 1080 ``` What is the most suitable continuation to the opinion? Your options are: A. holding that where issues are not properly raised and developed in briefs a court will not consider the merits thereof B. holding courts do not consider points not raised in briefs C. recognizing that we lack jurisdiction to consider issues not raised in the parties briefs D. holding that we generally may not consider issues not raised before the bia E. holding that we lack jurisdiction to consider claims that have not been raised before the bia Reply with [A, B, C, D, E] only.

C

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Read the following excerpt from a US court opinion: ``` the court rejected a trustee’s argument that a post-petition filing of a mechanic’s hen in accordance with New York Lien Law constituted a preferential transfer: Section 547(c)(6) provides ... that a trustee may not avoid the fixing of a statutory hen that is not avoidable under section 545. Mechanics’ hens duly filed pursuant to state law are not avoidable under section 545. Consequently, this court disagrees with the trustee’s position. Id. at 60. Although the hen in that case received the benefit of New York’s “relation-back” provision, the court’s preference decision did not rely on that fact. The court looked instead to whether the henor had filed his notice of hen within the statutory time period. See also In re Wisner, 77 B.R. 395, 397-98 (Bankr.N.D.N.Y.1987) . In In re APC Construction, Inc., 132 B.R. 690 ``` What is the most suitable continuation to the opinion? Your options are: A. holding that new york law applies to this matter B. holding that outofstate defendants transmittal into new york of ceaseanddesist letter to new york plaintiff for purported trademark infringement was insufficient to create jurisdiction over defendant in a new york declaratory judgment action C. holding that contract signed in new york by promisor from florida and partially performed in florida was governed by new york law because it was executed in new york D. holding that mechanics hen arising under new york lien law is statutory hen as opposed to judicial hen E. holding jurisdiction over nonresident defendant existed where note was payable in new york contained new york choice of law clause and proceeds were used to finance new york limited partnership Reply with [A, B, C, D, E] only.

D

casehold

Read the following excerpt from a US court opinion: ``` United States after deportation. The parties agree that the government’s failure to allege specific intent rendered the indictment defective under Pemillo-Fuentes. The government asserts, however, that Velasco-Medina waived his objection to the indictment’s sufficiency by failing to raise it before the district court. Velasco-Medina responds that the indictment’s defect deprived the district court of jurisdiction over the case ah initio, and thus requires that we overturn his conviction. We find neither argument availing. The government’s position that Ve-lasco-Medina waived any objection to the indictment’s sufficiency by failing to raise it in the district court has been repeatedly rejected in this Circuit. See, e.g., United States v. Godinez-Rabadan, 289 F.3d 630, 632 (9th Cir.2002) ; United States v. Geiger, 263 F.3d 1034, 1039 ``` What is the most suitable continuation to the opinion? Your options are: A. holding that issues not raised in the trial court may not be raised later on appeal B. holding that standing is a jurisdictional issue that can be raised for the first time on appeal C. holding that issues not raised before the trial court cannot be raised on appeal D. holding that a cruel and unusual punishment claim is not jurisdictional and therefore may not be raised for the first time on appeal E. holding that indictments sufficiency is jurisdictional in nature and may be raised initially on appeal Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` Lehman Holdings and Aurora admitted that Lehman Bank’s home office had been in Delaware when the loans were bought and resold. Lehman Holdings’ App’x at 782, 1492, 2107, 3062, 3733; Aurora’s App’x at 11; Aurora’s Opening Br. at 11; Lehman Holdings’ Opening Br. at 23. Because L 272, 1298 (11th Cir.1999) (referring to the “principal place of business” as a “term of art”). Regardless of where Lehman Bank’s executives resided or met, all of Lehman Bank’s actions were “subject to direction from the home office” in Delaware. 12 C.F.R. § 545.91(a). With all of the bank’s actions subject to direction from the home office in Delaware, any reasonable fact-finder would have to conclude that Lehman Bank’s principal place of business was in Delaware. See Lehman Bros. Bank, FSB, 937 A.2d at 103-104 . As a result, Lehman Bank is considered a ``` What is the most suitable continuation to the opinion? Your options are: A. holding delaware is home turf as long as company is incorporated in delaware regardless of location of principal place of business B. holding that lehman bank had its principal office in delaware rather than new york based in part on lehman banks establishment of its home office in delaware C. recognizing that a prosecutors office is an entity and that information in the possession of one attorney in the office must be attributed to the office as a whole D. holding that a national bank is a citizen of the state in which its main office as set forth in its articles of association is located E. holding that even though lehman banks executive officers were in new york and its board of directors met exclusively in new york lehman bank had its principal office in delaware rather than new york because the term principal office is a term of art Reply with [A, B, C, D, E] only.

B

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Read the following excerpt from a US court opinion: ``` an official-capacity suit and a personal-capacity suit turns on the capacity in which the named defendant has been sued. It does not turn on the capacity in which he or she has acted. A state official can be held personally liable under § 1983 for his or her official acts. Hafer v. Melo, 502 U.S. 21, 27-31, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). 15 . The Secretary mistakenly believes that Burns’ perceived lack of standing to seek prospective relief warrants a determination that her claims are barred by the Eleventh Amendment. Docket No. 21 at 7. Nonetheless, the question of whether the requested relief is barred by the Eleventh Amendment does not turn on whether Burns herself has standing to seek such relief. Palomar Pomerado Health System v. Belshe, 180 F.3d 1104, 1108 (9th Cir.1999) ; Summit Medical Associates, P.C. v. James, 998 ``` What is the most suitable continuation to the opinion? Your options are: A. recognizing the eleventh amendment does not bar the united states from suing a state B. holding that eleventh amendment does not bar suits for prospective injunctive relief against state officials in their official capacity C. holding that the eleventh amendment precludes an award of injunctive or declaratory relief that is not prospective in nature D. recognizing that while young may be sufficient to overcome a states otherwise valid defense under the eleventh amendment it does not provide a plaintiff with standing to seek prospective relief E. holding that eleventh amendment does not bar federal suit against state official for prospective injunctive relief Reply with [A, B, C, D, E] only.

D

casehold

Read the following excerpt from a US court opinion: ``` them because it was made while Kevin was under arrest but before he was informed of his Miranda rights. They further argue that the public safety exception to Miranda as announced by the United States Supreme Court in Quarles does not apply in the instant case because the threat of exposure to the contents of the gassing generator was not an imminent threat to public safety. [¶ 22] Generally, a defendant who is in custody must be advised of his or her Miranda rights prior to an interrogation by law enforcement in order for statements made during the interrogation to be admissible against him or her in the defendant’s subsequent trial. State v. Dion, 2007 ME 87, ¶ 21, 928 A.2d 746. Statements made by a defendant in custody before being given a Miranda warning may still b Cir.2006) ; see also State v. Bilynsky, 2007 ME 107, ¶¶ ``` What is the most suitable continuation to the opinion? Your options are: A. recognizing the public interest exception B. holding that officers premiranda questions concerning active methamphetamine production were within the public safety exception C. holding that a nexus exists if the weapons were there to protect an active methamphetamine manufacturing operation D. holding that questions about the location of a gassing generator and other equipment related to the production of methamphetamine fall within the protective sweep exception to miranda E. holding that questions concerning the place and date of birth fall within the routine booking question exception to miranda Reply with [A, B, C, D, E] only.

B

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Read the following excerpt from a US court opinion: ``` (strike based on age where no explanation given as to why the venireman was “too young” held pretextual); State v. Butler, 731 S.W.2d 265, 271 (Mo.App.1987) (strike of elderly individual where prosecutor stated into the record that elderly jurors are more subject to intimidation, but where no voir dire was conducted along this line, held pretextual under Batson). See also Colbert v. State, 304 Ark. 250, 801 S.W.2d 643, 646 (1991) (striking racially cognizable veniremen without even propounding a question to them raises an inference of bias under Batson). There is nothing in this record which supports a finding that the peremptory strike of juror Prince passes constitutional muster. It is, therefore, our duty to reverse. Conerly v. State, 544 So.2d 1370, 1372 (Miss.1989) . II. Six of the State’s nine peremptory ``` What is the most suitable continuation to the opinion? Your options are: A. holding that retrial did not violate the double jeopardy clause where reversal based on trial error distinguishing reversal for insufficient evidence B. holding that failure to give explanation of allegations required reversal C. holding that both the unlawful possession and unlawful use prongs were met and noting that the firearm transferred to the individual was not registered making the individuals possession of it necessarily unlawful D. holding that because original interception was not unlawful subsequent use by prosecutor could not be found unlawful E. holding that a single unlawful strike compels reversal Reply with [A, B, C, D, E] only.

E

casehold

Read the following excerpt from a US court opinion: ``` any modification of the consent decree should be barred pursuant to the “continuous violation” doctrine. Under that doctrine, a defendant to a contempt proceeding may not challenge the validity of the underlying injunction as a defense to violating that injunction. Walker v. City of Birmingham, 388 U.S. 307, 318-19, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967). Or, more simply, parties have a duty to comply with an ongoing injunction until it is dissolved. To illustrate, if the plaintiff had brought a contempt action against the defendants, focusing on retrospective, instead of pro- spective, relief, the “continuous violation” doctrine would have defeated any defense that focused solely on the validity of the underlying injunction. See, e.g., Kindred v. Duckworth, 9 F.3d 638, (7th Cir.1993) . But the plaintiff has not brought a contempt ``` What is the most suitable continuation to the opinion? Your options are: A. holding that failure to record an assignment does not give rise to a cause of action B. holding that the implementation of a policy that violated a consent decree could give rise to contempt proceedings C. holding that regardless of the subjective belief of the insured the record established a basis to believe that the insured had committed an act that could give rise to a claim under the policy D. holding the drivers refusal to consent to search of automobile did not give rise to reasonable suspicion that vehicle contained narcotics E. holding employer statements of policy can give rise to contractual rights without evidence of mutual agreement Reply with [A, B, C, D, E] only.

B

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Read the following excerpt from a US court opinion: ``` on behalf of an employee. Id. at 136, 111 S.Ct. 478. Thus, both the existence of a pension plan and a pension-defeating motive behind the termination were critical elements to the state cause of action. Id. at 140, 111 S.Ct. 478. The Court reasoned that to allow the state cause of action would lead to "different substantive standards applicable to the same employer conduct, requiring the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction. Such an outcome is fundamentally at odds with the goal of uniformity that Congress sought to implement.” Id. at 142, 111 S.Ct. 478. Moreover, the offensive conduct was already prohibited by ERISA, and thus the state statute would create an alternate enforcement mechanism. Id. at 145, 1 1th Cir.1987) . We have previously stated that "state law ``` What is the most suitable continuation to the opinion? Your options are: A. holding state law malpractice claim against a physician was preempted where the physician acting as the plan administrator denied a thallium stress test as a plan benefit B. holding that an employees suit against agent for denied disability benefits was preempted C. holding that district courts order remanding an erisa benefits determination to a plan administrator was nonfinal and therefore not appealable after the remand to plan administrator plan participant still could appeal the district courts decision that erisa preempted her state law claim and if successful she would be able to pursue punitive damage D. holding that an erisa plan administrator is not bound by an ssa disability determination when reviewing a claim for benefits E. holding that an employees claim against plan administrator for denied benefits is preempted Reply with [A, B, C, D, E] only.

E

casehold