• Bettiga purchased standard electronic components useful for a wide variety of lawful purposes.. • The primary basis of this dispute is DirecTV is on a fishing expedition harassing the
Trang 1and the government with financial data, a summary of ownership, and the accounting practices used to prepare the report
Annual reports measure a corporation’s financial health They focus on past and present financial performance, and make predictions about future prospects By law, any corporation that holds an annual meeting for stockholders
or security holders is required to issue an annual report Regulations set down by the SECURITIES AND EXCHANGE COMMISSION(SEC) specify in detail what information the report must include about the corporation’s finances, markets, and man-agement The rules are strict: the SEC can levy stiff penalties if corporations fail to comply
Traditionally a rather dry and factual docu-ment, the annual report has acquired a larger audience in recent years as corporations increas-ingly treat it as not merely a legal obligation but also a public relations opportunity Yet even as annual reports take on the appearance of glossy magazines, promote corporate public relations, and make political arguments, they remain bound by legal concerns about completeness and accuracy, and sometimes expose corpora-tions to lawsuits when they fall short
Although federal law governing the financial industry is quite old, its application to annual reports grew in complexity from the mid-1970s
to the mid-1990s This authority derives from two laws: the Securities Act of 1933 (15 U.S.C.A § 77a et seq.) and the Securities Exchange Act of
1934 (15 U.S.C.A § 78a–78jj) The 1933 law requires issuers of securities to file financial information with the federal government; the
1934 law authorizes the SEC to act as a regulatory body over the financial industry In 1974 the SEC tightened requirements on annual reports
by specifying a broad range of information that must be provided, and it frequently amended them in subsequent years Corporations have consequently made greater efforts to scrutinize their reports for compliance with the law, increasing the role of lawyers in producing what was once the work of accountants
These requirements address financial and general information An annual report must include a balance sheet reflecting changes in the corporation’s financial worth, an income and cash flow statement, and other relevant docu-mentation, all of which must be reviewed first
by outside auditors A statement by manage-ment must analyze past performance as well as
discuss prospects for the following years; if circumstances change, corporations have a duty
to issue corrected information In addition, they must make public details about products and services, domestic and foreign markets, and the backgrounds of directors and executive officers Corporations that fail to comply with all the requirements can face enforcement proceed-ings In such cases, the commission has the power to invalidate the election of directors and decisions made at the shareholders’ meeting, which can necessitate issuing a revised annual report Administrative remedies also exist Under the Securities Enforcement Remedies and Penny Stock Reform Act of 1990 (15 U.S.C
A § 77g et seq.), the SEC can use violations of any securities laws to force corporations to make full disclosures in their reports Corpora-tions that are in the process of registering for the first time with the SEC are particularly scrutinized for overly optimistic projections Besides federal penalties, wishful thinking in annual reports can lead to lawsuits Hoping to put the best spin possible on their achievements and prospects, corporations sometimes attract CLASS ACTIONsuits from shareholders who allege that the corporations have exaggerated or misled the public One of many examples is a suit brought against Pizza Time Theatre (In re Pizza Time Theatre, 112 F.R.D 15 [N.D Cal 1986]) Its 1982 annual report had cartoon characters bragging,
“We’re going full speed ahead!” And so they were: Nine months later, Pizza Time Theatre declared
BANKRUPTCY Shareholders brought a class action suit against the corporation and its directors, citing the report’s overly optimistic tone, but the suit was discharged in bankruptcy
Beyond requiring that annual reports meet financial and general information regulations, the law says nothing about the rest of their contents Corporations are free to package their reports as they please, and the form itself is constantly evolving: current annual reports borrow from the flashy graphic styles of maga-zines, can be released on videodisc and computer disk, and sometimes even include gifts Particu-larly interesting is a trend toward using these reports—usually via the president’s letter—to address political issues As powerful forces in the body politic, corporations rarely refuse an opportunity to make their influence felt on government, especially when pending legislation may affect their interests In the early 1990s, for
298 ANNUAL REPORT
Trang 2example, some annual reports from the medical
industry targeted the ill-fated health care reform
proposals of the Clinton administration
Annual reports became a source of
wide-spreadPUBLIC INTERESTafter the sudden collapse
in 2002 of Enron, the seventh largest U.S
corporation Within a few months other major
corporations disclosed major financial
difficul-ties, which came as a surprise to shareholders
and regulators that had relied on upbeat
financial information contained in these
cor-porations’ annual reports The credibility and
legitimacy of corporate financial data quickly
became a topic of political debate
The collapse of Enron was predicated on
fraudulent accounting practices that concealed
the amount of debt the corporation had
accu-mulated Federal prosecutors accused the major
accounting firm of Arthur Anderson of aiding
Enron’s corporate officers in this enterprise and
successfully won a conviction against the firm for
its actions, including the destruction of
docu-ments A careful review of Enron’s annual reports
revealed that certain transactions were buried in
obscure footnotes or were not reported at all
During 2002 the SEC and Congress examined
the shortcomings of annual reports and other
corporate reporting practices In a bipartisan
effort, Congress passed and PresidentGEORGE W
BUSHsigned the Sarbanes-Oxley Act, also known as
the Accounting Industry Reform Act, in July 2002
(Pub.L 107-204, 116 Stat 745,[2002]) The act
seeks to addressCORPORATE FRAUDby, among other
things, requiring chief executive and chief
finan-cial officers to personally certify the accuracy of the
financial information contained in quarterly and
annual reports The certification must state that
the officers have read the report, and must
confirm it contains no misstatements or
omis-sions and that it is a fair presentation An officer
who knowingly makes a false certification will be
subject to fines of up to $5 million and a prison
sentence of up to 20 years In addition, officers will
be forced to repay bonuses that were based on
inaccurate financial earnings
The SEC also responded by demanding that all
major U.S corporations recertify the accuracy of
their 2002 annual reports or risk prosecution A
number of corporations took the opportunity to
change their financial statements In the wake of
the 2002 scandals, the expectation is that annual
reports will be more accurate in detailing the
financial health of corporations
FURTHER READINGS Malveaux, Suzanne July 31, 2002 “Bush Signs Bill to Stop
‘Book Cooking’.” CNN.com: Inside Politics Available online at http://www.archives.cnn.com/2002/ALLPOLI-TICS/07/30/bush.corporate.reform; website home page:
http://www.archives.cnn.com (accessed July 4, 2009).
Monks, Robert A G., and Nell Minow, eds 2008 Corporate Governance 4th ed Indianapolis: Wiley.
Practising Law Institute 1994a The Annual Report to Shareholders Corporate Law and Practice Course Handbook Series, January –February.
Stough, Brooks, and L.C Lau 1997 Annual Reports to Securityholders and Disclosure in Annual Reports.
Practising Law Institute (October –November).
Winkler, Carol 2002 “Weighing SEC Ability to Fight Fraud ” Boston Globe (December 26).
CROSS REFERENCES Board of Directors; Financial Statement.
ANNUITY
A right to receive periodic payments, usually fixed
in size, for life or a term of years that is created by
a contract or other legal document
The most common form of an annuity is akin
to a savings account The annuitant, the person who creates an annuity for his or her own benefit, deposits a sum of money, the principal, with an individual, business, or insurance company to be invested so that the principal will earn income at a certain percentage, usually specified by the terms
of the annuity This income is used by the company to pay the annuitant Each payment received by the annuitant, sometimes called the primaryBENEFICIARY, represents a partial return of the principal and a portion of the income generated by its investment Such annuities are employed frequently to provide a source of income to persons upon their retirement A group annuity contract supplies periodic payments to a retired individual member of a group of employ-ees covered by their employer’s master contract A retirement annuity is a policy paid to the annuitant after retirement If the annuitant dies prior to the expiration of the annuity or wants to surrender the policy, an amount specified in the terms of the annuity is returned to the annuitant’s estate or designated beneficiary
Classification
Annuities are classified according to the nature
of the payment and the duration of time for payment A fixed annuity requires payment in a specified amount to be made for the term of the annuity regardless of economic changes due to inflation or the fluctuation of the ventures in
ANNUITY 299
Trang 3which the principal is invested A variable annuity provides for payments that fluctuate
in size contingent upon the success of the investment of the principal Such variation offsets the effect of inflation upon the annu-itant If, however, the investment has fared poorly, the size of the payments decreases
A straight annuity is a contract by an insurance company to make variable payments at monthly
or yearly intervals A life or straight life annuity is payable to an annuitant only during the annui-tant’s lifetime and ceases upon his or her death
The size of the periodic payment is usually fixed based upon actuarial charts that project the expected life span of a person based upon age and physical condition This type of annuity often contains provisions that promise payment to be made to a secondary beneficiary, named by the annuitant to receive benefits in case of the annuitant’s death, or to the annuitant’s heirs for
a period of time even if the annuitant has died before the expiration of the designated period A deferred annuity is one in which payments start at a stipulated future date only if the annuitant is alive
at that time Payment of theINCOME TAXdue on the income generated is delayed until payments start
A deferred annuity is used primarily by a person who does not want to receive payments until he or she is in a lower tax bracket, such as upon retirement
A refund annuity, sometimes called a cash refund annuity, is a policy that promises to pay a set amount annually during the annuitant’s life
In case the annuitant dies before receiving payments for the full amount of the annuity, his
or her estate will receive a sum that is the difference between the purchase price and the sum paid during the annuitant’s lifetime
A joint annuity is one that is payable to two named persons but upon the death of one, the annuity terminates A joint and survivorship annuity is a policy payable to the named annuitants during their lives and continues for the benefit of the surviving annuitant upon the death of the other
Tax Aspects
When an annuity is paid to an annuitant, he or she receives a portion of the principal and part
of the return it has earned For federal and state income tax purposes, only the amount attribut-able to the income generated by the principal, not the principal itself, is considered TAXABLE
INCOME TheINTERNAL REVENUE CODEprovides an exclusion ratio to determine the amount of taxable income paid to the annuitant Special tax rules apply to annuities that are qualified employee retirement plans
The annuity payments made to the estate of a decedent might be subject to estate and gift tax as
an asset of the decedent’sGROSS ESTATE Federal and state laws governing estate tax must be consulted
to determine the liability for such taxes
CROSS REFERENCE Pension.
ANNULMENT
A judgment by a court that retroactively invali-dates a marriage to the date of its formation
An annulment differs from a DIVORCE, a court order that terminates aMARRIAGE, because
it is a judicial statement that there was never a marriage A divorce, which can only take place where there has been a valid marriage, means that the two parties are no longerHUSBAND AND WIFE once the decree is issued An annulment means that the individuals were never united in marriage as husband and wife
Various religions have different methods for obtaining a church divorce, or annulment, but these procedures have no legal force or effect upon
a marriage that complied with the requirements of law Such a marriage must be legally annulled
History
EnglishCOMMON LAWdid not provide for annul-ment Prior to the mid-nineteenth century, the only courts in England with the power to annul
an invalid marriage, when fairness mandated it, were the ECCLESIASTICAL COURTS There was no statute that provided relief of this kind
Northeastern American colonies passed laws enabling courts or legislatures to grant annul-ments, while other colonies adhered more closely to English traditions The American tradition of keeping church and state separate precluded the establishment of ecclesiastical courts in the United States Following the American Revolution, the civil courts in a majority of states never assumed that they had the authority to hear annulment cases
A number of states eventually enacted laws authorizing annulment in recognition of the belief that it is unfair to require people to fulfill marital duties when a marriage is invalid
300 ANNULMENT
Trang 4Currently most states have annulment
statutes In states that do not, courts declare
that no marriage exists if the laws regulating
marriage have not been observed
An annulment declares that a marriage,
which appears to be valid, is actually invalid
Two kinds of invalid marriages exist: VOID
marriages and voidable marriages A void
mar-riage is one that was invalid from its very
beginning and, therefore, could never lawfully
exist in any way The major grounds for a void
marriage areINCEST, bigamy, and lack of consent
Once these grounds are established, the court will
grant a decree of annulment
A voidable marriage is one that can be
declared illegal but that continues as valid until
an annulment is sought The annulment takes
effect only from the time a court renders its
decision
Grounds
State law governs the grounds for annulling a
voidable marriage Couples should not be
obligated by the serious duties incident to
marriage if both parties did not genuinely
intend to be married
annulment The MISREPRESENTATION, whether by
lies or concealment of the truth, must encompass
something directly pertinent to the marriage, such
as religion, children, or sex, which society
considers the foundation of a marital relationship
Physical or emotional conditions may also be
grounds for annulment, particularly when they
interfere with sexual relations or procreation
Other health conditions providing grounds
for annulment include alcoholism, incurable
insanity, and epilepsy The mere existence of
one of these conditions is a sufficient ground for
an annulment in some states, whereas in others,
an annulment may be obtained for fraud if such
a condition was concealed
Courts may also annul marriages that
involved lack of consent, mistake, or duress
Lack of consent might arise if one party were
senile, drunk, underage, or suffering from serious
mental illness, or if there was no genuine intent to
marry A mistake as to some essential element of
the marriage may also justify an annulment, for
example, if the couple mistakenly believed that
one party’s insanity or impotence had been
cured Duress arises when one party compels the
other to marry against his or her will
Consequences
State law governs the consequences of an annulment Customarily, an annulment was a court declaration that no marriage had ever existed, but this created various problems If a marriage was dissolved by divorce, the children
of the marriage were legitimate and the parent awarded custody could be awardedALIMONY No such provisions, however, were made in an annulment A majority of states have rectified this situation by statutory provisions In most states, children of voidable, and sometimes void, marriages are legitimate In addition, some states provide for alimony and property settlements upon the granting of an annulment
Several other jurisdictions allow their courts to devise a fair allocation of property where necessary and equitable
FURTHER READINGS The Diocese of Saint Cloud Web site 2008 “The Annulment Process ” The Roman Catholic Diocese of Saint Cloud, MN Available online at http://www.
stcdio.org/annulment.htm; websie home page: http://
www.stcdio.org (accessed August 28, 2009).
Escalera, Steve 2000 “California Marital Annulments.” The Journal of Contemporary Legal Issues 11 (spring).
Nelson, William T 2000 A Treatise on the Law of Divorce and Annulment of Marriage: Including the Adjustment of Property Rights upon Divorce, the Procedure in Suits for Divorce, and the Validity and Extraterritorial Effect of Decrees of Divorce Holmes Beach, FL: Gaunt.
ANON
An abbreviation for anonymous, nameless, or name unknown
ANSWER The first responsive pleading filed by the defendant
in a civil action; a formal written statement that admits or denies the allegations in the complaint and sets forth any available affirmative defenses
The answer gives thePLAINTIFFnotice of the issues the DEFENDANT will raise as the case progresses and enables the plaintiff to adequately prepare a case In most jurisdictions, the answer must be filed within 20 days after receipt of the
and customs may dictate different filing times
The answer begins with a caption, which identifies the location of the action, the court, the docket or file number (assigned by the court), and the title of the case (comprising the names of the parties, e.g., Smith v Jones)
ANSWER 301
Trang 5A sample answer and
counterclaim Answer and Counterclaim
United States District Court Southern District of Texas Corpus Christi Division
DirecTV, Inc.
vs.
John Bettiga, et al.
No C-02-507 [Jury Requested]
Answer and Counterclaim
TO THE HONORABLE COURT:
John Bettiga ("Bettiga") respectfully files this Answer and Counterclaim.
Admissions and Denials Preliminary Statement
1 Paragraph 1 Denied.
• Bettiga purchased standard electronic components useful for a wide variety of lawful purposes The components are not
illegal The components are not designed to intercept and decrypt protected satellite communications.
• Bettiga never used any illegal device for any illegal purpose.
• Bettiga never possessed any illegal device.
• Bettiga never viewed Satellite TV for free.
• Bettiga never distributed any illegal device.
DirecTV's Business Operations
2 Paragraph 2 Admit
3 Paragraph 3 Admit all except final sentence which is denied.
• The primary basis of this dispute is DirecTV is on a fishing expedition harassing the purchasers of standard electronic
components based on a mere possibility that the standard electronic components were used for an unlawful purpose.
4 Paragraph 4 Admit.
5 Paragraph 5 Admit.
6 Paragraph 6 Denied except Betigga is a resident of Texas.
• Betigga never purchased or used any illegal pirate device He purchased standard electronic components useful for a wide
variety of lawful purposes.
• Bettiga never purchased or used any device designed to permit viewing of DirecTV's programming without authorization or payment to DirecTV.
DirecTV Obtained Evidence
7 Paragraphs 7-10 Bettiga does not have sufficient information to form a belief as to the truth of most of these paragraphs
However, Bettiga denies that DirecTV obtained evidence that he purchase an unlawful pirate device At most, it obtained evidence
of his purchase of lawful standard electronic components usable for a wide variety of lawful purposes Further, Bettiga never
possessed or used any pirate device Further, he never manufactured, assembled, or used any pirate device He merely purchased standard electronic components He merely tinkered and experimented with these components His tinkering did not
result in a device capable of decrypting anything It was capable only of converting a signal from one form to another.
DirecTV Obtained Records
8 Paragraph 11 Denied Bettiga did not violate any federal or state statute or common law He merely purchased standard electronic
components Bettiga never manufactured or assembled or obtained or possessed or purchased any unlawful pirate device His
tinkering did not result in a device capable of decrypting anything It was capable only of converting a signal from one form to another The device could not accomplish and was not designed to accomplish decryption of DirecTV's signal without additional components and decryption software or device.
Jurisdiction, Venue, and Parties
9 Paragraphs 12-16 Denied except subject matter jurisdiction, personal jurisdiction, and venue are all admitted Bettiga never
violated any right of DirecTV anywhere.
10 Paragraph 17 Admit except Bettiga does not have sufficient information to admit or deny the State of Incorporation of DirecTV.
11 Paragraph 18.
• Admit that Bettiga resides in Corpus Christi, Texas.
• Denied that Bettiga purchased any Pirate Access Device He purchased standard electronic components useful for a wide
variety of lawful purposes.
• Bettiga did not purchase anything designed specifically to permit the surreptitious interception of DirecTV Satellite Programming.
• Bettiga purchased capacitors, transisters, and an RS-232 Transceiver These are all electronic components with completely lawful uses These components are not sufficient without more to create any Pirate Access or Decryption Device.
12 Paragraphs 19-21 Bettiga does not have sufficient information to admit or deny any of the allegations relative to the other
Defendants.
13 Paragraphs 22-24 Denied Bettiga did not import any illegal device He merely purchased standard electronic components useful
for a wide variety of lawful purposes Bettiga never viewed DirecTV programming without authorization or without payment Bettiga was never capable of viewing DirecTV programming without authorization or without payment.
14 Paragraph 25 Denied Bettiga never engaged in an enterprise to distribute or resell illegal pirate devices whether for profit or not
He never even possessed such a device His tinkering and experimentation did not result in a device capable of decrypting anything It was capable only of converting a signal from one form to another
[continued]
302 ANSWER
Trang 6Answer and Counterclaim
Discovery
15 Paragraph 26 Denied DirecTV never discovered Bettiga's involvement in pirating Satellite Programming because he is and
never was involved in that He merely purchased completely lawful standard electronic components and engaged in some
tinkering and experimentation His tinkering and experimentation did not result in a device capable of decrypting anything It was
capable only of converting a signal from one form to another.
47 U.S.C 605(e)(3)(C)
16 Paragraphs 27-28 Denied
• Bettiga did not effect unauthorized interception and receipt of Satellite Programming through the use of an illegal Satellite
decoding device or otherwise.
17 Paragraph 29 Denied.
• Bettiga did not violate federal law.
• Bettiga did not intercept, receive, or exhibit DirecTV without authorization.
• Bettiga did not publish or divulge the existence, substance, etc of the contents of DirecTV programming without authorization.
• Bettiga did not use DirecTV programming for his own benefit or the benefit of others without authorization.
18 Paragraphs 30-32 Denied.
19 In general, Bettiga did not intercept or receive DirecTV's programming without authorization He did not assemble a device
primarily of assistance in unauthroized decryption of satellite programming Thus, he did not violate 47 U.S.C 605.
20 Bettiga did engage in experimentation and tinkering The device he constructed was not capable of unauthorized decryption of
satellite programming at all It was merely capable of converting a signal into a different form (not decrypting the signal).
18 U.S.C 2511
22 Paragraphs 33-36 Denied Bettiga did not intercept, endeavor to intercept, or procure or otherwise to intercept electronic
communications He did not disclose or endeavor to disclose to others the contents of intercepted electronic communications
He did not use or endeavor to use intercepted communications Further, the statute does not apply in some respects as DirecTV
asserts because the statute in some respects is limited to "oral" communications.
18 U.S.C 2512
23 Paragraphs 37-40 Denied Bettiga did not assemble or possess any device primarily useful for surreptitous interception of
DirecTV's programming Bettiga did not assemble a device capable of doing that The device was not capable of decrypting the
DirecTV signal It was merely a device built from standard components capable of transforming the signal from one form to
another (not decrypting it) The device was never sent through the mail and never was going to be sent through the mail It was
not received by mail (standard electronic components were).
47 U.S.C 605(e)(4)
24 Paragraphs 41-44 Denied The device constructed by Bettiga was not capable of decrypting anything It merely transformed a
signal from one form to another (not decrypted it) Bettiga did not program or reprogram access cards There is not even a place
to put a card The device was not capable of unlawful interception or receiving of DirecTV's signal It was capable only of
transforming a signal from one electronic form to another (not decrypting it).
Conversion
25 Paragraphs 45-48 Denied Bettiga never viewed DirecTV programming without authorization He did not convert anything.
Tex Civ P Rem Code 123.001, et seq.
26 Paragraphs 49-51 Denied Bettiga did not intercept or attempt to intercept DirecTV's programming He did not divulge
intercepted programming.
Injunction
27 Paragraphs 53-56 Denied There has been no illegal conduct to restrain There is no showing of imminent irreparable injury or
even any probability at all of illegal conduct to restrain.
Factual Background
28 Bettiga has on more than one occasion been working on his computer when an advertisement for DirecTV appeared or "popped
up" on his screen without his consent or request In fact, this DirecTV advertisement "popped up" on the screen of his attorney's
computer while working on this answer and counterclaim This consumes computer resources and more importantly the time
of the computer user to delete the unauthorized "pop up." No consent was ever given to these pop-up advertisements whether
express or implicit.
29 This amounts to an unauthorized "trespass" on the computer See America Online vs IMS, 46 F.Supp 444 (E.D Va October 29,
1998) (Court awards AOL summary judgment against a spammer finding that the sending of unauthroized junk e-mail to AOL
subscribers constituted an actionable trespass to AOL's computer network); CompuServe Incorporated v Cyber Promotions, Inc
and Sanford Wallace, Case No C2-96-1070 (S.D Ohio, Feb 3, 1997) (Graham, J.) (Court issued preliminary injunction enjoining
the defendants from sending unsolicited advertisements via E-mail to any CompuServe subscribers The court held that by
sending junk e-mail, defendants had committed the tort of trespass on personal property by utilizing without permission the
computer system which supports CompuServe's e-mail facilities).
30 On information and belief, DirecTV commits this trespass through a third-party service provider not directly However, DirecTV
knows what its agent is doing and thus is responsible for the spam by its agent Bettiga is entitled to actual and exemplary
damages.
31 Further, DirecTV violated 18 U.S.C 1030 Bettiga's computer is a "protected" computer in that it is used in interstate commerce
and communication 18 U.S.C 1030)(e)(2)(B) DirecTV knowingly and with intent to defraud accessed this protected computer
without authorization or exceeded authorized access and by means of such access defrauded him by appropriating his time and
attention without authorization and use of his computer resources (not only this).
32 As a result, Bettiga has suffered loss DirecTV intentionally accessed a protected computer without authorization and as a result
recklessly caused damage 18 U.S.C 1030(a)(5)(ii) Bettiga has a private right of action 18 U.S.C 1030(g) for damages and
"loss." Further, he has an action for injunctive and other equitable relief Each pop-up causes distraction of work in process and
attention Bettiga is entitled to recover his attorneys' fees.
[continued]
A sample answer and counterclaim (continued) ANSWER 303
Trang 7Following the caption, the main body of the answer sets forth admissions or denials that respond to each allegation made in the complaint In federal court and in jurisdictions that follow the Federal Rules ofCIVIL PROCEDURE, denials must be unambiguous and stated in concise language that clearly identifies the allegations being denied (Fed R Civ P 8(b))
For example, if the complaint alleges that the defendant was driving an automobile that struck the plaintiff on Addison Street in Chicago on March 11, an answer stating that the defendant was in Milwaukee on March 11 is unclear and ambiguous because it avoids the question of whether the defendant was also in Chicago at a different time on the same day
The answer may plead any form of denial that is truthful and made in GOOD FAITH Although general denials that deny the truth
of every fact in the complaint or of every element of a charge are sometimes used, they are not considered a sufficient response Courts discourage general denials because they fail to respond to specific allegations and do not give the plaintiff sufficient basis to prepare a case If the defendant lacks the knowledge or informa-tion needed to respond to the truth or falsity of
a charge, rule 8(b) and similar rules in other jurisdictions allow the defendant to state such in the answer This has the effect of a denial (rule 8 (b)) If the defendant fails to respond to an allegation by either denying it or by stating he or she does not have the information necessary to admit or deny it, it is considered admitted under rule 8(d)
Following the admissions and denials, the answer outlines any affirmative defenses avail-able to the defendant Affirmative defenses,
A sample answer and
counterclaim
(continued)
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
Answer and Counterclaim
33 Even computer users who have successfully installed an effective "popup killer" program are damaged by illegal popups, because they have generally spent money for the "popup killer" program and have always expended time and effect directly or indirectly to find and install the "popup killer" program Further, the "popup killer" program consumes computer resources.
34 Further, on information and belief, all prerequisites to a class action exist The Court should promptly after appropriate discovery certify both a Plaintiff class and a Defendant Class The Plaintiff class consists of all users of "protected" computers anywhere who have been victimized by an unauthorized "popup advertisement" within the last 2 years and the Defendant Class consists of all Corporations and other business entities who have either directly or indirectly caused "popup" advertisements to appear on "protected" computers The Court should award appropriate relief to all Plaintiff Class Members against all Defendant Class Members The Court should allow appropriate discovery on the identities of all Defendant Class Members and Plaintiff Class Members It should award appropriate compensation to the class attorney.
35 All conditions precedent have been performed or have occurred.
36 The Court should deny DirecTV damages The Court should certify a class The Court should grant actual and exemplary damages for trespass and for violation of 18 U.S.C 1030.
Respectfully submitted, _
David A Sibley Attorney at Law P.O Box 9610
719 N Upper Broadway (78401) Corpus Christi, Texas 78469-9610 (361) 882-2377 - Telephone (877) 582-7477 - Telecopier david@davidsibley.com - E-mail davidsibley.law - Home Page State Bar No 18337600 Federal I.D 10053 Attorney-in-charge for Bettiga
On Sunday, January 5, 2002, I served this as follows:
Via Telecopier
Joe C Fulcher Attorney At Law
David A Sibley
304 ANSWER
Trang 8which are grounded in SUBSTANTIVE LAW, state
that an allegation may or may not be true, but
that even if it is true, the law provides a legal
defense that defeats the plaintiff’s claim The
defendant must determine if the law allows an
AFFIRMATIVE DEFENSEto a charge, and must allege
sufficient facts to support the defense For
example, in aNEGLIGENCE action, the defendant
might respond to an allegation that a duty of
care was owed to the plaintiff by stating that,
even if the allegation is true, the plaintiff
assumed the risk of the activity that led to the
injury The defendant must then state the facts
that support the defense It is critical to the
defendant’s case that all applicable affirmative
defenses are asserted In most jurisdictions,
affirmative defenses not raised in a timely
manner in the defendant’s RESPONSIVE PLEADING
are deemed to have been waived
The answer, like the complaint, ends with a
“wherefore” clause that summarizes the
defen-dant’s demands, such as demands for a jury trial
and judgment in the defendant’s favor Only
one wherefore clause is generally needed,
although local practice may dictate that each
denial and each affirmative defense have its own
wherefore clause
Counterclaims and cross-claims sometimes
appear in the answer ACOUNTERCLAIMarises when
the defendant’s response includes a claim against
the plaintiff A counterclaim may come from the
same circumstances as the plaintiff’s claim or
from a different set of facts ACROSS-CLAIMmay be
filed when one party to a suit charges another
party with responsibility for the plaintiff’s
inju-ries or damages Under Federal Rules of Civil
Procedure rule 13(g), a cross-claim must arise
out of“the transaction or occurrence that is the
subject matter either of the original action or of a
counterclaim therein or relating to any property
that is the subject matter of the original action.” A
cross-claim may also be filed separately from the
answer Because counterclaims and cross-claims
raise new issues and initiate a separateCAUSE OF
ACTION, they must meet the procedural
require-ments of a complaint
FURTHER READINGS
James, Fleming, Jr., Geoffrey C Hazard, Jr., and John
Leubsdorf 2001 Civil Procedure Eagan, MN: West.
McCord, James W.H “Drafting the Complaint: Defending
and Testing the Lawsuit ” Practising Law Institute 447.
Witus, Morley “What Is the Answer? New Guidelines on
How to Draft the Answer and Affirmative Defenses ”
Michigan Bar Journal 7.
CROSS REFERENCE Civil Procedure.
ANTARCTIC TREATY OF 1959 According to this treaty, Antartic Treaty, Dec 1,
1959, 12 U.S T 794, 402 U.N.T.S 71
Antarctica—the land adjacent to the South Pole—is considered “international” territory, like that of the high seas; it is not under the jurisdiction of any single nation Its legal status, therefore, is governed byINTERNATIONAL LAW
ANTE [Latin, Before.] A reference to a previous portion
of a report or textbook
Ante is synonymous with supra
ANTECEDENT DEBT
A legally enforceable obligation, which has been in existence prior to the time in question, to reimburse another with money or property
Principles of contract law vary from jurisdic-tion to jurisdicjurisdic-tion regarding whether an ante-cedent debt constitutes good consideration since the debtor does not incur any new detriment at the time that he or she enters a contract with another party COMMERCIAL PAPER that has been given in exchange for an antecedent debt is deemed by the UNIFORM COMMERCIAL CODE to be supported by adequate consideration
Under statutes governing BANKRUPTCY, a transfer of property made by a debtor because
of an antecedent debt might be considered a voidable preference, depending upon the length
of time between the creation of the debt and the filing of the petition for bankruptcy A
bankrupt-cy court may set aside a voidable preference since
it gives one creditor a better right to payment than other creditors who are similarly situated
People no longer are surprised when an Ameri-can woman works outside the home, keeps her own bank account, maintains custody of her children after a divorce, or votes in a presidential election Yet, not too long ago, these practices were uncommon, if not illegal, in the United States Due in large part to the efforts of the remarkable Susan Brownell Anthony and other pioneers of feminism, women in the United
Trang 9States enjoy rights and opportunities that are simply taken for granted today
Anthony was born on February 15, 1820, during an era when most women got married, produced children, and deferred completely to their husbands Daniel Anthony, her father, belonged to the Society of Friends (better known
as Quakers), a religious group that recognized the equality of men and women Daniel encour-aged his daughter to think independently and to speak her mind He supported her educational pursuits and emphasized self-sufficiency
Although Anthony’s father was an admira-ble man and progressive for his time, her mother, Lucy Anthony, found little pleasure in her restricted, duty-bound life She appeared overwhelmed by eight pregnancies and exhausted from running the household while keeping boarders and raising six surviving children Historians believe that the withdrawn, careworn Lucy became a symbol to Anthony of the unfair burdens of marriage The institution seemed weighted against women, even those with kind and liberal-minded husbands Anthony concluded that marriage was necessary only when a strong emotional bond existed between two people This view put her at odds with most women of her generation, who considered matrimony a requirement for social and economic security True to her principles, Anthony—who once referred to marriage as
SLAVERY and “a blot on civilization”—rejected several suitors’ offers and remained single throughout her long life
Anthony was an intelligent young girl who received the best education available at the time Although she attended a well-regarded boarding school in Philadelphia, she did not enroll in college In the 1830s only one college in the United States, Ohio’s Oberlin College, accepted women Even with a college education, Anthony would have faced a limited number of employ-ment opportunities As a woman, her only options were to become a seamstress, a domes-tic, or a teacher Anthony chose teaching, and in
1838, began the first of several teaching jobs In
1846, she became headmistress at Canajoharie Academy in New York There, she discovered
Susan Brownell Anthony 1820–1906
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1820 Born
1838 Began first teaching position
1869 Formed the National Woman's Suffrage Association
1870 Fourteenth Amendment ratified; gave African Americans, but not women, the right to vote
1872 Voted in presidential election;
fined $100
1906 Died
1920 Nineteenth Amendment became law, giving women the right to vote
1868 Began publishing
The Revolution
1861–65 U.S.
Civil War
1852 Founded Woman's State Temperance Society of New York
1846 Became headmistress of Canajoharie Academy
1892–1900 Served as president of National American Woman Suffrage Association
Susan B Anthony.
LIBRARY OF CONGRESS
306 ANTHONY, SUSAN BROWNELL
Trang 10that male teachers were paid $10.00 per week,
whereas she received $2.50 Frustrated with the
low pay and a lack of respect for her work,
Anthony decided to devote her energies to
social reform
Although Anthony is best known for her
fight for women’s suffrage, she also crusaded for
other causes In 1852 Anthony became active in
theTEMPERANCE MOVEMENT, a national campaign
to ban the sale and consumption of alcohol
When it became clear that women were not
allowed full leadership in the existing
temper-ance organizations, Anthony helped form
the Woman’s State Temperance Society of
New York
Like her father, Anthony also was a fervent
abolitionist She became friends withFREDERICK
DOUGLASS and attended her father’s antislavery
meetings in the family home Before and during
organizational skills to the cause As head of
the Anti-Slavery Society of New York, she
planned lecture schedules and spoke publicly
against the evils of the Southern system and of
the discriminatory practices in the North
During this time, she joined forces with another
abolitionist, ELIZABETH CADY STANTON, who was
the acknowledged leader of the fledgling
women’s rights movement
After the war, Anthony and Stanton
contin-ued to work together for social reform They
were bitterly disappointed when their fellow
abolitionists refused to support their strategy for
constitutionally mandating voting rights for
women A golden opportunity for female
suffrage had arisen with the drafting of the
FIFTEENTH AMENDMENT to the U.S Constitution
This amendment was necessary to grant voting
rights to the former slaves who were liberated
by President Abraham Lincoln’s EMANCIPATION
PROCLAMATION However, the abolitionists
sup-ported the Fifteenth Amendment only to the
extent that it gave African American males the
right to vote They were not concerned about
the amendment’s exclusion of women With
that defeat, Anthony focused her sights on a
separate CONSTITUTIONAL AMENDMENT to grant
women the franchise
In 1868 Anthony began publishing The
Revolution, a weekly newsletter advocating
suffrage and equal rights for women In 1869
Anthony and Stanton formed the National
Woman’s Suffrage Association An indefatigable
worker, Anthony became a fixture on the lecture circuit and headed national petition drives to establish support for female voting rights
In 1872 Anthony decided to test the legality
of voting laws that allowed only white and African American males to go to the polls She registered and voted in the 1872 presidential election in Rochester, New York Anthony was prosecuted for the offense and fined $100, but she refused to pay Her defiance rallied supporters of women’s rights across the nation
In time, Anthony merged her suffrage organi-zation with another one, to form the National American Woman Suffrage Association She served as president of this association from 1892
to 1900
Not surprisingly, Anthony fought hard for the liberalization of laws for married women
During most of the nineteenth century, a wife had very little protection under the law Any income she produced automatically belonged to her husband, as did any inheritance she received Her husband could apprentice their children without her permission and was designated sole guardian of their children, no matter how unfit he might be A husband even had the right to pass on his guardianship of the children by will In Anthony’s home state of New York, her petition drives and lectures were instrumental in convincing the legislature to pass laws giving married women power over their incomes and guardianship of their children
Anthony was not afraid to flout social conventions to achieve her goals For a time she wore bloomers, a controversial garment named after Amelia Jenks Bloomer, the woman who popularized it Bloomers were loose-fitting trousers gathered at the ankle and worn underneath a knee-length skirt The costume was intended as a protest against the tight-fitting corsets and unwieldy petticoats popularly worn by women at the time Although she withstood ridicule to make her point, Anthony stopped wearing bloomers when she concluded that they were diverting attention from the more serious issues facing women
Anthony’s message of equality often met resistance, and not just from men Many women
in the nineteenth century were frightened by or skeptical of change In 1870 Anthony lamented their wariness when she wrote, “The fact is, women are in chains, and their servitude is all the
MEN THEIR RIGHTS AND NOTHING MORE;
WOMEN THEIR RIGHTS AND NOTHING LESS
—SUSAN ANTHONY