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Ckarasu's blog
on 03.26.2013
Let's Fail at Hard Corps Uprising!
Here are the first two videos of what I hope to be an ongoing series of attempts at this game. The first was uploaded in the FNF recaps, and the second is a new one. There should be a third uploaded later this week, and perhaps more to follow. Keep in mind that I hardly played the game, so I'm not too great at it as evident in the videos.
The first attempt with Zoel, as previously posted. I just posted it here for those that missed it, and for everything to be in one place. It was a fun attempt, but that last bike scene was too crazy for us.
This attempt was with me and Lemon's friend, Samantha. Things went way better, and we actually made some progress. But things turned to shit once those god damned sniper showed up. I hate them so much. Still, it was super fun.
Expect more videos at some point. I hope to make this a weekly thing, at best, where I post up videos of attempts at some hard games or just some competitive stuff.
Feel free to make suggestions, if you have any. I'm always up for input, after all.
on 03.24.2013
The 3/22 PS3 FNF Recap: Orgia Mode Edition + A surprise
Dat Aigis Orgia mode domination. Tonight, we had a fair bit of fun with Anarchy Reigns, even managing to fill out both teams for Deathball. Then we had fun with long time Dtoid member Zoel, as he showed us how Persona 4 Arena is really played. Also, sorry for the delay in posting this, but I had a good reason, as you shall soon see.
Game 1: Anarchy Reigns
Deathball is a man's sport, and any words to the contrary are heresy. Lot's of death and tons of scoring marked this week's game. Salt was had, Nikolai psycho crushed quite a few fools. A great night was had by all.
Game 2: Persona 4 Arena
For those new to the community, and are not sure who this person is, Zoel has been a long time member of Destructoid with a huge fetish for the Ys series and is freakishly good at fighting games. Much owning commenced, and we found out just how noobish we really were. To my credit, I did KO him once, which I am proud about.
Let's Fail at Hard Corps Uprising
This was an undertaking by me, Zoel, Lemon and his friend Samantha. Hard Corps Uprising is a game by Konami and is very reminiscent of Metal Slug(for good reason). I came in practically blind, so I have little idea what I was doing. We recorded 3 videos, the last 2 which will be released this week, where we attempted to make our way through this ball buster of a game. Obviously, the game had other ideas. So, sit back and enjoy what can only be described as an extended out takes reel.
The voices are a fair bit louder than the game, as I did not have a consistent volume throughout the playthrough, so forgive me for that. Also, Lemon was sick, so please try not to get too annoyed at his coughing(which he did his best to manage, mind you).
Until next time, folks!
on 03.16.2013
The 3/15 PS3 FNF Recap: Deathmatch edition
Another Friday has passed, so here's a recap of what went on in the PS3 FNF. Not too many people showed up this time, though......
Anarchy Reigns was short but sweet. Just messed around with some deathmatch gameplay types. Deathball will hopefully return next time. Not much voice chat went on, so you won't hear anything in the videos, really.
Just three players for Persona 4 Arena, so a lot of rematches. Teddy is still kind of nooby, I will admit. Still trying to learn some actual combos. Had some fun games with Codedor and Cad. And, despite my use of Teddy, Shadow Labrys is actually my main......
Well, that's all for this week. Hopefully, next week is even better.
on 03.09.2013
The 3/8 PS3 FNF Recap: Kanji and the Chair of Destiny Edition
Another Friday has passed, so here's a recap of what went on in the PS3 FNF(at least the parts I took part in).
Game 1:
Anarchy Reigns
We had a nice few games of Deathball, as you can see. Turns out that Durga's AI is way too good at the game. 1st match was a wash for my team, but we won the second. Last match was close, but we lost in the end. Such a fun game, so come by next Friday to join in the fun. The more the merrier.
Game 2:
Persona 4 Arena
Kanji is pretty beast when you don't really know how to dodge his grabs. But you know what's more beast? Teddy's item spam, that's what. As you see, poor Kanji has a bear of a time against him. Get it? BEAR of a time! I'm hilarious. That said, he did get the most wins, but that's not Teddy's fault.
The FNF was good and the salt was thick. Perhaps we can get more people into this next time.
So, what to look forward to next time? Well, I might cover the Nintendo FNF next week, but that really depends on a few outside factors. Also going to host Naruto Ultimate Ninja Storm 3 next week and hope to get some people in that, as it is quite fun despite being a Naruto game. I'll still host Anarchy Reigns and P4A, unless you guys have better ideas?
Still can't join the shooters and the other games due to not owning them and not being able to afford them. I'll try to fix that in the coming weeks, but I can't make guarantees. I really want more to feature other genres of games on here.
on 03.02.2013
The 3/1 PS3 FNF Recap
This is sort of a small thing I'm planning to do for the foreseeable future, where I post recordings of some of the FNF games I took part in, to show those who missed out just how much fun it is to be a part of the activities. It was sort of spur of the moment this time, so I only got two of the games recorded, out of the many that were going on. Also, no voice chat was recorded because we did not have enough time to set up Skype.
Game 1: Anarchy Reigns
Not much went on here, but the second match was pretty crazy. The game lagged like crazy, and the AI were apparently not in the mood to do anything else but lie in the dirt with their face down. it was quite hilarious to see them planted on the ground, with no force on earth being able to move them. Match ended lagging so bad that I had exit to main menu because it would not end. Game of the year, everyone!
Despite the bugs, which are admittedly few, the game is a riot. Maybe next Friday we'll get some Deathball done. Didn't get enough people this time.
Game 2: Persona 4 Arena
This was a spur of the moment arrangement, but man was it fun. Two hours of fun, though there were only three of us. We just messed around, as we were all too rusty to be any good. Expect a lot of dickishness and spam in the vid, but it was all in good fun.
Probably going to host P4: Arena next Friday. So much fun with friends, and that netcode is a real champ.
That's all for this Friday. Next time will feature more games and better videos. Perhaps with voice chat next time. Look forward to it.
Dtoiders featured in this week's FNF: Ckarasu(me), Hyper Lemon Buster Cannon(cbizzle), Cadtalfryn, and Epic-KxDtoid(Uncanny Silk). Guest starring:Cloud_Envy(friend of Hyper Lemon).
Note: Due to my lack of a 360, as well as a lack of means to record on the PC(efficiently), I cannot take part in those FNFs. As much as I would like to post tons of awesome videos of all the fun we have, I just cannot. I think it would be pretty awesome if some people picked those up, though.
on 02.28.2013
Contest Time, Yo!
What? Another contest from me? The last one didn't go so well, I admit, but I aim to more than make up for it with this one. So, what's the deal?
Well, it's pretty simple. Just show up for this week's WiiU FNF. I'll be hosting Sonic and Sega All Stars Racing Transformed and hoping to get some people to play. Here's the specifics:
Nintendo ID:
Ckarasu (add me through miiverse)
Sonic and All Stars Racing Transformed
8PM Eastern/5PM Pacific
If we get enough people to actually get a race going, then there will be prizes up for grabs.
If we get 5-6 players, first place will get a mystery Wii game(a good one). I'll give a small hint: The Preorder bonus for the game was a large, fold out art screen.
But, if we get 10 or more players, then things get hype. The prizes up for grabs become a bit more epic, with first place getting the first pick of one of these items:
Mystery Wii Game
Pandora's Tower
Wait, is that freaking Pandora's Tower you see there? Why, yes it is. The game will be sent on release to the person who chooses it as their prize, so you may need to be patient if you decide you want it(March 26th release date, after all).
Second place gets the second pick, and third gets what is left. Pretty simple, no?
So, how will I determine places? Well, I'll keep track of it through points. 1st place gets 10 points for that race, 2nd gets 8, and third gets 6. You get the idea. All places below third go as low as 4 points, as to prevent anyone falling too far behind as to not be viable(unless you keep getting in those last places). In the event of a tie, the winners will be decided through a battle race.
There are some ground rules to follow for races:
No rolling exploit. You know you are and, more importantly, I know what what it is. While it's not a game breaker, per se, I still don't want to see anyone pulling it in a race.
No bumping. Due to how latency works in the game, bumping into someone can send them flying out of control, and that's not cool. This only really happens due to poor connection speed, but I still do not want to see people doing it on purpose. Accidents happen, I get it, but do not make repeat mistakes. This is kind of tentative, as it can be redacted if connections are good enough. Might just do a test run.
You drop from a race, you drop from the contest. If you had a connection error, tell me so and you will get the default 4 points. But, if it happens again, then I may suspect something. Test your connection and make sure it's not unreliable. Poor sportsmanship sucks.
We will be playing the standard racing mode. No frills or anything like that.
I will take part in the races, but I will not count towards placings. So, if I get first, then second place counts as first place.
This offer stands until the third FNF from this post(places and scores will carry over for subsequent FNFs), so you guys have plenty of time. If only one week takes off, and the attendance drops significantly for the next FNF, then the contest will conclude.
Get hype.
on 01.25.2012
Contest Results
Well, a month ago I decided to hold a contest to see who would win my spare copy of Shin Megami Tensei Nocturne. 29 days later, and here are the results: Only one person entered. Unfortunately, that doesn't make much of a contest. And, the prerequisite was that at least 5 entered in order for there to be a winner. Obviously, it wasn't much of a turnout.
So, where does that leave Nocturne? Well, it's very likely that I'll find someone else to give it to. I could extend the contest, but that didn't really work the last time I tried it out. I could just trade it away, too. It was unfortunate that no one else decided to enter. I'm not happy cancelling it, but it was in the rules and clearly stated. It's quite unfortunate.
on 01.03.2012
A contest approaches: A reminder and some new rules
As most of you know, I am holding a contest for a copy of Shin Megami Tensei: Nocturne. Perhaps one of the best RPGs ever made, in my opinion, I wanted to make sure that the contest for it was fitting. After some time, I finally hammered out some details.
Here's what you have to do, in case you need a reminder: Review a game. Almost any game will do, but do try to make it something different. Reading the 1,000th review of Skyrim is no fun. It can be a text or video review. Try to make it as entertaining as possible, but don't try to force it. Text reviews should be around 500-700 words long, at least. Video reviews should be at least 5 minutes long, if you go that route. The blog post, or video, should have the title "A piece of my mind" and then followed by the game you reviewed. Reposts are NOT accepted. The review must be made specifically for this contest. Sorry if it seems like a pain, but I want actual effort to be put into the contest.
1. I might have to restrict it to US only, unless people outside of the country are willing to split the bill. International shipping is pretty outrageous, and I'm kinda poor.
2. The deadline for the contest will be January 24th.
3. Up to 2 entries per person. This is mostly for if you feel your first entry was not up to snuff.
4. Entries can be on Youtube, Blogger, etc if you do not want to post on Destructoid. Just PM me a link to the entry. Or post a link to it here in the comments. I will post a list of entries here.
5. At least five different entries must be posted a week before the deadline, or the contest is over and no one wins. I want there to have to be a difficult choice, and having only 1 or 2 entries is kinda sad. I doubt it will come to this, though.
6. Try to incorperate pictures, or clips, of you playing the game into the review. It's not necessary, but it makes the review seem so much more entertaining. There are plenty of programs out there for this purpose, and there are a few free ones.
7. Depending on the amount of entries, and my financial situation, there may be additional prizes up for grabs.
Oh, and the game comes in the case and has the manual. Just in case there was any doubt. I also tested it to make sure it works, and it does.
on 12.27.2011
Review Controversies: What is this shit?
So, Mr Sterling posted a nice little article about some of the most controversial reviews of the year. It seems that many people were not happy with the scores the games got, and lots of shit storms erupted. I figured I'd share my take on it.
First, allow me to say that I believe that all reviews are mostly subjective in nature. How can you truly decide if a game is good or not? There's no real way to make an objective set of standards of what constitutes a good or bad game. A game could be technically great, with all the mechanics working as intended and without any glitches, but it could still be considered a bad game simply because the game is monotonous to play or the mechanics of the game just aren't appealing. What about the games' stories, soundtracks, or graphics? The quality of those also fall under what you would consider good. A game can be modeled with great care, but still be considered generic in design and art direction. Soundtracks and stories are the most obviously subjective elements.
Another point I want to make is that if you do not like the score, why not enjoy the game anyway? A score should not determine your enjoyment of the game, as well as others' enjoyment of it. Should the game you like get a good score, that'd obviously be great, but it has never stopped me from enjoying the games I like. People who were really interested in the game will likely get the game anyway. If they are disuaded from the purchase by just one negative review, then the game was obviously not that important for them to get.
If you do not like the opinion, why not type up a blog about your opinion of the game instead of wasting energy complaining? I know it sounds like a rude thing to say, but it's true. The more opinions there are of the game out there, the more input potential buyers will have to make their decision. There seems to be this consensus that video game reviewers' opinions are more valuable than a gamers. The thing is, it's not. Of course, there are bad user reviews out there, but so long as the review is well written, then it's as valid as any reviewer's opinion. That's the truth, no matter what anyone would want to try to say.
If the review is so bad, then spend time pointing out any errors they may have made. Do not attack the reviewer personally. It only serves to make you look ignorant, and people will more likely side with the reviewer. Find mistakes they made, and error in information or contradictions. If the review is truly that bad, then there are sure to be many mistakes that you can point out in the hopes that readers can catch them.
Do I agree with all the reviews on Destructoid? No, but in a majority of them I respect that it is their honest opinion. If they truly enjoyed the game, and they feel it deserves a high score, then I respect that. Conversely, I feel that they have a right to grade a game poorly if they feel it was not up to snuff. It is their opinion to make, not mine.
Reviews are truly a great thing. Each one is different, and so many different view points are presented to us. If all the reviews for a game were high just because reviewers wanted to pander to the fans of the series, then so many of us would not be able to truly discern what games are for us. Do not get angry over a review that stands opposite from yours. Instead, appreciate and respect the fact that there are people who have different likes and dislikes. I know I have.
on 12.26.2011
A Contest Approaches! Nocturne Edition
So, today I managed to come across the coolest thing: A spare copy of Shin Megami Tensei Nocturne. In its box, with a manual. The CD is in good condition, as is the rest of the package. I jumped on that so fast, as you'd imagine. So, why am I telling you all of this? Well, I'm telling you because I plan to give it away in a community contest, of course.
So, what are you gonna do for this contest? Well, it's quite simple, actually: Review a game. Almost any game will do, but do try to make it something different. Reading the 1,000th review of Skyrim is no fun. It can be a text or video review. Try to make it as entertaining as possible, but don't try to force it. Text reviews should be around 500-700 words long, at least. Video reviews should be at least 5 minutes long, if you go that route. The blog post, or video, should have the title "A piece of my mind" and then followed by the game you reviewed. Reposts are NOT accepted. The review must be made specifically for this contest. More specifics later, but this should be all you need to know to make a valid review for the contest. It's by no means super final or anything. If you have a better idea, tell me. You can do that instead of making a review if I think it's a good idea.
Some bare bone details of the contest:
1. Anyone can enter.
2. The deadline for the contest will likely be mid January, at the earliest. This is not the deadline for suggestions, but the deadline for actual entries.
3. Up to 2 entries per person.
4. Does not have to be posted on Dtoid. Can be on Youtube, Blogger, etc. Just PM me a link.
5. At least 5 entries must be submitted before the deadline, or the contest is over by default. Only one entry from each person is counted in this case. I want this to be fun, and to be a difficult decision. The rule can be modified or erased if you REALLY want it to be.
So, that's it for now. I'm looking forward to suggestions and, ultimately, entries.
on 09.24.2011
Skyrim vs Dark Souls: Does it really matter?
Dark Souls and Skyrim, two entirely different forms of RPGs, have recently been compared to each other by more and more video games sites. Fans of both series are already getting annoyed by this, and I count myself as one of them.
First, let me start off by saying that I believe that, for me, Dark Souls is going to be the only one of the two that I will play. I cannot claim to be unbiased here, but even I know when not to compare two completely different games. Both will be great in their own ways, I�m sure, and this trend with comparing them has really got to stop.
Personally I'm looking so forward to this.....
First off, they are both entirely different games. Skyrim aims for immersion in its story and lore, while Dark Souls aims for challenge and gameplay to motivate its players. Each appeals to a different crowd, and while both sides can definitely enjoy the other game, they generally do not need to be competing. Dark Souls also puts an emphasis on multiplayer as part of the experience, while Skyrim is aiming for a completely single player experience.
Another thing that I see is people comparing the length of the two. Let�s be clear, both games are going to be long. Each has their own ways in creating their length, as well. Skyrim will have tons of quests, dungeons and dialogue to discover. Dark Souls will make people have to learn the system and many of the hours spent will be from intense fights, multiplayer battles, and trekking through the many dungeons you must complete to beat the game. Each has their own appeal for people seeking a time sink, and hundreds of hours can be spent on both.
Other, less important, aspects have been used to compare the two as well. From one�s inclusion of the DLC scheme to the inclusion of dragons in both games. These comparisons are petty, and ultimately pointless. People do not really care about if they have DLC or not, or if there are certain types of monsters in them. People should only care if they will be enjoyable to them, and any other comparisons are obviously only to garner unnecessary attention and conflict.
...but that doesn't mean that I should care if it's "better" or "worse" than Skyrim.
Ultimately, these types of comparisons are bad for both series, really. They aren�t really competing (well, in a general sense they are but, you know what I mean), and fans of both games can enjoy the other, I�m sure. The only end result of this is immature comparisons and a pointless flame wars. In the worst case, it can cause a person to lose interest in the games while the best case results in both sides looking immature. Expressing one's opinion is fine and all, but doing so in a what that causes such an immature argument should not be commended.
Author�s note: I apologize if I offend anyone interested in Skyrim in any way. While not a game I plan on getting, I do not want anyone to get angry or think I was trying to insult the game they are looking forward to. I honestly hope both games are great.
Articles in question:
IGN article
XBM Article
Raiding Party Article
on 09.17.2011
A Game for the Hardcore: Disgaea 4
Disgaea 4 is the latest sequel to the Disgaea series. Disgaea 3 seemed to have left a few fans feeling a bit disappointed with the characters, and the fact that the series has not seen any significant evolution in its visuals since it was created. Disgaea 4 seeks to remedy these two complaints, and more. Does it succeed? Read ahead and judge for yourself.
Game: Disgaea 4: A Promise Unforgotten
Developer: Nippon Ichi
Publisher: NISA
Year: 2011
System: PS3
Disgaea 4 tells the story of Valvatores, a Prinny Instructor situated in Hades, and his rise against the corrupterment (which is obviously the netherworld�s version of the government) after they issue an order to exterminate all of the Prinnies. Accompanying him on his righteous quest is his loyal steward, Fenrich. Along the way, Valvatores shall also gain help from various other eccentric personalities. Among them is Fuka, a human soul who failed to become a Prinny; Emizel, the President�s son; Desco, a supposed Final Boss; and Vulcanus, the �Angel of Avarice�. The story is pretty tongue in cheek, and only rarely attempts to take itself seriously. The characters are also pretty entertaining, and each has their own little quirks (Fuka thinks this is all a dream, for example). The interactions between the characters tend to be quite amusing, and the dialogue is relatively well written. Some of the sections aren�t as amusing as the game attempts to make them out to be, but they are few. There are multiple endings, similar to previous games. Some are obtained through game overs, others are through more obscure methods.
The game itself is the same Disgaea we all know and love. Battles take place on a grid, and are turn based. Characters can be lifted and thrown to reach areas the would be otherwise impossible to reach by simply walking to. Attacking the same target with different units also leads to combos, and team attacks can be initiated by having other units adjacent when attacking. Magichange returns, as well. This feature allows a monster to change into a weapon (for three turns before exiting the battle) and equip itself to the character you chose. The unit the monster equipped itself to gets access to some extra skills, and the monster�s innate evilties. Evilties are passive skills that provide beneficial effects to the units they are equipped to, or provide detrimental effects on enemy units nearby. Weapon skills are now learned by leveling a character up, instead of using Disgaea 1 & 2�s weapon mastery system. In order to learn all the skills of a weapon, the units must be proficient in that weapon type, though. Monsters will learn skills by leveling up, as in previous games/ You can also spend mana, which is obtained by defeating enemy units, to boost these skills. Each skill has 9 levels, and increasing the levels will increase damage done by these skills, and sometimes even the range. Other returning features are the item world, which allows you to boost the strength of the items you explore, and character world, which grants bonuses to certain aspects of the unit you use to host it. The Dark Assembly, which you use to unlock various other characters and features, also returns as well as the ability to bribe senators into agreeing with you. Almost all of the features of the previous Disgaea games return, with the same absurd depth as the previous titles. It�s a bit much to take in for new players, but most of the aspects are explained well in the game.
You can ask call of the aid of other players, but that doesn't mean you'll get an answer.
Disgaea 4 also managed to add a few new features to the mix, as well. One of the first of these that you will encounter is the fusion aspect. Fusion allows you to fuse two monsters together to create a giant unit (the unit will be that of the monster you select to fuse into). Giant monsters can gain a boost to their stats, and the range of their special attacks increases. They also gain the ability to knock other units out of the way when moving. The downsides to fusion is the loss of 20% of the monster�s SP (used for special attacks) and the fact they are a larger target. Once the monster runs out of SP, it will split back into the two monsters used to fuse it. Giant monsters also have the ability to magi change into giant weapons. These increase the range of all the weapon based skills. There is also the inclusion of dual magichange as well. None of these features are particularly necessary to use to beat the game, of course, but they allow for countless other strategies to be implemented in order to tackle a particularly tough stage. Although, Giant and Dual Magichanges probably won�t be used until late or post game, due to their requirements for unlocking them.
One of the more interesting additions, though, is the inclusion of online functionality. After encountering their first pirates in Item World, the player is given the opportunity to create their own pirate ship and crew to invade other peoples� item worlds or to duel them. Pirate ships are created from numerous parts that you will be able to collect from defeating other pirates in the item world, or through treasures that you find by coercing captive demons to divulge their locations. Once you have the ship and crew assembled, you can upload your pirates to the network and check in on them every once in a while. Pirate duels, as mentioned before, also become accessible. Both pirate crews are AI controlled, but have multiple �tactics� that can be set for them. You can change these during battle, but the other side is completely AI controlled. The side with the most points wins (obtained by boarding their ship and killing their units). Players can also upload their own senators onto the network to attend other players� assembly meetings and receive bribes. You can also create custom maps for other people to battle in, and even change the base map that you use to shop and travel to item world. You can even set the main characters as NPCs in the base, and they all have something different to say depending on what you assigned as their job. These features, while not ground breaking in any way, add some extra fun to the game. None of them are required, and are more of side activities to be honest. Still, duking it out with another pirate crew is quite entertaining, and certainly is a welcome addition to the game.
Good news: Magichange will now never weaken a unit when used.
The change to hand drawn sprites has really made the game look a lot more modern. Animations are more fluid, and the characters have more detail in them. Attack animations have also seen a slight rise in visual quality, but not nearly as much. The game looks great for a strategy RPG, but there are some areas that could have used a bit more attention. Settings and maps don�t look quite as good as the sprites, for example. And a few of the visual effects are a bit too simplistic. But, that is about all I have in terms about complaining about the visuals. And, for those of you who like the old style of spites, there is an option to turn all the in game sprites into their 16 bit counter parts (with a smooth and crisp setting, as well).
The soundtrack in the game is great. The songs played in the game all fit very well in the areas that they were used, and no one song sounds the same as the other. A few of the tracks from previous games return, but it�s mostly new stuff. The variety of tracks is quite diverse, as well. Sound effects used in the game are mostly of the cartoonish sort. Voice work is also really solid (although you can change to the original Japanese audio). The actors play their roles well, most of the times. Their portrayal of the characters are believable, and at no point did I feel the urge to change the audio to the Japanese voice track. There are a few moments where the voice work isn�t quite up to par with the rest of the game, but these moments do not occur often enough for it to be a major issue. Over all, Disgaea 4 sounds great.
Fuka keeps thinking this is all a dream. Pro tip: It isn't.
In terms of length, I�d have to say that Disgaea 4 is definitely up there in the series in overall gameplay time. The story took me about 30 hours to complete. Most of the story maps were quite challenging, and it wasn�t always so simple to clear the map. The post game content has, so far, racked an additional 60 hours to my gameplay time. There are a number of additional characters you can unlock, alternate challenge maps called X-dimensions, and the Land of Carnage has returned (all the maps get way stronger enemies, and a few other additions). Add in the Item World shenanigans and pirating, and you can easily lose 100s of hours to this game.
Overall, Disgaea 4 was a great addition to the franchise. It�s not a revolution of the series so much as a refinement. Those interested in the series will find the game to be quite accessible, and long time fans will find that it is just as deep, if not more so, than the other games of the series.
My rating:
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About Ckarasu
One of us
since 11:43 AM on 02.14.2009
My Name: Chad
Favorite Games:
Resonance of Fate
Shin Megami Tensei: Nocturne
Persona 4
Super Smash Brothers Brawl
Fire Emblem Sacred Stones
Final Fantasy IX
Shadow of the Colossus
Brave Fencer Musashi
Jade Cocoon
Knights in the Nightmare
About me:undergoing renovation
Contact info:
Twitter: @Ckarasu
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text:
Statement by H.E. Ms. May-Elin Stener, Chargé d'Affaires a.i., on 31 August 2015.
Statement by H.E. Ms. May-Elin Stener Ambassador and Deputy Permanent Representative, 10 June 2015.
Statement by Norway, 4 May 2015.
Statement by Mr. Sten Arne Rosnes, Director, Ministry of Foreign Affairs, Norway. 4 May 2015.
Statement by Mr. Bård Glad Pedersen State Secretary, Ministry of Foreign Affairs, Norway, 29 April 2015
On March 17th Christine Finbak, Senior Adviser at the Legal Affairs Department at the Ministry of Foreign Affairs, held the Norwegian statement in connection with the commemoration of the 20th anniversary of the opening for signature of the Agreement for the implementation of the provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the conservation and management of straddling fish stocks and highly migratory fish stocks.
Statement by Ms Solveig Horne Minister of Children, Equality and Social Inclusion at Commission on the Status of Women 59th Session, 12 March 2015
Opening statement by Minister of Children, Equality and Social Inclusion, Ms. Solveig Horne at side-event hosted by UNFPA and Norway UN during CSW 59, 12 March 2015
Opening statement by Minister of Children, Equality and Social Inclusion, Ms. Solveig Horne at side event "The Equality and Anti-Discrimination Ombud in Norway" during CSW 59 CSW, 12 March 2015
825 Third Avenue, 39th Floor New York, N.Y. 10022-7584(On the corner of 50th Street and Third Avenue)
Norway - Mission to the UN
Phone: +1 (646) 430-7510Fax: +1 (646) 430-7591E-mail: firstname.lastname@example.com

subset: commoncrawl


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User Review
Been living here for something like 10 years, never been happier. Great quality apartments, awesome rec facilities, big pool, hot tub, etc. If you want somewhere to live in the area that you can call home, this is the place.
Copper Creek gated community in Milton, Washington has 1, 2, & 3 bedroom apartment homes, minutes from local grocery stores & malls, & offer microwaves, washer/dryer, walk-in closets, pool, spa & free covered parking.
|$895 - $935
|1 Bathroom
|725 sq. ft.
This floorplan at Copper Creek in Milton, WA offers a spacious living and dining area, all of which border and over look a protected green belt that can be enjoyed from your living and dining area windows, as well as your private patio. And rest assured, bedroom space was definitely not forgotten! This floorplan offers our largest bedroom, with a closet that runs the full span of the wall. In the bathroom, you will find ample storage space with shelving, as well as double sinks- also providing more than enough counter space. A fully-sized washer and dryer is included in every home. Microwave, garbage disposal, and dishwasher, as well as ice maker are also features in every home.
|$995 - $1,055
|1 Bathroom
|925 sq. ft.
This Milton, WA floorplan was designed with living area space in mind, the largest living room we have to offer is complimented by a chic gas fireplace, and more than enough space for different furniture arrangements at Copper Creek Apartment Homes. This is an absolutely stunning layout. The kitchen is abundant with cabinet and drawer space, as well as a five-shelf pantry of which extends behind the wall, great for small appliance storage. This floorplan also has a fabulous bathroom with double sinks, and a five-shelf linen closet. Within the master bedroom is an oversized closet of course, and can even be used as extra storage with such abundant space. A fully-sized washer and dryer is included in every home, as well as microwave, dishwasher, garbage disposal, and ice-maker.
|$1,005 - $1,065
|1 Bathroom
|965 sq. ft.
Copper Creek's two bedroom one bath floorplan offers a gorgous kitchen with more than enough counter and cabinet space, as well as a five-shelf oversized pantry right here in Milton, WA. The kitchen overlooks the dining area through a long breakfast bar of which could easily fit four bar stools, and opens into the living area as well, where you will find a chic gas fireplace angled to be the focal point of this area, as well as a large sliding glass door (with sliding screen) leading to your patio. This floorplan also offers a large bathroom with double sinks, plenty of counter space, and your fully sized washer and dryer tucked away within the laundry closet. Within the master bedroom, you will see that consideration for closet space was most definitely not neglected! The master bedroom closet is approximately 5'X13' catering to just about anyone's closet needs! This home includes microwave, dishwasher, garbage disposal, and ice-maker.
|$1,025 - $1,095
|2 Bathrooms
|975 sq. ft.
This Milton, WA floorplan offers a spacious living area with cable outlet options on both sides, a chic gas fireplace, and cozy dining room area. The LIving and dining room windows at Copper Creek Apartment Homes both face the breath-taking greenbelt view, behind which Hylebos creek can be heard. A generously designed kitchen offers much cabinet and counter space, perfect for the chefs! As well as a wonderful five shelf pantry. In the hallway you will find the first full bathroom directly across from the smaller bedroom, and then the master bedroom. The master bathroom is arranged in a unique style, with the stand up shower and toilet within their own room, and directly outside your vanity/sink and closet. This floorplan has a fully sized washer and dryer included in each home, as well as dishwasher, garbage disposal, microwave, and ice-maker.
|$1,055 - $1,150
|2 Bathrooms
|1,010 sq. ft.
Enjoy the convenience of a sizeable living area, complimented by the spacious kitchen and dining room area, of which also has an over sized five shelf pantry at Copper Creek in Milton, WA. The bedrooms are generous in size, bathroom space is ample with a dual sink vanity within the master as well as largely over sized closet. Fully sized washer and dryer are included in every home, as well as dishwasher, garbage disposal, microwave, and ice maker.
|$1,255 - $1,405
|2 Bathrooms
|1,150 sq. ft.
Copper Creek Apartment Homes' spacious bedrooms, comfortable living area and generous kitchen are all featured in our accomodating three bedroom, two bathroom floorplan in Miltonm, WA. While the master suite boasts a large closet and oversized bathroom, the other bedrooms provide ample space for the rest of your needs. A fully sized washer and dryer are included in every home, as well as dishwasher, garbage disposal, microwave, and ice maker. Storage is not an issue with our large five shelf pantry, linen closet and sizeable entry closet.
Come home to The Copper Creek Apartments, our gated community offers you the serenity of rural living while being just minutes away from major freeways and local shopping. We have a state of the art fitness center, complimentary tanning, outdoor pool and spa, and FREE COVERED PARKING! Our designer interiors have full size washer and dryer, private patios and cozy gas fireplaces. Let us help you make Copper Creek your home!
Year Built: 2000
Apartments in Community: 181
We believe school data to be accurate, but do not guarantee that. Please be sure to verify where your children will attend school before making your housing decision.
Copper Creek Apartments are pet friendly! Some breed restrictions do apply.
Been living here for something like 10 years, never been happier. Great quality apartments, awesome rec facilities, big pool, hot tub, etc. If you want somewhere to live in the area that you can call home, this is the place.
Copper Creek apartments is a great little community tucked away in the trees off the beaten path. Easy access to I-5, food, mall, movies without tons of people living around you. Management is very friendly and kind and the maintenance is very quick/on top of things if something does go wrong. I would highly recommend anyone interest
We will soon celebrate eight years at Copper Creek. At the annual tiki parti, I was surprised to learn from several tenants that many have also lived here as long or longer. Some faces I recognized. Many I know well. There were new faces too. This last tiki party we had was probably the best ever in consideration of the ability to co
Great place to live! A community that treats you like family.
Love them, wonderful layout friendly office staff. Feels like home the minute you move in
I love these apartments. The manager was very helpful,friendly and made everything less stressful. I love the fact she makes this place feel like home and a community so we know who lives here and get to know one another. I was looking for an apartment in between my work and my husbands and we found it. I also like the fact that it i
By far THE BEST APARTMENTS!!!!! I was recommended to Copper Creek Apartments by two friends that lived here (left Copper Creek after purchasing homes) and a friend currently living here. What sold me was that they all raved about the friendly manager and her staff. The property is well kept, clean, safe, and repairs are done in a
Love this place we all call home / Copper Creek Apartments
I am on my second year living at Copper Creek Apartments. The staff has been great at accommodating all my needs. The facilities and grounds are kept clean. The interior 2 bedroom 2 bath apartments are spacious with the high ceilings. The neighbors are quiet and friendly. The property manager does an excellent job at making this feel
We have lived in this apartment community since late 2014. We fell in love immediately as we drove in. the staff are all very nice and always greet you. We would 100% recommended this quiet clean community to everyone and already have.
We have lived here since end of 2014. We immediately fell in love with the community as soon as we entered road approaching it. Everyone is extremely nice and always greet you when they see you. It's a very quiet community very little noice even though there are kids living and running around here. We 100% recommended this apartment
I hadn't lived in an apartment for over 10 years, so I was a little apprehensive about moving back into apartment life. Brenda and the entire friendly staff at Copper Creek made the transition easy and welcomed me into my new home. They take care of their residents and the respect is returned. It's quiet, somewhat secluded (even for
I've lived at a handful of apartments before, and I guess I've lived here at Copper Creek for, gee, almost 10 years. There's nothing bad you can say about this place, straight up nice apartments with a great staff.The rec center is great too, top of the line treadmills, weights, hot tub, pool, computers/printers, the works. I don't s
This apartment complex is a great place to live. It is located in a small town, but close to the freeways and shopping centers. The management is very helpful and kind and remembers all the resident's names. The apartments are spacious and are less expensive than smaller apartments in Federal Way. We especially like the double si
Couldn't speak higher of this complex. The apartments are spacious, the community is quiet and rural but close to the freeway and shopping complexes. The few times we've had a maintenance request it has been fixed within an hour of placing a work order. The office staff is phenomenal; they plan monthly community events, host weekly
An exceptional property. Crack staff, they are on any issue that comes up. Maintenance always takes care of problems promptly. Management treats you...
My family and I have lived here almost 10 years. The staff has always been amazing and very understanding. Great place to raise a family!
Love living here, and crazy impressed by how you guys handled the water outage. Coming door to door to explain the situation, giving out water jugs,...
Having had to move clear across the country, I honestly have no idea how we got so incredibly lucky in finding Copper Creek. They have gone out of...
Great family friendly place to live!
I love living here. It's quiet. And very well kept. Everyone is super nice. It's always a joy to go into the office. I've been here for over two years and just love it.
We moved here from CA a year ago and just renewed our lease for another year. At my previous apartments they are interested in helping fix issues in your apartment but not so much in getting to know who you are, you are your apartment #. This apartment complex strives to get to know & help those in the community that need it. They ar
As many people who know me I've lived many places throughout my life - I can say that in all of the apartment complexes I have lived this is by far the VERY BEST. The Staff is amazing, the management staff is outstanding. Brenda and her team from the Asst. Managers to the Maintenance Staff are truly one of the very best teams I h
Having lived in many apartments through out my life, I must say this is by far the VERY BEST place to live. The apartments are clean, big (full size washer and dryer in units), gas fireplace and they allow you to paint the walls to make it your home. Of course the best part of living here has to be the staff. The maintenance crew doe
This is by far the best place I have ever rented. You can't beat the location, just 5 minutes from I-5, and 10 from Tacoma & all the fun pubs, Ruston Way, etc. The way management runs this ...
This is by far the best place I have ever rented. You can't beat the location, just 5 minutes from I-5, and 10 from Tacoma & all the fun pubs, Ruston Way, etc. The way management runs this property really makes it a community & that shows because the residents who come out to Taco Tuesdays and Tiki Night and Gift Wrapping in December
Clean place, friendly staff, repairs done in a timely matter. Just aheads up for future tenants. Water bill is shared with others, and not informed with the tenants. No way to reduce the bill. Average for water, trash, sewage is around $100.00. We were gone for 2 weeks and the bill stayed the same. Also Moving out will cost you regar
I love this place. Great place for Adults, Kids and Pets. Secluded and easy to get to. They have community events for Adults and Kids and I have not had my car broken into. Manager is a Great lady and people who use vulgarity and personal attacks to get their point across should really take a look in the mirror and see how they would
I have lived here for 2 years now. I love this place. The managers are awesome. They're real people if you know what I mean. Not by the book people. They want to help their residence anyway they can. The owner is a generous man. The apartments themselves are very nice well maintained. They are very well priced. They are hidden in a w
From Tacoma: Drive North I-5, take exit "Fife/Milton". Turn right onto overpass then turn right on Hwy.99(Pacific Hwy). Drive 1.5 miles and turn right on Porter Way. Drive over 1-5 and turn sharp left on 5th Ave. at the "Y". Turn right on 1st Street East into Copper Creek Apartments. From Seattle: Drive South I-5, take exit 142B. Turn left at the first light on Enchanted Pkwy.(SR 161). Go one mile, turn right on Milton Rd. at Wild Waves. Drive 2 miles, turn left into Copper Creek Apartments.
Colonial Village has affordable one bedroom, one bath apartments for rent in a convenient North Auburn location. Close to major freeways and Emerald Downs, it's an easy commute either north or south. Walk to Top Foods, Walgreens, schools and restaurants. ...
Springhaven Village Apartment Homes is a special place where coming home feels familiar and comfortable, yet it is minutes away from work, recreation, entertainment, shopping and other essential services. Located in Tacoma, WA near McChord Air Force Base, Fort Lewis ...
Griffis Seattle South at Brookside in Auburn (formerly Brookside Village Apartments) is a conveniently located retreat with thoughtfully appointed apartment homes surrounded by the natural Pacific Northwest landscape. Whether you choose to hike Snoqualmie Falls or explore the Puget Sound ...
Welcome to Westminster Towers Apartments in Tacoma, WA. Our community offers six unique floor plans with decor to suit your style. Conveniently located in a neighborhood near shopping, restaurants and recreation areas, you'll love the perfect location. With panoramic views ...
As you search for your perfect apartment, please keep in mind that rental rates (including specials and discounts) and availability are very fluid in the apartment industry. Based on many factors, the rental rates (including specials and discounts) and availability can actually change not just daily, but hourly, if not even more quickly. While our advertisers do take steps to keep their information current, the rental rates or availability you may find here now at ForRent.com may not be the same as when you contact the communities.
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You dolts complaining about insider purchases not being big enough should keep that phrase in mind. Happy and Healthy New Year to all.
Sentiment: Strong Buy
Enabler: Give me a break! Who is calling who a dolt? You are sitting here in a bio spinning endlessly on its axis! If your investing in CABO prostate you have invested in a chess game in the first 10 moves---of the sixth game of the first to win 7 games and you ain;t up 6-0! I'll wait until another more moves are completed! Thats the only difference between you and me.
So if I am a dolt then so are you! Because if you are waiting on some buyout right now you are a plutonium covered dolt! Why do ya think they diluted--because they know its going to spin for quite a while! And if you tell me I am taking a risk being out, then I will ask ya if your alive--because everything is about daily life is wrapped in risk!
I made $10.00/share in BMRN using EXEL money in the interim because their data (GALNS) was ripe unlkike this)---and if I hadn't moved that cash out of here I would have made little or nothing. What did you do with yours other than stare at it and take alot of Tums!
You got to know when to hang and when to go take a walk with your wallet! Its not about if the drug is groundbreaking its about the timing! And I will worship doing it my way before i would ever worship your way, because in the past I was you!
Class dismissed!
Spherical, I congratulate you on your astute trading, the dolt comment was mostly a response to your disparaging remarks wtr to insider purchases. Traders who follow insider purchases are not in the habit of judging the insiders motives(other than making money) or, the size of their purchases.... $50,000 or a $125,000 may not be a lot to you, but could be a major purchase for others.
I too have traded around my basic position in EXEL and others but calling EXEL's results and data "unripe" is missing the point by a mile and judging the insider purchases reflects your position(short) more than your lack of grey matter. I chose to start a new thread because you were not the only dolt, but thanks for pointing out that you were one of them. Happy New Year!
Heads to $6 within 30 days.


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Runner Releases Video of Near Tragedy at Board of Equalization Building
Sacramento high-rise. "As the video shows, this building is a safety risk for both state workers and the public," said Runner. "In addition to falling glass, we've experienced toxic mold, leaking sewage pipes, methane gas, water leaks and more. It will cost mill ...Read more ›


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Posted on
October 2, 2015 07:36
by Walter E. Judge Jr.
Court Issues New Decision
Vermont's Lawsuit against Alleged Patent Troll Can Stay in Vermont State Court
Case Not About Federal Patent Rights and Does Not Belong In Federal Court
A federal appeals court has just affirmed Vermont federal Judge Sessions' second decision to "remand" the case against MPHJ – the alleged "patent troll" – back to Vermont state court.
Procedural History Of The Case:
Vermont Attorney General William Sorrell originally filed this lawsuit against alleged "patent troll" MPHJ Technology Investments, LLC in Vermont state court claiming that MPHJ's bad faith sending of numerous patent infringement letters to Vermont businesses and non-profit organizations violated Vermont consumer protection law. (The AG's Complaint was not based on Vermont's new Bad Faith Assertions of Patent Infringement Act (i.e., the "anti-patent troll" law), as that law had not yet been passed when the AG filed his Complaint). MPHJ "removed" the case to federal court arguing that the case was really about its federal patent rights and therefore belonged in the federal court system. The AG moved to "remand" the case back to state court and federal Judge Sessions did so, agreeing with the AG that the case was not fundamentally about MPHJ's patent rights but rather about its behavior within Vermont. MPHJ appealed that remand decision, and lost. The federal appeals court agreed with the AG and with Judge Sessions that the case did not implicate patent law. Therefore, the case was back in state court as originally filed. The AG then amended its Complaint against MPHJ. Thereupon MPHJ again removed the case to federal court. MPHJ argued that the AG's amendment invoked the new anti-troll law (even though the amended Complaint made no mention of the law), and that that law is unconstitutional, and therefore provided a basis for removing the case to federal court. The AG responded by again moving to remand the case, stating emphatically that the amended Complaint did not implicate the anti-troll law and that the AG was not suing MPHJ under that law, but only under pre-existing Vermont consumer protection law. Again Judge Sessions remanded, agreeing with the AG that the amended Complaint did not invoke the anti-troll law. Again MPHJ appealed that remand order. And, again, the same federal appeals court has now shot down MPHJ's (second) appeal – agreeing with the AG and with Judge Sessions that the AG's case against MPHJ is not based on the anti-troll law and has nothing to do with federal patent rights.
But What About Vermont's Anti-Troll Law?
What is interesting about this decision – and about this entire case – is that it is about the legality or illegality of a patent-holders alleged trolling activities, but it is NOT about Vermont's new anti-troll law. MPHJ's second attempted "removal" of this case to federal court was an attempt to make this case about the constitutionality of the anti-troll law. But that attempt did not work. This decision does not decide whether Vt.'s anti-troll law is or is not constitutional, nor whether it does or does not interfere with a party's patent rights. The whole point of this jurisdictional decision is that that issue was not before the court, because, in turn, the AG is not suing under that law. Thus, this particular case will not involve, and will not test, Vermont's first-in-the-nation state anti-troll statute.
So one might well ask: why is Vermont's Attorney General so determined not to use the anti-troll law against an alleged patent troll? Wouldn't a state attorney general want to use his latest and greatest weapon to go after an alleged patent troll, and rise up, so to speak, against a challenge to the constitutionality of that law? I assume the answer is, essentially, because the conduct by MPHJ that the AG is suing over in this case took place before the anti-troll law went into effect, and the lawsuit was filed before the law went into effect. Trying to apply that law retroactively against MPHJ might be problematic. If MPHJ were to be found liable under the new anti-troll law, it could argue on appeal that that law shouldn't have been applied to them in the first place because it wasn't in effect at the time of their activities.
So What Now?
So what now? After two years of procedural and jurisdictional battles that had nothing to do (at least in the view of the AG and the federal courts) with the merits of the consumer protection case, will the case now proceed in state court to litigation on the merits?
Posted on
October 1, 2015 04:23
by Steve Crislip
I bet some of you remember practicing law. Now we seem just to constantly respond to dings from emails, no matter where we are, or what else we might be doing. It is a classic example of change with a tech innovation that has caused all things large or small to be immediate. I suspect one of those electronic responses of yours will cause you a claim someday.
The site WordRake says a majority of emails are handled within 6 seconds of email arrival and then it takes about 64 seconds to return what you were doing. Between your haste to reply; your interrupted thinking; your failure to limit your reply to the right people; and auto correct, something bad is bound to happen.
I do not want to be known as the Master of the Obvious with these Loss Prevention posts. Email is fully a required part of the modern practice of law, but you must slow down and be careful. Stop and smell the electrons. I fear I sound like I am telling people to stop texting and just drive.
However, the typical down-and-dirty quick e-mail response makes for bad communications, but a really great trial exhibit. Emails often appear to mean something other than what the writer intended. Likewise, nice people become A-1 jerks in their emails when they would not be like that to your face. People tend to lie 50 percent more when negotiating by email, says WordRake. Now even a term called "e-venting" is used to describe the terrible rants people put in emails and on social media sites.
Where are you going with this, you say? I once got a tour of the NASA facility outside of Houston. The adjacent gift shop sold tee shirts that said: "It Is Not Rocket Science – Wait, Yes It Is." None of which I write involves such science. But if it were that easy and that plain to all people, why do we have such colossal failures with this media form then? In the legal world, such miscues are often called claims.
Recently the Sixth Circuit of the U .S. Court of Appeals ruled that a "butt-dial" on a cell phone, entirely accidental from a person's vacation in Italy, was admissible. One of the judges likened the events to leaving your drapes wide open and then expecting no one to peer into your house. So, if you are expected to secure your phone by locking it, setting up a passcode, or using an App to prevent such breaches of confidential information, you can bet your purposeful and intentional email will just be a nice large exhibit in any claim against you.
ABA Formal Opinion 11-459 (2011) stated that a lawyer must warn the client about the risks of using electronic communications in cases where third parties may gain access. Moving forward, an April 2015 Texas Bar opinion concluded that while a lawyer may generally communicate confidential information by email, some circumstances require the duty to disclose to the client and to consider whether to use encrypted email or another form of communication. Such circumstances could be:
• Communicating "highly sensitive or confidential" matters;
• Sending to a shared email account;
• Sending to an account where others may have the password;
• Sending to a public or borrowed computer or on an unsecured network.
So, in addition to secure transmissions, have you waived the attorney-client privilege in your send list? Have you inadvertently waived the privacy laws such as HIPAA/HiTech with your emails including protected information?
I would not want to rely upon the standard email disclaimer at the end for a defense, and I bet none of us have such for the texts you send anyway. So, should you just stay in bed and reduce most risks, or take "reasonable steps" to preserve your client confidentiality? May I suggest the instruction we all got when we started school: "Stop, Look, and Listen." Many of the common misfires can be fixed by a standard routine practice of scanning the "to" and "cc" list and re-reading the text of the message always. Slow down enough to be able to testify that you always follow these reasonable steps with all electronic communications.
This blog was originally posted on Lawyering for Lawyers on October 1. Click here to read the original entry.
Posted on
September 10, 2015 03:00
by Steve Crislip
There is no surprise in that statement other than the lawyers at Dentons got out ahead of me this year reporting on the annual survey of trailing 2014 claims submitted by insurance advisor Ames & Gough. As the early TV Los Angeles police character used to say on Dragnet: "All we want are the facts, ma'am." They are what they are, and it is not good news for lawyers. Consistent with other surveys, the frequency of lawyer claims is about the same, but they are more costly.
The practice area of Trust and Estate Law topped the list for the largest source of claims. There are a lot of legal areas within that practice field and often the potential for client bickering and dissatisfaction occurs there, even over the dearly departed. For some years, real estate practices were the largest source of claims, but many more claims by trust and estate clients, and even in some areas non-client beneficiaries, have spiked it to the top. Real estate dropped to fourth after corporate business/securities, and business transactional claims.
As I have reported in the past, those pesky conflicts of interest claims show up as claims year after year. While many come from current or past client issues, claims from lateral lawyer hiring continue to rise. Like those presented by conflicts, many claims come from totally preventable areas such as mistakes of all types. When we have areas where we can control the potential for loss we should, but yet these types of claims soldier on each year.
For some years I have advocated that firms can reduce their exposure with a regular program of loss prevention. When it is always stressed as important in a firm, the mistakes, conflicts and other such preventable claims drop. In addition, good and regular communications help prevent claims. Surprises for clients often lead to unhappy clients and even claims. Good case evaluations and assessments with a discussion of the attendant risks help clients make proper business decisions. Budgeting and reserve settings are part of business organizations with regard to litigation these days. They are important to be timely and quickly updated when things change. Unhappy clients also happen around larger than budgeted bills, some even leading to fee disputes. So, when costs are going up, you best be communicating all to the client. A review of disciplinary complaints filed last year in just one surveyed state showed the biggest complaint area was the "Failure to Communicate", followed by "Lack of Diligence". That makes a case for communication.
There are many common sense and logical ways to prevent claims. Good procedures and good communication are at the heart of any program. Yet busy lawyers still misstep year after year. I submit that you can make money for your firm by having someone therein designated as the quality control lawyer. Pilots immediately read back the controller's flight information for a reason. — The loss from a failure to communicate properly could be their own.
This blog was originally posted to Lawyering for Lawyers on September 1. Click here to read the original entry.
Posted on
July 27, 2015 09:55
by Judith L. O'Grady
The Centers for Medicare and Medicaid Services (CMS) recently made several announcements regarding Medicare, Medicaid, and SCHIP Extension Act (MMSEA) Section 111 reporting for Non-Group Health Plans (NGHPs).
CMS announced it would be hosting a Section 111 NGHP Policy and Technical Support Town Hall Teleconference from 1:00 p.m. to 2:00 p.m. EDT on July 28, 2015. CMS-hosted Section 111 NGHP Town Hall Teleconferences begin with announcements from CMS representatives followed by an open question and answer session. The call-in number for the teleconference is 1.800.603.1774, and the passcode is "Section 111." CMS recommends that individuals interested in attending begin calling in 20 minutes before the start of the call due to the large number of participants.
CMS also announced the release of an updated version of the MMSEA Section 111 NGHP User Guide. The updated user guide is version 4.7. Version 4.7 incorporates the following changes from prior Section 111 NGHP Alerts:
-The web address or URL for accessing the Section 111 Coordination of Benefits Secure Website (COBSW) and submitting Section 111 reporting information has been changed to https://www.cob.cms.hhs.gov/Section111//.
- CMS had previously provided a workaround that allowed Responsible Reporting Entities (RREs) to submit Recovery Agent or Third-Party Administrator (TPA) information on Tax Identification Number (TIN) Reference Files. CMS has eliminated this workaround and provided a permanent fix. The permanent fix allows Recovery Agent or TPA name and contact information to be submitted on TIN Reference Files in dedicated fields designated as "Recovery Agent" fields (fields 16–22). Submission of Recovery Agent information is optional. If Recovery Agent information is submitted in the Recovery Agent fields, copies of all correspondence regarding recovery claims will be sent to both the RRE and the designated Recovery Agent. These fields should only be used for agents who handle recovery claims. These fields should not be used for Section 111 reporting agents, unless the same agent handles Section 111 reporting and recovery claims. If Recovery Agent information is submitted in fields 6–11 of the TIN Reference File, only the Recovery Agent will receive correspondence regarding recovery claims.
-To prevent false positives when querying with partial Social Security Numbers (SSNs), all four of the additional matching criteria (first initial of the first name, first six letters of the last name, date of birth and gender) will need to match a Medicare beneficiary's information. When querying with full SSNs or Medicare Health Insurance Claim Numbers (HICNs), only three of the four additional matching criteria need to match. CMS encourages RREs to submit full SSNs or HICNs whenever possible to ensure an accurate match is identified.
-The naming convention used for the Claim Response, TIN Response and Query Response Files was changed in order to ensure file names are always unique. Specifically, the values of the time node were changed.
For additional information regarding any of these changes, a full copy of the MMSEA Section 111 NGHP User Guide is available at http://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Mandatory-Insurer-Reporting-For-Non-Group-Health-Plans/NGHP-User-Guide/NGHP-User-Guide.html.
Finally, on July 18, 2015, CMS issued a Section 111 NGHP Alert reminding Section 111 RREs and their reporting agents of the mandatory transition from ICD-9 to ICD-10 codes for all claims with a CMS Date of Incident on or after October 1, 2015. Additional information regarding the transition to ICD-10 codes is available in the MMSEA Section 111 NGHP User Guide, Chapter IV, Technical Information, Section 6.2.5.
Posted on
July 27, 2015 09:05
by Ryan Brown & Christina Vander Werf
On Monday July 20, 2015, the Seventh Circuit Court of Appeals weighed in on the hotly-contested issue of standing in data breach class action litigation. In so doing, the Court reversed the district court's dismissal of a consumer class lawsuit against luxury department store Neiman Marcus, holding that the plaintiffs had successfully alleged the concrete, particularized injuries necessary to support Article III standing.
This lawsuit arose in January of 2014, when Neiman Marcus publicly disclosed that it had suffered a major cyberattack, in which hackers collected the credit card information of approximately 350,000 customers. Soon after this disclosure was made, a number of consumers filed a class action lawsuit in the United States District Court for the Northern District of Illinois, alleging that Neiman Marcus put them at risk for risk for identity theft and fraud by waiting nearly a month to disclose the data breach. In September 2014, the district court dismissed the case, ruling that both the individual plaintiffs and the class lacked standing under Article III of the Constitution.
On appeal, the Seventh Circuit analyzed the injuries the Neiman Marcus consumers claimed to have suffered in order to determine whether they constituted the type of "concrete and particularized injury" required to establish standing. In this instance, plaintiffs alleged lost time and money spent in protecting against fraudulent charges and future identity theft, as well as two "imminent injuries:" an increased risk of future fraudulent charges and greater susceptibility to identity theft. The Seventh Circuit ultimately determined that these allegations sufficiently established standing, as they showed a "substantial risk of harm" from the Neiman Marcus data breach. Importantly, the Court explained that the Neiman Marcus customers did not have to wait until hackers actually committed identity theft or credit-card fraud to obtain class standing, as there was an "objectively reasonable likelihood" that such an injury would occur. The full opinion is available here.
This ruling is consistent with decisions from several other courts across the country. See, e.g., In re Sony Gaming Networks and Customer Data Security Breach Litigation, 996 F.Supp.2d 942 (S.D. Cal. 2014); Moyer v. Michaels Stores, Inc., No. 14 C 561, 2014 U.S. Dist. LEXIS 96588, 2014 WL 3511500 (N.D. Ill. July 14, 2014); In re Adobe Systems Inc. Privacy Litigation, No 13-cv-05226-LHK, 2014 U.S. Dist. LEXIS 124126, 2014 WL 4379916 (N.D. Cal. Sept. 4, 2014); Michael Corona, et al. v. Sony Pictures Entertainment, Inc., No. 2:14-cv-09600-RGK-E (C.D. Cal. June 15, 2015). Earlier this year, in a comprehensive article on standing in data breach cases (available here), our firm questioned whether opinions of this nature were indicative of a trend or anomalies. The Seventh Circuit's ruling this week and the Central District of California's ruling in Corona last month suggest it is in fact a trend. If the trend continues, consumers nationwide may find it easier to survive a motion to dismiss based on a lack of standing.
Posted on
July 9, 2015 05:49
by Peter B. Winterburn
In most states, the legal requirements a Plaintiff must meet to bring a medical malpractice claim are similar if not identical to what is required in order to bring a claim against a nursing home or assisted living facility. One distinction between these types of cases, however, has been in the numerous claims and legal theories of recovery that Plaintiffs have historically brought against long term care providers in the same complaint. Some states have enacted legislation in order to end the distinction between traditional "medical malpractice" claims and Adult Protection Act claims, Negligence Per Se claims, and so-called "custodial care" or ordinary negligence claims against nursing facilities. For instance, the Tennessee Civil Justice Act of 2011 deleted the term "medical malpractice" from the Tennessee code books altogether. It was replaced, instead, with a broader cause of action called a "health care liability action." Some notable provisions of the Act are as follows:
- There is no longer any formal claim called "medical malpractice";
- "Health care liability action" is a defined term in the statute and includes any civil action regardless of the theory of liability on which the action is based alleging that a health care provider caused an injury related to the provision of, or failure to provide "health care services."
- "Health care provider" is a defined term and includes physicians and nurses but now also specifically includes LPNs, advance practice nurses, physician assistants, nursing technicians, pharmacy technicians, orderlies, and CNAs.
- "Health care services" is a defined term and includes care provided not only by physicians and nurses but now also specifically includes care provided by LPNs, pharmacists, orderlies, CNAs, advance practice nurses, physicians assistants, nursing technicians and also includes staffing, custodial or basic care, positioning, hydration and similar patient services.
- Long term care facilities and their employees, such as LPNs, CNAs, and orderlies are "health care providers" whose care and services are subject to the statute's requirements.
- Many claims which traditionally fell under ordinary negligence (i.e. care provided in a nursing home by CNAs) are now defined as health care liability claims.
- A Plaintiff must bring such an action in accordance with the provisions of this Act.
Regarding the change in the law, one Tennessee opinion, Parker v. Portland Nursing & Nursing Rehab, 2012 Tenn. App. LEXIS 606, FN. 4 (Tenn. Ct. App. Aug. 30, 2012), is instructive because the case was decided after passage of the Civil Justice Act but plaintiff's claims accrued prior to enactment. The plaintiff initially sued the defendant nursing homes for ordinary negligence before amending her complaint to add a medical malpractice claim. The Court allowed the amendment and applied the prior law (distinguishing between ordinary negligence (custodial care) and medical malpractice) while acknowledging the change in the law for claims that accrued after the relevant date of the Act. The Court noted: ". . .[C]laims for ordinary negligence and medical malpractice are separate and distinct causes of action. . ." Importantly, however, the Court added: "Both parties note that the passage of the Tennessee Civil Justice Act of 2011 ended this distinction and created a new cause of action of a "health care liability" claim." (See 2011 Tenn. Pub. Acts ch. 510). Id. at FN 4 (emphasis added). Clearly, the "Civil Justice Act" replaced "medical malpractice" and expanded the definition of a "health care liability claim" to include the type of claims commonly alleged against nursing homes and long term care providers.
For those interested in further discussion of this topic and learning other ways in which nursing home/ALF litigation is different from medical malpractice litigation, DRI's Nursing Home/ALF seminar is right around the corner – September 10-11, 2015 at The Venetian/Palazzo Resort Hotel in Las Vegas, Nevada. Among the many areas discussed, there will be presentation regarding the business side of defending nursing home cases, how plaintiffs' themes have developed and evolved, and tips and techniques for defending these types of cases from inception through trial. This is the preeminent seminar for attorneys in private practice, in-house counsel, claims specialists, and other professionals involved in the defense of claims against long-term care facilities, assisted living facilities, and other aging services providers across the country. Additional information on the seminar can be found here.
Categories: Medical Malpractics | Seminar
Posted on
July 7, 2015 03:57
by Diane Krebs
On June 10, 2015, the New York City Council passed the Fair Chance Act ("the Act"), which makes it unlawful for employers to inquire about an applicant's criminal background during the initial stages of the application process. The law joins other "ban the box" legislation across the nation in an attempt to ban the checkbox indicating criminal history on employment application forms. Mayor Bill de Blasio is expected to sign the bill any day, and the law will go into effect 120 days later.
The Act makes it a discriminatory practice for employers or employment agencies to inquire into an individual's arrest or conviction record or perform a criminal background check before an employer has extended a conditional offer of employment. The Act also restricts an employer's ability to issue any solicitation, advertisement, or publication that in any way expresses any form of limitation in employment based on a person's arrest or criminal conviction history. Applicants are not required to respond to illegal inquiries and cannot be disqualified for not responding.
Importantly, the law does not prohibit employers from inquiring about criminal history or running background checks; it just delays the background check until an applicant can demonstrate his or her qualifications. Employers may still inform prospective employees that employment is contingent on their responses to a criminal history inquiry or criminal background check.
If the employer decides to take adverse action based on the inquiry or criminal background check, the employer must first take a number of steps:
1. The employer must provide a written copy of the inquiry or background check to the applicant, in a manner that will be established by the NYC Commission on Human Rights (the "Commission").
2. The employer must perform a multi-factor analysis under Article 23-A of the New York State Corrections Law and then has to provide that analysis to the applicant in writing in a manner to be determined by the Commission, which shall include the "supporting documents that formed the basis for the adverse action" as well as the employer's reasons for taking the adverse action.
3. After giving the applicant the inquiry and analysis in writing, the employer must allow the applicant a reasonable time to respond, which the Act states should be at least three business days. Furthermore, during that time, the position must remain open for the applicant.
The above provisions do not always apply. The law excludes certain positions that require criminal background checks by federal, state or local laws where a conviction prohibits employment, as well as police officers, peace officers, and law enforcement agencies (as those terms are defined by law). The Act also does not apply to certain positions that involve law enforcement, are susceptible to bribery or other corruption, or entail the provision of services to or safeguarding of individuals vulnerable to abuse, though if any employers in this category take adverse action based on criminal history, they must comply with item 2 above. The positions that qualify for this exemption will be enumerated by the commissioner of citywide administrative services, published as a commissioner's calendar item, and listed on the website of the department of citywide administrative services.
The Act modifies the New York City Human Rights Law, Section 8-101 et seq. of the Administrative Code of the City of New York; thus, it does not apply to employers with less than four employees. However, for those it does cover, the damages available are among the broadest of all employment discrimination protection statutes and include the potential for back pay, front pay, unlimited compensatory damages, and unlimited punitive damages.
New York City employers are advised to take steps now to prepare for when the Act goes into effect. These steps may include, but are not limited to:
-reevaluating and revising employment application forms.
-updating handbook provisions and other policies and procedures as needed.
-examination of the Article 23-A factors, to fully understand the written analysis that must be performed in the event a candidate is rejected due to their criminal history. Employers may want to create a template for the analysis, to increase the likelihood that no factor will be overlooked in the analysis.
-providing training to all employees involved in recruiting, hiring and interviewing, to ensure they understand the parameters of the law and how, if at all, they must adjust their prior practice.
Categories: Employment/Labor Law
Posted on
July 6, 2015 03:58
by Alison R. Christian
As a shareholder at a small firm, I understand the unique concerns of small businesses. My goal each day is to find balance between tending to current client needs, supervising young attorneys, and making sure the firm's administrative engines are running on all cylinders. My biggest priority, however, is maintaining a steady flow of new business and a stable of happy people to do the work. That's where DRI comes in.
Small firms have limited resources, both in terms of (wo)manpower and finances, to devote to building a referral network and professional development. We need to make sure that every dollar and hour spent counts because there is not room for "fluff" in a small firm budget. Simply being a member in a national organization with more than 21,000 participants will not give you much bang for your buck. Here are 5 easy tips that can help your small firm maximize its DRI membership:
1. Sponsor In-House Counsel's Membership. DRI offers membership to in-house counsel for only $285/year. In-house counsel who join DRI's Corporate Counsel Committee (which is free) can also attend any DRI seminar free of charge, and will receive substantial discounts for attending the annual meeting. There are currently more than 900 members in DRI's Corporate Counsel Committee and introducing your in-house lawyers to this DRI network would be a great way to show that you are all about their specific needs. By sponsoring a DRI membership, you not only cover their CLE needs for the entire year through the free educational programming available to in-house members, you also lay the groundwork to connect with them in person at DRI seminars. That's a win-win.
2. Invest In Your Young Lawyers. All firms feel the impact when an associate leaves to pursue other opportunities, but small firms feel that loss tenfold. The best way to retain talented young lawyers is to invest in their development and let them know that you care. The membership for a young lawyer (admitted 5 years or less) is only $165/year. Included with that membership is a certificate to attend any DRI seminar for free. One of our associates joined DRI during his first year at our firm, attended the Young Lawyers' Seminar with the free certificate, and made connections that turned into a leadership role almost immediately. He has not even been in practice for three years, but he has already been published in The Whisper and serves as the Young Lawyer Vice Liaison for the Insurance Law Committee. That kind of involvement in a national organization is not only great for him, it's good for us.
3. Join a Substantive Law Committee. Small firms don't have the same access to multiple practice groups as large firms. Our firm's practice focuses on insurance coverage and bad faith litigation; if a case involves an IP question, it is not as though we can walk to another floor and get the answer. One of the benefits of DRI is that they have 29 active Substantive Law Committees – which means that you have access to newsletters, compendiums, and leading practitioners in each of those 29 areas. Have a question about Trucking Law? Pick up the phone and call the Committee Chair. Want to know about current trends in Data Management and Security? Download the most recent newsletters. Need to find an expert in a unique area? Search the DRI expert database and expert profiler. These types of broad resources are even more valuable to small firms with specialized practice areas.
4. Double-Dip Your Seminar Trips. For small firms, any time a lawyer is out on business travel, the impact is felt on the home front. The firm is down billable hours, fewer hands are around to handle last-minute projects, and travel is much more expensive than staying in the office to watch a webinar. But the truth is that relationships aren't often formed through webinars. If you want to build a meaningful referral network, you need to get out and shake some hands! Attending DRI seminars is an incredible way to meet inspiring lawyers from across the country. There is not a single DRI seminar that our firm can't turn into a "double dip trip." If we are traveling to New York for the Insurance Coverage Symposium, we plan our flights so that we can visit clients in New Jersey and Boston while we're on the east coast. If an associate is attending the Young Lawyers Seminar in Nashville, it's easy to have her stop by a client's office in Atlanta on the way. The convenient locations of the DRI seminars make it possible for small firms to get the most bang for their travel buck.
5. Seek Out Publication and Speaking Opportunities. Small firms are always looking for ways to set themselves apart from the competition. One of the best ways to increase your firm's visibility is to become well-known as being knowledgeable in your substantive practice area by publishing or speaking. These opportunities abound at DRI. From blog posts, to articles, and compendiums; from webcasts, to panel presentations, and break-out sessions. DRI is always looking for current topics to share and welcomes participation from its members. Did you recently obtain summary judgment on an issue of first impression? Have you researched an emerging area of law? Share it with the DRI community! Most Substantive Law Committees have a publications chair or a social media chair you can contact to figure out what opportunities exist and how you can get your name out there.
Categories: DRI Brand
Posted on
June 25, 2015 04:39
by Philip Howe
*The Massachusetts Supreme Judicial Court has on June 23, 2015 ruled that the "mode of operations" approach to premises liability applies to slip and fall incidents including slipping on a wet spot on the dance floor in a bar.
Mode of Operations
The Massachusetts Supreme Judicial Court had previously applied the "mode of operations" standard of negligence in a slip and fall at a self-service supermarket, Sheehan v. Roche Brothers. Supermarkets, Inc. 448 Mass. 780, 788 (2007). Traditionally, a plaintiff asserting premises liability has been required to show that the owner of the premises had actual or constructive notice of an unsafe condition that gave rise to an injury for which compensation is sought.
Under the mode of operations approach the plaintiff satisfies the notice requirement by showing that the injury was attributable to a reasonably foreseeable unsafe condition related to the premises owner's chosen mode of operation. Opinion, page 2.
Under the traditional approach, the plaintiff was required to prove how long the substance creating the hazardous condition has been on the floor. This imposed an unfair burden on plaintiffs to "adduce evidence more readily available to defendants." Opinion, page 14.
Slip and Fall
The plaintiff in this case had broken her leg after slipping and falling on a wet dance floor at a nightclub owned by the defendant. Patrons were permitted to consume their alcoholic beverages on the dance floor while they danced. The dim lighting was accented by strobe lights. The staff included security guards, barbacks and a manager responsible for ensuring the dance floor was free of debris. Opinion pages 3-4. The plaintiff and her friends danced for several hours. She then stepped on a wet surface, slipped and fell. Opinion page 4.
The Trial Court granted summary judgment to the defendant.
Broadening the Mode of Operations Approach
In Sheehan, supra, the plaintiff had fallen on a grape in a grocery store. The grapes were packaged in individual bags that were easily opened by hand and were susceptible to spillage by customers. Opinion, page 6. In Sheehan, supra¬, the Court noted that the evolution of grocery stores from clerk-assisted to self-service operations created a new risk for customers. They generally may not be as careful and vigilant as a store owner because customers are not focused on the store owner's concern of keeping items off the floor to avoid potential risks of harm. Opinion page 7.
The Court ruled that it would be unjust to saddle the plaintiff with the burden of isolating the precise failure that caused an injury, particularly where the injury results from a foreseeable risk of harm stemming from an owner's mode of operation. Wollerman v. Grand Union Stores, Inc. 47 N.J. 426, 430 (1966). The Court wrote further that, irrespective of the particular mode of operations involved, the plaintiff "bears the burden of establishing that the defendant failed to exercise reasonable care in protecting its patrons from the unsafe conditions facilitated by its mode of operations." Opinion page 9.
The Court wrote that in the case of a nightclub permitting patrons to dance with their drinks, such reasonable care might include sufficient staff to monitor and clean up spilled liquid at sufficient intervals. Or they might use beverage containers that are less likely to spill, instead of plastic cups. Opinion pages 9, 13. The Court ruled that it was reasonably foreseeable that permitting patrons to dance with beverages in plastic cups would result in liquid on the dance floor. The spill creates an unsafe condition that a patron such as the plaintiff "is ill-suited to discern." The owner is in a far better position to identify and investigate the source of the condition once it has occurred. Opinion page 13.
The plaintiff must prove either that the owner caused the unsafe condition or had notice of it. "Under the mode of operations approach, foreseeability of condition satisfies the notice requirement." Opinion page 12. "The nightclub manager testified in his deposition that, "spills on the dance floor are part of the business." Opinion page 15. Considering the evidence in the light most favorable to the Plaintiff, the reasonable inference is that a spilled beverage produced the wet surface on which plaintiff slipped. Opinion pages 15-16.
The Court reversed the summary judgment in favor of the defendant and remanded the case to the trial court.
SARKISIAN V. CONCEPT RESTAURANTS, INC., ___N.E. 3d ___, 2015 WL 3833877 (Mass. 2015).
Posted on
June 24, 2015 03:28
by Carlos H. Garcia
This year's DRI Fidelity and Surety Roundtable featured some excellent presentations. One that really caught my attention was Ronald Freidberg's presentation on "pay-if-paid" clauses and recent case law affecting their enforcement in Ohio. Contingent payment clauses can be used to the surety's advantage in defending payment bond claims. The practical implications of such clauses ensure that the surety will rarely be relying upon these provisions without an active principal. Practically speaking, if the owner or upstream contractor is withholding money from the principal and the principal is using that withholding of money as a defense to a downstream contractor, they are usually going to be actively involved in the litigation related to the project and the defense of the claim. It is rare that a principal will simply walk away from money owed on the project after the work has been performed or the material has been delivered. Still, the surety must be knowledgeable of these defenses. There is no doubt that these clauses can be used to the surety's advantage in defending payment bond claims.
Several questions arise every time a surety comes across a contingent payment clause. How are these clauses enforced and what are the practical differences between pay-if-paid clauses and pay-when-paid clauses? While there may be headings that designate a certain contractual clause as a "contingent payment provision," it is rare that the construction contract will be drafted with actual heading titled: "pay-if-paid" or "pay-when-paid." What happens when there is not an active principal? Can the surety, as a secondary obligor, rely upon this defense just like the other defenses of the principal?
Application of a Pay-If-Paid Clause versus a Pay-When-Paid Clause
Both pay-if-paid and pay-when-paid clauses are "contingent payment clauses." While their labels are only separated by one word and they are both risk-shifting provisions, their applications can be wildly different.
Generally speaking, a pay-if-paid clause makes payment from the owner or the upstream contractor a condition precedent to payment from the principal to the downstream contractor. A pay-when-paid clause, on the other hand, only deals with the timing of the obligation to pay the downstream contractor. At some point under these pay-when-paid clauses, when it becomes clear that the owner or upstream contractor is simply refusing to pay and is not simply withholding payment, the principal will become liable for the amounts owed to the downstream contractor. This is generally a fact intensive inquiry and can be affected by such circumstances as the length of delay in payment, the reason for non-payment, and the downstream contractor's performance on the project.
Interpreting a Contingent Payment Clause as Pay-If-Paid or Pay-When-Paid
Whether either clause will be upheld is a very jurisdictionally specific question. Some jurisdictions favor the right to contract and will enforce these clauses as long as the parties clearly establish that they are shifting the risk of nonpayment to the downstream contractor in the construction contract. Others will practically interpret all clauses as pay-when-paid clauses. Still others frown on these clauses altogether.
My home state of Texas is a right to contract state. Therefore, these provisions will be enforced as long as the parties' intent to shift this risk to the downstream contactor is clear in the construction contract. There is no magic language differentiating a pay-if-paid clause from a pay-when-paid clause. However, most Texas case law interpreting a contingent payment clause as a pay-if-paid clause states that the owner's or up-stream contractor's payment is a "condition precedent" to the principal's liability to the downstream contractor. If this contingency to liability is not clear, the clause very well may be interpreted as a pay-when-paid clause and will only affect the timing of the principal's liability. If the contingent payment provision is interpreted as a pay-if-paid, then the clause is subject to the "Texas Contingent Payment Statute," which provides four scenarios which serve as exceptions to the application of these clauses: (1) the owner's or upstream contractor's refusal to pay is caused by the principal's failure to meet its obligations; (2) the contingent payment clause is contained in a sham contract; (3) the downstream contractor provides timely notice objecting to the enforcement of the contingency payment clause; or (4) the enforcement of the clause would be unconscionable. The application of any of these exceptions will depend heavily on the facts and circumstances of the claim.
The Surety's Ability to rely upon a Contingent Payment Clause
Logically, the surety is entitled to rely upon this defense when it is available to its principal. It is black letter law that the surety, as a secondary obligor, may rely upon all defenses of its principal to any claim under the bond. However, I have had claimants argue that it is void as to the surety based upon public policy. Most statutes requiring a statutory payment bond include language that prohibits the parties from contractually waiving claims under the bond as a matter of public policy. While most sureties will argue that (1) this is not the intent of such prohibitions and (2) a contingent payment clause is only a defense and it is not a waiver of a claim, the wary surety practitioner should know that such arguments are out there. The language in the Texas Contingent Payment Statute also suggests that the surety may rely upon these contingent payment provisions. In discussing the above referenced exceptions, the statute states that "a contingent payor or its surety may not enforce a contingent payment clause to the extent . . . ." The inclusion of the surety in this language, at the very least, suggests that the surety has the right to enforce these clauses whenever these exceptions do not apply.
Categories: Fidelity & Surety | Seminar