The accused product is an everyday product for online banking. WatchData involves two Chinese companies and the technology at issue concerns a USB token solution. Most of the banks in China require the use of a USB drive with a security token preinstalled (or “USB Key”) for online banking. A user has to plug in his or her USB Key and authorize transactions from the USB Key. The parties of the case both supply USB Key products to banks in China. Plaintiff sued for lost profits. WatchData sued its competitor Hengbao in early 2015 and claimed damages of RMB 49 million and costs of RMB 1 million. WatchData elected its lost profits as the base for calculating damages. · Its purchase agreements with two bank customers listing a per-unit price of RMB 30 and RMB 32.5, respectively. · An audit report commissioned by its affiliate concluding that the gross margin is 30.22% and 35.61% for the sales with those two customers.
According to WatchData, its gross profit in connection with the aforementioned sales is RMB 10.68 and RMB 9.82, respectively. This is calculated by multiplying the per-unit price with the gross margin. WatchData also filed the public disclosure documents of a third party competitor, Feitian Technologies Co., Ltd. According to the disclosure, Feitian had a per-unit gross profit of RMB 15, RMB 12.6 and RMB 11.6 for 2011, 2012 and 2013, respectively. As such, WatchData claimed that for purposes of damages calculation, its reasonable profit for USB Key products is RMB 10 per unit. The court agreed with WatchData, stressing that its audit report is objective and reliable, given that a higher gross margin was reported by Feitian in its public disclosure. The court collected evidence concerning the defendant’s sales. Under the Civil Procedure Law, Chinese courts are empowered to investigate and collect evidence that would otherwise be impossible to collect by the parties. This is a mechanism that can potentially mitigate the lack of discovery in China.
Nonetheless, courts rarely invoke such power. In this case, to ascertain the defendant’s sales of the accused products, the court issued an investigation letter to Bank of China and two other entities responsible for preinstalling the token in the USB for the banks. One entity is China Financial Certification Authority and the other appears to be a military technology unit. The third parties’ responses to the court reveal that the defendant sold a total of 4,814,200 units of USB Key products to 12 banks. The defendant challenged the accuracy of the data stating that other than those sold to Bank of China, the reported number cannot evidence the units that were actually sold. The court dismissed this argument citing the fact that a token is uniquely assigned to each USB Key product purchased by the banks and that the third parties’ responses are directed to products with tokens preinstalled. Accordingly, the court went on calculating the lost profits by multiplying 4,814,200 units with a per-unit profit of RMB 10. This arrives at RMB 48.142 million. The court also drew negative inference from the defendant’s refusal to adduce evidence. WatchData proffered evidence of the defendant’s website, through which it admitted sale to three additional banks. The court twice ordered the defendant to submit its books and records concerning its sales to those three banks. The defendant did not comply.
Then, there is also a hierarchy about the courts in this system. Right on top is the Supreme Court that is the ultimate place for an appeal. When all other courts have announced their decision and people are still not satisfied, they appear before this court. Next come the high court in each state followed by the district courts. People present all sorts of problems that they may have before the courts. Be it land dispute, family problems like divorces, theft and burglary, or even murder, the Indian courts are equipped to handle everything. In spite of being a well knit system, there are quite a few problems of the Indian law and judiciary. The main problem is the number of pending cases. Probably owing to the population, there are more cases in proportion to the number of courts. In some places, the decision is so delayed that a person convicted for a crime was sentenced 13 years after the case went to court. Due to the overwhelming number of cases, there are delays in decisions and that is what makes the process problematic. As one would say justice delayed is justice denied, this is the situation in most cases. Then again, due to the influence of the British rules that are quite old, criminals find many loop holes. For example if a boy under 18 molests or rapes a woman, he is not given capital sentence because he is a minor. However, the fact that adult crimes require adult punishments should be treated more seriously. With these amendments, the Indian judiciary can become more efficient and hand-on. A little improvement will go a long way to maintain peace and order in the country. The Indian judiciary system is conventional, big and open to improvement. There are things that are already effective and things that need help.
Questions recently posed on two different PERS newsgroups suggest that people remain interested in the status of the Arken/Robinson cases (remember them?). NOT!) announced his final ruling in these cases that most of us have let them fade from memory. These cases remain important in the annals of PERS retiree history, and may eventually reach some sort of ultimate resolution. In any case, nothing new has been posted about these cases and several questions prompted lead plaintiff Michael Arken to share an email he received last September, to a poster over on OPDG. Thus, it seems that there is an appeal filed with the Oregon Court of Appeals in Arken. In Robinson, the issue is primarily whether the case is certified as a “class action.” Recall that the PERS Coalition lost on all counts in Arken, but won a significant victory in Robinson. In the meantime, the White case, which challenges the entire settlement agreement in the City of Eugene case (Lipscomb), is still occupying space in Judge Kantor’s office. He decided in late September that no hearing was necessary and that he would rule on the basis of the substantial factual record before him. If Judge Kantor is true to form, it will be somewhere near the summer solstice before he issues a ruling. So, please enjoy your holiday season. You can go back to sleep for about four or five months before any new information is likely in these various cases.
One matter was very conspicuous by its absence in the Supreme Court Brexit hearing this week. The absentee was the question of whether there ought to be a preliminary reference to the Court of Justice of the EU on whether a notice under Article 50 (Treaty on European Union) may be withdrawn unilaterally once given. One might think that, in practice, it is unwise to enter into any negotiations without a proper understanding of the rules that will apply. There seems to be little point in getting into negotiations unless the UK negotiators know whether the notice can be lawfully withdrawn. If it cannot be withdrawn then the UK would be stuck with whatever “deal” emerges or, alternatively, would end up leaving the EU without any agreement. One might also think that Parliament would wish to know the answer because, in due course, it may well be presented with a fait accompli. At Bratislava there was an informal meeting of the EU remaining 27 members (R27) without a UK presence (post 18th September).
At an event in Brussels, Mrs May was given 5 minutes to speak after a dinner – Independent 21st October. It seems that Mrs May said that Britain expects to be part of EU decision-making until Brexit is completed, rather than be snubbed at any summits and negotiations when key matters are discussed. The European Council next meets on 15th December and the agenda includes migration; security (including defence matters); economy, social development and youth; external relations including the Russia / Syria situation. There will be another informal meeting “held in the margins of the December European Council” with the objective of setting out how the Brexit process will be handled by the R27 once the UK has notified. Legal proceedings are being planned to take place in Ireland. This will be an interesting development and further details are awaited. It is hard to accept the view that Article 50 may already have been triggered. That is plainly not the understanding of either the House of Commons (see Opposition Day debate) or the European Council which has referred to how the Brexit process will be handled once the UK has notified. The notification would in due course be done via diplomatic channels and there cannot be the slightest doubt that the British government will make it plain that the Article 50 process has commenced. Considerable attention needs to be given to the forthcoming European Council meeting to see just what role the UK plays. As for the “informal” in “the margins” meetings, the UK government appears to be content to accept that they will happen.
17. In the judgment impugned herein, the High Court held that our Constitution never contemplated equality in the value of vote in view of the several other provisions of the Constitution. ] providing for reservation of 12 seats, out of 32 seats in the Sikkim Legislative Assembly in favour of Bhutias-Lepchas, are unconstitutional as violative of the basic features of democracy and republicanism under the Indian Constitution? ], and B. A. Reynolds etc. vs. M. O. Sims – 377 US 533. 19. This Court relied on the opinion of Chief Justice Earl Warren in B.A. “……We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. “History indicates, however, that many States have deviated, to a greater or lesser degree, from the equal-population principle in the apportionment of seats in at least one house of their legislatures. 21. After relying on the aforesaid judgments and noticing the position in Australian Constitution the majority opinion of this Court was rendered by Justice Venkatachaliah (as His Lordship then was).
“It is true that the right to vote is central to the right of participation in the democratic process. However, there is less consensus amongst theorists on the propriety of judicial activism in the voting area. 23. In this case the same is true of the evolution of the political institutions of Jammu and Kashmir. “An examination of the constitutional scheme would indicate that the concept of ‘one person one vote’ is in its very nature considerably tolerant of imbalances and departures from a very strict application and enforcement. 24. Even Justice S.C. “The principle of one man one vote envisages that there should be parity in the value of votes of electors. Such a parity though ideal for a representative democracy is difficult to achieve. There is some departure in every system following this democratic path. 26. In the context of this question we must keep in mind the constitutional scheme in Part XV relating to election. Article 327 of the Constitution empowers the Parliament to make a law relating to delimitation of constituencies.
The mandate of Article 329A is that any law relating to the delimitation of constituencies or the allotment of seats to such constituencies shall not be called in question in any Court. “142. Bar to interference by courts in electoral matters. 27. It is, therefore, clear that there is an express constitutional bar to any challenge being made to the delimitation law which is made under Constitutional provisions. Therefore, the substantial challenge of the appellant in this proceeding is not to be entertained by any Court, including this Court. The other aspect of the question is that the amendment to Section 47(3) of the Constitution of J & K violates Basic Structure of the Constitution. This challenge is also not based on a sound principle. 29. But we must have a clear perception of what the Basic Structure is. It is hazardous to define what is the Basic Structure of the Constitution as what is basic does not remain static for all time to come. However, the basic features have been culled out from various pronouncements of this Court. In the 14th Edition of Shorter Constitution of India by D.D.
“(a) Supremacy of the Constitution. The principle of Separation of Powers. The principles behind fundamental rights. The objectives specified in the Preamble to the Constitution. Judicial review; Art.32.; Arts.226/227. The sovereign, democratic, republican structure. Freedom and dignity of the individual. Unity and integrity of the Nation. The rule of equality in public employment. The ‘essence’ of other Fundamental Rights in Part III. The concept of social and economic justice-to build a welfare State; part IV in toto. The balance between Fundamental Rights and Directive Principles. The Parliamentary system of government. The principle of free and fair elections. Limitations upon the amending power conferred by Art. Independence of the judiciary; but within the four corners of the Constitution and not beyond that. Independent and efficient judicial system. Powers of the Supreme Court under Arts. 30. Of these features ‘free and fair election’ in Clause (r) comes closest with the question discussed in this case. 31. This Court has already held relying on the Constitution Bench judgment in Poudyal (supra) that ensuring uniformity in the value of votes is not a constitutionally mandated imperative of free and fair election under our constitutional dispensation. Therefore, the argument on the question of Basic Structure is also without substance and is rejected.
The background story is irrelevant. How I came into possession of this speech doesn’t matter. What does is that I got hold of it AFTER it was delivered, which only multiplies my frustration at how this stuff continues to perpetuate itself. As you all know, Representative Dennis Richardson (R, Some Place in Southern Oregon), has been on a one-man crusade to introduce some new, dastardly, legislation anti-PERS legislation into the 2011 Legislative session. Richardson isn’t the brightest bulb in the pack and hasn’t yet learned from prior court experience what is legal and what isn’t legally changeable within the context of the existing PERS contract. Now, imagine a dim bulb like Richardson sharing a bit of quiet time with a broken bulb like Gary Coe, President of Speed’s Towing in Portland. Gary may know what he needs to know about running a towing business, but when it comes to PERS, my 11 month old granddaughter knows more than he does.
So imagine what comes out of the blender when dim bulb meets dimwit. You get a speech so wrong, so incoherent that those who heard the speech will be laughed out of the room if they spout any of these inaccuracies near anyone who really knows anything about PERS. To arm you, I have prepared a lengthy rebuttal to give you what you need to refute this nonsense. 1. According to Coe, the PERS Board consists of 12 Members and a huge bureaucracy. This is just plain wrong. The PERS Board was reduced to 5 members in 2003, only one of whom is a union member. The remaining four are three citizens and one PERS agency manager. PERS has about 350 employees to service 321,000 members and retirees. The average PERS retiree has served 22 years and is aged 59. The average benefit from 1990-2008 was 58% of final average salary; for 2008 alone it is 52% of final average salary.
One again a generalization not supported by the facts. ONLY Tier 1 employees are eligible for the guarantee. Tier 1 members now constitute only one-third of all active and inactive PERS members. The remaining two-thirds of PERS members are NOT eligible for any guarantee of any sort. More to the point, of the Tier 1 members still in the system, almost 90% are already age eligible to retire and most would retire if there were any effort to change the guaranteed rate. Moreover, the guaranteed rate is evaluated by PERS and its actuary every two years since it is so integral to determining employer rates. The employer rates ASSUME an 8% rate of return; what employers actually pay is dependent on that assumption. Lower the rate and the employers rates will go up, not down. There is hard math involved here, but if pressed, I would be happy to show how this is true. This is only partly true. It leaves out the part about having to have 25 (Police and Fire) or 30 years (general service) to retire this early. As for the loopholes, they are very limited to an even smaller number of members.
The back to work provision applies only to areas with populations with 75,000 or fewer residents, is limited to a fixed period of time, and applies only to certain professions where there are extreme shortages of qualified professionals. PERS is already proposing to study the loopholes to reduce the number of instances where there are exceptions granted. But regardless, this doesn’t apply to just any retiree; only a subset that probably numbers a few hundred of the more than 100,000 retirees out there. While Warren Buffett may be a “guru” on many things, he is not a pension actuary. State statute requires that the determination of the assumed actuarial rate be done by the PERS independent actuary and then reviewed by the Board and stakeholders. Thusfar, pension actuaries around the country have predicted that the long-term earnings rate on equities will range between 7.75% and 8.25%. The current assumed rate falls exactly at the midpoint of those estimates and provides adequate safety for all concerned. The PERS fund earned 19% in 2009 and 11% of those earnings went into reserves. Change the law that does not allow local governments to opt out of PERS. Reduce the Bureaucracy governing PERS.
A Bosnian folk song tells the death of a severely ill Ottoman Pasha. After hearing of the Pasha’s death, his wife also passes away from sorrow. Now that the UK voted to leave the European Union (EU) on 23 June 2016, will data protection laws also pass away from sorrow after the UK leaves the EU? The Data Protection Act 1998 (DPA), which is the UK’s current key regulatory regime for data protection, implements the EU’s Data Protection Directive of 1995 into the UK national law. As a whole, the Data Protection Bill contains the general definitions under the GDPR and the derogations from data protection principles provided under it. These derogations include data processing for journalism, for research, and by employees under certain conditions. It also covers the areas that are not covered by the GDPR. Therefore, with the inclusion of the data processing by competent public authorities in relation to law enforcement purposes, the Data Protection Bill transposes the Law Enforcement Directive into UK law.
It is said that the principles for such processing resembles the 2014 Regulations, through which the UK transposed the previous EU data protection rules for data processing in the context of law enforcement. Another area that is covered by the Bill and not by the GDPR is data processing for intelligence services (Part 4 of the Data Protection Bill). ], and therefore constantly refers to this legislation. It also provides for national security exemptions for certain provisions it sets forth for data processing by intelligence services (Chapter 6 of the Part 4 of the Data Protection Bill). The Data Protection Bill has received both positive and negative comments. The positive ones hinged on the relief it has brought to data controllers based in the UK. Nevertheless, the second reading of the Data Protection Bill in the House of Lords is due on 10 October 2017 and there might be further changes to it before it becomes law. What is at stake for the future of UK-EU cross-border data transfer after Brexit?
For the importance of the UK-EU cross-border data transfers the numbers speak for themselves. 43% of EU tech companies are based in the UK and 75% of the UK’s data transfers are with the EU Member States. ]. However, even if one assumes that the Data Protection Bill successfully aligns UK law with the EU data protection framework, this does not mean that the Bill is a panacea for the future of this flow post-Brexit. ]. As discussed below, achieving a positive adequacy decision for the UK is not as uncontentious as the UK Government think it is. At the outset, the UK should be found to afford an adequate level of data protection, which was defined in the CJEU’s Schrems decision (discussed here) as ‘essentially equivalent’ data protection to that of afforded under EU law. Regretfully, the surveillance practices of UK intelligence services may imperil a positive adequacy decision. The discussions surrounding the Investigatory Powers Act (IPA), and its predecessor the Data Retention and Investigatory Act 2014 (DRIPA) is illustrative in this matter.