Input: denied, 488 U.S. 840, 109 S.Ct. 108, 102 L.Ed.2d 83 (1988); Jaranee v. State, 770 So.2d 644, 647-48 (Ala.Crim.App.1999)(argument as to variance between indictment and proof "goes to sufficiency of the evidence”); Bennett v. Tennessee, (Tenn.Crim.App.1998)(argument that there was a fatal variance between indictment and proof at trial viewed as sufficiency claim under Jackson); Ward, 829 S.W.2d at 796 n. 21 (stating variance between indictment allegation and proof was insufficiency of evidence problem), overruled, in part, on other grounds, Riney v. State, 28 S.W.3d 561 (Tex.Crim.App.2000); Deltenre v. State, 808 S.W.2d 97 (Tex.Crim.App.1991)(variance between indictment allegations and proof resulted in legally insufficient evidence); Franklin v. State, 659 S.W.2d 831 (Tex.Crim.App.1983)(<HOLDING>), such approach is not necessarily mainstream. Holdings: 0: recognizing double jeopardy bar is inapplicable where a variance between indictment and proof necessitated prosecution under a new indictment 1: holding that variation between an indictment and proof to a jury is not material where the allegations and proof substantially correspond 2: recognizing that evidence may be legally insufficient where there is variance between indictment allegations and proof 3: holding evidence legally insufficient 4: holding variance between enhancement allegation and proof renders evidence legally insufficient only if variance is material


Input: v. Johns-Manville Sales Corp., 711 F.2d 60 (6th Cir. 1983). The court in Pennington, citing to Hill, 122 B.R. 539, further explained that when a debtor counterclaims against the plaintiff in initial proceedings, the counterclaim is not stayed by section 362, because the proceeding is not “against” the debtor. Noting that all of the authority of which it was aware held that the initial proceedings, and not the appeal, constitute the reference point for determining whether the action is one “originally brought” against the debtor, the court held that Harvest Foods was not entitled to a stay of its appeal because it, as the debtor, was the party who originally brought the action. See also Association of St. Croix Condominium Owners v. St. Croix Hotel Corp., 682 F.2d 446 (3d Cir. 1982) (<HOLDING>). This court’s decision in Pennington is in Holdings: 0: holding that whether a case is subject to the automatic stay must be determined at its inception and such a determination does not change depending on the particular stage of litigation at which the filing of the bankruptcy petition occurs 1: holding state of the law must be determined at time of challenged action 2: holding that the filing of a motion for a new trial is a critical stage of the prosecution and that an indigent defendant is constitutionally entitled to the assistance of counsel at that stage 3: holding that at this stage of the proceedings review is limited to a determination of whether the circuit court afforded due process and whether the court observed the essential requirements of law 4: holding that at the summary judgment stage there must be sufficient evidence on which the jury could find for the plaintiff


Input: for an alleged work-related injury through a Board-approved settlement. See OCGA § 34-9-15. The interplay of OCGA §§ 34-9-11 (a) and 34-9-15 (b), which this Court has not previously addressed, is informed by how we and the Court of Appeals have interpreted the interplay between the exclusive remedy provision and subsection (a) of OCGA§ 34-9-15. (b) It is well established that a settlement under OCGA § 34-9-15 (a) which requires an employer to compensate its employee for an alleged injury bars a subsequent tort suit by the employee against anyone protected by the exclusive remedy provision, regardless of the actual circumstances of the employee’s injury and the amount of compensation to which the parties agreed. See Haygood v. Home Transp. Co., 244 Ga. 165, 166-167 (259 SE2d 429) (1979) (<HOLDING>); Thorn v. Phillips, 164 Ga. App. 47, 48 (296 Holdings: 0: holding that an administrative agency or a state courts finding that an employer had just cause to terminate a plaintiff is not preclusive with regard to the plaintiffs discrimination claim against the employer 1: holding that glc 152 15 provides that the only party immune from suit under the statute is the direct employer a special employer is not immune because the special employer is not liable for the payment of workers compensation and there was no agreement between the direct employer and the special employer that the special employer would be liable for the payment of such compensation 2: recognizing that an appellants tort claim was barred by the doctrine of election of remedies where the appellant had previously pursued and recovered workers compensation benefits for the same injury 3: holding that an employer who commits an intentional tort against his employee cannot claim that the act was accidental so that workers compensation is the employees exclusive remedy 4: holdingthat the exclusive remedy provision barred a tort lawsuit against the plaintiffs employer because the plaintiff had previously entered a boardapproved settlement with the employer for the same injury


Input: and intent of the Zoning Procedure Ordinance. Finally, the Court acknowledges that the Appeals Board heard neighbor testimony that the proposed use would be incompatible with the neighborhood. However, to the extent the Board relied on this testimony to support its finding of lack of compatibility, the Board failed to identify how the testimony factually substantiated its conclusion that the proposed unusual use “would not be compatible with the area and its development.” Moreover, the neighbor testimony, while sincere, was largely opinion based and, therefore, lacked sufficient factual content to support the Appeals Board’s decision. Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 493 (2d Cir.1999); City of Apopka v. Orange County, 299 So.2d 657, 659 (Fla. 4th DCA 1974) (<HOLDING>). In sum, Nextel presented substantial Holdings: 0: holding that the findings of fact conclusions of law and decision signed by the school board president constituted the decision of the board 1: holding that public hearings should not be held for the purpose of polling the neighborhood but to present facts to assist a board with its decision 2: holding that a reviewing court is not to substitute its decision for that of the board 3: holding where secretary breached the duty to assist veteran in ensuring examination report was as complete and thorough as possible remand was required to enable the board to assist claimant in developing the facts of his case 4: holding due process requires that 1 the board be presented with a full statement of the facts and all supporting data bearing upon the disputes  and 2 the parties may be heard either in person by counsel or by other representatives  and the  board shall give due notice of all hearings to the employee


Input: may well result in a different social recognition of social groups opposed to gang violence, even if the gang in question is the same. 8 . The Third and Seventh Circuits invalidated the pre W-G-R-/M-EV-G- "particularity” and "social visibility” requirements on the ground that they were inconsistent with prior BIA precedent and therefore were not entitled to Chevron deference. See Valdiviezo-Galdamez v. Att'y Gen. of U.S., 663 F.3d 582, 604 (3d Cir.2011) ("Since the ‘social visibility' requirement is inconsistent with past BIA decisions, we conclude that it is an unreasonable addition to the requirements for establishing refugee status where that status turns upon persecution on account of membership in a particular social group.”); Gatimi v. Holder, 578 F.3d 611, 615 (7th Cir.2009) (<HOLDING>). 9 . The IJ failed to grant Pirir-Boc relief Holdings: 0: holding that deference is owed to an agencys interpretation of its own categorical exclusion regulations so long as that interpretation is not plainly erroneous or inconsistent with the regulation 1: holding interpretation may not be inconsistent with regulation 2: holding that the interpretation of social visibility is inconsistent with previous decisions and makes no sense 3: holding erisa plan interpretation is simply one of contract interpretation 4: holding that the defendants ability to give directions and make decisions on a course of action for himself was inconsistent with the intoxication defense


Input: work a manifest injustice.’ ” Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 817, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) (quoting Arizona, 460 U.S. at 618 n. 8, 103 S.Ct. 1382). There is no reason to deviate from — and good reason to follow — Judge Berman’s prior decision deeming the respondent’s attorney’s rate of $345 per hour reasonable. Counsel’s billing rates are strong evidence of prevailing market rates. See Farbotko, 433 F.3d at 209-10; Tatum v. City of New York, No. 06 Civ. 4290, 2010 WL 334975, at *4 (S.D.N.Y. Jan. 28, 2010); Rozell v. Ross-Holst, 576 F.Supp.2d 527, 544 (S.D.N.Y.2008). Furthermore, courts in this district and in neighboring districts have found similar rates to be reasonable for attorneys with similar experience. See Coe, 714 F.Supp.2d at 450 (<HOLDING>); Wise v. Kelly, 620 F.Supp.2d 435, 446 — 47 Holdings: 0: holding 325 per hour reasonable for partner litigating paca case 1: recognizing that 90 per hour is a reasonable rate for a paralegal 2: holding 350 per hour reasonable for civil rights federal court litigation 3: holding that evidence was insufficient to support conviction for vehicular homicide where the defendant was driving 60 miles per hour in a 30 mile per hour zone before the collision and a minimum of 50 miles per hour at the time of impact 4: holding that speed alone will not support a conviction but that other factors supported the vehicular homicide conviction where defendant was speeding at 50 to 60 miles per hour in a 30 mile per hour residential area with slowchildren playing sign


Input: objection was based on his claim that the changes were substantive and that he was prejudiced thereby. 9 . We recognize that a member of this panel concurred in Fields v. State. After reading and considering the analysis in Ramon, which was handed down the same day as Fields, that member finds Ramon more persuasive. 10 . We also note that this amendment added thirty-nine additional charges. Brown, however, was not tried on these additional charges and does not challenge the amendment in this regard on appeal. 11 . The State also amended the references to the file names relating specific images to each charge, pp.2004) ("the sale of four videotapes to a detective ... surely constituted but one act of distribution of obscene matter."); Am. Film Distribs., Inc. v. State, 471 N.E.2d 3 (<HOLDING>); Porter v. State, 440 N.E.2d 690 Holdings: 0: holding that the defendants acquiescence to a mistrial constituted implicit consent precluding a later claim of double jeopardy 1: holding that the showing of four pornographic films on one occasion constituted but one exhibition and thus defendants multiple convictions violated double jeopardy 2: holding that a bargainedfor plea waives the right to attack multiple convictions on double jeopardy grounds 3: holding that convictions for the crimes of conspiracy and continuing criminal enterprise violate double jeopardy 4: holding that convictions for two counts of possession of one quantity of cocaine constituted double jeopardy and fundamental error reversing one possession conviction and remanding for resentencing


Input: investor. {32} “The number of victims has been a particularly significant indicator in determining whether acts are distinct” and “a strong indicator of legislative intent to punish distinct conduct that can only be overcome by other factors.” Bernal, 2006-NMSC-050, ¶ 18, 140 N.M. 644, 146 P.3d 289. In the present case, each unlicensed transaction and each sale of an unregistered security were distinct and separate in time, resulting in distinct and separate harm to different victims. See DeGraff, 2006-NMSC-011, ¶ 33, 139 N.M. 211, 131 P.3d 61 (reading the holding in Morro to be based on each act occurring at a distinct time and place each time a gravestone was smashed or defaced and on the fact that there were different victims for each act of vandalism at a diff M. 78, 183 P.3d 963 (<HOLDING>), cert. denied, 2008-NMCERT-003, 143 N.M. 682, Holdings: 0: holding that defendant was not in custody during search of his residence 1: holding that the evidence supported two separate convictions and punishments for two attempted robberies of two different victims who suffered separate and distinct harms 2: holding that there was sufficient probable cause to search a defendants residence after evidence of drug dealing was found in his car during a traffic stop that was conducted when the defendant was coming from his residence and noting that under such circumstances a practical commonsense conclusion could be made that the drugs and money had been at the defendants residence a short time before the stop 3: holding that the evidence supported eight separate convictions and punishments for contributing to the delinquency of different minors during a party at the defendants residence 4: holding that the evidence supported separate convictions and punishments for sales of securities namely renewal notes to different victiminvestors


Input: See, e.g., Louisiana v. Texas, 176 U.S. 1, 19, 20 S.Ct. 251, 44 L.Ed. 347 (1900). Here, the Navajo Nation has no standing to assert the rights of the grandparents, nor do the grandparents have any rights under state or federal law. a. Navajo Nation Lacks Standing When acting solely in a representative capacity, a tribe’s standing is based exclusively upon the standing of its individual members: the tribe simply raises claims that its members could raise individually, and essentially stands in the same position as they would had they brought the action collectively. The governmental entity must raise claims which affect all its members, not just a select few. See Alabama and Coushatta Tribes of Texas v. Trustees of the Big Sandy Indep. School Dist., 817 F.Supp. 1319, 1328 (E.D.Tex.1993) (<HOLDING>). Nothing in the pleadings and little in the Holdings: 0: holding that the term indian tribe under the ada is broad enough to encompass a school board a nonprofit state corporation where the tribe used the board to manage a tribal school 1: holding that a tribes bare interest in the safety of its members cannot satisfy the second exception 2: holding tribes were not suing in its parens patriae capacity when they challenged the school district because tribe was not representing interests of all its members in challenging restriction 3: holding that the district court may exercise jurisdiction over an indian tribe when the tribe is engaged in activity off of the reservation as an unincorporated association registered and authorized to do business in this state and is sued in that capacity for breach of a written contract 4: holding that waiver in a sue and be sued clause is limited to actions involving the corporate activities of the tribe and does not extend to actions of the tribe in its capacity as a political governing body


Input: they present no argument that we have not already addressed. 41 . The class-certification order’s certification of the rule 42(b)(1)(A) class also mandates notice and sets forth opt-out provisions, 42 . To the extent LSRC’s fifth issue contains other one-sentence complaints that we have not addressed elsewhere, these- complaints are waived. See Tex. R. App. P. 38.1(i) (requiring appellant’s brief to "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record”); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284-85 (Tex. 1994) (recognizing long-standing rule that error may be waived through inadequate briefing); Magana v. Citibank, N.A., 454 S.W.3d 667, 680-81 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (<HOLDING>), abrogated on other grounds by Kinsel v. Holdings: 0: holding party failing to adequately brief complaint waived issue on appeal 1: holding that appellant waived issue by failing to raise it in opening brief 2: holding that where a party does not adequately brief an argument we need not address it on appeal 3: holding that defendant waived his blakely claim as issue on appeal by failing to raise it in his initial brief 4: holding that party waived argument by failing to brief it on appeal


Input: class members nationwide would predominate over common ones, given the lack of a national market or a nationwide conspiracy. Appellants contend that they should not have been required to prove national market or nationwide conspiracy at the class certification stage because these are not required elements of their antitrust claims. Recovery under § 4 of the Clayton Act, however, requires proof of antitrust impact, which in turn requires proof of the relevant market. Ala. v. Blue Bird Body Co., Inc., 573 F.2d 309, 328 (5th Cir.1978) (“we do not understand how the plaintiffs can make this proof [of anti-trust impact] without examining the relevant school bus market where each individual plaintiff is located”); see Heerwagen v. Clear Channel Comms., 435 F.3d 219, 229 (2d Cir.2006) (<HOLDING>); Republic Tobacco Co. v. N. Atl. Trading Co., Holdings: 0: holding that market participant socal edison is in privity with the california power exchange corporation not with other market participants 1: holding that proof of relevant market is essential under  2 2: recognizing implied duty to market 3: holding that a plaintiff claiming monopolization is obligated to establish the relevant market because the power to control prices or exclude competition only makes sense with reference to a particular market 4: holding that to pose a threat to monopolization one firm alone must have the power to control market output and exclude competition


Input: the debtor and for the description of the collateral, which identifies EAI of NC as the debtor and put[s] third parties on inquiry notice to read the attached Security Agreement.” Plaintiffs motion for summary judgment in the bankruptcy court, 4-5. {¶ 16} Plaintiff further contended that “[i]n this case, any third party inquiring as to liens against the EAI entity intended would be ‘fairly put on notice that there might be an outstanding lien’ against EAI of NC as a result of the Financing Statements listing EAI as the debtor and referring to the attached Security Agreement for the signature of the debtor and the description of the collateral, clearly setting forth EAI of NC as the debtor.” (Plaintiffs motion for summary judgment in bankruptcy 96), 194 B.R. 23, 29 UCC Rep.Serv.2d 617 (<HOLDING>); and In re Platt (E.D.Pa.1966), 257 F.Supp. Holdings: 0: holding a financing statement which incorrectly listed mines company inc as opposed to mines tire company inc to be sufficient 1: holding statement of points in notice of appeal sufficient 2: holding a company which is responsible for tendering into the market a drug which it knows or should know is so dangerous that it should not be taken by anyone can be said to have violated its duty of care either in design or marketing 3: holding that where the appellants listed challenges in the statement of issues but failed to brief them the challenges were waived 4: holding an issue listed in statement of issues on appeal but not addressed in brief is abandoned