assignment preferences act

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Assignments and Preferences Act, R.S.O. 1990, c. A.33 (Consolidation Period: From March 1, 2022 )

Assignments and Preferences Act

R.S.O. 1990, CHAPTER A.33

Consolidation Period: From March 1, 2022 to the e-Laws currency date .

Last amendment: 2021, c. 4, Sched. 3, s. 19 .

1 In this Act,

“judges” means a judge of the Superior Court of Justice. R.S.O. 1990, c. A.33, s. 1; 2001, c. 9, Sched. D, s. 14.

Section Amendments with date in force (d/m/y)

2001, c. 9, Sched. D, s. 14 - 29/06/2001

If judge disqualified

2 If a judge is disqualified to act in a matter under this Act, another judge may do so. R.S.O. 1990, c. A.33, s. 2.

Nullity of certain confessions of judgment, etc.

3 Every confession of judgment, cognovit actionem or warrant of attorney to confess judgment given by a person, being at the time in insolvent circumstances or unable to pay his, her or its debts in full or knowing himself, herself or itself to be on the eve of insolvency, voluntarily or by collusion with a creditor with intent thereby to defeat, hinder, delay or prejudice creditors wholly or in part, or to give one or more creditors a preference over other creditors or over any one or more of them, is void as against the creditors of the person giving the same and is ineffectual to support any judgment or execution. R.S.O. 1990, c. A.33, s. 3.

Nullity of gifts, transfers, etc., made with intent to defeat or prejudice creditors

4 (1) Subject to section 5, every gift, conveyance, assignment or transfer, delivery over or payment of goods, chattels or effects, or of bills, bonds, notes or securities, or of shares, dividends, premiums or bonus in any bank, company or corporation, or of any other property, real or personal, made by a person when insolvent or unable to pay the person’s debts in full or when the person knows that he, she or it is on the eve of insolvency, with intent to defeat, hinder, delay or prejudice creditors, or any one or more of them, is void as against the creditor or creditors injured, delayed or prejudiced. R.S.O. 1990, c. A.33, s. 4 (1).

Unjust preferences

(2) Subject to section 5, every such gift, conveyance, assignment or transfer, delivery over or payment made by a person being at the time in insolvent circumstances, or unable to pay his, her or its debts in full, or knowing himself, herself or itself to be on the eve of insolvency, to or for a creditor with the intent to give such creditor an unjust preference over other creditors or over any one or more of them is void as against the creditor or creditors injured, delayed, prejudiced or postponed. R.S.O. 1990, c. A.33, s. 4 (2).

When there is presumption of intention if transaction has effect of unjust preference

(3) Subject to section 5, if such a transaction with or for a creditor has the effect of giving that creditor a preference over the other creditors of the debtor or over any one or more of them, it shall, in and with respect to any action or proceeding that, within sixty days thereafter, is brought, had or taken to impeach or set aside such transaction, be presumed, in the absence of evidence to the contrary, to have been made with the intent mentioned in subsection (2), and to be an unjust preference within the meaning of this Act whether it be made voluntarily or under pressure. R.S.O. 1990, c. A.33, s. 4 (3).

(4) Subject to section 5, if such a transaction with or for a creditor has the effect of giving that creditor a preference over the other creditors of the debtor or over any one or more of them, it shall, if the debtor within sixty days after the transaction makes an assignment for the benefit of the creditors, be presumed, in the absence of evidence to the contrary, to have been made with the intent mentioned in subsection (2), and to be an unjust preference within the meaning of this Act whether it be made voluntarily or under pressure. R.S.O. 1990, c. A.33, s. 4 (4); 1993, c. 27, Sched.

“Creditor” for certain purposes to include surety and endorser

(5) The word “creditor” when used in the singular in subsections (2), (3) and (4) includes any surety and the endorser of any promissory note or bill of exchange who would upon paying the debt, promissory note or bill of exchange, in respect of which the suretyship was entered into or the endorsement was given, become a creditor of the person giving the preference within the meaning of those subsections. R.S.O. 1990, c. A.33, s. 4 (5).

1993, c. 27, Sched. - 31/12/1991

Assignments for benefit of creditors and good faith sales, etc., protected

5 (1) Nothing in section 4 applies to an assignment made to the sheriff for the area in which the debtor resides or carries on business or, with the consent of a majority of the creditors having claims of $100 and upwards computed according to section 24, to another assignee resident in Ontario, for the purpose of paying rateably and proportionately and without preference or priority all the creditors of the debtor their just debts, nor to any sale or payment made in good faith in the ordinary course of trade or calling to an innocent purchaser or person, nor to any payment of money to a creditor, nor to any conveyance, assignment, transfer or delivery over of any goods or property of any kind, that is made in good faith in consideration of a present actual payment in money, or by way of security for a present actual advance of money, or that is made in consideration of a present actual sale or delivery of goods or other property where the money paid or the goods or other property sold or delivered bear a fair and reasonable relative value to the consideration therefor. R.S.O. 1990, c. A.33, s. 5 (1).

Transfer to creditor of consideration for sale invalid

(2) In case of a valid sale of goods or other property and payment or transfer of the consideration or part thereof by the purchaser to a creditor of the vendor under circumstances that would render void such a payment or transfer by the debtor personally and directly, the payment or transfer, even though valid as respects the purchaser, is void as respects the creditor to whom it is made. R.S.O. 1990, c. A.33, s. 5 (2).

Effect of assignment not in accordance with Act

(3) Every assignment for the general benefit of creditors that is not void under section 4, but is not made to the sheriff nor to any other person with the prescribed consent of creditors, is void as against a subsequent assignment that is in conformity with this Act, and is subject in other respects to the provisions thereof until and unless a subsequent assignment is executed in accordance therewith. R.S.O. 1990, c. A.33, s. 5 (3).

Security given up upon void payment to be returned

(4) Where a payment has been made that is void under this Act and any valuable security was given up in consideration of the payment, the creditor is entitled to have the security restored or its value made good to him before, or as a condition of, the return of the payment. R.S.O. 1990, c. A.33, s. 5 (4).

Exceptions:

(5) Nothing in this Act,

(a) affects the Wages Act or prevents a debtor providing for payment of wages due by him or her in accordance with that Act;

surrender of securities

(b) affects any payment of money to a creditor where the creditor, by reason or on account of the payment, has lost or been deprived of, or has in good faith given up, any valid security held for the payment of the debt so paid unless the security is restored or its value made good to the creditor;

exchange of securities

(c) applies to the substitution in good faith of one security for another security for the same debt so far as the debtor’s estate is not thereby lessened in value to the other creditors; or

certain securities to be valid

(d) invalidates a security given to a creditor for a pre-existing debt where, by reason or on account of the giving of the security, an advance in money is made to the debtor by the creditor in the belief that the advance will enable the debtor to continue the debtor’s trade or business and to pay the debts in full. R.S.O. 1990, c. A.33, s. 5 (5).

Residence of assignee

6 No person, other than a permanent resident of Ontario, shall be assignee under an assignment within this Act, nor shall any assignee delegate the duties as assignee to or appoint as deputy any person who is not a permanent resident of Ontario, and no charge shall be made or recoverable against the assignor or his estate for any services or other expenses of any such assignee, deputy or delegate of any assignee who is not a permanent resident of Ontario. R.S.O. 1990, c. A.33, s. 6.

Form of assignment for general benefit of creditors

7 Every assignment made under this Act for the general benefit of creditors, if the property is described in the words “all my personal property that may be seized and sold under execution and all my real estate, credits and effects”, or in words to the like effect, vests in the assignee all the real and personal estate, rights, property, credits and effects, whether vested or contingent, belonging to the assignor at the time of the assignment, except such as are by law exempt from seizure or sale under execution, subject, however, as regards land, to the Registry Act and the Land Titles Act . R.S.O. 1990, c. A.33, s. 7.

All assignments for general benefit of creditors to be subject to this Act

8 Every assignment for the general benefit of creditors, whether it is or is not expressed to be made under or in pursuance of this Act and whether the assignment does or does not include all the real and personal estate of the assignor, vests the estate, whether real or personal or partly real and partly personal, thereby assigned in the assignee therein named for the general benefit of creditors, and the assignment and the property thereby assigned is subject to all the provisions of this Act, and the same applies to the assignee named in the assignment. R.S.O. 1990, c. A.33, s. 8.

How claims are to rank where different...

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NCOs Can Now Rank Their Assignment Preferences Under a New Army System

For the first time, the U.S. Army will allow noncommissioned officers to rank where they would like to be assigned.

Similar to its Assignment Interactive Module for officers, in use since 2016, the service announced earlier this month that it will roll out the virtual "Assignment Satisfaction Key -- Enlisted Marketplace" (ASK-EM) for the 2021 manning cycle.

Those eligible include active-duty soldiers in the ranks of E-6 through E-8, according to a release. They can give their top five choices for assignment location.

Read Next: Fort Bragg Now Admits its Twitter Account Wasn't Hacked

"Soldier preference is important because we believe a Soldier performs at a higher level when they're in an assignment that interests them," Col. Michael McGregor, director of the Enlisted Personnel Management Directorate, said in the release. "Soldiers have some input into their assignments now, but that will increase significantly as we field ASK-EM."

The goal is to more accurately pair noncommissioned officers with their duty station based on their "knowledge, skills, behaviors and preferences," the release states.

"These initiatives optimize the Army's ability to get the right Soldier with the right talents to the right assignment at the right time. It will also allow commanders to maximize the talent provided them," McGregor said.

The new program is set to go live Nov. 11, according to a separate announcement .

Leaders will get more information about when a soldier is best available for a permanent change-of-station move or temporary duty assignment to match gaps the service needs to fill.

"Heightened awareness about Soldier talent, along with knowing when he or she is available to move, will help us make informed decisions when assigning the most qualified Soldiers to meet Army requirements," McGregor explained.

ASK-EM follows two pilot programs that involved 1,700 NCOs, according to Army Human Resources Command.

According to Col. Bryan Harris, Armor Enlisted Branch chief at the command, 55% of those participating received one of their top five choices.

The automated marketplace will someday serve an average of 35,000 NCOs per year, and will be tied to "five enlisted manning cycles per year, compared to two cycles for officers," the command said.

-- Oriana Pawlyk can be reached at [email protected] . Follow her on Twitter at @oriana0214.

Related: Air Force to Let Fighter Pilots, Crew Stay at Preferred Bases

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Attacking Fraudulent Conveyances

• March 20, 2015

By Amrita Mann

Conveyance is a generic term for any written document that transfers (conveys) an asset as a part of a business transaction. It includes transfer of property, real or personal, a provision of service, a charge on a property, a payment, and a judicial proceeding taken or suffered by an insolvent person.

The Fraudulent Conveyance Act , the Assignments and Preferences Act , the Bankruptcy and Insolvency Act and the Ontario Business Corporations Act govern the transfer of assets, and specify when such a transfer is considered void.

Here are the top 10 things you need to know about attacking fraudulent conveyances:

• A “conveyance” includes the transfer of property, real or personal, a provision of service, a charge on a property, a payment and a judicial proceeding taken or suffered by an insolvent person.
• Conveyances made with the intent to hinder creditors or others with claims are void under the Fraudulent Conveyances Act .
• Any payment by a person who is insolvent or near insolvent, with the intent of giving a preference to one creditor over the others, is void under the Assignments and Preferences Act .
• Where a conveyance is made on the eve of bankruptcy, the Bankruptcy and Insolvency Act creates a rebuttable presumption that the conveyance was made with the intent of giving preference to one creditor over the others.
• Any transfers made between arm’s length (non- related) parties, within 3 months of bankruptcy, or non-arm’s length (related) parties, within 12 months of bankruptcy are reviewable.
• Under the Ontario Business Corporations Act (OBCA), a corporation is restricted from paying dividends or redeeming shares where there are reasonable grounds to believe that either the solvency test or capital impairments test would be breached. The corporation fails the solvency test of this law when the realizable value of the corporation’s assets would be less than the aggregate of its liabilities and its stated capital of all classes. The capital impairment test is breached when there are reasonable grounds to believe that the realizable value of the corporation’s assets would be less than the aggregate of its liabilities and its stated capital of all classes.
• A director who votes for or consents to an improper dividend or share redemption is liable to the corporation for the amount paid out.
• A director can apply to the Court to order a shareholder to repay an improper dividend or other benefit received from a corporation.
• Directors or officers have the right to be indemnified for the defence of any civil, criminal, administrative, investigative or other proceeding to which they are subject to, in connection with fulfilling their responsibilities to the corporation. However, a director’s or officer’s right to be indemnified can be challenged if it can be shown that the director or officer did not have reasonable grounds for his/her belief that his/her impugned conduct was lawful or that s/he did not act honestly and in good faith.
• A Court may pierce the corporate veil and pursue the directors or officers of the corporation personally, if it can be established that the company is an authorized agent of its controllers or its members, corporate or human.

please contact Amrita Mann  

T: 905-861-2816 or

email: [email protected]

Amrita Mann is an associate at Simmons da Silva LLP.

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What Fraud Victims Should Know about Bankruptcy and the Assignments and Preferences Act

by | | Legal Information for Fraud Victims - Blogs From the Series 'What Fraud Victims Should Know About:… | 0 comments

There are often multiple victims in investment fraud cases, and sometimes some victims, in their desperation for recovery, attempt to have their claims given preference over those of other victims. This blog tells the story of how the Courts may deal with victims seeking preference over other victims.

The Ponzi Scheme of Harry Snoek Jr.

The story of Harry Snoek Limited Partnership (Re), 2011 ONSC 6667 is known to me personally as the fraudster Harry Snoek Jr. attended church on Sundays with many of his victims and our family for years. It is a classic example of a cultural affinity fraud scheme where trust is blind. In this case Harry Snoek Sr. was a respected land developer in the Dutch Canadian community. He obtained financing for many of his land acquisition ventures from members of his Dutch Church. Harry Snoek Sr. always paid interest on his loans as he promised. Harry Snoek Sr. documented many of loans from his fellow Dutch Canadians by way of promissory notes. But Harry Snoek Sr. got old and developed Alzheimer’s disease. Harry Sr. brought his son, Harry Snoek Jr., into the business. Harry Jr. was known to many of the investors as they knew Harry Sr.’s family. The investors’ relationship of trust in Harry Sr. was transferred over to Harry Jr. without investigation by any of the investors. To quote the Court, “Sadly [Harry Jr.] did not share his father’s ethics, honesty or business acumen.” While Harry Jr. made it appear to his investors that he was running his business as his father had, in reality Harry Jr. took a significant amount of the invested money abroad to Holland and used it to fund his own extravagant lifestyle and failed business ventures such as yacht purchases. To conceal and continue his fraud, Harry Snoek Jr. ran a Ponzi scheme, using new investor funds to pay off other investors and not using the funds as represented to investors. As is the case in most Ponzi schemes, it eventually collapsed when new investor funds could not be obtained to keep pace with past investor demands for payment. When Harry Jr. began to default, some of his investors sought to obtain security for their loans. Later, when the defaults continued, some investors applied to the Court and had Harry Jr. assigned into bankruptcy. The appointed trustee took control and liquidated all property formally controlled by Harry Snoek Jr. with the intention of making pro rata payments to investors. An investor named Blokhuis attempted to assert that security provided to him by Harry Jr. before the bankruptcy assignment meant that his investment should be paid out in full ahead of the pro rata payments to the unsecured investors. Of course other investors did not like this idea and aired their complaints to the trustee.

The Assignments and Preferences Act Motion

In response, the trustee brought a motion to the Court relying on the Assignments and Preferences Act for a determination of whether Blokhuis’s secured creditor claim was valid. The trustee took the position that Harry Jr., by virtue of operating a Ponzi scheme, was insolvent at the time he gave security to Blokhuis, and accordingly the security Harry Jr. provided to Blokhuis was never valid and constituted an improper assignment or preference. The trustee relied on the following provisions of Ontario’s Assignments and Preferences Act :

4(1)   Every gift, conveyance, assignment or transfer… made by a person who is insolvent, or unable to pay his or her debts, when he or she knows that he or she is on the eve of insolvency, with the intent to defeat, hinder, delay or prejudice creditors… is void as against the creditors injured, delayed or prejudiced.

The Court held that the trustee had to prove the date on which Harry Jr. knew he was insolvent, and then had to prove the date by which Harry Jr. granted security to Blokhuis with the intent to give Blokhuis preference over Harry Jr.’s other investors. If the trustee proved these facts, then the onus shifted to Blokhuis to show that Harry Jr. gave him security for new money being invested, or transferred new money for the purpose of securing a pre-existing unsecured debt.

The Court’s Findings of Fact

The Court found as fact that Harry Jr. knew he was insolvent in 2007, and that Blokhuis did not seek security until after when Harry Jr. was in fact operating as a Ponzi scheme. The Court further found that when Harry Jr. gave security to Blokhuis he was receiving demands for payment from other investors and was ignoring these demands, thus deliberately putting the interests of Blokhuis ahead of other investors. Thus, the onus of proof shifted to Blokhuis to demonstrate that he had provided Harry Jr. new funds on which to pay for his secured interest. Blokhuis attempted to argue that his secured interest, which was security in a mortgage registered against certain property, had properly been obtained with the consent of Harry Jr., and without his knowledge of the Ponzi scheme. The Court, however, found that the security documents had been backdated, and that when the security was obtained Blokhuis and Harry Jr. had not disclosed to the Court granting the security that other creditors had moved for a Mareva injunction to freeze all assets of Harry Jr. For these reasons the Court held that Blokhuis, with the consent of Harry Jr. had obtained an unlawful preference to other creditors, and the Court declared the security of Blokhuis void as an improper assignment or preference. As a result, Blokhuis was ordered to pay the legal costs of the trustee and was held to be an unsecured creditor to be paid out on a pro rata basis with the other investors that he had tried to get ahead of. An appeal by Blokhuis was dismissed – see Harry Snoek Limited Partnership (Re), 2012 ONCA 765.

So What Ever Happened to Harry Snoek Jr.?

Harry Snoek Jr. would be considered a serious fraudster in terms of the quantum of the fraud – frauds over $1M attract minimum imprisonment if convictions are registered in the criminal courts. The Ontario Court held that in 2007 his land interests were worth $21.1M, while the value of the loans coming due in 2008 and 2008 was $35.1M. It is not clear what portion of the $14M deficiency Harry Jr. had misappropriated, or if the value was greater than the mere deficiency calculation, but there is little doubt that the amount is significant. This deficiency was calculated at a time when land values were increasing. Where did all the equity in these properties controlled by Harry Jr. go? The last known information from those in our Dutch Canadian community is that Harry Snoek Jr. resides comfortably in Holland. As of the time of this blog no criminal charges are known to have ever brought against him notwithstanding the finding of the Ontario courts that he engaged in a Ponzi scheme. As of the time of this blog the unsecured investors were advised that they would be paid out approximately 50% of their lost investment – which was fortunate as the value of the land at issue continued to escalate during the term of the bankruptcy. What is noteworthy is that the investors who signed up as claimants in the bankruptcy process gave away their private right to sue. As there are no civil or criminal actions as against Harry Jr., to a significant extent, other than the damage to his reputation, Harry Snoek Jr. is not much worse off for ware. As of the date of this blog it is unknown whether the bankruptcy process continues. But in any event some victims of Harry Jr. Ponzi’s scheme may reason that fraud pays.

To Bring Action or Make a Bankruptcy Claim?

Giving up the private right to sue a fraudster such as Harry Snoek Jr. is often a difficult decision for investors in cases like this. Investors have to weigh what they believe could be recovered in their own private litigation as against what could be recovered as part of a class-type action which in effect is what the bankruptcy process is. Often investors will elect bankruptcy as they are not required to pay for the process – that is the payment of the trustee fees and the fees of their counsel are derived from the liquidation of the property recovered through bankruptcy process. If an investor chooses to bring his or her own private litigation, most often their lawyers will require them to fund the litigation and recovery process themselves, with the additional risk of knowing that the trustee is selling off the assets from which they would hope to recover from. While often the option of not paying lawyers and trustees seems attractive at first, hard feelings and regret develop later when the bankruptcy process is complete. We have seen cases where, after the bankrupt is discharged, the bankrupt is earning a good living and again acquiring assets, the investor who recovered pennies on the dollar through the bankruptcy process sees the bankrupt fraudster living well, and the investor learns of the full recovery of exorbitant fees received by the trustee and their counsel from the estate of the bankrupt. For these reasons we recommend that investors seek the advice of their own counsel before blindly filing claims as part of bankruptcy. There are scenarios where an investor may be better off suing privately and making a criminal and regulatory complaint. Civil judgments for fraud survive the discharge of a bankrupt, and sometimes recovery for a victim is better from garnishing income and from seizure of post-bankruptcy discharge assets from a fraudster.

At Investigation Counsel, we investigate and litigate fraud recovery cases. If you discover you are a victim of fraud, contact us to have your case assessed and a strategy for recovery mapped out before contacting police or alerting the fraudster. We also promote victim advocacy and academic discussion through various private and public professional associations and organizations. If you have an interest in the topics discussed herein, we welcome your inquiries.    

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Table of Contents

I. our recovery services.

• i. Private Search Warrants & Independent Supervising Solicitor
• ii. Investment and Securities Fraud Recovery Litigation
• iii. Employee Fraud Recovery Litigation
• iv.Corporate Fraud Recovery Litigation
• v. Consumer and Credit Fraud Litigation
• vi. Romance Fraud Recovery Litigation
• vii. Immigration Fraud Litigation
• viii. Spiritualist and Psychic Fraud Recovery Litigation
• i x. Insurance Subrogation for Recovery from Fraud
• x. Insurance Fraud Prevention and Examinations Under Oath
• xi. Retail Civil Recovery Demands
• xii. Criminal Complaint Preparation / Private (Criminal) Prosecutions
• xiii. Press Releases: Canadian Fraud News
• xiv. Class Actions

II. Practical Information on the Fraud Recovery Process

• i. Discovery of Fraud – Triaging Your Fraud Case
• ii. Private Investigations
• iii. Negligent Investigations
• iv. Right to Know versus Right to Privacy
• v. Whistle Blowing – Creating a Confidential Informant Contract
• vi. Whistle Blowing – Breach of the Confidential Informant Undertaking
• vii. Whistle Blowing – The 2016 OSC Payment for Info Program
• viii. Economics – Throwing Good Money After Bad
• ix. Retainer Agreements
• x. Crowd Funding and Other Ideas to Fund Recovery
• xi. Contingency and Deferred Fee Retainers
• xii. Blaming the Victim – Reckless Investor or Fraud Victim
• xiii. Access to Justice – Dealing with Obstruction Tactics
• xiv. Private, Group and Class Actions
• xv. Cost Liability of Fraud Victims for Not Proving Fraud
• xvi. Recovery Against Professionals
• xvii. Recovery Against Banks
• xviii. Recovery Against Lawyers
• xix. Recovery Against Employees – The Madoff Story
• xx. Recovery Against Spouses
• xxi. Debtor’s Jail

III. Coordinating Civil Fraud Recovery Litigation with Criminal Fraud Prosecutions

• i. Restorative Justice and Privatized Policing
• ii. Canadian Victim’s Bill of Rights and Restitution Orders
• iii. Considerations Before Contacting Police
• iv. Coordinating Criminal and Civil Justice for Recovery
• v. Filing Criminal Complaints and Concerns about Defamation
• vi. Recovery Through Criminal Restitution Orders
• vii. Criminal Sentencing and Problems with Restitution Orders
• viii. Recovery Through Criminal Forfeiture Orders 
• ix. Recovery Through Securities Regulators
• x. Avoiding Allegations of Extortion
• xi. What Fraud Victims Should Know About a Fraudster’s Charter Rights

IV. Legal Information on the Fraud Recovery Process

• i. Limitation Periods
• ii. Why Defining Fraud is Important
• iii. Pleading Fraud and Allegations Against Secondary Defendants
• iv. Alleging Dishonest Assistance against Secondary Defendants
• v. Problems with Alleging Negligence
• vi. Motion to Freeze Assets of a Fraudster
• vii. Motion For Fraudster to Disclose Assets
• viii. The Robin Hood Defence
• ix. Motion by Fraudster to Stay Civil Proceedings
• x. Motion by Fraudster for Legal and Living Expenses
• xi. Discovery Compliance of Fraudsters
• xii. Discovery and the Deemed Undertaking Rule
• xiii. Tracing the Money and Identifying Secondary Defendants
• xiv. Judgment by Summary Motion – Access to Justice
• xv. Judgment by Hybrid Trial
• xvi. Judgment for Legal Costs
• xvii. Judgment for Investigation Costs
• xviii. Judgment for Punitive Damages
• xix. Judgment for Accounting
• xx. Enforcing Judgments Made in Canada
• xxi. Enforcing Foreign Judgments in Canada
• xxii. Contempt Proceedings Against Fraudsters
• xxiii. Contempt and a Fraudster’s Obligation to Account
• xxiv. Distributing Partial Recovery Amongst Fraud Victims

V. Due Diligence

• i. Characteristics of Fraud Victims and Tips for Fraud Prevention
• ii. Due Diligence to Avoid Ponzi Schemes

Fraud Recovery Assessments 

Corporate Fraud Litigation

Employee Fraud Litigation

Immigration Fraud Litigation

Insurance Fraud Litigation

Investment Fraud Litigation

Power of Attorney Fraud Litigation

Retailer Civil Recovery Litigation

Relationship Fraud Litigation

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Consultations For Police & P.I.s

Criminal Prosecutions

Due Diligence

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ISS Services

Retainer Agreements

CIBC Closet Indexing Class Action

Discount Broker Trailing Commission Class Action

 HSBC Closet Indexing Class Action

Norton Anti-Virus Class Action

RBC Closet Indexing Class Action

TD Closet Indexing Class Action

PONZI SCHEME INVESTIGATION INVOLVING AIDEN PLETERSKI 

Norman J. Groot

John Archibald

Ashley Ferguson

Geoff Keeble

Media Coverage

Assignments and Preferences

Published: 2011-09-01

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41 U.S. Code § 6305 - Prohibition on transfer of contract and certain allowable assignments

In subsection (a), the words “The party to whom the Federal Government gives a contract or order” are substituted for “the party to whom such contract or order is given” for clarity. The words “A purported transfer in violation of this subsection” are substituted for “any such transfer” because an actual transfer is precluded by this provision.

In subsection (b)(1), the words “amounts due from the Federal Government” are substituted for “moneys due or to become due from the United States or from any agency or department thereof” to eliminate unnecessary words. The words “may be assigned” are added to provide explicitly for authority that is necessarily implied by the source provision.

In subsection (b)(3), the words “in the case of any contract entered into after October 9, 1940 ” are omitted as obsolete.

In subsection (b)(5), the words “participating in such financing” are omitted as unnecessary.

In subsection (b)(8), the words “is not liable to make any refund to the Federal Government” are substituted for “no [liability] . . . shall create or impose any liability on the part of the assignee to make restitution, refund, or repayment to the United States of any amount heretofore since July 1, 1950 , or hereafter received under the assignment” to eliminate unnecessary words. The words “an assignor’s liability to the Federal Government” are substituted for “liability of any nature of the assignor to the United States or any department or agency thereof ” for clarity and to eliminate unnecessary words.

In subsection (b)(9)(A), the words “except any such contract under which full payment has been made” are omitted as unnecessary because subsection (b)(8) precludes refund where full payment has already been made. The words “payments made to an assignee under the contract” are substituted for “payments to be made to the assignee of any moneys due or to become due under such contract” to eliminate unnecessary words.

In subsection (b)(9)(B), the words “When a ‘no reduction or setoff ’ provision as described in subparagraph (A) is included in a contract” are substituted for “If a provision described in subsection (e) of this section or a provision to the same general effect has been at any time heretofore or is hereafter included or inserted in any such contract”, the words “payments to the assignee” are substituted for “payments to be made thereafter to an assignee of any moneys due or to become due”, and the words “an assignor’s liability” are substituted for “any liability of any nature of the assignor to the United States or any department or agency thereof ”, for clarity and to eliminate unnecessary words.

In subsection (b)(9)(C), the text of 40:15(g), which provided that nothing in 40:15 affected rights and obligations accrued before subsection (g) was added by the Act of May 15, 1951 (ch. 75, 65 Stat. 41 ), is omitted as obsolete.

Memorandum of President of the United States, Oct. 3, 1995 , 60 F.R. 52289 , provided:

Memorandum for the Heads of Executive Departments and Agencies

Section 2451 of the Federal Acquisition Streamlining Act of 1994 , Public Law 103–355 ([amending former] 41 U.S.C. 15 [see 41 U.S.C. 6305 ]) (“Act”), provides, in part, that “[a]ny contract of the Department of Defense , the General Services Administration , the Department of Energy or any other department or agency of the United States designated by the President, except [contracts where] . . . full payment has been made, may, upon a determination of need by the President, provide or be amended without consideration to provide that payments to be made to the assignee of any moneys due or to become due under [the] contract shall not be subject to reduction or set-off.”

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3 , United States Code, I hereby designate all other departments and agencies of the United States as subject to this provision. Furthermore, I hereby delegate to the Secretaries of Defense and Energy, the Administrator of General Services, and the heads of all other departments and agencies, the authority under section 2451 of the Act to make determinations of need for their respective agency’s contracts, subject to such further guidance as issued by the Office of Federal Procurement Policy.

The authority delegated by this memorandum may be further delegated within the departments and agencies.

This memorandum shall be published in the Federal Register.

Inform the Center for Scientific Review of Your Assignment Preferences

Funding News Edition: September 6, 2023 See more articles in this edition

List up to five types of expertise (general or specific) required to evaluate your application.

When it comes to grant applications, investigators often have an idea of what assignments they’d like; that is, in terms of institute or center (IC) or study section. While the Division of Receipt and Referral (DRR) in the Center for Scientific Review (CSR) will make these assignments based on the best scientific fit, you may let staff know your preferences.

In any case, it’s a good idea to consult a program officer to get his or her advice on the appropriate institute and study section assignments.

By using the optional PHS Assignment Request Form , you can convey the following to DRR. Keep in mind that you do not need to fill in all the form’s sections and fields.

Check Your Assignments

Here’s what you can expect, assignment-wise.

Within 7 to 10 days after you submit your application: You should find your initial assignment information in the eRA Commons. If a CSR review branch is listed instead of a specific study section, don’t worry. CSR will update this information with your study section assignment in the next few days.

Approximately 30 days before the review meeting: Your study section’s roster will be posted in eRA Commons.

To be clear, which reviewers are assigned to which application is never shared. The total roster is public, but individual assignments are not. If a review meeting has only an application or two, then the rosters are often aggregated with those of other small meetings to maintain anonymity of assignments.

Making Changes

If you used the PHS Assignment Request Form and feel you did not get the appropriate IC assignment, you can email CSR’s Division of Receipt and Referral to ask for a change. You can also request a change if you submitted an investigator-initiated R01, R21, or R03 application and feel your application was not assigned to an appropriate study section. Contact the review branch chief where your application is currently assigned for further advice. CSR will consider your request, but in the end, its decision is final.

For further details on checking and changing assignments, go to Application Assigned to a Review Group and First-Level Peer Review to expand on the role of reviewers, NIAID versus CSR review, and more.

Email us at [email protected] for help navigating NIAID’s grant and contract policies and procedures.

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Task publication time recommendation in spatial crowdsourcing.

The increasing proliferation of networked and geo-positioned mobile devices brings about increased opportunities for Spatial Crowdsourcing (SC), which aims to enable effective location-based task assignment. We propose and study a novel SC framework, ...

Task Assignment with Federated Preference Learning in Spatial Crowdsourcing

Spatial Crowdsourcing (SC) is ubiquitous in the online world today. As we have transitioned from crowdsourcing applications (e.g., Wikipedia) to SC applications (e.g., Uber), there is a substantial precedent that SC systems have a responsibility not ...

Privacy-Preserving Batch-based Task Assignment in Spatial Crowdsourcing with Untrusted Server

In this paper, we study the privacy-preserving task assignment problem in spatial crowdsourcing, where the locations of both workers and tasks, prior to their release to the server, are perturbed with Geo-Indistinguishability (a differential privacy ...

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• General Chairs:

University of Wolverhampton, UK

University of Koblenz, Germany

University of Birmingham, UK

• Program Chairs:

Spotify, UK

Tsinghua University, China

Federal University of Minas Gerais, Brazil

• SIGWEB: ACM Special Interest Group on Hypertext, Hypermedia, and Web
• SIGIR: ACM Special Interest Group on Information Retrieval

Association for Computing Machinery

New York, NY, United States

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• federated learning
• spatial crowdsourcing
• task assignment
• Research-article

Funding Sources

• Shenzhen Municipal Science and Technology R&D Funding Basic Research Program
• Key Laboratory of Data Intelligence and Cognitive Computing, Longhua District, Shenzhen
• Municipal Government of Quzhou under Grant

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Breaking News

OPINION ANALYSIS

Supreme court strikes down chevron , curtailing power of federal agencies.

This article was updated on June 28 at 3:46 p.m.

In a major ruling, the Supreme Court on Friday cut back sharply on the power of federal agencies to interpret the laws they administer and ruled that courts should rely on their own interpretion of ambiguous laws. The decision will likely have far-reaching effects across the country, from environmental regulation to healthcare costs.

By a vote of 6-3, the justices overruled their landmark 1984 decision in Chevron v. Natural Resources Defense Council , which gave rise to the doctrine known as the Chevron doctrine. Under that doctrine, if Congress has not directly addressed the question at the center of a dispute, a court was required to uphold the agency’s interpretation of the statute as long as it was reasonable. But in a 35-page ruling by Chief Justice John Roberts, the justices rejected that doctrine, calling it “fundamentally misguided.”

Justice Elena Kagan dissented, in an opinion joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. Kagan predicted that Friday’s ruling “will cause a massive shock to the legal system.”

When the Supreme Court first issued its decision in the Chevron case more than 40 years ago, the decision was not necessarily regarded as a particularly consequential one. But in the years since then, it became one of the most important rulings on federal administrative law, cited by federal courts more than 18,000 times.

Although the Chevron decision – which upheld the Reagan-era Environmental Protection Agency’s interpretation of the Clean Air Act that eased regulation of emissions – was generally hailed by conservatives at the time, the ruling eventually became a target for those seeking to curtail the administrative state, who argued that courts, rather than federal agencies, should say what the law means. The justices had rebuffed earlier requests (including by one of the same lawyers who argued one of the cases here) to consider overruling Chevron before they agreed last year to take up a pair of challenges to a rule issued by the National Marine Fisheries Service. The agency had required the herring industry to pay for the costs, estimated at $710 per day, associated with carrying observers on board their vessels to collect data about their catches and monitor for overfishing.

The agency stopped the monitoring in 2023 because of a lack of funding. While the program was in effect, the agency reimbursed fishermen for the costs of the observers.

After two federal courts of appeals rebuffed challenges to the rules, two sets of commercial fishing companies came to the Supreme Court, asking the justices to weigh in.

The justices took up their appeals, agreeing to address only the Chevron question in Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo . (Justice Ketanji Brown Jackson dissented in the Relentless case but was recused from the Loper-Bright case, presumably because she had heard oral argument in the case while she was still a judge on the U.S. Court of Appeals for the District of Columbia Circuit.)

Chevron deference, Roberts explained in his opinion for the court on Friday, is inconsistent with the Administrative Procedure Act, a federal law that sets out the procedures that federal agencies must follow as well as instructions for courts to review actions by those agencies. The APA, Roberts noted, directs courts to “decide legal questions by applying their own judgment” and therefore “makes clear that agency interpretations of statutes — like agency interpretations of the Constitution — are not entitled to deference. Under the APA,” Roberts concluded, “it thus remains the responsibility of the court to decide whether the law means what the agency says.”

Roberts rejected any suggestion that agencies, rather than courts, are better suited to determine what ambiguities in a federal law might mean. Even when those ambiguities involve technical or scientific questions that fall within an agency’s area of expertise, Roberts emphasized, “Congress expects courts to handle technical statutory questions” – and courts also have the benefit of briefing from the parties and “friends of the court.”

Moreover, Roberts observed, even if courts should not defer to an agency’s interpretation of an ambiguous statute that it administers, it can consider that interpretation when it falls within the agency’s purview, a doctrine known as Skidmore deference.

Stare decisis – the principle that courts should generally adhere to their past cases – does not provide a reason to uphold the Chevron doctrine, Roberts continued. Roberts characterized the doctrine as “unworkable,” one of the criteria for overruling prior precedent, because it is so difficult to determine whether a statute is indeed ambiguous.

And because of the Supreme Court’s “constant tinkering with” the doctrine, along with its failure to rely on the doctrine in eight years, there is no reason for anyone to rely on Chevron . To the contrary, Roberts suggested, the Chevron doctrine “allows agencies to change course even when Congress has given them no power to do so.”

Roberts indicated that the court’s decision on Friday would not require earlier cases that relied on Chevron to be overturned. “Mere reliance on Chevron cannot constitute a ‘special justification’ for overruling” a decision upholding agency action, “because to say a precedent relied on Chevron is, at best, just an argument that the precedent was wrongly decided” – which is not enough, standing along, to overrule the case.

The Supreme Court is expected to rule on Monday on when the statute of limitations to challenge agency action begins to run. The federal government has argued in that case, Corner Post v. Federal Reserve , that if the challenger prevails, it would open the door for a wide range of “belated challenges to agency regulation.”

Justice Clarence Thomas penned a brief concurring opinion in which he emphasized that the Chevron doctrine was inconsistent not only with the Administrative Procedure Act but also with the Constitution’s division of power among the three branches of government. The Chevron doctrine, he argued, requires judges to give up their constitutional power to exercise their independent judgment, and it allows the executive branch to “exercise powers not given to it.”

Justice Neil Gorsuch filed a longer (33-page) concurring opinion in which he emphasized that “[t]oday, the Court places a tombstone on Chevron no one can miss. In doing so, the Court returns judges to interpretative rules that have guided federal courts since the Nation’s founding.” He sought to downplay the impact of Friday’s ruling, contending that “all today’s decision means is that, going forward, federal courts will do exactly as this Court has since 2016, exactly as it did before the mid-1980s, and exactly as it had done since the founding: resolve cases and controversies without any systemic bias in the government’s favor.”

Kagan, who read a summary of her dissent from the bench, was sharply critical of the decision to overrule the Chevron doctrine. Congress often enacts regulatory laws that contain ambiguities and gaps, she observed, which agencies must then interpret. The question, as she framed it, is “[w]ho decides which of the possible readings” of those laws should prevail?

For 40 years, she stressed, the answer to that question has generally been “the agency’s,” with good reason: Agencies are more likely to have the technical and scientific expertise to make such decisions. She emphasized the deep roots that Chevron has had in the U.S. legal system for decades. “It has been applied in thousands of judicial decisions. It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds — to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.”

By overruling the Chevron doctrine, Kagan concluded, the court has created a “jolt to the legal system.”

Kagan also pushed back against the majority’s suggestion that overruling the Chevron doctrine would introduce clarity into judicial review of agency interpretations. Noting the majority’s assurances that agency interpretations may be entitled to “respect” going forward, she observed that “[i]f the majority thinks that the same judges who argue today about where ‘ambiguity’ resides are not going to argue tomorrow about what ‘respect’ requires, I fear it will be gravely disappointed.”

Similarly, she questioned the majority’s assertion that Friday’s decision would not call into question decisions that relied on the Chevron doctrine to uphold agency action. “Courts motivated to overrule an old Chevron -based decision can always come up with something to label a ‘special justification,’” she posited. “All a court need do is look to today’s opinion to see how it is done.”

But more broadly, Kagan rebuked her colleagues in the majority for what she characterized as a judicial power grab. She lamented that, by overruling Chevron , the court had, in “one fell swoop,” given “itself exclusive power over every open issue — no matter how expertise-driven or policy-laden — involving the meaning of regulatory law.”

Roman Martinez, who argued the case on behalf of one of the fishing companies, applauded the decision. “By ending  Chevron  deference,” he said in a statement, “the Court has taken a major step to preserve the separation of powers and shut down unlawful agency overreach. Going forward, judges will be charged with interpreting the law faithfully, impartially, and independently, without deference to the government. This is a win for individual liberty and the Constitution,”

But Kym Meyer, the litigation director for the Southern Environmental Law Center, decried the ruling in a statement. “[T]he Supreme Court today says individual judges around the country should decide the best reading of a statute. That is a recipe for chaos, as hundreds of federal judges — who lack the expertise of agency personnel — are certain to reach inconsistent results on the meaning of federal laws as applied to complex, technical issues.”

Friday’s ruling came in one of three cases during the 2023-24 term seeking to curtail the power of federal agencies – a conservative effort sometimes dubbed the “war on the administrative state.” In October, the court heard arguments in a challenge to the constitutionality of the mechanism used to fund the consumer watchdog Consumer Financial Protection Bureau. Last month the court upheld the CFPB’s funding by a 7-2 vote. And on Thursday, the justices pared back the power of the Securities and Exchange Commission and other administrative agencies, holding that the SEC cannot continue to use in-house proceedings to impose fines in securities fraud cases.  

The fishermen in both cases were represented at no cost by conservative legal groups, the Cause of Action Institute and the New Civil Liberties Alliance, linked to funding from billionaire and longtime anti-regulation advocate Charles Koch .  

This article was originally published at Howe on the Court . 

Posted in Featured , Merits Cases

Cases: Loper Bright Enterprises v. Raimondo , Relentless, Inc. v. Department of Commerce

Recommended Citation: Amy Howe, Supreme Court strikes down Chevron , curtailing power of federal agencies , SCOTUSblog (Jun. 28, 2024, 12:37 PM), https://www.scotusblog.com/2024/06/supreme-court-strikes-down-chevron-curtailing-power-of-federal-agencies/

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Here’s What the Court’s Chevron Ruling Could Mean in Everyday Terms

The decision is expected to prompt a rush of litigation challenging regulations across the entire federal government, from food safety to the environment.

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By Coral Davenport ,  Christina Jewett ,  Alan Rappeport ,  Margot Sanger-Katz ,  Noam Scheiber and Noah Weiland

• June 28, 2024

The Supreme Court’s decision on Friday to limit the broad regulatory authority of federal agencies could lead to the elimination or weakening of thousands of rules on the environment, health care, worker protection, food and drug safety, telecommunications, the financial sector and more.

The decision is a major victory in a decades-long campaign by conservative activists to shrink the power of the federal government, limiting the reach and authority of what those activists call “the administrative state.”

The court’s opinion could make it easier for opponents of federal regulations to challenge them in court, prompting a rush of new litigation, while also injecting uncertainty into businesses and industries.

“If Americans are worried about their drinking water, their health, their retirement account, discrimination on the job, if they fly on a plane, drive a car, if they go outside and breathe the air — all of these day-to-day activities are run through a massive universe of federal agency regulations,” said Lisa Heinzerling, an expert in administrative law at Georgetown University. “And this decision now means that more of those regulations could be struck down by the courts.”

The decision effectively ends a legal precedent known as “Chevron deference,” after a 1984 Supreme Court ruling. That decision held that when Congress passes a law that lacks specificity, courts must give wide leeway to decisions made by the federal agencies charged with implementing that law. The theory was that scientists, economists and other specialists at the agencies have more expertise than judges in determining regulations and that the executive branch is also more accountable to voters.

Since then, thousands of legal decisions have relied on the Chevron doctrine when challenges have been made to regulations stemming from laws like the 1938 Fair Labor Standards Act, the 1970 Clean Air Act , the 2010 Affordable Care Act and others.

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Assignments and Preferences Act, RSNB 1952, c 13

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