The court held that a party accused of inducing infringement under § 271(b) required actual knowledge of the patent to be liable for infringement, as required for contributory infringement and following the Supreme Court's reasoning in MGM Studios, Inc. Grokster, Ltd., 125 S. While this ruling certainly puts additional. But what is actual knowledge? Since Escobar, several courts have invoked this factor to dismiss cases at the pleading stage. But questions remain. Is the government’s knowledge of allegations of noncompliance enough? Or does the government need knowledge of actual noncompliance?

1. Actual Knowledge Vs Knowledge
2. Knowledge Construction Examples
3. Actual Knowledge Without Inquiry
4. Actual Knowledge Violation
5. Actual Knowledge Vs Best Knowledge

Another aspect of the Department's policy is that the actual knowledge predicate must be met without relying upon any of the following three categories of evidence: (1) confidential communications made by the client preliminary to and with regard to whether the attorney will undertake the representation; (2) confidential communications made by the client during the course of the representation; and (3) information obtained by the attorney during the course of the representation and in furtherance of the obligation to effectively represent the client.

This means that actual knowledge may not be established by evidence that the attorney learned from his/her client during the course of the representation that the fee was paid from criminally derived funds. Thus, a client's voluntary testimony at trial or a client's voluntary disclosure of communications with his or her attorney--disclosed, for example, in an attempt to 'make a deal' by implicating the attorney in criminal misconduct--may not, as a threshold matter, be used to meet the policy requirement of actual knowledge. However, if there exists other evidence, independent of the attorney-client relationship, that establishes beyond a reasonable doubt that the attorney had actual knowledge, client communications may be used at trial to prove the requisite knowledge.

As a practical matter, this limitation means that in most cases there will be proof beyond a reasonable doubt of actual knowledge that pre-existed representation on the particular matter. For example, if an attorney is functioning as 'in house' counsel for a criminal enterprise and knows from personal observation or non-privileged communication with the criminal entrepreneurs that certain property is criminally derived, then the subsequent receipt of that property by the attorney as payment for legal representation on a particular criminal matter may be subject to prosecution.

What is “actual knowledge”? A school or district has actual knowledge when notice or allegations of sexual harassment are reported to any school employee; or any employee personally observes such behavior.

Similarly, if an attorney personally hears an individual boasting of lucrative criminal activities (before any attorney-client relationship was established or contemplated), and if that individual, having no known legitimate source of income, later retains that attorney and pays the attorney's fee with cash, a prosecution under § 1957 may be appropriate.

On the other hand, the fact that an attorney has a long-term attorney-client relationship with an individual who is in chronic trouble with the law, or has represented more than one member of a suspected criminal enterprise, is not sufficient evidence by itself to establish actual knowledge.

Similarly, if an attorney accepts a bona fide fee from a client to provide legal representation in connection with a then-existing legal problem, and the attorney has no information that the specific funds used to pay the fee may be criminally derived other than widespread press reports that the client's only source of income is narcotics trafficking, prosecution under § 1957 would not be authorized. The fact of extensive pre-representation publicity concerning an individual's reputed criminal activities is never sufficient by itself to establish actual knowledge.

The limitation upon the type of evidence that may be relied upon to meet the requirement of actual knowledge is imposed as a matter of policy. It is intended to enable attorneys to explore and inquire freely into all facts relevant to the defense of a client in a criminal matter without fear of prosecution based solely on information learned as a result of carrying out that responsibility. This policy should not, however, be read to authorize or condone conduct on the part of any attorney which, in fact, constitutes a violation of § 1957 or any other law.

[cited in JM 9-105.600]

Subpart G of FMCSA Part 382 —Requirements and Procedures for Implementation of the Commercial Driver’s License Drug and Alcohol Clearinghouse is a new section added in relation to the Commercial Driver’s License Drug and Alcohol Clearinghouse. Section 382.705 requires employers to report to the Clearinghouse by the close of the third business day following the date on which the employer obtains actual knowledge of use or actual use while FMCSA covered performing safety sensitive duties.

Actual knowledge is evidence that a driver has used alcohol or controlled substances while performing FMCSA safety sensitive duties. This is different from reasonable suspicion. With reasonable suspicion a trained supervisor is observing signs and symptoms. With actual knowledge there is specific evidence of use. The FMCSA definition of actual knowledge is as follows:

Actual knowledge for the purpose of subpart B of this part, means actual knowledge by an employer that a driver has used alcohol or controlled substances based on the employer’s direct observation of the employee, information provided by the driver’s previous employer(s), a traffic citation for driving a CMV while under the influence of alcohol or controlled substances or an employee’s admission of alcohol or controlled substance use, except as provided in §382.121. Direct observation as used in this definition means observation of alcohol or controlled substances use and does not include observation of employee behavior or physical characteristics sufficient to warrant reasonable suspicion testing under §382.307.

The exception above for §382.121 is for an employer who has a written employer-established voluntary self-identification program or policy. In this case self-admission allows the employee to rehabilitate without a violation and referral to a substance abuse professional (SAP).

What is not actual knowledge?

• A DUI not on work time in a personal vehicle

• Report from a co-worker of use of alcohol or drugs More apps download.

• Reasonable suspicion based on signs and symptoms

Examples of actual knowledge:

• Admission of use of drugs and alcohol when §382.121 does not apply

• DUI while operating commercial motor vehicle

Actual Knowledge Vs Knowledge

• Direct observation of use of drugs or alcohol (drinking a beer or smoking a joint)

Once there is actual knowledge the employee must be removed from the safety sensitive position and must go through the return to duty process with a substance abuse professional (SAP) before returning to duty in any DOT safety sensitive position. This is an important responsibility of company supervisors and employer DER’s.

Any violation based on an employer’s actual knowledge of a driver’s drug or alcohol use, or a driver’s failure to appear for a drug or alcohol test after receiving proper notification, will require detailed, contemporaneous documentation in the Clearinghouse. When reporting actual knowledge, what information are employers required to report to the Clearinghouse:

• Driver’s name, date of birth, commercial driver’s license (CDL) number and State of issuance;

• Employer name, address, and USDOT number, if applicable;

• Date the employer obtained actual knowledge of the violation;

Knowledge Construction Examples

• Witnesses to the violation, if any, including contact information;

Actual Knowledge Without Inquiry

• Description of the violation;

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• Evidence supporting each fact alleged in the description of the violation, which may include, but is not limited to, affidavits, photographs, video or audio recordings, employee statements (other than admissions pursuant to § 382.121), correspondence, or other documentation; and

Actual Knowledge Violation

• A certificate of service or other evidence showing that the employer provided the employee with all information reported.

Actual Knowledge Vs Best Knowledge

ClearinghouseServices.com will be providing to its members a form to use when reporting actual knowledge to the Clearinghouse. This form will document supporting evidence and provide a certificate of service that the that the employer provided the employee with all information reported. If you have additional questions on actual knowledge, please e-mail – [email protected].