On January 31, 2013, Video Director Dennis Martin created a promotional video for Greco's second signature shoe, "The Hammer"; Greco's first signature model was named "The Soprano". Greco explained, in relation to the "Hammer", "I wanted to make a super simple-looking shoe. There's a million shoes out there that are simple, but I really wanted that fusion of vulcanized and cup sole because I like the feel of the vulc, but I like the impact absorbing features of the cup sole". The shoe's design was promoted as "a high performance, lightweight, low-top skate shoe. The upper has a short eye stay, a long vamp, and minimal branding".
The brand has released signature model shoes from team riders, such as Muska, Ellington, Jim Greco, Tom Penny, and Stevie Williams. A collaboration occurred between producer and DJ Steve Aoki and Supra for Muska's signature model shoe. Williams released a collaboration with hip hop artist and entrepreneur Lil Wayne in December 2012, promoted as a "synthesis of skateboarding and hip hop".
However, the due diligence aspects of these transactions (to be discussed in a future installment of this newsletter) can be daunting, as the buyer is literally stepping into the shoes of the seller and thus is exposed to all potential liabilities connected with the way the business was operated in the past. Some of the common techniques used to mitigate these risks are holdbacks of portions of the purchase price and complex indemnification agreements that continue to hold the seller ultimately liable for statute of limitations periods or specific periods of time. These types of transactions can often be predicated on pre-sale voluntary disclosures to regulatory agencies and third-party payers. Accordingly, the watchword to for buyers is to identify the potential problem areas early while sellers should be attempting to rectify these matters even before going to market.
On February 18, 1926, the bankrupt needed money to meet its pay roll. It had no actual accounts to be assigned, but did have orders which it was to fill. The bankrupt had in process of manufacture shoes to fill these orders, and applied to the bank for a loan, offering as security a list of these unfilled orders shown upon production sheets, containing, with other data, a list of the lots of shoes for which an order had been given. Each of these lots, as it was being made up in the process of manufacture, had attached a tag, or tags, with an identifying number, which number was entered on the production sheets, duplicates of which were assigned to the bank. By means of these tags and identification numbers, each lot of shoes and the materials needed to make them could at all times be traced and located in the bankrupt's factory and connected up with its proper production sheets, and only by reference to the production sheets could the shoes manufactured to fill the order be identified. When the order had been completed and the shoes shipped out and billed, the bankrupt assigned a duplicate of the bills rendered to the bank, which was intended as a substitution for the production sheets which had previously been assigned.
March 22, 1926, the bank loaned the bankrupt $11,000; March 23, $6,000; and April 12, $6,000 making a total of $23,000, and the method was followed which has been described. The price of the shoes shown on the production sheets delivered to the bank in connection with said loans aggregated $26,174.60. *248 The shoes enumerated on said sheets were subsequently sold by the receiver in bankruptcy and the proceeds of said sale, amounting to $6,253.10, are held subject to the order of the court.
The bankrupt finding itself unable to go on further with the business without more money, and the bank evidently being unwilling to furnish the same, its counsel prepared a letter, signed by the bank and delivered to the superintendent of the bankrupt, directing him to take possession, as agent of the bank, of shoes pledged to secure the bank loans, and which "had been already set aside and tagged." This letter was delivered to the superintendent of the bankrupt at the bankrupt's factory on the morning of April 15, 1926, and on the same afternoon an involuntary petition in bankruptcy was filed by the bankrupt. Counsel for the bank acted also as counsel for the petitioning creditors.
The referee has found that the statement in the letter of instructions to the superintendent to take possession of the shoes that "had already been set aside and tagged" was erroneous, and that the superintendent did not tag finished shoes, but had his subordinates mark with tags certain unfinished shoes with the initials of the bank; that the only thing the bank did to get possession of these disputed shoes was to direct the superintendent to take possession of them, and the tagging of the unfinished shoes was started about 5 hours before the petition in bankruptcy was filed.
The referee has further found that the bank made the loans to the bankrupt "in good faith and in the belief at the time that it was to secure some kind of a lien on these unfinished shoes," that the bank acquired no lien by the original transaction and "was not benefited by anything that happened on the day of bankruptcy," and that no lien was created by the original transaction, which did not constitute a mortgage or a pledge.
The errors assigned are, in substance, that the court erred in failing to find that the petitioner had an equitable lien on unfinished shoes, and that the court erred in failing to establish petitioner's right to the sum of $6,253.10 realized from their sale, together with any interest that has accrued thereon.
The bank contends that it had an equitable lien upon the material to be used in manufacturing the shoes to fill the orders which were assigned to it. The record discloses, and the production sheets, which are exhibits in the case, show that all of this material bore an identifying number, which connected it up with the particular lot of shoes in the manufacture of which it was to be used, and the referee has so found. The referee has also found that the loans in question were made by the bank in good faith and believing that it secured a lien upon the unfinished shoes.
*249 This statement is supported by citation of authorities, among which is Hurley v. Atchison, T. & S. F. R. Co., 213 U.S. 126, 29 S. Ct. 466, 53 L. Ed. 729. The court in Westall v. Wood, supra, there held that, even though the understanding between the parties was inartificially expressed, "it ought to be treated in a chancery court as creating an equitable lien, in order to effectuate the aim of the parties and to prevent the perpetration of a fraud" citing Sexton v. Kessler & Co., 225 U.S. 90, 96, 97, 32 S. Ct. 657, 56 L. Ed. 995.
In Hurley v. Atchison, T. & S. F. R. Co., supra, the lessee of certain coal mines had entered into an arrangement with the railway company to furnish it coal, the amount so furnished to be paid for upon the 15th day of each month. The lessee, the coal company, became embarrassed and unable to meet its pay rolls, so that as a result it might not be able to mine or deliver the coal which it had agreed to deliver, and which the railway company required for its daily consumption. The railway company agreed to advance money for coal to be mined and delivered to it. The court found that this arrangement was so intimately and vitally related to the original contract that it was not intended to be interpreted independent and separate from it, and said, at page 134 (29 S. Ct. 469):
There is no doubt about the intention of the parties in the present case. The loans were made by the bank on the security of the unfinished shoes then in process of manufacture and which belonged to different lots which were identified upon the production sheets. There was no intent to defraud, and the referee has so found. Nor was a preference created as a present consideration was advanced at the time the security was taken. The bank, through the superintendent of the bankrupt, whom it constituted its agent for the purpose, had taken possession of these unfinished shoes before the petition in bankruptcy had been filed or any adverse rights created. Although the transfer to the bank took place within four months of the bankruptcy proceedings, it is not thereby rendered voidable, because it was not made with intent to defraud, nor did it create any preference, but was made for a present consideration and the bankrupt estate was not depleted thereby.
There is no controversy about the facts in the present case, and the evidence is clear and convincing that the loans made by the bank supplied the money with which to pay the pay rolls of operatives for the work of assembling these parts of unfinished shoes and making the finished shoes for which orders had been taken. There was a sufficient identification by the production sheets of the parts of these unfinished shoes.
A police officer who asked a suspect to show the soles of his sneakers during a noncustodial interview and who observed the tread thereon did not conduct a search under the Fourth Amendment to the United States Constitution, where the suspect had no reasonable expectation of privacy in the soles of his shoes. [264-266]
"What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States, 389 U.S. 347, 351-352 (1967) (citations omitted). Thus, voice exemplars are not protected by the Fourth Amendment because "[t]he physical characteristics of a person's voice . . . are constantly exposed to the public. Like a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice...." United States v. Dionisio, 410 U.S. 1, 14-15 (1973). Likewise, handwriting exemplars are not protected. United States v. Mara, 410 U.S. 19, 21-22 (1973). Commonwealth v. Lima, 29 Mass. App. Ct. 490, 497 (1990). Nor does the disclosure of physical characteristics in a lineup implicate the Fourth Amendment. In Re Melvin, 550 F.2d 674, 675-676 (1st Cir. 1977), following Dionisio and Mara. Commonwealth v. Doe, 408 Mass. 764, 767 (1990). In contrast, the taking of fingernail scrapings "went beyond mere 'physical characteristics . . . constantly exposed to the public,' United States v. Dionisio, supra at 14, and constituted the type of 'severe, though brief, intrusion upon cherished personal security' that is subject to constitutional scrutiny. Terry v. Ohio, [392 U. S. 1, 24-25 (1977)]." Cupp v. Murphy, 412 U.S. 291, 295 (1973). 781b155fdc