977 So.2d 501 (2007)
Lori B. ARNOLD
v.
Joseph R. ARNOLD
Joseph R. Arnold
v.
Lori B. Arnold.
No. 2051015.
Court of Civil Appeals of Alabama.
July 13, 2007.
*503 J. Cliff Heard of Benkwith & Heard, P.C., Montgomery, for appellant/cross-appellee Lori B. Arnold.
Johnnie Smith, Montgomery, for appellee/cross-appellant Joseph R. Arnold.
THOMPSON, Presiding Judge.
On September 28, 2005, Joseph R. Arnold ("the husband") filed a complaint seeking a divorce from Lori B. Arnold ("the wife"). The wife answered and counterclaimed for a divorce; the wife also sought custody of the parties' minor child. In their complaints, the parties each alleged that they had had a common-law marriage before their April 5, 1996, marriage ceremony. Both parties later disputed the length of that purported common-law marriage.
During the pendency of this matter, the parties stipulated as to a number of issues, including the award of custody of the child to the wife and other issues pertaining to the child. Thereafter, the trial court conducted a hearing at which it received ore tenus evidence. On May 16, 2006, the trial court entered a divorce judgment incorporating the parties' stipulations and resolving the issues upon which the parties' had failed to reach an agreement. The divorce judgment divided the parties property and, among other things, awarded the wife "temporary alimony" of $400 per month for one year. In addition, the trial court ordered the husband to pay $709.12 per month in child support, awarded the husband *504 the right to claim the child as a dependent for income-tax purposes, and required the husband to provide health insurance for the benefit of the child.
The wife filed a postjudgment motion, and the husband filed an opposition to that motion and a "counter" postjudgment motion. On July 24, 2006, the trial court entered a postjudgment order altering the alimony provision of the divorce judgment to award the wife $750 per month in alimony for a period of three years. The wife timely appealed, and the husband timely cross-appealed.
The parties were first married in 1991, and they divorced in 1993. The parties resumed and then ended their romantic relationship several times after their divorce. The wife became pregnant with the parties' child in 1995, and the child was born on March 20, 1996. The parties' second marriage ceremony took place on April 5, 1996.
Much of the parties' testimony was dedicated to their dispute regarding the length of their purported common-law marriage. The wife attempted to demonstrate that the parties had been common-law married before September 1995, approximately seven months before their ceremonial marriage. The husband maintained that the parties' common-law marriage that preceded their ceremonial marriage dated back only to March 20, 1996, the date the parties' child was born.
The parties each submitted a CS-41 child-support income affidavit as required by Rule 32, Ala. R. Jud. Admin. The wife's CS-41 form indicated that her monthly gross income was $2,332.88. We note that in her testimony the wife answered in the affirmative the question whether her income affidavit indicated that she earned $2,339 per month. The reason for the slight discrepancy in the evidence regarding the wife's gross monthly income is not explained in the record on appeal.
The parties disputed the amount of the husband's income. The husband submitted a CS-41 form indicating that his gross monthly income from his employment with the Federal Aviation Administration was $8,413; that amount corresponds to the amount of the husband's 2006 "base" salary. The wife presented evidence indicating that the husband has consistently received income in excess of his base salary. The husband referred to the income he received in addition to his base salary as "differential" income. The wife presented evidence indicating that the husband earned an average of approximately $540 per month in differential income in 2004, approximately $630 per month in differential income in 2005, and approximately $1,500 per month in differential income for 2006 to the date of the May 2006 hearing.
The husband offered his testimony that he believed his differential income might decrease or end in the future. The wife objected to that testimony as speculative, but the trial court overruled her objection. Thereafter, the husband testified:
"[I]f Congress has it before them and if it is the last best offer from the [Federal Aviation Administration] then we will start to lose part of our differentials, the premium pays that we get on top of the flat salary will be reduced as well and if we are ever combined to another facility we stand a chance to take a possible significant drop in pay."
The parties also presented evidence indicating that the cost of after-school care for the child was $42 per week and that the husband typically paid that obligation to the child-care facility. The husband testified that the cost of providing the family or dependent health-insurance coverage available through his employer was $135.59 bi-weekly.
*505 In calculating child support, the trial court determined the husband's gross monthly income to be $8,413, and the wife's gross monthly income to be $2,332.88, for a total combined gross monthly income, as determined by the trial court, of $10,745.88.[1] Thus, the parties' combined gross monthly income exceeds the uppermost limit of the Rule 32, Ala. R. Jud. Admin., schedule for calculating basic child-support obligations. Although the parties' combined gross monthly income exceeded the uppermost limit of the child-support schedule contained in Rule 32, Ala. R. Jud. Admin., the trial court calculated child support by applying the basic child-support obligation found in the child-support schedule for parents with a combined monthly income of $10,000. Additionally, the trial court included the cost of health insurance into its calculation of the husband's child-support obligation, but it did not include the cost of the child's after-school care.
In her appeal, the wife argues, among other things, that the trial court erred in allowing the husband's testimony, which is quoted earlier in this opinion, that his differential pay might decrease in the future. "The trial court's decision to admit the testimony will not be disturbed on appeal except for an abuse of discretion." Attalla Golf & Country Club, Inc. v. Harris 601 So.2d 965, 969 (Ala.1992). In his testimony, the husband indicated that if certain actions occurred as a result of Congressional debate, there was a possibility that his differential pay could be affected. Although we agree with the wife that the husband's testimony on the issue of his differential pay was speculative, we do not necessarily agree that the testimony was inadmissible. Accordingly, we cannot say that the trial court erred in admitting the testimony.
However, the speculative nature of the husband's testimony regarding his differential pay does affect the weight that testimony should be afforded. It is clear that the trial court relied on the husband's testimony regarding his differential pay in determining the husband's gross monthly income because the trial court failed to include any amount of differential pay in determining the husband's gross monthly income. For the purpose of determining child support, "gross income" is defined as
"income from any source, [which] includes, but is not limited to, salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interests, trusts, annuities, capital gains, Social Security benefits, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, prizes, and preexisting periodic alimony."
Rule 32(B)(2)(a), Ala. R. Jud. Admin. Consistent with that definition, this court has held that "the trial court must take into account all sources of income of the parents when computing support obligations." Massey v. Massey, 706 So.2d 1272, 1274 (Ala.Civ.App.1997) (emphasis added). Income such, as the husband's differential pay, "to the extent that such income is sufficiently substantial and continuing[] and . . . can be accurately determined," must be included in determining a party's gross income for the purposes of determining child support. State ex rel. Smith v. Smith, 631 So.2d 252, 255 (Ala. Civ.App.1993). The trial court does not have the discretion to disregard a source *506 of income in determining a parent's gross monthly income for the purposes of determining child support. Massey v. Massey, supra; Rogers v. Sims, 671 So.2d 714, 716 (Ala.Civ.App.1995).
In Simmons v. Simmons, 600 So.2d 305, 306 (Ala.Civ.App.1992), this court reversed a judgment modifying child support when the father had presented evidence indicating that his income would decrease in the future. In that case, the father had presented a memorandum from his employer indicating that, at some point in the future, the employer would no longer offer the opportunity to earn overtime pay. Based on that evidence, the trial court reduced the father's child-support obligation. This court concluded that the modification judgment was "based on a mere supposition that the father's income `may' be decreased at a future date." Simmons v. Simmons, 600 So.2d at 306.
In this case, the record indicates that the husband earned substantial differential pay in the years preceding the hearing in this matter. The husband testified that, assuming certain contingencies occurred, his income from differential pay might decrease in the future. The husband presented no evidence indicating that at the time of the hearing any of those contingencies had occurred or that his income, including differential pay, had in fact decreased.
The husband's differential pay constitutes income that must be included in a determination of his gross income. See Rule 32(B)(2)(a), Ala. R. Jud. Admin.; Massey v. Massey, supra. The husband's testimony that his differential pay might decrease in the future was speculative in nature; that testimony constituted "mere supposition" that his income "might" be reduced in the future. See Simmons v. Simmons, 600 So.2d at 306. We conclude that the trial court's failure to consider the husband's differential pay in determining the husband's gross monthly income for the purpose of calculating child support constituted an abuse of the trial court's discretion. State ex ret. Smith v. Smith, supra. Accordingly, we reverse the trial court's judgment as to child support and remand the case for the trial court to properly determine the husband's gross income and to establish an appropriate award of child support. Stinson v. Stinson, 729 So.2d 864, 866 (Ala.Civ.App.1998) ("Because the trial court did not include the father's bonuses as income in calculating the father's child support obligation, we must reverse the judgment and remand the cause for a recomputation of the amount of child support due . . . when all of the father's income is counted."); State ex rel. Smith v. Smith, supra.
With regard to the issue of child-support, the wife also asserts that the trial court erred in failing to include in its child-support calculations the cost of after-school care for the child. See Rule 32(B)(8), Ala. R. Jud. Admin. ("Child care costs . . . shall be added to the `basic child support obligation.'" (emphasis added)). The wife also argues that the trial court erred in including in its calculation of child support the entire cost of the health-insurance premium the husband pays for dependent or family health-insurance coverage. She contends that only the difference between the cost of dependent coverage and the cost of insuring the husband alone should be included in the determination of the husband's child-support obligation. In making that argument, the wife advocates the reversal of caselaw precedent that has interpreted the child-support guidelines as requiring the inclusion of the total cost of the insurance premium for family or dependent coverage. See, e.g., Marshall v. Marshall, 891 So.2d 883 (Ala.Civ.App. 2004); Fell v. Fell, 869 So.2d 486 (Ala.Civ. *507 App.2003); and Brown v. Brown, 719 So.2d 228 (Ala.Civ.App.1998). For the following reasons, however, we do not reach those issues.
The manner in which the trial court reached its child-support determination in this case is unusual. Although the parties' combined gross monthly income exceeded the uppermost limit of the Rule 32 child-support guidelines schedule, the trial court utilized that schedule as if the parties' combined income did not exceed its limit. As already discussed in this opinion, we are reversing the trial court's judgment as to child support based on its failure to include the husband's differential pay in its determination of his gross income. On remand, when the trial court includes the husband's differential pay in determining the husband's gross income, the parties' combined gross monthly income will exceed the $10,000 uppermost limit of the child-support schedule by a greater amount than originally determined by the trial court.
The Comment to Rule 32 states that "[w]here the combined adjusted gross income exceeds the uppermost limit of the schedule, the amount of child support should not be extrapolated from the figures given in the schedule, but should be left to the discretion of the court." When the parties' combined income exceeds the uppermost limit of the child-support schedule, the determination of a child-support obligation is within the trial court's discretion. Floyd v. Abercrombie, 816 So.2d 1051, 1057 (Ala.Civ.App.2001); Dyas v. Dyas, 683 So.2d 971 (Ala.Civ.App.1995). "[A] trial court's discretion is not unbridled and . . . the amount of child support awarded must relate to the reasonable and necessary needs of the children as well as to the ability of the obligor to pay for those needs." Dyas v. Dyas, 683 So.2d at 973.
In this case, the parties' combined gross monthly income renders the utilization of the child-support schedule inappropriate. See Comment, Rule 32, supra. Therefore, on remand, in determining the husband's child-support obligation, the trial court is to consider the needs of the child and the parents' ability to pay in determining child support. Dyas v. Dyas, supra. The cost of health insurance and after-school care are certainly factors for the trial court to consider in determining an appropriate level of child support even when the child-support schedule does not govern the child-support determination.
With regard to the issue of child support, the wife also contends that the trial court erred in including in its judgment a provision requiring the parties to be equally responsible for the cost of any noncovered medical expenses for the child. The wife argues that the parties' stipulations included a provision requiring the husband to pay 80% of the noncovered medical expenses for the child. The trial court's divorce judgment specifically states that it incorporated the parties' stipulations. Accordingly, the two provisions in the divorce judgment pertaining to noncovered medical expenses conflict. On remand, the trial court is instructed to resolve that conflict. See Hall v. Hall, 895 So.2d 299, 305 (Ala.Civ.App.2004) (reversing a judgment that contained inconsistent provisions for a clarification of the trial court's intent); Shipp v. Shipp, 435 So.2d 1298, 1299 (Ala.Civ.App. 1983) (concluding a provision of a judgment was ambiguous and reversing "because of the uncertainty of the intent" of that provision).
The wife also argues that the trial court erred in awarding the dependency deduction for income-tax purposes to the husband rather than to her. Because we are reversing the judgment as to child support on other grounds and remanding this case *508 for the trial court to recalculate child support, we need not resolve whether the award of the income-tax deduction to the husband was also error. The award of the income-tax dependency deduction is one of the factors the trial court must consider in fashioning a child-support award on remand.
In his cross-appeal of the trial court's divorce judgment, the husband challenges the trial court's award of periodic alimony to the wife. The husband asserts several arguments with regard to the issue of the award of alimony. However, at least two of those arguments are not properly supported by citations to authority, and, therefore, we decline to address them. McLemore v. Fleming, 604 So.2d 353 (Ala. 1992).
The husband properly supported his argument that the trial court improperly considered his retirement benefits as a source of income in ordering him to pay periodic alimony. Section 30-2-51(b), Ala. Code 1975, allows a trial court to consider a spouse's retirement benefits as part of that spouse's estate in fashioning a property division pursuant to a divorce. However, § 30-2-51(b)(1) limits the consideration of those retirement benefits as an asset possibly subject to division to situations in which the parties were married for at least a period of 10 years. This court has held that "the most workable and fair interpretation of § 30-2-51(b) is that the duration of the parties' marriage should be measured by the date of the filing of the complaint for divorce." Smith v. Smith, 836 So.2d 893, 900 (Ala.Civ.App.2002).
In this case, the parties' marriage ceremony occurred in April 1996, approximately nine and a half years before the time the husband filed his complaint seeking a divorce. The parties each asserted that they had been common-law married before their April 5, 1996, marriage ceremony. In order to support her claim for the division of the husband's retirement benefits, the wife attempted to demonstrate that the parties had been common-law married before September 1995 in order to establish that the parties had been married for 10 years at the time the husband filed his September 2005 complaint for a divorce.[2] As previously mentioned, the husband contended that the parties had been common-law married for only a few weeks before their ceremonial marriage.
[T]here are common elements which must be present, either explicitly expressed or implicitly inferred from the circumstances, in order for a common-law marriage to exist. Those elements are: 1) capacity, 2) present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships; and 3) public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation." Boswell v. Boswell, 497 So.2d 479, 480 (Ala. 1986). Neither party in this case presented any evidence regarding the third element, that of public recognition of the purported common-law marriage. We presume that the trial court disregarded the length of any purported common-law marriage between the parties in determining the length of the parties' marriage. Ex parte Atchley, 936 So.2d 513, 516 (Ala. 2006) ("We presume that trial court judges know and follow the law."). Accordingly, at least with regard to this most-recent marriage, the retirement benefits of the parties are not subject to division in this divorce.
*509 The husband insists that in spite of the fact that the parties were not married long enough to implicate the provisions of § 30-2-51, the trial court considered his retirement benefits in awarding periodic alimony to the wife. The husband asserts that the wife argued in her postjudgment motion that his retirement benefits were subject to division, and that, in its postjudgment order, the trial court increased the award of periodic alimony. We conclude, however, that the husband has failed to demonstrate error with regard to this issue.
The husband relies on Smith v. Smith, 866 So.2d 588 (Ala.Civ.App.2003) (Crawley, J., with four judges concurring in the result), this court concluded that a retirement account may not be considered as a source of income from which to pay periodic alimony if the retirement-account holder is not currently receiving benefits from that account. In remanding the case to the trial court to reconsider its alimony award to ensure that that award was consistent with the foregoing, the lead opinion instructed the trial court as follows:
"If the court determines that the wife needs support from the husband and that the husband is able to pay such support from his current income, then it may award the wife alimony. The court may not, however, consider the husband's retirement accounts as sources of income from which to pay periodic alimony."
Smith v. Smith, 866 So.2d at 592-93.
In this case, the record does not indicate that the trial court considered the husband's retirement benefits in modifying the award of periodic alimony to the wife, and the wife made other arguments[3] in support of her contention that the periodic-alimony award should be increased. It is clear that the parties were not married for the requisite number of years to implicate the application of § 30-2-51(b), and the trial court is presumed to know the law. Ex parte Atchley, supra; Carter v. Carter, 666 So.2d 28 (Ala.Civ.App.1995). The trial court could have reconsidered its property division and alimony award in light of the other arguments asserted by the wife.
The issues of property division and alimony must be considered together. "`[A] property division and the [award of] periodic alimony are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either issue.'" Albertson v. Albertson, 678 So.2d 118, 120 (Ala. Civ.App.1995) (quoting Montgomery v. Montgomery, 519 So.2d 525, 526 (Ala.Civ. App.1987)). See also Ex parte Foley, 864 So.2d 1094, 1097 (Ala.2003); Pate v. Pate, 849 So.2d 972, 976 (Ala.Civ.App.2002); and Parrish v. Parrish, 617 So.2d 1036 (Ala. Civ.App.1993). The husband has made no argument to this court with regard to the property division and alimony award as a whole. In other words, the husband has not attempted to demonstrate that the only manner in which the trial court could have equitably awarded the wife additional periodic alimony was if it had considered the husband's retirement benefits. The husband has failed to demonstrate error with regard to this issue.
The other issue the husband properly raises in his brief on appeal pertains to his assertion that the award of an attorney fee to the wife's attorney was *510 excessive. "It is well settled that the award of an attorney fee in a divorce action is a matter within the sound discretion of the trial court." Walls v. Walls, 860 So.2d 352, 359 (Ala.Civ.App.2003).
"In arriving at the value of the legal services the trial court may properly consider the following: (1) the nature and value of the subject matter of employment; (2) the learning, skill and labor necessary to the proper discharge of that employment; (3) the time consumed on the matter in dispute; (4) the professional ability, experience and reputation of the party performing the services; (5) the weight of his responsibility; (6) the measure of success achieved; (7) any reasonable expenses incurred in the representation of a client; and (8) the fee customarily charged in the locality for similar legal services. ABA Code of Professional Responsibility, DR 2-106(B) (1972). Moreover, the trial court in determining a reasonable attorney's fee may, along with the opinion evidence of experts on the subject of fees, rely on its own knowledge and experience as to the value of the services performed. Burgess v. Burgess, 54 Ala.App. 396, 309 So.2d 107 (1974). Likewise, the earning capacity of the parties may also be deemed a matter for consideration in establishing the amount of money an attorney is entitled to for his services. Burgess v. Burgess, supra.

"As a general rule the amount of [an] attorney's fee to be awarded always rests within the sound discretion of the trial court and the court's judgment as to the amount of the attorney's fee will not be reversed by this court unless it is clearly shown that the trial court abused its discretion. Burgess v. Burgess, supra."
Rosser v. Rosser, 355 So.2d 717, 721 (Ala. Civ.App.1977).
In this case, the wife's attorney submitted an affidavit detailing his activity on behalf of the wife; that affidavit indicated that until the date of trial, the attorney had worked on the case for 28.45 hours at a rate of $200 per hour, which results in a total fee, without considering the time spent at the hearing, of $5,690. In addition, the attorney presented evidence indicating that he had expended approximately $400 in obtaining a copy of the husband's deposition. Although it is clear that the hearing in this matter was conducted in less than one day, the record does not indicate the exact length of the hearing; in his response to the wife's postjudgment motion, and again in his brief on appeal, the husband asserted that the hearing lasted "only a matter of hours." In its judgment, the trial court awarded the wife's attorney an attorney fee in the amount of $5,000.
In arguing that the attorney-fee award was excessive, the husband contends that the parties entered into a partial settlement agreement with regard to some issues and that the wife needlessly complicated the litigation with her claim seeking an award of his retirement benefits based on her common-law marriage argument. However, the fact that a party does not prevail on a claim or argument does not necessarily render it meritless. Further, the trial court had before it the attorney's affidavit setting forth the explanations of the legal work performed on behalf of the wife. The trial court did not award the attorney the full amount of the fee requested. "The trial court is given much discretion in determining an appropriate award of attorney fees because of its `own knowledge and experience as to the value of the legal services performed.'" Creel v. Creel, 871 So.2d 827, 830 (Ala.Civ.App.2002)(quoting Hammond v. Hammond 500 So.2d 27, 29 (Ala.Civ.App. *511 1986)); Rosser v. Rosser, supra. Given the discretion afforded the trial court and the facts of this case, we cannot say that the trial court erred in reaching its attorney-fee award.
We reverse that part of the trial court's judgment pertaining to child support, and, on remand, the trial court is instructed to enter a child-support determination consistent with the principles set forth in this opinion. The judgment is affirmed with regard to the issues raised in the husband's cross-appeal.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
PITTMAN and THOMAS, JJ., concur.
MOORE, J., concurs in the result, without writing.
BRYAN, J., dissents, without writing.
NOTES
[1]  It is not clear who prepared the CS-42 child-support guidelines form contained in the record on appeal. However, because it is clear that the trial court used the amount indicated on that form as its child-support determination, we refer to the form as being completed by the trial court.
[2]  The wife makes no argument that the length of the parties' first marriage should be included in determining whether she can assert a claim under § 30-2-51(b), and this court does not address that issue.
[3]  The wife also contended that the initial award of alimony demonstrated that the trial court agreed with her that the husband could pay, and that she needed, periodic alimony; that the amount of alimony awarded was insufficient to assist her in meeting her monthly expenses; and that the husband had and could increase his ability to pay alimony by decreasing the amount of his monthly voluntary contributions to his retirement account.


                                                                        United States Court of Appeals
                                                                                Fifth Circuit
                                                                              F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                                                                               October 7, 2005
                               FOR THE FIFTH CIRCUIT                       Charles R. Fulbruge III
                                                                                Clerk

                                     No. 05-50680
                                   Summary Calendar

      JOSEPH M. MEDRANO,

                                                       Plaintiff-Appellant,

                                          versus

      JO ANN BARNHART, COMMISSIONER
      OF SOCIAL SECURITY,

                                                       Defendant-Appellee.

                   Appeal from the United States District Court for
                            the Western District of Texas
                              (USDC No. 5:04-CV-75)
          _________________________________________________________

Before REAVLEY, JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

      Joseph M. Medrano appeals the denial by the district court of his request for

attorney’s fees and expenses under the Equal Access to Justice Act (EAJA), 28

U.S.C. § 2412(d). We affirm for these reasons:

      *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
1.   Because there was extensive evidence in the record supporting both sides of

     the dispute and the evidence did not conclusively weigh in favor of either

     side, the district court did not abuse its discretion in determining that the

     government’s position was substantially justified. Pierce v. Underwood, 487

     U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988) (the position

     of the government will be deemed to be substantially justified “if there is a

     ‘genuine dispute’ ... or ‘if reasonable people could differ as to [the

     appropriateness of the contested action]’”).

2.   The fact that the district court ultimately remanded the case back to the

     agency to further develop the factual record does not lead to a finding of no

     substantial justification. Id. at 566 n.2 (stating that “a position can be

     justified even though it is not correct”).

AFFIRMED.


536 F.Supp. 658 (1982)
The CONTINENTAL GROUP, INC., Plaintiff,
v.
Kermit JUSTICE, Thor S. Johnson, and Joseph Cashman, Defendants.
Civ. A. No. 81-455.
United States District Court, D. Delaware.
April 14, 1982.
*659 James F. Waehler of Tunnell & Raysor, Georgetown, Del., David F. Albright, Richard M. Kremen, and Gary G. Goldberger of Semmes, Bowen & Semmes, Baltimore, Md., for plaintiff.
Victor Battaglia and Wayne Marvel of Biggs & Battaglia, Wilmington, Del., for defendants Justice and Johnson.
Lawrence M. Sullivan, Wilmington, Del., for defendant Cashman.

MEMORANDUM OPINION
LATCHUM, Chief Judge.
This is a civil action brought by plaintiff, The Continental Group Inc. ("Continental"), seeking to recover $218,766.16 for goods sold and delivered by Continental to Winner Chemicals Inc. ("Winner") between December 4, 1978 and May 22, 1979. Continental *660 alleges that the named defendants Kermit Justice, Joseph Cashman and Thor S. Johnson executed agreements whereby each guaranteed payment of all sums due to Continental by Winner together with interest. Continental further alleges that both Winner and the defendants have failed to pay Continental the amount due. Continental seeks, in this action, to recover from the named defendants, pursuant to the guaranty agreements, the amount due from Winner. (Docket Item ["D.I."] 1, ¶¶ 2, 3 & 4.)
All of the defendants deny liability. Justice and Johnson also advance three affirmative defenses and a counterclaim. (D.I. 6.) In the first affirmative defense, Justice and Johnson assert that Winner does not owe Continental for the goods sold and delivered to Winner because Continental failed to supply a suitable and non-defective product to Winner and that such failure amounts to a total or partial failure of consideration. (D.I. 6, ¶ 5.) In the second affirmative defense, Justice and Johnson contend that they are discharged from their obligations under the guaranty agreements because Continental supplied defective products to Winner, causing Winner to become insolvent. (D.I. 6, ¶ 6.) Justice and Johnson, in the third affirmative defense, assert that they are discharged from their obligations under the guaranty agreements because Continental wrongfully refused to undertake the defense of Winner in Ruffo v. Terryville Supermarkets, and wrongfully refused to provide products liability insurance coverage to Winner. Justice and Johnson allege that these wrongful refusals caused Winner to become insolvent. (D.I. 6, ¶ 7.) In their counterclaim, Justice and Johnson seek to recover $1,500,000 for the loss of their interest in Winner caused by Continental's defective products, wrongful refusal to defend, and to provide products liability insurance to Winner. (D.I. 6, ¶¶ 8 & 9.)
Continental has moved to dismiss the counterclaim of Justice and Johnson, pursuant to Rule 12(b)(6), F.R.Civ.P., for failure to state a claim upon which relief can be granted on the ground that Justice and Johnson do not have standing to assert their counterclaim. (D.I. 15.) Justice and Johnson, pursuant to Rule 37(a)(2), F.R. Civ.P., have also moved for an order requiring Continental to answer defendants' Interrogatories, Request for Production of Documents, and Request for Admissions. (D.I. 18.)

I. Justice and Johnson's Counterclaim

Justice and Johnson's counterclaim alleges that Continental breached its obligations to defendant guarantors by (1) providing defective products to Winner, (2) wrongfully refusing to defend Winner in any products liability action based on defects in Continental's products, and (3) wrongfully refusing to extend plaintiff's products liability insurance coverage to Winner. Continental argues that Justice and Johnson, as shareholders of Winner, lack standing to assert Winner's alleged claims against Continental. It contends that the claims asserted in the counterclaim belong to Winner, the corporation, and not to Justice and Johnson, its shareholders.
The Court agrees with Continental that Justice and Johnson, as shareholders, may not recover individually against Continental for acts allegedly causing injury to Winner. A shareholder has no personal or individual right of action against a third party for acts causing injury to a corporation. As one commentator has explained:
The corporation and it alone may sue ... to recover damages for injuries done to it .... So a stockholder has no capacity to sue or to maintain [a] counterclaim ... as an individual on a derivative claim, even though he is a sole or principal stockholder of the corporation.
1 W. Fletcher, Cyclopedia of the Law of Private Corporations § 36 at 149 (Wolf rev. 1974). Further, "when an injury to corporate stock falls equally upon all stockholders, then an individual stockholder may not recover for the injury to his stock alone, but must seek recovery derivatively on behalf of the corporation." 13 Fletcher § 5913. Each of the injuries alleged in Justice and *661 Johnson's counterclaim are injuries inflicted upon Winner as a corporation. Justice and Johnson have alleged no facts showing that the issues raised by their counterclaim arises out of an injury separate from harms allegedly done to the corporation. Therefore, Justice and Johnson have no standing to assert these claims as shareholders. See generally Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727, 732 (C.A. 3, 1970); McDaniel v. Painter, 418 F.2d 545 (C.A. 10, 1969); Bokat v. Getty Oil Co., 262 A.2d 246 (Del. 1970); 13 Fletcher, Corporations (1980 Revised Vol.) §§ 5911, 5913.
Justice and Johnson, however, argue that they assert their counterclaim as guarantors and, accordingly, are entitled to recover the independent claims of their principal, Winner. Generally, a guarantor, when sued by the principal's creditor pursuant to a guaranty agreement, cannot rely on an independent cause of action existing in favor of the principal against the creditor as a defense or a counterclaim. "It is for the principal to determine what use he will make thereof, and the [guarantor] has no control over him in this respect." Elliot v. Brady, 192 N.Y. 221, 85 N.E. 69, 71 (1908). This rule was designed to protect the underlying claims of the principal and to minimize litigation among the parties. See Restatement of Security § 133 and Comment on subsection (2) at 362-63 (1941).
Despite the general rule which prohibits the guarantor from asserting the principal's claims, courts have recognized three exceptions. A guarantor may assert the independent claim of the principal to set-off the creditor's claim against the guarantor where (1) the surety has taken an assignment of the claim or the principal has consented to the surety's use of the claim, (2) both principal and surety are joined as defendants, or (3) the principal is insolvent. See Restatement of Security § 133(2) at 360 (1941.) See also Arctic Contractors, Inc. v. State of Alaska, 573 P.2d 1385 (Alaska 1978). Justice and Johnson rely upon two of these exceptions. They assert (1) that Winner has consented to the defendants' use of their claim against Continental, and (2) that Winner is insolvent. Thus, Justice and Johnson argue that they may assert Winner's claim against Continental.
Justice and Johnson first contend that Winner has consented to the use of its claims against Continental. They rely on a letter dated November 2, 1981, in which William Poisez, president of Winner, notified the defendants that Winner did not object "to the utilization of any defense" by the defendants which Winner "may have against Continental." (D.I. 17, Exhibit A.) This letter does not grant consent to the defendants to assert Winner's claims against Continental because Poisez, as president, did not have the authority to assign or transfer those claims. This is so because Winner commenced voluntary bankruptcy proceedings on August 7, 1980, more than a year before Poisez' letter.[1] Section 541(e) of 11 U.S.C. specifically provides that the bankrupt estate will have the benefit of any defense available to the debtor and that a waiver of any "defenses by the debtor after the commencement of the case does not bind the estate." Thus, whatever claim Winner may have against Continental is an asset of the bankrupt estate and could not be transferred or assigned by Poisez' letter. The "consent exception," therefore, is not available to Justice and Johnson.
Secondly, Justice and Johnson contend that they may assert Winner's independent claims against Continental because Winner is insolvent. The Court agrees, for it is well established that when the principal is insolvent, the guarantor may set-off the principal's claims against the creditor. See In re Eastern Freight Ways, Inc., 577 F.2d 175, 180 (C.A. 2, 1978); Saxis Steamship Co. v. Multifacs International Traders, Inc., 375 F.2d 577, 583 n.8 *662 (C.A. 2, 1967); In re Yale Express System, Inc., 362 F.2d 111, 114 (C.A. 2, 1966); Johnson v. Morley Construction Co., 98 F.2d 781, 789-90 (C.A. 2), cert. denied, 305 U.S. 651, 59 S.Ct. 244, 43 L.Ed. 421 (1938); Clark Car Co. v. Clark, 48 F.2d 169, 170 (C.A. 3, 1931); Arctic Contractors, Inc. v. State of Alaska, 573 P.2d 1385, 1386-87 (Alaska 1978). It would be inequitable to deprive the guarantor of what may be a perfectly good set-off between the principal and creditor when the guarantor would have no or little recourse against the principal. See Clark, 48 F.2d at 170. Judge L. Hand explained the rationale in the Morley case:
If the creditor then recovers from the surety, the surety has no recourse over against the principal, but must bear the loss except for such dividends as he may get in the insolvency proceedings. Yet having recovered from the surety and realized upon his claim, the creditor is without set-off when sued on the counterclaim by the principal's trustee or receiver, and the recovery goes to swell the estate. Had the creditor not sued the surety, he could, and of course would, have used the claim as a set-off against the counterclaim. Thus, the upshot of denying the surety a right to assert the counterclaim is to enhance the principal's estate at the expense of the surety, which is contrary to the fundamental relation between the two. The truth is that after insolvency the counterclaim becomes the creditor's security for his own claim, a means by which it can be paid dollar for dollar through his right of set-off. However, it is only after the surety pays the creditor that he is subrogated to all the creditor's securities, and that would be a condition here, except that the surety cannot pay the debt without losing the security, for it consists only of the creditor's power to defeat the counterclaim by using his claim to cancel it. Therefore to exact of the surety the normal condition of paying the debt, would be to destroy the security, and it follows that he must be allowed to set it up himself.
98 F.2d at 790.
Thus, Justice and Johnson may use as a set-off those claims alleged in the counterclaim. Any recovery on these claims, however, is limited to the amount of set-off; they are not entitled to recover affirmatively. After the creditor's claim against the guarantor has been completely set-off, there is no longer the danger that the principal's estate will be enhanced at the expense of the guarantor because the guarantor will not have a claim against the principal's estate; therefore, those equitable considerations which allow a guarantor to use a principal's claim as a set-off no longer exist. At this point, it is the principal, or the trustee in bankruptcy that should decide to assert the claim against the creditor.[2]
In sum, Justice and Johnson, as guarantors, not as shareholders, may assert Winner's claims against Continental. Nevertheless, they may not seek an affirmative recovery. Accordingly, Justice and Johnson will be granted leave to amend their counterclaim to reflect this ruling.

II. Justice and Johnson's Rule 37(a)(2) Motion

Justice and Johnson have filed Interrogatories, Request for Production of Documents, and Request for Admission directing Continental to provide information, documents, and admissions relating to Justice and Johnson's affirmative defenses and counterclaim. Continental, responding to these discovery requests, objected to most of the discovery requests on the grounds that the materials sought are not relevant to the subject matter of the litigation. Further, in its memorandum in opposition to the defendants' Rule 37(a)(2) motion, Continental has objected on the grounds that the information and documents sought *663 are protected by the work-product exclusion (Rule 26(b)(3)) and the attorney-client privilege.
Specifically, Continental objects to Justice and Johnson's Interrogatories Nos. 1, 4, 5 and 6, which seek the following information: (1) the amount of money Continental paid to Ruffo in settlement of the products liability action; (4) the names, reasons and writings with respect to the decision to extend products liability insurance; (5) the names, reasons and writings with respect to the decision to refuse to defend Winner in the Ruffo litigation; and (6) the date and manner by which Continental learned that it would be necessary for Winner to obtain a FMHA loan or face insolvency proceedings. (D.I. 7.) Continental also objected to Justice and Johnson's Request for Production of Documents Nos. 1, 2, and 3, which seek the following documents: (1) a copy of the insurance contract between Continental and its products liability insurer; (2) all writings concerning the extension of Continental's products liability insurance coverage including those writings relating to Continental's refusal to provide such coverage; (3) all writings concerning Continental's undertaking the defense of Winner in a products liability action based on defects in Continental's products, including those writings relating to plaintiff's refusal to undertake such defense. (D.I. 8.) Finally, Continental objected to Justice and Johnson's Request for Admission which seeks the following admissions: (1) Some of the products manufactured by Continental and delivered to Winner were defective; (2) One of the cans delivered to Winner by Continental caused Ruffo to suffer severe injuries; (3) Continental promised Winner that Winner would be protected from products liability insurance coverage; (4) Continental promised Winner that Continental would defend Winner in any products liability action involving the plaintiff's products; (5) Continental assured Winner that Continental would undertake the defense of Winner in the Ruffo litigation if it were established that the can involved a Continental product; (6) Continental told Winner, on August 10, 1979, that Continental would not defend Winner in the Ruffo litigation; (7) Continental told Winner, on August 10, 1979, that Continental's products liability insurance did not cover claims against Winner; (8) The type of can which injured Ruffo was produced according to specifications; and (9) Continental knew that its refusal to provide products liability insurance coverage and its refusal to defend Winner in Ruffo would cause Winner to be unable to obtain a FMHA loan and would cause Winner to become insolvent. (D.I. 9.)
Continental first objects to the discovery requests on the grounds that the information sought, and the documents and admissions requested are not relevant to the subject matter of the litigation. Rule 26(b)(1), F.R.Civ.P., provides that a party "may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter." The requirement of relevancy is construed liberally and discovery should ordinarily be allowed under relevancy "unless it is clear that the information sought can have no possible bearing upon the subject matter of the action." La Chemise Lacoste v. Alligator Co., 60 F.R.D. 164, 171 (D.Del. 1973). Continental argues that the material sought by Justice and Johnson is not relevant because it relates to issues in the affirmative defenses and counterclaim which Justice and Johnson do not have standing to raise. The Court, however, has held, supra, that the defendants, as guarantors, have standing to assert Winner's claims against Continental and may use such claims as a set-off. Therefore, Continental has not shown to the Court that the information Justice and Johnson seek will have no possible bearing on Justice and Johnson's affirmative defenses and counterclaim, if amended. Thus, the Court finds that Justice and Johnson's discovery requests are relevant.
Continental also objects, in its brief and at oral argument, to the discovery requests on the ground that the information sought is privileged. It claims that "the information requested concerning the Ruffo ... litigation involves attorneys' work product and trial preparation materials, and *664 is protected from discovery in the absence of a showing by Justice and Johnson of substantial need of the materials and undue hardship if the materials are not produced." Continental further claims that "no allegation or showing of substantial need or undue hardship has been made by Justice and Johnson with respect to information requested concerning the Ruffo case." Continental thus contends that Justice and Johnson have failed to show the Court that they are entitled to the privileged information and documents.
The Court finds that Justice and Johnson are not required to show a substantial need for the materials or undue hardship to obtain them because Continental has failed to assert the privileges properly. A bare allegation that information and documents are protected from discovery by the attorney-client privilege is insufficient without making more information available. International Paper Co. v. Fiberboard Corp., 63 F.R.D. 88, 93 (D.Del.1974). A party may assert the privilege only if he demonstrates:
(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for purposes of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.
Id. at 93, quoting United States v. United Shoe Machinery, 89 F.Supp. 357, 358-59 (D.Mass.1950). Further,
[s]uch a showing is usually by affidavit in which the documents are adequately listed and described showing (a) the identity and corporate position of the person or persons interviewed or supplying the information, (b) the place, approximate date, and manner of recording or otherwise preparing the instrument, (c) the names of the person or persons (other than stenographical or clerical assistants) participating in the interview and preparation of the document, and (d) the name and corporate position, if any, of each person to whom the contents of the document have heretofore been communicated by copy, exhibition, reading or substantial summarization. Manual for Complex Litigation, pp. 192-93.
Id. at 93-94. It is quite clear that Continental has not yet made a proper showing that it is entitled to the attorney-client or work product privilege. Continental merely asserted the privileges arguing that Justice and Johnson have failed to show a substantial need or undue hardship. If Continental wishes to assert these privileges to the information and documents which Justice and Johnson seek, it should be done in accordance with the above criteria.
An order will be entered in accordance with this memorandum opinion.
NOTES
[1]  The Court has taken judicial notice of records of the United States Bankruptcy Court for the District of New Jersey showing that Winner filed a voluntary Chapter 11 petition in bankruptcy on August 7, 1980, No. 80-03137, and this petition was converted to a Chapter 7 proceeding on September 24, 1981, pursuant to Court order. Rule 201, F.R.Evid.; see United States v. Verlinsky, 459 F.2d 1085, 1087 (C.A. 5, 1972).
[2]  Continental also claims that Winner is not insolvent, and argues that the defendants may not use the "insolvent exception" to the general rule which prohibits guarantors from asserting the principal's claims. Justice and Johnson, however, allege in their answer that Winner is insolvent and thus must be accepted as true on a motion to dismiss. If the defendants amend, they should reallege this in their counterclaim as well.


                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 05-2479
520 SOUTH MICHIGAN AVENUE ASSOCIATES, LTD.,
doing business as The Congress Plaza Hotel
& Convention Center,
                                     Plaintiff-Appellant,
                          v.

RICHARD A. DEVINE, State’s Attorney of Cook County,
Illinois; LISA MADIGAN, Attorney General of Illinois;
and ART LUDWIG, Director of the Illinois
Department of Labor,
                                    Defendants-Appellees.
                      ____________
       Appeal from the United States District Court for the
         Northern District of Illinois, Eastern Division.
         No. 04 C 6400—Robert W. Gettleman, Judge.
                         ____________
  ARGUED DECEMBER 1, 2005—DECIDED JANUARY 10, 2006
                   ____________

  Before EASTERBROOK, RIPPLE, and KANNE, Circuit Judges.
  EASTERBROOK, Circuit Judge. For many years it has been
a crime in Illinois to employ a “professional strikebreaker.”
820 ILCS 30/2. (A “professional strikebreaker” is anyone
who repeatedly works during strikes. 820 ILCS 30/1(c). One
need not be a goon to fit the definition.) In 2003 the state
extended the prohibition to acquisition of strike-breaking
labor from any “day or professional labor service agency”.
2003 Ill. Laws 375. When that amendment to the Employ-
2                                                No. 05-2479

ment of Strikebreakers Act took effect on January 1, 2004,
workers of the Congress Hotel in Chicago were on strike,
and the Hotel was operating with replacement workers.
Soon the Illinois Department of Labor asked the Hotel for
information about the origins of its labor force. The civil
investigative demand invoked the Day and Temporary
Labor Services Act, 820 ILCS 175/1 et seq., which has its
own administrative apparatus. But as that Act also sup-
plies the definition of “day and temporary labor service
agency” for purposes of the Strikebreakers Act, see 820
ILCS 30/1(e), the Hotel concluded that it was in the
state’s cross-hairs and filed this suit under 42 U.S.C. §1983,
seeking a declaratory judgment that the Strikebreakers Act
is preempted. See Golden State Transit Corp. v. Los An-
geles, 493 U.S. 103 (1989); Machinists v. Wisconsin Employ-
ment Relations Comm’n, 427 U.S. 132 (1976). The district
court dismissed the complaint for want of jurisdiction,
holding that the Hotel’s inability to demonstrate that
criminal prosecution is “imminent” means that there is no
case or controversy under Article III of the Constitution.
520 South Michigan Avenue Associates, Ltd. v. Devine, 366
F. Supp. 2d 683 (N.D. Ill. 2005).
  The district court did not explain the provenance of this
“imminence” requirement. Courts occasionally say that
one or another plaintiff has standing because a threat
of prosecution is imminent, but that is a far cry from
holding that only an imminent criminal prosecution
suffices. When the Supreme Court uses the word “immi-
nent” in describing the requisites of standing, it says that
the injury must be “actual or imminent, not ‘conjectural’ or
‘hypothetical.’ ” Whitmore v. Arkansas, 495 U.S. 149, 155
(1990), quoting from Los Angeles v. Lyons, 461 U.S. 95,
102 (1983). Standing depends on the probability of harm,
not its temporal proximity. When injury has occurred or
is likely in the future, the fact that state litigation may
be deferred does not prevent federal litigation now. The
No. 05-2479                                                 3

Hotel’s use of replacement workers that may have been
referred by employment agencies is enough to show that
a genuine controversy exists, because it is caught be-
tween the need to comply with the state law and the
desire to reduce the cost of its operations. See Babbitt v.
United Farm Workers, 442 U.S. 289 (1979).
   Courts frequently engage in pre-enforcement review
based on the potential cost that compliance (or bearing
a penalty) creates. Think of Pierce v. Society of Sisters, 268
U.S. 510 (1925), in which a private school obtained review
of a state law that required all youngsters to attend pub-
lic schools, even though the law would not take effect for
two years. Prosecution was hardly “imminent,” yet the
Court held that the school had standing to contest the
statute’s validity. Likewise the Court held in Abbott
Laboratories v. Gardner, 387 U.S. 136 (1967), that drug
manufacturers could obtain judicial review of a regula-
tion whose effective date lay in the future. Costs that the
manufacturers would incur in preparing to comply (or the
legal risks they would incur in not doing so) supplied
standing, the Court held, and the case was ripe because the
regulation’s validity could be assessed without knowing the
precise means and expense of compliance. See also, e.g.,
Duke Power Co. v. Carolina Environmental Study Group,
Inc., 438 U.S. 59 (1978); American Booksellers Ass’n v.
Hudnut, 771 F.2d 323, 327 (7th Cir. 1985), aff’d mem., 475
U.S. 1001 (1986); Daniel A. Farber, Uncertainty as a Basis
for Standing, 33 Hofstra L. Rev. 1123 (2005). No one was at
imminent risk of prosecution in Buckley v. Valeo, 424 U.S.
1 (1976), or most of the later suits contesting campaign-
finance regulation. The catalog of decisions that conduct
review before a rule has gone into force, and hence long
before prosecution is “imminent,” is extensive.
 If a criminal prosecution of the Hotel really were im-
minent, then a federal court might well abstain on comity
4                                                No. 05-2479

grounds—for the prosecution would offer the Hotel an
opportunity to present its legal arguments, and states
are entitled to insist that their criminal courts resolve
the entire dispute. See, e.g., Younger v. Harris, 401 U.S.
37 (1971). It is precisely because the State’s Attorney
does not promise to offer the Hotel a prompt opportunity to
resolve the dispute in state court that it is entitled to turn
to a federal tribunal. Otherwise the risk of prosecution, and
the costs of complying with or transacting around the
Strikebreakers Act, will continue. As the Supreme Court
observed in Babbitt, “[w]hen the plaintiff has alleged an
intention to engage in a course of conduct arguably [pro-
tected by federal law], but proscribed by a statute, and
there exists a credible threat of prosecution thereunder, he
should not be required to await a criminal prosecution as
the sole means of seeking relief.” 442 U.S. at 298.
  Defendants offer an alternative ground of affirmance: that
the 2004 version of the Strikebreakers Act already has been
held to be preempted. See Caterpillar Inc. v. Lyons, 318 F.
Supp. 2d 703 (C.D. Ill. 2004). If defendants—the State’s
Attorney of Cook County, the Attorney General of Illinois,
and the Director of the Illinois Department of Labor, which
administers the Day and Temporary Labor Services
Act—had acquiesced in Caterpillar and represented that
they would not prosecute the Hotel under the Strikebreak-
ers Act, then there would indeed be no live controversy,
because there would not be a “credible threat of prosecu-
tion”. See Wisconsin Right to Life, Inc. v. Schober, 366 F.3d
485 (7th Cir. 2004). Cf. Kendall-Jackson Winery, Ltd. v.
Branson, 212 F.3d 995 (7th Cir. 2000). State officials made
exactly that promise in Wisconsin Right to Life, and we held
that it demonstrated the absence of any real dispute. But
our defendants did not make such a commitment in their
briefs, declined an opportunity to do so at oral argument,
and adhered to that position in a post-argument letter.
No. 05-2479                                                 5

   Decisions of district courts bind the litigants but have
no authoritative effect elsewhere in the circuit (or even
in the same district). See, e.g., Midlock v. Apple Vacations
West, Inc., 406 F.3d 453, 457-58 (7th Cir. 2005); Colby
v. J.C. Penney Co., 811 F.2d 1119, 1124 (7th Cir. 1987). The
judgment in Caterpillar was not appealed, so it will not lead
to a decision with circuit-wide effect. None of the three
defendants in this litigation was a party to Caterpillar, and
none contends that as a matter of Illinois law a judgment
adverse to one State’s Attorney would bind any other.
States Attorneys operate within single counties; they are
state officials but are not “the” state, and each may operate
independently, which implies that none is bound by a
judgment against another. See People v. Gray, 214 Ill. 2d 1,
10, 823 N.E.2d 555, 560 (2005) (a defendant’s agreement
with one state’s attorney does not bind any other). Cf.
Staten v. Neal, 880 F.2d 962 (7th Cir. 1989). The Attorney
General does speak for the State of Illinois but cannot direct
the prosecution activities of the 102 States’ Attorneys. See
People v. Buffalo Confectionary Co., 78 Ill. 2d 531, 535-38,
401 N.E.2d 546, 549-51 (1980).
  Federal officials are not bound by district judges’ (or even
circuits’) legal decisions; they must comply with the judg-
ment but need not apply the ruling more widely. As the
Court explained in United States v. Mendoza, 464 U.S. 154
(1984), any other approach would prevent multiple circuits
from considering a question and thus impede
the development of federal law. Illinois appears to take
the same view for domestic purposes. Although People v.
Williams, 2005 Ill. App. LEXIS 1099 (2d Dist. Nov. 3, 2005),
could be understood as holding that a judgment against one
State’s Attorney binds others, it is hard to reconcile with
decisions such as Gray.
  Perhaps more to the point, Caterpillar is a federal
judgment under federal substantive law, so its preclusive
effect is determined by federal rules. See Semtek Interna-
6                                               No. 05-2479

tional, Inc. v. Lockheed Martin Corp., 531 U.S. 497, 507
(2001); Stoll v. Gottlieb, 305 U.S. 165, 171-72 (1938). The
federal rule is that judgments do not block public officials
from seeking reconsideration of legal questions in future
suits. So Caterpillar lacks preclusive effect, and it has not
persuaded our defendants to surrender. If Caterpillar
had been a decision of the Supreme Court, then its authori-
tative force would obviate the need to worry about the scope
of preclusion. The Hotel would not require addi-
tional protection. See Lawson v. Hill, 368 F.3d 955 (7th Cir.
2004) (an injunction against prosecution under a state flag-
desecration statute that is obviously unconstitutional, given
United States v. Eichman, 496 U.S. 310 (1990), and Texas
v. Johnson, 491 U.S. 397 (1989), would be both unnecessary
and offensive to the state’s dignity). A decision of a single
district judge does not give the Hotel that kind of shelter,
and the defendants have declined to provide it voluntarily.
The Hotel therefore is entitled to decision on the merits.
  Resolution should not be difficult. Machinists holds that
states are forbidden to regulate on any subject that fed-
eral labor law reserves for the play of economic forces. See
also Building & Construction Trades Council v. Associated
Builders & Contractors of Massachusetts, 507 U.S. 218, 227-
28 (1993); Wisconsin Department of Industry v. Gould Inc.,
475 U.S. 282 (1986). Under federal labor law, just
as workers are free to withhold their labor, so employers are
free to hire either temporary (see NLRB v. Mackay Radio &
Telegraph Co., 304 U.S. 333, 345 (1938)) or permanent
(NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967))
replacements—though employers can’t give them super-
seniority, compare NLRB v. Erie Resistor Corp., 373 U.S.
221 (1963), with Trans World Airlines, Inc. v. Flight
Attendants, 489 U.S. 426 (1989). The state’s effort to make
the hiring of replacement workers a crime is so starkly
incompatible with federal labor law, which prevails under
the Constitution’s Supremacy Clause, that we do not
No. 05-2479                                                 7

understand how a responsible state legislature could pass,
a responsible Governor sign, or any responsible state official
contemplate enforcing, such legislation. States are entitled
to protect replacement workers against fraud, see Belknap,
Inc. v. Hale, 463 U.S. 491 (1983), but the Strikebreakers Act
does not do this; it is written as a substantive limit on the
employer’s use of a particular economic tactic. Unless there
is some way to support this law that state officials have yet
to suggest—either in Caterpillar or in this litigation—a de-
claratory judgment should be issued with dispatch.
  The judgment is reversed, and the case is remanded
for decision on the merits.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit

                   USCA-02-C-0072—1-10-06


           Case: 12-10779   Date Filed: 09/05/2012   Page: 1 of 8

                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 12-10779
                        Non-Argument Calendar
                      ________________________

                        Agency No. A095-896-571

OLEG IVANOVICH ILYUKHIN,
INNA ALEKSANDROVNA ILYUKHIN,
VYACHESLAV OLEGOVICH ILYUKHIN,

                                                             Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                             Respondent.

                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                       ________________________

                            (September 5, 2012)

Before HULL, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
              Case: 12-10779    Date Filed: 09/05/2012   Page: 2 of 8

      Oleg Ivanovich Ilyukhin, along with derivative petitioners Inna

Aleksandrovna Ilyukhin and Vyacheslav Ilyukhin, seek review of the Board of

Immigration Appeals’s (BIA’s) final order dismissing their appeal of the

Immigration Judge’s (IJ’s) denial of withholding of removal. After review, we

deny the Ilyukhins’ petition.

                                           I.

      Oleg and Inna Ilyukhin, natives and citizens of Russia, entered the United

States in February 1999 and their son, Vyacheslav, entered in July 2001. All three

overstayed their visas. In June 2002, Oleg filed an application on behalf of

himself and his family seeking asylum, withholding of removal, and relief under

the United Nations Convention Against Torture (CAT). In the application, Oleg

contended that his family suffered persecution in Russia based on their

membership in a particular social group.

      At a hearing before an IJ in 2006, the Ilyukhins conceded removability and

withdrew their application for asylum. At a second hearing in 2010, Oleg Ilyukhin

testified about his reasons for leaving Russia. According to Oleg, he and his

brother started a business in 1989 that became successful. In 1990, he began

receiving menacing phone calls from “people who wanted to enrich themselves on

our account.” Oleg testified that these people were likely government workers

                                           2
              Case: 12-10779      Date Filed: 09/05/2012   Page: 3 of 8

because of their knowledge of the business’s success. Oleg explained that, in

1992, his brother was beaten and killed at the business site. That same year,

Oleg’s cousin and business partner was found dead in his home.

      Oleg testified that he left the business at that time but started a new business

in 1996. According to Oleg, “the intimidation started again” when his new

business became successful. Oleg testified that, in 1997, four men beat him and

his business partner at their office and demanded that they pay money. Oleg

testified that he paid the money, but that he soon faced increased demands for

payment and, in 1998, was again attacked. Although Oleg testified that this

beating resulted in broken ribs, Inna testified only that he sustained a cut to his

eyebrow.

      Oleg stated that, when he refused to pay any more bribes, he and Inna left

Russia. He testified that people attempted to burn his house after he moved. And

he testified that, in 2005, his daughter was raped in Russia by men who said, “say

hello to your father.” He testified that his mother, who remained in Russia, told

him people called her regularly asking about his whereabouts.

      Oleg contended that these events amounted to persecution on account of his

membership in a particular social group, that is, “entrepreneurs and businessmen

of Russia” who “refuse to give in to government’s demands for bribes.” He also

                                           3
              Case: 12-10779     Date Filed: 09/05/2012    Page: 4 of 8

contended for the first time during the hearing that he was persecuted based on his

“imputed political opinion,” although he did not describe the nature of this

opinion.

      The IJ denied the Ilyukhins relief. The IJ first found that Oleg’s testimony

regarding the 1997 and 1998 beatings was not credible because it did not clearly

establish whether Oleg was actually attacked, the extent of his injuries, or the

identity of his attackers. The IJ also found no evidence that Oleg’s home in Russia

was actually burned. The IJ further found that the family presented no evidence

that they shared a political opinion that caused the threats and attacks. And the IJ

concluded that Oleg’s status as a businessman who refused to yield to demands for

bribes lacked the particularity, permanence, and visibility to constitute a

“particular social group.” Instead, the IJ concluded, any adversity the Ilyukhins

faced was due to their economic situation and their ability to pay bribes.

      Lastly, the IJ found that the Ilyukhins did not establish that they faced

persecution if they returned to Russia. Specifically, Oleg’s testimony regarding

his daughter’s rape and the attempted burning of his home failed to tie the

incidents to the Ilyukhins’ political opinions or membership in a particular social

group.

      The Ilyukhins appealed to the BIA, which affirmed the IJ’s adverse

                                          4
                Case: 12-10779        Date Filed: 09/05/2012       Page: 5 of 8

credibility finding based on inconsistencies in the Ilyukhins’ testimony.1 And the

BIA affirmed the IJ’s finding that the Ilyukhins failed to establish a nexus between

the alleged persecution and a statutorily protected ground, holding that the

adversity the Ilyukhins faced was due only to their perceived wealth and ability to

pay bribes. The Ilyukhins now seek review of the BIA’s denial of withholding-of-

removal relief.

                                                II.

       When the BIA issues a decision, we review only that decision, except to the

extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001). Here, the BIA did not expressly adopt the IJ’s

decision. We review the BIA’s legal determinations de novo, and review

“administrative fact findings under the highly deferential substantial evidence

test.” Rivera v. U.S. Att’y Gen., 487 F.3d 815, 820 (11th Cir. 2007) (internal

quotation marks omitted). We must affirm the BIA’s decision if it is “supported

by reasonable, substantial, and probative evidence on the record considered as a

       1
          The Ilyukhins did not appeal the IJ’s denial of relief under the CAT, and they again fail
to challenge the decision in their brief to this court. As a result, the challenge is unexhausted
and, in any event, waived. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir.
2006). And, although the Ilyukhins appealed the IJ’s denial of withholding-of-removal relief
based on imputed political opinion, they do not challenge the BIA’s subsequent decision that
affirmed the IJ’s denial of relief on that ground. They have therefore also waived a challenge to
this finding. Id.

                                                5
              Case: 12-10779     Date Filed: 09/05/2012   Page: 6 of 8

whole.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006) (internal

quotation marks omitted). To reverse a factual finding by the BIA, we must find

that “the record compels a reversal; the mere fact that the record may support a

contrary conclusion is not enough to justify a reversal of the administrative

findings.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).

                                         III.

      To quality for withholding of removal, an alien must show that his or her

life or freedom would be threatened on account of her race, religion, nationality,

membership in a particular social group, or political opinion. Sanchez v. U.S. Att’y

Gen., 392 F.3d 434, 437 (11th Cir. 2004). When seeking withholding of removal,

an “alien bears the burden of demonstrating that he more-likely-than-not would be

persecuted or tortured upon his return to the country in question.” Kazemzadeh v.

U.S. Att’y Gen., 577 F.3d 1341, 1347, 1353 (11th Cir. 2009) (internal quotation

marks omitted). Persecution is an “extreme concept” requiring more than a few

isolated incidents of verbal intimidation and minor physical abuse. Id.

      We conclude, even assuming that the Ilyukhins’ testimony about the attacks

was credible, that the testimony does not establish that the family suffered

persecution on account of their membership in a particular social group. A

“particular social group” refers to persons who share a common, immutable

                                          6
               Case: 12-10779     Date Filed: 09/05/2012    Page: 7 of 8

characteristic “that the members of the group either cannot change, or should not

be required to change because it is fundamental to their individual identities or

consciences.” Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1193 (11th Cir.

2006) (internal quotation marks omitted). And “evidence that either is consistent

with acts of private violence . . . or that merely shows that a person has been the

victim of criminal activity, does not constitute evidence of persecution based on a

statutorily protected ground.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1258 (11th

Cir. 2006).

      Here, Oleg repeatedly testified that the attacks he suffered were based on his

economic situation and his ability to pay bribes. Oleg’s wealth and perceived

ability to pay bribes is not the sort of attribute that is fundamental to a person’s

individual identity sufficient to comprise a particular social group. See Castillo-

Arias, 446 F.3d at 1193. Further, Oleg never identified his attackers. His bare

assertions that his attackers were government agents are insufficient to show that

he experienced anything other than “acts of private violence.” Ruiz, 440 F.3d at

1258. Thus, the Ilyukhins failed to establish a nexus between the events that

occurred and a statutorily protected ground for withholding of removal.

      Similarly, the Ilyukins did not establish a nexus between the events that

occurred after they left Russia and a fear of future persecution should they return.

                                           7
              Case: 12-10779     Date Filed: 09/05/2012   Page: 8 of 8

Taking the Ilyukhins’ testimony as true, there is still no evidence tying Oleg’s

daughter’s rape or the attempted burning of the Ilyukhins’ home to any statutorily

protected ground. The Ilyukhins never identified the perpetrators of or the

motives for these events. On these facts, the record does not compel reversal of

the BIA’s order affirming the denial of withholding of removal.

      PETITION DENIED.

                                          8


834 F.2d 1023
U.S.v.Kingstro
NO. 86-2686
United States Court of Appeals,Fifth Circuit.
NOV 17, 1987

1
Appeal From:  S.D.Tex.

2
AFFIRMED.


                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                               No. 10-1277

HENRY T. SANDERS,

                Plaintiff - Appellant,

          v.

STATE OF MARYLAND; TREASURER OF MARYLAND,

                Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:09-cv-03173-PJM)

Submitted:   August 19, 2010                 Decided:   August 26, 2010

Before MOTZ, GREGORY, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Henry T. Sanders, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Henry T. Sanders seeks to appeal the district court’s

order dismissing his complaint.           We dismiss the appeal for lack

of   jurisdiction   because   the   notice    of   appeal   was   not   timely

filed.

           Parties are accorded thirty days after the entry of

the district court’s final judgment or order to note an appeal,

Fed. R. App. P. 4(a)(1)(A), unless the district court extends

the appeal period under Fed. R. App. P. 4(a)(5), or reopens the

appeal period under Fed. R. App. P. 4(a)(6).                 “[T]he timely

filing of a notice of appeal in a civil case is a jurisdictional

requirement.”     Bowles v. Russell, 551 U.S. 205, 214 (2007).

           The district court’s order was entered on the docket

on January 27, 2010.       The notice of appeal was filed on March 8,

2010.    Because Sanders failed to file a timely notice of appeal

or to obtain an extension or reopening of the appeal period, we

dismiss the appeal.        We deny Sanders’ motion for relief.              We

dispense   with     oral   argument   because      the   facts    and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                   DISMISSED

                                      2


224 P.3d 873 (2010)
2010 WY 13
BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner,
v.
Jose Delaluz BUSTOS, WSB Attorney No. 6-3581, Respondent.
No. D-10-0001.
Supreme Court of Wyoming.
February 10, 2010.

ORDER OF PUBLIC CENSURE
[¶ 1] This matter came before the Court upon a "Report and Recommendation for Public Censure," filed herein January 26, 2010, by the Board of Professional Responsibility for the Wyoming State Bar, pursuant to Section 16 of the Disciplinary Code for the Wyoming State Bar (stipulated discipline). The Court, after a careful review of the *874 Board of Professional Responsibility's Report and Recommendation, the respondent's "Section 16 Affidavit," and the file, finds that the Report and Recommendation should be approved, confirmed and adopted by the Court, and that Respondent Jose Delaluz Bustos should be publicly censured in the manner set forth in the Report and Recommendation. It is, therefore,
[¶ 2] ADJUDGED AND ORDERED that the Board of Professional Responsibility's Report and Recommendation for Public Censure, which is attached hereto and incorporated herein (without attachments), shall be, and the same hereby is, approved, confirmed, and adopted by this Court; and it is further
[¶ 3] ADJUDGED AND ORDERED that Mr. Bustos shall receive a public censure for his conduct, and he shall be publicly censured in a manner consistent with the recommended censure contained in the Report and Recommendation for Public Censure; and it is further
[¶ 4] ORDERED that, pursuant to Section 26 of the Disciplinary Code for the Wyoming State Bar, Mr. Bustos shall reimburse the Wyoming State Bar the amount of $25.00, representing some of the costs incurred in handling this matter, as well as pay the administrative fee of $500.00. Mr. Bustos shall pay the total amount of $525.00 to the Clerk of the Board of Professional Responsibility on or before March 30, 2010; and it is further
[¶ 5] ORDERED that the Clerk of this Court shall docket this Order of Public Censure, along with the incorporated Report and Recommendation for Public Censure, as a matter coming regularly before this Court as a public record; and it is further
[¶ 6] ORDERED that, pursuant to Section 4(c) of the Disciplinary Code for the Wyoming State Bar, this Order of Public Censure, along with the incorporated Report and Recommendation for Public Censure, shall be published in the Wyoming Reporter and the Pacific Reporter; and it is further
[¶ 7] ORDERED that the Clerk of this Court cause a copy of the Order of Public Censure to be served upon Respondent Jose Delaluz Bustos; and it is further
[¶ 8] ORDERED that the Clerk of this Court transmit a copy of this Order of Public Censure to members of the Board of Professional Responsibility, and to the clerks of the appropriate courts of the State of Wyoming.
BY THE COURT:
/s/ Barton R. Voigt
    BARTON R. VOIGT
    Chief Justice

ATTACHMENT

D-10-0001

BEFORE THE BOARD OF PROFESSIONAL RESPONSIBILITY

WYOMING STATE BAR

STATE OF WYOMING
In the matter of
JOSE DELALUZ BUSTOS,
WSB Attorney No. 6-3581
Respondent.
Docket No. 2009-143.

IN THE SUPREME COURT

STATE OF WYOMING

FILED JAN. 26, 2010

JUDY PACHECO, CLERK

REPORT AND RECOMMENDATION FOR PUBLIC CENSURE
The Board of Professional Responsibility makes the following report and recommendation, with its findings of fact, conclusions of law, and recommendation to the Supreme Court of Wyoming:
FINDINGS OF FACT
1. Respondent, Jose Delaluz Bustos, is currently an active member of the Wyoming State Bar and has been since 2002. He resides in Cheyenne, Wyoming.
2. In early 2009, Respondent represented Paulino Sanchez-Chaparro in regard *875 to an appeal in the 10th Circuit Court of Appeals.
3. On or about 21 August 2009, Respondent received an Order to show case regarding his failure to file an appellate brief in a timely fashion. A true and correct copy of that Order is attached hereto as Exhibit A. Respondent agrees that the facts stated in that Order are accurate.
4. Respondent did nothing in response to that Order.
5. On or about 13 November 2009, Respondent received an Order from the 10th Circuit Court of Appeals which indefinitely suspended him from the practice of law before that court. A true and correct copy of that Order is attached hereto as Exhibit B.
6. On 30 December 2009, Respondent wrote a letter to Bar Counsel which attempted to explain, but not excuse, his conduct in the Chaparro matter. A true and correct copy of that letter is attached as Exhibit C.
7. Respondent's failure to file the necessary briefs on behalf of his client was a violation of Rule 1.1 of the Wyoming Rules of Professional Conduct.
8. Respondent's failure to respond to the 21 August 2009 Order from the 10th Circuit was a violation of Rule 3.4(c) of the Wyoming Rules of Professional Conduct.
CONCLUSIONS OF LAW
9. Standard 4.43 of the ABA Standards for Imposing Lawyer Sanctions discusses the acts which result in a public censure for violation of Rule 1.1: "Reprimand [or public censure] is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client."
10. Standard 6.23 of the ABA Standards for Imposing Lawyer Sanctions discusses the acts which result in a public censure for violation of Rule 3.4(c): "Reprimand [or public censure] is generally appropriate when a lawyer is negligent lawyer negligently fails to comply with a court order or rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a legal proceeding."
11. ABA Standards for Imposing Lawyer Sanctions 9.1 provides for consideration of aggravating and mitigating circumstances in deciding on an appropriate sanction. Section 9.21 defines aggravating circumstances as "any consideration, or factors that may justify an increase in the degree of discipline to he imposed." Section 9.31 defines mitigating circumstances as "any considerations, or factors that may justify a reduction in the degree of discipline to be imposed."
a. Applicable aggravating factors in this case are:
i. Section 9.22(i)substantial experience in the practice of law.
b. Applicable mitigating factors are:
i. Section 9.32(a)absence of a prior disciplinary record;
ii. Section 9.32(c)personal or emotional problems;
iii. Section 9.32(e)full and free disclosure to disciplinary board or cooperative attitude toward proceedings; and
iv. Section 9.32(k)imposition of other penalties or sanctions.
RECOMMENDATION TO THE SUPREME COURT OF WYOMING
12. As an appropriate sanction for his violations of Wyoming Rules of Professional Conduct, the Board recommends that Respondent receive a public censure which states as follows:
"Cheyenne Attorney Jose Delaluz Bustos received a formal public censure by order of the Wyoming Supreme Court on _____. Mr. Bustos was indefinitely suspended from the practice of law before *876 the 10th Circuit Court of Appeals in November 2009 for failing to respond to that Court's disciplinary show cause order filed as a result of his failing to file a brief on behalf of his client.
The Wyoming Rules of Professional Conduct regulate the conduct of Wyoming attorneys. Mr. Bustos violated Rule 1.1 which requires an attorney to provide competent legal services to a client. He also violated Rule 3.4(c) which requires that a lawyer comply with obligations owed to a court.
The sanction was mitigated since Mr. Bustos had no prior disciplinary record and was having personal problems at the time.
Mr. Bustos stipulated to these facts and consented to this discipline. The Board of Professional Responsibility approved the stipulation, recommending that the Wyoming Supreme Court publicly censure Mr. Bustos. After reviewing the record and recommendation, the Wyoming Supreme Court entered its order publicly censuring Mr. Bustos and requiring him to pay some of the costs of the Wyoming State Bar for prosecuting this matter."
13. The Board further recommends that Respondent be required to reimburse the Wyoming State Bar for the costs of handling this matter in the amount of $25.00 and pay the administrative fee of $500.00 no later than 30 March 2010.
This decision is unanimously made by a quorum of the Board of Professional Responsibility. It is therefore so recommended January 26, 2010.
/S/ Francis E. Stevens
    Francis E. Stevens, Chair
       for the
Board of Professional Responsibility Wyoming State Bar

ATTACHMENT

CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the above Report and Recommendation For Public Censure was mailed by United States Mail, postage prepaid, on 26 January 2010 to the following:
Jose DeLaluz Bustos
Attorney at Law
400 East 20th Street
Cheyenne, WY 82001
and a hand delivered copy to:
Rebecca A. Lewis, Bar Counsel
Wyoming State Bar
P.O. Box 109
Cheyenne, WY 82003
/s/ Patricia F. Becklinger
    Patricia F. Becklinger, BPR Clerk