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Since starting a fan post to announce this one signing would be against the etiquette of fan posts, I have some other things to talk about to go along with the wierd news that the Braves already with a very good young SS signed another high priced SS. I also wanted to include how elvis andrus and max ramirez are doing in the tough-to-hit-in venezuelan winter LG. And a couple trade possibilities i have floating around in my head.
VWL Stats for Elvis and Max:
Andrus: 143 ABs, 24 runs, 37 hits, 2 HRs, 29k/23bb, .259/.359/371 OPS: .731
Ramirez: 144 ABs, 10HRs, 45k/17bb, ..271/.360/.556 OPS: .916
The VWL seems to be much tougher on hitters than the crazy dominican winter lg where Salty, Nellie, and Borbon are all hitting over .350. A couple positive things about these stats, Andrus' walk rate looks really, really good. A 100 pt difference bt BA and OBP is a big difference, his contact rate is down, but im interested to see if he can continue to improve on his plate discipline. Maxram is showing some serious power as well; I hope that stat line is signs of things to come. I wouldnt be suprised if he put up numbers not to far away from that line in the Majors. Maybe slightly less power, but around a .870 OPS doesnt seem too far fetched.
On the Braves signing Furcal: Does this make Escobar expendable to them? I wonder this b/c if we were to work out some type of deal to send Milly to the braves, could we possibly expand such a deal to include one of Byrd or Murphy to get Escobar back in return? I like Escobar (he was third in the ML among SS with over 200 ABs in On Base % and has a career OPS over .780) and think that if we could get him, we'd solve our 3B solution by either putting him there or MY there starting next year. It also would give us the flexibility to deal Andrus in some type of deal for more young pitching and it would give us another option besides just sitting on Andrus and hoping he becomes good enough that we can cover 3B by getting andrus to the majors and MY over to 3b. Just a thought, b/c i know atlanta still needs OF help and we can supply that as well as Milwood.
It would make things interesting starting next year as it would allow us to sign Sheets, improve our defense (i guess thats a little presumptious of me, but id assume moving MY to third would upgrade our 3B and SS defense), give us a pretty solid replacement at 3B and give us more options in trading for even more pitching.
Maybe its a little to far fetched that the braves would settle on Milwood plus + Murphy for Escobar, b.c im sure they are gonna try to get a really good SP for him. However, if they are unable to find a deal for a really good SP involving Escobar, we could possibly interest them in a deal like this as it gets them two things they'd be looking for. Just throwing that out there.


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Lythgoe: Jackson is like Cowell (From Lancashire Telegraph)
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Lythgoe: Jackson is like Cowell
9:35am Friday 18th January 2013 in National Entertainment News © Press Association 2014
Randy Jackson is the hardest judge to impress on American Idol, Nigel Lythgoe has revealed.
Nigel, who is the show's executive producer, described the sole remaining judge from the original line-up as the Simon Cowell of the panel, because he doesn't mince his words.
"Randy, in truth, is the tough one. When other people couch their 'No, you were c***', Randy says it, and 'Give up singing. You're never going to be a singer'," he said.
Mariah Carey, Nicki Minaj and Keith Urban are the new judges on the US singing show, but they're not as blunt as Randy.
Nigel continued: "You can see the other three judges wouldn't because although they may agree with that outright sentiment, they certainly feel like they're not there to hurt anybody. Where possible they will try and send them away with either a good comment of how they can improve or a suggestion of what they move on into."
The TV boss also talked about how country singer Keith - the husband of actress Nicole Kidman - has had to deal with the feud between Mariah and Nicki.
"This is the first time I think that we've had a country judge and he is such a lovely man. He is the scratching post between Mariah and Nicki," he said.
"He sometimes looks like he's watching a tennis match with his head bobbing between the two girls, but when it's his turn to speak he gives his mind and he won't put up with anybody else knocking him down. He's had rounds with Mariah, Randy, and Nicki; a big one with Nicki, in truth. Keith is a great addition this year."
The new season of American Idol can be seen on 5*.

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Winzergenossenschaft Oberbergen Müller-Thurgau Trocken 2006, Q.b.A. Baden, Obergergener Bassgeige, Kaiserstuhl, Germany: Vintages Wine Panel: Made with grapes sourced from Baden's Kaiserstuhl, an area considered the warmest in Germany, this shows Müller-Thurgau at its best. Created by Herman Müller in 1882, Müller-Thurgau is a cross between riesling and madeleine royale, a table grape. When firing on all cylinders, as is this example, its aroma profile suggests gorgeous light peach, pear and sweet apple. Round and ripe, this white is a good sipper. My note: Zippy and refreshing. 71688 11% MD 750 mL $14.95 Score: 87/100. May 10, 2008 Best Value White Wine. Full Review
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Arguably the most talked about player in the Southeastern Conference returns to the floor this weekend for the Ole Miss Rebels. How should Rebel fans feel about this? Pretty darn good, probably.
The SEC's remaining pair of teams could very well make up an eighth of the Sweet 16 at day's end.
Ole Miss picked up its first NCAA Tournament since 2001.
Ole Miss is winning, no thanks to this free-throw attempt from Reginald Buckner which failed to hit...well...anything.
Marshall Henderson may be the star for Ole Miss, but don't sleep on some of the Rebels' other talent.
Kenny Boynton and Marshall Henderson came to the rescue for their teams yesterday, getting Florida and Ole Miss wins after being given runs for their money by lesser-ranked teams.
Ole Miss crushed Vanderbilt to stay alive in the SEC tournament. They take on Florida for the championship Sunday.
Patric Young favored his shoulder after a hard foul on Saturday. But another injury to his elbow is more worrisome.
Ole Miss couldn't buy a bucket in the first half, but behind Marshall Henderson's stellar scoring effort, the Rebels rallied to beat Tennessee on Thursday night.
The Rebel shooting guard leads the SEC in points per game, energy, and outlandish antics - and we love him for it.
A rematch of the conference opener, with more respect, more Marshall Henderson, and hopefully more defense.
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In addition to the four required courses, students must take three additional credits in either Marketing Research, Marketing on the Internet, or Business Valuations for Mergers and Acquisitions to fulfill this 15-credit concentration.
At The Malcolm Baldrige School of Business at Post University, you can earn your Bachelor of Science in Business Administration degree entirely online, with no commuting or interruptions in your current career.
You will study in highly interactive, small classes in 8-week accelerated modules led by faculty who will actively engage you in a high-quality, relevant curriculum.
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Ballistic Body Fitness
I'm a distance cyclist and this past training and riding year has been a brutal one for me. In spite of numerous injuries, I insisted on continuing to train...read more
Soundwave Productions DJ & Lighting
DJ Chris helped make our special day completely awesome! His uplighting, to his monogram, to his MC skills- all were great. Chris is very professional. He...read more
CrossFit Active Performance
Crossfit Active Performance (n.) Professional, knowledgable and dedicated coaches who work with the individualized needs of their athletes and monitor...read more
Wayward Captain Watersports
What a great team of guys! I was texted directions for parking, given a matched Groupon price (it was a holiday and they don't honor special discounts so...read more
Mission CrossFit
This review is for anyone who has tried other crossfits or interested in starting. I struggled to get started and stopped by 2 other locations that were...read more
Aliso CrossFit
FUN! Life changing, ass kicking, mentally challenging, and positive. ACF genuinely cares about the progress of each of their members. They look out for...read more
The Wine Artist
I held my daughter's bridal shower at The Wine Artist last Saturday and it was AWESOME! I had so many guests approach me during the shower to say it was...read more
You and the Mat
Wow! I love this studio! Everyone here are so friendly and engaging. And, they DON'T have levels!, (like, level 1 for beginners and level 3 for those who...read more
Unveiled Fitness
My new home-away-from-home studio! I know. It's complicated. I live in Seattle but I'm from L.A. and I lived in the OC shortly before moving to Seattle....read more
G2 Bike
I was referred to G2 bike shop by a good friend Jason Engle about 6 months ago. Jason quickly set me up with Ted through email in which I received a...read more
Heisler Park
Simply gorgeous! Pictures can not capture its serenity and beauty... You NEED to experience it... Unique benches and gazebos situated throughout the...read more
FIT Pilates Studio
Great place. And wow was the workout amazing. To me it's a hybrid of pilates. Not the normal slow moving pilates. This had me breathing hard and sweating...read more
The 1-2 Punch
I joined the kickboxing class over a year now and I still love it! I live a little far but I really don't mind because I enjoy it so much. The instructors...read more
Pageant of the Masters
My second time at this venue and it did not disappoint! This program is awesome and very ingenious! It is best to arrive as early as you can to get good...read more
Crescent Bay Point Park
Literally the most beautiful place on earth! The view from The Point is extremely breath taking! You are able to see down the coast, all the way to Dana...read more
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The human spirit in the digital age will be one of the primary subjects discussed at the TEDx conference at Ransom Everglades School on Friday.
Boo Zamek, founder of JustAskBoo, an online forum connects people and services, will be one of the speakers for TEDxCoconutGrove's second event at Ransom.
"The human spirit and human kindness is alive and well even though so much of our communication is done digitally," Zamek said. "It still doesn't take away the fact that there is still an element of humanity. In my business, people reach out and help each other, and it's all done digitally."
Zamek will be one of 18 speakers at the conference, including Haitian author and MacArthur Genius winner Edwidge Danticat, NBC 6 Chief Meteorologist John Morales and So You Think You Can Dance winner Jeanine Mason, a Ransom alumnus.
TED (Technology, Entertainment, Design) began 24 years ago in California and now operates as a global set of conferences and online videos. Among the speakers at TED Talks: Sheryl Sandberg, chief operating officer at Facebook, and Maysoon Zayid, whose talk, "I got 99 problems …. palsy is just one of them'' has garnered more than 1.2 million views since its January posting.
TEDx are independently organized TED events. TEDxCoconutGrove held its first event in September 2012. Tom Bales, a steering committee member, said the talks are built around a theme.
"Last year we talked about square-one experiences, and the theme this year is connections,'' Bales said. "All of our speakers are talking about some form of connection between people."


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Friday in photosFriday, December 27, 2013.
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Michigan State defensive end Shilique Calhoun, from left, defensive end Marcus Rush and defensive coordinator Pat Narduzzi attend a news conference on Friday, Dec. 27, 2013, in Los Angeles. Michigan State is scheduled to play Stanford in the Rose Bowl NCAA college football game in Pasadena, Calif., on New Year's Day. (AP Photo/Jae C. Hong)
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text: If you get a chance go visit BYU's version of The Slipper Still Fits. It is called Vanquish the foe. They have really good writers that post something new every day about the WCC. I really like the the posts from the road when BYU plays WCC teams on the road. They are there and tell fans about the other fans and gyms. I like the fact that they did not much care for some of the places they had to visit in the MWC. And maybe some day we will have a link to their page since they are in the WCC now. IMO it is one of the best sites in the NCAA. You dont have to wait 6 days for the next post.


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Colleagues of mine at the DRI are hosting DRI's inaugural Data Breach & Privacy Law conference in Chicago on Sept. 11-12, 2014. The conference will cover everything from the Anatomy of a Cyber Attack to the Theories of Civil Liability for a Data Security Breach to the Insurance Coverage Issues Implicated in Data Breach Claims. You can find the brochure and registration materials here.
Of interest to me is the focus on insurance coverage issues, which was also the focus of my earlier talk on the issue of data breaches. It's interesting to me because, as some of you may know from previous posts and articles or from hearing me speak, my view of insurance coverage law is animated by my more than quarter century experience working with it, going back to the tail end (that's an insurance coverage pun, get it?) of the asbestos coverage wars and the start up of the environmental coverage wars. When you look back over the history of the field, coverage lawyers – especially on the policyholder side - were able to build huge practices in the '80s and '90s on the back of those types of big ticket exposures, and many have spent the decades since looking for the next big ticket coverage disputes that could sustain such practices, generally without finding anything comparable. Do you remember Y2K? Policyholder-side coverage lawyers were bulking up – at least in their marketing – in anticipation of a big boom in losses and related coverage disputes, but that boom went bust almost as soon as the calendar flipped. Some, incidentally, who had a long enough history in the industry anticipated that, as I can remember Jerry Oshinksy, who built one of the largest policyholder side practices of the asbestos/environmental coverage era, commenting in 1999 that Y2K would not generate the work driven by that earlier era. Data breach, though, may finally be that new area of liability that generates large amounts of coverage work that coverage lawyers have been waiting for since the Wellington Agreement came into being, the California Coordinated Asbestos Coverage trial ended, and Superfund prosecution wound down, given the scale of the breaches we now see on a regular basis.
Historically, courts in the First Circuit have focused on two concepts in deciding whether a state law claim is preempted: (1) whether the state law cause of action seeks to supplement the causes of action available under ERISA itself; and (2) whether the state law claim requires consideration of the ERISA plan to decide the claim or would dictate specific terms or operational procedures for the plan. Two weeks ago, the First Circuit, in the case of Merit Construction Alliance v. City of Quincy, discussed the second concept by, in essence, applying a sliding scale analysis that considered how much impact the state law in question actually had on the ERISA governed plan, finding that too much equals preempted, while too little equals not preempted.
In addressing whether a city ordinance requiring bidders to establish an apprenticeship program was preempted, the First Circuit explained:
ERISA "supersede[s] any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." 29 U.S.C. § 1144(a). The Supreme Court has distilled the statute's "relate to" language into two independently sufficient alternatives: "a connection with or reference to" an ERISA plan will result in preemption. Shaw, 463 U.S. at 97. . . The battle here, as waged by the parties, focuses on the "connection with" component of the two-sided ERISA preemption calculus. . . .[N]ot every conceivable connection will support preemption. For example, state laws that merely exert an "indirect economic influence" on a plan do "not bind plan administrators to any particular choice" and, thus, do not come within ERISA's preemptive reach. Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., Inc., 519 U.S. 316, 329, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997) (internal quotation marks omitted). On the other hand, "state statutes that 'mandate[ ] employee benefit structures or their administration' ... amount[ ] to 'connection[s] with' ERISA plans" and are therefore preempted. Id. at 328 (final alteration in original) (quoting Travelers, 514 U.S. at 658). The path from influence to coercion amounts to a continuum and it is not always a simple task to determine where along this continuum a particular state law falls.
The Court then proceeded to analyze where on that continuum the city ordinance fell, for purposes of determining whether or not it was preempted.
I don't believe this discussion of the continuum was intended to create a new test for preemption or to establish a new standard for analyzing the issue. There has always been an element, in First Circuit preemption analysis, of considering how closely a state law acts upon the operation or terms of an ERISA governed plan, and this discussion of the continuum seems to fit easily within that tradition. Nonetheless, looking at the question of whether a particular claim is preempted by analyzing where it falls on such a continuum is a handy and potentially persuasive manner of addressing the question. Anyone advocating for or against preemption in the First Circuit would be well-served by structuring the argument around where on that continuum the claim in question falls. It is an easy framework for the audience to grasp, while sufficiently malleable to allow a party to argue for a favorable placement on that continuum.
If you want more information on my changing firms, you can find the press release on my joining the Wagner Law Firm here. When I read it myself for the first time, I immediately thought of a line a U.S. Senator I once heard speak liked to use immediately after being glowingly introduced, which was: "thanks for the kind introduction, which my father would have appreciated and my mother would have believed."
With that out of the way, I wanted to turn to one brief, substantive discussion. Eric Berkman has a fine article out in Massachusetts Lawyers Weekly, in which he quotes me on the First Circuit's decision in Merriman v. Unum Life, which rejected claims that a retained asset account structure for paying life insurance benefits under an ERISA governed plan violated ERISA. In one of my quotes, I explained that:
"The plaintiffs' bar is looking for ways defendants are making money or making these services profitable and calling them prohibited transactions or breaches of fiduciary duty," Rosenberg said. "But this case, which falls in line with cases in other contexts, is saying that as long as the plan beneficiary is getting everything he or she is supposed to be getting under the plan, it's OK that the insurance company or other service provider is also making a profit."
While there are a lot of technical issues to Merriman, I think this is the important takeaway if one is looking at the forest rather than the trees. Across the benefit industry, service providers have to turn a profit; if they don't, we will quickly not have a benefit industry. The holdings in cases like Merriman, which found the payment structure appropriate even though it could create some additional profit for the insurer, drive home the point that, so long as there is no prohibited transaction or misuse of plan assets or other illegal behavior, its okay for service providers and insurers to turn a profit.
One of the more interesting discussions that came up during my presentation had to do with recent case law revolving around what are, and what are not, plan assets, and how that issue influences the outcomes of cases (including ones I have litigated over the years). It is worth noting that the First Circuit just issued a very important decision validating certain employee life insurance benefit structures on the basis of just that consideration, in Merrimon v. Unum Life. One of the points I touched on in my talk is that the question of when funds are and are not plan assets for purposes of ERISA is almost certain to be a central aspect of both future litigation and future efforts by plan service providers to insulate themselves from fiduciary liability, given very recent developments in the case law. The new First Circuit decision, Merrimon v. Unum Life, is very noteworthy in this regard, as one can see in it how years of litigation and the appropriateness of a relatively common form of benefit payment structure can come down to, at root, the very basic question of what constitutes plan assets for purposes of ERISA litigation.
With that said, I wanted to turn to another speaking engagement on my calendar, which is the American Conference Institute's 8th National Forum on ERISA Litigation, on October 27-28 in New York. I will be speaking on "Ethical Issues in ERISA Litigation," including on one of my favorite issues, the fiduciary exception to the attorney-client privilege, along with Mirick O'Connell's Joseph Hamilton. The reason I wanted to mention it today is that, through July 24th, a special rate is available for anyone who registers, mentioning my name and this blog. To take advantage of the special rate, you should contact Mr. Joseph Gallagher at the American Conference Institute, at 212-352-3220, extension 5511.
I hate to sound like an infomercial, but if you are planning to attend anyway (or weren't aware of the conference before but now are interested in attending), it would be silly of me not to pass along this information.
I was reminded of this over the weekend, when the Wall Street Journal ran this article (subscription required) about the importance of participants in plans that hold employer stock taking the time to reduce those holdings as a proportion of their investment mix. Sure, the new stock drop rules under Fifth Third make it somewhat more likely that a group of employees in a particular company who lose a large percentage of the value of their holding of employer stock under circumstances where that could have been avoided by better decision making by fiduciaries can sue for, and possibly recover for, losses in employer stock holdings. But the reality is that such recoveries will be few and far between, as the pleadings standards are still strict and only the largest plans with such losses are likely to draw the interest and ire of the class action bar. This means that, for all other plan participants who hold employer stock in their accounts, it is incumbent upon them to remember the doctrine of caveat emptor (two Latin phrases in one Monday morning after only one cup of coffee – pretty good, don't you think?) and to reduce their exposure to a level commensurate with their tolerance for risk.
First of all, the best substantive piece explaining what in the world the decision actually says is this one, from Thomas Clark on the Fiduciary Matters Blog. He does a nice job of explaining what the opinion really held. One of the things that grabbed me right off the bat about his post is that he opened by pointing out that, by the Court's opinion, "the 'Moench Presumption' which has been adopted nearly unanimously by every Circuit Court in the country has been unequivocally rejected." I appreciated the fact that he pointed out that the presumption had been adopted "nearly universally" by the circuits that have considered it, rather than calling it universally accepted, as I have long been the nitpicker on this, pointing out that the First Circuit has passed on opportunities to adopt the presumption, even though most authors writing on the subject have consistently but wrongly stated that the presumption had been universally accepted by those courts presented with it. Now, though, it turns out to have been universally accepted by all but two courts to have considered it, the First Circuit (as I have written before) and the Supreme Court, but obviously the decision of one of those two not to adopt it matters more than that of the other, by some significant degree of magnitude.
Second, I liked this brief piece by Squire Patton Boggs' Larisa Vaysman in the Sixth Circuit Appellate Blog, comparing some of the conduct that the opinion could be construed to approve of by a fiduciary to conduct that one might have otherwise slurred as a Ponzi scheme. Substantively, she emphasizes that, under the Court's holding, to plead an ERISA stock drop claim, "a plaintiff must plausibly allege an alternative action that the defendant could have taken that would have been consistent with the securities laws and that a prudent fiduciary . . . would not have viewed as more likely to harm the fund than help it." What is interesting about this to me is that I have long considered the Moench presumption, no matter the complex doctrinal discussions that have grown up around it, to reflect a judicial need to find some way to balance fiduciary obligations under ERISA with securities obligations imposed on insiders by the securities laws. The Moench presumption always struck me as too blunt an instrument for those purposes, but that didn't change the fact that, to me, some way of balancing those sometimes competing interests was necessary. Vaysman's post highlights the fact that the Supreme Court did not abandon this need to balance the competing interests, but instead imposed a different means of balancing those interests. I think the Supreme Court did a nice job in Fifth Third of imposing that balancing by means of a factual evaluation of the conduct in question, rather than by a presumption, unsupported in ERISA itself, that simply, for all intents and purposes, had effectively barred such claims.
I also liked this financial trade press article, from Pensions & Investments, on the decision, as much as anything for its recognition that the decision drove home the point that "courts should evaluate stock-drop cases 'through careful, context-sensitive scrutiny of a complaint's allegations,'" rather than by means of a judicially created presumption that cannot be located in the ERISA statute itself. This is, of course, a drum I have always beaten about ERISA litigation and the Moench presumption in particular, which is that it is much more appropriate to delve into the facts to decide whether a case has merit, because the world – and a particular case - can look entirely different on its actual facts than it looks based on judicial assumptions made at the outset of a case, including when judicially created presumptions are applied without first examining the truth of the events at issue. I also liked the author's emphasis on the fact that the opinion recognizes that the presumption simply had no basis under the statutory language itself.
Blogger - and friend - Susan Mangiero has called me on my promise, made in a prior post about predictions on the outcome of this case, to detail my views, once the decision was in, on whether the Court got it right. As my comments about the articles above probably made clear, I am fond of the decision and think the Court got it just right. They solved a troublesome riddle, which is how to balance the securities law obligations of corporate officers with ERISA's fiduciary obligations, in a manner that neither distorted the statute – as was the case with the Moench presumption – nor encouraged the filing of stock drop suits against fiduciaries that lacked any basis other than the fact that a stock price had declined.
But there might be a more interesting question to explore, which stems from William Buckley's famous line that he would rather be governed by the first 100 people in the phone book than the faculty of Harvard. If the Supreme Court rules in a case like Fifth Third Bancorp to the opposite of that predicted in advance by the crowd, the more interesting question may not concern the accuracy of the crowd's prediction, but instead who reached the better result: the crowd or the Court? I will tell you what. After the Court issues its decision in Fifth Third Bancorp, if the crowd came down on the other side, I will write a blog post on which one I thought was right: the stand-in for the faculty of Harvard (i.e., the sitting justices) or the stand-in for the first hundred folks in the phone book (i.e. the voting public).
Now, coverage by insurers for complaints alleging sexual harassment or similar claims under standard CGL policies have their own complicated backstory, revolving around the question of whether, no matter what is actually alleged in the complaint by the employee, the acts in question are intentional, dishonest or otherwise harmful in a manner that precludes coverage. Some of this history goes back to at least the 1980s, and, having been involved with a client's rollout of the coverage, it played a role to some degree in the creation and eventual acceptance of EPLI – or employment practices liability insurance – coverage.
The insurer here took the same tack with regard to the ERISA claim at issue, and, given the history noted above and the nature of the claim, understandably so. The issue, though, as the Second Circuit found, is that the ERISA claim itself did not require any type of intentional misconduct, which is basically true across the board with most types of ERISA claims, and held that the insurer therefore could not deny coverage for the ERISA claim based on an exclusion for dishonest or malicious acts. The Court found that the ERISA claim could, in essence, simply be a claim for negligent conduct – at least as pled in the complaint – and thus the insurer could not deny a defense to the insured based on such an exclusion, which would not reach a claim of negligence.
There are a number of lessons here for both insured companies (and their officers) who are sued in ERISA cases and for their insurers. First, don't assume that principles related to coverage of employment related claims will transfer to an ERISA claim; they may very well not do so. Second, you have to pay close attention to the true nature of an ERISA claim (including its key legal elements) before deciding whether or not there is coverage, and not simply to the surrounding factual allegations relating to the insured's conduct (which in most harassment and similar claims are usually pretty egregious, at least as alleged by the plaintiff).
Anyway, here is the decision, which is Euchner-USA, Inc. v. Hartford Casualty Insurance Company, and here is an article providing a nice summary, for those of you who don't want to read the full decision.
A lot, it turns out, if you are interested in the borders that should attach to IP rights so as to best balance the need to encourage the creation of new products against the risk of stifling innovation. Anytime one renders a design or technical development exclusive to one owner, such as when an inventor obtains exclusivity by means of a patent or an author obtains it by means of holding the copyright, we encourage the original owner to exploit that product, but preclude others from doing the same. When we do that, it is important to create a structure that gives enough protection to the original inventor to motivate people to create new products, but not so much protection that it discourages others from creating related advancements; if we get that balance wrong, we impede the technological advancement that is the original purpose of granting exclusivity in the first place.
I was thinking of this today because of an odd correlation that popped up in my reading. I have litigated copyright infringement cases both over plans for commercial architecture and over very complex computer code, each time defending someone who had created and sold a new product but was charged with allegedly having infringed upon the prior copyright protected work of a prior author (in one case another architect, in the other a different software company). While I effectively won both cases – to the extent that very favorable settlements count as wins in a world in which 99% of cases never see a trial – the more interesting point is that I prevailed on both cases on essentially the same theory, which was that the similarities between my client's work (whether the design for the building or the code for the software) and that of the holder of the copyright on the prior work concerned aspects of the prior author's work that copyright law does not protect. Copyright law, through various means – such as the merger doctrine and others – does not protect common or universal design elements, nor does it protect substance that, in essence, cannot be designed around, such as certain problems in software coding that can only be solved in very limited ways. Copyright law allows later-in-time creators to make use of those types of elements in their work (whether that be the design of a house or the design of high value software) even if they were also used in previous, otherwise copyrightable work. In this way, copyright law successfully draws the line between encouraging innovation through the grant of exclusive ownership and corresponding rights of exploitation, on the one hand, and the risk, on the other, of stifling innovation through that grant of exclusivity; these doctrines keep open for other innovators the use of certain elements, whether lines of software code or aspects of building design or other forms of expression, without which further advancement of the art in question is not possible.
This is one of the great, somewhat hidden achievements of American copyright law, one that is worth bearing in mind, and perhaps emulating to some extent, in the world of patent law, as we try to come to grips with the patent troll phenomenon and the runaway nature of patent infringement litigation in this day and age. The trick to solving those problems in that area of the law right now is figuring out how to find that sweet spot – the one that copyright law has, to a large extent, already found – between granting enough exclusivity to drive innovation but not so much that it simply generates excessive patent infringement litigation and gives rise to mills full of patent trolls.
So the answer to the riddle that commenced this discourse lies in this excellent article on the manner in which doctrines limiting the scope of copyright protection just defeated an architect's claim of copyright infringement based on the architect's use of certain historical and consumer driven elements in a design for a classic New England colonial home. These same doctrines were, as I mentioned before, the basis for my prior representations of both architects and computer software programmers, with the doctrines generating good results in both circumstances. I liked how clearly the article articulated the use and role of these doctrines in the context of home design, and was immediately struck by the fact that you could replace the references to architect and houses with references to programmers and software and have an equally accurate article. The same copyright doctrines, in my experience, control the outcome of both litigation over building plans and over computer software. That consistency across the board is one of the things that makes American copyright law great, both intellectually and as a practitioner, and is what makes it possible for competitors to plan ahead and understand when they can, and when they cannot, touch on prior work.
I have said it before and I will say it again (and I am sure I will say it many times after today too): ESOPs are financial stakes of employees, not mere financial tools for private company owners. Those who forget that lesson are, if not doomed to repeat the past lessons of earlier fiduciaries, at least doomed to sitting at the defendants' table in a courtroom.
Leaving that lesson aside, the decision itself is instructive on two major points of ERISA litigation. The first is the proper interpretation and application of ERISA's fiduciary duty statute of limitations to ESOP disputes and the second is as an excellent overview of the rules governing fiduciaries with regard to private company ESOPs. The opinion itself is so informative and, happily, well-written that I strongly recommend reading it, despite its relative length. For those who would prefer the Cliff Notes, Mark Thomas and Robert Shaw of Williams Mullen provide an excellent summary in this article from last week.
My biggest criticism of the Moench presumption, more than its effort to strike a balance between fiduciary obligations under ERISA and securities law obligations imposed on public companies and their officers, is the creation and application of the presumption at the motion to dismiss stage, rather than waiting to see what the evidence shows as to whether corporate insiders underserved the interests of participants when serving as the fiduciary for company stock plans. Just as the history of excessive fee litigation shows, and as I discussed in "Retreat from the High Water Mark," it is much easier to more accurately determine whether fiduciary obligations are breached when the facts are all before the court, rather than by means of the assumptions, surmise and allegations that can animate decision making in such complex and novel areas at the motion to dismiss stage. The Moench presumption effectively precludes stock drop claims under ERISA, and effectively establishes the governing rule of law for fiduciaries of employer stock plans. The rule and its application may be right, or it may be wrong, but it would be a lot easier to determine that by considering the obligations as fiduciaries of corporate insiders in light of the true facts of their conduct, which the application of the presumption at the motion to dismiss stage – and in fact even its creation without and before any court has ever fully developed and analyzed the facts of such a claim – precludes.
I was thinking of this because Mitchell Shames, who is now an independent fiduciary at Harrison Fiduciary and before that was the long time general counsel for State Street Global Advisors (including during the time that the First Circuit blessed their structure for handling exactly these types of conflicts, in Bunch v. W.R. Grace), has pointed out that corporate insiders serving as fiduciaries in this context do actually face conflicts, and not just in theory. Mitchell has written an excellent post detailing, from firsthand knowledge, the conflicts faced by corporate insiders who are tasked with making investment decisions of this kind for plan participants.
Mitchell writes that when a CEO appoints insiders to make these types of decisions:
everyone takes notice. While CEO lieutenants may be adept at various technical and managerial skills, often, intense loyalty to the CEO is a common attribute. (Dissidents typically do not rise to the C-suite).
This loyalty often includes a precise understanding of the CEO's goals and priorities with respect to corporate strategy and is often rewarded by promotions, committee appointments, raises, bonuses, stock options and other assorted perks. The senior managers are properly incentivized to advance the vision of the CEO.
Upon assuming a spot on a fiduciary committee, however, these same senior managers are required to shed the very skills that contributed to their corporate rise. When making decisions on behalf of the plans, they are supposed to set aside any allegiance to the CEO, forget about the stock options they may have patiently accumulated over the years, and make decisions irrespective of an impact on corporate earnings.
The potential for conflicts of interest are real; they are not the abstract musings of lawyers and academics. Many transactions squarely put the corporation and the plan on opposite sides, with competing goals.
I was struck, in regards to my concerns about the limitations imposed by "motion to dismiss decision making" and their relationship to the Moench presumption itself, by Mitch's conclusion, in which he asked: "So, can these corporate offices so deftly switch hats as ERISA lawyers assume? Are fiduciary committee members so professional, so trustworthy, so ethical, that they are immune to the human impulses which gave rise to [the principle that]: 'No one can serve two masters'?"
One wonders whether the Moench presumption would seem to fairly balance the needs of sponsors and participants if it was considered only after a full factual record was created that might show this type of problem with conflicts faced by the fiduciaries. Would the rule seem to make as much sense in that light as it does when a court is faced with only the allegations of a complaint? Would a court reach a different conclusion than at the motion to dismiss stage on this issue if the judge was considering this type of claim after hearing a senior corporate officer who had served as the fiduciary testify as to his understanding of his obligations, conflicts, and the need to balance them?
We can't know this definitively. What we do know, though, is that it would certainly be a lot better to decide what the legal rule governing stock drop cases should be by first learning all the relevant facts, and then creating the rule, rather than by doing it in reverse (which is essentially where we are right now, with the Moench presumption applied by courts at the pleading stage).
Susan's reference to the "Golf Course RFP," which actually is a slide in my PowerPoint deck, concerns one of my chief cautions to smaller and mid-size companies, where benefit plans, particularly 401(k)/mutual fund programs, may be chosen by a company owner simply based on the vendors that are already in the owner's social circle, such as, yes, those at his or her country club. If it turns out down the road that employees were paying too much for or getting too little from the plan, in comparison to what could have been located in the marketplace as a whole at that time, picking a plan's vendor in that manner will most certainly come back to bite the company owner. Indeed, from a trial lawyer's perspective, such a selection process would, in a fiduciary duty lawsuit over that plan, be a smoking gun used to show poor processes and a corresponding breach of a fiduciary duty. At the end of the day, RFPs aren't normally conducted on a golf course, and this is one area of business life where it is especially important to remember that.
This phenomenon means that there are procedural opportunities for a defendant to prevail without ever proving the merits of the defendant's case, but, interestingly enough, this does not exist in reverse: there really is no such thing as a procedural advantage that might allow a plaintiff to prevail without ever proving the merits of the case (other than an outright default by a defendant, but that really doesn't happen unless the defendant is judgment proof which, for a plaintiff, is the same thing as losing).
Nowhere is this phenomenon clearer than in class action litigation, in which lawyers and courts have taken to focusing on the procedural requirements for forming a class, in ways that to some extent tend to devalue, by comparison, the merits (or lack thereof, as the case may be) of what the putative class representatives and the class itself may have to say. This approach to class action litigation essentially gives pride of place to the propriety of forming a class, over the merits of the case. If the plaintiffs cannot get past this procedural hurdle, they will never get the merits of their case heard; simultaneously, if defendants can ensure that plaintiffs don't get past that hurdle, then they effectively win without anyone ever getting to the merits of the claims.
Commonality – which is the requirement that the class members have some central part of their claims against the defendant in common – is the central focus of this aspect of class action litigation, but it has a less than great track record in precluding certification of classes in ERISA cases. There is a clear and interesting reason for this, but it is best approached by the back door, by first explaining how defendants faced with ERISA class actions attack commonality, and seek to use the requirement of commonality to preclude certification of a class and thereby end class action litigation before the merits of the action are reached.
As explained in this excellent blog post, there are a number of ways to attack commonality in an ERISA class action, by focusing on what may be different among the members of the proposed class. I like the article a great deal as a handy checklist for where to start with regard to investigating and challenging the existence of commonality – and by extension the propriety of forming a class – in ERISA litigation.
However, in the ERISA context, one should not be fooled into overconfidence by these types of lists or, as well, by the fact that this procedural tactic has been very effective in various types of class action cases. Commonality is simply not that difficult to prove in ERISA litigation, in comparison to other types of proposed class actions, such as wage cases. This is because, in general, breaches of fiduciary duty related to an ERISA plan affect all participants and beneficiaries in the same manner, which renders the ERISA violation at issue common to all members of a proposed class. The only real trick in this regard is for the plaintiffs to make sure they account for any aspects of the breach in question that might render only some participants (for instance, those in the plan during a certain time period) and not others subject to the violation, and to then draw appropriate lines around the makeup of the class so as to laser out any plan participants who were not affected and harmed by the particular conduct in question. Do this, and commonality exists.
It's interesting to note, though, that this has clearly picked up again over the past few years, even among smaller companies and separate from the similar attempts to gain business advantage in the courtroom pursued by large companies, such as Apple and Samsung, who are not so sensitive to the boom/bust cycle in pursuing such tactics. Given that the last time I saw this, the stock market dropped a gazillion points not long afterwards, one might want to ask whether this uptick is a sign of yet another stock market bubble.
But no matter, as that is a topic for another day, and events themselves will establish it one way or the other. Of more interest to me, and the reason I write today, is that, while everyone else is focused on the impact on patent trolls of the Supreme Court's recent decision in Octane Fitness, LLC v. ICON Health and Fitness, Inc., which makes it easier for a wrongfully accused defendant in a patent action to recover fees from a plaintiff, I am more interested in whether this same new decision will make it a little less likely that a wealthier company with a questionable patent will take to the courts to try to shut down a comparatively less wealthy competitor or, if not shut them down, to at least bog them down in litigation they cannot afford except by shortchanging their business operations. That alone would be the most pro-business result I could imagine from a court known for issuing such decisions.
Under the patent act, attorney's fees can be awarded in "exceptional cases," and, as Porter Wright's Melissa Barnett explained, the Supreme Court has now made it easier to satisfy that standard, holding that:
the term "exceptional" should be construed within its ordinary meaning, which the opinion states means "uncommon," "rare" or "not ordinary." (pg. 7). The court went on further to state that an "exceptional" case should be determined on a case-by-case basis and "is simply one that stands out from others with respect to the substantive strength of a party's litigating position" or "the unreasonable manner in which the case was litigated." (pg. 7-8). The requirement that patent litigants establish entitlement to fees under §285 by "clear and convincing evidence" also was rejected by the Supreme Court. The court held that "nothing in §285 justified such a high standard of proof," but rather "demanded a simple discretionary inquiry." (pg. 11).
To me, with regard to the issue I raised above, the question is whether courts will become more willing to grant attorney's fees on a regular basis in circumstances where the plaintiff is not a patent troll, but instead a competitor who is pressing a questionable claim simply or predominately as a business tactic. If so, that risk would have to be factored into the cost benefit analysis of any company considering such a strategy, even one that is in the business of manufacturing or selling the product in question and is not a patent troll, and might well lead to less filing of infringement suits of the "patent infringement claim as business tactic" kind.
However, I am concerned that federal trial courts may well read the Supreme Court decision, given the environment in which it was issued – where all the focus is on trolling – as simply license to whack trolls, when a court views a patent infringement suit as nothing more than trolling for licensing fees. Time will tell as to whether it will also be used to reign in the type of cases I am describing here, but I was encouraged in this regard by something that Barnett wrote in her excellent blog post on the Supreme Court decision setting the new standard for awarding attorneys' fees. She noted the existence in the case of "an email exchange between ICON executives that the suit was brought as a 'matter of commercial strategy' " and, in fact, when you read the Supreme Court opinion, there is substantial documentation to this effect. The impact of this type of evidence on the question of whether to award fees in a case where a competitor uses patent infringement litigation as a business tactic is not fully developed in the Supreme Court opinion, but the reference in the decision to this type of evidence certainly opens the door for much more substantial consideration of this issue by lower courts in future cases.
As one who thinks that the proper place for business competitors to prove the worth of their products is – other than in the case of significant evidence of infringement – the marketplace, not the courtroom, I hope that turns out to be the case.


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Quotes by Pierre Teilhard de Chardin
Quotes 1 till 10 of 11.
It is our duty as men and women to proceed as though the limits of our abilities do not exist.
Love alone can unite living beings so as to complete and fulfill them... for it alone joins them by what is deepest in themselves. All we need is to imagine our ability to love developing until it embraces the totality of men and the earth.
Love is the affinity which links and draws together the elements of the world... Love, in fact, is the agent of universal synthesis.
Our duty, as men and women, is to proceed as if limits to our ability did not exist. We are collaborators in creation.
Someday, after mastering winds, waves, tides and gravity, we shall harness the energy of love; and for the second time in the history of the world, man will have discovered fire.
The most satisfying thing in life is to have been able to give a large part of one's self to others.
The most satisfying thing in life is to have been able to give a large part of oneself to others.
The world is round so that friendship may encircle it.
We are one, after all, you and I. Together we suffer, together exist, and forever will recreate each other.
We have only to believe. And the more threatening and irreducible reality appears, the more firmly and desperately we must believe. Then, little by little, we shall see the universal horror unbend, and then smile upon us, and then take us in its more than human arms.


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Howard, Utley and Burrell need to pickup the strikeout pace if they want to swim with the Fish
March 7 2007
Thanks mostly to Ryan Howard, Pat Burrell and Chase Utley, who all finished in the top ten in the category, the Phillies surged in strikeouts in 2006. Howard struck out 181 times, second in the NL. Utley fanned 132 times, which was tied for eighth-most in the NL, and Burrell 131 times, which was tenth.
It was enough to help the
Phillies jump from ninth in the league in '05 to third last year.
|NL Rank
Despite finishing third
in the NL in strikeouts, the Phillies didn't lead their division. The
surprising (to me) winner was the Marlins. Florida led the NL with 1,249
strikeouts in 2006 without having a single player in the top ten.
The Fish got it done with a group effort that saw six players strike out at least 100 times. Hanley Ramirez led the way with 128 strikeouts (tied for 12th) and got support from Uggla (123, T-18), Willingham (109, T-29) and Cabrera (108, 31).
Part of the reason that the Phillies stayed behind the Marlins overall for the year was that despite the big-three of whiffdom, the other Phillies didn't strike out a whole lot. Bobby Abreu was fourth on the team in strikeouts with just 86. Miguel Olivo (103) and Mike Jacobs (105) joined the other big-time striker-outers for Florida with over 100.
This article, written in March of some mystery year, says that the correlation between spring records and regular season records between 1996 and the mystery year is .15. The mystery year may be 2003.
Josh Johnson is out for a while with his elbow problem.
The Phils are still planning to be careful with Gordon this year.
This article claims that Davey Lopes thinks Bourn won't have a problem repeating his stolen base success from '06 this season at Triple-A. Last year Bourn stole 45 bases and was caught five times.
Burrell now may have both back and eye problems.
The Phillies beat the
Pirates yesterday, winning 11-10 in ten innings to improve to 3-3 in spring
training. The Phillies again got a nice outing from their starting pitcher
while the guys who followed him were pounded. Over the past five games
Phils' starters have thrown to a 1.93 ERA in 14 innings but Phillies'
pitchers have combined to allow 42 runs.
Dobbs started at third and Garcia in right. Dobbs was 0-for-2 with two walks. Garcia was 1-for-4 with a two-run single. Coste was 0-for-1 as a pinch-hitter.
Ryan Howard had a two-run double. Rod Barajas had a three-run double and a walk of all things, which should be encouraged. Barajas has 85 walks in 1,621 career at-bats. His career high is 26. Consider flowers. Last season, in 339 at-bats with the Phils, Bobby Abreu walked 91 times.
Werth was 2-for-3 with a walk and a stolen base. Brennan King had a two-run single in the top of the tenth to put the Phillies up to stay.
Jamie Moyer got the start for the Phils and cruised through two innings, allowing a single single. In the third he got the first two men before walking the bases loaded and getting Adam LaRoche to ground out to first. Geoff Geary followed Moyer and allowed two singles in two scoreless frames. Fabio Castro started the sixth allowed two runs, only one of which was earned thanks to an error by Bourn in center. Castro returned for the seventh and the Phillies made two more errors -- Castro ended the day charged with four runs in 1 1/3 innings on three hits and a walk. Only one of the runs was earned. Joe Bisenius finished the seventh for Castro, retiring the only man he faced.
Tom Gordon pitched the eighth and allowed a single in a scoreless frame. Matt Smith was on the hill in the ninth and the Phillies made two more errors as the Pirates scored five times. Smith went 2/3 of an inning and was charged with five runs on three hits and a walk. Only two of the runs were earned. Two of the runs came in after Jeff Farnsworth had relieved Smith -- Farnsworth allowed a two-run single that scored runners charged to Smith before getting the final out of the inning. The five-run ninth tied the game at 9-9 but the Phils pulled ahead 11-9 in the top of the tenth. Farnsworth returned for the bottom of the tenth and allowed a solo home run to Brad Eldred but finished out the game to earn the save.
Five errors on the day for the Phillies. Two for Sandoval and one each for Bourn, Simon and Andrew Beattie.
The Phillies play the Blue Jays this afternoon.


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Psychological Meaning of Dreams about Snakes
The snake is one of the world's oldest symbols found in some of the most ancient sculptures. They are often used as phallic symbols and have long been linked with pagan fertility gods. Because it lives close to the ground, the snake is an emblem of the nurturing earth and also the unknown perils of the underworld. Christian imagery emphasises the dark side of this symbol.
It is considered evil, yet it is the snake, created by God, that tempts man to gain knowledge. Sometimes snakes can symbolise the poisonous words and innuendo of the people around you.
Mystical Meaning of Snake Dreams:
Entwined snakes appear on the god Mercury's caduceus, which is a symbol of the medical profession to this day. The Greeks attributed healing powers to the snake and similar symbolism may be found in Indian Kundalini yoga where it represents the life force that rises up the spinal chord. In particular, the cobra is a symbol of divine enlightenment and associated with the god Shiva
Video About Snake Dream Meanings
Snakes are cold blooded legless reptiles closely related to lizards, which share the order Squamata. There are also several species of legless lizard which superficially resemble snakes, but are not otherwise related to them. A love of snakes is called ophiophilia, a fear of snakes is called ophidiophobia (or snakephobia). A specialist in snakes is an ophiologist. An old synonym for snake is serpent; in modern usage this usually refers to a mythic or symbolic snake.
The snake is one of the 12 animals which appear in the 12-year cycle of the Chinese zodiac related to the Chinese calendar. According to Chinese folklore, each animal is associated with certain personality traits, and those born in the year of the Snake are calm and gentle, romantic and perceptive. However, they may be prone to sloth and vanity.
There are many strange superstitions about snakes. It was beleived that to see a lone snake and feel threatened by it in a dream or in real life shows that you have a bad enemy that is working against you, it also a warning against bodily harm from an enemy. To dream of many snakes in a pit was also considered to be a foreboding of much bad luck in love or business. If in a snake dream you overcome and kill a threatening snake in your dream, it shows that you will overcome your adversary and win out.
Craig Hamilton-Parker
CRAIG HAMILTON-PARKER is a celebrated U.K. medium who has confounded skeptics by the uncanny accuracy of his readings. Craig and his wife, Jane, have demonstrated mediumship on the media to millions of television viewers worldwide. Craig Hamilton-Parker also writes articles and columns about dreams and psychic phenomena for national newspapers around the world.


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FINAL: Drexel 66, Penn 64
Rodgers misses a free throw, keeping it at one possession. Rosen tries to do too much and is forced into a corner where he jacks up a three that falls well short...but he's fouled. The frosh will go to the line needing to sink all three to tie it up. Rosen misses the first. Makes the second. Lewis comes in to board. Rosen clanks the last, Lewis gets the board, gets it to Votel who has to awkwardly force up a hook that falls short. Game over.
00:14.7 2nd Half -- Drexel 65, Penn 63
Neisler misses both and Votel boards it. Rosen runs downcourt and spins, dishing to Egee in the corner who hits nothing but net with a hand in his face. The Red and Blue Crew tells the ref: "You have 15 seconds, try not to fuck this up." His reponse? "I'll do my best."
00:25.1 2nd Half -- Drexel 65, Penn 60
Harris makes the second. Belcore flies downcourt and Rosen sets up the offense. Bernardini gets partially blocked on a drive but the ball falls back to him. He's out of control and under pressure under the basket and Drexel collects the board and a trip to the line.
00:45.9 2nd Half -- Drexel 64, Penn 60
After a scramble for the ball, the refs give Drexel possession -- and a full shot-clock. Miller is irate as are most of the Penn fans in the crowd. The refs look at the replay and set it to 4, forcing a bad shot from Drexel after the inbounds. But once again, the Dragons clean up the miss and Penn is forced to foul Jamie Harris. Harris misses the first and Miller calls timeout.
1:17 2nd Half -- Drexel 64, Penn 60
My browser couldn't have picked a better time to crash. Oh well. This one's being played from the foul lines right now, and it's not impressing ESPN. One of two seems to be the norm.
1:40 2nd Half -- Drexel 64, Penn 59
3:07 2nd Half -- Drexel 62, Penn 57
Miller wants a walk but instead, Loughery gets called for a foul. The Red and Blue Crew taunts Tribbett at the line, making "Ribbitt" frog-calls. He misses both. Hmmmm...
Votel gets called for his fourth and Tribbett returns to the stripe, and knocks both down. Maybe the "Ribbitt" taunts and him missing were just a coincidence. You decide.
Votel misses two from the line; this has been a pitiful shooting performance from Penn. That said, he skies for an easy lay-in off a miss and Drexel keeps missing shots, keeping it close.
5:23 2nd Half -- Drexel 60, Penn 55
Bernardini goes for a sweet up-and-under in the lane after two free throws from Drexel. Hawthorne one-ups him with a drive that culminates in a soft floater off the glass.
7:04 2nd Half -- Drexel 56, Penn 50
Hawthorne slows it down and the Dragons start passing up on open three to drive, which is drawing fouls from Penn. Eggleston picks up his fifth and is gone.
7:29 2nd Half -- Drexel 56, Penn 50
In a bit of a switch, Bernardini drives and dishes to Eggleston for a three. Meanwhile, Drexel is having a tough time finding the basket, but an Egee airball gives them two points on the other end.
9:51 2nd Half -- Drexel 51, Penn 45
Rosen gets his first points as an NCAA athlete, swishing both tries from the line and picks up a board off a Hawthorne miss. Votel steps around his defender on the perimeter and beats him the basket for two. We're going back and forth for the lead and both the Drexel student and Red and Blue Crew are jumping. But Lewis turns it over and Hawthorne goes the length of the court -- and behind his back -- to beat Gaines for the hoop and the harm. Votel gets aggressive, posting up and fading away, drawing another foul. But he only makes one and Drexel makes two -- not a good equation for Penn.
11:41 2nd Half -- Drexel 44, Penn 40
The game is slowing down now. Both teams are missing but neither is getting its transition game going. Gaines' cold-shooting continues, but Rodgers gets called for his second foul (although Tommy McMahon yells: "Four! That's four!"). The Dragons are racking up bad fouls now; Penn just needs to get to the line. Drexel slows it down as Penn continues to eat into the its lead. Rosen heads to the line for two.
14:57 2nd Half -- Drexel 42, Penn 38
Egee gets another tough two and then a board on the other end. Bernardini slips between Drexel's bigs and tips in a Rosen miss.
15:38 2nd Half -- Drexel 42, Penn 34
Pair of quick fouls on the Dragons and Bernardini comes off a screen at the elbow for his second three of the game. All the calls are going Penn's way now, as Drexel gets called for a foul on the offensive boards and then another one on defense. Bernardini plays a little give-and-go with Votel, who scores on an easy layup. But Jamie Harris gets open against Penn's zone and knocks down a three.
17:05 2nd Half -- Drexel 39, Penn 29
The Red and Blue Crew's shot-clock shenanigans may not work, but Penn's zone finally does, forcing a 35-second violation. But wait, Eggleston is called for a foul as the clock hits 0 and Drexel gets it back, but can't do anything other than give Penn a transition bucket. The Dragons' Evan Neisler comes right back with a three-point play. Turley is in now and quickly gets called for a foul. Votel clanks a pair of putbacks and Lewis comes in for Turley.
HALFTIME -- Apparently ESPN's Andy Katz picked Yale to win the Ivy League during the halftime show. Curious where that one's coming from.
HALFTIME -- Drexel 34, Penn 27
A Drexel fan triumphantly waves a trophy with a "33rd Street" sign slapped on it at the Red and Blue crew, who are seated right behind us. Rosen misses the first of a one-and-one. Off a Drexel miss, Egee goes coast to coast and absorbs contact for a tough layup. He follows that up with a three from the corner on the next possession, and the Red and Blue is pumped up. Votel relieves Eggleston while Jamie Harris goes to the line. He makes the first. Gaines continues to be just off with his shots. Tommy McMahon slaps Brennan Votel on the butt as he inbounds, but the good-luck charm doesn't work -- the Quakers are called for a questionable offensive foul, giving the Dragons another trip -- now the double-bonus -- to the charity stripe. Givens makes one of two. Loughery, who has seen lots of minutes, heads to the line but can't capitalize on the first of the bonus. With 7.9 left on the clock, Rosen drives down and Eggleston misses a three.
Halftime stats:
Leading scorers
Penn -- Kevin Egee, 11
Penn -- Brennan Votel, 6
Drexel -- Gerald Colds, 8
Drexel -- Tramayne Hawthorne, 8
FG pct.: Penn 36.7 (11-30), Drexel 38.2 (13-34)
3-pt pct.: Penn 22.2 (2-9), Drexel 30.8 (4-13)
FT pct.: Penn 37.5 (3-8), Drexel 40.0 (4-10)
Rebounds: Penn 18 (3 offensive), Drexel 25 (8 offensive)
2nd chance points: Penn 2, Drexel 13
3:46 1st Half -- Drexel 32, Penn 20
Rodgers slices through Penn's D, NBA Live-style, for a nice layup. Drexel gets called for its sixth foul, a shooting one, and Votel goes to the line for two. He misses both, and though Bernardini finally gets his first points of the contest, Hawthorne answers with a three and Cofield gets called for a charge going back down the court. This is starting to remind me of last year's season opener. Eggleston ices both of his free throws, nothing but net on the one-and-one.
7:51 1st Half -- Drexel 25, Penn 15
Cam Lewis checks in, presumably to give the Red and Blue more presence on the defensive blocks. He makes an immediate impact, picking up an offensive board and dishing to a driving Gaines for a bucket. Then, Gaines maneuvers through a double-team and goes baseline for another basket. Loose ball foul on the Dragons and Penn is showing signs of life...as I say that, Gaines gets greedy and gets called for a push-off, which gives Drexel a bucket, and then a steal of the subsequent inbounds. Lewis is forced to foul Jamie Harris, who makes both at the line. Rosen comes back in to calm things down and finds Lewis in the post, but his shot is blocked giving the Dragons another transition bucket. Hawthorne gets shaken up and limps off the court, but under his own power. We'll see if he returns. Cofield comes in for Egee now.
Halftime stats:
10:45 1st Half -- Drexel 19, Penn 11
Rob Belcore comes in for Penn. The Quakers' zone gives Rodgers an open look from downtown, and though he misses, he cleans it up himself for two. Belcore hits a three -- against the side of the backboard. Ugly.
11:54 1st Half -- Drexel 15, Penn 11
Despite the timeout, Penn's trapping zone looks like its working...until Hawthorne is found in the corner for a knockdown three. Gaines is back in, now for Rosen; Loughery checks in for his first appearance as well and promptly forces one up from deep in the post.
13:08 1st Half -- Drexel 12, Penn 11
Egee comes in for Gaines, who has missed three shots thus far. The Dragons' man defense is frustrating Bernardini, who hasn't gotten a look yet. Egge drives baseline for two and then grabs a board on the other end. Bernardini comes off a screen at the top of the key but misses, and Colds makes an open trey in transition. After a nice steal in the post, Penn moves it well and Votel picks up an easy lay-in under the bucket. Penn is ratcheting up the defensive intensity now, as another steal yields an Egee basket. Drexel timeout.
15:33 1st Half -- Drexel 9, Penn 5
Penn wins the tip and immediately goes into their high motion offense, giving Eggleston a clear path to the basket. He gets fouled by Tribbett but only makes one. Gerald Colds responds by taking advantage of Penn's zone for a triple. Rosen forces a shot from the top of the arc and Drexel brings it down the court for two. Bernardini gets called for an offensive foul. Penn looks rushed right now; luckily for it, Drexel is missing shots. Eggleston drives again and makes a nice spin move for an easy layup. Lots of back-and-forth action now but both teams are missing their open shots. Votel misses a block-out and Yannick Formbor puts back an offensive board and draws the and-1.
Brandon Moyse here on a beautiful Tuesday morning for basketball -- not that it matters in the quaint confines of the DAC, Penn's first-ever visit to the Dragons' home court. We just sat through one of the strangest renditions of the National Anthem this side of Rosanne, and the starting lineups are about to be announced.
F Brennan Votel
F Jack Eggleston
G Harrison Gaines
G Zack Rosen
G Tyler Bernardini
G Scott Rodgers
G Gerald Colds
G Jamie Harris
F Kenny Tribbett
F Evan Neisler


text:
From Peter King's Monday Morning Quarterback this week:
Ten Things I Think I Think:
7. I think the nicest story I've heard in the wake of the Super Bowl came in the officials' locker room after the game. Vice president of officiating Mike Pereira entered the locker room to find field judge Greg Gautreaux crying, and they were tears of joy and relief. Seems that Gautreaux, the man who made the immediate and correct call on the touchdown catch by Santonio Holmes by seeing Holmes get both feet down in fair territory while possessing the ball as his body hit the ground, was petrified that the biggest call of his life, a call he had to make in a millisecond, might be wrong. But it wasn't. It was perfectly correct. "That's a call that will define your career,'' Pereira told Gautreaux.
I'm not saying other jobs aren't stressful but to do it with billions of people watching has to take it's toll.
I had dowzens of people watching my games when I reffed and it was difficult. Next time you bash a ref, remember he has a family. Bash the call not the ref.


text:
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text:
Updated: 10/03/2013 10:58 AM |
Created: 10/03/2013 10:41 AM
By: Elizabeth Reed, KOB.com
ALBUQUERQUE -- It's a girl! A baby elephant born early Wednesday is now the seventh member of the Albuquerque BioPark zoo's herd.
Zookeepers introduced the newborn calf at a news conference on Thursday morning.
Officials said the calf is healthy and bonding well with her mom, Rozie the Asian elephant. The newborn will meet her sister, Daizy, and grandmother, Alice, in a few days.
Rozie was the first elephant born at the BioPark in 1992.
The new calf will make her zoo debut in the coming weeks, and once again, the public will be invited to vote on a name.
KOB welcomes a lively and courteous discussion as long as you follow the rules of conduct set forth in our Terms of Use. Comments are not pre-screened before they post. You agree that anything you post may be used, along with your name and profile picture, in accordance with our Privacy Policy and the license you have granted pursuant to our Terms of Use.
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Bipolar Disorder Health Center - Aurora, CO
WebMD Physician Directory
Aurora, Colorado
Aurora is a Home Rule Municipality spanning Arapahoe, Adams, and Douglas counties in Colorado. The city is the third most populous city in the state of Colorado.
Bipolar Disorder
Bipolar Disorder Overview
Bipolar disorder (BD) is a type of mood disorder. Bipolar disorder was called manic-depressive disorder in the past. It is a psychiatric illness that causes major disruptions in lifestyle and health.
Other Related Bipolar Disorder Health Articles
Emergency Contact for Aurora
Nearby Aurora Hospitals *
Jefferson Hills
Medical Center Of Aurora-South
Kindred Hospital Aurora
Medical Center Of Aurora North
Spalding Rehabilitation Hosp
University Of Colorado Hospital
Children's Hospital Colorado
Rose Medical Center
Denver VA Medical Center
Porter Adventist Hospital
Craig Hospital
Kindred Hospital-Denver
Exempla Saint Joseph Hospital
RMHC Prsby St Lks Mdcl Cntr
Select Specialty Hospital
Swedish Medical Center
Denver Health Medical Center
Colorado Acute Care Hospital
Colorado Mental Health Inst
Children's Hosp Outpatnt Spec
Parker Adventist Hospital
Littleton Adventist Hospital
Skyridge Medical Center
Vibra Hospital
West Pines Behavioral Health
Exempla Lutheran Medical Center
North Suburban Medical Center
St Anthony North Hospital
St Anthony Hospital
Jefferson Hills Lakewood
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text:
Surrogate Giuliani fires up crowd for Romney in Boca RatonFriday, July 27th, 2012 by George Bennett
BOCA RATON — Rudy Giuliani guaranteed a 2013 economic boom if Mitt Romney is elected president while saying President Obama should apologize to the American people for the latest bit of sluggish economic news.
Appearing before more than 200 Romney supporters at a sweltering storefront Romney campaign headquarters this afternoon, the former New York mayor and unsuccessful 2008 White House aspirant blasted Obama's handling of the economy and the fact that he hasn't made a presidential visit to Israel.
"This morning's numbers on the growth of our economy were so horrible, so anemic, 1.5 percent, that Barack Obama should have walked outside the White House and apologized to the American people," Giuliani said.
The Commerce Department today said the economy grew at a 1.5 percent rate during the second quarter.
"I guarantee you that if we elect Mitt Romney, our economy next year will boom," said Giuliani, who hailed the former Massachusetts governor as a successful businessman.


text:
The No.5 Culture Chanel exhibition opened this weekend in Paris, and we were there to report on all of the highlights
Butterfly tea bag. Love it!
(Source: vanillaaaaaaaa)
(Source: totes-obvi-bro)
I dreamed of this house a few weeks ago. Except, it was a boat…
(via unspokenwordsandcoffee)
A taste of summer…
(via unspokenwordsandcoffee)
(Source: curtisgoodes, via put-y0ur-p4ws-up)
Mihoko Ogaki's sculpture installations are a poetic interpretation of Carl Sagan's assertion that we're all made of star stuff. She sculpts dead and dying figures that beam pinpoints of light from the inside, turning them into the origins of glorious galaxies at the moment of death.
Ogaki's work often reflects a fascination with both the beginning and the end of human life, portraying it in ways that attract our fascination with moments in human development we sometimes push from our consciousness. Her dying figures are sometimes distressing and sometimes meditative, but when you turn off the lights, the LEDs surround the viewer with a brilliant reminder that so much exists in the universe beyond that single human life.
Milky Ways [Mihoko Ogaki via Colossal]
(via unspokenwordsandcoffee)
Annika Weis | http://behance.net/annikaweis
"The strategic positioning 'Strong Together' was visually articulated in the overlapping of the individual letters of the brandmark. A broad spectrum of colours was used to represent core internal pillars of love, hope, strength, wisdom and belonging creating a positive brand expression for both internal and external audiences. Developing the system further, supergraphics were created using enlarged, cropped sections of the brand device. This strong visual language and colour system has been applied to all facets of the business from online, office interiors, merchandise and wayfinding signage."
Senior designer based in Sydney, Australia. Focused on graphic design, branding and print design.
Great Expectations
Carey Mulligan as Daisy Buchanan
Shot by Mario Testino for Vogue
(Source: joanna--joe, via unspokenwordsandcoffee)
Jewellery fashions photographed by Leombruno Bodi, 1954.
Liquid Dreams #15
Jack Hardwicke


text:
1-10 of 103 properties for sale found
3 bed semi-detached house for sale
4 bed detached house for sale
£1,750,000 Guide Price
Guide Price £1,750,000
8 bedroom detached house for sale High Street, West Malling, Kent
A most attractive Queen Anne village house with very spacious accommodation (6800 sq ft) with glorious secluded walled gardens of just under 1 acre More details ›
£1,575,000 Offers in Region of
Offers in Region of £1,575,000
6 bedroom detached house for sale Town Hill Close,West Malling,ME19
*Stunning Contemporary Home * Six Bedrooms inc Three Ensuites * Three Reception Rooms * Triple Garage with Studio/Office Over * Underfloor Heating & Heat Recovery Systems * Triple Glazing Throughout * Intergrated Audio & Lighting Systems * NHBC Guarantee * Central West Malling Position More details ›
£899,000 Offers Over
Offers Over £899,000
5 bedroom character property for sale St. Leonards Street, West Malling, Kent, ME19
- Stunning Conversion Of a Former Coach House - Five Spacious Bedrooms - Generous Lounge - Separate Dining Room - Kitchen/Breakfast Room - Delightful Plot - Double Garage - Very Private Location - Short Walk To West Malling - Extremely Rare Opportunity - PRICE RANGE: £899,000-£925,000 More details ›
£800,000 Guide Price
Guide Price £800,000
4 bedroom bungalow for sale St. Leonards Street, West Malling
4 Bedroom bungalow set in St. Leonard's Street which is a short distance from West Malling High Street. This chalet bungalow provides spacious accommodation set in a secluded plot of a approx. 1/2 acre. Planning permission has been applied for a substantial contemporary 5 bedroom detached propert... More details ›
£750,000 Offers Over
Offers Over £750,000
6 bedroom detached house for sale Cellini Walk, Kings Hill, West Malling, Kent
The benefit and ease of Kings Hill living, yet with your own peaceful haven. A substantial size home with enough space to grow. Contemporary living with an injection of character. More details ›
4 bedroom semi-detached house for sale High Street, West Malling
This very individual property is situated in a conservation area and the main part was built in the 1850s as the West Malling Boys School - it is believed that there had been a school on the site from the 17th century. The school was closed in the 1950s and sold in the late 60's when it was exten... More details ›
£695,000 Guide Price
Guide Price £695,000
3 bedroom terraced house for sale ST. LEONARDS STREET, West Malling, ME19
- Large & Stunning Three Bedroom Home - Set Within Grounds Of Douces Manor - Parkland And Gardens Setting Of Approx.12 Acres - Adult Residents Only (Over 16) - High Quality Refinements Throughout Coner Plot Offering Good Privacy - Single Garage & Guest Parking - Safe & Secure Location More details ›
5 bedroom detached house for sale Charlotte Drive, Kings Hill, West Malling , Kent.
Located on the popular Kings Hill development this detached house offers great accommodation. This executive home benefits from six bedroom, two with en-suite, lounge, dining room and open plan kitchen breakfast room. Externally there is a good size rear garden and double detached garage. More details ›
Added on 22/08/2014 by Purpleproperty.biz, Sittingbourne. Call: 01795 395043 Local call rate
5 bedroom detached house for sale Charlotte Drive, Kings Hill
Stunning presentation throughout! Large 5 bedroom detached family home with 2 En-Suites, detached double garage, 3 receptions and utility room. More details ›
5 bedroom detached house for sale The Matfield at Plot 1,Keepers Court, Oaks Hamlet, Kings Hill ME19
**HIGH PERFORMANCE** CONTEMPORARY,SPACIOUS Five bedroom house, including two en-suite bedrooms; family bathroom; Upstairs Study/Bedroom 5 with void over.Large living room has a pocket door to the kitchen/family room.Rooflights flood stairs/landing with light. Bonus room in LOFT.Many extras included More details ›
Thank you.
Your information has been sent to 0 out of 26 agents and developers who have property to sell in the area you specified.


text:
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10:30 am
December 25, 2011
My Slingcatcher started having an issue connecting to the network. The network light won't light up on the Slingcatcher, but it lights up on my router. My router is brand new. Does the Slingcatcher have issues with the capacitors also? It works sometimes, but not all the time. I'm thinking maybe bad capacitors like the other slingbox products have.
Good possibility that it is a bad power supply. If you have another you can test with I would start with that.
4:24 am
July 26, 2011
5:16 am
May 24, 2011
6:02 am
December 25, 2011
8:23 am
May 24, 2011
lennemann23 said
@ Micke0 - How did you open your power supply? I thought it was sealed. Please advise.
Yes, as You wrote, it was...
...no more!
Please never ever make my broken powersupply-picture public in the sling-forum!
You will be "banned" directly without any warning! Houserules?
At least they nowadays admit that it could be "some" problems with this equipment!
8:44 am
July 26, 2011
lennemann23 said
@ rezna11 - The problem goes away when I go directly into my router. I was using a wireless Netgear box that uses an cat5e cable from it into the Slingcatcher.
@ Micke0 - How did you open your power supply? I thought it was sealed. Please advise.
Then the Slingcatcher is probably OK. Might be a DHCP issue. Try setting up the IP address on your Slingcatcher manually.
Must be registered to post


text:
COLUMBIA, SC (WIS) - The City of Columbia appears ready to sell the property that includes Capital City Stadium.
It's a proposal that could dramatically re-shape the community around the ballpark, but it could also force developers to overcome some significant environmental obstacles.
Rocky Branch Creek flows through the Olympia neighborhood and the area very close to Capital City Stadium. About eight years ago, a group of people in the community envisioned a plan that would clean up the creek and make it into a sort of a greenway -- a real recreational attraction.
Olympia resident Bob Guild thinks that plan to sell the area around the stadium has potential to set back the saving of Rocky Branch and maybe create new water quality issues in the area.
"The typical approach to developing a big box commercial property is to pave over everything and exacerbate, make worse storm water and water quality problems," said Guild. "So it's a challenge."
Guild has dealt with this scenario before.
He's an attorney who specializes in environmental law and has led challenges to four Wal-Mart store projects in various parts of the state.
The Atlanta-based developers planning to buy the stadium property have been associated with Wal-Mart. However, there's no official confirmation the company will build a store in the spot or how big it might be.
But some who have seen preliminary plans say they call for a store of up to 150,000 square feet of space and an elevated parking garage.
Guild says that could be tricky to pull off on property sitting in a flood plain where the water could get more than 10 feet deep.
"It remains to be seen whether this development will work out to our benefit. Elements of it sound very attractive. The idea of a structured parking lot instead of a sea of asphalt, that is you know, a parking garage makes perfect sense," said Guild. "The idea of protecting the flood plain and floodways and making the stream and the wetlands on the site a park or an amenity, if that's what they actually do, that would be great."
Some areas around the stadium show clear signs of neglect. Guild says the shopping development would help eliminate them and be a big plus for the community.
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