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By John Beisner and Geoffrey M. Wyatt, Skadden, Arps, Slate, Meagher & Flom LLP
A year ago, the U.S. Supreme Court decided Wal-Mart Stores, Inc. v. Dukes1—one of its most detailed pronouncements on the meaning of Fed. R. Civ. P. 23, the rule governing class-action practice in federal courts, and the first ever to examine in detail the portion of that rule governing certification of claims seeking injunctive relief.
In Dukes, the Supreme Court reversed an en banc ruling of the U.S. Court of Appeals for the Ninth Circuit that gave the green light to a sprawling nationwide class action that encompassed 1.5 million female Wal-Mart employees. The plaintiffs had alleged discrimination and sought injunctive and declaratory relief as well as backpay, and the Ninth Circuit had affirmed certification of the class under Rule 23(b)(2), which allows class treatment of claims where "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole."
In explaining its conclusion, the Court set forth several important propositions that have already broadly influenced class-action litigation. Specifically, it clarified that "Rule 23 does not set forth a mere pleading standard," and the decision whether to certify a class requires a "rigorous analysis," and imposes a burden on the movant to "affirmatively demonstrate his compliance with the Rule."2 It also held that in its en banc decision, the Ninth Circuit had misapplied the commonality standard of Rule 23(a)(2), which requires that "there are questions of law or fact common to the class."3 The Supreme Court explained that "[c]ommonality requires the plaintiff to demonstrate that the class members have suffered the same injury"—not "merely that they have all suffered a violation of the same provision of law."4 Put simply, the Court explained, there must be "some glue holding the alleged reasons for all th[e allegedly discriminatory] decisions together," such that "examination of all the class members' claims for relief will produce a common answer to the crucial question[.]"5 The Court explained that the proposed class fell far short of this standard given that the "crucial question" in each class member's case—i.e., "why I was disfavored?"—could not be resolved with a "common answer." Rather, such a question entailed "millions of employment decisions" that destroyed any semblance of commonality.6
The Court also held that the Ninth Circuit's en banc decision misapplied the standard for certification under Rule 23(b)(2) in a number of respects. It began by explaining that the core prerequisite for (b)(2) treatment is the "indivisib[ility]" of the requested relief, be it injunctive or otherwise in nature.7 Noting the requests for backpay in the case were certain to involve individualized analysis, the Court concluded that they could not be certified under (b)(2).8 It further suggested that claims seeking monetary relief may never be appropriate under (b)(2), and certainly not "where … the monetary relief is not incidental to the injunctive or declaratory relief."9 Finally, addressing the lower courts' efforts to circumnavigate this problem by reliance on a sample set of class members to prove liability and damages with respect to the entire class, the Court rejected such a "Trial by Formula" as contrary to the federal Rules Enabling Act, which "forbids interpreting Rule 23 to 'abridge, enlarge or modify any substantive right.'"10 Of particular concern to the Court was the fact that the proposed trial plan would have deprived Wal-Mart of its statutory defenses under Title VII.11 As the Court explained, "a class cannot be certified on the premise that [a defendant] will not be entitled to litigate its … defenses to individual claims."12
Though much has already been written about the decision, the courts are still debating the significance of Dukes. Some have questioned its importance, suggesting that its holding will likely be limited to the facts of the case before it—the sui generis, titanic class comprising 1.5 million members13—or, more generously, to employment actions14 or actions seeking injunctive relief15 generally. As one federal district court put it, Dukes "did not change the law for all class action certifications. Instead, it provided guidance on how existing law should be applied to expansive, nationwide class actions."16 Along similar lines, another court opined that Dukes "simply reflects the application of the long-standing rule that class members suffer a common injury."17 But this is shaping up to be a fringe view. A significant majority of courts and commentators have been impressed with Dukes's portent for the field, describing the case as a "landmark" decision18—even "the most important decision on the landscape of class certification law"19—and predicting that it "will make it harder to certify all class actions."20
So far the majority view appears to have it right. In the application of Rule 23's specific procedural requirements, courts have suggested an effect for Dukes on many of the requirements for class certification—far beyond the commonality and (b)(2) provisions that were central to the Dukes analysis. And it has even made an impact beyond the federal class-action arena.
This article is by no means a comprehensive review. Hundreds of decisions have already cited Dukes. Instead, it covers a sampling of these decisions in an attempt to provide a broad but detailed overview of this one decision's impact on the class-action universe.
Most prominently, Dukes has changed the way courts approach class-certification requirements. These changes, of course, extend to the particular certification requirements addressed in that case—commonality and (b)(2) class actions—but have also had an impact on other class-certification considerations.21
The Supreme Court long ago held that courts must undertake a "rigorous analysis" in deciding whether to certify a class.22 But this term has arguably been assigned a different meaning after Dukes, which emphasized that a truly rigorous analysis will usually require a court to look beyond pleadings and assess the evidence and merits of a case to decide whether a case could really be proven on a classwide basis—and that the "party seeking class certification must affirmatively demonstrate" this fact.23
As one commentator has pointed out, this part of Dukes means that it would now be error to indulge the old presumption in favor of class certification, and that doubts should no longer be resolved in favor of class certification.24 Most courts have reached the same conclusion. As one court noted, compliance with Rule 23 cannot be presumed even "notwithstanding Defendant's failure to file an opposition" to a motion for class certification.25 Another court explained that it could not "[s]imply adopt[] plaintiff's assumptions" that the evidence will apply uniformly to the class.26 And a third underscored the burden on the plaintiff to affirmatively demonstrate how the evidence in the case will enable class treatment by remarking that it is not sufficient for the plaintiff to "drop[] off" a "banker's box full of discovery materials" in support of class certification.27 Rather, the plaintiff must specifically identify relevant evidence in proving compliance with each and every requirement of Rule 23—even numerosity28—and a court must not "contort the requirements in order to certify."29 If necessary, a court should hold an evidentiary hearing to test whether the plaintiff has really met its burden in demonstrating compliance with Rule 23's requirements.30
Dukes itself offered at least two concrete examples of how its rigorous analysis would change class certification as a practical matter going forward: the use of statistical evidence to overcome problems of individualized evidence; and the significance of affirmative defenses.31
For example, Dukes rejected the proposed use of statistical sampling to prove liability on a classwide basis, which had previously been permitted by at least some courts.32 It viewed the use of sampling in lieu of the individualized proceedings they would replace as incompatible with the Rules Enabling Act, which "forbids interpreting Rule 23 to 'abridge, enlarge or modify any substantive right.' "33 In other words, at least as a general matter, the mere fact that a case is tried as a class action does not permit proof of a claim by different types of evidence than would be required to prove an individual claim in a traditional trial. Some courts have already followed this ruling in rejecting proffers of statistical proof intended to overcome individualized variations inherent in the class.34 These rulings demonstrate that, after Dukes, it will be harder to demonstrate that liability can be proven on a classwide basis. Although courts and commentators have suggested that aggregate or statistical proof might still be admissible to prove classwide damages,35 it is clear that litigants can no longer use statistics to attempt to paper over individualized issues on causation and the other elements of liability.
Relatedly, Dukes held that individualized defenses cannot be ignored in the certification analysis, stating that "a class cannot be certified on the premise that [the defendant] will not be entitled to litigate its statutory defenses to individual claims."36 The Dukes decision tied this statement to its ruling on statistical proof, explaining that the proffered evidence would have stripped Wal-Mart of its defenses, and suggesting that such a proceeding would abridge or modify Wal-Mart's "substantive right[s]."37 This holding may add significant rigor to the certification inquiry, particularly in light of the prior "tradition[]" of according less weight to individualized affirmative defenses in the class-certification inquiry.38 Since Dukes, some courts have continued to tow the old line,39 but most courts have changed course.40 And state courts, which are not bound by the federal Rules Enabling Act (the law that animated the Dukes view on this issue), have nevertheless also followed this aspect of the ruling, finding the need to consider defenses in the class-certification analysis as rooted in due process.41
The bottom line is that Dukes has reversed any old presumption in favor of certification: after Dukes, it is clear that courts should search rigorously for reasons to deny class treatment and, only after finding none, consider certification.42
The relevance of standing to class certification is a source of disagreement among the federal courts of appeals. Some courts have held that a class cannot be certified if it contains members who would lack standing to bring individual suits43; others have concluded that standing should not be considered as long as the class representative has standing to sue.44
Dukes did not directly address standing, but it did note that some members of the class would lack standing to sue for injunctive relief since they were no longer employed by Wal-Mart and thus could not possibly enjoy any benefit from an injunction.45 At least two courts have taken this discussion in Dukes as a suggestion that a class must be "defined in such a way that anyone within it would have standing."46 This reading of Dukes would weigh in favor of those courts that have held that absent-class-member standing is a prerequisite to class certification, but it remains to be seen whether courts that had rejected such a requirement prior to Dukes will read its brief discussion of standing in a similar light.47
Although it is not an explicit requirement of Rule 23, the ascertainability rule—that class membership is discernible by reference to objective (and objectively verifiable) criteria—has been accepted as an implicit requirement by most federal courts that have considered the issue.48 Once again, Dukes itself made no direct statements about ascertainability. But at least one court has demonstrated that Dukes's "rigorous analysis" requirement could have a significant impact on ascertainability questions.
Specifically, in Stone v. Advance America,49 the plaintiffs sued check-cashing companies that provide payday loans, alleging that they had discriminated against a class of individuals who "principally spoke Spanish in the discussion or negotiations leading to the loan."50 The court rejected the class as unascertainable. Citing Dukes's instruction that courts consider the merits of a claim to the extent they overlap with class-certification requirements, the court explained that the evidence on record demonstrated that the "only way to determine if a specific customer principally spoke Spanish is to evaluate the particular transaction."51 The court emphasized that the problem "raise[d] due process concerns" because the question whether a self-identifying class member actually "principally spoke Spanish" during a relevant transaction was a credibility matter that the defendant was entitled to test through cross-examination.52 This language in turn echoes the Supreme Court's admonition in Dukes that defendants must be entitled to raise individualized defenses where they apply.53 In short, Dukes suggests that greater scrutiny of certain class definitions may be appropriate where membership depends in any significant degree on self-identification.
Not surprisingly, courts and commentators have written much about the impact of Dukes on the commonality requirement of Rule 23(a)(2). Most agree that Dukes elevated the showing required to satisfy commonality.54 But courts are divided on the details, particularly over the character of the common question that a plaintiff must identify in order to support a bid for class certification. In particular, courts have disagreed over how central such a question must be to the claims at issue, as well as how specific it must be.
As to centrality, most courts have agreed that a common question must be one that is a "central" or "important" question—one at the "crux" of the case.55 These cases typically cite Dukes's holding that a common question should be one whose determination "is central to the validity of each one of the claims in one stroke."56 In Corwin v. Lawyers Title Ins. Co., for example, the plaintiff brought a putative class action against a title insurance company, claiming unjust enrichment, and alleging that the company overcharged her by failing to provide a discounted rate that must be granted when the purchaser of a title policy provides evidence that she had previously purchased other title insurance on the subject property.57 The district court denied the plaintiff's motion for class certification.58 In holding that the plaintiff had failed to demonstrate commonality, the court acknowledged that she had identified "questions common to the absent class members and the plaintiff that must be decided before liability is established," but it nonetheless concluded that class treatment was inappropriate because "the critical inquiry without which liability cannot attach requires individualized determination."59 Specifically, each class member would have to prove that there "was a previous title policy issued on the specific property in question," a showing that would be "uniquely individualized."60 Because the "critical" issue in the case was not a common one, commonality was not satisfied.
Nonetheless, other courts have disagreed, concluding that "commonality only requires a single significant question of law or fact," and the question whether such issues are "crucial" to the claims of all class members "go[es] to predominance under Rule 23(b)(3), not to whether there are common issues under Rule 23(a)(2)."61
The latter view seems difficult to reconcile with the language of Dukes and would seemingly undo its holding if it were applied in cases seeking certification under Rule 23(b)(2). One way to reconcile this tension would be to conclude that the apparently heightened commonality analysis applied in Dukes was intended to apply in Rule 23(b)(2) cases only; and some courts and commentators have done so.62 Nevertheless, at least for now, the majority of courts appear to have accepted that the commonality requirement can only be satisfied by questions that go to the heart of the plaintiffs' claims.63
Courts also appear to have diverged in the level of specificity they have demanded in proffered common questions, although this issue is somewhat more difficult to measure given the natural variation in facts from one case to the next. For its part, Dukes suggested that commonality means something specific—"that the class members 'have suffered the same injury' "—not merely that they "suffered a violation of the same provision of law."64
As the U.S. Court of Appeals for the Seventh Circuit construed this language in Jamie S. v. Milwaukee Public Schools, for example, litigants must proffer more than "superficial common questions."65 In Jamie S., the plaintiffs moved to certify a class seeking an injunction requiring a local school district and a Wisconsin state agency to provide services to children with special education needs under the Individuals with Disabilities Education Act ("IDEA").66 The district court certified the class, but the Seventh Circuit reversed. Among other reasons, the Seventh Circuit explained that the district court had misapplied the commonality requirement. The plaintiffs' proffered common issue—whether "all potential class members have suffered as a result of [Milwaukee Public Schools's failure to ensure their Child Find rights under IDEA and Wisconsin law"—was nothing more than the "bottom-line liability question in any individual plaintiff's IDEA claim," and thus too "superficial" to establish commonality under Dukes.67 Other courts have spoken similarly.68
But at least one court has suggested that abstract questions may suffice to show commonality, at least in Rule 23(b)(2) cases.69 So far, few others appear to have followed this view, and it is one that is at least arguably in tension with the language of Dukes—itself a Rule 23(b)(2) decision. Finally, a recent holding of the U.S. Court of Appeals for the Fifth Circuit suggests still a third approach, under which the degree of scrutiny of proffered common questions may vary based on the allegations at issue, meaning that a court should make a more demanding inquiry of "amorphous" claims or claims that otherwise strike it as implausible candidates for class treatment.70
That Dukes has changed the law for (b)(2) class actions is also unsurprising and generally accepted. But as with the commonality standard, courts are still working out the details of (b)(2) classes after Dukes. In particular, courts have struggled over whether (and if so when) claims that could entail monetary relief remain certifiable under (b)(2), and have disagreed about precisely when injunctive relief is "indivisible," as required for certification under (b)(2) according to Dukes.
Dukes arguably invited discord over whether and when monetary relief may be sought under (b)(2) by expressly reserving the issue. On the one hand, the decision noted a "possible reading" of (b)(2) that "does not authorize the class certification of monetary claims at all."71 On the other hand, it seemed to embrace the analysis of the Fifth Circuit in Allison v. Citgo Petroleum Corp.72 that monetary claims might be certifiable under (b)(2) as long as they are purely "incidental" to injunctive or declaratory relief, such that "damages [would] flow directly from liability to the class as a whole."73 Most decisions since Dukes have followed the latter reading,74 but some others have expressed "doubt[s]" that (b)(2) certification is appropriate even in cases where "monetary relief is incidental to declaratory and injunctive relief."75 At least one court has posited a justification for such a view, though without deciding the issue. As the U.S. Court of Appeals for the Federal Circuit explained in Beer v. United States,76 because the prospect of monetary relief entails the possible deprivation of property, even claims for incidental monetary relief in (b)(2) class actions raise due-process concerns because of the lack of opt-out rights in such cases.77 And interestingly, the Beer plaintiffs—several Article III federal judges—took the position that, after Dukes, "monetary relief" can never "be reduced to 'incidental' status through a combination with a request for injunctive or declaratory relief."78 Although the Beer decision has been vacated pending en banc review before the Federal Circuit,79 the issues it identifies are likely to be grist for further litigation over the question whether monetary relief is ever appropriate in (b)(2) class actions.
Courts have also exhibited some disagreement over when injunctive relief is truly "indivisible." As Dukes put it, Rule 23(b)(2) "does not authorize class certification when each individual class member would be entitled to a different injunction."80 Interpreting this aspect of Dukes, three courts of appeals have suggested that (b)(2) certification is inappropriate—even in a case seeking injunctive relief—where the proposed relief would establish a unitary administrative process that in turn would fashion individualized relief to each class member. In M.D. ex rel. Stukenberg v. Perry,81 for example, the Fifth Circuit concluded that a proposed injunction to establish "special expert panels to review the cases" in a class of individuals challenging the Texas foster-care system failed to state a claim for indivisible relief under Dukes.82 Although it acknowledged that the proposed panel itself would operate on a classwide basis, the court viewed the requested injunction as an attempt to circumvent Dukes's rule and rejected it.83 The U.S. Court of Appeals for the Seventh Circuit reached a similar conclusion with respect to a putative class alleging a right to education services under the IDEA.84
But the courts do not necessarily agree on the application of this principle. For example, following logic similar to that of the Fifth and Seventh Circuits, the U.S. Court of Appeals for the Third Circuit recently affirmed denial of a class action in a medical-monitoring case, concluding among other things, that an indivisible injunction was not possible despite the proposal of an allegedly uniform monitoring remedy in light of the fact that it "would not be [possible] to prove the medical necessity of plaintiffs' proposed monitoring regime without further individual proceedings to consider class members' individual characteristic and medical histories and to weigh the benefits and safety of a medical monitoring program."85
Indeed, for this reason, the Third Circuit noted its "skeptic[ism]" that medical-monitoring claims can ever be certified under (b)(2).86 But at least one court has suggested disagreement with this assessment, opining that such classes are certifiable, even if the proposed monitoring regime must actually make individualized assessments of fitness for monitoring, as long as the class is defined in such a way that allows a plaintiff to allege that most of its members are likely to need monitoring, and as long as a determination of medical necessity "is built into the program."87
The tension in these decisions reveals that some courts may yet be receptive to creative "injunctive" remedies designed to facilitate class treatment by removing individualized issues from the court's domain and leaving them to later resolution by the proposed remedy. The burden on plaintiffs going forward will be to come up with such remedies, while the burden on defendants will be to attempt to show that such relief in reality would be "class-wide in name only."88
Dukes did not make any new law regarding the standard for certification under Rule 23(b)(3). But in its wake, courts have struggled to describe the role of the (b)(3) predominance requirement—i.e., that common issues predominate over individual issues—in light of the higher standard Dukes set for showing commonality. Some courts have at least implicitly suggested that the commonality and predominance requirements are now essentially identical, such that satisfaction of the commonality requirement itself shows predominance of common issues.89
More often courts have concluded that predominance still requires more than commonality. Thus, for example, in Pryor v. Aerotek Scientific, the court denied class treatment—despite finding that the plaintiffs had sufficiently alleged a uniform policy regarding overtime to satisfy the commonality requirement—because there was "considerable variation in the extent to which individual … employees were affected by" the policy.90 As the court explained, the predominance requirement is still " 'far more demanding' than the commonality requirement," and class treatment requires satisfaction of each.91 These holdings are in better keeping with the language of Rule 23, which enumerates commonality and predominance as separate (if related) requirements, as well as the history of the Rule's application, which had previously viewed predominance as a higher hurdle than commonality. They are also consistent with Dukes's insistence that it had not performed a predominance analysis under the auspices of commonality,92 and its observation that Rule 23(b)(3) is reserved for "situations in which class-action treatment is not as clearly called for"—suggesting that higher scrutiny of such class actions as a general rule may be appropriate.93
Dukes said nothing about settlement, but courts have cited the higher standard for certification it set as a factor weighing in favor of approving class settlements. As one court explained, Dukes presents a new litigation risk for class plaintiffs—even in a case where they had prevailed on class certification prior to Dukes—because the decision "increase[s] the likelihood of unfavorable appellate review" of class-certification decisions.94 Another court agreed, citing Dukes in support of its belief that litigation of the class presented the "risk that Plaintiffs might not be able to maintain certification."95
Other courts have noted the problems that the commonality requirement would pose to certification and have cited the agreement to settle itself as one way of meeting the requirement. One court found commonality satisfied based "upon the stipulation of the parties" regarding one of the core issues in the case.96 Another felt that "[s]ettlement" itself "provides an answer to the common issues raised by all class members, regardless of the specific type of injury" they may have sustained.97
Each of these holdings appears to be at odds with the Supreme Court's prior warning in Amchem Products v. Windsor that a settlement class is only proper if Rule 23's requirements—including commonality—are actually met.98 But this tension does not appear to have been explored yet by the courts. Thus, it remains to be seen whether Dukes will continue to facilitate class settlements as it apparently has done so far.
Finally, Dukes may also have an effect on the appellate standard of review. Although it is probably too early to tell from the cases themselves, Dean Erwin Chemerinsky of the University of California, Irvine, School of Law, viewed the analysis in Dukes as "difficult, if not impossible, to reconcile … with an abuse-of-discretion standard of review," and asked whether "federal courts of appeal will copy this approach and offer little deference" to district-court class-certification rulings.99
This criticism may be overstated, since even the abuse-of-discretion standard entails plenary review of the legal standards applied,100 and the Dukes ruling rested heavily on its disagreement with the lower courts over the proper legal standard to apply under the commonality and (b)(2) prongs of the decision. Nevertheless, as the lower courts struggle to define all of Dukes's many consequences on the standards governing class certification, it would hardly be a surprising development if (at least in the short term) a number of these decisions are reviewed less deferentially under the auspices of clarifying the proper legal standards governing class treatment.
Although the weight of Dukes's influence has been felt in the federal class action arena, it has extended (or threatened to extend) beyond that arena as well in a few ways that bear mention.
First, while Dukes only purported to construe federal law and procedure—rather than constitutional principles—a number of state courts have taken to its analysis in applying their own class-certification standards. To date, courts in California,101 Colorado,102 Connecticut,103 Delaware,104 Florida,105 Georgia,106 Illinois,107 Kansas,108 Kentucky,109 Louisiana,110 Missouri,111 Montana,112 New Jersey,113 North Carolina,114 Ohio,115 Pennsylvania,116 and Rhode Island117 have either expressly adopted Dukes's reasoning as applicable to state standards, mentioned Dukes as persuasive authority, or else simply cited or attempted to distinguish Dukes as though its relevance to state law were self-evident. And at least one court has found an aspect of the Dukes ruling to be rooted in due process and thus binding on the states,118 despite Dukes's own silence regarding that possibility.
Second, courts have failed to reach consensus on whether Dukes's strict construction of the commonality requirement should apply in deciding whether to conditionally certify collective actions under the federal Fair Labor Standards Act. In grossly simple terms, collective actions are not unlike class actions in that they purport to assert claims on behalf of a group of individuals, but they bind only those who affirmatively opt in.119 Because concerns about notice are correspondingly diminished, collective actions have historically been easier to certify than class actions, but they too require some showing of the presence of some common issues—specifically, that the members of the collective action are "similarly situated."120
Most courts have concluded that Dukes's commonality analysis has little bearing on a conditional-certification analysis in an FLSA action, explaining that the "standard for a … collective action is initially very low," unlike the strict standard Dukes established for the commonality requirement applicable to class actions.121 Although a handful of courts have allowed for the possibility that Dukes is at least "instructive" in this context,122 the prevailing view that Dukes does not raise the bar for conditional certification of FLSA cases has probably contributed to the recent "uptick in the filing of FLSA suits."123
Third, the imposing standards set by Dukes may be driving plaintiffs toward other alternative modes of aggregate litigation as well. In particular, some states authorize so-called "representative" actions, under which there is no explicit requirement that plaintiffs seek certification of a class but may nonetheless be authorized by statute to seek restitution or penalties on behalf of absent individuals. In Gonzalez v. Millard Mall Services, for example, the plaintiffs sought class certification of a number of claims in a suit alleging that the defendants failed to provide meal periods and pay split shift pay, among other things.124
But the plaintiffs also sought to advance one claim without seeking class treatment—specifically, a claim for civil penalties under California's Private Attorneys General Act of 2004 ("PAGA").125 According to the court, class treatment was not necessary for the PAGA claim because such claims are "mainly for the benefit of the general public" that are in the form of a "private attorney[] general" action, and "PAGA provides no specific class certification requirements."126 Some courts have similarly construed the consumer-protection law of the District of Columbia,127 though one local D.C. court held that "representative" actions under that law must still satisfy class-certification requirements.128 The parameters of representative actions—and the issue of whether they must comply with class-certification requirements, at least in federal court—remain to be defined with greater precision. But litigation in this area is likely to expand as class certification becomes more difficult to attain under Dukes.
John Beisner is a partner and co-chair of the mass torts and insurance litigation group at Skadden, Arps, Slate, Meagher & Flom LLP in Washington, D.C. Beisner can be contacted at firstname.lastname@example.com.
Geoffrey Wyatt is an associate in the group, and can be reached at email@example.com.
The authors are grateful for the assistance they received from Skadden associates Jordan Schwartz and Milli Hansen in writing this article.
This document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.
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text:
Thread:Participant intros (31)
From WikiEducator
a fragment of a discussion from Talk:Designing for flexible learning practice
G'day David,
I think you have an international technology conference in your neck of the woods. I read about it somewhere, thought how wonderful to be able to meet up with a few of these people, but alas, wrong timing for me. I am way down in Australia and will have little chance of travel except via this means.

subset: commoncrawl


text:
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The Star City Volunteer Fire Department's Cash for Gold fundraiser was held Dec.28-Dec. 30.
The fire department is using the proceeds from the event to buy new protective gear and equipment for the trucks.
Lee Goughnour is an ex cop who specializes in Cash for Gold fundraisers for volunteer fire departments. He said the weather did not help them reach their previous earnings of $1,500.
"You're local fire department is really important to a community. You'd be stuck with out them," said Goughnour. "And they need the money right now. Funds are getting tough to raise."
As of Sunday afternoon the fire department received $160 from the event.


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Survey: Developers don't care much for WP7 and W8 tablets.
Can't say this is good news for the future of WP8 and W8 tablets when the majority of developers aren't interested in spending time developing for the platform.
Windows Phone will continue to have this chicken/egg problem where developers aren't going to spend time making good apps on a platform that has no users, and users aren't going to buy into a platform that has relatively fewer good apps.
Windows 8 tablets is in better shape IMO, but Windows Phone is not going to do well, no matter how much you try to pimp the 920.


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|Hannibal Elementary 1st Nine Weeks Honor Roll
|Written by Staff
|Wednesday, November 14, 2012 1:53 PM
Hannibal Elementary
First Nine Weeks
Principal's List
Grade 4: Emily Smith, Jakob Rose, Lindsey Huffman.
Grade 5: Allison Bennett.
Grade 6: Hannah Straub, Thad Indermuhle.
Grade 7: Kristen Yost, Karigan Pfalzgraf.
Grade 8: Nerissa Smith, Alexandria Karpacs Brown.
First Honors
Grade 4: Kobe Zola, Breonna Teufel, Katherine Rufener, Jonayah Moeller, Grace Minger, Elizabeth McConn, Aedyn Kraft, Christopher Heavener, Carter Dennis.
Grade 5: Cooper VanCamp, Jadon Moeller, Allison Long, Cy Kraft, Kaitlyn Driggs, Megan Dennis.
To read the rest of this article please subscribe or sign in


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Weird IPhone Apps
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One of the coolest aspects of owning one of Apple's iPhones is the apps or applications that run on the phone. These aps like mini computer applications offer hours of fun or distraction with games, news finders, book readers, social directory notification, and much more. Some of this aps through are a little off… They offer the strange and the weird on your very own iPhone for as little as 99 cents.
Voodoo is an ap for those times it wouldn't be appropriate to pull out a voodoo doll that looks suspiciously like your boss and start sticking pins in it. Of course, if you are punching away at your iPhone during that same meeting it looks like you are industrious. iVoodoo makes you look hard at work while you stick pins into those who would be your enemies or even those folks who simply tick you off a bit. In fact, you can send those your ill wishes through the cosmic veil for up to five trouble makers at once.
While it looks and feels like a standard ap when you load iVoodoo this application lets you channel your aggression and sticks pin in what looks like a standard Voodoo doll. Just to help you focus your angst by using your iPhone camera you snap a picture of the less-than-appreciated and paste this pic on the dolls face. Then in pin mode you can stick your prey with seven different colored pins. If you're ticked use the negative pin, if you wish to help someone there is also positive, wealth, power or love.
Voice Changer (Recorder)
Remember the cool voice changing device in Scary movie? Ever wanted to scare your friends with a spooky voice. One spookily weird ap is the Scary Voice Changer (Recorder) from Alina's Web Design. The scary voice changer stores up 20 custom voices on your iPhone and gives you plenty of chances to play a game of masquerade with your voice.
CIS Fingerprint Scanner
Everyone wants to be a spy. Or maybe you want to be a top CIA operative? Perhaps a CSI forensic scientist is more your speed. The CIS Fingerprint Scanner will not help you actually become any of things, but you can fool a few people (especially if they're drunk) into thinking that you are. With its faux Advance CIS Finger Print Scanner, CIS Lie Detector and CIS Metal Detector all look amazing realistic. Created by Kaufcom GmbH this ap might even fool you every once in awhile.
Lucky Spell
Where is a good witch when you need one? Right before asking the cute girl out or the big job interview you need some extra luck, but you don't personally have any magical powers. Your iPhone does through if get Lucky Spell from Magic Sells Now. No having to find a chicken or toss any bones around. Just download the spell that will work for you and follow the instructions then charge up the spell shake your iPhone a couple of times and know the power of the universe is behind you.
Paranormal State EMF Meter
Is your house haunted? Do you hear spooky sounds in the night? Need a way to tell if a ghost is standing in front of you or worse is looming right behind you right this second watching over your shoulder as you read this? You might need a ghost hunter, but a cheaper faster method would be loading this app from Moderati, Inc called the Paranormal State EMF Meter. Just like on the show Paranormal State you can…ok, no it's not a real meter. The readings are simulated, but those more easily scared or shaken friends of yours won't know that.
Written by Kacey Stapleton – Copyrighted © www.weirdworm.com
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Bliss Promo Code Save 20% on Bliss, Remede, and Elemis
(expires August 31, 2011)
Bliss Promo Code: Save 20% on Bliss, Remede, and Elemis purchases online.
Our countless hours of spa-side tension-nixing and skin-fixing are the basis of Bliss—be it expert esthetician advice, cutting-edge concoctions or trailblazing treatments. We've stockpiled some serious science savvy. We've been there, buffed that. We've tried and tested so you know we can be trusted. In short, we've done our 'foam-work'. (And you get to sit back and soak up the results.)
Of course, behind all of this primping prowess is a dose of our trademark 'tongue-in-chic' attitude. We believe that bringing a fun, unpretentious approach to everything we 'dew' will make the Bliss experience better for you. After all, what good is grooming if you can't do it with a grin?


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9 posts tagged "Anthropologie"
Anthropologie Gets Lippy-------
Since beefing up its beauty offerings two years ago with a designated apothecary to house hard-to-come-by niche fragrances, a choice selection of makeup from brands like Julie Hewett and Lipstick Queen, and skincare from green-leaning greats like Tata Harper—not to mention a lion's share of exclusive collaborations—Anthropologie has quickly become a go-to for beauty seekers looking for the road less traveled. This month, the brand breaks new ground with its first in-house lipstick line. Albeit, which is inspired by the glamour of eras gone by with a screen siren-appropriate gold bullet to match, features six different creamy shades of pout-perfecting, argan oil-infused pigment: Bisque is a soft, honeyed beige; Claret is a rose berry; Mauvette is a phenomenal nude; Peony is a medium, retro pink; Vermilion is the collection's take on classic crimson with undertones of blue-violet; and Mulberry, our reigning fave, is a sheer blackberry stain. A transparent take on Fall's favorite deep, dark bordeaux mouth, it's an easy-wearing way to be on trend and still enjoy the finer things in life—you know, like eating, drinking, and indulging in conversation without the fear of your lipstick making moves.
Available late August 2012, www.anthropologie.com.
Anthropologie's Body of Evidence-------
Since launching its apothecary last year, Anthropologie has quickly established itself as a destination for niche fragrance collaborations. First came a line of scents with Nolita-based perfumery Le Labo, followed by a partnership with perfumer Ineke Rühland this summer, which yielded the gorgeous Floral Curiosities parfum collection. For its latest team effort, the retailer is hooking up with Lurk, an offshoot of February Moths (a New York-based design firm), for a scented body care line that, in true Anthropologie form, is as much of a marvel to look at as it is to slather on. Called Grown Under Glass, the collection of illustrated bottles features a Multi-Purpose Balm, Replenishing Balm, Nourish Bubble Bath, Transform Body Lotion, and Essential Body Wash in three fragrances: Ver, which boasts wafts of lavender and grass; Ros, a soft floral with undertones of sparkling woods; and Gra, a citrus infused jasmine aroma. Our favorite piece of the 16-piece range is the unscented Illuminate Antioxidant Treatment Stick, which is a light-reflecting highlighter with macadamia oil to brighten and shea and palm butter to quench parched complexions. Each skin saver is free of sulfates, parabens, phthlalates, and all of those other "nasties," making it that much easier to apply them liberally.
Anthropologie Gets Curious About Flowers-------
Since focusing its detail-oriented energy on beauty last fall with an in-store apothecary, Anthropologie has established itself as more than just a destination for gorgeous sheet sets, garden party-appropriate dresses, and antique-inspired dressers. It's also become a source for well-edited grooming products with a particular flair for scent. After a collaboration with bespoke fragrance favorite Le Labo, a selection of niche and novel flacons followed, pairing up-and-comers like Brooklyn's D.S. & Durga with iconic brands like Annick Goutal. For its latest trick, the retail chain has debuted Floral Curiosities, a new partnership with perfumer Ineke Rühland. The underlying idea of the four-piece collection is to bottle the essence of rare botanicals. Angel's Trumpet's peach-colored blooms have been blended with refreshing notes of honeydew, Seville orange, cinnamon leaf, and allspice. Briar Rose, the thorny bush turned powdery scent, has been combined with black raspberry, bitter almond, and cacao absolute essences. Poet's Jasmine's white-petaled clusters inspired a herbal citrus eau, with hints of star anise, rosemary, and absinthe. And the orange flowers of Scarlet Larkspur have been reimagined as a floral oriental fragrance with notes of claret wine, nutmeg, saffron, and amyris wood. As to be expected, each is packaged in a bottle that happens to look fabulous perched atop of a shabby-chic vanity.
Joya Does You a Solid-------
Fragrance in solid form dates back to ancient Egypt, but it was during the Elizabethan era that well-to-do ladies began to use pomanders. Large versions of the scented perfume balls encased in perforated silver were hung from the ceiling as a home fragrance, while smaller ones were worn as necklaces. Queen Elizabeth I reportedly preferred a damask rose and ambergris blend. Fast forward a few centuries and cult fragrance brand Joya has teamed up with design collective Vane to create a trio of meticulously-crafted, vintage-inspired solid perfume accessories available at Anthropologie. The timepiece is a pocket-watch-style pendant packed with Royal Jasmine perfume, a blend of Spanish jasmine, tuberose, tonka bean, and sandalwood; the ornate oversize safety pin boasts a pan of Moro Blood Orange, a mix of blood orange, tangerine, tiare flower, and musk; and the super-feminine, heart-shaped brooch features Starleaf, a fusion of orange blossom, honeysuckle, lily of the valley, jasmine, and sweet musk. QE1 would approve.
Urban Outfitters' Green And Gorgeous Country Retreat-------
If you're looking for a fun fall weekend getaway not that far from New York City, please allow us to direct your attention to Terrain at Styer's, the gardening and lifestyle concept store from the good people who brought us Urban Outfitters, Anthropologie, and Free People. The green-thumbed among you may have heard tales of the Brandywine Valley flagship's impeccably restored nineteenth-century greenhouse, which has been reimagined as an eco-friendly mecca with wood-paneled walls and cascading ferns. If your relationship to plants is less romantic—you buy them, forget to water them, and then watch them die a sad, neglected death—there's plenty for you, too. Vintage garden furniture, rustic lighting fixtures, and an impressive range of all-natural skincare lines, all of which are paraben- and cruelty-free, are yours for the buying. "We look for partnerships with companies that have a similar brand ethos: inspired by nature and the beauty of gardening," explains Allison O'Connor, Terrain's general merchandising manager. Choose from cult hits from Farmaesthetics and Amala, as well as goat milk soaps from Hudson Valley-favorite Beekman 1802, and scrubs and lotions from Etsy mainstay Portland General Store. Before you leave, make sure to stop and smell the Wild Rose Lip Balm from Apples and Pears Apiaries. Handmade from yellow beeswax and honey in the English countryside by beekeeper Tanya Hawkes, the emollient salve is well worth the two-hour drive south.
Terrain at Styer's, 914 Baltimore Pike, Glen Mills, PA, (610) 459-2400.


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Ryder, Winona
- "Black Swan"
- "Frankenweenie"
- "Homefront"
- "The Dilemma"
- A Scanner Darkly
- Darwin Awards
- Mr Deeds
- Private Lives of Pippa Lee
- Simone
- Star Trek
- The Informers
Winona Ryder Interview - "A Scanner Darkly"
Winona Ryder and Keanu Reeves talk about "A Scanner Darkly" and Philip K Dick's writing.
"The Dilemma" Photos
allery of photos from the comedy "The Dilemma" starring Vince Vaughn, Kevin James, Jennifer Connelly, Winona Ryder, and Channing Tatum.
"A Scanner Darkly" Premiere Photos
Gallery of photos from the Los Angeles Premiere of the Warner Independent Pictures movie "A Scanner Darkly" featuring photos of Keanu Reeves, Winona Ryder, Woody Harrelson, Rory Cochrane, Richard Linklater, Shondrella Avery, Adam Rodriguez, Angela Rawna, and Dameon Clarke.
"The Darwin Awards" Photo Gallery
Gallery of photos from the movie "The Darwin Awards" featuring photos of Joseph Fiennes, Winona Ryder, David Arquette, and Robin Tunney.
"Mr. Deeds" Photo Gallery
Stills from the film featuring Adam Sandler, Winona Ryder and John Turturro.
"Simone" Photo Gallery
Collection of production photos from the film, featuring Al Pacino, Rebecca Romijn-Stamos, Catherine Keener, and Winona Ryder.


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Everybody who loves sports and the Internet loves JaVale McGee for his on-court antics.
Wednesday night, we learned that the Denver Nuggets love McGee for his on-court basketball abilities as the forward has tweeted out a photo of himself signing a contract with the team he joined mid-way through the 2011-2012 season.
Shortly after the franchise offically announced the signing, Yahoo! Sports' Marc Spears reported that the deal is for four-years, $44 million.
The last we heard regarding negotiations between McGee and the Nuggets were that there was a five-year, $50 million offer on the table, but that McGee was looking for more.
Well, he got one; in the form of one less year, but a higher annual salary.
It should be noted where McGee's new deal puts him in the pecking order of athletic NBA centers as it's just a tad more generous than the four-year, $42.7 million the Los Angeles Clippers gave DeAndre Jordan before last season.
Similar players that are nearly the same age, perhaps that was the benchmark McGee was looking to surpass, as pointed out by NBA.com's David Aldridge.
For more on the Nuggets, visit Denver Stiffs and SB Nation Denver.


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Definition: 'Carve-out'
carve-outType: Term
Pronunciation: karv-owt
1. That portion of a provider bill denied for payment (by an insurer). The term may be modified by a time period (day c.), for a Sunday when no diagnostic or specific therapeutic activities were undertaken for a hospitalized patient.
The information shown above for carve-out is provided by Stedman's.
* Stedman's, part of Lippincott Williams & Wilkins, provide a comprehensive line of health-science publications for healthcare professionals and medical students.
Medical Dictionary Copyright © 2006 Lippincott Williams & Wilkins. All rights reserved.


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Is this what it feels like to be a Pittsburgh Pirates' fan? I guess the good news for me is that my teams at least waited until halfway (or more) through the season to show that they weren't going anywhere; in Pittsburgh, they have a pretty good idea by spring training. Or the season before.
I'm just trying to look on the bright side here.
In other news, Merritt and I had a day that I feel I should carefully document, lest I ever forget. But this isn't turning into a "mommy and me" blog. Don't worry.
This afternoon, there was a nap (for him), some bathroom cleaning (for me), and some dancing and hugging (for both of us). Seriously, the hugs were ridiculous. He snuggled up and even made the happy "mmm-mm" sound while he hugged me. And his dancing resembled head-banging more than anything else, but I got the point.
The kid and I fell even more in love in the last few hours. I didn't think it was possible, but it happened. I spent time just staring at him while he was happy and smiling, and I tried to memorize his face as best I could. It seemed like the right thing to do in those moments. I hear they grow up fast.
He likes to play in the bathroom cabinet. This morning we watched as he dumped all the makeup out on to the floor. Then he picked up the eyelash curler and stared at in his hand for a few seconds. And then he just threw it down on the floor, like he had about as much use for it as I do. Maybe it doesn't sound all that funny, but we couldn't breathe, we were laughing so hard.
My one concern is that his favorite toy seems to be tampons. Unused ones, of course. It's not that I'm worried that somehow this means the kid will turn out gay; I just think it's a little early for him to be starting his period.


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UNDERCOVER BOSS - Oriental Trading Company – Saturday, January 26, 2013 at 8pm on KUAM TV11!
THE CEO OF THE NATION'S LARGEST DIRECT RETAILER OF PARTY SUPPLIES, ORIENTAL TRADING COMPANY, PUTS THE FESTIVITIES ON ICE AFTER RECEIVING COMPLAINTS FROM SEVERAL UNHAPPY EMPLOYEES, ON A REBROADCAST OF "UNDERCOVER BOSS," SATURDAY, JAN. 26 AT 8PM ON KUAM TV11! "Oriental Trading Company" — Sam Taylor, CEO of Oriental Trading Company, the nation's largest direct retailer of party supplies and arts and crafts, is concerned when he discovers some of his employees aren't happy. Meanwhile, the Boss causes an unintentional shutdown in his plant when he's tasked with managing the assembly line, on a rebroadcast of UNDERCOVER BOSS, Saturday, Jan. 26 from 8:00-9:00 PM on KUAM TV11. (Originally broadcast 3/9/12.) UNDERCOVER BOSS is produced by Studio Lambert. Stephen Lambert, Eli Holzman and Chris Carlson are executive producers. RATING: To Be Announced For more detailed information about UNDERCOVER BOSS and the companies, log on to http://www.cbs.com/shows/undercover_boss/. Facebook: http://www.facebook.com/#!/UndercoverBossCBS Twitter: https://twitter.com/#!/undercover_cbs CBS Twitter: http://www.twitter.com/CBSTweet


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Tuesday, January 10, 2012
print inquiries
16 comments:
- Kristin said...
Wonderful idea! I think your work is perfect for that. I look forward to it.
- January 11, 2012 at 8:15 AM
- claire said...
please do so! I follow you almost every day and I'm always lovely surprised by your work. I would love to send my friends your cards (please think about transport > I live in Holland!) keep up the goodwork!
- January 12, 2012 at 2:10 AM
please do!! Please your artwork would look so lovely hanging up on my wall.
cheers nicki
- January 12, 2012 at 12:43 PM
- louise said...
lucky you going to findhorn - i hope you will post from there! have fun!
- January 12, 2012 at 4:18 PM
- kateuk said...
Your work is lovely- if you find yourself 'down South' when in the UK,illustrators always welcome!Enjoy Findhorn.
- January 13, 2012 at 3:49 PM
- Hayley Mann said...
I was wondering if you would sell any of your original oil painting that you posted a while back? They are absolutely amazing and would love to have one hanging in our home.
- January 13, 2012 at 5:16 PM
- jen said...
i found your work through pinterest.. i would totally buy prints/notecards!
- January 13, 2012 at 7:22 PM
- Kim said...
I too think your work would make lovely prints/cards. Congratulations on your stay at Findhorn---How exciting for you! It will be fun to see what artwork might come out of your experiences there :)
Bonne Nuit Designs
- January 19, 2012 at 6:06 AM
Reading this has made my day, I've sent a link to your blog to lots of my friends so they can look at your beautiful work, but I've elderly relatives who I know would be delighted to receive one of your beautiful cards, and I can just imadgin lots of your beautiful artwork decorating my walls. I'm sure that the little dog and sheep you've made were all very loved xx
- January 21, 2012 at 5:06 AM
- Karina said...
- January 21, 2012 at 2:31 PM
- JolieAnne said...
I would love to see more of your work made into prints or cards!
Enjoy your work so much!
- January 22, 2012 at 4:45 AM
- seattlegrace said...
Etsy would be perfect! Cards, prints... oh yes please!
- February 16, 2012 at 2:56 PM
- seattlegrace said...
Etsy would be perfect! Cards, prints... oh yes please!
- February 16, 2012 at 2:56 PM
- Melissa Dunivant said...
- This comment has been removed by the author.
- May 29, 2012 at 12:53 PM
- Melissa Dunivant said...
Please please pleaseeee open up your Etsy shop and sell your small animals (though I adore your prints as well)! I simply adore your creature creations and would definitely purchase!
- Melissa
( onemerecat.etsy.com )
- May 29, 2012 at 12:53 PM
- Sarah Jane said...
Oh, would you please open an etsy shop. That's be great!
- May 30, 2012 at 11:07 AM


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Portland, OR (SportsNetwork.com) - Christian Thomas, Jeff White and Matt O'Leary each scored 14 points as the Loyola-Chicago Ramblers squeezed by the SIU Edwardsville Cougars, 73-72, on the final day of the Portland State Tournament at the Stott Center.
Nick Osborne added 10 points for Loyola (4-3), and while Milton Doyle went scoreless, he handed out seven assists.
For SIUE (1-5), Donivine Stewart led all scorers with 22 points on 8-of-13 from the field, including 4-of-5 from 3-point range. Michael Messer came off the bench to net 14 points in the losing effort.
After a back-and-forth first half, SIUE took a 35-33 lead into intermission after shooting 12-of-26 from the floor and 7-of-9 from the free-throw line in the opening 20 minutes.
The teams exchanged a few more leads in the second half. SIUE went ahead by one, 70-69, with 2:08 left in the game, but Loyola responded on its next possession when Thomas drilled a jumper. SIUE had two opportunities to take the lead in the final seven seconds but both Stewart and Christian Salecich missed shots, as the Ramblers held on for the win.
The game consisted of 12 ties and nine lead changes, with neither side ever leading by more than seven.
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The Emeryville Shellmound
The Emeryville Shellmound was a highly remarkable historic, cultural, and sacred site established by Ohlone Indians over centuries of use from 500 B.C. to approximately 1700 A.D. These people were among the earliest inhabitants of the region now known as the San Francisco Bay Area. They built their villages on the mound and buried their dead, creating, over the centures, a sixty foot high mound with a diameter of about 350 feet. This signficant site functioned holistically in both the secular and sacred realms, and as such, should not have been disturbed, but honored as a place set apart from the mundane world.
This shellmound had remained intact, without tampering, until the Spanish arrival in the 1700s, bringing with them the Western concept of land as a commodity. This approach to land led to a series of incursions that used and abused the site until the present day. Now, the City of Emeryville and a Southern California developer, Madison Marquette, have plans, which, if allowed, will destroy most of the remaining portion of the site. This would be a great loss to Ohlone descendents, to the residents of the Bay Area, and to scholars who could learn more about the early people of the region. The mixed-use retail village, as the developer calls it, will include stores, housing, movie theaters, and hotels.
The Site
These mounds, referred to as shell mounds or shell middens, were comprised of abalone, mussels, and clam shells, a staple of Ohone diet, along with sediment, ash, and rocks. Over time the mounds grew larger and taller from successive use with an accumulation of shells, animal and human remains, ceremonial burial objects, artifacts with everyday use, and architectural remains.
Imagine one mound that towered above all others, dominating the landscape. This mound had one distinctive cone and several smaller cones. It has been described by Mutsum Ohlone descendent, Jakki Kehl, as a place that must have dominated the marshy shore much like the Great Pyramids do in Egypt.
This mound defined the place that became known as Emeryville. It was the largest of a series of five mounds along Temescal Creek, which continues to empty into the bay. It was the largest, not only of the Temescal Creek mounds but, probably, of all the shell mounds in the bay region.
The Site's Significance
The cultural significance of the shell mound was also very important. Burials functioned in a cultural way to establish geneologies and therefore territorial rights. Another cultural function of the mounds was as cultural markers. Villages situated on top of the mounds were highly visible and therefore marked the different Ohlone communities throughout the bay.
Shell mounds also had several practical purposes which included keeping villages above the bay's high tide waters. They were also ideal places from which to hunt and harvest the bay's abundant resources of water fowl and shellfish.
The mound's significance to Ohlone descendents remains of central importance, even if the site has been altered over time. Very few sacred and cultural sites remain, especially one as great as the Emeryville Shellmound.
A Brief Post-Contact History
It was during the Spanish period that the Emeryville Shellmound fell under the jurisdiction of Luis Maria Peralta who received the mound as part of a Spanish land grant. He used the land primarily for grazing cattle and built corrals and a slaughter house around the base of the mound. (Sher: 1999)
After the 1848 Gold Rush, the land was sold, subdivided, and resold. The shell mound evenually became private property and the owner built his home on one of the smaller mounds near the large cone. Visitors, intrigued by the mounds, would often dig in them to recover artifacts.
A subsequent sale was made to a developer who built an amusement park known as Shellmound Park. The park was primarily used as a rifle range during its early years with one of the smaller mounds being destroyed to construct the California Jocky Club Racetrack. The Emeryville Shellmound was partially leveled in order to build a dance pavillion on top of the main cone. What was once a sacred burial site had become a place for entertainment.
At the turn of the century, archaeologists took an interest in the Bay Area's shell mounds and another Western value came into conflict with a native value of leaving these sacred, cultural sites intact as their ancestors had when they abandoned them. Europeans believed these were sites that should be studied. Various archaeologists began systematically excavating the mounds and, unfortunately, while much can be learned from archaeology, it is essentially a destructive process. In 1902 Max Uhle dug a trench in the Emeryville Shellmound and Nels Nelson explored the mound in 1906.
By 1908, it was noted that no sizeable shell mounds were left in a pristine state. Bay area mounds were routinely being leveled for use as fertilizer for gardens and agricultural land, as fill for land extensions into the bay, for construction of roads. It is likely that the Emeryville street named Shellmound is not only built adjacent to the shell mound, but also built from the shellmound matter itself. Many shell mounds were used as industrial sites. The shell mound area became home to a variety of factories as Emeryville established itself as a commercial center.
It was industry that eventually led to the final leveling of the Emeryville Shellmound in 1924 when amusement grounds at Shellmound Park were closed. Prohibition had taken its toll on leisurely activities available in the park. A steam shovel began razing the mound as soon as the park was closed. University of California archaeologist, W. Egbert Schenck, followed the steam shovel and removed burials and large artifacts which were then taken to the University where they remain. Subsequent limited archaeology was not done until 1963 under Robert F. Heizer from the anthropology department at the University of California in Berkeley. Although they found a number of fine artifacts, the entire area under excavation had been disturbed and much of the material that was found was probably redeposited after the 1924 leveling of the mound. For many Ohlone descendents, the artifacts found over the years by the University of California archaeologists are the only material culture that they have from their ancestors.
The 1924 destruction of the shell mound cleared the way for the City of Emeryville's industrial use of the land. Steel mills, paint factories, canneries, and insecticide plants occupied the site for about seventy years defining Emeryville as a center of commerce always with a very small population base. The industrial use was deemed so important that the Emeryville Historic Industrial District was eligible for listing on the National Register of Historic Places in 1990. The Emeryville Shellmound had been listed as a California State Historic Landmark number 335 in 1939, always remaining unmarked of this honor.
During the last twenty years, Emeryville has been shifting from an industrial to a retail based economy with large-scale shopping centers dominating the landscape. Old factories were torn down and the toxic contamination of the area became a focus as much of Emeryville became known as Brownfields' properties. One such property came under consideration for development as the South Bayfront Project, a mixed use, retail, entertainment, housing, and hotel, project. An Environmental Impact Report (EIR) was prepared for the development project noting that five archaeological sites, once part of the Emeryville Shellmound, could possibly fall within the project site. Preliminary, limited archaeology was conducted on sites adjacent to the proposed project, but none were done on the project site itself. The Environmental Impact Report was approved by the City of Emeryville despite this fact.
The property was sitting vacant waiting for further City Council and Planning Commission approval when the unusually heavy winter rain began carrying toxic run-off from the land into the San Francisco Bay. The City of Emeryville was ordered to stop the toxic flow and they did so by digging a large pit on the property. The crew operating the backhoe uncovered a pile of shells, human bones, and artifacts in the large pile of toxic soil which they had dug up. Alan Pastron, a well-known urban archaeologist, was called in to look at the findings. He felt the site must be treated as a highly significant archaeological site and recommended a $3 million dollar, full-scale archaeological excavation. He felft that some sort of excavation should have been done as part of the EIR process, and without this, Emeryville had violated the California Environmental Quality Act. The City responded by abruptly firing Pastron.
Meanwhile Emeryville notified the coroner, the State Historic Preservation Office, and the state's Native American Heritage Commission who appointed an Ohlone Descendent as the Most Likely Descendent (MLD). The MLD's job is deciding how to appropriately treat the human remains with a reburial plan.
Preservation, Study, or Memorialization
Ohone descendents wanted the site disturbed as little as possible with the disturbed burials reburied in a place on the site where they would be undisturbed. Some Ohlones wanted the site capped off with concrete so that the disturbed souls of their ancestors would not wander. This approach included allowing the development to be built as long as the burials were treated respectfully. Others wished the site to be left as open space without development. A few Ohlones wanted archaeology done on the site to learn as much as possible about their ancestors. Some wanted the non-burial artifacts to be recovered while others felt they could be recovered for limited study but eventually reburied at the site, latex casts having been made of the objects for educational purposes. Issues also included the scientific study of the ancestral bones. Most Ohlones did not want testing done on the bones with the exception of one who is an archaeologist who felt a lot could be learned by testing the bones for DNA.
Preservation groups like Sacred Sites International and the Berkeley Architectural Heritage Association along with Native Americans wanted the site preserved without commercial development. Despite the site's toxic state, it could be cleaned up and then turned into some sort of a memorial to the Shellmound with accompanying educational displays, a small museum, and eduational programs being offered on site.
The City of Emeryville took the position that preservation was not possible because the site was so toxic, had to be cleaned up, and then capped off with concrete and asphalt. Much of the upper levels of what remains of the shell mound will need to be carted away because of the toxicity of the soil. One portion of the site, a place containing human burials, is so toxic that it will be shipped to a waste facility in Texas where it will be burned. Consulting archaeologists from the firm of Woodward Clyde, while acknowledging this fact, also reported that significant portions of the mound would still remain after the clean-up.
Sacred Sites International Foundation convened several round-table meetings with concerned parties that resulted in a process of educating the City of Emeryville City Manager, City Planner, City Attornies, and Members of the City Council, about the site's importance. SSIF informed Ohlones about the meetings and encouraged their attendance and involvement in the process of deciding the fate of the site.
The City Council appointed an Ad Hoc Committee to study and recommend ideas for Memorializing the Site and Educating the Public about the site. Emeryville only allowed residents of the city, including several City Council members and Planning Commissioners, to be on the committee thereby effectively controlling the committee. SSIF, one Ohlone, and the archaeologist from Woodward Clyde however, attended the Committee sessions and made recommendations about the site's treatment. Recommendations included an educational course for school children, a mural depicting the site to be painted on one of the store buildings public art to memorialize the site, and the establishment in some of the retail store space of an educational display space. There was also a recommendation that Ohlones be involved in the implementation of these recommendations.
Preliminary archaeological research and limited site excavation resulted in a Preliminary Archaeological report which stated that the site would effectively be destroyed by the South Bayfront Project. Sacred Sites International, and BAHA began calling for at least part of the project site to be left undeveloped as sacred space. Despite this recommendation, the Planning Commission voted to approve the project saying it was impossible to leave anything undeveloped because of the toxicity of the land. Some archaeology is happening on the site with artifacts recorded, latex casts made, and a reburial plan is in place. The City of Emeryville has agreed to add topsoil to the site to minimize some of the disturbance to burials that would occur when foundations pilings were drilled into the site. They are leaving some of the site undisturbed after cleanup -- it will lie beneath a street. They are unwilling to forgo the building of a hotel on top of the Emeryville Shellmound's most sacred area that of the deepest cone. In the end, the Shellmound will be mostly destroyed, covered up by a large commercial development. The City of Emeryville along with Madison Marquette (who is in the business of "Creating Special Places") will destroy the significant place which exists, is a California State Landmark, and an important cultural and sacred site for the Ohlones -- the Emeryville Shellmound -- in order to create another shopping center.


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Canadian coal production has been around 60 million tonnes over the last decade however in 2011 coal production increased to 67 million tonnes. 38 million tonnes (56%) was thermal coal produced mainly in the prairies and 29 million tonnes was metallurgical (steel-making) coal, produced in Western Alberta and B.C.
To meet its rapid infrastructure growth and consumer demand for things such as vehicles and home appliances, Asia has turned to Canada for its high-quality steel-making coal. As Canada's largest coal trading partner, coal exports to Asia accounted for 73% of total exports in 2010.
Steel-Making Coal
Global steel production is dependent on coal and more and more the world is turning to Canada for its supply of quality steel-making coal.
- Steel-making coal production increased to 28 million tonnes in 2010 from 23 million tonnes in the previous year.
- Almost all of Canada's steel-making coal produced was exported.
Thermal Coal
- Approximately 40 million tonnes of thermal coal was produced in 2010.
- The vast majority of Canadian thermal coal produced is used domestically, with only 6 million tonnes exported in 2010.
More information on coal production and exports can be found in Natural Resources Canada's 2011 Coal Report.


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Healthy Families
Healthy Families Massachusetts is a statewide home visiting program available for first-time parents age 20 and under, funded by the Children's Trust Fund.
The program provides home visits, prenatal and parenting education, parenting activities, and groups. Healthy Families staff seeks to nurture, strengthen, and support families in their physical, emotional, and social development. This is accomplished with a cornerstone of home visitation, strong community collaboration, and a commitment to quality for enrolled families.
Each family is provided with the tools to create their optimum healthy family by respecting their cultural beliefs, by valuing their diversity, and by building upon their inherent strengths. The families lead this initiative. The Healthy Families staff listen, guide, and follow.


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You suck. Your country sucks. Your country's hockey team sucks.
Know Who I Like is this Phil Kessel Kid
Lambert loves Kessel and donations. Don't be a dick, make a donation and get your own post.
Three Keys for Canada, US in Olympic Semi-Final
These keys suck.
Not a game, not a game. Practice.
Nobody cares about Sweden-Finland
Seriously, I mean nobody cares about Scandinavia.


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Walgreens - Free 4×6 Photo Brag Book
with promo code SMALLBOOK
Free offer applies up to 10 double-sided pages; extra charges will apply for additional pages. Discount does not apply to additional pages, previous purchases, taxes or shipping charges. Order must be placed by logged-in customer by January 4, 2014 at 11:59 p.m. Central Time to qualify.
+ use code SHIPIT2ME to score free shipping! Yes you can stack both codes! Esxpired 1/2/14
Shipping is $2.99


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Island Jerk Chicken Recipe
"My husband is crazy about hot sauce and I'm not," writes Lynn Davis of St. Louis Park, Minnesota. "But to my surprise, I absolutely loved this chicken!"
- 3/4 cup water
- 4 green onions, chopped
- 2 tablespoons canola oil
- 1 tablespoon hot pepper sauce
- 4 teaspoons ground allspice
- 3 garlic cloves, minced
- 2 teaspoons ground cinnamon
- 1 teaspoon salt
- 1 teaspoon ground nutmeg
- 4 boneless skinless chicken breast halves (4 ounces each)
- In a small saucepan, combine the first nine ingredients; bring to a boil. Reduce heat; simmer, uncovered, for 10 minutes. Cool to room temperature.
- Pour 1/2 cup marinade into a large resealable plastic bag; add chicken. Seal bag and turn to coat; refrigerate overnight. Transfer remaining marinade to a small bowl; cover and refrigerate for basting.
- Coat grill rack with cooking spray before starting the grill. Drain and discard marinade. Grill chicken, covered, over medium heat for 4-7 minutes on each side or until a meat thermometer reads 170°, basting occasionally with reserved marinade. Yield: 4 servings.
Originally published as Island Jerk Chicken in Healthy Cooking April/May 2008, p17
Light-Bodied White Wine
Enjoy this recipe with a light-bodied white wine such as Sauvignon Blanc or Pinot Grigio.
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Reviewed Dec. 4, 2011
I make this recipe about once a month. I like to use it on chicken wings.
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Gym in process of renovation
- photo by Rachael Palinkas/Photo editor
Stacey Barchenger
Managing Editor
Linfield's main gym is closed until May 24 while it undergoes an extensive renovation of the lights that glow 50 feet above the now-vacant space.
Replacement of the old beam lights began April 21. The new lights—all 276 of them—are longer in length, similar to other fluorescent bulbs, and are already in the Ad Rutschman Field House and the upper gym.
It is a project Facilities Services planned for a variety of reasons, John Hall, senior director of Facilities Services, said.
The old lighting system needed to be updated. The new retrofit will replace old lamps with more energy-efficient fixtures. Many of the individual lamps needed to be replaced, and the new lights are cheaper, Dan Fiedler, associate director and project manager of Facilities Services, said.
The lights will provide more even light distribution to the gym floor.
"If anything, we're speculating people will think they're too bright," Hall said.
Most fluorescent lights on campus are T8s and were installed as part of a campus-wide lighting retrofit project completed in 1999. The T5 fluorescents being installed in the gym are brighter and thus only appropriate for higher ceilings, Fiedler said.
The project costs about $130,000, Hall said. However, because they are energy-efficient lights, the college is receiving a 25 percent rebate from McMinnville Water and Light and likely another 25 percent discount from state programs.
Hall expects the payback period of the lights to be about four years, meaning the lights will have paid for themselves by that time through energy savings and decreased cost of replacement.
About one third of the old fixtures have been removed. Crews are working on the ceiling a few pieces at a time, completely removing and replacing lights in a third of the gym before moving to the next, Fiedler said.
"It is enough space for the lifts to move around," Fiedler said.
A lighting designer was hired to create a blueprint for the project that required working around all the obstacles already on the ceiling, including beams, slopes, vents and speakers. Lamps were custom made to accommodate a 22-degree slope in part of the gym ceiling.
All the work is being done by electricians from Farnham Electric Company. To protect the gym floor, workers put a thick tarp on the surface and then laid quarter-inch plywood on top to protect the floor from any damage that could be caused by the three lifts used to hoist workers up to the ceiling. The plywood also ensures the weight is evenly distributed, Fiedler said.
Power to the gym was turned off completely. A fire alarm that rang throughout the Health, Human Performance and Athletics Complex at about 8 p.m. on April 24 was unrelated, Fiedler said. He received a report from Linfield Campus Safety that the alarm had been pulled.
The only problem the project crew has encountered so far was how to get the large lifts in through the gym doors, Fiedler said.
Facilities Services worked with the athletic department to find the best time to put the gym out of commission, Hall said.
However, the college may have missed the opportunity to host former President Bill Clinton, who spoke in McMinnville on April 26. Director of Public Relations Mardi Mileham said the campaign staff left a message with the college inquiring about a facility large enough to host the event.
Auxiliary Services returned the call and said the main gym was out of service.
"We got the call on Wednesday," Fiedler said. "But we had removed the control panel and cut electricity in the gym on Tuesday, so there was no power."


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Road Stories
Behind the scenes access of touring concerts and shows at the Palace, DTE Energy Music Theatre and Meadow Brook Music Festival. Plus entertaining stories from road crews who have seen it all as they travel from city to city.
6 Championship Drive
Auburn Hills, MI 48326
(248) 377-0100
Auburn Hills, MI 48326
(248) 377-0100


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Crossroads to the Downeast
The links below will give you many ideas and a lot of information.
We will be delighted to supply maps, books and any additional information and share with you our knowledge of this beautiful and unique region.
Ellsworth chamber of commerce
The Twilite Motel
More than meets the eye


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WorldNetDaily's Farah: 'Today I Pronounce CPAC Dead'
Monday, March 08, 2010 at 9:17 am
Joseph Farah, who sparred over the "birther" conspiracy theory with Andrew Breitbart at the National Tea Party Convention, pens a lengthy column — a promo for his own convention — attacking CPAC organizers for not holding a birther panel. It's interesting in the same way that the Oscar for "Music by Prudence" was interesting. Farah holds grudges against Republican strategist Jon Henke (who has campaigned to purge "birtherism" from the GOP) and CPAC Director Lisa De Pasquale.
I decided right there and then that [WorldNetDaily] would no longer sponsor CPAC as long as an arrogant, know-it-all wannabe like De Pasquale was running it. When others confronted De Pasquale on her ill manners, unprofessionalism and condescension, she finally wrote me an e-mail. But it was hardly the letter of apology one might expect under the circumstances. She explained that she was "just answering questions from the media."
Apparently, De Pasquale and the CPAC leadership are more concerned about pleasing the media than their long-time sponsors and speakers – even people like me who are under siege from the left, the soft-right and the media establishment.
The funny thing is that Farah got a shout-out from the CPAC stage from Rep. Michele Bachmann (R-Minn.), who bragged about getting a relative to read WND, and that birthers, while denied most stages at the conference, were not hard to find. Henke laughed it off.
"Some of it may be colorably 'opinion,'" Henke said to TWI, "but I certainly did not have 'multiple appearances, on MSNBC. I was on once. I think the biggest story in that is his claim that Democrats spent more on WND than Republicans. Oh, really?"
Anyway, here's the site for Farah's own Taking America Back convention, to be held in Florida in September. Warning: Music.
Follow David Weigel on Twitter
8 Comments
Comment posted March 8, 2010 @ 3:00 pm
As the train wreck continues….
Comment posted March 8, 2010 @ 4:23 pm
Great! Both the WND conference and WND at sea are taking place at the height of hurricane season. Brilliant move, Joseph Farah!
Comment posted March 8, 2010 @ 5:43 pm
In defense of the CPAC organizers, it would have been impossible to get anything done had a birther panel been included in the events.
Think about it: how much work would YOU get done if you were too busy laughing your ass off at a bunch of moonbat conspiracy theorists with the combined IQ of an egg mcmuffin?
Comment posted March 8, 2010 @ 5:49 pm
Apparently, De Pasquale and the CPAC leadership are more concerned about pleasing the media than their long-time sponsors and speakers – even people like me who are under siege from the left, the soft-right and the media establishment.
Aw, cheer up Joey. You've still got the support of the Klan, Neo-Nazis, Skinheads, and everyone at Stormfront…you know, those "real" conservatives.
Comment posted March 8, 2010 @ 8:29 pm
The "movement" is running out of steam? You mean there's no more toilers to ridicule? Awww man.
Well, it was nice tossing them around like a hacky-sack, but all things must come to an end. Now they're sliding from mainstream into obscurity, with all the rest of the conspiracy theories.
Had to happen some time, It DID have an expiration date, after all.
Comment posted March 9, 2010 @ 3:32 pm
You're leaving out the Dominionists, the Quiverfulls, and the Aryan Nations.
Comment posted August 30, 2010 @ 7:16 am
thanks for your share!!
Pingback posted April 19, 2011 @ 6:00 pm
[...] citizen and consequently ineligible to serve as president, and even left CPAC after the gathering refused to hold his birther panel. In his column today, Farah says he is "eternally grateful" to Trump for propagating [...]
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YOUNGSTOWN, Ohio – Ariel Castro is headed to the intake center at the Lorain Correctional Institution in Grafton Township for processing as he begins his "life plus 1,000 years" sentence, but what's still being decided is whether Castro could serve out that sentence at Youngstown's Supermax prison.
According to the Ohio Department of Rehabilitation and Corrections website, the Lorain facility processes male inmates from 25 northern Ohio counties. Castro's first day at the intake center will include a strip search, a haircut and the issuance of prison clothing.
Department spokeswoman JoEllen Smith says Castro will stay at the Lorain facility until it's determined what security level he will be assigned. She said if he is assigned a "level 5" he will be sent to the Youngstown Supermax prison which is the only facility in the state's prison system that houses level 5 inmates. Smith added level 5 is reserved for the state's most assaultive inmates.
Castro was sentenced Thursday for the rape and torture of three Cleveland women over a 10- year period. Castro kidnapped the women and held them in his Cleveland home until they managed to escape last May. Yesterday, he was sentenced on those charges and an aggravated murder charge stemming from the death of a fetus of one of the women. The Cuyahoga County Prosecutor's office says the murder charge accounts for the "life without parole" portion of Castro's sentence.
Media speculation has hinted that Castro could be a target in prison based on the nature of his crimes and the high profile of the case. High-visibility inmates who could be targeted are sometimes sent to facilities where they can be housed separately for their own protection. Laura Gardner, the public information officer for the Youngstown prison, says the facility has "no official word yet" on whether Castro will be housed there. Gardner confirmed that if Castro is designated a level 5 he would be incarcerated at the Youngstown facility. She added that the local prison and the state prison in Lucasville, Ohio, are the two maximum security prisons in the state.
The Youngstown Supermax prison, officially known as the Ohio State Penitentiary, sits on 240 acres of land on Route 616 in Coitsville. Inmates are assigned a security level of 1 through 5 with level 5 described as the "administrative maximum." Smith says all inmates come in as a level 3 and after assessment a final security level is determined and then the inmate is assigned a facility to serve out their sentence.
Veteran defense attorneys in town were unwilling to speculate as to what security level Castro could be assigned and calls to the Cuyahoga County Prosecutor's office were not returned.
It's unknown how long it will take to determine Castro's security level.
Below is a breakdown of Castro's activities during his first few days at the Lorain Correctional Institution. The information is from the Ohio Department of Rehabilitation and Corrections' website.
Processing Breakdown
Day 1
--Inmate Received From Conveying Agency
-- Inmate Strip Searched
-- Record Office Personnel Receives and Reviews Commitment Papers and Assigns the Inmate an Institution Identification Number
-- Property Search. Excess Sent Home at the Inmate's Expense or Destroyed
-- Clothing and Personal Hygiene Items Issued from the Vault
-- Barbershop-Regulation Reception Haircuts
-- Profile Photos Taken, ID Badge Issued, Emergency Notification Data Entered into Computer Data System
-- Medical Intake History, TB Test, Mental Health Initial Evaluation
--Assigned to Intake Housing Unit, Handbook Issued, General Orientation Given, Showers Given
Day 2
-- Chest X-Rays With Initial Dental Exam
-- Blood Drawn by Phlebotomist
-- Reception Physician Complete Physical Examination
-- Fingerprints Taken
-- Inmate Interviewed by Classification Specialist for Visiting Lists and Separation Needs to Include the Reception Classification Intake Questionnaire
-- Security Threat Group Identification and Registration
-- Detailed Mental Health Interviews to Better Determine Levels of Care, Including: Crisis Intervention of Placement in a Residential Treatment Unit
Day 3
-- PPD Read
-- Educational Testing Including:
-- Beta IQ Test
-- Table Locator
-- Table Survey
-- Public Defender Orientation
-- Recovery Service Testing Administering Prison Inmate Inventory
-- Chaplain's Orientation