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MUSICK, PEELER & GARRETT v. EMPLOYERS INSURANCE OF WAUSAU
- 1990-1999
Legal provision: Securities Act of 1933, the Securities and Exchange Act of 1934, or the Williams Act
Argument of Charles A. Bird
Chief Justice Rehnquist: We'll hear argument next in Number 92-34, Musick, Peeler & Garrett, et al. v. Employers Insurance of Wausau.
Mr. Bird, you may proceed.
Mr. Bird: Mr. Chief Justice, and may it please the Court:
This case concerns the implication of a cause of action for contribution in a Federal statute.
The statute in question is section 10(b) of the 1934 Securities Exchange Act.
It is a statute in which courts have previously implied a cause of action for people who suffer losses as a result of purchases or sales of securities where the... as a result of damage... or, pardon me, as a result of violations of section 10(b).
My theme today is simple.
The Court should apply its intent-based jurisprudence of implied rights, a standard which respondents concede they cannot meet when asked to apply a cause of action for a contribution in a statute in which a victim's civil claim has previously been implied.
Respondents and their amici assert that the Court should apply a different line of cases.
That is, a line of cases involving fleshing out the victim's remedy itself.
My burden today is to show that a contribution claim is a separate claim, and it should be treated as any other potential implied right of action in this Court's jurisprudence.
Implied contribution is to be treated like any other request for an implied action, first, because this Court has said so.
In the Northwest Airlines and Texas Industries cases, the unsuccessful petitioners made arguments which are indistinguishable from the arguments made by the respondents in this case.
The Court treated contribution there as an implied claim over those arguments.
In Texas Industries, the petitioner asserted that contribution was not at all a new cause of action, but only a supplement to the victim's express remedy in that statute for damages under section 4 of the Clayton Act.
The respondent... petitioner in that case also argued that contribution was a necessary corollary to judicial creation under the antitrust laws of joint and several liability among violators of that law, and amici in that case actually argued that contribution was somehow within the penumbra of the statute itself.
The court in that case said that in almost any statutory scheme, courts may have to interpret ambiguous or incomplete provisions, but the authority to construe a statute differs fundamentally from the authority to fashion new remedies.
The court also said that the judicial determination that defendants shall be jointly and severally liable does not suggest that courts have the power to order contribution among the defendants, for joint and several liability only assures that the victims whom Congress intended to protect shall have full recovery from some, if not all, of the perpetrators.
Were there any lingering doubt that somehow Texas Industries and Northwest Airlines differed from this Court's general jurisprudence of implied rights of action, I would suggest that was put to rest last year in footnote 6 of Franklin v. Gwinnett County Public Schools, where the Court cited all of those cases as a single line and said that it's intent-based jurisprudence shall apply to all such cases.
Implied contribution is to be treated like any other request for an implied claim, second, because contribution is a distinct action and--
Unknown Speaker: I suppose that footnote sort of grandfathered the implied cause of action under 10(b).
Mr. Bird: --That footnote did not discuss the implied contribution under section 10(b).
Unknown Speaker: No, not contribution, just cause of action.
Mr. Bird: The implied cause of action under 10(b) itself was grandfathered as far back as Bankers Life.
I think the Court has accepted the fact that lower courts have adopted that implied cause of action for victims and repeatedly in a number of cases the Court is fleshed out that cause of remedy, but as... the Court is never addressed the issue whether there shall be implies contribution.
Contribution is a separate action because it always involves a different plaintiff, and that different plaintiff is someone whose claim has not been recognized that different plaintiff is someone who is always a perpetrator of a violation of the statute, always a member of the class that Congress intended to regulate, never a member of the class that Congress intended to protect.
Second, contribution very often involves a different defendant.
Even if contribution is sought in the same action where the victims seek their compensation third party practice permits other parties, other defendants to be brought in by contribution actions, and often, as is the case here, contribution brings to Federal court a new suit.
Implying contribution truly extends Federal jurisprudence to embrace a dispute which Congress has not assigned the Federal courts to resolve, and that is a dispute for adjustment of damages among defendants as opposed to a suit for compensation by a victim.
Unless Congress tells the Federal courts that it wants them to embrace that dispute, to reach out--
Unknown Speaker: Did we ever pretend when we created the 10(b) cause of action that Congress intended that cause of action to exist?
Mr. Bird: --No, Justice Scalia, you acquiesced in the lower court's 10b-5 cause of action under standards which differ profoundly from the standards that this Court now uses to determine whether there shall be implied rights of--
Unknown Speaker: So under a Lampf kind of analysis, having created 10b-5 actions, which you might say without any express indication of congressional intent, why shouldn't we continue to round out the scheme without any indication of congressional intent?
Mr. Bird: --Contribution is not rounding out.
There is... the rounding-out cases, of which Lampf is one, start from the... start with the assumption that the court must reach an answer.
To illustrate with an example even simpler than Lampf, the court cannot walk away from the question whether the standard for liability under section 10(b) shall be negligence, shall be scienter.
The court cannot say, well, Congress didn't instruct us on this so we simply won't answer the question.
There is absolutely no need, in rounding out the victim's cause of action, to develop an entirely new jurisprudence of what should be the rights of perpetrators.
Unknown Speaker: You think we're just... we think we'd just be off-base if we tried to devine what Congress' intention might be if it thought about it.
Mr. Bird: I do, Your Honor, very much so.
I believe the kind of analysis which exists in the respondent's brief in this case is a kind of analysis in which this Court should never indulge in the process of deciding whether to create a cause of action.
The question is an attempt... Your Honor put it very succinctly.
What would Congress have done if it had known?
That is not an effort to determine legislative intent, it is an effort to impute intent to a mind which had none whatsoever.
Unknown Speaker: Congress... don't you think Congress has embraced the notion of a cause of action under 10(b)?
Mr. Bird: I believe Congress has... beyond any question, has embraced the notion that victims of violations of section 10(b)--
Unknown Speaker: So your answer's yes.
Mr. Bird: --Yes.
Unknown Speaker: It's just plain yes.
Mr. Bird: Yes.
Congress has said that victims shall have a cause of action against perpetrators it has seen and approved of this Court's jurisprudence.
It has not said in any way whatsoever that perpetrators shall have remedies against each other to adjust what they--
Unknown Speaker: But it has said in comparable sections... maybe you don't think they're comparable... that there should be contribution.
Mr. Bird: --I do not believe they are comparable, though I would--
Unknown Speaker: What if they were?
What if 9 and 18 you could say are sort of fellow travelers with 10(b) and Congress has expressly provided for contribution?
Mr. Bird: --I would still argue that the Court should not engage in that kind of reasoning by analogy that says well, Congress did it here, and Congress did it there, so Congress would have done it if it had only known.
Unknown Speaker: Well, we did it for the statute of limitations.
Mr. Bird: But that was an entirely different situation, Your Honor where you were--
Unknown Speaker: Well, it always is.
No, but why?
You said that we had no choice, that we had to come up with some... we didn't have to pick a statute of limitations.
We could have said, there is no statute of limitations.
There are such things.
Just the law of laches governs, and nothing else.
Why couldn't we have said that?
Mr. Bird: --The analysis in... you could have, but you did not.
Unknown Speaker: Right.
Mr. Bird: The Court did not do that, Your Honor.
The analysis in Lampf commences with a phrase which says,
"excepting that some limitation must apply. "
and by saying that this Court squarely placed the analysis of Lampf within the same line of cases that says, we will determine what is the standard of liability, that says, we will determine whether purchasers or sellers or perhaps someone else shall have a cause of action.
That was not the creation of the cause of action.
It is not a form of reasoning which should be applied in a case like this.
Unknown Speaker: Well, why doesn't... I'm sorry.
Go ahead, please.
No, go ahead.
Why doesn't this form of reasoning apply?
One of our sort of rounding-out theories is that if there is in fact a class of plaintiffs who are given an implied cause of action, and there are other potential plaintiffs who are in essentially the same equitable kind of position that we ought to round out and extend to that second group of plaintiffs, why don't we have sort of the converse situation here... that if in fact there is a group of defendants who are in some comparable position and have a right of contribution, then we ought to round out our cause of action to do the same thing for defendants under 10(b)?
As Justice White referred a moment ago to the section... what is it, the section 9 and section 18 causes of action, there is contribution.
Why isn't the same equitable argument for the sake of defendants an appropriate argument to make here as the equitable argument in the case of plaintiffs that we recognized in Virginia Bankshares?
Mr. Bird: Because initially, Your Honor, you do not approach these people as defendants.
You approach these people as plaintiffs.
They have brought to court... and this case is a classic illustration.
They have brought to court a lawsuit separate from the victim's lawsuit, in which they assert an entirely new cause of action against new defendants.
That is an extension of Federal--
Unknown Speaker: Well, if... may I just interrupt you and ask this: if we get over the question of whether to call them plaintiffs or whether to call them defendants, do they not have essentially the same equitable argument to make:
We are in a worse position than those who have been subjected to express causes of action where express rights of contribution apply, and therefore we ought, as a matter of equity, be accorded the same right, whether you call us a plaintiff or whether you call us a defendant?
Mr. Bird: --Justice Souter, that is an issue of pure policy.
They can make that argument.
The fundamental question is whether the Federal courts should entertain an argument of pure policy when what is before them is the question whether Congress authorized a... the courts to create a cause of action.
Unknown Speaker: May I... first of all, you don't really draw a distinction between whether the contribution claim is asserted after a judgment or after settlement or before, do you?
Mr. Bird: I do not, Justice Stevens.
Unknown Speaker: I just wanted to be sure, because then it wouldn't matter whether you call them plaintiff or defendant in that context.
But what about the reasoning in the Blue Chip case, where you talked about the acorn growing into a judicial oak, and that therefore it's too late to chop the oak down, in effect.
Don't we in a... to a certain extent have a judicial oak here, in that courts of appeals have rather consistently found a right of contribution over the years, and that's sort of what the law, with one exception, is today?
Mr. Bird: Your Honor, you do not.
Contribution in Federal security... in 10b-5 cases at this point is not a judicial oak.
What the Court is being asked to do here is to plant--
Unknown Speaker: It's certainly more than an acorn, and there are a lot of cases out there and there have been for a good many years.
And it's a hard nut to crack, too.
Mr. Bird: --Well, perhaps it's a little sapling, but it certainly does not have the dignity that the 10b-5 cause of action had when it reached this Court in Bankers Life, nor does it have even the theoretical underpinnings of that.
When this Court first met the implied cause of action under section 10(b), it had been recognized by far more courts, including the courts of appeal, and it also had an underpinning that that cause of action was implied, under whatever theory of jurisdiction, for the very people investors, who were the people to be protected when Congress enacted section 10(b).
This is not a class of people who were to be protected when Congress enacted section 10(b).
Congress enacted section 10(b) as an extremely broad regulatory statute, not simply the disclosure statute which the Court sees most often.
There is no reason to suggest that in attempting to regulate disclosures markets and anything else the Securities and Exchange Commission thought was necessary to protect the public and investors Congress intended to do anything to adjust the rights and liabilities of perpetrators of violations of the section.
Implied contribution also is to be treated like any other implied action, because abandoning the intent-based jurisprudence in this case is bad judicial policy.
The real... if the real intent-based standard is abandoned, Federal courts will face countless arguments like the colloquy we have just had here suggesting that through some reasoning by analogy, or some principle of equity, some party is entitled to assert a cause of action because some other party is entitled to do so.
This reasoning by analogy is like looking at legislative history through dark glasses.
Two things are true of it--
Unknown Speaker: Or at all.
Mr. Bird: --Or at all, but in this case certainly, first it's obscure, and second, what one sees depends on the color of the glasses, because whenever the Court begins trying to create causes of action by analogy, the question is, what analogy is valid?
The validity of an analogy depends on adopting the same premises that Congress adopted when it enacted the statute, and the sort of reasoning which is being urged on this Court today is a kind of reasoning which attempts to create intent in congressional minds which was not there.
Unknown Speaker: Were there pendant State law claims in this case?
Mr. Bird: Justice Kennedy, there were.
Unknown Speaker: Does State law allow a contribution?
Mr. Bird: State law would allow contribution for certain purposes.
In California, it's called comparative equitable indemnification.
The claims alleged in State law in this case were dismissed by the district court at the same time that all other claims were dismissed and there would remain an issue in the district court, upon dismissal of the 10b-5 or 10(b) attempted contribution claim, whether any of the State law claims would be valid.
The State law claims obviously are not here before this Court.
A second critical issue of judicial policy in applying the intent-based standard is that any time the Court departs from it, especially with respect to a right of contribution, that--
Unknown Speaker: Mr. Bird, what point in time do you think Congress' intent is relevant when you're talking about intent-based standards, back in '34, or more recently?
Because all the way back to '34, the general rule was if they passed the statute, why, they expected the judges to figure out the appropriate remedy, so I'm wondering whether you're talking about intent in '34, or intent since we changed the law a few years ago.
Mr. Bird: --Well, the Court has uniformly applied its intent-based jurisprudence looking at the intent when the statute was created.
Unknown Speaker: So we're looking at '34.
Mr. Bird: You would be looking at '34, Your Honor, although that's one of the very issues that comes up once one starts to reason by analogy, and that is, what Congress does one look at?
The secondary jurisprudence in this case already includes what's the effect of partial settlement without guidance of Congress, whether contribution, if allowed, would be pro rata or by relative fault, some guidance by Congress in section 11 of the 1933 act, none any place else.
In this very case, if one were to look to sections 9 and 18 and say well, Congress might have done the same thing, in any case where there is both a section 10 claim and a 1933 section 11 claim, it's possible for the section 10 contribution analysis utterly to overwhelm the plain language of section 11, which says that those who were intentional wrongdoers shall not have contribution against those whose violation was recklessness or of some lesser character.
And I think, Justice Stevens, although in general one would look at 1934, it is certainly valid in this case to say, once one gets into the analysis of contribution, should we look at section 20A and see if in section 20A, which Congress passed in 1988.
it had learned something about whether contribution was efficacious or not, and explicitly declined to adopt it as part of the Insider Trading Act.
I think that secondary jurisprudence is one which cautions this Court not to attempt to create causes of action for contribution where they did not exist before.
The Court should set a clear and simple principle to apply to requests for implied contribution wherever the Court has previously accepted an implied victim's cause of action.
This is not the only case in which a request for implied contribution could come to the Court.
It could arrive in the Commodity Exchange Act, it could arise under title IX, it could arise under the Rehabilitation Act... perhaps most importantly, in terms of volume impact on the Federal court, it could arise, it has arisen, it has created a conflict in the circuits under the Civil Rights Act, and I would urge the Court to take the opportunity in this case to write clear, simple, principled, intent-based jurisprudence which will guide the lower Federal courts in all of those cases and prevent the necessity for resolving them on a case-by-case basis using the kind of analysis that comes out of hypotheticals.
The Court has never fleshed out one implied right with another.
This is not the first time to do it.
I would urge that the Court in this case ask itself the question, in writing a decision in this case, is this the end, or is it a beginning?
The entire fleshing out line of cases defines, it often limits, a section 10(b) cause of action.
Or is this a beginning?
Is it the planting of an oak, or perhaps the cultivation of what's now only a sapling, does this case shape an old claim, or does it create a new claim?
Emphatically, this case creates a new claim which this Court should not recognize.
If there are no further questions, Mr. Chief Justice, I would reserve the remainder of my--
Unknown Speaker: Could I ask you if, in developing intent-based jurisprudence, would you say that... just have a real simple rule, Congress either provides a cause of action, or you just never imply one?
I suppose that would be your choice.
You either imply... Congress either expressly creates it, or courts don't imply it, period.
Mr. Bird: --That goes beyond the Court's current rule, and I would not urge that the Court has to adopt a position that is that strict.
Unknown Speaker: So we're going to be constantly, as we have been for years, trying to divine congressional intent from almost any source.
Mr. Bird: What I've urged, Justice White, is that the Court's jurisprudence under the Touche Ross and Transamerica line of cases is a currently successful analysis which provides adequate guidance.
If the Court were to choose to say, if it's not in the statute it's not there, that's certainly a sustainable basis to decide this case.
It's not a necessary basis.
Unknown Speaker: Very well, Mr. Bird.
Mr. Olson, we'll hear from you.
Argument of Theodore B. Olson
Mr. Olson: Mr. Chief Justice, and may it please the Court:
With the Court's permission, I would like first to place the question presented in this case in its proper context and then emphasize four points concerning its resolution.
The context is that for 22 years, and over the course of 10 decisions, this Court has been engaged in a continuous process of defining the configurations and contours of the 10(b) implied remedy to make it consistent with the regulatory scheme from which it is derived.
This case is simply part of that continuum.
The Court must decide how 10(b) defendants will allocate among themselves the damages for which 10(b) makes each of them liable.
The only question is how that issue will be decided: in favor or against contribution among 10(b) defendants.
Unknown Speaker: Well, is this contribution between defendants, or contribution from nonparty defendants?
Mr. Olson: It's contribution among the persons who would be liable to the plaintiff under section--
Unknown Speaker: So they are people who weren't parties.
Mr. Olson: --They are people who may not necessarily have been parties, but people whose liability was established by the conduct that gave rise to the 10(b) action or in the comparable Securities Act express remedies, the violation of section 9, section 18, and section 11.
There are four reasons, we submit--
Unknown Speaker: That's point to be tried, though, isn't it, or not... whether, indeed, their conduct made them liable for this damage?
Mr. Olson: --Yes, it would be, but their liability would be established by the conduct that occurred at the time of the violation of section 10(b).
We submit that there are four reasons why this Court's jurisprudence and the choice Congress has already made require a decision in favor of contribution over no contribution.
The first relates to the means by which the decision should be made, the second is the outcome that that method ordains, the third responds to petitioner's central argument, and the fourth concerns the consequences of a decision against contribution.
First, the methodology.
Petitioner suggests that there's some sort of dichotomy between divining the intent of Congress and filling out the contours of the section 10(b) remedy.
We submit that the Court has applied a consistent, fundamental, jurisprudential principal in defining the 10(b) remedy.
The Court looks to the 73rd Congress, the interrelated '33 act and '34 act, to the express statutory remedies that are the analogues of section 10(b), and then decides what Congress would have intended had it considered the issue, and what result would conform the 10(b) implied remedy most faithfully to the statutory regime.
This approach, we submit, has three very strong and powerful virtues.
It respects the separation of powers, leaving the policymaking decision to the policymaking branch.
It yields consistent results by consulting with the same oracle on each occasion a 10b-5 issue or a 10(b) issue is presented, and it provides a clear and predictable path for lower courts deciding future 10(b) cases as well as guidance for those who must litigate past inventions.
Unknown Speaker: If it's such a terrific approach, why have we abandoned it--
Mr. Olson: You have not abandoned--
Unknown Speaker: --For everything except 10(b)?
Mr. Olson: --We submit that the Court has considered 10(b) cases... 10 10(b) cases over the last 22 years, and for all intents and purposes that precise methodology, visited most recently 2 years ago in Lampf, involved that same process, consulting the statutory framework from which 10(b) arose, the analogue... most comparable provisions of the section comparable to section 10(b) section... in that case section 11, section... and particularly section 9 and 18 of the 1934 act, and that is the methodology that the Court applied.
The Court applied a similar and virtually identical methodology to the other 10(b) cases, so far from abandoning any approach that the Court has applied in 10(b) cases, we're asking the Court consistently to do what it has done over and over again and what it did most recently in Lampf.
Unknown Speaker: Well, Mr. Olson, though, don't Texas Industries and Northwest Airlines indicates that a contribution action is separate?
It's separate from the underlying cause of action--
Mr. Olson: Well, we have--
Unknown Speaker: --Which might move it beyond Lampf.
Mr. Olson: --I've several responses to that.
That is the central and exclusive core to the petitioner's argument in this case.
In the first place, the reference in those two cases to the phrase, cause of action, was not necessary to the decisions in either of those two cases.
What the Court was doing in those two cases, we respectfully submit, and the Court did unanimously, was look to the intention of Congress.
In each of those cases, Congress had created an explicit statutory remedy, and in each of those cases Congress had not included a cause of action or a claim or a remedy for contribution as a part of the explicit cause of action.
As a result, the Court determined Congress created this cause of action explicitly, did not want contribution as a part of it, and we will adhere to the judgment of Congress.
The phrase, cause of action, really had very little to do with it.
What we submit is what is happening in the Securities Act... and by the way, in the Northwest Airlines case the court said specifically when... in a footnote, the Court specifically said, when Congress did want to create a cause of action or a remedy or a right for contribution, it did so, and the Court in that footnote pointed explicitly to the securities laws, the '33 and '34 acts.
Those... the rule of contribution explicitly provided in the Securities Acts is very unusual in Federal law.
There are very few explicit rights to contribution.
Thus, Congress knew what it was doing when it included a rights... rights to contribution in the Securities Acts.
In fact, in section 11 and in section 9 and in section 18, the reference to contribution is included in the definition of the right or the remedy itself, thus suggesting that Congress felt that contribution was a part of the cause of action or a part of the remedy, and suggesting that Congress felt that that contribution right was an important essential feature of the remedy itself.
Thus, we don't believe that contribution is a separate cause of action, but even if it were a separate cause of action, the very same methodology would apply.
The Court would try to determine whether implying the cause of action, if that's what's going to be done, would be most consistent with the statutory framework.
We submit that, again, it would be most consistent with the statutory framework, because every time the... when Congress did create a mechanism for securities fraud in 1933 and 1934, it repeatedly put contribution as a part of those rights.
This Court has determined over and over again that the provisions to which I've referred are most like section 10(b).
Section 10(b) is a part of them, it's a judicial overlay to section 10(b).
In the same rules Congress would have wanted to include a right of contribution in a 10(b) remedy just as it did... it wanted to include a right of contribution with respect to the sections 11, 9, and 18 remedy.
Probably most telling is the consequences of what might occur if the Court were to hold a noncontribution right in this case.
Because section 10(b) is an overlay to these explicit Securities Act provisions, the parade of horribles that the plaintiffs refer to about... that result allegedly from contribution are going to exist anyway.
Petitioner's concern about the complexity in settlements and so forth we submit is going to occur anyway because contribution does exist, it will exist, and it will continue to exist in section 10b-5 cases because sections 9, 11, and 18 are also going to be involved in those cases.
In fact, what would happen if this Court adopted a no-contribution rule in section 10(b) cases, it would give the plaintiffs a choice to write out of existence the contribution rights that Congress so explicitly intended.
In 10(b) cases or in securities fraud cases, you'd have a choice of the plaintiff to select contribution or no contribution.
Because section 10(b) overrides everything else, if the plaintiffs chose to select 10(b), it could write out the provisions of contribution that exist in sections 9, 11, and 18.
Thus, you would involve... as a result of the judicial creation of section 10(b), involve yourself in a judicial implied repeal of the contribution rights that Congress so explicitly intended.
Unknown Speaker: Well, maybe--
--Are those acts... excuse me.
Go ahead. Are those actions exclusive?
Do you have to elect between--
Mr. Olson: You don't have to elect, but--
Unknown Speaker: --Why can't you just plead them all and ask for contribution as to the former but not as to 10(b)?
Mr. Olson: --You could do that.
Plaintiff could do that, and then you would have what the... the concern that the plaintiff is worried about, that you would have complexity involved in contribution.
You're going to have a further complexity of the court having to resolve contribution and noncontribution in the same case and try to assign the amount of liability that was a result--
Unknown Speaker: Well, that may be true.
My only point was that's not necessarily a repealer of the contribution, as you indicated.
Mr. Olson: --Well, but it could be used by a plaintiff as a repealer to avoid--
Unknown Speaker: Only if he elects.
Mr. Olson: --If he elects, but Congress, when it established a mechanism for enforcement through private remedies of securities fraud clearly wanted contribution to be a part.
Contribution ensures that the wrongdoers cannot completely escape.
Even if the plaintiffs don't select out the wrongdoers, the defendants may select out the wrongdoers.
In addition to that, as this Court indicated in Bateman Eichler, there's affirmative value in the enforcement process to allow the wrongdoers to sue one another.
It allows them, the defendants, to bring cases against other potential defendants to bring to the attention of the law enforcement authorities possible violations of the securities laws.
That's why the Securities & Exchange Commission has filed a brief and is here today supporting the inclusion of contribution, because contribution is such a necessary... as perceived by Congress, inclusion in the Securities Act.
If you give plaintiffs an opportunity to repeal contribution, and plaintiffs may well choose to decide not to plead violations of the statute that do involve contribution because they may decide that may give them some leverage against some of the defendants, or they may decide to dismiss some of the cases if they can make a deal with some of the defendants because of joint and several liability.
That would allow section 10(b), the nocontribution rule of section 10(b) to be used as a judicial implied repeal of the contribution rights in the other sections.
Furthermore, a decision against contribution would, as Justice Stevens suggested in his questions a moment ago, overturn 25 years of consistent lower court case law.
Until a few months ago, when the Eighth Circuit decided the Chutich case, there was 25 years of consistent law.
Now, earlier, we... there was some debate by Mr. Bird as to the size of the judicial oak.
It's interesting, and I think quite compelling, that when section 10(b) got to this Court for the first time in 1971, it was 25 years old.
It had first been recognized 25 years before in the Kardon case.
In the Blue Chip case, when this case first reached the Birnbaum rule, that rule, which came from the Second Circuit, was 22 years old, and the Blue Chip case, in the words of the Chief Justice speaking... Justice... then Justice Rehnquist, speaking for the Court, was that the 25 years of consistent judicial interpretation should not... was significantly persuasive in and of itself.
Today, we are facing the decision with respect to contribution or no contribution.
Contribution has been around in the Federal courts in the securities fraud area for 25 years, the same length of time, and with about the same judicial pedigree... Mr. Bird said contribution hadn't been approved by as many courts as section 10(b) at the time section 10(b) got here, but there are seven... five or six circuits that have approved contribution, and I suspect the weight of judicial authority is about the same.
The same is true of the Birnbaum rule.
So the contribution rule comes to this Court with the same weight of judicial authority behind it from the lower courts as did the 10(b) rule itself and the purchaser-seller rule found by the Court to continue to be appropriate in the Blue Chip case.
In summary, the choice is an outcome consistent with congressional intent as expressed in section 10(b)'s closest analogues, with 25 years of judicial interpretation, the SEC's view of the enforcement scheme and how it can best be administered, and the framer's decision as to where policy decisions should be made.
The alternative cannot possibly be said to be consistent with congressional intent.
In fact, it would repeal congressional decisions, and it would fail to fulfill this Court's duty to complete the task it undertook beginning in 1971 to make the section 10(b) remedy as close as possible to the instrument Congress would have created and as compatible as possible with the regulatory and enforcement regime Congress did create.
To summarize, we are only asking this Court to do what the Court has consistently done with section 10(b).
Having created the judicial remedy, what are its configurations and contours going to be, and how can we best make it more closely approximate what Congress would have intended and how may we make it the closest possible approximation to what will not interfere with the enforcement provisions of the remaining provisions of the Securities Act and how best to fulfill the purposes of those acts?
Thank you.
Unknown Speaker: Thank you, Mr. Olson.
Mr. Long, we'll hear from you.
Argument of Robert A. Long, Jr.
Mr. Long: Thank you, Mr. Chief Justice, and may it please the Court:
The Securities and Exchange Commission has concluded that the Court should recognize a right of contribution under section 10(b) and rule 10b-5.
The Commission has made that conclusion for essentially two reasons.
First, Congress provided for contribution in provisions of the 1934 act that create express private rights of action for securities fraud, that is, sections 9 and 18.
Because section 10(b) is part of a family of rights that should be construed as a coherent whole, Congress' decision to recognize a right to contribution in the comparable express causes of action should govern in actions under section 10(b).
Second, the Court has the power to recognize a right of contribution.
The section 10(b) right of action is an implied right.
Defendants are liable under section 10(b) only because courts have said so.
In prior cases, this Court has defined the contours of the section 10(b) right of action to maintain evenhanded administration of the securities laws.
The Court can and should exercise that power in this case to recognize a right to contribution.
Now, let me address the second point, the power point, first.
Unknown Speaker: Mr. Long, do you think in recent cases we've said that the courts have the power to create causes of action?
Mr. Long: Well, I think what we have here is, we would agree this is a cause of action, but it's not an independent cause of action.
Contribution is entirely derivative of the underlying section 10(b) cause of action.
The parties are all parties who either were present in the original action or they could have been present if the plaintiff had named them, and the liability is the liability that's established in the original action.
So we do not view this as a case in which it's appropriate to apply the Texas Industries or Northwest Airlines type of analysis.
That analysis is appropriate where Congress has expressly created a cause of action but has omitted a right of contribution.
Unknown Speaker: Well, you might think that if Congress has expressly created the cause of action and we lack the power to create a right of contribution that a fortiori there wouldn't be such a right if it's only an implied cause of action in the first place.
Mr. Long: Well, again, the approach the Court has followed is when it has implied the cause of action it has undertaken the necessary process of defining the contours of that action of rounding it out, and where the question is whether there should be a right of contribution, we see no essential difference between answering that question and answering the kinds of questions that this Court has answered in many prior cases under section 10(b), whether to recognize a defense, the measure of damages... this is really, we think, just another question in that line.
Unknown Speaker: Well, to the extent that it is a new cause of action, it seems to me it's a step beyond questions about whether there should be a statute of limitations or a defense.
Mr. Long: I would agree with you that it's a step beyond in that sense, but again, I would emphasize this is quite different from implying a freestanding cause of action.
And in the situation the Court is presented with here, when section 10(b) really sits among some express causes of action that Congress created, where Congress expressly recognized rights of contribution and section 10(b) not only sits in the middle of those but in fact is a kind of catch-all that overlaps to a great degree, for the Court to not imply, or not recognize a right of contribution we think would in fact be less respectful to the intent of Congress than to apply the same policy choice, the same weighing of policy considerations that Congress made in 1934.
Unknown Speaker: I wonder what underlies that policy choice in these other sections, or under 10b-5.
Why is the Commission so intent on furnishing retribution in 10(b) cases... or, retribution?
Mr. Long: The Commission reached this conclusion because it decided as a matter of fairness and as a matter of evenhanded administration of the securities laws that a contribution right ought to be recognized under section 10(b).
Unknown Speaker: Well, how does that work out?
You mean these people who are jointly and severally liable, if somebody gets stuck for the whole bill it's fairer to dig out the other fellows who should share the liability, is that it?
Mr. Long: That's part of it.
It is... under section 10(b), a very wide variety of defendants may be sued, and there may be quite a range of responsibility, and it is possible for a defendant with a deep pocket but with rather less serious culpability to be stuck, as you say, for the entire liability.
That's part of the fairness argument.
As I say, the other part is a desire to harmonize the securities laws and give these defendants the right to contribution that Congress gave them in the comparable express causes of action.
Unknown Speaker: In our--
--I suppose you could always be fair by just limiting recoveries to the named defendants' fair share.
Mr. Long: To the... well, of course, that would... it's possible for the plaintiff, the victim, not to name all the possible defendants.
That's why contribution may be a cause of action.
It can result in some cases in an additional action.
Unknown Speaker: But that would be within the plaintiff's own power?
Mr. Long: Yes.
The plaintiff would have the power to--
Unknown Speaker: So I mean, if the plaintiff suffers, it's the plaintiff's own fault--
Mr. Long: --Oh--
Unknown Speaker: --On Justice White's hypothesis.
Mr. Long: --Well, the plaintiff may be quite confident, or reasonably confident on getting a full recovery, because it is joint and several liability, and if the plaintiff knows it's got a deep pocket--
Unknown Speaker: Well, wouldn't you... would you guess that most plaintiffs would be in favor of the Commission's suggested policy... contribution?
Would they rather have contribution or not?
Mr. Long: --I think most plaintiffs would not want to have contribution.
Unknown Speaker: Because--
Mr. Long: The absence of contribution I think gives plaintiffs additional control over the lawsuit, I think is the short answer to that.
Let me say, then, just a word about the second point I have, why the Commission believes that the comparable provisions in the securities laws evince a congressional intent to allow contribution in private actions for damages for securities fraud.
In Lampf, the Court identified the express rights of action that are most analogous to the implied right of action under section 10(b).
They are found in sections 9 and 18 of the 1934 act.
Sections 9 and 18 target the precise dangers that are the focus of section 10(b), and they provide remedies for investors injured by manipulative practices or false or misleading statements, and of course both sections 9 and 18 expressly provide for contributions... contribution rights.
Section 10(b) is the catch-all provision.
It overlaps both sections 9 and 18.
It provides a general remedy for manipulative or deceptive practices.
Because sections 9, 10(b), and 18 are integral elements of a complex web of regulations, as the Court said in Lampf, they should be construed to form a coherent whole.
Consequently, Congress' express determination to allow contribution under sections 9 and 18 should also govern under section 10(b).
Unless there are further questions, I thank the Court.
Unknown Speaker: --Thank you, Mr. Long.
Mr. Bird, you have 5 minutes remaining.
Rebuttal of Charles A. Bird
Mr. Bird: Thank you, Mr. Chief Justice.
Contribution is a new cause of action whether the underlying victim's claim is expressed in a statute, implied in a statute, or arising from the common law.
That is a simple error I believe I heard one of the respondents make.
Respondents referred to footnote 11 in the Texas Industries case.
In footnote 11, the Court wrote,
"We intimate no view as to the correctness of. "
and followed with citation to the three cases which then said there would be contribution in 10b-5 actions.
If contribution in 10b-5 actions is a sapling, it was never cultivated by this Court.
Complexity of contribution is an issue of policy.
Fleshing out a new cause of action for contribution is an Article 1, Article 3 problem.
That is our point.
Finally, this case is at the intersection of two lines of authority.
One line of authority says that as to all causes of action there shall be implication if, in a Federal statute, if, and only if, Congress clearly and affirmatively intended that that be so.
Another line of cases says, we have this 10b-5 victim's cause of action.
We must flesh it out, and because we have no other signpost, we must look to what Congress would have done if Congress had realized there was going to be this cause of action.
The question is which of those lines of authority shall govern the cause of action, if any, for contribution under section 10b-5.
The would-have-done analysis is exactly what got this Court to the Borak cause of action, and it is exactly what this Court rejected in Touche Ross, in Transamerica Mortgage Advisers, in Texas Industries, and in Northwest Airlines, and it is exactly what this Court should reject here.
From this intersection, the Court should say the intent-based jurisprudence implies... applies to all implied causes of action, whether for contribution or for anything else.
Thank you.
Chief Justice Rehnquist: Thank you, Mr. Bird.
the case is submitted.
Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.


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Available formats: epub mobi pdf rtf lrf pdb txt html
Cathryn Grant is the author of Suburban Noir novels, ghost story novellas, and short fiction. Her writing has been described as "making the mundane menacing".
Cathryn's stories have appeared in Alfred Hitchcock and Ellery Queen Mystery Magazines. Her short story, "I Was Young Once" received an honorable mention in the 2007 Zoetrope All-story Short Fiction contest.
When she's not writing, Cathryn works in high tech, reads, and plays very high-handicap golf. She lives in Northern California with her husband and two cats. Visit her website at cathryngrant.com
Review by:
Natasha Alexander
on Jan. 09, 2011 :
I just finished Cathryn Grant's debut novel, The Demise of the Soccer Moms, and found it a thoroughly engaging read.
Grant draws some interesting characterizations among the suburban moms who people her story. Her most compelling is a chilling depiction of Amy, a woman whose mental health spirals downward with increasingly disastrous consequences.
The threads of parental competition, anxiety and wanting the best for your kids, while drawn with an intentionally heavy hand, will resonate with other suburban soccer moms while we simultaneously nod with recognition and thank our lucky stars that we don't live in Grant's suburban noir nightmare.
(Or do we?)
(reviewed within a week of purchase)

subset: commoncrawl


text:
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COMMUNITY SPORTS: Coaching vacancies
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Del Norte High School ---- What : Head coach position. Contact : Athletic Director Mike Giaime. Email : firstname.lastname@example.com
Fallbrook High School ---- What : Varsity girls head coach. Phone : Pat Walker at 760-723-6300, Ext. 3601 Email : email@example.com.
Mission Hills High School — What : Girls junior varsity or frosh level coach for the fall season. Contact : Meghan McKinney at email@example.com.
Mission Vista High School — What : Girls junior varsity coach. Applicants must have a knowledge of the game, prior coaching experience and dedication to developing a program. Contact : Head Coach BriAnna Raphael. Email : email@example.com
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text:
The Photographer's Daypack, Model 750, was designed for one camera with attached lens and motor drive in Tamrac's patented Lens-Bridge with Lens-Gate Divider System. Adjustable, foam-padded, compartments protect three to four lenses, a flash and accessories. The Tamrac daypacks carry your gear securely while not looking like a camera bag.
The camera compartment is quickly accessible through a double-sliding zipper that glides beneath a protective rain flap. Additional compartments and pockets provide organization and extra space. The large quick-release top flap provides complete coverage and has a zippered pocket that is perfect for maps and tickets. The thick foam padded backpack harness is contoured to disperse the weight evenly across the shoulders and back. Sternum straps prevent the shoulder straps from slipping. A Tuck-A-Way waist strap keeps the pack from bouncing and tucks away when not in use. Adjustable straps will hold a small tripod. The Model 750 is equipped with S.A.S. attachment slots (Strap Accessory System).
Constructed of fully coated PowerGrid Cordura. The camera compartment is padded in thick closed-cell foam, with a strong plastic platform beneath the foam.
- Looks like a daypack - serves as a camera bag
- Uniquely designed to hold a fair amount of gear
- Slide Pocket film/filter compartment slides quickly from inside the front flap to provide the quickest possible access
- The Piggyback Pocket enables many of our camera bags to work in conjunction with any rolling products that have a telescoping handle
- Lensgate Divider padded gates swing open and closed to prevent equipment from contacting each other


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BIG BEAR LAKE, CALIF. (October 8, 2009) Undefeated No. 1 super middleweight contender and American Dream The Matrix ANDRE DIRRELL is finishing up his most grueling and productive training camp ever as he prepares for his first world title fight, challenging World Boxing Council (WBC) super middleweight champion Carl Froch in a battle of undefeated warriors. Dirrell breaks camp for Mother England on Saturday.
Ive spent my whole life dreaming of this night when I fight for the world title, said Dirrell. Froch has been foaming at the mouth saying how hopeless my chances are against him. Frankly I find his rants tiresome. No wonder Joe Calzaghe didnt give him a shot. Hes a gasbag. He may have fought southpaws and orthodox style fighters, but he has NEVER fought a switch-hitter like me. Im going to go Mickey Mantle on him and shoot the works from the moment the bell rings. Mr. Froch can kiss my Yankee Doodle..
Dirrells promoter, Gary Shaw, stated similar sentiments. Andre is considered the dark horse of this tournament and thats just fine with us, said Shaw. No one gave him a chance against Victor Oganov (28-1, 28 KOs), or Anthony Hanshaw (21-1-1, 14 KOs), and he had an early night with both of them, knocking them out in the sixth and fifth rounds, respectively. I have no doubt Andre will be the new WBC super middleweight champion on October 17 and I have no doubt Andre will be in the finals of this illustrious tournament.
Undefeated WBC super middleweight champion Carl Froch (25-0, 20 KOs), of Nottingham, England, and unbeaten, 2004 Olympic U.S. medalist Andre Dirrell (18-0, 13 KOs), of Flint, Mich., stage their 12-round showdown at Trent FM Arena in Nottingham, England, on Saturday, Oct. 17, live on SHOWTIME® (8 p.m. ET/PT, delayed on the west coast).
The battle of unbeatens the second half of a doubleheader on SHOWTIME® -- will be for Frochs WBC 168-pound title and the first fight for Froch and Dirrell in the Super Six World Boxing Classic.
In the opening Super Six Group Stage 1 bout on Oct. 17, undefeated former IBF middleweight champion King Arthur Abraham (30-0, 24 KOs), of Germany, will face former undisputed 160-pound titleholder Jermain Bad Intentions Taylor (28-3-1, 17 KOs), of Little Rock, Ark., at 02 World Arena in Berlin, Germany. The Abraham-Taylor 12-rounder will be shown on SHOWTIME on same day delay.
For information on all SHOWTIME Sports telecasts, including exclusive behind-the-scenes video and photo galleries from its events and complete information on the Super Six World Boxing Classic, please visit the website at http://www.sports.sho.com
Dirrell to Dedicate his Fight Against Carl Froch to the American Troops
(BIG BEAR, CALIF.) Super middleweight Andre Dirrell (Flint, Mich.) is currently completing his stateside preparations for his first world title fight at Camp Dirrell in Big Bear, Calif. He and his team will depart for England on Saturday before he steps into the ring with WBC Super Middleweight World Champion Carl Froch (Nottingham, England) at the Trent FM Arena in his hometown of Nottingham on October 17.
Dirrell knows that he will be representing not only himself, but his country on October 17, and is dedicating the fight to the United States troops who fight for American citizens like himself every day.
The American troops overseas keep all of us safe and I support them 100 percent, Dirrell said. I do nothing but pray for them because they do that for our country and everyone in it.
Dirrell is accustomed to competing for the red, white and blue, having boxed for Team USA in numerous events as an amateur, including the 2004 Olympic Games, where he won a bronze medal.
The 26-year-old Olympic medalist has completed nearly two months of training camp in Big Bear, and is positive that he will claim his first world championship in his nineteenth professional fight in Nottingham. Im feeling really confident right now and Im ready to make it happen, Dirrell said.
He will complete sparring on Friday before leaving for England on Saturday morning. Dirrell will be joined by several family members in Nottingham, including his brother, Anthony, and uncle and grandfather, Leon Lawson, Jr., and Leon Lawson, Sr., who also serve as his trainers.
Fans can get an inside look at Dirrells training camp and preparations for his first world title fight in the opening episode of Showtimes FIGHT CAMP 360 this Saturday at 10:30 EST/PST.
For live updates on Andre Dirrell throughout fight week, follow him on twitter at www.twitter.com/andredirrell.
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A conversation about the event-planning industry with sales directors from McMenamins and the Portland Art Museum.
A rise in hotel bookings increased the industry's agency board's expectations for 2014.
Portland wants to ease restrictions on short-term lodgers as long as they agree to pay a permit fee and collect lodging taxes.
Nike's second-quarter net income jumped 40%, exceeding analysts' expectations.
Green Zebra Grocery is negotiating lease terms for a new property in Portland's Woodstock neighborhood.


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To find a teacher or department, please click on the links to the left.
You can also view our campus based webpage here.
Meadow Village opened as a K-6 elementary school in the fall of 1968. During the first few weeks of the first year, a former Meadow Village Student recalls that, ..."Meadow Village students... attended another nearby elementary school (only half a day) because Meadow Village was not yet complete. In fact, I distinctly remember the thrill of being able to vote on what color the carpeting should be (gold or red, gold won)."
ALE, PPCD, Pre-K, Headstart, and ACE Learning Tree Afterschool Care are additional programs that the school provides to the Meadow Village Community. Many special memories and events have been celebrated at Meadow Village.
Thank you to Mr. David M. Ozgo for sharing some memories with us!
2010-present~ Mrs. Sallie Frederick
2000-2010~ Mrs. Evelyn Cobarruvias
1993-2000~ Mrs. Ellen Sutton
1992-1993~ Ms. Linda Christ
1987-1992~ Mr. Rob Adair
1982-1987~ Mr.Gil Marshal
1978-1982~ Mr. Louis Williams
1969-1978~ Mr. Robert Coyle
1968-1969~ Mr. Monroe May
School Colors: Green and GoldMascot: Bobcat


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A good day to be in harbour
... not use it? It's remarkable how we become fixated on the blessed things! Anyway, by 10:30 all was washed and dried, so we went out to have a look around. Situated as it is, it would be hard not to be interesting and attractive – after all water, bridges, boats, nice buildings and trees make for a promising mix and H�rn�sand doesn't disappoint.
We found the tourist office and a ...
At the commencement of the High Coast
... in the south ie ours and two in the north. To access the northern harbours and thereby exit to the north, you have to have two bridges open for you, that was for the future though. Right now, with the wind from the north, we were perfectly sheltered and as we approached brand new pontoons, we were pleased with our choice. A helpful local took our shore lines and texted the harbourmaster to tell him of our arrival (there was only one other boat in the guest part of the marina ...
A Serendipitous Anchorage
... anchor anywhere in about 5m of water, which we did and the boat settled nicely within sight of the picturesque little harbour. Actually, when I say settled nicely she did, when the wind backed to the north but initially, she was rolling a bit in the miniscule wavelets that entered the bay. It was a pleasant, gentle motion and we enjoyed sitting in the cockpit until the air cooled and we, like hobbits, disappeared below for the rest of the ...
Sweden Round two and What a change!
... this sausage rapped up with potato and mayo. They love mayo over there. Kate got a ... ......... .....
The afternoon was so warm I left Kate lying out in the sun and went and helped clear up the stall at the market. We decided after all our hard work we deserved another swim so we went in again. That evening we headed down to watch Cosmo play football. Mike and I spent most of the game mocking one of the other teams players cause he looked like an Ompalumpa. Cosmo scored a ...
Xmas in Sweden!!
... owned by the government. We were going round with a trolley filling it up, worrying if we had enough for our four days, when everyone else was buying one or two beers in small baskets. Spot the alcoholics!!!!
When we got home we picked up the a christmas tree from the petrol station and took it back to do the decorating of the house and the tree. Its always fun putting up christmas decorations.
In Sweden they celebrate Christmas on ...


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7-Day Archives
Thursday, November 7
- Service chiefs: Spending cuts equal troop casualties
- Evicted from AKO, retirees and family members can forward mail
- IG: U.S. command did not adequately track award nominations
- Emerging from history: Massacre of 11 black soldiers
- Shinseki: VA turning corner on claims backlog
- Official: Army needs better cyber management
- 2 sentenced for robbing, murdering Campbell soldier
- Prosecutor: Afghanistan massacre case faced hurdles
- Military base bombings, attacks in Iraq kill 30
- Panel: Merge DoD, VA care
- Pentagon: Reports of sexual assaults up 46 percent
- Commissaries start to scan IDs
- Guidelines out for sex assault response in evals
- School boots Army vet who posted her weapons permit on Facebook
- Senator seeks probe of discharges linked to mental health issues
- JBLM soldier dies in vehicle accident
- U.S. may split command of spy and cyber agencies
- Inspectors verify 22 of Syria's 23 chemical sites
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I have installed the WAS 6 client for 8.5 using the InstallManager. I have then downloaded the WAS 6 client file update and I have tried installing it. However nothing is getting picked up. I cannot make a remote connection from the machines I am using so I have disabled the service lookup. It was tryng to get there based on the message that it was getting and looking at the xml file I can see the definition. But to install the fixpack will it need to make a remote connection? As I say with service lookup disabled it just says it cannot find any fixes.
Thanks Bleddyn
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This topic has been locked.
8 replies Latest Post - 2013-01-28T17:02:26Z by lisaw
Pinned topic Patching WAS 6 client with WXS 8.5 to Fixpack 1
Answered question This question has been answered.
Unanswered question This question has not been answered yet.
Updated on 2013-01-28T17:02:26Z at 2013-01-28T17:02:26Z by lisaw
Re: Patching WAS 6 client with WXS 8.5 to Fixpack 12013-01-16T21:34:53Z in response to BleddynIt sounds like you have installed WXS 188.8.131.52 client on top of a WebSphere Application Server V6. That worked for you. Now you want to upgrade to WXS fix pack 22.214.171.124.
In Installation Manager:
- Add your repository that has the 184.108.40.206 fix pack by clicking File->Preferences->Repositories and add the zip file you downloaded.
- Click the update button.
- Select the package group name that has your WAS6 + WXS8.5 already installed.
- You should see the update packages available for you then, such as IBM WebSphere eXtreme Scale Client for WebSphere Application Server V6 - Version 188.8.131.52
- Accept the license agreement, and select the features to install
- Click Update
Let me know if you have an error following these steps.
- Lisa
Websphere eXtreme Scale Development
Re: Patching WAS 6 client with WXS 8.5 to Fixpack 12013-01-16T22:12:55Z in response to lisawHi Lisa,
Yes I installed the WXS 18.104.22.168 client from the installation manager, I first removed the 184.108.40.206 version that was on there. That install worked fine but as yet I have not added the WXS 8.5.0 code into my websphere application server config.
I then added in the repository where I had extracted the client file that I downloaded from here
I got the 8.5.0-WS-WXS-WAS6-FP0000001.zip file.
As I mentioned if I leave the option checked for it to make a remote connection under the repository config, then I know its checking the repository because it tells me it can't reach the site within the repository xml definition. So I turned off the remote access and then it just straight away tells me that there is no update available.
Thanks Bleddyn
Re: Patching WAS 6 client with WXS 8.5 to Fixpack 12013-01-17T13:10:03Z in response to BleddynHi Lisa,
I have tried editing the repository.xml file and removing the link thats in there. But it appeared to still read from somewhere that there is a remote location for it to connect to. I can't see why the two things are not matching up. I was able to go and augment the WXS profile into my existing WAS 6.1 profile so I know that 8.5 is there fine. I just can't see why it won't install that fixpack?
Re: Patching WAS 6 client with WXS 8.5 to Fixpack 12013-01-18T17:13:17Z in response to BleddynThe eXtreme Scale Client for Websphere Application Server V6 must be installed in the same folder of WebSphere Application V6.1
You can also validate this by going into your WebSphere Application Server and running version info. <WAS61_INSTALL>/bin/versionInfo
-------------------------------------------------------------------------------- Name IBM WebSphere Application Server - ND Version 188.8.131.52 ID ND Installed Product -------------------------------------------------------------------------------- Name IBM WebSphere eXtreme Scale Version 220.127.116.11 ID WXS --------------------------------------------------------------------------------
You can potentially see errors in the Installation Manager log by going to file->view log. Open the log by clicking the rightmost icon on the top. This might help you debug why it can't find an update.
eXtreme Scale fix pack 3 will be out very shortly, watch the forum for the link, so you may wish to try that as well.
- Lisa
Websphere eXtreme Scale Development
- Lisa
Websphere eXtreme Scale Development
Re: Patching WAS 6 client with WXS 8.5 to Fixpack 12013-01-28T16:16:15Z in response to BleddynHi Lisa,
I have been away last week just looked and I see Fixpack 3 is out for 8.5 .
I have downloaded it though and get exactly the same issue.
I say update and it shows me thatI have IBM WXS Client installed for WebSphere Application Server V6 188.8.131.52.
But it then says that it can't find any fixes.
Thanks Bleddyn
Re: Patching WAS 6 client with WXS 8.5 to Fixpack 12013-01-28T16:23:07Z in response to BleddynHi Lisa,
A couple of other things
When I run versionInfo I see
WAS ND is at 220.127.116.11
WXS is at
Build Level a1216.20150800
Build Date 4/20/12
I tried file and view but there are no errors apart from when I let it try the remote connection. That just says it cannot find www.ibm.com but thats not surprising because the boxes cannot see the Internet all they should get is the local repository I have setip.
Thanks Bleddyn
Re: Patching WAS 6 client with WXS 8.5 to Fixpack 12013-01-28T16:32:03Z in response to BleddynHi,
Sorry for all the updates to anyone getting the feed of messages.
I just noticed that if I say install rather than update the repository is being read as it tells me that its 184.108.40.206 that is there. However I can't install into the same location. So just making sure here should I be uninstalling 126.96.36.199 first then reinstalling 220.127.116.11, rather than just selecting the update option, which seemed so obvious with a fixpack? That seems a little extreme given its a fixpack but at least I know the repository is fine also the docs say update so why can install work and update fail?
Thanks Bleddyn
Re: Patching WAS 6 client with WXS 8.5 to Fixpack 12013-01-28T17:02:26Z in response to BleddynThe "update button" path is the correct one, however, since there is no errors to go off of, it's hard to see why it is not allowing you to update.
In this process I tried updating my own machine with similar WAS and WXS versions at the same time using IM 1.6.1 on a Windows 7 machine and it found the update and worked.
If you can workaround this issue by uninstalling and installing, I would let you know the drawbacks. If you have profiles augmented with eXtreme Scale, they will be unaugmented and then you will have to re-configure them. Once you reinstall, the profiles can be augmented again. If you are simply using the wsogclient jar in an application, this probably won't matter. If you happen to have catalog service domains configured, sessions created, the wxs resources adapter configured, or created catalog or container servers in WAS itself, etc, that means your WAS configuration probably should be backed up since it will be blown away.
If you backupConfig your cell, and do a restoreConfig on it, you might be able to workaround your update problem.
I would of course test this out on a test server to make sure nothing is lost before you start uninstalling on production. The best case is also to figure out why the update still isn't working, and may be a corrupted installation of WAS+WXS to begin with or IM is the issue.
- Lisa
Websphere eXtreme Scale Development


text:
Written by robin, published November 13th, 2003. 3 comment(s).
I will take the pinball to Mordor, though I do not know the way.
Ah I just played this machine a few weeks ago, found it in a bowling ally
will have to play it a few more times. The match feature has the Elf Queen
pouring water from the carfe asking you 'will you look into the waters?'
as the numbers come up. Yes I did match for a free game after about five.
Cool game
Still haven't found one of these in the wild to check out. Want to, I really liked the books.
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Mini Playing Cards - Hoyle
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Mini playing cards.
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text: The A Duel of Iron! wiki last edited by cbishop on 10/02/13 10:39PM View full history Believing that Stark Industries is behind the disappearance of Colleen Wing, Iron Fist infiltrates their facility, along with Misty Knight. Misty reveals that Colleen is her partner in running a detective agency, Nightwing Restorations. An intruder alarm is set off, alerting Tony Stark to the presence of intruders. He sets off to investigate the alarm as Iron Man. Iron Man and Iron Fist begin to fight.Meanwhile, Colleen is taken to an airport. Her attempts to escape are thwarted. Misty Knight uncovers that Colleen is being taken to Halwan, and manages to break up the fight between Iron Man and Iron Fist, revealing that sleeper agents in Stark's organisation were involved in the kidnapping, and that they are headed got Halwan. Iron Man apologises, saying he would help but has prior commitments. Iron Fist and Misty head out to find Colleen.


text:
Some areas of Sunrise Hwy opened
"Now we're waiting to connect with other members of the Sierra Club and take a look at the damage," said Farmer, who makes a living as a mason, carpenter, tiler and other artistic trades. "We were on a pilgrimage to come out here and see what the West Coast is all about. We were traveling light."
In all, 120 structures are known destroyed, Cal Fire officials said. Bortisser said damage-assessment teams will be going through the charred region Wednesday to get a complete tally.
Seven firefighters have been injured fighting the blaze, officials said.
Six people stayed overnight in the Red Cross shelter at Joan McQueen Middle School, 2001 Tavern Rd. in Alpine, Red Cross spokeswoman Courtney Pendleton said Wednesday. She said the shelter will remain open as long as it's needed.


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Mapúa edges JRU in wild 2OT encounter
Wednesday, 18 May 2011 43 Comments
JONATHAN Banal failed to win the game for the Mapúa Institute of Technology Cardinals in regulation. So when he got a another chance, in the second overtime, he made sure to make good use of it.
Banal hit two game-clinching free throws in double-overtime after missing a scoop shot that would have prevented the first extra session as the Cardinals prevailed, 89-85 over the Jose Rizal University Heavy Bombers in the 2011 FilOil Flying V Pre-Season Premier Cup last May 19 at the FilOil Flying V Arena in San Juan.
Playing without Allan Mangahas down the stretch because of cramps, the Cardinals' defense forced the Bombers into four misses on their last possession, which prevented them from cutting into Mapúa's four-point lead.
"We expected that JRU would come back because of its character," said Cardinals head coach Chito Victolero. "But I told them during the first overtime, 'It's not yet over.' We want this game."
Mangahas poured in 24 before he was forced to sit. Banal added 18, and Fil-Palestinian Yousef Taha scored 15 and hauled down a massive 23 rebounds. The big man, though, was often the target of JRU's swarming defense, forcing him into nine turnovers.
Mapúa led by as much as nine points twice in the third quarter,after entering halftime tied 40-40. A six-point run bridging the third and fourth quarters made it a three-point game for JRU, 64-61, with four points coming courtesy of Nate Matute. But the Cardinals fought back, scoring eight unanswered to tie their largest lead of the game at 10, 71-61.
Matute did not give up, though, pouring in eight more points to get pull his squad to within four, 73-69. A clutch corner triple by John Villarias knotted things at 75 with less than 10 seconds to go, a bucket that sent hostilities to an extra session.
In the first extra period, Kenneth Ighalo stole the leather from John Lopez and threw a perfect outlet pass to a streaking Banal, whose layup tied things at 82 apiece. After an empty JRU possession and with 45 seconds left, Mangahas missed a step-back triple. But rookie Josan Nimes was there to snare the offensive rebound. Unfortunately, Nimes missed on his follow-up drive, and Taha's botched an attempt to dunk home the miss, sending the game into the tournament's second double overtime. There, Mapúa locked up defensively by putting the clamps on Matute and Villarias, who were the recipients of staggered and double screens as the men from Mandaluyong desperately tried setting up the pair.
Despite losing a 10-point lead, Victolerio was still upbeat, saying, "The most important thing is, this time, before the NCAA, we learn something. We lost versus FEU [after losing a 10 point lead], but this game, we won."
The Heavy Bombers had played one overtime game before, last May 2, a win against the CSB Blazers, 101-96.
Matute matched Mangahas' output of 24 points. But with the game on the line multiple times, the streaky shooter could not connect, finishing 3-of-18 from behind the arc due mostly to JRU's attempts to steal the win. Jeckster Apinan added a double-double of 17 points and 15 rebounds, while Villarias added 12.
The win put Mapúa at 3-1 in Group B, while JRU's chances of making the semi-finals dimmed as it fell to 2-4. W5
The scores:
Mapúa 89 – Mangahas 24, Banal 18, Taha 15, Nimes 12, Sarangay 7, Ighalo 6, Parala 6, Pascual 1, Stevens 0, Maniego 0
JRU 85 – Matute 24, Apinan 17, Villarias 12, Kabigting 9, Almario 8, Carampil 7, Lopez 4, Gaco 2, Mendoza 2, de la Paz 0, Montemayor 0, Monserat 0, Salavaeria 0
Quarter scoring: 23-13, 40-40, 64-59, 75-75, 82-82, 89-85


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Autism Screening and Diagnosis Center - Kirkland, WA
WebMD Physician Directory
Kirkland, Washington
Autism Screening and Diagnosis
Autism screening and diagnosis overview
Diagnosing autism spectrum disorders (ASDs) can be difficult, since there is no medical test, like a blood test, to diagnose the disorders. Doctors look at the child's behavior and development to m...
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Swedish Medical Center
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text:
Originally written on BlackSportsOnline | Last updated 11/10/14
New York Knicks forward Carmelo Anthony has had a rough week. ┬ĀHe almost came to blows with Celtics forward Kevin Garnett during and after the ball game. Then reports came out that Garnett told Anthony that his wife LaLa, tasted like Honey Nut Cheerios. ┬Ā Anthony in the past few days revealed that heŌĆÖs been fasting the past few weeks to gain clarity in his life. Now we understand why he was so pissed off. ┬ĀWith his fast over, Melo can now eat, and as he told the New York Daily News during an unveil for his Jordan Brand Melo 9ŌĆ▓s yesterday, Anthony jokingly said ŌĆ£he will indeed have a bowl of Honey Nut Cheerios.ŌĆØ ┬ĀŌĆ£IŌĆÖm definitely going to get a bowl of that, for sure,ŌĆØ a mellow Melo said at the launch of his new signature sneaker, Air Jordan Melo M9, at Cipriani on Wall St. Anthony still would reveal what Garnett actually said to him during that fateful night, but he was in good spirits yesterday. He also had words for Celtics coach Doc Rivers who took up for Garnett, and call Melo crazy for going after his star forward. ŌĆ£I donŌĆÖt (know) what IŌĆÖm crazy about,ŌĆØ Anthony said Sunday. ŌĆ£I havenŌĆÖt talked to him. I didnŌĆÖt know Doc was out there on the court with (Garnett).ŌĆØ ŌĆ£Like I said, whatever was said was said out there on the court,ŌĆØ Anthony said. ŌĆ£It happened. He said it. We handled it like weŌĆÖre supposed to handle it. We talked. We move on.ŌĆØ Carmelo also spoke about the rumored seperation between himself and his wife LaLa, and said things were fine. ŌĆ£We have our time. We have our down time,ŌĆØ he said. ŌĆ£She works. I work. We make it work. Communication is the key.ŌĆØ ┬Ā ┬Ā ┬Ā
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Below is a listing of ongoing research projects at UMEI. Click here to explore research partnerships and here to view a list of affiliated Centers and Institutes.
The University of Michigan Energy Institute (UMEI), in conjunction with the Michigan Institute for Teaching and Research in Economics (MITRE), hosted a Fall 2014 conference on economic and policy research that addresses energy use in the transportation sector and its environmental implications. The objective was to bring scholars at the frontier of transportation and energy economics research together with practitioners from industry and government to exchange ideas and research findings.
There is significant momentum behind natural gas extraction efforts in the United States, with many states embracing it as an opportunity to create jobs and foster economic strength. Natural gas extraction has also been championed as a way to move toward energy independence and a cleaner energy supply. First demonstrated in the 1940's, hydraulic fracturing is now the predominant method used to extract natural gas in the U.S.
The Hydrogen Energy Technology Laboratory (HETL) supports efforts to the discover and develop materials, processes and systems that have the potential to significantly increase the efficiency and reduce the cost of producing hydrogen from domestic natural resources including research on photoelectrochemical, thermochemical and fuel processing systems, enhance our ability to conveniently and inexpensively store large amounts of hydrogen including research on advanced chemical storage systems, and improve the efficiency and reduce the cost of devices used to convert hydrogen into electrical a
Transportation is one of several major sectors that contribute to climate change. Globally, the sector's roughly 25% share of man-made carbon dioxide (CO2) emissions is similar to its share of energy consumption. Because liquid fuels are so well suited for powering cars, trucks, boats and aircraft, transportation is uniquely reliant on oil, which is the best natural resource for producing liquid fuels.


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Replacing wood on 24" center trusses
Trusses 24" on center and builder used 3/8" plywood. Plywood is now delaminating and soft in spots. Would like to rip off all of the wood and use 1/2 or 5/8". Just not sure that the weight would be too much? Also, half of the house is cathedral ceiling. No ridge vent installed originally. Do ridge vents suffice in cathedral ceiling area?
This plywood is for the gussets? Shouldn't be a problem to upgrade to exterior ply 1/2 or 5/8".
For a ridge vent to be effective, you will need intake vents in the soffit area.
I use 3/4" even with 16" OC
|All times are GMT -5. The time now is 11:33 PM.


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Eva Solo
Milk & Sugar Set (2 PC)
Please select an available size.
Please select a size.
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Description: Milk and Sugar Set:
- Made of glass and stainless steel
- Sugar dispenser features a measurer and dispenses one teaspoon of sugar at a time
- Milk dispenser has a drip-free spout and can be closed after use with a rubber lid
- Each dispenser measures 3½ inches in diameter by 5½ inches in height
- Dishwasher safe
Material: Glass, stainless steel and rubber
Brand: Eva Solo
Origin: Imported


text:
A closer look at 3 stocks
Bundling can help you greatly
Join the NASDAQ Community today and get free, instant access to portfolios, stock ratings, real-time alerts, and more!
O2, the UK subsidiary of
) has signed up more than 1 million 4G customers and its LTE
network now covers 41% of the country's population. The Spanish
incumbent also draws up plans of network modernization across the
Since the launch of its 4G service on Aug 2013, O2 has
expanded its superfast network in 191 towns and cities and has
achieved the magic figure in 8 months. Slough, Berkshire based O2
also noted that the data used by its 4G customers in the first
six months is much more than the data carried by its network
between 2000 and 2008.
However, Everything Everywhere, a joint venture between
) and Deutsche Telekom, is way ahead of O2 in the 4G race and has
attracted 2 million customers in only 14 months of rolling out
the service. The company is also ahead of O2 in 4G network
deployment covering more than 70% of its country's
O2 also chalked out plans to spend £16 million ($26.8 million)
in 2014 to improve data coverage and extend its 3G network
presence to 200 unserved locations. The company plans to upgrade
one fourth of its 2G and 3G towers to deliver better voice and
data connectivity during peak hours and in high density areas.
U.K.'s second largest telecom operator continues to invest
£1.5 million ($2.5 million) daily on its network to provide
flawless connectivity. The carrier announced that upgrading its
older 2G infrastructure will support its growing presence in the
M2M business.
However, despite the investment we believe the company will
have to catch up with Everything Everywhere in the 4G race,
customer growth of which is only second best to that of the South
Korean operators. Further, the two rounds of tariff reduction by
French-German partnership has led to an accelerated uptake of its
4G service.
Telefonica currently carries a Zacks Rank #5 (Strong Sell).
Other stocks worth considering within this sector are
SK Telecom Co Ltd.
) and
Shenandoah Telecommunications Co.
), both of which carry a Zacks Rank #1 (Strong Buy).
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By Russell Berman - 02/03/12 03:31 PM EST
House Republicans offered a reality check to Democrats crowing over a monthly jobs report that vastly exceeded expectations: The Obama recovery might finally be gaining steam, but it's nothing like the Reagan recovery.
"While we welcome the positive news today, I think our point is very simple: We can do better," Speaker John Boehner (R-Ohio) told reporters at a morning press conference timed to respond to the latest employment numbers.
The press conference provided a glimpse of an awkward line Republicans must toe in responding to positive jobs numbers that could help the president's reelection chances. While acknowledging the good news, they made no attempt to take credit for job creation that has taken place since they assumed the House majority. Instead, the GOP leaders chose to blame Obama administration policies for impeding a recovery that they argued could have kicked into gear much sooner.
The House Republicans broadly downplayed the report, with Boehner referring to the boost in employment as "flickers of hope in our recovery."
And the Speaker, under questioning from reporters, trotted out a line he has used in response to nearly every monthly unemployment report, whether it showed strong or weak job creation.
"The American people are still asking the question, 'Where are the jobs?' " Boehner said. "And while the unemployment rate is down slightly, and a few more Americans are at work, we still have millions of Americans that are looking for work."
Several members compared the current economic recovery unfavorably to the rebound from recession during the Reagan administration. In January 1984, as Reagan was preparing to run for reelection, the unemployment rate fell to 8 percent, marking an even more marked decline from a jobless rate of 10.4 percent a year earlier.
Rep. Cathy McMorris Rodgers (R-Wash.) said Reagan inherited a "more difficult, deeper recession" than Obama, who has repeatedly called the economic collapse he inherited the most serious since the Great Depression of the 1930s.
McMorris Rodgers and other Republicans recalled the Obama administration's assertion that the unemployment rate would not exceed 8 percent if Congress passed the stimulus package in early 2009.
"Well, we know that this is the 36th month in a row that 8 percent has been exceeded, and yet it didn't have to be this way," she said.
A freshman lawmaker, Rep. Bill Flores (R-Texas), put it more bluntly: "The president's team is going to trot out their happy faces today, but the American people are going to say, 'Not so fast.' First of all, we still feel worse than we did four years ago."


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[[caption-width-right:324:The classic Camel lineup: Peter Bardens (keyboards), Doug Ferguson (bass), Andy Ward (drums, percussion), [[FaceOfTheBand Andrew Latimer]] (guitars, vocals)]]
Camel is an English progressive rock band formed in 1971 and are an important part of the Canterbury scene.
They were originally known as The Brew, which consisted of guitarist Andrew Latimer, bassist Doug Ferguson, and drummer Andy Ward. They then hired keyboardist Peter Bardens and changed their name to Camel. They released four albums together as the original four. Andy Ward was pushing the band towards a more jazzier direction, which caused Ferguson to leave and be replaced by Richard Sinclair, an ex-Music/{{Caravan}} member; Mel Collins of Music/KingCrimson also joined. After their sixth album ''Breathless'' Peter Bardens left the band. After the release of two more albums, original drummer Andy Ward left the band, leaving only Latimer. Camel eventually fell into the same hole that many progressive rock bands found themselves in, by struggling to retain their roots while trying to appeal to the pop and mainstream audiences. In 1981, Camel disappeared from the scene until about a decade later when Latimer formed his own record producing company Camel Productions. They eventually returned to their prog-rock roots in ''Rajaz''. In 2002, Peter Bardens died of lung cancer and their latest album, ''A Nod and a Wink'' is dedicated to him.
They are often considered one of the most underrated bands in the progressive rock genre. More people started to check them out when Mikael Åkerfeldt of Music/{{Opeth}} cited them as a major influence.
Camel's Discography
* ''Camel''
* ''Mirage''
* ''Music Inspired By the Snow Goose''
* ''Moonmadness''
* ''Rain Dances''
* ''Breathless''
* ''I Can See Your House From Here''
* ''Nude''
* ''The Single Factor''
* ''Stationary Traveller''
* ''Dust and Dream''
* ''Harbour of Tears''
* ''Rajaz''
* ''A Nod and a Wink''
!!Camel contains examples of:
* ConceptAlbum: Quite a few
** ''Music Inspired by the Snow Goose'', a completely instrumental album about the book ''The Snow Goose''
** ''Nude'', the story of Hiroto Nooda, a popular story in Japanese culture
** ''Stationary Traveller'', an album about German refugees attempts to cross the Berlin Wall
** ''Dust and Dreams'', which is based off the book ''Literature/TheGrapesOfWrath''
** ''Harbour of Tears'', a story of Irish immigrants and their trip to America
* ContemptibleCover: Debatable, but many disliked the cover art of ''I Can See Your House From Here'' which depicts a crucified astronaut in space looking down to the earth
* CrowningMusicofAwesome: ''Never Let Go'', ''Lady Fantasy'', ''Echoes'', and the entire Snow Goose album.
** ''Ice''
** ''Song Within A Song''
* DoesThisRemindYouOfAnything: The cover for the album ''Mirage'' looks 'very similar to Camel cigarette cartons.
** Also, the cover to ''I Can See Your House From Here'', which depicts a [[MessianicArchetype crucified astronaut]]
* EpicRocking: This is expected because they are prog-rock, but their most well known is the thirteen minute epic, ''Lady Fantasy''
* GreatestHitsAlbum: A whole bunch of them over the years, through most are of out-of-print. The more recent ones have had the band try to avoid too much overlap between them by including lesser-known songs and live versions
* IAmTheBand: Andrew Latimer, also FaceOfTheBand
** Don't forget Colin Bass, who's been the band's bassist and vocalist since 1979 and an part of the creative force of the band.
* MeaningfulName: ''The Single Factor'' refers to Andrew Latimer being the only remaining band member at the time.


text:
Thelma And Louise Reunite For A New Selfie, 23 Years Later
And it was beautiful. "Inventors of the #selfie at it again."
1. Thelma and Louise, aka Geena Davis and Susan Sarandon, reunited this week.
2. So they decided to re-create their selfie from the 1991 film, 23 years later.
3. And they also pointed out that they created the selfie first. Who realised?!
4. Just…perfect.
5. UPDATE: And it turns out it was all for this amazing cover of The Hollywood Reporter, who held a Q&A with the iconic stars. Good work, guys. Good work.
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