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About scottyrocks123 : Usually bored
scottyrocks123's FML badges
Supersize Menu
You wanted you know what the top of the flops of all time was, and now you know.
What'cha looking at?
You have put three pictures on your profile, not necessarily pictures of your profile.
Who's the fairest of them all?
This is now the third time you've changed your profile pic.
scottyrocks123's favorite FMLs
Today, my religious dad caught my brother jerking off and decided to give us both a lecture about it. My brother ended up saying "If god doesn't want me to jerk off, how come he made my knob the perfect shape to fit in my hand?" I burst out laughing and now we're both grounded. FML
by Anonymous / 08/23/2016 at 4:38am / Intimacy
Today, I went on a date with a guy who told me his main aim in life is to live alone in an isolated lighthouse. FML
by datingfail / 08/14/2016 at 8:06am / Australia (Victoria) / Love
Today, my mom got so desperate to find me a woman, she went to see a medium. I don't have the guts to tell her I'm gay. FML
by inappropes / 08/11/2016 at 1:33am / United States / Love
Today, I was told that every week the grocery store I work for has a "mystery customer" who shops throughout the store and rates us. Our store has gotten straight 100s for the past two years, and I ruined their streak. Apparently, I was the worst they've ever seen. FML
by That guy / 08/08/2016 at 11:45am / United States (Texas) / Work
Today, at work, I was helping someone who really sounded like she had a Boston accent. So, I asked her where she was from. She has never been out of state. Turns out she has a speech impediment. FML
by Rmglrsm / 06/22/2016 at 10:21pm / Work
Today, I told my grandpa that I want to join the police force. His response: "You wanna lynch some blacks without the jail time, eh?" FML
by onlyjuggalos / 01/31/2016 at 3:13am / United States / Work
Today, my girlfriend wasn't kidding when she said that if I hit her cervix just the 'right' way during sex, she'd puke. I was on the bottom. FML
by VisceralWolf / 01/26/2016 at 1:35am / United States (Ohio) / Intimacy
Today, I was asked by my live-in landlord not to put too much water in the kettle because it made the utility bills too high. This is the same woman who takes daily baths. FML
by logic / 01/18/2016 at 10:16am / United Kingdom / Miscellaneous
Today, I met my new upstairs neighbors. They have a four month old child and appear to be firm believers in the "let them cry it out" philosophy. The baby's room is right above mine. A few days of trying to sleep through this shit and I'll look like a Walking Dead extra. FML
by Anonymous / 01/10/2016 at 8:17am / United States (Maryland) / Miscellaneous
Today, I now accept how stupid I was to marry a man whose plans for the future all start with "When I win the lottery..." FML
by Anonymous / 01/08/2016 at 12:38pm / Canada (Ontario) / Love
Today, I tried really hard for once on an assignment. I was told it was my worst work yet and that I may as well have turned nothing in at all. FML
by i tried so hard / 01/08/2016 at 10:54am / United States (California) / Miscellaneous
Today, my dad took my car keys off my keychain and hid them from me. His reasoning was, "I don't want you to be driving during the winter." Guess who has to walk ten miles a day to work, through the New England snow. FML
by tiredofbullshit / 01/08/2016 at 1:06am / United States (New Hampshire) / Transportation
Today, I was chilling in my comfy zip-up sweatshirt when I realized I was running late for an acting class. In my mad panic, I forgot I didn't have a shirt or bra underneath. Later in class, I was performing a scene and started to unzip my sweatshirt. You can figure out the rest. FML
by AccidentalFlasher / 01/07/2016 at 9:08pm / Canada (Ontario) / Miscellaneous
Today, I recently burned both my hands at work so I had to ask my husband for help changing my tampon, but he refused saying it would make him feel sick. This from the man who routinely sticks his tongue in my asshole when we have sex. FML
by anne / 01/07/2016 at 7:00am / Germany / Intimacy
Today, I'm so sexually deprived, I got a boner from undressing a mannequin at work. FML
by Anonycock / 01/06/2016 at 12:15pm / Qatar (Ad Dawhah) / Work
- 1Today, I took a test. I got up to turn it in, and accidentally bumped into another student. We both… 2Today, I tried to fire the worst worker I've ever had over the phone because he never shows up for… 3Today, it's been two years since I graduated with my master's. It's also been the same amount of…


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In-House Versus Outsourced: What Roles to Take On as a Business Owner
By necessity when just starting out, business owners wear several hats within the company. Possibly all the hats, at first. They are the CEO, CFO, lead salesperson, marketer, manager and more. Eventually, something has to give. The time will come to hire staff and outsource roles.
For new entrepreneurs, this can be a difficult turning point. Missteps made at this stage can be costly, even devastating, to a startup.
Matt Rissell, the CEO of TSheets Time Tracking, his sixth successful startup, breaks down what to insource versus outsource at first. Here's an outline on how to shape a team—and the leader's position within the company—in order to strike business gold.
Outsource this.
For many CEOs, the answer to what to outsource is nothing. Here are the exceptions. Bookkeeping is good to outsource, hired along with a separate CPA who has the right tools to manage sales tax. A few aspects of marketing can be outsourced, but when the time is right to hire a top-level executive to build a marketing strategy and execution plan, bring them on.
Keep in-house.
Now what to never outsource, if possible. Especially for technology start-ups, outsourcing product development and software engineering can be a huge mistake, especially if that's core to your product or service. Your technology will likely need constant reworking, and you want a team that's all in, and completely focused. Then, never outsource customer service. For both of these, the DNA of a company and its vision will come through in the product and service, especially how customers feel treated.
Interview, then fire yourself.
As the CEO, do as much as you can, but as you grow, start to interview yourself for the different positions you see shaping inside your company. Literally. Sit yourself down in a chair, put an empty one in front of you, and ask yourself the questions. Experience. Education. Objectives. Etcetera. Objectively, if you wouldn't hire yourself for that role, it's time to break the good/bad news. Fire yourself from the things you're worst at first. Next, fire yourself from things you like the least. Finally, move into the role that suits you best.
Be the CEO from any position.
CEOs can lead from any position or any division in a company. A rockstar at marketing can be the CEO. The head of engineering can be the CEO. It's all about finding what they excel at most—their personal sweet spot. Then focusing on strategy and leadership. However, every CEO must be an excellent salesperson, not just of the product or service, but of a phenomenal vision that will attract the best team members to join the company.
Birds of a feather, flock.
Whoever is hired at a company from the start will dictate the future of those recruited. Start high. Start with the best. Even when desperate, don't compromise.
By following this formula, CEOs can expertly wear the HR hat too, until they find the perfect fit to replace them. In-house, of course.
Latest posts by TSheets (see all)
- 9 Low-Cost Ways to Show Customers You Care - October 23, 2015
- The Hourly Rate vs. Fixed Bid Debate - July 30, 2015
- How To Break the Rules to Make It As a Startup - June 30, 2015
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Meredith Wood / Aug 19, 20154

subset: commoncrawl


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Canada Goose
Blue PBI Chilliwack Bomber52014M000016
View details Hide details
Long sleeve down bomber jacket in bright blue. Fur-trimmed hood with adjustable bungee drawstring and cinch-belt detail at crown. Two-way zip closure concealed by press-stud placket at front. Signature logo patches at sleeves. Fleece-lined welt pockets and flap pockets at front. Logo patch at flap pocket. Ribbed knit cuff and hem. Patch pocket at interior. Fully lined. Tonal stitching.
Please note that this product can only be shipped within North America. Shell: 85% polyester, 15% cotton. Lining and interlining: 100% nylon. Filling: white duck down. Trim: genuine canadian coyote fur. Made in Canada.


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Minion Cookies
Minion cookies More
Despicable Me MINION Sugar Cookie Favors One Dozen by Sooieets, $45.00
Minions | Cookie Connection
EYES - white dot adds dimension Cute Minions | Cookie Connection
How To make cute Minions cookies with only store-bought ingredients. Super easy to do! See more Minions party ideas at CatchMyParty.com! #quickerpickerupper #ad @bountytowels
EASY chocolate covered Minion OREO cookies – made with 4 ingredients in 5 minutes or less! Click through for recipe!
Minion cookies that I made for the party.
Girl Minions Cookies
Minion cookies! https://cookiecutter.com/minion-cookie-cutter.htm
Minion cookies~ How to make Minion cookies, no source, termite, blue


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ERIC Number: ED233342
Record Type: RIE
Publication Date: 1981-Dec
Pages: 26
Abstractor: N/A
Reference Count: 0
Beyond the Workshop: Some Alternatives for the Undergraduate Creative Writing Course.
Bogen, Don
An alternative to the often artificial writing workshop model focuses on learning through imitation and on the writing process rather than the product. This alternative model also involves considerably more reading than a typical workshop class, requiring students to read the way writers do, with a critical understanding and an awareness of the "performance" of the writing. Students examine and imitate not only finished works but also the writing that went into them--the generation, arrangement, and revision of the material that makes up a story or poem. Constraints on the teacher's ability to involve students in the different phases and variations of the writing process include the lack of time, the relative dearth of texts that describe what writers actually do, the requirement of grading, and students' possible unwillingness to surrender some measure of "self-expression" for imitation. As a reasonable compromise, teachers would require a great deal of imitative work but base grades on works the students choose. Many students will find that their best work, the writing most distinctly their own, is that done in response to the assignments rather than written independently. (Sample writing process exercises and their objectives are included.) (HTH)
Publication Type: Reports - Descriptive; Speeches/Meeting Papers
Education Level: N/A
Audience: Teachers; Practitioners
Language: English
Sponsor: N/A
Authoring Institution: N/A
Identifiers: Writing Workshops
Note: Paper presented at the Annual Convention of the Modern Language Association of America (96th, New York, NY, December 27-30, 1981).


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Call our experts: 888.808.FINE
Secret Santa Weekend! Save 20% with CODE: SANTA20 Save 20% on Real Simple Holiday Cards thru 12/9 Select Personalized Notepads now $19.99
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|Trouvez les meilleur spots
Rester connecté avec vos amis, chattez, enregistrez vos sessions, ajoutez vos photos...
Huge winds rolled in on Sunday morning - saw some big swell out in the bay easy 3-5ft and then breaking all around the bay. As the tide went out around noon the point was looking the best but the [...] More...
I knew the main storm swell was supposed to show up on Sunday but I saw some waves breaking on Saturday and figured I'd get in the water. When I got there saw a couple of 2ft waves but within [...] More...
What a session ! Long perfect swell with a good sandbank. 2 surfers then 5 surfers then 2 surfers.
Endless waves : 200m,
2 really beautiful tubes : slow down, entry [...] More...
My best day. Long wave but hard to take (powerless at take-off)
fun, offshore, long lines, no crowd: what else ?
The Saturday after Thanksgiving offered up some 1-2 foot waves on an incoming tide at Seaman Spit. Waves were rolling down the point in the state park. Nobody else out, no one in the state park. [...] More...
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Blistering Basketball Beauty: Free Agency Edition
Take deep breaths. Take a step back. Maybe look at other sports news. Just try to process the first week of NBA free agency without hyperventilating.
Because if you can't handle it now, you won't survive free agency next year.
As spectacular as the mad NBA free agency period has been this year, it's only a taste of how great it will be in 2016, despite concerns that it will taper off.
It is remarkable how active the market's been right out of the 2015 gate. Players and teams have been able to agree to terms for deals since Wednesday, with actual ink hitting them this coming Wednesday. DeAndre Jordan chose the Dallas Mavericks, LaMarcus Aldridge will get a max contract from the San Antonio Spurs, Paul Pierce will go to the Los Angeles Clippers—oh, and did I mention that the New Orleans Pelicans agreed to extend Anthony Davis to a five-year, $145 million deal, the largest in league history? Yeah, you wonder why people have freaked out this week.
Not every move surprised us, of course. Most of the players who moved on to new teams did not do so out of the blue, like Jordan and Aldridge. No major trades have happened either. Most of the shocking news has had to do with dollar figures, seeing how much big money teams threw around at free agents and those they re-signed. Three players, in fact, agreed in terms to deals worth over $100 million.
No, we've been mainly enthralled by the volume and speed of the moves. In a little under 85 hours, nearly 40 transactions have been filed and every major free agent has already agreed to a new contract. Seemingly every few hours a player gets a big payday. Seemingly every few hours a notable name leaves the free agency board. Seemingly every few hours there is another Aldridge update. We're less than a month removed from the end of the NBA Finals, and yet the stream of league news and excitement has been persistent and has kept us in the basketball zone almost non-stop.
So if it's been this good this quickly in 2015, how fantastic will free agency be in 12 months time? Well, the salary cap is projected to jump from about $68 million this year to $89 million for the 2016-2017 season thanks to the league's new television deal with ESPN and TNT. This is not an open option for some of the players we predicted to take a one- or two-year deals this year and then test the new salary cap later, as a few, like Jordan, opted to sign long-term contracts this week instead.
But the majority of the stirring names for the 2016 class remain resolute. LeBron James and Dwight Howard will likely utilize their player options next year. And restricted or unrestricted, a gaggle of players that range from good to superstars will join them, like Kevin Durant, Joakim Noah, Dwayne Wade, Al Horford, and Joe Johnson. In total, there will potentially be 20 stars on the market next year, including multiple players who have been in the top 10 in offensive and defensive win shares the last two seasons.
A lot of the excitement surrounds the predicted salaries overall. We saw more than a dozen free agents receive deals over $50 million these past four days alone. That number may only increase with the salary cap spike. Considering that teams have to use at least 90 percent of their cap each year, there's no real way for owners to work around dishing out massive contracts.
It's not clear if we will see too many—if any at all—deals worth $140 million or more, but Davis's $145 million contract gives agents and players some practical numbers to work with, and some ranges for which to strive.
Durant and James may be the only ones who will come close to commanding that much money, but the possibility of anyone matching or exceeding Davis's deal is mindboggling and will only create more excitement about 2016. We know it will not baseball money, not the $325 million commitment Giancarlo Stanton got from the Miami Marlins, but the best NBA players' average annual salaries are comparable. For example, Davis is slated to average $29 million a year over the life of his new contract. Only three professional athletes in the four major U.S. sports earn a higher average annual salary from their contracts.
And let's be honest: weren't you rooting to see how many NBA players would break the $100 million mark this week? We fans love to pay attention to the numbers, and the future increased salary cap will only make us wait in thrilled anticipation to see how much money the top earner will make, how huge of a contract James will get, and how soon will we see a new record deal. The Pelicans set the standard with Davis's extension, and it can be so much fun for the fans to imagine how it could be surpassed.
Of course, this is all comes with caveats. The huge sums of money teams will commit next year will probably result in more distance between the game and its fans. Sure, the TV deal will bring the league more cash, and many of the owners have huge sums of money in their names, even for sports franchise heads, but they won't stand idly by while their expenses grow.
As players are paid more, the higher the ticket prices seem to soar. We've already seen this correlation in MLB as player contracts have soared and teams have only gotten richer; the cost for the fan to see the game—live and at home—has risen significantly.
There's also arguments—such as the one Zach Lowe of Grantland made—that some of these players slated for free agency in 2016 might sign and get guaranteed money now rather than not take a deal, risk an injury, and see their market value drop. This is a classic rationale for a player to agree to a deal that isn't ideal, and we already saw moves these past four days that suggested that fear pushed some stars; Jordan and Jimmy Butler could have waited a year for more lucrative long-term deals, after all. As a result the 2016 free agent class might be less packed than we thought, and that's a recipe for people to be less interested.
While this is a valid argument, it is too broad to apply for all players. The sixth man on a team would have reasons to worry about being patient, but why should the superstars care? The major 2016 free agents—Durant, Noah, and likely James and Howard—the guys who have already collected a solid mound of money through large contracts and endorsements, can afford to wait.
These guys have so much money from their many successful years in the league that they can risk injury over the course of the next year, and they also already have mystique of being, well, them. Superstars have track records of success and sustainability. So who wouldn't want to sign Durant, even if he was injured for, say, all of the 2015-2016 season? Their names alone will create a major buzz next year.
So worry as we might that the salary cap bump won't bring as much of a boom as we think it will, and worry as we might that the NBA has burned up too much of the excitement that would have been reserved for 2016, there's still so much to look forward to next year. Barring stunning trades or extensions, we will see two of the three best NBA players on the market in 2016. Historic? Yes. Profitable? Yes. Hyperventilating? Despite our best efforts to avoid it—yes.


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How to Clear Computer RAM Memory
Sometimes you need to clear computer RAM memory because a program is frozen and has stopped responding. RAM (random access memory) holds data for currently running programs and the operating system. RAM is much faster than a hard drive, but unlike a hard drive, the data in RAM is lost when power to the computer is cut off. This means shutting down the computer is the only effective way of totally clearing computer RAM memory.
Step 1
To partially clear computer RAM memory, close some programs that are currently running. In Windows, right-click on any program in the task bar and choose the "Close" option. That will free up the memory that was used by the program. Even if you close every program running on the task bar, a big chunk of memory is taken up by the operating system. The RAM used by the operating system cannot be cleared without shutting down the system.
Step 2
To clear computer RAM memory totally, you have to shut down the system. In Windows, click on the Start Menu and click the "Shut Down" option. Unix and Linux have similar options. When this process is complete, all RAM will be cleared.
Step 3
If you are somewhat impatient, turn off the computer by pressing the power button on the computer. This is slightly quicker than the previous step.
Step 4
If you are very impatient, unplug the power cord of the computer. If it is a laptop, disconnect the battery as well. The computer's RAM memory will be cleared immediately upon the power source being disconnected. This method of shutting down the computer usually causes corruption or some other problem when the operating system is booted up again.


text: Christian Living & Beliefs : How to Have a Healthy Christian Dating Relationship By GNLiMarch 2, 2012 Like Us Share Share on Twitter Subscribe A healthy Christian dating relationship should be based on mutual love, respect and honor, with each partner following the guidelines of the Bible. Avoid peer pressure from society that may lead Christians into unhealthy relationships using advice from a minister in this free video on Christian living and beliefs. Expert: Neil King Bio: Rev. Neil King has been in ministry for more than 10 years. Filmmaker: Dan Kenny Sponsored Watch Your Favorite Christian Films, 24/7. Click Here To Start Your Free Trial Today


text:
Hi all. Just arrived today. In Excellent condition. Even with Free Shipping. Does not come with Wiring inside. Soldered some 12 gauge wires to the terminals. Terminal Cups are mounted using Square Head screws. Small ones. Don't know the size off hand. Now I need to find a pair of 10" Subs to fit in the back of my 15 Tucson!!!
Expert Service 1-661-257-9993 [Hours]


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Log in to copy items to your own lists.
The Lives of Others (2006)
In 1984 East Berlin, an agent of the secret police, conducting surveillance on a writer and his lover, finds himself becoming increasingly absorbed by their lives. (137 mins.)
Director: Florian Henckel von Donnersmarck
Stars: Ulrich Mühe, Martina Gedeck, Sebastian Koch, Ulrich Tukur
The Experiment (2001)
For two weeks, 20 male participants are hired to play prisoners and guards in a prison. The "prisoners" have to follow seemingly mild rules, and the "guards" are told to retain order without using physical violence. (120 mins.)
Director: Oliver Hirschbiegel
The White Ribbon (2009)
Strange events happen in a small village in the north of Germany during the years before World War I, which seem to be ritual punishment. Who is responsible? (144 mins.)
Director: Michael Haneke
The Wave (2008)
A high school teacher's experiment to demonstrate to his students what life is like under a dictatorship spins horribly out of control when he forms a social unit with a life of its own. (107 mins.)
Director: Dennis Gansel
Stars: Frederick Lau, Max Riemelt, Jennifer Ulrich, Jürgen Vogel
Good Bye Lenin! (2003)
In 1990, to protect his fragile mother from a fatal shock after a long coma, a young man must keep her from learning that her beloved nation of East Germany as she knew it has disappeared. (121 mins.)
Director: Wolfgang Becker
Stars: Daniel Brühl, Katrin Saß, Chulpan Khamatova, Florian Lukas
Sophie Scholl: The Final Days (2005)
A dramatization of the final days of Sophie Scholl, one of the most famous members of the German World War II anti-Nazi resistance movement, The White Rose. (120 mins.)
Director: Marc Rothemund
The Edukators (2004)
Three activists cobble together a kidnapping plot after they encounter a businessman in his home. (127 mins.)
Director: Hans Weingartner
Schutzengel (2012)
A troubled veteran from the war in Afghanistan works to protect an orphaned teenager who witnessed a murder from the killer's henchmen. (130 mins.)
Director: Til Schweiger
Stars: Numan Acar, Volker Albers, Loyd Bateman, Gode Benedix


text: We went to la fogata for lunch while on vacation. It turned out to be the best food we had in Denver. My husband and I both had shrimp tacos. There were three of them. Corn tortillas filled with small shrimp and cilantro.served with sour cream and salsa. Oh, they were heavenly. Their salsa was very good also.


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Aparthotel Las Vegas: "Central El Congrejo" Panama Hotel Tip by Tropicsol
Panama Hotels: 92 reviews and 104 photos
Great location, safe walking anytime of day. Older but well maintained hotel. Not fancy but functional rooms with views. Suites worth the extra money, huge with funky kitchens, private balconies.
Noted Italian restaraunt in courtyard.
Price Comparison: more expensive than average
Directions: Banking district
Price: US$40-80
Theme: Hotel
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List all words starting with mameyes
Only the word mameyes was found, nothing longer.
Some random words: ivied tmeses duad luau ofay juba becalm
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The CFHS has always had a very strong and positivie relationship with the Federal government; from our very beginnings Prime Ministers, Governor Generals, Senators and MPs have played active roles in our activities.
This strong relationship was evident as the CFHS hosted 80+ MPs and Senators recently at a reception on Parliament Hill. Hosted by Mr. Bruce Stanton, Assistant Deputy Chair of Committees as a Whole and Mr. Rick Dykstra, Parliamentary Secretary to the Minister of Citizenship and Immigration, the CFHS and its members promoted the role that humane societies and SPCAs play at the local level and the role that the CFHS fills at the National.
Out of that reception there came a new-found enthusiasm within Canada's political parties on issues surrounding animal welfare and protection in Canada. When the next opportunity to influence the Criminal Code of Canada arises, the CFHS will be the first animal welfare group to be contacted for its input.
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It was as if the elements had been unleashed. The sun spun round. Scorched by the incandescent heat of the weapon, the world reeled in fever. Elephants were set on fire by the heat and ran to and fro in a frenzy to seek protection from the terrible violence. The water boiled, the animals died, the enemy was mown down and the raging of the blaze made the trees collapse in rows as in a forest fire. The elephants made a fearful trumpeting and sank dead to the ground over a vast area. Horses and war chariots were burnt up and the scene looked like the aftermath of a conflagration. Thousands of chariots were destroyed, then deep silence descended on the sea. The winds began to blow and the earth grew bright. It was a terrible sight to see. The corpses of the fallen were mutilated by the terrible heat so that they no longer looked like human beings. Never before have we seen such a ghastly weapon and never before have we heard of such a weapon. (C. Roy, Drona Parva 1889.)
So I turned to the standard English translation of the Mahabharata, completed by Kisari Mohan Ganguli between 1883 and 1896 and attempted to find the passage von Däniken was quoting. The Mahabharata contains approximately 1.8 million words, and the lack of a citation made it a bit difficult to find. His mention of the Drona Parva, book 7 of the epic, at least narrowed down the search to a more reasonable 203 chapters. The text in question appears at 7.202:
The very elements seemed to be perturbed. The sun seemed to turn. The universe, scorched with heat, seemed to be in a fever. The elephants and other creatures of the land, scorched by the energy of that weapon, ran in fright, breathing heavily and desirous of protection against that terrible force. The very waters heated, the creatures residing in that element, O Bharata, became exceedingly uneasy and seemed to burn. From all the points of the compass, cardinal and subsidiary, from the firmament and the very earth, showers of sharp and fierce arrows fell and issued with the impetuosity of Garuda or the wind. Struck and burnt by those shafts of Aswatthaman that were all endued with the impetuosity of the thunder, the hostile warriors fell down like trees burnt down by a raging fire. Huge elephants, burnt by that weapon, fell down on the earth all around, uttering fierce cries loud as the rumblings of the clouds. Other huge elephants, scorched by that fire, ran hither and thither, and roared aloud in fear, as if in the midst of a forest conflagration. The steeds, O king, and the cars also, burnt by the energy of that weapon, looked, O sire, like the tops of trees burnt in a forest-fire. […] We had never before, O king, heard of or seen the like of that weapon which Drona's son created in wrath on that occasion. […] Burnt by the energy of Aswatthaman's weapon, the forms of the slain could not be distinguished.
I assume it surprises no one that most fringe writers who reference the text copy the version appearing in Chariots of the Gods without consultation of the original.
But that isn't what's interesting here. What's interesting is what I discovered about this "C. Roy" fellow that von Däniken credited with the translation. I won't belabor the point. The name is given somewhat wrong. I could not find him because his name actually was Pratap Chandra Roy. He was the publisher of the Ganguli translation, and his name appeared on the cover page of most volumes of the first printing of the work because Ganguli felt no one would believe one man could translate the whole work, and he feared dying before its completion. This caused great confusion in the 1890s, with some older authorities falsely giving Roy as the translator. The situation was cleared up in editions published after 1896, so von Däniken ought to have been able to find out who the real translator was when he wrote in the 1960s.
But since he did not bother to quote accurately, this was obviously of no concern.
Von Däniken's condensed quotation came from an 1889 English edition of the text, which either von Däniken or his editor translated into German for the first edition of Chariots of the Gods. The English translator of Chariots, Michael Heron, did not bother to seek out original documents in translating the book for British (and later American) readers; instead, he simply and literally translated the German translation of the English translation of the Sanskrit original back into English. One can't really blame him too much; it's not like von Däniken made it easy to find where he had taken the text from. All the same, neither the translator, nor the editor, nor the publisher did even a cursory check of von Däniken's source. It reminds me of Peter Kolosimo's Not of the This World, the Italian ancient astronaut volume translated in such haste that even obvious English language texts like quotations from H. P. Lovecraft's short stories were translated back into English from their Italian translations.


text:
The port of Liverpool on Friday officially inaugurated a new deep-sea container terminal as it works to create a new ocean trading gateway to re-jig the national supply chain.
United Kingdom
Press Releases
American Airlines Cargo Carries Colombian Gold Treasures To London For Major, New British Museum Exhibition
26 Sep 2016
Denmark-based DONG Energy plans to build in northeast England what it says will be the world's largest support facility for offshore wind energy.
26 Sep 2016
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US Customs and Border Protection is the second US federal agency to issue guidance to shippers and other industry stakeholders after the shipping giant filed for court receivership in Korea and later applied for Chapter 15 bankruptcy in the United States last week.
07 Sep 2016
A British court has granted Hanjin Shipping's request for bankruptcy protection it received in South Korea to be recognized in the United Kingdom.
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18 Jul 2016
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- Page 1
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Doctor seemed to be in a rush. Did not seem that interested in my problem, barely looked at me for diagnostics, didn't appear to care about my issue. Did not go into detail on how to use prescription cream. "Consultation" done in less than 5 minutes. Bad day perhaps?
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Hunting lands - this acreage parcel is split giving you access to all Paper Company lands North and South of Price County Road in this area. There are about five acres on the South side of Price County Rd. with the remaining acreage to the North. This is a perfect situation to set your camp on the smaller parcel leaving the larger parcel undisturbed, yet having good access to send one party South while the balance of your party covers the Northern section. Many possibilities here even possibility of selling off one parcel to a buddy or relative keeping all hunting access to this area exclusive to you and your family or friends! Call me for details, maps and directions.
Features Residential
|Lot Size SqFt: 1660507
|Lake Chain:
|Lot Size Acres: 38.12
|Lake Name:
|Zoning: Forestry
|River Name:
|Taxes: $388
|Water Frontage (feet): 0
|Tax Year: 2015
|Lake Size-Acres: 0
|High School: ON Lakeland Union
|School District: Lakeland UHS
|Access Road: Town Road
|Site Influence: Easy Access, Hunting, Level, Private Setting, Quiet Area, Recreation Nearby, Wooded Area


text:
Listing Courtesy of Coldwell Banker Honig-Bell
Listing information
- Beds: 2
- Total Rooms: 6
- New Construction: No
- Estimated Annual Taxes: $5,390
- High School: Minooka Community High School
- Subdivision: Shorewood Glen Del Webb
- Style: 1-Story
- Baths: 2 (Full: 2 3/4: 0 1/2: 0 Other: 0)
- Stories: 0
- Foreclosure: No
- Association Fee: $214
- Middle School: Minooka Intermediate School
- Year Built: 2006
- Status: Active with Contingency
- Parking Type Description: Attached 2 cars
- Total Square Footage: 1,666 ($173.47 per sq. foot)
- County: Will
- Elementary School: Minooka Elementary School
Additional Rooms Den, Sun/Florida Room
Age 6-10 Years
Air Conditioning Central Air
Appliances Dishwasher, Disposal, Dryer, Microwave, Oven/Range, Refrigerator, Washer
Area Shorewood
Area Amenities Clubhouse, Park/Playground, Pool, Sidewalks, Street Lights, Tennis Courts
Assessment Includes Clubhouse, Common Insurance, Exercise Facilities, Exterior Maintenance, Lawn Care, Pool, Snow Removal
Basement Full
Basement Bathrooms (Y/N) No
Basement Description Finished
Bath Amenities Double Sink, Handicap Shower
Built Before 1978 (Y/N) No
Contingency Flag House to Sell (72 Hr Kickout)
Dining Room Combined w/ LivRm
Disability Access and/or Equipped No
Driveway Asphalt
Electricity 200+ Amp Service, Circuit Breakers
Equipment Backup Sump Pump;, Ceiling Fan, CO Detectors, Sump Pump, TV-Cable, Water-Softener Owned
Exterior Building Type Vinyl Siding
Exterior Property Features Brick Paver Patio
Foundation Concrete
Garage Details Garage Door Opener(s)
Garage On-Site Yes
Garage Ownership Owned
Garage Type Attached
General Information Adult Community
Heat/Fuel Forced Air, Gas
Interior Property Features 1st Floor Bedroom, 1st Floor Full Bath, 1st Floor Laundry, Hardwood Floors
Kitchen Type Pantry-Closet
Lot Description Landscaped Professionally
Lot Size Less Than .25 Acre
Master Association Fee No
Master Bedroom Bath Full
Other Bedrooms (Below Grade) - 0, Model - Liberty, Special Service Area - N, Tax Year - 2015, Total Full/Half Baths - 2, Township - Troy
Ownership Fee Simple w/ HO Assn.
Parking Garage
Possession Closing
Property Type Detached Single
Recent Rehab (Y/N) No
Roof Type Asphalt/Glass (Shingles)
Sewer Sewer-Public
Special Assessments N
Style Of House Ranch
Tax Exemptions Homeowner, Senior
Type Detached 1 Story
Virtual Tour Image360
Water Public
Waterfront (Y/N) No
Bedroom 2 Main Level 12X11
Den Main Level 10X11
Dining Room Main Level 10X12
Kitchen Main Level 13X12
Living Room Main Level 20X17
Master Bedroom Main Level 14X12
Sunroom Main Level 11X12
Listing Courtesy of Coldwell Banker Honig-Bell


text:
The sale is part of the Russian government's efforts to privatize some state assets to help balance the budget amid a two-year recession. » Read More
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Berkshire Hathaway HomeServices Verani Realty
(888) 723-0306
Listing Provided Courtesy Of: RE/MAX Northern Edge Realty/Colebrook - Joey Sweatt
Last Updated: 12/9/2016 11:15 AM
Description for Spooner Road Pittsburg, NH 03592
0.31 acre lot on the shores of beautiful Back Lake in Pittsburg NH. This lot owns 113 feet of frontage on the Lake and has spectacular views of the lake in all directions. Back Lake offers excellent fishing, boating and swimming, and also gives you direct access to the snowmobile trails in the winter. This wooded lot affords you ATV trail access in the summer as well. Build the new waterfront home or camp of your dreams here!
Listing Information
Electric service at street
School Information
Room Information
Exterior / Lot Features
Sloped, Level
Lake Access, Water Access, Water Front, Rural, Lake Front, Dead End, Public Roads, Level, Sloped, Wooded
Inside AccessTM
Current market conditions for Spooner Road
Active Market Trends
Source:MLS DATA
Median list price$134,900
Days on market153
Properties for sale47
Sold Market Trends
Source:MLS DATA
Median sold price$88,900
Sales to list price9,084.0%
Properties sold17
Median sq ft price$85
Arrows indicate 90 day trend
Listing Price History for Spooner Road
Pittsburg Real Estate
Pittsburg is located in New Hampshire. Pittsburg, New Hampshire 03592 has a population of 998.
The median household income in Pittsburg, New Hampshire 03592 is $42,604. The median household income for the surrounding county is $41,774 compared to the national median of $53,046. The median age of people living in Pittsburg 03592 is 59.4 years.
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July 9, 2009
PAUL MESEROLE, BRIAN MILLER, LAWRENCE MONROE, RHONDA PLOUBIS, ALAN STREHOLSKI, JUANITA SEIDL AND WILLIAM MEAD, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,v.SONY CORPORATION OF AMERICA, INC., SONG ELECTRONICS, INC., AND SONY CORP., DEFENDANTS.
In a class action complaint filed on October 20, 2008, and amended on December 5, 2008 (the "Complaint"), Plaintiffs Paul Meserole, Brian Miller, Lawrence Monroe, Rhonda Ploubis, Alan Streholski, Juanita Seidl and William Mead (collectively referred to as "Plaintiffs"), commenced this action against Defendants Sony Corporation of America, Inc., Sony Electronics, Inc., and Sony Corporation (collectively referred to as "Sony" or "Defendants"), alleging state and federal breach of warranty and consumer protection law claims related to an inherent defect in the "Optical Block" present in Sony Grand WEGA SXRD Rear Projection HDTV Televisions.*fn1
On January 16, 2009, Defendants filed a motion to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6) ("First Motion to Dismiss"), which this Court granted on May 18, 2009. See Meserole v. Sony Corporation of America, 2009 U.S. Dist. LEXIS 42772 (S.D.N.Y. 2009). In the opinion, this Court granted Plaintiffs "thirty days leave to replead their claims." Id. at *34. On June 3, 2009, Plaintiffs filed a motion for reconsideration of this Court's order of dismissal, and on June 17, 2009, Plaintiffs filed a Second Amended Complaint.*fn2 Defendants filed a brief in opposition to Plaintiff's motion for reconsideration on June 22, 2009, and on July 2, 2009, Defendants filed a motion to dismiss Plaintiffs' Second Amended Complaint.
Plaintiffs' motion for reconsideration is denied as moot. By filing a Second Amended Complaint, Plaintiffs have supplanted the Complaint, thereby rendering any motion for reconsideration advisory.*fn3 See, e.g., Mintz v. Baron, 2009 U.S. Dist. LEXIS 22636, 1 (S.D.N.Y. 2009) (finding Plaintiffs' amended complaint rendered moot a motion for reconsideration); Powell v. Smith, 2009 WL 1810770, 1 (E.D. Cal. 2009) (denying a motion for reconsideration as moot subsequent to filing of amended complaint). Indeed, if this Court were to grant Plaintiffs' motion for reconsideration, the effect would be that Plaintiffs would have two complaints pending in the same action. This simply cannot be. See International Controls Corp. v. Vesco, 556 F.2d 665, 669 (2d Cir. 1977) (citing Miller v. American Export Lines, 313 F.2d 218 (2d Cir. 1963) ("[i]t is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect"); Diesel Props RSL v. Greystone Bus, 2008 U.S. Dist. LEXIS 92988, *16 (S.D.N.Y. 2008) (plaintiff's amended pleadings supersede plaintiff's original pleadings); see also Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999) ("Because a plaintiff's new complaint wipes away prior pleadings, the amended complaint opens the door for defendants to raise new and previously unmentioned affirmative defenses.")
Accordingly, Plaintiffs' Motion for Reconsideration is DENIED as moot. To the extent that any of the legal issues raised by the parties in their memoranda of law related to the motion for reconsideration arise in connection with Defendants' motion to dismiss the Second Amended Complaint, the parties are free to incorporate such arguments into their briefs in support or opposition to the motion.
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United States District Court, N.D. Illinois
July 9, 2013
CAROL NOVAK, Plaintiff,v.LIFE INSURANCE COMPANY OF NORTH AMERICA and DISCOVERY FINANCIAL SERVICES WELFARE BENEFITS PLAN, Defendants
Page 901
[Copyrighted Material Omitted]
Page 902
For Carol Novak, Plaintiff: Michael Bartolic, LEAD ATTORNEY, The Law Offices of Michael Bartolic, LLC, Chicago, IL.
For Life Insurance Company Of North America, Defendant: Daniel Keenan Ryan, LEAD ATTORNEY, Peter E. Pederson, Jr., Hinshaw & Culbertson, Chicago, IL.
For Discover Financial Services Welfare Benefits Plan, Defendant: Peter E. Pederson, Jr., Hinshaw & Culbertson, Chicago, IL.
Virginia M. Kendall, United States District Court Judge.
Page 903
On November 27, 2012, Plaintiff Carol Novak filed this suit under the Employee Retirement Income Security Act (" ERISA" ), 29 U.S.C. § 1132(a)(1)(B), alleging that Defendant Life Insurance Company of North America (" LINA" ) incorrectly denied her claim for long-term disability benefits under a benefit plan (the " Plan" ) offered by her former employer, Discover Financial Services. Because the standard of review governing Novak's claims will determine the course of these proceedings, including discovery, the Court ordered that the issue be briefed and resolved at the threshold. With the benefit of the parties' briefs, the court concludes that the de novo standard of review governs Novak's long-term disability claim and that additional discovery beyond the administrative record is not appropriate at this time.
I. Standard of Review
ERISA does not set out the appropriate standard of review for actions under § 1132(a)(1)(B) challenging benefit eligibility determinations. To fill this gap, courts have held that a denial of insurance benefits is reviewed de novo under ERISA " unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101, 114-15, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); see also Conkright v. Frommert, 559 U.S. 506, 130 S.Ct. 1640, 176 L.Ed.2d 469 (2010); Black v. Long Term Disability Ins. , 582 F.3d 738, 743 (7th Cir. 2009); Perlman v. Swiss Bank Corp. Comprehensive Disability Protection Plan , 195 F.3d 975, 980 (7th Cir. 1999). When the plan gives the administrator discretionary authority, the standard of review is deferential and court " will set aside an administrator's
Page 904
decision only if it is arbitrary and capricious." Black , 582 F.3d at 743-44 (citing Herzberger v. Standard Ins. Co. , 205 F.3d 327, 332 (7th Cir. 2000); Aschermann v. Aetna Life Ins. Co. , 689 F.3d 726, 728 (7th Cir. 2012); Hess v. Reg-Ellen Mach. Tool Corp. Employee Stock Ownership Plan , 502 F.3d 725, 727 (7th Cir. 2007). In order for a plan to be grant discretionary authority to the fiduciary, " [t]he reservation of discretion must be communicated clearly in the language of the plan, but the plan need not use any particular magic words." Gutta v. Standard Select Trust Ins. Plans , 530 F.3d 614, 619 (7th Cir. 2008); Semien v. Life Ins. Co. of N. Am. , 436 F.3d 805, 810 (7th Cir. 2006) (plan should " clearly and unequivocally state that it grants discretionary authority" ).
A. The Plan Terms
The Plan designates LINA as the " Claims Administrator" and fiduciary of the LTD program and delegates to LINA " full discretionary authority to determine claims and appeals under such Participating Program." Specifically, § 2.9(a) of the Plan document, entitled " Claims Administrator," provides:
" Claims Administrator" means, with respect to any Participating Program, the person(s) or entity(ies) appointed by the Plan Administrator to decide, in its sole discretion, claims for benefits, or the person(s) or entity(ies) appointed by the Plan Administrator to decide, in its sole discretion, appeals of denied claims for benefits .... The Claims Administrator will be a fiduciary (with respect to the authority delegated to the Claims Administrator) of the Plan.
(a) Fully Insured Participating Programs. The Claims Administrator for the insured Participating Programs will be the insurance company issuing the insurance policy or contract. Each Claims Administrator under an insured Participating Program will have full discretionary authority to determine claims and appeals under such Participating Program, subject to the terms of the insurance policy contract under which benefits are provided.
(Dkt. 23-1, p. 12.) In this case, LINA is the " Claims Administrator" and fiduciary for the LTD program under § 2.9(a) because it issued the insurance policy that provides the LTD benefits. Additionally, in a section entitled " Claims and Appeals Process Under the Discover Benefits Plan," the Summary Plan Description states:
What else should I know about how the reviewers make decisions?
The administrators and fiduciaries of Discover's benefits plans, including the Reviewers, have discretionary authority to interpret the plans and make determinations under the plans. Any decision made pursuant to this authority is given full force and effect unless arbitrary and capricious.
(Dkt. 23, Ex. C, p. 140.) In a section entitled " Other Important Information," the Summary Plan Document provides:
Discretionary Authority of Plan Administrator and Other Plan Fiduciaries
In carrying out their respective responsibilities under the Plan, the Plan Administrator and other Plan fiduciaries shall have the exclusive right and discretionary authority to make any findings necessary or appropriate for any purpose under the plan, including to interpret the terms of the Plan and to determine eligibility for and entitlement to Plan benefits. Any interpretation or determination made pursuant to such discretionary authority shall be given full
Page 905
force and effect, unless it can be shown that the interpretation or determination was arbitrary and capricious.
( Id. at 155.)
B. The Discretionary Language in the Plan Document does Not Conflict with the Insurance Policy
Section 1.3(b) of the Plan, which governs conflicts, provides that" [i]f a Participating Program is insured and there is a conflict between the specific terms of the Program Document and the terms of the Plan, the Program Document will control." (Dkt. 23-1, p. 9.) Novak argues that based on a conflict between the Plan document and the insurance policy, the Plan document cannot be read to grant discretionary authority to LINA with respect to the LTD component program of the Plan. Specifically, Novak points to the fact that the Plan document contains a broad conferral of discretion from the Plan Administrator to any claims review fiduciary while the insurance policy contains no discretionary clause.
The Court finds that the Plan document's discretionary language does not conflict with any term contained in the insurance policy. Instead, it contains an additional term conferring discretionary authority to a fiduciary. Novak does not dispute that the Plan document's conferral of jurisdiction refers to all components of the plan and that the Plan specifically incorporates by reference the insurance policy. Taking the plan documents as a whole, the Plan language unequivocally grants discretionary authority to LINA. See Marantz v. Permanente Med. Grp., Inc. Long Term Disability Plan , 687 F.3d 320, 327 (7th Cir. 2012) (" A district court conducts de novo review of a denial of benefits under an ERISA plan unless the plan documents grant the claim fiduciary discretionary authority to construe the policy terms to decide eligibility benefits ...." ) (emphasis added); see, e.g., Borich v. Life Ins. Co. of N. Am. , No. 12 C 734, 2013 WL 1788478, at *2 (N.D. Ill. Apr. 25, 2013) (" [discretionary language] is not rendered ineffective merely because it appears in plan documents other than the policy." ). Accordingly, the Court rejects Novak's argument that the discretionary clause contained in the Plan document does not apply to the Plan's LTD component simply because the clause is not reiterated in the insurance policy.
C. Illinois Law Invalidates the Plan's Grant of Discretionary Authority to LINA
Novak next argues that even if the Plan documents grant LINA discretionary authority with respect to the LTD component of the Plan, any such grant is invalid pursuant to a regulation promulgated by the Illinois Department of Insurance, 50 Ill. Adm. Code tit. § 2001.3 (" the DOI Regulation" ). The DOI Regulation provides:
No policy, contract, certificate, endorsement, rider, application or agreement offered or issued in this State, by a health carrier, to provide, deliver, arrange for, pay for or reimburse any of the costs of health care services or of disability may contain a provision purporting to reserve discretion to the health carrier to interpret the terms of the contract, or to provide standards of interpretation or review that are consistent with the laws of this State.
Id. The purpose of the DOI Regulation is to:
prohibit all such policies from containing language reserving sole discretion to interpret policy provisions with the insurer. The legal effect of discretionary clauses is to change the standard for judicial review of benefit determinations from one of reasonableness to arbitrary
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and capricious. By prohibiting such clauses, the amendments aid the consumer by ensuring that benefit determinations are made under the reasonableness standard.
29 Ill. Reg. 10172 (July 15, 2005).
1. The DOI Regulation Applies Notwithstanding that it Appears in the Plan Document Instead of the Insurance Policy
Defendants maintain that the DOI Regulation does not invalidate the clause granting LINA discretionary authority because the clause appears in the Plan document, not in the insurance policy. The Plan document, according to Defendants, is not " a policy [or] contract to provide, deliver, arrange for, pay for, or reimburse any of the costs of health care services or of a disability."
Courts in this district have rejected the argument that § 2001.3 does not apply by virtue of the fact that the language conferring discretion appears only in the plan document and not in the insurance policy itself. See, e.g., Borich , 2013 WL 1788478, at *4 (to hold that the regulation cannot apply to Plan documents would be " both contrary to the plain language of the regulation and the clear import of the language .... The regulation's bar on insurer interpretive discretion would be meaningless ... if it could be avoided by the expedient of entering into a separate agreement, outside the insurance policy, that provides the same discretion that § 2001.3 takes away" ); DiFatta v. Baxter Int'l, Inc. , No. 12 C 5023, 2013 WL 157952, at *3 (N.D. Ill. Jan. 15, 2013) (section 2001.3 barred a grant of discretion to the LTD insurer despite the fact that the discretionary language appeared in the master plan document and not the insurance policy); Ehas v. Life Ins. Co. of N. Am. , No. 12 C 3537, 2012 WL 5989215, at *5-7 (N.D. Ill. Nov. 29, 2012) (section 2001.3 applied despite the fact that the insurance policy contained no language granting discretion to LINA because another plan document--the appointment of claims review fiduciary--did contain a clause stating that LINA would have discretion to interpret the insurance policy).
In Ehas , for example, the court relied upon the Illinois Department of Financial and Professional Regulation's interpretation of § 2001.3 stating that it aims to (1) strip LTD insurers of discretion when making decisions on LTD benefits claims, and (2) prevent an " arbitrary and capricious" standard of review in such cases., 2012 WL 5989215, at *6 (citing 29 Ill. Reg. 10172 (July 15, 2005)). Addressing the absence of discretionary language in the policy itself, the court found that the plain language of the regulation makes it applicable to more than just insurance policies because " [t]he regulation sweeps broadly, including not only an insurance 'policy,' but a 'contract, certificate, endorsement, rider application or agreement.' " Id. The court reasoned that allowing disability insurers to circumvent the Illinois regulation by placing the discretionary clause in a plan document rather than in the insurance policy would " elevate form over substance." Id. (quoting Curtis v. Hartford Life & Acc. Ins. Co. , No. 11 C 2448, 2012 WL 138608, at *7 (N.D. Ill. Jan. 18, 2012)). The Court finds this reasoning persuasive and holds that the DOI Regulation applies to the discretionary clauses contained in the Plan document and Summary Plan Description.
2. The DOI Regulation is Not Preempted by ERISA
Defendants next argue that even if the DOI Regulation applies to the Plan document, it is preempted by ERISA. ERISA's preemption provision states that ERISA " supercede[s] any and all State laws so far as they may now or hereafter
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relate to any employee benefits plan." 29 U.S.C. § 1144(a). The Supreme Court has held a state law " relates to" an ERISA plan if it either has a " connection with" or " reference to" such a plan. FMC Corp. v. Holliday , 498 U.S. 52, 58, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990). In this case, § 2001.3 prohibits employers from delegating discretionary authority to a fiduciary in a trust instrument that governs a plan. Thus the regulation has a " connection with" and " reference to" an employee benefit plan.
However, ERISA's savings clause protects from preemption " any law of any State which regulates insurance, banking, or securities." 29 U.S.C. § 1144(b)(2)(A). Thus, " a State law regulating insurance is saved from ERISA's preemption provision thereby preserving State regulation of the substantive terms of insurance policies, even those policies that fall within ERISA's purview." Zaccone v. Standard Life Ins. Co. , No. 10 C 00033, 2013 WL 1849515 (N.D. Ill. May 1, 2013) (citing Rush Prudential HMO, Inc. v. Moran , 536 U.S. 355, 122 S.Ct. 2151, 153 L.Ed.2d 375 (2002), Metro. Life Ins. Co. v. Massachusetts , 471 U.S. 724, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985), and Unum Life Ins. Co. of Am. v. Ward , 526 U.S. 358, 363, 119 S.Ct. 1380, 143 L.Ed.2d 462 (1999)).
In Kentucky Ass'n of Health Plans v. Miller , 538 U.S. 329, 123 S.Ct. 1471, 155 L.Ed.2d 468 (2003), the Supreme Court set forth two requirements a state insurance regulation must satisfy in order to be saved from ERISA's preemption clause. First, the state law " must be specifically directed toward entities engaged in insurance." Id. at 342 (" [L]aws of general application that have some bearing on insurers do not qualify." ). In this case, the Defendants argue that the DOI Regulation fails to satisfy the first requirement because it is directed toward plan sponsors and trust instruments, not entities engaged in insurance.
The fact that entities other than insurance companies may be affected by a state regulation does not take that regulation outside the scope of the ERISA savings clause. The Miller Court explained:
It is of course true that as a consequence of Kentucky's AWP laws, entities outside the insurance industry (such as health-care providers) will be unable to enter into certain agreements with Kentucky insurers. But the same could be said about the state laws we held saved from pre-emption in [ FMC Corp. v. Holliday , 498 U.S. 52, 111 S.Ct. 403, 112 L.Ed.2d 356 (1999)] and [ Rush Prudential HMO, Inc. v. Moran , 536 U.S. 355, 122 S.Ct. 2151, 153 L.Ed.2d 375 (2002)]. Pennsylvania's law prohibiting insurers from exercising subrogation rights against an insured's tort recovery, see [ FMC Corp. ], also prevented insureds from entering into enforceable contracts with insurers allowing subrogation. Illinois' requirement that HMOs provide independent review of whether services are 'medically necessary,' [ Rush Prudential ], likewise excluded insurers from joining an HMO that would have withheld the right to independent review in exchange for a lower premium. Yet neither case found the effects of these laws on noninsurers, significant though they may have been, inconsistent with the requirement that laws saved from pre-emption by § 1144(b)(2)(A) be 'specifically directed toward' the insurance industry. Regulations 'directed toward' certain entities will almost always disable other entities from doing, with the regulated entities, what the regulations forbid; this does not suffice to place such regulation outside the scope of ERISA's saving clause.
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Id. at 335-36 (first emphasis in original; second emphasis added).
The DOI Regulation, by prohibiting insurers from granting fiduciaries discretionary authority to interpret plan terms, is clearly directed toward " entities engaged in insurance." See Standard Ins. Co. v. Morrison , 584 F.3d 837 (9th Cir. 2009) (" It is well-established that a law which regulates what terms insurance companies can place in their policies regulates insurance companies." ). The fact that the regulation also imposes limitations on Plan fiduciaries does not change the outcome of the analysis.
The second requirement under Miller is that the state law " substantially affect the risk pooling arrangement between the insurer and the insured." 538 U.S. at 338. The Miller Court explained the its rationale for imposing this requirement:
Otherwise, any state law aimed at insurance companies could be deemed a law that 'regulates insurance,' contrary to our interpretation of § 1144(b)(2)(A) in Rush Prudential , 536 U.S., at 364, 122 S.Ct. 2151. A state law requiring all insurance companies to pay their janitors twice the minimum wage would not 'regulate insurance,' even though it would be a prerequisite to engaging in the business of insurance, because it does not substantially affect the risk pooling arrangement undertaken by insurer and insured.
Defendants maintain that § 2001.3 affects the substance of the relationship between the plan sponsor and the insurer-fiduciary, not the risk pooling arrangement between the insurer and insured participants. Indeed the petitioners in Miller raised a near-identical argument, asserting that the state laws at issue in that case failed to satisfy the second requirement because " they [did] not alter or affect the terms of insurance policies, but concern only the relationship between insureds and third-party providers." 538 U.S. at 338. The Miller Court disagreed:
We have never held that state laws must alter or control the actual terms of insurance policies to be deemed " laws ... which regulat[e] insurance" under § 1144(b)(2)(A); it suffices that they substantially affect the risk pooling arrangement between insurer and insured" by alter[ing] the scope of permissible bargains between insurers and insureds ....
Id. 338-39.
In this case, the DOI Regulation effectively changes the standard of review federal courts will apply when reviewing claim determinations from arbitrary and capricious to de novo. Under de novo review, district courts will be permitted to make " independent decisions" regarding benefit claims and will no longer be limited to overturning only those decisions that they find " downright unreasonable." The likely result is that district courts will overturn more claims denials, ultimately leading to more claims paid than under the arbitrary and capricious standard. Thus, the DOI Regulation substantially affects the risk pooling arrangement between insurers and insureds. See, e.g., Ehas , 2012 WL 5989215, at *9 (section 2001.3 " satisfies Miller's second requirement .... By preventing an insurer from having discretion in interpreting terms, Section 2001.3 may give insureds greater leeway to bargain over the substance of those terms. The regulation may also compel insurers to offer different terms up front, since they can no longer dictate their interpretation" ); Zuckerman v. United of Omaha Life Ins. Co. , No. 09 C 4819, 2012 WL 3903780, at *7 (N.D. Ill. Sept. 6, 2012)
Page 909
(section 2001.3 " narrows the scope of permissible bargains between insurers and insured, because Illinois 'insureds may no longer agree to a discretionary clause in exchange for a more affordable premium' " ) (quoting Morrison , 584 F.3d at 844-45); Ball v. Standard Ins. Co. , No. 09 C 3668, 2011 WL 759952, at *4 (N.D. Ill. Feb. 23, 2011) (finding that a state law satisfies the Miller test if it " alters the scope of permissible bargains between the insurer and insureds," recognizing that § 2001.3 substantially affects the type of risk pooling arrangements that insurers may offer because the potential consequences of § 2001.3 will be considered and factored into insurance premiums due to increased insurance costs and a greater number of claims paid).
Accordingly, because the DOI Regulation satisfies both requirements set forth in Miller , the regulation is saved from preemption.
While the Seventh Circuit has not yet opined on whether § 1144(b)(2)(A) saves § 2001.3 from preemption, two other Courts of Appeals, in reviewing nearly identical state laws banning discretionary clauses, have held that ERISA does not preempt such laws. See, e.g., Am. Council of Life Insurers v. Ross , 558 F.3d 600 (6th Cir. 2009) (Michigan regulation " prohibiting insurers from issuing ... insurance contracts or policies that contain discretionary clauses" saved from preemption under ERISA); Morrison , 584 F.3d 837 (9th Cir. 2009) (practice of disapproving insurance contracts with discretionary clauses saved from preemption under ERISA); cf Hancock v. Metro. Life Ins. Co. , 590 F.3d 1141 (10th Cir. 2009) (finding that a Utah regulation establishing safe-harbor language and dictating font requirements for discretionary clauses was preempted by ERISA because it did not meet the second prong of the Miller test, but adding that the case would have been different if the regulation " imposed a blanket prohibition on the use of discretion-granting clauses" ) (citing Morrison and Ross ). Relying upon Ross and Morrison , district courts in the Northern District of Illinois have uniformly held that ERISA does not preempt § 2001.3. See Zaccone , 2013 WL 1849515, at *3; Ehas , 2012 WL 5989215, at *10; Zuckerman , 2012 WL 3903780, at *7; Barrett v. Life Ins. Co. of N. Am. , 868 F.Supp.2d 779, 781 (N.D. Ill. 2012); Curtis , 2012 WL 138608, at *10; Ball , 2011 WL 759952, at *4; see also Borich , 2013 WL 1788478, at *4 (reaching the same conclusion without explicitly relying upon Ross or Morrison ). [1]
Defendants submit that Morrison and Ross --and by extension the district court decisions relying on those cases--are wrongly decided because they fail to account for the important role judicial deference plays in ERISA's statutory scheme. [2] Defendants further assert that Morrison,
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Ross , and their progeny in the Northern District of Illinois have effectively been overturned by the Supreme Court's decision in Conkright v. Frommert , 559 U.S. 506, 130 S.Ct. 1640, 176 L.Ed.2d 469 (2010). In Conkright , the plan gave the administrator discretionary authority to interpret the terms of a pension plan. Id. at 1646. Applying deferential review, the Second Circuit held that the plan administrator's interpretation of certain plan provisions was unreasonable. Id. at 1645. The court then crafted its own exception to Firestone deference, holding that on remand the district court need not use a deferential standard when a plan administrator's previous construction of the same plan terms was found to violate ERISA. Id. The Supreme Court rejected this " one-strike-and-you're-out" approach, holding that " it has no basis in ... Firestone , which set out a broad standard of deference without any suggestion that the standard was susceptible to ad hoc exceptions." Id. at 1646. The Court reasoned that " a single honest mistake in plan interpretation" does not strip the plan administrator's discretion or justify de novo review for subsequent related interpretations. Id. at 1644.
In so holding, the Conkright Court discussed the tension between " ensuring fair and prompt enforcement of rights under a plan and the encouragement of the creation of such plans." Id. at 1649. The Court explained that in drafting ERISA, Congress attempted to create a system that was not so complex " that administrative costs, or litigation expenses, unduly discourage employers from offering plans in the first place." Id. Instead, the goal of ERISA was to induce " employers to offer benefits by assuring a predictable set of liabilities." Id. Judicial deference, the Court stated, protects this careful balance " by permitting an employer to grant primary interpretive authority over an ERISA plan to the plan administrator." Id. Such deference " promotes efficiency by encouraging resolution of benefits disputes through internal administrative proceedings" and " promotes predictability" because an employer can rely on the expertise of a claims administrator rather than " worry about unexpected and inaccurate plan interpretations that might result from de novo judicial review." Id.
Despite its language emphasizing the importance of judicial deference in federal ERISA proceedings, Conkright does not control the issue presented in this case. Conkright did not address, discuss, or mention, much less overturn, the Sixth and Ninth Circuit's decisions in Morrison and Ross. Indeed the issue of preemption was not even in play. At issue in Conkright was whether a federal court may strip an administrator of its discretionary authority on an " ad-hoc basis," not whether state regulatory bodies are precluded from regulating insurance by promulgating rules restricting deference-conferring clauses that otherwise clearly fall within the ambit of ERISA's savings clause. Therefore the Court declines the Defendants' invitation to take Conkright --a case that had nothing to do with preemption, insurance regulation, or ERISA's savings clause--and stretch its holding to effectively preclude any state law restricting the grant of discretionary authority to an administrator. See, e.g., Zaccone , 2013 WL 1849515, at *5 (" Conkright does not alter the analyses in Ross and Morrison or require the conclusion that Section 2001.3 is outside ERISA's savings clause and has been preempted by ERISA." ).
The remaining cases Defendants cite are also unpersuasive. Defendants cite: Shaw v. Delta Air Lines, Inc. , 463 U.S. 85, 97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983), where the Supreme Court held that ERISA preempted a New York law requiring
Page 911
employers to structure their employee benefit plans to provide the same benefits for pregnancy-regulated disabilities as for other disabilities; Retail Indus. Leaders Ass'n v. Fielder , 475 F.3d 180, 197 (4th Cir. 2007), where the court struck down a law requiring employers to spend at least 8% of their total payrolls on employees' health insurance costs; and Unum Life Ins. Co. of Am. v. Ward , 526 U.S. 358, 378-80, 119 S.Ct. 1380, 143 L.Ed.2d 462 (1999), where the Supreme Court found that ERISA preempted a California rule that required the employer to act as agent of the insurer in the performance of " duties of administering group insurance policies" under ERISA plans because the rule forced the employer, as plan administrator, " to assume a role, with attendant legal duties and consequences, that it had not undertaken voluntarily. However, as at least one other court in this district has noted, " each of these cases involved legislation that sought to regulate employers' benefit obligations rather than the interpretation of an insurance policy." Borich , 2013 WL 1788478, at *4 n.2. The DOI Regulation, by contrast, " has no direct impact on the employer or what benefits it must provide, but rather affects the way that the insurance policy is construed." Id.
Accordingly, because the Court finds that the DOI Regulation strips Discover Financial Services Welfare Benefits Plan's ability to grant LINA discretionary authority to construe Plan terms and determine eligibility for benefits and is not preempted by ERISA, the Court will apply de novo review and make an independent decision as to whether Novak was under the Plan's terms.
II. Scope of Discovery
Nevertheless, even under the de novo standard of review, Novak is not permitted to engage in additional discovery beyond the administrative record at this time. In Estate of Blanco v. Prudential Ins. Co. of Am. , 606 F.3d 399 (7th Cir. 2010), the Seventh Circuit set forth the approach for determining the scope of discovery in an ERISA proceeding where the district court applies a de novo standard of review. Under de novo review, district courts have " discretion to limit the evidence to the record before the plan administrator, or to permit the introduction of additional evidence necessary to enable it to make an informed and independent judgment." Id. at 402 (quoting Patton v. MFS/Sun Life Fin. Distributors, Inc. , 480 F.3d 478, 490-91 (7th Cir. 2007)). The Blanco court stated four factors courts must consider in determining whether extra-record discovery should be allowed: (1) whether " the new evidence is necessary to make an informed and independent judgment" ; (2) whether the parties had an opportunity to present evidence at the administrative level; (3) whether the extra-record discovery relates to the plan terms or historical facts concerning the claimant; (4) whether the administrator faces a conflict of interest. Id. at 402; Patton , 480 F.3d at 491. " The most important factor ... is whether the new evidence is necessary to make an informed judgment." Blanco , 606 F.3d at 402. As a general matter, however, " the district court should restrict itself to the evidence before the plan administrator" and " review evidence beyond that which was before the plan administrator only when circumstances clearly establish that additional evidence is necessary." Casey v. Uddeholm Corp. , 32 F.3d 1094, 1099 (7th Cir. 1994) (citing Quesinberry v. Life Ins. Co. , 987 F.2d 1017, 1025 (7th Cir. 1993)).
In this case, Novak argues that extra-record discovery should be allowed because allowing the Defendants to determine what constitutes the administrative
Page 912
record would " only encourage administrators to under-disclose." In Novak's view, the " only way to determine whether the purported administrative record supplied by LINA actually contains the information LINA knew ... is through limited purpose discovery requests." Novak also argues that she should be allowed to engage in additional discovery so that the Court may render an informed decision regarding whether any additional medical affidavits may be introduced. Neither reason presents sufficient basis allowing additional discovery. The mere assertion that allowing the Defendants to determine what constitutes the administrative record may lead to abuse plainly does not satisfy the factors set forth in Blanco. Indeed under Novak's approach, courts would allow for extra-record discovery in every case involving de novo review. Novak does not cite--nor could this Court find--any support for such a proposition.
Nor does Novak explain why additional discovery is necessary for the Court to make an informed and independent judgment regarding her condition. Additional discovery is not granted as a matter of course. See Patton , 480 F.3d at 492 (" A court should not automatically admit new evidence whenever it would help to reach an accurate decision .... The record calls for additional evidence only where the benefits of increased accuracy exceed the costs." ). In Krolnik , for example, the Seventh Circuit determined that the district court should have permitted extra-record discovery where there was conflicting evidence in the administrative record. 570 F.3d at 843. In Patton , the court permitted extra-record discovery solely to clarify an unexplained contradiction between two statements a treating physician made about the claimant's capacities. 480 F.3d at 492-93. On the other hand, in Blanco , the court denied extra-record discovery where the medical records on file were more than sufficient and left no " serious dispute" that the plaintiff suffered from a pre-existing condition. 606 F.3d at 402-03. Similarly, in Ehas , the court found that the plaintiff had not established a basis for extra-record discovery because he " failed to sufficiently allege facts supporting the grant of discovery as to either the issues of disability or conflict of interest. 2012 WL 5989215, at *11. In Ball , the court, after determining that the de novo standard of review applied, denied a motion to compel depositions based on its finding that the experts' reports and the claimant's medical records, which were already part of the administrative record, were sufficient to enable the court to make an informed and independent judgment. 2011 WL 2708366, at *2.
Here, Novak alleges that LINA's medical reviewers refused to acknowledge her muscle testing results, ignored the results of her electromyogram (" EMG" ), failed to acknowledge the results of her functional capacity evaluation (" FCE" ), and never explained why the above-results should be discounted or disregarded. These allegations, if true, may establish that LINA's decision was incorrect (or even unreasonable). That, however, is a determination the Court will be able to make based on its own independent review of the administrative record. Aside from alleging that LINA made the wrong call, Novak offers no specific basis for allowing additional discovery at this time. Novak asserts that the Court may find helpful the affidavit of one of his pain specialists, Dr. Jay Joshi, but fails to articulate why Dr. Joshi's opinion is necessary for the court to form an independent and informed conclusion regarding her alleged disability. Unlike the plaintiffs in Patton and Krolnik , Novak points to no contradiction in the administrative
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record, nor does she identify a specific aspect of her treatment that is not adequately discussed in the files already contained within the administrative record. Accordingly, Novak has not shown that extra-record discovery is necessary for the Court to arrive at an independent determination regarding her long-term disability benefits claim.
Lastly, to the extent Novak seeks to take discovery regarding whether the Plan administrator's decision was influenced by a structural conflict of interest, such conflict is irrelevant because the Court, proceeding under de novo review, will make an independent determination as to whether Novak was disabled under the Plan. As the Seventh Circuit explained in Diaz v. Prudential Ins. Co. of America , 499 F.3d 640 (7th Cir. 2007):
[W]hen de novo consideration is appropriate in an ERISA case ... the court can and must come to an independent decision on both the legal and factual issues that form the basis of the claim. What happened before the Plan administrator or ERISA fiduciary is irrelevant .... That means that the question before the district court was not whether Prudential gave Diaz a full and fair hearing or undertook a selective review of evidence; rather, it was the ultimate question of whether Diaz was entitled to the benefits he sought under the plan.
Id. at 643 (citations omitted); see, e.g., Borich , 2013 WL 1788478, at *5 (" Because the Court will not rely in any way on LINA's denial of benefits, whether LINA's decision was influenced by a conflict of interest has no probative value whatsoever." ); Walsh v. Long Term Disability Coverage for All Emps. Located in the U.S. of DeVry, Inc. , 601 F.Supp.2d 1035, 1043 (N.D. Ill. 2009) (finding any violations the plan administrator might have committed in denying an LTD claim irrelevant to the question of whether a claimant is eligible for benefits).
Accordingly, the Court finds that extra-record discovery unwarranted at this time.
For the reasons stated, the Court will make an independent determination of whether Novak was disabled under the terms of the Plan. Novak's request to engage in extra-record discovery is denied at this time.
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MLB.com's No. 6 prospect singled twice and drove in a run to extend his hitting streak to 15 games Friday as the Double-A Frisco RoughRiders beat the San Antonio Missions, 9-3.
Profar got his first hit out of the way early, beating out a grounder in the third inning. He singled home Jose Felix in the fifth and later scored on a throwing error by third baseman Edinson Rincon. Profar also reached in the ninth on a sacrifice bunt and scored on Mike Olt's seventh homer.
Profar's streak has come at the right time for the Curacao native. Entering play on April 19, the 19-year-old shortstop was batting .200. Since then, he's 19-for-59 to raise his average 62 points.
Profar, the 2011 South Atlantic League MVP, opened the season in a 2-for-26 slump. He's collected 25 hits, 12 for extra bases, over his last 19 games and is tied with teammate Engel Beltre for the league lead with four triples. Overall, he's batting .262 three homers, 11 RBIs, 18 runs scored and four stolen bases in 26 games.
Barret Loux, the Rangers' No. 19 prospect, allowed three runs on four hits over five innings to become the Minor Leagues' first six-game winner.
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