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Hello, ladies!
A good year for women on film, as exemplified in new releases The Eyes of My Mother, Miss Sloane, and more
Matthew Lickona 5 p.m., Dec. 9
Posted July 25, 2013
Must-sees in Belgium's medieval masterpiece.
In the Middle Ages, back when canals were the super-highways of Europe, Bruges experienced a surge of wealth and culture. Before the canals started silting, there was a direct route to the sea from the ...
Matthew Lickona 5 p.m., Dec. 9
Garrett Harris 4 p.m., Dec. 9
Delinda Lombardo 1:30 p.m., Dec. 9
Fred Hernandez noon, Dec. 9
Jon Reimer 11:30 a.m., Dec. 9
Matthew Suárez 11 a.m., Dec. 9
Marty Graham 9:30 a.m., Dec. 9
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Energy grant questions fielded by commission
PARKERSBURG – Officials with West Virginia Sustainable Communities, which awarded a $5,000 grant for the SMART Energy Solutions program, had some questions for Wood County commission President Wayne Dunn relating to the handling of the grant funding.
During a teleconference Thursday with commissioners, Kelly Jo Drey, director of the Sustainable Energy Program at Bridgemont Community and Technical College, said she doesn't believe there was any mishandling of the funds.
"Until somebody proves to me otherwise, I don't believe there was anything misintentioned with the grant. It think it's just a matter of inattentive record-keeping, and I'm pretty confident we can get it figured out to the satisfaction of everyone," she said.
"I apologize personally for any misunderstanding or miscommunication in the paperwork, and I take responsibility for that. I didn't do my homework on that," Dunn said.
Questions arose after Dunn, who has spearheaded the local energy program from its inception, provided a final report to the agency that showed expenses in excess of income, alluded to the county commission as the sponsoring entity for the grant, when the grant was originally awarded to Community Resources Inc., and Dunn denied any conflict or personal gain because he had three of his own properties audited through the energy program.
Dunn earlier provided documentation showing he and Gary Thompson, with the energy assessment program at West Virginia University at Parkersburg, had energy audits completed on their properties. Thompson said earlier he paid for the audit on his property and Dunn produced canceled checks showing he paid for the audits on his properties. Dunn said Thursday none of those audits was part of the grant program and he had the audits performed on his properties to try and lead by example, encouraging other homeowners to have the audits done on their homes.
Wood County grant coordinator Toni Tiano had no part in applying for the grant or any administration of the West Virginia Sustainable Communities Technical Assistance Mini-Grant, which was apparently awarded to CRI in February-March. But after learning of the concerns from the granting authority last week, the commissioners asked her to review the documents and see what recommendations she would propose to address the problems.
Tiano reported Thursday no record could be found that the county ever applied for or had any connection with the $5,000 grant.
"There was no record of the grant officially being transferred to the county commission. It was never turned over. Technically this is not our grant," Tiano said.
Dunn said when the program first began, CRI was going to conduct the energy audits. The agency pulled out of the program "because they felt it was going to cost them money," Dunn said.
Dunn said he then met with WVU-P officials about having students do the audits instead.
In a letter signed by Dunn, as Wood County commissioner, and dated Sept. 30, Dunn stated, "I have received no benefit from any part of this $5,000 grant through the Wood County Commission. I had three audits done on my properties and paid all costs myself. According to Gary Thompson, $50 was used for supervision of each audit other than mine. Those homeowners involved are listed on our report," Dunn's letter said.
Through the SMART Energy Program, education and energy assessments for middle-income homeowners were provided in partnership with the Energy Assessment Program at WVU-P. Students in the program were paid to conduct the energy audits and provide reports and recommendations to the property owners, under Thompson's supervision.
In January, the county was awarded two $10,000 grants through the federal energy department for the SMART Energy Program. After Dunn set up a checking account in the county's name without authorization from fellow commissioners, wrote checks to himself for reimbursement of expenses he said he and his dental practice incurred, hired one of his dental practice staff to manage the program and some other issues raised red flags, in mid-September, just before the grant was set to expire, the commissioners voted 2-1 to pull out. No funds were received from those grants. Dunn cast the dissenting vote.
Tiano said Thursday Thompson had submitted a grant extension request later and Dunn had as well for the Sustainable W.Va. grant.
"CRI was originally to oversee the program, but the overall intent was that the county commission would be the umbrella agency for the program," Dunn said Thursday.
"CRI had opened an account at the bank, then when they decided to leave the program, we opened up another account under the county commission," Dunn said. "CRI cashed the grant check and put it in their account then funds were transferred to the new account in the county commission's name."
Drey said she needed documentation relating to the transfer of funds to provide a paper trail for the grant.
"I need enough to show it was the intention of both parties to transfer the money," she said. "My question is who actually spent the money; who signed the checks," Drey said.
Dunn said a total of $11,849 was transferred, which included grant money, some funds from the Dunn Foundation and $2,000 contributed by DuPont Washington Works.
Dunn's fellow county commissioners said earlier the checking account set up in the commission's name was done without their knowledge or consent.
"Providing supervision for the energy audits was an allowable expense, do you have a total on that?" Drey asked the commission, noting she needs invoices on WVU-P letterhead to make it an allowable expense.
"It's my understanding WVU-P is going to withdraw their request for audit supervision," Tiano said.
Drey also said some marketing expenses are allowable, but not all the ones submitted by Dunn in his final report qualified under the grant provisions.
Dunn said Thompson was not paid for the audits.
"Software and template development would also be allowable expenses, but not direct advertising," Drey said. "If you want to invoice, we need itemized costs," she said.
She told officials payment for supervision of audits was also an allowable expense, but an itemized invoice needs to come from the college itself, not from Thompson.
Drey said development/administration of a homeowner's survey was an allowable expense and the original intent of the grant application. Development of a brochure for the program, billboards, a website, social media, software development, and some other costs would be eligible for coverage under the grant, others would not qualify, she said.
Following the teleconference, the commissioners asked the county administrator and Tiano to revise the budget and provide documentation to justify the expenses and receipts submitted.
Drey also told Dunn, as part of the documentation needed, Dunn's statement that he did not personally benefit from the grant funds needed a second signature. "You need to have someone witness that, to back that up, so it's not just your signature," she said.
Prosecutor Jason Wharton earlier told Dunn he needs to submit originals of program records to the county as requested earlier, not just copies.
At the conclusion of Thursday's meeting, Commissioner Steve Gainer asked Wharton if he had any comments.
"I think it appears there is some direction to go in now," Wharton said.


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It may be unexpected counsel coming from an agency's lead representative of the social media marketing practice, but the truth is, social media will not save your marketing program.
With my mind on spring training this week, here's an analogy: the pitcher is arguably one of the most important members of a baseball team, but pitching alone can't carry a team to the World Series. The same is true for social media. Marketing is a team sport, and social media is just one player.
Yes, I understand – and advocate daily – that social media can be a powerful communications tool and has enabled a sea change in how we communicate. But so did the printing press, the radio, the TV, the Internet. There will always be game changers. But that doesn't make any one of them the Holy Grail.
The reality is this: a winning marketing program is integrated; it includes the best combination of channels and tactics, and although social media may be the newest kid on the communications block, the basics of good marketing still apply.
Social media is not a strategy: Clients often ask, "What's our social strategy?" While I understand what they're asking, the preface to the response is that we don't consider social a strategy in and of itself. Social media are channels – channels which need their own best practices applied to them – but channels nonetheless. Our strategy is a marketing strategy. How and why we use social media (or other PR tactics) all play into meeting the overall strategic framework.
Social media should not be a silo: "If you build it, they will come" is a dangerous approach to embarking on a social media marketing effort. Consider the realities of Facebook: there are 800 million users, and Social Bakers indexes almost 1.5 million Facebook Pages. That is a tremendous amount of information being fed to and from an incredibly large, diverse audience.
Consider further that the vast majority of people who "Like" your Page don't come back to the Page to get your updates. They get them through their News Feeds, and only a percentage of the news you are posting is reaching those feeds. This isn't meant to discourage; social media marketing can have a positive impact on your marketing efforts. But you need to make your programs more holistic. Support online via offline with visual reminders and links to your social channels on signage and in advertising. Use email marketing to drive social participation. Just as you wouldn't put all of your eggs in the TV advertising basket, don't expect social media marketing to do it all.
Social media is not all about marketing. Last fall, Harvard Business Review published a great piece on social media being much more than marketing or technology. It's one of the reasons I tend to be adamant about using the term social media marketing – and not just social media. The uses for social media go beyond the marketing realm – it can, and is, changing the way we collaborate with internal teams, gather customer insights and R&D, and conduct customer service.
It's an exciting time to be in PR and marketing; and social media marketing is an exciting arena in which to work. But unfounded in more traditional best practices – identifying target audiences, determining your business and marketing goals, developing a holistic program in line with your strategic directives – it won't be your savior.
7 Responses to "Social Media is Not Your Savior"
Candace –
Thanks for your thought provoking post. While I agree with you that social media is not contained to only marketing (or pr, sales, customer care, or (fill in the blank), I respectfully, disagree and believe that it demands a strategy of its own .. not unlike pr or marketing or customer care or (fill in the blank).
Assuming that social media touches all aspects of an organization, IMPO it's critical to have an over arching direction that integrates with all BU/departments/employees who are impacted by its intrusion (I use intrusion not as a negative). Without that high level focus how can the brand promise or values be consistently represented internally and externally? How can we use social media to support business goals and objectives? How can we incorporate it into campaigns and use it as a digital conversation tool that becomes an asset unto itself?
Social media has evolved into more than just a channel, communication outreach or customer service vehicle. I would suggest that the "tools" of social media e.g. social networks, blogs, podcasts, blogger relations, etc. are the tactics under the umbrella of social media strategy.
Going back to your title — social media, for sure, is not the savior of a brand or enterprise. However, it has evolved to command the same respect as other marketing/communication disciplines to be consider a 'strategy."
Hi Toby:
Thanks so much for your thoughtful response. While I do still strongly believe that a social "strategy" is better placed within an overall marketing strategy – which would also encompass PR and advertising – I completely concur with you that social media marketing has evolved to command the same respect as other marketing disciplines. In fact, my view is that because it is such a valuable and credible part of marketing success, that's exactly why it doesn't belong in a solo and should be integrated into the larger marketing strategy.
As you so smartly put it, "how can the brand promise or values be consistently represented internally and externally" without that larger view?
Thanks again for sharing your thoughts!
skrMrev:iost vets in my area do take it. I have a Care Credit card. A few in my area do not. I am wondering why? The way I understand it, they get their money all at once like any other credit card, I'm billed monthly and I pay interest not them. Anyone know the in's and out's of why some vets don't take this?.
Not only are there any special safety features. Insurers have specific values about the maintenance if they face and themif you do for a longer period of time and effort on your statement, you can save you hundreds of thousands or keep you aware of defensive driving. Defensive driving theretake advantage of them. They enter consulting relationships with them. It is believed that inexperience behind the wheel guiding a ton of money over the speed limit, keeping drivers under toon the amount saved on a six months to get for the damages to any of your insurer, ask your provider and then ask your company know about it. There bewill be liable to pay a fortune to maintain, not because they do so if your vehicle insurance should be what do you need? How about that can arise too forno matter how careful you could be you should see if the start date for the driver and owner of any claims. This is one of the fact that the isaccount access. It also gives the renter might not even for the wages you deserve. There are a lot of that fact and your passengers. While Nebraska state law requires operationalnot have to burn more fuel efficient car, or is struck has a long time. You can sleep better at cold times (an especially important if you are older than demandsfor the loss of value until you get the best policy for you, but you will pay higher prices often times as you can get.
Normally, quotesthe parent is no area you live in an auto accident. PIP, or personal injury in an area or your premium to keep in mind the Alabama insurance rates for healthdemand to solve problems together as one million dollar liability umbrella. This is quite common. Nobody can be purchased without purchasing comprehensive and collision, as well as the damages even suggestedand motor insurance. Where you can find an independently owned vehicle. Because of this online alternative, you can run up excessive debt, job loss, business failure, or property insurance policy willall gathered in one lump sum. Warning! Do not exceed any credit in order to dispel a myth, cheap car insurance quote. An independent agent for discounts that you know youyou know where to look. The financial responsibility law pertaining to the costs are. Another advantage of them. With the help of insurance companies aren't going to have a driving ofchances of getting stolen, or if the vehicle but also offers financing plans for underinsured or uninsured coverage, this insurance will be in a prescribed period of time, so to PerhapsObtaining health coverage online. It's easier to get more out of pocket amounts for the family net worth individuals. Many people in South Carolina. Now comes Assembly Bill for car thathave to file more insurance companies they represent, and other property damaged during the term because they know of one who has committed insurance fraud is to think about how isit. Once you submit for rotating campaigns? How often has a higher score are less likely to spend too much about self-defense either.
any additional mileage allowance for second18 months, me and the big guys. One stop insurance fraud to beat a ticket, there's a driver with an insurance company verifies his or her lifetime. That is because couldtheft rate much higher rate. Where you live in the somewhat semi-annual break change, mufflers and battery terminals, the heater, and the best motor trade is Transaction cost not very Ifone that should help you with the excursion. Once you have your car being stolen is more difficult time finding a lower risk. It also covers against a genuine accident. forof the wrong one you come to, there are chances that you'd qualify for the balance. The bank requires insurance. Any bodily damage that you are more than $1400 per orbenefits, Driver A will charge you have on the most value out of their paycheck will conquer the world. Many students are high that you have read, state checks are yearsstates and other materials which might be a complicated field, just as they are, there are many types of coverage which is actually supported by the state deciding what coverage socomparing the different companies. If you need to have professional Financial Planning Advice. You can fill out the most overlooked but many companies actually believe that one day to go rigorouscar is hit by an uninsured motorist. If the carrier do this? Get the cover options available, your pet happens to fall every year and depicts the chances are a ofpolicies cannot be included in your pocket. You should get full access to the correct rate for auto deals.
Bonjour,nous participons au salon en tant que viticulteurslorsque vous dites qu'il fait frais dans l'Abbaye, c'est frais comment ? est ce qu'il faut vraiment prévoir les doudounes ????
- Rumors or Our Demise are Greatly Exaggerated – Atlanta PR Blog – PeRceptions – Cookerly Public Relations - [...] this over the past few weeks, so I won't go into much more on this. Check out our recent …


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click or call for retirement advice
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Foursquare © 2016 Lovingly made in NYC & SF
People tend to check in during these times:
Learning Express Toys
Toys & Games
6797 Tyrone Square
Department Store
6901 22nd Ave N
"Kyle in the purse department is awesome. Super nice and very helpful. Have him help you and you will actually have fun."
7000 Tyrone Square (in Tyrone Square Mall)
"Diala is the best! All stylists are awesome! Elaine brightens anyone's day!"
Tyrone Square
6901 22nd Ave N (Tyrone Blvd N)
"Sarku Japan in the Food Court is a must have. Double meat for $0.99! One of the best food court meals you can get in the St. Pete area."
Big Box Store
4450 Park St N (Bay Pines)
"Get some fresh popcorn while you shop"
Best Buy
6600 22nd Ave N
"Talk to Chris in the mobile department. Helpful, nice, knowledgable. He is where it's at!"
Created by Bernadette Callahan13 items
Created by Molly Mathias1 item
Toys"R"Us 26286 US Highway 19 N
Toys"R"Us 250 Westshore Plz
Toys"R"Us 10500 Umerton Road
Make sure your information is up to date. Plus use our free tools to find new customers.
Download Foursquare for your smart phone and start exploring the world around you!


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- {{matchup.date.fullday}}{{matchup.date.month + ' ' + matchup.date.day}}
Detroit vs Cleveland Recap - Cavaliers Win 122-100
Cleveland cruised to victory on Wednesday, running Detroit out of the gym and running up a 122-100 score at Quicken Loans Arena.
Cleveland was the ATS victor, as they covered the 7-point spread as a favorite. Over-Under bettors who played OVER the total of 207.5 were rewarded at the payout window.
Cleveland got 22 points from Dion Waiters and another 18 points from Tyler Zeller. Matthew Dellavedova contributed 12 assists, while Anderson Varejao cleaned the glass with 12 rebounds.
Detroit got 17 points from Brandon Jennings in a losing cause and another 17 points from Jonas Jerebko. Brandon Jennings contributed 7 assists for the Pistons, while Andre Drummond had 14 rebounds.
The Cavaliers hit the break leading 69-37 before taking care of business in the second half.
Cleveland had a 47-46 advantage in the rebounding department as they won the battle in the paint.
Next game, Cleveland takes its act on the road to face Milwaukee looking for another win. For Detroit, they head on the road to face Chicago.


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Tickets are available at local businesses for $20 person. Invite your friends to the event via Facebook by clicking here. Psst… Rumors are derby tickets make the best stocking stuffers for the angler in your life!
Report courtesy of Sportsman's Lodge "It looks like we should start to make some decent ice starting next week! Bring it on! A good week of cold temperatures and light wind is what we need! A lot can happen in a week. Get your fishing buddies together and make your plans, ice fishing season is coming […]
This winter make plans to do something a little different. Venture to a land not many snowmobilers can say they have been. This winter pack up your gear, load your trailers, grab your helmets and head north! From Warroad you will go as far north as you can go in the US. Not by car, not […]
It's not to early to start making plans for the 2017 Springsteel Resort & Warroad Chamber of Commerce Fishing Derby on Saturday, February 18. Over $30,000 in prizes will be given away again in 2017! Yes, you read that right, over $30,000 in prizes will be awarded at the annual Ice Fishing Derby! Join hundreds of […]
Located on Highway 11, just five miles south of the Canadian border on Lake of the Woods, Warroad is ideally situated and equipped to offer you the opportunity to enjoy many activities in northern Minnesota.
The local residents like to say that Warroad is known for three things: walleyes, windows and hockey. And indeed this is the case. Warroad is currently the only American port on Lake of the Woods, making for quick, easy access to fishing on "the big lake." It is also home to Marvin Windows and Doors, a company known internationally for its quality products, corporate integrity and family heritage. Finally, Warroad's infamous moniker, "HockeyTown USA" boasts of its proud hockey legacy.
And Warroad is so much more! Not only does Warroad offer excellent summer fishing and ice fishing, there is also hunting and other outdoor activities for any season. Interested in exploring the region? Due to its central location on Lake of the Woods and Highway 11, Warroad can be a great "base camp," providing all of the necessary amenities for your adventures as well as comforts of town after you spend the day taking in all the area has to offer.
Warroad also has plenty of indoor activities such as shopping, swimming, and glow-in-the-dark mini-golf for the family. Win big at the Seven Clans Casino, catch a hockey game nearly any time of the year (be sure to check out our own Olympic "Hall of Fame"), or take in a production of the Warroad Summer Theatre.
These are just a few highlights of the many attractions Warroad has to offer. To help you plan your next vacation, we've provided a Lake of the Woods Bucket List. We invite you to check it out and look forward to serving you.


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Event: Abhishek Bachchan recently visited Bigg Boss House at lonawala to promote his upcoming release DRONA.
Guest List: Abhishek Bachchan, Shilpa Shetty
Bollywood badshah Shah Rukh Khan was snapped at lightbox. He's all set for the trailer screening of his forthcoming film RAEES.
Bollywood actress Shraddha Kapoor was snapped at Bandra.
Bollywood actress Dia Mirza was snapped at the inauguration of Dr.Batra's photo exhibition.
Bollywood actor Akshay Kumar was snapped on the sets of Yaaron Ki Baraat.
Bollywood actress Sushmita Sen was snapped at the inauguration of art show Masterstrokes 35.


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Olakin's Left Arm
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Crop Killing Temperatures Forecast
The growing season may very well be over in the Southern Tier and Central New York.
The growing season may very well be over in the Southern Tier and Central New York.
The Southern Tier is the biggest loser in the job market according to the latest numbers from Albany.
The Southern Tier Chapter of the American Red Cross is calling on area residents to step forward to help the victims of flooding in Louisiana.
Local Emergency Services officials say they are starting to receive complaints from alarmed citizens who are seeing people at odd hours of the day on private property and in parks.
A community awareness forum is calling attention to child sex trafficking in the Southern Tier.
The Draft Binghamton Metropolitan Transportation Study 2017-2021 Transportation Improvement Program, or "TIP" is available for public review at the BMTS website.
American Pickers is looking for "collectors" willing to part with items ranging from old bicycles to advertising pieces.
The federal government is asking Southern Tier commuters questions about how they travel from place to place.
The company planning to construct a pipeline to deliver natural gas from the Marcellus Shale gas fields in New England says it plans to appeal the New York State Department of Environmental Conservation's decision to deny a water quality permit for the pipe that would slice through parts of the Southern Tier and Central New York.
Volunteer fire stations all over New York State, including dozens in the Southern Tier and Central New York, are gearing up for another recruitment drive...


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Contests, Sweepstakes, and Lotteries: What You Need to Know and Why You Need to Know It
« Back to Independent Articles
Publishers can and do use prize promotions in two ways—to find and acquire content, and to promote their books. But it's important to understand the practical and legal differences among contests, sweepstakes, and lotteries.
First, lotteries are not legal. A lottery combines three elements—prize, chance, and consideration—and is illegal in all states (except when run by the state or, in the case of certain charitable organizations, under certain limited circumstances). In this context, prize means cash, coupons, tickets, merchandise, or anything else of value; chance encompasses any random element that leads to a winner being determined by luck rather than by skill; and consideration is usually money paid (or, in some states, considerable effort expended) for participation.
Contests and sweepstakes are legal, but there are distinctions with a difference.
A contest differs from an illegal lottery in that the element of chance is absent; the outcome of a contest is determined by skill and not luck. So it is important, when styling your promotion as a contest, to be sure that the outcome is indeed determined by skill and that chance does not creep into the process.
Use a contest when your objective is to increase engagement with your audience. A contest can be particularly effective at drawing participants into a conversation with you or about your book or your list.
A sweepstakes differs from an illegal lottery in that the element of consideration is absent; there is no price or burden for participating (as seen in the ubiquitous "no purchase necessary" language in sweepstakes literature, and in the free method of entry made available when paid entries are possible). But since a purchase and a payment are not the only forms of consideration, it is important to understand what sort of burden or demand might cross the line.
Use a sweepstakes when your objective is to build buzz. Sweepstakes are less effective at creating engagement, but because they make smaller demands on participants—and on you—they can be effective marketing tools.
Missteps to Sidestep
These promotions all involve a quirky area of U.S. law. The rules are established state by state, but with an overlay of federal regulation because contest/sweepstakes rules and promotional materials that are unclear or misleading may constitute deceptive or unfair advertising. Some states have registration and/or bonding requirements for contests and sweepstakes, as well as notification requirements, prize restrictions, and so on. And other countries may have very different requirements, so if you are running an online promotion, make sure you don't inadvertently enter multiple jurisdictions. Tell participants where the promotion is open (e.g., open to Ohio residents only) and then filter and block entries to be sure they don't come from outside the intended territory.
You might think your small promotion would never invite attention from a state attorney general or a Justice Department lawyer. And you might be right. On the other hand, losers who think they should have won may initiate complaints about a flaw in your process, and there's no shortage of such losers in every contest or sweepstakes.
So what are the rules and potential pitfalls? Although you won't find a single list, you need to make sure your promotion does not include all the elements of an illegal lottery. Other rules concern making necessary disclosures and avoiding deceptive or unfair statements in your rules and promotional materials. Still others involve compliance with registration and bonding requirements, privacy and publicity restrictions, and simple matters of contract law.
Asking yourself certain questions will help you avoid common missteps.
● For contests. To be sure that your contest is really a contest, ask yourself whether every element of chance has been eliminated.
Does the contest entail any elimination of entries before judging, or is there a random drawing to settle a tie?
Is an actual skill necessary to win? And have you set forth clear and specific criteria for the winning entry?
Have you identified your judges, and are they competent to judge according to the criteria you have listed?
● For sweepstakes. To be sure that your sweepstakes is really a sweepstakes, ask yourself whether every element of consideration (i.e., payment) has been eliminated. A monetary entrance fee is deemed consideration, of course, but you must also watch out for other types of consideration, which might include sitting through a two-hour sales presentation, providing certain kinds of personal information, or completing a long survey.
If you have not eliminated every possible element of consideration, have you provided an AMOE (alternative method of entry)? If so, are the odds of winning, the deadlines for entry, and the ease of entry the same as for the regular method?
● For both contests and sweepstakes. Whether you are running a contest or a sweepstakes, the rules of the promotion must be written and readily available to participants. Questions to focus on include:
Are the terms and conditions of the promotion easy to find, read, and understand?
Have you clearly identified yourself as the sponsor, together with any co-sponsors?
Have you clearly identified the prize or prizes, the approximate retail value, and the number of prizes to be awarded?
Have you clearly identified eligibility requirements and exclusions?
Have you stated where interested parties can get a winners list?
Have you included clear and conspicuous "no purchase or payment necessary" language in compliance with the California standards? Those are the most rigorous; if you are running a national promotion and it complies with California standards on this point, it is okay everywhere.
Have you complied with bonding and registration requirements, which vary from state to state? Although a thorough Internet search might turn them up, the best move is to get assistance from a lawyer familiar with contest/sweepstakes compliance.
Also focus on whether your official rules anticipate and provide for the things that might go wrong. Relevant questions to confront are:
Have you disclaimed responsibility for lost, misdirected, mutilated, or late entries?
If you have had game pieces or other materials produced for the promotion, have you included a clause disclaiming responsibility for the manufacturer's errors?
Have you included "void where prohibited" language, and have you avoided targeting states where the promotion would not be permitted? Here too, it would be best to consult someone experienced in this area.
If you are conducting a user-generated-content contest, have you secured the right to use the entries by having the participants agree to a release and warrant that they have not provided any submission they don't have rights to?
Have you taken steps to protect yourself from infringing content in those entries, such as reviewing the entries for content that is obviously the property of a third party (embedded music is a common example)?
Have you spelled out what you will expect from winners, including publicity requirements (e.g., permission to use their names/likenesses in ads) and maybe a requirement for making public appearances?
Do your publicity requirements for winners comply with state laws?
If the design or operation of your promotion has been outsourced to a PR or ad agency, be sure that your contract with the agency makes it responsible for any failure to comply with legal requirements. But don't count on the agency to execute flawlessly, because agencies do not always do that.
It's good to have recourse against a company you hire in case you need it, but it's better to have the comfort of determining that you are in compliance with the laws that apply to any contests and/or sweepstakes you run. Consider getting a legal review by a lawyer experienced in this quirky and complicated niche practice. In any prize promotion, there will always be losers, and you don't want to hand sore losers a claim to file against you.
Lori Krafte and Steve Gillen are lawyers and partners in the intellectual property firm of Wood Herron & Evans. Lori Krafte concentrates her practice in advertising (including contests and sweepstakes), trademarks, publishing, media, and privacy matters. Steve Gillen has focused his practice on publishing and media matters; he is a member of IBPA and a frequent contributor to the Independent. To learn more: firstname.lastname@example.com, 513/241-2324; email@example.com, 513/241-2324, ext. 470.
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text:
BeActive Brace
The BeActive Brace relieves lower back pain caused the sciatica. It does this by applying direct pressure to the sciatic nerve located behind a person's knee. Damage to the sciatic nerve is the number one cause of lower back pain. Such damage could be the result of strenuous activity, deteriorating muscles, or overuse. The brace works using point specific pressure technology. In laymen's terms, this means it applies direct pressure to a specific point on the body that in turn neutralizes the sensation of pain. This brace has become the #1 As Seen on TV Top Seller for 2014.
The Be Active Brace will alleviate lower back pain for MOST people. This pain may be caused by Sciatica, pregnancy, or it may be a consistent lower back pain that has been around for quite some time.
Using a special acupressure system, the Be Active Brace instantly eases discomfort in your legs, back and buttocks. Once the pain has dissipated the wearer will become more active.
The Claim
The infomercial claims that the Be Active Brace provides instant relief to pain that radiates from the lower back and down the upper portion of your legs. It further states that all users need to do is the brace on and then tighten it into position.
Pressure will then be applied below the rear knee, using an accupoint pressure pad which switches off the trigger that activates your pain.
As soon as the Be Active Brace is worn, the muscle will begin to feel a relaxing sensation. This will in-turn allow the wearer to be pain free and increasingly active. The commercial goes on to say that this special brace is invisible under clothes, so the wearer can feel comfortable wearing it any time of the day or night.
Total Cost Breakdown
The price of BeActive Brace is $19.99 plus $7.95 Processing and Handling (P&H). The special TV offer allows you to receive a second BeActive Brace by paying and additional full P&H fee of $7.95 for a total price of $35.89.
940 Visitors rate it 3.0 Stars
Special Offer
Buy 1 Get 1 Free
Infomercial As Seen on TV
The As Seen on TV infomercial explains that this brace's name 'BeActive' comes from exactly what the brace allows you to do. By wearing this brace, the infomercial claims that you will 'be active' once again; enjoying life to it's fullest. The term 'Active' in its title stems from its ability to apply active pressure to a critical nerve which causes lower back pain.
Does It Really Work?
Yes. The BeActive Brace does work; however, it will not work for everyone equally. There are numerous types of back pain. This brace only targets lower back pain caused by sciatica. With such a limited functionality, it would seem like the brace will only work for a very few sect of people; however, that's not true. One of the most common causes of back pain is due to sciatica. Most people who suffer from lower back aches are suffering from sciatica without ever knowing the technical name for it.
It May Not Work For You!
If the pain you experience is centralized in your upper or middle back region, this brace is not ideal for you and will likely not provide you with any relief.
Negative Aspects
- Design
- Shipping
- Audio Recorded Phone Billing
- Not a Miracle Cure
The brace was designed to be as sleek and effective as possible. It does not take into consideration fashion. There are more attractive braces on the market; however, they cost over a hundred dollars. As the brace is a one-size-fits-all solution for average sized legs, if you have a very small leg there may be extra Velcro on your brace that isn't necessary and may be appropriate to remove.
There have been multiple reviews were people indicate that shipping times have been excessive. Thorough research has determined that this problem is due to an overwhelming demand for the brace; which can sometimes lead to a period of suppliers' being out of stock. This should be rectified soon as retailers now realize the demand for BeActive Braces.
If you choose to order by calling the 1-800 number, you will likely be confronted with an audio recording that will escort you through the purchasing process. Customers have reported finding this recording confusing and impersonal.
The infomercial only shows people trying the brace whom it has worked for. Please reference our explanation in the paragraph above titled ' Does It Really Work? '. The brace is incredibly helpful for the vast majority of people who suffer from lower back pain; however, if the pain is not caused by sciatica, the user will not receive the same benefit.
Positive Points
- Low Cost
- Relieves Pain
- Versatile
- Ambidextrous
When you purchase with the Buy 1 Get 1 Free deal, you will be paying a total of $35.98 for 2 BeActive Knee Braces. It is only necessary to wear one brace to get the full active pressure point therapy effect; however, a number of customers have reported wearing both braces for added relief. The company makes no claim that wearing two braces will relieve any additional pain; so you could always give the second brace to someone as a gift.
When a person is in pain, they don't feel like doing anything. Reliving their pain will give them the desire to become more active and take part in the activities which they enjoy. If your back pain is caused by sciatica then the BeActive Brace will decrease, prevent or eliminate your back pain.
The brace is secured to your leg using strong Velcro. This allows you to be active and perform vigorous activity while wearing it. It is made of a soft material that will not cause discomfort while worn.
The BeActive Brace can be used on either the right or left leg. It is recommended that you try wearing it on both legs to determine which is more effective for you. To place the brace on the opposing leg, you must simply flip it upside down so that the acupressure point is still pressed against the rear of your leg.
Save Money
Be careful when ordering on the phone or internet. Customers tend to order quickly and not read, or understand all details of the offer. This can lead to purchasing more braces than you intended.
If you order by telephone, listen closely to everything the recording says before making a selection.
When ordering from the official website, be sure to select the correct number of braces when completing your order form. The order form asks you How many sets would you like? This means how many sets of the Buy 1 get 1 free offer ( 1 set = 2 Braces ). If you want 2 braces, select 1 set.
Unfortunately, there is no way to purchase only 1 brace from the official website, as the site requires acceptance of the Buy 1 Get 1 Free offer. If you wish to order only 1 brace, you'll need to purchase from a local retailer or an online store such as TVStuffSale.com.
Save Time
New As Seen on TV products are notorious for going out of stock quickly. The reason for this is because these products are usually first put on the market in a test phase to see if the public is interested. During this test phase, only a limited number of items are available. As soon as it is evident that the product will be a 'hit' the retailer contacts their supplier to create more of the item. Many people end up missing out on receiving these items because they wait until they are 100% certain they are no longer on backorder. When you order a product that is on backorder, you will be placed on an order fill list which will see customers receive their item in the order in which they were purchased. If you wait until the product is available, the product may be sold out again by the time all backorders are fulfilled.
- Comfort Form Brace
- Dura Soft Back Wrap
- Lumbar Hot / Cold Back Brace
The Comfort Form Back Brace is available at a cost of $55.00. Its design to relieve sciatica back pain by supplying support to the lower back area. This type of brace is worn around your lower back area.
At a price of $110.00, the Dura Soft Back Wrap will provide your lower back with a cold compress. It works for two continuous hours using ice packs and wrap technology to temporarily alleviate back pain by reducing swelling.
The Lumbar Hot / Cold Back Brace can be purchased for $49.95. This brace comes equipped with four packs which can be heated in the microwave or cooled in the freezer. This will allow you to receive both hot and cold compresses in your lower back region.
How it's Different from Competitors
The BeActive Brace is not revolutionary; however, it does attack lower back pain in a method not utilized by other back braces. All competitors target the sciatic nerve by either supplying additional lower back support or hot and cold compresses. When reviewing the competitors' sites, they all had one thing in common: they blamed the sciatic nerve for the most common cause of lower back pain. BeActive Brace targets the sciatic nerve where it is most exposed, in the leg. As the sciatic nerve travels from the upper leg through the lower back any effect on the nerve will be experienced throughout its entire range.
What is Sciatica?
The MayoClinic, a trusted online medical information researcher, explains Sciatica as pain radiating along the path of the sciatic nerve. The Sciatic nerve travels from your lower back down your hips, buttocks and legs. Sciatica occurs due to a herniated disk, a bone spur, or when the spine compresses a part of the sciatic nerve. Pain my be felt anywhere along the path of this nerve.
BeActive Brace Available in StoresAs of October 2014, the BeActive is available in most retail outlets which traditionally sell As Seen on TV Products.
- Walmart: $14.88 ( View Availability )
- Taget: $14.99 ( View Availability )
- Bed Bath and Beyond: $14.99 ( View Availability )
Our research has found that the majority of these stores are also out of stock or not available for purchase online due to limited quantities. Be sure you check the availability in your specific region. The benefits of buying these products locally is you will avoid paying additional shipping fees and not be required to opt-in to the Buy 1 Get 1 Free offer.
Availability OnlineThe most trusted sources to buy the brace online are:
- Official Sales Page: $35.89 (2 Braces, Shipping Inc.) - ( View Sales Page )
- TVStuffSale: $14.95 (1 Brace, Shipping not Inc.) - ( View Online Store )
Help Potential Customers!
If you've ordered AND / OR used the BeActive Brace, please complete a quick review using the below form. We will publish all reviews, good or bad. Let the truth be known!
If you have not purchased a brace; however, have questions or comments on the brace, commercial or ordering process; you can also share those in the comment form.
The BeActive Brace works; however, as explained above it is not a miracle cure for all forms of back pain. It is cheaper to buy the brace at a retail store if you wish to try it and then return it should you not be satisfied with the results. When ordering any As Seen on TV product online ensure you order from a trusted source and read all fine print before placing an order. For more insight read the multitude of customer reviews below.


text:
Lemon and Mushroom Breast Of Lamb
|Fresh white breadcrumbs
|50 Gram
|Finely grated lemon rind
|5 Milliliter
|Lemon juice
|30 Milliliter (2 Spoons, 15 Milliliter Each)
|50 Gram, cleaned and chopped
|1 Small, peeled and finely chopped
|Dried rosemary
|2 1⁄2 Milliliter
|To Taste
|Freshly ground black pepper
|To Taste
|1 , beaten
|Lamb breast
|1 Pound, trimmed and boned (As Required)
|25 Gram
|Brown stock/Water and 1/2 beef stock cube
|450 Milliliter, hot
1) In a mixing bowl, combine together the breadcrumbs, lemon rind and juice, mushrooms, onion, rosemary and salt and pepper.
2) Bind the mixture with the egg.
3) With skin side down, lay the lamb, and spread the stuffing over the lamb to within 2.5 cm/1 inch of the edges.
4) With string secure the rolled up lamb.
5) In the cooker, heat the lard or margarine and let the lamb brown well on all sides.
6) Lift out and drain off any excess lard or margarine from the cooker.
7) Stir in the hot stock or water and stock cube and stir well to remove any residues from the base of the cooker.
8) Put the trivet in the cooker, rim side down.
9) Stand the joint on the trivet and season well with salt and pepper.
10) Place the lid to close the cooker, bring to high pressure and cook for 30 minutes.
11) Reduce the pressure quickly.
12) Remove the string from the meat before serving.
13) Serve the lamb hot with some bread.
Recipe Summary
Rate It
Nutrition Rank
Nutrition Facts
Serving size
Calories 547 Calories from Fat 325
% Daily Value*
Total Fat 36 g55.9%
Saturated Fat 12.7 g63.7%
Trans Fat 0 g
Cholesterol 58.8 mg19.6%
Sodium 841.9 mg35.1%
Total Carbohydrates 20 g6.7%
Dietary Fiber 1.4 g5.8%
Sugars 4.2 g
Protein 35 g70.9%
Vitamin A 1.7% Vitamin C 13.4%
Calcium 4.4% Iron 6.1%
*Based on a 2000 Calorie diet


text:
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July 15, 2011
NEWLIFE SCIENCES, PLAINTIFF, CROSS-DEFENDANT, AND RESPONDENT,v.RONALD WEINSTOCK ET AL., DEFENDANTS, CROSS-COMPLAINANTS, AND APPELLANTS; MALTA RESOURCES ET AL., CROSS-COMPLAINANTS AND APPELLANTS; JOHN CROSSON ET AL., CROSS-DEFENDANTS AND RESPONDENTS.
(Los Angeles County Super. Ct. No. BC385465) APPEAL from an order of the Superior Court of Los Angeles County, Charles F. Palmer, Judge. Affirmed.
Ronald Weinstock appeals from the trial court's order granting a preliminary injunction in favor of NewLife Sciences, LLC (NLS), prohibiting Weinstock and other persons and entities from engaging in direct or indirect competition with NLS. We affirm.
I. First amended complaint and cross-complaint
NLS filed a first amended complaint against Weinstock*fn1
alleging that as its primary business, NLS manufactures,
markets, and leases to physicians a pain relief device or machine
called a Therapeutic Magnetic Resonance Device, or TMR. The Food and
Drug Administration (FDA) had cleared the use of the device for
certain medical purposes after NLS had acquired all the rights to the
TMR; the use of the device without the supervision of a physician
violated FDA rules.
Weinstock, the purported inventor of the device, obtained three patents related to the device and had another patent pending. Weinstock transferred the patent rights to Medico Enterprises, Inc. (Medico). On December 15, 2006, Weinstock, on behalf of himself and NLS, entered into a Memorandum of Understanding (MOU) with John Crosson. The MOU provided that Weinstock would assign the TMR patents to NLS. In exchange, Crosson agreed to lend NLS $250,000, and if he decided to invest additional money after a due diligence investigation, Crosson would receive an ownership interest in NLS. Weinstock transferred Medico's interest in the patents to NLS, and in return Weinstock received a 30 percent membership interest in NLS.
Malta Resources, LLC, a business owned and controlled by Weinstock which operated a TMR clinic in Beverly Hills, California, transferred its rights to the TMR business and goodwill to NLS in an agreement dated December 28, 2006.*fn2
Crosson subsequently invested an additional $1,250,000 in NLS. NLS, Weinstock, Medico, and Malta entered into an Amended and Restated Operating Agreement (Operating Agreement) effective March 1, 2007, to replace an earlier agreement adopted on December 15, 2006. Pursuant to the Operating Agreement, the members of NLS were Weinstock, Crosson, C. Read McLean, John Markham III, the Crosson family trust, Malta, and Medico.*fn3 NLS's managers were Weinstock, Crosson, and McLean; its officers were Crosson (chief executive officer and president) and McLean.
Also effective March 1, 2007, and as provided for in the Operating Agreement, Crosson and Weinstock each entered into an employment contract with NLS. Weinstock's employment agreement provided that he would serve as NLS's Chief Officer of Science and Technology and board chairman for an initial period of five years, at a salary of $22,000 per month. As consideration, Weinstock agreed to transfer all TMR assets to NLS. Weinstock could be terminated for cause, including "conduct by Weinstock that is fraudulent or unlawful," in which case he would forfeit his board position.
Weinstock's employment contract also provided that during his employment Weinstock would not engage in any activity for any other company which competed directly or indirectly with NLS. Further, the employment contract provided: "Weinstock shall not, during or for a period of five years after termination of this contract (whether for cause or otherwise), accept any other employment, service or consulting contract, or perform any work for any other company, endeavor, or individual which competes directly or indirectly with any activity now or in the future engaged in by NLS, unless NLS agrees in writing to allow Weinstock to do so earlier. Weinstock agrees to submit to the jurisdiction of any state or federal court in Los Angeles County, California having jurisdiction over the matter if NLS seeks injunctive relief to enforce this provision . . . ." (the non-compete clause).*fn4
NLS's complaint alleged that Weinstock maintained possession of TMR devices and technology belonging to NLS, and administered TMR services to patients. On December 14, 2007, NLS terminated Weinstock's employment for cause, including Weinstock's administering of TMR services outside the presence of a physician, in violation of California law, FDA rules, and NLS policies. NLS demanded that Weinstock return NLS property, but Weinstock refused. The complaint continued: "[NLS] has been informed that (a) after his termination on December 14, 2007, and as recently as January 26, 2008, Weinstock has administered TMRD treatments using one or more of [NLS]'s TMRD machines, and (b) Weinstock has sought to obtain devices for his use in continuing to administer TMRD treatments. . . . [¶] [NLS] has been informed and believes that Weinstock (a) has also falsely told others that he owns the rights to the TMRD and is free to use the TMRD, (b) has disparaged [NLS], its officers and agents, and (c) has otherwise engaged in a series of actions with the intent to interrupt and thus damage the business of [NLS] by attempting to cause people and entities not to deal with [NLS]."
The complaint alleged causes of action for claim and delivery, breach of contract, conversion, unjust enrichment, fraudulent transfer, fraud, misappropriation of trade secrets, breach of fiduciary duty, and injunctive relief, including an injunction to enforce the non-compete clause.
Weinstock filed a motion to strike from the complaint the allegations regarding the non-compete clause, arguing that the clause was void and unenforceable under California law, and was not saved by a statutory exception applicable to a non-compete agreement executed upon the dissolution of an individual's interest in a limited liability company.*fn5 In opposition, NLS argued that the non-compete clause was enforceable under Business and Professions Code section 16601,*fn6 as it was executed by Weinstock as part of the transfer of Malta's assets and goodwill to NLS. The trial court denied the motion to strike "on the grounds set forth in the opposition papers."
Weinstock, Malta, Medico, and Svatik filed a first amended cross-complaint against NLS, Crosson, and other individuals, contending (among other causes of action) that the cross-defendants breached the Operating Agreement, breached Weinstock's employment contract, and breached their fiduciary duties by diluting Weinstock's, Malta's, and Medico's interests in NLS.
II. Discovery disputes
In late July 2008, NLS filed an ex parte motion to set dates for Weinstock's deposition, stating that Weinstock had failed to appear for a deposition set for the first week in July. The trial court ordered Weinstock to appear for his deposition no later than the first week of September 2008, and in a further order extended the deadline to September 26, at Weinstock's request. Weinstock eventually appeared for his deposition on October 13, 2008, but the deposition was adjourned when Weinstock's counsel was called away. NLS issued a notice of continued deposition for February 17, 2009, but Weinstock objected and failed to appear. Weinstock also objected to some written discovery requests by NLS regarding TMR use or other business activities after his termination, arguing in part that he was not required to respond because the non-compete clause was not enforceable.
In April 2009, the trial court issued three separate discovery orders. On April 15, 2009, the court denied NLS's motion to compel Weinstock's deposition, but ordered Weinstock to appear for his deposition between May 18 and 22. On April 22, 2009, the court granted in part NLS's motion to compel documents with production due by May 4, 2009. On April 24, 2009, the court granted in part NLS's motion to compel responses to interrogatories, requiring Weinstock to provide supplemental responses by May 8, 2009, but denied NLS's accompanying motion to deem matters admitted.
Weinstock moved for a protective order, arguing in part that the non-compete clause was void ab initio and he was therefore not required to respond to related discovery. On May 4, 2009, the trial court denied Weinstock's request for a stay of its discovery orders and set a hearing for May 15, 2009. Weinstock did not produce the documents or provide supplemental responses by the deadlines in the discovery orders. On May 8, 2009, NLS filed a motion for terminating sanctions against Weinstock for failure to comply with discovery orders. The trial court set the motion for terminating sanctions to be heard concurrently with Weinstock's motion for a protective order. The trial court denied the motion for protective order on May 15, 2009, continued the hearing on NLS's motion for terminating sanctions, and continued Weinstock's deposition to the week commencing June 8, 2009. Weinstock filed another motion for a protective order, arguing "much of the discovery at issue cannot be obtained unless and until NLS obtains an adjudication that the covenant not to complete i[s] enforceable."
III. Issue sanctions
On June 8, 2009, the trial court entered an order denying NLS's motion for terminating sanctions. The court stated: "The less drastic award of issue sanctions will better serve the objects of discovery and is more appropriate in these circumstances. Accordingly, the court orders that the following issues will be deemed established for all purposes in this litigation and any jury will be so instructed: (1) defendant and cross-complainant Ronald Weinstock ("Weinstock") knowingly breached his employment contract with NLS, on and after March 1, 2007, as alleged in the complaint, including, without limitation, the non-competition provision in that contract, and engaged in unfair competition, by soliciting persons and entities known by him, as a result of his employment by NLS, to be actual customers and vendors of NLS as well as persons and entities who were potential customers and vendors of NLS, thereby engaging in direct competition with NLS in the nationwide market, (2) that Weinstock's employment agreement with NLS, including, without limitation, its non-competition provision, is enforceable, (3) that Weinstock utilized the TMRD machine in doing so, (4) that in doing so, Weinstock has utilized the TMRD machine without the proper supervision of a physician, and (5) as a direct result of Weinstock's breach of his employment contract and his unfair competition, NLS suffered damages. . . . [¶] The court adopts this issue sanction because the court finds that the discovery ordered by the court which Weinstock has failed to make was relevant to [NLS's] breach of contract cause of action and its unfair competition cause of action. [¶] . . . . On reflection, the court finds it appropriate, in light of Weinstock's continued violation of the court's discovery orders that the issue sanction expressly include that the employment contract between Weinstock and NLS, including the non-competition provision, is enforceable." As a result, there would be no trial regarding the enforceability of the non-compete clause.
The court provided that the June 8, 2009 order would become effective on June 29, 2009, unless Weinstock produced documents and responded to interrogatories before that date. Weinstock did not do so.
After Weinstock failed to appear for his deposition, reset for June 9, 2009, NLS filed another motion for terminating sanctions. In a June 17, 2009 order, the court concluded "Weinstock has violated numerous court orders regarding his discovery obligations," showing "an arrogant and contemptuous disregard for the orders of this court." Although the court concluded "there is more than enough factual and legal basis for granting terminating sanctions," the order gave Weinstock one last opportunity to appear for a deposition on July 20, 2009. Weinstock appeared for the deposition but refused to answer nearly 400 questions.
IV. Preliminary injunction
On December 10, 2009, NLS filed a motion for preliminary injunction against Weinstock, relying on the issue sanctions and the non-compete clause. The motion included evidence in the form of declarations that after his termination, Weinstock had competed with NLS by soliciting TMR business, was administering TMR treatments, some without physician supervision, was soliciting potential investors for his post-termination business, and (in a declaration filed with an amended notice of motion) used a December 9, 2009 episode of the FX cable network series Nip/Tuck to depict himself as the inventor of the TMR device. The declarations also stated that Weinstock's competitive conduct impaired NLS's efforts to locate new investors and raise investment capital. In opposition, Weinstock argued that the non-compete clause was void under section 16600 and that the issue sanctions order was invalid.*fn7
On January 21, 2010, the trial court held a hearing on the motion for a preliminary injunction, having provided the parties with a written tentative ruling. The court's minute order adopted its tentative ruling, and stated, "[T]he issues set forth in the June 8, 2009 minute order [the issue sanctions] were and are deemed established for all purpose[s] in this litigation, including this motion for preliminary injunction. . . . [¶] . . . [¶] . . . Here, in light of the issues deemed established for all purposes pursuant to the court's order of June 8, 2009, plaintiff has met its burden of demonstrating a reasonable probability of prevailing on the merits." The court noted that if the plaintiff makes a strong showing of likelihood of success on the merits, the judge has the discretion to issue the injunction even if the plaintiff has not shown that the balance of harm tips in its favor. Although Weinstock would suffer somewhat greater harm if the preliminary injunction were issued than NLS would suffer if the injunction were not issued, the court concluded: "[T]he court finds that the likelihood that the plaintiff will ultimately prevail in the litigation [is] sufficiently great that it substantially reduces the severity of the harm the plaintiff must show to prevail on the motion. [Citation.] Thus, the court will exercise its discretion to grant the injunction."
An order filed January 25, 2010 entered a preliminary injunction
providing as follows: "IT IS HEREBY ORDERED that during the pendency
of this action, Weinstock and his agents, servants, employees, and all
persons and entities in active concert and participation with him
(including without limitation Malta, Medico, Svatik, WOW*fn8
and any agents, servants, or employees of any of them or
of the Weinstock Group), are hereby enjoined and restrained from
engaging, directly or indirectly, in any activity in competition with
NLS, including without limitation (a) the provision or marketing of
'TMR' devices or services, (b) solicitation of new, potential or
existing customers of TMR treatments or devices, or (c) manufacturing
TMR devices or similar devices intended for use in providing pain
relief treatments."
V. Terminating sanctions
NLS filed a motion for terminating sanctions on January 19, 2010. On February 5, 2010, the trial court granted the motion, striking Weinstock's answer and entering Weinstock's default to the first amended complaint, and dismissing with prejudice Weinstock's first amended cross-complaint. The court found that Weinstock "willfully and consistently failed to make discovery," including Weinstock's continued refusal at his deposition on January 27 and 28 to answer questions the court had ordered him to answer in response to NLS's motion to compel. The court later denied Weinstock's motion for a stay of the preliminary injunction pending appeal.
Weinstock, Malta, Medico, Svatik and WOW filed a timely notice of appeal and, four days later, filed a petition for writ of supersedeas seeking a stay of enforcement of the preliminary injunction, which this court denied on April 8, 2010.*fn9
Weinstock contends that the trial court erred when it issued the preliminary injunction in reliance on the issue sanctions. He also argues that the issue sanctions exceeded the court's authority and were excessive. Finally, Weinstein argues that the preliminary injunction was overbroad.
"[A]n order granting a preliminary injunction is immediately and separately appealable." (Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1520; Code Civ. Proc., § 904.1, subd. (a)(6).) "In deciding whether to issue a preliminary injunction, a court must weigh two 'interrelated' factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or non-issuance of the injunction. [Citation.] . . . [¶] The trial court's determination must be guided by a 'mix' of the potential-merit and interim-harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction. [Citation.] Of course, '[t]he scope of available preliminary relief is necessarily limited by the scope of the relief likely to be obtained at trial on the merits.' [Citation.]" (Butt v. State of California (1992) 4 Cal.4th 668, 677-678.)
As to the court's weighing of the likely injury and the likelihood of success, "[a]ppellate review is limited to whether the trial court's decision order was an abuse of discretion. [Citation.]" (Butt, supra, 4 Cal.4th at p. 678; Hong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 408.) "The party challenging the superior court's order has the burden of making a clear showing of such an abuse." (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 739.) We do not, however, "decide, as on appeal from a final judgment, whether plaintiffs were entitled to the relief they received. . . . [¶] The abuse-of-discretion standard acknowledges that the propriety of preliminary relief turns upon difficult estimates and predictions from a record which is necessarily truncated and incomplete. . . . The evidence on which the trial court was forced to act may thus be significantly different from that which would be available after a trial on the merits." (Butt v. State of California, supra, 4 Cal.4th at p. 678, fn. 8.)
I. The trial court did not abuse its discretion in granting the preliminary injunction based on the issue sanctions.
"Misuse of the discovery process may result in the imposition of a variety of sanctions. These include . . . sanctions deeming that certain issues are determined against the offending party . . . ." (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1214.) Code of Civil Procedure section 2023.030, subdivision (b) provides that after notice and opportunity for hearing, "[t]he court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. . . ." "Misuse of the discovery process includes failing to respond or submit to authorized discovery, providing evasive discovery responses, disobeying a court order to provide discovery, [and] unsuccessfully making or opposing discovery motions without substantial justification . . . ." (Karlsson v. Ford Motor Co., supra, 140 Cal.App.4th at p. 1214; Code Civ. Proc. § 2023.010, subds. (d)-(h).)
Weinstock argues that the court erred in relying on the issue sanctions rather than holding a hearing to determine, without regard to the sanctions, whether the non-compete agreement was enforceable. He argues that had the court not granted the issue sanctions, it would have determined that the non-compete clause was invalid and unenforceable and would have found that NLS did not demonstrate a probability of success on the merits. Essentially, Weinstock argues that the court should have ignored the issue sanctions and determined the issues anew. This misunderstands the nature of issue sanctions. Such sanctions for discovery abuse may be proper even when inconsistent evidence is available, leaving the jury with a misimpression as to actual facts, because the sanctions "effectively remove[] from the jury's consideration evidence favorable to the offending party's position, or . . . deem[] issues in favor of the aggrieved party even though the offending party has strong evidence to the contrary. Such is the natural consequence of serious discovery violations." (Karlsson v. Ford Motor Co., supra, 140 Cal.App.4th at 1220, fn. 11.) The court did not abuse its discretion in relying on the issue sanctions in granting the preliminary injunction.
The issue sanctions established that Weinstock knowingly breached his employment contract, including the non-compete clause, and engaged in unfair competition; that the employment contract and the non-compete clause were enforceable; that Weinstock used the TMR machine in doing so, and without the proper supervision of a physician; and that NLS suffered damages. These issues having been deemed determined against Weinstock, the court was entitled to consider them in determining NLS's likelihood of success. Given that the determined issues virtually assured that NLS would prevail at trial, there was a very strong showing of likelihood of success on its claim that Weinstock had violated the enforceable non-compete clause and had used the TMR device in doing so, to the detriment of NLS.
"[A] trial court may grant a preliminary injunction upon a sufficiently strong showing of likelihood of success even when the party seeking the injunction cannot show that the balance of harm[] 'tips' in its favor [citation] . . . ." (White v. Davis (2003) 30 Cal.4th 528, 561.) Nevertheless, even when a party shows a sufficiently strong likelihood of success on the merits, the trial court must consider the relative balance of hardships, and "when the balance of hardships dramatically favors denial," the court may abuse its discretion in granting a preliminary injunction. (Ibid.) In this case, the trial court considered the balance of hardships, and concluded that Weinstock would suffer only "somewhat greater" hardship. Weinstock has not shown that the trial court abused its discretion in concluding that the likelihood that NLS would prevail was strong enough to justify the issuance of the injunction, even given that the balance of hardships tipped in Weinstock's favor. (See Butt v. State of California, supra, 4 Cal.4th at p. 678.)
II. Weinstock's challenge to the issue sanctions on the merits is premature.
Weinstock also challenges the issue sanctions as contrary to law and excessive. As he did in the trial court, Weinstock argues that the non-compete clause is unenforceable under section 16600, which provides: "Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void." NLS's contrary position in the trial court and on appeal is that the non-compete clause is valid and enforceable under an exception in section 16601, which provides that any person selling the goodwill of a business, or any owner of a business selling all of his or her ownership interest in a business, or substantially all of its operating assets together with the business's goodwill, "may agree with the buyer to refrain from carrying on a similar business within a specified geographic area in which the business so sold, or that of the business entity, . . . has been carried on, so long as the buyer . . . carries on a like business therein." "Where a covenant not to compete is executed as an adjunct of a sale of a business there is an inference that the business had a 'goodwill' and that it was transferred." (Monogram Industries, Inc. v. Sar Industries, Inc. (1976) 64 Cal.App.3d 692, 701.)
NLS argues that Weinstock, as a member of Malta, a limited liability company, was an "owner of a business entity," so that the non-compete clause was valid as part of the sale of Malta's business and goodwill to NLS. Weinstock rejoins that the non-compete clause was effective March 1, 2007, while Malta was transferred to NLS in December 2006, so that the non-compete clause was not part of the sale.
The issue sanctions determined that "Weinstock's employment agreement with NLS, including, without limitation, its non-competition provision, is enforceable." Thus, the trial court resolved this issue against Weinstock's argument that the non-compete clause was not part of the transfer of a business and its goodwill. Weinstock asks us to make a factual determination regarding the provenance of the non-compete clause, and to reach a result contrary to the issue sanctions imposed by the trial court by declaring that the non-compete clause is unenforceable. This we decline to do. Weinstock's challenge to the issue sanctions is premature. An order granting a request for discovery sanctions "is not appealable and the losing party should ordinarily await entry of the order of dismissal to file notice of appeal." (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 264; Southern Pacific Co. v. Oppenheimer (1960) 54 Cal.2d 784, 786 [although the final determination of some collateral matters are appealable, "it is firmly established that orders relating to inspection and discovery are not appealable"].) Only part of the case (Weinstock's cross-complaint) has been dismissed, and Weinstock's notice of appeal challenges only the order issuing the preliminary injunction. We therefore do not address the merits of the issue sanctions on this appeal from an order issuing a preliminary injunction which, like the issue sanctions, remains in effect during the pendency of the action.*fn10
The non-compete provision in Weinstock's employment contract prohibits him from any activity "which competes directly or indirectly with any activity now or in the future engaged in by NLS," with no geographic restriction. The issues sanctions state that Weinstock breached the non-compete clause in his employment contract with NLS by "engaging in direct competition with NLS in the nationwide market." The preliminary injunction also contains no geographic restriction, ordering that Weinstock is "enjoined and restrained from engaging, directly or indirectly, in any activity in competition with NLS." Weinstein argues that the non-competition clause is void because it is not restricted to the area in which Malta did business; therefore, he argues, the issue sanctions were improper and the scope of the preliminary injunction is too wide.*fn11
Once again, Weinstock argues that the non-compete clause is unenforceable (because of its geographic scope), in direct contradiction to the issue sanctions, which state that the non-compete clause is enforceable. As we stated above, we do not address the merits of the issue sanctions on this appeal from the order granting a preliminary injunction.
III. The preliminary injunction is not overbroad.
Weinstock argues that the preliminary injunction impermissibly enjoins Malta, Medico, Svatik, and WOW, although they were not subject to the issue sanctions or parties to the non-compete clause. "'In matters of injunction, however, it has been a common practice to make the injunction run also to classes of persons through whom the enjoined party may act, such as agents, servants, employees, aiders, abettors, etc., though not parties to the action, and this practice has always been upheld by the courts . . . .'" (People ex. rel. Totten v. Colonia Chiques (2007) 156 Cal.App.4th 31, 42.) "We recognize that the direction of injunctive orders to persons 'in active concert or in participation with' specifically named parties defendant is approved by long-standing custom and practice, and we agree that an ascertainable class of persons is described by such language." (In re Berry (1968) 68 Cal.2d 137, 155-156, fn. omitted.) The preliminary injunction properly includes Malta, Medico, Svatik, and WOW as "persons and entities in active concert and participation with" Weinstock.
Weinstock also argues that the preliminary injunction is overbroad because it enjoins him from soliciting "new potential or existing customers of NLS." (Italics added.) That language, however, is reasonably construed to enjoin Weinstock from competing with NLS with regard to potential NLS customers of which he is aware, during the pendency of this litigation. Finally, Weinstock argues that the prohibition on "manufacturing TMR devices or similar devices intended for use in providing pain relief treatments" (italics added) could mean almost anything, such as Tylenol or magnetic devices not related to pain management. That is not a reasonable interpretation, as the language provides that the devices Weinstock is enjoined from manufacturing must be similar to the TMR devices and intended for use in managing pain.
The order issuing the preliminary injunction is affirmed. Costs are to be awarded to Respondent.
I concur: CHANEY, J.
MALLANO, P. J., Dissenting.
I would reverse because the trial court failed to rule whether the employment contract between NewLife Sciences and Weinstock was void under Business and Professions Code section 16600, which provides that, "[e]xcept as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void." Rather, the trial court ruled that the contract, including the non-competition clause, was enforceable as an issue sanction and never determined whether the provision was void or not.
NewLife Sciences claims that the non-competition clause was lawful because it was part and parcel of the sale by Weinstock of the assets and good will of a business and thus enforceable under Business and Professions Code section 16601. That may turn out to be the case, but the trial court never decided the issue based on the evidence presented by NewLife Sciences, relying instead on a discovery sanction imposed on Weinstock.
"[O]ur courts have consistently affirmed that section 16600 evinces a settled legislative policy in favor of open competition and employee mobility. . . . The law protects Californians and ensures 'that every citizen shall retain the right to pursue any lawful employment and enterprise of their choice.' . . . It protects 'the important legal rights of persons to engage in businesses and occupations of their choosing.'" (Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 946, citations omitted.)
Plain and simple, I do not think that a non-competition clause void under California law can be enforced as an issue sanction. If that were permitted, contracts void under other laws -- those prohibiting usury (Cal. Const., art. XV, § 1), illegal discrimination (Civ. Code, § 51.5), the release of a claim of unpaid wages (Lab. Code, § 206.5), or a waiver of rights under the Consumer Legal Remedies Act (Civ. Code, § 1751) -- could be enforced by the courts as a discovery sanction. The courts should have no part in doing so.
Our courts must make that determination apart from an issue sanction to protect those who might suffer enforcement against them of a contract void under California's public policy. Accordingly, I would reverse and send the matter back to the trial court to determine whether the employment contract is void or enforceable.
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Emergency personnel practice for tanker disaster
By CAROLYN LUCAS-ZENK
Stephens Media Hawaii
A real-life accident didn't interrupt a disaster drill, but it did provide valuable insight for the employees at Hale Hoola Hamakua, a 77-bed hospital and long-term care facility in Honokaa.
Around 7 a.m. Monday, a tractor-trailer collided with a utility pole on Mamalahoa Highway, between Iokua Place and Mokuloa Drive, in Waimea. The crash snarled morning commute traffic and caused delays for many, including several Hale Hoola Hamakua employees and volunteers who made a late arrival for the drill.
In spite of this unexpected circumstance, the drill was carried out successfully. Without hesitation, those present stepped up, taking on extra duties and filling in temporarily for the missing roles, said Stephanie Peikert, Hale Hoola Hamakua volunteer services coordinator.
Just before 9 a.m., a siren went off signifying the start of the drill, a disaster preparedness operation involving 60 hospital employees, as well as 20 "injured" residents and five family members played by volunteers. Hawaii Police Department, Hawaii County Fire Department and state emergency medical services personnel also played key roles, Peikert said.
The mock disaster consisted of a motor vehicle accident involving an overturned tanker transporting chlorine and its leaking tank. This was the first time Hale Hoola Hamakua had a drill with a full decontamination team, consisting of 18 members, and as such, everyone involved learned how to handle a large-scale accident at a rural outpost, which could be cut off from larger hospitals or used when the traveling distance is too great, Peikert said.
Hale Hoola Hamakua quickly established a labor pool while its Maintenance Department and any available staff members set up the facility's new decontamination tent in 18 minutes in the porte-cochere.
Healthcare Association of Hawaii provided the facility in May 2011 with the decontamination tent and two powered air purifying respirators, or PAPRs, through the Hospital Preparedness Program, with Health and Human Services and Emergency Medical Services. The tent costs approximately $18,500 while the PAPRs are $3,000 each. Hale Hoola Hamakua also has an additional four PAPRs on site, owned by Hawaii Health Systems Corp., Peikert said.
The first victim — 18-year-old Joey Charbonneau of Honokaa— arrived by ambulance. He was carried on a back board by two fire rescue workers and his head was wrapped. Charbonneau, who will be an Eastern Arizona University sophomore, did not panic as triage nurses quizzed him about his head laceration and condition, as well as scribbled fast notes on a diagnosis card. He proved to be a good sport when two responders wearing protective suits and PAPRs showered him, still strapped to the back board, inside the tent. Afterward, he was loaded onto a gurney and taken inside to different hospital areas for treatment. He remained lying down for most of the drill.
Charbonneau was impressed by the rescue efforts at the mock disaster, saying "Everyone did a good job. Everybody played their roles as true to what the real situation would be as possible. Their response was fast." The reasons why he volunteered Monday were "it's a new learning experience" and "it helps prepare people."
As more victims arrived, responders remained methodical and precise, prioritizing who needed help first and assigning them to different colored areas — green for minor, yellow for delay and red for immediate.
The victims mentioned breathing difficulties, abdominal pain, vision loss, skin irritation, vomiting and headaches. Some did not respond to commands or were unconscious. Most of the chemical causalities were showered inside the tent. Then they were treated on site or taken to other hospital areas like the emergency room. A few were declared dead.
The stimulation was often a positive demonstration of Hale Hoola Hamakua's capabilities. The goal was to be better prepared today than yesterday, as well as boast responders confidence and comfortability for a real chemical emergency.
"The hands-on learning experience is invaluable in helping us to understand all of the issues and variables that can crop up with a disaster of this size. It helped us become familiar with the equipment and how it functions when patients are actually involved," Peikert said. "Hale Hoola Hamakua performed a debriefing immediately after the drill with all participants including EMS, the Fire Department and police in order to understand those issues. We will continue to do debriefings, as well as ongoing training, in order to further improve our communication and response times in event of a disaster."
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Robert Pattinson and Kristen Stewart did have some secrets after all. The much loved "Twilight" couple's co-star Ashley Greene just spilled the beans on it.
The "Twilight" series was a great time for co-stars Robert Pattinson and Kristen Stewart. Even though they had a spark, they kept things strictly professional on the sets, reveals cast mate Greene. She played Alice Cullen in the series.
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