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text: Tommy Flanagan - Confirmation • Music Box • Year : 0 • On demand! (album available 128-320kbs)* 0 Label Facebook Twitter Google+ Pinterest Hide/Show Album Info Downbeat*****A meeting of masters, a true highlight of modern jazz piano. 20 years ago BILLBOARD commented: "The fleet pianist's latest release fon ENJA here is a coupling of '77 and '78 sessions again teaming him with bassist George Mraz and Elvin Jones. The Highlights may include jazz and pop standards like the Charlie Parker title tune and How High The Moon but the playing is anything but standard and the production lucid and straightforward."For many years Tommy Flanagan has won either first or second place in the international Critics Poll of Down Beat, gained GRAMMY Nominations and has been an isnpiration for legends of modern jazz pianists. - Liner notes from the 25th Anniversary SeriesArtist: Tommy FlanaganAlbum: ConfirmationYear: 1982Label: EnjaTotal time: 36:04Personnel:Tommy Flanagan (Piano) George Mraz (Double Bass) Elvin Jones (Drums)Tracks:1. Maybe September (Ray Evans/Percy Faith/Jay Livingston) 4:57 2. Confirmation (Charlie Parker) 6:53 3. How High The Moon (Nancy Hamilton/Morgan Lewis) 6:07 4. It Never Entered My Mind (Lorentz Hart/Richard Rodgers) 7:10 5. Cup Bearers (Tom McIntosh) 4:09 6. 50-21 (Thad Jones) 6:48Download #tags The album code is : ODI10344 You may also like ... Thad Jones - The Magnificent Thad Jones. Vol. 3 (1957) Thad Jones ... Ben Webster And The Modern Jazz Quartet - An Exceptional Encounter (1953) Ben Webster ... Tommy Flanagan - Jazz Poet (1989) Tommy ... Thad Jones - Mad Thad (1957) Thad Jones ... Tommy Flanagan - Something Borrowed, Something Blue (1978) Tommy ... Tommy Flanagan-Nights at the Vanguard-1987-SNOOK Tommy


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Listening to Grasshoppers: Field Notes on Democracy
Arundhati Roy (Hamish Hamilton 2009)
How the Indian elite hate Arundhati Roy! They see her as a renegade, a child of privilege who incomprehensibly and unforgivably spurned their embrace. For so getting under their skin, she deserves our gratitude.
This collection of essays from the past seven years paints a picture of India entirely at odds with the new economic superpower, land of shopping malls and double-digit GDP growth celebrated in the media. 'The era of the free market has led to the most successful secessionist struggle ever waged in India,' Roy writes, 'the secession of the middle and upper classes to a country of their own, somewhere up in the stratosphere where they merge with the rest of the world's elite.'
But Roy won't let them or us forget the other India, where 47 per cent of children under three suffer malnutrition; where an average rural family eats about one hundred kilograms less food in a year than it did in the early 1990s; where tens of millions have been displaced by dams and government-sanctioned corporate land-grabs; where some 25 per cent of the country is under the sway of Maoist-led peasant insurgencies; and where civil rights are the privilege of the rich and democracy has been hollowed out and debased.
The essays cover events from the genocidal attack on Muslims in Gujarat in 2002 to the terrorist attack on Mumbai last November. She charts what she rightly calls the Indian 'ecocide' and its companion, the civil war against the poor, recently taken up by the Communist Party of India (Marxist), the ruling party in West Bengal, which on behalf of multinational corporations has seized land from peasant communities and brutally repressed their resistance. In one of the strongest pieces, Roy writes of the Kashmir freedom struggle with insight and sympathy - something extremely rare among the Indian intelligentsia.
Roy's indictment of the rulers of 'shining India' and their sycophants is laced with sarcasm, mockery and a well-earned disrespect. She says she suspects that only poetry can fully respond to the multiple, inter-related horrors of our current system, but her passionate prose comes close.
Mike Marqusee 1953–2015, wrote a regular column for Red Pepper, 'Contending for the Living', and authored a number of books on the politics of culture, on topics ranging from cricket to Bob Dylan.
Comments are now closed on this article.
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Author: FSP Business
Let's say you've discovered you qualify for a Voluntary Disclosure Programme
(VDP). So you decide to get your tax affairs in order. You apply to SARS for
VDP and submit all the relevant forms. The VDP process is now complete. What
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This article first appeared on fspbusiness.co.za.
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March 18, 1986
WHITBREAD (US) HOLDINGS, INC., Plaintiff, against BARON PHILLIPPE DE ROTHCHILD, S.A., and OY ALKO AB, Defendants
In this action, plaintiff Whitbread (US) Holdings, Inc. ("Whitbread") alleges that defendants Baron Philippe de Rothschild, S.A. ("Rothschild") and Oy Alko Ab ("Alko") fraudulently induced Whitbread to purchase Buckingham Corporation ("Buckingham"). The amended complaint asserts claims under both federal and state securities laws and under the common law of fraud. Before the Court is defendant Alko's motion to dismiss the amended complaint.
I. Background
A. Factual Background
The amended complaint alleges the following facts which we must accept as true for purposes of evaluating the motions to dismiss. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).
Defendant Alko is the Finnish state monopoly corporation for the production and sale of alcoholic beverages, including "Finlandia" vodka. Defendant Rothschild is a French corporation principally engaged in the manufacture and export of wines, including "Mouton-Cadet," the largest selling French appellation controllee wine in the world.
In June 1984, Beatrice Companies, Inc. ("Beatrice") announced its intention to sell Buckingham, one of its subsidiaries. Buckingham, an importer and distributor of wines and liquors, had previously entered into distribution agreements with Rothschild and Alko. Both suppliers could terminate their distribution agreement upon three months notice in the event that Buckingham underwent a "change in control." By the end of July or early-August 1984, both Alko and Rothschild had decided to terminate their respective agreements upon a sale of Buckingham. Although Alko had earlier expressed interest in purchasing Buckingham, it abandoned that interest after a July 26 meeting with Beatrice representatives in Chicago.
Rothschild, Alko, and Steven Karp ("Karp"), then Buckingham's Senior Vice-President, thereafter discussed and agreed to establish a joint venture to directly distribute the Rothschild and Alko products in the United States. Karp, Rothschild, and Alko met on several occasions during August, September, and October. On August 18 and 19, 1984, Karp met with representatives of Rothschild and Alko in Biarritz, France. At the conclusion of the Biarritz meeting, Rothschild and Alko agreed in principle to act together to distribute the Rothschild and Alko products once the sale of Buckingham was completed. They also allegedly agreed to cooperate to ensure that Buckingham sold Beatrice, thereby activating the termination provisions in their distribution contracts with Buckingham. Karp again met with representatives of Alko and Rothschild on September 20, 1984, in Lausanne, Switzerland. At this meeting, the participants reviewed draft agreements, prepared by Karp's attorney, for implementing the joint venture. At an October 2 meeting in New York, the co-venturers further refined their arrangements.
In order to achieve their objectives, it was necessary for Alko, Rothschild, and Karp to ensure that no one, especially a potential purchaser of Buckingham, would discover their plans until Buckingham was sold. Rothschild and Alko recognized that a prospective purchaser would not enter into a transaction for Buckingham unless it believed that a long-term arrangement to distribute their brands would be available. If a potential purchaser knew it had no chance of keeping the Rothschild and Alko distribution rights, the sale of Buckingham would not include those rights, and Rothschild and Alko would be unable to terminate their distribution agreements.
During August, September, and October 1984, Whitbread, whom Alko knew to be interested in purchasing Buckingham, arranged a series of meetings with Alko to ascertain if Whitbread would retain the Finlandia distribution rights following a Buckingham purchase. During these meetings, Alko representatives allegedly made numerous misrepresentations concerning Alko's future plans for United States distribution. During three August meetings, Alko stated that it could not negotiate with Whitbread because Alko was itself a serious contender for Buckingham. At formal and informal meetings during September and October, Alko representatives told Whitbread that serious "corporate/political" problems were impeding possible negotiations between Alko and Whitbread. Whitbread was assured that, notwithstanding Alko's formal representations to the contrary, Alko was not a serious contender for the purchase of Buckingham and would not, in fact, acquire Buckingham. Whitbread's representatives were further assured by Alko's representatives that if and when Whitbread acquired Buckingham, Alko would accord Buckingham a fair and equal opportunity to retain the exclusive United States distribution rights to Finlandia vodka.
In August and September 1984, Whitbread held similar meetings with Rothschild representatives, who assured Whitbread that Rothschild had no plans to directly distribute their products in the United States. The Rothschild representatives also stated that if Rothschild was satisfied with the new owner's performance during a trial period following the sale of Buckingham, a long-term agreement would be implemented. The Rothschild representatives also told Whitbread that, in order to protect their options, Rothschild would exercise the change in control termination provisions upon a sale of Buckingham, but that this termination was designed to assure a trial period in which Rothschild could evaluate the new owner. Of course, neither Alko nor Rothschild told Whitbread of their agreement with Karp.
On October 20, 1984, Whitbread agreed to purchase Buckingham. The sale was consummated on November 26, 1984, when Whitbread paid Beatrice $110 million for all of Buckingham's outstanding stock.
Whitbread alleges that the defendants' misrepresentations and omissions had a definite and calculable impact on the price that Whitbread paid for Buckingham. Had it known the truth, Whitbread allegedly would have paid less. Conversely, it allegedly received less than it paid for.
B. Procedural Background
Whitbread commenced this action on March 26, 1985. On July 12, 1985, the Court dismissed the original complaint, with leave to replead, for failure to plead fraud with the particularity that Fed. R. Civ. P. 9(b) demands. The plaintiff filed its first amended complaint on September 6, 1985.
1. The Amended Complaint
The amended complaint alleges that Alko made material misrepresentations and omissions thereby inducing Whitbread to purchase Buckingham in violation of section 10(b) of the Securities Act of 1934, 15 U.S.C. § 78j(b) (1982), and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10(b)-5 (1985), and in violation of the common law of fraud. Alko is also alleged to have aided and abetted Rothschild's similar statutory and common law wrongs. Alko is also allegedly liable for Rothschild's wrongs as a co-conspirator. The amended complaint seeks punitive damages on the common law fraud claim, and attorney's fees on the securities act claim. It also purports to state a claim under the "applicable state securities laws," which, the plaintiff informs us, include sections 339-a 352-c of New York's "Martin Act," N.Y. Gen. Bus. Law §§ 339-a & 352-c (McKinney 1968 & 1984).
2. Motions Before the Court
Defendant Alko now moves, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss each of Alko's claims for failure to state a claim on which relief can be granted.
Alternatively, it asks the Court to again dismiss the amended complaint for failure to plead fraud with particularity. Finally, Alko asks the Court to strike the plaintiff's demand for punitive damages and attorney's fees.
II. Discussion
A. The Primary Securities Law Violation
1. Motion to Dismiss for Failure to State a Claim
"In order to state a claim for relief under Section 10(b) and Rule 10b-5,
a plaintiff must allege that, in connection with the purchase or sale of a security, the defendant, acting with scienter, made a false material representation or omitted to disclose material information and that plaintiff's reliance on defendant's actions caused him in. jury." Bloor v. Carro, Spanbock, Londin, Rodman & Fass, 754 F.2d 57, 61 (2d Cir. 1985). "To establish causation, the plaintiff must show 'both loss causation -- that the misrepresentations or omissions caused the economic harm -- and transaction causation -- that the violations in question caused the [plaintiff] to engage in the transaction in question.'" Bennett v. United States Trust Co., 770 F.2d 308, 313 (2d Cir. 1985), cert. denied, 474 U.S. 1058, 106 S. Ct. 800, 88 L. Ed. 2d 776 (1986) (quoting Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 380 (2d Cir. 1974), cert. denied, 421 U.S. 976, 44 L. Ed. 2d 467, 95 S. Ct. 1976 (1975)) (emphasis in original). The defendant contends that the complaint does not allege (1) an actionable misrepresentation or omission, (2) reliance, or (3) loss causation. It also argues that the plaintiff's damages are so speculative as to warrant dismissal of its Rule 10b-5 claim as a matter of law.
a. Misrepresentation
Alko's contention that the amended complaint alleges no more than a refusal by Alko to negotiate with Whitbread is incorrect. In fact, the amended complaint alleges a series of false statements by Alko, each of which expressly or implicitly represented to Whitbread that it would eventually have an opportunity to negotiate for the Finlandia distribution rights.
Alko's representatives
initially stated to Whitbread that Alko could not negotiate with Whitbread because Alko was itself negotiating for Buckingham. Alko thereby indicated that Whitbread would have a fair opportunity to negotiate for the Finlandia distribution rights if Whitbread purchased Buckingham.
Alko later admitted that it was no longer bidding for Buckingham. However, it maintained that it could not negotiate with Whitbread because the possible acquisition of Buckingham had become a "corporate/political" issue within Alko. This excuse allegedly was a lie. Together with Alko's representation that the issue would eventually resolve itself, the false excuse encouraged Whitbread to believe that it would eventually have an opportunity to negotiate. Were these subtle misrepresentations not sufficient, the amended complaint alleges that, on three occasions, Alko's representatives expressly stated to Whitbread that it would have a fair and equal opportunity to negotiate for the distribution rights once the "corporate political" issue was resolved.
The import of these allegations is clear. Alko did not merely refuse to negotiate. It represented that Whitbread would eventually have an opportunity to negotiate, when Alko knew that Whitbread would never have that opportunity.
Read in the manner urged by the plaintiffs, as they must be on this motion to dismiss, the statements that Whitbread attributes to Alko constitute misrepresentations. See Oleck v. Fischer , 623 F.2d 791, 794 (2d Cir. 1980) (Statements alleging fraud must be "read and evaluated in their entirety and should not be judged by citing words out of context.").
b. Omission
Alko's omissions are actionable as well. When one party undertakes to communicate information to another who it knows will use that information in connection with a securities purchase, the former assumes a duty "to communicate any additional or qualifying information, then known, the absence of which would render misleading that which was communicated." Rose v. Arkansas Valley Environmental & Utility Authority, 562 F. Supp. 1180, 1206-07 (W.D. Mo. 1983) (terming this a "duty not to omit."; First Virginia Bankshares v. Benson, 559 F.2d 1307, 1317 (5th Cir. 1977), cert. denied, 435 U.S. 952, 55 L. Ed. 2d 802, 98 S. Ct. 1580 (1978). This variation on the obligation to speak truthfully is incorporated in Rule 10(b)-5 which makes it unlawful for a person "[t]o make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. . . ." 17 C.R.R. § 240. 10b-5(b) (1985). Once Alko explained its refusal to negotiate, it assumed a duty to explain truthfully.
The Fifth Circuit found similar omissions actionable in First Virginia Bankshares v. Benson, supra, 559 F.2d 1307. In that case, a broker acting on behalf of a potential purchaser of "Benson," a small consumer finance company, approached defendant "Heller," a commercial lending institution. Heller, which had provided financing for Benson, knew that Benson was experiencing financial difficulties. Heller stated that his experience with Benson had been satisfactory. He disclosed none of the negatives of which he was aware. In reliance on Heller's representations, the plaintiffs purchased Benson. The court affirmed the jury's finding that Heller was liable under Rule 10b-5 for failing to disclose his knowledge about Benson. Even though Heller had no pre-existing duty to disclose facts to the plaintiff, once it spoke, it had an obligation to speak the truth. Once Alko spoke, it had the same obligation.
Imposing a duty on Alko in these circumstances may, at first blush, appear unfair. Once Whitbread approached Alko, Alko's choices were limited. "Should we have refused to speak with Whitbread?," Alko may ask. However, Alko's quandry was a foreseeable consequence of the scheme upon which it had embarked. This far-reaching consequence of its alleged wrongdoing evokes little sympathy. Alko could have said nothing and avoided the difficulties entirely. It chose instead to speak in furtherance of its own interests and must suffer the consequences of its actions.
c. Reliance
Alko next asks the Court to find that Whitbread's alleged reliance on Alko's representations and omissions was reckless and, therefore, unreasonable. By this entreaty, we are drawn to the familiar adage that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In order to survive a motion to dismiss a Rule 10b-5 claim, a plaintiff need only plead that he relied on the defendant's misrepresentations. The reasonableness of any reliance is an issue of fact. Johnson & Staley, Inc. v. Bushan & Levy, 527 F. Supp. 1159, 1162 (S.D.N.Y. 1981).
What's more, reliance becomes a non-issue once Alko's alleged omissions foreclose the reliance issue. Reliance is presumed in a fraud case based on omissions of material facts, Affiliated Ute Citizens v. United States, 406 U.S. 128, 31 L. Ed. 2d 741, 92 S. Ct. 1456 (1972). Likewise, materiality is a question for the finder of fact. Osofsky v. Zipf, 645 F.2d 107, 115 (2d Cir. 1981).
d. Loss Causation
The defendant maintains that the plaintiff is required to precisely plead how its omissions and misrepresentations proximately caused the plaintiff's economic loss. Such precision is unnecessary at this stage. Cf. Schlick v. Penn -Dixie Cement Corp., 507 F.2d 374, 380 (2d Cir. 1974), cert. denied, 421 U.S. 97695 S. Ct. 1976, 44 L. Ed. 2d 467 (1975) (Loss causation "is demonstrated rather easily by proof of some form of economic damage. . . ."). Whitbread's allegation that Alko's misrepresentations and omissions caused it to bid and pay more for Buckingham than it otherwise would have is sufficient. The defendant's further contention that Whitbread could not have purchased Buckingham sans Alko for the price it was willing to pay is premature. Resolution of that issue is for the finder of fact. "[T]he problem with [the defendant's argument] is that it asks the Court to make a determination of fact before trial, even before discovery, with no proper evidentiary record to serve as a basis of the for that finding." Houlihan v. Anderson -Stokes, Inc., 434 F. Supp. 1330, 1339 (D. D.C. 1977).
The defendant relies on Bennett v. U.S. Trust Co., supra, 770 F.2d 308, in which the Second Circuit affirmed dismissal of a claim for failure to allege loss causation. That case stands in sharp contrast to the case at bar. In Bennett, the plaintiffs bought utility stock on margin and deposited the stock with defendant U.S. Trust as collateral. The dividends proved insufficient to service the plaintiff's debt, and the plaintiff's debt increased. When the market value of the stock declined precipitously, the plaintiffs liquidated their remaining equity and used $1 million in additional funds to pay off their debts to U.S. Trust. In their action against U.S. Trust to recover all of their losses, the plaintiffs claimed that U.S. Trust had induced them to open their account by misrepresenting its margin requirements. The court found that U.S. Trust had not advised the plaintiffs to purchase a particular stock. Although the plaintiffs had alleged transaction causation, i.e., that they would not have invested with U.S. Trust had they known of the margin requirements, they had not alleged that U.S. Trust's misrepresentations caused their losses. Those were a product of the plaintiff's own, poor investment decisions.
By contrast, Alko's misrepresentations not only induced Whitbread to purchase Buckingham. They also allegedly determined, at least in part, how much Whitbread was willing to pay. Whitbread has alleged both transaction and loss causation.
e. Speculative Damages
One who states an actionable claim under Rule 10(b)-5 is entitled to compensation "for economic loss suffered as a result of [the] wrongs committed . . . whether the measure of those compensatory damages be out-of-pocket loss, the benefit of the bargain, or some other appropriate standard." Osofsky v. Zipf, 645 F.2d 107, 111 (2d Cir. 1981). A court may, however, refuse to entertain an action when the damages alleged are so speculative as to defy calculation. Barrows v. Forest Laboratories, Inc., 742 F.2d 54 (2d Cir. 1984). The defendant argues that this is such a case. We do not agree.
As we understand the amended complaint, the plaintiff seeks to recover the difference between the price it paid for Buckingham, and the price it would have paid had it known that it would not have a fair and equal opportunity to negotiate for the Alko and Rothschild distribution rights.
The damage calculations will be far from simple, perhaps requiring considerable expert testimony. Indeed, Alko's papers sought to place before the Court a number of factors which, if proven, could cast serious doubt on the viability of any claim for damages. But none of the potential pitfalls in proving damages convince us, at this time, to conclude that Whitbread's damage claims are so speculative as to defy proof as a matter of law. Discovery on the damage questions must proceed apace to facilitate an ultimate determination as to whether Alko's alleged misrepresentations and omissions actually damaged Whitbread.
Alko presents several cases to support its argument that Whitbread's damages are too speculative. All, however, are distinguishable. Alko relies heavily on Candid Productions, Inc. v. International Skating Union, 530 F. Supp. 1330 (S.D.N.Y. 1982), a decision by Judge Weinfeld. The plaintiff in that action sought to recover for the breach of a promise to negotiate in good faith. The court dismissed the claim, finding that obligation was "so vague and indefinite that there [was] no basis or standard for deciding whether the agreement had been kept or broken. . . ." Id. at 1333-34. The defendant emphasizes a passage from the Candid Productions opinion quoting Necchi S.P.A. v. Necchi Sewing Machine Sales Corp., 348 F.2d 693 (2d Cir. 1965), cert. denied, 383 U.S. 909, 15 L. Ed. 2d 664, 86 S. Ct. 892 (1966). The claim in that case was that the defendant had breached an agreement to negotiate in good faith an extension of a distributorship agreement. The court in Necchi stated,
[I]t is impossible to say what relief would be appropriate if Necchi failed to examine the possibility of a renewal. Certainly, we cannot ask that a renewal contract be written for the parties, as it is altogether too conjectural that the parties would have agreed and on what terms. It is impossible to assess any damages, as there is no way that anyone could foresee what would have come from examining the possibility of executing a new contract, even if this were done in the utmost good faith.
Id. at 698, quoted in Candid Productions, supra, 530 F. Supp. at 1336. In Necchi and Candid Productions, the courts were concerned with the difficulty both of determining whether a contract is sufficiently definite and of measuring the benefit of a party's bargain. Neither concern is implicated in this fraud claim. We do not have to decide what Alko's contract with Whitbread would have said, nor do we need to determine how Whitbread might have benefitted from its bargain.
The plaintiffs in Barrows v. Forest Laboratories, Inc., 742 F.2d 54 (2d Cir. 1984), sold their business in 1969 to Forest Laboratories, Inc. ("Forest") in exchange for $550,000 in Forest common stock then trading at $25 per share. Subsequently, Forest disclosed that, at the time of the sale, Forest's officers had overstated its earnings. The plaintiffs, who had retained most of their Forest stock, then brought suit, alleging that the stock they had received was worth substantially less than its $25 market value. Beginning in 1980, the price of Forest stock rose sharply. The plaintiffs sold their remaining shares for approximately $750,000. After this sale, and two and one-half years after they had originally filed suit, the plaintiffs moved to amend their complaint to add new theories of relief. Their first new claim
asserted that, at the time the Barrows sold their business, the market price of Forest stock was grossly inflated as a result of the fraud perpetrated by [Forest]; that the stock was then actually worth no more than $1.50 per share, instead of the $25 per share at which it was being traded; and that the Barrows were therefore entitled to 335,355 additional shares -- that is the number of shares that would have been necessary to pay the Barrows $550,000 if the stock, at the time of the sale of their business, had been valued at its "true" value of $1.50 per share.
Id. at 56.
The Court of Appeals affirmed the district court's refusal to permit an amendment of the complaint to add this claim. After noting that the district court "was well within its discretion in concluding that [the] new claims would prejudice [the defendants] by substantially altering the complaint's theories of relief and delaying the trial of the case," id. at 60, the court commented briefly on the merits of the claim. It remarked that the measure of damages sought, the difference between the actual and the market value of the Forest stock at the time of the merger, was "unduly speculative." Id. at 60. "Equally speculative [was] . . . whether the parties would have reached any agreement if Forest's true financial condition had been known. . . ." Id. "A claim for benefit-of-the-bargain damages," said the court, "must be struck, not on the basis on a bargain whose terms must be supplied by hypothesis about what the parties would have done if the circumstances surrounding their transaction had been different." Id. Moreover, the requested recovery, shares worth $14 million comprising 30 percent of Forest's stock, would have been a windfall for the plaintiffs.
The factors that influenced the Barrows court are largely absent here. First off, this is a motion to dismiss not to amend the complaint. Our decision is not discretionary, nor is the prospect of delay a relevant factor. Moreover, Whitbread is not seeking a windfall but its out-of-pocket loss. It amy indeed be difficult to determine how much Whitbread would have spent for Buckingham and whether its offer would have prevailed. The plaintiff may also have problems establishing its damages by showing how much less Buckingham was worth than the amount paid. But defining out-of-pocket damages necessarily requires some such speculation. Barrows is of little help to the defendant.
Call Carl, Inc. v. BP Oil Corp., 554 F.2d 623 (4th Cir. 1977), cert. denied, 434 U.S. 923, 54 L. Ed. 2d 280, 98 S. Ct. 400 (1977), decided under Maryland law, is even less helpful. In Call Carl, the plaintiffs, retail gasoline dealers, alleged that BP had fraudulently represented its intention to renew their distribution agreements. The court declined to award the dealers the profits they would have made had the contracts been renewed.
Whitbread seeks nothing like the speculative expectancy that the court rejected in Call Carl.
The plaintiff's damages are not so speculative as to warrant dismissal of its Rule 10b-5 claim as a matter of law. Since all of the elements of a 10b-5 claim have been adequately alleged, the plaintiff's motion to dismiss the 10b-5 claim for failure to state a claim on which relief can be granted, is denied.
2. Motion to Dismiss for Failure to Plead Fraud with Particularity
Alko also moves, pursuant to Fed. R. Civ. P. 9(b), to dismiss the claims against it for failure to plead fraud with particularity. Rule 9(b) provides that "[i]n all averments of fraud . . . the circumstances constituting the fraud . . . shall be stated with particularity." Fed. R. Civ. P. 9(b). Mere conclusory allegations that the defendant's conduct was fraudulent are not enough. Decker v. Massey-Ferguson, 681 F.2d 111, 114 (2d Cir. 1982). Instead, the complaint must allege with some specificity the act or statements constituting the fraud. Ross v. A.H. Robins Co., 607 F.2d 545, 557 (2d Cir. 1979), cert. denied, 446 U.S. 946, 64 L. Ed. 2d 802, 100 S. Ct. 2175 (1980). This means that the complaint must state the time, place, and content of the misrepresentation, and the person responsible for making (or, in the case of omissions, not making) same, and what was obtained or given up as a consequence of the fraud. Posner v. Coopers & Lybrand, 92 F.R.D. 765, 769 (S.D.N.Y. 1981), aff'd without opinion, 697 F.2d 296 (2d Cir. 1982); 2A J. Moore & J. Lucas, Moore's Federal Practice P 9.03, at 9-20 through 9-24 (1984) (footnote omitted).
Although paragraph 7 of the amended complaint, to which the defendant points, merely summarizes the plaintiff's allegations, the 52d through 54th paragraphs plead Alko's misrepresentations and omissions in exquisite detail. In particular, the four subparagraphs of the 54th paragraph detail a variety of misrepresentations, stating when, where, and by whom they were made. Alko's principal omission, its failure to state that it had reached agreement with Rothschild and Karp, is also alleged. Although the amended complaint does not set forth a precise damage figure, it states that the fraud caused Whitbread to pay more than it would otherwise have paid for Buckingham. This statement puts the defendants on notice of the type of damages it seeks. Rule 9(b) requires no more. Goldman v. Belden, 754 F.2d 1059, 1069-70 (2d Cir. 1985). Alko's motion to dismiss for failure to plead fraud with particularity is denied.
B. The Aiding and Abetting and Conspiracy Claims
The amended complaint charges that Alko is liable for Rothschild's securities law violations as both an aider and abettor and a co-conspirator. Alko moves to dismiss both of these claims for failure to state a claim on which relief can be granted. For the reasons stated below, both motions are denied.
1. Aiding and Abetting
In order to state a claim for aiding and abetting a securities law violation, a plaintiff must allege and prove "(1) a securities law violation by a primary wrongdoer, (2) knowledge of the violation by the person sought to be charged, and (3) proof that the person sought to be charged substantially assisted in the primary wrongdoing." Armstrong v. McCalpin, 699 F.2d 79, 91 (2d Cir. 1983). The plaintiff has little trouble satisfying these requirements.
Rothschild is alleged to have violated the securities laws in the same manner as Alko. At a minimum, Rothschild allegedly misrepresented to Whitbread that it intended to give it an opportunity to negotiate for the rights to distribute its wines. Our earlier discussion disposes of any contention that these allegations do not state a claim under Rule 10b-5.
Whitbread has alleged sufficient facts from which Alko's knowledge of Rothschild's conduct can be inferred. Specifically, Alko and Rothschild are alleged to have agreed to take no action that would prevent the sale of Buckingham. It is fair to infer that they knew of each other's conduct in this regard.
Paragraph 7(d) of the amended complaint alleges that Alko falsely stated to Whitbread that Alko knew nothing of Rothschild's intentions. This affirmative misrepresentation, designed to assist Rothschild in misleading Alko, constituted substantial assistance in its grossest form. Alko's silence also satisfies the substantial assistance requirement. Although inaction ordinarily does not constitute substantial assistance, it may provide a predicate for liability if the defendant consciously intends its silence to aid the primary fraud. Armstrong v. McAlpin, supra, 699 F.2d at 91; IIT, An International Investment Trust v. Cornfeld, 619 F.2d 909, 925-27 (2d Cir. 1980). The amended complaint alleges the requisite conscious intention.
"[I]n order to be held as an aider and abettor, a person must 'in some sort associate himself with the venture, that he participate in it as something that he wishes to bring about, that he seek by his action [or inaction] to make it succeed.'" IIT v. Cornfeld, supra, 619 F.2d at 922 (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938) (Hand, J.). This language aptly characterizes Alko's alleged conduct. The motion to dismiss the aiding and abetting claim is denied.
2. Conspiracy
In order to establish liability for a conspiracy to violate the securities laws, a plaintiff must plead and prove (1) an agreement between the conspirator and the wrongdoer; and (2) a wrongful act committed in furtherance of the conspiracy. See Hill v. Equitable Bank, National Association, 599 F. Supp. 1062, 1083 (D. Del. 1984); Troyer v. Karcagi, 476 F. Supp. 1142, 1153 (S.D.N.Y. 1979).
It is not enough merely to state that a conspiracy has taken place. Where possible, there should be some details of time and place and the alleged effect of the conspiracy. This is not to say that the pleader must plead his evidence; further details may be secured by means of discovery, and related devices. Moreover, great leeway should be allowed the pleader, since by the nature of the conspiracy, the details may not be readily known at the time of the pleading.
Kravetz v. Brukenfeld, 591 F. Supp. 1383, 1387-88 (S.D.N.Y. 1984) (quoting 2A J. Moore & J. Lucas, Moore's Federal Practice P 8.17[5], at 8-180 through 8-183 (1984) (footnotes omitted)). See also Rooney Pace, Inc. v. Reid, 605 F. Supp. 158, 162 (S.D.N.Y. 1985) (Weinfeld, J.) (Evidence of conspiracy must await discovery; motion to dismiss conspiracy claim denied.).
The pleadings more than suffice to allege a conspiracy. The plaintiff alleges numerous meetings between Alko and Rothschild, specifying the time and place of each meeting. See, e.g., Amended Complaint PP 26, 32, 39, 42. The amended complaint also details the joint venture agreement between Rothschild, Alko, and Karp. It is further alleged that "Rothschild and Alko ... conspired to mislead any prospective purchaser of Buckingham with respect to their true intentions. . . ." Amended Complaint P 45. The structure of the agreement and the circumstances under which it was made need not be alleged down to the last detail.
The amended complaint also alleges the requisite wrongful acts, statements by Alko and Rothschild to Whitbread in furtherance of the objectives of the alleged conspiracy. Alko's motions to dismiss the claims against it for conspiring with and aiding and abetting Rothschild are denied.
C. The Demands for Punitive Damages and Attorney's Fees.
Finally, the defendant moves to strike the demands for punitive damages and attorney's fees in the amended complaint.
1. Punitive Damages
Although an award of punitive damages is not available for violations of Rule 10(b)-5, punitive damages may sometimes be recovered on a pendant state claim. Flaks v. Koegel, 504 F.2d 702, 706-07 (2d Cir. 1974). In order to state a claim for punitive damages under New York law, a complaint alleging fraud must plead and prove "gross, wanton, or willful fraud or other morally culpable conduct." Borkowski v. Borkowski, 39 N.Y.2d 982, 355 N.E.2d 287, 387 N.Y.S.2d 233 (1976): "Proof of acts aimed at the public generally is not required." Whitney v. Citibank, N.A., 782 F.2d 1106, 1118 (2d Cir. 1986) (citing Borkowski). To the same effect is Roy Export Co. v. Columbia Broadcasting System, Inc., 672 F.2d 1095, 1106 (2d Cir.), cert. denied, 459 U.S. 826, 74 L. Ed. 2d 63, 103 S. Ct. 60 (1982). See also Rush v. Oppenheimer & Co., 596 F. Supp. 1529, 1531 (S.D.N.Y. 1984) ("The weight of authority indicates that punitive damages in fraud actions are not conditioned on an allegation that the fraud was perpetrated on the public."). But see Durham Industries, Inc. v. Northern River Insurance Co., 673 F.2d 37, 41 (2d Cir), cert. denied, 459 U.S. 827, 74 L. Ed. 2d 64, 103 S. Ct. 61 (1982) ("punitive damages may not be awarded in breach of contract cases, which involve a private wrong and where no public rights are involved."). In this action, the plaintiff alleges that the defendant made intentional misrepresentations pursuant to a fraudulent scheme. These allegations suffice to defeat Alko's motion to strike the demand for punitive damages from the amended complaint. That punitive damages are often demanded but rarely recovered is a practical consideration not part of a motion to dismiss.
2. Attorney's Fees
Attorney's fees are not generally available in an action brought under Rule 10b-5. Straub v. Vaisman & Co., Inc., 540 F.2d 591, 599 (3d Cir. 1976); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 211, 47 L. Ed. 2d 668, 96 S. Ct. 1375 n.30 (1976). Nor are they recoverable in New York in an action for common law fraud. 24 N.Y. Jur. Fraud & Deceit § 257 (1962). The demand for attorney's fees in the amended complaint is, therefore, stricken.
D. The Martin Act Claims
According to the plaintiff, it has stated claims under two sections of New York's "Martin Act," sections 352-c and 339-a of the New York General Business Law.
Section 352-c provides in pertinent part:
It shall be illegal and prohibited for any . . . corporation . . . or any agent or employee thereof, to use or employ any of the following acts or practices: (a) Any fraud, deception, concealment, suppression, false pretense or fictutious or pretended purchase or sale; (b) Any promise or representation as to the future which is beyond reasonable expectation or unwarranted by existing circumstances; (c) Any representation or statement which is false, where the person who made such representation or statement: (i) knew the truth; or (ii) with reasonable effort could have known the truth; . . . where engaged in to induce or promote the issuance! distribution, exchange, sale, negotiation or purchase within or from this state of any securities . . . regardless of whether issuance distribution, exchange, sale, negotiation or purchase resulted.
N.Y. Gen. Bus. Law § 352-c (McKinney 1984). Section 339-a provides in relevant part, that
Any person, who, with intent to deceive, makes . . . or causes to be made, . . . any statement . . . as to the value or as to facts affecting the value of the stocks . . . of a corporation . . . and who knows, or has reasonable ground to believe that any material representation, . . . made in such statement . . . is false, is guilty of a misdemeanor.
N.Y. Gen. Bus. Law § 339-a (McKinney 1968). A private right of action is implied under the Martin Act. In re Investors Funding Corp., 523 F. Supp. 533, 544-545 (S.D.N.Y. 1980) (§ 352-a); Barnes v. Peat, Marwick, Mitchell & Co., 69 Misc. 2d 1068, 332 N.Y.S.2d 281 (Sup. Ct. N.Y. Co. 1972), modified on other grounds, 42 A.D.2d 15, 344 N.Y.S.2d 645 (1st Dep't 1973) (same).
The defendant claims that two cases decided in this district, Kaufman v. Chase Manhattan Bank, N.A., 581 F. Supp. 350, 354-55 (S.D.N.Y. 1984), and Schenck v. Bear, Stearns & Co., 484 F. Supp. 937, 946 (S.D.N.Y. 1979), and one state court case, Herdegen v. Paine, Webber, Jackson & Curtis, 31 Misc. 2d 104, 220 N.Y.S.2d 459, 460 (Sup. Ct. N.Y. Co. 1961), limit the availability of a private cause of action under the Martin Act to those from whom a plaintiff purchased or to whom it sold securities. Since the defendant is neither, it moves to dismiss both Martin Act claims.
In Herdegen, the court declined to imply a cause of action under the Martin Act against a broker who made misrepresentations about a security which the plaintiff then purchased from another broker. The Herdegen court stated,
The intention of this statute is to protect the general public against fraud in the sale of securities. To extend the statute so as to apply to the facts in this case would be going beyond the intention of the statute. The statute cannot be reasonably extended to cover a purchaser who does not make his purchase from the misrepresenter, but makes such purchases from another broker. To place the responsibility for the possible purchase of unlimited number of shares from an unlimited number of brokers on the defendants is unreasonable and unrealistic.
Id. at 460. In our view, this blanket statement, in some respects, goes too far. Not surprisingly, the court in Schenck v. Bear, Stearns & Co. sought to limit its reach. The plaintiff in that case alleged that a broker from whom it had purchased securities on margin had misrepresented the nature of a possible margin call. When the plaintiff forfeited his securities after a margin call, he asserted a Martin Act claim against both his broker and his clearing broker. In declining to find either liable under section 352-c, the court stated, "In the case at hand, plaintiff did not purchase or sell securities from defendants as a result of the alleged representations, nor were the alleged representations designed to induce or promote such a purchase or sale. Accordingly, plaintiff cannot maintain a claim under Section 352-c." Schenck, supra, 484 F. Supp. at 946. This language from Schenck does not foreclose the imposition of liability on a defendant like Alko, who has allegedly made misrepresentations to a plaintiff in order to induce a purchase or sale from which the defendant will itself benefit. To impose liability under the Martin Act in these circumstances is not, in the words of Herdegen, "unreasonable or unrealistic."
This result may not square with Kaufman v. Chase Manhattan Bank, supra. In Kaufman, the court held that a plaintiff who invested in a company that subsequently went bankrupt could not state a claim against a bank that had fraudulently represented its intention to release certain liens in the bankrupt's property. To the extent that Kaufman would deny recovery to the plaintiff herein under the Martin Act, we respectfully disagree with its holding. The defendant's motion to dismiss the Martin Act claims is denied.
III. Conclusion
Alko's motion to strike the claim for attorney's fees in the amended complaint is granted. In all other respects, its motions to dismiss the amended complaint are denied.
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CA Penal Code is the complete California State Penal Code on you iPhone at your finger tips WITH OUT Internet connection any time and in your pocket. Its easily readable, searchable, navigation from one section to other. Includes features like organized bookmarks, Air Print, E-Mail, font resize and much more. Features: > Apart from CA Penal Code, application also includes articles and sections of Constitution Of California. > Complete offline access -No need of Internet Connection nor any Printed books > Supports Landscape or Portrait mode and navigation at lightning speed > Emailing of any article > Air Print - Helps to take print out of any article from your printer (Air Print supports in iPhone4/iPad2 and above only) > Text Fonts resize > Unlimited Bookmarks with time stamp in a organized way > Quick search of any text or content in entire law database. (Does a very good detail search as per industry norms) > Search highlighting > Very efficient, fast and good performance > Suitable for all working / studying / interested in law enforcement or in criminal law > Application is designed to occupy as much as less memory as possible Contents: 1. CA PENAL CODE TITLE OF THE ACT PRELIMINARY PROVISIONING Part 1: OF CRIMES AND PUNISHMENTS Part 2: OF CRIMINAL PROCEDURES Part 3: OF IMPRISONMENT AND THE DETH PENALTY Part 4: PREVENTION OF CRIMES AND APPREHENSION OF CRIMINALS Part 5: PEACE OFFICERS' MEMORIAL 2. CONSTITUTION OF CALIFORNIA --------------------------------------------------------------------------
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Möchtest du als deine Standardwährung festlegen oder nur für diese Sitzung behalten?
Room very comfy, large and clean. family ori ented environment, nice pool, nice installations. quiet, secluded, safe, private gate, plenty of parking. Only one tv in living room, wi-fi a little weak, no activities at the hotel, no music, no breakfast specials, nothing included but the room. gym too small, hot, air conditioner not too strong. Restaurant in the facility too expensive. drinks at the bar served in plastic cup. No free shuttle to the city, about 2 miles from the main streets for shopping and eating. You need to rent a car, beware no to buy extra insurance or the price will double up. just stick to your budget, we paid $22 per day, unlimited kilometers.
The location on the marina is great. You are greeted by pushy women that try to get you to listen to a timeshare presentation. They continue to hound you the duration of the stay. Front desk staff speak good English, slow to check in, check out and provide change. Location is great. Upon checkout we were asked to pay for the pillow case that had two drops of blood from my husband's bloody nose. They held up our check out process to bring it down and show us in front of other guests! I would not recommend staying here!
Great location and the restruante food was really good and accommodating. We brought fish we caught and they did a fish fry for our big group of 30+. Excellent customer service at the hotel also.
We could not view the nice homes in the surrounding hills and see the marina from the hilltop.
The location was very convenient to the marina, restaurants, and shopping. The staff was great, from the front desk to the housekeeping staff to the servers and bartenders, everyone was great and friendly. Food was decent as we're the drinks.
Their staff was amazing!!!!!! World class service! They treated my girlfriend and I with the up most respect and courtesy. Very friendly and helpful staff, who their first intention was to cater to your every want and need. I will definitely be staying at the marina fiesta again! Loved the location and the varieties of places it had to eat and enjoy a drink. Thank you to the entire staff! Loved everything!
the location was good. the resort itself is pretty and clean the staff is nice the rooms are very bad design. they look very old. way to expensive for what they offer food wasn't that great either very limited number of restaurant room service is not good
The staff was super friendly, the facilities have a lot to offer and the location was great. The shower could have been a little cleaner. The room we stayed in was one of the older not newly renovated. Our friends were in a newer room and it was gorgeous.
The people working there were great. Nothing
Great value for the resort. Staff was knowledgeable and attentive, location was excellent. I couldn't swim in the pacific but that's nature, not the resort
The staff were friendly and helpful. The location was walking distance to the Marina. The Cupcake cafe was great for the morning coffee. The rooms needs updating. The food was average.
Great location. Something was stolen from our room twice. We kept seeing roaches in the room. The beds are too firm. You can hear all conversations in the hallway.
Scenery No ocean access
Loved the tranquility, pool staff was friendly, liked proximity to downtown. Enjoyed many pools and night club. The food was not very good. Some of the bartenders were not very friendly.
We had not been all that impressed with the Cabo area in the past, but really liked the location of this resort for easy access and views of the Marina, as well as the private ocean beach and proximity to downtown. We generally prefer the Carribean side of of the Yucatan Peninsula for the clear blue waters there, but this vacation definitely had us re-considering the Cabo area for future destinations, and especially liked the very tip for location. A very good value and experience overall! The food and service were good, and the amenities and resort overall were far better than average, but I would not say necessarily upscale.
Nothing They overcharged me and the food was awful. You cant go in the ocean yet its advertised as a beach resort
The amenities and facilities Getting violated – the maid went into my suitcase and took out my wallet and took out all my cash while I was at the pool
Friendliness of staff that helped my husband and I out. The guys at the bar at 5pm telling us that its happy hour. Concierge that confirmed all of our activities as well as rescheduling them so we can worry less about our vacation. One of the best vacation we have taken in a long time. Toilet in our room couldn't stop leaking even though we told them daily. Bees that showed up on the pankakes and fench toast for breakfast. Charging us incorrectly for the mini fridge and didn't stock the big bottles of water in the fridge toward middle of vacation
This is located in the marina right on the water. Huge 2nd floor terrace for lounging and watching the boats come in and out. Breakfast included had good selection and ready to order omelette bar. Taxi drivers still know this as "Wyndham". It's an old building, and you can feel it, but for a budget hotel it hits the mark.
Location, location, locstion Smell by outside bar
First day was put into a lower level room than we paid for. Room was up a narrow stairway with now 2nd way out. Big danger during a fire.
Very friendly service and concierge. In a great location that is walking distance from beaches and the citylife. On the marina, so we had a wonderful view.
Loved the included buffet breakfast. Good value. Love the location on the waterfront. The room was a little small.
Location is excellent - you can walk in right off of the marina. Breakfast is ok. Pool area was nice. Staff is friendly and attentive plus they are very helpful in assisting you to make arrangements (for transportation, information, etc). Close to downtown area where there are lots of night clubs as well as bars and strip clubs. Lots of decent bands playing at the restaurants and bars. Also, the hotel is close to activities such as glass bottom boat tours, parasailing, jet skis, etc. You can see beautiful fish and sea lions swimming while walking along the marina. They offer a shuttle service to the airport which is cheaper than calling a cab. No washcloths in bathroom (make sure to bring your own washcloth or a wash poofy). Paid extra for wifi to use on our cell phones and it was incredibly slow. Stay was "uncomfortable" - you pretty much are forced to either hang out in your room or wonder out to the marina where you will spend money and get harassed by solicitors every 5 feet. We visited the pool area in the evening and it was not crowded at all but not sure what it is like during the day. Layout of the hotel is a little confusing - it was difficult to try to find the pool area.
The location is the best part. You're right on the marina and can take a $5 water taxi to the beach. Plenty of places to eat and shop in the Marina area. The property itself is better than I expected in Mexico. Staff was very friendly and the property was clean. The pool was great. Waiter kept our glasses full. It's located 3 blocks from Cabo Wabo which is perfect since we came down for Sammy's Birthday Bash. The food options on site are all average. Everything was good but not great. The concierge was great at helping us plan a sunset sailboat cruise. It was perfect! We plan on staying here again. The food was average.
Location and cost They could not get the room type correct and then upsold us all on rooms that we already booked
Alberto & Gustavo at the pool bar were great and treated us very well. didnt realize it was over Spring Break, lots of shwasted College kids
Location to marina was great Air conditioning in room could be better but that is standard for cabo san lucas
This is a fantastic resort, probably the most beautiful I've ever been too. My only negative was that they tried to push timeshares on us too much. After dealing with the non stop hassling from locals outside the resort, I was hoping for a break from it once we got to the resort, only to find more schemes being thrown at us.
The beach, pool, lush vegetation and hotel design. The mexican restaurant was terrible.
This was a last minute girls trip and booking and I have to say I am so happy with our choice. The hotel was very clean and the grounds were beautiful. Beach is gorgeous and kept clean. But is not recommend or swimming. Food was pricey but good. I liked the $12 shuttle to downtown area. I did not use the spa or gym but I did check them out. Very nice and well kept. Most of the staff all speak English and were very friendly. Love the purified water fountains near the ice machine. I wish there was an All-Inclusive option for us. We got a great rate on the room but the food and drinks made up for it. I also wish there was free wifi. However, can't complain we got a great rate on the room.
Loved the great pools and so close to ocean
The staff and service were amazing, this was our second year at the Sheraton and the staff remembered us from last year. The entire stay there was amazing!!! I would recommend it 110% to anyone! It would be nice to have the convenience of Jet Ski Rentals on the beach and Parasailing. The Westin in Maui has an area of the beach for this and it's convenience is great for those that want adventure without leaving the resort!
Love the people and the hotel amenities Great stay, no complaints at all


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About SLA
The Science Leadership Academy is a partnership high school between the School District of Philadelphia and The Franklin Institute. SLA is an inquiry-driven, project-based high school focused on 21st century learning that opened its doors on September 7, 2006.
SLA provides a rigorous, college-preparatory curriculum with a focus on science, technology, mathematics and entrepreneurship. Students at SLA learn in a project-based environment where the core values of inquiry, research, collaboration, presentation and reflection are emphasized in all classes.
For more info, check out our Mission Statement, Curriculum, College News Blog and Admissions pages
An Open Letter To Our Students
As an inquiry-based school, SLA believes in asking questions, challenging assumptions, and working together to better understand each other and the world.
We are a diverse group, and we embrace every member of our community, regardless of their identity.
We also refuse to insult, threaten, exclude, disempower, or vilify others based on who they are or what they think.
Instead, we listen before we speak. We see each other as complex individuals, not stereotypes. We protect and defend each other when needed. And when we disagree, we treat each other with decency.
To us, that is the ethic of care. We will continue to work and act in this way, each and every day that we walk through these doors.
Most importantly, we believe in you, our students -- your ideas, your passion, and your ability to make the world a better place. Today, like every day, we hold out our hope that you strive to do just that.
The educators of Science Leadership Academy


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Linda Allen -Coffee cellulite wrap
Coffee cellulite wrap - For the procedure you will need:
· 4 tablespoons of coffee grounds
· 5 drops of essential oil of grapefruit.
· 2 drops of sweet almond oil.
Before wrapping stroll body scrub on the problem areas, so remove dead skin cells. This will help to better absorb ingredients wraps. Clean the skin with a cotton towel. Thoroughly mix the coffee grounds with oil and apply to the problem area, immediately wrapped in cling film in two layers to get the effect of a sauna. Better to keep the wraps from 30 minutes to 2 hours, depending on the extent of your problem and neglect of individual perception. It is best to lie down, relax and take refuge on top of a towel. You can take your favorite book, a collection of music to listen to or surf the net. Time will pass unnoticed wraps, if you can find something for everyone. After the procedure, rinse with a lot of skin and apply moisturizer.
Honey cellulite wrap - For the procedure you will need:
· 5 drops of essential oil of orange
· 3 drops of lemon essential oil
· 5 tablespoons of honey. Better use of organic honey.
In a water bath slightly warm honey and add the essential oils. Remove from the heat and mass apply to problem areas. Honey should not be heated above forty degrees, because it will lose all its useful properties. Weight should be pleasant for the body. Top skin wraps with cling film and turn around with a towel. Honey wrap can hold a half-hour, and then the mass must be washed with warm water and apply moisturizer.
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- Product Details
Make sure Father Christmas gets the message loud and clear this year with our fabulous Dear Santa Personalised Hessian Sack.
On the front of this durable hessian sack our full colour inks tell the big man just exactly who deliver to. And if likes what he sees, we then supply the large capacity sack for him to put all those gorgeous presents in!
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Then on Christmas Day your niece, godson or even your own child are going to thank you, knowing it was your gift that made Santa so generous.
Measures approx. 79 cm x 52 cm.
- Delivery & Returns
We are aware of how important it is for you to receive your gifts in time. Therefore, once you place your order we will process straight away and dispatch as soon as they are ready to go. We usually dispatch all items within 1-3 days however, this may be a little longer during special occasions such as Christmas. If multiple items ordered, we may dispatch items separately or all together, depending on the process.
Hassle Free Returns Policy:
We're sure that you will be satisfied with your purchase and we also understand that sometimes you may want to return. We keep this process simple! Just contact us if you wish to return goods. Please note: personalised, made-to-order and perishable items are non-refundable.
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Question about: Dear Santa Personalised Hessian SackPlease do not include or disclose any sensitive personal information, password or credit card information in your message. Your personal security is extremely important to us.
Tuesday, 8 November 2016 (by Alana)Hi there, I'd really like this bag, but is it possible to have the "naughty" option ticked, rather than "nice"?
Many thanks!
Show more products in Christmas Stocking & Sacks


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iHerb Customer Reviews
Savings of: $9.43 (36% off)
Now Foods Cal-Mag Caps with trace minerals
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got if for a relative that buys the same on the local shop for twice as much or more so she was very pleased.from my point of view the absorption of these cal-mag could be improved by changing the main ingredients like the calcium and magnesium to mainly citrate instead of carbonate and oxide.but the additional ingredients is chelate's which is 40% absorbed by our body ,a great addition.the vitamin D3 is also a good type for us....you are welcome to rate & read my other reviews.
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For my kids. Keeps them healthy


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October 29, 2009
MARY BOHR, PLAINTIFF,v.CORRIGAN MOVING SYSTEMS, ET AL., DEFENDANTS.
On July 16, 2009, Mary Bohr filed a complaint against Corrigan Moving Systems and Larry Stein alleging violations of the Fair Labor Standards Act ("FLSA"), the Illinois Minimum Wage Law ("IMWL"), and the Illinois Wage Payment and Collection Act ("IWPCA"). Defendant Stein moved to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons discussed below, defendant Stein's motion to dismiss is granted.
Defendants are engaged in the business of providing relocation and moving services to the public. Plaintiff alleged that she was employed by defendants. Plaintiff further alleged that defendants employed plaintiff on a "salaried" basis when, in fact, her job duties did not qualify under any of the exemptions established by the FLSA. Plaintiff claimed that she worked in excess of 40 hours in a workweek, without compensation for overtime at a rate of one and one-half times her regular rate. Plaintiff argued that defendants' compensation policies and practices violated the FLSA, IMWL, and IWPCA.
Plaintiff's obligation to provide the grounds for entitlement to relief in a complaint requires more than mere labels and conclusions, and a formulaic recitation of the elements of a cause of action will not suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Instead, plaintiff's factual allegations must be sufficient to raise a right to relief above the speculative level. Id. To survive a motion to dismiss, a complaint must allege sufficient facts to state a claim for relief that is plausible on its face. Id. at 570. When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), this court must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in plaintiff's favor. Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007).
Defendant Stein argues that plaintiff failed to plead sufficient facts to show he qualified as an "employer" under the FLSA, IMWL, and IWPCA. The FLSA defines "employer" to include, in relevant part, "any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. § 203(d). Both the IMWL and IWPCA define"employer" to include, in relevant part, "any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee." 820 ILCS 105/3(c); 820 ILCS 115/2. The IWPCA further provides that "[a]ny officers of a corporation or agents of an employer who knowingly permit such employer to violate the provisions of this Act shall be deemed to be the employers of the employees of the corporation." 820 ILCS 115/13.
With respect to defendant Stein, plaintiff failed to plead facts sufficient to state a claim for relief that is plausible on its face. See Bell Atl. Corp., 550 U.S. at 570. Plaintiff alleged that "Defendants, Corrigan Moving Systems, and Larry Stein, Individually, . . . are engaged in the business of providing relocation and moving services to the public." Plaintiff further alleged that
"During all relevant times, Defendants were acting directly or indirectly in the interest of the employer in relation to the employee Plaintiff . . . and, therefore, were and are 'employers' as defined under both the federal and state statutes relied upon herein." While detailed factual allegations are not necessary to survive a Rule 12(b)(6) motion to dismiss, plaintiff merely recited the definition of "employer" under the FLSA, IMWL, and IWPCA. Plaintiff's obligation to allege facts showing defendant Stein came within the purview of the applicable statutes requires more than merely pleading "labels and conclusions." Id. at 555.
In her response to defendant Stein's motion to dismiss, plaintiff argued that "Defendant cannot deny that Stein was the general manager of the location at which Plaintiff worked or that Plaintiff Bohr 'reported to' Stein during the course of day-to-day tasks and duties performed." While this contention does not appear in the complaint and so will not prevent dismissal, it suggests the complaint's defects may be remediable. Accordingly, defendant Stein's motion to dismiss is granted and plaintiff is granted leave to file an amended complaint. See E.E.O.C. v. Home by Hemphill, Inc., No. 95-C-1138, 1995 WL 683502, at *3 (N.D. Ill. Nov. 16, 1995).
ORDERED: Defendant Stein's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) [10] is granted. Plaintiff Mary Bohr is granted leave to file an amended complaint on or before November 12, 2009.
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Our first container of aged hard Italian cheeses has been a big hit. The next container should be loaded by the end of the month and hopefully with us around Christmas time.
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- Description
8610C Gas Chromatograph Multiple Gas #3 GC configuration is a versatile low cost way of analyzing many different kinds of gas samples. There are two gas sampling valves and four columns as well as four detectors. The MG#3 GC configuration is almost identical to the MG#1 GC configuration except there is an additional solenoid valve which when activated by the PeakSimple data system stops the flow of carrier gas in column 1. When the solenoid valve is actuated ( typically while the gas sampling valve is in the INJECT position ), column 1 has the same pressure applied to both its inlet and outlet. This stops the flow of carrier gas in column 1. The peaks which were in column 1 simply stop moving without broadening or distortion. The flow of carrier gas in column 2 actually increases while the solenoid is actuated since the full carrier gas head pressure is now applied across a shorter restriction ( one column instead of two in series ). The MG#3 GC configuration is slightly more flexible than the MG#1 because the stop flow capability allows a wider selection of columns to be used, where the MG#1 only works with silica gel as Column 1 and MoleSieve 13X as Column 2.
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ERIC Number: ED195987
Record Type: RIE
Publication Date: 1980-Dec
Pages: 45
Abstractor: N/A
Reference Count: 0
Comparative Evaluation of the Cognitive Theories of Piaget and Ausubel.
Nielsen, Loretta A.
Jean Piaget's theory of cognitive development and David Ausubel's assimilation theory of learning are explicated and selected research involving both theories is reviewed in this paper. The two theories are compared on selected dimensions to demonstrate that they are compatible and that, in conjunction with one another, they form a strong theoretical base for explaining and predicting learning, retention, and transfer processes. Implications for further research and pedagogic applications are explored. (Author/FL)
Publication Type: Information Analyses; Speeches/Meeting Papers
Education Level: N/A
Audience: N/A
Language: English
Sponsor: N/A
Authoring Institution: N/A
Identifiers: David P Ausubel; Piaget (Jean)
Note: Paper presented at the Annual Meeting of the American Reading Conference (1st, Sarasota, FL, December 4-6, 1980).


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The river is at winter levels. Bitter cold this week tie some flies.
Cold and cloudy weather expected for a while now and winter has actually set in.
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Steelhead around river mouths
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Bosch Evolution 500 Series Built-in Dishwasher SHE44C05UC Reviews
- Other Dishwashers:
- Average: 3.8
- High: 5.0
- Type:
- Built-In Dishwashers
- Brand:
- Bosch
- Model:
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Comments about Bosch Evolution 500 Series Built-in Dishwasher:
Bosch is by far the quietest dishwasher that I have ever owned. Besides its quiet running, the Bosch cleans dishes thoroughly and removes even stuck on food. There is no need to pre-wash by hand your dishes. The price is somewhat higher than other brands of dishwashers, but the quality of the dishwasher is worth the price difference. It is easy to load, fits a huge load of dishes, has adequate space for even large items, and has a clamp down lid features that enables you to wash nipples for baby bottles or small items without them disloging from the silverware storage area. The interior of the dishwasher is stainless steel and does not rust of discolor. I would highly recommend the Bosch brand.
Comments about Bosch Evolution 500 Series Built-in Dishwasher:
My Bosch Dishwasher is a life saver. I got my first dishwasher about 7 years ago. I had never thought I would want one but this one made a believer out of me. It is quiet and fast. We have a water problem in our house but the dishwasher has never added to that problem. I love, love, love my Bosch dishwasher.