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Recently, I've discussed the way pagan beliefs were given a Satanic cast by Christians, who turned pagan worship ceremonies into Black Masses full of sodomy and blasphemy. In 1862, Jules Michelet tried to paint a more sympathetic (if inaccurate) portrait of medieval witches by describing their faith as a pagan-influenced feminist rebellion against Catholic patriarchy. His book, La Sorcière, is known in English as Satanism and Witchcraft, and of course the weird art used to illustrate the 1911 printing of the book is something to behold.
If you thought the images of women kissing Satan's or a goat's buttocks were bad, this little number puts them to shame. Behold the Black Mass as drawn by Martin van Maele, a French illustrator famed for his erotic art.

subset: commoncrawl


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Also in 2009, Hough won the Gold Disc Award at the Classic FM Gramophone Awards. His recording of Saint-Saens' complete works for piano and orchestra topped the vote as the best recording of the past 30 years.
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2016-17 UEFA Champions League, CONCACAF World Cup qualifiers TV schedule
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SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
March 16, 2012
IN THE MATTER OF CARMEN COLEMAN, PETITIONER-APPELLANT,v.TRACY FOX, RESPONDENT-RESPONDENT. (APPEAL NO. 2.)
Appeal from an order of the Family Court, Monroe County (Dandrea L. Ruhlmann, J.), entered September 17, 2010 in a proceeding pursuant to Family Court Act article 6.
Decided on March 16, 2012
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
The order denied the motion of petitioner for attorneys' fees.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Same Memorandum as in Matter of Fox v Coleman (___ AD3d ___ [Mar. 16, 2012]).
Entered: March 16, 2012
Frances E. Cafarell Clerk of the Court
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Post a reply to the thread: www.wbpds.gov.in How to Apply for Ration Card in West Bengal Application Form Download and Status with Complaint Process
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Will turn www.example.com into [URL]http://www.example.com[/URL].
what is the mean of sphh Digital RC
Name-Riddhima Das
D/o-Rupak Das
Milan Para
Dist-Uttar Dinajpur Dinajpur
West Bengal
Sir, I Want to Know That How I Get My New Ration Card Plz Inform Me
Email Add :-email@example.com Mob-9832473373
I am Hirak Kanti Bhattacharya.From purba Medinipur in Wesr Bengal. i want to apply digital ration card, from where collect the ration card.My Phone Number Is 9593002028
please let me know the procedure for checking the status of ration card online.
How to apply digital ration card ?
how can I add my son name in ration card
I want a ration card for my son. his old is now above 5 year's.so please give me the right direction
I want to surrender one card of my family. Which form should I use?
Shibu prasad maity, P O mandir bazar, Dist 24 pargana (south)


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United States District Court, S.D. New York
March 26, 2004.
TERRY KLEIN, Derivatively on behalf of SICOR INC., Plaintiff, -against- CARLO SALVI, RAKEPOLL FINANCE N.V., KARBONA INDUSTRIES LTD., BIO-RAKEPOLL N.V., MICHAEL D. CANNON, Defendant -and- SICOR, INC., Nominal Defendant
In March of 2002, Plaintiff Terry Klein filed suit derivatively on
behalf of SICOR alleging violations of section 16(b) of the Securities
Exchange Act of 1934, 15 U.S.C. § 78p(b). Section 16(b) confers liability
on a corporate insider who, within a six-month period, purchases and then
sells, or sells and then purchases, securities of the corporation of
which he is an insider. Pursuant to section 16(b), and regardless of the
insider's intent, any profit realized by such a person is to "inure to
and be recoverable by the issuer." Certain exceptions apply: as relevant
here, a safe harbor for transactions approved by the corporation's board
of directors or by a specifically defined committee of the board of
directors. SEC Rule 16b-3, 17 C.F.R. § 240 § 16b-3. Successful plaintiffs
in section 16(b) suits are not personally entitled to receive any portion
of the recovered damages. Their counsel, however, in recognition of the
benefit conferred on the issuer, may be entitled to reasonable attorney's
fees and reimbursement of expenses incurred in prosecuting the
litigation. See Smolowe v. Delendo Corporation, 136 F.2d 231, 241 (2d
Cir. 1943).
The transaction upon which suit was brought was complicated. It
originated with the acquisition by certain of SICOR's insiders, in or
around September 2000, of Biofa A.B., a Lithuanian manufacturer of
generic drugs marketed and distributed in Eastern Europe and Russia.
Biofa, to be made profitable, had to be reorganized and modernized so
that its products could satisfy the stricter regulatory requirements of
the Western European countries and the United States.
SICOR's board of directors, according to the parties, was not itself
interested in the transaction, and authorized its chief executive
officer, president, director and controlling
Page 3
stockholder defendant Carlo Salvi and its executive vice president
defendant Michael D. Cannon to purchase Biofa. Salvi and Cannon made
the purchase through Salvi's controlled affiliated companies chartered in
Nassau Bahamas and Curacao, the other defendants named in the caption,
issuing 1,500,000 shares of one of these companies, Rakepoll Finance
N.V., to Biofa's owners.*fn1 He financed the transaction through a
$30,000,000 loan from an Italian bank, Banco. del Gottardo, to Rakepoll
Finance, Salvi's controlled company.
Ten months later, on July 25, 2001, SICOR decided to purchase the
assets that it had declined to purchase in September of 2000. SICOR
purchased Biotechna, the owner of Biofa, for a consideration that appeared
substantially greater than Salvi's purchase in September 2000, but which
Salvi argued was the equivalent. SICOR issued 1,500,000 shares of its
common stock to Salvi and his companies,*fn2 assumed the $30,000,000
loan from the Italian bank to Salvi's affiliate, issued warrants to the
bank entitling it to purchase 150,000 shares of SICOR's stock at $3.50
per share plus $10,000, and assumed Biotechna's short and long term
indebtedness almost another $30,000,000 of debt. Following these
transaction, Salvi and companies he controlled owned approximately 65
percent of SICOR's capital stock. The stock issued to Salvi's companies
was restricted, meaning that the shares could not be sold except by SEC
registration and public offering or an appropriate SEC exemption, but
such a registration and public offering quickly followed.
Page 4
At the time of the transaction, Biotechna had but $700,000 in product
sales in the three months ending September 30, 2001, a negative cash flow
and no earnings. Its ability to satisfy Western European regulators was
untested; its technology did not comply with Western commercial practice;
and it was in need of substantial additional investment. However, SICOR's
directors received a fairness opinion from an outside expert that the
transaction with Salvi and his companies was fair to SICOR, and a
committee of the two independent directors (those not financially
involved with or controlled by Salvi) approved SICOR's purchase of
SICOR's purchase of Biotechna closed July 25, 2001. Four months later,
on October 16, 2001, SICOR and defendant Rakepoll Finance N.V. (Salvi's
company) registered with the SEC and sold in a public offering 11,500,000
shares of SICOR's common stock, at a price of $17.715 per share. The sale
included the 1,500,000 shares that SICOR had paid to Rakepoll Finance to
acquire Biotechna. The sale occurred within a six-month period of
Rakepoll Finance's purchase of the 1,500,000 shares, as consideration for
Rakepoll Finance's sale of Biotechna to SICOR.*fn3
Plaintiff alleged that SICOR's issuance of 1,500,000 shares of its
stock to Salvi's controlled company on July 25, 2001 constituted a
purchase by Salvi on that date of those shares, and that Salvi's purchase
should be matched against Salvi's sales to the public and issuance of
warrants to Banco. del Gottardo, on October 16, 2001. According to
plaintiff, the transactions fell within the proscriptions of section
16(b) of the Securities Exchange Act, as purchases and sales "within any
period of less than six months." Plaintiff alleged that the 1,500,000
shares issued by SICOR to Salvi and his companies on July 25, 2001 to
purchase Biotechna, worth $28,704,750, Cannon, Aug. 28, 2003, Ex. A at
Page 5
should "inure to and be recoverable by the issuer," SICOR, since
the consideration gained by SICOR, the ownership of Biotechna, plaintiffs
alleged, was essentially valueless.
Plaintiff's demand to SICOR's Board of Directors, and suit against
defendants Carlo Salvi and Michael D. Cannon, and Salvi's companies,
defendants Rakepoll Finance N.V., Karbona Industries Ltd. and
Bio-Rakepoll NV (collectively, the "Settling Defendants"), followed.
Plaintiff alleged that defendants violated section 16(b) of the
Securities Exchange Act by profiting from short-swing purchases and sales
of SICOR common stock, on July 25, 2001 and October 16, 2001,
respectively. The Settling Defendants denied liability, and alleged that
Biotechna was a valuable asset when sold to SICOR, that no profits
resulted, and that the transactions, having been approved for fairness by
a committee of the independent directors of SICOR's board of directors,
were exempt under safe harbor provisions of section 16(b) and of SEC Rule
16b-3 thereunder.
Section 16(b) authorizes the SEC to exempt from liability "any
transaction . . . as not comprehended within the purpose" of the
statute. Rules 16b-3(a) and (d) exempt transactions between issuers and
officers or directors that are approved either by "the affirmative votes
of the holders of a majority of the securities of the issuer," or of the
board's "disinterested directors." 17 C.F.R. § 240.16b-3(a), (d).
Defendants allege that a committee of independent directors, that is, the
two independent directors, Donald E. Panoz and Carlo Ruggieri, of the ten
directors of SICOR, functioned with legal and accounting help between
October 2000 and April 2001 to review the transactions, and recommended
on April 9, 2001 that they be approved, and that SICOR's board of
directors thereupon voted to approve the transactions effected July 25,
Following discovery, defendants moved for summary judgment. Plaintiff
opposed, and both sides filed briefs. Before the date for argument,
however, the parties asked to be referred
Page 6
to a Magistrate Judge, and agreed to settle before the Magistrate
Judge. The parties filed a stipulation of settlement on July 14, 2003,
the terms of which provided that the Settling Defendants would pay SICOR
$10,750,000, while continuing to maintain that no wrongdoing had occurred
and that the settlement was made to avoid litigation costs and to resolve
the matter expeditiously. The parties argued that, at approximately 38
percent of maximum alleged recovery, the settlement was in SICOR's best
At my request, the parties supplemented their submissions to provide
additional supporting information for the settlement. After considering
the extensive legal memoranda, reports of experts and affidavits
submitted by plaintiff and defendants, and after hearing the parties on
September 8, 2003, I gave my preliminary approval to the Proposed
Settlement. By Order dated September 23, 2003,1 directed the parties to
provide notice to the owners of SICOR's securities. The parties initially
resisted providing notice, but I held that since the case involved
allegations of insider trading by those who owned a substantial portion
of SICOR's issued and outstanding stock, and important issues of public
responsibility were involved, SICOR's shareholders should evaluate the
settlement and have the right to express objections in response to a
publicly disseminated notice. I divided the costs of providing notice
equally between the Settling Defendants and SICOR. The parties gave
proper notice, by publication in national financial newspapers and on
SICOR's web page and, at a hearing held November 12, 2003, and after
considering two objections, I approved the proposed settlement as fair,
reasonable and adequate. I reserved decision on Plaintiff's motion for
fees and allowances to plaintiff's attorneys.
The derivative plaintiff has been represented in these proceedings by
two sets of lawyers: Paul D. Wexler of Bragar Wexler Eagel &
Morgenstern, and Glenn Ostrager of Ostrager
Page 7
Chong & Flaherty (collectively, Counsel). Counsel ask me to award them
one-third of the recovery they obtained for SICOR, or $3.58 million,
inclusive of expenses. At my request, Counsel submitted declarations
detailing the time spent by lawyers and paralegals and the expenses
incurred incident to the litigation. Counsel have shown:
1. For Bragar Wexler Eagel & Morgenstern:
Paul D. Wexler, 446.40 hours at $550 per hour,
or $245,520. Paralegal, 5.0 hours at $75 per
hour, or $375. Total for Bragar Wexler Eagel
& Morgenstern: $245,895.
2. For Ostrager Chong & Flaherty:
Glenn F. Ostrager, 528.35 hours at $525 per hour, or
$277,383.75. Joshua S. Broitman, 57.20 hours at $450
per hour, or $25,740.00. Roberta Gomez, 24.75 hours
at $350 per hour, or $8,662.50 Eric A. Lerner, 80.90
hours at $285 per hour, or $23,056.50 Milagros A.
Cepeda, 6.30 hours at $450 per hour, or $2,835.00
Paralegal, 15.20 hours at $125 per hour, or
$1,900.00 Total for Ostrager Chong & Flaherty:
3. Total hourly services for both firms: $585,472.75.
Total expenses were shown as follows:
1. For Bragar Wexler Eagel & Morgenstern: $16,822.69
2. For Ostrager Chong & Flaherty: $13,791.11
3. Total expenses, both firms $30,613.80.
Total billable hours and expenses: $616,086.55.
Our civil justice system typically requires each party to pay its own
fees. An exception exists, however, for an attorney who creates a common
fund from which others share. Goldberger v. Integrated Resources,
209 F.3d 43, 47 (2d Cir. 2000) (citing Trustees v. Greenough, 105 U.S. 527,
533 (1881)). The exception is equitable, averting unjust enrichment of
those who benefit by a common fund without sharing the costs of creating
the fund. Id. Fee awards are particularly appropriate for "16(b)"
recoveries, since Congress provided for enforcement of its provisions by
derivative lawsuits, and private attorneys would likely not spend the
time and effort to identify and successfully prosecute such lawsuits
unless they could anticipate reasonable recoveries of their fees and
As in cases of quantum meruit, courts have the task to determine the
amount of fees and expenses that reasonably should be awarded to
attorneys who produced the benefit to the corporation in whose right they
brought derivative suit. In determining reasonableness, courts typically
calculate the time and hourly rates that it took to produce the result
(the "lodestar" method), and, in order to recognize certain additional
qualities of the lawyer's services, add a multiple considered appropriate
and fair. Blum v. Stenson, 465 U.S. 886, 900 n.16 (1984); Goldberger, 209
F.3d at 47, 50. This approach is consistent with evaluating
reasonableness of fees
Page 9
pursuant to the New York Code of Professional Responsibility. 22 NYCRR §
1200.11 (2004) (DR 2-106 Fee for Legal Services).
The approach of compensating according to reasonable time values in the
community is consistent with quantum meruit recoveries generally.
Typically, compensation is awarded in relation to such time values, and
not the benefit an attorney claims was conferred. See Goldberger, 209
F.3d at 53.
In certain types of quantum meruit recoveries, for example real estate
brokers and business finders, compensation is typically awarded in
relation to the value of the property, or business, which the broker, or
finder, has brought to a willing buyer and seller. PKG Associates, Inc.,
et al. v. Michael Dubb, 760 N.Y.S.2d 681, 682 (App. Div. 2003). There
tends to be a recognized compensation rate, graduated accordingly to the
value of the property or business that was sold, with the rate often
diminishing in inverse proportion to the size of the deal.
Lawyers who produce a result for a class in the nature of a common fund
are often compensated by a percentage of the common fund their litigation
produced. See Goldberger, 209 F.3d at 47. Presumably, the percentage
methodology, different from quantum meruit recoveries generally, is
traceable to contingent fee retainers associated with the prosecution of
personal injury and wrongful death cases. See, e.g., N.Y. App. Div., 1st
Dep't § 603.7(e). Early derivative litigations frequently allowed such
recoveries as well, and the practice began to carry over to class action
litigations. George D. Hornstein, The Counsel Fee in Stockholder's
Derivative Suits, 39 Colum. L. Rev. 784, 789, 793, 810-815 (1939). "The
doctrine rests on the perception that persons who obtain the benefit of a
lawsuit without contributing to its cost are unjustly enriched at the
successful litigant's expense," Boeing Co. v. Van Gemert, 444 U.S. 472,
478 (1980). This theory of unjust enrichment differs from quantum meruit
in that "A claim for quantum meruit requires
Page 10
plaintiff to show that it expected compensation; a claim for unjust
enrichment does not." Gidatex, S.r.L. v. Campaniello Imps., Ltd.,
49 F. Supp.2d 298, 303 (S.D.N.Y. 1999).
In time, the increasing magnitude of percentage awards came to be
criticized for being out of proportion to the lawyer's recoverable time
charges. See City of Detroit v. Grinnell Corp., 495 F.2d 448, 468, 469
(2d Cir. 1974) (Grinnell I); City of Detroit v. Grinnell Corp.,
560 F.2d 1093, 1095, 1103 (2d Cir. 1977) (Grinnell II). The practice also
tended to encourage settlements that could be made too quickly and too
cheaply in relation to the real merits of a case and the result that
could be achieved by a longer and more rigorous prosecution. The lodestar
method addressed these criticisms. See Lindy Bros. Builders, Inc. v.
American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3rd Cir.
1973). Certain lawyers in the class action field also began to be
retained by institutional clients for a much smaller contingent fee, and
performed their services according to instructions from clients,
consistent with a traditional lawyer-client relationship.
The lodestar method entailed, first, a determination of the reasonable
number of hours expended on a case and a reasonable hourly charge for
each attorney (or paralegal) providing services and, second and to the
extent appropriate, a multiplier to account for other factors,
particularly difficulties and challenges experienced in prosecuting the
case, excellent quality of services, the results achieved, and other
criteria set out in professional ethics codes for evaluating a reasonable
attorney's fee. See generally Lindy Bros., 487 F.2d at 168-69. The
lodestar method, however, was also subject to criticism, for it could
motivate attorneys to do too much work and to work inefficiently, and it
discouraged early settlements. District judges also disliked the time and
effort that it took to review the time charges submitted to them, and
often considered it inappropriate to second-guess what should, and should
not, have been done in prosecuting a case.
Page 11
See Goldberger, 209 F.3d at 48-49 (discussing cases involving such
perceived abuses).*fn4
Since Goldberger, district judges have often compensated class action
attorneys by awarding a fee based on a moderate percentage of the common
fund recovery. See e.g., In re Indep. Energy Holdings PLC Sec. Litig.,
2003 U.S. Dist. LEXIS 17090, at *31-32 (S.D.N.Y., 2003) (20% net of
expenses); In re Twinlab Corp. Sec. Litig., 187 F. Supp.2d 80, 87
(E.D.N.Y., 2002) (12% of common fund); In re Dreyfus Aggressive Growth
Mutual Fund Litig., 2001 U.S. Dist. LEXIS 8418, at *25 (S.D.N.Y. 2001)
(15% of common fund); In re Amer. Bank Note Holographies, Inc., Sec.
Litig., 127 F. Supp.2d 418, 431-33 (S.D.N.Y. 2001) (25% of settlement); In
re Arakis Energy Corp. Sec. Litig., 2001 U.S. Dist. LEXIS 19873, at *49
(E.D.N.Y. 2001) (25% of settlement). But determining the proper fee upon
a recovery requires judgment and discretion in relation to all the
criteria set out in Goldberger, and not only the size of the recovery or
the proper percentage to be applied to such recovery. See 209 F.3d at
Counsel argue that their request for a fee of one-third of recovery is
reasonable and not objected to by SICOR, and they submit a supporting
declaration by Professor Geoffrey P. Miller, discussing relevant case law
and referring to several empirical studies. However, an expert is not
needed to discuss the law; that is a task for counsel. I therefore reject
Professor Miller's brief as inappropriate for an expert. See LinkCo,
Inc. v. Fujitsu Ltd., 2002 U.S. Dist. LEXIS 12975, at *7 (S.D.N.Y.
2002). Furthermore, Professor Miller's data largely predate Goldberger,
and his conclusions are therefore based on results that the courts have
considered inappropriate and which,
Page 12
since Goldberger, they have rejected. See, e.g., Herbert M. Kritzer,
Investing in Contingency Fee Cases, Wisconsin Lawyer 11 (August 1997);
Thomas E. Willging, et al., Empirical Study of Class Actions in Four
Federal District Courts: Final Report to the Advisory Committee on Civil
Rules 4 (1996); and James S. Kaklik, et. al., Costs of Asbestos
Litigation Table S.2 (Rand ICJ 1983). His citations to more recent awards
also are distinguishable, for they arise in situations where a lodestar
methodology would have brought about unreasonable and inequitable
results. See, e.g., RMED Int'l, Inc. v. Sloan's Supermarkets, Inc., 2003
U.S. Dist. LEXIS 8239, at *6 (S.D.N.Y., 2003) (33 1/3% of the settlement
where it equaled an hourly rate of $160); Strougo v. Bassini,
258 F. Supp.2d 254, 262 (S.D.N.Y., 2003) (33 1/3% where lodestar amount
exceeded the total settlement amount); Baffa v. Donaldson Lufkin &
Jenrette Sec. Corp., 2002 U.S. Dist. LEXIS 10732, at *8-9 (S.D.N.Y.,
2002) (30% awarded where lodestar was 79% of settlement amount); In re
Blech Sec. Litig., 2002 U.S. Dist. LEXIS 23170, at *5 (S.D.N.Y. 2002) (33
1/3% award totaling $919,666,67 where lodestar was $5.4 million); Maley
v. Del Global Techs. Corp., 186 F. Supp.2d 358, 367 (S.D.N.Y., 2002) (33
1/3% where only 18% was in cash and the attorney's bore the same risks
regarding the paper as the class did); Steiner v. Williams, 2001 U.S.
Dist. LEXIS 7097 (S.D.N.Y., 2001) (30% where counsel took an unusually
large risk in taking the case). Professor Miller's view, when analyzed,
supports the approach developed in my discussion that no single method
can be conclusive; a reasonable fee award requires all relevant criteria
to be evaluated. See generally, NYCRR § 1200.11.
Clearly, there is no magic formula to determine the reasonableness of a
lawyer's fee. Some lawyers work according to time rates; some work
according to percentages of recovery. But clients can negotiate ceilings
in aggregate payments to lawyers or reduced time-rates, if fee payments
based on time become unacceptably high, and clients can negotiate
converting a
Page 13
contingent fee-percentage to a time-rate or vice-versa, according
to the potential size of an anticipated recovery or settlement. The
ability of lawyer and client to negotiate with one another is the best
determinant of reasonableness.
In class and derivative litigation, there generally is no opportunity
for clients and lawyers to negotiate a fee. A derivative lawsuit is
brought on behalf of a corporation that has declined the opportunity to
file a lawsuit, frequently because of substantial identities between the
corporation's management and the defendants who are to be sued. In a
class setting, the client seeking to recover damages generally lacks a
sufficiently substantial interest to justify the risk and expense of a
lawsuit. It is the lawyer-specialist who brings the lawsuit and who will
seek his compensation, not from the nominal client in whose name the suit
is brought, but from a court's allowance from the recovery that the
lawyer is able to produce.
Thus, the district judge must emulate the position of a client and
determine, from the perspective of a client, a reasonable method of
compensation and an aggregate fee that would be reasonable in the
circumstances. And, unlike the cases and controversies that come before
the judge for decision, the decision of reasonableness must be made
without the contentions and careful and skeptical outlooks of adverse
parties. A conspiracy of silence between the settling parties gives the
judge no help in reviewing a petition seeking an award of fees and
allowances. See Levy v. General Electric Capital Corp., 2002 U.S. Dist.
LEXIS 10051, *6-8 (SDNY, 2002).*fn5
Page 14
The district judge's perspective must be based both on market values
(to the extent such values can be ascertained after a case has been
completed, rather than before a case has been brought), see Matter of
Continental III. Sec. Litig., 962 F.2d 566 (7th Cir., 1992); Levy v.
General Electric Capital Corp., 2002 U.S. Dist. LEXIS 10051, *8 (SDNY,
2002), and criteria established in relevant case law, including: (1) the
risks of pursuing a case; (2) the complexity and uniqueness of the
litigation; (3) the quality of the representation; (4) counsel's time and
effort; (5) the percentage that a fee will represent in relation to the
settlement amount; and (6) public policy considerations. Goldberger, 209
F.3d at 50.
Applying these criteria, the application of plaintiff's counsel for a
fee of $3,580,000, reflecting a multiplier of 606% of the time that
Plaintiff's counsel expended, far exceeds reasonableness.
The first criterion of Goldberger, the risk in pursuing the case, is
considered most important. Goldberger, 209 F.3d. at 54 (quoting Grinnell
I, 495 F.2d at 471). Although most securities cases settle, and some may
think that the risk is less real than theoretic, id. at 52 (citation
omitted), practitioners know that each case, at inception, is fraught
with its own unique set of risks. In the case at hand, plaintiff's
counsel was concerned with difficult problems regarding the valuation of
unique assets at a certain point in time. The crux of plaintiff's case
required experts' valuation of the business and assets of Biotechna, a
privately held, Lithuanian, biotech company. Valuation of a business is
generally complex and often subjective, and even more so when, as with
Biotechna, it involves nonpublic financial information regarding an
unsteady foreign industry with unproven products that cannot be marketed
without government approval that, until then, it did not have.
The typical "16(b)" case involves a comparison of stock prices,
purchased relatively
Page 15
low and sold relatively high within a six-month, short-swing period.
Plaintiff's case depended on there being little or no value to Biotechna
when Salvi's company sold it to SICOR on July 25, 2001, as matched
against the October 16, 2001 sale of 1,500,000 shares at $17.175 per
share. Proof to that effect depended on how the trier of facts would
evaluate the conflicting testimony of experts, and predictions of such
evaluations are necessarily difficult and often unreliable.
The state of "16(b)" law presented another formidable risk. In policy
and regulations, the SEC was evolving to a position that enabled issuers
to conduct transactions with insiders without giving rise to "16(b)"
forfeiture of profits. Ownership Reports and Trading by Officers,
Directors and Principal Security Holders, Exchange Act Release No.
37260, [1996-1997 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶ 85,810 at
88,059 (May 31, 1996). The theory was that issuers did not affect the
public market by such transactions, and thus did not profit at public
expense. Id. As long as the disinterested directors of a company approved
a transaction, the officers, directors and controlling stockholders of a
corporation were given a "safe harbor" to effect transactions, even
short-swing transactions, with the corporation of which they were
"insiders." 17 C.F.R. § 240.16b-3(a), (d). Gryl v. Shine Pharmaceutical
Group Plc, 298 F.3d 136, 145-46 (2d Cir. 2002); but cf., Levy v. Sterling
Holding Co., 314 F.3d 106 (3d Cir. 2002) (limiting SEC exemption to
compensation related transactions for executives); Peter J. Romeo and Alan
L. Dye, Comprehensive Section 16 Outline, 313-14 (2001).
Thus, plaintiff's counsel faced a formidable set of risks when they
decided to file the case.
The lawsuit also presented complexity and uniqueness the second
criterion for much the same reasons as those I discussed above in
the context of the first criterion.
The third and fourth criteria require me to consider the quality of
Page 16
counsels' representation and the quality and quantity of time and
effort they devoted to the litigation.
Plaintiff's counsel chose to confront the issue of valuation head on.
The submission of their experts showed good quality of craftsmanship.
But, predictably, so did the submissions of defendants' experts. Thus,
plaintiff's counsel followed a high-risk strategy with unpredictable
There was another strategy, however, that plaintiff's counsel appear to
have missed, a strategy focused on the antecedent transaction between
Salvi and Biofa, and testing the sufficiency of the review that the
independent directors should have pursued with regard to the
transactions. The coincidence in time of the two transactions, Salvi's
purchase of Biofa, followed by Salvi's sale of Biofa to SICOR, and the
excuse that SICOR was not able to make the purchase (entirely financed by
outside parties) when, nine months later, it suddenly found the capacity
to do so, might have been more fully exploited in discovery. The two
independent directors, Donald E. Panoz and Carlo Ruggieri, might also
have been tested more aggressively as to their freedom from entwining
relationships with Salvi, and the rigor of their examinations and
evaluations of the two sets of transactions.*fn6 Salvi's argument, that
he bought Biofa at his expense and risk solely to hold it for SICOR, and
that 1,500,000 shares of SICOR's stock in October 2000 was worth the same
as 1,500,000 shares of Rakepoll Finance's stock nine months earlier,
seems more a pretextual rationale than a real equivalence. Furthermore,
SEC literature relating to section 16(b) lawsuits makes
Page 17
specific reference to accompanying derivative lawsuits for waste of
corporate opportunities, see Ownership Reports and Trading by Officers,
Directors and Principal Security Holders, Exchange Act Release No.
37260, [1996-1997 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶ 85,066 (May
31, 1996), and that opportunity seems to have been neglected in this
Two lawyer-specialists in "16(b)" lawsuits, Glenn F. Ostrager of
Ostrager Chong & Flaherty LLP, and Paul D. Wexler of Bragar Wexler
Eagel & Morganstern LLP represented plaintiff. Mr. Ostrager's firm
billed a total of 712.7 hours, and Mr. Wexler's firm billed a total of
451.40 hours, mostly at the time-rates of the two senior partners: $525
and $550 per hour, respectively. The services of Mr. Ostrager and Mr.
Wexler overlapped to a considerable degree. Both senior lawyers performed
apparently duplicative work and both attended the same depositions. Each
submitted time charges showing equivalent hours for preparing for, taking
and reviewing the depositions of defendants Salvi and Cannon, expert
witness Taylor, and independent director Ruggieri. The deposition of the
second independent director, Donald E. Panoz, was not taken. Plaintiff's
counsels' questioning, in anticipating or seeking to overcome the
expected defenses was average. The expert witness, Taylor, does not
appear to have been confronted with the assumptions on which he based his
analyses and opinions: why projected income streams from generic products
that, until then, could not satisfy Western European and American
regulators could suddenly be considered sufficiently reliable to sustain
opinions of high asset values; or why replacement values in Western
markets could be considered a reliable indicia of value equivalent to the
obsolescent and deficient nature of the Biofa assets, etc.
Possibly, the information on which I remark was elicited, and possibly
the depositions show that plaintiff's counsel were not able to obtain
information that could support their
Page 18
case. But none of their submissions discussed any of this, and I
infer from their silence that these avenues were not pursued well. The
absence of such pursuits is a comment on the thoroughness and quality of
Plaintiff's counsels' representation.
Having reviewed the details of the services by both Plaintiff's firms,
I find a duplication of effort by the lead counsel, inadequate delegation
of work to younger lawyers of tasks commonly performed by younger lawyers
at lower rates, and too much work being performed at relatively higher
hourly rates than should have been the case. The senior lawyers, Paul D.
Wexler and Glenn F. Ostrager performed the great bulk of the work
investigating the facts and merits of the case, researching the law
before filing the complaint, and in drafting the complaint at $550 and
$525 per hour respectively. Only six of the approximately 178 hours
reported for those tasks were performed by younger lawyers, and most of
those six hours were legal research performed at $350 an hour, much too
high a rate for the work assigned. Six depositions were taken and, for
each of the six, the senior lawyers, again, did the same preparatory and
review tasks, and both appeared at each deposition. Plaintiff's counsel
argue that their involvement produced certain efficiencies, but one may
well question that, for it seems, in the interest of efficiency and
economy, there should have been more division of effort, more delegation
to younger and less expensive lawyers, and more intelligent supervision.
The total value of the time charges relating to the services performed
by Plaintiff's counsel adds to $585,472.75. In my judgment, and from the
perspective of a client looking at the duplication of services and the
failure to relate hourly rates to the nature of the particular services
performed, the value of the time charges may have over-valued the fair
time value of the services rendered. In a case of quantum meruit that
might have resulted in a discounted payment. With
Page 19
regard to lawyers' fees, however, the court must also consider other
factors, including, in particular, the value of the benefit conferred,
that is, the amount of the settlement.
Thus, plaintiff's counsel argue that they should be compensated, more
for the good settlement that they produced, than for the time they
expended. Plaintiff's counsel argue that they produced a settlement of
$10,750,000 payable to SICOR in cash (less fees and allowances) that is
large in the aggregate and in relation (38 percent) to the maximum damage
claim of $28,704,750, and that SICOR would not have gained that amount
without the lawsuit that they initialed.
Clearly, the settlement plaintiff's counsel produced was substantial,
and clearly SICOR itself would not have sued its dominant principal,
Carlo Salvi, or his controlled companies and colleagues to recover the
insider profits that they gained from short-swing trading. I approved
that settlement as fair and reasonable to SICOR, and plaintiff's counsel
clearly are entitled to reasonable compensation for producing that
settlement. And, although I criticize certain aspects of the efforts and
services of plaintiff's counsel and reason that more could and should
have been obtained, it is unquestionable that a substantial amount was
obtained for SICOR, and that without plaintiff's counsels' efforts
nothing would have been obtained.
The sixth criterion of Goldberger requires that a proposed fee
allowance should be evaluated in relation also to public policy
considerations. Congress left enforcement of section 16(b) cases to
shareholders and consequently to the attorneys who find such cases and
represent the shareholders who consent to be plaintiffs. The SEC was
given no role in enforcing section 16(b). Thus, section 16(b) can be
enforced, and the market's integrity can be protected, only if attorneys
are willing to invest the time and energy, and assume the risk, that is
involved in investigating numerous SEC filings in the search to uncover
insiders who make improper short-swing profits, and filing lawsuits
against those unwilling to return such profits. Reasonable, even
Page 20
compensation to the attorneys who investigate, identify and prosecute
such cases is consistent with the statutory plan and necessary for its
implementation and enforcement. See John C. Coffee, Jr., Understanding
the Plaintiff's Attorney: The Implications of Economic Theory for Private
Enforcement of Law Through Class and Derivative Actions, 86 Colum. L.
Rev. 669 (1986) (treating the issue of compensation generally for
attorneys successfully prosecuting class and derivative lawsuits). The
criticisms of counsel for being motivated by the fees they might earn,
rather than the good they might do, are misplaced. See Goldberger, 209
F.3d at 53; cf., Michael H. Dessent, Weapons to Fight Insider Trading in
the 21st Century: A Call for the Repeal of Section 16(b), 33 Akron L.
Rev. 481 (2000). The critics have no sound data of public injury, or
burden to corporations for whose benefit such actions are brought and
recoveries are obtained, or improper imposition on insiders whose
transactions attract lawsuits. The arguments of "overenforcement and
opportunism by attorneys," allegedly creating "a negative image of the
legal profession in the mind of the public," Id. at 502, reflects the
rhetoric of critics, not sound judgment based on empirical studies.
Counsel argue that considerations of public policy, such as those
mentioned above, support awards of compensation, not only for the work
they performed and the results they obtained in the instant case, but
also for pursuing investigative leads that do not result in cases filed,
and for the risks of losing cases and going uncompensated. They contend
that numerous potential cases must be examined for every one that is
eventually deemed to have merit and that acting in such a watchdog
capacity helps to protect the market's integrity and advance the public
interest. But plaintiff's counsel furnishes no documentation of the
extent of their investigative work or what proportion such work may have
in relation to profitable work. Plaintiff's counsel may be entitled to a
bonus over their time charges but, without quantification, the amount has
to have some reasonable
Page 21
relation to their time charges. A lawyer's fee should not be likened to a
case of salvage, where reward is given to the successful finder, often
with little regard to how much or how little effort the finder expended.
In sum, evaluating the six factors of Goldberger, I should compensate
plaintiff's counsel in a manner to recognize (1) the risks they undertook
to prosecute this case (2) of uncommon complexity, while recognizing,
however, that (3) the quality of representation was ordinary and the (4)
time and effort they devoted was duplicative and, to a degree,
inefficient. The first and second consideration above, and the
consideration of public policy (the sixth factor) suggest a bonus over
time charges. Thus, I hold that plaintiff's counsel's fee should be fixed
at $850,000, approximately 145 percent of time charges and eight percent
(the fifth factor) of the settlement of $10,750,000. In addition, I order
reimbursement to plaintiff's counsel of their expenses and disbursements
in the amount of $30,613.80.
For the reasons stated, plaintiff's counsel are entitled to fees of
$850,000, to be divided between them either as agreed or in proportion to
their reported time charges, and to reimbursements of their expenses in
the aggregate amount of $30,613.80.
The clerk will now close the file.
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We are an inspired group of teachers, parents and community members who desired a beautiful and natural setting for children to discover their own love of learning. We started a Waldorf inspired program that stimulates the Heart, Mind, Spirit, and Body of each child through circle time songs and games, stories, yoga, hand crafts, gardening, language arts, science, cooking, drumming, Spanish, Woodwork and more. We are located in North Miami. We offer... Kinder {mid 4 3/4 - 6 year olds} on Monday - Friday, Half and full day Options & Grades {7-9 year olds}on Monday - Fridays
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Explore Buddhist God, Buddhist Statues and more!
Kubera also known as Jambhala is the Buddhist god of wealth. In many depictions such as this one, the deity is shown as a plump figure wearing a crown, ribbons and jewelry, and holding a mongoose, representing his victory over the naga (snake deities), who symbolize greed. As God of Wealth, Kubera squeezes the mongoose and causes the creature to spew out jewels. This lost wax method statue was hand cast by the very talented artists of the beautiful country of Nepal. Every piece is truly…
A Japanese Shingon Shu Esoteric Buddhist ritual implement called a Crossed Vajra and dating to the Mid-Edo period (1720). The Japanese deity Fudo Myo is often depicted holding a rope in one hand and Vajra in the other. Kobo Daishi statues are also often carved with him holding a vajra in one hand. The word Vajra literally means Indras Thunderbolt (Indra is a Hindu deity). The vajra is one of the exotic, mysterious ritual objects that Shingon introduced into Japanese Buddhism.
This Shakyamuni Buddha statue is seated in dhyana asana or meditative pose. In this position, the legs are crossed, closely locked with the soles of both feet visible. Lord Buddha is seated on a single lotus base also known as padmasana. This hand painted, lost wax method copper sculpture is a one of a kind statue, hand cast by the very talented artists of the beautiful country of Nepal. Every piece is truly unique!


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I don't make New Year's Resolutions. I don't think I ever really did, but the last decade or two would have been enough to stifle that impulse. I've just been too aware that I don't have that much control over what happens in my life.
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Mainstreaming ME Research: The 8th Invest in ME International ME Conference, 2013
Discussion in 'Phoenix Rising Articles' started by Mark, Jun 3, 2013.
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Why should home care be the theme on Understanding and Remembrance Day for Severe ME on August 8? Helen Brownlie of the 25% ME Group has written an explanation for Phoenix Rising ...
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successful treatment for light/noise sensitivity?
Discussion in 'Hypersensitivity and Intolerance' started by Gavman, Feb 26, 2012.
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March 21, 2013
PROTECTIVE LIFE INSURANCE COMPANY,PLAINTIFF,v.ANA BERTA ALVAREZ, ET AL., DEFENDANTS.
ORDER GRANTING MOTION INSURANCE PROCEEDS [Doc. No. 31]
This matter is now before the Court on Defendant Theresa Hawkins'*fn1 Motion for Default Judgment. [Doc. No. 31.] For the following reasons, the Court GRANTS the motion.
"'The general rule of law is that upon default the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.'" TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (quoting Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977)). However, a party who obtains an entry of default is not entitled to default judgment as a matter of right. See Warner Bros. Entm't Inc. v. Caridi, 346 F. Supp. 2d 1068, 1071 (C.D. Cal. 2004). Default judgments are disfavored; cases should be decided on the merits if possible. See In re Roxford Foods, Inc., 12 F.3d 875, 879 (9th Cir. 1993). Thus, "any doubts as to the propriety of a default are usually resolved against the party seeking a default judgment." VonGrabe v. Sprint PCS, 312 F. Supp. 2d 1313, 1319 (S.D. Cal. 2004) (citing Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985)).
In determining whether to grant default judgment, the Court considers the following factors: (1) the possibility of prejudice to the moving party, (2) the merits of the moving party's substantive claim, (3) the sufficiency of the moving party's claims, (4) the sum of money at stake in the action, (5) the possibility of a dispute concerning material facts, (6) whether the default was due to excusable neglect, and
(7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Warner Bros., 346 F. Supp. 2d at 1071-72 (quoting Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986)).
Here, the Court finds that the majority of the factors weigh in favor of granting Hawkins' motion for default judgment against the absent Defendants. First, Defendant Hawkins has properly litigated her claim and will be prejudiced if the entry of judgment is delayed. The Court also finds that Defendant Hawkins' Answer sufficiently alleges substantive claims which concern a significant amount of money. Further, in light of the fact that Defendants Ana Berta Alvarez and Monica Figueroa (individually and as Administrator of the Estate of Teresa Cabrales Alvarez) have not appeared in this case, there is no possibility of a dispute over the material facts and there is no indication that the default was due to their excusable neglect. This Court therefore finds that factors (1) through (6) weigh in favor of granting Hawkins' motion. The only factor that weighs against granting the motion is the strong policy favoring decisions on the merits. Having considered all of the relevant factors, this Court determines that default judgment in favor of Defendant Hawkins is warranted.
Based on the foregoing,
(1) Default Judgment is entered against Defendants Ana Berta Alvarez, Monica Figueroa, and Monica Figueroa as Administrator of the Estate of Teresa Cabrales Alvarez, and in favor of Theresa Hawkins as Administrator of the Estate of David Alvarez. The Court finds that Theresa Hawkins as Administrator of the Estate of David Alvarez is entitled to all proceeds of the life insurance policy pertaining to decedent David Alvarez in this action, and on deposit with this Court in this action.
(2) On or about July 17, 2012, Plaintiff deposited with the Clerk of Court the sum of $103,821.92, which represented the face value of the life insurance policy plus interest. [Doc. No. 4.] On February 11, 2013, the Court discharged Plaintiff Protective Life Insurance Company, and awarded Plaintiff $6,160.76 in costs and reasonable attorney fees. [Doc. No. 27.] The Clerk of Court shall release the remaining $97,661.16, including all interest, to Defendant Theresa Hawkins as Administrator of the Estate of David Alvarez.
(3) The Clerk of Court shall enter final judgment accordingly and terminate this case.
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A man named Ike Iwuanyanwu, has been arrested by the Lagos state police command for allegedly raping and impregnating his 15-year-old daughter.
The incident which happened at Ajao Estate, in the Isolo area of the state, was made known to the police on Wednesday after the case was reported.
According to PUNCH Metro, Iwuanyanwu, who has now been taken into custody by the police also allegedly beat his wife and daughter, warning them against disclosing the evil act to anyone. The girl's mom however reported the case to her family members who in turn went to the girl's school to confirm the story.
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A neighbor to the Iwuanyanwus, who spoke on condition of anonymity,confirmed that the father had confessed to the crime.
The man is a driver and the girl is his first child. None of us knew anything about the incident until he was arrested. The only thing we saw was that the man beat up his wife and daughter late in the night on Tuesday.The girl was pregnant and the father tried to hide it. It was her school that informed the Lagos State Government.
The girl confessed that it was her father who raped and impregnated her. The Lagos State Ministry of Youth and Social Development alerted the police and the man was arrested.The suspect did not deny that he impregnated the girl. He knew the government was involved and he had no hiding place. We learnt he told the police that his wife did not allow him to have sex with her and he yielded to the temptation of raping his daughter.
The girl's mother told her family members, who then went to her school. They did not know the school authorities would get the ministry involved. The matter was also reported to some child rights workers in the Oshodi area.
Punch Metro also learnt that the girl's pregnancy had been aborted after her mother took her to a place where the fetus was flushed out, this act led to the arrest of the girl's mother for her involvement in the entire case.
The Coordinator, Domestic and Sexual Violence Response Team, Lagos State, Lola Vivour-Adeniyi, said the victim was safe in government's custody.
Social workers have rescued the victim. She is now at an orphanage provided by the state government. We have also called for the duplicate case file. The girl's mother was arrested for allegedly aborting the pregnancy. The police may grant her bail on the grounds that she has a four-year-old boy."
SP Dolapo Badmos, Lagos State Police Public Relations Officer, confirmed the incident, adding that investigation was ongoing.
The man raped and impregnated his daughter, while the mother also procured abortion for her. The Commissioner of Police, Fatai Owoseni, has ordered that the case be transferred to the gender unit of the command for investigation. The girl is placed in a shelter because we cannot afford to see her go back to that vicinity.


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May 13, 2011
ADAM RICHARDS ET AL.,PLAINTIFFS,v.COUNTY OF YOLO AND YOLO COUNTY SHERIFF ED PRIETO,DEFENDANTS.
Plaintiffs Adam Richards, Brett Stewart, the Second Amendment Foundation, Inc., and The Calguns Foundation, Inc. (collectively, "Plaintiffs") seek redress from Sheriff Ed Prieto and the County of Yolo (collectively, "Defendants") after Plaintiffs Richards and Stewart were denied gun permits under Yolo County's, and by extension Sheriff Prieto's, concealed weapon licensing policy.
Both Plaintiffs and Defendants have filed Motions for Summary Judgment. A hearing on the matter was held on March 10, 2011. For the reasons set forth below, Plaintiffs' Motion is denied and Defendants' Motion is granted.
A.Concealed Weapon License Policy
California law generally prohibits individuals from carrying a concealed firearm in public. *fn1 See Cal. Penal Code §§ 12025(a)(2), 12027. With a permit and for self-defense purposes, one can obtain 7 a license in California to carry a firearm "capable of being 8 concealed upon the person." Penal Code § 12050(a)(1)(A)(i). 9
However, applicants for such a license must provide good cause for applying, and demonstrate they are of "good moral character." Penal Code § 12050(a). Other requirements include a background check and completion of a training course. See id. Beyond these basic requirements, the state grants each municipal or county authority wide latitude to determine both the appropriate criteria for issuing a license and the need to impose any reasonable restrictions on the licensee. Penal Code § 12050(b).
Plaintiffs are not challenging the California statute itself*fn2 , but 2 instead challenge Yolo County's interpretation of their statutory 3 authority, namely its Concealed Weapon License Policy.
Consistent with the regulations under California Penal Code, Yolo County and Defendant Prieto, as the Sheriff, have created a 6 policy regulating the issuance of concealed weapon licenses to Yolo County residents. Sheriff Prieto retains "discretion to issue a 8 license to carry a concealed firearm to residents within Yolo County." (See Policy, ECF No. 60-1, at 1.) The policy, accessible to the public, clearly enumerates the criteria for obtaining the license, and an applicant must, among other things, demonstrate that they have a valid reason to request the permit in the first place. (Id.) Examples of valid reasons listed in the policy "include, but are not limited to:" credible threats of violence against the applicant, and being a business owner who carries large sums of cash. (Id. at 1-2.) Examples of invalid reasons include hunting, fishing, or self-defense "without credible threats of violence." (Id. at 2.) The issuance of a license ultimately bears on whether the "Sheriff or his designee feels there is sufficient reason to grant the license." (Id.)
Plaintiffs Second Amendment Foundation, Inc. and The Calguns Foundation, Inc. are non-profit organizations designed to promote the rights of firearm holders, and more generally anti-gun control advocates. (SAC 2.) Both Plaintiffs Richards and Stewart are members and supporters of both organizations. (Id. at 1.)
In March 2009, Plaintiff Richards contacted the Yolo County Sheriff's office to inquire about the procedure to obtain a permit to carry a handgun. Defendant was told that he could not obtain a concealed weapon license for self-defense purposes because that would not constitute good cause under the terms of the policy. (Id. at 4.) In addition, since Plaintiff Richards resides in Davis, the Yolo County Sheriff's office informed him that he would first have to apply for a concealed weapon license from the Chief of Police in the City of Davis. (Id.)
Similarly, in March 2010, Plaintiff Stewart applied for a concealed weapon license from Yolo County, after first being told that Davis police had discontinued issuing Carry Concealed Weapon permits. (Id. at 5.) On April 27, 2010, Plaintiff Stewart was informed in writing that he was being denied a permit by Yolo County because his application did not "'meet the criteria'" for granting a license, as outlined in the policy. (Id.)
The Federal Rules of Civil Procedure*fn3 provide for summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
In considering a motion for summary judgment, the court must examine all the evidence in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Once the moving party meets the requirements of Rule 56 by showing that there is an absence of evidence to support the non-moving party's case, the burden shifts to the party resisting the motion, who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
Each party seeking summary judgment bears "the initial responsibility of informing the district court of the basis for its motion." Celotex, 477 U.S. at 323. However, genuine factual issues must exist that "can be resolved only by a finder of fact, because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250.
In judging evidence at the summary judgment stage, the court does 2 not make credibility determinations or weigh conflicting evidence.
See T.W. Elec. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-631 (9th Cir. 1987) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
A. Second Amendment
1. Heller and the Scope of Protection
Plaintiffs argue that, by maintaining a policy that deprives Plaintiffs Richards and Stewart of a concealed weapon license, Defendants are infringing on their Second Amendment right to bear arms, as the Yolo County license policy effectively acts as a complete ban on an individual's right to carry. They challenge the policy both on its face, and as applied. (See Mot. Summ. J. Hr'g Tr. 9:15-17, March 10, 2011, ECF No. 70.) Defendants, on the other hand, believe that the Second Amendment has never been interpreted as granting citizens the right to carry a concealed weapon in public, and restrictions on firearm possession has been the status quo in the United States for many years. Further, Defendants contend that Yolo County's policy does not violate the Second Amendment, because it is not a total ban on the possession of handguns.
The Second Amendment protects an individual's right to "keep and bear arms." U.S. Const. amend. II. Rights bestowed under the Second Amendment are "fundamental," and apply "equally to the Federal Government and the States." McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010). Specifically, the Second Amendment "protects a personal right to keep and bear arms for lawful 7 purposes, most notably for self-defense in the home." McDonald, 130 S. Ct. at 3044. See also United States v. Heller, 554 U.S. 570, 635 (2008) ("the District's ban on handgun possession in the home [for self-defense purposes] violates the Second Amendment."); United States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010) (explaining the scope of Heller was limited to the right to register and keep a loaded firearm in the home for self-defense).
However, as the Supreme Court of the United States recently clarified in a landmark case, the "right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Heller, 554 U.S. at 626. In fact, the Court was careful to explain that their decision did not, in any way, invalidate many of the longstanding state and federal prohibitions on firearm possession.
Id. at 627.*fn4 Based upon this, Heller cannot be read to invalidate Yolo County's concealed weapon policy, as the Second Amendment does not create a fundamental right to carry a concealed weapon in public.
Furthermore, the policy does not create a total ban on carrying a firearm, such that the policy completely infringes on the rights protected by the Second Amendment. Since the Supreme Court has yet to articulate the appropriate standard of review, the Ninth Circuit has determined that only regulations that "substantially burden the right to keep and bear arms trigger heightened scrutiny under the Second Amendment." Nordyke v. King, No. 07-15763, 2011 WL 1632063, at *6 (9th Cir. May 2, 2011) (evaluating whether a restriction on gun sales substantially burdens Second Amendment rights). It then follows that if the regulation does not place a substantial burden to an individual's fundamental right, then rational basis review applies.
Id. at *6 (In "a variety of contexts" the Supreme Court "applies mere rational basis scrutiny to laws that regulate, but do not significantly burden, fundamental rights."). *fn5
In determining whether government action "substantially burdens" a constitutionally-protected right, courts "typically ask whether the restriction leaves open sufficient alternative avenues" for exercising the right. Id. at *7-8. The appropriate inquiry here, under a substantial burden analysis, is whether Yolo County's restrictions leave Plaintiffs with "reasonable alternative means" to obtain and keep a firearm "sufficient for self-defense purposes." Id. at *7.
California Penal Code has carved out a number of exceptions that allow individuals to possess and carry loaded firearms in public settings, including for use in hunting, or in a situation where someone who believes they are in "immediate, grave, danger and that the carrying of the weapon is necessary for the preservation of that person or property." Penal Code § 12031(j)(1).*fn6
A regulation or policy "does not substantially burden a constitutional right simply because it makes the right...more difficult to exercise." Nordyke, 2011 WL 1632063, at *8.
Under the statutory scheme, even if Plaintiffs are denied a concealed weapon license for self-defense purposes from Yolo County, they are still more than free to keep an unloaded weapon nearby their person, load it, and use it for self-defense in circumstances that may occur in a public setting. Yolo County's policy does not substantially burden Plaintiffs' right to bear and keep arms. Therefore, rational basis review applies.
A regulation is constitutional under rational basis review if it bears "a reasonable relationship to a legitimate government interest." United States v. Whitlock, 2011 WL 1651232, at *5 (9th Cir. April 28, 2011) (citing United States v. LeMay, 260 F.3d 1018, 1031 (9th Cir. 2001)). As Defendants contend, regulating concealed firearms is an essential part of Yolo County's efforts to maintain public safety and prevent both gun-related crime and, most importantly, the death of its citizens. Yolo County's policy is more than rationally related to these legitimate government goals, and Plaintiffs' Motion for Summary Judgment fails as to this portion of their argument.
2. Defendants' "Good Cause" Discretion
Plaintiffs also assert that the portions of Yolo County's concealed weapon license policy evaluating an applicant's good moral character and good cause for seeking a permit, gives the government "unbridled discretion" in violation of the Second Amendment. In applying traditional First Amendment analysis, Plaintiffs contend the statute is a prior restraint on the freedom to keep and bear arms. Defendants, in turn, believe any analogy of the Second Amendment to the First is improper because it "ignores the fundamental difference between regulation of speech and guns." (Def's. Mot. for Summ. J. 24, ECF No. 59.)
In a facial challenge*fn7 to a statute outside of the First Amendment context, a plaintiff must demonstrate that "no set of circumstances exists under which" the statute would be valid, "i.e. that the law is unconstitutional in all of its applications."
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008). See also Hotel & Motel Ass'n. of Oakland v. City of Oakland, 344 F.3d 959, 971 (9th Cir. 2003) ("To bring a successful facial challenge outside the context of the First Amendment, the challenger must establish that no set of circumstances exists under which the statute would be valid." (internal citations omitted)); Nordyke, 2011 WL 1632063, at *7 n.11 ("A facial challenge" is "the most difficult challenge to mount successfully.").
Courts are instructed to first determine whether "the enactment reaches a substantial amount of constitutionally protected conduct" by examining "the ambiguous as well as the unambiguous scope of the enactment." Village of Hoffman Estates v. Flip-side, Hoffman Estates, Inc., 455 U.S. 489, 494 & n.6 (1982).
Such an inquiry must be "examined in the light of the facts of the 7 case at hand," which should ultimately demonstrate that the 8 regulation is patently invalid because "no standard of conduct is 9 specified at all." Id. at 495 n.7 (internal citations omitted).
An exception to the rigidity of the facial challenge test exists for issues involving the First Amendment. A law involving First Amendment protections "may be overturned as impermissibly broad because a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." Wash. State Grange, 552 U.S. at 449 n.6 (internal citations omitted). Plaintiffs suggest the Court turn to case precedent established from examining the rights and regulations carved from the First Amendment as a framework for assessing those rights indicated under the Second Amendment. However, Plaintiffs do not address the exception in their papers, but cite cases entrenched in First Amendment constitutional analysis. The Court sees no reason to analogize rights under the Second Amendment to those under the First, as plenty of case authority exists to provide a clear framework of analysis to facial challenges, without poaching precedent from another Amendment's framework.
Therefore, this Court cannot invalidate the good cause and good moral character portions of Yolo County's policy as unconstitutional on their face. Plaintiffs cannot demonstrate that there are zero circumstances under which Sheriff Prieto could clearly issue a concealed weapon permit to someone who demonstrates plausible good cause under the terms of the policy, and is also of objective good moral character. Any inquiry into the facial constitutionality of Yolo County's policy is futile, for it is both "undesirable" and near impossible for the Court to "consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation." Gonzales v. Carhart, 550 U.S. 124, 168 (2007) (internal citations omitted); Nordyke, 2011 WL 1632063 at *7. Facial challenges are also disfavored for many reasons, most notably because they "rest on speculation." Wash. State Grange, 552 U.S. at 450.
Moreover, Yolo County's policy does contain a standard of conduct; applicants are clearly instructed to be of good moral character (and submit application documents corroborating such character), and demonstrate good cause for requiring the license. The policy goes further by providing examples of the types of good cause that satisfy the terms of the policy. While Plaintiffs are entitled to dislike the qualifications and standards created by Sheriff Prieto and Yolo County's policy, they cannot demonstrate that the policy itself is void for facial vagueness. For each of the above reasons, Plaintiffs' Motion for Summary Judgment on the Second Amendment claim fails and Defendants' Motion for Summary Judgment is granted.
B. Equal Protection
Plaintiffs insist that Yolo County's concealed weapon license policy is subjective because Sheriff Prieto has discretionary authority to determine what constitutes "good cause." Plaintiffs also believe the policy is arbitrary and violates Equal Protection because some individuals are granted the right to bear arms for self-defense, while others are not. Defendants maintain that Yolo County's interest in preventing crime and ensuring public safety merits the policy's language and renders it constitutional.
The Equal Protection Clause of the Fourteenth Amendment requires that all "persons similarly situated" be treated the same under the law. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985); Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (1995). Modern equal protection analysis is a two step process: the first step is identifying the classification of groups, namely that a law is "applied in a discriminatory manner or imposes different burdens on different classes of people." Id.
The second step requires the court to "assess the legitimacy of a discriminatory statute under the appropriate level of scrutiny." Sagana v. Tenorio, 384 F.3d 731, 740 (9th Cir. 2004).
Where an ordinance does not "purposefully operate to the detriment of a suspect class, the only requirement of equal protection is that the ordinance be rationally related to a legitimate governmental interest. Nordyke, 2011 WL 1632063, at *14 (internal 5 citations omitted).*fn8
Plaintiffs' equal protection claim fails for two reasons.
First, the policy does not treat similarly situated individuals 8 differently. All law-abiding citizens who apply for a permit are 9 not the same because some can demonstrate they have good cause and are of good moral character, and some cannot. Second, Defendants' good cause and good character clauses in the policy are clearly rationally related to Yolo County's goals of reducing the incidence of unlawful public shootings, prevent police from safely responding to dangerous situations, generally preventing crime, and ensuring public safety.
Compared to many of this country's constitutional protections, the scope of rights under the Second Amendment is ambiguous and no doubt subject to change and evolution over time. Nonetheless, even in light of Heller and McDonald, Yolo County's concealed license policy is constitutionally valid.
Plaintiffs' Motion for Summary Judgment (ECF No. 54) is DENIED.
Defendants' Cross Motion for Summary Judgment (ECF No. 58) is GRANTED. The Clerk of Court is accordingly directed to enter judgment in favor of Defendants Yolo County and Yolo County Sheriff Ed Prieto.
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