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Maybe some of the cannon-fodder they send out to suicide/homicide for them are... but the top brass (you know, the ones who never do the suicide part, never allow themselves to be caught, never allow themselves to be killed) are pretty ingenious & conniving.
Only by thinking of them as evil geniouses instead of illiterate idiots do we outsmart them and outmuscle them.
You're correct about most of the leadership... but, as I argued to another freeper and as you stated, most of the day to day AK carrying goons are exactly as I described them.
You're also right that we should respect the intelligence of the leadership, but they still write and speak like a bunch of morons, even when they are well educated. Islam stunts intellectual development.


text:
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"I saw this pattern and thought it would be great to go in my gift tins for my homemade spa sets for Christmas. I started the pattern but kept having trouble with the puff stitch. When I try to pull through the loop the hook gets stuck and pull a strand or two out making it look un-neat. Is there a way to prevent this? Could it be the yarn I am using?"
"I love this pattern for making dishcloths! It is so simple and it's so easy to remember. It makes a great,durable dishcloth. Does anyone tried this pattern with that new yarn that is made for making dishcloths? I think it might be a rayon blend. I'm going to try it next time I need dishcloths."
"This is a great beginner project, it was easy to follow and gave great instruction. I was able to work up several of these for co-workers who thought it was so cute. I am going to make several more for my home for company to use when they come over and have coffee."
"These spiral beaded trees are so pretty! For extra sparkle, I am going to place a battery tea light candle in the center of the spiral. Several of these trees would look great placed within a strand of twinkle or small rice lights on a mantle or table center piece!"
"That's a great idea!"
20 Ways to Draw a Tree
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20 Ways to Draw a Tree and 44 Other Nifty Things from Nature
By Eloise Renouf
Gifted by Quarry Books
Reviewed by Melissa Conner, editor of FaveCrafts.com
If your journals and notebooks are filled with little doodles of birds, flowers, trees, leaves, or butterflies, you're going to love playing around in 20 Ways to Draw a Tree. Filled with 20 mini illustrations of more than 40 nature-themed topics, this book is perfect for artists, designers, and doodlers alike.
Each spread in this book contains 20 illustrations of a single item, such as trees, tulips, flowers, butterflies, birds, leaves, feathers, mushrooms, berries, clouds, and so much more. Each spread also offers plenty of space for you to do your own doodling.
The stylized flowers, trees, leaves, and clouds are simplified, modernized, and reduced to the most basic elements, making it easy to see how simple abstract shapes can come together to create the building blocks of any item that you wish to draw.
I happen to love the spread on how to draw herbs. I have pages and pages of handwritten recipes from my grandmother and these simple herb illustrations would be a sweet and charming way to add a little color and style to these cherished herb-infused recipes.
I also love the variety of topics included in this book. In a matter of about an hour I can learn how to draw everything from an acorn to a bird, a leaf to a beetle. Great for scrapbookers, card designers, jewelry designers, and more, 20 Ways to Draw a Tree and 44 Other Nifty Things from Nature is a whimsical and fun book filled with simple designs that are easy enough for anyone to do.
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Cedar Wrapped Monkfish and Asparagus
Monkfish and asparagus, enveloped in a wine soaked cedar wrap and grilled. So simple and yet so very elegant and delicious.
Monkfish and asparagus, enveloped in a wine soaked cedar wrap and grilled. So simple and yet so very elegant and delicious.
A copycat recipe of the limited edition Arby's Pork Belly Sandwich
Proving that Pork Chops can be Grilled like steaks – I reverse sear the chops by smoking them first and then searing over a charcoal chimney for maximum flavor crust action
A thorough review of the Camp Chef SmokePro DLX Pellet Grill with side Sear Box. This is one great cooker!
Bacon Wrapped Grilled Cheese, cooked on a smoker. Basically, the most amazing grilled cheese on the planet!
Grilled pizza topped with grilled jerk chicken, grilled yellow/red/orange bell peppers, and purple onion (also grilled). See a theme here?
Reverse seared, Chipotle and Roasted Garlic, pork tenderloin stuffed into taco shells with roasted corn salsa and topped with lime sour cream.
Step by step instructions on how to do a lobster boil for your next 4th of July.
Sriracha injected and marinated pork shoulder, slow smoked to make perfect pulled pork
The 7 step process to grill the perfect process – Brine, Season, Smoke, Sear, Sauce, Smoke Again and Serve


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BROOKLYN - Beginning this summer, residents can take advantage of free Wi-Fi access at five parks in Brooklyn.
New York City Mayor Michael Bloomberg announced this afternoon that free Wi-Fi will become available at 20 city parks, courtesy of AT&T.
Bloomberg said the Parks Department partnered with AT&T to get the city connected for free for the next five years.
Visitors will be able to get Internet access using their wireless devices at Brooklyn Bridge Park, Fort Greene Park, Herbert Von King Park, McCarren Park and Prospect Park.


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I love the farm to table concept. In fact, I now cook that way Spring to Fall. We have a fairly large garden and I discovered each year as the produce comes in… that is you have to do something with it. Yikes! Originally like most gardens we had cucumbers and tomatoes. Then we graduated to green beans and peppers. This year: ditto previous and broccoli, cabbage, leeks, two kinds of kale, chard, spring greens, beets and a few herbs. We even grew kohlrabi. It is an adventure trying to find out how to cook and utilize the fresh pickens of the day. For many years I disliked cooking … it was a chore. Now, I feel very fortunate to eat fresh, delicious, creations every day.
I am excited! It is a great feeling when you have a genuine excitement for something and I am excited about TEA. I never dreamed tea could offer so many wonderful flavors. It is one of those things you don't know what you're missing until you experience it… then your like OMG.
I was happy to discover a new direct marketed tea company, Steeped Tea. Loose, organic, natural, healthy, sustainably and ethically grown tea. Wow, knowing all that made me smile and I hadn't even tried the tea yet.
Ten years ago when I started thinking more and more about conserving resources and sustainability issues my mind would wonder and I envisioned many things differently. In my research to learn... I discovered people that were way ahead of the curve in sustainability thinking and action. I also discovered Peoria was way behind.


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4 Pages
An Introduction to the Concept of Marketing
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Pages: 4
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Category: Business Studies
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1 Introduction As the development of economy recently more and more people focus the importance of concept of Marketing because it has already improved the peoples viewpoint which how to deal the business However one of the most persistent conceptual problems in marketing is its definition In the light of Philip Kotler marketing definition consist of social definition and managerial definition Kotler 2000 p7-8 According to the British Chartered Institute of Marketing Marketing is the management process responsible for identifying anticipating and satisfying customers requirements profitably Adcock Halborg Ross 2001 p3 In addition some others define marketing as all activities directed towards identifying and satisfying customer needs and wants through a process of exchange Assael Reed Patton 1996 p4 Regardless of the several definitions of marketing what philosophy should guide these marketing efforts Generally the five philosophies of production concept product concept selling concept and societal marketing concepts should be paid more attention in marketing management process In the following the five concepts will be alternatively discussed with theories and practice 2 The brief meanings of marketing management philosophies The production concept is one of the oldest concepts in business It holds that consumers will favor products that are available and highly affordable Therefore management should focus on improving production and distribution efficiency Armstrong Kotler 2003 p19 For example Henry Fords whole philosophy was to perfect the production of the Model T so that its cost could be reduced and more people could afford it The product concept holds that consumers will favor products that offer the most quality performance and innovative feature Thus an organization should devote energy to making continuous product improvements Kotler Armstrong Brown Adam 1998 p16 Nowadays there are some oriental manufacturers adopt this concept The selling concept holds that customers will not buy enough of the organizations products unless it undertakes a large-scale selling and promotion effort Kotler
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text: What type of listing is this? For Sale What are you trying to sell/buy/trade? Olympus OM-D E-M5 What are your prices? $275 Price reduced 7/14/15. SOLD Thanks, Duke, for your purchase. The camera will ship on Monday. Where are you located? USA Where are you willing to to ship? CONUS Description I have an E-M5 for sale with a shutter count of 2093. It is in good condition, except for a ding in the lower corner, which I have show in the accompanying pics. The camera will come with battery, charger, flash, and camera strap in its original box. The lens pictured here is not included with the camera. I have included a few pics taken in the past two days from the E-M5 listed here, to demonstrate its solid functionality, since I've been asked about the ding and wanted to show it has no influence on the image quality, all of which were taken with the 40-150mm f/4 lens I bought recently. The picture with the redbud tree was taken through a double-pane glass door and came out pretty nicely I thought, considering that limitation. Enjoy! In case anyone's interested, the pics were converted from tiffs for the web as 55% size and 75% quality jpgs. Payment accepted Regular PayPal (fee included in price) Shipping method USPS Priority Shipping charge Included in the price Handling time No more than one day after payment is received. References Ebay: doowopgentleman, over 350 100% feedback. Additional comments Buyer must have a PayPal confirmed address Acknowledgement I have read and agree to the Buy and Sell rules.


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Intervention Review
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User-held personalised information for routine care of people with severe mental illness
Editorial Group: Cochrane Schizophrenia Group
Published Online: 5 OCT 2013
Assessed as up-to-date: 2 AUG 2011
DOI: 10.1002/14651858.CD001711.pub2
Copyright © 2013 The Cochrane Collaboration. Published by John Wiley & Sons, Ltd.
Database Title
Additional Information
How to Cite
Farrelly S, Brown GE, Flach C, Barley E, Laugharne R, Henderson C. User-held personalised information for routine care of people with severe mental illness. Cochrane Database of Systematic Reviews 2013, Issue 10. Art. No.: CD001711. DOI: 10.1002/14651858.CD001711.pub2.
Publication History
- Publication Status: New search for studies and content updated (conclusions changed)
- Published Online: 5 OCT 2013


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Fire extinguisher trolleys are ideal for environments where it is important to have a mobile fire point in place. Our units are corrosion resistant and have a strong steel frame construction. Trolleys provide ease of manoeuvrability and help to highlight fire extinguisher locations.
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Last Tuesday, for my birthday, 11th September, I received a gift from my wife: the new iPod Nano Video (3G) Red. Less then a week after it has been presented to the World by Steve Jobs.
So, even if not very .NET related, I wanted to post here the first impressions and some picture.
Just a little bad experience: the gift message was printed only on the shipping notice, and the cardboard shipping box was still shaped to hold the old iPod Nano 2G (tall and thin).
As usual, iTunes display the exact model and color of the connected device....
This is the blog of Simone Chiaretta, an Italian .NET developer, architect, ex-Microsoft MVP, ASPInsider, Subtext core member, ASP.NET MVC lover with a passion for triathlon.
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Scholarship Applications
Apply online:
OPEN January 16, 2017
CLOSE March 3, 2017
Over $500,000 awarded
through our over
50 competitive scholarship funds
For more info contact:
Melanie Holaway, Scholarship Coordinator
[email protected]
Thanks to our generous donors contributing to over 75 Scholarship Funds at the Foundation we are able to provide students in Southwest Florida the opportunity to apply for College Scholarships. We awarded 118individual College Scholarships in 2016 to both high school graduates and undergraduate college students resulting in over $650,000 in financial support to individuals.
Scholarships are available for high school seniors wanting to continue their education at the vocational/technical school level, university or community college, as well as for undergraduate and graduate students continuing their post-secondary education.
- OCTOBER 1, 2016, the Federal Student Aid Application (FAFSA) opens for all individuals wishing to pursue post-secondary education. The Student Aid Report (SAR) generated by FAFSA will be required for all need-based scholarship applications.
- A 2-page essay will be required for all scholarship applications.
- Un-official transcripts will be required indicating student's Fall 2016 grades or most recent transcripts for undergraduate or graduate students.
- SAT and/or ACT test scores will be required.
- Reference letters from an authority figure such as teacher, pastor, mentor or someone who knows you well enough to pass judgement with credibility.
Applying For A Scholarship
The Scholarships Application process opens on opens Monday, January 16th, 2017 and closes Friday, March 3, 2017 at 5pm
- Step 2: Create a New Account (first time only).
- Step 3: Once you have created a user ID and Password, log on to the Online Application Portal.
- Step 4: Select the scholarship(s) you want to apply for and begin the application.
The DEADLINE to apply is March 3, 2017 by 5pm.
Scholarship recipients are selected based upon the specific criteria made by each fund's donor. Each scholarship application is reviewed for completion of all required elements.
Every application is reviewed by a member of the Community Foundation's volunteer Scholarship Reading Committee. Some scholarships also require a personal interview (applicants applying for those scholarships will be notified and an appointment will be scheduled).
After all applications are reviewed and interviews completed, the Community Foundation's Board of Trustees will review all recommendations and approve the scholarship awards.
Recipients of each scholarship will be notified by the Community Foundation by the end of May. If a student has not been notified, it means he/she was not awarded a scholarship this year.
Payments are mailed directly to the school's financial aid office before the beginning of each school year. Checks are made payable to the school and not to the individual recipient.


text: Over-looking Hempton Green this charming property is 160 years old. If you are looking for home comforts, beams and quirky character then this one will suit you well. Take a walk along the River Wensum and within ten minutes you will be in the market town of Fakenham where you will find a good selection of shops, eateries, antique shops a cinema and ten-pin bowling. Market day is on a Thursday with James Becks's Antique and household auctions held on the same day. From Fakenham you will find easy access to the coastal resorts of Holkham and Wells-next-the-Sea and many others places of interest including The Thursford Collection, and Little Walsingham the village famed for its religious shrines.


text:
A Good Deal: No Evil 022
Round up4.28 / 5.00 2,931 Views
Park Bench
A short film about a park bench4.15 / 5.00 2,358 Views
frog thing
frogggsgsgs3.79 / 5.00 2,708 Views
not the best in the collection but certainly unique. a slightly better plotline wouldve helped but nice solid video, very cartoony. oh and ps: funny how negi1001 types up a disney theif complaint with no positive imput then gives you a 10
not bad
was entertaining and for those who are calling him a thief and such read the author comment he says he got it from the original steamboat willie
the beginning was DEAD ON!
I thought it was pretty good, nice sound and animation. Funny too :D.
Also to anyone who possibly thinks of saying 'you stole from mickey OMG'.. that's the point of the whole animation, it's a joke. Seriously i hope you guys are being sarcastic when you say that.
this was actually a old mickey mouse schene
but they replaced it with violence and pico


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Consolidations: an accounting tax interface
Published on 01 Feb 05 by "THE TAX SPECIALIST" JOURNAL ARTICLE
This article seeks to examine the accounting tax interface concerning the measurement of liabilities, and profits, and the consequences of the adoption of International Financial Reporting Standards by the Australian Accounting Profession in the consolidation process.
Author profile:
Assoc Prof Leslie NethercottLes is an Associate Professor for the School of Accounting at Latrobe University. Current at 01 April 2010 Click here to expand/collapse more articles by Les NETHERCOTT.
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Mechanical Zinc Plated Hardened Steel Nail, >15 Micron Zinc
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Mechanical Zinc Plated Hardened Steel Nail, >15 Micron Zinc Thickness, Top Rust Proof, 90 Degree Bending Angle, Holland Quality Produce NameMechanical Zinc Plated Hardened Steel NailMaterialHigh Carbon SteelType of ShankSmoothType of PointDiamond PointType of HeadFlat Head or Countersunk HeadSurface TreatmentMechanical Zinc Plated or Hot Dip GalvanizedShank Diameter1.5mm—5.2mmOverall Length15mm--120mmCustomizeODM & OEM available. We can also design the packing box for you freePackage Description1kg/box, 0.5kg/box, 100pcs/box, 25boxes/carton Can Pallet. Or according to Customers'requestsSupply Ability:500 Ton/ MonthFOB PortNingbo Port or Shanghai PortPlace of OriginHangzhou, China, (near Yiwu)Nails can also be customized according to customer's sample url:
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White Horse
A member of the iconic fleet dating back to 1873, Nicholson's offers timeless British pub hospitality. A fine stock of smooth and silky cask ales are pulled at the bar, while homely British classics are served in the dining room. The carefully chosen wine list brings together some great international bottles, while a Cask Ale Club is offered for any true beer aficionados.
|Average main course:
|£12.00 (USD15.11) per diner
|Average food spend:
|£25.00 (USD31.47) per diner
Venue Details & Map
White Horse
- Address
16 Newburgh StreetSohoLondonW1F 7RY
- Telephone:
- +44 20 7494 9748
Yelp Reviews
Your average pub but in a lovely little street with no cars, looks more like a mews street so the outside area is very pleasantmore
Decent pub somewhat hidden away. Ok selection of beer better ales though and nice size inside in square form around bar.more
A really cool pub. We watched the FA Cup here and had great seats. The beer was good and the guy behind the bar put up with my many questions like- will you turn on the volume? What is your favorite beer? Can I take a picture of the taps? Does this count as a table or do I have to move to a booth to order food? Whatever, he was nice, the beer was good, it's in an awesome location, and my chips...more
PROS - Amazing Fish and Chips (especially the fish)! The batter is perfect and there is a nice crunch after every bite. Also, great burger - very juicy and they do not skimp. The outdoor seating in the backyard patio is perfect (if you don't mind the smokers) for an after work unwinding session with your friends.
CONS - Service is a bit slow but they are very friendly. The night time...more
This was an established favourite of ours when I first came to London; our original office was a couple of streets away - and now we are back in the neighbourhood, we are returning to old favourites!
Since we are almost always here on a Friday, my main experience of the White Horse is of it being packed. That being said, the main bar is split in two, both of which have a decent amount of...more


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New Jersey Superior Court, Appellate Division
July 03, 2002
OTR ASSOCIATES, PLAINTIFF-RESPONDENT,v.IBC SERVICES, INC. A/K/A INTERNATIONAL BLIMPIE CORPORATION, A/K/A BLIMPIE INTERNATIONAL, INC. AND GARDEN STATE BLIMPIE, INC., DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-4650-98.
Before Judges Pressler, Ciancia and Fuentes.
Argued May 7, 2002
The single dispositive issue raised by this appeal is whether the trial court, based on its findings of fact following a bench trial, was justified, as a matter of law, in piercing the corporate veil and thus holding a parent corporation liable for the debt incurred by its wholly owned subsidiary. We are satisfied that the facts, both undisputed and as found, present a textbook illustration of circumstances mandating corporate- veil piercing.
Plaintiff OTR Associates, a limited partnership, owns a shopping mall in Edison, New Jersey, in which it leased space in 1985 for use by a Blimpie franchisee, Samyrna, Inc., a corporation owned by Sam Iskander and his wife. The franchise agreement, styled as a licensing agreement, had been entered into in 1984 between Samyrna and the parent company, then known as International Blimpie Corporation, whose name was changed in 1985 to Astor Restaurant Group, Inc., and again in 1991 or 1992 to Blimpie International, Inc. Thus the three names denote the same corporation at different stages of its existence, and we refer to it hereafter as Blimpie. Blimpie was the sole owner of a subsidiary named IBC Services, Inc. (IBC), created for the single purpose of holding the lease on premises occupied by a Blimpie franchisee. Accordingly, it was IBC that entered into the lease with OTR in July 1985 and, on the same day and apparently with OTR's consent, subleased the space to the franchisee. The history of the tenancy was marked by regular and increasingly substantial rent arrearages, and it was terminated by a dispossess judgment and warrant for removal in 1996. In 1998 OTR commenced this action for unpaid rent, then in the amount of close to $150,000, against Blimpie under both its present name and its former name, International Blimpie Corporation. It also joined as defendants the leasing subsidiary, IBC, as well as Garden State Blimpie, Inc., another wholly-owned leaseholding subsidiary of Blimpie to whom IBC had assigned the lease in 1991 without notice to the landlord in violation of the terms of the lease requiring such notice. *fn1 The action was tried in December 2000, and judgment was entered in favor of OTR against Blimpie as well as the two judgment-proof subsidiaries in the full amount of the rent arrearages plus interest thereon, then some $208,000. Blimpie appeals, and we affirm.
We consider the facts in the context of the well-settled principles respecting corporate-veil piercing. Nearly three- quarters of a century ago, the Court of Errors and Appeals, in Ross v. Pennsylvania R.R. Co., 106 N.J.L. 536, 538, 539 (E. & A. 1930), made clear that while "ownership alone of capital stock in one corporation by another, does not create any relationship that by reason of which the stockholding company would be liable for torts of the other," nevertheless "[w]here a corporation holds stock of another, not for the purpose of participating in the affairs of the other corporation, in the normal and usual manner, but for the purpose of control, so that the subsidiary company may be used as a mere agency or instrumentality for the stockholding company, such company will be liable for injuries due to the negligence of the subsidiary." The conceptual basis of the rule enunciated by Ross, which is equally applicable to contractual obligations, is simply that "[i]t is where the corporate form is used as a shield behind which injustice is sought to be done by those who have control of it that equity penetrates the [corporate] veil." Irving Inv. Corp. v. Gordon, 3 N.J. 217, 223 (1949). And, as the Supreme Court phrased it in State, Dep't. of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 500 (1983), "[t]he purpose of the doctrine of piercing the corporate veil is to prevent an independent corporation from being used to defeat the ends of justice, ... to perpetrate fraud, to accomplish a crime, or otherwise to evade the law." See also Tung v. Briant Park Homes, Inc., 287 N.J. Super. 232, 239-240 (App. Div. 1996).
Thus, the basic finding that must be made to enable the court to pierce the corporate veil is "that the parent so dominated the subsidiary that it had no separate existence but was merely a conduit for the parent." Ventron, supra, 94 N.J. at 501. But beyond domination, the court must also find that the "parent has abused the privilege of incorporation by using the subsidiary to perpetrate a fraud or injustice, or otherwise to circumvent the law." Ibid. And the hallmarks of that abuse are typically the engagement of the subsidiary in no independent business of its own but exclusively the performance of a service for the parent and, even more importantly, the undercapitalization of the subsidiary rendering it judgment-proof. Ibid.
Finally, we point out that these principles are hardly novel to New Jersey, constituting rather a fundamental doctrine of corporate jurisprudence. See, e.g., cases collected in J.A. Bryant, Annotation, Liability of Corporations for Contracts of Subsidiaries, 38 A.L.R.3d 1102 (1971), and Supplementary Case Service. See also Adolf A. Berle, Jr., The Theory of Enterprise Entity, 47 Colum. L. Rev. 343 (1947); Note, Piercing the Corporate Law Veil: The Alter Ego Doctrine Under Federal Common law, 95 Harv. L. Rev. 853 (1982). And see Restatement (Second) of Agency §14M appendix, Reporter's Notes (1984).
Blimpie concedes that it formed IBC for the sole purpose of holding the lease on the premises of a Blimpie franchisee. *fn2 It is also clear that IBC had virtually no assets other than the lease itself, which, in the circumstances, was not an asset at all but only a liability since IBC had no independent right to alienate its interest therein but was subject to Blimpie's exclusive control. It had no business premises of its own, sharing the New York address of Blimpie. It had no income other than the rent payments by the franchisee, which appear to have been made directly to OTR. It does not appear that it had its own employees or office staff. We further note that Blimpie not only retained the right to approve the premises to be occupied by the franchisee and leased by IBC, but itself, in its Georgia headquarters, managed all the leases held by its subsidiaries on franchisee premises. As explained by Charles G. Leaness, presently Executive Vice-President of Blimpie and formerly corporate counsel as well as vice-president and secretary of IBC, in 1996, the year of IBC's eviction for non-payment of rent, he was Blimpie's Corporate Counsel Compliance Officer. Blimpie, he testified, is exclusively a franchising corporation with "hundreds and hundreds" of leases held by its wholly-owned leasehold companies, which are, however, overseen by Blimpie's administrative assistants, that is "people in our organization that ... do this [communicate with landlords] as their everyday job. Because we have - you know - there are various leases, various assignments." Leaness also made clear that the leasing companies, whose function he explained as assisting franchisees in negotiating leases, "don't make a profit. There's no profit made in a leasehold."
Domination and control by Blimpie of IBC is patent and was not, nor could have been, reasonably disputed. The question then is whether Blimpie abused the privilege of incorporation by using IBC to commit a fraud or injustice or other improper purpose. We agree with the trial judge that the evidence overwhelmingly requires an affirmative answer. The leit motif of the testimony of plaintiff's partners who were involved in the dealings with IBC was that they believed that they were dealing with Blimpie, the national and financially responsible franchising company, and never discovered the fact of separate corporate entities until after the eviction. While it is true that IBC never apparently expressly claimed to be Blimpie, it not only failed to explain its relationship to Blimpie as a purported independent company but it affirmatively, intentionally, and calculatedly led OTR to believe it was Blimpie. Illustratively, when OTR was pre-leasing space in the mall, the first approach to it was the appearance at its on-site office of two men in Blimpie uniforms who announced that they wanted to open a Blimpie sandwich shop. One of the men was the franchisee, Iskander. The other was never identified but presumably was someone with a connection to Blimpie. It is also true that the named tenant in the lease was IBC Services, Inc., but the tenant was actually identified in the first paragraph of the lease as "IBC Services, Inc. having an address at c/o International Blimpie Corporation, 1414 Avenue of the Americas, New York, New York." It hardly required a cryptographer to draw the entirely reasonable inference that IBC stood for International Blimpie Corporation, Blimpie's corporate name when the lease was executed. The suggestion, unmistakably, was that IBC was either the corporate name or a trading-as name and that International Blimpie Corporation was the other of these two possibilities.
Beyond the circumstances surrounding the commencement of the tenancy relationship, the correspondence through the years between plaintiff and the entity it believed to be its tenant confirmed plaintiff's belief that Blimpie was its tenant. Blimpie's letters to OTR were on stationary headed only by the Blimpie logo. There is nothing in any of that correspondence that would have suggested the existence of an independent company standing between the franchisor and the franchisee, and, indeed, the correspondence received by OTR from its lessee typically referred to the sub-tenant, Samyrna, as "our franchisee."
We agree with the trial judge that the inference is ineluctable and virtually conceded by Blimpie that IBC was created as a judgment-proof corporation for the sole purpose of insulating Blimpie from any liability on the lease in the event of the franchisee's default, a purpose found by the trial judge to have been deliberately concealed by Blimpie by its conduct in creating the impression from the outset of the tenancy relationship and throughout its duration that it and IBC were one and the same. We reject Blimpie's contention of the irrelevancy of its conduct after execution of the lease that tended to confirm to plaintiff that it was the actual tenant. As we have noted, the franchisee was habitually late and in arrears in its rent payments. We think it clear that if OTR had any suspicion that its tenant was a judgment-proof corporation, it would not have forborne over the years as the arrearages continued to accumulate but would have taken steps to regain possession long before the tenant's obligations reached $150,000. *fn3
As we understand Blimpie's defense and its argument on this appeal, it asserts that it is entitled to the benefit of the separate corporate identities merely because IBC observed all the corporate proprieties - it had its own officers and directors albeit interlocking with Blimpie's, it filed annual reports, kept minutes, held meetings, and had a bank account. But that argument begs the question. The separate corporate shell created by Blimpie to avoid liability may have been mechanistically impeccable, but in every functional and operational sense, the subsidiary had no separate identity. It was moreover not intended to shield the parent from responsibility for its subsidiary's obligations but rather to shield the parent from its own obligations. And that is an evasion and an improper purpose, fraudulently conceived and executed. The corporate veil was properly pierced.
We note that the creation of a judgment-proof wholly-owned subsidiary as the leaseholding entity for a solvent retail chain is not a novel device. Nor is it a successful one. A similar technique came under the court's scrutiny in Weisser v. Mursam Shoe Corporation, 127 F.2d 344 (2d Cir. 1942). That case involved the chain of Miles Shoe Stores owned by Murray M. Rosenberg, Incorporated, whose principles were Murray and Samuel Rosenberg. The corporation formed a judgment-proof shell corporation called Mursam Shoe Corporation - again no cryptographer needed -- to lease premises for the operation of a Miles Shoe Store. In reversing a summary judgment entered in the parent's favor, the court, by Judge Frank, held that the landlord would be entitled to recover against it on proof that "Mursam was only a tool of the other defendants, deliberately kept judgment-proof, to obtain the benefits of the lease with the plaintiffs without assuming any obligations." Id. at 346. Moreover, since the leased premises were located in New Jersey and the lease made and recorded in this State, the court expressly applied New Jersey law, relying on Ross v. Pennsylvania R.R. Co., supra, 106 N.J.L. 536. The only difference between Mursam and this case is that there the landlord asserted that Mursam had expressly represented that it was the parent. While there was no such direct representation here, we are satisfied, based on the record and the trial judge's findings, that there clearly was such an implicit representation in Blimpie's conduct, which reasonably induced plaintiff to believe it and IBC were the same. Thus the metaphor of puppeteer and the marionette used by the court to describe the parent and subsidiary in Weisser, 127 F.2d at 349, applies with equal pertinence here.
The judgment appealed from is affirmed.
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Active since01-11-2016Job categoryIT - Software Development LocationBurlingameLevelProfessional Educational levelBachelor / GraduateEmployment type- Hours0Salary Lyra Health, Inc. seeks a Software Engineer in Burlingame, CA to develop and deploy applications both to connect11/23/2016 Burlingame, CA Save This Job
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Epilepsy (particularly women)Movement Disorders (Parkinson's Disease and syndromes)Huntington's Disease Headache
I was appointed Consultant Neurologist in Bristol in 1999 based at Frenchay Hospital. Since then I have built a busy general neurology practice with special interest in epilepsy. I have particular interest in women issues in epilepsy. I am actively involved in the assessment of patients on the Bristol Epilepsy Surgery Programme. I have also continued my long-standing interest in Movement Disorders and I run a specialist Huntington's disease clinic in Frenchay Hospital.
My private practice and rooms have previously been based at Litfield House Medical Centre for more than 9 years and are now at Spire Hospital Bristol on Wednesday afternoons.
Use one or more of the options below to search for a consultant and link through to view their Spire profile.
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"Heads and Feet" Touching Heads Tip by machomikemd
Touching Heads, Bangkok: 10 reviews and 10 photos
Taboos exist on some parts of the body that have little significance in Western culture. For example, the head is regarded as the highest part of the body and you should never touch another person on the head.
By contrast, the foot is regarded as the lowest part of the body and you should take care never to point your foot towards anyone. This is an extremely insulting gesture! Try to get into Thai habits of sitting with your feet on the floor or tucked away under you. Even moving objects around with your feet is seen as very uncouth.
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ARCATA- The city's new public restroom has arrived and is in service. To celebrate the new restroom the city held a ribbon cutting ceremony.
The Portland Loo held at the corner of F and 8th Street was purchased from the City of Portland.
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Colonies of a green fungal contaminant, presumable airborne, on BEA agar after 1 month in the refrigerator. Green spore formation can be seen throughout the circular colonies. Read More
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Fungal like contaminant, presumably air borne, on BEA media after 1 month in the refrigerator. Mucoid mounding beige center with a hairlike circular border. Read More
Contaminant (yeast?) found on TSA after several months in the refrigerator. The larger colony was circular, mat with concentric rings with a smaller more mucoid yellow growth just off center. Read More
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Climbing Wildflowers
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May 9, 2011
Filed under Entertainment
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January 17, 2002
UNITED STATES OF AMERICA, PLAINTIFF,v.CATERPILLAR, INC., DEFENDANT.UNITED STATES OF AMERICA, PLAINTIFF,v.CUMMINS ENGINE CO., DEFENDANT.UNITED STATES OF AMERICA, PLAINTIFF,v.DETROIT DIESEL CORP., DEFENDANT.
The Truck Manufacturers' Association ("TMA"), a trade association representing manufacturers of heavy-duty trucks, *fn1 seeks to intervene in these enforcement actions brought by the Environmental Protection Agency ("EPA") against three manufacturers of heavy-duty diesel engines. EPA claimed in these actions that defendants violated the Clean Air Act, 42 U.S.C. §§ 7401, et seq., and its implementing regulations by selling engines that emitted excess pollution and by failing to disclose how the engines operated in real world conditions. This court approved consent decrees settling all of EPA's claims against defendants on July 1, 1999. The decrees require defendants to make changes to their new engine models by October 1, 2002, in order to reduce the emissions from those engines. In its motion to intervene, filed March 9, 2001, TMA argues that defendants have not made sufficient progress toward completing the new engines to ensure that the truck manufacturers represented by TMA will have adequate time to integrate the engines into new trucks by October 2002. TMA contends that this delay will cause a nationwide shutdown of truck manufacturing and a reduction in the number of new trucks available for purchase in fall 2002. TMA seeks to intervene in the decrees in order to postpone the October 2002 deadline or, in the alternative, challenge the validity of the decrees. Upon consideration of the motion, the opposition thereto, and the record of the case, the court concludes that TMA's motion to intervene must be denied.
These cases involve federal regulation of emissions of nitrogen oxides ("NOx") from heavy duty diesel engines. NOx is a pollutant that contributes to smog and airborne particles that adversely affect human health. The Clean Air Act (the "Act") sets standards for NOx emissions from heavy duty diesel engines and requires engine manufacturers to obtain a "Certificate of Conformity" with the standards for each engine family and each model year of engines they produce. An application for a Certificate of Conformity must be supported with data showing that a representative engine tested on EPA's Federal Test Procedure for Heavy Duty Engines ("FTP") complies with the Act's emissions standards. The application must also include a description of any "auxiliary emission control device" ("AECD") *fn2 installed on the engine that changes the engine's emissions when operated in real world as opposed to laboratory conditions. EPA uses the engine manufacturers' disclosure of AECDs in the application for certification to screen for "defeat devices," which are prohibited by Section 203(a)(3)(B) of the Act. Defeat devices are defined under the regulations implementing the Act as AECDs that "reduce the effectiveness of the emission control system under conditions which may reasonably be expected to be encountered in normal vehicle operation and use ...." 40 C.F.R. § 86.094-2. The purpose of the AECD reporting requirement and the defeat device prohibition is to ensure that an engine's emission performance in normal operating conditions is consistent with the test results used to support the certificate application.
In these enforcement actions EPA alleged that from 1987 to 1998 defendants sold heavy duty diesel engines equipped with defeat devices that increased NOx emissions in on-highway truck operation by two to three times the 4.0 gram per brake horsepower hour ("g/bhp-hr.") regulatory standard (the "4.0 gram requirement"). Defendants argued that EPA's regulations during this period did not clearly prohibit the specific types of emission control strategies they were using. Defendants also contended that EPA had known about these strategies since 1991, but had not claimed prior to commencing these actions in 1998 that an engine's emission control system must "function the same under all normal operating conditions." United States v. Cummins Engine Co., U.S. Memo. in Support of Consent Decree at 97-98. Following a year of negotiations between the parties, during which time EPA met with TMA several times to hear the concerns of truck manufacturers, the parties reached a settlement by agreeing to be bound by the consent decrees. After a period of public comment, including comments filed by TMA, the court approved the decrees on July 1, 1999, finding that the decrees would serve the public interest. Defendants thus avoided, without admitting liability, the possibility that their existing engines would fail to receive EPA certification, causing an immediate shutdown of their assembly lines.
The decrees required the phased-in manufacture by defendants of lower-emission engines without defeat devices. As of October 1, 2002, all new on-road heavy duty diesel engines manufactured and sold by defendants must meet an emission standard of 2.5 g/bhp-hr NOx (the "2.5 gram requirement"). *fn3 Under otherwise applicable law, engine manufacturers would not be subject to this standard until model year 2004. See 40 C.F.R. § 86.004-11(a)(1)(I). The "pull ahead" the 2.5 gram requirement thus entails was intended to partially offset the alleged excess emissions from the engines defendants sold in the years prior to the decrees.
The decrees have a "Force Majeure" provision, under which neither "technological unfeasibility" nor financial inability excuse a failure to meet the 2.5 gram requirement. To ensure that the 2.5 gram requirement is met under a broad range of operating conditions, the decrees provide that defendants must demonstrate compliance with the requirement not only on the FTP but on the "EURO III" test, which EPA claims measures emissions under conditions that are more representative of highway driving than the FTP. In addition, defendants must demonstrate that they meet a "Not-to-Exceed Limit," which means that at any operating point within a specified area an engine cannot exceed a certain emission level.
TMA moved to intervene on March 9, 2001, as a defendant in three of the six enforcement actions settled under the decrees, those against Caterpillar, Cummins, and Detroit Diesel. Three out of the eight truck manufacturers represented by TMA, GM, Isuzu, and Freightliner, have joined in the motion. In its motion, TMA contends that the October 1, 2002, deadline set in the decrees will harm its economic interests because defendants will not have solved the engineering challenges posed by the decrees' requirements in time for TMA's members to integrate defendants' new engines into new trucks prior to the deadline.
In declarations accompanying its motion, TMA asserts that major changes in a heavy duty engine require at least two years of redesigning and testing of the truck in which the engine will be used to ensure safety and reliability. At the time TMA filed its motion to intervene, 18 months prior to the October 2002 deadline, two of the defendants, Caterpillar and Cummins, claimed that they would complete their new engines by the deadline, but neither had obtained final EPA approval for the engines or submitted a compliant prototype engine to TMA's members for integration. Caterpillar had also informed GM that it would be deleting one engine model from its product line because of the challenges posed by the decrees' requirements. In addition, on February 5, 2001, the Chairman of Detroit Diesel wrote a letter to EPA stating that the October 2002 deadline was "now in serious jeopardy, due to the manufacturers' problems in testing the engines .... Failure to resolve this problem will have major impacts on the engine manufacturers, related suppliers and industries, and the economy generally." The letter included an offer by Detroit Diesel "to consider committing to substantial additional emissions reduction measures, beyond what [Detroit Diesel] believes are needed to make a delay of the October 1, 2002 date emissions neutral ...."
TMA argues that these developments show that its members will not have the two years lead time they require to integrate defendants' new engines into their new trucks prior to October 2002. TMA further argues that even if that much lead time were not required and Caterpillar and Cummins were able to complete their new engines and obtain EPA approval for them by the deadline, Caterpillar and Cummins alone could not supply the entire truck manufacturing industry with engines should Detroit Diesel fail to meet the deadline. *fn4 In addition, according to TMA, the decrees make it illegal for defendants to supply non-compliant engines to truck manufacturers after the deadline, so TMA's members cannot make up for delays or shortages in new engines by continuing to buy old ones. Therefore TMA contends that the only way to a avert a shutdown of truck assembly lines across the nation and a reduction in new trucks on the market in fall 2002 is to modify the decrees to postpone the October 2002 deadline.
TMA also seeks to challenge the validity of the decrees on due process and statutory grounds. First, TMA contends that the October 2002 requirements violate the provision of the Clean Air Act providing that emission standards applicable to "heavy duty vehicles or engines" may not take effect prior to four model years after EPA promulgates the standards, and must remain in place for at least three model years. 42 U.S.C. § 7521(a)(3)(C). TMA argues that this provision guarantees truck manufacturers four years lead time to integrate new engines into their trucks, while the decrees do not guarantee any lead time. Under the decrees, as long as an engine manufacturer completes the required changes to its engines by October 2002, it has complied with the decree, regardless of the lead time remaining. Second, TMA contends that the decrees constitute an attempt by EPA to establish emission standards through adjudication, thus circumventing the notice-and-comment rulemaking required under Section 553 of the Administrative Procedure Act, see 5 U.S.C. § 553, and Section 307(d) of the Clean Air Act, see 42 U.S.C. § 7607(d). Finally, TMA contends that the decrees violate due process because they apply retroactive standards without fair notice.
According to TMA, the parties did not anticipate these problems with the decrees and have not brought them to the court's attention, thus necessitating TMA's intervention. In its briefings to the court, TMA proposes specific modifications to the decrees which it claims would keep the truck manufacturing industry in operation and comply with statutory and due process requirements, while still preserving the legitimate expectations of the parties to the decrees and the decrees' environmental benefits. TMA proposes that the decrees be modified to allow defendants an alternative means of compliance: rather than meeting the 2.5 gram requirement by the current October 2002 deadline, defendants would have the option of extending the deadline in exchange for paying for emission reduction programs that offset the increase in emissions caused by the extension. The extension could not go beyond January 2004 and would be limited to two years from the time defendants supply a prototype engine complying with the current October 2002 requirements to the truck manufacturers (thus providing the two years lead time needed for integration).
EPA, Cummins, and Caterpillar oppose TMA's intervention in these actions. These parties argue that the harm TMA alleges its members will suffer under the decrees is speculative, because even if defendants cannot complete the required changes to their engines in time for the truck manufacturers to integrate them into new trucks, the decrees allows defendants to continue selling non-compliant engines after October 2002 through paying Non-Compliance Penalties ("NCPs") or utilizing emissions averaging, banking, or trading ("ABT") *fn5 . Thus, the parties opposing TMA's intervention contend that they anticipated the possibility that some defendants would not meet the deadline and provided an alternative means of compliance so that those defendants could continue operating--i.e., keep selling engines to their customers, the truck manufacturers. Because these mechanisms for avoiding shutdowns in both engine and truck manufacturing are already built-in to the decrees, these parties contend that TMA's proposed modifications are unnecessary. These parties also point out that if defendants desire modifications to the decrees, they may seek the modifications themselves (one defendant, Detroit Diesel, has already approached EPA for this purpose). Thus, these parties contend that several paths remain available to defendants for achieving compliance with the decrees--meeting the October 2002 deadline, paying NCPs, utilizing ABT, or seeking modifications--and each defendant must choose its own path according to its needs. In seeking to intervene, these parties allege, TMA is simply trying to constrain defendants' choices in order to enhance its members' leverage in negotiations with defendants over engine prices.
The parties opposing TMA's intervention also contest TMA's claims that the decrees violate due process and statutory rights. They argue that the decrees do not violate the lead time requirements in Section 202(a)(3)(C) of the Clean Air Act because this provision only governs EPA rulemaking that promulgates new industry-wide standards, not actions brought by EPA against particular manufacturers to enforce an existing standard (the 4.0 gram requirement in effect at the time of defendants' alleged violations). Furthermore, these parties argue, Section 202(a)(3)(C) applies only to heavy duty vehicles or engines for which EPA has adopted emission standards and which therefore must demonstrate compliance with those standards. Because EPA has not adopted any emission standards applicable to heavy duty vehicles--only standards applicable to heavy duty engines--these parties contend that EPA is not required to provide the manufacturers of such vehicles with the lead time required under 202(a)(3)(C).
Similarly, the parties opposing intervention contend that the decrees do not violate statutory or due process fair notice requirements because these requirements only apply to actual EPA rulemaking, not to enforcement actions. Moreover, these parties assert that even if there is merit to TMA's claims that the decrees violate statutory and due process rights, these rights belong to defendants, not TMA, and therefore TMA does not have standing to raise them.
TMA moves to intervene as of right as a defendant in these actions under Federal Rule of Civil Procedure 24(a) ("Rule 24(a)" or "24(a)"). In the alternative, TMA moves for permissive intervention under Federal Rule of Civil Procedure 24(b) ("Rule 24(b)" or "24(b)").
A. Intervention Standards
Rule 24(a)(1) permits intervention "upon timely application" where a federal statute "confers an unconditional right to intervene." Fed. R. Civ. P. 24(a)(1). Rule 24(a)(2) permits intervention where the applicant demonstrates: 1) a timely application; 2) a cognizable interest in the action; 3) an impairment of its ability to protect its interest if intervention is not granted; and 4) that the existing parties will not adequately protect its interest. See Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1074 (D.C. Cir. 1998). *fn6 To meet the cognizable interest requirement of this test, the applicant must demonstrate that it has standing. See Southern Christian Leadership Conference v. Kelley, 747 F.2d 777, 779 (D.C. Cir. 1984); Stewart v. Rubin, 948 F. Supp. 1077, 1105 (D.D.C. 1996).
Rule 24(b)(1) permits intervention "upon timely application" where a federal statute "confers a conditional right to intervene." Fed. R. Civ. P. 24(b)(1). Rule 24(b)(2) permits intervention where 1) the application for intervention is timely; 2) the applicant's claim or defense shares a common question of law or fact with the main action; and 3) intervention would not unduly delay the proceedings or prejudice the parties. See Fed. R. Civ. P. 24(b)(2). *fn7
Because we find that TMA's did not make a "timely application" for intervention as required under both 24(a) and 24(b), we do not consider whether TMA satisfied the other requirements for intervention under these rules.
B. Timeliness
If an application for intervention is untimely, "intervention must be denied." NAACP v. New York, 413 U.S. 345, 365-66. Because a timely application is required for both intervention as of right and permissive intervention, a court should determine timeliness before moving on to the other intervention requirements. See id. at 365; U.S. v. Prof. Air Traffic Controllers Org., 1982 U.S. Dist. LEXIS 14171 at 11 (D.D.C. 1982).
The timeliness of a motion to intervene is determined in light of all the circumstances. NAACP v. New York, 413 U.S. at 365-66. The length of time since the litigation was commenced is one factor to be considered in assessing timeliness, but is not by itself dispositive. See id. at 366; Hodgson v. United Mine Workers of America, 473 F.2d 118, 129 (D.C. Cir. 1972). However, there is a presumption against post-judgment motions to intervene, see Assoc. Builders and Contractors, Inc. v. Herman, 166 F.3d 1248, 1257 (D.C. Cir. 1999), and motions to intervene after entry of a consent decree should be denied as untimely except in extraordinary circumstances, see Delaware Valley Citizens Council for Clean Air v. Commonwealth of Pennsylvania, 674 F.2d 970, 974 (3rd Cir. 1982). Other factors to be considered in assessing timeliness include: 1) the length of time the intervenor knew or should have known of its interest in the case; 2) any prejudice to the original parties caused by the intervenor's delay in moving to intervene; 3) any prejudice to the intervenor if the motion is denied; and 4) any unusual circumstances that favor or disfavor intervention. See Hodgson, 473 F.2d at 129; Stewart, 948 F. Supp. at 1103.
TMA filed its motion to intervene on March 9, 2001, over two years after the action commenced and over a year and a half after the court approved the consent decrees settling the action. Despite this considerable delay, TMA contends that its motion to intervene is timely because it could not have anticipated the harm to its members from the decrees any earlier. TMA argues that it only "recently" became clear that defendants would not complete a full product line of engines complying with the decrees' requirements in time for TMA's members to integrate the engines into new trucks prior to October 2002. According to TMA, it did not become aware that major engine changes would be required to comply with the decrees until between December 1999 and April 2000, and the public record did not reveal the technical difficulties defendants were experiencing in completing the required changes until February 2001, when Detroit Diesel wrote a letter to EPA requesting a deferral of the October 2002 deadline.
However, the fact that TMA met with EPA several times during the negotiations leading up to the decrees and filed extensive comments during the public comment period after the decrees were proposed indicates that it was aware of the requirements in the decrees, including the "pull ahead" standards that it now challenges. This knowledge was sufficient to alert TMA of the potential harm to its members' interests under the decrees. See Hirshon v. Bolivia, 979 F. Supp. 908, 913 n.5 (D.D.C. 1997) (denying intervention in part because movants waited until five months after they learned of the terms of the settlement and its potential effect on their interests to intervene); Mapco Int'l, Inc. v. U.S. Dep't of Energy, 1992 U.S. Dist. LEXIS 12108 at 3 (D.D.C. 1992) (denying intervention despite the movants' "genuine and important interest" in the case on the grounds that they had "the same general interest since the case's inception" but had waited over a year to intervene).
In addition, the letter from Detroit Diesel does not distinguish this case from Delaware Valley, where intervention in a consent decree was denied in part because "none of the circumstances or facts upon which appellants base their claim for relief have changed since the consent decree was entered." 674 F.2d at 975. Even if defendants' own concerns that they might not meet the October 2002 deadline did not appear in the public record until February 2001, TMA expressed its concern that they might not meet the deadline long before, in its comments on the decrees. The fact that the Detroit Diesel letter might have heightened TMA's existing interest in the decrees does not justify its delay in intervening. See Stewart, 948 F. Supp. at 1104 (denying intervention to movants who failed to "appreciate the extent to which their rights would ultimately ... be affected") (emphasis added); Alaniz v. Tillie Lewis Foods, 572 F.2d 657, 659 (9th Cir. 1978) (denying intervention to appellants who argued that they "did not know the settlement would be to their detriment," on the grounds that they "surely ... knew the risks" and therefore "should have joined the negotiations before the suit was settled" to protect their interests). Moreover, given that TMA's claimed interest in these actions is not so much that defendants won't meet the October 2002 deadline as it is that TMA's members will not have the two years lead time they claim they require for integrating new engines into their trucks, TMA should have been aware of the threat to its interest in October 2000 when the clock began ticking on those two years. Instead, it waited to intervene until five months later. TMA's excuses for its delay do not constitute "extraordinary circumstances" that justify post-judgment intervention. Delaware Valley, 674 F.2d at 974. *fn8
TMA also contends that it justifiably relied on a promise made by EPA at the time the decrees were entered not to oppose on timeliness grounds the later intervention of a party seeking to address an implementation issue "when that issue arises." See United States v. Cummins Engine Co., U.S. Memo. in Support of Consent Decree at 39-40. TMA argues that it waited until the problems with the October 2002 requirements arose (presumably meaning until Detroit Diesel wrote the letter to EPA) to intervene in reliance on this promise, and that EPA is now reneging. EPA contends, however, that its promise was meant to extend only to implementation issues that were not foreseen at the time the decrees were entered. As noted above, TMA was aware of the possibility that defendants might not meet the deadline long before it moved to intervene, as this possibility was provided for in the decrees and was the subject of TMA's comments on the decrees. TMA cannot claim, therefore, that it did not foresee this "implementation issue." See U.S. v. U.S. Steel, 548 F.2d 1232, 1236 (5th Cir. 1977) (finding that appellant's reliance on EPA's promise to "entertain information and requests ... concerning modification or extension of the consent decree" did not excuse its failure to intervene until a year after the consent decree was entered).
A second consideration in assessing the timeliness of a motion to intervene is the prejudice caused to the original parties. Courts regard the potential for prejudice as particularly severe where, as in this case, the original parties have reached a settlement. See Moten v. Bricklayers, Masons and Plasterers Int'l Union of America, 543 F.2d 224, 228 (D.C. Cir. 1976) (noting the appropriateness of denying intervention in order "to avoid risk of a hard-won settlement package becoming undone"); U.S. Steel, 548 F.2d at 1235 (stating that "[i]nterventions after judgment have a strong tendency to prejudice existing parties ... or to interfere substantially with the orderly process of the court"). TMA contends that permitting it to intervene would not prejudice the original parties because it seeks only a minor modification to the consent decrees which would give the defendants an additional means of complying with the decrees, without jeopardizing the parties' expectations or the environment. EPA and two of the defendants disagree, however, noting that it took a year of intense negotiations for them to reach a settlement. These parties persuasively assert that the October 2002 requirements TMA seeks to modify are the heart of their bargain, the main concession defendants made in exchange for EPA foregoing an immediate recall of defendants' engines. In addition, two of the defendants maintain that they can meet the October 2002 deadline, and therefore deferral of the deadline will cause their efforts towards timely compliance to be wasted. See Stewart, 948 F. Supp. at 1104 (finding that intervention would cause undue delay where the parties were prepared to implement the settlement agreement).
Moreover, in seeking to intervene TMA not only seeks to defer the deadline but alternatively to challenge the decrees' overall validity. Therefore, allowing TMA to intervene could undo the decrees entirely. See Culbreath v. Dukakis, 630 F.2d 15, 22 (1st Cir. 1980) (denying intervention three months after entry of consent decree on the grounds that it could "destroy the decree and force a trial"). Were this to come about, not only would the parties' settled expectations be upset, but the public interest would not be served. The resolution of this litigation would be delayed, during which time the air pollution caused by emissions from heavy duty engines would remain unabated. See id. at 22 (stating that "[a]s long as this suit remains unresolved, the public and private resources invested in it lie fallow and opportunities to rectify the wrongs of which the plaintiffs complain are unrealized.") Alaniz, 572 F.2d at 659 (emphasizing the "seriousness" of the prejudice resulting when "relief from long-standing inequities is delayed").
The prejudice caused to the party seeking intervention should its motion be denied is also a factor in determining timeliness. While TMA contends that the original parties will not adequately protect its members' interest in ensuring sufficient lead time for integrating defendants' new engines into their trucks, it has not demonstrated that defendants are not adequately representing this interest. Caterpillar points out in its opposition to TMA's intervention that it has recently alerted the court of potential problems in meeting the October 2002 deadline and the consequences these may have for truck manufacturers. TMA also had an opportunity to voice its concerns in its comments on the consent decrees. See Stewart, 948 F. Supp. at 1104-1105 (holding that the movant had no need to intervene when it had other "reasonable means to voice [its] concerns about the Settlement Agreement."). Finally, to the extent that denial of TMA's motion would prejudice its interests, TMA is largely responsible for this prejudice because it waited for defendants to raise its concerns rather than raising them itself. See Consolidated Edison Co. v. Breznay, 683 F. Supp. 832, 836 (D.D.C. 1987) (denying intervention where movants waited five months to intervene while "rel[ying] on another ... to advance their arguments").
In sum, TMA cannot satisfy the timeliness requirement for intervention under 24(a) or 24(b) because it failed to intervene when it became aware of the October 2002 requirements and their potential to harm TMA'S interests, and because intervention at this late date would cause substantial prejudice to the parties.
For the foregoing reasons, it is this 17th day of January, 2002, hereby ORDERED that TMA's motion to intervene is DENIED.
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