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June 15, 1989
539 N.E.2d 1376, 184 Ill. App. 3d 206, 132 Ill. Dec. 570 1989.IL.896
Appeal from the Circuit Court of Champaign County; the Hon. Donald R. Parkinson, Judge, presiding.
APPELLATE Judges:
JUSTICE LUND delivered the opinion of the court. McCULLOUGH, P.J., and GREEN, J., concur.
On August 30, 1988, the circuit court of Champaign County, pursuant to the State's motion, dismissed the post-conviction petition of defendant Phillip Peeples. Defendant appeals. We affirm.
On September 16, 1980, defendant was convicted for committing the offense of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9-1). The crime involved the sexual assault and stabbing death of a teacher in the school library. At the sentencing hearing, the court found defendant qualified for an extended-term sentence since the crime was accompanied by "exceptionally brutal or heinous behavior indicative of wanton cruelty," which is one of the qualifying factors set forth in section 5-5- 3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-3.2(b)(2)). Accordingly, the court sentenced defendant to 80 years' incarceration.
On July 22, 1981, this court, in an unpublished order, affirmed defendant's conviction and sentence. The Illinois Supreme Court denied defendant's leave to appeal on November 30, 1981. (People v. Peeples (4th Dist. July 22, 1981,) No. 16759 (unpublished order under Supreme Court Rule 23), appeal denied (1981), 85 Ill. 2d 580, 426 N.E.2d 1288.) Defendant next turned to the Federal courts for relief. The district court denied defendant's petition for writ of habeas corpus. (United States ex rel. Peeples v. Greer (C.D. Ill. 1983), 566 F. Supp. 580.) This denial was affirmed by the court of appeals in United States ex rel. Peeples v. Greer (7th Cir. 1984), 739 F.2d 262.
Defendant returned to the Illinois courts in his quest on June 16, 1988, when he filed his present petition, pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122-1 et seq.). After appointment of counsel and filing of an amended petition, the State filed a motion to dismiss the petition. Defendant's petition contained numerous grounds for relief, but relied primarily on his assertion that the factor the court relied on to impose the extended-term sentence is vague and violates the constitutional prohibition against cruel and unusual punishment. The State contended that these issues were either raised, or could have been raised, in earlier appeals and, pursuant to the doctrine of res judicata, the petition should be dismissed. The court agreed.
It is well settled that, in evaluating post-conviction petitions, affirmance on the direct appeal is res judicata as to all issues that were raised, or could have been raised, on that appeal. (People v. Roberts (1979), 75 Ill. 2d 1, 10, 387 N.E.2d 331, 335.) This is equally true of issues raised in habeas corpus litigation. (People v. Peery (1982), 108 Ill. App. 3d 843, 845-46, 439 N.E.2d 1087, 1089.) There is a limited exception to strict application of res judicata where fundamental fairness dictates otherwise, as where the right relied on has been recognized for the first time after the direct appeal. (People v. Cowherd (1983), 114 Ill. App. 3d 894, 898, 449 N.E.2d 589, 591-92.) It is this exception upon which defendant relies.
Defendant argues the provisions of section 5 -- 5 -- 3.2(b)(2), which provide an extended-term sentence can be imposed if the offense is accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, is vague and violates the eighth amendment prohibition against cruel and unusual punishment because the sentence could be capriciously and arbitrarily imposed. He relies on the recent Supreme Court case of Maynard v. Cartwright (1988), 486 U.S. 356, 359, 100 L. Ed. 2d 372, 378, 108 S. Ct. 1853, 1856. There, the Court found that an Oklahoma statute, which provided the death penalty could be imposed when the murder was "especially heinous, atrocious, or cruel," violated the eighth amendment. The Court observed the language had not been defined by the Oklahoma courts and, consequently, did not sufficiently minimize the risk of wholly arbitrary and capricious action by the sentencer in imposing the death penalty.
Defendant maintains that, since Maynard was decided after his direct appeal and habeas corpus petition, the doctrine of res judicata should not be applied. However, the exception only applies where the right has been recognized for the first time after the direct appeal. (Cowherd, 114 Ill. App. 3d at 898, 449 N.E.2d at 591-92.) A review of Maynard and defendant's other actions establishes that, in fact, defendant did litigate this exact question in earlier proceedings.
In Maynard, the Court stated: "We think the Court of Appeals was quite right in holding that [ Godfrey v. Georgia ] controls this case." (Maynard, 486 U.S. at 363, 100 L. Ed. 2d at 382, 108 S. Ct. at 1859.) In Godfrey v. Georgia (1980), 446 U.S. 420, 428, 64 L. Ed. 2d 398, 406, 100 S. Ct. 1759, 1765, the Court held a Georgia statute, which allowed imposition of the death sentence when the murder was "outrageously or wantonly vile, horrible or inhuman," had been unconstitutionally applied because the quoted language had not been defined for the sentencing jury. The court concluded this vague construction gave the jury unchanneled discretion, violating the eighth amendment prohibition against cruel and unusual punishment.
It is apparent then that Maynard does not represent new law, but simply applies that set forth in Godfrey. The "right" defendant attempts to assert now was recognized in 1980, and not for the first time after Conclusion of defendant's direct appeal.
It is also evident defendant thoroughly litigated this question in his earlier cases. In our unpublished decision on defendant's direct appeal, this court stated:
"The constitutional issue, defendant's second argument, may be disposed of summarily. He relies entirely on Godfrey v. Georgia (1980), 446 U.S. 420, 64 L. Ed. 2d 398, 100 S. Ct. 1759. The Supreme Court in Godfrey was concerned with the application to that set of facts of the Georgia death-penalty statute which had already been held constitutional in Gregg v. Georgia (1976), 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909. The court simply held that on the facts of Godfrey the death penalty was not warranted.
The instant case is controlled by People v. Nobles (1980), 83 Ill. App. 3d 711, 404 N.E.2d 330. In that case the court upheld the constitutionality of the statute imposing life imprisonment under section 5-8-1(a)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-1(a)(1)). We note that the language of that section is identical with the language of the extended term statute which we have been discussing. The phrase, 'accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty,' appears in both statutes." People v. Peeples (4th Dist. July 22, 1981), No. 16759, slip op. at 7-8 (unpublished order under Supreme Court Rule 23).
In denying defendant's habeas corpus petition, the district court stated:
"The death penalty is cruel and unusual punishment when there is a substantial risk that it will be imposed in an arbitrary and capricious manner. That is the impact of Furman v. Georgia, Gregg v. Georgia, Proffitt v. Florida, and Godfrey v. Georgia. That limitation on a state's sentencing power is founded in the Eighth Amendment and made applicable to the states by the Fourteenth Amendment. In short, Godfrey v. Georgia is an Eighth Amendment case and not a Fourteenth Amendment due process case. [Citations.] The Eighth Amendment analysis of Godfrey v. Georgia would not apply to an extended term of imprisonment. As noted above, the United States Supreme Court has never held a term of years within statutory limits to be cruel and unusual punishment. [Citation.] It follows that a substantial risk of the arbitrary and capricious imposition of an extended term of imprisonment is not cruel and unusual punishment." Peeples, 566 F. Supp. at 591.
The court of appeals affirmed this denial. In so doing, it observed:
"The appellant herein argues before us that the decision in [ Solem v. Helm (1983), 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001, which was decided after the district court's opinion] now makes Judge Baker's refusal to apply to the facts of this case the Eighth Amendment analysis of Godfrey v. Georgia (supra) improper. But we find that Solem does not serve to change Judge Baker's decision. Put succinctly, Godfrey, Gregg and Proffitt still stand for the proposition that in a death penalty case there can be cruel and unusual punishment whenever there is a substantial risk that due to the language of the state statute the death penalty can be imposed in an arbitrary and capricious manner. Solem addresses an inherently different consideration -- one which serves to permit limited federal court surveillance of state court term sentences. It is that imprisonment for a term of years can be found invalid under the Eighth Amendment, when the term of years is significantly disproportionate to the offense. Both Solem and the Godfrey line of cases fall under the scrutiny of the Eighth Amendment, but they do not combine here to condemn Peeples' sentence. The petitioner here has not claimed that his term of years is disproportionate to his offense. In fact, any such claim would be futile. It is true that Peeples was sentenced to 80 years, but he received it as punishment for a brutal and violent murder. This is a far cry from the defendant in Solem who as punishment for relatively minor criminal conduct received life in prison without the possibility of probation or parole.
What the petitioner appears to be claiming is that his sentence is invalid under the Eighth Amendment because the Illinois statute itself is unconstitutional in that it creates the possibility that extended term sentences under it could be capriciously and arbitrarily imposed. Under the Godfrey cases, there is the serious federal concern about state impositions of death sentences under capital sentencing statutes that are so vague that state courts can execute people arbitrarily or speculate as to whether a convicted defendant's behavior has measured up to the condemnation expressed in the statute. Now, under Solem, there is a different concern -- one that relates to terms of years sentences. But it is related more to the application of the statute than to the language of the statute. It is that in the term sentence itself there must be proportionality and balance that reflect the offense committed. It may be true that both of these issues are at home in Discussions about due process of law under the Fourteenth Amendment; but in Solem as in Godfrey the Supreme Court has found the Eighth Amendment a sufficient foundation for federal judicial attention.
We are convinced from a review of the record before us and a review of Judge Baker's thorough study of the Illinois cases upholding the constitutionality of the statute applied here, that the statute in question as applied to the facts of this case did not constitute a violation of the Constitution of the United States." (Emphasis added.) Peeples, 739 F.2d at 265.
Defendant argues these cases substantively considered vagueness claims under the due process provisions of the fourteenth amendment and did not address the substantive merit of his eighth amendment claim. However, the decisions, by their very language, belie this assertion. All three cases refer to defendant's reliance on Godfrey, which is strictly an eighth amendment case and contains no reference to the due process clause of the fourteenth amendment. Further, both Federal opinions specifically refer to defendant's eighth amendment arguments.
Accordingly, it is evident defendant, in the present case, is simply trying to litigate the same question between the same parties using the same law, which has been answered by three courts. The doctrine of res judicata controls, and defendant's petition was properly dismissed.
Even if we were to accept defendant's argument that he did not raise this issue in his direct appeal, the trial court's dismissal of his post-conviction petition is proper. Defendant argues, relying on Maynard, that the provision which allows an extended-term sentence to be imposed, when the crime is accompanied by "exceptionally brutal or heinous behavior indicative of wanton cruelty," is vague and subject to being capriciously and arbitrarily imposed and, thus, violates the eighth amendment.
However, as noted, Maynard is simply an application of Godfrey. The analysis in Godfrey is limited in application to death penalty sentences, and not cases involving terms-of-years sentences. (Peeples, 739 F.2d at 265; Peeples, 566 F. Supp. at 584.) Also, numerous Illinois courts have addressed the vagueness question, with respect to this section or similarly worded sections of the Unified Code of Corrections, and have found no constitutional problems. (See People v. La Pointe (1981), 88 Ill. 2d 482, 499-500, 431 N.E.2d 344, 352; People v. Cooper (1985), 136 Ill. App. 3d 517, 528, 483 N.E.2d 309, 316; People v. Sanford (1983), 116 Ill. App. 3d 834, 844, 452 N.E.2d 710, 718; People v. Andrews (1982), 105 Ill. App. 3d 1109, 1113, 435 N.E.2d 706, 708; People v. Kulpa (1981), 102 Ill. App. 3d 571, 577, 430 N.E.2d 164, 168-69; People v. Devine (1981), 98 Ill. App. 3d 914, 925-26, 424 N.E.2d 823, 832-33; People v. Turner (1981), 93 Ill. App. 3d 61, 68-69, 416 N.E.2d 1149, 1155.) Finally, the Seventh Circuit Court of Appeals, in the earlier referred to opinion on defendant's case, addressed this question in a well-reasoned opinion, and determined there was no constitutional difficulty (see Peeples, 739 F.2d 262.), an analysis with which we agree. Accordingly, we conclude defendant's assertion that the language in question violates the eighth amendment of the United States Constitution is without merit.
Judgment affirmed.
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May 5, 1965
Isadore BLAU, a stockholder of Air-Way Industries, Inc., suing on behalf of himself and all other stockholders similarly situated and on behalf and in the right of Air-Way Industries, Inc., Plaintiff,
Edward LAMB, Edward Lamb Enterprises, Inc., Dorothy K. Oswald, Executrix under the Last Will and Testament of Frank C. Oswald, deceased, Air-Way Industries, Inc., and Edward Lamb Foundation, Inc., Defendants
Isadore Blau, a stockholder of Air-Way Industries, Inc. ('Air-Way'), brings this action under Section 16(b) of the Securities Exchange Act of 1934, (15 U.S.C. § 78p(b)), to recover for the corporation 'short-swing' profits realized in 1955 and 1956 by insiders of Air-Way.
Trial was had before this court, sitting without a jury, on February 4, 10 and 11, 1965, and proposed findings of fact and conclusions of law have been submitted by the parties. In compliance with Rule 52(a), F.R.Civ.P., this opinion shall constitute the court's findings and conclusions.
The two principal defendants in this action are Edward Lamb, an Air-Way insider by virtue of his position as a director and member of the corporation's executive committee, and Edward Lamb Enterprises, Inc. ('Enterprises'), an Ohio corporation wholly owned by Lamb and the members of his family. Enterprises has served as a holding company for the Lamb family interests and qualifies as an Air-Way insider by virtue of its beneficial ownership of more than ten per cent of the outstanding common stock of Air-Way. The latter is a Delaware corporation with its common stock listed on the American Stock Exchange. Air-Way was named as a defendant after refusing plaintiff's demand that it commence this action.
Plaintiff claims that Lamb and Enterprises realized profits from purchase and sale transactions in both the common and the preferred stock of Air-Way. Because of the novelty of the questions raised by the preferred stock transactions, they constitute the major area of dispute in this action. The claim on the common stock transactions, although involving a not insubstantial amount of damages, is comparatively less complex and will be dealt with separately hereinafter.
The following essential facts illuminate and bear upon the issues of short-swing profits allegedly realized on the Air-Way preferred stock.
On June 9, 1955, Air-Way offered the stockholders of Lamb Industries, Inc. ('Industries'), an exchange of one share of its newly-created convertible preferred stock for every five shares of Industries' common stock. Industries then was an Ohio manufacturing corporation.2a At the time this offer of exchange was made, Edward Lamb was the president and treasurer of Industries and controlled 97% Of its stock -- which was never listed on any exchange and had no fixed market value. Various employees of the corporation and residents of Middleville, Michigan, where Industries' plant was located, owned the remaining 3%.
Shortly thereafter, Lamb and Enterprises began a series of transactions in which, almost simultaneously, they exchanged their holdings of Industries common for Air-Way preferred stock and then exercised their options to convert the Air-Way preferred thus acquired into Air-Way common stock at the rate of 3 1/2 shares of Air-Way common for each share of Air-Way preferred. All exchanges and conversions took place within three months and were completed by September 15, 1955.
Plaintiff contends -- and I am persuaded -- that the exchange of Industries common for Air-Way preferred was a 'purchase' and that the subsequent conversion of Air-Way preferred into Air-Way common was a 'sale', giving rise to a 'profit' computed by substracting the value of the Industries stock surrendered on the date of exchange from the value of the Air-Way common received on the date of conversion, all within the meaning and intent of Section 16(b).
The mere fact that no cash changed hands does not preclude a finding that the exchange of Industries stock for Air-Way preferred constituted a 'purchase'. Stella v. Graham-Paige Motors Corp., 132 F.Supp. 100 (S.D.N.Y.1955), aff'd, 232 F.2d 299 (2d Cir. 1956) (exchange of assets for stock). Indeed, at least two other cases in this district, Fistel v. Christman, 135 F.Supp. 830 (S.D.N.Y.1955) and Blau v. Hodgkinson, 100 F.Supp. 361 (S.D.N.Y.1951), clearly support plaintiff's contention that the exchange was a 'purchase'.
In Fistel, Judge Weinfeld found a 'purchase' where the insider of company A acquired additional shares of company A by giving in exchange the shares of company B. Company B resembled Lamb Industries in that it was a closely held corporation whose shares were never actively traded. The insider held 90% Of its stock.
In Hodgkinson, pursuant to a plan of corporate simplification, the insider of the subsidiary corporation gave up his shares in the subsidiary and received shares of the parent corporation in exchange. Finding this transaction to be a 16(b) purchase, Judge Leibell explained:
'Under the plan for the corporate simplification, a stockholder of one of the subsidiaries was not obliged to accept stock of Federated for his stock in the subsidiary. He could have demanded the cash value of his stock in the subsidiary * * *. When the defendants turned over their stock in a subsidiary and received stock in Federated, they received something totally different from that which they surrendered -- stock in a different corporation * * *.' Blau v. Hodgkinson, supra, 100 F.Supp. at p. 373.
Turning to the conversion half of the transaction, the case most heavily relied upon by plaintiff to support his claim that the conversion of Air-Way preferred into Air-Way common constituted a 16(b) 'sale' in Park & Tilford, Inc. v. Schulte, 160 F.2d 984 (2d Cir. 1947). In that case, defendants owned a majority of the outstanding common stock and, in addition, a large block of preferred shares, convertible at the rate of 1 1/4 shares of common for each share of preferred, and redeemable by the corporation at $ 55 per share on 30 days notice. During a period in which the market price of the common rose steadily due to a rumor about a possible dividend to be paid in cases of liquor, the corporation gave notice that it would redeem the preferred. Thereupon defendants converted their preferred into common before the redemption date at a time when the market price of common stood at $ 58 per share. Defendants then sold the common within six months. The court, relying upon a literal interpretation of the statute which broadly defines 'purchase' as 'any contract to buy, purchase, or otherwise acquire', ruled (at p. 987): 'We think a conversion of preferred into common stock followed by a sale within six months is a 'purchase and sale' within the statutory language of 16(b).'
Although Park & Tilford is clear authority for treating a conversion as a 'purchase' of the security received, the interesting problem confronted here is the determination whether the conversion may also be considered a 'sale' of the convertible security. Logically within the purview of the statute, it would seem that every transaction which can be labeled a 'purchase' so far as the purchaser is concerned necessarily should be viewed as a 'sale' from the standpoint of the other party to the same transaction. Moreover, the danger of insider speculation is no less inherent in a situation where a conversion serves as the second half of the short-swing than where a conversion constitutes the first half or purchase' end of the short-swing. This view was recently taken in Heli-Coil Corp. v. Webster, 222 F.Supp. 831 (D.C.N.J.1963). In that case, defendant purchased convertible debentures, converted them into common stock within six months, and then sold some of the common within six months thereafter. Judge Augelli determined that the conversion constituted both a 'sale' of the debentures and a 'purchase' of the common stock, thus sustaining the plaintiff's contention that the purchase-conversion-sale transaction constituted two separate 16(b) violations.
Notwithstanding Park & Tilford and Heli-Coil Corp., Chief Judge Jones held in Ashland Oil and Refining Company v. Newman, 163 F.Supp. 506 (N.D. Ohio 1957), aff'd,3a 259 F.2d 342 (6th Cir.), cert. denied, 359 U.S. 927, 79 S. Ct. 606, 3 L. Ed. 2d 629 (1958), that not all conversions are transactions within the meaning of the Act. Defendant, a director of Ashland held convertible preferred shares. When the corporation announced that it would redeem the stock at $ 27 per share, he and all other preferred shareholders decided to exercise the right to convert to common which, at the time, was selling at $ 36 per share. Judge Jones held that this particular conversion was not a Section 16(b) purchase. He distinguished the case from Park & Tilford on substantially the following grounds: (1) the conversion was largely involuntary in view of the difference between the redemption price of the preferred and the market price of the common; (2) the shares received were almost the economic equivalents of the shares exchanged, both in price and in marketability, because of a provision protecting the convertible preferred against dilution and because both the preferred and the common were listed securities actively traded on national exchanges; (3) Newman was a director who had no controlling interest in the corporation and did not actively participate in corporate affairs.
Despite these distinctions, commentators have suggested that the Ashland Oil case may limit the scope of Park & Tilford as a precedent for applying 16(b) to securities conversions. See 72 Harv.L.Rev. 1392 (1959). As is apparent from Judge Augelli's opinion in Heli-Coil, however, it might be more accurate to observe that the Ashland Oil case brings to conversion transactions the same flexible approach consistent with Section 16(b)'s purpose as has been long employed by the courts in varying factual patterns to construe the essential statutory concepts of 'purchase' and 'sale'. This approach has been characterized as 'pragmatic rather than technical', Ferraiolo v. Newman, 259 F.2d 342, 344 (6th Cir. 1958), and the test, succinctly stated, is whether or not the transaction is question in any way 'lends itself to the accomplishment of what the statute is designed to prevent.' Blau v. Lehman, 286 F.2d 786, 792 (2d Cir. 1960), aff'd, 368 U.S. 403, 82 S. Ct. 451, 7 L. Ed. 2d 403 (1962).
On the basis of the evidence produced at trial, I am of the opinion that the preferred stock transactions engaged in here were the kind sought to be proscribed by the statute. The element of involuntariness, so crucial to the decision in the Ashland Oil case, was totally absent here. Unlike the 'insider' in Ashland Oil, Edward Lamb was in full control of the corporation whose shares were traded; indeed, he was the guiding force behind the plan of exchange between Air-Way and Industries. Significantly, this plan had never been discussed at a board meeting of Air-Way prior to June 9, 1955 -- the date resolutions embodying the offer of exchange were proposed and passed by the directors, all of whom were Lamb's nominees. Lamb testified that the immediate purpose of the exchange was to graft on to Air-Way the same team of management experts he had previously recruited for Industries in an effort to radically alter and bolster what he considered to be Air-Way's then inadequate and misguided sales program. In addition, the exchange of Industries stock for Air-Way preferred and the subsequent conversion of the latter into common stock served Lamb's long-range goal of acquiring dominance of Air-Way. It requires little imagination to infer from such factors a corporate milieu rife with opportunities for speculation and misuse of inside information.
The speculative nature of the preferred stock transactions become even more suspect in light of the fact that the 'outsider' stockholders of Air-Way were not given an opportunity to signify their approval of the exchange with Industries until the next annual meeting, March 27, 1956 -- more than six months after the last conversion. By this date, as a result of exchange and conversion -- in addition to over-the-counter purchases -- Lamb and his family had increased their holdings of Air-Way common to approximately 52%.
Throughout the protracted history of this litigation, defendants have emphasized the importance of a provision in the preferred certificates which, like a similar provision attaching to the Ashland Oil securities, protected the preferred against the diluting effect of any possible split or stock dividend on the common stock by providing for a proportionate adjustment in the conversion rate. Thus, defendants argue, the Air-Way preferred was the economic equivalent of the Air-Way common, and the conversion of the preferred did not interrupt the continuity of their investment in Air-Way -- i.e., the disposition of the preferred by conversion did not constitute a 'sale'.
The simple answer to this argument is that this anti-dilution feature did not place a holder of the preferred stock in precisely the same investment position as a holder of common stock. On the contrary, by conversion, Lamb and Enterprises significantly enhanced their investment position in three important respects: (1) greater voting power, (2) greater dividends and (3) greater marketability of their shares. As the preferred and the common each entitled the holder to one vote, conversion at the rate of 3 1/2 to one gave defendants 3 1/2 times greater voting power. During the period between the first exchange and the last conversion, dividends on 3 1/2 shares of common exceeded the dividend on one share of preferred by more than forty cents. As for marketability, unlike the common stock, Air-Way preferred was a new issue, not listed upon any exchange, and without any fixed market value.
On the other hand, in apparent contradiction of his counsel's argument that the preferred was the economic equivalent of the common, Lamb testified upon cross-examination that, although he knew he was giving up valuable preferences when he converted, '* * * I felt that I should have the same status as the other stockholders * * *.'
Thus, irrespective of the anti-dilution feature of the preferred, the latter was simply not the economic equivalent of the common stock. By converting the preferred, Lamb and Enterprises received a totally different security with an attendant alteration in the risks and advantages involved. To put this another way, conversion into common stock required an investment decision based upon wholly different considerations than those involved in the decision to exchange for the preferred stock. I conclude, therefore, that the conversion of Air-Way preferred into Air-Way common constituted a 'sale' within the meaning of Section 16(b) and, consequently, a violation of that section.
It was stipulated in the pre-trial order entered in this action that Edward Lamb sold 300 shares of Air-Way common through the American Stock Exchange on September 15, 1955. The sale of these shares constituted a statutory violation when matched with purchases made less than six months earlier on March 18 (200 shares) and March 22, 1955 (100 shares). Another violation in the nature of a sale-purchase' swing, arose from the purchase through the Exchange of 100 shares on October 6, 1955, when matched with these prior sales of September 15. (pre-trial order, page 3, paragraphs 9 and 12.)
In private sales, not consummated on the Exchange, defendant Enterprises sold 10,500 shares of Air-Way common on or about October 6, 1955, and 6,500 shares on or about October 13, 1955. (pre-trial order, page 5, paragraph 17.) Plaintiff contends -- and defendants deny -- that a transaction between Enterprises and Industries on or about June 6, 1955, constituted a 'purchase' against which these two subsequent sales can be matched to establish Section 16(b) violations.
In this particular transaction of June 6 (pre-trial order, page 16, paragraph 12). Enterprises acquired from Industries 68,100 shares of Air-Way common, plus other assets. Industries received in exchange 40,002 shares of Industries common stock, plus the assumption by Enterprises of a note in the sum of $ 581,250 given by Industries to the Chemical Corn Exchange Bank.
Defendants' argument addressed to this transaction -- that the exchange constituted no more than 'a mere transfer between corporate pockets' -- rests entirely upon Judge Clark's opinion in Blau v. Mission Corp., 212 F.2d 77 (2d Cir. 1954). In that case, defendant Mission Corporation organized a subsidiary, Mission Development Company, purchased a substantial amount of Tide Water Associated Oil Company shares, and then, in two separate transactions, transferred the Tide Water stock to Development in exchange for stock in the latter company. The first exchange took place shortly after the incorporation of Development and resulted in Development holding the Tide Water stock as its sole asset and Mission holding all of the outstanding Development shares. By the time the second exchange took place, however, Mission had disposed of some of its stock in Development so that 1.8 million of the 2.8 million then outstanding Development shares were publicly held. While holding the second exchange to be a 'sale' within the meaning of 16(b), Judge Clark declined to so hold as to the first transaction, which he characterized as 'a mere transfer between corporate pockets', or 'mere bookkeeping', since there was then 'no existing market for Development stock and no public ownership of its stock, which was entirely held by its parent.' (212 F.2d, at page 81).
The analogy which defendants seek to draw between the first Mission Corp. exchange and the June 6 transaction between Industries and Enterprises is inapposite. The 3% Of Industries' stock held by outsiders -- approximately 6,000 out of 196,000 shares -- cannot be cavalierly dismissed, the way defendants suggest, as 'insignificant'.
In practical effect, defendants seek to extend the exemption for an exchange between a parent and a 100%-Owned subsidiary to an exchange with a 97%-Owned subsidiary without offering any precise and generally applicable criteria for guidance in future cases. It can be said, moreover, that Judge Clark's ruling on the first exchange in the Mission case was influenced by the fact that the transaction was merely part of the process of setting up the newly-organized subsidiary. In short, unlike Enterprises' subsidiary, Development had no assets of its own until the first exchange.
It must be concluded, thus, that the exchange on June 6, 1955 was a 'purchase' by Enterprises of 68,100 shares of Air-Way common which can be matched against Enterprises' subsequent sales of 10,500 and 6,500 shares, respectively, on October 6 and 13, 1955.
Finally, Enterprises realized an additional profit, as a result of statutorily proscribed 'sale-purchase short-swing' by its purchase of 100 shares through the American Stock Exchange on October 16, 1955 -- ten days after the October 6 sale at a higher price per share. (pre-trial order, page 4, paragraph 15.) Additional violations arose from purchases by Enterprises through the American Stock Exchange within six months prior and subsequent to a transaction between Enterprises and former defendant Frank C. Oswald on or about November 2, 1956.
Jurisdiction of this action is conferred upon this court by virtue of Section 27 of the Securities Exchange Act, 15 U.S.C. 78aa.
That neither defendant is a resident of or was served with process in the Southern District of New York is of no consequence. Grossman v. Young, 70 F.Supp. 970 (S.D.N.Y.1947). As to each defendant, venue is properly laid in this District because of common stock transactions on the American Stock Exchange which constituted violations of Section 16(b).
The sale by Edward Lamb of 300 shares of Air-Way through the Exchange on September 15, 1955 constituted a violation within this district, as did his purchase of 100 shares through the Exchange on October 6, 1955. Similarly, Enterprises' purchase of 100 shares on October 16, 1955 -- ten days after a sale at a higher price per share -- constituted a statutory violation within this district.
Although defendants have strenuously argued throughout this litigation that the mere occurrence in this district of a few out of a significant number of violations is insufficient to support a finding of proper venue or jurisdiction, I consider myself bound by and indeed concur in the view expressed earlier in this action by Judge Dimock, Blau v. Lamb, 20 F.R.D. 411, at p. 413 (S.D.N.Y.1957), that
'* * * where a plaintiff sues a defendant for the profits upon a short swing transaction some part of which took place within the district, the plaintiff may join claims on similar transactions taking place elsewhere even though plaintiff would not have been otherwise able to get jurisdiction over the defendant as to those claims within the district. Blau v. Mission Corp., 2d Cir., 212 F.2d 77.'
See also Falco v. Donner Foundation, Inc., 208 F.2d 600, 40 A.L.R.2d 1340 (2d Cir. 1953); Goldstein v. Groesbeck, 142 F.2d 422, 154 A.L.R. 1285 (2d Cir. 1944) (violation of Public Utility Holding Company Act of 1933 containing similar venue provision); and 2 Loss, Securities Regulation 1045. This view is particularly persuasive in light of the often-stressed remedial purposes of Section 16(b). See, e.g., Smolowe v. Delendo Corp., 136 F.2d 231, 148 A.L.R. 300 (2d Cir. 1943), cert. denied, 320 U.S. 751, 64 S. Ct. 56, 88 L. Ed. 446.
Defendants' final argument on venue -- that the common stock trading on the Exchange cannot support a finding of venue as to the preferred stock transactions in Ohio -- ignores the fact that both types of transactions involved the same defendants, trading in the shares of the same corporation at substantially the same time as part of the same plan to gain control of that corporation.
The serious dispute as to the precise amount of profits realized by defendants and recoverable by the corporation centers upon the value, in the spring of 1955, of the Industries common stock surrendered in exchange for Air-Way preferred stock.
A determination of this value is crucial to the computation of profits since, under the applicable rules of law, the cost of the stock acquired is based upon the value of the assets delivered in exchange. Stella v. Graham-Paige Motors Corp., 259 F.2d 476 (2d Cir. 1958).
Plaintiff maintains that the value of Industries common stock in June, 1955, was no higher than $ 6 per share. Although it is indeed true that Industries' financial statement for the period ending on June 30, 1955, fixed the book value of the company's stock at $ 6 per share,
the trial testimony of Mr. Edward Lamb, which was not refuted by plaintiff's evidence, and other evidence in the case indicates that in an arms-length transaction between a willing buyer and a willing seller, the value of the stock would have been realistically set at a figure somewhat above 'book'. What made the exchange particularly attractive from Air-Way's standpoint was the fact that in addition to tangible assets, it was acquiring Industries' recently recruited management team which, so far as could be determined contemporaneously, was largely responsible for a respectable increase in earnings in the last quarter of 1954 and, as well, Industries' promising sales prospects generally in the water heater industry. Industries in the early 1950's had also shown considerable competitive vigor by reason of its acquisitions of other companies and imaginative forays into new product lines. Thus it is that, notwithstanding its comparatively meager cash position in early 1955, I find it unrealistic to accept without qualifications the views of plaintiff's two experts that Industries' stock should be valued at less than $ 6 per share. On the other side of the coin, I cannot accept Lamb's largely subjective and unsupported evaluation of approximately $ 15 per share. While it is difficult, of course, to precisely appraise these intangibles ten years in the past, it seems not incompatible with commercial realities a decade ago to add to book value a 'premium' of $ 2.50 in reflection of what Air-Way in reason could have thought it was achieving in this transaction. The market value of Industries common stock, therefore, is determined as of June, 1955, to be $ 8.50 per share.
There remain other issues with regard to damages or profits sought to be recovered for the corporation. Plaintiff contends further that the corporation is entitled to recover (1) a 30 cent per share cash dividend on Air-Way common declared on June 30, 1955, and (2) a 100% Stock dividend on Air-Way common declared on September 12, 1955.
As to the June 30 cash dividend, I regard it as too incidental and not 'so inextricably connected' with defendant's purchase-and-sale transactions to be included in the amount recoverable. See Adler v. Klawans, 267 F.2d 840, 849 (2d Cir. 1959). While it may be argued that, because the June 30, 1955, dividend was apparently the highest ever paid by Air-Way, it must have been part and parcel of an overall scheme of short-swing speculation, on balance, I am unpersuaded that such was the case. Air-Way had been paying regular quarterly dividends at least since June, 1954 -- before that date the record is silent -- and declared dividends had fluctuated, a not unusual phenomenon in other companies depending upon usual criteria such as earnings, the state of the industry, management forecasts and the like.
The 100% Stock dividend is something else again. This should rightfully be recovered by the corporation, largely because the record indicates no precedent, either in the prior or subsequent history of the corporation, for so substantial a dividend. More important, the timing of September 12, 1955 for the declaration and payment of this dividend is suspiciously coincidental with that of the most significant short-swing transactions with which this case is concerned -- i.e., one cannot overlook the increased leverage afforded Lamb and his companies by this stock dividend.
I also find that by virtue of Edward Lamb's beneficial ownership of all the stock of Enterprises, and in light of his revelations upon cross-examination and other persuasive evidence as to his control over the directors and their decisions, he must be held jointly and severally liable for the profits realized by Enterprises.
Particularly in the light of the history of this protracted litigation, plaintiff's claim for interest on the award to be made in this action would be inequitable and thus, in the court's discretion, is denied. See Blau v. Lehman, 368 U.S. 403, at p. 414, 82 S. Ct. 451, 7 L. Ed. 2d 403 (1962).
An order and judgment in conformity with the foregoing should be settled on notice and without undue delay.
Supplemental Opinion
This supplement to the opinion of this court in Blau v. Lamb, Civ. 113-395, May 5, 1965, is being filed contemporaneously with the settlement and filing of the judgment for plaintiff in this action.
The total amount recoverable jointly and severally from Edward Lamb and Edward Lamb Enterprises, Inc., as a result of short-swing transactions by Enterprises is calculated as follows:
Preferred Stock Transactions
9/13/55 conversion proceeds $ 2,406,097.31
7/5/55 exchange cost 1,470,032.50
Recoverable Profit $ 936,064.81
Common Stock Transactions
1955 10/6 sale proceeds
(10,500 shares) $ 199,500.00
6/6 purchase cost 106,911.00
$ 92,589.00
100% stock dividend on
shares sold 10/13 60,937.50
Recoverable Profits $ 153,526.50
10/6 sale proceeds $ 1,900.00
10/16 purchase on
shares) 1,017.00
Recoverable Profit $ 883.00
1956 sale proceeds $ 7,150.00
purchase cost 6,561.00
$ 589.001a
Total Profits Recoverable .................... $ 1,091,063.31
The total amount recoverable from Edward Lamb as a result of his own short-swing transactions is calculated as follows:
Preferred Stock Transactions
1955 9/13, 9/14, 9/15 $ 360,517.50
conversion proceeds
7/5, 7/25, 8/13, 9/15
exchange cost 157,800.00
Recoverable Profit $ 202,717.50
Common Stock Transactions
9/15/55 sale proceeds
6/6/55 purchase (private
transaction) 3,054.60
Recoverable Profit $ 2,702.52
9/15/55 sale proceeds
10/6/55 purchase (A.S.E.,
100 shares) 991.00
Recoverable Profit $ 936.43
Total Profits Recoverable $ 206,356.45
These total amounts differ from the amounts suggested in both plaintiff's proposed judgment and defendants' counter proposed judgment. Thus, a prime purpose of this supplemental opinion is to explain as succinctly as possible the bases for this court's disagreements with the computations and proposed judgments submitted by plaintiff and defendants.
Both proposed judgments fail to reflect the sale-purchase violations arising from Enterprises' purchase of 100 shares of Air-Way common on the Exchange on October 16, 1955, and Edward Lamb's purchase of 100 shares of common on the Exchange on October 6, 1955. (Page 159 and page 158 of the May 5th opinion, respectively.)
Although plaintiff and defendants each suggest a different method of accounting for the 100% Stock dividend received by Enterprises on the 6,500 shares sold ex-dividend on October 13, 1955, the fair and proper way to give effect to this dividend is simply to include in the amount recoverable the value of the 6,500 shares received as a dividend, at the highest market price on the date received. In effect, this means that although no profit was realized on the October 13 sale -- since the sales price of $ 9.25 per share was less than the purchase cost of $ 10.182 per share on June 62b -- plaintiff is nevertheless entitled to recover the actual value of the stock dividend received as a result of this short-swing transaction.
In addition, plaintiff's proposed judgment seeks to recover the sum of $ 78.60 received by Enterprises as a 5% Stock dividend paid on December 18, 1956. I find this dividend to be nonrecoverable under Section 16(b). See the discussion of dividends on page 161 of the May 5th opinion.
Defendants' counter proposed judgment reflects several miscalculations. First, in determining the recoverable profit from the preferred stock transactions of both Enterprises and Lamb, the cost of the preferred stock acquired by exchange must be matched against the highest market price of Air-Way common on the date of disposition by conversion -- not against the average price on that date as suggested by defendants. See Marquette Cement Manufacturing Co. v. Andreas, 239 F.Supp. 962, 968 (S.D.N.Y.1965).
Second, with regard to the preferred stock transactions of Edward Lamb, his cost of acquisition of one share of Air-Way preferred was $ 30 -- five shares of Industries common, obtained by the exercise of his employee's option to purchase at $ 6.00 per share.
Finally, in apparent response to the statement on page 158 of the opinion of May 5th that the sale of 300 shares by Lamb through the Exchange on September 15, 1955, constituted a violation when matched with March 18 and 22, 1955 purchases on the Exchange, defendants used the cost of these shares purchased in March as the basis for determining the profit recoverable from the September 15 sale. While it is entirely true that, technically, a violation arose from the incidence of the September 15 sale less than six months after the March purchases, for purposes of computing profits recoverable under Section 16(b), 'the highest sale prices are to be matched with the lowest purchase prices within the periods involved' Heli-Coil Corp. v. Webster, 222 F.Supp. 831, 837 (D.C.N.J.1963). Here, then, plaintiff is correct in matching the 300 shares sold on September 15 with 300 of the 68,100 shares purchased on June 6, 1955 at a lower cost than the shares purchased through the Exchange in March of that year.
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by john
(holt, MI USA)
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Gio Ponti Colt Tops OBS Session
A 2-year-old son of Gio Ponti went to Conquest Stables for $250,000 to top the horses of racing age section of the Ocala Breeders' Sales Company's 2015 Fall Mixed Sale Oct. 14.
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After taking seven tries to break her maiden, it's safe to say Warriorscmoutoplay has figured things out and now she'll try graded stakes competition in the $150,000 Azalea Stakes (gr. III) July 5 at Gulfstream Park.
Forum Racing's Birdathewire flipped the script on familiar rivals Ekati's Phaeton and Eskenformoney March 28 with a closing victory in the Gulfstream Park Oaks (gr. II).
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Stakes winners Firespike and Quality Rocks top the respective male and filly divisions of the OBS Championship Stakes at Ocala Breeders' Sales Co. Jan. 27.
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Jacks or Better Farm's homebred Sing Praises nosed out Royal Squeeze Oct. 4 to win the In Reality Division of the Florida Sire Stakes Series at Gulfstream Park.
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|Breeder / Owner
|Awesome Ice
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|Mark E. Casse
|Bay Ridge S.
|Copa Invitacional S. (gr. I)
|Clasico Internacional del Caribe S. (gr. I)
|Trapeze S.
|Useeit S.


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Last login: Tuesday, December 1, 2015
Comment history
Editorial: Clueless
Actually, this is pretty normal for the Legislature/Admin. for the past couple of years: Campaign Slogan: We're Working on Jobs! Post-Election: Abortion!!!!! We want to make it more Illegal Than Any Other State!!!
If he tells the truth ('we're going to suck as much cash out of the KTA as possible while politicizing its' Board') he's going to have a hard time rounding up votes, even amongst the true believers.
P.S. What's the deal with one of the recently appointed KTA board members buying Sec'y King's business? Quid pro quo? Payola? Inquiring minds, etc.
February 7, 2013 at 12:25 p.m. ( permalink | suggest removal )
Do you think Gov. Brownback should try to combine the Kansas Department of Transportation with the Kansas Turnpike Authority?
All we care about is how much the tolls will be, and how well the road will be maintained. Given how desparate the state is for $, is there ANYONE that believes we'll be better off in those two areas if K-DOT takes over the KTA?
January 19, 2013 at 1:53 p.m. ( permalink | suggest removal )
Brownback plans to transfer highway funds to schools, merge Kansas Turnpike Authority raise questions
So, we're going to replace the semi-private high-tech KTA maintenance (wireless weather data transmitters, etc) with the low-bid KDOT procedures?
What could go wrong?
January 17, 2013 at 3:30 p.m. ( permalink | suggest removal )
Brownback plans to transfer highway funds to schools, merge Kansas Turnpike Authority raise questions
Since KDOT roads are in crummy shape, and the Turnpike's are A+, maybe we should consider dissolving KDOT, and turning over the highway system to the KTA.
Seriously, the only way this works is if the State 1. raises tolls on the Turnpike, 2. reduces maintenance, and/or 3. stiffs the bondholders. Those might help plug some holes in Sam's budget, but they're not so good for the rest of us.
P.S. Anybody who thinks the State won't reduce maintenance on the KTA just needs to go back a year, and look at the stories about Sam pulling millions of dollars out of KDOT's budget to cover shortfalls in other departments.
January 17, 2013 at 2:44 p.m. ( permalink | suggest removal )
KU fans weigh in on Missouri's exit from Big 12 Conference
Another paper cut for downtown KC.
Speedway is drawing people away, Town Center is drawing people away, troubles in the Plaza are pushing people away. One more slight cut won't kill anything/anyone, but a 1,000 of them will.
November 7, 2011 at 10:03 a.m. ( permalink | suggest removal )
U.S. Supreme Court rules in favor of Westboro Baptist Church protesters
Some scholars (not me!) think it was just a line to get a cheap laugh - a bunch of nitwits sitting around, boozily discussing what they'd do to make things more enjoyable - similar to the plot of every Judd Apatow movie.
March 2, 2011 at 3:49 p.m. ( permalink | suggest removal )
Baldwin City man claims he had no intent to harm bicyclist
Yeah! When I have to slow down for you d*** socialist bike riders, it makes me be at least 15 or 20 seconds late! What's the deal with you people?! If you had any real consideration, you'd just get over on the side of the road and wait for me to go by!
March 2, 2011 at 11:07 a.m. ( permalink | suggest removal )
U.S. Supreme Court rules in favor of Westboro Baptist Church protesters
Dick the butcher & his friends, gangsters and anarchists all, were plotting to kill the king and takeover the legitimate government. He wanted to kill the lawyers to achieve his utopia, a lawless society.
Protecting the rights of the vile Phelps clan is distasteful and wonderful at the same time. It demonstrates the difference between a democracy and a theocracy (Iran), police state (Saudi Arabia) or an autocracy (Wisconsin) where only one point of view is allowed.
On the other hand...Phelps? Ewww.
March 2, 2011 at 11:01 a.m. ( permalink | suggest removal )
Christianity a strong theme during Kansas Gov. Sam Brownback's inauguration
Let's see if I've got this straight: It's the grown-ups who believe in a 2,000 year old ghost? And it's the kids who believe in things like science? A lot of "truthiness" going on in Topeka, I fear.
January 12, 2011 at 10:25 a.m. ( permalink | suggest removal )
Can Kansas salvage season? Fat chance
Anybody else suspect that we don't really know why Mangino was fired? I've always thought the "being mean to the players" story was just a cover, and that he probably pissed off some of the rich KC alums that Lew was so beholden to. Any other conspiracy theories out there?
October 15, 2010 at 9:48 a.m. ( permalink | suggest removal )
Briggs Chrysler 785-856-8889
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The 40mm Sunshade for Adjustable Objective Scopes from Hawke Sports Optics is designed to shield the objective lens of AO scopes from light sources that may cause glare, glint, or internal reflections within the scope's optics. The shade is 3.9" in length and features threading on both the front and back of the tube, allowing multiple shades to be "stacked" creating a longer shade.
This sunshade is compatible with all Hawke Optics 2015 collection scopes onwards but is not compatible with the Frontier 30, XB/XBI Scopes or 24mm objectives.
|3.9" (100mm)
|Front Thread
|Packaging Info
|Package Weight
|0.25 lb
|Box Dimensions (LxWxH)
|7.0 x 6.1 x 2.0"


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Sperm donor passed on sudden death heart defect
(AP) -- A sperm donor passed on a potentially deadly genetic heart condition to nine of his 24 children, including one who died at age 2 from heart failure, according to a medical journal report.
(AP) -- A sperm donor passed on a potentially deadly genetic heart condition to nine of his 24 children, including one who died at age 2 from heart failure, according to a medical journal report.
Wall Street giants are not the only banks hit by diminishing assets. New research for an Israeli sperm bank shows that depositors are 40 per cent less fertile than a decade ago, the Haaretz daily reported.
With commercial sperm banking giving women more opportunities to become mothers, a world-first QUT study has found the age and education of sperm donors are the most important characteristics considered.
After blood and sperm banks, Dutch researchers have now opened the country's first "poop bank" in a rare and cutting-edge branch of medicine to treat people with chronic gut infections.
Despite a prevalence of anonymous sperm donation in European countries, the use of the same sperm donor for subsequent conceptions is of paramount importance to those couples needing sperm donation to have children. "We found ...
Pioneering research presented at the Fertility 2013 conference today (Thursday 3 January 2013) shows that a large proportion of male cancer patients are missing out on appropriate fertility advice.
(AP) -- Physicians and the federal government cited the case of a San Francisco Bay area man who has fathered 14 children as an example of the risks posed by the informal market for sperm donations, which doctors consider ...
whose fertility may be at risk from cancer treatment are not being offered the chance to store their sperm according to new research published today in the Annals of Oncology.
For parents of children with cancer, the hopeful news is that pediatric survival rates have steadily improved for decades. Among the bad news—treatments that enable survival often cause infertility.
A 39-year-old widow asked a French court Wednesday to allow her to retrieve her late husband's frozen sperm so that she can be inseminated and have his child.
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NTT follows big RagingWire launch with a Mumbai site during 2015
NTT Communications has announced plans to open a new data center in partnership with local managed services provider Netmagic Solutions in India. Netmagic is a managed hosting and cloud services provider, of which NTT holds a 74 percent stake since acquiring a majority of its shares in 2012.
Located in Mumbai, the new data center will have 300,000 square feet of space and 3,000 racks, making it one of the largest data centers in the country. The second data center to be built post acquisition, it is expected to be operational in the third quarter of 2015. It will offer between 20MW and 28MW of energy capacity, and four different fiber pathways, though the company did not offer additional details about the latter.
Upcoming data center in Mumbai
Source: NTT
First fully-owned data center
"This is the first data center that we own ourselves instead of having a long-term lease as is the industry norm," said Sharad Sanghi, Netmagic's CEO and managing director in a Q&A interview carried on the ChannelTimes. "We would be investing $100 million in this data center."
Mumbai was chosen as the city holds the corporate headquarters of many global cloud providers, multinational banks and finance groups. Netmagic hopes that this combination will help boost business, especially as its existing Mumbai facilities are out of space.
At the moment, Netmagic currently owns eight facilities in India, including four in Mumbai, two in Bengaluru, as well as one each in Chennai and Noida. Separately, NTT is planning to build data centers in Hyderabad and Pune to respond to new business demand, reports The Stack. The developments come at a time when the Indian government is promoting its long-term "Digital India" initiative.
We reported last year that India is not in the running as a global data center hub despite its reputation as a top offshore destination in IT and back-office services. This is due to the lack of access to cheap bandwidth and robust power infrastructure. Rolling power-cuts are commonplace in parts of the country, which has allowed smaller countries such as Hong Kong and Singapore to move ahead in the race.


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We're sorry, this listing is off the market. Try these listings instead:
Well Known Fast Food Restaurant #225759 posted Feb 2, 2011
- Spartanburg, South Carolina, United States
- $80,000
Priced Reduced! Well known Fast Food Restaurant, located on a main street. The current owner has another business opportunity, and needs to sell this restaurant. Great turnkey value for the right buyer!
Pizza Restaurant for Sale in Greenville SC #452876 posted Aug 31, 2016
- Greenville, South Carolina, United States
- $175,000
Great Location and Very Motivated Seller! This well established, high volume business has a great reputation for a quality & superior product. 55 seats with take-out. Great books and records, should qualify for a Visa. Complete kitchen includes hoods, ovens, grill, walk-in cooler, etc. Don't Miss this...
Fast Casual Restaurant in Greenville #407305 posted May 17, 2016
- Greenville, South Carolina, United States
- $122,900
This business for sale is a well established fast casual restaurant. Call Today!
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This range offers a cost effective solution to manage light to moderate incontinence. Suitable for independent people with moderate incontinence.
Rectangular pads, with waterproof backing, can be used with your own underwear or GANMILL Fix mesh pants.
- Pack Size: 30
- Size: 16 x 60cm
- Lille Code: LCLN2151
VAT Exemption
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A. Click here for more information ...


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Messing about on the Mersey
Enjoy a paddle through South Manchester in an open canoe along the River Mersey or hire a 'sit on top' kayak. The company offers accessible trips lasting from a couple of hours to a whole day. You can hire our equipment and lead yourselves down or we'll come along with you to make sure you're OK. All canoe trips are suitable for novices and start from Burnage Rugby Football Club (other locations can be arranged).


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The sad part is that Obama doesn't even know what to do with his marbles.
Check it out:
Russian President Vladimir Putin "is running circles around" the U.S. in his maneuvering on the global stage, a senior House Republican said Sunday following Putin's military intervention in Ukraine.
"I think Putin is playing chess, and I think we're playing marbles. It's not even close," the chairman of the House Intelligence Committee, Rep. Mike Rogers (R-Mich.), said on "Fox News Sunday."
Rogers said Putin's move to send Russian troops into Crimea following the ouster of Ukraine's president "is not an isolated incident."
"They are expanding their border," he said. Crimea was part of Russia through 1954, and Rogers noted a proposal in the Russian parliament that would allow Crimea to become part of the Russian Federation.
In proceeding with the military intervention, Putin ignored a warning from President Obama to stay out of Ukraine.Continue reading on thehill.com
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A table is presented which lists several firms on the basis of rankings offered by the journal along with their corporate profits including China Life Insurance Co. Ltd., the life insurance firm Wheelock & Co. Ltd. and the technology firm Tata Consultancy Services Ltd.
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text: Home > Research > AABB Hemovigilance AABB Hemovigilance Page ContentSince 2006, AABB has been a leader in the establishment of the US national hemovigilance program, from its beginning as a public-private collaboration for the program design to the implementation of a system to track adverse reactions and incidents associated with blood collection and transfusion. AABB has a role in recipient hemovigilance through the AABB Center for Patient Safety, a component Patient Safety Organization (PSO) of the AABB, the only nationally listed PSO dedicated to transfusion safety. Through collecting and analyzing adverse events in the context of transfusion, trends and best practices can be identified and interventions developed to significantly improve patient care and safety. Revised TACO Definition for Comment before January 30, 2017A revision of the ISBT/IHN definition for transfusion-associated circulatory overload (TACO) was launched in 2013. This draft explains the rationale for the revision and contains revised reporting criteria; it is publicly available on the ISBT, IHN and AABB websites for comment through the end of January 2017. Please direct your comments to Kevin Land, ISBT haemovigilance working party chair (firstname.lastname@example.com) or Jo Wiersum, TACO definition revision group (firstname.lastname@example.com) before 31st January 2017.AABB coordinates multiple vigilance programs, including the West Nile Virus, Chagas Disease, and Zika Virus Biovigilance Networks and the AABB Blood Survey - a statistically validated survey of blood collection and utilization by the AABB membership. AABB Center for Patient Safety – Hemovigilance for Hospitals The AABB Center for Patient Safety, listed as a component Patient Safety Organization (PSO) of the AABB in December 2008, is dedicated to analyzing data on adverse reactions and incidents associated with blood transfusion, in a confidential and protected environment. The goal of these analyses is to identify and communicate best practices and to design interventions to improve patient safety. See the list of participating organizations. The AABB Center for Patient Safety, a component PSO, operates independently of AABB and its accreditation programs. Center for Patient Safety FAQs * Patient safety organizations, or PSOs, are organizations dedicated to improving patient safety and the quality of health care delivery. The Patient Safety and Quality Improvement Act of 2005 authorizes the creation of PSOs to improve safety and quality through the collection and analysis of data on adverse events and medical errors. By providing legal privilege and confidentiality protections, PSOs create a secure environment where health care providers can report, aggregate, and analyze patient safety data that enable the identification and reduction of risks and hazards associated with patient care. Zika Virus Biovigilance Network – Blood Donor Infectious Disease Tracking The Zika Virus (ZIKV) Biovigilance Network collects and reports data on blood donors with suspected ZIKV infection in the United States and Canada. Data are collected from investigational (IND) donor test results performed by nucleic acid amplification testing (NAT). The data are reported to the AABB site by facilities responsible for collecting and/or testing blood donations in the United States. For additional information, visit Zika Virus Biovigilance Network. West Nile Virus Biovigilance Network – Blood Donor Infectious Disease Tracking The West Nile Virus (WNV) Biovigilance Network collects and reports data on donors (of blood, tissue and hematopoietic progenitor cells) with suspected WNV infection in the United States and Canada. Data are collected from donor screening test results performed by nucleic acid amplification testing (NAT). The data are reported to the AABB site by facilities responsible for collecting and/or testing virtually all blood donations in the United States and Canada. For additional information, visit West Nile Virus Biogivilance Network. Chagas Biovigilance Network – Blood Donor Infectious Disease Tracking The Chagas Disease Biovigilance Network records screening and confirmatory results from the testing of donors for antibodies to Trypanosoma cruzi, the agent of Chagas disease. Current data are being provided by those laboratories that are using tests licensed by FDA to screen blood donors for the T. cruzi antibody. These laboratories account for more than 65 percent of the total blood collected in the U.S. For additional information, visit Chagas Biovigilance. AABB Blood Survey - Blood Donor Infectious Disease Tracking AABB surveys its members periodically for information about blood collection, blood and blood product transfusion, and patient blood management activities in their facilities. The results of these surveys are used to assist membership in understanding the current trends in blood collection and transfusion and to support continued development of AABB policy positions and informed decision making. For an update on current survey activity and to view the latest blood survey report, visit AABB Blood Survey. For more information about participation, contact email@example.com. Donor Hemovigilance Donor Hemovigilance is defined as the tracking of adverse events associated with blood donation. AABB promotes use of harmonized definitions for adverse events associated with the blood donation process and endorses donor health and safety. For additional information, visit Donor Hemovigilance.


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Danny Harris identifies himself as a technologist, but he has worn both the CIO hat and the chief financial officer's green eyeshade. He is currently CIO at the Education Department and previously served as the agency's deputy CFO. So Harris is well placed to explain how collaboration should take place between IT experts and financial systems operators in government.
At Education, Harris has led a cultural transformation "away from being an IT organization and into an organization that provides business solutions," he told FCW. "As crazy as this sounds, that's still a very new thing."
Establishing CIO/CFO collaboration will take on increased importance as agencies come under pressure to migrate to one of the four financial shared-services providers and update their systems and financial data standards to comply with the Digital Accountability and Transparency Act.
"People are nervous," Harris said. The act's aggressive deadlines and the move to financial shared services will require agencies to examine their data to make sure it's ready for prime time.
"If I were king for a day, I would look at those agencies that are struggling from a financial management perspective" for priority in the shared-services migration, he said. "When you look at agencies that are struggling, it's not the IT or the system that's the problem. The data is so bad that they have reconciliation nightmares."
Simply migrating to a shared service does not solve the problem. "If you move bad data to another system, you'll still have bad data," Harris said.
In his work transforming Education's CIO shop, Harris has learned that people often come to the IT department with problems that aren't really about technology. "They come to us asking for an IT solution, and 50 percent of the time. it's not hardware or software that solves the problem," he said. "Quite frequently, it's using the same technology they have in a different way."
On the IT side, the key is to find and support "those unique individuals who really understand technology and financial management," Harris said. On the financial side, too many accountants fail to understand that "people don't do accounting, systems do."
Accountants need to focus more on the business logic behind the systems and understanding, even in a nontechnical way, how their systems create obligations and process transactions. That is an important area where CIO and CFO professionals can collaborate, Harris said.
What keeps that from happening in a lot of organizations isn't so much a clash of cultures as a knowledge gap.
"The IT professionals stop here, and the accounting professionals stop here," Harris said. "Unless you have gifted people who understand both sides -- and we do here at the Department of Education -- then you don't optimize. Things work, but you don't optimize."
About the Author
Adam Mazmanian is executive editor of FCW.
Before joining the editing team, Mazmanian was an FCW staff writer covering Congress, government-wide technology policy, health IT and the Department of Veterans Affairs. Prior to joining FCW, Mr. Mazmanian was technology correspondent for National Journal and served in a variety of editorial at B2B news service SmartBrief. Mazmanian started his career as an arts reporter and critic, and has contributed reviews and articles to the Washington Post, the Washington City Paper, Newsday, Architect magazine, and other publications. He was an editorial assistant and staff writer at the now-defunct New York Press and arts editor at the About.com online network in the 1990s, and was a weekly contributor of music and film reviews to the Washington Times from 2007 to 2014.
Click here for previous articles by Mazmanian. Connect with him on Twitter at @thisismaz.
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Nominations are now being accepted for the 2017 Federal 100 Awards.
Submit yours today!
The president-elect has selected another retired Marine general for his cabinet -- John F. Kelly to head the Department of Homeland Security.
The Congressional Budget Office estimates that implementation of the Modernizing Government Technology Act will cost $9 billion over five years.
The software whiz behind Pixar's movies Rob Cook surprised even himself by coming out of a "failed retirement" to take a top technology job at the General Services Administration.
FCW profiles 30 women and men who are doing great things in federal IT -- and who are poised to be the leaders of tomorrow.
The intelligence agency is shifting its collection of declassified documents from an offline National Archives workstation to the public-facing CIA.gov website.
Help us identify the outstanding women and men in federal IT.
After working in IT for over 25 years, I wonder if we ever ask the question, "Is it really worth it doing what we are trying to do?"
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Asian Eyelid Surgery to remove eye bags
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European application Telegram said it saw more than 1 million downloads in two days after news that Facebook will acquire messaging service WhatsApp. Unlike WhatsApp, Telegram uses encrypted messages and heightened security features to keep Android and iPhone user messages safe from hackers. Telegram is fifth on the App Store's list of most downloaded applications.
Full Story:Business Insider


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Duke Street
Visitor Information
Welcome to our guide for the area around Duke Street in Watford District. Below we present a selection of upcoming events, local attractions and great places to eat and shop.
The nearest station to Duke Street is Watford Junction Railway Station which is about 8 minutes to the North West.
Underground Stations
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Further articles featuring Duke Street on LondonTown.com
Nearly all of London's major public galleries are completely free so you know you're not compromising on quality by choosing the cheaper option. Lots...
In 2011 Jay Jopling opens his third - and largest - White Cube art gallery in London, Canteen pops up in Covent Garden and American...
Discover what's on in London 2016 with our comprehensive guide to the best events. From theatre to art and music to sport, London 2016 has something for everyone - so read on to find out what London town has to offer.
Hotels near Duke Street
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London > Hotels > Mid-Range Chain Hotel from £40 37% off
Elton Way, WD25 | 27 minutes from Duke Street
Just minutes from both the M1 and M25 this hotel enjoys a wonderfully convenient location within 20 miles of Heathrow Airport, 3 miles from The Warner ... More
Pubs near Duke Street
London > Nightlife > Pubs
397a High Road, Wembley, HA9 | 8.4 miles from Duke Street
This all-day dining room and bar, located on the High Road in Wembley is a mix of cocktails, club classics and private party spaces owned by ... More
London > Nightlife > Pubs
2 The Avenue, Ealing, W13 | 10.4 miles from Duke Street
Escape the cabin fever of central London with a trip westwards to Ealing's impressive Drayton Court pub (just ten minutes on the train from Paddington Station). ... More
London > Nightlife > Pubs
Spaniards Road, Hamstead Heath, , NW3 | 11.2 miles from Duke Street
Ideal for alcoholic refreshment after a weekend tramp on Hampstead Heath, this notorious pub dates back to 1585 and is doused in history. The roguish highwayman ... More
Meeting venue hire near Duke Street
London > Business > Venue Hire
77 Clarendon Road, Watford, WD171LD | 3 minutes from Duke Street
... More
London > Business > Venue Hire
54 Clarendon Road, Hertfordshire, WD17 | 5 minutes from Duke Street
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Hotels near DUKE STREET
From cheap budget hotels to luxury 5 star hotels see our deals for DUKE STREET hotels, including Hilton Watford Hotel from 80% off.


text: Home > Sports GlobalPort, Air21 hope for better results in Commish Cup ABS-CBN News Posted at Mar 05 2014 11:57 AM | Updated as of Mar 05 2014 07:57 PM Share Facebook Twitter GPlus LinkedIn Pinterest MANILA, Philippines – PBA Philippine Cup cellar-dweller Air21 and GlobalPort hope to get off to a strong start in the new conference when they face off against each other Wednesday at SM Mall of Asia Arena. Air21 finished in last place in the Philippine Cup, while GlobalPort wound up in seventh place, advancing to the playoffs but losing after just one game to eventual finalist Rain or Shine. Both teams made several changes in the break between conferences. Air21 added Jonas Villanueva, Sean Anthony and Eliud Poligrates in a trade that saw the departure of leading scorer KG Canaleta from the team. Meanwhile, GlobalPort traded Sol Mercado for Alex Cabagnot and Bonbon Custodio, and also hired Pido Jarencio as its new coach. Air21 has tabbed Ivory Coast native Herve Lamizana as their import, giving the franchise another post option aside from Asi Taulava, Vic Manuel and Carlo Sharma. GlobalPort took Evan Brock, who previously suited up for Barako Bull in last season's Commissioner's Cup. Game time is at 5:45 p.m. Share Facebook Share on Twitter GPlus LinkedIn Pinterest Read More: pba air21 Philippine Cup commissioner's cup globalport /life/12/03/16/dutertes-kitchen-in-cubao-serves-free-food-for-street-kids/overseas/12/03/16/bodies-of-colombia-plane-crash-victims-flown-home/overseas/12/03/16/white-house-reaffirms-one-china-policy-after-trump-calls-taiwan-leader/overseas/12/03/16/toll-rises-to-13-in-southeast-us-wildfires/sports/12/02/16/uaap-season-79-finals-preview-la-salle-vs-ateneo


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Jame Dean Black & White Framed Print (W)340mm (H)340mm
Jame Dean Black & White Framed Print (W)340mm (H)340mm
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This iconic black and white image of James Dean would be the perfect addition to a movie buffs room.
- Recommended for bedrooms & living areas
- Size: (H)340mm x (W)340mm
Technical Specifications
|Jame Dean
|Colour description
|Black & white
|Product shape
|Metal hanger
|Care instructions
|Wipe gently with a clean dry cloth
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How to create a feature wall
Why not think about wallpapering a single wall to create a striking design feature? We have a range of wallpaper designs for every style and purpose. Typically, most feature walls use a big, bold print. However for a particularly small rooms you could consider a slightly smaller print to give you a feature wall effect without making the room look smaller. Modern paste-the-wall paper now makes it easier to apply (as it doesn't require a pasting table) and is easier to take off should you fancy a change.
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'A cupcake is happiness with icing on top' This inspirational chalk board printed quote from Lily & Val will be the perfect addition to your kitchen. Framed in a black wooden frame, it is sure to add a rustic whimsical charm to your space. Recommended for Bedrooms, kitchens & living ...
A large 4 piece mural of central park. The picturesque setting will create a calming and tranquil space in your home. Ideal for use in bedroom, hallway & living area/kitchens Paste the wall technology for easy hanging and removal Covers minor cracks and slight marks Strippable for easy removal Wipe ...
A large 4 piece mural of a detailed world map, ideal as a conversational design in your chosen room. Ideal for use in bedroom, hallway & living area/kitchens Paste the wall technology for easy hanging and removal Covers minor cracks and slight marks Strippable for easy removal Wipe clean to ...
Bring an irresistible sense of fun to your bedroom or dessing room with this framed word art print with gold foil detail. Recommended for bedrooms & living areas Size: (H)500mm x (W)400mm