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Friday, June 28, 2013
"Forum Selection Bylaws" Statutorily and Contractually Valid: Shareholders Assented to Not Have to Assent
While the nation was preoccupied with SCOTUS decision days, the Delaware Chancery Court upheld the "forum selection bylaws" of FedEx and Chevron. Those clauses in the corporations' bylaws provided that litigation relating to the companies' internal affairs should be conducted in Delaware, the state of incorporation of both companies.
First, the Chancery Court (Chancellor Strine) held that the bylaws were statutorily valid under the Delaware General Corporation Law ("DGCL"). Second, the Chancery Court held that the bylaws were contractually valid even though they were adopted unilaterally by the boards of FedEx and Chevron rather than the shareholders of those corporations. The court reasoned (citations and footnotes omitted):
Our corporate law has long rejected the so-called "vested rights" doctrine. That vested rights view, which the plaintiffs have adopted as their own, "asserts that boards cannot modify bylaws in a manner that arguably diminishes or divests pre-existing shareholder rights absent stockholder consent." As then-Vice Chancellor, now Justice, Jacobs explained in the Kidsco case, under Delaware law, where a corporation's articles or bylaws "put all on notice that the by-laws may be amended at any time, no vested rights can arise that would contractually prohibit an amendment."
In an unbroken line of decisions dating back several generations, our Supreme Court has made clear that the bylaws constitute a binding part of the contract between a Delaware corporation and its stockholders. Stockholders are on notice that, as to those subjects that are subject of regulation by bylaw under 8 Del. C. § 109(b), the board itself may act unilaterally to adopt bylaws addressing those subjects. Such a change by the board is not extra-contractual simply because the board acts unilaterally; rather it is the kind of change that the overarching statutory and contractual regime the stockholders buy into explicitly allows the board to make on its own. In other words, the Chevron and FedEx stockholders have assented to a contractual framework established by the DGCL and the certificates of incorporation that explicitly recognizes that stockholders will be bound by bylaws adopted unilaterally by their boards. Under that clear contractual framework, the stockholders assent to not having to assent to board-adopted bylaws. The plaintiffs' argument that stockholders must approve a forum selection bylaw for it to be contractually binding is an interpretation that contradicts the plain terms of the contractual framework chosen by stockholders who buy stock in Chevron and FedEx. Therefore, when stockholders have authorized a board to unilaterally adopt bylaws, it follows that the bylaws are not contractually invalid simply because the board-adopted bylaw lacks the contemporaneous assent of the stockholders.
The court went on to hold that the forum selection clauses would be evaluated just as any other forum selection clauses under the standard enunciated by SCOTUS:
In Bremen, the [U.S. Supreme] Court held that forum selection clauses are valid provided that they are "unaffected by fraud, undue influence, or overweening bargaining power," and that the provisions "should be enforced unless enforcement is shown by the resisting party to be "unreasonable." In Ingres, our Supreme Court explicitly adopted this ruling, and held not only that forum selection clauses are presumptively enforceable, but also that such clauses are subject to as-applied review under Bremen in real-world situations to ensure that they are not used "unreasonabl[y] and unjust[ly]." The forum selection bylaws will therefore be construed like any other contractual forum selection clause and are considered presumptively, but not necessarily, situationally enforceable.
Boilermakers Local 154 Retirement Fund v. Chevron Corp., Del. Ch., Civil Action No. 7220-CS, 6/25/13; ICLUB Investment Partnership v. FedEx Corp., Del. Ch., Civil Action No. 7238-CS, 6/25/13.
[Meredith R. Miller]
June 28, 2013 in Recent Cases | Permalink | Comments (0) | TrackBack (0)
Wednesday, June 26, 2013
NY Court of Appeals Invites Amicus Participation in UCC Article 4 Case
The New York Court of Appeals rarely requests amicus participation, but it has done so in a UCC artcle 4 case. Here is an excerpt from the request for participation:
On June 4, 2013, the Court of Appeals granted plaintiffs Clemente Bros. Contracting Corp. and Jeffrey A. Clemente leave to appeal in Clemente Bros. Contracting Corp.. et al.. v Hafner- Milazzo. et al. Plaintiff Clemente Bros. Contracting Corp. (Contracting) was a customer of defendant bank CapitalOne, N.A.(CapitalOne). Contracting had three deposit and/or checking accounts with Capital One and also took out two loans from Capital One. The plaintiffs commenced this action against Capital One, asserting inter alia, that Capital One had failed to use ordinary care in paying on allegedly forged checks and failed to comply with its own regulations in handling Contracting's accounts. In its answer, Capital One interposed several counterclaims to recover amounts due under the loans. Insofar as pertinent to this appeal, Supreme Court granted summary judgment to defendant Capital One, dismissing plaintiffs' complaint and awarding it judgment on its counterclaims. The Appellate Division affirmed (100 AD3d 677).
Under New York's Uniform Commercial Code, a bank may be liable to its customer when it pays a check on a forged signature. The bank may avoid such liability, however, when it makes statements of the account and the allegedly forged items available to the customer, and the customer fails to report the alleged forgery to the bank within one year. Here, the parties, by agreement, shortened the one-year period to 14 days. One of the issues on appeal is whether a bank and its customer may shorten the statutory time period provided for in UCC 4-406 within which the customer must make a claim to its bank for payment o f an altered or forged item.
More information is available here. I am no expert on UCC article 4, but if you are considering a motion for leave to appear amicus curiae, I am happy to advise on New York Court of Appeals procedure.
Here is the Appellate Division decision from which the the appeal is taken.
[Meredith R. Miller]
June 26, 2013 in Recent Cases | Permalink | TrackBack (0)
Tuesday, June 25, 2013
Weekly Top Tens from the Social Science Research Council
RECENT HITS (for all papers announced in the last 60 days)
TOP 10 Papers for Journal of Contracts & Commercial Law eJournal
April 25, 2013 to June 24, 2013
RECENT HITS (for all papers announced in the last 60 days)
TOP 10 Papers for Journal of LSN: Contracts (Topic)
April 26, 2013 to June 25, 2013
June 25, 2013 in Recent Scholarship | Permalink | TrackBack (0)
Monday, June 24, 2013
Professor Horton on Italian Colors v. Amex
UC Davis School of Law Professor David Horton (pictured) has once again agreed to guest post for us on the Supreme Court's most recent arbitration case:
Jeremy was nice enough to ask me to write quick post reacting to American Express Co. v. Italian Colors Restaurants. Because he's already provided a good summary of the decision, I'm just going to launch in.
1. The road not taken. After oral argument, I expected Amex to be a 6-2 reversal, with Justice Breyer joining the majority. I thought the rough gist of the decision was going to be something like this: "The plaintiffs argue that they can't vindicate their antitrust rights without the class action device because the cost of an expert report dwarfs any individual plaintiff's potential recovery. But arbitration isn't subject to the same evidentiary demands as litigation. Indeed, it's flexible and casual. Perhaps each plaintiff can prove up its case without a full-fledged expert report. Let's compel bilateral arbitration and see what happens!" For instance, Justice Breyer repeatedly referred to the prospect of the parties "getting it done cheap" in the extrajudicial forum. Justice Kennedy also emphasized that arbitration doesn't "involve the costs and formalities of litigation." (This actually prompted Paul Clement to respond, "God bless it, Justice Kennedy"—check out page 35 of the hearing transcript—which I can only imagine the savvy litigator said with his hand o'er his heart). But perhaps the anything-goes-in-arbitration approach seemed too dangerous to the majority. After all, it raised the specter of anything going in arbitration—including antitrust plaintiffs vindicating their rights.
2. Does the vindication of rights doctrine survive exist? Like AT&T Mobility LLC v. Concepcion, Amex's long-term impact is hard to discern through the fog of results-oriented reasoning. In Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. and Green Tree Financial Corp.-Ala. v. Randolph, the Court suggested—but did not squarely hold—that judges can invalidate arbitration clauses when plaintiffs prove that they can't effectively vindicate their federal statutory rights in arbitration. The primary way plaintiffs met this burden was by offering evidence of prohibitive costs: for instance, hefty filing or arbitrator's fees. However, in Amex, Justice Scalia calls the rule "dicta" and opines that "Mitsubishi Motors did not hold that federal statutory claims are subject to arbitration so long as the claimant may effectively vindicate his rights in the arbitral forum." According to Justice Scalia, if there is such a thing as the vindication of rights doctrine, it's not about vindication of rights; instead, it hinges on the narrower inquiry of whether an arbitration clause is the functional equivalent of "a prospective waiver of a party's right to pursue statutory remedies." That is, this mythical but perhaps not mythical rule only applies when a contract literally bars plaintiffs from even asserting a federal statutory claim and "would perhaps cover filing and administrative fees attached to arbitration that are so high as to make access to the forum impracticable." But it doesn't include the mere "expense involved in proving a statutory remedy." That's a lot of attention lavished upon a doctrine that might not even be real!
3. Distinguishing Amex. I don't know how much good this does, but I read Amex not to govern all arbitration clauses. Although there seems to be some confusion about the specific provision in Amex, my understanding was that it didn't just preclude class actions—it also barred plaintiffs from sharing information, consolidating claims, or recovering costs if they won. In perhaps the most bizarre part of the majority opinion, footnote 4 (1) insists that the Amex clause doesn't contain these features and then (2) limits its holding to identical provisions. Arguably, this leaves a window open for future plaintiffs subject to strict arbitration clauses to show that they can't engage in "other forms of cost sharing" and thus need the class action device to vindicate their federal statutory rights.
4. My new favorite Justice. Something that has always bugged me about Concepcion is the blandness of Justice Breyer's dissent. So I was heartened by Justice Kagan's sarcastic, point-by-point smackdown of the majority. I know I'm biased, but I found it to be pretty devastating, and I'd be psyched if she became the go-to Justice on the left for arbitration issues.[Posted, on David Horton's behalf, by JT]
June 24, 2013 in Contract Profs, Recent Cases | Permalink | Comments (2) | TrackBack (0)
Thursday, June 20, 2013
SCOTUS Issues Opinion in Italian Colors: No Surprises
In a 5-3 decision (Sotomayor, J., not participating), the U.S. Supreme Court today compelled arbitration in American Express Co. v. Italian Colors Restaurants.
We reported on the oral arguments in this case here, and UC Davis's David Horton provided an introduction for us to the case after cert. was granted here. Things unfolded much as Professor Horton predicted.
Justice Scalia, writing for the majority, accepts plaintiffs' premise that, given the costs of experts' fees necessary to prove plaintiffs' antitrust allegations, the costs to any American Express customer to bring an antitrust claim against American Express far exceeds any possible recovery, even assuming the availability of triple damages. Plaintiffs argue that the class action waiver that they signed as part of their arbitration agreement with Amerrican Express is thus invalid because the waiver denies them of any meaningful opportunity to prosecute their antitrust claim.
According to the majority, that argument is foreclosed by the Federal Arbitration Act, which directs courts to enforce arbitration agreements, absent something like fraud or duress, which is not present in this case. Justice Thomas specially concurred to say that in his view, such a finding followed inevitably from the Court's prior decision in AT&T Mobility LLC v. Concepcion. Justice Scalia pretty much agrees (at the bottom of page 8), but he first does a two part analysis, finding: 1) no clear congressional command that might trump the Federal Arbitration Act's command that courts enforce arbitration agreement and 2) that the judicially created "effective vindication" doctrine does not apply here. That doctrine would set aside arbitration provisions that prevent a party from vindicating important statutory rights. Here, however, parties can pursue their legal rights; they simply do not have a procedural mechanism (the class action suit) available to them, but that is what they agreed to when they signed the arbitration agreement.
Justice Kagan, writing for the three dissenting Justices summarizes the case as folllows:
The owner of a small restaurant (Italian Colors) thinks that American Express (Amex) has used its monopoly power to force merchants to accept a form contract violating the antitrust laws. The restaurateur wants to challenge the allegedly unlawful provision (imposing a tying arrangement), but the same contract's arbitration clause prevents him from doing so. That term imposes a variety of procedural bars that would make pursuit of the antitrust claim a fool's errand. So if the arbitration clause is enforceable, Amex has insulated itself from antitrust liability—even if it has in fact violated the law. The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.
And here is the nutshell version of today's opinion, admirably flaunted rather than camouflaged: Too darn bad.
June 20, 2013 in Recent Cases | Permalink | Comments (0) | TrackBack (0)
Wednesday, June 19, 2013
Pay-to-Delay Agreements and the Supremes
On Monday, the U.S. Supreme Court issued a ruling in Federal Trade Commission v. Actavis that permitted the Federal Trade Commission to sue pharmaceutical companies for potential antitrust violations when they enter into "pay-to-delay" agreements. (Lyle Denniston of SCOTUSblog has a good analysis here ). These agreements are a type of settlement agreement where a pharmaceutical company pays a generic drug company to keep the drug off the market for a certain period of time. Lower court rulings had held that these agreements were valid as long as they did not exceed the term of the patent held by the pharmaceutical company. This should be an interesting case for contractsprofs because it is a high profile "limits of contract" case. In an era where judges have been notoriously reluctant to interfere with freedom of contract even when it hurts consumers, this case is a refreshing change.
I'm curious though what will happen to the payments that were made to the generic drug companies – are the agreements rescinded and the payments returned? (I haven't read the decision thoroughly yet to see whether it's indicated). That might be a problem for the generic drug companies. It seems like some sort of restitution should be made - I wonder if the parties thought of putting a provision addressing what would happen in the event of illegality in their agreement?
[Nancy Kim]
June 19, 2013 in Current Affairs, Recent Cases | Permalink | Comments (0) | TrackBack (0)
New in Print
Justin DuClos, The Etiology of a Malfunction in Democratic Processes. 45 Ariz. St. L.J. 53 (2013)
Hilary Kao, Beyond Solyndra: Examining the Department of Energy's Loan Guarantee Program. 37 Wm. & Mary Envtl. L. & Pol'y Rev. 425 (2013)
Amy J. Schmitz, Sex Matters: Considering Gender in Consumer Contracting, 19 Cardozo J.L. & Gender 437 (2013) (and see Nancy Kim's discsusion of this article on this blog here)
Joseph A. Grundfest and Kristen A. Savelle, The Brouhaha over Intra-Corporate Forum Selection Provisions: A Legal, Economic, and Political Analysis. 68 Bus. Law. 325 (2013)
Terri Matthews, Blueprint for Modernizing Built Environment Law: A View from the Budget, 6 Alb. Gov't L. Rev. 148 (2013)
Symeon C. Symeonides, Choice of Law in the American Courts in 2012: Twenty-Sixth Annual Survey. 61 Am. J. Comp. L. 217 (2013)
Mark Weidemaier, Robert Scott and Mitu Gulati. Origin Myths, Contracts, and the Hunt for Pari Passu, 38 Law & Soc. Inquiry 72 (2013)
June 19, 2013 in Recent Scholarship | Permalink | TrackBack (0)
Tuesday, June 18, 2013
Weekly Top Tens from the Social Science Research Council
RECENT HITS (for all papers announced in the last 60 days)
TOP 10 Papers for Journal of Contracts & Commercial Law eJournal
April 19, 2013 to June 18, 2013
RECENT HITS (for all papers announced in the last 60 days)
TOP 10 Papers for Journal of LSN: Contracts (Topic)
April 19, 2013 to June 18, 2013
June 18, 2013 in Recent Scholarship | Permalink | TrackBack (0)
Monday, June 17, 2013
A Victory for Interns Everywhere!
I don't know if this recent case will help Hall's Mentho-Lyptus with the Triple-Colling Action Presents Jay the Intern, but it might help some of our law students.
As The Atlantic reports here, Federal District Judge William H. Pauley III ruled on June 11th in favor of two interns who sued Fox Searchlight studios for breaching New York and federal minumum wage laws in failing to pay them for their work on the studio's academy award winning film, "Black Swan." The Atlantic helpfully links to this page from the U.S. Department of Labor that establishes a six-part test for when interns can go unpaid. Here are the six criteria:The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
- The internship experience is for the benefit of the intern;
- The intern does not displace regular employees, but works under close supervision of existing staff;
- The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
- The intern is not necessarily entitled to a job at the conclusion of the internship; and
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
Considering the totality of the circumstances, Judge Pauley concluded that the plaintiffs were employees and that Fox Searchlight had violated the Fair Labor Standards Act as well as New York law by not paying them minimum wage. The court also allowed certification of a class of unpaid interns who worked for various Fox affiliates between 2005 and 2010.
Fox Searchlight plans to appeal to the Second Circuit.
Judge Pauley's 36-page opinion can be found here.
June 17, 2013 in In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)
Friday, June 14, 2013
Scholarship Highlight: Sex* Matters
I just finished reading contracts prof Amy J. Schmitz's article, Sex Matters: Considering Gender in Consumer Contracting, 19 CARDOZO J. LAW & GENDER 437 (2013) which I thought was particularly timely given all the interest in consumer contracts. As Schmitz points out, too often discussions about "context" are left out of discussions about consumer contracts, especially from efficiency theorists who "mistakenly assume that market competition and antidiscrimination legislation address any improper biases in contracting." Schmitz's article is a thoughtful and comprehensive work that canvasses and synthesizes existing research, including behavioral economics and consumer legislation, in this area. She does a great job of highlighting ways in which existing legislation falls short of protecting against gender discrimination and incorporates a great deal of empirical and cognitive research regarding how gender affects both parties in consumer contracting scenarios. She notes that the available data suggests that women receive "less financially attractive sales and loan contracts, which may lead to higher debt loads for women." (at 447) Schmitz also conducted her own survey and shares the results which indicated gender disparities in areas such as confidence in ability to negotiate terms and ability to get companies to change terms. She argues in this article (as she has elsewhere) that context and "contracting culture" matters, and argues that gender be considered among the factors contributing to a contracting culture. For those who think that the free market is a fair market, Schmitz's paper should provide food for thought (as should this article that discrimination in housing persists against non-whites).
*Yes, I knew that putting "sex" in the title would increase traffic.
[Nancy Kim]
June 14, 2013 in Contract Profs, In the News, Miscellaneous, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)
Thursday, June 13, 2013
Jack Graves on The Supreme Court, Arbitration, and Implied Contract Terms
The United States Supreme Court rarely has occasion to opine on contract law, the contours of which are largely left to state courts. However, a couple of recent arbitration cases provided the court with a unique opportunity to point out the difference between contract terms implied-in-fact and contract terms implied-in-law. As any diligent first-year Contracts student should know, the former must rest upon the actual consent of the parties (even though not clearly expressed), while the latter are given effect through default legal rules, applied, as necessary, where the parties' agreement is silent. This distinction between the two (and between contract "interpretation" and "construction") is, of course, not always made clear in contract cases addressing one or both. However, these two recent opinions, Stolt-Nielsen v. Animal Feeds Int'l Corp., 130 S.Ct. 1758 (2010), and Oxford Health Plans, LLC v. Sutter, 2013 WL 2459522 (U.S.) (June 10, 2013) illustrate the difference quite nicely—whatever one may think about the content of the Court's arbitration jurisprudence animating these decisions.
In Stolt-Nielsen, a panel of arbitrators had reasoned that an agreement permitted class arbitration, because it did not preclude it. Stolt-Nielsen at 1766. In effect, the parties' silence required the arbitrators to supply an omitted essential term—a default rule—and they did so, thereby construing the agreement as allowing for class arbitration. Id. at 1768-69 and 1781. While acknowledging the power of arbitrators to craft procedural rules, generally, the Court explained that a "default rule," allowing for class arbitration was sufficiently inconsistent with the fundamental nature of arbitration as to be beyond the power of arbitrators. Id. at 1668-69, 1775-76 (referencing the Restatement (Second) of Contracts § 204 on default rules and relying on FAA § 10(a)(4) to hold that the arbitrators had exceeded their powers). After Stolt-Nielsen, some might have expected that class arbitration would require some sort of "clear and unmistakable" expression of party intent (as the Court purports to require for a "delegation" clause, assigning jurisdictional decisions to the arbitrator). This is not necessarily so, however, as we learned this week in Oxford Health Plans.
In Oxford Health Plans, a claimant sought to bring class arbitration claims, and respondent asserted they were not allowed under the arbitration agreement. Both parties agreed to submit the question to a sole arbitrator, who "interpreted" the parties' agreement and determined that it impliedly allowed class arbitration. Id. In affirming the arbitrator's decision, Justice Kagan explained that the arbitrator was merely interpreting the actual intent-in-fact of the parties—a task clearly assigned to the arbitrator by those same parties. Id. Therefore, the arbitrator's decision was fully within his power, even if erroneous—in fact, even if "grievously erroneous." Id.
Thus, the Court neatly distinguished between the power of an arbitrator to determine actual, factual party intent, when assigned that task by the parties, and the power of the arbitrator to craft legal default rules (at least beyond the scope of general arbitration procedures). This distinction is of course analogous to the distinction between contract interpretation—generally an issue for the jury, if in question—and contract construction—generally an issue for the court.
Perhaps of greater interest to those who follow the Court's arbitration jurisprudence, Oxford Health Plans appears to continue the inexorable march towards a seemingly unreviewable form of contractual Kompetenz-Kompetenz, see Jack Graves & Yelena Davydan, Competence-Competence and Separability: American Style in, International Arbitration And International Commercial Law: Synergy, Convergence and Evolution (Kluwer 2011) (Part 2) and Jack Graves, Arbitration as Contract: The Need for a Fully Developed and Comprehensive Set of Statutory Default Legal Rules, 2 William & Mary Bus. L. Rev. 225, 276-85 (2011), initially announced in First Options, Inc. v. Kaplan, 115 S.Ct. 1920 (1995), further expounded upon in Rent-A-Center, West, Inc. v. Jackson, 130 S.C t. 2772 (2010), and made even more seemingly absolute in Oxford Health Care. The Court had already made abundantly clear that a decision as to whether the parties had in fact agreed to arbitrate a dispute—when the decision was "delegated" to an arbitrator—was beyond court review, except as provided under FAA § 10(a). In Oxford Health Care, the Court further clarified the extraordinarily narrow scope of FAA § 10(a)(4).
[posted by Meredith R. Miller on behalf of Jack Graves]
June 13, 2013 in Contract Profs, Recent Cases | Permalink | Comments (0) | TrackBack (0)
Wednesday, June 12, 2013
New in Print
Robert W. Emerson, Franchise Goodwill: Take a Sad Song and Make It Better, 46 U. Mich. J.L. Reform 349 (2013)
Orit Gan, Promissory Estoppel: A Call for a More Inclusive Contract Law, 16 J. Gender Race & Just. 47 (2013)
Mark R. Patterson, Must Licenses Be Contracts? Consent and Notice in Intellectual Property. 40 Fla. St. U. L. Rev. 105 (2012)
Jarrod Wong, Arbitrating in the Ether of Intent. 40 Fla. St. U. L. Rev. 165 (2012)
Sebastian Zimmeck, The Information Privacy Law of Web Applications and Cloud Computing, 29 Santa Clara Computer & High Tech. L.J. 451 (2013)
June 12, 2013 in Recent Scholarship | Permalink | TrackBack (0)
Steven Feldman Reviews Boilerplate
For those of you who cannot get enough input on Margaret Jane Radin's Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law, we have yet another review. This one is from friend of the blog Steven Feldman. Links to other contributions from our online symposium on the book can be found here.
In her book, Boilerplate: The Fine Print, Vanishing Rights, and The Rule of Law, Professor Margaret Jane Radin suggests the expansion of tort law as the centerpiece remedy for what she terms abusive mass market contract boilerplate. (Radin, p. 216). As a complement to existing contract remedies, she posits a new tort, i.e., "intentional deprivation of basic legal rights." (Radin, pp. 198, 211, 216). According to Radin, this intentional tort would cover abusive boilerplate, i.e., "a firm that imposed severe remedy deletions of rights that are at least partially market-inalienable, under circumstances of non-consent and mass market distribution . . . ." (Radin, p. 211).This intentional tort would be a companion to another new tort reconceptualizing abusive boilerplate as a defective "product" under the law of product liability. (Radin, pp. 198, 222-23).
Radin's proposal to use the tort law system to remedy boilerplate abuse has attracted support from respected academic commentators. Professor Omri Ben-Shahar in his review of the book calls Radin's suggestion a "welcome new framework" and "an immensely creative idea, surely to become a legacy of the book, and it deserves careful attention . . . ." Omri Ben-Shahar, Regulation Through Boilerplate: An Apologia, ___ Mich. L. Rev. ___ (2013) (forthcoming) (available at the SSRN Electronic Library). Because I believe that Radin's suggested tort remedies contradict numerous legal principles, my critique will explain why the chances are minimal that any U.S jurisdiction would accept her proposals to make a tort out of a contract dispute.
Radin: Precedent exists for the creation of new torts by common law courts, such as the torts involving invasion of privacy. (Radin, p. 198).
Response: Radin is correct that the torts involving invasion of privacy were judicially created. What Radin omits is that although some courts claim the common law authority to create new torts, they characteristically "tread cautiously" in this area, Rees v. Smith, 301 S.W.3d 467, 471 (Ark. 2009), as they balance numerous legal and substantive considerations, Burns v. Neiman Marcus Group, Inc., 93 Cal. Rptr. 3d 130, 136 (Cal. Dist. App. 2009)(listing considerations). Thus, for example, courts considering a new tort must balance the need to meet society's changing needs against the prospect of boundless claims in an already crowded judicial system. Rees, 301 S.W.3d at 471. In another policy, courts "[w]ill decline to recognize a new cause of action if there are sufficient other avenues, short of creating a new cause of action, that serve to remedy the situation for a plaintiff." Id.
Radin fails to point out that the usual outcome is "countless refusals" by judges to create new torts. Anita Bernstein, How To Make A New Tort: Three Paradoxes, 75 Tex. L. Rev. 1539, 1546 n.38 (1997)(citing decisions). Indeed, some courts decline altogether to create new actions in tort. Their rationale is that legislatures have better institutional capability to balance the competing public policy considerations attendant with new forms of liability. Murphy v. American Home Products Corp., 448 N.E.2d 86, 89-90 (N.Y. 1983); Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I. 1996)("We have long held … that the creation of new causes of action is a legislative function."). Radin does not mention this split of authority and does not make a convincing case that existing contract remedies, such as contract invalidation based on unconscionability, are inadequate to address meritorious consumer claims.
Estimates are that ninety-nine percent of all contracts are standard form adhesion contracts. Wayne R. Barnes, Toward A Fairer Model of Consumer Consent To Standard Form Contracts: In Defense Of Restatement Section 211(3), 82 Wash. L. Rev. 227, 233 (2007). Because Radin's new torts would conceivably cover a high percentage of these standardized mass distribution contracts nationwide, courts should think twice before hampering the use of a business tool that "[i]s essential to the functioning of the economy." See 1-1 Corbin on Contracts § 1.4. (Rev. ed. 1993). A real possibility also exists that Radin's proposals would incite boundless claims in an already crowded judicial system. Thus, it is highly unlikely that any court would approve Radin's proposals for expansive new tort liability. Also improbable is whether any state legislature--with many dominated by conservative representatives--would expand consumer rights beyond existing consumer protection statutes.
June 12, 2013 in Books, Commentary, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)
Tuesday, June 11, 2013
Weekly Top Tens from the Social Science Research Council
RECENT HITS (for all papers announced in the last 60 days)
TOP 10 Papers for Journal of LSN: Contracts (Topic)
April 12, 2013 to June 11, 2013
|Paper Title
|The Hague Principles on Choice of Law for International Contracts: Some Preliminary Comments
Symeon C. Symeonides,
Willamette University - College of Law,
|Regulation Through Boilerplate: An Apologia
Omri Ben-Shahar,
University of Chicago Law School
|Contract Law in Europe and the United States: Legal Unification in the Civil Law and the Common Law
Hein D. Koetz,
Max Planck Institute for Comparative and International Private Law
|Preemption Without Borders: The Modern Conflation of Tort and Contract Liabilities
Max N. Helveston,
DePaul University - College of Law
|On the Applicability of the Common European Sales Law to Some Models of Cloud Computing Services
Chris Reed, Clarice Castro, Ruy de Queiroz,
Universidade Federal de Pernambuco, Queen Mary University of London, School of Law, Centro de Informática - Univ Federal de Pernambuco
|Damages versus Specific Performance: Lessons from Commercial Contracts
Theodore Eisenberg, Geoffrey P. Miller,
Cornell University - Law School, New York University (NYU) - School of Law
|Lochner, Liberty of Contract and Paternalism: Revising the Revisionists?
Harry G. Hutchison,
George Mason University - School of Law
|Arbitrating 'Arbitrability'
Alan Scott Rau,
University of Texas at Austin School of Law
|Shame, Regret, and Contract Design
Eric A. Zacks,
Wayne State University Law School
|The Information Privacy Law of Web Applications and Cloud Computing
Sebastian Zimmeck,
Columbia University - Department of Computer Science
June 11, 2013 in Recent Scholarship | Permalink | TrackBack (0)
Dean Irma S. Russell, A Review of A Manual of Style for Contract Drafting
Irma S. Russell is Dean and Professor of Law at the University of Montana School of Law.
Kenneth Adams' recently released third edition of A Manual of Style for Contract Drafting, is a hefty volume. When I opened the package containing this manual my first thought was: "Wow, this is bigger than expected. It looks really time consuming." At 455 pages, the book is closer to Fowler's than Strunk & White. It is worth the time to read it. In fact, once you start reading, it is hard to put down. The writing is clear and concise, the tone is engaging, and the range of usage addressed is impressive.
This book provides far more than drafting tips. This author
has considered language in a deep way and gives thoughtful and sometimes
provocative assessments of the usages he endorses. His discussion of the
language of belief, the language of intention, the language of recommendation
and the distinctions among the categories is notable for its logic and even
philosophical assessment as well as for its authority of declaring a particular
usage superior to other constructions.
(Be sure to look for his treatment of "between" and
"among" in reference to multiple parties. This discussion may also apply to my last
sentence before this parenthetical.)
The manual is useful for all lawyers who draft agreements, and most do of course. Indeed few lawyers can separate themselves from contract drafting or the need for precise language. A plea arrangement in the criminal context is as subject to the risk of ambiguity as a lease agreement. A tort settlement is in as great a need of careful word choice as a corporate merger. The trap for the casual drafter can involve malpractice claims as well as disappointed expectations of clients.
The author's introduction makes clear the work's goal of providing precise and
consistent language in contracts. He endorses consistency "because
differences in wording can result in unintended differences in meaning."
He notes the necessity of a manual of style "because traditional contract
language needs a thorough overhaul."
This point underscores the need for the point-by-point treatment
provided in the book.
The goals the author sets for this work are indeed as worthwhile (and as hard to achieve) in today's world as in Fowler's. Creating documents with few opportunities for confusion means that the careful drafter will not need to see his words in court and the client will not need to roll the dice of litigation in arguing for his belief or assumptions about the intentions of the parties.
The book delivers on its promise to serve to help its user find "greater clarity and consistency in written usages." Though modest in its succinct statement, this is an ambitious promise, and one that the book fulfills. The principle of Occam's razor is at work here despite the heft of the volume. Each discussion of a phrase or word is brief and to the point. The length of the book results from the number and scope of the issues addressed rather than from any drawn out discussions. More elegant contract language is the result of the guidance offered here. While Strunk & White is certainly shorter, it does not take on the range of issues Adams reaches, and I am convinced both revered authors would approve of this manual of style.
Opening this book was a Pandora-type move for me, and now I am hooked on the author's blog: Adams on Drafting. You can access it here but I warn you now: You can't read just one. The risk for the reader opening either the book or the blog is getting caught up in the fascinating world of contract drafting. Even after you find the answer to the specific question that sent you to the book, you may be unable to stop reading. I'm heading back to the blog now to look for more on "between" and "among."
[Posted, on Irma Russell's behalf, by JT]
June 11, 2013 in Books, Commentary, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)
Monday, June 10, 2013
Daniel Barnhizer Reviews Ken Adams' Manual of Style for Contract Drafting (3d ed.)
Daniel D. Barnhizer is Professor of Law & The Bradford Stone Faculty Scholar, Michigan State University College of Law.
Kenneth Adams' third edition to the Manual of Style for Contract Drafting[1] ("Contract Drafting") delivers invaluable advice to any attorney or professional who drafts contracts or contract terms. The book is also highly suitable for law school classroom use in drafting classes, business school, or undergraduate business courses. This book has found a permanent place on my shelf among my go-to style manuals.
Contract Drafting is a style manual that goes well beyond explicating basic contract conventions, admonishing attorneys to use "plain English" and avoid "legalese," and providing lists of awkward or ambiguous words and phrases to excise from the drafting lexicon. Adams does all of these things effectively and efficiently, but Contract Drafting delivers on many more levels.
Like previous editions, this book will be useful across a wide range of applications. As Adams notes in the introduction:
This manual should be of use to readers in every contract ecosystem—a solo or small-firm general practitioner handling a broad range of contracts . . ., a contract-management professional responsible for negotiating contracts with customers; a big-law associate drafting mergers-and-acquisitions contracts; an in-house lawyer overhauling the company's template sales contract; a paralegal reviewing confidentiality agreements a company is asked to sign; a judge trying to make sense of a confusing contract provision.[2]
In this list, Adams omits another important audience – law students. Contract Drafting is a nearly ideal tool for teaching a contract drafting course. As discussed below, the content of the manual goes beyond listing blackletter principles and providing tables of words and phrases to avoid. In this most recent edition of Contract Drafting, Adams carefully walks the reader through detailed explanations of his drafting principles while at the same time presenting an extraordinarily complete manual that teaches the inexperienced and informs the senior practitioner. Any professional – lawyer or non-lawyer – or law student who deals with contracts in any manner should keep this book near at hand.
June 10, 2013 in Books, Commentary, Recent Scholarship | Permalink | Comments (2) | TrackBack (0)
Friday, June 7, 2013
Cell phones, copyright and contracts
Ajit Pai, a commissioner of the Federal Communications Commission,wrote an interesting op-ed in yesterday's NYT. He argues that consumers should be allowed to unlock their phone when they permissibly (i.e. not in breach of any contract) switch carriers. Some of you might be wondering - Huh? Is that even illegal? Don't I own my phone? You're probably not alone. As Pai notes, the Library of Congress decided that unlocking your phone violates the Digital Millenium Copyright Act of 1998. (They basically removed an exception to the Act that permitted unlocking, as this article in the San Francisco Chronicle explains). But, you might wonder, what does copyright have to do with what you can do with your cell phone? A lot of people are wondering the same thing, but basically, software locks the cellphone to a specific network and the cell phone owner is a licensee of that software (and software is copyrightable). Okay, now you understand what this has to do with copyright but what does this post have to do with contract? Glad you asked. Pai's op-ed argues, "Let's go back to the free market. Let's allow contract law - not copyright or criminal law - to govern the relationship between consumers and wireless carriers." It's interesting given that this blog has spent the last couple of weeks discussing the need for government intervention due to boilerplate - and yet, here's an example of government intervention into boilerplate that is not actually helpful to consumers. Don't get me wrong - I'm not saying government intervention into boilerplate isn't a good thing sometimes (depends on what it is and how and why) - I just find it interesting that this example of government intervention is on an issue that protects businesses and hurts consumers. Of course it shouldn't be surprising since lobbyists for carriers are way better organized and have more money and influence than consumer advocacy groups. And that gets to the heart of what's the matter with using contracts as the solution since the same dynamic is at play in the world of private ordering (see symposium on Boilerplate and the book itself, for more details). Who knows what carriers might come up with in their contracts. Would they try to "license" instead of sell their phones? In a perfect world, the free market might function, well, perfectly and private ordering would be the order of the day. But we don't live in that world so an absolutist "no government intervention v. more government intervention" position doesn't work.
[Nancy Kim]
June 7, 2013 in Commentary, In the News, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Coming Next Week: Two Guest Posts on Kenneth Adams' Contracts Drafting Style Manual
Next week, we will have two guests posts reviewing Kenneth A. Adams, A Manual of Style for Contract Drafting (3d ed.).
From the book's website:With A Manual of Style for Contract Drafting, Kenneth A. Adams has created a uniquely in-depth survey of the building blocks of contract language. First published in 2004, it offers those who draft, review, negotiate, or interpret contracts an alternative to the dysfunction of traditional contract language and the flawed conventional wisdom that perpetuates it. This manual has become a vital resource throughout the legal profession, in the U.S. and internationally.
This is the third edition of A Manual of Style for Contract Drafting. One-third longer than the second edition (published in 2008) and in a larger format, it contains much new material and has otherwise been revised and supplemented, making it even more essential.
This manual's focus remains how to express contract terms in prose that is free of the archaisms, redundancies, ambiguities, and other problems that afflict traditional contract language. With exceptional analysis and an unmatched level of practical detail, Adams highlights common sources of confusion and recommends clearer and more concise alternatives. This manual is organized to facilitate easy reference, and it illustrates its analysis with numerous examples. Consult it to save time in drafting and negotiation and to reduce the risk of dispute.
Our reviewers are:
Daniel D. Barnhizer, Professor of Law & The Bradford Stone Faculty Scholar, Michigan State University College of Law.
Professor Barnhizer graduated with honors from Harvard Law School, where he served as managing editor of the Harvard Environmental Law Review. After graduation, he was a judicial clerk for the Honorable Richard L. Nygaard, U.S. Court of Appeals for the 3rd Circuit, and for the Honorable Robert B. Krupansky, U.S. Court of Appeals for the 6th Circuit, sitting by designation on the U.S. District Court for the Northern District of Ohio. Professor Barnhizer has practiced as a litigator with the law firms of Hogan & Hartson and Cadwalader, Wickersham & Taft. Before joining the MSU College of Law faculty, he was an adjunct professor of law at American University - Washington College of Law, where he taught legal reasoning, research, and writing. At MSU Law, he teaches Contracts, Contract Theory, Business Enterprises, Securities Litigation, and Legal History.
Some of Professor Barnhizers scholarship can be found here.
Irma S. Russell, Dean and Professor of Law, University of Montana School of Law.
Prior to coming to Montana, Dean Russell was the NELPI Professor and Director of the National Energy-Environment Law & Policy Institute at the University of Tulsa College of Law. She became Dean of the University of Montana School of Law in 2009.
Dean Russell is immediate past chair of the ABA Section of Environment, Energy and Resources and the immediate past chair of the AALS Section of Natural Resources and Energy Law. She is a newly appointed member of the Board of Dividing the Waters, an organization of judges and lawyers focused on issues of water adjudication in the Western United States. She has served as the chair of the Professionalism Committee of the ABA Section of Legal Education and Admission to the Bar and as a member of the ABA Standing Committee on Professionalism and the ABA Standing Committee on Ethics and Professional Responsibility. She also has served as a member of the Executive Committee and Secretary of the AALS Natural Resources Section and as chair of chair of the AALS Section on Professional Responsibility, the AALS Section on Socio-Economics, and as a member of the Publications Committee of the Center for Professional Responsibility.
Dean Russell earned undergraduate degrees in liberal arts and education, a master's degree in English literature, and her law degree at the University of Kansas. She clerked for The Honorable James K. Logan, United States Court of Appeals for the Tenth Circuit. Russell engaged in private practice for several years in Kansas, Missouri, and Tennessee.
We look forward to some stimulating reviews and hopefully some fans of the book (and Ken Adams' blog on legal drafting) will chime in as well.
June 7, 2013 in About this Blog, Books, Recent Scholarship, Weblogs | Permalink | Comments (0) | TrackBack (0)
Wednesday, June 5, 2013
New in Print, Including Three (Count 'em!) New Books from Larry DiMatteo
Larry DiMatteo, of the University of Florida's Levin College of Law, has three new books to crow about:
Global Challenge of International Sales Law
Larry A. DiMatteo, Editor
Cambridge University Press 2013
Camilla Andersen Franco Ferrari Ingeborg Schwenzer Lisa Spagnolo
Bruno Zeller Ulrich Magnus Harry M. Flechtner Stefan Kröll
Jan Ramberg Burghard Piltz Vikki Rogers Pilar Perales Viscasillas
Ulrich Schroeter Wolfgang Faber Sieg Eiselen Jan Smits
Ole Lando Sonja Kruisinga Petra Butler Corinne Widmer Lüchinger Hossam
El-Saghir Milena Djordjević Tidas Kilmas Javier Solana Álvarez
Luca Castellani André Janssen Matthias Spilker Marie Stefanini Newman
Morton Fogt Aneta Spaic Martin Davies Sylvaine –Peruzzetto
Sörren Kiene Edoardo Ferrante Francesco Mazzotta Vladimir Pavić
Yehuda Adar Marco Torsello Olaf Meyer Qi Zhou
Helena Haapio Claire Germain Li Wei Larry DiMatteo
Commercial Contract Law: Transatlantic Perspectives
Larry A. DiMatteo, Qi Zhou & Séverine Saintier, Editors
Cambridge University Press 2013
Roger Brownsword David Campbell Roger Halson Hector MacQueen
Jean Braucher Chuck Knapp Juliet Kostritsky Peter Alces
Martin Hogg Djakhongir Saidov Mel Kenny Richard Austen-Baker
T.T. Arvind Curtis Bridgeman Tom Joo Nancy Kim
Zoe Ollerenshaw James Devenney David Capper Larry A. DiMatteo
Séverine Saintier Qi Zhou
International Contracting: Law & Practice
Third Edition
Larry A. DiMatteo, Author
Wolters/Kluwer 2013
In addition, we have the following new articles out in print:
George A. Bermann, Arbitration in the Roberts Supreme Court, 27 Am. U. Int'l L. Rev. 893 (2012)
Bernardo M. Cremades, Good Faith in International Arbitration. 27 Am. U. Int'l L. Rev. 761 (2012)
Yves Derains, The Arbitrator's Deliberation, 27 Am. U. Int'l L. Rev. 911 (2012)
Juan Fernandez-Armesto, Salient Issues of International Arbitration, 27 Am. U. Int'l L. Rev. 721 (2012)
Paul Friedland and Paul Brumpton, Rabid Redux: The Second Wave of Abusive ICSID Annulments, 27 Am. U. Int'l L. Rev. 727 (2012)
Judge Dominique Hascher, Independence and Impartiality of Arbitrators: 3 Issues, 27 Am. U. Int'l L. Rev. 789 (2012)
Pierre Mayer, The Extension of the Arbitration Clause to Non-Signatories -- The Irreconcilable Positions of French and English Courts, 27 Am. U. Int'l L. Rev. 831 (2012)
William W. Park, The Politics of Class Action Arbitration: Jurisdictional Legitimacy and Vindication of Contract Rights. 27 Am. U. Int'l L. Rev. 837 (2012)
Anjanette H. Raymond, It Is Time the Law Begins to Protect Consumers from Significantly One-Sided Arbitration Clauses within Contracts of Adhesion, 91 Neb. L. Rev. 666 (2013)
Jingzhou Tao, Salient Issues in Arbitration in China. 27 Am. U. Int'l L. Rev. 807 (2012)
Todd Weiler, Heather Bray and Devin Bray, Are United States courts receptive to international arbitration? 27 Am. U. Int'l L. Rev. 869 (2012)
June 5, 2013 in Recent Scholarship | Permalink | TrackBack (0)
Tuesday, June 4, 2013
Weekly Top Tens from the Social Science Research Council
RECENT HITS (for all papers announced in the last 60 days)
TOP 10 Papers for Journal of Contracts & Commercial Law eJournal
April 4, 2013 to June 3, 2013
|Paper Title
|Can an Arbitrator Conduct Independent Legal Research? If Not, Why Not?
Paul Bennett Marrow,
New York Law School
|The Hague Principles on Choice of Law for International Contracts: Some Preliminary Comments
Symeon C. Symeonides,
Willamette University - College of Law
|Private Equity Firms as Gatekeepers
Elisabeth de Fontenay,
Harvard Law School
|Regulation Through Boilerplate: An Apologia
Omri Ben-Shahar,
University of Chicago Law School
D. Gordon Smith, Jordan C. Lee,
Brigham Young University - J. Reuben Clark Law School , Brigham Young University - J. Reuben Clark Law School
|Contract Law in Europe and the United States: Legal Unification in the Civil Law and the Common Law
Hein D. Koetz,
Max Planck Institute for Comparative and International Private Law
|Preemption Without Borders: The Modern Conflation of Tort and Contract Liabilities
Max N. Helveston,
DePaul University - College of Law
|Customary Law: An Introduction
Lisa Bernstein, Francesco Parisi,
University of Chicago Law School, University of Minnesota - Law School
|Merchant Law in a Modern Economy
Lisa Esther Bernstein,
University of Chicago - Law School
|On the Applicability of the Common European Sales Law to Some Models of Cloud Computing Services
Chris Reed, Clarice Castro, Ruy de Queiroz,
Universidade Federal de Pernambuco, Queen Mary University of London, School of Law, Centro de Informática - Univ Federal de Pernambuco
RECENT HITS (for all papers announced in the last 60 days)
TOP 10 Papers for Journal of LSN: Contracts (Topic)
April 5, 2013 to June 4, 2013
|Paper Title
|The Hague Principles on Choice of Law for International Contracts: Some Preliminary Comments
Symeon C. Symeonides,
Willamette University - College of Law
|Regulation Through Boilerplate: An Apologia
Omri Ben-Shahar,
University of Chicago Law School
D. Gordon Smith, Jordan C. Lee,
Brigham Young University - J. Reuben Clark Law School , Brigham Young University - J. Reuben Clark Law School
|Contract Law in Europe and the United States: Legal Unification in the Civil Law and the Common Law
Hein D. Koetz,
Max Planck Institute for Comparative and International Private Law
|Preemption Without Borders: The Modern Conflation of Tort and Contract Liabilities
Max N. Helveston,
DePaul University - College of Law
|Damages versus Specific Performance: Lessons from Commercial Contracts
Theodore Eisenberg, Geoffrey P. Miller,
Cornell University - Law School, New York University (NYU) - School of Law
|On the Applicability of the Common European Sales Law to Some Models of Cloud Computing Services
Chris Reed, Clarice Castro, Ruy de Queiroz,
Universidade Federal de Pernambuco, Queen Mary University of London, School of Law, Centro de Informática - Univ Federal de Pernambuco
|Lochner, Liberty of Contract and Paternalism: Revising the Revisionists?
Harry G. Hutchison,
George Mason University - School of Law
|Arbitrating 'Arbitrability'
Alan Scott Rau,
University of Texas at Austin School of Law
Shame, Regret, and Contract Design
June 4, 2013 in Recent Scholarship | Permalink | TrackBack (0)


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Shoot for the Cure: Susan G. Komen Charity Event Raises Money With Riflery
Late late week, Runnin' Scared got word that the pink firearm fiasco might not have been as much a false-alarm as had been claimed: A source told us that Susan G. Komen for the Cure and guns go back a bit, and furnished us with several links suggesting that this might be the case.
Since then, we've been trying to figure out what exactly the deal is -- are gun companies and hobbyist groups just using the pink banner to sell products and market events, or is there an official connection to Komen or its affiliates?
While we still don't have a definitive answer on guns (nobody is returning our calls on that issue), we do know this: The Illinois State Rifle Association's Shoot for the Cure got the OK from one of the state's Komen chapters.
"It's like a Run for the Cure, except you don't run -- you actually buy shots and shoot at targets and that sort of thing, and you're welcome to buy as many targets as you wish," Richard Pearson, the group's executive director, told Runnin' Scared.
"We did it with their permission and we raised some money for them, and we plan to do it bigger and better this year."
Pearson said the Association raised about $500 with the event, which had from 70 to 80 participants.
"We have 3500 women in our Association and all of them have been affected by breast cancer at some point," said Pearson, whose mother had a mastectomy due to misdiagnosis.
"I'm interested in getting this disease behind us."
A staffer at the Central Illinois Komen branch confirmed that the group had permission to use the non-profit's name for the shoot-a-thon.
He said that qualifying third parties must sign contracts and that the requirements are available online.
State affiliates, he said, can't use the Komen brand for an event that conflicts with the national headquarters's bylaws.
Follow Victoria Bekiempis @vicbekiempis.
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Posted on February 12, 2008So June 10th has come and gone. What's the latest on the new album? We'll let Jonny Santos tell you himself... "We are still all very hard at work right now just trying to finish writing this record. It looks as if we might be taking about another 3 or 4 weeks before we start actually tracking. The delay came about due to the band feeling that some songs were just not strong enough to make the record and Spineshank will not put out a half assed record because the fans deserve better. Although the delay might disappoint some people, Iassure you it will be worth the wait. The album will be entitled "Violent Mood Swings" and that is exactly what it is. We are hoping to be able to tour the UK shortly after release and are looking forward to seeing our fans after such a long time. Until then take care and keep f*ckin kickin ass!!" -Jonny
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She took a step forward and I held my ground. I was so tired of the running, of the hiding, it was time for me to face my own demons. I moved forward slowly and hesitantly. "You know it could be a good think they were screaming my name other than some two bit hooker. At least I gave them something to fantisize about. I mean if you gave over every trick you have already then what is the point of even trying to pretend any longer." I giggled. "At least now you know what the men in your family really crave. I wouldn't have anything to do with them, but at least now we know." Each word was a step in her direction until I could feel her breath on my face.
"You are arrogant, snide and nothing but a bitch. I don't know why in the hell any man would want you. For goodness sakes I remember when you still had your sight and were as meek as a mouse and timid as a house cat. When you lost your sight and your whole world Jack and I were there to pick of the pieces and watch the children. Now that you think you are all that someone really should take you down a peg."
I felt the air move around me and found myself pushed backwards. I braced myself and moved forward, I wasn't going to lose ground. I felt the air shift again and this time I moved with it and landed a punch right on her jaw.
"You know Geo, it is definately good that I wasn't actually going to hand you over custody of my children, I mean come on now, like I couldn't tell that there was something up. Give me a break I am blind, not stupid. You were waiting for the chance to screw me over and I knew it. I am done with you Geo now go, I don't want you back here again or I will take you out, do you understand?"
I heard a grunt and rustling coming from in front of me. I braced myself for another attack and but I heard a sigh. "You know I would have thought you were weaker because in the time I have been helping you, well you haven't fought once. I was wrong, but you still need to watch your back. I won't give up so easily and we are definately not through. The two of us will never be through as long as I breath Mara, I really hope that you understand that."
I nodded my head. "Well then I need to make sure the next time we meet you just stop breathing. Geo, I am done being nice no matter what. I have had too much shit in my life to worry about being nice now. The next time we do meet I will take that pretty head of yours off your shoulders for you. You can bet your ass that after this moment it is no holds barred." I turned away from her and headed back through the woods that I knew so well. I was done with it all and the more I stood there the more my body pressed me into the final bouts of anger that would have me kill her where she stood.
As I stepped out of the woods I felt arms engulf me and the familar scent of horses and leather. I embraced Rick and smiled into his chest. I felt his intake of breath as he saw the scratches across my skin from where I brushed up against a tree when Georgia pushed me. His hands held me so protectively yet gentle at the same time and I felt at home.
"Are you alright Mara, not hurt at all?" The question lumed before me and I just smiled.
I shook my head. "Not hurt at all. Those are just scractches and nothing to worry about." I felt myself being led back through the yard. I felt the steps under my feet and moved up them until I felt the cool air on my face, a stark contrast to the heat of the Georgia air in the middle of the summer. Rick led me to a chair and then I heard his steps disappear and return moments later. It was a few seconds before I smelled the sharp scent of alcohol and knew what was going to happen. I braced myself for the sting and kept my face passive.
"She vowed to kill me Rick. The next time that her and I meet." I paused for a moment. "I really want to feel that woman's blood on my hands, everything that happened was because of her and now I just want it all to end."
I felt his intake of breath. "One thing at a time my love, let's call your doctor and see what we can do about those beautiful eyes of yours. Then we will talk vengence."
I nodded. "One day things will go right, one day where I don't have to watch my back and wonder what is coming at me. And when that day comes, you can be sure that I will be the happiest person ever, but until then....."
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Madison Square Garden, 4 Penn Plaza, New York, NY 10001
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Ended 13 Mar 2014 after 1 days
London-born songstress Ellie seeks out the bright 'Lights' of the States...
Ellie Goulding is on tour and hits the Theater at Madison Square Garden in New York, NY, Ended 13 Mar 2014.
Number 1 on the U.K album chart, four hit singles and Brit Award, singer Ellie Goulding has made a similar splash in America, beginning with her Billboard #2 single going multi-platinum, taking her from a husky folky-cover songstress to a pop sensation with a recent contributions to the hit movie Divergent soundtrack.
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Opening night: 12 March 2014
Closing night: 13 March 2014
Please note: The term Theater at Madison Square Garden and/or Ellie Goulding as well as all associated graphics, logos, and/or other tradermarks, tradenames or copyrights are the property of the Theater at Madison Square Garden and/or Ellie Goulding and are used herein for factual descriptive purposes only. We are in no way associated with or authorized by the Theater at Madison Square Garden and/or Ellie Goulding and neither that entity nor any of its affiliates have licensed or endorsed us to sell tickets, goods and or services in conjunction with their events.


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NEW HAVEN, Conn., March 17 /PRNewswire-FirstCall/ -- VION PHARMACEUTICALS, INC. (Nasdaq: VIOND) today announced financial results for the fourth quarter and year-end of 2007.
The Company reported a net loss of $34.0 million, or $5.05 per share, for the year ended December 31, 2007, compared with a net loss of $25.3 million, or $3.83 per share, for 2006. Weighted-average common shares outstanding for the years ended December 31, 2007 and December 31, 2006 were 6.7 million and 6.6 million, respectively. The net loss increased in 2007 by $8.7 million over the previous year, primarily as a result of non-cash expenses including: (i) $5.1 million of interest expense related to Vion's convertible senior notes and (ii) $2.5 million of higher stock-based compensation expense. In addition, costs associated with clinical, regulatory and pre-commercialization activities for the Company's lead product candidate, Cloretazine(R) (VNP40101M) increased year-over-year.
The Company reported ending the year with $61.1 million in cash and cash equivalents.
Alan Kessman, Chief Executive Officer, commented, "Based on our current operating plan, we are funded through the third quarter of 2009. We continue to make progress on preparing a New Drug Application for our lead anticancer agent Cloretazine(R) (VNP40101M) for filing with the U.S. Food and Drug Administration in 2008."
A net loss of $8.2 million, or $1.18 per share, was reported for the fourth quarter of 2007, compared with a net loss of $6.1 million, or $0.92 per share, for the same period in 2006. Weighted-average common shares outstanding for the three months ended December 31, 2007 and 2006 were 6.9 million and 6.6 million, respectively.
On February 20, 2008, the Co
|SOURCE Vion Pharmaceuticals, Inc.
Copyright©2008 PR Newswire.
All rights reserved


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AAA TripTik
AAA TripTik
AAA members and non-members alike will benefit from AAA TripTik on their next roadtrip. This handy app includes maps with AAA-approved restaurants, hotels, attractions, campgrounds, auto repair facilities, and gas stations listed by location and price. The navigation tool gives point-by-point direction to AAA points of interest, pluss addresses you enter.
- Available on: Android, iPhone


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Teen Challenge of Western PA opened its doors in 1971 as Pittsburgh Teen Challenge. In 1974, after 3 years in a too small facility on the North Side of Pittsburgh, the center relocated as Teen Challenge of Western Pennsylvania to the present 14 acre property purchased in 1972 from the federal government for $20,000; the facility was the abandoned, burned out, gutted and vandalized former NIKE missile site.
The program provides residential recovery to men ages 18 and over from all ethnic, socioeconomic and religious backgrounds. We believe that there is hope for recovery for every individual who is bound with life controlling problems such as an addiction to drugs or alcohol by establishing a relationship with Jesus Christ. We believe there is hope even when all other methods have failed.
We are here to let you know we care about your life! Whether you are a concerned family member or a prospective client you will find information here that will help you or someone you know find freedom from addiction. Teen Challenge can help! "We care for those who care enough to change." Teen Challenge lays the foundation for hundreds of disenfranchised men and women, who have battled the bondage of addiction, to reclaim their lives and re-enter society as healthy, whole, productive members. We endeavor to help people become mentally sound, emotionally balanced, socially adjusted, physically well and spiritually alive.


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Nadia Hecker-O'Brien `15
Nadia Hecker-O'Brien `15
Nadia Hecker-O'Brien is Jewish with a social activist bent: "My Judaism is what inspires me to be more politically active and helps shape my personal morals. I had a Rabbi that helped me open my eyes to how ancient tradition can really shape my values and ideas in a very modern way."
A gap year in Israel between 2010 and 2011 cemented that ancient-modern connection in a personal way, too. "It helped me realize that Judaism is part of my identity. I felt like I belonged to a group of people."
This super involved member of the Class of `15 - on the school's track and soccer teams, in the Theta Pi Gamma sorority and a Resident Assistant - plans to major in Religious Studies and take a minor in African Studies. She's also very involved with our student-run Hillel chapter. "Hillel has a lot of flexibility and diversity within the group. Jordan Friedman (who we nicknamed the unofficial student Rabbi) is very knowledgeable about the Torah; we sometimes use passages for a jumping off point for conversations about different aspects of Judaism, keeping Kosher, and life in general.
Growing up "culturally Jewish" in the Pacific Northwest, Nadia interned at the Jewish Federation of Greater Seattle, did a lot of faith-based community service, and connected with Jews from all over America as a leader in the B'nai B'rith Youth Organization. She remains heavily committed to the Socialist Labor Zionist youth movement called Habonim Dror. "The movement runs summer camps all over the world; I have been involved both as a camper and a counselor. At my camp there is always someone to guide you. You can't guide people without someone guiding you."
When asked about her experience with religion Nadia says, "The process never ends. It is always a continuous process of exploration."


text: fotog, Getty Images [ Black Horse Pike Project Starts Monday By Dino Flammia July 5, 2013 Nine miles of Route 322 (Black Horse Pike) will be resurfaced in both directions, from the vicinity of Eighth Street in Folsom Borough to Route 50 in Hamilton Township, Atlantic County. Read More|Comment Category: New Jersey News, News Tags: Atlantic County, Black Horse Pike, NJ, NJDOT Send to a friend! Share on Facebook Share on Twitter Pin it! Reddit This! Share on Tumblr!


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A Trial of Stress Reduction in the Secondary Prevention of Coronary Heart Disease in Blacks (CCR)
Recruitment status was Active, not recruiting
- Full Text View
- Tabular View
- No Study Results Posted
- Disclaimer
- How to Read a Study Record
The overall hypothesis of this study is that a cardiac rehabilitation program with meditation will be more effective than cardiac rehabilitation alone in improving blood flow through the diseased coronary arteries in African Americans. For this purpose, 56 African American men and women with coronary heart disease will be randomly assigned either to standard cardiac rehabilitation plus the Transcendental Meditation program or to standard cardiac rehabilitation alone. The treatment period will be 12 weeks in length.
Coronary Artery Disease
Behavioral: Cardiac Rehabilitation plus Transcendental Meditation
Phase 2
|Study Type:
|Study Design:
|Allocation: Randomized
Endpoint Classification: Efficacy Study
Intervention Model: Parallel Assignment
Masking: Single Blind (Outcomes Assessor)
Primary Purpose: Prevention
|Official Title:
|A Randomized Controlled Trial of Stress Reduction in the Secondary Prevention of Coronary Heart Disease in African Americans
- coronary blood flow as measured by PET [ Time Frame: 12 weeks ] [ Designated as safety issue: Yes ]
- blood pressure, behavioral risk factors (diet, exercise, substance use) and psychosocial stress factors (depression, social support, general well-being) [ Time Frame: 12 weeks ] [ Designated as safety issue: No ]
|Estimated Enrollment:
|Study Start Date:
|October 2009
|Estimated Study Completion Date:
|May 2013
|Estimated Primary Completion Date:
|April 2013 (Final data collection date for primary outcome measure)
|Assigned Interventions
Experimental: Cardiac Rehabilitation plus Transcendental Meditation
a standard validated cardiac rehabilitation program plus a standard validated stress reduction component, the Transcendental Meditation program
Behavioral: Cardiac Rehabilitation plus Transcendental Meditation
The stress reduction intervention, Transcendental Meditation program is added on to the standard cardiac rehabilitation programs for patients with documented coronary artery disease
Other Name: TM technique, TM program, Transcendental Meditation
Active Comparator: Cardiac Rehabilitation
This control is a standard Cardiac Rehabilitation without a stress reduction technique
Behavioral: Cardiac Rehabilitation plus Transcendental Meditation
The stress reduction intervention, Transcendental Meditation program is added on to the standard cardiac rehabilitation programs for patients with documented coronary artery disease
Other Name: TM technique, TM program, Transcendental Meditation
Detailed Description:
The overall objective of this study is to conduct a randomized controlled trial to determine the efficacy of cardiac rehabilitation with and without a structured, standardized, and validated stress reduction component in the secondary prevention of coronary heart disease (CHD) in African Americans. In this phase II trial, 56 African American men and women with established CHD will be randomly allocated either to standard cardiac rehabilitation with formal stress reduction training using the Transcendental Meditation program or to standard cardiac rehabilitation alone. The intervention period will be 12 weeks. At baseline and posttest, subjects will be tested by quantitative Positron Emission Tomography (PET) for myocardial perfusion and ischemia. Secondary outcomes comprise physiological, behavioral and psychosocial risk factors for CHD. The field site will be Columbia University Medical Center and the coordinating center will be MUMRI-Center for Natural Medicine and Prevention.
|Genders Eligible for Study:
|Accepts Healthy Volunteers:
Inclusion Criteria:
- Male or female
- Age: No limitations
- CHD documented by medical history of at least one of the following: a.acute myocardial infarction (MI) within the preceding 12 months b.coronary artery bypass surgery (CABG) c. percutaneous coronary intervention (PCI, PTCA)d. chronic stable angina
- Written informed consent
Exclusion Criteria:
- noncardiac life threatening illness
- Severe cognitive impairment or physical disability
- History of major psychiatric disorder, i.e. psychosis, dementia, or substance abuse disorder within the past year.
- Left ventricular ejection fraction less than 40%
- Conditions that may be a contraindications to PET perfusion imaging with adenosine stress testing, including unstable angina or myocardial infarction in the past week, aortic stenosis, uncontrolled hypertension, uncontrolled atrial or ventricular arrhythmias, second-degree or higher atrio-ventricular block in the absence of a functioning pacemaker, baseline hypotension (systolic blood pressure < 90 mm Hg), severe obstructive lung disease or decompensated heart failure.
Please refer to this study by its ClinicalTrials.gov identifier: NCT01810029
|United States, New York
|Columbia University Medical Center, Dept of Cardiology
|New York, New York, United States, 10032
|Principal Investigator:
|Robert H Schneider, M.D.
|Maharishi University of Management
No publications provided
|Responsible Party:
|Robert Schneider, MD, Director, Center for Natural Medicine and Prevention, Maharishi University of Management
|ClinicalTrials.gov Identifier:
|NCT01810029 History of Changes
|Other Study ID Numbers:
|Study First Received:
|April 18, 2012
|Last Updated:
|March 11, 2013
|Health Authority:
|United States: Institutional Review Board
Keywords provided by Maharishi University of Management:
transcendental meditation
cardiac rehabilitation
Additional relevant MeSH terms:
Coronary Artery Disease
Coronary Disease
Heart Diseases
Myocardial Ischemia
Arterial Occlusive Diseases
Cardiovascular Diseases
Vascular Diseases
ClinicalTrials.gov processed this record on October 13, 2015


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Also known as Myrica cerifera. A small tree native to North America. It is commonly used for candle-making,…
Also known as Juniperus flaccida. A large shrub or small tree native to central and northern Mexico,…
Also known as Tsuga heterophylla. A species of hemlock native to the west coast of North America.
Also known as Juniperus occidentalis. Native to the western United States.
Also known as Larix occidentalis. A species of larch native to the mountains of western North America.
Also known as Thuja plicata. An evergreen coniferous tree native to western North America.
Also known as Platanus racemosa. The branch of a Western Sycamore tree, native to California.
Also known as Pinus monticola. A pine cone of the Western White Pine tree.
Also known as Alnus rhombifoiia. The branch of a White Alder tree, native to western North America.
Also known as Abies concolor. Native to the mountains of western North America.
Also known as Quercus alba. The branch of a White Oak tree, native to eastern North America.
Also known as Picea glauca. A spruce tree native to the northern half of North America.
Also known as Juglans cinerea. A species of walnut native to the eastern United States and southeast…
Also known as Pinus albicaulis. A pine cone from a Whitebark Pine tree.
An illustration of a willow branch.
Also known as Quercus phellos. The branch of a Willow Oak tree, native to eastern North America.
Large willow tree of Eurasia and North Africa having greyish canescent leaves and grey bark
Also known as Ulmus alata. The branch of a Winged Elm tree, native to the southern United States.
A winter scene with a bird in the tree.
Also known as Hamamelis virginiana. The branch of a Witch Hazel shrub, native to the eastern United…
"On the walls near the lantern." — Young, 1901
A cross-section of wood infested with insects.
The golden-winged woodpecker is known for burrowing its own holes into live trees to use as a nest.
Chiefly making its habitat in Northern Europe, the great black woodpecker uses its long, sharp bill…
Found in Southern Europe, the middle spotted woodpecker has a black coat, with a crimson underside and…
Also known as Betula lenta. The branch of a Yellow Birch tree, native to eastern North America.
Also known as Liriodendron tulipifera. A branch of a Yellow Poplar tree, native throughout North America.
"Taxus baccata loaded with male flowers; 1. a male flower; 2. an anther; 3. a female flower; 4. a vertical…
"Saxe-Gothea conspicua; 1. male spike; 2. anther; 3. scale of galbulus with ovule; 4. ripe galbulus."…
Also known as Salix taxifolia. The branch of a Yewleaf Willow, native to southern Mexico and the Pacific…
A branch of Yucca arborescens, a species in the agave family.
The branch of a Yucca faxoniana, a species of perennial shrub native to the southwest United States.
The branch of a Yucca macrocarpa, a species of agave plant.
The branch and fruit of a Yucca mohavensis, a species of plant from the agave family.
The branch of a Yucca Radiosa, a species of perennial shrub from the agave family.
The Yucca aloifolia also known as the Aloe Yucca or Spanish Bayonet.
A leaf of the Zamia, a tree from the Mesozoic time.
"Zizyphus Baclei. 1. a flower seen from above; 2. a fruit; 3. the same cut vertically; 4. a seed divided…


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Fall Pick Up Party
There is a buzz and warm glow at Four Brix Winery. The seasons are changing and activity in the cellar is also evolving. Kids are back to school and we are back to work making wine as Harvest has arrived in the BrixHouse. All the magical things that make the winery a place of wonder are upon us. It is also the season of ghosts, goblins, and witches brew here in the cellar, so we are busy brewing another fantastic Pick Up Party for you.
Our spooky party will have 3 new releases that makes Four Brix unique:
The much-anticipated 2010 Porteau
2010 Rhondezvous
2010 Scosso
Now for the Details
Who : You and one guest $10 each (each additional guest $20 per person)
What: Includes food stations provided by LooHoo's Catering & wine sampling
Where: Four Brix Winery 2290 Eastman Avenue, Cellar 109, Ventura
- Thursday October 25th 6-9pm
- Saturday October 27th 6-9pm
- Sunday October 28th 3-6pm
Why: Because as a fellow BrixHead, we want to celebrate 2012 Harvest, and share our new fall release wines with you. It is also your opportunity to pick up your wine shipment. If you are unable to attend any of the Pick Up Parties, you have November 11th to pick up your club shipment. Unclaimed wines will start shipping on November 12th.
How: No later than October 22nd.
Costumes are most definitely encouraged
(It's Four Brix! Of course we will be in costume.)
RSVP is Closed please Phone (805) 256-6006 or email us.
Four Brix Winery (Directions)
2290 Eastman Ave., 109


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I've come a long ways today to write to you about a little known service in Riverside that handles all garage door repairs and services: They are, Riverside Garage Doors Repair Pros and they do all the fancy stuff from fixin' your garage door to tearing it off and replacing it completely. How's that for your all in one, stop shop (yeah I butchered that pretty bad).
We call these guys up whenever one of our buds needs his garage door shot and replaced because man those things are important. Not only that, but these guys do the garage door remote controls, all that jazz.
So, Riverside Garage Door Pros are the only way to go out there in the old Inland Empire to get your garage door repair Riverside style. When you need a local garage door repair service in Riverside, CA; these are definitely the guys to go to.
Riverside Garage Door Pros also does repair work for dents, and broken panels so that you don't always have to replace the entire door which makes them extremely cost effective, considering new garage doors can be extremely expensive.
Hands down, the best garage door service and repair shop in Riverside County. Inland Empire has a lot of garage doors and they all need a lot of help with their garage door repair.
Just remember to give them a call personally because they will actually send someone out to give you a free quote / estimate and make your life a hell of a lot easier. They are the professionals of Superior garage door repair Riverside CA has available (as a service to the public). This is definitely a good thing because you don't just want anyone working on your garage door repairs. Check their reviews on that Yelp thing, or any other review platform (I'm not entirely familiar with many of those review platforms just so you guys know).
Really hope this article will help out all you Inland Empire folks. I know how tough the struggle is, girls are a pain in the ass as much as my damn garage door and getting that thing fixed in an emergency situation (like needing to leave for work at 6 am and the damn thing is stuck) really can be a pain in the you know what. So call up Riverside Garage Door Pros for yourself and talk to one of them professional folk to get the details.
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There is another comment that like this already in the probe code. The line
"pciide0: channel 0 ignored (other hardware responding to address)"
helps, I think.
I think it would help cut down the number of questions like this.
--STeve Andre'
"Paul Tamas" <paul_(_at_)_fizio_(_dot_)_umft_(_dot_)_ro> writes:
> What about this error > message : "ATI Technologies Rage Pro" rev 0x5c at pci1 dev 0 function 0 > not configured ? How do I 'configure' the video card ?
Maybe we should make a driver that will match all video cards that are supported by XFree86 and have an empty attach function. That way we won't need to see mails like this.


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About Alan
Bond and his mandolins |
Introduction to Shaping Picks
versus Mandolinbridge.com Mandolin Pick
Wegen Pick | Mandolin.com
Pick | Conclusion
Wegen M150 has turned the mandolin world on it's ear! Truly
one of the best picks I've ever heard or played with. Straight
out of the bag they are close to perfect. With the beautiful
bevel and wonderful grade of plastic, they have a great sound! Plus
they have a fine texture for added grip.
Each pick
is made by hand in the Netherlands, Wegen
the contender. Made in the USA, the Mandolinbridge.com Mandolin
Pick is similar in shape and material to the Wegen. But there
are a few big differences. The number one difference is that
there is no bevel on the Mandolinbridge.com pick. Number two
is no textured surface. The good news is that the shape of
the pick and the material used are both very good. This is
a good sounding pick once you've done your bevel work.
Made in the
USA, Mandolinbridge.com
If you don't
plan on doing any sanding or shaping to the pick then
I would recommend the Wegen. But if you are like me and you intend
further alterations, then start with the Mandolin.com Mandolin
The Mandolin.com
Mandolin Pick is a perfect blank to begin your shaping. With the
Wegen I still need to do some work to make it just right for
me. I soften the bevel a bit further and do some magic shaping to
the flat surface for better ergonomics. With the Mandolin.com
Mandolin Pick I do the same shaping and end up
with a great pick for a little less money. Once I've done
my shaping I actually prefer the Mandolin.com Mandolin
Pick. They might have a little nicer sound then the Wegen. But remember
right out of the bag the Wegen pick sounds much better. So you
have to decide.
The Wegen has
the fine detailed bevel, the texture and a basic shape that makes
them seem like they're worth $5 each, plus tax. You'll have to
find one of the 50 dealers world wide that sell Wegens (check
the Wegen website for dealers). Or buy them from the Netherlands
through their website.
The Mandolin.com
Mandolin Pick has very little detail. They are smooth. The basic
shape is more similar to a Dawg pick, more rounded then the Wegen.
Are they worth $3.73 each, plus $2 shipping for a bag of four.
I'd say yes. Once you put a nice bevel on the edge you've got
one of the two best picks in the world. Get them at Mandolinbridge.com.
Alan M. Bond


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Events Calendar
Free Chinese Film: "Empire of Silver" (LJRL)
February 27, 2013 –
Please join us for a free foreign film, Empire of Silver, which will be shown in Mandarin Chinese with English subtitles. This film will be shown twice, once on Sunday afternoon, February 24th, and once on Wednesday evening, February 27th.
This film is unrated. Children and teens must have parents permission or be accompanied by an adult.
The link goes to a description of the movie. It is a drama set in 1899 China. Empire of Silver won a Jury Award and Best Director, Press Award, at the 2009 Shanghai International Film Festival.
For more information, please call the Reference Desk at (979) 764-3416.
Seating is limited due to the size of the room.
This is an advanced screening. Watch the movie before it is available to rent or purchase on DVD.
Click here for more information