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Chitwood v. Vertex Pharmaceuticals, Inc. (Lawyers Weekly No. 10-046-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; firstname.lastname@example.com
FRED CHITWOOD vs. VERTEX PHARMACEUTICALS, INC.
Suffolk. November 9, 2016. – March 20, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[1]
Corporation, Stockholder, Custodian of corporate records.
Civil action commenced in the Superior Court Department on August 15, 2013.
The case was heard by Janet L. Sanders, J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Steven J. Purcell, of New York (Justin Sherman, of New York, & Mitchell J. Matorin also present) for the plaintiff.
- Todd Cronan (William B. Brady also present) for the defendant.
Ben Robbins & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief.
GANTS, C.J. Under G. L. c. 156D, § 16.02 (b), of the Massachusetts Business Corporation Act (act), a shareholder of a corporation, upon written notice, is entitled to inspect and copy various categories of corporate records if the shareholder makes the demand "in good faith and for a proper purpose," and if the particular records sought to be inspected are "directly connected" with that purpose. The plaintiff, Fred Chitwood, a shareholder of the defendant Vertex Pharmaceuticals, Inc. (Vertex or the corporation), made a demand for corporate records pursuant to § 16.02 (b), claiming that inspection of the records was needed to investigate his allegation that the board of directors had committed a breach of its fiduciary duty of oversight with regard to Vertex's financial reporting and insider stock sales. Vertex "rejected" the demand, claiming that the demand was "invalid under Massachusetts law" and that it was improper because the board, following a reasonable inquiry by a special committee of independent directors, had rejected his earlier demand to commence derivative litigation based on the same allegations of misconduct. The plaintiff commenced an action in the Superior Court, seeking an order compelling Vertex to make the requested corporate records available to the plaintiff. After a bench trial, the judge dismissed the complaint with prejudice, concluding that the plaintiff had failed to meet his burden of showing a proper purpose.
The issue on appeal is whether the judge applied the correct standard regarding the proper purpose required to inspect corporate records under § 16.02 (b). We conclude that she did not. Because the judge applied too demanding a standard and because the scope of the demand made by the shareholder far exceeded the authorized scope of inspection under § 16.02 (b), we vacate the judgment dismissing the shareholder's claim for inspection and remand the case for further proceedings consistent with this opinion.[2]
The right of inspection. Under § 16.02, a shareholder of a Massachusetts corporation is entitled to inspect two categories of corporate records. The first category of records, delineated in G. L. c. 156D, § 16.01 (e), includes the corporation's articles of organization and bylaws (and all amendments thereto); resolutions adopted by the board of directors creating one or more classes of shares, and setting the rights, preferences, and limitations of those classes of shares (where the shares issued are outstanding); the minutes of all shareholders' meetings, as well as the records of all actions taken by shareholders without a meeting, for the past three years; all written communications to shareholders within the past three years, including the annual financial statements provided to shareholders, for the past three years; the names and business addresses of the corporation's current directors and officers; and the corporation's most recent annual report delivered to the Secretary of State. To inspect the corporate records in this first category, a shareholder need only provide written notice at least five business days before the shareholder wishes to inspect and copy; no showing of good faith or proper purpose is required. G. L. c. 156D, § 16.02 (a).
The second category of records, delineated in G. L. c. 156D, § 16.02 (b), includes records of "excerpts from minutes reflecting action taken" by the board of directors or a committee acting in place of the board;[3] the "accounting records of the corporation, but if the financial statements of the corporation are audited by a certified public accountant, inspection shall be limited to the financial statements and the supporting schedules reasonably necessary to verify any line item on those statements;" and the list of the names and addresses of all corporate shareholders, showing the number and class of shares held by each. See G. L. c. 156D, § 16.01 (c). To inspect this second category of corporate records a shareholder not only must provide five days' written notice but also must meet the following three requirements: (1) the shareholder must show that the "demand is made in good faith and for a proper purpose," (2) the shareholder must describe "with reasonable particularity his purpose and the records he desires to inspect," and (3) the shareholder must show that "the records are directly connected with his purpose." G. L. c. 156D, § 16.02 (c). In interpreting the meaning of these requirements, we are guided by the comments prepared by the task force on the revision of the Massachusetts business corporation law that drafted the act, "which included more than fifty experienced Massachusetts corporate lawyers." See Halebian v. Berv, 457 Mass. 620, 625 (2010), citing comment to G. L. c. 156D, 25 Mass. Gen. Laws Ann. at 48 (West Supp. 2010).
"A 'proper purpose' means a purpose that is reasonably relevant to the demanding shareholder's interest as a shareholder." Comment to G. L. c. 156D, 25A Mass. Gen. Laws Ann. at 46 (West Supp. 2016) (comment). The drafters also noted that the phrase "proper purpose" is "well understood" and that the "very substantial case law defining 'proper purpose' will continue to be applicable." Id. That case law recognizes that "[s]tockholders are the beneficial owners of all the assets of the corporation, and they are entitled to reliable information as to the financial condition of the corporation, the manner in which business has been conducted and its affairs have been managed, and whether those to whom they have entrusted their property have acted faithfully and efficiently in the interests of the corporation." Albee v. Lamson & Hubbard Corp., 320 Mass. 421, 424 (1946). A proper purpose is one that protects the shareholder's rights as an owner in the corporation and that advances the interests of the corporation itself. Id. A shareholder's purpose is improper where it is driven by "mere curiosity," speculation, or vexatious motives (citation omitted). Gavin v. Purdy, 335 Mass. 236, 239 (1957). See Albee, supra (shareholder has no "right to an examination if his purpose be to satisfy his curiosity, to annoy or harass the corporation, or to accomplish some object hostile to the corporation or detrimental to its interests").
"Good faith," paired as it is with "proper purpose," means that the stated proper purpose also must be the shareholder's true purpose. See Gavin, 335 Mass. at 239 (shareholder must act with "an honest purpose, not adverse to the interests of the corporation"); Albee, 320 Mass. at 424 (stockholder "who is acting in good faith" for proper purpose "is generally entitled to examine the corporate records and accounts"). This understanding of the meaning of good faith is supported by the Uniform Commercial Code's definition of "good faith," which requires "honesty in fact and the observance of reasonable commercial standards of fair dealing." G. L. c. 106, § 1-201 (20).
The other requirements — that the shareholder state his or her purpose and the records sought with reasonable particularity, and that the records sought be connected with that purpose — allow a fact finder to test whether the shareholder's true purpose is a proper purpose. See comment, supra at 46 (eliciting "more meaningful statements of purpose" avoids "harassment under the guise of inspection"). Where the specific records sought have no relevant connection to the shareholder's stated purpose, a fact finder may infer that the stated purpose for inspection is not the true purpose, and that inspection of those records is sought for another purpose that the shareholder chose not to articulate because it would likely be found improper.[4]
Where a shareholder makes a demand in good faith and for a proper purpose, stated with reasonable particularity, for records that are relevant to that purpose, the corporation must allow the inspection unless it can show that it has "determined in good faith that disclosure of the records sought would adversely affect the corporation in the conduct of its business or, in the case of a public corporation, constitute material non-public information at the time when the shareholder's notice of demand to inspect and copy is received by the corporation." G. L. c. 156D, § 16.02 (c) (4). Where the corporation for any reason does not allow the inspection and copying of the requested records within a reasonable time, the shareholder may apply to the Superior Court for an order to permit inspection and copying, and that application shall be adjudicated "on an expedited basis." G. L. c. 156D, § 16.04 (b).
The right of inspection under § 16.02 is "an independent right of inspection"; it is not intended to substitute for or diminish any rights of inspection that may exist under another statute, the common law, or the right of discovery in shareholder litigation. See G. L. c. 156D, § 16.02 (e); comment, supra at 46.
Background. We turn now to the complaint under § 16.04 (b) that initiated this litigation. According to that complaint, the defendant corporation develops and manufactures drugs for the treatment of serious diseases. In the spring of 2012, the corporation announced in a press release the interim results of "phase two" of a study regarding the effectiveness of two of its drugs to treat cystic fibrosis. As a result of that announcement, which suggested a medical breakthrough, the corporation's stock price "rose precipitously." Three weeks later, the corporation issued a new press release, which suggested that the phase two study did not reflect a medical breakthrough, and the corporation's stock price declined on this news. Between the first and the second announcement, seven of the corporation's officers and directors sold over $ 37 million in corporation stock.
In November, 2012, the plaintiff[5] sent a letter to the corporation's board of directors detailing what he characterized as the "false and misleading statements" in the first announcement and identifying the officers and directors he contended had wrongfully engaged in insider trading prior to the second announcement. He demanded that the board initiate litigation on behalf of the corporation against the parties responsible for issuing the false and misleading statements, require the insiders who profited from the insider trading to disgorge the profits, and that the board institute meaningful corporate reforms.
In response, the board established a special committee of independent directors to investigate the plaintiff's allegations, and retained outside counsel to assist in the investigation. In April, 2013, the board informed the plaintiff by letter that the special committee had completed its investigation and reported its findings to the board, and that a majority of the independent directors had determined that there was no breach of fiduciary duty by any officer or director of the corporation and that a shareholder derivative action was not in the best interests of the corporation. The letter briefly described the conduct of the investigation and provided a summary of its principal findings, but did not append the written report provided by the special committee to the board.
On June 19, 2013, the plaintiff shareholder made a written demand under § 16.02 to inspect the corporation's books and records "to investigate potential wrongdoing, mismanagement, and breaches of fiduciary duties by the members of the [b]oard or others in connection with the events, circumstances, and transactions" described earlier. The shareholder asserted that he did not believe the corporation's investigation "properly or adequately responded to the concerns expressed" in the November, 2012, letter demanding the initiation of shareholder derivative litigation. The shareholder demanded the inspection and copying of seven categories of records, including the records and minutes of all meetings of the board and the special committee regarding these issues, the special committee's final report and any drafts of the report, all documents distributed at any meeting of the board or the special committee, all documents concerning the results of the internal review of the phase two study, copies of all policy and procedure manuals and other documents describing the corporation's internal control practices regarding the selection and oversight of contractors to perform drug trials and studies for the corporation, and calendars to show the number and duration of meetings of the board and the special committee.
On June 26, the board, through counsel, rejected the June 19 demand for inspection and identified four reasons for the rejection. First, the board contended that the demand was not made for a "proper purpose" because the shareholder sought the inspection of the corporation's books and records under § 16.02 for the purpose of investigating potential wrongdoing but had failed to present any credible basis to infer that that were legitimate issues that warranted further investigation.
Second, the board contended that the demand lacked a "proper purpose" because it essentially sought discovery in support of the shareholder's derivative demand allegations that the shareholder would be barred from obtaining had he brought a shareholder derivative action under G. L. c. 156D, § 7.44. The board noted that § 7.44 provides that a derivative action commenced after rejection of a demand shall be dismissed on motion of the corporation where a judge finds that a majority of the independent directors present at a meeting of the board of directors (where the independent directors constitute a quorum) had determined in good faith after conducting a reasonable inquiry that a derivative action would not be in the best interests of the corporation. The board also noted that a court may stay discovery in a derivative proceeding while the corporation's motion to dismiss is pending. See G. L. c. 156D, § 7.43.
Third, the board claimed that the demand was "overbroad and far exceeds the narrow scope of records available for inspection" under § 16.02.
Fourth, the board claimed that it had made a good faith determination that disclosure of the records sought would adversely affect the corporation in the conduct of its business, and that the requests call for the disclosure of non-public material information.
On August 15, 2013, the shareholder filed suit under G. L. c. 156D, § 16.04, seeking an order compelling the corporation to allow the inspection and copying of the books and records he had demanded in his June 19 letter. The shareholder's complaint, which, under § 16.04 (b), was to be resolved on an "expedited basis," was not resolved for nearly two years when, on August 4, 2015, final judgment entered dismissing the complaint with prejudice. During those two years, cross motions for judgment on the pleadings were denied, as was the corporation's motion for summary judgment, and evidence was taken during a one-day bench trial where the plaintiff shareholder and a board member of the corporation, who also served as chair of its audit committee, testified.
In her findings of fact and conclusions of law, the trial judge recognized that the plaintiff shareholder's demand was overbroad and that, if he prevailed, his right to inspect corporate records under § 16.02 (b) would be limited to "excerpts from minutes reflecting any action taken at any meeting of the board of directors [and] records of any action of" the special committee. The judge concluded that the plaintiff was not entitled to inspect even this narrow swath of records because he had failed to meet his burden of showing a proper purpose. The judge noted that the chronology of events regarding the sale of stock by corporate insiders after "the admittedly erroneous May 7 press release" and before the "May 29 correction" had prompted a United States Senator to ask the Securities and Exchange Commission to examine the matter. But the judge declared that, where a shareholder seeks to inspect corporate records under § 16.02 (b) to investigate allegations of corporate wrongdoing and mismanagement, the shareholder "must present some evidence of wrongdoing; simply relying on the timing of certain events is not sufficient" (emphasis in original).[6] The judge found that the shareholder had offered no evidence "calling into question the independence of the [s]pecial [c]ommittee or the diligence of its efforts."
The judge found additional support for her conclusion that the plaintiff is not entitled to inspection of the records under § 16.02 because she concluded that, if the shareholder were to bring a derivative suit under G. L. c. 156D, § 7.44, based on the evidence he presented at trial, he would not be entitled to any discovery. The judge noted that a corporation in a derivative action is entitled to dismissal if a majority of the independent directors present at a board of directors meeting (where the independent directors constitute a quorum) determine "in good faith after conducting a reasonable inquiry upon which its conclusions are based that the maintenance of the derivative proceeding is not in the best interests of the corporation." § 7.44 (a). The judge also noted that, if the corporation were to move to dismiss a derivative action, all discovery would be stayed pending resolution of the motion unless the judge, on good cause shown, ordered that specified discovery be conducted. § 7.44 (d). In the absence of good cause, discovery would proceed only if the motion to dismiss were denied, and the motion would be denied only where the shareholder had alleged "with particularity" facts that rebutted the facts presented by the corporation showing that a majority of the board of directors was independent when the independent directors decided not to proceed with the derivative action and that their determination was made in good faith after conducting a reasonable inquiry. Id. The judge concluded that allowing inspection under § 16.02 would render those limitations on discovery "meaningless."
Discussion. Viewed from the perspective of the appellate bench, this was an expensive litigation war of attrition that was fought over nearly nothing. The seven categories of records that the shareholder demanded under § 16.02 far exceed the scope of records that are within the right of inspection under § 16.02. They are precisely the type of records that a plaintiff shareholder might seek in discovery in a derivative action in an attempt to show that the special committee's inquiry into the allegations was not reasonable or that the independent directors did not act in good faith. But, as the judge found, within these seven categories of records, the only records within the scope of the right of inspection under § 16.02 were the excerpts of minutes or comparable records that reflected the actions taken at meetings of the board of directors or meetings of the special committee. The drafters' comments make clear that they intended "to permit inspection of votes or action taken on relevant matters, not of reports, discussion or decisions not to act on a matter." Comment, supra at 45. The drafters added, "Shareholders may have a legitimate interest in reviewing whether action was properly taken by the board of directors, but giving them a statutory right to examine the remainder of the minutes of a board or committee meeting could inhibit frank discussion or the disclosure of sensitive matters to the directors to enable them to exercise their fiduciary responsibilities." Id. In short, under § 16.02, a shareholder is entitled to inspect the original minutes of a board or committee meeting only to learn what action was taken at those meetings; it does not provide a right of inspection of the documents that were provided to board members for consideration of that proposed action or of the minutes memorializing the debate at the board or committee meeting as to whether to take that action.
Where, as here, a shareholder demands that the corporation initiate a derivative action based on allegations of insider trading after an inaccurate public announcement of the results of drug testing that suggested an apparent scientific breakthrough, and where the corporation declines to do so, a shareholder has a proper purpose in asking to inspect the excerpts of the original minutes of the meetings of the board of directors and the special committee that reflect the actions taken at those meetings regarding the requested derivative action.[7] The minutes may well say nothing different regarding these actions from what the corporation's attorney described in the letter informing the shareholder of the corporate decision to decline to proceed with the derivative action, but the shareholder is entitled, as the Russian proverb says, to "trust but verify."[8] The shareholder need not, as the judge ruled, provide evidence of wrongdoing beyond the timing of the press releases and the insider trades to obtain these excerpts of the original minutes. The desire to verify the action taken by the special committee and the board in response to these allegations is a purpose that is "reasonably relevant to the demanding shareholder's interest as a shareholder." See comment, supra at 46.
The judge erred in applying a standard derived from Delaware law in determining whether the shareholder had a proper purpose. In Delaware, as in Massachusetts, a shareholder's desire to investigate corporate wrongdoing or mismanagement is a proper purpose. See Seinfeld v. Verizon Communications, Inc., 909 A.2d 117, 121 (Del. 2006); Varney v. Baker, 194 Mass. 239, 240-241 (1907). But the scope of corporate records that potentially may be inspected to conduct such an investigation under the Delaware counterpart of § 16.02 is far greater than under § 16.02, because the Delaware statute permits inspection of a corporation's "books and records," without specifying which books and records. See Del. Code Ann. tit. 8, § 220(b)(1) (LexisNexis 2011). Under Delaware law, a shareholder may identify the category of corporate records he or she seeks to inspect, and the scope of inspection is left to the sound discretion of the judge. See Del. Code Ann. tit. 8, § 220(c)(3) ("The Court may, in its discretion, prescribe any limitations or conditions with reference to the inspection, or award such other or further relief as the Court may deem just and proper"); United Techs. Corp. v. Treppel, 109 A.3d 553, 557-558 (Del. 2014) (court has broad discretion to determine scope of inspection and use of information gathered); Security First Corp. v. U.S. Die Casting & Dev. Co., 687 A.2d 563, 569 (Del. 1997) (judge "has wide latitude in determining the proper scope of inspection").
In Seinfeld, supra at 118-119, the shareholder alleged that three corporate executives were paid more than authorized in their employment contracts, and the shareholder sought to inspect the corporate books and records related to their compensation. Where an inspection's purpose is to investigate possible corporate wrongdoing or mismanagement, the Delaware Supreme Court requires the shareholder to show, "by a preponderance of the evidence, a credible basis from which the [court] can infer there is possible mismanagement that would warrant further investigation." Id. at 123. "That 'threshold may be satisfied by a credible showing, through documents, logic, testimony or otherwise, that there are legitimate issues of wrongdoing." Id., quoting Security First Corp., 687 A.2d at 568.
This burden is modest but it is more demanding than is appropriate for the more limited scope of books and records subject to inspection under § 16.02. The inverse of the Biblical adage that to whom much is given, much is expected is that to whom less is given, less is expected. See Luke 12:48 (Revised Standard Version). The corporate records sought in Seinfeld might be outside the scope of inspection in Massachusetts under § 16.02, as might many investigative requests for corporate books and records that may be permissible under Delaware law. Where a shareholder seeks corporate books and records under § 16.02 and claims a proper purpose of investigating corporate wrongdoing or mismanagement, the shareholder demonstrates a proper purpose where he or she identifies particular facts or circumstances that permit a reasonable inference that the requested books and records could possibly reveal information that would tend to indicate the existence of corporate wrongdoing or mismanagement. Such a showing, if made in good faith, suffices to show that the shareholder's purpose is not driven by "mere curiosity" or speculation. See Gavin, 335 Mass. at 239.
The judge also erred in concluding that, where a shareholder's derivative demand has been declined by the corporation, the shareholder, to show a proper purpose, must present some evidence that the majority of the board of directors who voted to decline were not independent or that their determination was not made in good faith or that the inquiry on which they based they determination was not reasonable. Essentially, the judge imposed a burden on the shareholder seeking to inspect corporate books and records under § 16.02 that was comparable to the burden placed on a plaintiff shareholder under § 7.44 (d) to defeat a motion to dismiss brought by the corporation that had declined the plaintiff's derivative demand.[9] Section 16.02, however, provides "an independent right of inspection," and its drafters made clear in their comments that the right of inspection under § 16.02 is available "at any time." Comment, supra at 45, 46. A demand for inspection under § 16.02 may be made before or after the filing of a shareholder derivative action, and the definition of "proper purpose" is not altered by its timing. Indeed, a shareholder has a right of inspection under § 16.02 even if the shareholder derivative action he or she sought to initiate has been dismissed. To be sure, the dismissal of a related shareholder derivative action may be relevant in determining whether the demand for inspection under § 16.02 is made in good faith or to harass the corporation, but the right of inspection under § 16.02 is not restricted by the limits of discovery under § 7.44 (d).[10]
Conclusion. The judgment of dismissal is vacated, and the case is remanded to the Superior Court for further proceedings consistent with this decision.
So ordered.
[1] Justice Botsford participated in the deliberation on this case prior to her retirement.
[2] We acknowledge the amicus brief submitted by the New England Legal Foundation.
[3] The full text of G. L. c. 156D, § 16.02 (b) (1), provides for the inspection and copying of "excerpts from minutes reflecting action taken at any meeting of the board of directors, records of any action of a committee of the board of directors while acting in place of the board of directors on behalf of the corporation, minutes of any meeting of the shareholders, and records of action taken by the shareholders or board of directors without a meeting, to the extent not subject to inspection under [§ 16.02 (a)]."
[4] The drafters note that, where a corporation disputes the "connection" or relevancy of the requested records, a judge may review the records in camera before determining the validity of the claim. Comment to G. L. c. 156D, § 16.02, 25A Mass. Gen. Laws Ann. at 46 (West Supp. 2016).
[5] The plaintiff became the interested shareholder and replaced the person identified in the November, 2012, letter to the corporation's board of directors after it became clear that the individual identified in the November letter was not in fact a shareholder at the time of the relevant events.
[6] The judge found guidance in a Massachusetts Superior Court decision which declared that "a purpose to investigate possible waste, mismanagement or other wrongdoing is a proper purpose under [the Delaware inspection statute, [Del. Code Ann. tit. 8, § 220 (LexisNexis 2011)], provided that the shareholder presents some evidence that establishes a credible basis from which a court can infer the existence of legitimate issues as to such conduct warranting further investigation." Gent vs. Teradyne, Inc., Superior Court, No. 07-04676-BLS2 (Oct. 8, 2010), citing Seinfeld v. Verizon Communications, Inc., 909 A.2d 117, 118, 122 (Del. 2006).
[7] The mere fact that the plaintiff's request was indeed overbroad does not alone establish an absence of good faith.
[8] The Russian proverb "trust, but verify" became famous in the United States when former President Ronald W. Reagan quoted it with respect to his nuclear disarmament discussions with the Soviet government. See e.g., The Signing: 'Universal Significance for Mankind,' N.Y. Times, Dec. 9, 1987, at A21.
[9] We understand why the judge believed that the allowance of inspection of the plaintiff shareholder's overbroad request for books and records would have frustrated the limitations of discovery under § 7.44, because the vast majority of those documents are outside the scope of § 16.02 and would be available only through civil discovery in a shareholder derivative suit. But the appropriate course of action is to isolate which of the documents in the inspection request fall within the scope of § 16.02, and then determine whether there is a proper purpose to order inspection of that subset of documents.
[10] Because the shareholder here did not assert a common-law right to inspect corporate books and records, we do not address whether the common-law right of inspection survives after the enactment of G. L. c. 156D, §§ 16.01 and 16.02, or, if it does survive, whether it provides a shareholder with a greater right of inspection than provided under these statutes.


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When it rains, it pours.
The Ninth Circuit publishes as many merits opinions today as it has during the entire rest of 2012. There's some neat stuff in there as well.
I'll mention one of these opinions for now. This one. As to which my reaction is: "Right on."
It's a fairly stunning case. Lopez-Alvia is smuggling around 10 pounds of cocaine across the border, and customs officials catch her. She initially pleads guilty, and has a plea hearing, but then changes her mind and withdraws the plea. Her defense at trial is duress, claiming that she only smuggled drugs because she was threatened to do so.
No surprises thus far. Happens every day.
Everything's going fine, but then at trial, the AUSA asks the court to permit him to introduce a statement that Lopez-Alvia made at the plea hearing; in particular, the following:
"COURT: Ms. Lopez, has anybody threatened you?
DEFENDANT: No."
The court, over defendant's objection, allows the question. So the AUSA then asks Lopez-Alvia:
"Q: Do you recall testifying under oath on February 24th, 2010, and being asked this question by the Court—by the Magistrate Judge:
Ms. Lopez, has anyone threatened you?
And you gave—did you give the following answer:
Did you tell that under oath to Magistrate Judge Guerin?
DEFENDANT: Yes.
Q: Was that a lie?
DEFENDANT: How is that? I don't understand.
Q: Well, are you—you've now admitted that you in fact told the judge that you were not threatened in this case. And I'm asking you was your testimony on February 24th, 2010, while you were under oath, was that a lie? Did you lie to the judge about not being threatened?
DEFENDANT: Yes."
Pretty damning, eh?
Except for one thing. Here's what the transcript of the guilty plea hearing actually says:
"COURT: In the last 48 hours have you had any drugs, prescription medication, or alcoholic beverage?
DEFENDANT: No.
COURT: Have you ever been treated for a mental condition?
DEFENDANT: No.
COURT: Ms. Lopez, has anyone threatened you or forced you to plead guilty?
DEFENDANT: No.
COURT: Has anyone made any promises to you as to what would happen in your case?
DEFENDANT: No."
In other words, it's crystal clear that Lopez-Alvia was being asked at the plea hearing -- which was entirely about the voluntariness of the plea -- that the question she was asked what whether anyone "threatened you . . . to plead guilty." It wasn't about the merits. There wasn't a contradiction at all.
When, at a break, the defense counsel got a copy of the transcript and reviewed it, counsel promptly moved for a mistrial, which the district court granted. Lopez-Alvia then moved to bar a retrial on double jeopardy grounds, which the district court denied. The Ninth Circuit affirms.
I agree with that. The AUSA didn't deliberately cause a mistrial, which is the primary situation in which you'd get a double jeopardy bar. He was trying to get a conviction. Improperly, to be sure. But that doesn't bar a retrial on double jeopardy grounds.
But I also agree not only with Judge Bea's holding, but with the other things he does as well. First, he mentions the relevant AUSA -- Jerry Alpert -- by name. Repeatedly. Second, Judge Bea notes that the district court can bar a retrial based upon its supervisory powers as a sanction for the AUSA's conduct if it finds such a sanction to be appropriate. Totally right. Good reminder. Third, the Ninth Circuit reminds the district court that as an alternative to this "strong medicine" -- or in addition -- it can discipline Mr. Alpert directly. Yep. Definitely consider it.
And then Judge Bea ends the opinion with this:
"Third and finally, we note that the district court is not the sole institution with the authority to investigate and discipline prosecutorial misconduct. Within the Department of Justice, the Office of Professional Responsibility (OPR) is required to '[r]eceive, review, investigate and refer for appropriate action allegations of misconduct involving Department attorneys that relate to the exercise of their authority to . . . litigate." 28 C.F.R. § 0.39a(a)(1). If a complaint is filed, OPR would therefore be required to review the conduct of the Department attorney. Anyone may file a complaint with the Office by sending a letter to the address listed on OPR's website at http://www.justice.gov/opr/process.htm (last visited January 4, 2012)."
Through which Judge Bea essentially says: "I'm a judge. It's potentially awkward for me (or one of my clerks) to file a formal complaint with the OPR. But someone should do it. At which point OPR would be required to investigate. I'll get you started. Here's the website address. Send a one-sentence letter to OPR alongside a copy of my opinion. One of you will surely do that, right? Or can you not take a hint?"
So there's your assignment for today. Help a Ninth Circuit judge out, will ya?

subset: commoncrawl


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Firefly Bluetooth Music Receiver
|Article Index
|Firefly Bluetooth Music Receiver
|Lighting Up the Firefly
Product: Firefly Bluetooth Music Receiver
Provided By: Tunai Creative
Price: $49.99 MSRP at time of publication
Every now and then a product comes along that is super handy, well-designed, well thought-out and actually looks good. The Firefly from Tunai Creative is just such a product and it simply and easily takes your wired audio system and quickly turns it into a Bluetooth-enabled wireless receiver. The application can be for car audio as well as home audio and is a much more compact solution that many others that are on the market - including Chromecast Audio. It's truly plug-and-play and offers simplicity as its biggest feature.
The Firefly appears to be little more than a short USB cable with an 1/8th inch audio plug on one end to plug into the audio system of your choice. It's really that compact and simple. There are no buttons, no settings, no software and setup is as simply as pairing your device to the Firefly once it's plugged in.
The Firefly does come with a few accessories however as we can see when we open the package.
Inside the package we find an extension cable for use if your USB port is not right near your auxiliary jack, as well as an extension that features RCA-type connectors for hooking to legacy home stereo systems, mixers, etc. Between these two options, you should be good to go for many applications.
As you can see. It's super simple. Simple is good - if the quality is on par with the specifications. Speaking of specifications, let's take a quick look before we plug this in, pair it to our device and give it a go.
- Bluetooth v4.0 with backward compatible
- Pure copper with gold plated connector
- Support A2DP v1.2, SPP
- Supprt AAC, MP3 and SBD decoder
- Support Party Mode, max 2 device connection at the same time
- Stored up to 8 paired devices
- 33ft or 10m connection distance, without interference
- Input voltage : 5V
- MOST TINY - Simple beauty lies in exquisite compact design. No more space limitation.
- AUTHENTIC SOUND - Firefly supports AAC/MP3 high quality audio format , sound revitalization technology, pure copper cable and golden plated connector to minimize distortion and preserve the most immersive music experience.
- PLUG&PLAY - Simply plug&play and supports all apps.
- TRANSFORM TO WIRELESS - Party mode allows two devices to play music in turn at the same time. Share your music, you and I can all be a DJ.
The claims are not outrageous. They seem to be well-grounded and even Tunai Creative seems to focus on simplicity and performance rather than flash and glitter. On the next page, we'll take a look and see how this translates to real-world usage.


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Block B Jaehyo Reveals The True Reason He Debuted With The Group
Block B's Jaehyo is currently a trending topic in the online community due to his explanation of his pivotal purpose as the visual of the group.
An old video has resurfaced in the online community of Block B Jaehyo's comments about his view on his position as 'the face' of the group:
"When people say, 'Isn't Block B an ugly group?' and then look at our pictures, they'll see me and think, 'Omona! (Oh wow!)' That's my position in our group."
Netizens seemed to agree with his very confident statement, and showered him with compliments on how handsome and cute he was with his exotic, sharp features.
They also seemed to find his statement amusing, as he said it about himself, rather than having his fellow members say it for him.
Do you agree with Jaehyo and his perspective of his own self?
Source: Dispatch


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De Olivia Vereha INSIGHT TAROM octobre/novembre 2016
The game was always present in our lives. There must be « gamers » to have a competitive spirit and to become passionate about an activity that is carried by the same principles as World of Warcraft, League of Legends, Need For Speed Candy Crush Saga or trivial.
Feelings and impulses that we bear within us the game is a godsend for marketing and sales, but not only. Applying rules, timetables, benchmarks development strategy, following the logic of competition is the easiest way to quickly gain followers. Caution, however, is as easy to make a mistake and unfortunately, especially in cyberspace, there are not too many opportunities to get a second chance.
What is gamification ?
Gamification – the concept that applied game mechanics and game design techniques in concrete situations of everyday life to motivate people to achieve their goals. Underlying these practices are the needs and desires of the people's basic related bylaws and exceeding targets.
The ban usage example of this concept is the frequent flyer program by bonus points that I use all supermarkets – to buy mostly from you, how many times a certain time, he could either benefit a discount, or a surprise prize or a premium service.
Acelta model is a very simple game mechanic, easy to implement and that will produce results when it is communicated properly. There is of course much more advanced mechanics that combine multiple stages of interaction with the consumer, several types of actions that it must indepliniească and therefore several types of rewards.
Take the example application Slack, an app management teams of people working in your company. The first challenge you have as a user Slack is to create a team of at least 10 people. For each new user registered in the platform, your team will get a credit. As you zoom in group of people gather more and more money in his account which you can then « spend » them to cover your cost of hosting and to have access to all sorts of other productivity tools integrated with Slack. Each of these tools have their proprille mechanisms to keep people active in the application and to get them to use interface and greatly help them with tasks remain in deadline. (For example, one of Slack systems management task rewards you every time you meet all the objectives of it, etc.).
Where there might be problems ?
Problems can arise from several areas. Whether in terms of game mechanics or in the presentation of the package or from an erroneous targeting of users. Example: Let's take the case of a gamfication applied to a retailer. If it configures a game system too complicated for its users, with many interacţinui can be made only in moments too specific, it is possible that the rate of adoption of this campaign to be very low. People are very fond of their time and it is important for reward / awards fulltime be sufficiently consistent / consistent as they devote so much attention tasks they receive.
A second problem that can arise is linking a system of gamification very good with a very poor promotional campaign. If visuals created for the campaign, messages and channels chosen for Marketin are not suitable for the type of game or consumers should be involved, the chances that the scheme is a success are very low.
Which brings us to a third category of obstacles, which is also responsible for the birth of the previous two: a wrong target audience profiling. Each game mechanism should be planned and implemented by always keeping the end user in mind, his habits, his way of thinking, time and
his willingness to be involved and the degree of invasion of personal space. If, for example, the game requires him to do more public actions, it is likely that he quit to get involved, because it wants to be perceived by others as a hunter or an opportunist awards.
There are a lot of issues to consider in creating a system of gamification to develop a product or to-market it, but the success they would have such a practice compared to traditional marketing, it could be much higher and would increase consumer loyalty to each business.


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I bought a HP ZR2740w late last year, and I'd been happily operating on it since then. Until yesterday noon, when the monitor suddenly turned itself off. Unplugging it and plugging it back in didn't work, and neither did pushing the power button repeatedly. It literally just died while on the job.
It took a while to navigate HP's web-site in order to get a phone # to call (and yes, it was past Amazon's return period, and I would have been tempted to return it otherwise), but I eventually got through and talked to a real person. After one transfer, I found myself talking to a competent technician who authorized a repair and told me that a new monitor would get to me in 2-3 business days.
My jaw dropped this morning when my doorbell rang and a replacement monitor showed up from HP. They cleverly just shipped the panel, so I can just reuse my base, cables, etc. This was total customer satisfaction: replacement sent and arrived in less than 24 hours, complete with a UPS return tag. In other words, HP footed the bill for the return both ways, and there was no need for me to ship them the old monitor first so they could verify that it was well and truly broken.
All in all, you should have as good a product as possible, but everybody makes mistakes, and what's important was that HP corrected theirs quickly and with no fuss, unlike my experience replacing a Mac. We will see how this replacement monitor lasts.
Thursday, April 26, 2012
Excellent Customer Service from HP
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Vitamin D, calcium homeostasis and aging.
Bone Res. 2016 Oct 18;4:16041. eCollection 2016.
Veldurthy V1, Wei R1, Oz L1, Dhawan P1, Jeon YH1, Christakos S1.
1Department of Microbiology, Biochemistry and Molecular Genetics, Rutgers, The State University of New Jersey, New Jersey Medical School , Newark, NJ 07103, USA.
Blood tests cannot detect changes in active vitamin D
Invisible Genes: Vitamin D Receptor, GC, CYP27B1, and CYP24A1
See also VitaminDWiki
- Calcitriol, not inactive vitamin D, associated with pain in seniors – Aug 2014
This appears to agree with the study on this page
Genetics category listing contains the following
see also
- Vitamin D Receptor has
463 items
- Vitamin D Binding Protein = GC has
166 items
- CYP27B1 has
52 items
- CYP24A1 in title (31 as of Sept 2022)
- Calcidiol has
42 items
- Calcitriol has
56 items
- Topical Vitamin D
- Nanoemulsion Vitamin D may be a substantially better form
- 1289 genes changed with higher doses of Vitamin D - RCT Dec 2019
- CYP3A4 (6 as of June 2022)
- Getting Vitamin D into your body
Vitamin D blood test misses a lot
- Vitamin D from coming from tissues (vs blood) was speculated to be 50% in 2014, and by 2017 was speculated to be 90%
- Note: Good blood test results (> 40 ng) does not mean that a good amount of Vitamin D actually gets to cells
- A Vitamin D test in cells rather than blood was feasible (2017 personal communication)
- Commercially available 2019
- However, test results would vary in each tissue due to multiple genes
- Good clues that Vitamin D is being restricted from getting to the cells
1) A vitamin D-related health problem runs in the family
- especially if it is one of 51+ diseases related to Vitamin D Receptor
2) Slightly increasing Vitamin D shows benefits (even if conventional Vitamin D test shows an increase)
3) Vitamin D Receptor test (<$30) scores are difficult to understand in 2016
- easier to understand the VDR 23andMe test results analyzed by FoundMyFitness in 2018
4) Back Pain
- probably want at least 2 clues before taking adding vitamin D, Omega-3, Magnesium, Resveratrol, etc
- The founder of VitaminDWiki took action with clues #3&4
Items in both categories Genetics and Seniors are listed here:
- Sarcopenia (muscle loss) is 1.6X more likely if poor Vitamin D receptor – July 2020
- Parathyroid increase with age associated with worsening Vitamin D genes – April 2020
- Reduced muscle function in mice lacking Vitamin D Receptors in muscles – June 2019
- Vitamin D and Ageing (29 page chapter, VDR decreases with age) – Feb 2019
- Less vitamin D gets to cells as you age - fewer Vitamin D Receptors - 2004
- Aging leads to a decrease of vitamin D getting to cells – Sept 2017
- Sepsis is 13 X more likely if poor Vitamin D Receptor – April 2017
- Centenarians have good Vitamin D Receptor genes (or take lots of vitamin D) – March 2016
- 10 reasons why seniors need more vitamin D
Vitamin D Receptor category has the following
463 studies in Vitamin D Receptor category
Vitamin D tests cannot detect Vitamin D Receptor (VDR) problemsSee also:
A poor VDR restricts Vitamin D from getting in the cells
44 studies in the Resveratrol category
It appears that 30% of the population have a poor VDR (40% of the Obese )Health problems include: Autoimmune (
Several diseases protect themselves by deactivating the Vitamin D receptor.Example: Breast Cancer
- - - - - - - -
The Vitamin D Receptor is associated with many health problems
17 studies), Breast Cancer ( 20 studies), Colon Cancer ( 12 studies), Cardiovascular ( 22 studies), Cognition ( 16 studies), Diabetes ( 22 studies), Hypertension ( 6 studies), Infant ( 18 studies), Lupus ( 6 studies), Metabolic Syndrome ( 3 studies), Mortality ( 4 studies), Multiple Sclerosis ( 11 studies), Obesity ( 15 studies), Pregnancy ( 22 studies), Rheumatoid Arthritis ( 10 studies), TB ( 8 studies), VIRUS ( 30 studies), Click here for details
Some health problems, such as Breast Cancer and Diabetes, protect themselves by reducing VDR activation
Suspect that SAR-COV-2 also protects itself from Vitamin D
55 health problems associated with poor VDR
A poor VDR is associated with the risk of 55 health problems click here for details
The risk of 45 diseases at least double with poor VDR as of Nov 2022 click here for details
Some health problem, such as Breast Cancer reduce the VDR
VDR at-home test $29 - results not easily understood in 2016
There are hints that you may have inherited a poor VDR
How to increase VDR activation
Compensate for poor VDR by increasing one or more:
Increasing Increases 1) Vitamin D supplement Sun
Ultraviolet -B
Vitamin D in the blood
and thus in the cells
2) Magnesium Vitamin D in the blood
AND in the cells
3) Omega-3 Vitamin D in the cells 4) Resveratrol Vitamin D Receptor 5) Intense exercise Vitamin D Receptor 6) Get prescription for VDR activator
paricalcitol, maxacalcitol?
Vitamin D Receptor 7) Quercetin (flavonoid) Vitamin D Receptor 8) Zinc is in the VDR Vitamin D Receptor 9) Boron Vitamin D Receptor ?,
10) Essential oils e.g. ginger, curcumin Vitamin D Receptor 11) Progesterone Vitamin D Receptor 12) Infrequent high concentration Vitamin D
Increases the concentration gradient
Vitamin D Receptor 13) Sulfroaphane and perhaps sulfur Vitamin D Receptor 14)Butyrate especially gut Vitamin D Receptor
Note: If you are not feeling enough benefit from Vitamin D, you might try increasing VDR activation. You might feel the benefit within days of adding one or more of the above
Far healthier and stronger at age 72 due to supplements Includes 6 supplements that help the VDR
10 reasons why seniors need more vitamin D has the following
- Senior skin produces 3X less Vitamin D for the same sun intensity
- Seniors have fewer vitamin D receptors as they age
- Seniors are indoors more than than when they were younger
- not as agile, weaker muscles; frail, no longer enjoy hot temperatures
- (if outside, stay in the shade), however, seniors might start outdoor activities like gardening, biking, etc.
- Seniors wear more clothing outdoors than when younger
- Seniors also are told to fear skin cancer/wrinkles
- Seniors often take various drugs which reduce vitamin D
- Some reductions would not show up on vitamin D test
- statins, chemotherapy, anti-depressants, blood pressure, beta-blockers, etc
- Seniors often have one or more diseases which consume vitamin D
- osteoporosis, diabetes, MS, ...
- Seniors generally put on weight at they age - and a heavier body requires more vitamin D
- Seniors often (40%) have fatty livers – which do not process vitamin D as well
- Reduced stomach acid ==>less Magnesium needed to utilize vitamin D
(would not show up on vitamin D test)
- Seniors with poorly functioning kidneys do not process vitamin D as well
(would not show up on vitamin D test) 2009 full text online Also PDF 2009
- Vitamin D is not as bioavailable in senior digestive systems (Stomach acid or intestines?)
- Category Seniors and Vitamin D
386 items
 Download the PDF from VitaminDWiki
Osteoporosis is characterized by low bone mass and microarchitecture deterioration of bone tissue, leading to enhanced bone fragility and consequent increase in fracture risk. Evidence is accumulating for an important role of calcium deficiency as the process of aging is associated with disturbed calcium balance. Vitamin D is the principal factor that maintains calcium homeostasis. Increasing evidence indicates that the reason for disturbed calcium balance with age is inadequate vitamin D levels in the elderly. In this article, an overview of our current understanding of vitamin D, its metabolism, and mechanisms involved in vitamin D-mediated maintenance of calcium homeostasis is presented.
In addition, mechanisms involved in age-related dysregulation of 1,25(OH)2D3 action, recommended daily doses of vitamin D and calcium, and the use of vitamin D analogs for the treatment of osteoporosis (which remains controversial) are reviewed. Elucidation of the molecular pathways of vitamin D action and modifications that occur with aging will be an active area of future research that has the potential to reveal new therapeutic strategies to maintain calcium balance.
PMID: 27790378 DOI: 10.1038/boneres.2016.41
Clipped from PDF
Genes which regulate active vitamin D worsen with age – Oct 2016
- "We and others have noted that renal CYP24A1, which limits the amount of 1,25 (OH)2D3 by accelerating the catabolism of 1,25(OH)2D3, increases with age."
- "In addition, with age there is a defect in 1 α hydroxylation."
- . . "there is also an age-related decrease in renal VDR and TRPV5 expression with age," . .
- "Some individuals, however, do not respond to vitamin D supplementation with an increase in 25(OH)D. The factors controlling this lack of response are unknown."
5130 visitors, last modified 07 Oct, 2019,This page is in the following categories (# of items in each category)Seniors 386 Calcitriol 56 CYP27B1 52
Attached files
ID Name Comment Uploaded Size Downloads 7265 Aging VDR F2.jpg admin 30 Oct, 2016 21:12 18.32 Kb 640 7264 Vitamin D, calcium homeostasis and aging.pdf PDF 2016 admin 30 Oct, 2016 21:11 283.72 Kb 819 7263 Aging VDR F1.jpg admin 30 Oct, 2016 21:10 17.07 Kb 669
- Vitamin D Binding Protein = GC has


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The Democratic Party's new campaign slogan, "Better Deal," even got a tepid and dismissive response from liberals at MSNBC's "Morning Joe" show. If that's not telling, what is?
Remember, the slogan was initially mocked on social media as a copy of the slogan for the pizza chain Papa John's, "Better Ingredients, Better Pizza, Papa John's".


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The 8 Islands is a phenomenal adventure map that comes from Gahlifrex, the same person behind The 8 Portals and Gahlifrex's Void. Both prior maps from Gahlifrex have received a lot of critical acclaim because they gave their players an immersive and exhilarating experience and it seems like this particular map continues the same trend. The 8 Islands promises to give anyone who plays it an engrossing experience from start to finish. If you're looking for an engaging puzzle map that has an intriguing setting and spectacular gameplay, this map should be right up your alley.
Almost all maps have their fair share of flaws, and that's the case with The 8 Islands as well. One thing that we don't really like about this map is the fact it lacks any proper plot, and this is rather unfortunate because the primary highlight of most adventure maps is a well thought out story. However, even though the map lacks a full-fledged plot, it's still a delight to play because it has a very exciting setting and the gameplay is very well constructed. As the name suggests, the map has eight different islands and the objective is to go through all of them while surviving all the challenges that they have to throw at you. The first few levels might be easy to get through but, as you progress through the map, the difficulty will ramp up significantly, and you'll have a pretty hard time trying to make it to the end.
The great thing about The 8 Islands is the fact that it supports multiplayer with up to four players and this not only makes things a lot less difficult but, at the same time, it also makes the gameplay a whole lot more enjoyable because Minecraft is naturally more fun when you have friends playing with you.
How to install The 8 Islands Map?
- Press the Windows or Start button, then press R. This will open the Run prompt.
- Type %appdata% into the prompt and run the command.
- A folder filled with other folders will now open. Just find the Minecraft folder among these and open it.
- In .minecraft you will find another folder, saves. Unzip and move your world file into this folder and you're all done.
Download Link for The 8 Islands Map
for Minecraft 1.10.X
Credit: Gahlifrex


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7 Graces community member Lubna Gem Arielle explains how to protect a catchphrase as a trade mark.
Note from Lynn Serafinn: Sorry for the break in blogging over the past couple of weeks. I've been busy celebrating my 60th birthday! I'll be back on schedule starting next Friday. Until then, I know you'll enjoy this highly informative article from Lubna.
Gwyneth Paltrow unsettled media and the masses when she announced that she and Chris Martin were going to deal with the break-up of their marriage with a 'conscious uncoupling'. The press had a field day, supposing, smirking and jabbing at what this could possibly mean. This vampiric thirst may recently have been quenched a little, as Paltrow announced that she did not invent the phrase.
So, where did this phrase come from? Several years before Paltrow's pronouncement, I heard an online interview with the coach Katherine Woodward Thomas. She mentioned a process, the crux of which was to enable couples to end a relationship without 'turning your soul mate into your soul hate' and she referred to it as 'conscious uncoupling'. The interview stuck in my mind because she also talked about how a graceful parting becomes a hard task once lawyers get involved, and I'd reflected on how the legal process reduces relationships to procedural frameworks and tactics.
Since the press interest in conscious uncoupling, a few articles and news reports have attributed the phrase to Woodward Thomas, and the US Patent Office website shows that she has applied to register 'Conscious Uncoupling' as a trade mark for her coaching business.
To me, this highlights the importance of being clear as to when, whether and how far you can protect phrases you use in the context of your business.
How to protect a catchphrase as a trade mark
In my experience, there is some confusion amongst business owners as to whether and how a snappy catchphrase can be safeguarded against use by others and protected as a business asset. A question I'm often asked is: 'Can I copyright it?' This is a good question, as copyright can protect the written word as a literary work, where it is original and there has been some degree of skill and effort. Unfortunately, a catchphrase will generally be too short to qualify as a literary work.
It may, however, be capable of protection as a registered trade mark, and here's my four-stage guide.
Stage 1: Check that you use the phrase to indicate the source of certain goods or services.
The function of a trade mark is to indicate the source of goods and services (such as 'Google' for a search engine) and is often described as a 'badge of origin'.
A trade mark does not give anyone absolute control and ownership to use a phrase or word throughout the English language, but it can give you an exclusive right to use it in the country or countries of registration for specific classes of good and services set out in an international classification system known as the NICE system. For example, a business coach might provide 1:1 training and corporate training in Class 41, with newsletters and training manuals in Class 16 and recorded and online materials in Class 9.
Stage 2: Check whether anyone else is already using the phrase.
Make sure your phrase really is unique and no one else is already using it – at least not in the countries where you operate. Trade marks are territorial, in that your rights apply in the countries where you have registered a mark. The exception to this is the Community Trade Mark or CTM, which is a single mark effective in all countries within the EU.
To check whether the phrase is in use, search the relevant trade mark registers to see whether there is an existing registration or application. The UK Intellectual Property Office (IPO) and US Patent and Trademark Office (PTO) have a free search facility, and other countries may as well.
If there are existing marks, but in different categories of goods and services, in general, this would not be problematic.
I also suggest checking your phrase on Google or another search engine to get a general flavour of what else is about.
Stage 3: Apply to register.
As trade marks are territorial, applications have to be made on a country by country basis. Application in the UK is via the Intellectual Property Office, or for a Community Trade Mark or CTM via the Office for the Harmonisation of Internal Marks. Other countries have their own national registries.
The practical effects of this are that even if you consider yourself to be 'global' (and, indeed, the Internet means many of us have a degree of global presence), unless you have an unlimited budget, you will have to be selective and strategic in where you register, bearing in mind that in any case, in most countries you can only register a mark where you are actually using it, or will do so within the next 5 years.
In the UK, you can apply directly via the IPO or engage the services of a trade mark attorney.
Stage 4: Look after it!
Once you have a registered trade mark, you must treat it with care. Otherwise, you will be at risk of losing it. You must maintain its essential quality by using it to identify the source of your goods or services, rather than allowing your trade mark to become known as the name for whatever it is you provide. If you do, it will be considered generic and no longer valid as a trade mark. For example, 'Escalator' started out as a trade mark for moving stairways, owned by the OTIS company, but later became used for ALL moving stairways and the OTIS company lost its trade mark.
To prevent this from happening, there are a few key points to keep in mind:
- Use the mark to identify your product, rather than as a substitute for the product name. For example, compare: 'Let's take the escalator' to 'Let's take the ESCALATOR moving walkway'. The first is generic use; the second respects the trade mark.
- Emphasise your wording – use either upper case (as in ESCALATOR) or quotation marks ('Escalator') and use the registration symbol �.
- Don't use it as a verb. Google have experienced challenges with this. To be very precise, we actually 'use the Google search engine to search', but many of us simply 'google' for information. Google has even made it into the dictionary as a verb, but the saving grace is that it is not an ordinary verb for any old searching, but instead refers to a search online using the Google search engine. Had 'googling' referred to any online searching, this would have posed a serious threat to the trade mark.
- Prevent others from misusing your mark. If others are misusing your trade mark – as a verb or to identify any product in your class – you should write them a friendly email or letter, telling them it is your trade mark, how it should be used and asking that they please do so.
Where you come up with a unique catchphrase and use it as part of your business describing products or services that you offer, registering a trade mark will give you limited but exclusive rights to use the catchphrase; but, as mentioned, you will not be able stop others from using that phrase altogether.
Also, if you want to use your phrase 'globally' the process of obtaining 'global' trade mark registration can be time-consuming and costly. Trade marks are effectively the legal part of 'branding', so it makes good sense to check how far a catch phrase is part of the longer-term branding if you decide to register it as a trade mark.
I'd love to know your approach to any catchphrases you use in your business. Have you applied or considered registering them as a trade mark or are you happy for your catchphrases to be in a wider use? Let me hear from you in the comments below.
Until next time,
Lubna Gem Arielle
30 January 2015
References and Further information
How to Classify Trade Marks:
UK Intellectual Property Office (IPO) – free search: http://www.ipo.gov.uk/tmtext.htm
US Patent and Trademark Office (PTO) – free search: http://tmsearch.uspto.gov/bin/gate.exe?f=searchss&state=4808:pyya8h.1.1
Article on Gwyneth Paltrow denouncing the phrase:
NY Times Katherine Woodward Thomas:
Lubna is a graduate of the 7 Graces Foundations of Ethical Marketing course. Contact the 7 Graces Project to find out how you can have this course delivered to members of your organisation.
LUBNA GEM ARIELLE is a lawyer who went back to art school and has a portfolio career. As a legal educator, she lectures on MA programmes at Birkbeck and Sotheby's Institute of Art, makes law accessible for creatives as a professional speaker and trainer and is a writer/presenter for Legal Network Television. She is a legal adviser to Artquest, providing advice to visual artists. In her creative practice, Lubna works with sharing and integrating information, stories and knowledge across real and virtual media. She is also a legal experiential practitioner specialising in outcomes-focused communication with the Personal Communications Academy. Lubna is a graduate of the 7 Graces Foundations of Ethical Marketing Course and member of the 7 Graces Community and the Professional Speaking Association.
CLICK HERE to read other articles by Lubna on this website.
Lubna on Twitter @info_bites
Lubna's Website: #
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LYNN SERAFINN, MAED, CPCC is a certified, award-winning coach, teacher, marketer, social media expert, radio host, speaker and author of the number one bestseller The 7 Graces of Marketing — How to Heal Humanity and the Planet by Changing the Way We Sell and Tweep-e-licious! 158 Twitter Tips & Strategies for Writers, Social Entrepreneurs & Changemakers Who Want to Market their Business Ethically. She is listed in the Top 20 of the Top Marketing Authors on Twitter by Social Media Magazine and was a finalist for the prestigious Brit Writers Awards. She also received the eLit Book Awards Silver Medal in Humanitarian and Ecological Social Affairs, as well as the Bronze Medal in Business and Sales. Lynn's eclectic approach to marketing incorporates her vast professional experience in the music industry and the educational sector along with more than two decades of study and practice of the spirituality of India. Her innovative marketing campaigns have produced a long list of bestselling non-fiction authors through her company Spirit Authors.
Lynn is also the Founder of the 7 Graces Project CIC, a not-for-profit social enterprise created to train, support, mentor and inspire independent business owners to market their business ethically, serve society and planet, and restore all that is best about humanity.
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Most of us love playing old school games on our consoles to revisit our childhood or if you always wanted a game or system that you couldn't get your hands on, like the NEO-GEO. I figure I would list the some of the best game consoles to turn into emulation stations, in my opinion. Now I know the PC's takes the cake when it comes to emulation as most PC nowadays have the power to run all of those great emulators like the Dolphin Emulator (Gamecube & Wii) but I wanted to talk about game consoles that can be turned into an emulation station fairly easy.
Original Xbox
The original Xbox this one of my favorite consoles to turn into an emulation station. Since the original Xbox was once of first consoles to have such a big homebrew community it has all kinds of emulators from NES to N64 and even PS1 games. The process to mod/soft mod the Xbox was very easy, which made even more people and homebrew developers get involved with it. You can visit xboxscene.com to find out even more info about modding the Xbox.
PSP & PlayStation TV
I know the PSP is a handheld and I'm talking about consoles for your entertainment center at home but it's still another great system to play emulators on. It also had a very big homebrew community and once the 2000 model came out you can even play everything on your TV. Then the PSPgo came out and didn't do so good in the US region but the PSPgo is the best to use on your TV since it can use the ds3 controllers, so no more wires. For the 1000 model, you could use a homebrew app called remote joy to get it to display on your PC but in my opinion, the PSP is still one of the easiest handhelds to play emulators & homebrew on and with the right model on your TV too.
The PlayStation TV makes for another great emulation station since it can use almost all the same homebrew and emulators the PSP scene had to offer. Since the PSTV/Vita TV can do epsp and with the use of TN-V, TN-X, Ark, or VHBL you can get the most out of it. There is one downside to using the PSTV as an emulation station as most PSP owners know that there is no two-player mode, for example, CSP1, CPS2, or NEO-GEO are emulators made for just one player just like all PSP games are. Next is getting one on the right FW like 3.20 would be the best since you have the PS1 exploit and be able to play two player games without a problem but 3.52FW will also do. Now that Sony has ended production on the PSTV/Vita TV this might be one of the cheapest home consoles you can turn into an Emulationstation. You want to find out how to hack your PlayStation devices, we have an all-in-one guide you can check out here.
Wii & Wii U
The Wii is yet another great console to turn into an emulation station, in my opinion, it's one of the third biggest homebrew communities for consoles. The Wii was another easy console to mod/soft mod and install the homebrew channel, which would give you access to all kinds of great emulators, homebrew games, and apps.
The Wii U can also use almost everything the Wii homebrew scene has to offer just like the PSP and PSVita/PSTV. Now Loadiine in your Wii U you can really get the most out of it. You want to find out how to mod/hack your Wii/WiiU, we have an all-in-one guide you can check out here.
The Ouya, GameStick, or any Android TV device is very easy to turn into an Emulationstation since its Andriod you can get all of your emulators right from Google play store without having to mod it in any way, well most of them. There is a downside to some Andriod devices as they might lack the real power needed to play some emulators like Dolphin or PPSSPP. For the most part, you can still enjoy a lot of old school system like NES to even Dreamcast games on it. I put together a nice little emulator pack for Andriod devices here.
PS3 & Xbox360
The PS3 and Xbox360 are really great Emulationstation but with both of those consoles you have to do a lot of work to mod them. First, the PS3 needs to have firmware 3.55 to make use of any homebrew or you need to buy a tool to downgrade them like the e3flasher just to put CFW on it. The xbox360 is another one that needs a lot of work to Jtag it or glitch hack it with a modchip and by the time you get done with either of the systems, it might have just been easier to buy a $200 laptop, Andriod device or even a Raspberry pi. For the Xbox360 there's the CR4 XL, its a great solution for glitch hack, you can read more out it here.
My list of the easiest & cheapest consoles to turn into an Emulationstation
- The Android GameStick (if you can still find them for $17 dollars)
- PSP 2000 with TV out. (pawn shops usually sell them for $45 to $60, plus the TV out cable)
- Wii
- PSPgo (might cost a bit as I seen some sell for $90 dollars still, plus the TV out cable)
- Xbox ( only reason it's 5th is it might be hard to find one in working condition but imp it would be #1 )
- PlayStaton TV/ Vita TV
- Ouya or Android TV
- Wii U
- Xbox360


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Hackers now have yet another way to trace your keystrokes – but it's not the physical keyboard with its sturdy, plastic keys that they're now after.
A researcher at Trustwave Holdings Inc. has proved it's possible to log keystrokes from touchscreen-enabled devices, namely devices running the Apple iOS and Google Android operating systems. All a hacker needs to do is install malware on one of these devices, making it possible to watch a user touch a screen.
The hacker can then gain X and Y coordinates for those keystrokes, as well as screenshots from the mobile device. From there, it's relatively easy to deduce what a user's been typing.
So for anyone typing in passwords while doing mobile banking or while accessing sensitive data, this latest piece of research presents some worrying ramifications.
"The fact is that a touchscreen on a mobile device replaces the keyboard and mouse on a physical computer," says Neal Hindocha, senior security researcher at Trustwave. He has been researching this for the past eight to nine months.
"There's a variety of ways you can capture all the touch events and see what the user is seeing on the screen – which now means that any code, any password, anything typed onto the phone is captured by the attacker."
There are several variations of keylogging, he adds. One will just track X and Y coordinates from the touchscreen of a mobile device, and a hacker can take those over to a computer and run an application that will show the coordinates in sequential order. Another type takes screenshots on a timer loop, while another will also take screenshots, except it will do so any time a user touches the device's screen.
However, he notes this isn't something that a hacker can do to every mobile device out there. Keylogging on a mobile device is only really an issue for mobile device users who either jailbreak their iOS devices, or root their Android devices.
The Apple ecosystem is often called "the walled garden" because of the company's very stringent rules on which apps can be allowed into the iTunes App Store and which can't. So to even install an app that carries a Trojan virus with it, or another piece of malware, an iOS user would need to jailbreak his or her device and then download an app from a place like Cydia, an alternative app store specifically for jailbroken iOS devices.
However, it is highly unlikely Apple would allow apps bearing malware into its official store, and the company also discourages users from jailbreaking its products. So although Hindocha had the chance to test keylogging techniques with private application programming interfaces, he says he stopped there as hackers were unlikely to be able to attack someone using a non-jailbroken iOS device in this way.
On the other hand, Android devices are fair game, especially since many device manufacturers welcome rooting – sort of the equivalent of jailbreaking an iOS device, Hindocha says.
And even non-rooted Android devices can be at risk, as users sideloading third-party apps that are not from the official Google Play store can easily install malware, opening themselves up to keylogging attacks, he adds.
While it's unlikely that hackers would launch attacks against millions of devices, seeing as they would need to comb through all of the screenshots and keystroke data to gain anything of value, this is still a concern for people who become hackers' specific targets, Hindocha says.
It may also become an issue for retailers using tablets and iPads as mobile point-of-sales solutions – for example, if restaurant servers were to punch in credit card information on an iPad.
The best way to prevent these kinds of attacks is to ensure everyone is educated about the risks of carrying hacked mobile devices, Hindocha says.
App developers need to ensure the code they're writing is secure, and they need to perform penetration testing on their work.
And on the other side, businesses also need to be aware of the mobile devices their employees are bringing to the workplace, and they should have a solid bring-your-own-device strategy in place, he says. Plus, if they use mobile devices in retail, they need to make sure those devices are compliant.


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Brain Gain even if not by choice
Models of migration come up with an impact of the relative economic conditions in one region versus elsewhere. It's the relative part that's important. Just because things are getting worse here, if things are that much worse elsewhere it will affect migration decisions. The converse is also important. Even if things are doing well here, but if things are super-hot elsewhere, people will still leave. That was probably the case explaining outmigration rates from Pittsburgh in the latter part of the 1990's.
How to measure relative economic conditions? Relative job growth, relative wage levels and other things all matter, but one big question in migration metrics is understanding which factor is causal and not just an effect. Relative unemployment rate seems to be a decent metric for capturing what is driving migration decisions in the near term future. Thus why I have sometimes shown my tracking of the regions unemployment rate relative to the US.
But here is a different picture of how Pittsburgh's unemployment rate compares. I have mapped out the 20 regions which typically attract the most people migrating out of Pittsburgh. The size of the bubbles represents the typical size of the outmigration flow and the color represents the relative rate of unemployment compared to Pittsburgh.
So in 15 of those 20 regions, the unemployment rate is worse than here. We are tied with NY for the moment, but I bet that will change given the carnage in the fiancial industry. Basically, in most of the places where Pittsburgher's usually head off to, things are bad and getting worse. So within all the regular churn in the job market here (much larger than the population change would imply), those folks who might normally be looking for, or at least be amenable, to jobs in other regions are probably finding their job prospects in those other markets to be diminished of late. Thus they stay, even if they are unemployed. Thus our unemployment may go up, but so does labor force. Likewise I bet more than a few people finding economic conditions elsewhere pretty bad are moving here sometimes after they have found a job or even to come back to look for a job.


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The Horror of Fang Rock is a continuation of Skin Crime's fascination with the theme of gothic horror as it relates to 18th and 19th century lighthouses. An audible soundtrack to a tale of terror for an unreleased light house keepers memoir. Dark drones, scarecrow electroniks and nightmare ambience ebb and flow over the entire opus. There are no track titles just a wall of sound to let the listener's own experience fill in the voids of the nightmare of, The Horror of Fang Rock. The recording process involved Skin Crime sending Wilt sound sources through the mail. Wilt would then add sounds and send back for review. This process extended over several months. Once completed Wilt did the final mix and mastering and final art.
The record has been pressed on 180 gr black vinyl with black label and black inner sleeve and comes in a deluxe silver silkscreen on black cardboard in an edition of 199 hand numbered copies plus CD in cardboard wallet and poster.


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8 Holistic Ways to Combat a Cold
'Tis the season where sneezing, coughing, and runny noses rock our worlds. Living in New York City, it's hard to get away from germs considering you're always rubbing elbows with strangers, but I have found a handful of holistic cold remedies especially effective in stopping sniffles in their tracks. Here are some of…View Post


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For at least the past 26 years, the Chicago Marathon has offered pacemakers. This year the rabbits are gone, in hopes of creating more interesting races. The men's elite race starts out conservatively. The women, in contrast, take off from the start at a very fast pace.
Men: A large group of about 14 runners begin slowly, with Americans Fernando Cabada and Luke Puskedra visible in the front. The leaders cover the first mile in 4:58 and 10:05 for two miles.
Women: The women start out more aggressively, with the first mile in 5:14 and a split of 10:36 for two miles. Florence Kiplagat of Kenya, a prerace favorite, and Kayoko Fukushi of Japan, who has a PR of 2:24:21, are part of a lead pack of seven. Americans Deena Kastor and Blake Russell, running together, are 50 seconds back and pass 5K in 17:22.
More From Runner's World
Men: Elkanah Kibet, a U.S. citizen who was born in Kenya, runs a 4:50 split for mile 4 and opens a 12-second gap on the field. It's an aggressive tactic for a man in his first marathon and a half marathon PR of 1:04:01 dating to 2012.
Women: The lead pack of seven stays together at a projected pace of just under 2:20. Five Ethiopians are in the pack, including Birhane Dibaba, 22, the youngest competitor in the women's elite field. They are running alongside a few second-tier men, and those men help shield them from the wind.
Men: Kibet is caught by the pack at roughly mile 9 but he is able to stay with the group. Puskedra, at 6-foot-4, is plainly visible behind the leaders.
Women: The women remain on 2:19 pace. Kastor is back in 10th, on a projected 2:27:48 pace, which is faster than the U.S. masters record of 2:28:40.
Men: The men's pack of 10 continues clicking off mile splits between 4:55 and 5:03. Several men in this pack have PRs that are about five minutes faster, so they're hanging out and watching each other, to see who will make a move first.
Women: The women run their slowest miles of the race, with splits of 5:25 and 5:26. With Fukushi of Japan and Kiplagat of Kenya are five others from Ethiopia.
Men: The men pick up the pace slightly. They're looking at each other, spread out across the road at times, casting glances over their shoulders. All the favorites are still in the field.
Women: Kiplagat moves up to run alongside Fukushi. Dibaba remains strong up front as well. Fukushi then drops briefly to the back of the pack.
Men: Sammy Ndungu moves up to the front, with Girmay Birhanu Gebre in close pursuit. The pace slows and the pack bunches up again. The pace is so pedestrian that Kibet, the early leader, is able to stay with them.
Women: Fukushi returns to the lead.
Men: At 19 miles, a move is made in the men's pack. Dickson Chumba and Sammy Kitwara of Kenya and Abera Kuma of Ethiopia establish a five-second lead. They cover the 20th mile in 4:32 and open up 14 seconds on fourth place.
Women: The pack is down to six women, including Dibaba, Kiplagat, Seboka and Yebrgual Melese, who pull ahead and open up a slight gap on Fukushi. They have slowed to 2:23 pace.
Men: Chumba moves ahead at Mile 22 with a 4:43 split. Kitwara is hanging on two seconds back, but Kuma is losing contact. Puskedra remains visible back in sixth. Chumba opens up an eight-second lead between miles 23 and 24, but he keeps looking back over his shoulder.
Women: Between miles 22 and 23, Kiplagat and Melese open up a gap on the rest of the pack. At 39 kilometers, Kiplagat moves away from Melese and has a six-second lead at 40K.
Men: Chumba is the winner in 2:09:25, 25 seconds ahead of Kitwara. Ndungu and Girmay Birhanu Gebru spint to the finish for third, with Ndungu finishing one second ahead in 2:10:06. Puskedra, the top American, takes fifth in 2:10:24.
Women: Kiplagat, the winner in 2:23:33, stages an unusual finish-line celebration, while Melese finishes 10 seconds back. Kastor is seventh overall and the top American in 2:27:47, a new U.S. masters record.


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Prostate Cancer Treatment Options
Author: Brian Hildebrandt, Last Updated: Sept. 16, 2017
If you're considering prostate cancer treatment options at this point, you probably have a number of unanswered questions.
You may not be sure what to expect or what the future holds for you. It's my hope I can help answer some of those questions, and make you feel more comfortable along the way.
PSA Test Results
Your PSA test results can also be a good measure to help diagnose prostate cancer. In men over the age of 40, the PSA count is used as a routine screening tool as part of your regular physical.
A PSA test is often part of a yearly prostate examination for men.
Gleason Scale
The Gleason scale is a measure of the size, shape, and aggressiveness of your prostate cancer cells, and how far it has spread.
The more virulent your cancer the more invasive the treatments.
You should be aware of the most appropriate prostate cancer treatment options with respect to your Gleason scores.
Some doctors like to get overzealous and go overboard, when a more conservative approache may work better.
Digital Prostate Exam
A digital prostate exam is an important tool your doctor can use to determine any irregularities with your prostate.
Symptoms of Enlarged Prostate
If you've been having problems urinating, it doesn't necessarily mean you have prostate cancer. It may just be symptoms of an enlarged prostate.
Prostate Cancer Warning Signs
Once you have an enlarged prostate ruled out, you can check for any prostate cancer warning signs.
There's some subtle differences you should be aware of, that should be treated seriously. It's not something you want to forget about or ignore, cause it won't go away on it's own.
Stages of Prostate Cancer
The stages of prostate cancer can give you a good idea of your prognosis and survival rates.
Best Prostate Cancer Treatment
The best treatment for prostate cancer is largely dependent on it's severity and rate of growth.
Depending on your test scores – hormone therapy, radiation, surgery, or chemotherapy may be warranted. With the right information in mind, your doctor may then tailor the most appropriate prostate cancer treatment for you.
Prostate Cancer Drugs
There are a number of new treatments for prostate cancer that involve medication. The most useful class of drugs for prostate cancer generally fit within the hormone spectrum (testosterone ablation therapy) or chemotherapy (systemic related cancers).
Prostate Surgery Impotence
If you're considering prostate surgery, you should be aware of the different options available to preserve sexual function both before and after surgery. For prostate surgery impotence there are a number of treatments available to regain sexual function.
Pictures of Prostate Cancer
If you've recently been diagnosed, you may want to get a handle on what the pictures of prostate cancer look like. Learning about the differences between prostate cancer types can make you a more informed and knowledgable patient.
Prostate Diagram
This basic prostate diagram can also give you a better idea of what you're up against.
Being able to visualize what's going on down there is a good way to become an informed patient.
Your questions and fears are warranted. Your doctor may not be an extensive fan of research and therefore may not be up to date with the latest treatment on prostate cancer.
How to Prevent Prostate Cancer
If you want to know how to prevent prostate cancer, there a number of methods you can choose such as nutritional strategies, vitamins and minerals, alternative medicine, prescription drugs, and avoiding environmental chemicals.
If you haven't developed prostate cancer yet, or even if you have, these strategies should help things along.
Survival Rate for Prostate Cancer
The survival rate for prostate cancer is luckily very high, and has among the best cure rates compared to other cancers.
Advocate For Your Treatment Options
While I believe it's best to have your doctor oversee your care, it doesn't hurt to become educated in the process. Discuss your options and make an informed choice for your prostate cancer.


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Arcade bars in San Francisco bring together the best of both worlds: drinking and games. It's a fun place to hang out for anyone who loves the old classic games and, because it's a bar as well, there's no need to worry about sharing the machines with kids. Many of these San Francisco bars have some of the best games that have endured the test of time like Tekken and Street Fighter. Additionally, there are plenty of drink and food options to ensure a good night out. Head to the spots listed below on a weekday or weekend night for a fun, unique night out.
Coin-op Game Room
The Coin-op Game Room is in South Market. It serves specialty cocktails and beers and has more than 50 arcade and pinball games. These games include old classics from the 1980s and 1990s as well as some of the highest ranked pinball machines. Sip on an "It's a Super Smash, Bro" whiskey cocktail while playing a round of The Simpsons arcade game or the limited edition Star Wars pinball game. The food selection is excellent, including a large bucket of fried chicken made with orange honey and a variety of cheesy pizza. The interior is casual and industrial chic, with comfortable seating and a large bar area.
The Brewcade serves craft beers and cocktails and has 21 classic arcade games and pinball machines. Grab some friends and play a round of Tekken or Paper Boy or try the multicade machines are packed with a long list of games. In addition to some drinks, grab a two chicks jerky, which is made with grass-fed beef. The interior is industrial, with polished concrete floors and exposed piping throughout. It's a fun place to test one's game skills while enjoying some beers.
Golden Gate Taproom & Grill
The Golden Gate Taproom & Grill has tons of entertainment and game options, from bar classics like shuffleboard and skeeball as well as arcade games. Play Tekken 6, NBA Jam and many more. It also has air hockey and foosball. There's an extensive drink menu as well as classic bar plates like mozzarella sticks, fried chicken and tacos. For a filling meal, order the Golden Gate Burger, which comes with some hearty chili beans and sour cream. The interior is expansive and airy with high ceilings and industrial lighting. There are exposed brick walls and large windows as well as comfortable red seating throughout.