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John Stone, Senior Attorney, National Legal Research Group
The mass murders committed on the campus of Virginia Tech in 2007 led to wrongful death claims on behalf of some of the victims against multiple defendants, including the Commonwealth of Virginia. Initially the perpetrator shot and killed two individuals in a dormitory and fled that scene. It was not until a little over two hours later, as police were investigating the initial murders and college officials were meeting to determine their responses, that the killer reappeared in another college classroom building and committed the rest of his crimes. About 20 minutes before those later attacks, the University had sent out a campus-wide "blast email" about the first "shooting incident" and the police investigation, and advising students to be alert for anything suspicious. The plaintiffs' theory of recovery was that the defendants owed a duty to the victims, which they had breached by not doing more, sooner, to warn students about the possibility of a shooter on campus. A jury returned a multimillion dollar verdict for the plaintiffs (reduced to $100,000 by the trial court because of a damages cap in Virginia's Tort Claims Act).
The Supreme Court of Virginia reversed the judgment for the plaintiffs. Commonwealth v. Peterson, 286 Va. 349, 749 S.E.2d 307 (2013). In Virginia, as in most jurisdictions, as a general rule a person does not have a duty to warn or protect another from the criminal acts of a third person, especially when the third person commits an assault or physical attack, because such acts cannot reasonably be foreseen. A narrow exception to this principle applies if the plaintiff establishes that there is a "special relationship," either between the plaintiff and the defendant or between the third-party criminal actor and the defendant. Examples include common carriers and their passengers, innkeepers and their guests, and employers and their employees. But, as the court in Peterson noted, these exceptions are very fact-specific, and are not conducive to drawing bright-line rules for all cases.
The absence of such a special relationship often marks the quick end of claims based on a third party's criminal conduct. In Peterson, however, in a sense the plaintiffs crossed that first threshold in that the court was willing to assume, without deciding, that a special relationship existed between the university officials and the slain students. Even so, the court reversed the verdict for the plaintiffs, because the facts taken as a whole did not give rise to a duty to warn the students of the shooter on campus. It was not known, nor reasonably foreseeable, that students faced a risk of injury or death from a mass shooting on campus after officials began investigating the first shooting in the dormitory earlier that morning. Based on such limited information as they had at the time, neither the police officers nor university officials knew who the shooter was, but they initially believed with some cause that the first murder victim's boyfriend, whom they had already questioned, may have been the shooter. Again, based on such information as was available at the time, the officials reasonably believed that the shooter had fled the area and posed no danger to others on campus. That this belief was soon shown by events to be tragically mistaken was not a ground for holding the defendants liable.
The Lawletter Vol 38 No 10
Fred Shackelford, Senior Attorney, National Legal Research Group
Does the economic loss doctrine preclude recovery for negligent misrepresentation? The supreme courts in Kansas and Nevada recently addressed this issue and reached opposite conclusions.
In its original form, the economic loss doctrine prohibited a commercial buyer of defective goods from suing in negligence or strict liability when the only injury consisted of damage to the goods themselves. The doctrine reflected courts' concern that the rise of implied warranties and strict liability for dangerous products would allow tort law to consume contract law. Over the years, many courts extended the doctrine's application beyond the commercial product sphere as a means of preserving distinctions between contract and tort law.
In the Kansas and Nevada Supreme Court cases, the issue was whether the doctrine applied in actions for negligent misrepresentation arising from construction contracts. In Rinehart v. Morton Buildings, Inc., 305 P.3d 622 (Kan. 2013), property owners who had contracted with a builder for a preengineered building sued the builder. They alleged claims for breach of contract and warranty, as well as a claim under the state's Consumer Protection Act. As part of their statutory claim, the owners alleged that the builder had negligently misrepresented that the building would be completed in a timely matter, accommodate the owners' need to relocate its operations, and meet or exceed all industry standards. After difficulties arose during construction over the structure's quality, the owners sued for damages to compensate for shop rent at an alternate facility, lost production, relocation costs, and interest expenses on a line of credit. The builder argued that the economic loss doctrine barred the negligent misrepresentation claim.
The Rinehart court disagreed, concluding that the scope of a negligent misrepresentation claim is narrow enough that it is unnecessary to limit recovery by applying the economic loss doctrine. The court reasoned as follows:
The elements of the negligence misrepresentation tort sets the bounds on the scope of liability by imposing the duty in the limited circumstances when a defendant supplies information to guide others in business transactions in the course of the defendant's business. The tort also limits the universe of those who may pursue such claims to those for whose benefit the defendant supplied the information and whom the defendant intends to influence or knows will be influenced in the transaction. Therefore, the doctrine's second purpose of restricting potential extensive liability to a commercial user "downstream" from the manufacturer does not apply here.
. . . .
We hold negligent misrepresentation claims are not subject to the economic loss doctrine because the duty at issue arises by operation of law and the doctrine's purposes are not furthered by its application under these circumstances. We leave for another day whether the doctrine should extend elsewhere.
Id. at 632-33 (citation omitted).
Conversely, in Halcrow, Inc. v. Eighth Judicial District Court, 302 P.3d 1148 (Nev. 2013), the court ruled that the economic loss doctrine barred a claim for negligent misrepresentation brought by a general contractor against a developer. The case arose out of construction of the Harmon Tower, a mixed-use urban development that was owned by MGM Mirage Design Group ("MGM"). MGM retained an architectural firm and a general contractor ("Perini") to assist with the project. The architectural firm hired Halcrow to design the Harmon Tower and perform other services, while Perini hired Century Steel to install steel for the project. (Century Steel later assigned its contract to Pacific Coast Steel ("PCS").)
Although Halcrow had no contract with PCS, Century Steel, or Perini, PCS and Century Steel were required to follow Halcrow's design and specifications for installing reinforcing steel in the Harmon Tower. Problems arose with the steel installation, which forced the tower to be limited to 26 floors instead of over 40 floors. After construction had been stopped and a flurry of complaints and counterclaims filed and dismissed, PCS and Century Steel sought leave to amend their complaints to include a cause of action for negligent misrepresentation against Halcrow, alleging that Halcrow had owed them a duty to act with reasonable care in communicating information to them about the steel installation. They alleged that Halcrow had failed to conduct timely inspections in accordance with its representations that inspections would take place and that it had erroneously stated that on‑site adjustments would alleviate errors in its plans. Century Steel and PCS therefore contended that as a result of their foreseeable reliance on Halcrow's false representations, Halcrow could be held liable for negligent misrepresentation.
Clarifying the scope of its prior holding in Terracon Consultants Western, Inc. v. Mandalay Resort Group, 206 P.3d 81 (Nev. 2009), the Halcrow court concluded that the economic loss doctrine should be applied in order to protect parties from unlimited economic liability that could result from negligent actions taken in commercial settings. The court stated:
Determining that design professionals have a separate and distinct duty to any subcontractor that must rely on their plans would essentially allow any party to recast their barred negligence claim into a negligent misrepresentation claim. In the context of commercial construction projects, the evidence that would need to be presented in order to prove a negligent misrepresentation claim is almost identical to that which would be necessary in proving a claim for negligence. Allowing one and not the other would create a loophole in Terracon's objective of foreclosing professional negligence claims against commercial construction design professionals and would, essentially, cause the economic loss doctrine to be nullified by negligent misrepresentation claims.
302 P.3d at 1154 (citation omitted).
As the Rinehart and Halcrow cases illustrate, the proper scope of the economic loss doctrine is debatable, and courts may draw different conclusions as to its application to negligent misrepresentation claims. Courts in other states may continue to grapple with this issue as future cases arise.
The Lawletter Vol 38 No 9
Steve Friedman, Senior Attorney, National Legal Research Group
The Trademark Act of 1946, 15 U.S.C. §§ 1051-1141n, commonly known as the "Lanham Act," is intended "to prevent individuals from misleading the public by placing their competitors' work forward as their own." Summit Mach. Tool Mfg. Corp. v. Victor CNC Sys., Inc., 7 F.3d 1434, 1439 (9th Cir. 1993) (internal quotation marks omitted). The purpose of the Act is twofold.
First, it serves the general interest of the public by protecting consumers from false and misleading representations concerning the source, identity, or quality of a product or service. Secondly, the law protects the right of the owner of a trade or service mark to have his or her product or service identified by a distinct name or label. See Industrial Rayon Corp. v. Dutchess Underwear Corp., 92 F.2d 33, 35 (2d Cir. 1937), cert. denied, 303 U.S. 640, 58 S. Ct. 610, 82 L. Ed. 1100 (1938).
Birthright v. Birthright Inc., 827 F. Supp. 1114, 1133 (D.N.J. 1993).
Accordingly, the Lanham Act permits persons to apply to the U.S. Patent and Trademark Office ("PTO") for federal trademark registration of their commercial mark(s), provided that certain parameters set forth therein are satisfied. The general rule is that a distinguishable mark on commercial goods can be trademarked unless the mark falls within one of five specified categories of marks. See 15 U.S.C. § 1052(a)-(e).
One such exception is for a mark that "consists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof." Id. § 1052(b). Despite the seemingly straightforward exception, the City of Houston, Texas, and the District of Columbia ("District") each sought to register its official seal. See In re City of Houston, Nos. 2012-1356, 2012-1418, 2013 WL 5433432 (Fed. Cir. Oct. 1, 2013). Whereas Houston sought to trademark its city seal in connection with various municipal services, including commerce, tourism, business administration, and public utility services, the District sought to trademark its official seal to cover various items such as shirts, pens, cups, and hats.
The PTO had denied both applications, citing § 1052(b), and both decisions were affirmed by the Trademark Trial and Appeal Board. Both municipalities appealed their respective adverse decisions to the U.S. Court of Appeals for the Federal Circuit. The appellate court decided to address the two appeals together because they raised the same question of first impression inthe courts: Can a local government entity obtain a federal trademark registration for its official insignia? Notably, although both municipalities conceded that their subject marks were insignias and argued that § 1052(b) did not preclude their registration, each municipality presented distinct theories to reach the same conclusion. As detailed below, however, the court affirmed the PTO's rejection of both theories.
Houston argued that as a governmental entity, it was not an "applicant" within the meaning of § 1052(b). Although the Lanham Act defines "applicant" to include a "juristic person," which includes any "organization capable of suing and being sued in a court of law," Houston focused on the introductory sentence providing that the Act's definitions apply "unless the contrary is plainly apparent from the context." 15 U.S.C. § 1127. Specifically, Houston argued that the context of § 1052(b) suggests that Congress intended the term "applicant" to mean something other than a governmental entity seeking to register its own seal. Rejecting Houston's argument, the court reasoned that it need not consider the "context" of § 1052(b), given that nothing in the plain and unambiguous language of § 1052(b) suggested that Houston should be exempt from the statutory prohibition. Further, the court refused to add a "silent exemption" to the statute, especially where, as here, Congress has demonstrated that it knew how to express exceptions when it intended to do so. If Houston insisted on trademarking its seal, then it would have to take up its cause with Congress rather than the courts.
The District took a different tack, relying instead on the treaty obligations of the United States, negotiated in the Paris Convention for the Protection of Industrial Property of 1883 ("Paris Convention"), as subsequently modified at Stockholm, T.I.A.S. No. 6923, 21 U.S.T. 1583, 828 U.N.T.S. 303 (July 14, 1967). In relevant part, the Paris Convention provides that "[e]very trademark duly registered in the country of origin shall be accepted for filing and protected as is in the other countries of the Union," Paris Convention art. 6 quinquies (A)(1), but specifically exempts "armorial bearings, flags, and other State emblems, of countries of the Union," id. art. 6 ter (1)(a). Rejecting the District's argument, the court reasoned that even assuming that the Lanham Act was intended to implement the obligations of the Paris Convention, the Paris Convention did not give the District any right relating to its official insignia. The "Union" referred to in the Paris Convention means "the countries that have joined in the treaty" and not "local public bodies such as municipalities." City of Houston, 2013 WL 5433432, at *7. Undisputedly, the District was not a "country of the Union," id., and thus was not entitled to the exemption. Furthermore, the treaty exemption "by its own terms applies only to trademarks that are 'duly registered in the country of origin.'" Id. (quoting art. 6 quinquies (A)(1)). Since the question presented was whether the trademark could be registered in the United States, i.e., the country of origin, invoking the Paris Convention for the answer was circular logic. Moreover, the District's argument that such an interpretation would have the effect of preventing a foreign municipality from obtaining a registered mark in the United States, in violation of the Paris Convention, failed for two reasons. Not only was the question before the court limited to whether the District, a domestic entity, was entitled to register its mark, but the court refused to decide the rights of hypothetical third parties.
Therefore, despite the creative arguments in favor of registration, the Federal Circuit affirmed the PTO's decisions denying both municipal trademark applications. Accordingly, the question of first impression has been answered: A local government entity cannot obtain a federal trademark registration for the entity's official insignia.
April 25, 2013
A tan Infinity hit an unoccupied car in a jewelry store parking lot. The Infinity was driven by a female and carried a male passenger. The driver inspected the car she had hit, spoke briefly with her male passenger, and then drove away without leaving any information. Someone witnessed the incident, took down the Infinity's license plate number, and reported these observations to the Colorado State Patrol.
Two troopers investigated the report, first by running a search on the license plate number of the Infinity and determining that it belonged to a Mr. Kaufman. They also checked the jewelry store's receipt records and found that Kaufman had made a purchase in the store a few minutes before the accident. When the troopers reached Kaufman by telephone, he agreed to allow them to speak with him at his residence later that day.
At the meeting, Kaufman asked the troopers to reveal what they had learned during their investigation. They declined to do so, except to tell Kaufman the name of the owner of the damaged car. Within the troopers' hearing, Kaufman then called the victim and offered to pay for the damage incurred by the victim. The troopers continued to question Kaufman, in particular asking him who had been driving his vehicle on the day of the accident. Citing "privilege," Kaufman declined to identify the driver of his vehicle.
Frustrated by Kaufman's silence, and after consulting a supervisor, one of the troopers presented Kaufman with a choice: reveal the driver's identity or be arrested for obstruction of a peace officer. Kaufman still declined to reveal the driver's identity and was arrested and taken to jail. The charges against him were eventually dropped by the local district attorney's office.
Kaufman filed suit pursuant to 42 U.S.C. § 1983, alleging violations of his Fourth and Fifth Amendment rights. The defendant troopers moved for summary judgment on the ground of qualified immunity. In opposition to the summary judgment motion, Kaufman argued that he had been subjected to a false arrest in violation of his Fourth Amendment rights, because Colorado's obstruction statute does not criminalize a refusal to answer police questions during a consensual encounter (as opposed to questions following a valid arrest). (Kaufman eventually dropped his argument that the defendants had infringed his Fifth Amendment rights by retaliating against him for having asserted his Fifth Amendment privilege.)
The district court granted the defendants' motion for summary judgment, concluding that there had been no false arrest, because the troopers had had probable cause to believe that Kaufman's silence, accompanied by an assertion of privilege, constituted a violation of the obstruction statute. Kaufman v. Higgs, Civ. Act. No. 10-cv-00632-LTB-MEH, 2011 WL 3268346 (D. Colo. July 29, 2011). In an appeal by Kaufman, the Tenth Circuit Court of Appeals reversed, holding that the shield afforded by the qualified immunity defense was not available to the troopers, because their arrest of Kaufman for obstruction of a peace officer was objectively unreasonable under the facts of the case and established case law. Kaufman v. Higgs, 697 F.3d 1297 (10th Cir. 2012).
The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. To defeat an assertion of qualified immunity in a summary judgment motion, a plaintiff must properly allege a deprivation of a constitutional right and must further show that the constitutional right was clearly established at the time of the violation. However, it weighs in a plaintiff's favor that in a summary judgment motion, courts construe the facts in the light most favorable to the plaintiff as the nonmoving party.
For false arrest claims in particular, in determining whether the law was clearly established at the time of the alleged violation—as is required to defeat an assertion of qualified immunity—courts require the § 1983 plaintiff to show that it would have been clear to a reasonable officer that probable cause was lacking under the circumstances. In Kaufman, the troopers lacked probable cause to make an arrest for obstructing a peace officer in violation of Colorado law after Kaufman had refused to disclose the identity of the person who was driving his vehicle when it was involved in the hit‑and‑run incident. The refusal to answer questions during a consensual encounter, expressed through silence and an assertion of privilege, was not an "obstacle" to the officers' investigative efforts.
The Colorado statute under which Kaufman was arrested provides, in pertinent part, that
[a] person commits obstructing a peace officer . . . when, by using or threatening to use violence, force, physical interference, or an obstacle, such person knowingly obstructs, impairs, or hinders the enforcement of the penal law or the preservation of the peace by a peace officer, acting under color of his or her official authority[.]
Colo. Rev. Stat. § 18-8-104(1)(a) (emphasis added). The troopers conceded that Kaufman's conduct did not amount to the use or threatened use of "violence," "force," or "physical interference," leaving only an argument, rejected by the appellate court, that there was probable cause to believe that Kaufman had used or threatened to use an "obstacle" that impeded them from carrying out their duties.
An "obstacle" is "a thing that blocks one's way or prevents or hinders progress." Oxford New English Dictionary 1211 (3d ed.). Silence accompanied by an explanation of the basis for that silence does not obstruct anything, and, in fact, it is hardly "a thing" at all. It is a null action that simply maintains the status quo. Kaufman's silence did nothing to the investigative efforts of the police, allowing them to continue unimpeded. They were able to continue putting questions to Kaufman, they could have sought out other members of his family for questioning, and they could have even sought to compel Kaufman to answer their inquiries with a grand jury subpoena.
The Lawletter Vol 38 No 1
Anne Hemenway, Senior Attorney, National Legal Research Group
Many considerations come into play before an entity or individual files for bankruptcy relief. Included among them is the careful consideration the potential debtor must give to other nonbankruptcy claims or lawsuits to which it is, or may be in the future, a party. If it goes forward as a debtor, it must avoid the pitfall of having the doctrine of judicial estoppel preclude it from seeking future relief in a nonbankruptcy court.
Judicial estoppel is an equitable doctrine applied at the discretion of the court. New Hampshire v. Maine, 532 U.S. 742 (2001). The primary purpose of the doctrine of judicial estoppel is to protect the integrity of the judicial process and to guard the judicial process against improper use. Milton H. Greene Archives, Inc. v. Marilyn Monroe, LLC, 692 F.3d 983, 993 (9th Cir. 2012) (the doctrine is invoked because of "general considerations of the orderly administration of justice and regard for the dignity of judicial proceedings and to protect against a litigant playing fast and loose with the courts" (internal quotation marks omitted)). The fundamental requirement for the application of judicial estoppel is that the party against whom estoppel is asserted must be assuming a position of fact inconsistent with a stance that that party has taken in prior litigation. Bland v. Doubletree Hotel Downtown, Civ. No. 3:09CV272, 2010 WL 723805 (E.D. Va. Mar. 2, 2010). Judicial estoppel is most often applied where in its schedules the debtor has failed to disclose assets or contingent assets to the bankruptcy court but then later pursues a known claim in state court. In re Knight-Celotex, LLC, 695 F.3d 714 (7th Cir. 2012); Guay v. Burack, 677 F.3d 10 (1st Cir. 2012).
The specific elements of judicial estoppel are (1) the party to be estopped must be advancing an assertion that is inconsistent with a position taken during previous litigation; (2) the position must be one of fact instead of law; (3) the prior position must have been accepted by the court in the first proceeding; and (4) the party to be estopped must have acted intentionally and not inadvertently. Love v. Tyson Foods, Inc., 677 F.3d 258 (8th Cir. 2012). Importantly, judicial estoppel requires that the party adopting the inconsistent positions must have acted with some intent in doing so.
In Bland, the court held that judicial estoppel applied where the debtor had failed to properly disclose a claim in her bankruptcy proceedings. Even though the debtor had actually amended her petition to include the claim against the defendant hotel, she stated that the claim's value was only one dollar. The court stated:
While the Court would be receptive to the conclusion that Bland neglected to initially include the Doubletree claim in the bankruptcy proceeding as a result of inadvertence where she amended her petition upon supposedly learning for the first time of the necessity for doing so, the Court cannot ignore or discount the undisputed fact that she valued the claim at such a negligible amount while seeking a bounty in this litigation. The Court simply cannot tolerate such purposeful action.
2010 WL 723805, at *5. The court held that the debtor's later Title VII claim against her employer was barred under the doctrine of judicial estoppel because of her failure to disclose the contingent or unliquidated claim in her bankruptcy case and because her actions were not inadvertent.
Truth be told, being pulled over by the police is not one of my favorite activities. When I am pulled over, however, I am respectful of the officer and his authority. Do I have a legal right to mouth off to the police? Certainly. See City of Houston v. Hill, 482 U.S. 451, 461-63 (1987) ("The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers."; in fact, that "is one of the principal characteristics by which we distinguish a free nation from a police state"). Would talking back to the officer help my situation? No—just ask Eddie Ford. See Ford v. City of Yakima, 706 F.3d 1188 (9th Cir. 2013).
As Ford was driving to work late one night, listening to music, he noticed a police car approaching rapidly from behind him. After he tried and failed to get out of the way of the police car, Ford abruptly stepped out of his vehicle at a traffic light and asked Officer Urlacher, the driver of the police car, why Ford was being followed so closely. Officer Urlacher told Ford to get back in his car and go. As the parties drove through the intersection, Officer Urlacher turned on his cruiser's lights and pulled Ford over. During the traffic stop, Ford let it be known that he believed that the traffic stop had been racially motivated. A verbal exchange ensued, with Officer Urlacher essentially informing Ford that if he would stop talking and cooperate, he might just be issued a ticket for violating the municipal noise ordinance but that if he kept running his mouth and "copping" an attitude, he would be going to jail. Officer Urlacher was persuaded by a backup officer who had arrived on the scene to take Ford to jail.
While en route to the booking facility, Ford invoked his right to free speech, to which Officer Urlacher responded by asserting his right to arrest Ford. Significantly, however, Officer Urlacher elaborated on his motivation for the action, commenting to Ford, "You talked yourself—your mouth and your attitude talked you into jail." See id. at 1191. Although Ford was prosecuted for violating the municipal noise ordinance, he was ultimately acquitted of the charged offense.
Ford then commenced a civil lawsuit against Officer Urlacher and the City of Yakima, alleging First Amendment retaliation by their booking and jailing him following his verbal criticism of Officer Urlacher.
The Ninth Circuit reversed the district court's grant of summary judgment in favor of the defendants and remanded the case so that Ford's claims could proceed to trial. Initially, the appellate court observed that Ford's speech, criticizing the police for what he felt was a racially motivated traffic stop, fell "squarely within the protective umbrella of the First Amendment." Id. at 1193. Under Ninth Circuit law, even where probable cause existed for an arrest, the arrest is nevertheless categorically unconstitutional if retaliation was a but-for cause of the arrest and the officer's actions would chill a reasonable person's First Amendment activities. Viewing the evidence in the light most favorable to Ford, a rational jury could find that both such elements were satisfied in this case.
Finally, the court held that in 2007, when the events in question took place, the relevant law was clearly established such that Officer Urlacher was not entitled to qualified immunity. "Police officers have been on notice at least since 1990 that it is unlawful to use their authority to retaliate against individuals for their protected speech." Id. at 1195 (citing Duran v. City of Douglas, 904 F.2d 1372 (9th Cir. 1990)). In 2006, the Ninth Circuit had held "that an individual has a right to be free from retaliatory police action, even if probable cause existed for that action." Id. at 1195-96 (citing Skoog v. County of Clackamas, 469 F.3d 1221 (9th Cir. 2006)). Accordingly, "[a] reasonable officer would have understood that he did not automatically possess the authority to book and jail an individual upon conducting a lawful arrest supported by probable cause" simply because the individual mouthed off. See id. at 1196.
Tim Snider, Senior Attorney, National Legal Research Group
It has been established that an excessive award of punitive damages may violate due process. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 417 (2003). To aid the lower courts in determining whether an award of punitive damages may be so excessive as to violate due process, the Supreme Court has announced punitive damages "guideposts." The Court, however, has never held that the punitive damages guideposts are applicable in the context of statutory damages. Among the statutes that authorize the recovery of statutory damages is the Copyright Act, 17 U.S.C. § 504(c). The recovery of statutory damages is authorized in cases of infringement, because proof of actual damages can be very difficult.
An illustrative case is Capitol Records, Inc. v. Thomas-Rasset, 692 F.3d 899 (8th Cir. 2012). There, the defendant used a computer file-sharing program to download and share copyrighted musical performances without the consent of the copyright owners. Using a forensic service, the owners located and identified the defendant as the person who had initiated the unauthorized copying and file-sharing of the recordings. At trial, the plaintiffs were awarded substantial statutory damages in an amount that was well within the limits of damages authorized by the statute. A prevailing copyright-infringement plaintiff can elect to recover either actual damages or statutory damages. In Capitol Records, the plaintiff elected to recover statutory damages. The defendant argued that the district court should apply a standard of due process to the award of statutory damages analogous to awards of punitive damages.
The court of appeals was unpersuaded for several reasons. First, as noted earlier, the Supreme Court has never applied the due process limitation on punitive damages awards to the recovery of statutory damages. Second, due process prohibits excessive punitive damages because elementary notions of fairness require that a defendant be made aware of the penalties to which he or she might be subjected if he or she engages in the unlawful conduct at issue. This concern about fair notice does not apply to statutory damages, because those damages are identified and constrained by the authorizing statute.
Finally, the guideposts for the award of punitive damages announced by the Supreme Court would be nonsensical if applied to statutory damages. It makes no sense to consider the disparity between "actual harm" and an award of statutory damages when statutory damages are designed precisely for instances where actual harm is difficult or impossible to calculate. The availability of statutory damages is intended to have much the same deterrent effect on unlawful conduct as do punitive damages in other contexts. The amount of the award of statutory damages is up to the jury, so long as the amount does not exceed the amount authorized by statute (not less than $750 nor more than $30,000 per infringement, except in the case of willful infringement, when the court may increase the award to up to $150,000 per infringement).
The appellate court in Capitol Records found that an award of $9,250 per infringement was well within the statutory allowance and thus should be affirmed. The court probably was not well disposed to the defendant's arguments when it was determined during discovery that the defendant, after having received a cease-and-desist letter, had replaced the hard drive on her computer with a new hard drive that did not contain the copyrighted files. In many, perhaps most, copyright infringement cases, proving actual damages is so difficult that plaintiffs elect to claim statutory damages. If willful infringement is proven, courts are often favorably disposed to augment the jury's award of damages by a substantial amount.
The Lawletter Vol 37 No 12
Dora Vivaz, Senior Attorney, National Legal Research Group
Initially, under the civil rights laws the Equal Employment Opportunity Commission ("EEOC") was not itself empowered to bring suit. In 1972, the law was amended to provide for suits brought directly by the EEOC, but only after an investigation; a determination of reasonable cause; and an attempt to resolve the matter by informal methods of conference, conciliation, and persuasion. 42 U.S.C. § 2000e(5)(b). Since that time, the courts have been in agreement that a conciliation attempt is at least a condition precedent to suit by the EEOC. See, e.g., EEOC v. Radiator Specialty Co., 610 F.2d 178, 183 (4th Cir. 1979). However, as the court noted in a recent case, the circuits appear to be split as to the standard that should govern the court's inquiry into whether the conciliation obligation has been satisfied. EEOC v. St. Alexius Med. Ctr., No. 12 C 7646, 2012 WL 6590625, at *1-3 (N.D. Ill. Dec. 18, 2012).
In an early decision, the Tenth Circuit noted that the statutory language is mandatory and concluded that it was inconceivable that anything less than good-faith efforts is required. EEOC v. Zia Co., 582 F.2d 527, 532-33 (10th Cir. 1978). By the same token, it found that the court need not examine the details of offers and counteroffers between the parties. Although the court quoted language from the Conference Report on the law, which indicated that it was contemplated that the EEOC would "continue to make every effort to conciliate" and that it would file suit only "if conciliation proves to be impossible," id. at 533 (quoting 118 Cong. Rec. H1861 (Mar. 8, 1972)), the standard the court seemed to impose was simply a showing of "some effort" to conciliate and of "notice of the breakdown" of the effort. Id. at 532-33. The Sixth Circuit put forth a similar standard, adding that the EEOC is under no duty to pursue further conciliation if an employer rejects its offer. EEOC v. Keco Indus., 748 F.2d 1097, 1101-02 (6th Cir. 1984).
Both the Eleventh and Fifth Circuits have imposed a somewhat more specific and more stringent standard, requiring the EEOC to (1) outline for the employer the reasonable cause for its belief that the law has been violated; (2) offer the employer an opportunity for voluntary compliance; and (3) respond to the employer in a reasonable and flexible manner. EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1259 (11th Cir. 2003); EEOC v. Klingler Elec. Corp., 636 F.2d 104, 107 (5th Cir. 1981). These courts have found that the underlying question is the reasonableness and responsiveness of the EEOC, considering all the circumstances. The Fifth Circuit, in contrast to the Tenth and Sixth Circuits, specifically concluded that the court is required to make a thorough inquiry into the facts of the conciliation efforts in order to properly evaluate whether the EEOC has satisfied its duty.
Although the Ninth Circuit has not yet weighed in on the question and the district courts have variously applied both the deferential standard and the three-part test, in a recent case one district court focused on the duty to respond to the concerns of the employer in a reasonable and flexible manner and to provide the employer with an opportunity to confront all the issues. EEOC v. High Speed Enter., No. CV-08-01789-PHX-ROS, 2010 WL 8367452, at *5 (D. Ariz. Sept. 30, 2010). In order to satisfy those duties, the EEOC must also provide sufficient information about the basis of any charge such that the employer will be able to fully participate in the conciliation process. After reviewing the cases and noting that the Seventh Circuit, like the Ninth, had not yet chosen sides on the issue, the district court in St. Alexius Medical Center determined that it need not choose between the two standards, because under either standard the pleadings did not indisputably establish that the EEOC had satisfied its obligation. Accordingly, the court held that the EEOC was not entitled to judgment on the pleadings, which was the sole issue before the court.
The Lawletter Vol 37 No 10
Paul Ferrer, Senior Attorney, National Legal Research Group
Parties who secure a favorable judgment in federal court may be happy with the outcome but should not forgo seeking their recoverable costs as well. The Federal Rules of Civil Procedure specifically provide that "[u]nless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney's fees—should be allowed to the prevailing party." Fed. R. Civ. P. 54(d)(1). The threshold question for any court prior to awarding costs under Rule 54(d) involves a determination of who the "prevailing party" is in the lawsuit. In general, a party prevails for purposes of Rule 54(d) when a final judgment awards it "substantial relief." Smart v. Local 702 Int'l Bhd. of Elec. Workers, 573 F.3d 523, 525 (7th Cir. 2009). A party that gets substantial relief prevails "even if it doesn't win on every claim." Slane v. Mariah Boats, Inc., 164 F.3d 1065, 1068 (7th Cir.), cert. denied, 527 U.S. 1005 (1999).
In Sommerfield v. City of Chicago, No. 06 C 3132, 2012 WL 5381255, at *2 (N.D. Ill. Oct. 31, 2012), for example, the plaintiff was determined to be the prevailing party because the jury had returned a verdict in his favor on two counts, awarding him $30,000, even though the jury had found against him on a third count and two other counts had been dismissed at the summary judgment stage. Sommerfield also exemplifies the concept that "a determination of who is the prevailing party for purposes of awarding costs should not depend on the position of the parties at each stage of the litigation but should be made when the controversy is finally decided." Repub. Tobacco Co. v. N. Atl. Trading Co., 481 F.3d 442, 446 (7th Cir. 2007) (quoting 10 Charles A. Wright et al., Federal Practice and Procedure § 2667 (3d ed. 2006)); see also Smart, 573 F.3d at 525 (a "final judgment" awarding substantial relief is "one that resolves all claims against all parties"). In Republic Tobacco, the court held that a party that had succeeded on a posttrial motion in having damages awarded against it reduced from $18.6 million to $7.44 million was not a prevailing party that could recover its costs in the district court under Rule 54(d). 481 F.3d at 446-47.
The Lawletter Vol 37 No 9
The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1482, is a federal law designed to ensure that children with disabilities have the same opportunity to receive a free appropriate public education ("FAPE") as nondisabled children do. See id. § 1400(d). Once a child has been identified as being disabled within the meaning of the IDEA, see id. § 1401(3), a school district must create an individualized education program ("IEP") for the child in order to provide the requisite FAPE, see id. § 1414(d). If the school district fails to supply a FAPE, the child's parents may seek tuition reimbursement for the child's placement in a private school. See id. § 1412(a)(10)(C).
An IEP is "a written statement that sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (internal quotation marks omitted). If a parent does not believe that the school district's proposed IEP meets this standard, the parent may file a due process complaint with the appropriate state agency and ultimately may seek judicial review of the administrative decision. See 20 U.S.C. § 1415(b)(6).
Given the nature of the IDEA and its review process, IDEA cases tend to be quite fact-intensive. See Haw. Dep't of Educ. v. M.F. ex rel. R.F., 840 F. Supp. 2d 1214, 1225 (D. Haw. 2011). Accordingly, the evidence presented in the administrative hearings is crucial to the outcome of a disputed IDEA matter. See J.L. v. Mercer Is. Sch. Dist., 592 F.3d 938, 949 (9th Cir. 2010) (judicial review under the IDEA is less deferential than in most administrative cases).
In a recent IDEA case, the U.S. Court of Appeals for the Second Circuit was faced with the question of whether what it termed "retrospective testimony"—testimony that certain services not expressly listed in the IEP would have been provided to the child if he or she had attended the school district's proposed placement in the public school system—could be used to rehabilitate an allegedly deficient IEP. See R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167 (2d Cir. 2012).
Although this case was a matter of first impression in the Second Circuit, the court noted that three other circuit courts of appeals had addressed similar issues in the IDEA context and that all three had expressed a distaste for retrospective evidence. See id. at 185 (citing Adams v. Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999) ("[W]e examine the adequacy of [the IEPs] at the time the plans were drafted."); Carlisle Area Sch. v. Scott P., 62 F.3d 520, 530 (3d Cir. 1995) (holding that an IEP must be judged prospectively from the time of its drafting); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990) ("[A]ctions of school systems cannot . . . be judged exclusively in hindsight. An IEP is a snapshot, not a retrospective.")).
Ultimately, the Second Circuit agreed with the majority view on the issue.
[W]e hold that testimony regarding state-offered services may only explain or justify what is listed in the written IEP. Testimony may not support a modification that is materially different from the IEP, and thus a deficient IEP may not be effectively rehabilitated or amended after the fact through testimony regarding services that do not appear in the IEP.
. . . .
We now adopt the majority view that the IEP must be evaluated prospectively as of the time of its drafting and therefore hold that retrospective testimony that the school would have provided additional services beyond those listed in the IEP may not be considered [in the due process] proceeding.
Id. But cf. id. at 188 (excepting any amendments made to the IEP during the statutory 30-day resolution period once a due process complaint has been filed).
The Second Circuit observed that in order for parents to make an informed decision about a school district's proposed IEP, as contemplated by the IDEA, it is necessary for them to have sufficient information about the IEP; because the written IEP is the only source of information for parents, it creates "considerable reliance interests for the parents." Id. at 186. "By requiring school districts to put their efforts into creating adequate IEPs at the outset, IDEA prevents a school district from effecting this type of 'bait and switch,' even if the baiting is done unintentionally." Id.
In so ruling, however, the court rejected the parents' proposed "four corners" rule, which would strictly prohibit any testimony that goes beyond the face of the written IEP; rather, the court adopted a rule that would permit evidence to explain and/or justify the services expressly listed in the IEP.
For example, if an IEP states that a specific teaching method will be used to instruct a student, the school district may introduce testimony at the subsequent hearing to describe that teaching method and explain why it was appropriate for the student. The district, however, may not introduce testimony that a different teaching method, not mentioned in the IEP, would have been used. Similarly, if a student is offered a staffing ratio of 6:1:1, a school district may introduce evidence explaining how this structure operates and why it is appropriate. It may not introduce evidence that modifies this staffing ratio (such as testimony from a teacher that he would have provided extensive 1:1 instruction to the student).
The prospective nature of the IEP also forecloses the school district from relying on evidence that a child would have had a specific teacher or specific aide. At the time the parents must decide whether to make a unilateral placement based on the IEP, they may have no guarantee of any particular teacher. Indeed, even the Department cannot guarantee that a particular teacher or aide will not quit or become otherwise unavailable for the upcoming school year. Thus, it is error to find that a FAPE was provided because a specific teacher would have been assigned or because of actions that [a] specific teacher would have taken beyond what was listed in the IEP.
Id. at 186-87.
© 2014 National Legal Research Group


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It is possibly the most beautiful ceremonial honor that can be bestowed. However, it can't be bought by money, privilege, or position. It can only be earned.
There is a group of men and women in Northwest Wyoming who often travel hundreds of miles to perform the ceremony, for free. It is a last goodbye, and a thank you for a job well done. It is the military funeral honors ceremony.
It's performed for every veteran who has served in war or peace, free of charge. It is a tribute from other veterans.
On a sunny, windy winter day, a man who served in the Navy for 44 years is laid to rest. Gerald Haugen was 75 when he died in a car accident. The men and women in the honor guard are not paid. Some have to take off work, but they do this for free.
VFW Post 2673 Honor Guard Commander Bill Buntyn said, "We have some real bad weather here in Cody, and sometimes twenty below zero, but we still go out and take care of our funerals and our veterans that passed away."
The group is always graveside before the funeral, perfecting dress uniforms, practicing formation. The veteran's nephew, Rick Haugen, serves in the honor guard in North Dakota. He asked if he could perform in his uncle's ceremony in Cody.
Honor Guard member, Rick Haugen said, "It's the only think I know. It's the one thing I can offer."
Army, Navy, Marines, Air Force, and the National Guard are represented here. They include veterans of every major conflict since and including WWII. Jack Allen has served in the honor guard for 55 years.
Amazingly, they do this for themselves.
Army Veteran, Larry Baker explained, "I was very seriously wounded when I was in Vietnam, and spent several months in hospitals and rehabilitation. It's very therapeutic to me to be able to go out and shoot and be on the honor guard."
They do it for the veteran.
Navy Veteran Clint Campbell said, "I believe anybody who has served in the past deserves this."
They do it for the family.
Buntyn hands the folded flag from the casket to the widow. He whispers a private tribute. He said, "It's the most honorable thing that a veteran can do is to present the flag to the widow of the fallen veteran. It's the most honorable thing that I can do in my lifetime."
Any veteran who has served in wartime or peace is eligible for the military funeral honors. The members of the Cody VFW Post 2673 are not paid, but the post takes donation for uniform costs.

subset: commoncrawl


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Join TCIA Now!
TCIA is now searching for SRT Workshop Instructors for 2014. Please read the pre-requisites to see if you qualify for the position:
Pre-requisites: Must be a CTSP in good standing, have a certificate for the Tree Climber Specialist module of the Tree Care Academy, and be an experienced SRT production climber.
2014 Workshop Locations: North Carolina, Texas, New England, Pennsylvania, and Northern California. Additional locations may be added, depending upond demand.
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Training Program in Cellular, Biochemical and Molecular Sciences
Students in PIBBS and in any of the PIBBS-affiliated Ph.D. programs will have the opportunity to apply for membership in a research training program sponsored by the National Institutes of Health (NIH) with two main goals: 1) to foster an interdisciplinary approach to biological and biomedical research; 2) to introduce students to methods of computational biology used to analyze complex data sets.
Students in the Research Training Program will come from a broad variety of disciplines to provide exposure to a broad range of research areas and to acquaint students with peers and faculty in other disciplines who can serve as potential consultants and collaborators. Each student will belong to one of the PIBBS-affiliated Ph.D. programs, participate in all the designated activities of that Ph.D. program, and participate in the following additional activities:
- A course emphasizing computational biology applied to genetics and/or human disease; these courses will introduce students to methods for analyzing the information in the human genome or for assessing disease risk associated with human behavioral, environmental, or genetic factors.
- A seminar composed of research presentations by all participating students
- Special advisement and mentoring by faculty and senior students
- Social activities designed to strengthen interpersonal relationships that may lead to interdisciplinary consultation and collaboration
For further information regarding this Training Program you may contact Joyce Perez at firstname.lastname@example.com.
Training in Developmental Biology, Stem Cell Biology and Regeneration
Many of the most intractable diseases of our day result from a failure of the body to regenerate damaged tissue. Studies of basic developmental biological mechanisms, combined with an understanding of stem cell biology and differentiation, may lead to novel approaches to treat these diseases. From NICHD, we are awarded with a T32 grant that can cover predoctoral trainees, to help us provide unified training in mechanistic studies of fundamental developmental processes combined with training in the biology and application to stem cell technology.
For further information regarding this Training Program you may contact Lisa Doumak at email@example.com.
CIRM Training Program In Stem Cell Biology
The Keck School of Medicine of USC, with support from the California Institute for Regenerative Medicine (CIRM), has established a comprehensive graduate training program in stem cell biology. The training objectives are to engage trainees in mentored laboratory research and to offer learning experiences in both independent research and in collaborative multi-disciplinary research teams which explore basic principles of organ assembly and organ renewal, translating knowledge into new therapies. CIRM trainees are expected to attend the annual Stem Cell/Development Biology Retreat, Stem Cell/Development weekly talks, CIRM annual meeting in San Francisco, and to enroll in and complete two required courses.
For further information regarding this Training Program you may contact John Johnson at email@example.com.
Southern California Clinical and Translational Science Institute (SC CTSI) Training Award
The Southern California Clinical and Translational Science Institute (SC CTSI) provides training and education programs that draw on the expertise of our partners and USC faculty members to meet the needs of a wide range of individuals interested in clinical translational research.
The SC CTSI ECDE program has funding through the National Institutes of Health (NIH), to award up to four pre-doctoral candidates (those enrolled in a MD or PhD program at USC) each year. TL1 Trainees will be provided an opportunity to acquire and refine the core knowledge and skill sets needed to become future clinical translational investigators and be taught the skills to complete a grant that would have a high probability of being funded.
The goal of this two-year program is to teach the scientific competencies to perform clinical and translational research, including research in health problems of diverse populations in order for students to become independent clinical translational scientists. The TL1 pre-doctoral training program provides learning opportunities in clinical and translational research methodologies for graduate students enrolled in an MD or PhD degree-granting program at the University of Southern California. Students are selected through a rigorous application process based on their academic standing, interest in a clinical and translational research career, the merit of a research proposal relevant to human health and the strength of the mentorship.
The CTSI is supported by an award from the National Institutes of Health with a thematic focus on research that will improve health of diverse populations in urban environments. The program will provide multi-disciplinary, team-based clinical and translational research education to a select group of doctoral students. These students will acquire the scientific competencies necessary to perform clinical and translational research, including research in health problems of diverse populations. Students will have dual mentorship from their doctoral advisor and a clinical translational research mentor.
For further information regarding this Training Program visit the Office of Education, Career Development, and Ethics (ECDE) website or send email to firstname.lastname@example.com.


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TeddySmith Posted:
Box was damaged and tank flange was slightly bent. Proper part and great follow up system while aiting for it to become available for order
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Great tank, but really poor packing by CCI (not J&P's fault). Had to be returned because of dents. Got me another really quick.
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Overall the tank was not bad with the exception of the dash mounting tabs being welded in the wrong spot, with a little cutting, re-locating and welding it all worked out and once the body work and paint are applied it looks pretty good.
xxxviperxxx Posted:
overall tank looks good, the only problem is the dash mount kit doen't line up with the welded on tabs from the tank, grinding them off and moving them to the right spot helps, then the fun part of going through all the little pieces that come with the kit (no diagram)and then the chrome dash radius doesn't match tank, some back and forth grinding and you can get it pretty close
jakerose Posted:
I have not painted and installed the tank yet, but it looks to be of good quality. The tank fits my bike well and is of heavy construction.
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dexter23 July 19, 2011
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I would love to say that every project I do for the first time works out perfectly as planned, but it doesn't…in fact, it rarely does. But I am flexible and usually figure out how to turn it into something else useful.
The goal of the original project was to make a roll-up crayon caddy for my 2 year old niece. I looked at a few patterns online and came up with a plan (which I didn't write down of course) and somehow when I cut my fabric, got it totally wrong. Ok, so I was really not paying attention and I actually don't even remember how big my fabric was supposed to be….
But when all was done and sewed, I quickly realized that the crayons were dwarfed by the height of the fabric caddy. And there was a 9th (and smaller) space at the very end that I didn't need since exactly 16 regular size crayons, or 8 jumbo crayons fit in the first 8 spaces. I should mention here that I am a little neurotic and things have to work out evenly, so a 9th space is not acceptable!
So this is what it looked like. Yeah…
But…in no time I figured out it that while this roll up caddy was totally inadequate for crayons, it was awesome for colored pencils! And my 10 year old niece!
So this is what I came up with…and as a bonus, that extra space was PERFECT for a pencil or a skinny sharpie, which you always seem to need when you are drawing! I could not have planned this project any better. I could have just lied and said that I meant to do this, but I believe in full blog disclosure. And I know I am not the only one who screws things up…I am just willing to admit it! :)
So, I should also mention here that I kind of messed up the velcro tie because I wasn't paying attention (again, I know!)…it should have been sewed it into the main piece instead of sewing it as an add-on later. But I will fix that mistake on the "Roll up Colored Pencil Travel Caddy – take 2″, which I will post (and hopefully with a tutorial) when I intentionally make this next time.
Until later, happy sewing!


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Skip down to main content.
Thomson Airways this week announced that all its long-haul flights will be scheduled exclusively on the 787 for the rest of the summer.
As the first UK airline to only fly long-haul on the 787, Thomson Airways will give thousands of customers from across the UK the chance to experience the revolutionary new aircraft en-route to destinations like Mexico and Mauritius.
Today sees the unveiling of a limited edition range of beachwear and beachbags created by leading British designer Jonathan Saunders as part of a collaboration with Thomson. The products have been designed and released as part of the celebrations marking the opening of the exclusive 5* Thomson Sensatori Resort Jamaica, which opened on 1 May.
29th April, 2014: Today marks the official opening of Thomson's sixth five star Sensatori Resort in Jamaica. Located in one of the Caribbean's most sought after postcodes and set on the beautiful seven mile beach in Negril, the luxurious hotel offers swim-up rooms, fine dining and tranquil massage huts on the beach.
Summer 2015 is shaping up to be a fantastic season for Thomson and First Choice with an exciting new line-up of exclusive properties opening for the first time, available to book from 24th April. New from May 2015, guests will be enjoying new, exclusive and luxurious Thomson Sensatori Resorts in Ibiza, Turkey's Dalaman region (Fethiye) and Cyprus, as well as new Thomson Couples hotels in Italy and Croatia and further afield, a new First Choice SuneoClub in Thailand.
In a UK first, Thomson is calling upon its Facebook community to help crowd source the dream destination wedding for one lucky, loved-up couple this September.
World renowned British fashion designer, Jonathan Saunders, has teamed up with leading holiday company Thomson to create a limited edition range of beach wear and beach bags for women and men. He has also designed and accessorised a bespoke pool area at the new 5 star Sensatori Resort Jamaica set on the beautiful seven mile beach in Negril, which will open on 1 May this year.
Awe inspiring stunts showcase Thomson Cruises' new Jamaican home port
25 February, 2014 - Olympic medalist, Yohan Blake takes on world renowned freerunners in a new film from Thomson Cruises, to promote its 2014 and 2015 sailings from Montego Bay, Jamaica.
Leading holiday company Thomson has today announced the launch of new hotel concept Thomson Scene, aimed at 25 – 35 year old customers looking for vibrant, exciting nightlife while staying in stylish hotels in quieter parts of the resorts.
TUI UK&I today announced that Helen Caron has been appointed as the new Managing Director of Cruise
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My first episode of depression occurred at 15 or 16. It did not get diagnosed and I was perplexed by my behavior. Shortly after I began to drink. I know now I was self medicating.
By 19 I was finally diagnosed with depression by a local MD. He put me on Prozac 20mg. Not a therapeutic dose. As I found out a few years later when I applied for the CHP and was denied due to taking Prozac. They asked me to get off my med and reapply. I was devastated that now this condition might keep me from my goal of being a police officer. Up until then I had received no information on depression and I was unaware I had a mental illness. The 80s wasn't as enlightened.
Fast forward.
It got worse. Yet no psychiatrists helped. I could not find help with what I didn't even understand. So I kept drinking and added speed to help with down times. It was an addictive marry go round for 20 years of my youth with no real professional help.
I managed until I hit 41 when I was flat lined and could no longer hold on to my job. At that time I went on SSD and am still disabled today. The solution for me has been to quit alcohol and drugs. Join a support group. I finally found a wonderful therapist and shrink who have been with me 18 years now. It's important to seek professional caring help.
I have gone thru the gamut of medications. I've had my ups and downs finding the right combo for me. Yet we did do it after years of adjustments. I will always be on an anti depressant as I have never done well when we tapper off. And at times a new med must be added or taken away. It's a balancing act.
My secret is attitude. If I can be grateful and accepting of the good and seemingly bad. If I thank God for my daily condition. If I keep up a healthy mental conversation while monitoring my negative inputs I do better.
Over the last 40 years my depression has not left but I am able once again to enjoy what I have. Life can be doable and enjoyable with time and lots of effort. Best of healing to all. It can happen. I'm happy today. Looking forward to life.
That is so true. After I was diagnosed with Bipolar in 1993 and learned about Depression, I can pinpoint those blues...


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Is Justin Bieber now a Calvin Klein underwear model?
A source told the Daily Mail that Justin Bieber "has shot for Calvin Klein" and that they "hope the results will be […]
David Beckham: "Pretty soon I'll hang my underwear up"
David Beckham takes a dip into swimwear in latest collaboration with H&M. The ex-footballer talks trunks at a private pool party in London.
Man arrested at JFK for attempting to smuggle heroin in underwear
U. S. Customs & Border Protection agents stopped a man who allegedly tried to smuggle in more than 1.5 pounds of heroin in his underwear.
Massachusetts women sue underwear companies over slimming claims
A pair of Massachusetts women have filed a class action lawsuit against an underwear company alleging that it made false slimming claims.
Oklahoma man charged with 'atomic wedgie' murder of stepfather
A 33-year-old Oklahoma man has been charged with killing his stepfather by giving him an "atomic wedgie, " causing the victim to suffocate on his own underwear.
PHOTO: New mom gets slammed for posting racy post-baby selfie
New mom gets slammed for posting racy post-baby selfie
The Word: Miley Cyrus tweets provocative photos
In response to all the post-VMA criticism, Miley Cyrus shows she DGAF by tweeting racy pics.
The Word: 'Star Trek Into Darkness' producer is sorry for Alice Eve's underwear scene
"Star Trek Into Darkness" producer Damon Lindelof has heard fans' complaints about the film's gratuitous female skin. And he thinks they're right on the money.
Gossip: Justin Bieber says he 'makes mistakes' after scuffle with neighbor
After a pretty lousy month — starting with the "worst birthday" ever and culminating with this weeks' reported feud with his neighbor — Justin Bieber is speaking out on his own behalf.


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Persistence of business cycles in multisector real business cycle models
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Volume (Year): 2 (2006)
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Pages: 181-197
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Cited by:
- Veroude, Alexandra, 2012. "The Role of Mining in an Australian Business Cycle Model," 2012 Conference (56th), February 7-10, 2012, Freemantle, Australia, Australian Agricultural and Resource Economics Society 124473, Australian Agricultural and Resource Economics Society.
- Mathä, Thomas Y. & Pierrard, Olivier, 2011.
"Search in the product market and the real business cycle,"
Journal of Economic Dynamics and Control, Elsevier,
Elsevier, vol. 35(8), pages 1172-1191, August.
- Mathä, Thomas Y. & Pierrard, Olivier, 2009. "Search in the product market and the real business cycle," Working Paper Series, European Central Bank 1036, European Central Bank.
- Thomas Y. Mathä & Olivier Pierrard, 2008. "Search in the product market and the real business cycle," BCL working papers 32, Central Bank of Luxembourg.
- Thomas Y. MATHA & Olivier PIERRARD, 2009. "Search in the Product Market and the Real Business Cycle," Discussion Papers (IRES - Institut de Recherches Economiques et Sociales) 2009019, Université catholique de Louvain, Institut de Recherches Economiques et Sociales (IRES).
- Ilaski Barañano & M. Paz Moral, 2013.
"Consumption–Leisure Trade-Offs And Persistency In Business Cycles,"
Bulletin of Economic Research,
Wiley Blackwell, vol. 65(3), pages 280-298, 07.
- Moral Zuazo, MarÃa Paz & Barañano Mentxaka, Ilaski, 2007. "Consumption-Leisure Trade-offs and Persistency in Business Cycles," BILTOKI, Universidad del PaÃs Vasco - Departamento de EconomÃa Aplicada III (EconometrÃa y EstadÃstica) 2007-05, Universidad del PaÃs Vasco - Departamento de EconomÃa Aplicada III (EconometrÃa y EstadÃstica).
- Ben-Gad, Michael, 2012.
"The two sector endogenous growth model: An atlas,"
Journal of Macroeconomics, Elsevier,
Elsevier, vol. 34(3), pages 706-722.
- Ben-Gad, M., 2009. "The two sector endogenous growth model: an atlas," Working Papers, Department of Economics, City University London 09/02, Department of Economics, City University London.
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Hey Gentlemen,
My name is Sasha Steel, I'm a southern girl at heart!
I'm here to fulfill your deepest fantasies.
I'm a sweet and playful girl who loves to spoil and tend to your every need.
I like to be dominate but know how to be submissive at the right time — for those of you boys who like being punished *wink* I can be your mistress.
My best assists are my Breast and my 9.5 Cock.
I'm 5'7 135 with 38D's and I always work out often! I'm an ex track runner and cheerleader very flexible! ;)
I am one of the newer girls so I only get better with time, just like wine.
I love to be spoiled and my drink of choice is Champagne! Oh and I have a sweet tooth like no other! Ha!
I provide a very safe, clean, and healthy environment — and I expect the same from you.
I am Fully functional Hormone FREE!
100 % discretion guaranteed!!!!!
So if your ready for an unforgettable ride, get in contact with me.
*I also travel all over the USA (all accommodations expected to be taken care of)!
Im a nice person by nature and easy to get along!
I look forward to meeting you!!
Catching Elephant is a theme by Andy Taylor
My name is Sasha "Longwood" Steel, I'm VERY open minded
and willing to try your fetish's, fantasies etc….
I'm seductive and give great appeal…..
I'm also down to earth so never feel shy, nervous, or unsafe…..
Brazilian/BLACK bombshell
((((100% Real Pictures))))
No Fuss… I HAVE 9.5 fully functional pole thats WHY IM THE BEST! 5'7 130lbs 38D bust firm toned petite figure


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Pink practice
Readers' comments (1)
There very much is a silent 'T in LGBT', as a transgendered person myself working in the legal sector albeit not as a lawyer, i go to great lengths to keep this side of my life a secret despite living as a woman outside of working hours and have had to jump on the gay bandwagon just to explain my plucked eyebrow,long hair etc.
This is because i know full well that 'the boys' might just overlook what you do behind closed doors in terms of sexuality but are they prepared to back you up in a meeting room when you stand out from all the grey suits....think again. At my previous employer who prided itself on its diversity, a very brave transexual friend suffered as any assocition or support of her implied latent empathy and were associated as a member of that diversity group so everybody just took the mickey.HR laughed and dismissed it as office banter and the transexual left the firm,sadly.
A bloke in a dress is subject to open ridicule and sniggers no matter how passable you think you are,where as private life is just that. No openly gay lawyers/proffesional of either gender sport a skinhead and check shirt as the stereo type would suggest for lesbians or a floaty pink shirt and a limp wrist for men, its the visibilty of transgenderism thats ridiculed and that will always be, despite advances in surgery and hormone therapy.
Cest la vie and we just have to accept it, no matter how much my mascarra runs with tears!


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After Six
Elegant After Six Bridesmaid Dresses at Perfectbridal.com
After Six by the Dessy Group offers bridesmaid dress styles that are elegant, contemporary and stylish. You can choose from over 80 gorgeous dresses, including tea-length dresses and traditional gowns that affordably priced. Explore all After Six gowns at Perfect Bridal.
After Six Bridesmaid Dress - style 6651Price: $171.00
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After Six Bridesmaid Dress - style 6646Price: $157.00
After Six 6646 Quick DeliveryPrice: $167.00


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Canon 7D (beta) full-size high ISO concert pictures from Paris!
Alors! A Parisian photographer (named after Rod Stewart) has taken a beta Canon 7D to a concert and has returned with some full-size real-world high ISO concert pictures. The band performing was Muse. Check them out at Le Hiboo. To see the full-size, simply click on the link that says "Téléchargez ce sample" below each picture that has the "Photo prise avec un CANON EOS 7D BETA" in-picture caption. Even the City of Light runs out of light, and then you have to use high ISO :-)
Thanks to Fabrice (flickr gallery) for the tip!
Beta suggests that the production cameras are still further down the horizon. Of note, Amazon has ran out of pre-orders. It's not often that pre-orders sell out (whatever that means!). However, other retailers continue to accept pre-orders.


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2014 Season Dates: June 1st-September 21st
Our current published rates for all inclusive family vacation packages through the 2014 Season at Colorado Trails Ranch. You can make instant reservations through the form on any page of our website, or by calling the Colorado Trails Ranch office at 877.711.7843.
Rates are calculated per person, double occupancy, and are based on full-week ranch vacations spanning from Sunday to Sunday. This rate covers meals, accommodations, on-ranch activities and programs, as well as a staff service charge that frees guests from worrying about tips or gratuities.
You can check in at any time between 3:00pm and 5:30pm on your arrival Sunday. This will allow you and your family to check in and get settled in your cabin before dinner. Your first Colorado Trails Ranch event is our welcome to the ranch dinner, which begins at 6:30pm. This includes introductions, an ice cream social event, and a vacation orientation explaining what the week ahead features.
Expected check out time the following Sunday is at 9:30am.
Come celebrate our 53rd season with us!
Our guests during the 2014 Season can take advantage of our reduced anniversary year rates. In addition to those savings, we've cooked up some great limited time special savings packages. Visit our Rates Page to learn the details.
Partial-Week Stays:
- Based on availability, partial week reservations are be accepted. These reservations must begin on Sundays with a three night minimum.
- The weekly rate is divided by 7, times the number of nights.


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Kick up your holiday gathering with this classic Manhattan.
Looking for a sweet escape from the summertime heat? Try this refreshing spin on a longtime Southern classic.
Extra virgin olive oils, balsamic vinegars, and pastas, lots to choose from.
Catch Emeril as he travels throughout Florida. Thursdays at 9:30 AM ET


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Get Ready for Excitement, Prepare for the Challenge!...
This year's event will feature action and excitement at the Arena all day long!
Saturday evening will feature a return of the Laser Show. That's right... your favorite music paired with intense lasers projecting images in the woods and sky around CubWorld. Don't miss it.
That's right! Join us on the stage and show us how talented YOU are! We are looking for Scouts with talent who want to perform on the stage at Peterloon. If you have a talent that you could reproduce on stage, we invite you to submit an audition video to our YouTube Channel ("Peterloon's Got Talent" - coming soon). Videos will be voted on and top Scouts will receive and invitation to perform at Peterloon as well as a special prize. Show us how your stuff - enter the "Peterloon's Got Talent" event today!


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I used BT items from INSD May2014. (some are recolored)
Thanks for the Template :)
Great template, I'll see what I can do with it :)
created using You Are My Sunshine by LyllahRaven Designs
mom to 5 boys, married 19 years to one patient man
All the layouts are wonderful. I love seeing all the little personal additions each of you have made. Sorry to not have commented sooner. Recovering from surgery...but looking at all the challenge layouts has truly inspired me.
Thank-you for this great template and for running this challenge link to gallery http://www.godigitalscrapbooking.com...he-sea&cat=514
Great template. Thanks for hosting.
Here is my page


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- You are here:
- roll-over
We love action movies as much as the next guy, but sometimes the car stunts just look too ridiculous. Like when a cop car goes airborne during a chase scene after rear-ending a parked car. Or how about when a vehicle flips end over end upon impact. That never happens, right? Well it apparently ...
Automakers are legally required to install stability control to all new cars and trucks for sale to the public, but as of yet, there is no such law for commercial tractor trailer trucks. That may soon change, however, as the Associated Press is reporting that The National Highway Traffic Safety ...


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Genetics, Evolution and Environment MPhil/PhD
Research areas:
- Biodiversity and Environmental Biology
- Biology of Ageing
- Computational Biology
- Evolutionary Genetics
- Evolution and Development
- Human Genetics and Human Evolution
- Systems Biology
Visit the IRIS research portal to learn more about researchers' activities, research groups, research centres and interdisciplinary networks across the whole of UCL.
IRIS department: Div of Biosciences
Entry requirements
A minimum of an upper second-class UK Bachelor's degree in an appropriate subject or an overseas qualification of an equivalent standard, or a recognised Master's degree in an appropriate subject.
English level expected: Good
ApplicationResearch degrees may start at any time of the year, but typically start in September. Deadlines and start dates are usually dictated by funding arrangements so check with the department or academic unit (contact listed in Next steps, right) to see if you need to consider these in your application preparation. In most cases you should identify and contact potential supervisors before making your application. For more information see our How to apply page.
- UK/EU Full-time: £4,500
- UK/EU Part-time: £2,250
- Overseas Full-time: £20,900
- Overseas Part-time: £10,450
Across the division there are three Wellcome Trust four-year programmes and one MRC four-year programme; MRC, BBSRC four-year PhD, BBSRC quota and CASE three- and four-year studentships; NERC; and others. There may also be funding opportunities through individual research grants as well as through other programmes such as those offered by CoMPLEX.
Further information about funding and scholarships can be found on the Fees, Costs and Funding page.
Full details of funding opportunities can be found on the UCL Scholarships website
Recent graduates have taken up academic posts at various universities and research institutes across the glove at UCL, King's College London, Universites of California, Michigan, Bristol and Dundee and the Muséum national d'Histoire naturelle, Paris. Others have entered professional occupations with organisations such as the Zoological Society of London, Natural England and GlaxoSmithKline.
Top career destinations for this programme
- Understanding Animal Research, Policy and Communciations Officer, 2013
- Mathys and Squire, Trainee Patient Agent, 2012
- Horizon Discovery, Scientist, 2011
- UCL Genetics Institute (UGI), Post Doctoral Research Associate, 2011
- Museum National D'Histore Naturelle, Post Doctoral Research Fellow, 2011
Graduates of our research programmes have followed a diverse range of careers including working in industry in the UK and abroad, science communications officers for charities and in conservation, editorial positions with scientific journals, and postdoctoral researchers in universities and research institutions.
The department maintains tight links with external organisations such as the Natural History Museum, the London Zoo and the Kew Gardens. These organisations are partners in the MRes in Biodiversity, Evolution and Conservation with is coordinated by our department. Such links provide excellent networking opportunities. The department organises visits and seminars of internationally renowned scientists and graduate students have the opportunity to find out and be insipred from reseach carried out in other universities and organisations in with they might choose to further pursue research careers.
Next steps
Ms Manu Davies
Genetics, Evolution and Environment
Register your interest
Keep up to date with graduate news from UCL and receive personalised email alerts. Register your interest
Make an application
Prospectus subject
Genetics, Evolution and Environment
Faculty overview
Student View
"I have attended several conferences/seminars both internally and externally, which have provided excellent opportunities for meeting other researchers in my field. This has been invaluable both for discussing current research and for future opportunities/research areas."
Antonia Ford
Degree: Biological Sciences
Staff View
"I enjoy the continual interaction with people of a high intellectual calibre from many different disciplines. At UCL one is in the centre of things"
Dr Jonathan Chubb
Subject: Molecular Cell Biology (Laboratory for), Faculty: Life Sciences


text:
Throw your sticks and your stones, throw your bombs and your blows
But you're not gonna break my soul!
This is the part of me that you're never gonna ever take away from me
This is a shout-out to all the members of this fandom who stood by these characters and their story even with all the hate. It doesn't matter who you ship. It doesn't matter If you're a fanartist, fanfic author, or just a fan. It doesn't matter whether your support started from the beginning or only yesterday. Every single one of you guys is amazing and I'm proud to be part of this fandom.
Spread the Frozen love!
Thank you so much penwarrior11 Thank you for sticking up for me. *hugs*


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Ottawa's Competition Bureau said Monday it will look into the US$40-billion merger between Lafarge SA and Holcim Ltd., both of which have extensive operations in Canada.
Competition Bureau spokeswoman Mélanie Beauchesne said in an email that "I can confirm that the Bureau in currently reviewing Holcim's proposed acquisition of Lafarge ... (to) determine whether (it is) likely to result in a substantial lessening or prevention of competition."
The Bureau must be given advanced notice of a merger if the assets in Canada generate over $82 million in revenues and when the assets exceed $400 million.
Lafarge said in a statement Monday that as part of a vast program of asset sales, the new entity would divest itself of the Holcim assets in Canada to address possible objections by regulators.
Together Holcim and Lafarge employ about 9,000 people in Canada.
The two European giants agreed to merge on April 7.
Seeking antitrust backing for their merger in Europe, the companies on Monday outlined an initial list of assets for sale to cut the importance of Europe to 20 per cent of combined revenue and win regulatory backing.
European plants earmarked for divestment span sites from Austria to Serbia, including assets in France, Germany and Romania. Outside the region, disposals will include sites in Canada, Mauritius and Brazil.
Holcim Canada spokeswoman Junaina Saulat did not return calls seeking comments.
Luc Papillon, president of Ciment Québec, which could be interested in some Holcim assets, was not available for comment Monday.
As part of a program of asset disposals, Anglo American PLC will sell Lafarge its stake in a tarmac and aggregates venture for at least US$1.5 billion as a prelude to Holcim and Lafarge divesting most of that business, the companies said in a statement.
"We have received a lot of interest, which is above expectations if I listen to our bankers," Lafarge chief executive officer Bruno Lafont said on a call. "It's the first time in the history of the industry that such a large number of assets is for sale to anticipate the requirements of the regulatory authorities."
The French and Swiss companies plan to complete the merger in the first half of 2015, with Europe accounting for the bulk of the divestments as the region has the biggest overlap.
The proposed disposals announced Monday represent 10 per cent of the US$40 billion in combined sales of the two cement groups and are a major part of what will be divested to satisfy antitrust regulators, Holcim CEO Bernard Fontana said on the call.
LafargeHolcim will start talks with suitors immediately, Lafont said, adding that more buyers may come forward now that a list of asset is public. LafargeHolcim already received about 50 "marks of interest" from financial and industrial buyers, Fontana said.
Announcing a list of planned European sales helps to ease the merger's evaluation process with regulators, Fontana said. Lafarge and Holcim are in preliminary discussions with EU authorities about filing for approval, a prerequisite for the plan to create the world's largest cement company. The two companies will make their official filing to regulators this summer, Fontana said.
Paris-based Lafarge has operations in Quebec, Nova Scotia, Ontario and Western Canada, while Swiss-based Holcim has plants mostly in Quebec and Ontario.
The cement industry has recently generated controversy in Quebec.
The $1-billion McInnis Cement project in Gaspésie was announced just weeks before the April 7 Quebec general election, a plan that some observers dismissed as an electoral ploy by then-premier Pauline Marois to get votes in Quebec's highest unemployment region.
The Parti Québécois government championed the project launched by the high-profile Bombardier-Beaudoin family, committing $350-million to the venture, through a $100-million equity investment and $250-million loan.
The Cement Association of Canada denounced the project as unnecessary, arguing that the industry in Quebec is already saddled with unused capacity.
Laurent Beaudoin, chairman of Bombardier Inc. and of investment group Beaudier Inc., an investor in the contested project, was not available for an interview Monday.


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Credits & Info
- Uploaded
- Jun 27, 2009 | 12:51 PM EDT
- Daily Feature June 27, 2009
- Weekly 2nd Place June 30, 2009
Related Stuff
If you liked this, check these out!
Plenty more like this here!
Adult Toons You won't catch these on a Saturday morning! This humor is for perverted grown-ups only!
Author Comments
This movie is a hentai parody of Teen Titans featuring Jinx, Cyborg, Raven and Starfire. Even though this is a parody, it is extremely sexually explicit in nature and is for viewers aged 18 and over.
*edit* Wow, thanks for the frontpage, NG! Wasn't expecting that at all, so thank you very much.
*edit 2* Thank you everyone for your votes and helping this get to number 1 on the top NG submissions of all time (although it probably won't be there for much longer!)
Rated 5 / 5 stars June 4, 2014
Raven and starfire should have their own... just saying.
Rated 5 / 5 stars May 27, 2014
and lastly we all fall in our sex changes... DAMNIT STARFIRE
Rated 4 / 5 stars May 26, 2014
Starfire's lesbian now.
Rated 5 / 5 stars May 22, 2014
One of the best
Rated 5 / 5 stars May 17, 2014


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Andy's Frozen Custard
Inside Block 37
108 N State St.
Chicago, Il 60601
Mon-Fri: 10:00 a.m. – 7:00 p.m.
Sat: 10:00 a.m. – 6:00 p.m.
Sun: Closed
|Price Range:
Cups & Cones: (Variable depending on toppings)
Concretes, Sundaes & Malts: $4-$7
Desperate for something cool and sweet to escape the over 100 degree heat, we spotted Andy's Frozen Custard and dashed in.
There was only one fellow behind the counter but it was close to closing time and there was hardly anyone else around, so I suppose it should have been expected. We stared at the menu for a while trying to decide what to get and he started chatting with us – about the menu, about the store, and his recommendations.
A small Midwest chain, Andy's is an old-fashioned style shop offering a small but specialized menu of frozen custard made fresh daily. The frozen custard is close to ice cream but much more dense, very rich and with an especially creamy texture. In addition to serving plain custard they also serve custard sundaes and mixes.
The specialty items all sounded fantastic, making it difficult to make a choice. Ultimately I chose Andy's Ozark Turtle with vanilla custard and Adam got the Stolen Brownie Sundae with chocolate custard. Eagerly we watched through the windows as he blended the custard and toppings. We took our sweets and retreated to the closest tables to sample them.
My Ozark Turtle was vanilla custard topped with hot fudge, creme caramel, roasted pecans and cherries, while Adam's Stolen Brownie Sundae had brownie chunks blended into the chocolate custard which was then topped with hot fudge, roasted pecans and cherries.
Both sundaes were just as delicious as they sound – even if the custards themselves were fairly standard the toppings paired well to create rich, delicious sundaes. While very rich we didn't find either sundae to be overly so. The pecans added a crunchy contrast to the smooth, thick custard and hot fudge. Even though we both ordered smalls the portions were generous. Finally, we both appreciated that due to its unique thickness and texture, the custard takes a long time to melt – even in the 100+ degree heat with hot fudge on top.
Andy's Frozen Custard is by no means the best – the chocolate and vanilla flavors left something to be desired – but they are still tasty enough to qualify as a good option when you're seeking a sweet summer escape.
What's your favorite summer sweet treat? Let us know below in the comments! We've got a few more pictures of our visit in our Andy's Frozen Custard Photo Gallery, why not check it out and Like us on Facebook while you're there?
Update: Andy's Frozen Custard is moving, so as soon as we have the new address we'll update this post.
Verdict: A Sweet Treat on a Hot Day
Andy's Frozen Custard offers delightful treats with a rich, thick custard base and a substantial collection of toppings – you can build your own or order one of the specialty combinations off the menu. The custard itself has a great texture and is not overly sweet, however the flavors are pretty standard – not amazing. The toppings really make the dish, so choose wisely.