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Frequently asked questions about flying-foxes
On this page:
What can I do to reduce the impacts of living near flying-foxes?
Deterring flying-foxes
If you experience an individual or small group of flying-foxes feeding at night in your fruiting or flowering trees and shrubs, including palm trees, this will be ongoing until the fruit is finished. If you do not want flying-foxes feeding in your backyard, you could remove the fruit manually or properly net the tree to make access for the flying-foxes difficult. Only use netting with holes smaller than you could fit your finger through to prevent the flying-foxes getting tangled. Find more information about netting on the Wildlife Friendly Fencing website.
There are simple, non-harmful deterrents which may be of assistance at your property, such as:
- creating visual/sound/smell barriers with fencing or hedges using plants that do not produce edible fruit or nectar-exuding flowers
- placing predator decoys (eg, owls) on verandahs or in trees
- keeping food or habitat trees in your yard trimmed and pruned
- Placing reflective or shiny deterrents (eg, cds or aluminium foil strips) in tree branches
- when landscaping, plant fruit or habitat trees away from the home, or don't use these plants at all.
Residents are not allowed to conduct flying-fox removal or dispersal activities, so these actions are only able to be used in locations prior to flying-fox camps establishing. If a camp has been established, residents are reminded that any activities that may result in the disturbance of a roosting flying-fox colony or individual flying-fox can result in prosecution under the National Parks and Wildlife Act 1974.
Flying-foxes are noisiest when the flying-foxes leave their camp early in the evening to feed and when they return in the early morning. They continue being noisy as they fly around trying to find a roost. During the day they can fight and bicker like children over a favoured spot, usually trying to find one as close as possible to water. Unfortunately, this is a daily event while the camp is active.
When flying-foxes are stressed or frightened they make a lot more noise. Colonies tend to be noisiest when they are disturbed by people and least noisy when left alone. If you plan on making some noise near a camp, such as mowing the lawn, you can expect the flying-foxes to get rowdy for a while.
Try to be considerate if you are visiting an area with a flying-fox camp - do not disturb the animals, and help keep noise to a minimum.
Humans have different sensitivities to smells. Not all people will find the smell of a flying-fox camp difficult to live with. This may explain why residents sometimes find it difficult to get others to understand how much impact the odour has on their daily life.
The main odour associated with flying-foxes is the scent male flying-foxes use to mark their territory and is strongest at the camp. It is not associated with the faeces dropped during flight or around the camp. The most important thing to note is that the odour is not a risk to human health.
Predicting relief from the smell
The smell is usually at its strongest during hot, humid and still or low-wind days. Good rain will wash away the smell for a period of time. The wind direction will often also determine when the odour will be at its most difficult. Residents may find it useful to follow the weather forecasts and relate them to the high-odour days. This will help to predict when there may be some relief.
Managing the smell within the home
Planting vegetation with fragrant flowers can assist with masking camp odour. Fragrant deodorisers can assist within the home and it helps to close all windows and doors. Obviously this can be a problem on hot days. Where possible, use air conditioning on a recirculate option (where the air is drawn from inside the home rather than outside) or use fans to circulate internal air.
Flying-foxes excrete either during flight or by turning heads-up and holding onto a branch by their thumbs. The flying-fox digestive system is much faster than a human system (12 to 30 minutes between eating and excreting). They often don't physically chew and swallow their food – they crush it against the roof of their mouth and spit it out after swallowing the juice. This primarily liquid diet contributes to their quick digestive system.
Faecal drop increases under flying-fox foraging routes, or when they are disturbed and airborne for longer periods of time. Lighting assists flying- fox navigation and increases fly-over, so where possible, turn off outdoor lighting at night.
Drying your clothes outdoors
Residents will experience the greatest impact from faeces 'bombs' on washing as the flying-foxes fly over when they are leaving their camp in the evening or arriving in the morning. It is useful to note the approximate times the flying-foxes leave and return in relation to the sunrise and sunset, to gain some level of control to know when to ensure washing is brought in off the line. Some residents in other regions have constructed tarpaulin coverings over their clotheslines to protect their washing.
To remove flying-fox faeces from washing, treat them like fruit stains. Soak the item as soon as possible (preferably while the stain is still wet) in a good stain remover. Unfortunately, some fruits with strong coloured flesh (eg, mulberries) may leave a permanent stain.
Cars and other painted or outdoor surfaces
Some residents have reported that flying-fox faeces seem to strip paint from cars, houses and garden furniture. There is some information to suggest that this is more likely due to the faeces drying and peeling off a surface and, especially if the underlying paint is older, lifting off a patch of the surface paint with it. Flying-fox droppings are less corrosive than bird droppings, and the best response is to remove the faeces as soon as possible with soapy water, as you would for bird droppings.
Swimming pools
If your pool has a filter system installed already and you follow the correct maintenance for your pool, this will be adequate to keep it clean and you shouldn't have to take any extra action specifically to address flying-fox faeces. If you're experiencing a large volume of faeces, a pool cover is an option, but in general, flying-fox faeces are no different to bird droppings landing in your pool.
Water tanks
Read the below: Can I drink the water from my rainwater tank?
Can I get sick from flying-foxes?
Human infections from viruses borne by flying-foxes are very rare. There are no confirmed cases of anyone ever getting sick by touching flying-fox faeces, urine or blood, but of course you should still wash your hands after touching anything like that.
- Do not attempt to touch or handle live or dead flying-foxes.
- Only trained, vaccinated bat handlers should attempt to catch injured or sick bats.
- If you encounter a sick, injured or dead bat, contact the experts at WIRES on 1300 094 737.
- If you have been bitten or scratched by a bat, gently, but thoroughly, wash the wound immediately with soap and water for at least five minutes and consult a doctor as soon as possible.
There are two well-publicised viruses borne by flying-foxes:
- Australian Bat Lyssavirus is a virus that is similar to rabies. The virus can only be transmitted through contact of mucous membranes (including the eye) or broken skin with the saliva or neural tissues of a bat. To date, there have only been three confirmed cases of Australian Bat Lyssavirus in humans. These have all occurred in Queensland and were the result of direct flying-fox bites or scratches during the handling of infected animals. There are no obvious indicators that a flying-fox is carrying the virus, therefore it is always best to assume that any flying-fox could be infected.
- Hendra virus is an influenza-like virus and infection in horses and humans, and is rare. There is no evidence of bat to human, human to human, bat to dog or dog to human transmission of Hendra virus. It is thought that horses may contract Hendra virus infection from eating food recently contaminated by flying-fox urine, saliva or other body fluids. All seven confirmed cases of Hendra virus in humans have been caused by exposure to high levels of virus in body fluids from infected horses, and all occurred in Queensland.
There has been concern in the community that flying-foxes are triggering or exacerbating poor health conditions for people with compromised immune systems or chronic respiratory problems. This has not been reported in relation to other flying-fox camps, and Southern NSW Local Health District advises that there has not been an increase in respiratory-related admissions. However, if you are experiencing any medical concerns, it is recommended that you visit your doctor.
A number of Batemans Bay residents have expressed concern about the mental health impacts of the flying-foxes related to the odour and noise around the camp. While the dispersal aims to ameliorate this situation, there will be additional risks to mental health in the short-term that are associated with dispersal activities.
If things become overwhelming, support is available:
- contact your GP
- phone Lifeline on 13 11 14
- phone Beyond Blue on 1300 22 4636.
What if a flying-fox scratches or bites me?
Do not handle flying-foxes. If you find a sick, injured or dead flying-fox during dispersal activities, contact Council on 02 4474 1000. At all other times, contact the wildlife carers at WIRES on 0417 238 921.
If you are bitten or scratched, gently, but thoroughly, wash the wound straight away with soap and water for at least five minutes. Put on an antiseptic such as Betadine, and see a doctor as soon as possible.
What about my pets?
The disease risk to people, their pets and horses from the flying-foxes is very small. NSW Health reports that there is no evidence of dog to human transmission of Hendra virus. According to the Australian Animal Health Laboratory in Victoria, there have been no reports of illness in pets caused by eating deceased flying-foxes. However, pets should be kept away from flying-foxes, if possible, to reduce the likelihood of scratches or bites. If a pet becomes sick after contact with a flying-fox, seek advice from a veterinarian.
While activities to disperse the colony may increase the opportunity for contact between bats and domestic animals, because displaced flying-foxes may turn up in areas where they haven't been previously, the risks are still very small.
- Find out more about risks to pets in the Department of Primary Industries' fact sheet about bats and health risks.
Horses may get the Hendra virus infection from eating food recently contaminated by flying-fox urine, saliva or other body fluids. But there is no evidence of human to human, bat to human, bat to dog, or dog to human transmission of Hendra virus. All confirmed human cases to date became infected following high level exposures to body fluids of an infected horse, such as doing autopsies on horses without wearing appropriate personal protective equipment, or being extensively sprayed with mucous from infected horses.
If you have horses, keeping them away from flying-fox camps and vaccines are the best way to reduce the risk of infection. Vaccines are available from your vet.
Can I drink the water from my rainwater tank?
If there is public drinking water available, NSW Health recommends you use this for drinking and limit the use of water from your tank to gardening, toilet flushing and car washing. Faecal contamination in rainwater tanks from wildlife is a known risk not just associated with flying-foxes, but also birds, possums, and other animals. For households using rainwater for food preparation and drinking, the risk of getting a gastro illness from bat faeces is no different than for other animals. Australian Bat Lyssavirus cannot be contracted from drinking or using water from rainwater tanks that is contaminated with bat faeces.
To minimise the risk of faecal bacteria and other microorganisms contaminating your rainwater tank, here are some methods you can use:
- Install a 'first flush' device that will divert the first dirty water flow away from the tank.
- Clear and trim vegetation (eg, overhanging tree branches) away from awnings, gutters, and tanks to reduce accessibility from wildlife.
- Install a <1mm screen to filter material entering the tank.
- Regularly flush your tank to 'de-sludge' and remove accumulated debris.
- Disinfect your tank (eg, add 40ml of sodium hypochlorite per 1KL of water).
- Disinfect water prior to use through filtration and boiling.
- Regularly inspect the tank for signs of animal access.
It is the responsibility of the owner to ensure rainwater collected is treated to a healthy standard prior to consumption.
- Visit the NSW Health website for advice on safely managing rainwater for drinking purposes where there is no alternative supply.
Local water catchment
There is no evidence that a flying-fox camp has any impact on publicly available drinking water provided by local authorities. The water continues to be treated and this eliminates any contamination from additional flying-fox faeces in the catchment.
What should I do about damage to my property or power outages?
Residents who are concerned about damage to their property should contact their home insurer for advice on making a claim. Council is not responsible for electricity supply. Any residents who have suffered damages as a result of power outages should contact their electrical provider or their home insurer.
Essential Energy is working with the Office of Environment and Heritage to understand the nature of the influx of flying-foxes to the area and, where possible, have re-routed the local electricity network to minimise the number of customers affected by power outages.
Essential Energy's advice is that:
- Customers phone 13 20 80 to report or get information about unplanned power outages.
- If you rely on an electric pumping system for your household water supply, make sure you have enough water stored to cover your needs during an interruption.
- Switch off stove hotplates, ovens and any other small appliances in case you are not home when supply is restored.
- Avoid opening your fridge or freezer. Deep frozen food will generally last up to 24 hours if the freezer door is left closed.
- Never run a generator inside your home or garage. Ensure generators are only used in well-ventilated areas.
- If you have a medical condition that requires a 24-hour power supply, follow the advice on Essential Energy's website.
We can help you
If you would like to find out more about flying-foxes, contact:
- Council's Natural Resource Officer - Flying-Foxes, Natalie Foster:
- E: Natural Resource Officer - Flying-Foxes
- Lorraine Oliver, Office of Environment and Heritage:


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Editor's Overview
This month we look at part one of our three part series on Class Actions. In part one, Robert Rachal, Page Griffin and Madeline Chimento Rea address Rule 23's requirement of commonality and review in-depth the developing body of case law post Wal-Mart and Comcast and how commonality may be applied to eliminate or cabin class actions. Look for part two addressing Rule 23(b) in our December Newsletter.
As always, be sure to review the Rulings, Filings, and Settlement of Interest where we discuss new DOL guidance on HRAs, FSAs and Employer Payment Plans, IRS guidance on electronic Self-Certification for hardship distributions and Post-Windsor guidance, and cases addressing FICA application to severance pay, excessive fees, PBGC administrative deference and the ACA.
Labor and Employment and ERISA Class Actions After Wal-Mart and Comcast — Practice Points for Defendants (Part I – Commonality)*
By Robert Rachal, Page Griffin and Madeline Chimento Rea
In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court made clear that the class action rules apply with full force to employment discrimination cases.1Wal-Mart directs courts to conduct a "rigorous analysis" to determine whether employment discrimination plaintiffs have proven that they meet the requirements of Rule 23. Moreover, the decision breathes new life into the Federal Rules' commonality requirements and the limitations on "mandatory" classes embodied in Rule 23.
After Wal-Mart, the Supreme Court again altered the landscape of class action litigation when in Comcast Corp. v. Behrend 2 the Court applied what it called the "straightforward application of class certification principles" to issues of class damages. Though not a labor and employment case, the import of Comcast is clear: plaintiffs' damages theory must (i) match their class liability theory and (ii) be able to prove damages on a classwide basis, free from taint from individualized harms.3
This Bloomberg BNA Insights article addresses the impact of Wal-Mart, Comcast and the developing body of cases applying them. The article focuses on how they may be used to defend against labor and employment and ERISA class actions. The article also briefly addresses the potential impact of Wal-Mart and Comcast on FLSA and ADEA "collective actions." Some of the key conclusions are:
- By adopting a dissimilarities analysis to determine whether common questions have common answers, Wal-Mart makes commonality a significant screen to eliminate or cabin many types of labor and employment and ERISA class actions.
- Wal-Mart's dissimilarities analysis is particularly important (i) to labor and employment class actions involving discretionary or complex multi-level or multi-source decision making, (ii) to ERISA investment cases in 401(k) and similar plans, and (iii) to ERISA (and labor and employment) class actions that depend on allegedly defective or misleading communications.
- Wal-Mart requires many, if not all, class actions seeking individualized monetary relief to meet Rule 23(b)(3)'s more stringent predominance and superiority requirements before any class can be certified.
- Comcast's making damages a central part of class analysis is a substantial change in the law, and should bar class actions unless plaintiffs can prove that the alleged class wrong caused a classwide harm. This change is already having a substantial impact in many wage-and-hour cases.
- Comcast and Wal-Mart both illustrate the importance of expert testimony in class certification, and apply strict standards to that testimony.
This Bloomberg BNA Insight article addresses the impact of Wal-Mart and Comcast in three parts. Part I discusses the Wal-Mart and Comcast rulings, and how commonality may be applied to eliminate or cabin class actions after Wal-Mart. Part I also discusses adequacy and typicality, and how these requirements may be heightened after Wal-Mart and Comcast. Part II addresses the Rule 23(b) principles in Wal-Mart, including defenses to plaintiff's attempts to circumvent Wal-Mart through "issue" or "hybrid" certifications. Part II also addresses the use of trial plans and subclasses as means to limit or defeat class actions, and ends with a brief discussion on using Wal-Mart and Comcast to limit or defeat "collective actions" under FLSA and ADEA. Finally, Part III addresses experts in class actions, and how defendants may use expert analysis to defeat or limit class certification.
The Class and the Substantive Aspects of the Wal-Mart Ruling
Wal-Mart Stores v. Dukes arose out of the largest labor and employment class action ever filed.4 In Wal-Mart, plaintiffs challenged pay and promotion practices on behalf of a proposed class of one and one-half million current and former female employees of Wal-Mart. Plaintiffs claimed that Wal-Mart's supervisors and local managers exercised their discretion on pay and promotions in a way that discriminated against females. Pay was set within bounded ranges, while promotions included both objective and subjective criteria.5 Plaintiffs sought to prove their claim through three forms of proof: (i) a "social framework" analysis that purported to show Wal-Mart had a corporate culture that made it susceptible to gender bias; (ii) a statistical analysis that showed disparities in pay and promotions; and (iii) anecdotal statements claiming discriminatory actions.6
The Wal-Mart Court began its analysis by focusing on the standards applicable to class actions. The Court begin by noting that class actions are exceptions to the rule that litigation is conducted by and on behalf of only individual named parties, and thus plaintiffs bear the burden of proving, not merely pleading, that they satisfied all of Rule 23's requirements. The Court confirmed that lower courts must consider both the merits and the evidence—including the quality of any expert evidence—to determine whether a plaintiff met the requirements of Rule 23.7
Applying these standards, the Court first held that Plaintiffs failed to meet the commonality requirement of Rule 23(a)(2). Quoting a now famous article by Professor Nagareda, the Court framed the commonality inquiry as follows:
The Court thus framed the central question as "why was I disfavored." In so doing, the Court held the evidence set forth by plaintiffs failed to provide the "glue" needed to supply a common answer to that question. First, the Court found plaintiffs' expert's social framework analysis useless for class purposes, since it could not answer whether 0.5% or 95% of the employment decisions at Wal-Mart were determined by stereotyped thinking on gender. The corporate policy granting discretion to local supervisors was the precise opposite of an employment practice that would generate a common answer to the "why was I disfavored" question.9 Tellingly, the Court noted that this granting of discretion "is also a very common and presumptively reasonable way of doing business—one that we have said 'should itself raise no inference of discriminatory conduct.'"10 Recognizing that discretion can be used in a fashion that causes disparities is not the same thing as proving it was exercised in the same common and discriminatory fashion. Rather, it was more plausible to assume managers would follow a company's nondiscrimination policies, and that, in any event, "demonstrating the invalidity of one manager's use of discretion will do nothing to demonstrate the invalidity of another's."11
The Court also found plaintiffs' statistical evidence deficient. The Court noted that the presence of disparities at the national or regional level does not establish the existence of disparities—or discrimination—at the store level where the challenged decisions were made. The statistics' more fundamental flaw was that it failed to address possible sex-neutral reasons, including the relative availability of qualified and interested women at the store level, that would rebut any bottom-line disparities. Proof of bottom-line disparities does not answer the common question. Rather, the plaintiff must identify the particular employment practice causing the disparity and show that it caused the disparity through a common mode of acting.12 Finally, the Court held that the anecdotal evidence, which did not include 90% of the stores and represented only 1 out of every 12,500 proposed class members, failed to show that the entire company operated under a general policy of discrimination.13
The Court also rejected Rule 23(b)(2) certification for plaintiffs' back pay claims. Although a fair reading of Rule 23(b)(2) would preclude its application to a class seeking any form of monetary relief, the Court noted it did not need to reach that issue since Rule 23(b)(2) did not include claims for individualized monetary relief. Rule 23(b)(2) is limited to one final, indivisible injunction for the class as a whole, and precluded claims for individualized monetary relief.14 The history and structure of Rule 23 compelled this holding as it provides for mandatory classes (classes with no notice or opt-out rights) under Rules 23(b)(1) and (b)(2) precisely because these classes have the rule-prescribed characteristics that make them unitary and cohesive.15 The Court thus held claims for individualized monetary relief belong in Rule 23(b)(3), where the procedural protections of predominance, superiority, notice, and opt-out apply.16
The Court then rejected the argument that monetary relief in a Rule 23(b)(2) class action is permitted if the injunctive relief "predominated." The Court noted the perverse incentives this would create to limit monetary claims as well as the unworkable nature of such a test in employment discrimination classes, where the class members lose their right to prospective injunctive relief as they leave employment.17 According to the Court, any individualized monetary relief could not be deemed incidental to injunctive relief. Rather, citing Teamsters18 (which set up a two-phase proceeding for pattern-and-practice cases), the Court held that class analysis must assume defendants will be entitled to litigate their defenses to back pay claims and courts cannot use "trial by formula" or the like to defeat or impair those rights.19
Wal-Mart's impact on class issues is analyzed in the following sections of this article. Of note here, a subtle but important point embedded in Wal-Mart is its ruling on the substantive law of employment discrimination. Class rulings often have a "law declaring" function, as courts have to decide whether the substantive law permits aggregate proof for the claim at issue.20 Rule 23(f) exists to facilitate appellate review of class rulings precisely because these rulings may raise important questions of law.21 Wal-Mart illustrated this: to determine whether commonality was met the Court had to decide what the substantive law required. The majority ruled that a policy granting discretion is "a very common and presumptively reasonable way of doing business" and "should itself raise no inference of discriminatory conduct."22 Proof of disparities from a discretionary practice is not enough, since proof that one or even some supervisors exercised discretion in a discriminatory fashion does not prove others did, particularly when the company's policy prohibits such conduct thus precluding any common answer to the key "why was I disfavored" question.23 In contrast, the dissent believed that if delegated discretion results in discriminatory outcomes, that practice is itself actionable under Title VII, and commonality could be met under such circumstances.24
Practice Pointers:
Comcast and Classwide Proof of Damages
In Comcast Corp. v. Behrend,25 the Court addressed the proof of harm and damages required for Rule 23 class certification. Comcast arose out of an antitrust claim based on the notion Comcast had acquired monopolistic power over the Philadelphia. Plaintiffs proffered four theories of antitrust injury that they argued drove up cable subscription rates.26 The judge found only one of these, the "deterrence of overbuilding" theory, capable of classwide proof, and that the others could not be determined in a manner common to the class.27 Plaintiffs' economics expert calculated damages by comparing the current market to one without Comcast's alleged anti-competitive activity.28 Plaintiffs' economic expert admitted that he had not isolated the damages resulting from the different theories of antitrust impact.29
The Court concluded plaintiffs failed to satisfy Rule 23's requirements. The Court held that regardless whether defendants challenged its admissibility, expert evidence used to prove class certification requirements are met must be persuasive, and must carry plaintiff's burden of proof at the class stage.30 To this end, the Court found plaintiffs failed to satisfy the predominance requirements of Rule 23(b) (3) because they could not show damages capable of classwide proof.31 Specifically, the Court held that the damages model must be consistent with the liability model. Any model purporting to serve as evidence of damages in a class action must measure only damages attributable to the classwide theory of harm.32 In contrast, the plaintiffs' damages model included the impact of the claims that supported only individualized damages.33 Thus, plaintiffs proffered no "but for" damages model limited to the class claim—and likewise provided no requisite proof that the claimed damages were caused by the classwide wrong.34
Justice Ruth Bader Ginsburg's dissent illustrates the importance of Comcast. Justice Ginsburg noted that before Comcast, courts often held damage issues could be ignored at the class certification stage.35 Although the dissent argued Comcast should be limited to its facts to avoid any change in the law,36 the majority opinion explicitly stated it was setting forth the "straightforward application of class-certification principles."37 Notably, the Court vacated a wage-and-hour ruling to be reconsidered in light of its Comcast ruling.38
Of equal importance, the back-and-forth between the majority and dissent on the expert evidence reveals Comcast's holding as to class proofs. In the view of the dissent, the expert evidence tendered was sufficient for class purposes since it purported to show that Comcast's conduct resulted in higher prices even though it failed to show causation.39 The majority imposed a far more rigorous standard: plaintiffs must prove the claimed class wrong caused the injury classwide, free of taint from individual factors. Absent such proof, plaintiffs cannot satisfy Rule 23's requirements that common issues predominate for class claims seeking damages.40
Comcast has obvious import to labor and employment cases, and for certain claims in ERISA cases. For example, on discrimination claims, Comcast should directly bar use of bottom-line statistics to prove class damages. Comcast further supports the notion that such statistics cannot be used to show a class claim of liability since liability and damages must sync up to satisfy Rule 23. In ERISA cases, disclosure and investment claims may raise Comcast issues on whether there is classwide proof of damages. Finally, as discussed in Part II of this article, defendants are applying Comcast in wage-and-hour claims to defeat or limit class on issues such as whether eligibility for overtime can be determined classwide, and to determine whether there is a classwide method to prove damages.
Practice Pointers:
Commonality After Wal-Mart
Commonality and Discrimination Claims Challenging Discretionary Conduct
In Wal-Mart the Court noted that an employer's policy of granting discretion to supervisors is "a very common and presumptively reasonable way of doing business" and "should itself raise no inference of discriminatory conduct."41 Moreover, the mere existence of disparities from a discretionary practice is not enough for class certification since proof that one or some supervisors exercised that discretion in a discriminatory fashion does not prove that others did-particularly when company policy prohibits such conduct.42 For example, in Wal-Mart, regional and national disparities could not demonstrate the uniform store-by-store disparity required for a claim premised on discriminatory decision making by store-level managers.43 Prior decisions of the Supreme Court, notably Watson v. Fort Worth Bank & Trust44 and Wards Cove Packing Co., Inc. v. Atonio,45 require that a plaintiff identify the specific employment practice causing the disparity. Wal-Mart recognized this rule when it found reliance on bottom-line disparities arising out of a discretionary system insufficient,46 a point further buttressed by Comcast.
Wal-Mart thus clarifies the difference, from a class perspective, between a policy that grants discretion to individual managers, which plaintiffs claim is implemented in a discriminatory way, and a policy (such as a test) that itself has a disparate impact. In the case of the discretionary policy, the class claim must focus on the implementation, not the overarching lawful policy of granting discretion. But when the claim is that a test causes disparate impact without business justification, the claim is based on the test itself, and whether it is being used in an unlawful manner.47 Notably, even before Wal-Mart, many courts recognized that employment discrimination claims that depend on managerial discretion (even when exercised in the context of common policies) are not proper for class certification.48
In contrast, in McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,49 the Seventh Circuit held post-Wal-Mart that an otherwise lawful policy permitting discretion can be the basis for a class claim if the policy "influences" the managers' exercise of discretion in a discriminatory manner. McReynolds' "influences" theory arguably contradicts Wal-Mart's pronouncement that the alleged discriminatory act is the exercise of discretion and not the otherwise lawful policies that typically bound and channel—and thus "influence"—that discretion. Wal-Mart further held that (at least absent compelling proofs) a court cannot presume discretion by the individual actors is exercised in a common and discriminatory manner, particularly when the corporate policy is to the contrary.50
McReynolds appears to be developing into an outlier. For an excellent illustration of Wal-Mart's limitations on class claims when discretion is involved see Tabor v. Hilti Inc.,51 in which the Tenth Circuit considered sex discrimination challenges to the promotion of inside sales representatives to account managers. The defendant had a facially neutral policy with some objective criteria but also allowed managers substantial discretion in employee evaluation.52 Records showed managers used their discretion to constantly override the objective criteria.53 Plaintiffs claimed the managers exercised their discretion in a way that favored males; plaintiffs also had anecdotal evidence that males were favored in promotions.54
The Tenth Circuit found that only one of the plaintiffs raised a triable issue of intentional discrimination and disparate impact.55 On the disparate impact claim, the court found that in light of the discretionary nature of the policy and, in particular the consistent promotion of unqualified candidates under the policy, the statistics showing stark "bottom line" disparities between male and female sales representatives was sufficient to identify the employment practice—management discretion—and make out the claim.56 However, the court agreed this was not a class claim.57 Referring to Wal-Mart, the court noted that considerations on the validity of a disparate impact claim is different from the considerations of whether it is a proper class claim—namely, uniformity.58 The court also held that there was no commonality regarding promotions under such a haphazard policy, as illustrated by the two named plaintiffs.59 One appeared qualified and had a valid claim but the other was subject to numerous defenses based on poor performance.60 Also, there was no predominance under Rule 23(b) (3) because a court would have to look at the individual circumstances and defenses tendered as to both claims.61
The Third Circuit came to a similar conclusion in a race discrimination claim involving discretionary decisions.62 And following in the footsteps of Wal-Mart and Tabor, the Sixth Circuit also recently denied class certification in a gender discrimination case.63 In Davis, the plaintiff was twice denied employment as a sales representative.64 She alleged that the defendant's hiring practices were discriminatory and moved for class certification.65 While the defendant had a well-defined companywide hiring policy, local managers made the final hiring decisions based on the needs of the individual location.66 The Sixth Circuit noted that "bottom line" hiring disparities did not prove that there was a common question because the disparities did not demonstrate the existence of a uniform companywide exercise of discretion in a way that favored men over women.67 Tellingly, there were also disparities between offices, with some underhiring and some overhiring women during the class period.68 Citing Wal-Mart extensively, the Sixth Circuit affirmed the district court's determination that the class could not be certified pursuant to Rule 23(a)(2) because the plaintiff could not show that the proposed class of women "who failed to obtain employment at many places, over a long time, under a largely subjective hiring system, shared a common question of law or fact."69 As in Wal-Mart, the Sixth Circuit also denied certification pursuant to Rule 23(b)(2) because the requested individualized monetary relief was not incidental to the injunctive and declaratory relief sought.70
Practice Pointers:
Commonality and Claims Challenging ERISA Disclosures
Commonality issues can arise in many contexts in ERISA cases, including even on claims involving plan terms.71 ERISA disclosure claims often raise issues of reliance and causation and, at a minimum, they can raise issues as to whether there is a common answer to the questions of what each participant knew, whether he was misled, and on what he relied. As Professor Nagareda notes in his seminal article relied on in Wal-Mart, even claims predicated on common and single classwide misrepresentation do not necessarily prove classwide reliance; in addition to issues of whether each proposed class member actually read the claimed misrepresentation, there are, absent compelling facts, typically individualized issues on whether and why each proposed class member acted.72 These are the types of dissimilarities that can defeat class certification for disclosure claims.73 In ERISA cases there are also often multiple representations, individual and group, over the proposed class period that individually and collectively call into question what each participant knew and upon what he relied. Thus if, for example, a participant understood the matter at issue, he cannot prove a material misrepresentation for purposes of sustaining a claim for fiduciary breach.74
Consistent with Wal-Mart, courts have declined to certify class actions in ERISA communication suits when individualized issues regarding the class member knowledge and understanding impact the outcome of the underlying legal issues.75 Likewise, causation and reliance cannot be presumed classwide in ERISA cases, at least absent unusual and compelling circumstances.76 Plaintiffs sometimes argue their cases raise compelling circumstances warranting a form of presumed reliance, or that their case fits within the Affiliated Ute presumption of reliance for omissions.77 But as a court recently held in Bacon v. Stiefel Labs., Inc.,78 such forms of presumed reliance are unlikely to apply in ERISA contexts, as the reasons why participants make decisions on benefits (in that case selling their shares back to an ESOP) are typically complex and often individualized. Similarly, the Court, in Cigna Corp. v. Amara, rejected a form of presumed reliance (i.e., assumptions of "likely prejudice") for claims based on defective SPDs, and instead required proof of actual harm and causation to warrant monetary relief.79
Thus, the absence of common answers to the questions of knowledge or reliance often means there is no common answer to key questions such as "was I misled" or "did I rely" or "was I harmed." These dissimilarities should typically defeat class certification.
Practice Pointers:
Typicality and the Importance of Considering the Impact of Defenses on Class Claims
Commonality is a meaningful and appropriate focus of many class claims and issues in the post-Wal-Mart landscape. However, even when some claims have at least one major common issue and common answer, typicality may be a material issue because defenses, or the varying circumstances of the named plaintiffs and class members, make the claims atypical of each other. Of import here, Wal-Mart held that the class analysis must assume that defendants will be entitled to litigate their defenses, and that plaintiffs cannot use "trial by formula" or similar assumptions to impair those rights.80
Thus, if the facts show that the named female plaintiffs have better pay than average males in the same office, these facts can create unique defenses that make their claims atypical of the class and them inadequate class representatives.81 Likewise, weaknesses in plaintiffs performance or claims can defeat typicality.82 Accordingly, analysis of named plaintiffs' claims may show that success or failure of the claims depends on facts unique to the named plaintiffs, raising issues of commonality, typicality, and adequacy.83
Further, individualized issues with respect to defendants' affirmative defenses, such as the statute of limitations defense, can preclude a finding of commonality and typicality.84 Contractual agreements, such as releases or agreements to arbitrate, can bar named plaintiffs from pursuing their claims, and make their claims atypical of the class.85
Practice Pointers:
Adequacy and Class Conflicts
Wal-Mart's discussion of the "predominance" test, and how the test created perverse incentives for named plaintiffs to forgo monetary claims of absent class members, illustrates the type of conflicts that often lurk in class actions.86 Manipulating a class to exclude these claims of absent class members may confirm – not absolve – the conflict.87 Further, under Rule 23(a)(4), a plaintiff cannot adequately represent a class if there are conflicting interests with or among the proposed class members. For example, factual investigation or expert analysis may show a substantial number of class members benefitted from the challenged policies or practices. As discussed in Part II of this article, conflicts can arise over prospective relief, particularly if some of the absent class members are benefitting from the policy or practice at issue. Conflicts can also arise because the claims of different groups are of different relative strengths. Thus, at a minimum, subclasses may need to be created to represent and protect the interests of each discrete group.88
Further, it is a core requirement of Rule 23 and due process (albeit sometimes forgotten) that absent class members are entitled to have named plaintiff and putative class lawyers not make arguments—or take positions or bring claims—that conflict with the absent class members' interests.89 Thus, no class should be certified when the proposed class members have different financial interests as to the claims or the relief sought, or where some of the proposed class members benefit from the very program or practice the plaintiffs are challenging.90 For example, conflicts can arise in the labor and employment area over the proposed goals and remedies sought in the litigation.91 These conflicts can arise in ERISA cases over, e.g., whether the litigation may be harming current participants' investments in an ESOP,92 or where there are different interests as to who benefitted and who lost, or over who may want to keep the challenged investments.93
Practice Pointers:
Please click here to read the full text and footnotes of this article.
* Originally published by Bloomberg, BNA. Reprinted with permission.
- 131 S. Ct. 2541 (2011).
- 133 S. Ct. 1426, 1433 (2013).
- Id.at 1433-35.
- 131 S. Ct. 2541 (2011).
- Id. at 2547.
- Id. at 2553-56.
- Id. at 2550-52.
- Id. at 2551 (emphasis added) (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009) (internal quotations omitted).
- Id.at 2553-54.
- Id.at 2554 (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988)).
- Id.
- Id. at 2555-56.
- Id. at 2556.
- Id. at 2557.
- Id. at 2557-58.
- Id.at 2558-59.
- Id.at 2559-60.
- Int'l Bhd. of Teamsters v. United States, 97 S. Ct. 1843 (1977).
- Wal-Mart, 131 S. Ct. at 2560-61.
- Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 98-108 (2009).
- See Fed. R. Civ. P. 23(f) advisory committee's note to 1998 amends., subdiv. (f) (discussing use of interlocutory appeals to decide novel or unsettled questions of law). See also, e.g., Langbecker v. Elec. Data Sys. Corp., 476 F.3d 299, 306-07 (5th Cir. 2007) (noting in a rule 23(f) appeal that the court must consider and decide substantive law to the extent it impacts class certification issues).
- Wal-Mart, 131 S. Ct. at 2554 (internal quotation marks and citation omitted).
- Id. at 2555-56.
- Id. at 2565, 2567 (Ginsburg, J., dissenting).
- 133 S. Ct. 1426 (2013).
- Id. at 1430-31.
- Id. at 1431 & n.3.
- Id. at 1432.
- Id.
- Id. at 1433-35. See also, e.g., Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011) (finding that an expert's testimony must be admissible under Daubert and persuasive on the class issues under the "rigorous analysis" standard applied to class certification).
- Comcast, 133 S. Ct. at 1433.
- Id.
- Id. at 1433-34.
- Id. at 1433-35.
- Id. at 1437 (Ginsburg, J., dissenting).
- Id.
- Id. at 1433.
- See Ross v. RBS Citizens, N.A., 667 F.3d 900 (7th Cir. 2012), vacated, 133 S. Ct. 1722 (2013) (vacating and remanding in light of Comcast).
- Id. at 1441.
- Id.at 1433-35.
- Wal-Mart, 131 S. Ct. at 2554.
- Id.at 2554-56. see also, e.g., Bolden v. Walsh Constr. Co., 688 F.3d 893, 896-97 (7th Cir. 2012) (applying same to decertify discrimination class).
- 131 S. Ct. at 2554-56.
- 108 S. Ct. 2777 (1988).
- 109 S. Ct. 2115 (1989).
- Wal-Mart, 131 S. Ct. at 2555-56.
- Thus, testing cases can be distinguished based on the unique characteristics of the claim. See, e.g., Gulino v. Bd. of Educ. of City Sch. Dist. of City of New York, 907 F. Supp. 2d. 492, 505-09 (S.D.N.Y. 2012) (using Rule 23(c)(4) to certify a class of teachers for declaratory and injunctive relief in a discriminatory impact testing claim).
- See, e.g., Gaston v. Exelon Corp., 247 F.R.D. 75, 87 (E.D. Pa. 2007) (holding that certification pursuant to Rule 23(b)(2) would be inappropriate in this case involving facially neutral practices because "this case, in very large measure, turn[ed] on the individual determinations of autonomous managers rather than on common questions of fact and law").
- 672 F.3d 482, 490 (7th Cir. 2012), cert. denied, 133 S. Ct. 338 (2012).
- See, e.g., Bolden v. Walsh Constr. Co., 688 F.3d 893, 896-97 (7th Cir. 2012) (applying same to decertify discrimination class); Bell v. Lockheed Martin Corp., No. 08-6292 (RBK/AMD), 2011 WL 6256978, at *6-7 (D.N.J. Dec. 14, 2011) (applying Wal-Mart to conclude that there was no class based on objective policies that gave managers discretion within certain boundaries).
- 703 F.3d 1206, 1211 (10th Cir. 2013).
- Id.at 1212.
- Id.
- Id. at 1212-13.
- Id. at 1216-26.
- Id. at 1219-26.
- Id. at 1230.
- Id. at 1222.
- Id.at 1229-30
- Id.
- Id.
- See Rodriguez v. National City Bank F3d, 2013 WL 4046385 at *8 to *111 (3d Cir. Aug. 12, 2013) (applying Wal-Mart to refuse to certify a class challenging discretionary mortgage charges applied in an alleged discriminatory fashion to minorities).
- Davis v. Cintas Corp., 717 F.3d 476, 479-80 (6th Cir. 2013).
- Id. at 479.
- Id.
- Id. at 480-81.
- Id. at 487-88.
- Id.
- Id. at 487-89. See also In re Countrywide Fin. Corp. Lending Practices Litig., 708 F.3d 704, 706, 708-10 (6th Cir. 2013) (holding that there was no commonality even though there were bottom-line statistics showing minority borrowers paid more than white borrowers).
- Davis, 717 F.3d at 490-91.
- See, e.g., Lipstein v. United Health Group, 2013 U.S Dist. LEXIS 138045 at *15 to *33 (Sept. 26, 2013) (applying Wal-Mart to conclude there was no commonality for a proposed class of plans challenging how Medicare offsets were calculated; plans had different language on the issue and different standards of review).
- E.g., Poulos v. Caesars World, Inc., 379 F.3d 654, 667-68 (9th Cir. 2004) (noting cannot assume classwide reliance unless it is the only common sense or logical behavior of the class in response to the claimed misrepresentation, and that in the case at issue people gambled for a myriad of reasons and motivations).
- Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 131-32 (2009).
- See Bell v. Pfizer, Inc., 626 F.3d 66, 75-76 (2d Cir. 2010) (holding there is "no sustainable claim," in an ERISA disclosure case, if the participant was not misled); Ballone v. Eastman Kodak Co., 109 F.3d 117, 125 (2d Cir. 1997) (explaining that materiality of ERISA misrepresentations is "fact-specific and will turn on a number of factors" including what each employee knew and understood).
- See Groussman v. Motorola, Inc., No. 10 C 911 (N.D. Ill. Nov. 15, 2011) (denying ERISA disclosure class for lack of commonality, typicality, and adequacy due to "difference[s] as to what each Plaintiff understood ... and ... rel[ied] upon"); Carr v. Int'l Game Tech., Nos. 3:09- cv-00584, 0585 (D. Nev. Mar. 16, 2012) (holding no typicality due to individualized issues of reliance on alleged misrepresentations and defenses).
- E.g., Walsh v. Principal Life Ins. Co., 266 F.R.D. 232, 259-60 (S.D. Iowa 2010) (no proof common letters drove 401(k) roll-over decisions, and the evidence offered for each individual plan participant regarding their reliance on the letters and any misrepresentations and omissions that continued through the phone calls differs, strongly suggesting that the Court would have to engage in extensive individualized inquiries regarding causation if this case proceeded as a class action); Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443 F.3d 1330, 1344-45 (11th Cir. 2006) (holding that class certification was inappropriate because the ERISA breach of fiduciary duty claim would require each class member to show that he or she relied on the "no deductible" term when purchasing their prescription drugs).
- See, e.g., Rogers v. Baxter Int'l, Inc., 521 F.3d 702, 705 (7th Cir. 2008) (Easterbrook, J) (cautioning plaintiffs not to conflate securities and ERISA litigation; declining to apply Affiliated Ute presumption); Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443 F.3d 1330, 1344-45 (11th Cir. 2006) (noting importance of proof of individualized reliance when pleading classwide claim of misrepresentation and therefore not allowing for Affiliated Ute's presumed reliance); Kenney v. State Street Corp., No. 09-10750-DJC (D. Mass. Sept. 15, 2011) (considering Amara and rejecting the import of a presumed reliance theory from securities litigation); Stanford v. Foamex L.P., No. 07-4225 (E.D. Pa. Aug. 20, 2008) (rejection of presumed reliance); In re Elec. Data Sys. Corp. "ERISA" Litig., 224 F.R.D. 613 (E.D. Tex. Nov. 8, 2004), vacated on other grounds sub nom. Langbecker v. Elec. Data Sys. Corp., 476 F.3d 299 (5th Cir. 2007) (rejecting the "fraud on the market" theory and presumed reliance and holding that reliance must be established). But see Harris v. Amgen, Inc., 717 F.3d 1042, 1058-59 (9th Cir. 2013) ("We see no reason why ERISA plan participants who invested in a Company Stock Fund whose assets consisted solely of publicly traded common stock should not be able to rely on the fraud-on-the-market theory in the same manner as any other investor in publicly traded stock.").
- 275 F.R.D. 681, 698-99 (S.D. Fla. 2011).
- 131 S. Ct. 1866, 1880-82 (2011).
- Wal-Mart, 131 S. Ct. at 2560-61.
- Cf., e.g., Randall v. Rolls-Royce Corp., 637 F.3d 818, 823-24 (7th Cir. 2011) (noting that named plaintiffs' pay in several years exceeded that of men and that such unique defenses made them inadequate class representatives and their claims atypical of the class).
- E.g., Drake v. Morgan Stanley & Co., Inc., No. CV 09-6467 ODW (RCx)(C.D. Cal. Apr. 30, 2010) (holding, in state law wage claim for financial assistants at Morgan Stanley, that named plaintiffs' claims were atypical and they were inadequate representatives because they were subject to unique defenses on performance issues and counterclaims for expenses due).
- E.g., Tabor v. Hilti, Inc. 703 F.3d 1206, 1229 (10th Cir. 2013) (finding commonality requirement not met when courts have to look at circumstances of individual claims-the two named plaintiffs illustrated this because one had a much weaker claim).
- See Novella v Westchester Cnty., 661 F.3d 128, 148-49 (2d Cir. 2011) (noting statute of limitations defense often precludes certification of an ERISA class); In re Unisys Corp. Retiree Med. Benefits Litig., No. 969 (E.D. Pa. Feb. 4, 2003) (decertifying class for ERISA fiduciary breach claim based on misrepresentations because statute of limitations defense would require "myriad of individual determinations").
- The Supreme Court's embrace and enforcement of arbitration agreements may make them more common in the employment context. See, e.g., Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304 (2013) (holding that arbitration agreements can bar class arbitration even if a party cannot effectively vindicate his federal rights absent a class action).
- See Wal-Mart, 131 S. Ct. at 2559-60.
- See, e.g., Beyond Knowles: Fairness to Absent Class Members and the Manipulation of Class Action Claims, BNA Class Action Litig. Rep. (Sept. 13, 2013) (discussing conflicts brought about by claims splitting); see also discussion in forthcoming Part II discussing claims splitting issues arising from hybrid or issue certification.
- E.g., In re Literary Works Copyright Litig., 654 F.3d 242, 249-52 (2d Cir. 2011) (creating subclasses to represent each group because of differences in relative strengths of claims).
- E.g., Langbecker v. Elec. Data Sys. Corp., 476 F.3d 299, 317-18 (5th Cir. 2007) (holding intra-class conflict negated adequacy under Rule 23(a)(4)); Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 504 F.3d 229, 246 (2d Cir. 2007) (finding antagonistic interests and refusing to certify the class where the interests of the class representatives would not advance the interests of class members who participated in self-funded ERISA plan).
- E.g., Langbecker, 476 F.3d at 317-18 .
- See Gilpin v. Am. Fed'n of State, County, & Mun. Employees, AFL-CIO, 875 F.2d 1310, 1313 (7th Cir. 1989) (affirming decision to refuse certification when different groups of employees had differing interests as to the remedies to be sought from a union); United Indep. Flight Officers v. United Air Lines, 756 F.2d 1274, 1284 (7th Cir. 1985) (affirming refusal to certify class when members had divergent and antagonistic interests regarding the goals of the lawsuit and benefits sought).
- See, e.g., Hans v. Tharaldson, No. 3:05-cv-115, 2010 WL 1856267, at *6-8 (D.N.D. May 7, 2010), amended by 2010 WL 4723008 (D.N.D. Aug. 27, 2010).
- See, e.g., Langbecker, 476 F.3d at 316 n.28, 318 (stating "[a] few class members cannot hijack litigation 'on behalf of the plan' to pursue their preference at the expense of others," and holding plan claims could not proceed without class procedural safeguards in light of the class conflicts); Spano v. The Boeing Co., 633 F.3d 574, 586-87 (7th Cir. 2011) (named plaintiffs did not satisfy adequacy of representation requirement in action claiming fiduciaries caused plan to pay excessive fees and maintained imprudent investment options, where many members of proposed class had no complaint about investment options offered by employer, in light of dates when they first invested and date when they exited, and would be harmed by the relief sought by named plaintiffs); cf. Abbott v. Lockheed Martin Corp., __ F. 3d __, 2013 WL 4010226 at *9 to *10 (7th Cir. Aug. 7, 2013) (narrowing a prudent investment class to those in stable value fund that underperformed against benchmark should sufficiently limit or eliminate intra-class conflicts).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.


text:
Commissioners for the City of Perth have adopted the annual budget for next financial year, capping a rate increase for the commercial, hotel and retail sectors at 1.3 per cent.
Chair Commissioner Eric Lumsden said the 2019/20 budget establishes a responsible and sustainable financial management approach, while continuing to invest in major projects and making Perth a better place to live.
"Thorough financial analysis of recent spending has identified the City needs to be more fiscally responsible to be able to sustainably renew infrastructure, as well as set up the City for a successful future," Chair Commissioner Lumsden said.
"This budget balances capital investment for major projects, while also identifying the economic difficulties facing some sectors of the business community.
"The City wanted to keep any rate rise to a minimum for the commercial, hotel and retail sectors to allow for an injection of growth and stabilisation in these struggling areas.
"The City identified these sectors as being in need of a concessional rate increase of 1.3 percent, while the rate in the dollar for office, residential and vacant land will be limited to 2.85 percent in 2019/20."
With overall expected operating revenue of almost $208 million the City will invest in a range of major capital works projects, renew infrastructure and future-proof City operations by implementing improved management systems for greater transparency in reporting and accounting.
Almost $57 million has been set aside for major capital works projects including $20 million for the redevelopment of Wellington Square, East End Revitalisation Project and Forrest Place Pedestrian Walkways.
$18 million has been allocated to ensure the maintenance and upgrade of city infrastructure such as roads, parks, paths and drainage, and $13 million for improving City processes including financial and parking management systems.
"Since the appointment of Commissioners and new CEO, a renewed focus has been on greater transparency in financial reporting, variance management and accountability for outcomes, ensuring a capacity to deliver on capital programs and determine the true cost of the City's operations," Chair Commissioner Lumsden said.
"The City has strived to minimise the increase to ratepayers but it is required to ensure the City can operate and provide the necessary infrastructure for a capital city expected by residents, tourists and businesses alike."
The City of Perth has adopted the following for 2019/20:
Commercial – 5.63576 cents in the dollar;
Hotel – 5.63576 cents in the dollar;
Office – 4.68096 cents in the dollar;
Residential – 5.90393 cents in the dollar;
Retail – 5.63576 cents in the dollar; and
Vacant Land – 6.43702 cents in the dollar.
The minimum rate payment that applies to all rateable properties within the City has been set at $726 to support the City's strategy of encouraging living in the city.


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OBIT for Pet
WOW. Was she gorgeous.
Wall street Journal suggests that you write an OBIT for your passed friend.
Link to story, which may or may not work if you do not subscribe is here.
Just in case the link leaves you flat, here is a little content:
Almost 3,000 dog obituaries are posted on the website Doggy Heaven along with 20,000 photos and comments, said Steve Cencula, who created the site... Doggy Heaven allows visitors to post digital icons unde the pet's anme, including chew toys, steaks, baco and dog bones.
For Cate, if I could, I would post her beautiful turquoise collar and coat from The Sunburst Project operated by The Greyhound Alliance in Chicago to honor her courage and other greyhounds whose racing careers have ended making them of little value to the racing industry. Me and Cate, and since 2011 6,000 other greyhounds, have found HOME through The Sunburst Project. Until racing ends, there are a LOT of us out there. Help The Greyhond Alliance Sunburst project if you can.
This link works and you can see my family listed: RIGHT HERE!
Your Shop Dog Bandit


text:
Singer & Actress Baby Ariel in DUMEBI Tweed trouser 2-piece for the cover of Avante Magazine April issue.
The Adelaiden sisters from Australia attended our AW18 Fashion show.
"We enjoyed a colourful presentation by couture designer Barbara Biosah of Atelier DUMEBI"
Discover the full article.
DUMEBI Featured in the designer profile section of the September issue of Vogue Magazine 2017 in Preparation for our Debut Fashion Show at London Fashion Wee SS18
4 African descendant Designers to follow during Fashion week
CEO and founder Barbara Biosah was interviewed by International Fashion Academy Paris. Barbara graduated from IFA Paris in 2014 and discusses her journey since graduating and future plans including her upcoming fashion show in London Fashion Week in September 2017
DUMEBI Featured in the designer profile section of the August issue of Vogue Magazine 2017
We are Exited to announce that DUMEBI is featured in the Designer profile section in the July issue of British Vogue. We are happy to be contacted by Vogue to be part of the best fashion magazine during their hot Summer Seasons! Don't forget to grab a copy of the July issue in stores on Friday 9th June!
DUMEBI showcased our Exotic Collection at Madeira Fashion Weekend 2017
DUMEBI SS 16 "Paint The Lily" Editorial published in the November 2015 Fashion no.7 issue of Elegant magazine. Available in Print & Digital
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Northlight 26" Pre-Lit Rudolph the Red-Nosed Reindeer Christmas Yard Decor, Brown
$98.99 $164.99
Show your appreciation for Santa's lead reindeer with this pre-lit lawn decoration by Northlight. Collapsible construction for easy storage Indoor / outdoor use What's Included 26" Rudolph decoration Ground stakes Cotter pins Zip ties Replacement bulbs and fuses 24"H x 16"W x 3"D Cotton, metal, glass Wipe clean 44-in. cord Model no. 31742389 Size: One Size. Color: Brown. Gender: Unisex.
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Azalea Grape Seed Oil 500ml
Azalea Grapeseed Oil is a very versatile oil with a pure and delicate taste that liberates the natural flavours of food. It's a brilliant oil to always have in the kitchen for simple or adventurous healthy cooking. But don't stop there – keep it on hand, like so many do, for daily skin and hair care.
Azalea Grapeseed oil has an unbelievably pure taste! Unlike other cooking oils, it has a clean neutral flavour and aroma. It remains neutral while cooking even at high heat. This means you taste the food not the oil and can be creative with it – bringing out the flavours of all your ingredients.
The combination of its light and subtle taste with a high smoke point (225 degrees Celsius) makes it suitable for all kinds of cooking: shallow or deep-frying, grilling, roasting, baking, barbecuing, dressings, sauces, marinades and infusions. Everything basically!
It emulsifies well too, so it is really easy to use when making things like mayonnaise.
Like many oils, Azalea contains natural emollients, vitamins and nutrients that make it a healthy no-brainer for a natural alternative to face, skin, and hair care. Azalea Grapeseed Oils extra appeal is that it is virtually fragrance-free, is not too thin and not too thick, and has no chemical additives.


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This article is part of our Rising Star Portfolios series.
I'm constantly on the hunt for companies that create value for customers. One company I recently came across is doing just this in the health-care field, an industry riddled with inefficiencies. Let me introduce you to Emdeon
The business
Emdeon makes its customers' lives easier by taking care of the nuts and bolts of health care -- billing, payment management, claims processing, and even electronic prescriptions for pharmacies. Its customer base includes health-care providers such as hospitals, physicians, and dentists, and health-care payers, primarily insurance companies.
For health-care providers, Emdeon performs what's known as revenue cycle management, verifying patient eligibility, submitting claims, and managing the payment process. This is vital because Emdeon simplifies complicated paperwork and ultimately helps health care providers get paid. Many hospitals are cash-strapped, making Emdeon's services very useful.
For the insurance companies paying the bills, Emdeon's services are almost equally important. In this case, Emdeon manages the complex claims process, simplifying and reducing administrative costs. This is important because these companies must keep administrative costs low. New regulations stipulate that insurance companies must have minimum medical loss ratios of 80%-85% of total premiums received. That means a maximum of 15%-20% of premiums can go to profits, administration, salaries, and other non-medical care areas. This regulation put pressure on companies to reduce administrative costs, and Emdeon helps them achieve that goal.
Leadership and competition
Emdeon has the leading position in its market with McKesson
This is a predictable, fairly slow-growing business, but it does have some faster growth areas, one of which is fraud prevention. Health care suffers from significant amounts of fraud, and insurance companies are eager to stamp it out. Emdeon is just getting started in this area, offering services that identify fraud before it's paid for by insurance carriers, a service that should be beneficial for Emdeon's customers, the company, and the industry as a whole. Other growth areas include data analytics and services where the company uses its platform and vast market knowledge to create more value for customers. Finally, the company is helping providers comply with new regulations, as shown with its partnership with LabCorp
One of Emdeon's endearing traits is its recurring revenue. Customers typically renew every year, which makes the business very predictable. All told, 90%-95% of revenues recur each year, with the balance made up of special projects. Emdeon reports 2010 results on March 8, but for the trailing 12 months, the company generated $965 million in revenue, $119 million in operating income, and $13 million in net income. Free cash flow (after stock-based compensation expense) was $64 million. At roughly $15.65 per share (including convertible class B shares), the market capitalization is $1.8 billion, and enterprise value $2.7 billion. The stock therefore seems well-priced, but it won't hurt to add the company to your watchlist, as I will.
Despite steady, recurring revenue and a leading market position, there is the risk of competition that results in pricing pressures. And although Emdeon is not paid by Medicare or government entities, its customers often face financial pressures, which could impact the revenue Emdeon ultimately receives. The company also may make selected acquisitions, which could add a layer of risk if they don't deliver. Finally, management's cash bonuses are based on adjusted EBITDA and revenue targets, which means the bottom line might be neglected more than it would be if bonuses were tied to it.
Summing up
It's always refreshing to find companies that create value -- in this case, streamlining our health-care system so that health providers and insurance companies can stop drowning in paperwork and start focusing on what they do best. This division of labor has served capitalism well, and it should do the same for our fragmented, inefficient health-care system. Emdeon is an interesting way to hopefully profit from the strong drive to improve the efficiency of our belabored system.
This article is part of our Rising Star Portfolios series, where we give some of our most promising stock analysts cold, hard cash to manage on the Fool's behalf. We'd like you to track our performance and benefit from these real-money, real-time free stock picks. See all of our Rising Star analysts (and their portfolios).


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Best Rated Flagstone Pavers Parteen
We understand that the outside of your residential or commercial property is simply as important to you as the within. In many methods, it's even more important. By enhancing the method your house looks from the outdoors, the entire home can be given a brand-new lease of life and a fresh look. Whether you want a more suitable parking area or a garden that impresses, we have the skills and competence to make it occur. We value our consumers and pride ourselves on fulfilling their requirements at every turn. We'll go that extra action even more to customize our services to your particular requirements.
Askeaton Paving are regional flagstone pavers business. Our team covers the whole Parteen and surrounding locations. All work undertaken by our group is done to the highest standards with a variety of driveway and patio area options offered to fit your budget and your requirements.
Varying from driveway extensions to driveway replacements, outdoor patio setups, garden locations, custom-made customized brick work, natural stone installations. We are professionals at installing block paving, tarmac, asphalt, gravel surface areas, concrete surface areas and a series of natural stone surface areas including sandstone, marble, granite and more.
Affordable Flagstone Pavers Services in Parteen
Get a FREE quotation today for a brand-new elegant driveway or patio area flagstone pavers services in Parteen. We supply a very same day call out and free quote service.
You might also be interested in our other services: paving, tarmacadam/asphalt, slabbing, tar and chip, resin bond driveways, gabion walls and concreting.
Block Paving also known as brick paving is a commonly used decorative method of creating a hard standing.
Paving stones of irregular size and shape are laid in a haphazard manner sometimes with mortar filling the gaps between.
Dropped kerbs are installed on the pavement outside a property. This involves the kerb stones being lowered.
Walling and Slabs is covered in the work we do. From Patio Slabs for the perfect garden to building walling around your garden.
Call us today to set up a totally free no obligation quotation. We can go through multiple choices for your driveway or outdoor patio area. We will provide a complete breakdown of the work involved and provide you with a composed 5 year guarantee when the work is completed for any flagstone pavers services. No loan upfront or deposits are needed.
Useful links: National Guild. Construction Industry Register, Passive House Association.
Parteen (Irish: An Pairtín) is a village in County Clare, Ireland. It is situated in the townland of the same name that is part of the civil parish of St Patrick's. It is also part of an Ecclesiastical parish of "Parteen-Meelick" in the Roman Catholic Diocese of Limerick.[1] The village has a large church (St Patrick's), three public houses, a national school and one shop. It is within sight of the Ardnacrusha hydro-electric power station.
The village is close to the city of Limerick which is on the left bank of the River Shannon near the suburb of Corbally.


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The experiments done with wax inspired me! I just had to pour the wax over other stuff, like dried flowers and old sheetmusic. I also wanted to work with wax in other colours, such as red and purple, to see what effect it would have.
A discovering I really liked is the way the dried flowers in wax look when held in front of the light. All kinds of details are suddenly visible.


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Parts Manager - Toyota
10 Feb 2020
Toyota dealership - Kilmore
Excellent facilities - family run business
Suit proven Parts Manager or ambitious 2ICs
About the employer
Seymour and Kilmore Toyota is a well regarded and long established family business. The Seymour dealership has had a recent major upgrade and the Kilmore facility is virtually brand new. This business is operated with the highest level of professionalism and takes an active role in the local community.
Located approx one hour north of Melbourne, Kilmore offers a different atmosphere and pleasant work environment. This location should be of interest to applicants living on the northern outskirts of Melbourne.
About the role
We are seeking an experienced Toyota Parts Manager to oversee all aspects of the parts operation at the Kilmore dealership. The parts department works closely with the service and sales areas of the business, and is committed to providing excellent service to these critical internal customers.
Required skills and experience
Organised leader with good time management skills
Motivated with strong customer focus
Systems and results orientated
Strong communicator and people manager
Background in dealership parts department operations, preferably Toyota
Able to identify and implement improved processes
Skilled with IT and automotive DMS preferably TUNE
Who should apply for this job
Our ideal candidate will be a proven Parts Manager with current or recent Toyota franchise experience. We will also consider ambitious 2ICs or Senior Parts Interpreters who feel they are ready to take the next step.
Although situated in a rural location, this dealership punches above its weight and achieves results many metro dealers would envy. They have a generous marketing budget and high online presence which delivers strong leads and inquiry levels.
The potential benefits of this position include:
Location is readily accessible from Melbourne's northern outskirts and potentially eliminates the high anxiety heavy traffic commute
Great career advancement opportunity for the right person
Family run business provides positive work environment
How to apply
Please apply by clicking on the big big red "Apply for this job" button, complete the online form - select job reference number 20003 - and attach your CV.
If you require clarification before applying, please call Laurie Williams on 0412 523 168 for a confidential chat.
Please note:
We can only consider applicants with the necessary citizenship or residency status that allows them to legally live and work in Australia. The employer is not offering sponsorship and we cannot give immigration assistance or advice.


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Iowa Gemstones
> Retail > Gemstones > IA
Related directory pages are highlighted below the Iowa retailer listings on this page. Links to gemstone retailer directory pages for adjacent states are provided at the bottom of the page. An Iowa street map link is also included there.
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April 3, 2020 | by abhinnagroup | 5 Comments
How To Make Mining Economically And Ecologically Viable?
The Minor Minerals In West Bengal contribute to the economy, however it's important to make the process economically and ecologically viable. Here's how to do so. Minor minerals contribute a lot to the economic position of a state and a country. For example sand is an important minor mineral. West Bengal is one such state which is famous for minor minerals. For example Minor Minerals In West Bengal, like sand contribute a lot to the economy of the state. There are so many ways how we can minimize wasting of resources and minimize damage to nature. Here are some ideasRead more
March 27, 2020 | by abhinnagroup | 5 Comments
Tips To Ensure Environment Friendly Mining Practice
Sand mining is a crucial part of the development process. Here Sand Mining In West Bengal is extremely important. Here are some environment-friendly mining tips. Sand is a very crucial part of any development process of any state or any region. Most of the infrastructural development cannot take place without sand. This is why Sand Mining In West Bengal is so important. There are many ways by which sand mining can contribute to the development of any state. However we also need to keep in mind how we can do sand mining in an environment friendly manner. Here are some ways which we can follow:Read more
March 20, 2020 | by abhinnagroup | 5 Comments
How Mining Contributes To The Overall Development Of A Place
It is a fact that mining in West Bengal is an integral part of the economy of the state. Mining is an important and integral part of any nation, any place. There is no developing country where no mining requires. For instance Mining In West Bengal is an important part of the economy of West Bengal. Mining contributes in a big way in enhancing the overall condition of a particular place. Here's how mining can improve a place and it's peopleRead more
March 12, 2020 | by abhinnagroup | 5 Comments
Reasons For Success Of Graphite Mining In Arunachal Pradesh
The mineral is a very vital requirement today. A country like India is very much dependent on mineral resources. For example, 'Graphite' is a very vital mineral resource today. Arunachal Pradesh is very important for Graphite mining. Abhinna, the renowned Mining Company in Kolkata engages in graphite mining in the area. Here is some information on graphite mining in Arunachal Pradesh:Read more
March 6, 2020 | by abhinnagroup | 5 Comments
Resting The Baggage Of The Heart And Mind Caused By Exhaustion, At Mecheda
Tourism is the most widely spread and widely popularised idea for the people of Bengal. Tourism thrives on the business of hotels. Abhinna Group brings to its tour lovers the Best Hotel In Mecheda. Out of the hustle and bustle of the city come and spend the serenity of nature in Mecheda.Read more


text: Sussex County Electronic Waste Schedule Sussex County Municipal Utilities Authority is holding an E-waste event at 7 a.m. until 2 p.m. on Saturday, July 20, 2019. Sussex County Municipal Utilities Authority (SCMUA) E-waste program is available to Sussex County residents. The SCMUA 2019 Electronic Waste Event scheduled dates are July 20 and October 19 from 7 a.m. until 2 p.m.Microwaves, toaster ovens, air conditioners are not part of the E-waste Program and are accepted daily at the Residents' Convenience Center at 13 cents per pound or at the Truck Scales as ID13 Bulky Waste. (Air Conditioners are also subject to a $10 Freon Removal Charge).For more information visit the web site https://www.scmua.org/.


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Overall Rating
"Kreck tells the epic story of westward expansion, from the great wagon trails, to the track layers, and those Hell on Wheels towns where the West was at its wildest. It's a story wonderfully told." David Fridtjof Halaas, from the foreword
The Wild West was more than just cowboys. It was also the raucous and unfettered railroad settlements that lined the tracks.
Overnight settlements, better known as "Hell on Wheels," sprang up as the transcontinental railroad crossed Nebraska and Wyoming. They brought opportunity not only for legitimate businesses but also for gamblers, land speculators, prostitutes, and thugs. Dick Kreck tells their stories along with those of the heroic individuals who managed, finally, to create permanent towns in the interior West. A thorough look at the construction of the Union Pacific railroad that is perfect for any history buff.
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