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Storming at Steilacoom
Fort Steilacoom Park, south of Tacoma, is the last of the classic Puget Sound junglecross venues of the last millenium . Since the sport has taken off in popularity, the increase in bicycle traffic have forced the course directors to abandon some of the gnarlier features of yore: the vertiginous downhill through the dirt-filled trench, the original brutal 3-story Knapp-time runup and the slightly kinder gentler Knapp-time runup Mark II, the single-track ramble through the brambles; with the disappearance of the ruins which once overlooked the course, the park has recovered a bucolic aspect more suited to its purpose. But the recent course layouts have retained the basic character of the site: a long climb up the butte, followed by a furious descent, accessorized with a sinuous path among the autumnal trees and the faux-antique red barns.
The Pacific Northwest fall had arrived in time for this week's cyclocross extravaganza, the second event in the Seattle Cyclocross series. The cloud banks rolling off the Pacific Ocean had brought a dank chill and just enough drizzle to grease the grassy corners, turning the course into a test of skill as well as power. At the base of the hill, a maze of yellow tape led riders to and fro through the fields, where the course included two sets of barriers, approached at speeds that imposed precise timing on the riders' dismount. A long straightaway led to the beginning of the leg-sapping climb that would repeatedly suck the oxygen from the brain.
RCR Base camp, Steilacoom
The Recycled Cycles Racing team set up their base of operations at course side, in proximity to facilities and conveniences. Taking the start line for the 9:30 race, Rip and Rob represented the blue-and-gold among the open cat 4 men and the 35+ cat 4 master men, finishing respectably mid-pack in the most crowded fields of the day. As they noted, position was established shortly after the start, and you tended to stay with the same little cluster for the rest of the race.
His race done, Rip stepped up to the RCR grill to throw down some sliders and links from Bill the Butcher, purveyor of fine meats from grass-fed organic livestock.
Next up, RCR's new Category 4 ladies Rebecca and Heather joined a Category 4 women's field that numbered over thirty starters, testimony to the sport's increasing attraction to women (your correspondant remembers when total female participation at a race barely surpassed a third that number). Unleashing her aggression from the start line, Rebecca was sitting in the catbird's saddle when a treacherous curve took her down. Then she had to struggle to extricate a jammed chain while most of the remaining field passed by. Downed but not out, Rebecca responded with determination and vigor, managing to regain a good chunk of lost ground and finish just outside the top ten. Heather in the meantime kept plugging away at a steady pace, finishing very respectably for a recent intiate to the discipline, with a lot more riders behind her than before her.
Rebecca hi-stepping the barriers
Following the junior and tykes races which featured some future Recyclers, it was showtime for the elite Category 1/2 racers, with Alex displaying the Blue-and-Gold, relying on his exceptional handling skills to hold a valiant tenth place as the national-caliber leaders imposed a punishing pace.
Making it look easy...
The 1:30pm race is one of the most crowded of the day, as successive waves of single-speeders, masters, and women set off. And we have a Winnah! as Jamie stormed to the top step of the Category 3 women's podium, no photo finish here, and she should soon be moving up to the next level. Jamie gave props for some of her success to the advice from the veterans Alex and Beth which improved her approach to the barriers, her power coming out of the turns, and her use of the slower men as inadvertent blockers.
Jamie going for the win.
Beth and Julie, RCR's starters in the Cat 1/2 women's field, had spent the previous week field-testing their immune systems, and consequently weren't quite at the top of their game. Beth had her usual blistering start, but a rare transition from the vertical to the horizontal positions robbed her of her impetus. Nonetheless, the combative pair persevered, Beth and Julie riding together to finish respectively eighth and ninth in an always strong field. The y-chromosome carriers in the single-speed and master 45+ fields couldn't quite manage to equal the outstanding efforts of the distaff side, as both David and Andrew finished mid-pack, but happy to be there.
David singlespeeding through the woods
Meanwhile Alex was working the grill, feeding the hungry racers, officials, worker bees, and random passersby, eager to sample Bill the Butcher's organic sliders.
RCR's double warhead of Nicks, known hereafter as Nick A and Nick B, took to the field as the horde of Category 3 men sped off for the last gallop of the day. As mature & responsible adults, the Nicks suffered a disadvantage in a field dominated by some hormonal adolescents barely old enough to use a razor anywhere other than their legs. As the youth wave trusted the first few positions, the ever-rowdy barrier crowd took to encouraging riders with shouts of "first adult!". Despite his handicap in years, Nick B hung on for a seventh place, with proud new papa Nick A showed the effects of his new paternal responsibilties as he slid just out of the top-ten despite a gung ho attack from the gun.
Dual Nick attack!
Thanks once again to our outstanding sponsors at Recycled Cycles, Raleigh Bicycles, FSA, and Schwalbe tires for their support in this season's cyclocross campaign. We'll be doing it all over again next Sunday by the sandy shores of Silver Lake Park in Everett WA.


I just noticed that I have two search forms in my header (not just one on the left as it was before). I'm not sure, but I guess it is caused by the last theme update. When I switch the search form off in theme settings, my logo moves to the left, so I need it switched on, so that it keep my logo in the center of the header. Any advice how to fix it? Thank you in advance.
Do you want to remove both searches?
I am glad that the problem was solved.


You may have seen that the Mail on Sunday is running a campaign against the closure of hospital A&E departments.
As part of this campaign they are looking for case studies in which somebody has died or been taken seriously ill after, for example, being left on a hospital trolley for hours, or because an ambulance has been delayed or had to travel further to an A&E hospital because a more local A&E has been closed. They are particularly interested in cases involving children.
The list of closures is below. Get in touch with jochapman@boltburdonkemp.co.uk if you or someone you know has been affected by these closures.


Nothing says "Get Well Soon" like a vibrant bouquet of fresh flowers! Look no further for get well gifts than The Enchanted Florist. We deliver get well flowers to Mount Vernon, WA, or nationwide to brighten their day! You can even send a plant or a modern bouquet, either way, they'll be sure to get well soon!


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GREATER BENDIGO CITY (1)
MACEDON RANGES SHIRE (1)
BASS COAST SHIRE (1)
YARRA RANGES SHIRE (1)
Residential buildings (private) (4)
Homestead building (3)
Mansion (1)
Farming and Grazing (4)
Pastoralism (4)
Homestead Complex (2)
Vineyard/Winery (1)
Parks, Gardens and Trees (1)
Garden Residential (1)
Tree groups - avenue (1)
Results filtered by: Registered place Residential buildings (private) Pastoralism 1850 - 1879
WOLLOMAI HOUSE
7 CLEELAND ROAD CAPE WOOLAMAI, Bass Coast Shire
"Wollomai House" near Newhaven is a pastoral homestead which has important links with the early history of Phillip Island and the racing industry. It is of weatherboard construction with a…
Also listed in:
Victorian Heritage Inventory
SKELSMERGH HALL
688 COBB AND CO ROAD KYNETON, MACEDON RANGES SHIRE
Skelsmergh Hall was built in 1859 for prominent pastoralist William Degraves as a summer residence. The building is a two-storey, ten-roomed bluestone dwelling and was constructed of…
CHATEAU YERING
38-42 MELBA HIGHWAY COLDSTREAM, Yarra Ranges Shire
Chateau Yering, known originally as Yering Station, was established in the late 1830s, by prominent settlers William Ryrie and his brothers Donald and James. Paul de Castella purchased the…
CAMPASPE PARK
300 ELLIS ROAD GOORNONG, Greater Bendigo City
Campaspe Park is a large two storey homestead sited on the west bank of the Campaspe River. It was built in two phases, the first probably in the early to mid 1860s, the second in the early…

redpajama_set_name: RedPajamaCommonCrawl


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October 2016 Litigation Report - Recent Decisions
Fitch Ratings, Inc. v. First Community Bank
Click here to read the brief.
At issue in this case is whether the United States Supreme Court should grant certiorari to decide whether the due process clause of the Fourteenth Amendment permits a court to exercise personal jurisdiction over an out-of-state company with no contacts of its own in the forum state, but based instead on the forum contacts of another party who has allegedly engaged in a civil conspiracy with the non-resident defendant.
The out-of-state defendant here is Fitch Ratings, Inc., a financial-products ratings agency headquartered in New York. Fitch has no contacts of its own with the forum state, Tennessee. Instead, the plaintiff, First Community Bank, which does business in Tennessee, alleges that Fitch should be imputed with the Tennessee contacts of its alleged co-conspirators, various co-defendant issuers and placement agents for certain asset-backed securities rated by Fitch and purchased by the bank. The bank alleges that the defendants engaged in a conspiracy to over-value the worth of those securities in order to secure their sale to the bank, which purchased the securities in reliance on the allegedly false ratings and then suffered a substantial loss. For jurisdictional purposes, the bank alleges that certain of those co-defendant issuers and placement agents engaged in sales transactions with the bank directly in Tennessee sufficient to establish personal jurisdiction over them in Tennessee. (The parties do not appear to dispute this jurisdictional fact.) And the Tennessee Supreme Court has permitted the bank to attribute the Tennessee contacts of those co-defendants to Fitch, the out-of-state defendant, if the bank can substantiate its claim that the defendants all engaged in a conspiracy to defraud the bank.
Under the Tennessee law of civil conspiracy, as with the law of most states, each co-conspirator is vicariously liable for the conduct committed by co-conspirators in furtherance of the conspiracy. That is, each co-conspirator is an "agent" of the other co-conspirators for liability purposes, to assist the plaintiff by allowing her to recover damages jointly and severally from each co-conspirator. Due process, by contrast, serves the altogether different purpose of protecting the non-resident defendant's liberty interest in not having to litigate in a remote and unanticipated forum and have to submit to that court's coercive judgment. "The purpose of this [minimum-contacts] test, of course, is to protect a defendant from the travail of defending in a distant forum, unless the defendant's contacts with the forum make it just to force him to defend there." Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 807 (1985). In short, vicarious liability under civil conspiracy law is broad and serves to protect the plaintiff's interests. By contrast, vicarious personal jurisdiction is a narrow and uncertain concept that serves to protect the defendant's liberty interests.
In its amicus brief supporting the Petitioner, NELF argued that due process should not permit a court to impute the forum contacts of one party to another, if at all, unless the out-of-state defendant has purposefully availed itself of the forum, such as by substantially directing and controlling the alleged co-conspirator's in-state conduct. Nowhere does the Tennessee test for "civil conspiracy jurisdiction" require such purposeful availment, and nowhere does the bank allege any such facts. Moreover, the Supreme Court has long rejected as constitutionally inadequate the notion that the exercise of personal jurisdiction can be based on the mere foreseeability of Fitch's ratings for various financial products winding up in the Tennessee financial market, or in the market of any of the other 50 states, for that matter. "[T]he foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (emphasis added). And even if the Tennessee test for "civil conspiracy jurisdiction" did contain a purposeful availment requirement, it would not warrant the separate label of "civil conspiracy jurisdiction." Instead, the so-called test would merely be a particular application of the unitary minimum-contacts test for personal jurisdiction, established long ago under International Shoe and its progeny, to the context of a civil conspiracy. In sum, NELF argues that the notion of a separate category of "civil conspiracy jurisdiction" is an unnecessarily confusing and conclusory doctrine that should be summarily rejected by the Supreme Court.
Despite NELF's arguments and the importance of the jurisdictional issue, the Supreme Court denied certiorari on June 27, 2016.
Pharmerica Corporation v. U.S. ex. rel. Robert Gadbois
Arguing that the First-to-File Bar under the Federal False Claims Act, Which Requires Dismissal by a District Court of a Qui Tam Claim that is Brought While a Related Claim is Pending, Does Not Permit an Appellate Court to Vacate the Dismissal if the Related Claim Has Been Dismissed While the Qui Tam Plaintiff's Appeal of the Dismissal of His Case is Pending.
To prevent the proliferation of duplicative or parasitic lawsuits against Government contractors, Congress in 1986 added the "first-to-file" provision to the False Claim Act ("FCA"): "When a person brings an action under this subsection, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action." 31 U.S.C. § 3730(b)(5) (emphasis added). At issue here, on a petition for certiorari to the United States Supreme Court, is whether the "first-to-file" provision is an absolute bar requiring a court to dismiss any lawsuit brought by a "whistleblowing" plaintiff on behalf of the Federal Government during the pendency of a related case, or whether, instead, the provision grants a court the discretion to stay the improperly filed lawsuit indefinitely, until the first-filed suit is dismissed. Surprisingly, the First Circuit (opinion by Selya, J.) in this case, alone among all of the other federal circuit courts to have decided the issue, took the latter view and reversed the District Court of Rhode Island's dismissal of the lawsuit filed by qui tam plaintiff, Robert Gadbois, against PharMerica Corp. U.S. ex rel. Gadbois v. PharMerica Corp., 809 F.3d 1 (First Cir. 2015).
In his FCA qui tam claim, Gadbois alleges that PharMerica had overbilled the Medicare and Medicaid programs by seeking payment for medications dispensed without legally valid prescriptions. When Gadbois filed suit, however, a related case against PharMerica was pending in another federal district court. Accordingly, the trial court in this case dismissed Gadbois' suit under the first-to-file bar. During Gadbois' appeal to the First Circuit, however, the related case was dismissed. And so the First Circuit, paying scant attention to the statute's plain language, ruled that the lower court erred in dismissing the claim and, instead, should have stayed the action indefinitely, pending resolution of the first-filed case. In its remand order, the First Circuit instructed the trial court to consider whether Gadbois may be permitted to supplement his complaint, under Fed. R. Civ. P. 15(d),* to allege the dismissal of the first-filed case and proceed with his qui tam claim. In so deciding, the First Circuit not only disregarded the first-to-file bar's plain meaning but also rendered meaningless the FCA's statutes of limitations and repose, discussed in n.1 above, which provide a business with the certainty that it won't be exposed to potential liability for conduct after the passage of a definite number of years.
In its amicus brief in support of the Petitioner, NELF urged the Supreme Court to grant certiorari to resolve the Circuit split created by the First Circuit and to rule that the First-to-File bar requires a federal court to dismiss any qui tam that is brought while a related claim is pending. NELF argues, first, that the plain language of the statute clearly prohibits the filing here and mandated dismissal of plaintiff's complaint. Second, NELF argues that the jurisdictional facts under the First-to-File bar must be determined as of the time when the relator files suit, not at some point after that has occurred. Finally, NELF argues that the First Circuit's decide clearly undermines Congress's intent in passing the First-to-File bar and defeats the very purpose for which the statute was enacted.
Once again, despite NELF's arguments, the Supreme Court denied certiorari on June 27, 2016.
*"(d) Supplemental Pleadings. On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may order that the opposing party plead to the supplemental pleading within a specified time." Fed. R. Civ. P. 15(d) (emphasis added).
Gyulakian v. Lexus of Watertown
Arguing that in a Claim of Employment Discrimination Under Mass. G.L. c. 151B, an Employer Should Not Be Held Vicariously Liable for Punitive Damages Based on a Supervisor's Egregious Misconduct Towards a Subordinate Employee, if the Employer Has Made Good Faith Efforts to Comply with c. 151B, Namely by Taking Preventive and Corrective Steps to Eliminate Discrimination in the Workplace.
In this case, the Massachusetts Supreme Judicial Court was presented with the novel issue whether an employer should be held strictly liable under the Massachusetts Employment Anti-Discrimination Act (Mass. G. L. c. 151B) for punitive damages based on the egregious misconduct of a supervisor toward a subordinate employee. The issue was significant because the SJC held many years ago, in College-Town v. Mass. Comm'n Against Discrimination, 400 Mass. 156 (1987), that employers are strictly liable in actual damages for actionable supervisory misconduct under c. 151B. And so the Court was presented with the question whether the same College-Town standard of strict liability should apply to employers with respect to punitive damages, given the markedly different purposes that distinguish punitive from actual damages.
The plaintiff, Emma Gyulakian, was an employee of Lexus of Watertown from 2003 through 2012. In 2014, she prevailed in a jury trial on her claim that her immediate supervisor had sexually harassed her for an extended period of time and had thereby created an unlawful hostile work environment in violation of c. 151B. The jury awarded her $40,000 in compensatory damages and $500,000 in punitive damages. On Lexus' post-trial motions, the trial court vacated the award of punitive damages. The lower court apparently concluded that, as a matter of law, an employer cannot be held vicariously liable in punitive damages for egregious supervisory misconduct.
In the SJC appeal, NELF filed an amicus brief supporting the decision below, arguing that the College-Town standard of strict liability should not apply, and that an employer should not be liable for punitive damages unless it has engaged in blameworthy conduct itself. Recognizing such a standard is appropriate, NELF argued, because punitive damages serve to punish and deter an employer's wrongful conduct, not to provide the injured employee with a remedy for the actual harm inflicted by the rogue supervisor. Accordingly, NELF argued that an employer should not be held liable for punitive damages if it can show that it has taken affirmative steps to eliminate discrimination in the workplace, such as by implementing an antidiscrimination policy, through education and training, and by providing internal grievance procedures and acting appropriately on grievances. Indeed, NELF argued, recognizing such a standard would create an incentive for employers to take measures to carry out c. 151B's important social goal of eradicating discrimination in the workplace.
In its decision of August 24, 2016, the SJC adopted NELF's position that an employer should not be held liable in punitive damages for a supervisor's egregious misconduct unless the employer itself has engaged in blameworthy misconduct. The Court announced that the standard to be applied is whether the employer was on notice of the supervisor's misconduct and egregiously or outrageously failed to respond. "We consider first whether the employer was on notice of the harassment and failed to take steps to investigate and remedy the situation; and, second, whether that failure was outrageous or egregious." The Court then applied this two-step test to the record and concluded that Lexus was liable in punitive damages for the supervisor's harassment of Gyulakian. Therefore, the Court reinstated the award of punitive damages. Nonetheless, the principle articulated in NELF's amicus brief is now the law in Massachusetts. Employers cannot be held liable for punitive damages unless they have engaged in outrageous or egregious misconduct of their own.
Martinez v. Empire Fire & Marine Insurance Co.
Arguing that an In-State Errand by a Trucking Company Employee That Resulted in an Accident Does Not Trigger a Federally Mandated Insurance Endorsement, Which Applies Only When a Vehicle is engaged in Interstate Transportation of Property For Hire at the Time the Accident Occurs.
This case presented an issue of first impression in Connecticut dealing with the interplay of federal interstate commerce jurisdiction and motor vehicle insurance law, which is usually the province of the states. Congress has given the Secretary of Transportation carefully delimited jurisdiction over the interstate transport of property by motor carriers and directed the Secretary to impose minimum liability insurance coverage amounts in order to protect the public. (These limits are often higher than state-imposed minimums, and thus are a preferred source of recovery in lawsuits.)
At issue here was how to determine whether the federally mandated insurance coverage applies to particular accidents. The defendant was the insurer of a New Haven towing company. The plaintiff, Martinez, was injured in a collision with one of the company's trucks while the driver of the truck was running a purely local errand for the company to pick up truck parts. Having obtained a judgment against the company in an earlier action, in this action the plaintiff invoked the terms of the federal insurance endorsement in order to obtain from the insurer the unpaid portion of the earlier judgment. To establish interstate commerce jurisdiction (which is required by the federal endorsement), she argued that the court should look to the company's operations as a whole (which did encompass commerce outside Connecticut), rather than to the route taken by the truck on this specific trip. She also argued that the vehicle parts that were the purpose of the truck driver's errand, once installed in the towing company's trucks, would travel in interstate commerce. She also invoked general public policy grounds.
NELF filed a brief in which it emphasized that this is an issue of federal, not state, law. The brief closely read the statutes, regulations, and the endorsement and demonstrated that, as courts elsewhere have overwhelmingly ruled, jurisdiction is to be determined by the nature of the specific trip that caused the accident and not by other, more general considerations. In addition, NELF distinguished a series of cases invariably cited by plaintiffs like Martinez when they argue against the trip-specific rule.
On July 12, 2016, the Connecticut Supreme Court issued its decision adopting the trip-specific rule by a vote of 6 to 1. The decision clearly shows NELF's influence. The court not only followed NELF's unique approach in how it distinguished the plaintiff's cases, it also followed NELF in noting that some of plaintiff's public policy arguments could be ruled out because they are inconsistent with how federal law addresses intrastate commerce with respect to liability coverage. A little surprisingly, the majority stated that they would have adopted the trip-specific rule even if they had thought it wrong (which they did not) because it is the rule used by the U.S. Court of Appeals for the Second Circuit. The state court explained that, because Connecticut lies within the federal jurisdiction of that circuit, it customarily follows the Second Circuit on federal questions in order to avoid problems like forum-shopping. It is worth noting that NELF alone had argued in favor of the trip-specific rule in part by reminding the state court of this customary deference.
Pending Cases
Epic Systems v. Lewis; Ernst & Young LLP v. Morris
Click here to read the brief in Epic Systems v. Lewis
Click here to read the brief in Ernst & Young LLP
NELF will be filing an amicus brief in support of certiorari in both of these cases, arguing that the Supreme Court should grant certiorari and decide that the NLRA does not repeal the FAA's mandate to enforce class and collective action waivers in employment arbitration agreements. An employee's NLRA "right to . . . engage in . . . concerted activities for mutual aid or protection" lacks the specificity and directness required by the Supreme Court to override the FAA's mandate to enforce arbitration agreements according to their terms. NELF argues that, to displace the FAA's mandate, the NLRA would have to state clearly that employees have the nonwaivable right to pursue group legal action against their employer. Nowhere does the NLRA announce this "contrary congressional command" to displace the FAA's mandate. Therefore, the FAA should require courts to enforce class and collective action waivers in employment arbitration agreements. The background facts and procedure for each case are provided below.
Epic Sys. v. Lewis (7th Cir.): Jacob Lewis was a technical writer for Epic Systems, a health care software company. Epic required Lewis and certain other groups of employees, as a condition of continued employment, to agree to to submit any future wage-hour and other employment claims to binding individual arbitration only. Lewis consented by email to Epic's arbitration agreement. (The agreement also contained a nonseverability or "jettison" clause, in which the parties agreed that if the class arbitration waiver were declared invalid, Lewis could only bring a class action in court.) A dispute arose concerning whether Lewis was entitled to overtime pay under the FLSA and state wage-hour law. Lewis filed both a Rule 23 class action and collective (opt-in) under the FLSA. Epic moved to dismiss the complaint and to compel the arbitration of Lewis' claims on an individual basis. Lewis argued in opposition that Epic's arbitration agreement was an unfair labor practice, in violation of § 8 of the NLRA, because it interfered with his right to engage in concerted activity for mutual aid or protection under § 7 of the same statute. The federal district court agreed, and the Seventh Circuit affirmed the lower court's decision.
Ernst & Young v. Morris (9th Cir.): Stephen Morris and Kelly McDaniel were employees of the accounting firm Ernst & Young. As a condition of employment, Morris and McDaniel were required to sign agreements promising to pursue any future work-related claims exclusively through arbitration, and on an individual basis only. Notwithstanding the arbitration agreement, Morris brought a class and collective action against Ernst & Young in federal court, which McDaniel later joined, alleging that Ernst & Young had misclassified Morris and similarly situated employees as exempt from overtime pay under the FLSA and California law. The trial court granted Ernst & Young's motion to compel, but a 2-1 panel of the Ninth Circuit reversed, agreeing with the employees that the NLRA provided them with a nonwaivable right to pursue group legal action. The dissent agreed with Ernst & Young and with the Fifth Circuit that the NLRA's "concerted activities" language falls short of the "contrary congressional command" required by the Supreme Court to override the FAA's mandate.
In particular, NELF will argue that, to escape their contractual obligation to arbitrate disputes on an individual basis only, the employees in these cases would have to show that the NLRA announces a "contrary congressional command" that employees have the nonwaivable right to pursue group legal action against their employer. But the NLRA contains no such contrary congressional command. The statute makes no mention of class actions and was enacted decades before the advent of the modern class action. Nor does the NLRA mention collective actions or even provide for an individual right of action. Congress could not have intended to provide employees with certain nonwaivable procedural rights associated with a nonexistent right of action.
The NLRA's "right . . . to engage in . . . concerted activities for . . . mutual aid or protection" lacks the specificity and directness that this Court has required for a federal statute to repeal the FAA's mandate to enforce arbitration agreements according to their terms. Under CompuCredit v. Greenwood, 132 S. Ct. 665, 669 (2012), a contrary congressional command should announce itself clearly on the face of a statute. Such an intent should not be "found" in the interstices of a statute, and certainly not by engaging in a strained and anachronistic interpretation of a vague statutory term such as "concerted activities."
As with the Credit Repair Organization Act ("CROA") under review in CompuCredit, the NLRA is also silent on the issue of invalidating the terms of an arbitration agreement. At issue in CompuCredit was whether the CROA overrode the contractual term to submit claims to binding arbitration. At issue here is whether the NLRA overrides the contractual term to arbitrate all employment-related disputes on an individual basis only. In both cases, the federal statute at issue says nothing about the enforceability of the disputed contractual term. Therefore, the FAA's mandate to enforce the arbitration agreement according to its terms remains undisturbed for both CROA and NLRA claims. Accordingly, Lewis' class and collective action waiver should be enforced.
This is confirmed by the NLRA's statement of purpose, which makes no mention of legal action of any kind. To the contrary, the NLRA was expressly intended to avoid "industrial strife" through the "friendly adjustment of industrial disputes," by protecting the employee's right to self-organization in order to negotiate on an equal footing with the employer over the terms and conditions of employment. This clear purpose of industrial progress through negotiated compromise is incompatible with the coercive aims of a class or collective legal action, with its attendant threat of exacting an "in terrorem" settlement from the employer.
Finally, NELF intends to argue that the lower courts' reliance on Eastex, Inc. v. NLRB, 437 U.S. 556 (1978), is entirely misplaced. Eastex did not involve any judicial action taken by employees, did not involve the FAA, and did not even interpret the NLRA's "concerted activities" language. Instead, that case decided the entirely unrelated issue whether employees acted "for mutual aid or protection" if they acted outside of the immediate employer-employee relationship, by taking political action with respect to work-related issues.
Murr v. State of Wisconsin and St. Croix County
Arguing that, in a Regulatory Taking case, Penn Central Does Not Establish a Rule that Two Legally and Economically Distinct Parcels Must be Combined as the "Parcel as a Whole" in the Takings Analysis Simply Because They are Contiguous and Commonly Owned.
This case presents the Supreme Court with an opportunity to take a first step toward clarifying, and hopefully setting some limits to, the "parcel as a whole," a key concept in regulatory takings law. Since the phrase first appeared in the Court's 1978 decision Penn Central Transportation Co. v. City of New York, 438 U.S. 104, the term has been adapted to a variety of circumstances. As used in Penn Central, it meant that the economic impact of a government regulation should be evaluated in terms of the entire piece of property in question and not solely in terms of the specific property right targeted by the regulation. The Court observed, "'Taking' jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated." Penn Central, 438 U.S. at 130.
Since Penn Central, the concept has been extended by analogy to account for the great diversity of factual circumstances met with in regulatory takings cases. Now, when some or all of a parcel is affected by a regulation, the "parcel as a whole" concept is sometimes invoked as reason for evaluating the impact of the regulation on that parcel by grouping the parcel with other, related parcels, as if the parcels, on analogy with the situation in Penn Central, were "discrete segments" that must not be considered separately from the larger parcel of which they are part. While a wide variety of factors has been employed by courts in determining when to aggregate parcels in this manner, the most common major factors probably are: (i) common ownership, (ii) contiguity with each other, and (iii) unity of use.
This case focuses on the extended application of the concept and asks whether the mere contiguity of commonly owned parcels requires, as a rule of takings law, that such parcels be considered together as the parcel as a whole, even when unity of use or any other factor is absent. NELF has filed an amicus brief in the case, on the merits, supporting the Murrs in their contention that the proposed rule of law should be rejected because it is overly inclusive and unfair to property owners.
The petitioners in this case are the Murrs, four siblings. In 1960, their parents purchased a certain Lot F in rural St. Croix County, Wisconsin. Their father owned a plumbing business, and he placed title to Lot F in his business. Soon after the purchase, the parents built a three-bedroom recreational cabin on the lot. Recognizing the growth potential of the area, in 1963 they purchased a second parcel, Lot E, as investment property. They held the title to Lot E in their own names. Lot E is adjacent to Lot F; both are waterfront parcels approximately 100 feet wide and somewhat over one acre in size. Since its purchase, Lot E has remained vacant and undeveloped. There is no dispute that, as created and as originally purchased, the parcels were separate, distinct legal lots, and that each could have been separately developed, used, and sold.
In the 1990s, the parents made donative transfers to their children, the present petitioners, of developed Lot F and investment Lot E, and for the first time the adjacent lots came under common ownership. In 2004, when the Murr children wanted to sell Lot E and use the proceeds to finance improvements to Lot F, they discovered from officials that they could not develop or sell Lot E separately. Twenty years earlier, in 1975, while the lots were still owned separately by their parents and the plumbing business, local environmental regulations had been adopted requiring a "net project area" of at least one full acre as a prerequisite to development of any lot in that lakeside, environmentally sensitive area of the county.
Lot E has a net project area of only 0.5 acres. The regulations do contain a grandfather provision for any substandard lot created before 1976, as Lot E was, but it permits the separate development and sale of such a lot only if the lot "is in separate ownership from abutting lands." Because Lots E and F abut and are now both owned by the Murr siblings, the grandfathering exception does not apply to Lot E; the two lots are treated as merged, and the Murrs cannot sell Lot E, although it was acquired by their parents specifically as an saleable investment.
The Wisconsin Court of Appeals rejected the Murrs' takings claim, ruling that the "parcel as a whole" rule requires combining the two parcels for takings analysis "under a well-established rule that contiguous property under common ownership is considered as a whole regardless of the number of parcels contained therein." Murr v. State of Wisconsin, 2014 WL 7271581, at *4 (Wis. App. Ct. Dec. 23, 2014) (per curiam) (unpublished). After the Wisconsin Supreme Court denied further review, the Murrs petitioned the U.S. Supreme Court for certiorari, and the petition was granted on January 15, 2016.
In its amicus brief supporting the Murrs, NELF argues that the Court should strike a fair and just balance when identifying the "parcel as a whole." Invoking the principles of fairness and justice on which the Court has avowedly founded its takings jurisprudence, NELF expresses its concern that the tendency of courts to unduly expand the parcel as a whole creates an unfair risk of undercompensation to property owners. NELF then goes on to illustrate the insufficiency of the two factor rule (adjacency and common ownership) applied by the Wisconsin court. NELF argues that these factors alone are too tenuous, and that the Court should require at least "unity of use" as a third factor in deciding whether to aggregate legally separate. NELF's argument draws a close analogy to the principles on which severance damages are awarded in eminent domain cases.
Initiative Legal Group v. Maxon
Opposing a State Court's Refusal to Enforce an Arbitration Agreement Contained in a Contract that the Plaintiff has Voided Based on a Technicality of State Law.
This case, a putative class action which is before the United States Supreme Court on a petition for certiorari, asks whether the Federal Arbitration Act ("FAA") permits a state (here California) to refuse to enforce an arbitration provision that is contained within an agreement that the plaintiff has voided based on a technicality of state law, long after the contract was performed, in an obvious attempt to evade his contractual obligation to arbitrate his claims arising from the agreement.
The plaintiff here, David Maxon, signed a contingency-fee agreement with the Petitioner, Initiative Legal Group ("ILG") to pursue his wage-hour claim against his former employer, the Wells Fargo Bank. The contingency-fee agreement contained a mandatory arbitration clause covering all disputes between the attorney and the client. After ILG had completed its legal services under the agreement, Maxon filed this court action alleging that ILG had committed legal malpractice in representing him. ILG moved to compel arbitration. It turned out, however, that ILG had inadvertently failed to sign the contingency-fee agreement, and Maxon, invoking a California statute that permits a client to void a contingency-fee agreement unless both parties have signed it, gave notice to ILG that he was exercising his right under state law to void the fee agreement because ILG had not signed it. Maxon then argued that, because he exercised his statutory right to void the fee agreement, the entire agreement, including the arbitration provision, no longer existed. The California trial court and Appeals Court agreed with Maxon, and the California Supreme Court denied further appellate review.
As NELF argues in its amicus brief in support of the Petitioner, the California courts were wrong because under well-settled United States Supreme Court precedent, the mere voiding of the fee agreement does not also void the arbitration clause. As the Supreme Court has held, the FAA preempts such state interference with the enforcement of an arbitration provision. Under the FAA, an arbitration provision is severable from its "container" agreement. "[A]s a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract." Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445 (2006) (Scalia, J., for Court) (emphasis added). This principle of severability is mandated by the plain language of the FAA. "[Section] 2 [of the FAA] states that a 'written provision' 'to settle by arbitration a controversy' is 'valid, irrevocable, and enforceable' without mention of the validity of the contract in which it is contained." Rent–A–Center, West, Inc. v. Jackson, 561 U.S. 63, 70 (2010) (Scalia, J., for Court) (emphasis in original).
In short, NELF argues that the Supreme Court should grant certiorari, once again, to compel state courts, like those in California, to adhere to the Supreme Court's arbitration decisions, and to hold that the arbitration provision is enforceable even if the overall agreement is voided under state contract law, for whatever reason--such as illegality, fraud in the inducement, or unconscionability. Unless a party challenges the enforceability of the arbitration provision itself, the arbitration provision survives and must be enforced. See Buckeye, 546 U.S. at 444-46 (challenge to overall loan agreement as usurious, and therefore void ab initio, did not affect enforcement of arbitration provision contained therein). See also Rent–A–Center, 561 U.S. at 70 (challenge to "all-disputes"/scope clause of arbitration agreement as unconscionable did not affect enforcement of separate arbitration clause delegating unconscionability challenges to arbitrator); Prima Paint Corp. v. Flood & Conklin Mfg. Co. 388 U.S. 395 (1967) (challenge to overall agreement as induced by fraud did not affect enforcement of arbitration provision therein).
As of the time of this report, the Supreme Court has not yet decided whether or not to grant certiorari in this case.
Sikkelee v. Lycoming, et al.
Arguing that the Pervasive Federal Regulation of Aircraft Safety and the FAA's Certification of the Design of the Aircraft Engine in a Plane that Crashed Preempts the Plaintiff's State Law Claims of Product Liability Based on Design Defect and Failure to Warn.
This matter was referred to NELF by Textron, a NELF supporter headquartered in Providence, Rhode Island. It involves a pending Third Circuit appeal, Sikkelee v. Lycoming. The respondent, Lycoming Engines, is a division of AVCO, a Textron subsidiary that is also headquartered in Providence. Lycoming sold a certain aircraft engine in 1969. Nearly thirty years later the engine was installed "factory new" on a Cessna aircraft, even though the engine was not actually certified for that particular airframe (Lycoming was not involved in the installation of the engine). Lycoming and others were sued by Jill Sikelee, the widow of a newly licensed pilot who died in a crash of the Cessna, under product liability theories of design defect and failure to warn. The issue that Textron asked us to support is its preemption defense, based on which it obtained summary judgment in the trail court, i.e. that state law standards of care are preempted by the pervasive federal regulation of aircraft safety, and that the FAA's certification of the design of the engine preempts Sikkelle's claims. Because this appeal is in the Third Circuit, after discussion with our Rhode Island Advisory Council member from Textron, Julie Duffy, NELF joined with the Atlantic Legal Foundation, whose remit includes Pennsylvania (indeed, Atlantic Legal was for years headquartered in Philadelphia). NELF and ALF jointly filed an amicus brief supporting Lycoming in the Third Circuit, arguing that the pervasive nature of federal air safety regulation requires preemption of state law claims.
On April 19, 2016, the Third Circuit issued its opinion. Disagreeing with NELF and ALF, it held that the plaintiff's claims in this case were not pre-empted by federal law. Lycoming moved for a rehearing en banc, and, since that was unsuccessful, is now seeking certiorari from the Supreme Court. NELF and ALF will be filing an amicus brief in support of the Petition for Certiorari.
Chase v. U.S. Postal Service
Arguing that a plaintiff who alleges that his employer retaliated against him for taking leave under the federal Family and Medical Leave Act must prove that his leave was the but-for cause of the alleged retaliation
This case raises an issue of first impression in the First Circuit in an important area of employment law. In 2013, invoking traditional principles of tort law, the Supreme Court declared that the default rule is that "federal statutory claims of workplace discrimination" must be proven by but-for causation, i.e., it must be shown that the wrong would not have occurred but for the plaintiff's protected status or conduct. See University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 2525 (2013).* Since then, outside of Title VII, lower courts have shown reluctance to take the Supreme Court at its word, continuing to allow liability to be established when an improper motivating factor has been shown to have played a role in the employer's decision, even though the factor was not the but-for cause of it.
In this case, a federal district court judge, faced with the task of deciding the causation standard for a retaliation claim arising under the Family and Medical Leave Act, declined to follow the teaching of Nassar; in the mistaken belief that the act is ambiguous on this point, he deferred to a U.S. Dept. of Labor regulation that adopts motivating-factor causation. That standard of causation is clearly wrong. Because Nassar makes but-for causation the default in the absence of statutory language to the contrary, even statutory silence on the subject of causation will not render a statute ambiguous; it merely signals that but-for causation is to be applied. Moreover, so-called Chevron deference to an agency is proper only when the language of a statute is ambiguous, and here the statute is not ambiguous.
Although the defendant employer is the U.S. Postal Service (USPS), an independent agency of the federal government, the law in question applies equally to private businesses, and therefore the outcome of the case should be of concern to NELF and its supporters in the business and legal communities.
In its amicus brief filed in support of the employer in this case, NELF has presented detailed arguments to supplement and strengthen the Post Office's argument that Nassar governs this case. Simply put, NELF makes two points. First, as NELF explains, Nassar establishes that but-for causation is an unspoken background principle of federal legislation and so does not have to be signaled by any special words. To the contrary, it is any other standard that must be clearly stated in a statute. Second, NELF demonstrates that the district court erred in declining to apply Nassar and in finding that the causation required for an FMLA retaliation claim is ambiguous in the statute. NELF argues that but-for causation is the standard to be applied in this case despite the fact that the statute is silent on the issue because, as Nassar stated, but-for causation is a presumption of federal legislation. In making its arguments, NELF rebuts, point for point, the trial judge's reasons for believing the statute ambiguous and for declining to apply the teachings of Nassar.
*NELF filed an amicus brief in Nassar.
Balles v. Babcock Power, Inc.
Arguing that When a Stockholder/employment Agreement Provides that a Corporation's Board of Directors Has the Exclusive Authority to Decide Whether a Senior Executive Should be Terminated for Cause, the Only Issue for a Reviewing Court Should Be Whether or Not the Board Made its Employment Decision in Good Faith.
Click here to read the brief.
This case, which is before the Massachusetts Supreme Judicial Court on an application for direct appellate review, asks how a court should review a decision of a corporation's board of directors to terminate a senior executive for cause under the terms of a stockholder/employment agreement. A high-ranking executive is generally an employee at will who can be terminated without cause, as in this case. Nonetheless, under the typical stockholder/employment agreement, such as the one here, an executive who is terminated for cause can lose his stock ownership in the corporation, along with any severance package. And, as with many other such agreements, the contract at issue provides a definition of "cause" and also provides, significantly, that "a determination of 'Cause' may only be made by the Board of Directors . . . ." (Emphasis added.) Under this clear contractual language preserving the board's fact-finding prerogative, should a court defer to the board's decision so long as the board has acted in good faith? Or should a court instead have the discretion to disregard the board's decision and determine the issue for itself in a trial de novo? The Superior Court in this case took the latter view and reversed the decision of the board of directors of Babcock Power, a high technology company headquartered in Danvers, Massachusetts, to terminate for cause the employment of Dr. Eric Balles, a high-ranking, senior executive employee. As a result, the lower court awarded Balles approximately $2 million in damages and attorneys' fees.
This case raises an important issue of internal corporate governance that warrants, and NELF supported Babcock Power's application for Direct Appellate Review and intends to file an amicus brief on the merits as well. In its amicus brief, NELF will argue, inter alia, that, in the circumstances of this case, the board's decision should be upheld unless the employee can show that the decision was made in bad faith or was otherwise tainted by fraud, and that the Superior Court's review should have been limited to those issues alone.
Turra v. Deutsche Bank Trust Company Americas
Arguing that an Otherwise Valid Foreclosure Should Not Be Invalidated Because the Mortgagee Allegedly did Not Comply Fully with the Requirement Under Massachusetts Law that, Before Taking Possession or Conveying Title, Notice Must Be Given to Tenants, Certain Municipal Officials, and Any Provider of Water and Sewer Services to the Property
Since the collapse of the housing market in 2008, there has been an increased number lawsuits in which a homeowner has sought to thwart or undo a foreclosure on the grounds that the foreclosing party failed to comply with some requirement of the Commonwealth's nonjudicial foreclosure law. This is another such case, the latest in a string of cases that commenced with U.S. Bank N.A. v. Ibanez, 458 Mass. 637 (2011).
The homeowner here asks the courts to find the foreclosure sale of his property void on the grounds that the mortgagee bank failed to comply with one of a series of statutes that, purportedly, the SJC has declared set out the steps required in order to effect a valid foreclosure sale under the statutory power of sale. This particular statute requires that, within 30 days of the closing, the foreclosing party give notice of the closing to the municipal tax assessor and any sewer or water provider. Since there is no dispute about the failure of the bank to comply with this requirement, the case boils down to whether the SJC really meant what it purportedly said in the six cases the homeowner relies on—and, if so, whether the SJC should continue to mean it.
In its amicus brief, filed in support of the bank, NELF argues that the plaintiff relies exclusively on pure dicta, a point NELF illustrates by analyzing U.S. Bank N.A. v. Schumacher, 467 Mass. 421 (2011), Turra's strongest case. NELF urges the Court not to be bound by dicta because this important issue has never been placed squarely before the Court and briefed until now. Moving to the substantive legal question raised by this case, NELF demonstrates that the plaintiff's view of this post-sale notice statute cannot be reconciled with the plain language of G.L. c. 183, § 21, which creates a right to foreclosure by statutory power of sale and which describes all the statutory requirements for the exercise of that power as pre-sale requirements. NELF then shows that the description given in § 21 also excludes from being foreclosure sale requirements other statutes mentioned in the dicta Turra cites, thereby further undermining his argument that the dicta provides a reliable, complete list of statute a mortgagee must comply with. Finally, NELF analyzes the language of the notice statute in question and shows that the statute is not even mandatory, but rather directory.
Chitwood v. Vertex Pharmaceuticals
Arguing that a shareholder does not have a right under the Massachusetts Business Corporation Act to inspect a corporation's books and records after the board of directors has refused his litigation demand concerning alleged corporate wrongdoing.
In this case, which the Massachusetts Supreme Judicial Court has taken sua sponte for direct appellate review, the Court will decide under what circumstances a shareholder may be permitted to inspect a corporation's books and records after the board of directors has refused his litigation demand concerning alleged corporate wrongdoing. Under the Massachusetts Business Corporations Act, G. L. c. 156D, § 16.02(1), a shareholder has the right to inspect certain corporate books and records if he establishes a "proper purpose" with "reasonable particularity," among other statutory requirements. At issue, then, is what constitutes a "proper purpose" sufficient to permit a shareholder to inspect the board's books and records after the board has refused the shareholder's litigation demand.
NELF will argue, in support of Vertex, that a "demand refused" shareholder should not be permitted to inspect the board's books and records unless he can show that the board's decision making process may have lacked the good faith and diligence necessary to warrant protection under the business judgment rule. This is because another key provision of the Act, addressing shareholder derivative actions, expressly codifies the business judgment rule and requires a court to uphold a board's refusal of a shareholder's litigation demand, so long as a majority of independent directors "has determined in good faith after conducting a reasonable inquiry upon which its conclusions are based that the maintenance of the [shareholder derivative suit] is not in the best interests of the corporation . . . ." G. L. c. 156D, § 7.44(a). That is, a demand-refused shareholder is limited to seeking judicial review of the board's decision making process itself, and only when the shareholder has presented a credible threshold challenge to the integrity of that process to overcome its presumptive validity. Therefore, to harmonize the books-and-records provision with the shareholder derivative provision of the same statute, as NELF will argue the Court should do, a demand-refused shareholder who seeks discovery of the board's documents should be required to persuade the trial court that the board's decision making process does not warrant protection under the business judgment rule. Accordingly, the shareholder should be required to show that the board's decision has fallen short of at least one of the three statutory requirements quoted above: good faith, reasonableness, and independence. For these and other reasons discussed below, NELF will argue that the SJC should affirm the lower court's dismissal of Chitwood's books-and-records request.
Hall v. Department of Environmental Protection
Opposing Regulatory Encroachment on Coastal Property Rights.
In 1991, the Massachusetts Department of Environmental Protection (DEP) adopted a new regulation under G. L. c. 91 that reversed longstanding common law presumptions about the ownership of shorefront property. Because the most common means of shoreline increase is accretion (slow and gradual addition of upland at the mean high tide line) and because it is so difficult to prove imperceptible, gradual growth, Massachusetts courts have adopted a rebuttable presumption that a shoreline increase is due to accretion. The presumption is important because accretion accrues to the property owner, whereas shoreline increases due to major storms or unpermitted filling do not. The 1991 DEP regulation, 310 CMR § 9.02, reversed this presumption and placed the burden on property owners to prove that all land seaward of the "historic high tide" level has resulted exclusively from "natural accretion not caused by the owner . . . ."
Following promulgation of its regulation, DEP suggested that owners of shorefront property seaward of the "historic" high tide line, as mapped by DEP, apply for amnesty licenses. NELF's client, Elena Hall, owns a parking lot on shorefront property in Provincetown that provides Ms. Hall with her sole significant source of income. Approximately one-third of the parking lot and a portion of a small rental cottage on the property are seaward of DEP's "historic" high tide line. Ms. Hall applied for an amnesty license and DEP issued a license imposing several onerous and costly conditions on Ms. Hall's right to use her property seaward of the "historic" line.
Ms. Hall filed an administrative appeal with DEP and NELF agreed to take over Ms. Hall's representation in this test case of DEP's regulation. During the administrative and any subsequent judicial proceedings in this case, NELF will challenge DEP's mapping of the "historic mean high water mark" and argue that DEP's regulation exceeds that agency's statutory authority and effects an unconstitutional taking of private property. NELF will further argue that a license condition requiring a four-foot-wide public access way across the entire width of Ms. Hall's upland property to the beach effects a taking of her property requiring just compensation. This is so because the public's limited rights in tidelands do not include a right of access across private upland property to reach the water or coastal tidelands. DEP has therefore imposed a license condition that bears no relationship to any recognized public right, let alone a public right protected under c. 91 and affected by the licensed use of Ms. Hall's property.
NELF filed a potentially dispositive memorandum of law, accompanied by a detailed and thorough expert affidavit, with multiple map overlay exhibits, arguing that DEP simply has no jurisdiction over Ms. Hall's property. In particular, NELF staff worked closely with the experts in scrutinizing carefully the historical maps pertaining to Provincetown Harbor and in determining that the application of the mean high tide line derived from the earliest reliable historical map to Ms. Hall's property leaves the disputed portion of her property free and clear of the designation "Commonwealth tidelands." NELF received a piecemeal, informal response from DEP challenging various aspects of NELF's expert's methodology.
The Administrative Law Judge then ordered the parties' experts to meet, with the attorneys present, to exchange opinions and determine whether settlement was possible. While the meeting was productive, settlement is not possible at this time. DEP's most salient challenge concerned the historic location of a lighthouse upon which Ms. Hall's expert relied in determining the location of the historic mean high water mark. This challenge led the expert to reexamine the historic location of other lighthouses which he used in his methodology. NELF has also researched and briefed potential legal challenges to DEP's regulation and license conditions under the Takings Clause and the ultra vires doctrine, which NELF would be prepared to reach should it not succeed on its position with respect to the historic high water mark.


When we find ourselves traveling in the wrong direction, we have two choices: We can either curse life for our unfortunate circumstances, or we can give a hats-off to its great wisdom. We can see this road of life as cruel and unfeeling, or as the provider of gas refills to help us eventually get to the right destination. Nasty adversary or benevolent friend—we decide which we choose to believe —but either way, life always gives us the option to make a U turn and change course if we find we've gone in the wrong direction.
But for most of us, the road headed in the wrong direction has much invested in it. We planned it. We worked for it. We envisioned how it was going to be when we got there. And all along, we were mindlessly driving to a place we never believed was the wrong destination. But it was.
I don't know if it takes character or courage, humility or humor, but when some people recognize that they went the wrong way, they simply make a U turn and change course. They're not always sure exactly where they will be going, but they're certain they should not be where they are. With a bit of grace, and perhaps a chuckle to replace the natural churlish rage, they seek once again to find a joyous destination.
There is a calm to it all, mixed with the positive excitement of possibility. They do not know where they are going, do not know where to exit when they turn back, but they do know they've gone in the wrong direction and landed in the wrong place. And in spite of the time they may have wasted traveling toward the wrong destination, to paraphrase Harry Chapin, they know that anywhere is a better place to be.
Therein lies the possibility of happiness—to make the mistake and not beat oneself up for it. Happiness can be found despite the wrong choice by graciously admitting the mistake, and trying again somewhere else, at a later time. Happiness is found by deciding not to spend more time sitting in the wrong spot, when we realize we've just gone the wrong way.
And that is what I did—quite by accident, I travelled the most beautiful road I'd ever seen to Monterey; by way of an error and some lost time, I got to Monterey refreshed and energized. I will never forget that road, or that day. There is no way to explain what happened or why, but on Highway 1, I connected into something inexplicable; into awe, and into something so much greater than what I had known. There's no way to forget the cliffs or the sunshine reflecting off the water, no way to disconnect from the serenity. Some days I think God was talking to me that day. On others, I think it was just a serendipitous encounter with beauty that reminded me why I was here and that there was much left to do. But regardless of what it was, in a glorious testament to life's strange ways, I found a great moment in my life by simply going the wrong way.
I wish that I would remember that blunder whenever I make others, but most times, I don't—I sit and complain at the wrong exit instead. I keep moaning about the time I've wasted and all the things I could have done had I not gone the wrong way.
It's a choice. Get churlish and argumentative, resentful and irate, or make a U-turn and hope for the possibility of wonders. Because if you're lucky, you just might find that it's much better going the wrong way to Monterey.
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Into the big smoke
21 August 2016 / John Russell / 0 Comments
I came on a school excursion from Ipswich—into the big smoke. This would have been in the early 1970s.
It was a jaw-dropping experience—the internal size of the building; the BIG dinosaur inside!
A note from the editor: John Russell told this story to Margie Barram at the Australian Garden History Society display at the Ekka.
Gran's day out
15 August 2016 / Alannah McFadzean / 1 Comment
I love writing stories, and found it a little hard to pick just one that relates to the museum.
We were always visitors to Brisbane. Each year in the humid school holidays at Xmas we would drive the long dusty highway to visit Gran.
My grandmother lived in a cottage in East Brisbane, and for some reason she would take most of us (four girls in our family and four boy cousins) to the museum for the day. Like going to the pictures, Gran would bring a large bottle of cordial, a packet of bikkies and some sandwiches.
As a small girl it always seemed such a journey—I guess there was the bus from East Brisbane to the Valley, and then another bus up the hill to the door, or maybe it was still a tram.
There were two main memories, the first was being lost in the cavernous halls full of mystery, and the second was lunch out in the elegant gardens. We had nothing like this building in Canberra.
When I returned to Brisbane with my own three children, realising that the museum had moved, I took them all eagerly to South Bank. They didn't have any expectation, but I apologised to them on the way in. I had built this trip up to be an adventure, a museum of natural history, a place of caverns, stair wells and being lost. It was too clean, too organised. We have become used to it now, but I wish they had the opportunity to know the old museum.
(the photo was from the time, but not from the museum)
Our childhood memories of a special place
14 August 2016 / Rhonda Demarco / 2 Comments
My earliest childhood memories are so very special to me and all my siblings. We grew up in the early 1950s around the Lota–Wynnum area. My dad built our house at Lota when there were only a very few people in the area. We first lived at Allister Street Lota in the small two-bedroom house that is still standing to this day. Each fortnight my dad would add a little more to the house, as money was hard to come by and building materials were very dear.
We were a poor family, but very rich in love. My mum had a large family—eventually there were 12 of us kids, three boys and nine girls, but the other two boys were the babies of the family, so our brother was third in line after two sisters and then the rest of us girls down to the twin boys, so he had a lot to contend with. We were always happy and got along just fine. Our outings were very special to us because of where we were taken and it was usually on a Sunday. A lovely train ride from Lota, or Wynnum where we lived later, to the beautiful palace that was ours. That is what we had in our hearts and minds: that the beautiful museum building in the Valley was ours alone.
What fantasies we created. It was our palace—running from floor to floor lifting the brown covers that were over a lot of the glass topped display cabinets to reveal another fascinating specimen—the wonderful skeletons and exotic collections from faraway lands—the magnificent lions and tigers at the front desk—our minds went wild with imagination—then the big lung fish out on the beautiful verandah. This was our special place—we each imagined that parts of that glorious building was our "home" and we would go and visit our brother and sisters in their part of this "palace".
Mum would always take a packed lunch for us all and then we would sit in the beautiful gardens and imagine that we were very rich indeed to have such a wonderful home. The day would never end without the obligatory climbing all over the "Mephisto," the old war tank at the entrance. We loved that old building, it was a complete part of our childhood. Many of us married and had children and took them to visit this special place that was so dear to us as well. Until Brisbane lost its identity and some of its history, a sad day to see the museum being moved. We have visited the new one in South Bank a few times and I am so sorry to say it has no charm. It's clinical and uninteresting. We lost a wonderful tourist destination and a beautiful piece of history.
Please don't ever demolish this building. It is well loved and part of Brisbane's history. Thank you for reading.
Visiting from Roma
11 August 2016 / Richard Kennedy / 0 Comments
I've always loved the architecture of the old building. I recall the hanging dinosaur and the exhibits—snakes and lizards in jars—and the skeletons.
I was visiting in the 1970s. I lived out west—Roma—and each year we'd come to the Ekka for a few days, and then to grandma's at Redcliffe for a few days. I'd see the beautiful old building on the corner. It was terrible to see it neglected—there were ten years of disrepair—I remember it had broken windows. It picked up when the orchestra came.
A note from the editor: Richard Kennedy told this story to Margie Barram at the Australian Garden History Society display at the Ekka.
Part of daily life
11 August 2016 / Anne Simmonds / 0 Comments
I lived in Northey Street in the 1960s and 1970s, and I came here all the time. The building was part of my daily life—I saw it when I walked to school on Gregory Terrace; I saw it when my dad and I went swimming each Saturday morning at Centenary Pool; I caught trams from here.
I love this old building, and I used to spend hours in the exhibits when the museum was here.
A note from the editor: Anne Simmonds told this story to Margie Barram at the Australian Garden History Society display at the Ekka.
11 August 2016 / Frances Connor / 0 Comments
I was a regular visitor as a child, coming with my parents to the museum in the 1970s and 80s. We loved the natural history displays on the second floor. I became fascinated by reptiles. Later, in my university days a friend, Professor John Pearn, knowing this, introduced me to the curator of herpetology at the museum, Jeanette Covacevich. They knew each other through John's strong medically-based interest in and knowledge of venomous animals. This introduction led to an amazing day trip to Jeanette's labs during the university holidays. The lab was full of reptiles in jars of formalin, and I realized that to work in this area I would have to capture and then kill reptiles, to then count scales. (The number and placement of scales is an important definition of species in reptiles). I didn't want to do this.
The gardens were always a serene sunlit space, surrounding the museum.
After school, I would meet my friends at Triceratops, when going to the Ekka.
A note from the editor: An obituary for the herpetologist Jeanette Covacevich, written by two of her colleagues at the museum, was published in Memoirs of the Queensland Museum—Nature 59. Thanks to Dr Judith McKay for this information.
Repurposed for World Expo 88
5 August 2016 / G.Lof / 0 Comments
In 1987/88, with World Expo 88 just a short while away in Brisbane, the Restaurant & Caterers' Association of Qld (RCAQ) established a training school to prepare the influx of casual employees who would be working there. The Old Museum became the HQ for the RCAQ and I worked in the building for a number of months. It was a spooky environment and on several occasions, weird things happened such as the phone line appearing to be in use but no one else was in the building, and a gate that we had locked at night being wide open in the morning.
Courier Mail social reporter Ken Lord also kept an office there, down a long cement hallway lined with wooden shelves all the way along. We were all based in the bowels of the building and felt quite proud to be working out of such a proud, quintessentially Brisbane building. We pretty much had the run of the place including the grounds, the verandas and the massive open space that used to house the suspended aeroplane.
As a child, I remember going to the Old Museum on school excursions and seeing the dinosaurs out the front, the hanging aeroplane and the bugs in display cases. It felt old and dusty even then (1970s) but it felt so awful for the museum to move out, and many times, I wondered if it would mean the end of the building. Happily, it remains to this day, but it could sure use some restoration.
Identification and encouragement
5 August 2016 / Wendy Greenham / 2 Comments
I think this was about 1970, I was a nerdy kid of about 10, really interested in the environment around me. (Way before 'environment' was understood). It was probably the summer school holidays, and there was this explosion in spiders, including a really fascinating one that made this complicated web. It came in several colours of the abdomen, green and brown and red. The web was large with an intricate net like dome where the spider sat and a chain of egg sacs rose up in the web. My parents had not recalled seeing such a spider before and we had dozens in our yard. This is before the internet, and the encylopaedias we had did not describe this spider. I was desperate to find out what they were. Eventually my Mum took me to the Museum, to the entomology department and asked if there was anyone who could identify the spider. A lady scientist came out and looked at my live specimen in a honey bottle. She told us it was a dome building spider. (This has remained a common spider in Brisbane since). I was delighted. I had an answer and the lady kindly suggested a spider book which my Mum could buy for me to identify my own spiders in the future. (I still have that well used book today). But also there was the encouragement she gave me to keep looking around me and that a girl could be a scientist! I have never killed a spider in my life, I remain fascinated by them. I went to University and studied medicine 7 years later. I think the Museum experience played a part in that choice.
A note from the editor: Thanks to Geoff Thompson for commenting on this story, and revealing the identity of that lady scientist—Dr Valerie Todd Davies (1920–2012)—and providing a link to her obituary.
The gardeners
31 July 2016 / Catherine Brouwer / 0 Comments
The Old Museum gardens are unique amongst Queensland's institutional and public gardens in having a gardens maintenance and support area still on site and in operation. This area includes propagation facilities and potting tables, shade houses, compost facilities, and gardener's storage and facilities building. This is a rare occurrence in Australia and an area that should be highly valued and kept intact and in operation.
Through the 20th century, the gardens had its own gardeners who were based at the gardens and worked from their yard and the bush house there. As well as maintaining the gardens and lawns, they propagated all the plants used for the seasonal changing displays in the beds. It should also be noted that there were generally not generous or even sufficient funds for the gardeners to undertake all they would have liked to do for the gardens. The lack of funds for new plants led from the early part of the 20th century to the gardeners collecting seed from their plants, taking cuttings and propagating and growing on the plants to meet the different garden beds displays. These gardening practices and traditions involved a considerable amount of work for the gardening staff.
It seems highly likely that the primary reasons these gardens remained generally intact and one of the finest gardens in Brisbane through the 20th century was the continuity of the gardeners, their attachment to this special place, the practices they passed on to the following gardeners, and the lack of funds to generate changes and extensive plant changes.
All the gardeners at the Old Museum Gardens were not recorded in the past studies. It would be wonderful to complete the list. Gardeners included: Ray Priest, Dave Dowdless from 1966, Col Harmon (who had been the head gardener at the Yungaba Migrant Centre, and retired in 1970), David Hockings there from 1970, Jack Kennedy head gardener, who passed on to Ted (Dude) Neilsen there from 1966 to 1979 and head gardener for 5 years, and John England.
In 1989 and 2000 when I was part of the team preparing the Old Museum Gardens conservation study I met the gardeners who were still working in the gardens, and contacted a couple of the retired gardeners. Col Harmon told me of the gingko tree that used to grow near the entrance to the bush house. It was 10 to 14 metres high and an original planting in the list of plants at the place prepared by Frederick Manson Bailey, the Queensland government botanist at the turn of the century.
Ted Neilsen recalled the large Moreton Bay fig tree which grew just near the lawn near the corner of the old fernery, the fishpond, and the round garden under the present demountable building. He also told of the seed beds being in the open where the spirit store building is now, and recalled the fine garden along there comprising a hedge along the fence, a line of alternating frangipani trees and palms with annuals displayed along the garden frontage. He had tended the historical beds of annuals removed for the dinosaurs, and the roses. He told me that "dozens came daily just to look at the roses".
John England told me about the paths always being asphalt with tile drains or a raised timber edge, that he planted the macadamia tree in the lower garden, the bougainvillea hedge near the potting shed was "always there", and there were two timber slatted ferneries—one open to the public—and much more about the gardens and the plants now gone but which were there through his time as gardener in this very special place in Brisbane.
The gardeners' work area, November 2013


Is the word "rapture" found in the Scriptures? Yes and no. Let's read 1 Thessalonians 4:17 – "Then we which are alive and remain shall be caught up together with them in the clouds, to meet the Lord in the air: and so shall we ever be with the Lord." In this verse, the Greek word, "harpazo" is translated into two English words: "caught up". In the latter part of the 4th century, there was a Latin translation of the Bible produced that is called the Latin Vulgate. In this translation, the two words, "caught up" are translated "rapio" from which we get the word "rapture." So, while the word rapture is not found in our English translation, it was in the Latin translation of the Bible.
This is such an important truth for the Church today. We live in expectation of the imminent return of the Lord Jesus to take His people home, without going through death. When we speak of the Lord's return as 'imminent', that means He could come back any second now. There is no prophecy to be fulfilled before the rapture of the church takes place. In truth, the Lord could return before this program is over. This rapture of the church will happen so quickly that the world will not know what happened.
1 Corinthians 15:51-53 addresses the church, or those who are truly saved. It says "Behold, I shew you a mystery; We shall not all sleep, but we shall all be changed, In a moment, in the twinkling of an eye, at the last trump: for the trumpet shall sound, and the dead shall be raised incorruptible, and we shall be changed. For this corruptible must put on incorruption, and this mortal must put on immortality." This tells us that the rapture will happen in the twinkling of an eye. Someone has said that the flash of a twinkling in someone's eye takes about 1/60 of a second. Incredibly fast. And for us who are caught up to be with the Lord in the rapture, 1 Thessalonians 4:17 tells us that, "so shall we ever be with the Lord." Blessed thought. We will never leave the Lord's side throughout eternity.
But what of those who are left behind at the rapture? What happens to the ones who are not saved when the Lord returns to get His church? 2 Thessalonians 2:11-12 says, "And for this cause God shall send them strong delusion, that they should believe a lie: That they all might be damned who believed not the truth, but had pleasure in unrighteousness." This tells us that all those who had heard the truth, but "believed not the truth, but had pleasure in unrighteousness" will believe the lie and be damned. This is terribly serious. If the Lord should return today, and you, having heard the Gospel, are living in rejection of the Lord's salvation, you will believes Satan's lies and you will be damned. Some teach today that if the Lord returns and you are left behind, that you will have a second chance to believe in the Lord Jesus. The verses I just read teach that that is just not true. If you are left behind because of your unbelief, you will not have another chance to accept the Lord as your savior.


text:
Ben Spicer, Digital Journalist
Katrina Webber, Crime Fighters Reporter
Azian Bermea, Photojournalist
Published: December 2, 2019, 7:58 AM
Tags: local, crime, standoff, McDonald's
Standoff ends after death of man in McDonald's parking lot
Incident occurred outside McDonald's on I-35 near O'Connor Road
A standoff between San Antonio police and a local man has ended after he took his own life inside a vehicle in the parking lot of a Northeast Side McDonald's restaurant early Monday morning.
SAN ANTONIO – A standoff between San Antonio police and a local man has ended after he took his own life inside a vehicle in the parking lot of a Northeast Side McDonald's restaurant early Monday morning.
Officers were called around 12:30 a.m. to the fast-food chain near Interstate 35 and O'Connor Road.
According to police, a relative of the man was able to track his phone and locate him after receiving word he might be suicidal.
Authorities said the relative tried to talk to him, but at some point he pulled out a gun and that's when they called police.
Negotiators for several hours tried to resolve things peacefully, but shortly after 6 a.m. the man took his own life.
The name of the man killed was not released by police.
Copyright 2019 by KSAT - All rights reserved.
Ben Spicer
Ben Spicer is a digital journalist who works the early morning shift for KSAT.
Katrina Webber
Katrina Webber joined KSAT 11 in December 2009. She reports for Good Morning San Antonio. Katrina was born and raised in Queens, NY, but after living in Gulf Coast states for the past decade, she feels right at home in Texas. It's not unusual to find her singing karaoke or leading a song with her church choir when she's not on-air.


text:
Olympic immersion for teens
Sooke skaters get on the ice
Feb. 10, 2010 5:00 p.m.
The Olympic games draw interest from every part of the world, not to mention a colourful assortment of the most talented, most dedicated athletes on the planet.
Heading over to Vancouver last week were Sooke residents Pilar and Leonardo Maekawa. But when you think about it… where else would they be?
The teenage ice dancers and their parents wasted no time in staking a claim to the "ground floor" amid the action.
The siblings are committed as volunteers throughout the skating competition, right through to February 27. When called upon they'll be on the ice like a flash making ice repairs. With few days off and long hours per day this is concentrated indoctrination.
As a bonus they will even get a shot at some training and instruction for themselves, and rumour has it that once in a while they'll even get to cut some figures on the Pacific Coliseum ice.
Naturally, the kids will have a chance to see some skaters they admire and respect.
"For ice dance I like (Canadian champions) Tessa Virtue and Scott Moir," said Pilar by phone from Burnaby last Wednesday. The athletes and their mom Conchita are staying with friends for the games. It's a handy 15 minute trip from the Coliseum.
"In the men's I like Evgeny Plushenko," she continued. "I don't know if he's competing but I heard he's coming… and (Canadians) Patrick Chan and Vaughn Chipeur. In the women's category I really like (six-time Canadian champion) Joannie Rochette."
She's had the opportunity to solicit the occasional souvenir over the years, including autographs from some notable skaters – Virtue and Moir, and Rochette are a couple of examples."
The kids had a lull of a couple of minutes to field a couple of questions from their hometown media before Leonardo had to be whisked off for practice.
Pilar quickly dispelled any idea that the experience was a form of skating boot camp.
"Not really," said the sister on the team," I see it more as pleasure."
Dispelling another assumption, Pilar explained that the crowning moments, the medal winning efforts were not necessarily going to be the highlights of her Olympic junket.
"I particularly learn more from the first group," she said.
Brother Leo was quick to concur.
"You can actually see what these skaters do when they're practicing," he said. "You can see their techniques. I think you learn more because you can watch them longer. They're on the ice for 30 minutes straight, whereas in a competition they have a six minute warmup ad four minute routine for the competition."
There are also likely to be some moves tried in practice that the skater may not have the confidence to try in their program.
Just to see to it they don't get too rusty, the young folks will skate about four times a week at the Burnaby Eight-Rinks complex.
"We're getting coached by Megan Wing and Aaron Lowe," said Pilar. "It's very good, they teach very well. That's going to be very helpful, and with the inspiration from the other skaters it's going to push us to work even harder."
It's easy enough, after all, to keep their own goals in focus… like what they're hoping for about four years from now, but that's in the future. For now there's work to do.
"I'm going to be pretty motivated by the time this month's over," said Leo as he hustled off to work out.
Olympic spirit – priceless
Free the flame, Olympic fans say


The Egyptian Mau Club commitee members are voted on by the members to represent the club. The commitee are willing to help in any aspect regarding the Egyptian Mau.
I was first introduced to this lovely breed at the Supreme show in 2006 when I was showing my brown tortie Burmese. I was breath taken by the beauty of the Mau's, and I knew I had to own a Mau for myself! I obtained my first Mau in 2007, a silver girl, from Kay Jater, a breeder based in Bristol. Earlier this year, with great excitement, I travelled further afield and imported a bronze kitten from France. I am now the proud owner of two lovely Mau's, both neuter girls.
Since 2011, my involvement with the Cat Fancy has steadily grown and I have worked my way through the GCCF stewarding scheme. In 2014 I was accepted on to the stewarding section of the Mau Judge Appointment scheme. I am now a pupil judge for the Mau breed and (fingers crossed) hope to qualify as a full judge of the breed in 2017.