text:
Justia › US Law › Case Law › Delaware Case Law › Delaware Court of Chancery Decisions › 2011 › Achaian, Inc. v. Leemon Family LLC, et al.
Achaian, Inc. v. Leemon Family LLC, et al.
Justia Opinion Summary
This case stemmed from a dispute between Omniglow, LLC's three members (Leemon, Holland, and Achaian). At issue was whether one member of a Delaware limited liability company could assign its entire membership interest, including that interest's voting rights, to another existing member, notwithstanding the fact that the limited liability company agreement required the affirmative consent of all of the members upon the admission of a new member, or, must the existing member assignee be readmitted with respect to each additional interest it acquired after its initial admission as a member. The court held that the answer depended in the first instance on the specific provisions governing the transferability of Interests in Omniglow's LLC Agreement. When Omniglow's LLC Agreement was read as a whole, as it must be, it allowed an existing Member to transfer its entire Membership Interest, including voting rights, to another existing Member without obtaining the other Members' consent. Thus, Holland's assignment of its 30% Interest to an existing member, Achaian, was effective to vest all of the rights associated with that Interest in Achaian, and Omniglow now had two coequal 50% Members.
Want to stay in the know about new opinions from the Delaware Court of Chancery?
Sign up for free summaries delivered directly to your inbox. Learn More › You already receive new opinion summaries from Delaware Court of Chancery. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE ACHAIAN, INC., on behalf of itself and derivatively on behalf of Omniglow, LLC, Plaintiff, v. LEEMON FAMILY LLC, and IRA LEEMON, Defendants, and OMNIGLOW, LLC, Nominal Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 6261-CS OPINION Date Submitted: May 23, 2011 Date Decided: August 9, 2011 Herbert W. Mondros, Esquire, Stephanie Noble Tickle, Esquire, MARGOLIS EDELSTEIN, Wilmington, Delaware; Steven N. Leitess, Esquire, Gordon S. Young, Esquire, LEITESS LEITESS FRIEDBERG + FEDDER PC, Baltimore, Maryland, Attorneys for Plaintiff. William E. Manning, Esquire, James D. Taylor, Jr., Esquire, Charles T. Williams, III, Esquire, Michael J. Farnan, Esquire, SAUL EWING LLP, Wilmington, Delaware, Attorneys for Defendants. STRINE, Chancellor. I. Introduction Omniglow, LLC is a Delaware limited liability company engaged in the manufacture of chemiluminescent novelty items such as glowsticks. When it was founded in 2005, Omniglow had a sole Member, its Parent corporation.1 As part of a planned spin-off in 2006, Parent sold Omniglow to three business entities. That resulted in Omniglow having three Members, 2 each owning the following Membership Interests : (i) 50% were owned by the defendant Leemon Family LLC, a New York limited liability company controlled by its managing member, the individual defendant Ira Leemon (together, Leemon ); (ii) 30% were owned by the non-party Randye M. Holland and Stanley M. Holland Trust, a revocable inter vivos trust controlled by nonparties Stanley and Randye Holland as trustees ( Holland ); and (iii) 20% were owned by the plaintiff Achaian, Inc., a Nevada corporation wholly owned by non-party William A. Heriot ( Achaian ). 3 For two years, Holland and Leemon, together comprising 80% of the Interests, managed Omniglow s business with Achaian taking a passive role as an investor. In 2008, however, Leemon allegedly took sole control of Omniglow over the objection of both Achaian and Holland, and in contravention of Omniglow s LLC Agreement that 1 The Parent was Omniglow Corporation. Compl. ¶ 5. In carrying out the sale, Parent waived the provision in Omniglow s limited liability company agreement, to be discussed below, that bars the admission of a new Member absent the written consent of the Member, which at the time was just Parent. Compl. Ex. A ( Distribution and Assignment of Membership Interest (January 26, 2006)) at 1. 3 Id. Although some of the actions alleged to have been taken were taken by individuals, for the sake of simplicity I group the individuals with their respective controlled entities. 2 1 vests managerial authority in the Members in proportion to their respective Interests. 4 Holland, fed up with controversy, purported to transfer and assign its entire 30% Interest to Achaian in a January 25, 2010 Purchase Agreement. 5 Achaian then filed this suit on March 10, 2011, claiming that it and Leemon are now deadlocked, 50/50, as to the management of Omniglow and therefore an order of dissolution is warranted under 6 Del. C. § 18-802 because it is no longer reasonably practicable to carry on [Omniglow s] business in conformity with [Omniglow s] [LLC] [A]greement. 6 Leemon has moved to dismiss the complaint under Rule 12(b)(6), arguing that Holland s assignment was only effective to give Achaian an additional 30% economic interest in Omniglow. Specifically, Leemon says that in order for Achaian to have received a 30% Membership Interest in Omniglow, the LLC Agreement required Leemon s consent to the assignment because, in its view, Achaian was in effect being readmitted as a Member with respect to its newly acquired 30% Interest. This case therefore presents a single question of law: may one member of a Delaware limited liability company assign its entire membership interest, including that interest s voting rights, to another existing member, notwithstanding the fact that the limited liability company agreement requires the affirmative consent of all of the members upon the admission of a new member, or, must the existing member assignee be readmitted with respect to each additional interest it acquires after its initial admission as 4 Compl. Ex. A ( Limited Liability Company Agreement of ROG, LLC (October 26, 2005)) § 4.1 ( LLC Agreement ). Omniglow s original name was ROG, LLC. Compl. ¶ 8. 5 Compl. Ex. B ( Membership Interest Purchase Agreement and Mutual Release (January 25, 2010)) ( Purchase Agreement ). 6 6 Del. C. § 18-802. 2 a member? In this opinion, I find that, consistent with the Delaware Limited Liability Company Act, an enabling statute whose primary function is to fill gaps, if any, in a limited liability company agreement, the answer to that question depends in the first instance on the specific provisions governing the transferability of Interests in Omniglow s LLC Agreement. When Omniglow s LLC Agreement is read as a whole, as it must be, 7 it allows an existing Member to transfer its entire Membership Interest, including voting rights, to another existing Member without obtaining the other Members consent. Thus, Holland s assignment of its 30% Interest to an existing Member, Achaian, was effective to vest all of the rights associated with that Interest in Achaian, and Omniglow now has two coequal 50% Members. II. The Relevant Provisions Of The LLC Agreement And The Parties Competing Interpretations This motion presents a discrete question of law. Both parties believe that their dispute must be determined by reference to the terms of the applicable statute, the Delaware Limited Liability Company Act, and Omniglow s LLC Agreement. 8 Neither argues that there is any relevant parol evidence bearing on this dispute, especially because neither Achaian nor Leemon was involved in drafting the original LLC Agreement. 9 To resolve this dispute, it is useful to start with what is now a mundane notion, which is that under the Act, the parties to an LLC agreement have substantial authority to 7 Kuhn Const., Inc. v. Diamond State Port Corp., 990 A.2d 393, 396-97 (Del. 2010) ( We will read a contract as a whole and we will give each provision and term effect . . . . ). 8 Tr. at 3 (Counsel for Leemon); id. at 18 (Counsel for Achaian). 9 Compl. ¶ 6. 3 shape their own affairs and that in general,10 any conflict between the provisions of the Act and an LLC agreement will be resolved in favor of the LLC agreement. 11 10 See Elf Atochem N. Am., Inc. v. Jaffari, 727 A.2d 286, 290 (Del. 1999) (quoting JAMES D. COX § 1.12 at 1.37-.38 (1999)) ( The Act can be characterized as a flexible statute because it generally permits members to engage in private ordering [in the LLC agreement] with substantial freedom of contract to govern their relationship, provided they do not contravene any mandatory provisions of the Act. ); see also 2 R. FRANKLIN BALOTTI & JESSE A. FINKELSTEIN, DELAWARE LAW OF CORPORATIONS & BUSINESS ORGANIZATIONS § 20.3 at 20-3 (2009) ( BALOTTI & FINKELSTEIN ) ( The Act s basic approach . . . [is] to furnish answers only in situations in which the members have not made provision in their limited liability company agreement. ); ROBERT L. SYMONDS, JR. & MATTHEW J. O TOOLE, SYMONDS & O TOOLE ON DELAWARE LIMITED LIABILITY COMPANIES § 1.03[A][2] at 1-15 (2007) ( SYMONDS & O TOOLE ) ( As a safeguard to its essentially contract-based approach, the [Act] sets forth a number of default rules . . . [that] cover a variety of potential omissions in the limited liability company agreement. ). Because the LLC Act was based upon the Delaware Revised Uniform Limited Partnership Act . . . [and] [o]verarching principles reflected in both of the statutes are, in many material respects, identical, it is logical to conclude that, except where an analogy fails due to a fundamental difference between a Delaware limited partnership and an LLC . . . , authorities decided under the [Limited Partnership] Act should be relevant in interpreting the LLC Act and in dealing with issues relating to LLCs. MARTIN I. LUBAROFF & PAUL M. ALTMAN, DELAWARE LIMITED PARTNERSHIPS § 13.1.2 at 13-2 (2010) ( LUBAROFF & ALTMAN ); 2 BALOTTI & FINKELSTEIN §§ 20.1, 20.3 at 20-2, 20-3; see also Elf, 727 A.2d at 290-91 (observing that because [t]he Delaware [LLC] Act has been modeled on the popular Delaware LP Act[,] . . . its architecture and much of its wording is almost identical to that of the Delaware LP Act, and that as a result observation[s] relating to limited partnerships appl[y] as well to limited liability companies . . . . ). Like the LLC Act, the LP Act is an enabling statute whose default rules are designed to fill gaps in the limited partnership agreement. LUBAROFF & ALTMAN § 1.2 at 1-3 ( The [Limited Partnership] Act s basic approach is to permit partners to have the broadest possible discretion in drafting their partnership agreements and to furnish answers only in situations where the partners have not expressly made provision in their partnership agreement. ) (citing various provisions of the Act). 11 See SYMONDS & O TOOLE § 1.03[A][2] at 1-15 ( [e]ach default rule [in the Act] is a statutory provision that governs only in the absence of an agreement among the members covering the particular point. If the limited liability company agreement provides otherwise regarding the relevant subject matter, the statutory provision does not control. ) (emphasis added); 2 BALOTTI & FINKELSTEIN § 20.3 at 20-3 ( Many of the Act s most fundamental provisions are expressly made subject to modification in a limited liability company agreement. ) (citing various provisions of the Act); LUBAROFF & ALTMAN § 13.1.2 at 13-2 ( [The Act] expressly recognizes that provisions of [the Act] are subject to modification in . . . a limited liability company agreement. In doing so, [the Act] use[s] the . . . formulation of unless otherwise provided in a limited liability company agreement . . . . ). ET AL., CORPORATIONS 4 That principle applies here. As Leemon stresses, the default provision of the Act dealing with the transfer of interests in an LLC states: A limited liability company interest is assignable in whole or in part except as provided in a limited liability company agreement. The assignee of a member s limited liability company interest shall have no right to participate in the management of the business and affairs of a limited liability company except as provided in a limited liability company agreement . . . . Unless otherwise provided in a limited liability company agreement, [a]n assignment of a limited liability company interest does not entitle the assignee to become or to exercise any rights or powers of a member [and instead only] entitles the assignee to share in such profits and losses, to receive such distribution or distributions, and to receive such allocation of income, gain, loss, deduction, or credit or similar item to which the assignor was entitled, to the extent assigned . . . . 12 Likewise, the Act provides that an assignee of a limited liability company interest is admitted as a member of the limited liability company . . . as provided in § 18-704(a) of this title 13 and at the time provided in and upon compliance with the limited liability company agreement . . . . 14 12 6 Del. C. § 18-702(a), (b)(2) (emphasis added). 6 Del. C. § 18-704(a) provides that an assignee of a limited liability company interest may become a member . . . [a]s provided in the limited liability company agreement; or [u]nless otherwise provided in the limited liability company agreement, upon the affirmative vote or written consent of all the members of the limited liability company. ) (emphasis added). 14 6 Del. C. § 18-301(b)(2). There are likely two motivations for the statutory default rules in §§ 18-702, 18-704(a), and 18-301 concerning the assignment of a limited liability company interest and the assignee s possible (and subsequent) admission as a member of the LLC. The first is tax-related. See generally Daniel S. Kleinberger, Two Decades of Alternative Entities : From Tax Rationalization Through Alphabet Soup To Contract As Deity, 14 FORDHAM J. CORP. & FIN. L. 445, 447-54 (2009) (observing that the emergence of LLCs and statutory rules, sometimes mandatory, that prevented the free alienability of LLC interests was part of states early attempts to create an entity that, as a matter of tax law, is classified as a partnership with each owner treated as a partner, but whose owners are shielded by state law from automatic personal liability, and that such default statutory rules have now been rendered largely unnecessary after the United States Treasury Department adopted the check-the-box federal income tax classification regime in 1997, under which an unincorporated entity, like a limited liability company, is taxed as a partnership if it has two or more owners, or is disregarded for 13 5 Thus, it is clear that the default rule under the Act is that an assignment of an LLC interest, by itself, does not entitle the assignee to become a member of the LLC; rather, an assignee only receives the assigning member s economic interest in the LLC to the extent assigned. It is equally clear, however, that the default rule may be displaced by the income tax purposes if it has one owner unless it elects to be taxed as a corporation by checking the box. ); see also Elf, 727 A.2d at 286 ( The wording and architecture of the Act is . . . designed to achieve what is seemingly a simple concept to permit persons or entities ( members ) to join together in an environment of private ordering to form and operate the enterprise under an LLC agreement with tax benefits akin to a partnership and limited liability akin to the corporate form. ); LARRY E. RIBSTEIN AND ROBERT R. KEATINGE, RIBSTEIN AND KEATINGE ON LIMITED LIABILITY COMPANIES § 7:4 (2011) ( RIBSTEIN & KEATINGE ) (observing that [m]andatory provisions [in LLC statutes] are no longer necessary to ensure that the firm will lack the corporate tax characteristic of free transferability in light of the recent elimination of these classification features in the check-the-box tax classification rule, but noting that while more LLCs may come to adopt corporate-type transferability, it seems unlikely that LLC statutes will eliminate restrictions on transfer of management rights as a default rule given the closely held nature of most LLCs. ) (emphasis added). Omniglow s LLC Agreement itself recognizes the desirability of partnership tax treatment. E.g., LLC Agreement § 7.1 ( If at any time [a transfer of an Interest] shall cause the Company to have more than one Member, then this Agreement shall be appropriately amended to reflect the fact that [Omniglow] will then be treated as a partnership for purposes of the [Internal Revenue] Code [of 1986]. ). The second reason for the default rules in the Act regarding the transferability of interests may rest on the notion that one generally is entitled to select his own business associates in a closely held enterprise, like an LLC. E.g., 68 C.J.S. Partnership § 1 (2011) ( A partnership has been defined as a contractual relationship or a voluntary association of two or more competent persons to place their money, effects, labor, and skill or some or all of them in lawful commerce or business . . . . ) (emphasis added); 46 AM. JUR. 2D § 1 (2011) ( [A] joint venture is an association of persons with the intent . . . to engage in and carry out a single business venture for joint profit. ); cf. Milford Power Co., LLC v. PDC Milford Power, LLC, 866 A.2d 738, 760 (Del. Ch. 2004) (observing that the LLC Act s default rules that draw a distinction between an LLC member s economic rights which are freely transferable and those aspects of membership, such as managerial rights, which are not freely transferable, recognize[] that it is far more tolerable to have to suffer a new passive co-investor one did not choose than to endure a new co-manager without consent. ); Elf, 727 A.2d at 286. 6 provisions of an LLC agreement itself and that in the event of a conflict, the LLC agreement prevails. 15 Here, Omniglow s LLC Agreement does contain specific provisions bearing on Interests in Omniglow and their transferability, namely §§ 7.1 and 7.2. In deciding the legal question surfaced by Leemon s motion to dismiss, 16 therefore, I must first look to those provisions. If the LLC Agreement allowed Holland to transfer and assign the voting power associated with its Membership Interest to Achaian, that ends the matter notwithstanding that the default provisions in the Act, if applicable, might lead to a different result. For starters, Omniglow s LLC Agreement defines a Member s Interest as meaning the entire ownership interest of the Member in [Omniglow]. 17 Two related sections of 15 Elf, 727 A.2d at 291; 2 BALOTTI & FINKELSTEIN § 20.3 at 20-3; SYMONDS & O TOOLE § 1.03[A][2] at 1-15; LUBAROFF & ALTMAN §§ 1.2 at 1-3, 13.12 at 13-2; see also Arvida/JMB Partners, L.P. v. Vanderbilt Income and Growth Assocs., L.L.C., 1997 WL 294440, at *2 (Del. Ch. May 23, 1997) (noting that where the limited partnership agreement speaks to the issue of whether an assignment of an interest confers a voting interest in a limited partnership, the limited partnership agreement s unambiguous provisions control); Montery Investments, Inc. v. HealthCare Investments, Inc., 1997 WL 367038, at *1 (Del. Ch. June 26, 1997) ( I conclude that when the limited partnership agreement clearly distinguishes between, and delineates the requirements and procedures for, limited partner status as opposed to unit holder status, . . . the status of the purchaser will be determined by the limited partnership agreement. ). 16 Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1195 (Del. 1992) (citing Aetna Cas. and Sur. Co. v. Kenner, 570 A.2d 1172, 1174 (Del. 1990)) ( The proper construction of any contract . . . is purely a question of law. ); Allied Capital Corp. v. GC-Sun Holdings, L.P., 910 A.2d 1020, 1030 (Del. 2006) (observing that because issues of contractual interpretation are questions of law, a motion to dismiss is a proper framework for determining the meaning of contract language. ). 17 LLC Agreement art. I (emphasis added). 7 the LLC Agreement then deal specifically with the transfer of Interests. The first, § 7.1, allows a Member to transfer all or part of its Interest to any Person, 18 at any time: 7.1. Transfer of Interest. 19 [A] Member may transfer all or any portion of its Interest in [Omniglow] to any Person at any time. If at any time such a transfer shall cause [Omniglow] to have more than one Member, then this [LLC] Agreement shall be appropriately amended to reflect the fact that [Omniglow] will then be treated as a partnership for purposes of the [Internal Revenue] Code [of 1986]. 20 Section 7.1 s permissive grant of free transferability, however, is subject to the express restriction contained in § 7.2, which provides: 7.2. Admission of New Members. No Person shall be admitted as a Member of [Omniglow] after the date of this [LLC] Agreement without the written consent of the Member and delivery to [Omniglow] of a written acknowledgement (in form and substance satisfactory to the Member) of the rights and obligations of this [LLC] Agreement and [an] agreement [to] be bound hereunder. 21 Certain undisputed facts are also relevant to decide the current motion. The parties agree that each of Leemon, Achaian, and Holland were admitted as Members in 2006. 22 The parties also agree that even though § 7.1 says that the LLC Agreement shall be appropriately amended in the event that Omniglow came to have more than one Member, 23 there was never any such amendment. 24 Notably, the parties also agree 18 The LLC Agreement defines Person as meaning any natural person, partnership, joint venture, association, corporation, limited liability company, trust or other entity. Id. 19 The titles of the Articles and the headings of the Sections of this [LLC] Agreement are for convenience of reference only, and are not to be considered in constructing the terms and provisions of this [LLC] Agreement. LLC Agreement § 10.5. 20 LLC Agreement § 7.1 (italicized emphasis added). 21 Id. § 7.2 (italicized emphasis added). 22 Tr. at 4 (Counsel for Leemon); Def. Op. Br. at 4; Tr. at 25 (Counsel for Achaian). 23 LLC Agreement § 7.1. 8 that despite the failure to amend the LLC Agreement, the reference in § 7.2 to the written consent of the Member must be read as now meaning Members affording any Member the right to object to the admission of a Person as a new Member. 25 From these undisputed facts, the key contractual provisions in the LLC Agreement, and the default provisions of the Act, the parties draw starkly different conclusions. For its part, Leemon argues that none of the provisions in the LLC Agreement clearly reverse the default rule under the Act, which is that [a]n assignment of a limited liability company interest does not entitle the assignee to become a member or to exercise any rights or powers of a member, and instead only entitles the assignee to the economic interest of the assigning member. 26 Because, in Leemon s view, the LLC Agreement does not plainly provide that the assignee of an Interest will receive the voting rights along with the economic interest, Achaian only received the economic interest associated with Holland s 30% Interest and thus possesses only the original 20% voting power it received from Parent. Alternatively, Leemon argues that the LLC Agreement itself unambiguously distinguishes between the transferability of a Member s economic interest (i.e., the right to share in Omniglow s profits, losses and other distributions) and that Member s voting 24 Achaian, Inc. v. Leemon Family, LLC, C.A. No. 6261-CS, at 11, 13, 14, 21 (Del. Ch. Mar. 28, 2011) (TRANSCRIPT) (Counsel for Leemon, Achaian); see also Compl. ¶ 8 ( The LLC Agreement was not, and has not been, amended. ). 25 Achaian, Inc. v. Leemon Family, LLC, C.A. No. 6261-CS, at 11, 13, 14, 21 (Del. Ch. Mar. 28, 2011) (TRANSCRIPT) (Counsel for Leemon, Achaian); see also Compl. ¶ 8. 26 Def. Op. Br. at 9 (quoting 6 Del. C. § 18-702(b); citing Lusk v. Elliot, 1999 WL 644739, at *2 (Del. Ch. Aug. 13, 1999)). 9 rights (i.e., the right to manage). That is, Leemon says that although § 7.1 allows a Member to freely transfer its economic interest in Omniglow, § 7.2 makes plain that a Member s voting rights can only be transferred with the express written consent of the existing Members. Were it otherwise, argues Leemon, and a Member was allowed to transfer both his economic and voting interest under § 7.1 without first obtaining the consent of Omniglow s other Members, § 7.2 s prohibition against the admission of a new Member without the written consent of existing Members would be superfluous. 27 To avoid that result, Leemon says that § 7.2 applies to transfers or assignments of an Interest to existing Members, like Achaian. That is, Leemon suggests that although Achaian was admitted as a Member with respect to its original 20% Interest, § 7.2 requires Leemon s written consent in order for Achaian to have been admitted as a Member with respect to the additional 30% Interest it acquired from Holland. 28 Achaian, for its part, admits that if Leemon is correct that the Act s default provisions it cites govern the transfer made by Holland to Achaian in the Purchase Agreement, it is possible that the Court might find that Achaian did not acquire Holland s voting rights and does not hold a fifty percent full [I]nterest. 29 But, says Achaian, the LLC Agreement s specific provisions bearing on transferability trump the Act s default rules and permitted Holland to assign its voting rights to another existing Member, like Achaian. To that end, Achaian first points to the LLC Agreement s broad definition of Interest, which means the entire ownership interest of the Member in 27 Id. at 10. Id. at 10-11. 29 Pl. Ans. Br. at 21 n.9. 28 10 [Omniglow]. 30 Achaian says that because § 7.1 allows a Member [to] transfer all or any part of its Interest to any Person at any time, Holland was free to transfer its entire ownership [I]nterest, including that Interest s voting rights, to Achaian in the Purchase Agreement. 31 What s more, says Achaian, § 7.2 is far from superfluous, as Leemon contends. Instead, § 7.2 has an important role to play when a Member wishes to assign his Membership Interest to a Person who is not already admitted as a Member. 32 When a Person is already admitted as a Member, Achaian says that § 7.2 has no relevance, and a Member need not be readmitted as to each subsequent Interest it acquires. 33 III. Leemon s Motion To Dismiss Is Denied For the following reasons, I conclude that Achaian has the better of the argument. When read as a whole, as it must be, 34 the LLC Agreement provides that all of the rights accompanying an Interest including the voting rights in Omniglow may be transferred to an already existing Member of Omniglow without the written consent of the other Members. Read in complete context, the LLC Agreement makes Interests in Omniglow freely transferable subject only to a limited proviso that requires the written consent of the existing Members in order for a transfer to confer the status of Member on a Person, who at the time of the transfer was not already a Member. Because Achaian was already a Member at the time of the Purchase Agreement and nothing in the LLC 30 Id. at 20 (quoting LLC Agreement art. I) (emphasis added). Id. at 18 (quoting LLC Agreement § 7.1). 32 LLC Agreement § 7.2. 33 Pl. Ans. Br. at 19-20. 34 Kuhn, 990 A.2d at 396-97. 31 11 Agreement requires that it be readmitted as a Member with respect to each additional Interest it acquires in Omniglow, it was entitled to receive the entire ownership interest owned by Holland, including that Interest s corresponding voting rights.35 I now explain that reasoning in more detail. I start by noting that Achaian places substantial weight on the LLC Agreement s definition of Interest the entire ownership interest of the Member in [Omniglow]. 36 Although it might be read as a way to ensure that partial positions can be transferred without saying anything about whether the Interest transferred included voting rights,37 the fact that § 7.1 already permits a Member to transfer all or any portion of its Interest casts doubt on that reading because that reading renders the LLC Agreement s specific definition of Interest unnecessary and superfluous. 38 That is, if entire, as used to describe the extent of a Member s ownership interest in Omniglow serves only to confirm that a Member can, under § 7.1, transfer all or any portion of its Interest in the sense that a 60% Member may transfer any percentage up to and including its full 60% Interest, but does not speak at all as to what rights are included in that 60% Interest, the 35 LLC Agreement art. I. Id. 37 In fact, that reading is buttressed by a default provision of the Act, 6 Del. C. § 18-702(a), which provides that [a] limited liability company interest is assignable in whole or in part except as provided in a limited liability company agreement, but as noted, goes on to provide that unless the limited liability company agreement provides otherwise, such an assignment shall not include the right to participate in the management of the [LLC s] business . . . . 6 Del. C. § 18-702(a) (emphasis added). 38 NAMA Holdings, LLC v. World Market Ctr. Venture, LLC, 948 A.2d 411, 419 (Del. Ch. 2007) ( Contractual interpretation operates under the assumption that the parties never include superfluous verbiage in their agreement, and that each word should be given meaning and effect by the court. ) (citing Majkowski v. Am. Imaging Mgmt. Serv., 913 A.2d 572, 588 (Del. Ch. 2006)). 36 12 two provisions of the LLC Agreement would in effect be saying the same thing. It is instead preferable to accord the specific definition of Interest in the LLC Agreement independent meaning and significance.39 In that vein, given that the term entire is used only once in the LLC Act, in a vastly different context, 40 and is not a statutorily defined term, it is also reasonably susceptible to a reading, as Achaian urges, that is consistent with its plain meaning.41 Under its plain meaning, entire would mean what it ordinarily does, as [h]aving no part excluded or left out; [the] whole. 42 It is in this sense that Achaian claims that entire must mean that a Member, like Holland, can transfer under § 7.1 all or any portion of its Interest, i.e., all or any portion of its entire ownership interest . . . in [Omniglow], 43 including the Member s voting rights. 44 That this is what entire is best read as meaning, however, need not be determined in isolation, and in candor only becomes clear and unambiguous when read in full contractual context. 45 39 Id. The only time the word entire or any form of it is found in the Act is in the section dealing with corrections to an LLC certificate of formation. 6 Del. C. § 18-211 ( The corrected certificate shall be specifically designated as such in its heading, shall specify the inaccuracy or defect to be corrected and shall set forth the entire certificate in corrected form. ) (emphasis added). 41 See, e.g., Lorillard Tobacco Co. v. Am. Legacy Found., 903 A.2d 728, 738 (Del. 2006) ( Delaware courts look to dictionaries for assistance in determining the plain meaning of terms which are not defined in a contract. ) (citations omitted). 42 THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 597 (4th ed. 2000); see also WEBSTER S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 758 (G. & C. Merriam Company 1976) (defining entire to mean with no element or part excepted : whole, complete . . . . ); BLACK S LAW DICTIONARY 477 (5th ed. 1979) (defining entire to mean [w]hole; without division, separation, or diminution; unmingled; complete in all its parts . . . . ). 43 LLC Agreement art. I (emphasis added). 44 Pl. Ans. Br. at 20, 21, 24, 28. 45 Kuhn, 990 A.2d at 396-97. 40 13 To that point, it is only when the second sentence of § 7.1 and § 7.2 are considered that the LLC Agreement s broad definition of Interest emerges as unambiguously including all aspects of Membership in Omniglow, including managerial voting rights. The second sentence of § 7.1 provides that [i]f at any time such a transfer shall cause [Omniglow] to have more than one Member, then this [LLC] Agreement shall be appropriately amended to reflect the fact that [Omniglow] will then be treated as a partnership for purposes of the [Internal Revenue] Code [of 1986]. 46 The second sentence of § 7.1 makes clear that a Member s Interest i.e., its entire ownership interest . . . in [Omniglow] 47 includes every aspect of a Member s Interest, including the portion that confers the status of Member, in whom, under § 4.1 of the LLC Agreement, managerial authority is vested. If it were otherwise, and an Interest in Omniglow represented only a Member s economic interest, as Leemon argues, the second sentence of § 7.1 would seem to be unnecessary because in that case, an existing Member could not transfer or assign the voting rights included in its Interest to another Person such that as a result of such transfer or assignment, that Person could become a Member. In light of well settled principles of contract interpretation in Delaware, 48 the reading proffered by Leemon would tend to render the second sentence of § 7.1, to phrase it in a word favored by Leemon, superfluous. 46 LLC Agreement § 7.1 (emphasis added). Id. art. I. 48 Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. 2010) ( We will not read a contract to render a provision or term meaningless or illusory. ) (citations omitted). 47 14 Of course, the fact that § 7.1 seems to permit the free transfer of the entire Interest, including that Interest s associated voting rights, does not end the inquiry. Instead, I must look at what effect the section of the LLC Agreement addressing the admission of Members has, keeping in mind that the Act affords maximum contractual flexibility to provide in an LLC agreement the precise mechanism by which an assignee of a limited liability company interest may become a member. 49 As § 7.2 of the LLC Agreement provides in this case, [n]o Person shall be admitted as a Member of [Omniglow] . . . without the written consent of the Member[s] . . . . 50 As noted, Leemon does not contest the fact that Achaian, like Leemon, was admitted as a Member of Omniglow when Parent assigned and sold all of Omniglow s Interests to Leemon, Holland, and Achaian in 2006. 51 Instead, Leemon focuses on the specific 30% Interest that was transferred to Achaian under the Purchase Agreement and argues that Achaian has not been admitted as a substituted [M]ember with respect to the 30% Interest, as provided by Section 7.2 of the LLC Agreement. 52 But nothing in the text of § 7.2 suggests that once a Person has been admitted as a Member, she must be admitted again in order to acquire additional voting rights when she acquires additional Interests in Omniglow. The reason for § 7.2 s check on § 7.1 s free grant of transferability is most naturally read as a manifestation of the unremarkable idea that one gets to choose one s own business partners (or in the case of an LLC, one s co49 6 Del. C. § 18-704(a)(1). LLC Agreement § 7.2 (emphasis added). 51 Achaian, Inc. v. Leemon Family, LLC, C.A. No. 6261-CS, at 21 (Del. Ch. Mar. 28, 2011) (TRANSCRIPT) (Counsel for Leemon). 52 Def. Op. Br. at 11. 50 15 members). 53 Leemon s argument relies on a very thinly sliced version of that, which is that once one chooses his initial co-members, one continues to hold a veto over how much additional voting power they may acquire. That is a strained extension of the traditional idea underlying partnerships and limited liability companies, and is not supported rationally by the LLC Agreement s text or by the context. As it was, Leemon had already agreed in 2006 to become partners (or more properly, co-members) with Achaian and Holland in Omniglow s business. Thus, Leemon, as a 50% Interest holder, knew that Achaian and Holland could have voted together at any time to stymie Leemon from acting unilaterally. Leemon responds, however, that the LLC Agreement makes sure that if Holland and Achaian agreed to a transfer, in whatever direction, that vested all the voting power in one of them, the transferee had to be admitted as a Member for a second time the first time being in 2006 when Parent sold its Interests to both Achaian, Holland and Leemon and approved their Membership. The problem for Leemon is that nothing in the LLC Agreement supports Leemon s reading of it that would require an already admitted Member, like Achaian, to be become once, twice (or even three times) a Member each and every time that Member acquires an additional block of Interests. 54 By its plain terms, § 7.2 is directed at, and 53 68 C.J.S. Partnership § 1 (2011); 46 AM. JUR. 2D § 1 (2011); cf. Milford Power Co., 866 A.2d at 760; Elf, 727 A.2d at 286. 54 See COMMODORES, Three Times a Lady, on NATURAL HIGH (Motown Records 1978) ( You re once, twice, three times a lady/And I love you . . . . ). 16 applies only to, a Person who is not yet admitted as a Member. 55 Because Achaian was already admitted as a Member at the time of Holland s 2010 transfer, § 7.2 has no application. 56 Nor has Leemon cited anything in the LLC Act, the Uniform LLC Act, or learned commentaries and treatises on alternative entities suggesting that such a serial admission scheme is standard practice. To the contrary, the Delaware LLC Act seems to contemplate a singular admission governed by the specific terms of the LLC agreement, providing that [a]n assignee of a limited liability company interest may become a 55 LLC Agreement § 7.2 (emphasis added). This is in stark contrast to the provisions of a materially different LLC agreement considered in a case cited by Leemon from outside this jurisdiction, Ault v. Brady, 37 F. Appx. 222 (8th Cir. 2002) (applying Arkansas law). Importantly, unlike § 7.2 that expressly cabins its reach to Persons who are not admitted as a Member, the applicable provision in the Ault case provided a blanket restriction on the transfer of a membership interest s attendant voting rights: No member shall sell, assign, transfer, pledge or encumber any interest in the Company without the prior written consent of the Manager and the other Members. Any person acquiring rights with respect to any interest in the Company . . . shall not be deemed a substituted Member and shall be restricted to the right to receive any distributions made with respect to such interest. Ault, 37 F. Appx. at 225 (emphasis added). In holding that an already existing member received only the economic interest associated with the transferred interest, the Eighth Circuit observed that the above-quoted provision, unlike § 7.2 of the LLC Agreement at issue in this case, does not expressly limit transfers covered by the provision to only non-member transfer[ees]. Instead, [it] states that no transfers shall be made without the consent of the members regardless of to whom the transfer is made, [and that the clause] applies to any person acquiring rights, which clearly would include members and nonmembers alike. Id. (emphasis in original). Thus, Ault is of no relevance to this case other than for the proposition, implicitly recognized by the Eighth Circuit, that the precise provisions of a given limited liability company agreement control the question of what interests a member can transfer. 56 That § 7.2 s restriction on transferability applies only to a Person who is not yet admitted as a Member does not, contrary to Leemon s argument, render § 7.2 superfluous. For instance, § 7.2 s written consent requirement would clearly apply to the counterfactual situation in which Holland, instead of assigning its 30% Interest to Achaian (an existing Member), assigned that Interest to a non-Member. In the case where Holland assigned its Interest to the non-Member, § 7.2 would require both Leemon and Achaian s written consent as Members. 17 member . . . as provided in the limited liability company agreement. 57 To that point, Leemon s argument conflicts with the LLC Agreement s definition of a Member s Interest in Omniglow. That is, if § 7.2 requires, as Leemon argues, that Achaian be admitted as two Members, one with respect to each block of Interests it owns, the LLC Agreement s definition of Interest the entire ownership interest of the Member in [Omniglow] would make scant sense because in that case, a Member s Interest would not be its entire ownership interest in Omniglow, but, as in the case of Achaian, only a portion of it, the other portion also being owned by Achaian, albeit a different Achaian for purposes of Membership in Omniglow. On the basis of the foregoing, I conclude that under the terms of the LLC Agreement, Holland was permitted, and did, transfer its entire 30% Interest to Achaian, including that Interest s voting rights. Thus, Achaian is entitled to the declaratory 57 6 Del. C. § 18-704(a)(1) (emphasis added); see also 6 Del. C. § 18-301(b)(2) ( After the formation of a limited liability company, a person is admitted as a member of the limited liability company . . . [i]n the case of an assignee of a limited liability company interest, as provided in § 18-704(a) of this title and at the time provided in and upon compliance with the limited liability company agreement . . . . ) (emphasis added). The Uniform LLC Act and the Revised Uniform LLC Act are similarly focused on the specific terms of the LLC agreement. See RIBSTEIN & KEATINGE § 7:4 (citing REVISED UNIFORM LIMITED LIABILITY COMPANY ACT § 401 (2006)) (observing, under the Revised Uniform LLC Act, that [a]fter formation of the LLC a person becomes a member as provided in the operating agreement . . . . ) (emphasis added); see also UNIFORM LIMITED LIABILITY COMPANY ACT § 503 (1995) ( A transferee of a distributional interest may become a member of a limited liability company if and to the extent that the transferor gives the transferee the right in accordance with authority described in the operating agreement or all other members consent. ) (emphasis added). Thus, Leemon s citation in its briefs to a case interpreting a materially different provision in a different LLC agreement is unconvincing. See Rowe v. Voyager Hospicecare Holdings LLC, 2010 WL 2502878, at *5 (Kan. Ct. App. June 18, 2010) (applying Delaware law) (holding, on the basis of a provision in an LLC agreement that provided that [a]n assignee of any Units or other interests in the Company of a Member . . . shall become a substituted Member . . . if and only if the assignor gives the assignee such right and the Board has granted its prior written consent to such assignment . . . , that absent the Board s consent, the assignee did not become a Member, but instead only received the Units corresponding economic interest) (emphasis added). 18 judgment it seeks, namely that Omniglow currently has two Members 58 Leemon and Achaian each holding an identical 50% Membership Interest. The sole remaining issue is therefore whether Achaian has pled facts sufficient to support its application for judicial dissolution under 6 Del. C. § 18-802. This court, when considering an application for judicial dissolution of an LLC with two coequal managers, has on several prior occasions analogized the situation to an application made under 8 Del. C. § 273 for a judicial dissolution of a joint venture corporation. 59 Thus, in order for a plaintiff seeking judicial dissolution to survive a motion to dismiss, the plaintiff must plead the recognized three prerequisites for a judicial order of dissolution [under § 273]: 1) the corporation must have two 50% stockholders, 2) those stockholders must be engaged in a joint venture, and 3) they must be unable to agree upon whether to discontinue the business or how to dispose of its assets. 60 Achaian has met its pleading burden. 58 Holland, upon the execution of the Purchase Agreement, ceased to be a Member of Omniglow. See 6 Del. C. § 18-702(b)(3) ( Unless otherwise provided in a limited liability company agreement: [a] member ceases to be a member and to have the power to exercise any rights or powers of a member upon assignment of all of the member s limited liability company interest. ) (emphasis added). 59 See, e.g., Vila v. BVWebTies, 2010 WL 3866098, at *7 (Del. Ch. Oct. 1, 2010); Haley v. Talcott, 864 A.2d 86, 94 (Del. Ch. 2004) (analogizing to 8 Del. C. § 273 in the court s consideration of an application for judicial dissolution of an LLC with two coequal members); see also In re Silver Leaf, L.L.C., 2005 WL 2045641, at *10 n.82 (Del. Ch. Aug. 18, 2005) (citing Haley for the proposition that where an LLC has two deadlocked owners, the court should analogize to 8 Del. C. § 273); Homer C. Gutchess 1998 Irrevocable Trust v. Gutchess Co., LLC, 2010 WL 718628, at *1 (Del. Ch. Feb. 22, 2010) (same). 60 Haley, 864 A.2d at 94. 19 First, as Achaian pleads, I have now found that Omniglow has two coequal 50% Interest owners, each with an equivalent corresponding 50% right to manage Omniglow. 61 Second, Achaian adequately pleads that the two Members are engaged in a joint venture, Omniglow. Although Leemon argues in its briefs that Achaian purchased Holland s 30% Interest in an effort to purchase a phony deadlock, 62 such extrapleading factual contentions about Achaian s motivations, even if relevant, are inappropriate considerations at this procedural stage. 63 Lastly, Achaian alleges that it and Leemon have been unable to agree on the management of Omniglow, and the LLC Agreement does not provide a reasonable exit mechanism or other provision to break the deadlock. 64 In fact, Achaian alleges that since wresting control of Omniglow in 2008, over the objection of both Achaian and Holland, Leemon has managed Omniglow to the exclusion of both Achaian and Holland, who together at all relevant times represented 50% of Omniglow s Membership Interests. 65 61 Compl. ¶¶ 10-11. Def. Op. Br. at 11; see also id. at 1, 7. 63 See Malpiede v. Townson, 780 A.2d 1075, 1082 (Del. 2001) ( The complaint ordinarily defines the universe of facts from which the trial court may draw in ruling on a motion to dismiss . . . . [T]he Court of Chancery may not resolve material factual disputes; instead, the court is required to assume as true the well-pleaded allegations in the complaint. ). 64 E.g., Haley, 864 A.2d at 88; Silver Leaf, 2005 WL 2045641, at *11 ( Silver Leaf is no longer able to carry on its business in a reasonably practicable manner. The vote of the members is deadlocked and the [LLC] Agreement provides no means around the deadlock . . . . ). 65 Compl. ¶¶ 13, 24-26. 62 20 Thus, Achaian has pled facts sufficient to give rise to the inference that the management of Omniglow is deadlocked, and I therefore deny Leemon s motion to dismiss. IV. Conclusion For the foregoing reasons, I grant Achaian s request for declaratory judgment. Leemon s motion to dismiss is DENIED. IT IS SO ORDERED. 21
Get free summaries of new Delaware Court of Chancery opinions delivered to your inbox!


An interview with Canada's former ambassador to Iran, Egypt, and Jordan, about Iran's current leadership and the broader role of religion in Middle Eastern politics.
Three reasons why the Middle Eastern proliferation nightmare scenario is just a bad dream.
The recent activity of al-Qaida-linked insurgents in Iraq's Anbar province presents an opportunity for closer cooperation between the three countries, argue Wisam Salih and Navid Hassibi.
Iran recently released a draft of its new Citizens' Rights Charter. A close reading reveals that it would further entrench discrimination against minority groups says Kaveh Shahrooz.
The Harper government's knee-jerk criticism of the nuclear deal with Iran is highly irresponsible says Steve Saideman. Fortunately, nobody else cares.
OpenCanada talked to Bruce Jentleson about the clash between old weapons and new norms currently playing out in Syria.
Saeed Rahnema on Iranian President Rouhani's choice for Minister of Justice.
Kaveh Shahrooz on why it is essential to revisit Iran's painful past to get to a democratic future.
Gissou Nia on why denying women the right to run for President is only a small part of the regime's apparatus of repression.
Ali Ansari on the historical context of the Iran's push for human rights.
Geoffrey Cameron and Robert Joustra on why the rights of Iran's religious minorities won't be respected until those of the majority are as well.


Here are my Chrome Extensions for the week. I hope you enjoy!
Summary: This extension allows you to see all of your upcoming Google Calendar events, receive notifications and snooze events from any open window/tab.
Summary: Capture a region or the entire webpage with this extension. Allows you to bookmark the image or save in your Drive. Easily create an account with your Google login.
Summary: Automatically create a citation (APA, MLS, Chicago, or Harvard) from any webpage.
Summary: This extension will keep Google Hangouts open when you are logged into your computer.


text:
Descubram > Um Amor Supremo
Anne Teresa De Keersmaeker & Salva Sanchis [CANCELLED]
© Anne Van Aerschot.
"You realize that this is some of the purest, most unfussy dancing to jazz music that you have ever seen. Even as it was still unfolding, I wanted to sit through it again, right there, right then"
The Village Voice, New York
After listening to John Coltrane's highly acclaimed, award-winning eponymous album, the time has come to dance the music. A Love Supreme, by Salva Sanchis and Anne Teresa de Keersmaeker, results from the fascination that the two choreographers feel for the music of this iconic jazz figure: "In this album, we feel a unique accumulation of energies, the core of Coltrane's creative power, as well as of his quartet, and perhaps of an entire society and epoch."
In A Love Supreme, Coltrane and his musicians develop a deceptively simple melodic structure in order to allow for unlimited freedom of improvisation. This freedom is almost literally translated into dance, insofar as each of the four dancers "embodies" one of the instruments of Coltrane's quartet. As in the legendary album, composition and improvisation are intertwined in an indiscernible manner, in an interpretation that reflects the immortal vitality of John Coltrane's music.
A Love Supreme Trailer
Season 2020-21
SUN 11:00
NEW CURFEW SCHEDULE
12, 13 DEC > 11:00
TICKETS REIMBURSEMENT
JÉRÔME BEL was born in 1964. He lives in Paris and works worldwide. In his early pieces, he applied structuralist operations to dance in order to single out the primary elements from theatrical spectacle. In offering the stage to non-traditional performers (amateurs, people with physical and mental handicaps, children), he shows a preference for the community of differences over the formatted group, and a desire to dance over choreography, and duly applies the methods of a process of emancipation through art. He has been invited to contemporary art biennials and museums, where he has put on performances and shown films. In 2005, Jérôme Bel received a Bessie Award for the performances of The show must go on given in New York. Three years later, with Pichet Klunchun, he won the Routes Princesse Margriet Award for Cultural Diversity (European Cultural Foundation) for the performance Pichet Klunchun and myself.
Salva Sanchis, Anne Teresa De Keersmaeker
DANCED BY
José Paulo dos Santos, Bilal El Had / Robin Haghi, Jason Respilieux, Thomas Vantuycom
ORIGINAL VERSION CREATED IN 2005 BY
Cynthia Loemij, Moya Michael, Salva Sanchis, Igor Shyshko
A Love Supreme, John Coltrane
Tenor saxophone, vocals: John Coltrane, piano: McCoy Tyner, bass: Jimmy Garrison, drums: Elvin Jones
Acknowledgement, Resolution, Pursuance & Psalm © Coltrane, J., © Jowcol Music, Inc. (Universal Music Publ. N.V.)
Jan Versweyveld
REVISED LIGHTING DESIGN
Anne Teresa De Keersmaeker, Luc Schaltin
Anne-Catherine Kunz
COPRODUTION
Rosas, De Munt/La Monnaie (Brussels)
Inspired in A Love Supreme
Ricardo Toscano
18–19 Dec 2020
Bal Moderne
16–17 Feb 2023
Victor Hugo Pontes
Corpo Clandestino
FRANÇOIS CHAIGNAUD E GEOFFROY JOURDAIN
t u m u l u s
Tânia Carvalho
Versa-vice
Dia Estudante

redpajama_set_name: RedPajamaCommonCrawl


INGREDIENTS: ICE CREAM INGREDIENTS: MILKFAT AND NONFAT MILK, HIGH FRUCTOSE CORN SYRUP, CORN SYRUP, BUTTERMILK, SUGAR, WHEY, ARTIFICIAL FLAVOR, MONO-AND DIGLYCERIDES, GUAR GUM, XANTHAN GUM, POLYSORBATE 80, LOCUST BEAN GUM, CARRAGEENAN.
WAFER INGREDIENTS: BLEACHED WHEAT FLOUR, SUGAR, CARAMEL COLOR, DEXTROSE, PALM OIL, CORN FLOUR, COCOA, HIGH FRUCTOSE CORN SYRUP, CORN SYRUP, MODIFIED CORN STARCH, BAKING SODA, SALT, MONO- AND DIGLYCERIDES, SOY LECITHIN.
MAY CONTAIN TRACES OF: EGGS, PEANUTS, TREE NUTS.


text:
Q: why does var behave differently in a with statement depending on whether or not the passed object has a property with the same name?

function foo(obj) {
  with(obj) {
    var x = 2;
  }
  console.log(x);
}
let o1 = {};
foo(o1); // 2 (x is visible even outside the with statement because of *var*)

function foo2(obj) {
  with(obj) {
    var x = 2;
  }
  console.log(x);
}
let o2 = {
  x: 1
};
foo2(o2); // undefined (why?)

I'm reading along Kyle Simpson's Scope & Closures book from the YDKJS series and I was able to understand all of the quirks of with statements and how with(obj) { a = 1 } is functionally different from obj.a = 1 despite having been intended as a shorthand for it in cases of long object names and having to constantly reference it. This is because the object's properties are treated as lexically defined identifiers in that scope (a vs obj.a), and that in sloppy mode, one side effect of this is that if the object you pass into a with statement doesn't have a property that you are trying to assign to, a global variable of that name will be created. Still, armed with all this knowledge and more, I don't quite understand why the code above behaves the way it does. Why does foo(o2) log undefined?

A: The difference in behaviour can be accounted for by this behaviour, described in (for instance) the following note in ECMAScript 2022 Language Specification sect 14.3.2.1:

NOTE: If a VariableDeclaration is nested within a with statement and the BindingIdentifier in the VariableDeclaration is the same as a property name of the binding object of the with statement's object Environment Record, then step 5 will assign value to the property instead of assigning to the VariableEnvironment binding of the Identifier.

In the first case:
function foo(obj) {
  with(obj) {
    var x = 2;
  }
  console.log(x);
}
let o1 = {};
foo(o1);

because obj has no x property, the var statement is hoisted to the top of the function and is therefore visible beyond the scope of the with statement.
In the second case:
function foo2(obj) {
  with(obj) {
    var x = 2;
  }
  console.log(x);
}
let o2 = {
  x: 1
};
foo2(o2);

x exists on obj, so we satisfy the conditions laid out in the quoted note, and therefore the value is assigned to the property and no hoisted variable is created. Now, there's no x outside the scope of the with statement.

redpajama_set_name: RedPajamaStackExchange


Since 1946, the Animal Welfare League of Alexandria has made a commitment that if an animal is in need, they will provide the care that every animal so richly deserves. the Animal Welfare League of Alexandria places about 1,300 animals each year.
The Fauquier SPCA is a private, 501(c)(3) non-profit organization dedicated to providing a temporary refuge for stray, homeless and abandoned animals, and to place such animals in a caring, appropriate home whenever possible.
The Haymarket Regional Food Pantry is an ecumenical and community based ministry comprised entirely of volunteers dedicated to eliminating hunger by providing food to those in need of assistance in Haymarket and surrounding area.
The Animal Control Bureau enforces animal welfare laws, conducts animal education seminars, houses stray and unwanted animals in a clean and safe environment and coordinates the adoption of animals. Please adopt from the shelter -- it saves lives!
This all-volunteer organization is dedicated to protecting domestic animals from cruelty, neglect, and abandonment, and stopping the unnecessary overpopulation of companion animals.
Vint Hill Dog Park is open dawn to dusk and is located at the corner of Kennedy Rd & Aiken Dr, just off Vint Hill Rd.
Wylie Wagg has operated as a family-owned business with a solid belief that success is built on personal relationships and individual experiences. Each and every customer -- two-legged and four -- is important to us. If you live near one of our four store locations, please stop by for a visit.


text:
Home /CPA Journal Content/Making the Case for Corporate Community Engagement
Making the Case for Corporate Community Engagement
Legal, Accounting, and Business Strategy Considerations
By Madden DeGarmo Manion, Meghan D. Hely Walsh, Jeffrey Senne and Spring Taylor Lacy
Manion opened the panel by discussing employee engagement with respect to sustainability, saying, "we really think about employee engagement as a key driver of the sweet spot for companies—it connects the employees' passion and interest with community need and with company interest." She added that it also improves morale, noting that companies have saved $2,400 per engaged employee in decreased turnover and increased productivity. Employees who participate in skills-based engagement also increase leadership, communication, and problem-solving skills. She also said that millennials and consumers are increasingly advocating for companies to have community engagement programs.
Measuring Engagement
She then turned to Lacy to describe Prudential's community engagement experience. Lacy said that the program's goal was to figure out, "How do we create programs that connect employees to the company's purpose in a way that both leverages their skills and their talents and their expertise while having a community impact?" This led to both "done in a day" programs, such as cleaning playgrounds, as well as pro bono, skills-based services, such as serving on boards.
Senne shared his thoughts on measuring the value and effectiveness of a company's employee engagement program. He cited a Gallup poll which found that 51% of employees are disinterested in their jobs, which costs the economy an estimated $35 billion a year. PricewaterhouseCoopers conducts its own, intensive engagement survey of its employees, he said, and compares data from that survey with data on participation in its volunteer and corporate responsibility initiatives. The results suggest that the company makes $150 million annually in increased productivity from employees who participate.
Lacy said that Prudential does similar measurements, but as its program is newer, it has not reaped rewards on quite that level. Lacy noted that Prudential tracks participation by length of tenure with the company. In addition, she said, it measures how employees incorporate the skills learned in engagement programs into their day-to-day job performance. Walsh said that Holland & Knight does similar assessments, where employees self-report on experience gained from volunteer activities, such as attending a deposition or a client meeting well before they would have on a paid engagement.
Skills-Based Programs
Manion next asked the panel about skills-based volunteer engagement. Walsh discussed the structure of Holland & Knight's program. "You want to set a very clear policy at your organization around what your goals are for each individual and for the firm as a whole," Walsh advised. Goals are expressed in terms of employee hours spent and percentage of annual revenue. It also partners with specific nonprofits to find opportunities and train the employees who volunteer. Walsh also recommended that firms carefully document and adhere to the exact scope of the volunteer engagement.
Senne gave examples of skills-based work. PricewaterhouseCoopers does, saying that increasing the amount of skills-based projects the company offered drove the company's "top talent" to get more involved and increased the perceived benefit of the program. Lacy added that skills-based and non–skills-based programs serve different needs, and that firms can match skills-based opportunities to employees that need or want to develop that skill. Both Senne and Lacy noted that non–skills-based volunteering can be an easier "sell" to management, both because of the lower cost and the immediate return.
Walsh said that in some cases, non–skills-based projects had led to skills-based ones, essentially serving as a networking opportunity for the two organizations in addition to a service project. "We're giving them our resources that they may not have in house, and we're getting from them a little bit more loyalty." The other panelists agreed that this was a fruitful way to develop relationships. Senne even wondered if service partnerships and volunteering could replace the golf course as a venue for business-to-business networking.
Senne then returned to the topic of valuation, saying that while PricewaterhouseCoopers still uses many traditional valuation methods, it has also incorporated analysis of sustainable development goals into its services. He used the example of gender equity, saying that the firm has estimated that eradicating the glass ceiling by 2030 would yield close to 7% more annual revenue for the economy. "That's huge," he said.
Audience Q&A
After Manion opened the floor, an audience member asked about the motivating factors for small businesses to engage in social responsibility activities. Senne said that small and medium-sized businesses are often easier to get involved in corporate engagement, since they have a smaller overall scope and are often embedded in their communities in a way that large multinationals aren't. Lacy added that, even though the United States has no social responsibility mandate—as some countries, such as India, do—there exist strong incentives for companies to engage in such behavior, including employee interest and stake-holder engagement.
Another audience member asked how companies can balance the costs of social responsibility engagement. Walsh replied that, while she could not define "that exact value in terms of impact … we have to do it because our competitors do it and because our employees can go to 200 other firms that do it and that believe in it." Lacy summed up by asking rhetorically, "What's the cost of not doing it?"
As Manion asked for final thoughts, Senne said that while measuring the value of such programs can be helpful, "not everything has to be done through a valuation lens." Business leaders do, he said, understand that "business can't thrive where society and communities are failing." Walsh gave a final piece of advice to companies beginning their engagement programs: Make it fun. Provide some food or drinks, she added, and "make it a chance for bonding, and they'll remember that day for the rest of the year."
Madden DeGarmo Manion chief development officer at Points of Light, moderated the panel.
Meghan D. Hely Walsh, JD public and charitable service manager at Holland & Knight LLP;.
Jeffrey Senne senior director of corporate responsibility at PricewaterhouseCoopers;.
Spring Taylor Lacy vice president of corporate and community engagement at Prudential Financial Inc., were the panelists.
Fake Earnings: Accountants and Non-GAAP Financial Measures
Free Resources on Sustainability Reporting
TAGS: Sustainability corporate community engagement


In this fun course, taught by our own Harrison Womack and Erin O'Donnell. You'll learn how to master your inbox and be a wizard at Outlook Desktop. We'll provide a delicious lunch and help you not hate checking your email. Topics include: Overview of how email works Tips for Staying Organized: Inbox Zero Outlook Desktop Tips and Tricks Staying Safe: Identifying SPAM Using Encryption when needed Protecting your account with MFA .


Are you new to vaping and electronic cigarettes? You may be wondering what an e-cig even is, as well as what components it contains to make it work. You may even be wondering how it works.
All of the information you need to introduce yourself to e-cigs is below.
Also commonly referred to as an e-cigarette, e-cig, personal vaporiser, or PV, an electronic cigarette is an inhaler that works off the power of a battery to produce vapour from a liquid solution, called an e-liquid.
The aerosol mist that's made by the e-cig can be safely inhaled and exhaled, just as you'd inhale and exhale the smoke from a regular cigarette, so this is a great alternative to traditional tobacco cigarette smoking.
Tank: This is the area in which the e-liquid is held. E-liquids come in a variety of different flavours to suit every vaper's preferences. And they also come in a variety of different nicotine strengths so people can easily quit nicotine altogether.
Battery: The majority of e-cig kits come packaged with two rechargeable lithium-ion batteries of 3.7 volts. The battery is essential to the operation of the electronic cigarette because it charges up the atomiser that then produces the vapour from the e-liquid in the cartridge.
LED: In order to simulate the look of a real cigarette, an electronic cigarette will often have a little LED light at the opposite end so that, whenever you inhale the vapour, it can light up in the same way that a real cigarette burns down when you take a puff. But LED lights can also be used to let you know how much power is left in the battery. This will alert you when it's necessary to recharge or plug in your device so that you never have to deal with an interrupted vaping session.
Other Miscellaneous Components: Other internal components include a plastic adapter, positive and negative cables, a ceramic cup, a heating coil, a metal mesh dome, a pressure sensor and voltage control, and an electrical connector.
What is an e-cigarette tank?
An e-cigarette tank is a major component of an e-cig, so let's take a look at how it works to really understand the device better on a whole.
Whenever you inhale on the e-cig, the device's rechargeable battery will create solid contact with negative and positive wires within the tank's metal casing. This turns on this part of the device and allows it to transform the e-liquid into a vapour within the metal mesh dome. The e-liquid is effectively pulled up from the tank where it had been stored up to this point. After you inhale the vapour, you can exhale it to allow it to dissipate in the air harmlessly. And the great thing, too, is that the vapour is virtually odourless.
The act of inhalation will trigger a sensor that will work to switch the atomiser on, which is basically used to generate heat with the help of a rechargeable battery.
The e-liquid that contains the right amount of nicotine for you will be vaporised in the cartridge where it is held. The LED light at the end of the e-cig will also light up to mimic a real cigarette burning.
As you inhale the flavoured e-liquid, it will reach your lungs just like regular smoke from a tobacco cigarette.
When you exhale this vapour, you will actually be exhaling PEG vapour, rather than smoke. This vapour will quickly disappear into the air.
The great thing about e-cigs is the fact that you can choose the amount of nicotine that you want to inhale. Traditional cigarettes contain anywhere from 14 to 21 mg of nicotine. Nicotine replacement items typically have anywhere from 6 to 48 mg of nicotine. But you can reduce your dependency with an e-cig, which typically contains 3.36mg of nicotine, on average.
Another great feature about electronic cigarettes is the fact that they last longer than traditional cigarettes and are, therefore, less expensive. One cartridge will typically last the same amount of time as 25 cigarettes.
Finally, it should be noted that e-cigs promote better health, are less environmentally destructive, and don't pose a threat to second-hand smokers. With so many reasons to vape, it's no wonder e-cigs are so popular.


This essay explores a dialogue between cognitive science and applied performance in which practice based methods, predicated upon embodied cognition offer insights into 'theory of mind' in autism. The discussion will map Chris Sinha's insights about the way objects prompt cognitive development by studying autistic children's play through the project 'Imagining Autism' (AHRC, University of Kent). The project uses intermediality, immersive environments, puppetry and object based performance in play based interventions aimed at addressing the 'triad of impairments' in autism. Close analysis of the childrens' interactions and handling of objects reveals the necessity of the haptic dimension of thought.


Get off to a great start in 2018! – Choose a great savings account to help you reach your savings goals.
See below for your exclusive offers and signup today! And remember, you can keep track of it all in Frollo!
Frollo is designed for people like you.
We provide the right tools and advice for you to achieve your financial goals and keep you inspired along the way! The Frollo community is all about working together to get more from our money and get better deals!


1. Preheat oven to 180 degrees Celsius. Grease and line base of a 22cm springform pan.
2. Place flour, sugar, coconut, milk, egg and vegetable oil in a large bowl. Whisk to combine. Stir through diced pineapple.
Pour into a prepared pan and bake for 45 minutes or until a skewer inserted comes out clean (do not turn off the oven). Cool in pan for 5-10 minutes, then turn out onto a wire rack to cool completely.
To make the pineapple flowers: Grease 12 hole muffin pans. Place pineapple flowers in the muffin pans and bake for 20-25 minutes. Cool in pans for 10 minutes.
Decorate cake with pineapple flowers.
Gorgeous cake. I love the presentation!
Not a real pineapple fan, but very Nice!
Pineapple Flowers…How Pretty!!! Sounds Delish too!!!
Sarah that is very beautiful.


text:
Synanthedon flaviventris, the sallow clearwing, is a moth of the family Sesiidae. The larvae form pear-shaped galls on sallows (Salix spp).

Description
The eggs are laid in the axils on slender shoots (<10 mm diameter) of sallows, and the first year larva excavates a tunnel which shows no external signs of the larva. In the spring of the following year the larva can be as long as 17–18 mm and tunnels deeper into the tissue of the stem, excavating a vertical tunnel 50–75 mm long and 3 mm in diameter. By the second autumn the frass is pressed into cavities between the bark and wood, and the pear-shaped gall is noticeable. The larva feeds on sallows and their hybrids; eared willow (Salix aurita), goat willow (S. caprea), creeping willow (S. repens), grey willow (S. cinerea), white willow (S. alba), crack willow (Salix × fragilis), European violet willow (S. daphnoides) and rosemary-leaved willow (S. rosmarinifolia). Before pupation, the larva makes an exit hole and the pupa (11–13 mm long) is yellowish and formed head down in a chamber above the gall. There is no cocoon. Adults have a wingspan of 17–20 mm and are on the wing in June and July. The species has a two-year life cycle, with adults present mostly in even years.

Distribution
It is found in most of Europe (except Ireland, Norway, the Netherlands, the Iberian Peninsula, most of the Balkan Peninsula and Ukraine). and Russia (southern Siberia, Baikal, Irkutsk, Chaborowsk, Ussuri).

Notes

References

Sesiidae
Gall-inducing insects
Moths described in 1883
Moths of Asia
Moths of Europe
Taxa named by Otto Staudinger
Willow galls

redpajama_set_name: RedPajamaWikipedia


text:
Home Symbol which looks like a small house Up Solid circle with an upward pointer in it
NIST Chemistry WebBook, SRD 69
IUPAC identifier
NIST Data
SRD Program
Office of Data and Informatics
Author: Hall, C.R.L.
You may also wish to search for items by Hall, C.R., Hall, C. and Hall.
4 matching references were found.
Taylor, J.; Hall, C.R.L., Determination of the heat of combustion of nitroglycerin and the thermochemical constants of nitrocellulose, J. Phys. Chem., 1947, 51, 593-611. [all data]
Taylor, J.; Hall, C.R.L.; Thomas, H., The thermochemistry of propellent explosives, J. Phys. Colloid Chem., 1947, 51, 580-592. [all data]
Taylor, J.; Hall, C.R.L.; Thomas, H., The Thermochemistry of Propellant Explosives, J. Phys. Chem., 1947, 51, 580. [all data]
Taylor, J.; Hall, C.R.L., J. Phys. Chem., 1947, 51, 593. [all data]
© 2018 by the U.S. Secretary of Commerce on behalf of the United States of America. All rights reserved.
Copyright for NIST Standard Reference Data is governed by the Standard Reference Data Act.
Disclaimer (Note: This site is covered by copyright.)


Apologies for the length of the response, but the logic is self-evident in the text.
Some thoughts on 'AAARRKITECTURE,' the hard and certain display of ME & MY CLEVERNESS - BESPOKE ME: the one and only genius creator. Is this the new way in which 'architecture' seeks to 'speak to us': "I have bespoken"?
One is tempted to yell out 'FAAARRK!' - but these projects in Augmented Australia: the contemporary list need a better, more considered response than the cliché scream that can just be too easily dismissed as the dumb grudge of inarticulate ignorance that is facetiously declared to be a total lack of understanding.
An earlier critique of Tschumi's Parc de la Villette comes to mind. Everything appeared different and new, creatively askew and red for its own diverse theoretically graphic sake and sense, nothing else; but a door was still a door that related to one physically and emotionally in the same way as any other when approached, as did the rusting detail of the window frame: its fact in failure too. It is this understanding, the recognition, acceptance, accommodation of and caring for these subtleties of ordinary experience in others unknown, (the users and the makers), in a building that is significant: how the work incorporates and celebrates these common and straightforward complexities effortlessly with a certain coherence, charm, consideration and concern for people, persons, individuals: inclusively, with a certain grace. The 'exclusive' declaration isolates and estranges with its pompous intellectualism, its harsh, divisive, pseudo elitism.
In AAARRKITECTURE, the intimacy of the collaborative perception of possibilities arrogantly gets ignored in favour of the dumb belief that the gentle wonder of the architectural experience that holds depth and resonance can be, as it were, mechanically recreated in anything astonishingly different and extreme, in the apparent belief that this noisy amazement of different, eye-catching possibilities equates to that awe arising in true delight - the quiet astonishment of the mystery of beauty: its marvel.
We need to know how to make, e.g., a meaningful door or window that can accommodate and change us, confirm us and our being there/here, without any self-conscious exotic variations that make us alert to the differences that have been implemented for their own and their creator's sake, to highlight 'special' aspects of the works and the individuals involved: the genius. This is an experience that is the antithesis of the sense of beauty, and its wonder that recognises a body, its presence; an eye, its glance; a hand, its touch; and cares for these senses. Traditionally art was nameless and left one speechless. Here, in AAARRKITECTURE, with managed manipulation, feeling becomes a real visual and verbal fakery directed by the stress of extremes, their unexpected surprises, shrewd interpretations and cunning explanations. The first question is 'Who did this?" – as if it mattered: and, in this unique context, it does! Here one might be left speechless, but it has no relationship to the solitude of beauty; rather it has to do with the astonishment of the sheer gall and effrontery of the work. Indeed, this rupture is frequently acknowledged in the texts that usually seek to explain how these works do not seek to be anything like the cliché 'beautiful' thing; rather they indulge other initiatives and ambitions that seem to have been created as rationales after the event, with just as much a 'creative' ad hoc approach as any assembly and shaping might have involved – see SWELL SCULTPURE FESTIVAL 2013.
Making ordinary 'faceless' architecture is much more difficult than building anything that might be grossly distorted in an impromptu, random manner so as to be immediately noticed beside more quietly modest outcomes. The brashness of the perceived 'great gestures' stupefies and threatens; disparages with the latent question: "Why is this other work so bland?" Anything can amaze in this deliberately contorted "LOOK AT ME!" manner just too easily. Indeed, perhaps it can only do this, maybe just once. Inevitably, as with most drugs, we need more and more extremes in order to maintain the buzz: see P.S. below.
Good architecture enriches the silent knowing of everyday existence repeatedly, effortlessly, in the same way that the face of a Buddha, (for want of a better analogy), can hold peace, personally, intimately, in an encompassing experience that is both ordinary and extraordinary, poised in the raw facts of fabric, in the skill and care of the making; suspended with a coherent life-enhancing depth. Tradition beautifully explains this notion as being a circumstance in which 'we cannot marvel enough.' Something 'other' is involved; something that is difficult to articulate. Of this mystery, tradition simply says that if it could have been said, it would have been.
Self-consciously distracting different works are interesting, perhaps only for a few minutes. They rely on a journalistic interpretation and a commercial PR push for their justification, for their being considered anything at all. Hence the hype of naming, e.g. a Gehry or a Foster, or both, (see the proposed Battersea Power Station redevelopment: gosh! – a double whammy: it has to be good); or maybe a Rogers or a Nouvel (see NEW SYDNEY.). I like to call Gehry 'Frank O' for his uncontrolled brashness asserted in his self-centred, singular importance. In this aspect he pairs well with Lord Norman: 'Oh Lord!' – actually 'Lord Foster of Thames Bank, OM Kt.' OMG!
Indeed, the situation is worse than this hype that markets names, for the promotion of works such as these unique disturbances that are becoming just too familiar does consciously belittle those, seeks to shame those who try to show the weaknesses in the 'architecture,' perhaps its distorted shallowness, in order to highlight and promote their creation's self-importance which, by implication, focuses the spotlight on their own unique qualities too: ME & MY.
'FAAARRK!' is probably the best primal response, but its explicitness only provides the key for this promotional operation to be successful by allowing the crudity to illustrate the mark of ignorance beside all of the exotic, clever words that seek to express an 'intellectualism': navigate; journey; narrative; narrate; etc., etc.
On smart words, there was a discussion on ABC Radio RN By Design (23 October 2013) concerning the Sydney Opera House that was spoken of in this crafty lingo as 'The House.' More and more jargon words flowed. One was 'event': apparently the new concern for things architectural. 'The House,' it was explained, had become the venue for 'events' that were more fundamental than exotic concerts and elitist opera. 'The House' was opening up to the people as a location for 'events,' for example, The Festival on Dangerous Ideas that was recently held at the Opera House in Sydney, and Q&A, a live ABC TV chat programme that is based on a BBC model (as usual). This radio discussion cheekily went on to ask what improvements the Opera House might undergo in order to bring it up to date, using the logic that it is after all an old building! There is no questioning the cheek of youth!
This perception helps to give some direction to an understanding of AAARRCHITECTURE that holds too much of the expletive to become a successful label. It seems that the best description of the new work is EVENT ARCHITECTURE, where the building itself becomes the event, not an enclosure to accommodate some managed festival occasion initiated to promote a chosen theme for a day or two. These building forms gesticulate with their own enthusiasm for their own purposes to be a perpetual EVENT, nothing else, even though the texts might seek to explain things differently. It could be called PERFORMANCE ARCHITECTURE – see P.S. below on performance art and its extremes. Sadly, when constructed, these buildings have a life longer than the ephemeral fun and games of celebratory events that, like this AAARRCHITECTURE, readily move on to the next fad of fashion festivities. But these transient occasions leave only memories in another time, unlike these architectural 'EVENTS' that remain as permanent markers of a 'genius' that is constantly moving on to bigger and better things as if to prove itself grander than the greatness of 'genius.' Maybe these schemes are best left as flimsy digital fantasies? But we all know how ideas never die, even though some should. The danger is that such displays as this contemporary list will encourage others to build similar forms as fashion, fad, fantasy and determined egos demand. Even worse, some might try to create even more extreme variations of these distended distortions.
The situation establishes a real point of difference with Otto Wagner's statement made in The Architecture Of Our Time, Vienna, 1914: 'It cannot be beautiful if it is not practical.' Indeed, the published images seem to prove Wagner's point that is exactly the same statement that tradition made on art: see NOTE below. We need to rediscover this intent and content today rather than pressing on blindly with bland, random guesses: whatever comes up; whatever it takes; however – just to impress ourselves. Tradition saw such a loose, egocentric, personal approach as a situation where one was going wildly astray, suggesting that it is better to copy a work of substance than to try to invent a different one. Perhaps the beginning of this change is humility?
The other question that arises with these works is: just what is Australian architecture? Do we know? Do we care? Is all this effort a cringing attempt to prove that we have a 'world class' culture? - unique 'world class' difference for the sake of difference, and ME!
The modern notion that can accept that, e.g. a jug might not pour properly but can still be declared beautiful, a wonderful design, creates a schism that has allowed Sullivan's 'form follows function' to be cast aside as an old-fashioned, out of date theory and understanding. Just why misunderstandings are allowed to gain such momentum is a mystery, because Sullivan's words, like Kipling's classic statement too, did not stop there. Just as 'East is East, and West is West, and never the twain shall meet' has become a rhythmical, hackneyed phrase that completely changes sense when the next word is read: 'Till,' so too does Sullivan's understanding of function get transformed when seen in its full context. His words continued: 'function follows form,' citing the rose as an example: 'the form of the rose is the function of the rose; the function of the rose is the form of the rose.' This notion touches on something much more subtly substantial that any ordinary practical performance. There is a different necessity here: (see NOTE below).
Sadly our arrogance is blind to such issues as these, making it unacceptable to do what we must: learn to understand where we have come from. We seem happy to press on with some silly notion of 'progress' that seeks to discard any past in favour of some unknown future that is assumed to be better, when something far more inclusive is required. Science knows about this: how theories need to incorporate older theories or to refute them with a transforming rigor and understanding that can truly enlighten. Architecture needs to learn about this concept, and come to understand its true roots and spirit. We need to learn that architecture is not a personal statement or a bespoke competition. It is and always has been much more than this.
To understand this notion better, one should peruse Christopher Alexander's Pattern Language and The Nature of Order.
11 November 2013 news: Russian performance artist nails testicles to Red Square.
Can one expect a building shaped like testicles soon? Oh Ghery? Indeed, why not?! – well, 'why?' might be a better question. For the Russian this act was a form of political protest, not a protest about art. The alarming inference is that this is art! One might assume that, art or not, it will be sore: an eyesore?
Gosh, has he used masonry nails for this "I have bespoken" feat?
Consider, for instance, one of the apple leaves shown below. We feel it to be a center, of course. Now, suppose I ask what it is about the leaf which makes it seem like a center. To answer this question, I have to point to the tip of the leaf, the uniform double curvature which makes it a single thing, its spine, its minor ribs, all parallel to one another, the zone of flesh roughly a parallelogram between two ribs, the stem of the leaf, and the indentation where the leaf is joined by this stem, and the very tiny serrations, almost smooth, which form the outer boundary of the leaf. All these are centers.
It is the organisation of these centers which makes the whole leaf a center. Yet all these things are themselves centers. That is why we notice them. It is their centertedness which we notice, and which makes us pick them as the elements with which to see and explain the centeredness of the leaf as a whole. Thus it is the organisation, the "centered" organisation of these other centers, which makes the leaf a center in our experience. As soon as we try to describe, precisely, why this particular thing is a center, we find that we have to invoke some kind of description in terms of other centers.
In mathematics, such a concept is called recursive. Grasping this idea, and grasping the fact that this bit of understanding is a positive step forward, and not problematic, is the key to understanding wholeness. The apparent circularity here is – I believe – the crux of the problem of wholeness. The reason that deep wholeness (or life) is so mysterious, is that centers are built from centers, wholeness is built from wholeness.
This is not a peculiarity of the leaf. It is typical of every single thing in the world that we can examine.
Although it may seem surprising to someone raised in the mechanistic-functionalist tradition, good shape in buildings, rooms, gardens, streets, plays a vital role in the way they work. Essentially, what happens is that the thing which works effectively has - must have - more centres in it and, by virtue of having more centres, has better shape. So the good shape is not only making things more beautiful; it also makes them work more profoundly, more effectively.


This is a guest post by Ismail Guneydas. Ismail Guneydas is senior technical leader with over ten years of experience in vulnerability management, digital forensics, e-Crime investigations and teaching. Currently he is a senior vulnerability manager at Kimberly-Clark and an adjunct faculty at Texas A&M. He has M.S. in computer science and MBA degrees.
2015 is in the past, so now is as good a time as any to get some numbers together from the year that was and analyze them. For this blog post, we're going to use the numbers from the National Vulnerability Database and take a look at what trends these numbers reveal.
Why the National Vulnerability Database (NVD)? To paraphrase Wikipedia for a moment, it's a repository of vulnerability management data, assembled by the U.S. Government, represented using the Security Content Automation Protocol (SCAP). Most relevant to our exercise here, the NVD includes databases of security-related software flaws, misconfigurations, product names, impact metrics—amongst other data fields.
What are the vulnerability trends of the last 5 years, and do vulnerability numbers indicate anything specific?
What are the severities of vulnerabilities? Do we have more critical vulnerabilities or less?
What vendors create most vulnerable products?
What products are most vulnerable?
Which OS? Windows OSX, a Linux distro?
Which mobile OS? IOS, Android, Windows?
Which web browser? Safari, Internet Explorer, Firefox?
That is correct! Believe it or not, there was a 20% drop in the number of vulnerabilities compared to the number of vulnerabilities in 2014. However, if you look at the overall trending growth in the last 5 years, the 2015 number seems to be consistent with the overall growth rate. The abnormality here was the 53% increase in 2014. If we compare 2015's numbers with 2013, then we see 24% increase.
All in all though, this doesn't mean we didn't have an especially bad year as we did in 2014 (the trend shows us we will have more vulnerabilities in the next few years as well). That's because when we look closely at the critical vulnerabilities, we see something interesting. There were more critical vulnerabilities in 2015 then 2014. In 2014 we had more vulnerabilities with CVSS 4, 5, and 6; however, 2015 had more vulnerabilities with CVSS 7, 8, 9 and 10!
In other words, the proportion of critical vulnerabilities is increasing overall. That means we need to pay close attention to our vulnerability management programs and make sure they are effective—fewer false positives and negatives—up-to-date with recent vulnerabilities, and faster with shorter scan times.
This chart shows weight distribution of 2015 vulnerabilities, based on CVSS score. As (hopefully) most of you know, 10 is the highest/most critical level, whereas 1 is the least critical level.
This means 36% of the vulnerabilities were critical (CVSS >=7). The average CVSS is 6.8 so that is at the boundary to be critical.
The severity of vulns is increasing, but this isn't to say it's all bad. In fact, it really exposes a crucial point: That you have to be deploying a vulnerability management program that separates the weak from the chaff. Effective vulnerability management program will help you to find and then remediate vulnerabilities in your environment.
Let's analyze national vulnerability database numbers by checking vendors' vulnerabilities. The shifting tides in vulnerabilities doesn't stop for any company, including Apple. The fact is there are always vulnerabilities, the key has to be detecting these before they are exploited.
Apple had the most number of vulnerabilities in 2015. Of course with many iOS and OSX vulnerabilities out there in general, it's no surprise this number went up.
Apple jumped from being number 5th in 2014. Microsoft was number 3rd and Cisco was number 4th. Surprisingly Oracle (owner of Java) did well this year and took 4th place (they were number 2 last year). Congratulations (?) to Canonical and Novel, as they were not in top 10 list last year (they were 13rd and 15th). So in terms of prioritization, with Apple making a big jump last year, if you have a lot of iOS in your environment, it's definitely time to make sure you've prioritized those assets accordingly.
Here's a comparison chart that shows number of vulnerabilities per vendor for 2014 and 2015.
In 2015, according to the NVD, OSX had the most vulnerabilities, followed by Windows 2012 and Ubuntu Linux.
IPhone OS has the highest number of vulnerabilities published in 2015. Windows and Android came after iPhone. 2014 was no different. iPhone OS had the highest number of vulnerabilities and Windows Rt and Android followed it.
Given the trends over the past few years reported via the NVD, we should expect more vulnerabilities to be published with higher CVSS score this year. Moreover, I predict that mobile OS will be hot area for security — as more mobile security professionals find and report mobile OS vulnerabilities, we'll see an increase in Mobile OS vulnerabilities as well.
It's all about priorities. We only have so many hours in the day and resources available to us to remediate what we can. But if you take intel from something like the NVD and layer that over the visibility you have into your own environment, you can use this information to help build a good to-do list built by priorities, and not fear.


text:
Most Torontonians say the city is world class
By Alan Carter	Global News
Posted October 23, 2014 5:21 pm
You can't have a conversation about the future of Toronto without someone using the words 'world class city.'
New York, London, Hong Kong. No one in those cities ever seems to wonder if their city is world class, it just is. So why does it remain an issue in Toronto?
When Doug Ford extols the virtue of subways over LRTs, it's because "world class cities build subways," as if to say if we want to be in that club, we must do as they do.
Urban affairs writers like Richard Florida talk about Toronto being in a dilemma, because we want to be world class but can't decide how to pay for it.
"I think one of the big questions confronting Toronto , is that as we try to achieve that world class status, there are a lot of people that are frightened that we have to make big investments," says Florida.
LIVE BLOG: Trump's Senate impeachment trial set to begin with fight over rules
'They have nowhere to go': Filipinos made volcano their home, despite danger
According to exclusive Ipsos Reid polling for Global News, 85 per cent of respondents agree or strongly agree that Toronto is a world class city.
To Paul Godfrey, who has been everything from Chairmain of Metro Toronto to the president of the Blue Jays, it's a question and a term the city has grown out of. World class cities don't ask if they're at the top, they just are.
"It's a term that is overused," says Godfrey, pointing out Toronto is on the list of world class cities. "Toronto doesn't have to brag."
What makes us world class?
Rotman School of Business marketing professor Richard Powers says our large diverse population makes us a magnet for people around the world. For him the question of world class was put to bed years ago.
"From the economy to our diversity, we are world class" says Powers.
Perhaps Godfrey sums it up best, arguing the term 'world class city' has run its course, and should be replaced with something new.
"I don't say Toronto is world class, I say it's a must see."
Doug FordToronto politicsIpsos ReidWorld Class