text:
Enrique Lucero (October 9, 1920 – May 9, 1989) was a Mexican-American film actor. He was known for such films as Macario (1960) and Two Mules for Sister Sara (1970). He also played the role of the "Indian Chief" in Buck and the Preacher (1972), Sidney Poitier's directorial debut, and Geronimo in the 1979 miniseries Mr. Horn.

Selected filmography

 La historia del tango (1949) - Ángel Villalva Jr.
 La voz de mi ciudad (1953)
 The Road of Life (1956) - Lic. José Gutiérrez
 Sierra Baron (1958) - Anselmo
 Villa!! (1958) - Tenorio
 Pistolas de oro (1959)
 The Little Savage (1959) - Bit Role (uncredited)
 Beyond All Limits (1959)
 Sonatas (1959) - Militar prisionero
 Bendito entre las mujeres (1959) - (uncredited)
 La Fièvre Monte à El Pao (1959) - Vila (uncredited)
 Macario (1960) - La muerte
 Simitrio (1960) - Papá de Simitrio (uncredited)
 ¡Viva la soldadera! (1960) - (uncredited)
 The Magnificent Seven (1960) - Villager #1
 Rosa Blanca (1961) - Blas Urrutia
 Paraíso escondido (1962)
 La noche del jueves (1962) - Julio
 El tejedor de milagros (1962) - Arnulfo
 The Bloody Vampire (1962) - Lazaro
 The Extra (1962) - Actor, sacerdote azteca
 Tiburoneros (1963) - Rubén
 La invasión de los vampiros (1963) - Lázaro
 Corazón de niño (1963) - Maestro Robles
 El beso de ultratumba (1963) - El vagabundo
 The Curse of the Crying Woman (1963) - Dr. Daniel Jaramillo
 Cri Cri el grillito cantor (1963) - Don Cosme
 Una cara para escapar (1963)
 El revólver sangriento (1964) - Pedro
 The Golden Cockerel (1964) - El Chinaco
 Love Has Many Faces (1965) - Lt. Riccardo Andrade
 Major Dundee (1965) - Doctor Aguilar
 Always Further On (1965) - Brujo Owiruane
 Pistoleros del oeste (1965)
 Los sheriffs de la frontera (1965)
 Pacto de sangre (1966)
 Tarzan and the Valley of Gold (1966) - Perez
 Los mediocres (1966) - Arcadio Buendia (segment "Las Cucarachas")
 El indomable (1966)
 Retablos de la Guadalupana (1967)
 Rocambole contra la secta del escorpión (1967) - Emir Hassan Ali
 La carcachita (1967)
 Traitors of San Angel (1967) - Rodriguez
 The Bandits (1967) - (uncredited)
 Guns for San Sebastian (1968) - Renaldo
 Le Rapace (1968) - El Bosco
 Valentín de la Sierra (1968)
 El caballo Bayo (1969)
 The Wild Bunch (1969) - Ignacio
 Butch Cassidy and the Sundance Kid (1969) - Guard in the 1st Bolivian Bank (uncredited)
 Shark! (1969) - Inspector Barok
 Estafa de amor (1970)
 El despertar del lobo (1970) - Vidente oriental
 Two Mules for Sister Sara (1970) - 3rd American
 La vida inútil de Pito Pérez (1970)
 Los amores de Chucho el Roto (1970)
 Emiliano Zapata (1970) - Jesús Guajardo
 The Bridge in the Jungle (1971) - Perez
 Eye for an Eye (1971) - Lobo
 Something Big (1971) - Indian spy
 Santo contra los cazadores de cabezas (1971) - Husca
 Buck and the Preacher (1972) - Indian Chief
 The Revengers (1972) - (uncredited)
 Aguirre, the Wrath of God (1972) - Nacho
 La Scoumoune (1972) - Le Mexicain / Migli
 The Long Goodbye (1973) - Jefe
 Those Years (1973) - Juan Nepomuceno Almonte
 Renzo, el gitano (1973)
 I Escaped from Devil's Island (1973) - Esteban
 Presagio (1974) - Héctor
 La muerte de Pancho Villa (1974)
 Peregrina (1974) - Hermengildo Rodríguez
 Bring Me the Head of Alfredo Garcia (1974) - Esteban
 Mary, Mary, Bloody Mary (1975) - Lieutenant Pons
 The House in the South (1975) - Ramón
 Las fuerzas vivas (1975) - Mateo
 Canoa (1976) - El señor cura
 The Return of a Man Called Horse (1976) - Raven
 La virgen de Guadalupe (1976) - Tío Bernardino
 Las poquianchis (1976) - Capitán
 Maten al león (1977) - Vicepresidente Cardona
 El viaje (1977) - Enrique Jiménez
 Los de abajo (1978)
 The Children of Sanchez (1978)
 Ratero (1979) - Gallo
 La guerra santa (1979) - Rutilo Sandoval
 Guyana: Crime of the Century (1979) - Commune member
 Eagle's Wing (1979) - The Sharman
 Mr. Horn (1979 - Geronimo
 A paso de cojo (1980)
 The Octagon (1980) - One Armed Man
 Green Ice (1981) - Lucho the Coffee Grower
 Ángel del barrio (1981) - Patada (Kick)
 Un hombre llamado el diablo (1983)
 Under Fire (1983) - Prison Priest
 Todo un hombre (1983) - Juvencio
 The Evil That Men Do (1984) - Aristos
 Little Treasure (1985) - Priest
 La revancha (1985)
 El trailer asesino (1986)
 Murieron a la mitad del rio (1986)
 El tres de copas (1986)
 Al filo de la ley: Misión rescate (1986) - Comandante
 Gaby: A True Story (1987) - Minister of Education
 The Last Tunnel (1987) - Juan Penagos
 Treasure of the Moon Goddess (1987) - Tupak
 Los confines (1989) - Tanilo
 El jinete de la divina providencia (1989)
 Mi pistola y tus esposas (1989) - (final film role)

References

External links

1920 births
1989 deaths
Male actors from Chihuahua (state)
Mexican male film actors
American male film actors
Mexican emigrants to the United States


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Gary joined ACI in 1972. Gary has been instrumental in the expansion of the organization and has developed long-term relationships with clients such as Mount Saint Mary's College, Forest Lawn Mortuary and Hospitality Food Services. Gary is committed to the success and progression of the organization as ACI transcends into the design and construction of more energy and efficient building applications that adheres to the standards set forth by Leadership in Energy and Environmental Design (LEED) concept.
Donald Moreau Don joined ACI in 1976. He has demonstrated leadership and commitment to the organization and has cultivated a dynamic client base throughout the years such as Dermalogica, RRDonnelly, The Toro Co. and Paul Mitchell Schools. Don is on the forefront of industry changes. He is the catalyst that drives ACI's workforce. Don works effortlessly in improving ACI's competitive edge. Don has been recognized by his co-workers for his cliche "lead by example." It is through Don's leadership that the organization has enjoyed an unblemished reputation throughout the industry.
Manager joined ACI in 1990. Prior to joining ACI, Robert was employed by Vermont Lumber as a general manager for several years. Robert brings with him over 30 years of construction experience in both purchasing and field work. Robert earned his AA degree from Harbor College. He is continuing his education and expects to earn his BS degree in the next two years. In addition, he has earned his AIB International Certification in Food Plant GMP/Sanitation.Robert has served as ACI's Safety Manager for over fifteen years and has demonstrated his ability to train and translate the importance of safe house keeping and safety in general.Robert is experienced in Auto Cad and Primavera by Oracle. Robert enjoys his long-term position with ACI and the exciting projects he has been involved in.
Kye joined the ACI team in 1984 and for these past 25+ years, he has been the head of the electrical department. From providing estimates to actual hands-on work, Kye has been an integral part in every one of our projects requiring electrical attention.
He continues to attend the California Electrical Training Inc. for the required C.E.U.s and is certified by the State of California. With Kye's strong supervisory skills, communication skills and ability to analyze and address any issue that arises, he has been able to run every project in a smooth and timely manner.
Jennifer, A graduate from the University of Irvine, has been with ACI for nine years now. She manages all accounting operations and secretarial duties.


text:
Home Conservation groups launch Save Our Parks Week
Conservation groups launch Save Our Parks Week
and say "back to drawing-board" on new parks act
Stewards of Alberta Protected Areas Association
Federation of Alberta Naturalists
Edmonton, Red Deer & Calgary— At press conferences today in Alberta's three largest media centres, Alberta's conservation groups announced that the government's proposed new parks legislation is so regressive and harmful to Alberta's parks that they are launching November 15-20 as Save Our Parks Week. They want the Bill withdrawn by the Tourism, Parks and Recreation Minister and are calling on Albertans to save their parks by emailing and faxing their MLAs and Premier Stelmach, with copies to the opposition parties, starting first thing Monday when the Bill is scheduled for debate late that day in the Legislature. The groups expect that once the public realizes passage of the Bill will pull the legal teeth out of their existing parks legislation and make it the law that protection is no longer the priority in any of their parks, such public action can stop the Bill as it did a similar one in 1999.
"If Bill 29 isn't stopped, Save Our Parks Week will need to be an annual event throughout Alberta," explains Dianne Pachal of Sierra Club Canada.
In the proposed legislation, there is no requirement that resource development allocations such as for logging and oil and gas are to be expeditiously phased out when a new park is established. Based on the Minister-of-the-day's opinion, the Minister can approve tourism developments such as resorts and recreation developments like off-road vehicle trails at any place in any park. That includes Wilderness Areas and Ecological Reserves, such as the Kootenay Plains, which by law under the current legislation are sanctuaries for wildlife and people and closed to development.
"For the Minister to claiming that the new legislation makes it simpler for the public makes no sense," observes Dorothy Dickson of the Stewards of Alberta's Protected Areas Association. "It does make it far simpler for a Minister to approve more development in the parks, even though Albertans said they wanted more parks instead. Changing everything into one class of park will be totally confusing, whereas Wilderness Area, Ecological Reserve and Provincial Recreation Area currently give an indication of the level of protection and types of uses, which anyone can then supplement with specifics from the government website and maps."
"Instead of legislation providing for protection of parks in perpetuity for wildlife, our kids and grandkids, it will provide for development at the discretion of the Minister in perpetuity," sums up Sarah Elmeligi of the Canadian Parks and Wilderness Society.
Pending the success of Save Our Parks Week, the Bill could pass into law within a week after the Legislature resumes on the 15th. The Minister's consultations in 2008 to develop Alberta's Plan for Parks contained no information on the proposed legislation and its implications. There was only a web-based survey on concepts for the legislation last summer.
Dorothy Dickson 403 347-6012, Stewards Of Alberta's Protected Areas Association (Red Deer)
Dianne Pachal 403 234-7368 (Calgary); Sam Gunsch 780 885-5624 (Edmonton), Sierra Club Canada
Sarah Elmeligi, 403 688-8641(cel), Canadian Parks & Wilderness Society
Philip Penner, Federation of Alberta Naturalists (Edmonton)
The conservation groups are asking that Bill 29 be: (a) withdrawn by the government before it passes 2nd reading and that the Minister after consulting with the public, come back in spring with a new Bill; or failing that, (b) Bill 29 be sent to a Standing Committee before it passes 2nd reading – the Committee being comprised of MLAs from all parties, having the authority to hear public submissions on the substance of the Bill and the direction to table a revised Bill in the Spring 2011 session of the Legislative Assembly.
They are asking that a new or revised Bill:
Sets preservation of the natural ecosystems as the priority for all classes of parks, except regarding Provincial Recreation Areas where tourism and recreation development is balanced with protection.
Legislates a mandatory and expeditious process of removing resource development dispositions.
Does not set up the privatization of trails within parks, and future fees for trail use through delegating authority for trail development and management to non-government bodies.
Keeps intact the already existing, effective legislation for Wilderness Areas, Ecological Reserves and Heritage Rangelands, and
In the legislation, rather than through discretionary zoning, provides for Wildland Parks as roadless wildlands similar to Willmore Wilderness Park.
Bill 29 sets Alberta back more than four decades and dismantles a parks system supported and built by Albertans. In 1932, at a time when wilderness was not just a few remaining fragments as it is today, the first Provincial Parks were establish; protecting natural environments for outdoor recreation. Then, through public pressure, a parks system began to develop with the Peter Lougheed Government passing the Wilderness Areas Act in 1972; adding wilderness preservation to the parks system.
"In my view… a considerable number of our citizens now think that the time has come for us to set aside wilderness areas which will not in any way be disturbed by way of resource development. The Progressive Conservative M.L.A.'s … feel that this is a good policy for the people of Alberta."
A petition from thousands of Albertans was the catalyst for the addition of Ecological Reserves legislation. Then Natural Areas and during the government's Special Places 2000 initiative and extensive public consultation and action at that time, public interest lead to expansion of the system with the addition of Wildland Parks.

redpajama_set_name: RedPajamaCommonCrawl


text:
Football's Four to Flourish in 2021-2022: Amiri Johnson
By Talia Massi Jul 16, 2021, 5:07pm MST
Share All sharing options for: Football's Four to Flourish in 2021-2022: Amiri Johnson
Photo by Chris Gardner/Getty Images
One of the worst feelings an athlete can experience is being sidelined due to injury, especially when their team goes 2-2 on the season.
The Sun Devils were hoping to have defensive lineman Amiri Johnson as a key player in their lineup, but Johnson missed the entire 2020-2021 season because of a groin injury.
His absence led way for his younger teammates to fill the role; and unfortunately, the inexperience was evident.
The younger replacements did not contain their opponents rushing attack well.
Both USC and UCLA rushed for over 170 yards, and Oregon State had 250 rushing yards.
The Devil's needed an experienced player in that position.
They needed Johnson.
But the comeback can easily outweigh the absence.
Johnson has the opportunity to finally fulfill fan's expectations and contribute immensely to the Devil's defensive scheme.
Johnson, class of 2018, was a three-star-recruit out of high school from Pomona, California. He was rated as the 229th best player in California and the 129th best strong-side defensive end in the nation.
The hype quickly surrounded Johnson, and fans anxiously awaited to see his impact. Unfortunately, they only saw a glimpse of him in his freshman season.
With defensive coordinator Antonio Pierce leading the way, Johnson has all the tools necessary to showcase his talent.
If he can continue to stay healthy, Johnson has a promising return to the Sun Devil lineup.


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Looking backwards to go forwards. This is how Oscar de la Renta explained his influences for the Autumn Winter 10 show. Geometric lines from Art Deco and the fluidity from the Art Nouveau period provided the base.


text:
Q: Can a piecewise $C^1$ mapping can define an absolutely continuous function Let $f,g\in C^1([0,1],\mathbb{R}^n)$, and then we define $h$ as a peicewise $C^1$ mapping as follows
$$h(t)=\begin{cases}
f(t) & t\in[0,\frac{1}{2}[\\
g(t) &t\in]\frac{1}{2},1]
\end{cases}
$$
I know that if I define the following function : $x(t)=\int_0^t f(s)ds$ for all $t\in [0,\frac{1}{2}[$ then $x$ is an absolutely continuous function because $f \in L^1([0,1],\mathbb{R}^n)$.
So my question is that can I say that
$$y(t)= \int_0^t h(s)ds,$$
is an absolutely continuous function on $[0,1]$  ?

A: $\int_0^{1} |h(s)|ds=\int_0^{1/2} |f(s)|ds+\int_{1/2}^{1} |g(s)|ds <\infty$. The indefinite integral of any integrable function is absoluetly continuous. So the answer is YES,

redpajama_set_name: RedPajamaStackExchange


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UNITED NATIONS: Ukraine's interim premier on Thursday warned the security council that nuclear non-proliferation could be undermined by the Crimea crisis, but insisted that a peaceful solution was not out of reach.
One day after winning full support from US President Barack Obama in Washington, Arseniy Yatsenyuk delivered a short address in English and Russian at an emergency session of the council.
"We still believe that we have a chance to resolve this conflict in a peaceful manner," the prime minister said.
"We urge the Russian Federation to pull back its military forces deployed in Crimea to barracks and to start real talks and negotiations in order to tackle this conflict," he added.
Ukraine in 1994 gave up its nuclear arsenal, the interim prime minister reminded the Council but global security would be at risk unless the crisis could be resolved properly.
Yatsenyuk said that, unless Russia agrees to a real dialogue, the crisis could undermine global security and nuclear non-proliferation.
"As after these actions it would be very difficult to convince anyone in the globe not to have nuclear weapons," he said.
"We want to have talks. We don't want to have any kind of military aggression," added the premier, before turning to address Russian ambassador Vitaly Churkin directly in Russian.
Britain and the United States expressed support for Ukraine and condemned a referendum planned Sunday in Crimea to decide whether the region should stay with Ukraine or join Russia.
US secretary of state John Kerry would Friday meet his Russian counterpart, US ambassador Samantha Power told the Council.
"None of us can afford to leave any stone unturned, but Russia has to want a diplomatic solution," she said.
"It would be dangerous and irresponsible for Russia to take unilateral actions or collude with unilateral actions of the Crimea authorities," Grant said.
"We strongly believe that there is still a peaceful solution," Arseniy Yatsenyuk said. "What we ask for is international support to stop this crisis.


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DDNS services solve the problem of being able to reach servers on your network from the Internet when your public IP address changes. For example, you might want to use the ISA firewall's fantastic secure Exchange RPC publishing feature so that you can use the native Outlook MAPI client without incurring the overhead of upgrading to Exchange 2003 and Outlook 2003 just to get RPC over HTTP. The ISA firewall's advanced RPC filter insures that you can connect securely over the Internet using the native Outlook client, regardless of what version of Outlook you might be using.
The secure Exchange RPC filter allows you to connect to any version of Exchange from any version of Outlook. I use it every time I'm on the road from airports and hotel broadband networks and I can assure you, once you deploy it, you'll wonder how you ever lived without it. The secure Exchange RPC publishing feature is one of the ISA firewall's features that confirms the ISA firewall stands head and shoulder's above any other firewall when it comes to providing secure remote access to Exchange Server services. In fact, you do yourself and your organization a disservice if you allow remote access to Exchange without an ISA firewall in front of it.
The challenge for small and home business users is that when their IP address changes, they have no simple mechanism for determining what the new IP address is and subsequently they're not able to connect to resources on their network.
For example, suppose you're about to go on a trip and want to connect to the Exchange Server on your home office network. You create OWA and secure Exchange RPC publishing rules so you can reach the Exchange Server from your hotel and airport. You note down the IP address you currently have and configure Outlook to use that address and also to use it for OWA.
Now you leave your home office and go to the airport. You try to connect to the Exchange Server and find that you can't. The IP address on the external interface of the ISA firewall has changed! No one is at home, so they can't run a utility like www.whatismyip.com to tell you what your new address is, so you're out of luck and without mail.
There are even more problems with this scenario. In order to configure Outlook correctly, you'll need a real fully qualified domain name for the Outlook client to connect to. Also, if you want to use OWA securely, you need to use SSL to SSL bridging. SSL requires that the certificate bound to the ISA firewall's Web listener have a name matching the name you use when you issue a request from a Web browser. You can't put IP addresses in for the subject name on the certificate.
The solution is a DDNS service. DDNS services can be a key component of your split DNS infrastructure, which is something very important to the small and home business user who can't host his own DNS server. This is especially important for users of small business server who accept the installation defaults which encouraged inexperienced users to use the .local illegal top level domain.
This article does not apply to Microsoft Small Business Server. SBS has its own way to doing things and you should follow the product documentation on how to configure the ISA firewall to provide remote access to services through the on-box ISA firewall.
I prefer to put the TZO client software on a SecureNAT client behind the ISA firewall because the ISA firewall should run only the ISA firewall software. The only exception to this is software designed specifically for the ISA firewall. Software designed for the ISA firewall should not increase the attack surface on the firewall, so I'm willing to make an exception in that case.
In the ISA firewall console, expand the server name and click Firewall Policy.
Click the Tasks tab in the Task Pane and click the Create New Access Rule.
In the Welcome to the New Access Rule Wizard page, enter a name for the rule. In this example we'll enter Outbound to TZO DDNS. Click Next.
On the Protocols page, select the Selected Protocols option from the This rule applies to list and then click Add.
In the Add Protocols dialog box, click the New menu and click Protocol.
On the Welcome to the New Protocol Definition Wizard page, enter TZO into the Protocol Definition name text box and click Next.
In the New/Edit Protocol Connection dialog box, set the Protocol Type to TCP. Set the Direction to Outbound and set the Port range settings as From 21330 and To 21333. Click OK.
Click Next on the Secondary Connections page.
In the Add Protocols dialog box, click the User-Defined folder and double click TZO and then click Close.
You have two choices at this point. If you have installed the TZO client software on the ISA firewall device itself, then you would click the Networks folder and double click Local Host. In this example we have installed the TZO client software on a SecureNAT client on the default Internal Network, so we will create a Computers entry for this host so that we allow only this host outbound access to the TZO protocol. Start the process by clicking the New menu and then clicking Computer.
In the New Computer Rule Element dialog box, enter TZO Client in the Name text box. In the Computer IP Address text box, enter the IP address of the SecureNAT client on which the TZO client software is installed. In this example we'll enter 10.10.10.100 and click OK.
In the Add Network Entities dialog box, click the Computers folder and double click the TZO Client entry and click Close.
In the Add Network Entities dialog box, click the New menu and then click Computer Set.
In the New Computer Set Rule Element dialog box, enter TZO DDNS Servers in the Name text box. Click the Add button and then click Computer.
Now this is where things get tricky. I queried my ISA firewall logs for TZO connections for the last month and copied those results to Excel and turned on the auto filter feature to find the addresses the TZO client connected to. The summary appears in the figure below. I will assume that these are the IP addresses of the TZO DDNS servers. I'm checking with the folks at TZO to determine if there are others and if there are, I'll update this article with the additional addresses.
Your list should now look like the figure below. Click OK.
In the Add Network Entities dialog box, click the Computer Sets folder and double click the TZO DDNS Servers entry and click Close.
Click Apply to save the changes and update the firewall policy and Click OK in the Apply New Configuration dialog box.
Now that was a lot of work and you don't want to do that all over again. You can back up that list of servers or you can back up the entire ISA firewall configuration. I highly recommend that you back up the entire ISA firewall configuration after each time you click the Apply button to save the changes to firewall policy. This is one of the most common mistakes made by ISA firewall admins – they forget to backup the ISA firewall policies after each change to the firewall policy.
In the ISA firewall console, right click the server name and click Back Up.
In the Backup Configuration dialog box, enter the name for the back up in the File name text box. I typically use the date and time in the file name, so in this example I'll enter 060420051129AM and then click Backup.
In the Set Password dialog box, enter a password and confirm the password and click OK.
Click OK when you see that The configuration was successfully backed up.
That's it! Your TZO client will now be able to communicate with the TZO DDNS servers.
I've included two files you can download with this article. The TZODDNSServers.xml file can be used to import the TZO computer set we created in this article. The TZOProtocolDefinition.xml file can be used to import the TZO Protocol Definition we created in this article.
In this article we reviewed the concept of dynamic DNS services and how they can be used to improve the remote access experience for small business and home office workers. We then discussed the TZO DDNS service and how to configure the ISA firewall to enable the TZO client to communicate with the TZO DDNS servers. Included in the discussion was how to configure the ISA firewall to support the TZO client when the client is installed on either the ISA firewall itself, or on a SecureNAT client located behind the ISA firewall on an ISA firewall Protected Network.


Ann Lord (played by Vanessa Redgrave) is coming to the end of her life. Now in her seventies, she is in the final stages of an illness that has left her bed ridden. Her two daughters, Nina (by Toni Collette) and Constance (by Natasha Richardson) are at her side in her home in up-state New York. Her pain medication causes her to drift in and out of hallucinations of her younger days when, as Ann Grant (by Claire Danes) in her twenties, she met the love of her life Harris (by Patrick Wilson) at the wedding of her best friend Lila (by Mamie Gummer). She calls out to him many times but the girls have no idea what she is referring to, until Lila, now too in her seventies (by Meryl Streep) calls to see her and explains some of the mystery surrounding Harris, Lila's brother Buddy (by Hugh Dancy) and the drama surrounding Lila's wedding day. Nina and Constance both have their own life issues to deal with and through their anguish about their mother and what they learn about her, they manage to find new peace in their lives and courage to face their own futures.
This movie has a stunning ensemble cast, with appearances also by Glenn Close and Barry Bostwick as the young bride Lila's parents. However, such a strong cast would promise a fabulous movie – even the plot offers an intriquing storyline. Perhaps I have totally missed something major here, but for me – unfortunately, this movie falls far short of the mark. The components are fragmented – there is no real alignment and overall the movie is dull. Several characters are redundant – Constance (Natasha Richardson), the Winterborns (Glenn Close and Barry Bostwick), particularly Mr Winterborn, are not really required – although it's entertaining to watch Glenn Close in such a character. Once again, Hugh Dancy's character Buddy offers much interest, but although he seems to try hard, on screen Buddy is superficial. Harris is supposed to be the great love of the movie but he is almost an invisible person and the young Anne and Lila are both not right, with no screen presence at all. Best performances are Vanessa Redgrave and Toni Collette. However, Redgrave does not look at all like a person reaching the final stages of a painful and difficult illness. My advice is, wait until this is on television – and then only if you need to fill in some time.


text:
'Os Coringa Do Flamengo': There's a Party in the Favela Tonight
By Charlotte Peet 25 November, 2019
Brazil is full of surprises and the spirit of the party, and its stereotype of being the football capital of South America has never rung as true as this Saturday, when Rio de Janeiro's Flamengo made the crowd go wild with their astonishing come-back performance in Lima against Argentina's River Plate.
Taking home the Copa Libertadores trophy for the first time in 38 years, and all achieved in the final three minutes, with two unbelievable goals from Flamengo hero, Gabriel Barbosa (aka Gabigol) – one with a minute left of the game, the second during injury time. The result means that Flamengo will now represent South America in the Club World Cup in Qatar in December.
The Baile funk anthem, "Os Coringa Do Flamengo" by MC Poze was pounding out of speakers when Gabigol, the rest of the team and their 2 million flocked to the streets of Rio to celebrate at the weekend. Donned in their red Flamengo shirts, the scenes perfectly captured the sheer amount of "amor" its supporters have for their beloved team, and Brazilian football as a whole.
In an energetic fused frenzy, for those who didn't see how the Copa Libertadores unfolded, this explosive hit (which currently has 2m+ views on Youtube and counting) sings about Flamengo's progression to becoming champions in an events that has captured the hearts of the city. The lyrics go: "Flamengo nao tava bem, nóis tava numa fase ruim, Contratamo treinador com o nome de Jesus, Organizou o nosso time, a meta é ser campeão, E trazer muita alegria pra nossa grande nação… Hoje e festa na favela" ("Flamengo were not well, we were in a bad phase / We hired a coach with the name of Jesus / Organized our team, the goal is to be champion / And bring a lot of joy to our great nation…..Today is a party in the favela"). They have definitely succeeded.
Are you ready to get in the spirit of the party?
Brazil / REVIEW Biopic of Leftist Revolutionary Marighella Is A Shot In The Arm for Anti-Authoritarianism
Brazil / Mexico / 'Some of the Greatest Footballers and Journalists Talk as Though Pelé Never Existed': Andrew Downie on the World Cup that Transformed Football
Brazil / Introducing Henrique Rocha, Injecting New Life Into One of Brazil's Eldest and Most Iconic Genres
Categories: Brazil, News


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Q: How to find number of occurrences of a subset of elements in a vector without using loops in MATLAB? Say X is the given vector:
   X=[1
      2
      4
      2
      3
      1
      4
      5
      2
      4
      5];

And Y is the given subset of elements from X:
Y=[3
   4
   5];

The required output is the number of times the elements in Y occur in X:
out=[1
     3
     2];

My solution to do this would be to use for loop:
for i=1:size(X,1)
    temp = X(X(:,1)==Y(i,1),:);
    out(i,1) = size(temp,1);
end

But when X and Y are large, this is inefficient. So, how to do it faster making use of vectorization? I know about hist and histc, but I can't think of how to use them in this case to get the desired output.

A: A Fast Option
You could use bsxfun combined with sum to compute this
sum(bsxfun(@eq, Y, X.'), 2)

Explanation
In this example, bsxfun performs a given operation on every combination of elements in X and Y. The operation we're gonig to use is eq (a check for equality). The result is a matrix that has a row for each element in Y and a column for each element in X. It will have a 1 value if the element in X equals the element in Y that corresponds to a given row.
bsxfun(@eq, Y, X.')

%    0     0     0     0     1     0     0     0     0     0     0
%    0     0     1     0     0     0     1     0     0     1     0
%    0     0     0     0     0     0     0     1     0     0     1

We can then sum across the columns to count the number of elements in X that were equal to a given value in Y.
sum(bsxfun(@eq, Y, X.'), 2)

%   1
%   3
%   2

On newer versions of MATLAB (since R2016b), you can omit the bsxfun since the equality operation will automatically broadcast.
sum(Y - X.', 2)

A Memory-Efficient Option
The first option isn't the most efficient since it requires creating a matrix that is [numel(Y), numel(X)] elements large. Another way which may be more memory efficient may be to use the second output of ismember combined with accumarray
[tf, ind] = ismember(X, Y);
counts = accumarray(ind(tf), ones(sum(tf), 1), [numel(Y), 1], @numel);

Explanation
ismember is used to determine if the values in one array are in another. The first input tells us if each element of the first input is in the second input and the second output tells you where in the second input each element of the first input was found.
[tf, ind] = ismember(X, Y);

%   0 0 1 0 1 0 1 1 0 1 1
%   0 0 2 0 1 0 2 3 0 2 3

We can use the second input to "group" the same values together. The accumarray function does exactly this, it uses the ind variable above to determine groups and then applies a given operation to each group. In our case, we want to simply determine the number of element within each group. So to do that we can pass a second input the size of the ind input (minus the ones that didn't match) of ones, and then use numel as the operation (counts the number in each group)
counts = accumarray(ind(tf), ones(sum(tf), 1), [numel(Y), 1], @numel);

%   1
%   3
%   2


text:
File.Sasko Lazarov/RollingNews.ie
# Living wage
Aldi staff will now earn the €11.70 an hour living wage
It is the first supermarket to commit to paying the living wage.
Jan 5th 2018, 12:04 PM
ALDI IN IRELAND has announced it will pay its staff the living wage.
The supermarket today announced that staff would be paid a minimum of €11.70 an hour, the figure suggested by the Living Wage Technical Group.
It is the first supermarket to commit to paying the living wage, which is above the €9.55 per hour minimum wage.
The supermarket says that some staff already earn up to €14 an hour in Ireland and claims to be the best-paying supermarket chain in Ireland.
The new rate is effective as of 1 February and is a 20 cent increase on entry-level pay for shop assistants, stock assistants and caretakers.
Giles Hurley, Group Managing Director of Aldi Ireland said:
Our store colleagues are the cornerstone of our business. Without their hard work and dedication day in, day out, we would be unable to provide customers with the lowest grocery prices in Ireland. We are committed to offering the best pay and benefits in the industry and will continue to do so.
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The announcement follows a period of significant sustained sales growth and store expansion for the German retailer. It is currently engaged in a three year €100 million new store opening programme.
The wage is determined by the Living Wage Technical Group, which was set up in 2014 and comprises researchers and academics.
The living wage is updated in July of each year. It is part of a growing international trend to establish an evidence-based hourly income that a full-time worker needs so that they can experience a socially acceptable minimum standard of living.
Read: Presidential hopeful calls on largest parties to say if they will run candidates for Áras
Paul Hosford
paulhosford@thejournal.ie
@PTHosford
ALDI LIVING WAGE PAY RETAIL WAGES
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Durk is in a straitjacket and deals with relationship issues in the new visual for "Lord Don't Make Me Do It" above. This one should keep you engaged in large part because of the insane asylum setting. Watch and see as Durk prepares an end of summer/fall tour starting next week.


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Lady Gaga hails Tony Bennett's wife Susan 'remarkable'
Lady Gaga has heaped praise on Tony Bennett's "remarkable wife" Susan for "the love" she has for her husband.
The 'House of Gucci' star made the comment after her and Tony's CBS concert special 'One Last Time' aired in the US, and the 35-year-old Oscar-winner admitted she will "cry about tonight forever".
Alongside a picture from the show, Gaga wrote on Instagram: "The real 'Lady' of the hour is Susan Benedetto, Tony's remarkable wife. Thank you Susan for how you love @itstonybennett I love you and Tony and the whole family so much. I'll cry about tonight forever."
Tony and Gaga recently released their second joint LP, 'Love For Sale' - the follow-up to 2014's 'Cheek to Cheek' - which marked his last ever album.
Susan is caring for the 95-year-old Jazz legend, who is battling Alzheimer's disease but has no idea he has the progressive neurological condition, which causes memory loss.
Meanwhile, Gaga recently shared her delight at Tony understanding her every word when she told him the news they are up for six Grammys.
The 'Stupid Love' hitmaker, 35, and the music legend have been showered with nods for their acclaimed duets album, including the prestigious Album of the Year prize.
And the 'A Star Is Born' star was left "utterly speechless" after finding out they are up for several accolades next year.
The duo are also in contention for Record of the Year for 'I Get a Kick Out of You', and best Pop Duo/Group Performance, Traditional Pop Vocal Album, Music Video, and Engineered Album Non-Classical.
Tony became the oldest artist in history to be nominated in the general categories.
Their first LP took home Best Traditional Pop Vocal Album seven years ago.
In a lengthy statement on Instagram, Gaga gushed: "Thank you so much to the @RecordingAcademy for these 6 nominations for Love For Sale. I am stunned and shocked and beyond grateful. I don't know what to say. I just keep crying and am utterly speechless.
"This means so much to me, @itstonybennett, the Bennetts, my family, jazz music, and the great Cole Porter who wrote all these timeless classics. I'll never forget today and congratulating Tony on his 6 nominations."
On Tony's reaction, she continued: "I'll never forget that today he could track every word I was saying and understood the world was celebrating him and celebrating jazz – a genre that embodies the joy, abundance and imagination of Black music throughout history.
"Thank you to all the Grammy voters for recognizing me and Tony's dedication to jazz music and for also recognizing it in major categories where this music is often not nominated. (sic)"
The 'Born This Way' singer admitted there is no better feeling than the "love and partnership" they share - despite their 60-year age gap.
Gaga concluded: "This album happened because it was Tony's idea and I made him a promise that we would make it and we did.
"At 95 years old, he has more nominations than ever, I'm so honored to be his companion in music and his friend.
"Thank you to the public for loving us, we surely love each other, and you.
"Believe in love and partnership, even with 60 years between us, and Alzheimer's, there is nothing like the magic of music. I love you Tony, and the world loves you too. How could they not?"
Susan Benedetto
This article originally ran on celebretainment.com.
PennyWise Episode 45: Four issues that can impact your home and wallet during the winter months
Poll: Coffee drinkers don't change their drinks easily
Avril Lavigne has recorded many collaborations for new album
Avril Lavigne's new album will feature "the most" collaborations she's ever had thanks to the coronavirus pandemic.
Bob Saget's family break silence following star's death
Bob Saget's family have issued a statement following the 'Fuller House' actor's shock death at the age of 65.
Ava Phillippe 'wouldn't change a thing' about her family life
Ava Phillippe has praised her parents, Reese Witherspoon and Ryan Phillippe.
2. Use common food scraps instead of throwing them out.
Instead of throwing away orange peels, use your scraps to make a delicious candy. TikTok creator @plantyou shows you a simple recipe for candied orange peels that taste like gummy worms.
Cardi B claims she was 'extremely suicidal' in tearful testimony against YouTuber
Cardi B appeared in court to testify in her libel case against YouTuber Tasha.
Savannah Guthrie tests positive for COVID-19
'Today' anchor Savannah Guthrie has tested positive for coronavirus, less than a week after her colleague on the show Hoda Kobt came down with the disease.
Denzel Washington confirms Equalizer 3 as his next film
'The Tragedy of Macbeth' star Denzel Washington says 'The Equalizer 3' will be his next big screen role with a script already written.
Ed Sheeran doesn't need a BRIT Award to prove he's a good songwriter
Ed Sheeran has admitted it doesn't matter if he doesn't win another BRIT Award.
Angelina Jolie sends Christmas gifts to ex-husband Billy Bob Thornton son's Harry
Angelina Jolie has kept in contact with her ex-husband Billy Bob Thornton's son Harry James.
Queen Elizabeth suffers loss of another close friend
Queen Elizabeth has suffered the loss of another close friend after horse racing journalist and trainer Ivor Herbert passed away aged 96 last week.


Built-in fixed smith press bar, chinning pull/up bar, Olympic weight plate storage pegs (10 total) vertical Olympic bar holder sleeve.
The Smith Machine is a piece of strength equipment used in weight training that consists of an Olympic sized barbell that is fixed horizontally to hooked carriages on each side that move vertically along steel rails or guide rods. A smith machine can be used for a wide variety of exercises such as squats, lunges, upright rows, shrugs, chest presses, and military press. Because it has hooks on each side of the bar carriage, it can be racked at any position throughout the movement of the bar, allowing safer use for those who lift without a spotter. The Tuff Stuff CSM-600 has the advantage of also being a fully functional half rack with adjustable J-Hooks and safety spotter bars in front, allowing use for free weight training with a non-fixed Olympic bar (sold separately).


World Warrior11 (10)Earn 5,000 Player Points (PP).
Master of Fate373 (50)Unlock all achievements.
A New Avenger254 (40)Clear 320 missions in Mission mode.
Combat Specialist122 (30)In Ranked Match, surpass the "1st" class rank, or fight someone who has.
Passed the Field Test58 (20)Clear 160 missions in Mission mode.
Fans of the Marvel vs. Capcom series have to wait years between games, but when the crossovers come out, they're usually worth it. Today at the PlayStation Experience, Marvel vs. Capcom: Infinite was revealed.
There is currently no walkthrough for the Marvel vs. Capcom 3: Fate of Two Worlds achievements. Interested in creating one? Click here for more details.


Young's sixth place finish leads county runners at state meet.
Gwyneth Young won't soon forget her sophomore cross country season. But the way she's going, she might top it the next two years.
The Cedar Crest standout capped a remarkable fall season on Saturday with a sixth place finish in the AAA girls portion of the PIAA State Cross Country Championships in Hershey.
Young, the runner-up at the Lancaster-Lebanon League and District 3 3A meets, crossed the line in 19:20 to lead a solid overall performance by county runners at states.
Elco's Lily Brubaker also had a big day, capping her career with an 18th place finish in 20:23 in Girls 2A, while Annville-Cleona's Braeten Peters was 32nd in Girls 1A in 21:18.
On the boys side, Northern Lebanon's Gage Krall led the way for county runners, placing 17th in Boys 2A in 17:13, while Elco's Cole Nelson was 34th in 17:46, and Krall's Northern Lebanon teammate Jordan Berger took 130th in 18:39.
In Boys 3A, Palmyra's Zach Toth led county competitors by placing 33rd in 17:03, and teammate Markus Vottero was 92nd. Cedar Crest, the reigning District 3 3A champ, placed 17th led by Luke Hinegardner's 39th place effort. Jake Barrett was 79th, William Sheffield 81st, Ben McElroy 92nd, Ryan Scicchitano 100th, Tommy Bildheiser 103rd, and DJ Laliberte 114th.


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Aug 16, 2010 Ξ 6 comments
World's Fastest Sedan: G-Power BMW M5 Hurricane RR
Filed under Automotive, BMW, Featured, Tuners
German tuning company G-Power, which is well known for making a killer twin-supercharger kit for the E60 BMW M5, has turned out another BMW M5 that may hold up to be the world's fastest sedan. Our sponsor PSI (Precision Sport Industries – www.precision-sport.com – 407.617.0372) of Winterpark, FL (Orlando, FL area) has turned out several G-Power BMW M5 Supercharger kits and can contest to the quality of craftsmanship and engineering that goes into G-Power products for the E60 BMW M5. If you have an E60 BMW M5 V10, then this is the shop that you want to take your car to for a new G-Power twin-supercharger kit.
The new G-Power Hurricane RR is able to accomplish a top speed of 231mph which would make it the world's fastest sedan if the record holds. If you remember, the M5 Hurricane RS set the previous world record for the fastest sedan using a twin-supercharged V10 setup producing 750 horsepower. At that time the car hit 228mph.
The newest G-Power M5, Hurricane RR, gets a 6.67% boost in power cranking out a total of 800hp and 590 lb-ft of torque using even larger superchargers. The only thing that is speculated to beat out the new G-Power Hurricane RR in the near feature is the Bugatti Galibier when it hits the market in 2013… unless someone else has something up their sleeves.
G-POWER HURRICANE RR based on the BMW M5 Press Release
372 km/h – The World's Fastest Sedan
G-POWER HURRICANE RR based on the BMW M5
G-POWER M5 HURRICANE RR
800 hp / 588 kW at 7.500 r/min (+ 293 hp / 215 kW)
800 Nm at 5.000 r/min (+ 180 Nm)
Top speed: 372 km/h
0-100 km/h: 4,35s
0-200 km/h: 9,5s
0-100 km/h: 25,8s
Vehicle complete with accessories: starting at € 252.100,00,– (net)
Following up on the G-POWER M5 HURRICANE RS powered by a G-POWER twin-supercharger engine with 750 hp/551 kW, which has set the record for the 'world's fastest sedan' at 367,4 km/h in early 2010, G-POWER did it again. But this time with 372 km/h! With this target in mind, the development for the new evolutionary HURRICANE RR with 800 hp began.
A few weeks ago, the air is tight with tension when the G-POWER engineers give their "go" for the M5 HURRICANE RR to manage the ultimate test: High Speed. It takes only a few minutes to change the standard 20 inch G-POWER forged wheels to 19 inch ones. The wheels, especially fitted with Michelin Pilot Sport tires that Michelin are certified for top speeds of more than 370 km/h. The HURRICANE RR is ready to go, the test track as well. Apart from the swop of the wheels the HURRICANE RR is completely standard and relies predominantly on its power of the bi-supercharger engine. And just a few laps later it is done. The analysis of the engineers states a top speed of 372,1 km/h. World record! Once again…
To achieve this extreme performance, the twin supercharger system of the high-revving V10 has been redesigned. The two superchargers named ASA T1-313 have been replaced by larger ASA T1-316 units. They are both driven by a belt and do provide each cylinder bank with supercharged air. This means more space for the supercharged air by up to 25 percent. The air volume being transported by these modified superchargers is able to generate a theoretical power output of more than 900 hp.
The pre-compressed air from the superchargers is cooled for a maximum power output. A complicated aluminium casting – painted in G-POWER orange – replaces the standard air box on top of the engine, and its direct inlet is responsible for the spontaneous response characteristics which give the G-POWER motor its incomparable response and also much more torque.
The inner workings of the 10-cylinder, four-valve engine are optimised by light, precisely balanced MAHLE high-performance forged pistons with lower compression and increased mechanical strength. As the standard connecting rods and piston pins were equally not up to the considerably increased forces, here too, recourse was had to special parts.
An optimized mapping of the engine electronics also contributes to the increased power output of 800 hp / 588 kW, available between 7,500 and 8,000 rpm. The engine delivers its peak of torque of 800 Nm at 5,000 rpm.
But the G-POWER HURRICANE RR does not only set new performance standards for top speed. With an acceleration of just 4.35 seconds from nought to 100 km/h, 9.5 seconds up to 200 km/h and 25,8 seconds up to 300 km/h the two-ton sedan is also leading his class.
The G-POWER technology is available for all current M5 and M6 models. The G-POWER SK III bi-supercharger engine conversion with 750 hp / 551 kW starts at 56,000 Euros (net).
In addition to the most powerful BMW engine ever being fitted to a street-legal BMW M5 a new aerodynamic for maximum efficiency was key. The HURRICANE RR is equipped with the G-POWER "HIGHLINE" body kit. In addition to provide the necessary downforce the body kit is also designed to provide significant more air flow to cool the engine. The body kit consists of front and rear skirts and spoilers, doors render and the rear spoiler.
Two tons of weight and a top speed of 372.1 km/h naturally require extreme demands on the tires, being fitted on special G-POWER forged wheels. Our technology partner Michelin provided high-performance Pilot Sport tires in the dimensions 255/35 ZR 19 at the front axle and 305/30 ZR 19 at the rear axle for this reason. For every day use the G-POWER HURRICANE RR runs on 20-inch Silverstone CLUBSPORT wheels with the dimensions 245/35 ZR 20 and 285/30 ZR 20 front and rear.
Even more contributions to the HURRICANE RR's high-speed talents are coming from a G-POWER high-performance brake system and the height-adjustable G-POWER RS coilover suspension that is adjustable for both compression and rebound in nine settings.
The interior of the record car features a tachometer reading up to 400 km/h, clear-coated carbon-fiber panels for the dashboard, center console and door panels. An ergonomically shaped G-POWER sports steering wheel with especially perforated Kjerba Nappa leather is completing this package.
The G-POWER HURRICANE RR can be ordered as a complete car starting at 251,100 Euros. Any current M5 model – sedan or station wagon – can also be equipped with the individual G-POWER components of the world record holder.
The company G-POWER:
G-POWER was established in 1983 and has ever since exclusively focused on tuning BMW automobiles and producing exclusive one-of-a-kinds. In 2008, the brand celebrated its 25-year anniversary and today, it is one of the most renowned providers on the global market. By developing the world-wide strongest versions of the most important BMW engines in-house, G-POWER significantly stands out from its competitors. G-POWER holds various world records and its 800 hp strong BMW M5 Hurricane RR is the fastest limousine in the world. G-POWER is holding the High-Speed record for over two years now.
[source: G-Power]
BMW M5 G-Power Precision Sport Industries PSI


Rugby was a sport developed at Rugby School in Warwickshire, where the folklore says student William Webb Ellis picked up the ball in a game of football in 1823 and ran with it, creating the game of rugby.
Although this is largely disputed as a myth, the William Webb Ellis trophy is awarded to the winners of the Rugby Union World Cup and the tale is still common amongst fans and players.
There are two codes of rugby which are now played around the world, largely in countries of the Commonwealth after the sport was spread via the British Empire. Rugby union which was the original format of the game and includes mauls, line outs and large rucks - this remains the most popular code globally - and rugby league.
League was created in the late 1800s as teams in Northern England began compensating players for their time - which went against the codes of the Rugby Football Union and led to the creation of rugby league, which is still popular in Northern England.
Our personalised rugby shirts are excellent for all teams, from the modest school team looking for their first shirt to professional teams looking to create a bright shirt that can be used to forge a unique identity.
Our rugby kit designer doesn't stop there though, you can create other sportswear in the same colour scheme with the team crest or logo so your team can travel and arrive in style, whether you're going to a competition or training.


Fibromyalgia and Vitamins C and E?
Fibromyalgia is a complex disease that requires a comprehensive approach. Often, the spine is neglected and chiropractic care is, therefore, underutilized. This seems surprising since so many patients have spinal pain and chiropractic care is one of the most proven treatments for this condition. Chiropractic care of the fibromyalgia patient may also incorporate a structured exercise program utilizing strength training and aerobic components, as well as nutritional adjuncts.
Sound nutrition is one of the keys to vitality. One scientific study (Altindag O, Celik H. Total antioxidant capacity and the severity of the pain in patients with fibromyalgia. Redox Rep 2006;11(3):131-5.) looked at antioxidant (such as vitamin C and E) markers in the blood of patients who had fibromyalgia symptoms. The researchers wanted to see if patients with low levels of these vitamin markers experienced more pain. The results indicated that patients with fibromyalgia are exposed to oxidative stress and this increased oxidative stress may play a role in the cause of the disease. Supplementation of antioxidant vitamins such as vitamins C and E may be indicated based on the results of the study.
A preliminary study (Bramwell B, Ferguson S, Scarlett N,Macintosh A. The use of ascorbigen in the treatment of fibromyalgia patients: a preliminary trial. Altern Med Rev 2000;5(5):455-62.) looked at 12 fibromyalgia patients and gave them a blend of vitamin C and broccoli powder. The results suggested that physical impairments were reduced and quality of life was increased.
Vitamins such as C and E can act as antioxidants protecting your cells from damage. They are found in fruits (oranges, strawberries, kiwi) and vegetables (kale, broccoli, bell peppers). Heat and processing can destroy their actions so eating raw forms may be preferred. If you do not eat lots of servings (e.g. five to nine) of these foods every day, it is wise to consider supplementing with natural source vitamins to boost your blood stream antioxidant levels. There is some scientific debate about the benefits of natural versus synthetic vitamins and whether it's best to consume them through primary food sources. The important thing is to take a step in the direction with whatever path you choose. It may make an important difference in how much pain you experience as the above cited studies suggest. With less pain, this may help you to move and exercise more.


text:
Memorandum on Motion to Dismiss Regarding Employment Reporting Agency Falsely Labeling Consumer Sex Offender
July 19, 2011 Cases & Complaints No Comments
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Plaintiff,
VERIFIRST BACKGROUND SCREENING, LLC, et al.,
Defendants.
Civil Action No.
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
PLAINTIFF'S COMPLAINT
Plaintiff , by undersigned counsel, hereby submits this memorandum of law in opposition to Defendants Trans Union, LLC ("Trans Union") and Verifirst Background Screening, LLC ("Verifirst") Motion to Dismiss Plaintiff's Complaint (the "Motion"). Dk. No. 24. For the reasons stated below, Defendants' Motion must be denied.
In a case where they sold a consumer report which inaccurately labeled Plaintiff a "Sex Offender" and caused him to lose a job, Defendants now unremorsefully argue that the report they sold was accurate, and that the law does not permit Plaintiff any recovery. Thankfully, neither the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681x ("FCRA") nor our Circuit's rich and abundant interpretation of it is so draconian. Curiously, while Defendants so aggressively argue the law and move for dismissal under it, Defendants do not cite a single FCRA case from this district nor our circuit's recent seminal decision of Cortez v. Trans Union, LLC, 617 F.3d 688 (3d Cir. 2010).
The reason for this is obvious. As this Honorable Court will see, Cortez, as here,involved the same Defendant, and its same counsel, unsuccessfully arguing that it was accurate and appropriate for Trans Union to report an innocent consumer as being on the government's criminal OFAC list. Trans Union's argument was received dreadfully and its arguments here should be treated no differently. In Cortez, our Circuit issued an unequivocal and critical 91 page road map rejecting every one of Trans Union's arguments and discussing, among other things, the accuracy standard for consumer reports, especially as they pertain to criminal records, and the elements required for proving willfulness, causation and punitive damages in FCRA cases. No solid legal analysis of FCRA claims premised upon an inaccurate public record in our district can begin without a discussion of Cortez, and Defendants' conscious decision to ignore it renders their arguments highly circumspect.
Defendants also ignore recent pertinent case law addressing the pleading standards for FCRA cases involving false employment reports and FCRA claims brought under section 1681k, and attempt to revive a First Amendment argument that has no basis in fact or law. See, e.g., Smith v. Hireright Solutions, Inc., et al., 711 F.Supp.2d 426, 439 (E.D. Pa. May 12, 2010) (Judge Buckwalter holding that similar allegations against another CRA which sold an employment report satisfied the Twombly/Iqbal standard).
Defendants' Motion is similarly flawed in that it ignores the allegations of Plaintiff's Complaint and the pertinent facts. As the Court will see, Plaintiff has more than adequately supported the causes of action he has plead with specific factual allegations, and there can be no serious question that Defendants grossly misreported derogatory and damaging public record information about Plaintiff. As such, Defendants' Motion should be denied in its entirety.
II. LEGAL STANDARD
On a Rule 12(b)(6) motion to dismiss, the general rules of pleading require only a short and plain statement of the claim showing that the pleader is entitled to relief; detailed factual allegations are not necessary. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). The court must accept a complaint's factual allegations as true and view them in the light most favorable to the plaintiff. Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).
Universally recognized as a notice pleading standard, Rule 8(a)(2) calls for a plaintiff filing a complaint in the federal courts to simply provide "a short and plain statement of the claim showing that the pleader is entitled to relief." See Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) ("A complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations."). See also, Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002) (calling Rule 8 a "simplified notice pleading standard"), and Scheuer v. Rhodes, 416 U.S. 232, 236 (1974):
When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.
The Third Circuit after Twombly has consistently held that when considering a motion to dismiss pursuant to Rule 12(b)(6), the court shall:
"accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff" and "determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief."
Umland v. PLANCO Financial Services, Inc., 542 F.3d 59, 64 (3d Cir. 2008), (quoting Buck v. Hampton Twp. Sch. Dist., 452 F.3d at 260, and Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002)). See also, Phillips v. County of Allegheny, 515 F.3d at 233 (finding Pinker "remains an acceptable statement of the standard" and "finding [Twombly] confusing"). "Rule 12(b)(6) does not countenance . . . dismissals based on a judge's disbelief of a complaint's factual allegations." Twombly, 550 U.S. at 556 (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). "A well-pleaded complaint may proceed even if it appears that a recovery is very remote and unlikely." Id. (quoting Scheuer v. Rhodes, 416 U.S. at 236).
To the extent Twombly, or Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), impacts the standard of review of a motion seeking dismissal of claims, the opinion merely clarifies that a complaint must "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. The Third Circuit in Phillips noted that Twombly "'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence' "of the necessary element." 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556). And as this Court recently had occasion to observe, relying onPhillips and other post-Twombly decisions, "nothing in Twombly, Iqbal, or Fowler [v. UPMC Shadyside, 578 F.3d 203 (3d. Cir. 2009)] has altered some of the fundamental underpinnings of the Rule 12(b)(6) standard of review ….[Rule 8] requires only a short and plain statement of the claim showing that the pleader is entitled to relief and need not contain detailed factual allegations." Smith v. HireRight Solutions, Inc., 711 F.Supp.2d 426, 431 (E.D. Pa. 2010) (citations omitted) (denying motion to dismiss FCRA claims).
III. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A Class Action Complaint was filed by Plaintiff on behalf of a class of similarly situated persons on April 8, 2011. Dk. No. 1. The Complaint asserts that the Defendants violated the FCRA by selling to prospective employers prejudicial, inaccurate and incomplete background reports about applicants, by failing to provide contemporaneous notification to the consumer that public record information was being reported about them, and by failing to maintain strict procedures designed to insure that public records information reported by Defendants is complete, accurate and up to date. See Comp. ¶¶ 32-34; See also 15 U.S.C. §§ 1681e(b) and 1681k. On May 27, 2011, Defendants filed a motion to dismiss all of Plaintiff's claims. Dk. No. 24.
A. Factual Allegations As To The Defendants' Violations Of The FCRA
The Complaint describes a number of the FCRA's statutory duties required of a consumer reporting agency ("CRA"). The Complaint alleges, and no Defendant has denied, that during the relevant time period, the Defendants were each a CRA as defined by section 1681a(f) of the FCRA. Comp. ¶¶ 6 and 7. When a CRA furnishes a consumer report for employment purposes, it compiles and reports items of information about consumers that are matters of public record and are likely to have an adverse effect upon a consumer's ability to obtain employment.[1] Comp. ¶ 32. The CRA, at the time the public record information is reported to the user of the consumer report, must also comply with the appropriate of two alternate requirements under section 1681k(a). If the CRA uses a database, in lieu of contemporaneous searches and verifications, it must notify the consumer of the fact that public record information is being reported by the CRA, together with the name and address of the person to whom such information is being reported. See 15 U.S.C. § 1681k(a)(1).[2] A CRA is also required to follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates. See Comp. ¶¶ 30-31; see also 15 U.S.C. § 1681e(b).
Notwithstanding the statutory requirements, the Complaint alleges that Defendants neither notified the Plaintiff contemporaneously of the fact that public record information was being reported by Defendants. Comp. ¶¶ 33 and 34. It also alleges that the alternate means of compliance – section 1681k(a)(2) is inapplicable as the data sold by Defendants was from an archived database not subject to contemporaneous verification. Id. The Complaint further alleges that Defendants' practice exacts serious consequences on consumer job applicants. When consumers such as Plaintiff have been reported as having criminal records that clearly belong to an individual with a different name, residing in a different state, such consumers are viewed as less desirable job applicants and are more likely not to be hired by the employers who pay Defendants for such reports. Comp. ¶¶ 28 and 31. Further, since consumers are not contemporaneously notified of the information being reported about them, they are prejudiced in their ability to adequately determine whether the information reported is accurate. Comp. ¶¶ 33 and 34. Pursuant to Defendants' practice, by the time the consumer is made aware of the inaccurate reporting, it is too late to correct the information because it has already been sold to the employer by the Defendants and has formed the basis of a decision whether to hire the applicant. Comp. ¶¶ 9, 15-17.
Plaintiff asserts that despite the statutory duties described in the FCRA and the Complaint, the Defendants nonetheless, deliberately, willfully, intentionally, recklessly and negligently adopted policies and practices that disregard these duties, in violation of the FCRA. Comp. ¶¶ 30-32.
B. Factual Allegations As To The Representative Plaintiff
The Complaint describes the factual background of what happened to the Plaintiff, Leslie Ellis Thomas, as a result of the Defendants failure to abide by the FCRA.
In early May 2010, Plaintiff interviewed at , an X-ray film cleaning company. Comp. ¶ 8. After a two and a half hour interview, Plaintiff was conditionally offered the position, and was told he would be able to start on May 17, 2010. Comp. ¶ 9. Plaintiff was advised that in the interim a background check would be conducted. Id.
9. After Plaintiff's interview, and before May 17, 2010, requested that LLC ("") provide a consumer report from VeriFirst, which purchases consumer information from Trans Union to include in its consumer report. Comp. ¶ 10. The consumer report (obtained by Plaintiff at a later date) indicates that the report was originally furnished to Pyromet by the Defendants on May 15, 2010, for employment purposes. Comp. ¶ 26. Sometime later, Plaintiff received the letter attached to his Complaint as Exhibit A. Comp. ¶ 15. Although the letter itself was dated May 15, 2010, Plaintiff did not receive the letter until weeks later, and the report appears to be only furnished to his potential employer, not Plaintiff, on May 15, 2010. Comp. ¶¶ 15 and 16. To make matters worse, VeriFirst's notice letter did not identify the entity or person to whom it actually furnished the report, nor did the Plaintiff receive a report from his prospective employer, or Defendants. Comp. ¶¶ 17 and 18. [as you poit out below, defendant Verifirst did provide it weeks later, do you mean to say "did not receive timely"?]
On May 17, 2010, the date that Plaintiff was supposed to begin employment with , Plaintiff contacted to determine when to report to work, and to determine if Pyromet had completed the background check. Comp. ¶ 20. Plaintiff was advised that no one there could answer his questions. Id. Plaintiff continued to call Pyromet on May 19, 2010, May 20, 2010, May 24, 2010 and May 28, 2010, about the position he had been offered and the status of his offer of employment. Comp. ¶¶ 22-25. It was only later, after June 8, 2010 that Defendants mailed to Plaintiff a copy of the report to Plaintiff, and Plaintiff discovered he had been reported to as a Sex Offender. Comp. ¶ 26.
The subject consumer report contains information and was created by both Trans Union and VeriFirst. Comp. ¶ 26. The subject consumer report includes information labeling him a National Sex Offender. Comp. ¶ 28. The report clearly contains information that does not belong to Plaintiff, since the National Sex Offender Registry refers to a "." Id. Plaintiff further pleads in his Complaint that Defendants had inaccurately mixed his identity with that of a totally unrelated person. Id. This unrelated person has a different middle name, date of birth, address, and a different social security number. Comp. ¶¶ 28 and 30. This information would likely have an adverse affect upon Plaintiff's ability to obtain employment, from Pyromet or any other employer, and Plaintiff clearly alleges in his Complaint that this information was a substantial factor in his denial of employment. Comp. ¶¶ 28 and 32.
As a result of Defendants' loose matching criteria of personal information, they sold a report about Plaintiff containing inaccurate and derogatory information. Comp. ¶¶ 28-32. Further damaging the Plaintiff, Defendants failed to timely notify the Plaintiff and/or maintain strict procedures to insure that the information sold about Plaintiff was accurate, complete and up to date, providing Plaintiff an opportunity to dispute and correct the inaccuracies. Comp. ¶¶ 28 and 32.
Based on the foregoing allegations, Plaintiff seeks to certify a class of similarly situated persons, statutory damages of $100 to $1,000 per class member, punitive damages, attorney's fees and costs, pursuant to the FCRA.
C. There Was Nothing "Accurate" About The Public Records Information Reported About The Plaintiff
While it is not generally appropriate to discuss factual matters not alleged in the pleadings, Defendants have made an issue of the "accuracy" of the public records available for Defendants' review and inclusion in the report they sold about Plaintiff, and Plaintiff believes it appropriate and necessary to set the record straight.
On May 14, 2011, Defendants' sold a report about Plaintiff to his potential employer . See Comp. ¶ 11. See also A true and correct copy of Plaintiff's consumer report attached hereto as Exhibit ___. The very first page of this report indicates that it was prepared for Plaintiff, and Plaintiff only, . Id. The first page of Plaintiff's report includes one sex offense record. Id. This is despite the fact that there is no record in Montana or any other jurisdiction where Plaintiff is indicated as a sex offender, as he has never been prosecuted as a criminal, let alone a sex offender. Comp. ¶ 28.
Defendants' argument that this information is accurate is preposterous. Def.'s Mem. at 7-8. Defendants believe that the information reported about the Plaintiff is accurate despite the fact that they reported Plaintiff was a sex offender, when he is not. Def.'s Mem. at 7. Defendants prepared a report for Leslie Ellis Thomas, which improperly contained and attributed to the Plaintiff a sex offense committed by a totally unrelated stranger. Exhibit ____. The report prepared by Defendants was not for "," or any individual other than Plaintiff. Id[3].
Even if Defendants had prepared a report for , the public records information included in that report is not "complete and up to date." Def.'s Mem. at 7. Not all available information from the public record was included in Defendants reports, despite their representations to the contrary. Defendants included in the report sold about Plaintiff the following:
o Photo unavailable
o First Name:
o Middle Name:
o Last Name:
o Birth Date: [blank]
o Social Security Number: [blank]
Subject-
o Residence: [blank]
o Address: [blank]
o City: [blank]
o State: [blank]
o Zip: [blank]
Physical Details
o Sex: U
o Telephone: [blank]
o Mobile: [blank]
o Email: [blank]
o First: Leslie
o Last: Thomas
o Date of Birth: [blank]
Exhibit ___. The information available through the online public records of the Montana Department of Corrections contains considerable information not included in Defendants' report. Attached hereto as Exhibit B, is a True and Correct copy of the Montana Department of Corrections Correctional Offender Information. These public records include:
Status: Parole
Physical and Demographic Characteristics:
o Date of Birth: 12-Mar-65
o Birthplace: Lewistown Montana
o Ethnicity: White
o Marital Status: Single
o Citizenship: United States
o MT Resident: Yes
o Height: 5 ft 6 in
o Weight: 140 lbs
o L/R Handed: R
o Hair Color: Brown
o Build: Medium
o Skin Tone: Light
o Eye Color: Blue
o AKAs: None
o Scar, Marks, Tattoos, and Other Physical Conditions
§ SC L CHK- SCARS CHEEK (FACE), LEFT
§ SC L ELB- SCARS ELBOW, LEFT
§ SC L EYE- SCARS EYEBROW, LEFT/LEFT EYE
§ SC L FGR- SCARS FINGER(S), LEFT HAND
§ SC R WRIS- SCARS WRIST, RIGHT
Ex._____. The "publically available materials" identified above includes numerous items or identifying information that Defendants failed to provide in the report it sold about Plaintiff. Id.
IV. ARGUMENT
Defendants make numerous arguments in their Motion, none of which warrant the dismissal of any of Plaintiff's claims, as shown below.
A. The Complaint Sufficiently Alleges That Defendants Violated FCRA Section 1681k
Defendants argue that Plaintiff has failed to plead that Defendants violated 1681k, which regulates a CRA's obligations when furnishing a consumer report for employment purposes that contains public records which are likely to have an adverse effect on the consumer's employment. Section 1681k provides that a CRA must comply with either section 1681k(a)(1) (relating to the requirement of a CRA to provide contemporaneous notification of the fact that it sold likely adverse information relating to a public record about the consumer, along with the name and address of the person to whom it sold that information), or section 1681k(a)(2) (relating to the requirement to have strict procedures to insure that whenever public record information is likely to have an adverse effect on a consumer's ability to obtain employment, such information is complete and up to date). This section thus requires that when a CRA furnishes a consumer report for employment purposes, as in the present case, it do one of two things. It may send the notice described in subparagraph one or it may follow the "Strict procedures" obligated by subparagraph two. To satisfy this second option, "The CRA must at least re-verify information that was collected prior to the current request for a consumer report for employment purposes to ensure that the status has not changed." National Consumer Law Center, Fair Credit Reporting, Sixth Edition (2006), p.126; see also Poole v. Sterling Testing Sys., Inc., 410 F. Supp. 2d 557 (E.D. Ky. 2006). "Relying upon database records updated every thirty days does not suffice." Fair Credit Reporting, p. 125-126. See also Allan, FTC Informal Staff Opinion Letter (May 5, 1999). This section does not apply to the reports HireRight generates from its secondary database. Defendants do not contend that they ever re-verified their public records files with the original source (such as a court), let alone in the period thirty days before the reports were furnished. They never re-verify such public records data. Thus, Trans Union and Verifirst must rely on the option provided in subsection one of §1681k(a). They must "notify the consumer" that it the CRAs are furnishing the employment consumer report "at the time such public record information is reported to the user of such consumer report[.]" 15 U.S.C. §1681k(a).
Plaintiff has properly and sufficiently alleged that Defendants violated section 1681k.. Specifically for section 1681k(a)(1) "Defendant VeriFirst provided a delayed and incomplete notice, while Defendant TransUnion provided no notice at all." Comp. ¶¶ 4 and 33. If proven through discovery these actions of Defendants would violate section 1681k(a).
Plaintiff also alleges that Defendants do not comply as a routine matter and course with § 1681k(a)(2). "Defendants did not attempt for any consumer to follow the option available at 15 U.S.C. § 1681k(a)(2), which requires a consumer reporting agency to actually contact the original source of public records information (e.g. the Court clerk) immediately before furnishing a report which includes such information." Comp. ¶ 34. Because the Defendants sell out of a preexisting database, this provision is inapplicable. As another District Court has explained in outlining the cause of action in a nearly identical class action, "Alternatively, the CRA may adopt "strict procedures" to ensure that such reports are accurate. 15 U.S.C. § 1681k(a)(2). That section of § 1681k is not at issue in this litigation, however." Williams v. LexisNexis Risk Mgmt. Inc., CIV A 306CV241, 2007 WL 2439463 (E.D. Va. Aug. 23, 2007) (Certifying a national class under 15 U.S.C. § 1681k(a)(1)).
Thus, Defendants allegations that Plaintiff has not pleaded with sufficiency his § 1681k claim are baseless. The Complaint sufficiently alleges facts in support of Plaintiff's claim that Defendants have willfully violated §1681k, and as this Court must "accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff," Plaintiff has sufficiently plead his §1681k claim. Umland v. PLANCO Financial Services, Inc., 542 F.3d 59, 64 (3d Cir. 2008), (quoting Buck v. Hampton Twp. Sch. Dist., 452 F.3d at 260, and Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002)).
Defendants' inappropriately argue the merits of Plaintiff's claims in their Motion, which is inappropriate in a motion to dismiss. See Def.'s Mem. at 7. See also Twombly, 550 U.S. at 556 ("Rule 12(b)(6) does not countenance . . . dismissals based on a judge's disbelief of a complaint's factual allegations."). Defendants argue that the data provided on Plaintiff's report was a complete and up to date description of what appeared in the Montana public record and thus are exempt from liability under § 1681k(a)(2). Def.'s Mem. at 7.This argument is ludicrous for several reasons.
First, there is no Montana record that pertains to , the subject of Defendants' report, and certainly not one that reports he is a sex offender, Defendants' argument is completely and demonstrably false. Exhibit ____.
Second, Defendants failed to provide 'complete' information about the public records it erroneously furnished about the Plaintiff. Defendants failed to include address information, which is clearly available to them and included in the public records they allegedly used to compile the report about the Defendant. Dk. Nos. 24-3 and 24-4.
Last, the public records referenced by Defendants in their Motion do not represent the complete public record for . The Montana Department of Corrections provides a litany of personal identifying information in its public records available online, which Defendants failed to include in Plaintiff's report. Exhibit ____.
Defendants further argue that they have not violated § 1681k since they have no obligation to investigate or insure that the information reported is about the individual they sell information about is about that particular individual, so long as the information they do sell is complete and up to date. Def.'s Mem. at 7. This is ludicrous and turns the FCRA on its head. 1681a(d)(1) defines a consumer report as:
"any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for—
(B) employment purposes[.]
And 1681e(b)(1) further requires:
(b) Accuracy of report
Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.
(Emphasis added). Defendants' suggestion that it can sell consumer reports containing information relating to other individuals with impunity is in opposition to the plain statutory language, Third Circuit case law and common sense. It is also an argument that Trans Union has unsuccessfully advanced previously in Cortez v. Trans Union, LLC, 617 F.3d 688, 708 (3d Cir 2010) ("According to Trans Union, its credit report contained the most accurate information possible because Trans Union simply included the information furnished by the government"). The Third Circuit refused Trans Union's argument and held that a report is prepared by a CRA for a single individual, at the request of a business providing that individual's identifying information, so the impression is created for the recipient of the report that the inaccurate information belongs to the consumer. Cortez, 617 F.3d at 708-9.
Thus, Plaintiff has sufficiently plead his allegations under §1681k by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" and has shown that Defendants' premature and unsupported arguments that they can escape liability because they have complied with the statute do not warrant a dismissal of his claims. Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007).
B. The Complaint Sufficiently Alleges That Defendants Violated FCRA Section 1681e(b)
Plaintiff has sufficiently alleged that Defendants violated FCRA section 1681e(b). Section 1681e(b) requires that "[w]henever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates."
Plaintiff alleges that Defendants sold a report about him to a potential employer. Comp. ¶¶ 11 and 12. Plaintiff alleges that this report contained inaccurate information, namely that he is a sex offender. Comp. ¶ 28. Plaintiff alleges that this inaccuracy is as a result of Defendants' failure to utilize reasonable procedures, including their use of loose matching criteria. Comp. ¶ 31. These unreasonable procedures permitted inaccurate sex offender records to be attributed to Plaintiff and included in his report. Id.
Defendants baldly argue that Plaintiff's FCRA section 1681e(b) claim must be dismissed because "the information provided was the result of "reasonable procedures" designed to ensure 'maximum possible accuracy.'" Def.'s Mem. at 8. Defendants fail to cite a single case, or articulate a single procedure to support their assertion. This is not surprising, considering the Third Circuit recently upheld a jury verdict against Trans Union for including public records information for an unrelated individual on a consumer's report, the very same allegations Plaintiff makes here. Cortez v. Trans Union, LLC, 617 F.3d 688, 710 (3d Cir 2010). The Court held in response to Trans Union's arguments that it could not be held liable for reporting information gleaned from a public record that "Trans Union remains responsible for the accuracy in its reports under the FCRA and it cannot escape that responsibility as easily as it suggests here. Moreover, this merits based conclusion is inappropriate in a Rule 12(b)(6) motion. See Vassalotti v. Wells Fargo Bank, N.A., 732 F. Supp. 2d 503, 510 n.6 (E.D. Pa. Aug. 9, 2010 (J. Brody held that the accuracy of the disputed information on a consumer's credit report is an improper inquiry at the motion to dismiss phase).
Congress clearly intended to ensure that credit reporting agencies exercise care when deciding to associate information with a given consumer, and the record clearly supports the jury's determination that Trans Union did not exercise sufficient care here." Id. Defendants' unsupported assertion that the "information provided was a result of 'reasonable procedures' designed to ensure 'maximum possible accuracy'" does not provide this Court with reason to dismiss Plaintiff claims, especially in light of the Cortez decision finding the same procedures of Defendant Trans Union in violation of § 1681e(b).
C. The Complaint Sufficiently Alleges That Defendants Acted Willfully in Violation Of The FCRA
Defendants also move to dismiss Plaintiff's willfulness allegations. Def.'s Mem. at 4. Defendants are wrong. To establish a willfulness claim a plaintiff must prove that a defendants acted in reckless disregard of the FCRA. See Safeco Ins. Co. of America v. Burr, 551 U.S. 47 (2007). Defendants' attack on Plaintiff's willfulness claims is that they are too general and conclusory. Def.'s Mem. at 5. This is untrue. The Plaintiff states that the Defendants knew or should have known their obligations and consciously breached these duties and acted willfully. Comp. ¶¶ 35, 37 and 49. Such allegations are sufficient.
1. The Willfulness Standard: Reckless or Conscious Disregard
Defendants' challenges under Twombly and Safeco misstate the legal requirements at the motion to dismiss stage, and further, Plaintiff has satisfied his pleading requirements.
Defendants rely on the analysis from Safeco Insurance Co. of America v. Burr, 551 U.S. 47 (2007), but in so doing, Defendants are putting the cart before the horse. In Safeco, the district courts had granted summary judgment. By contrast here, the parties are not at the stage of the litigation where a finding of willful conduct is necessary; establishing willfulness should await full discovery and dispositive motion briefing. Korman v. Walking Co., 503 F. Supp. 2d 755, 761 (E.D. Pa. 2007) (Robreno, J.) (pointing out that Safeco arose in a different litigation context and holding that determination of willfulness not appropriate at motion to dismiss stage); Miller v. Sunoco, Inc., 2008 WL 623806, *2 (E.D. Pa. March 4, 2008) (Kauffman, J.) (same); Ehrheart v. Lifetime Brands, Inc., 498 F.Supp.2d 753, 756 (E.D. Pa. 2007) (Padova, J.) (motion to dismiss denied where the complaint sufficiently alleged that defendant's violation of FCRA was either knowing or reckless, "accordingly, … the Complaint plausibly alleges that Defendant's violation … was willful"). Accord, Hedlund v. Hooters of Houston, 2008 WL 2065852, *3-4 (N.D. Tex. 2008) (citing cases).
In addition to being premature,Defendants argue the wrong standard.A plaintiff need not allege a knowing violation (although the fact that Defendants here must have had knowledge of their own written compilation of inaccurate reporting is hardly controvertible), but only that the defendant recklessly committed an act in reckless or conscious disregard of the rights of others, and Plaintiff has done that. See Cushman v. Trans Union Corp., 115 F.3d 220, 227 (3d Cir. 1997). This is alower standard than the standard for willful violations or punitive damages claims under most common law torts. Although the terms "willful" or "willfully" are not defined in the FCRA, case law has held that neither malice nor evil motive need be established for a finding of a willful violation. Id.; see also Stevenson v. TRW, Inc., 987 F.2d 288, 294 (5th Cir. 1993), citing Fischl v. General Motors Acceptance Corp., 708 F.2d 143, 151 (5th Cir. 1983).
Many courts have noted that willfulness under the FCRA is demonstrated by recklessness and not by a knowing violation of the law. Cushman, 115 F. 3d at 227; Stevenson, 987 F2d at 293 (citing Pinner v. Schmidt, 805 F.2d 1258, 1263 (5th Cir. 1986). See also Reynolds v. Hartford Fin. Servs. Group, 435 F.3d 1081, 1097-99 (9th Cir. 2006), rev'd on other grounds by Safeco Ins. Co. of America v. Burr, 551 U.S. 47 (2007) (discussing meaning of "willfully" under FCRA and relying on Cushman). Such reckless or conscious disregard may be found when a defendant adopts a policy either knowing it to be in "contravention of the rights possessed by consumers under the FCRA or in reckless disregard for whether the policy contravenes those rights." Cushman, 115 F. 3d at 227; see also Reynolds, 435 F.3d at 1097-99.
D. The Complaint Sufficiently Alleges Causation
Defendants argue that Plaintiff's negligence claims set forth under section 1681o cannot survive because he has not pleaded causal harm. Def.'s Mem at 5. Defendants are wrong. While it is true that a negligence claim under 1681o of the FCRA does require a causal link between Defendants' action and the harm suffered by Plaintiff, Plaintiff has done so. Comp. ¶¶ 3, 8-30 and 32. Plaintiff alleges that he lost employment with Pyromet and that the inaccurate sex offender record was a substantial factor in that job loss. Comp. ¶ 32. To prove causation under the FCRA Plaintiff needs to show that the inaccuracy was a substantial factor in the denial. Id.
Thus Plaintiff's Complaint sufficiently pleads causation and cognizable damages suffered as a result of Defendants' inaccurate reporting.
E. Selling False Information To Potential Employers About Consumers Is Not Protected Speech Under the First Amendment
Defendants further argue that the requirement that they report information about consumers accurately violates their First Amendment rights. Def.'s Mem at 8. Defendant Trans Union has advanced its First Amendment argument previously, and has been advised that it lacks merit. Trans Union Corp. v. FTC, 245 F.3d 809, 811 (D.C. App. 2001); cert denied, 536 U.S. 915 (2002), (Trans Union alleged that FCRA claims were subject to strict scrutiny under the First Amendment, the Court found such allegations were "without merit"). The Court further explains Defendant's misapplication of Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, which Defendants have also misapplied here, stating "the Supreme Court held that a consumer reporting agency's credit report warranted reduced constitutional protection because it concerned "no public issue." Trans Union Corp., 245 F.3d at 817 (citing Dun & Bradstreet, 472 U.S. at 762). Here, Mr. Thomas' consumer report issued by Defendants was for a private use, by a private company for private employment considerations. Comp. ¶¶ 10 and 16. Since the consumer report at issue here "was speech solely in the interest of the speaker and its specific business audience" there is no matter of public concern which would heighten this Court's scrutiny of Plaintiff's claims under the FCRA. Dun & Bradstreet, 472 U.S. at 762.
Additionally, Defendants' allegation that they "have done nothing more than report information from a public record" is unavailing. Defendants compile and sell reports about specific individuals, and such reports are governed by the FCRA requirement that reports be made with maximum possible accuracy. Cortez, 617 F.3d at 708. Reporting a subject consumer is included in a Sex Offender List, when the subject consumers name, address, date of birth, social security number, physical description and other personal information is clearly different from the information included in the public record, is not reporting with maximum possible accuracy. As discussed at length above, such an argument is unavailing under the FCRA, and Plaintiff is entitled to proceed on his claims.
F. Defendants' Public Policy Argument Is Absurd
Defendants finally argue that "the risk to the public of not detecting that an applicant has a serious criminal record far outweighs any short-term, inconvenienced to an applicant." Def.'s Mem. at 2. Defendants are CRAs and have obligations under the FCRA to report information about consumers with the maximum possible accuracy. 15 U.S.C. § 1681e(b). Defendants also have an obligation to provide consumers with an opportunity to review employment records for inaccuracies before an employment decision is made about them, or in the alternative utilize strict policies to insure that what they do report is complete and up to date. 15 U.S.C. § 1681k. Defendants have no obligation under the FCRA to "provide the broadest possible range of data," and obviously, Defendants have not provided any legal support for their contention. Defendants' obligations, as articulated in the plain statutory language and the FCRA case law, is the exact opposite of "providing the broadest possible range of data," and a fact well known to Defendants. Cortez, 617 F.3d at 709. Moreover, if Defendants actually satisfy their FCRA statutory duties and report complete and accurate information, employers and the public will suffer no harm.
Thus Defendants' attempt to argue for dismissal of Plaintiff's claims on public policy grounds is baseless and must be denied.
For all the foregoing reasons, Plaintiff respectfully requests that the Court deny the Defendants' Motion to Dismiss and enter an Order requiring Defendants to file an Answer to the Complaint within fourteen (14) days.
Francis Mailman Soumilas, P.C.
By: /s/ James A. Francis
ERIN A. NOVAK
Robert P. Cocco, P.C.
ROBERT P. COCCO
1500 Walnut Street, Suite 900
Consumer Litigation Associates, P.C.
LEONARD A. BENNETT
12515 Warwick Boulevard, Suite 100
Dated: July 1, 2011 Attorneys for Plaintiff and the Class
[1] The statute cites examples of such public record information as relating to "arrests, indictments, convictions, suits, tax liens, and outstanding judgments." 15 U.S.C. § 1681k(a)(2).
[2] In circumstances in which the CRA does a contemporaneous search and can verify the current status and correctness of the public record directly from the courthouse, it may elect to comply with section 1681k9a)(2) instead. Under this section, the CRA is required to maintain strict procedures designed to insure that whenever public record information which is likely to have an adverse effect on a consumer's ability to obtain employment is reported, that information is complete and up to date. Id. See also Comp. ¶¶ 4, 33-34.
[3] While not as common as "John Smith" or "Mary Jones", "Leslie Thomas" is not particularly rare or unusual. According to U.S. Census data, during the relevant time period, "Thomas" was the tenth most common name in the United States and there were known to be nearly 1,000 persons named "Leslie Thomas." See e.g.http://howmanyofme.com/ last viewed on June 30, 2011.