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Search results for: "section 145"
Amendments to DGCL Section 145: Indemnification and Advancement Via Captive Insurance Companies
By Francis Pileggi on February 7, 2022
During the 17 years or so of this blog's existence, we have featured many Delaware decisions on the topic of indemnification and advancement for directors and officers, interpreting a company's obligations to make those payments pursuant to Delaware General Corporation Law (DGCL) Section 145, in addition to contract-based claims for advancement and indemnification. See also several book chapters I have published on advancement and indemnification as the Chair of the Indemnification and Advancement Subcommittee of the ABA Business Law Section's Corporate Litigation Committee. Enough background, and now for the main event:
The purpose of this short post is to make note of a consequential amendment, recently passed by the Delaware Legislature and signed by Gov. Carney, to DGCL Section 145, which as amended allows Delaware companies to use a captive insurance company to provide coverage for directors and officers–such as for purposes contemplated by Section 145–but with a few key exceptions. Relevant to this statutory amendment is a recent Delaware Supreme Court decision that concluded: Delaware's statutory indemnification provisions allow corporations to purchase D&O insurance "against any liability," whether or not the corporation has the power to indemnify against such liability.
One of Delaware's favorite nationally recognized corporate law scholars and one of the leading indigenous Delaware firms have provided exemplary commentary on this new development in corporate law. Those interested in this development should also read the reliably thoughtful insights by D&O insurance expert Kevin LaCroix on his widely-read blog, The D&O Diary.
Chancery Orders Mandatory Indemnification per DGCL Section 145(c)
By Francis Pileggi on June 10, 2019
A recent Delaware Court of Chancery decision ordered mandatory indemnification based on success in underlying litigation pursuant to DGCL § 145(c), in the matter styled: Brown v. Rite Aid Corporation, C.A. No. 2017-0480-MTZ (Del. Ch. May 24, 2019).
Issue Addressed: Whether dismissal of the underlying litigation based on a technical argument was "success" for purposes of mandatory indemnification under DGCL Section 145(c)–even if all of the arguments in the underlying litigation were not successful?
Answer: Yes.
Procedural Background:
The procedural history of this litigation involves multiple court decisions in several jurisdictions over the span of a decade. See, e.g., cases cited at footnotes 4, and 13 through 17.
Even though Brown was convicted and sentenced for certain financial crimes in connection with his role as an officer and a director of Rite Aid, in separate civil litigation pursued against him by Rite Aid, Brown was successful in having that litigation dismissed based on technical procedural arguments. See footnotes 18 through 20 and accompanying text.
Key Aspects of Court's Legal Analysis:
The court began its analysis by explaining that indemnification sought in this matter was based on three separate sources.
First, Brown relied on DGCL Section 145(c) which requires indemnification when a present or former director or officer has been "successful on the merits or otherwise" . . .. The court noted that Section 145(c) is independent and non-exclusive of any right based in the charter, which in turn is independent and non-exclusive of any bylaw right, which in turn is independent and non-exclusive of any contract right, absent specific agreement to the contrary. See Section 145(f), which makes this clear in both the indemnification and the advancement context.
The second basis for indemnification in this case was a provision in the corporate bylaws.
The third basis for indemnification sought in this matter was a provision in the corporate charter.
Notably, the court observed that even though Section 145(c), in the current version of the statute, covers officers and directors, the court added :
"But when a corporation has provided other authorized individuals with mandatory indemnification to the fullest extent of the law, then that right extends the mandatory indemnification contemplated by Section 145(c) to those individuals" (citing Dore v. Sweports, Ltd., 2017 WL 415469, at * 18 (Del. Ch. Jan. 31, 2017)).
The foregoing extension of the mandatory indemnification of Section 145(c), which in its current form only benefits directors and officers–to employees, agents and others that are expressly granted indemnification in the bylaws "to the fullest extent allowed by law"–is not well-known even by those familiar generally with the nuances of advancement law in Delaware.
The court explained that Section 145(c) provides for mandatory indemnification for an officer and a director who meets the requirements of the statutory provision, which is when: "a covered person defending himself in a covered proceeding . . . succeeds on the merits or otherwise . . .." See Slip op. at 10. See also footnotes 39-41.
Other Notable Bullet Points:
· The court recited the public policy rationale behind mandatory indemnification as including the need to encourage capable individuals to serve as corporate directors, which is viewed less as an individual benefit and more as a desirable mechanism in return for greater corporate benefits.
· A key point and an essential aspect of the court's reasoning is its reliance on an abundance of case law that interprets the "success" requirement in Section 145(c) very broadly. That is, in order to satisfy the requirement of success "on the merits or otherwise" under Section 145(c), one must merely obtain any result in a lawsuit "other than conviction," which does not equate with moral exoneration, but rather can be satisfied merely from: "escape from an adverse judgment or other detriment, for whatever reason . . .." See footnotes 54 to 55 and accompanying text.
· Moreover, if such a broad definition of success is achieved, it is not relevant, and the court will not inquire into, whether all arguments were won, or if preliminary motions or other efforts in the underlying litigation failed before the final successful result was reached. See footnote 56 and accompanying text. See also footnotes 72 to 80 and accompanying text.
· The court also granted fees on fees and required Brown to file an affidavit under Rule 88, itemizing the fees for which he seeks indemnification, along with a motion seeking an entry of an order requiring the corporation to indemnify him in the amount specified in the damages motion.
Chancery Rules that Law Firm Covered as Agent for Advancement Purposes Under DGCL Section 145
In Jackson Walker L.L.P. v. Spira Footwear Inc., 2008 WL 2487256 (Del. Ch., June 23, 2008), read opinion here, the Delaware Chancery Court ruled on the following issue of first impression in connection with interpreting advancement rights under DGCL Section 145:
The crux of this case is whether Jackson Walker's actions as Spira's outside litigation counsel constitute actions of an agent of the corporation under the Bylaws and DGCL § 145. This appears to be an issue of first impression under Delaware law.
The court reasoned that the Jackson firm was entitled to advancement as an agent under Section 145 based on the claims against it relating to the role in which it was sued by the company.
There have been quite a number of Chancery decisions about advancement over the last week or so, and this is the third Chancery Court opinion in as many days on the issue of advancement–and two of the decisions on the same day were by the same vice chancellor.
The factual background in this matter relates to litigation in Texas in which the Jackson firm was representing Spira during a control contest. After a new majority took over Spira, they fired the Jackson firm and then sued the Jackson firm claiming that despite following the instructions of the management in control of Spira at the time, those actions were not in the best interests of Spira. In effect, the argument was that the Jackson firm should have second-guessed management about what was in the company's best interest. As the court described the claims, which did NOT involve malpractice, for purposes of deciding the issue of agency:
The alleged wrongs for which Spira has sued Jackson Walker all represent instances where Jackson Walker acted on behalf of Spira in relations with third parties. As outside litigation counsel, Jackson Walker was Spira's agent because it had the "power to act on behalf of the principal with third persons." Trial lawyers have the ability to bind their client in dealings with the court and other parties to the litigation
Central to the court's analysis was a prior Chancery decision involving an attorney who sought advancement, but unlike the Jackson firm in this case, that attorney was not acting as outside litigation counsel:
Both parties rely on this court's decision in Fasciana v. Electronic Data Systems Corp.,50 for their positions as to why Jackson Walker does, or does not, qualify as Spira's agent. In that case, the plaintiff Fasciana was an attorney who represented a target company and its shareholders in connection with its sale to the defendant corporation.
By and large, Fasciana performed corporate transactional work. After the acquisition, Fasciana continued to provide legal advice and services as an attorney for the defendant corporation. Later, based on certain actions he took in connection with the sale of the target company, he was indicted on criminal charges and named as a defendant by the acquiring corporation in a civil suit, alleging malpractice and fraud on his part, together with other misdeeds. In seeking advancement of his litigation expenses, Fasciana contended that, based on his actions as an attorney for the acquiring corporation, he satisfied the statutory term, "agent," and thus had a right to advancement.
The court in Fasciana noted that the "term agent is thrown around in many legal contexts and often without great precision," but held that the Delaware General Assembly intended "§ 145 as embracing the more restrictive common law definition of agent, which generally applies only when a person (the agent) acts on behalf of another (the principal) in relations with third parties." The court further noted that Section 145's grant of indemnification tracks the concept of agent indemnification found in agency law. Thus, a person may be an "agent" for purposes of Section 145 when she may otherwise look to her principal for indemnity for those acts within the scope of the agency that are fairly said to be the actions of the principal. Conversely, the court held the concept of an "agent" under § 145 does not include a lawyer who acts as a legal advisor to a corporate client, but does not act on the client's behalf in relations with third parties. (most footnotes omitted from quote).
50. 829 A.2d 160 (Del. Ch. 2003).
Advancement Paid Under DGCL Section 145 Returnable to Company
By Francis Pileggi on December 7, 2006
Posted in Other Court Decisions
In Happ v. Corning, Inc., the U.S. Court of the Appeals for the First Circuit, read opinion here, recently applied Delaware law and interpreted DGCL Section 145, (Section 145 of the Delaware General Corporation Law found in Title 8 of the Delaware Code), to support the summary judgment finding that a director of a company was required to pay back the almost $1 million in legal fees that his company advanced in connection with a civil suit by the SEC. That suit resulted in a verdict that he engaged in insider trading (in the amount of about $40,000.) The director argued that the "undertaking" to pay back the advanced fees demanded by the company as a condition of advancement was signed "under duress" and that it went beyond the undertaking requirement of Section 145. The U.S. Court of Appeals for the First Circuit, applying Delaware law, disagreed with the argument. The court reasoned that even if the exact language of 145 was used, it is doubtful that the judgment of insider trading could be consistent with either the "good faith" and/or the "best interests of the company" provisions of 145. Compare generally, DGCL Section 102(b)(7) which allows a provision in a certificate of incorporation that prohibits recovery of monetary damages from directors for a shareholder claim that is exclusively based on a violation of the duty of care. It is in the nature of an affirmative defense and it is the burden of the directors to demonstrate that they are entitled to such a charter provision. It does not, however, prevent injunctive relief from being awarded. See, Malpiede, 780 A.2d at 1095; see generally, In re Walt Disney Company Derivative Litigation, 907 A.2d. 693 (Del. Ch. 2005).
This Happ case involves the less than common situation where there is a court opinion finding that a company's advancement must be paid back. Most of the case law in Delaware recently on this topic is a clarification of the company's obligation to make the advancement, where applicable. This is a good example of why a party needs advancement, as most people cannot wait until the case is over to finance almost $1 million in legal fees, and then wait for post-trial indemnification (if warranted). It is not clear whether the officer in this case has the wherewithal to make the repayment, however, which highlights the company's conundrum. The Court of Appeals reasoned that the director should have filed a declaratory judgment action if he thought the undertaking was made under duress and/or was beyond that required by Section 145. ( I will not give in to the temptation to describe the unsuccessful plaintiff in this case as hapless.)
Advancement Under Section 145(k) Required
By Francis Pileggi on July 23, 2006
Brown v. LiveOps, Inc., download file . This Chancery Court case addressed the issue of whether a former officer was entitled to advancement under Section 145(k) of the DGCL. The specific issue was whether an underlying California action against a former officer asserted claims that were against the former officer "by reason of the fact" that he was an officer, director or employee of the Delaware corporation. The court concluded that the claims arose out of his former position and that mere "relabeling of those claims did not change the substantive, operative reality of those claims." Thus, the Motion to Dismiss the advancement claim was denied.
By Francis Pileggi on January 19, 2022
Posted in Annual Review of Key Delaware Cases
The Delaware Business Court Insider again published this year's Annual Review, reprinted below with the courtesy of The Delaware Business Court Insider. (c) 2020 ALM Media Properties, LLC. All rights reserved.
This is the 17th year that Francis Pileggi has published an annual list of key corporate and commercial decisions of the Delaware Supreme Court and the Delaware Court of Chancery, often with co-authors. This list does not attempt to include all important decisions of those two courts that were rendered in 2021. Instead, this list highlights notable decisions that should be of widespread interest to those who work in the corporate and commercial litigation field or who follow the latest developments in this area of Delaware law. Prior annual reviews are available here.
This year's list focuses, with some exceptions, on the unsung heroes among the many decisions that have not already been widely discussed by the mainstream press or legal trade publications. Links are also provided below to the actual court decisions and longer summaries.
DELAWARE SUPREME COURT DECISIONS
Supreme Court Confirms Impact of Bankruptcy on LLC Membership
A recent Delaware Supreme Court ruling endorsed the reasoning of a Delaware Court of Chancery decision holding that federal bankruptcy law does not entirely preempt the Delaware LLC Act to the extent that the LLC Act provides for a member of an LLC to become an assignee only, with economic rights, upon the filing of bankruptcy by that member, in Zachman v. Realtime Cloud Services LLC, 228 A.3d 1065 (Del. April 20, 2021).
Delaware High Court Finds First State Charter Outweighs Other Factors in Dole Foods Choice-of-Law Ruling
The Delaware Supreme Court decided a consequential case in 2021 addressing choice-of-law and fraud-exclusion issues in connection with requiring D&O insurers to pay settlements with investors who claimed that the CEO of Dole Foods Company Inc. cheated them in a going-private buyout. RUSI Indemnity Co. Inc. v. Murdock, et al., No. 154, 2020 (Del. March 3, 2021). Among the reasons that this decision is noteworthy is because it established the applicability of Delaware law to the insurance policy of a company incorporated in Delaware, but which had many contacts elsewhere. Also, importantly, the court determined that insurance coverage would not be defeated simply because it covered payment for the settlement of fraud allegations. The high court added that Delaware does not have a public policy against the insurability of losses occasioned by fraud, reasoning that Delaware's statutory indemnification provisions allow corporations to purchase D&O insurance against any liability whether or not the corporation has the power to indemnify against such liability.
Delaware Rules Shareholder Franchise Right Question Tops Entire Fairness Test
In Coster v. UIP Companies, Inc., et al., No. 29, 2020 (Del. June 28, 2021), the unanimous opinion of Delaware's high court en banc required that on remand the Court of Chancery determine if a board acted for inequitable purposes or in good faith, but for the primary purpose of disenfranchisement without a "compelling justification," in connection with a stock sale intended to shift the power balance between rival deadlocked stockholder fashions, even if the sale were fairly negotiated. If the trial court found after remand that the transaction was intended for inequitable purposes without a compelling justification, the trial court could consider available remedies including cancelling the stock sale and considering the appointment of a custodian. Chief Justice Seitz wrote for the Supreme Court that the sanctity of the shareholder franchise superseded entire fairness review based on the circumstances of this case.
Supreme Court Clarifies Test for Direct v. Derivative Stockholder Claims
Although this is a decision that has already received widespread commentary, the Supreme Court decision in Brookfield Asset Management, Inc. v. Rosson [TerraForm], No. 406, 2020 (Del. Sept. 20, 2021), is a seminal decision that every corporate litigator must be aware of because it redefines and clarifies the test in Delaware to distinguish between a direct stockholder claim and a derivative stockholder claim.
Supreme Court Clarifies Pre-Suit Demand Analysis
Another Supreme Court decision that has already been the subject of extensive analysis but is still required reading for all corporate litigators is United Food and Commercial Workers' Union and Participating Food Industry Employers Tri-State Pension Fund v. Zuckerberg, No. 404, 2020 (Del. Sept. 23, 2021), because it clarifies and restates the law in Delaware for the analysis of pre-suit demand futility for purposes of pursuing a derivative stockholder claim.
Supreme Court Decides Important Contract Dispute in Sale of Business
The Supreme Court of Delaware affirmed an epic Delaware Court of Chancery decision that found a breach of an agreement of sale that permitted the buyer to avoid consummation of the purchase for failure to comply with the "ordinary course covenant" in connection with how the business was managed between the date the agreement of sale was signed and the date of closing. See AB Stable VIII LLC v. MAPS Hotels and Resorts One LLC, Del. Supr., No. 71, 2021 (Dec. 8, 2021). The Supreme Court explained that the seller was required to obtain the prior written consent of the buyer before making the changes that it made, and distinguished the separate reasoning that applied to the material adverse change clause.
DELAWARE COURT OF CHANCERY DECISIONS
Company's Privileged Communications Must Be Provided to Board Members
The Court of Chancery decided an issue of first impression in Delaware by rejecting the argument that the management of a Delaware corporation has the authority to unilaterally preclude a director of the corporation from obtaining privileged information of the corporation. See In re WeWork Litigation, No. 2020-0258-AGB (Del. Ch. Aug. 21, 2021).
Recent Chancery Decision Addresses Dissolution Based on LLC Deadlock
The Delaware Court of Chancery penned a seminal decision that explains the analysis necessary to determine when a deadlock in an LLC might be the basis for a dissolution. In Mehra v. Teller, C.A. No. 2019-0812-KSJM (Del. Ch. Jan. 29, 2021), the court addressed whether there was a failure to achieve the votes necessary for board action and whether the board deadlock was genuine or merely manufactured to force the appearance of a deadlock.
Chancery Keeps Dissolution Case Despite Mandatory NY Forum Clause
Although the general rule in Delaware is that forum selection clauses will be upheld, even if they require litigation to be conducted in states outside of Delaware, an exception to the rule was applied to keep a dissolution case in Delaware notwithstanding a contrary mandatory forum selection clause, in Seokoh, Inc. v. Lard-PT, LLC, C.A. No. 2020-0613-JRS (Del. Ch. March 30, 2021).
Self-Sacrifice Not Required of Controlling Stockholder
A useful Chancery decision that is bound to be of widespread applicability is the ruling in RCS Creditor Trust v. Schorsch, C.A. No. 2017-0178-SG (Del. Ch. March 18, 2021), in which the court explained that the fiduciary duties of a majority or a controlling stockholder do not require self-sacrifice, nor do they mean that such a fiduciary forfeits her contractual rights.
Chancery Addresses Forum Non Conveniens
Delaware law has evolved regarding the nuances of forum non conveniens, and those most recent iterations are explained in the Chancery decision styled Sweeny v. RPD Holdings Group, LLC, C.A. No. 2020-0813-SG (Del. Ch. May 27, 2021).
Chancery Recognizes Reverse Veil-Piercing
The Delaware Court of Chancery recently recognized "outside reverse veil-piercing," as compared to "insider reverse veil-piercing." The former iteration was explained based on the unusual circumstances present in Manichaean Capital, LLC v. Exela Technologies, Inc., C.A. No. 2020-0601-JRS (Del. Ch. May 25, 2021).
Chancery Clarifies Standard to Shift Fees for Improper Litigation Conduct
The Court of Chancery's pithy ruling in Pettry v. Gilead Sciences, Inc., C.A. No. 2020-0132-KSJM (Del. Ch. July 22, 2021), remains noteworthy for its guidance that provides litigators in general, and corporate litigators in particular, with a definition of "glaringly egregious," and helps to clarify where the line is drawn for determining when fees will be shifted for inappropriate litigation conduct. This decision gives greater instruction for what behavior will be sufficient to trigger the exception to the general American Rule that each party pays its own legal fees.
Can Fiduciary of a Debtor Assist a Creditor-Entity that Fiduciary Has Interest In?
The Court of Chancery addressed the titular topic in Skye Mineral Investors, LLC v. DXS Capital (U.S.) Limited, C.A. No. 2018-0059-JRS (Del. Ch. July 28, 2021).
Chancery: LLC Managers Breached Fiduciary Duties
The Chancery decision in Stone & Paper Investors, LLC v. Blanch, C.A. No. 2018-0394-PAF (Del. Ch. July 30, 2021), deserves attention for its treatment of well-established principles of fiduciary duty with widespread applicability in the LLC context, absent unambiguous waiver. Also noteworthy, is the explanation about why the circumstances of this case allowed breach of contract claims to proceed to the extent that they did not overlap the fiduciary claims–and why both were permitted to be pursued through trial.
Chancery Explains Policy Limits to Contractual Restrictions on Fraud Claims
In connection with perennial post-closing claims related to the sale of a business, the Chancery decision in Online Healthnow, Inc. v. CIP OCL Investments, LLC, C.A. No. 2020-0654-JRS (Del. Ch. Aug. 12, 2021), explains the consequential nuances about what specific language in an agreement of sale will allow, or will bar, certain types of fraud claims. The money quote from the decision provides the best insight into its holding: "Under Delaware law, a party cannot invoke provisions of a contract it knew to be an instrument of fraud as a means to avoid a claim grounded in that very same contractual fraud."
Chancery Clarifies When Forum Selection Clause Binds Non-Signatory
While it may be surprising to some, quite a few Delaware decisions have bound non-signatories to forum selection clauses. The Chancery decision in Florida Chemical Company, LLC v. Flotek Industries, Inc., C.A. No. 2021-0288-JTL (Del. Ch. Aug. 17, 2021), provides the most thorough analysis of the titular topic, with scholarly insights and copious citations that explain the theoretical and public policy underpinnings that support the decision to bind a non-signatory to a forum selection clause, and the prerequisites for doing so.
Chancery Does Deep Dive into Corporate Dissolution Details and Winding-up Process
Those interested in the not self-evident winding-up process in connection with the dissolution of a corporation under Delaware law need to read the Court of Chancery decision styled: In re Altaba, Inc., C.A. No. 2020-0413-JTL (Del. Ch. Oct. 8, 2021), which provides an extensive analysis of the statutory provisions for the dissolution of corporations and a description of the corresponding winding-up process.
Chancery Declines to Follow First-Filed Rule in Advancement Case
A recent Chancery decision explained why the first-filed rule was not applied in an advancement case under Section 145 of the Delaware General Corporation Law. See Lay v. Ram Telecom International, Inc., C.A. No. 2021-0631-SG (Del. Ch. Oct. 4, 2021).
Chancery Provides Guidelines for Non-Delaware Lawyers Issuing Formal Delaware Legal Opinion Letters
The Court of Chancery in Bandera Master Fund LP v. Boardwalk Pipeline Partners, LP, C.A. No. 2018-0372-JTL (Del. Ch. Nov. 12, 2021), provides comprehensive detail of the factual background of the issuance of a formal legal opinion letter in connection with a transaction, and provides a thorough analysis of problems with that letter in a 194-page decision which also offers guidance to lawyers around the country who are involved in issuing a formal opinion letter based on Delaware law. The court found that the formal opinion letter given in the transaction at issue was not rendered in good faith, and explained what lawyers need to do in order to make sure the formal opinion letters that they grant do not suffer the same fate.
Chancery Clarifies Officer Consent Statute
Several years ago the Delaware Supreme Court expanded the prior interpretation of Delaware's consent statute that imposes personal jurisdiction on directors and officers who agree to service in that capacity for Delaware corporations. The contours of that expansion continue to be clarified and defined for those situations where there has been no breach of fiduciary duty. See BAM International, LLC v. MSBA Group, Inc., C.A. No. 2021-0181-SG (Del. Ch. Dec. 14, 2021).
SUPPLEMENT: Professor Stephen Bainbridge, one of Delaware's favorite corporate law scholars, and one of the most prominent corporate law expert's in the country, was kind enough to link to this article and described it as "essential reading".
*Francis G.X. Pileggi is the managing partner of the Delaware office of Lewis Brisbois Bisgaard & Smith LLP, and the primary author of the Delaware Corporate and Commercial Litigation Blog at www.delawarelitigation.com.
**Ciro C. Poppiti, III practices in the Delaware office of Lewis Brisbois Bisgaard & Smith LLP.
***Cheneise V. Wright is a corporate and commercial litigation associate in the Delaware office of Lewis Brisbois Bisgaard & Smith LLP.
Vice Chancellor rejects reasons to keep D&O coverage suit for $41M judgment in Chancery
By Francis Pileggi on November 14, 2021
This post was prepared by Frank Reynolds, who has been following Delaware corporate law, and writing about it for various legal publications, for over 30 years.
The Delaware Court of Chancery recently decided Zhongpin Inc. shareholders' battle to force the food processor's director and officer insurer to pay the $41.3 million Chancery Court judgment they won by challenging an unfairly-priced buyout must be fought in the Delaware Superior Court. Rodriguez et al. v. Great American Insurance Co., No. 2020-0387-JRS letter opinion issued (Del. Ch. Oct. 20, 2021).
Vice Chancellor Joseph Slights' Oct. 20 decision dismissed the plaintiff shareholders' insurance action from the Chancery Court, but not because they lacked standing or that there was no coverage for the default judgment he had awarded them in an underlying breach-of-duty action, as defendant Great American Insurance Company contended. He said he never reached those issues because Delaware law required him to first make a sua sponte ruling as to whether the insurance action was essentially a damages recovery suit that did not belong in a court of equity such as Chancery–but rather belonged in Delaware's trial court of general jurisdiction: the Superior Court. Notably, Vice Chancellor Slights previously served as a judge on the Superior Court in its Complex Commercial Litigation Division.
Corporate and insurance law specialists will find the letter opinion of interest since it appears to shut the Chancery Court door on additional exceptions to the long-standing rule that has kept D&O disputes in the state's Superior Court.
Rejected Arguments
After supplementary briefing, Vice Chancellor Slights rejected arguments from both parties that he could retain subject matter jurisdiction based on:
(a) Statutory authority and 8 Del. C. § 145(g) empowering corporations to procure insurance and Section 145(k)'s grant of plenary authority with respect to indemnification. The vice chancellor said a similar statutory argument was squarely addressed and rejected in Massachusetts Mutual Life Insurance Co. v. Certain Underwriters at Lloyd's of London, 2010 WL 2929552, at (Del. Ch. July 23, 2010), where the plaintiffs sought to compel coverage and the payment of a claim under a D&O policy directly against the insurer. That court found "This is precisely the type of dispute that fits squarely within the jurisdiction of our Superior Court."
(b) The clean-up doctrine — invoked where the court that exercised jurisdiction over an underlying action is empowered to adjudicate a dispute arising from the plaintiff shareholders attempt to enforce their underlying judgment. The vice chancellor said in order to exercise that power, he would have to be able to answer "yes" to questions as to whether jurisdiction over the claims would:
1) resolve a factual issue which must be determined in the proceedings;
2) avoid a multiplicity of suits;
3) promote judicial efficiency;
4) do full justice;
5) avoid great expense;
6) afford complete relief in one action; or
7) overcome insufficient modes of procedure at law.
The litigation sprang from a 2012 squeeze-out of Zhongpin investors by Xianfu Zhu, the company's de facto controlling stockholder. Zhu caused Zhongpin to enter a transaction with two of his wholly owned entities whereby the minority stockholders of Zhongpin were cashed out for inadequate consideration. That transaction prompted breach-of-duty claims against the Class Action Defendants that resulted in Slight's default judgment after Zhu and his directors and offices stopped paying their defense firm, failed to hire a replacement and stopped defending the action, the court said.
The insurance action
Following the default judgment, the plaintiff shareholders tried to collect from the D&O insurer on behalf of the company because it came in a derivative action and because Zhu, the directors and officers and company and its assets were in China and allegedly could not be located, let alone reached.
Plaintiffs argued that the GAIC policy covered losses incurred during the time frame of the wrongdoing alleged in the underlying action and that the losses are not excluded, but the insurer countered that the plaintiffs had no standing to seek coverage under the D&O Policy, the claims arose outside the coverage period, and the claims are governed by several exceptions or failures of conditions in the policy. GAIC refers to the D&O Policy's No Action Clause, which says:
"No action shall be taken against the Insurer unless, as a condition precedent thereto, there shall have been full compliance with all the terms of this Policy" and
"The Insureds shall not incur Costs of Defense, or admit liability, offer to settle, or agree to any settlement in connection with any Claim without the express prior written consent of the Insurer".
A court of limited jurisdiction
The vice chancellor noted that the Court of Chancery is a court of "limited jurisdiction;" and maintains subject matter jurisdiction only when:
(1) the complaint states a claim for relief that is equitable in character,
(2) the complaint requests an equitable remedy when there is no adequate remedy at law or
(3) Chancery is vested with jurisdiction by statute.
He concluded that none of those conditions are present here because, "At heart, the [Plaintiffs] assert that [GAIC] . . . [has] not fulfilled [its] obligations under [its] [] policies. This is fundamentally a breach of contract action for money damages, which is the traditional province of the Superior Court." Transfer to Superior Court will not involve delay while another judge is forced to become familiar with a complex case, he said, because the insurance action is separate and new and plays to the experience and strength of the Superior Court.
Finally, the vice chancellor volunteered to finish the case if needed as a temporary Superior Court judge—using his pre-Chancery experience in that court.
The Oct. 20 opinion only decided what court would try to resolve a number of novel and interesting issues in a unique insurance case – complicated by the fact that Zhongpin had merged into a Delaware shell corporation but had few corporate ties to the U.S. In addition to the standing, coverage and other questions to be answered:
Even if the plaintiffs could access the insurance proceeds, how would the court resolve the GAIC policy requirements that Zhongpin defend the underlying shareholder suit and get permission to settle it — considering that the company's owners, officers and directors had apparently abandoned the litigation?
If the plaintiffs won a coverage decision for the underlying derivative suit, would they contest a decision to send the funds to Zhongpin management somewhere in China on behalf of the shareholders?
Chancery Clarifies Standard for Proportional Indemnification of Corporate Directors and Officers
By Francis Pileggi on November 1, 2021
The recent Delaware Court of Chancery opinion in Evans v. Avande, Inc., C.A. No. 2018-0454-LWW (Del. Ch. Sept. 23, 2021), provided much needed clarification for the rather unsettled nuance of indemnification under Section 145 of the Delaware General Corporation Law regarding when indemnification can be proportionate to the extent that the party seeking indemnification was not 100% successful in the underlying litigation.
Brief Background:
This case involved a request for mandatory indemnification under DGCL Section 145 based on what the court described as a "novel theory of proportional indemnification." The plaintiff argued that he should be indemnified for his "partial success" on fiduciary duty claims against him because the damages awarded to his former company were much less than the company originally sought.
Basic Principles:
The court provided a very helpful primer on the basics of indemnification under DGCL Section 145. In particular, the court explained that Section 145 grants corporations the discretion under subsections (a) and (b) to indemnify officers or directors where a minimum standard of conduct is met. The permissive language of Section 145(a) and Section 145(b) provides that indemnification may be available to an officer or a director if she is found to have acted in good faith.
By contrast, Section 145(c) contains mandatory language providing for an entitlement to indemnification. Under Section 145(c), whether an individual acted in good faith, or what she perceived to be in the best interest of the corporation, is irrelevant. The court explained that: "Section 145(c) is triggered when a covered person prevails in a proceeding that is covered by Section 145(a) or 145(b)."
The court further clarified that indemnification is compulsory where: "a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding" (citing Section 145(c), and where that person was made a party to such action "by reason of the fact that the person is or was a director or officer . . . of the corporation." (citing Section 145(a) – (b)).
The court emphasized that to satisfy the statutory prerequisite for mandatory indemnification "success" does not mean exoneration, and a corporate official "need not have been adjudged innocent in some ethical or moral sense." See footnotes 39 and 40 and related text.
Highlights of Decision:
The most noteworthy aspects of this decision are the parts where the court addresses the standard for "proportionate indemnification" based on "partial success."
The court observed that it was not aware of any authority where "partial success" was analyzed based on the percentages of damages the prevailing party recovered against an indemnitee. The court held that such an approach was "unworkable" in addition to being unprecedented; that is: to define partial success for indemnification purposes based on the proportion of damages recovered on a single claim. Such an approach would be untethered from the policy at the root of Section 145 because the overarching purpose of Section 145 is to encourage capable persons to serve as corporate directors knowing that expenses incurred by them will be borne by the corporation they serve. The court added that a director adjudged to have acted in bad faith in breach of his duty of loyalty can hardly assert that he is entitled to indemnification for a claim where the director's integrity that the policy is intended to uphold while serving as a director, was found lacking.
Moreover, the court cited to other cases for the prevailing view that Delaware courts have made a determination on whether a person was successful for purposes of being entitled to indemnification "on a claim by claim basis," as opposed to determining the percentage of damages that was awarded compared to the amount of damages that was initially sought. See footnotes 48 – 52 and accompanying text.
By Francis Pileggi on October 24, 2021
Posted in Chancery Court Updates, Selected Articles by Francis
The current issue of the Delaware Business Court Insider includes an article on the titular topic by yours truly and my colleague Cheneise Wright. Courtesy of the good folks at the Delaware Business Court Insider, and with their permission, it appears below.
By: Francis G.X. Pileggi*
Cheneise V. Wright**
A recent Delaware Court of Chancery opinion applied an exception to the general rule that Delaware courts will often exercise their discretion to dismiss or stay a Delaware action in favor of a first-filed action between the parties that is pending in another jurisdiction. In Lay v. Ram Telecom International, Inc., C.A. No. 2021-0631-SG (Del. Ch. Oct. 4, 2021), the court analyzed the nuances of the first-filed rule regarding an advancement case under Section 145 of the Delaware General Corporation Law.
The first-filed rule, often referred to as the McWane doctrine, based on the Delaware Supreme Court decision in McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng'g Co., 263 A.2d 281, 283 (Del. 1970), provides that a Delaware court's "discretion should be exercised freely in favor of the stay when there is a prior action pending elsewhere, in a court capable of doing prompt and complete justice, involving the same parties and the same issues."
The background of the Lay case involves a demand letter sent in early June of 2021 seeking indemnification and advancement of fees and expenses incurred in defending an action the defendant had filed against the plaintiffs in the Superior Court of California. Instead of responding, five days after that letter was sent, the defendant amended their complaint in California to add a claim for declaratory relief, asking the California court to make a ruling on the indemnification and advancement issues. About a month later, the plaintiffs filed the Delaware suit seeking advancement for fees and costs incurred in the California Action.
In early August, the defendant filed a motion seeking a stay or dismissal of the Delaware advancement case in light of the California Action. Briefing was completed on the motion to stay or dismiss by Sept. 27, 2021. The court distinguished prior Delaware decisions that stayed advancement actions in favor of a first-filed action in which the same indemnitee had already asserted advancement rights. See Johnston v. Caremark RX, Inc., 2000 WL 354381, at * 2-5 (Del. Ch. Mar. 28, 2000). In contrast, the court cited to its decision in Fuisz v. Biovail Technologies, Ltd., 2000 WL 1277369, at * 4 (Del. Ch. Sept. 6, 2000), in which the court denied a stay of an advancement action where the prior action was not filed by the indemnitee.
The Court of Chancery also applied the reasoning in the Fuisz case in which the plaintiffs sought advancement under Section 145(k) for a Virginia action in which they had already asserted their advancement rights as an affirmative defense, but notably did nothing to obtain any relief from the Virginia court on the basis of that defense. The court explained in Fuisz that "unless the person having such an entitlement first actively invokes the jurisdiction of a foreign tribunal and seeks an adjudication of that issue from it . . . this court will not regard the foreign action as 'first-filed' for purposes of McWane's comity-based analysis." Id. at * 1.
The court in the instant case supported its decision not to apply McWane by noting that the plaintiffs in this case did not select California as the forum and they made no effort to obtain an adjudication from the California court of any of the issues presented in this action. Rather, "it was the defendant in this action who sought a declaratory judgment in the California action concerning the plaintiff's advancement and indemnification rights."
The court emphasized the importance to its holding of the fact that the defendant amended the California Action to add a declaratory relief claim after the plaintiffs sent a demand for advancement and indemnification. The court underscored that it would be inequitable to allow any plaintiff that receives an advancement demand from a defendant to circumvent the right to a summary advancement proceeding in Delaware under Section 145(k) by simply amending its complaint in the other forum to add a declaratory relief claim on the advancement issue upon receiving a demand. Instead, the court ruled: "that is not our law."
The court explained that the first-filed rule under the McWane doctrine does not apply because in this instance the California Action should not be considered a first-filed action.
The court also distinguished a very recent Chancery decision which stayed an advancement action in favor of a federal action even though the plaintiff in the federal action had not claimed advancement. See Harmon 1999 Descendants' Trust v. CGH Investment Management, LLC, 2021 WL 4270220 at * 3 & n.12 (Del. Ch. Sept. 21, 2021). The court explained why the Harmon case was inapplicable. In Harmon, the court reasoned that the federal action was "in its penultimate phase" and an issue before the federal court was whether the person seeking advancement was a limited partner. That issue was a "material, factually rife, and disputed issue" in the advancement action. Therefore, the Court of Chancery held in that case that because the federal court was likely to resolve the factual issue before the Court of Chancery could, efficiencies would be gained by staying the Delaware suit in favor of the federal action.
In contrast, the pending motion to stay or dismiss did not identify any "material, factually rife and disputed issue" that had to be decided in the California Action before the question of advancement could be resolved in the Court of Chancery, nor does the motion to dismiss in Delaware argue that the California Action is in its "penultimate phase."
In sum, the Court of Chancery held that the motion to stay or dismiss did "not present exceptional circumstances warranting a departure from the rule that claims under Section 145(k) for advancement of expenses should not be stayed or dismissed in favor of the prior pending foreign litigation that gave rise to them." Thus, the Court of Chancery declined to stay the Delaware Action in favor of the California Action.
In a concluding footnote the court regaled readers with the entertaining linguistic observation that in addition to not being in its penultimate phase, the California Action did not appear to be in an antepenultimate or even a pre-antepenultimate phase.
**Chenesie V. Wright is a corporate and commercial litigation associate in the Delaware office of Lewis Brisbois Bisgaard & Smith LLP
Delaware Court Addresses Claw-Back of Corporate Advancement and Indemnification
A recent Delaware decision addressed the request for a claw-back of legal expenses that a company was ordered to advance to an LLC manager in a prior Court of Chancery decision. In the case styled: New Wood Resources, LLC v. Baldwin, C.A. No. N20C-10-231-AML-CCLD, Order (Del. Super. Aug. 23, 2021), the Complex Commercial Litigation Division of the Delaware Superior Court determined that pursuant to the terms of an LLC Agreement (for which the Delaware LLC Act allows much greater latitude than Section 145 of the Delaware General Corporation Law on this issue), the court determined that some of the amounts advanced were required to be returned.
Most noteworthy, however, about this decision, is that the court determined that the undertaking to repay the amounts advanced did not apply to the "fees on fees" that the Court of Chancery had also required that the company pay in the prior advancement action. The court explained that the undertaking only applied to "funds advanced," but that undertaking did not apply to the repayment of "fees on fees" because the court reasoned that "such sums constitute indemnification, rather than advancement." Order at 12. [Readers should be aware that in Delaware, court decisions issued by Order may also be cited in briefs, even if the decision is not a formal opinion.] See footnote 43 (judge explains that even though the parties did not raise the distinction between advancement and indemnification in connection with the claw-back arguments, the court determined that: it was "compelled by principles of comity to raise the issue sua sponte about the "fees on fees" that the Court of Chancery ordered the company to pay which should be considered differently from the advancement ordered by the court and governed by the undertaking.")


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'Homeland': Thrilling TV that makes you think
Thank you, Homeland.
Because of this spectacular series on Showtime, I don't feel quite so foolish about that weak moment when the Xfinity guy on the phone talked me into buying a bunch of premium channels.
Homeland, which just ended its first season, is about the "war on terror." But it delves into that world of shadows and hunches with a flair for nuance never dreamed of in 24 or any movie I've seen on the topic.
The series' first season was a finely wrought puzzle that kept you guessing and reconsidering your assumptions right up to the stunning final episode.
Homeland presents a complicated dance of suspicion, obsession and attraction between two main characters: a CIA agent who is definitely wound a little too tight, played by Claire Danes, and a U.S. Marine recently released from years of captivity in Iraq.
Danes' character suspects the Marine of being a terrorist plant who'd been turned by al-Qaeda during his time as a hostage. Damian Lewis plays the Marine with a barely restrained intensity that keeps you flip-flopping: Is he really a mole, or just a damaged soul struggling with re-entry to normal life?
Don't even bother holding a vote for the acting Emmys. Just pack the statues up now and deliver them now to Danes and Lewis. (The amazing beard sprouting on Mandy Patinkin's chin, as he plays Danes' exasperated CIA section chief, deserves some special prize of its own.)
Knowing Homeland had been green-lighted for a second season, my wife and I settled in for the Season 1 finale. With 30 minutes, we saw no way the scriptwriters could wrap things up to our satisfaction while still setting up a Season 2.
We were wrong. They pulled it off, with a plot twist of devilish subtlety.
Ten years after 9/11, I find that our country has not done very well at sorting through the twisted tangle of emotions, and the rubble of old assumptions, that awful day produced. We've settled for bromides, spasms of revenge, and "worry-bead" policies that soothe anxiety while achieving little.
Homeland never settles for the cheap answer. It forces us to stare into the shadows and fog, and admit we can't really decipher all that's going on, can't always confidently parse good and evil. Homeland did more to make me ponder the dilemmas of 9/11 than any political speech I've heard in the last 10 years.
That's what art can do that mere rhetoric can't. And Homeland is art. It is TV at its best, a sweeping narrative as seductive and politically fraught as a Dickens novel.
My advice for the new year: Find your way to Homeland.
The opening salvo would herald a 10-day blitz of executive actions as Biden seeks to act swiftly to redirect the country without waiting for Congress.
An AP review of records finds that veterans of President Donald Trump's failed campaign were key players in the Washington rally that spawned a deadly assault on the Capitol.
Some capitals are closed, fences are up and extra police are in place at statehouses across the U.S. as authorities brace for potentially violent demonstrations.

redpajama_set_name: RedPajamaCommonCrawl


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The Alien Encounter Of Police Chief Greenhaw: Managed To Photograph The Alien Being
Although reports and evidence of UFO sightings are counted in the thousands around the world, when we talk about their crew, there are very few photographs that can answer for having immortalized them. The following case is one of those rare exceptions and, to make matters even more intriguing, the images were captured by none other than the chief of police who was sent to investigate.
It was a quiet fall afternoon on October 17, 1973, when Jeff Greenhaw, then the Falkville, Alabama Police Chief, was enjoying a well-deserved night's rest with his wife. However, an emergency call changed his life forever.
At around 10 p.m., an anonymous and almost hysterical woman used the phone to report that an unidentified flying object had landed on the outskirts of town, in a field owned by Bobby Summerford.
Although off duty, Greenhaw – fulfilling his sworn duty to serve and protect – leaped to his feet, grabbed his keys, handcuffs, revolver, and, almost as an afterthought, his trusty Polaroid camera in case there was anything worth the trouble. worth registering. He then got into his truck, radioed the call, and sped to the alleged landing site.
When Greenhaw arrived on the scene, he got out of his vehicle and scanned the area, but claimed to find nothing out of the ordinary. Then the chief returned to his patrol and decided to take a walk around the field before heading home.
Greenhaw paced the perimeter of the Summerford property, scanning the darkness for anything unusual, but saw nothing of merit. Then he turned onto a narrow gravel road for one last pass… That's when he came face to face with the unthinkable.
After traveling down the road for a few minutes, the policeman saw an entity that he described as a humanoid figure standing right in the middle, about twenty-five meters away. He then got out of his truck and carefully approached what he still assumed to be a human being, thinking it might be someone who needed help.
He yelled at the strange figure, but it did not respond. When he got within 15 feet of the being that was illuminated by the high beams of his patrol car, the chief realized that something was seriously wrong. The entity appeared to be wearing some sort of silver metallic suit that resembled thick aluminum foil.
Some reports also indicate that his height was somewhat similar to that of a child or an ape, like a monkey in a spacesuit. Greenhaw described what he saw:
«It seemed that his head and neck were one thing … It was really bright, something like rubbing mercury on nickel, but as smooth as glass, different angles gave different lighting … When I saw him standing in the middle of the road I immediately stopped the car and asked him if he was a foreigner, but no sound came out of his mouth.
The public servant also noticed that the thing had an antenna protruding from the top of its head and that its movements were jerky and mechanical. Thus, he quickly realized that he was dealing with something unknown, and, putting aside his panic with years of police training, he had the courage to take his Polaroid instant camera and shoot four photographs of this being.
Photos were taken by Greenhaw (with enhanced contrast for better viewing).
The first image shows nothing more than a few glimpses in the dead of night, but the next three images take the jackpot. In the photos you can clearly see a humanoid figure in a metallic suit, reflecting the flash of the Polaroid's bulb.
Perhaps believing that it was being attacked by a human with some kind of flashing weapon, the creature almost instantly turned around and began fleeing down the road at speeds far beyond those capable of humans. Greenhaw noted that it appeared to be heading in the direction of Lacon, which is about three miles from Falkville. The chief reacted quickly, ran back to his vehicle, and chased after the metal man.
Greenhaw says that he managed to accelerate his truck only to about 35 MPH due to the rugged rural terrain, but that he was still completely outmatched by this unusual entity, which seemed to be capable of defying the laws of gravity with its speed and spring-like jumps.
The creature walked in the middle of the gravel road and did not deviate, as a human would when it was struck by a sudden and blinding ray of light from the patrol, instead, it kept walking in the middle of the road.
When he was 50 feet and 20 feet from the patrol, two strong flashlights blinded him again and caused no change in his gait.
Photo: Jeffrey Greenhaw shows on-site his position in relation to the creature when the third and fourth snapshots were photographed.
According to the witness, that thing "ran in a very strange way, from side to side, with its arms at its sides in a strange way … it seemed to have springs in the feet for propulsion, it could cover about 10 feet in all directions … He ran faster than any human I've ever seen.
During this frantic chase, Greenhaw claims that after half a mile he lost control of his vehicle and slid into a ditch. At that moment, he saw how the creature slipped into the darkness, never to be seen again. Leaving the man with only his haunting memories of the event and a strange Polaroid photo shoot.
"After a half-mile chase, the creature disappeared here on the road," Chief Greenhaw said.
The Strange Aliens Seen By Greenhaw
Different Theories As To What Actually Did Police Chief Greenhaw Saw
At 11:30 that same night, Greenhaw contacted the local newspaper to share his experience. But the publication of the story accompanied by the rare photos did little more than generate derision and ridicule, something that was almost a rule in the last century for anyone who dared to speak of "these things" in public. So it must be considered that the witness was totally convinced that what he had seen was something real, so much so that he could risk telling it.
But the one who risks does not always win. A few days after revealing their bizarre encounter, the police chief began receiving threats via letter and telephone, his car's engine exploded, his house was consumed by fire, and – just when it seemed that things could not get worse – the city council forced him to resign his post as chief of police.
Police Chief Greenhaw's mobile home caught fire suspiciously on November 9, 1973.
All of the above factors have thrown kerosene on the already brilliantly burning flames of UFO conspiracy theories surrounding this event and, more specifically, give a clear indication of why most contactees and eyewitnesses remain silent regarding their unusual experiences.
In addition to ridicule, the "men in black" can get into action …
Some ufologists believe that the metal man was a robotic explorer for an alien landing craft – in analogy, such as a lander and a rover on Mars – while skeptics contend that it was all a hoax perpetrated by Greenhaw and an unknown accomplice. that he was dressed in a tinfoil costume — and let's face it, that's the first thing you think of when looking at the photos; although we know that first impressions can be just as misleading.
Original photos (1 and 2) of the mysterious being, which did not emit any recognizable sound.
However, the unfortunate events that followed, which clearly prove that the chief of police did not profit at any time from their close encounter — quite the contrary — would exempt him from all guilt and pantomime. In fact, while he managed to rebuild something resembling a normal life, all reports indicate that he continued to regret his bump into the unknown.
On the other hand, a popular rumor – albeit anonymous and circumstantial (hence no endorsement) – suggests that the "tin alien" was actually a speedy high school boy, dressed as the robot from The Day the Earth Stood Still ( 1951) and that the hoax was perpetrated by certain locals who wanted Greenhaw to step down as chief of police.
The alien robot that appears in the movie The Day the Earth Stood Still.
But at this point, it should be noted that, unless the perception of the witness is questioned, the movements and speeds attributed to the being do not correspond to those of a human – not even Usain Bolt! – and even less to those of a child or adolescent of the time in the middle of a rural night. It should also be mentioned that, as a policeman, Greenhaw could well have drawn his service weapon and shot, putting the perpetrator of the prank at risk of death, who also, had he been such, would not have chosen to run for half a mile instead of searching. a hideout in the grasslands away from the lights of the patrol.
Others have drawn attention to the fact that the "robotic" description (no neck, "wrinkled" skin, with antenna) is not very different from that observed by Charles Hickson and Calvin Parker, protagonists of the Pascagoula abduction case, which happened in Mississippi just days before.
This is an illustration of what Calvin Parker and Charles Hickson described seeing the night of the alleged alien abduction.
Credit: WLOX.
Is it possible that Greenhaw encountered the same extraterrestrial entities that allegedly abducted the two dockworkers on the night of Thursday, October 11, 1973? Or was it a case manufactured precisely to discredit Pascagoula's?
The truth is that there are several close encounters where what is reported by witnesses is more consistent with a robotic entity than with a biological being. And it is that, if we think with aerospace logic, in the exploration of other worlds the sending of probes and robots must be something common among technological civilizations.
Detailed Report of Jeff Greenhaw's Falkville Incident Alien Encounter Testimonial – Metaphysical Articles.
Alabama Police Chief's Photo of Alleged Alien Published Around the Globe (1973) – Out There with Ted.
Ramblins' from the Hills & Hollers: Tin Foil Alien photos and story had staying power – Chester County. Independent.
Metal Man of Falkville – New Cryptozoology Wiki.
The Metal Man of Falkville – The Z Files.
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NELP
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Making strides for animal welfare
BLOODYBACK
Zombies in the colonies
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ASPCA – HUMANE AWARDS
A series of films for ASPCA honoring the people and animals who make important strides for animal welfare.
We helped this foundation communicate their mission: to improve the quality of life and self-esteem of people undergoing cancer treatment.
We partnered with ACUMEN to showcase their investment in entrepreneurial projects that bring sustainable solutions to big problems of poverty. This is the story of EVERYTABLE.
NOTES IN MOTION
A fundraising animation film for Notes in Motion Outreach Dance Theater, an organization offering in-school and community arts-in-education programs.
ORCS OF NEW YORK
You thought the dating scene in NYC was tough. But you're not an orc.
Our new comedy series directed by Harry Aspinwall and Zachary Ludescher.
A zombie period piece?
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MAJOR LEAGUE BOCCE
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PEGASUS WARNING
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THE TO DO LIST PROMO
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OLYMPUS HAS FALLEN PROMO
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THIS IS 40 PROMO
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RN Khabri
Home SPORTS Sydney provides stage for dress rehearsal ahead of India-Australia D/N Test
Sydney provides stage for dress rehearsal ahead of India-Australia D/N Test
The three-day tour game in Sydney, starting on Friday, is a dress rehearsal for the first Test to be played in Adelaide from December 17. The day-night game in Sydney will allow the players to get a feel of conditions during India's first-ever overseas day-night Test.
India are a pink-ball cricket apprentice, with only one such Test under their belt, against Bangladesh at Eden Gardens in November 2019. Australia, on the other hand, are a day-night cricket thoroughbred, having played their first pink Test way back in 2015. This makes the tour game massively important for India.
For the past three-odd months, white-ball cricket had been the flavour of the season. Some cricketers in the Test team are undercooked in terms of playing the long-form. Jasprit Bumrah is a case in point. Also Mohammed Shami. The fast bowlers haven't played the multi-day format for over nine months now and the tour game provides them with an opportunity to get into the red ball – pink ball in this case – groove. The likes of Ajinkya Rahane, Cheteshwar Pujara, Umesh Yadav, R Ashwin and Wriddhiman Saha, however, had a good outing in the first tour game against Australia A last week. For the match starting Friday, it is very likely that India will be at full strength with an eye on the Adelaide Test, although Virat Kohli's participation remains uncertain.
The India captain has been playing non-stop since September and after the final T20I against Australia, spoke about the importance of being fresh for the first Test. He confirmed that he would talk to the team physio and trainer about playing the tour game. Kohli will return home after the first Test, and this is a series where making a strong start could be very important.
Smith's concussion advice
A question mark remains over young Australian batsman Will Pucovski's participation in the first Test and he is all but certain to miss the tour game against India despite being part of the Australia A squad. The prospective opener suffered 'mild concussion from a blow to the head' while batting in the tour game against the Indians last week. Smith himself had suffered concussions on his previous two tours to England. The former Australia captain spoke from personal experience.
"I think every concussion's different, everybody's different," Smith told reporters during a virtual press conference on Thursday. Pucovski had suffered concussion in the past as well. "Will's had a couple in the past so he's experienced it, and it's just about going through all the protocols and getting yourself into a position where you're comfortable," Smith was quoted as saying by Cricket Australia's (CA) website.
He added: "Firstly, to go into the nets and face some light stuff, and then some bowlers, and then get yourself right to play out in the middle."
The 22-year-old Pucovski is working with the doctors and according to Australia A captain Alex Carey, is in "great spirits".
Opening conundrum
With David Warner ruled out of the first Test due to a groin injury and Pucovski uncertain, Australia are facing an opening conundrum. Former Australia captain Michael Clarke has suggested that Matthew Wade be made a makeshift opener for the first Test. "He's (Wade) got to be in that starting XI but that could be anywhere in that team. That could be opening the batting, if need be. I think Wadey can do that," Clarke told AAP.
Meanwhile, Smith told reporters on Thursday that he was ready to bat higher up the order.
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The two-year-old girl has been found alive and well and her teenage abductors arrested. But what motivated the teenagers to take her? Investigations at the teenagers' home reveal unusual and worrying things, particularly when their internet search history is examined.
The police are desperately searching the city centre for the two-year-old child and her kidnappers. Six miles away an officer from another team is looking for two teenage truants. He hears the description of the suspects on his radio and makes the connection. They now have names for the suspects and information about them that offers clues as to where they might be found.
CCTV footage shows a worrying turn of events. Police are now active across the city but the clock is ticking. In any major criminal investigation officers think the first hour is critical. The police are now 50 minutes behind the girls and they believe the toddler is in real danger.
The police arrive at the store and begin to look through CCTV footage. They see images of the child leaving the store with two teenage girls. Immediately they remember the case of James Bulger, a toddler led away to his death by two young boys in 1993. The search for a lost child has become a critical incident and investigations are stepped up.
Child abduction is very rare - and when other children are responsible it can be particularly hard to comprehend. So when police in Newcastle upon Tyne were told that a missing toddler was last seen talking to two teenage girls, one notorious case from the 1990s immediately came to mind. As the kidnappers crossed the city, police used hundreds of CCTV cameras in a desperate hunt for the missing girl. Andrew Bomford tells the inside story of what happened.


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Administration awards $5.5M to improve food security
Home → News → Municipal Services
A food bank volunteer packs a box of food.
Building on efforts to ensure a resilient, secure food supply chain in the Commonwealth, the Baker-Polito administration on Sept. 30 announced more than $5.5 million in grants to address urgent food insecurity for Massachusetts residents resulting from the COVID-19 pandemic.
The funding is being awarded as part of the third round of the new $36 million Food Security Infrastructure Grant Program, created following recommendations from the administration's COVID-19 Command Center's Food Security Task Force, which promotes ongoing efforts to ensure that individuals and families throughout the Commonwealth have access to healthy, local food.
Gov. Charlie Baker said the program "is making critical investments that strengthen our local food system and ensuring its resilience to future challenges."
The goal of the Food Security Infrastructure Grant Program is to ensure that individuals and families throughout the Commonwealth have equitable access to food, especially local food. The program also seeks to ensure that farmers, fishermen and other local food producers are better connected to a strong, resilient food system to help mitigate future food supply and distribution disruption.
The third round of the grant program includes 33 awards totaling $5,551,387 to fund investments in technology, equipment, increased capacity, and other assistance to help producers distribute food, especially to food insecure communities. When evaluating applications, considerations included equity, economic impact and need, sustainability and scalability of efforts, and ability to support producer readiness to accept SNAP and HIP benefits.
In the program's first two rounds, the administration awarded a total of $6.27 million to 60 recipients.
Eligible grantees include entities that are part of the Massachusetts local food system, including production, processing and distribution, the emergency food distribution network, Buy Local, community and food organizations, school meal programming, urban farms and community gardens, nonprofits, and organizations that provide business planning, technical assistance and information technology services.
The Request for Responses for project proposals closed on Sept. 15. Applications submitted before the proposal deadline will continue to be evaluated for future rounds of funding.
The Food Security Task Force is focused on ensuring that food insecurity and food supply needs are addressed during the COVID-19 public health emergency and into the long-term, including setting up more than 1,500 grab-and-go meal sites at schools across the state, investing $5 million in the Healthy Incentives Program to bring on new retailers, launching the SNAP Online Purchasing Program to allow SNAP recipients to use their benefits to buy groceries online from Walmart and Amazon, issuing emergency SNAP benefits to more than 240,000 households to bring all SNAP recipients to their maximum benefit amount, bringing more than $210 million of federal dollars into the state, and leveraging federal flexibilities for SNAP and WIC to make it easier for households to get benefits. WIC flexibilities will continue through the end of the calendar year.
The administration also announced approval for September Pandemic EBT, or P-EBT, benefits, to help cover the cost of missed school meals from the month of September due to delayed school opening or remote learning for more than 470,000 students and their families. Benefits started being available on Sept. 30 for an estimated total amount of more than $40 million in federal dollars. P-EBT benefits supplement the free meals.
Additionally, the majority of Massachusetts Supplemental Nutrition Assistance Program participants saw an increase in their benefits starting Oct. 1, due to the annual cost-of-living adjustment.
The Food Insecurity Infrastructure Grant Program was announced in May as part of a $56 million investment by the Baker-Polito administration to combat urgent food insecurity for some Massachusetts families and individuals as a result of COVID-19. The administration also announced a $5 million increase for the Healthy Incentives Program, $12 million for the provision of 25,000 family food boxes per week through a regional food supply system, and $3 million in funding as an immediate relief valve to food banks.
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The Pollcast: How electoral reform fell apart
Politics·PODCAST
In a matter of weeks, the Liberals went from pledging that the 2019 election would not be held under the first-past-the-post system, to abandoning electoral reform entirely. What happened? Host Éric Grenier is joined by Aaron Wherry and the Ottawa Citizen's Kady O'Malley.
Host Éric Grenier is joined by the CBC's Aaron Wherry and the Ottawa Citizen's Kady O'Malley
CBC News · Posted: Feb 09, 2017 4:27 PM ET | Last Updated: February 9, 2017
Shortly after taking over the file, Democratic Institutions Minister Karina Gould announced the Liberals' decision to abandon electoral reform. (Sean Kilpatrick/Canadian Press)
The CBC Pollcast, hosted by CBC poll analyst Éric Grenier, explores the world of electoral politics, political polls and the trends they reveal.
During the last campaign and in the months that followed, the Liberals pledged that the 2015 election would be the last fought under the first-past-the-post electoral system.
That promise no longer stands. So what happened?
On reform, from 'we can do better' to charges of betrayal
Podcasts: Subscribe to the CBC Pollcast
After more than a year of speculation, debate, committee hearings, town halls and an online survey that was roundly panned by critics, the Liberals decided to abandon their promise to change the way Canadians vote.
What was behind the decision to renege on that campaign promise? Did electoral reform ever stand a chance of succeeding?
To break it down one last time, Pollcast host Éric Grenier is joined by the CBC's Aaron Wherry and the Ottawa Citizen's Kady O'Malley.
Listen to the full discussion above — or subscribe to the CBC Pollcast and listen to past episodes.
Follow Éric Grenier, Aaron Wherry and Kady O'Malley on Twitter.
The Pollcast: Does leadership race polling mean anything?
Naming and shaming hecklers in the House of Commons
The Pollcast: Kevin O'Leary, French debate shake up Conservative leadership race
Eric Grenier's Pollcast


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Real-Life Passion Plays
by Debra Dean Murphy | Apr 18, 2011 | Feature | 2 comments
Holy Week, politics, and the stories we live by.
Unity by Natural Disaster
by Debra Dean Murphy | Mar 16, 2011 | Headline News |
It's not just a global economy that makes us "one world." The earthquake and tsunami that struck Japan remind us that humankind exists in one fragile and complex bond with the earth and each other.
by Debra Dean Murphy | Mar 1, 2011 | Feature, Headline News |
As Americans were complaining about all the snow this winter, arguing about the value of NPR and PBS, and learning that we suffer from an "enlargement of self," the Japanese were dying by the thousands as solid ground gave way and the sea roiled and raged, consuming whole cities.
The raw, elemental power of nature can shake us from our preoccupations like nothing else. (Though a few million of us will obsess about Division 1 basketball over the next few weeks — the men's game, of course, never the women's — elevating it to an importance that borders on the obscene.)
The indiscriminate destruction caused by earthquakes and tsunamis messes with our sense of cosmic justice. It shatters our romantic views of nature and of divinity — the silliness we often succumb to when we credit God with a beautiful sunset or a striking cloud formation. It silences, thankfully, if only for awhile, the bad theology of Everything Happens for a Reason. (That the Japanese are the only people to have suffered a nuclear attack and are now at grave risk for prolonged radiation contamination is a particularly cruel irony that ought to leave us in stunned silence).
This kind of "natural" devastation also reminds us of how little control we really have in this life, despite our considerable efforts to manage, contain, and forestall the unforeseeable. We know this in personal, intimate ways-a loved one stricken with cancer, say — but we seem so willing to buy into the lie that as a collective — a nation-state, say — we can preempt disaster with our cleverness and moral resolve (and a few billion dollars).
A decade of rhetoric about "homeland security" has trained us to think that we can make our country safe from outside attack, that, indeed, we must value and pursue security above all else. Politicians routinely campaign on such ideas, counting on an edgy, fearful electorate to latch on to any promise to keep us from harm — no matter how dubious or contrived.
But life is fragile, peace is always precarious, and the earth itself no respecter of persons or property. One gigantic wave and whole populations are decimated; one seismic shift and time itself is altered.
If there's a lesson in this most recent tragedy (and it's generally a bad idea to go looking for one), it's that humans exist in a complex, interdependent web of relations with each other and with a planet that is sometimes inhospitable to our habitation of it. It was as instructive as it was terrifying to anticipate and track the waves that washed up on the California coast as the tsunami made its inevitable way westward. What happened in Japan didn't stay in Japan.
Because corporations have written the dominant narrative of our time — that we exist to consume their products and that this is made possible by the easy flow of capital, goods, services, and labor across increasingly permeable borders, we might think that it is free-market capitalism which binds us together, making us "one world." But in fact the earthquake and tsunami have revealed our common humanity and common destiny, reminding us that we have always been linked to our neighbors near and far, and that consumerism won't save us but acknowledging our mutual dependence and shared vulerability just might.
Helping Japan
If you're looking for a way to help the earthquake and tsunami victims in Japan, here are a few faith-based organizations and ministry efforts that are working to provide food, supplies, and direct emergency relief. If you know of other trustworthy organizations that should be added to this list, please let us know in the comments section below or at our Facebook page.
• World Vision
• World Relief
• The Salvation Army
• Billy Graham Evangelistic Association
• Convoy of Hope
Glenn Beck and the American God
by Debra Dean Murphy | Aug 31, 2010 | Headline News | 5 comments
At his massive rally in Washington, the conservative activist called his audience to restore America's honor and "turn back to God." But it wasn't completely clear which god he was talking about.
The long experiment in American Christianity continues to yield interesting results.
As Duke Divinity School theologian Stanley Hauerwas has noted, "America is a synthesis of evangelical Protestantism, republican political ideology, and commonsense moral reasoning." This odd amalgam has been possible because Americans have made faith in God "indistinguishable from their loyalty to a country that assured them that they had the right to choose which god they would or would not believe in."
Such a view is so commonplace that it goes unquestioned by politicians, pundits, preachers, and the rest of us — whether we're conservative, moderate, or liberal; high-church, low-church, or no-church.
It is telling that the least controversial aspect of Saturday's "Restoring Honor" rally at the Lincoln Memorial was conservative talk-show host Glenn Beck's insistent call that America "turn back to God." His sympathizers welcomed it; many skeptics conceded: what's the harm?
It's the peculiar triumph of American Christianity that "God" names a vague, innocuous, content-less deity, one incapable of giving offense. This is why, as Hauerwas observes, America has never been able to produce interesting atheists: "The god most Americans say they believe in is just not interesting enough to deny."
In fact, the American God — the one that Beck (who is a Mormon) and others invoked on Saturday — is a cipher that can be filled in with the kind of content that affirms any number of tenets of our civil religion: American exceptionalism, the sacredness of free markets, honor in war, the American dream.
And if each of us gets to decide who and what God is "for ourselves," then the Church is unnecessary for the practice of this piety. But that doesn't seem quite right, so we've developed the idea that churches are vital for the maintenance of the democratic institutions to which we pledge our ultimate loyalty. Insofar as church membership/involvement produces good citizens, "organized religion" has done its duty for the state it's meant to serve.
The problem, of course, is that the American God bears no resemblance to the God revealed through the people of Israel and through the life and death of a first-century Palestinian Jew executed by the most powerful nation on earth. And the American church-as-maker-of-model-citizens looks nothing like the ekklesia of early Christianity — the called-out people who understood themselves to be at odds with an Empire predicated on domination and death. The Pax Romana (like the Pax Americana) demanded ultimate allegiance and tolerated weird, upstart religions only so long as they made no claims on the power of the state.
The ease with which most Christians in America negotiate their relationship with the polis is evidence, Hauerwas says, of how Protestantism is dying of its own success. The experiment, we could say, has worked all too well. Protestant churches in America have "lost the ability to maintain the disciplines necessary to sustain a people capable of being an alternative to the world."
I wonder how many people attending the "Restoring Honor" rally on Saturday heard the gospel reading from Luke 14 on Sunday? The kind of honor Jesus is interested in "restoring" has nothing to do with patriotic pride or the valorization of death in war and everything to with humility and charity; with serving the poor; with standing alongside those who suffer; that is, with bearing witness — with our very bodies — to an alternative way of being in the world.
In our own context we might say that to take Jesus at his word here would mean that a gathering on the grounds of the Lincoln Memorial (or any other space or place) should look less like a Tea Party for the disgruntled and more like a banquet for "the the poor, the crippled, the lame, and the blind" (Luke 14:13).
This means, then, that Christians are those who see themselves as "alien citizens" of whatever country they live in. Which doesn't mean that Christians must necessarily strike a hostile pose; it's certainly possible — even desirable — to love one's country. But Christians are those who struggle and hope to believe in a God who has confronted death and the death-dealing ways of the world and the death-dealing ways in ourselves. And so we register our inability to be at home in a polis where greed and waste and war are taken to be inescapable and necessary — where, indeed, such sins are twisted into virtues.
For all the sincerity on display at the Lincoln Memorial on Saturday, and amongst the large throngs of proud Americans, this God and these Christians were hard to spot.
Photo by Luke X. Martin from Wikipedia.
'Mommy Doesn't Have Papers'
by Debra Dean Murphy | Jun 21, 2010 | Headline News | 2 comments
In the immigration debate, some think children are being used as instruments to gain access to this nation's benefits, while others see them as a reminder that, in God's kingdom, the first shall be last.


One of the greatest joys I have as a minister is giving communion to children. I love watching the looks on their faces as they receive the bread and dip it into the cup.
Once children reach a certain age, they are not so bashful about asking for a big piece or asking for seconds. And the younger the children, the more tentative they are at receiving the bread, the more demonstrative they are of their appreciation of it.
This past Sunday was Communion Sunday at my churches and when I saw little Madison's aunt carrying her in the communion line, I couldn't help but smile. Madison is a happy, healthy baby. She is always smiling and has reached that age where she jabbers away at everyone and anyone. She delights in music and I watch her as she "sings along" with the choir while waving her hands as though she were the choir director.
So, when she and her aunt reached the front of the communion line, I broke off a tiny piece of the bread and offered it to the child first.
Madison looked at me in that serious way babies do when they aren't quite sure what you are wanting from them, but instinctively, as the bread neared her mouth, she opened wide to receive it.
In seminary, the question of how young is too young for communion came up on different occasions. Of course, a person's faith traditions and denominational standards inform our opinions. But, being the faithful young seminarians that we were, we would whip out all of our best theological reasons to back up our arguments for or against giving communion to children and babies.
I'm sure that back then I had all sorts of excellent academic explanations… but none of them compare to the sheer joy I receive by watching children like Madison light up when they taste the sweet bread and juice.
I am reminded of Jesus, encouraging us to come to the kingdom as children. Seeing the innocent and excited reception that children like Madison have for the gifts of grace that they are offered explains Jesus' command more than any theologian with fancy degrees could.
Madison doesn't have enemies. And should she find herself unhappy with her parents' slow response to her hunger or other source of discomfort, she is capable of forgiving the transgression immediately. She has nothing but love for everyone around her. Her every action brings joy to all those who are near her. And when a gracious gift is given her, she receives it with a joy that requires the use of her full body to express it: laughing, clapping, squealing, bouncing joy.
I can't imagine any other way that we should come to the Kingdom of God.


Eyes are the human senses that have the most important functions for human life. Of course, a healthy eye is everyone's dream, not a few people try to prevent their eyes to avoid the disturbances that cause a decrease in eye function. Moreover, the fact that at this time to get a job in the company just an average already no longer accept someone who has a disturbance in vision, so often they fail when through eye health tests. the eye is the window for someone to see the world, it is our duty to take care of it. Taking care of your eyes is important because the decreasing function in the eyes will worsen any activity you go through, so your activity becomes constrained. Check immediately if you feel wrong with your eyesight before it gets worse. Aside from that, if you wish to find a good place to check your eyes, perhaps the Walmart Eye Exam Cost can be quite cheap, but you will get the best quality of an eye exam.
One of the preventions of disruption to the function of the eye is through food that you can consume. This method will be safer and more effective than you use drugs that will make dependence and will be at risk in long-term use. Here are the foods that can keep your eyes healthy naturally.
1. carrots, rich in vitamin A so carrots are used by many people to process pain in the eyes.
2. Mango fruit, this also has a high enough vitamin A content, in a glass of mango juice can produce 25% of vitamin A.
3. Peach fruit, beta-carotene content in peach fruit is very useful for eye health.
4. Spinach, also good for eye health, in this vegetable contains vitamin A which can maintain eye health.
5. Pumpkin seeds, this is rich in betacarotene which is very good for eye health.
6. Oyster Mushroom Riboflavin content has good benefits for the prevention of cataracts and tired eyes that cause glaucoma.
7. Fish salmon, omega 3 and amino acids contained in salmon can prevent eye aging and sharpen eye vision function.