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Justia Dockets & Filings Ninth Circuit California Northern District Roling v. E*Trade Securities LLC Filing 63
Roling v. E*Trade Securities LLC
MEMORANDUM AND ORDER by Judge Marilyn Hall Patel granting in part and denying in part 20 Motion to Dismiss; denying 23 Motion to Transfer Case (awb, COURT STAFF) (Filed on 11/22/2010)
Roling v. E*Trade Securities LLC Doc. 63 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA JOSEPH ROLING and ALEXANDER LANDVATER, individually and on behalf of all others similarly situated, Plaintiffs, v. E*TRADE SECURITIES, LLC, Defendant. / No. C 10-0488 MHP MEMORANDUM & ORDER Re: Defendant's Motion to Transfer Venue and Motion to Dismiss United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs Joseph Roling and Alexander Landvater brought this putative class action against E*Trade Securities LLC ("E*Trade") alleging breach of contract, unjust enrichment, and violations of California Civil Code sections 1671 and 17200 et seq. Now before the court are E*Trade's motion to transfer venue and motion to dismiss. Having considered the parties submissions and arguments, and for the reasons set forth below, the court enters the following memorandum and order. BACKGROUND E* Trade is an online broker-dealer of stocks and securities. In 1999 and 2006, respectively, Rolling and Landvater each opened and deposited $1,000 into an E*Trade brokerage account. Docket No. 14 (First Amended Complaint ("FAC")) �� 16, 25. Upon activation, plaintiffs entered into the "Brokerage Customer Agreement," which provided that plaintiffs "agree to pay brokerage commissions, charges and other fees set forth in E*TRADE Securities' then-current fee schedule . . . ." Id., Exh. A (Brokerage Agreement) � 4(b). The brokerage agreement further stated Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 that "a schedule of the current fees and commission is available on the E*TRADE Securities Web site." Id. Plaintiffs allege that it is unclear which fee schedule of the many then-available on E*Trade's website was "current" or "available." Nonetheless, they allege that the operative fee schedule prohibited the assessment of fees. Id. � 4, Exh. B (Plaintiffs' Fee Schedule) at 3. Despite this agreement, plaintiffs claim E*Trade began assessing them a quarterly fee of $40 for each fiscal quarter in which they did not make at least one trade. Id. �� 17, 26, 44. Once the amount of inactivity fees reached plaintiffs' account balance, E*Trade liquidated plaintiffs' accounts by selling plaintiffs' stock and used the proceeds to collect the inactivity fees. Id. �� 22, 30. On February 3, 2010, Roling, who maintains his primary residence Chicago, filed a class action complaint in this court alleging four causes of action. See Docket No. 1 (Complaint). Specifically, Rolling alleged that: 1) E*Trade breached its contract with plaintiff by charging the $40 inactivity fee; 2) E*Trade was unjustly enriched through these fees; 3) the inactivity fee was a liquidated damage in violation California Civil Code section 1671; and 4) charging a $40 inactivity fee constituted an unlawful, unfair, and fraudulent business practice in violation of California's Unfair Competition Law ("UCL"). Roling then amended his complaint to add Landvater as a named plaintiff. See generally FAC. Landvater maintains his primary residence in San Francisco. Id. � 10. United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEGAL STANDARD I. Motion to transfer "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. � 1404(a). A motion to transfer venue lies within the broad discretion of the district court. Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000) (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). District courts use a two-step analysis to determine whether a transfer is proper. The threshold question under Section 1404(a) requires the court to determine whether the case could have been brought in the forum to which the transfer is sought. 28 U.S.C. � 1404(a); Hatch v. 2 1 2 3 4 5 6 7 8 9 10 Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir. 1985). If venue would be appropriate in the would-be transferee court, then the court must make an "individualized, case-by-case consideration of convenience and fairness." Jones, 211 F.3d at 498. Among the non-exclusive factors that a district court may consider in deciding whether a transfer is in the interest of justice are: the location where any relevant agreements were negotiated and executed; the state that is most familiar with the governing law; the plaintiff's choice of forum; the respective parties' contacts with the forum; the contacts relating to the plaintiff's cause of action in the chosen forum; the differences in the costs of litigation in the two forums; the availability of compulsory process to compel attendance of unwilling non-party witnesses; the ease of access to sources of proof; any forum selection clause; and relevant public policy of the forum state. Id. at 498-99 (citing Stewart, 487 U.S. at 29-31). II. Motion to dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed against a defendant for failure to state a claim upon which relief can be granted against that defendant. A motion to dismiss under Rule 12(b)(6) "tests the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal may be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988). A motion to dismiss should be granted if a plaintiff fails to pled "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 (2007). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, ___U.S.___,___, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556). Allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). "[A] court may take judicial notice of `matters of public record'" and may also consider "[d]ocuments whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading," without converting a motion to dismiss under Rule 12(b)(6) 3 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 into a motion for summary judgment. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001) (quoting Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986)). The court need not, however, accept as true pleadings that are no more than legal conclusions or the "formulaic recitation of the elements" of a cause of action. Iqbal, 129 S. Ct. at 1950. "Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. DISCUSSION This court has original jurisdiction over this case. 28 U.S.C. � 1332(d)(2). The Class Action Fairness Act ("CAFA"), 28 U.S.C. � 1332(d), imposes only the minimal diversity requirement, that one plaintiff be a citizen of a different state from the defendant. Defendant is an unincorporated association, and "an unincorporated association shall be deemed to be a citizen of the state where it has its principal place of business and the State under whose laws it was organized." 28 U.S.C. � 1332(d)(10); see Davis v. HSBC Bank Nev., N.A., 557 F.3d 1026, 1028 (9th Cir. 2009) (holding that LLCs are unincorporated associations for the purposes of CAFA); see Abrego v. Dow Chem. Co, 443 F.3d 676, 684 (9th Cir. 2006) (stating that CAFA "departs from the rule that frequently destroys diversity jurisdiction, that a limited partnership's or unincorporated association's citizenship for diversity purposes can be determined only by reference to all of the entity's members." (citations and internal quotations omitted)). The minimal diversity requirement is satisfied here because the plaintiff class is comprised of citizens of California and Illinois, and E*Trade is a citizen of Delaware, under whose laws E*Trade was organized, Curcio Decl., at � 2, and New York, E*Trade's primary place of business, id. at � 3. The putative class contains more than 100 members and satisfies the amount in controversy requirement, claiming aggregate damages in excess of $5,000,000. This court ordered the parties to brief the question of whether jurisdiction could be asserted in light of the Eleventh Circuit's recent holding in Cappuccitti v. DirectTV, 611 F.3d 1252, 1256 (11th Cir. 2010), overruled by Cappuccitti v. DirectTV, 2010 WL 4027719 at *2 (11th Cir. Oct. 15, 4 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 2010) (panel rehearing). In the interim, the Eleventh Circuit panel reversed itself, rendering further jurisdictional analysis by this court unnecessary. I. Motion to transfer E*Trade moves to transfer this action to the Southern District of New York for the convenience of the parties and witnesses, and in the interests of justice. Under the Class Action Fairness Act, 28 U.S.C. section 1332(d), every district court has subject matter jurisdiction over this action. Further, because E*Trade's corporate headquarters are located within the Southern District of New York, that court has personal jurisdiction over E*Trade and venue would therefore be proper there. 28 U.S.C. � 1391. Accordingly, this action could have been brought in the Southern District of New York. The court now turns to whether transfer is in the interests of justice. A. Choice of forum United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A plaintiff's choice of forum generally receives deference in a motion to transfer venue. Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). In class actions, however, a plaintiff's choice of forum is often accorded less weight. Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987) ("Although great weight is generally accorded plaintiff's choice of forum . . . when an individual . . . represents a class, the named plaintiff's choice of forum is given less weight."). Nonetheless, even in a class action, "[i]n judging the weight to be accorded [plaintiff's] choice of forum, consideration must be given to the extent of both [plaintiff's] and the [defendant's] contacts with the forum, including those relating to [plaintiff's] cause of action . . . ." Id. at 739 (internal citations omitted). In part, the reduced weight on plaintiff's choice of forum in class actions serves as a guard against the dangers of forum shopping, especially when a representative plaintiff does not reside within the district. Foster v. Nationwide Mut. Ins. Co., No. C 07-04928 SI, 2007 WL 4410408, at *2 (N.D. Cal. Dec. 14, 2007) (Illston, J.) ("Where forum-shopping is evident . . . courts should disregard plaintiff's choice of forum."); Royal Queentex Enters. v. Sara Lee Corp., No. C 99-04787, 2000 WL 246599, at *3 (N.D. Cal. Mar. 1, 2000) (Jenkins, J.) ("Circumstances in 5 1 2 3 4 5 6 7 8 9 10 which a plaintiff's chosen forum will be accorded little deference include cases of anticipatory suits and forum shopping."). There is no evidence of forum shopping here. E*Trade argues that plaintiffs erroneously filed suit in the Northern District of California because plaintiffs thought E*Trade's corporate headquarters were located here. This does not demonstrate forum shopping; instead, it demonstrates the opposite. When choosing where to file this action, plaintiffs appear to have filed suit where they thought it would be easiest for E*Trade to defend itself. In any event, even though E*Trade's corporate headquarters may have moved to New York, it still maintains a physically larger office in California than it does in New York. See United States SEC, Form 10-K, E*TRADE Financial Corp. (December 31, 2009), available at http://www.sec.gov/Archives/edgar/data/1015780 /000119312510038928/d10k.htm (76,000 square foot office in Menlo Park, California versus a 53,000 square foot office in New York). Moreover, one of the named plaintiffs, Landvater, lives within the Northern District of California. Because there is no evidence that plaintiffs engaged in forum shopping and both plaintiffs and defendant have significant contacts with the Northern District of California, plaintiffs' choice of forum carries significant weight. B. Convenience United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E*Trade claims that five of its witnesses likely to testify at trial are located in New York; however, this argument ignores Landvater's location. If this action proceeds in the Southern District of New York, Landvater will have to travel from California to New York for trial. If it proceeds in this court, then the New York witnesses would have to travel to California for trial. Although this potential five to one imbalance does suggest that transfer would be appropriate, the actual inconvenience to the parties is minimal as E*Trade concedes that the depositions of the New York witnesses will be taken in New York, without any inconvenience to these witnesses. Therefore, the slight imbalance, which will only manifest itself at trial, if at all, is not sufficient to overcome the plaintiffs' choice of forum. E*Trade's argument that transfer would be more convenient for Roling is irrelevant. Roling chose to pursue this action in the Northern District of California, and opposes this motion. 6 1 2 3 4 5 6 7 8 9 10 Likewise, E*Trade's argument regarding the attorneys' convenience is also irrelevant. Pralinsky v. Mutual of Omaha Ins., No. C 08-03191 MHP, 2008 WL 4532563, at *2 (N.D. Cal. Oct. 9, 2008) (Patel, J.) ("convenience of counsel is not considered in ruling on a section 1404(a) transfer motion"). Finally, the location of E*Trade's data processing center in Georgia, which is neither New York or California, does not weigh in favor of transfer of this action to New York. C. Familiarity with governing law Plaintiffs' breach of contract claim is subject to New York law. See Brokerage Agreement � 12(m). However, two of plaintiffs' four claims require the interpretation of California law. FAC �� 59-66 (Count III: liquidated damages in violation of California Civil Code section 1671); id. �� 67-84 (Count IV: Violation of California UCL). E*Trade argues that New York courts are best equipped to adjudicate claims under New York law. While this may be true, E*Trade fails to recognize that the converse is also true. E*Trade's own argument that courts outside of California are fully capable of applying California law also holds true of this court's ability to interpret New York law. See Metz v. U.S. Life Ins. Co., 674 F. Supp. 2d 1141, 1148 (C.D. Cal. 2009) (holding that judges in both New York and California are fully capable of deciding issues arising under both California and New York law). E*Trade's claim that plaintiffs' "primary" claims are based on New York law does not change this analysis. Since plaintiffs have pled claims in the alternative, it is currently unclear which claims are primary and which are secondary. This factor is therefore neutral. D. Efficiency United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Finally, E*Trade claims that the interests of justice are best served by transfer because cases are resolved more quickly in the Southern District of New York. The difference, however, is marginal: on average, cases in the Southern District of New York are resolved in 6.4 months instead of 9.4 months in the Northern District of California. This difference in the average length of time of all filed actions does not lend itself to useful extrapolation to accurately predict the outcome in this specific action. Accordingly, this factor does not weigh in favor of transfer. 7 1 2 3 4 5 6 7 8 9 10 E. Summary By E*Trade's own admission, none of the other factors weigh in favor of transfer. Because evidence will be produced electronically, transfer will provide no greater access to evidence. There is no potential for consolidation with other cases, and the local interests in this case are equal in both New York and California. E*Trade's only support in favor of transfer is therefore travel-related inconvenience a few party witnesses may suffer if this action proceeds to trial in California. In light of plaintiffs' choice of forum, which does not evidence forum shopping, E*Trade's arguments are insufficient to demonstrate that transfer is in the interests of justice. The motion to transfer is denied. The Court now turns to E*Trade's motion to dismiss. II. Motion to dismiss A. Breach of contract United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The brokerage agreement between the parties is to be "construed, and the rights and the liabilities of the parties determined, in accordance with the internal laws of the State of New York." Brokerage Agreement � 12(m). Under New York law, the following elements must be pled for a cause of action for breach of contract: the existence of a binding contract, plaintiff's performance of the contract, defendant's material breach of the contract and damages. Furia v. Furia, 498 N.Y.S.2d 12, 13 (App. Div. 1986).1 Only the breach prong is challenged. Plaintiffs allege that E*Trade materially breached the brokerage agreement by charging plaintiffs a $40 fee for each fiscal quarter that plaintiffs did not make a trade. FAC � 45. Attached to the complaint are the brokerage agreement and the fee schedule that plaintiffs allege E*Trade breached. See Brokerage Agreement; Plaintiffs' Fee Schedule. E*Trade argues the fee schedule identified by plaintiffs applies only to a subset of E*Trade customers whose accounts it absorbed after it purchased another online brokerage, Brown Company, in 2005. Indeed, a statement on the first page of plaintiffs' fee schedule states, "[a]s a former Brown Co. customer, you qualify for special stock, options, mutual fund commissions and margin rate plans," and purportedly limits the application of the fee schedule only to former Brown Company customers absorbed by E*Trade. 8 1 2 3 4 5 6 7 8 9 10 Plaintiffs, however, allege that this limiting statement applies only to fees listed directly below it, and does not apply to the section titled "Account Activity Fees."2 This is sufficient to state a claim. Contract interpretation is a matter of law. "When interpreting a contract, the construction arrived at should give fair meaning to all of the language employed by the parties, to reach a practical interpretation of the parties' expressions so that their reasonable expectations will be realized." Fernandez v. Price, 880 N.Y.S.2d 169, 169 (App. Div. 2009). It is possible that when read as a whole, the contract has two reasonable interpretations. In such cases, the contract is ambiguous and it may be necessary to refer to material extrinsic evidence of the parties' intent. Omni Berkshire Bank Corp. v. Wells Fargo Bank, N.A., 307 F. Supp. 2d 534, 540 (S.D.N.Y. 2004). Plaintiffs' fee schedule contains four discrete sections: Transactional Pricing, Margin Rates, Account Activity Fees and Special Request Fees. Plaintiffs' Fee Schedule at 1. The limiting statement in plaintiffs' fee schedule appears only within the Transactional Pricing section. Id. This section is composed of different sub-headings. The limiting statement appears directly below the first sub-heading, which reads "Brown Co. Special Pricing." Id. Immediately after the Brown Co. Special Pricing sub-heading and its accompanying limiting statement, the fee schedule lists prices for various types of trades. Id. Immediately following this pricing, the second sub-heading reads "Complex Options." Id. Both sub-headings, as well as all the other sub-headings in the Transactional Pricing section, are set in the same typeface, font, color and size, which could create the impression that each sub-heading refers to the pricing that follows immediately thereafter. Thus, a reasonable person could conclude that the special pricing for former Brown Company customers includes only those fees listed in the Transactional Pricing section, or only the Transaction Pricing and Margin Rates sections, as the prohibition on charging inactivity fees appears under the "Account Activity Fees" section. Id. ("No inactivity fees. E*TRADE Securities will not charge fees when your account is inactive for a period of time."). However, a reasonable person could also conclude that the limiting statement applies to the entirety of plaintiffs' fee schedule because the limiting language is an overarching substantive provision in plaintiffs' fee schedule. This conclusion is strengthened if the main street investor schedule ("MSI fee schedule"), which authorizes E*Trade to 9 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 charge the $40 dollar fee in question, is also considered. Docket No. 21 (Somvichian Dec.), Exh. 2 (MSI Fee Schedule).3 Because there are two reasonable interpretations of this provision, the contract is ambiguous. Since no extrinsic evidence can be considered at this stage, the motion to dismiss the breach of contract claim must be denied. Granite Partners, L.P. v. Bear, Stearns & Co. Inc., 17 F. Supp. 2d. 275, 304-05 (S.D.N.Y. 1998); see also Weiss v. Weinreb & Weinreb., 793 N.Y.S.2d 100, 100 (App. Div. 2005) ("Since the provision in question was susceptible to two different interpretations, the resolution of this ambiguity was for the trier of fact and may be based on extrinsic evidence.").4 E*Trade claims that only the MSI fee schedule, and not plaintiffs' fee schedule, applies to plaintiffs. Consideration of the MSI fee schedule, which is similar to plaintiffs' fee schedule, except that it authorizes the fee, does not compel a different result. It appears that E*Trade intended the MSI fee schedule to apply to plaintiffs; however, E*Trade's intent is not determinative here. Although the MSI fee schedule demonstrates weaknesses in plaintiffs' allegations and bolsters the possibility that the limiting statement applies to the entirety of plaintiffs' fee schedule, it does not conclusively demonstrate, at this stage, that plaintiffs' fee schedule is without ambiguity. For instance, it does not specify that it, and only it, applies to all non-Brown company investors. Consequently, plaintiffs' allegations, taken as true, are sufficient to state a claim. B. Unjust enrichment United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E*Trade cites California law in its opening brief to argue that plaintiffs have not properly alleged a claim for unjust enrichment. When plaintiffs cite California law in opposition, E*Trade in its reply claims that plaintiffs fail to cite New York authority. Neither party discusses which law should apply to this cause of action. Without deciding which law applies, the court holds that the cause of action survives dismissal independent of the law applied. While the existence of an express contract indisputably precludes allegations regarding an implied contract for the same subject matter, plaintiffs allege unjust enrichment in the alternative, i.e., where an express contract provision regarding inactivity fees does not exist or is found unenforceable. The gravamen of plaintiffs' claim lies in the unconscionability, both procedurally 10 1 2 3 4 5 6 7 8 9 10 and substantively, of the provision of the brokerage agreement that allows for E*Trade to unilaterally, and without notice, change the operative fee schedule. FAC �� 55-56.5 Therefore, plaintiffs claim that E*Trade was not allowed to impose fees, and was unjustly enriched by its collection of inactivity fees. The sword of Damocles does not hang over E*Trade's head as plaintiffs seek to invalidate only the inactivity fees provision, and not the entire brokerage agreement. See FAC � 54 ("the provision that allows E*Trade to unilaterally change the types and amounts of fees it may charge to its customers' accounts by posting a separate fee schedule on its website is further unconscionable and unenforceable because customers are required to scour E*Trade's website for the terms of the agreement."). The brokerage agreement states that "E*TRADE Securities may modify the fee structure at any time by posting a modified structure on its Web site." Brokerage Agreement � 4(b). The agreement also requires plaintiffs to check E*Trade's website for modifications to the agreement: I understand that this Agreement may be amended from time to time by E*TRADE Securities, with revised terms posted on the E*TRADE Financial Web site. I agree to check for updates to this Agreement. I understand that by continuing to maintain my Securities Brokerage Account without objecting to revised terms of this Agreement, I am accepting the terms of the Revised Agreement and I will be legally bound by its terms and conditions. Id. � 1. Allegations of such contractual provisions are sufficient to state a claim for unjust enrichment based on unenforceability. None of E*Trade's authorities addresses whether a contract is enforceable as a matter of law where it allows a contracting party to change the provisions of the contract without notice. In Walter v. Hughes Commc'ns, Inc., 682 F. Supp. 2d 1031, 1046-47 (N.D. Cal. 2010) (Conti, J.), plaintiffs "simply state[d] that the imposition of the fee was unconscionable, without explaining how it `shocked the conscience' or was `harsh or oppressive' at the time the agreements were entered into." In contrast, plaintiffs allege that E*Trade's unilateral ability to change contract terms, without notice, and the requirement that they periodically check the terms of the contract is problematic. Although magic words are not used, the allegations are sufficient to allege a claim for unenforceability. 11 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 E*Trade's remaining authorities are likewise inapposite, distinguishable or unpersuasive. Lawlor v. Cablevision Sys. Corp., No. 12308-06, 2008 WL 4212442, at *5 (N.Y. Sup. Ct. Sept. 8, 2008), did not discuss the provision that allowed defendant to "in its sole discretion, change, modify, add or remove portions of this Agreement at any time;" instead, it dismissed on other grounds. Guadagno v. E*TRADE Bank, 592 F. Supp. 2d 1263, 1271-72 (C.D. Cal. 2008), also did not discuss the one-sided provision that allowed the defendant to change the terms of the contract at will and without notice. DeBlasio v. Merrill Lynch & Co., Inc., No. 07 Civ 318 (RJS), 2009 WL 2242605, at *39 (S.D.N.Y. July 27, 2009), is distinguishable because the contract here does not provide for "advance written notice of the modifications that would become effective on a later date." Similarly, in Missing Link, Inc. v. eBay, Inc., No. C-07-4487 RMW, 2008 WL 3496865, at *2 (N.D. Cal. Aug. 12, 2008) (Whyte, J.), the defendant had announced that it would increase its rate. And the defendant was allowed to unilaterally modify the terms of the contract in TradeComet.com LLC v. Google, Inc., 693 F. Supp. 2d 370, 374 (S.D.N.Y. 2010), only because use of the service "after notice that Terms have changed indicate[d] acceptance of the Terms." The allegations here refer to the unconscionability associated with unannounced fee increases. Indeed, the TradeComet court specifically stated that "`the fact that one party reserves the implied power to terminate or modify a unilateral contract is not fatal to its enforcement, if the exercise of the power is subject to limitations, such as fairness and reasonable notice.'" Id. (quoting Asmus v. Pacific Bell, 23 Cal. 4th 1, 16 (2000)). In MySpace, Inc. v. The Globe.com, Inc., No. CV 06-3391, 2007 WL 1686966, at *9-*10 (C.D. Cal. Feb. 27, 2007), the court found a lack of unconscionability on summary judgment because "[d]efendant had a reasonable alternative or meaningful choice in the matter, in that marketing through MySpace using the method employed was not its only choice. In fact, Plaintiff's evidence shows that Defendant had, in fact, considered purchasing advertising space on the MySpace website." Id. at *9 (internal citation omitted). Moreover, the court found the unilateral changes were not unconscionable because defendant had notice. Specifically, defendant there created new MySpace accounts after the change in the terms of service, and therefore "it knew, or 12 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 should have known, that all messages, even those sent from pre-March 17 accounts, were subject to the liquidated damages provision." Id. at *10. MySpace is therefore distinguishable both on procedural and substantive grounds. Finally, Harold H. Huggins Realty, Inc. v. FNC, Inc., 575 F. Supp. 2d 696, 706 (D. Md. 2008), is inapposite as it interpreted Mississippi law. Moreover, it is distinguishable on the facts as the party that unilaterally modified the agreement sought to withdraw its modification during the litigation; there was no claim of unconscionability. In sum, E*Trade is unable to cite to any case, whether under New York law or California law, that undercuts plaintiffs' allegation that a contractual provision that allows a party to unilaterally change the terms of the contract without notice is unenforceable. The unjust enrichment claim stands. C. Liquidated damages United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E*Trade claims the inactivity fee is not a liquidated damage and is therefore proper. Under California Civil Code section 1671, "a provision in a contract liquidating damages for the breach of the contract is void except that the parties to such a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage." Cal. Civ. Code � 1671(d). Essential to plaintiffs' claim under Section 1671 is that their own breach of contract led to the assessment of such fees. Leong v. Square Enix of Am. Holdings, Inc., No. CV 094484, 2010 WL 1641364, at *6 (C.D. Cal. Apr. 20, 2010) (". . . a claim under � 1671 and for `illegal penalties' requires a showing that the contractual penalty (1) assesses liquidated damages (2) for breach of the contract."). However, by the very terms of the brokerage agreement, plaintiffs have not breached the contract. Plaintiffs allege that "insofar as the imposition of the $40 quarterly inactivity fees is considered to have been properly added as a contractual term to the Brokerage Customer Agreement, the terms of the inactivity fee imposed a contractual obligation on Plaintiffs . . . to use their E*Trade accounts to make at least one trade during each fiscal quarter, which a customer would supposedly breach by failing to make a trade." FAC � 61. This description need not be accepted as true if it is 13 1 2 3 4 5 6 7 8 9 10 undercut by the incorporated documents. The MSI Fee Schedule, which was incorporated by reference into the brokerage agreement, states: "Your account will be reviewed on each quarter's Activity Record Date and a $40 Account Service Fee (ASF) will be assessed, if applicable, on the Fee Date . . . ." MSI Fee Schedule at 3. It goes on to state that a customer "will not be charged an ASF if . . . [she] execute[s] one or more stock, option, or mutual fund trades per quarter." Id. Moreover, executing a trade is simply one of many different ways in which a customer can trigger the fee waiver. Id. (the fee is also waived if the customer maintains a minimum balance or uses her E*Trade account to pay bills). Thus, the promise made by plaintiffs is that they will pay E*Trade a $40 account service fee each fiscal quarter, not that they will make at least one trade per quarter. Therefore, the payment of the $40 fee is consideration for continuation of the brokerage agreement, which can be waived under the terms of the contract upon the occurrence of certain events, including the execution of one trade in that fiscal quarter. See Horowitz v. Noble, 79 Cal. App. 3d 120, 136 (1978) (payment of money with no contingency on another event was simply consideration for continuation of original agreement). Accordingly, failure to make a trade does not constitute a breach of contract, and assessment of the $40 fee is not a liquidated damage. Plaintiffs' arguments regarding the irrationality of paying the inactivity fee, if that is the law, also fail. Foregoing the opportunity to save $27.01, $40 less the $12.99 trade fee, by executing a trade every quarter is not irrational. The opportunity cost of the time spent researching, planning and executing a trade may well be worth more than $27.01. Thus, paying the $40 fee is not always inferior to executing a trade. The same analysis applies to the switching and opportunity costs associated with making two electronic bill payments through an E*Trade account. Accordingly, count III of the FAC is dismissed with prejudice. D. UCL United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The UCL prohibits "unlawful, unfair or fraudulent business act[s] or practice[s]" and "unfair, deceptive, untrue or misleading advertising." Cal. Bus. & Prof. Code � 17200. To state a claim under the UCL, a plaintiff must plead that: 1) defendant engaged in one of the practices prohibited by the statute; and 2) plaintiff suffered actual injury in fact as a result of defendant's actions. Laster 14 1 2 3 4 5 6 7 8 9 10 v. T-Mobile United States, Inc., 407 F. Supp. 2d 1181, 1194 (S.D. Cal. 2005). Plaintiffs allege that the $40 activity fee was unlawful, unfair and fraudulent. FAC �� 13-16. Firstly, plaintiffs allege that the $40 fee was unlawful because E*Trade violated California Civil Code section 1671. Since the fee is not a liquidated damage, the alleged violation of Section 1671 cannot serve as a predicate for the UCL claim. Secondly, plaintiffs allege that E*Trade's conduct in charging the $40 fee in the absence of contractual authority to do so constitutes an unfair business practice. Id. � 70. The appropriate definition of the word "unfair" in the UCL is unclear. In re Actimmune Marketing Litigation, No. C 08-02376, 2009 WL 3740648, at *14 (N.D. Cal. Nov. 6, 2009) (Patel, J.). In Lozano v. AT&T Wireless Servs., Inc., 504 F.3d 718, 736-37 (9th Cir. 2007), the Ninth Circuit held that, "in the absence of further clarification by the California Supreme Court," district courts may apply either, or both, of the tests for unfair business practices articulated in Cal-Tech Comm'ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal. 4th 163 (1999), or South Bay Chevrolet v. Gen. Motors Acceptance Corp., 72 Cal. App. 4th 861 (1999), to determine if a defendant's conduct is "unfair." Since the parties discuss only the standard for unfair business practices articulated in South Bay, that standard is used: "an `unfair' business practice occurs when it offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers." 72 Cal. App. at 886-87. Plaintiffs allege that E*Trade charged them a $40 fee without contractual authorization to do so. Such allegations accuse E*Trade of unethical and unscrupulous conduct that is substantially injurious to consumers. E*Trade is correct that Section 17200 does not give courts carte blanche to evaluate the fairness of the contract; however, the basis of plaintiffs' unfair business practice claim relies on monies withheld in accordance with a contractual provision that is either missing or allegedly unenforceable due to the unconscionable nature in which it was imposed. Accordingly, plaintiffs have sufficiently alleged that E*Trade engaged in "unfair" business practices. Thirdly, plaintiffs allege that E*Trade engaged in fraudulent conduct when it made false statements regarding the inactivity fees. FAC � 75. "The `fraud' contemplated by section 17200's 15 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 third prong bears little resemblance to common law fraud or deception. The test is whether the public is likely to be deceived." South Bay, 72 Cal. App. 4th at 887 (citing State Farm Fire & Cas. Co. v. Superior Court, 45 Cal. App. 4th 1093, 1105 (1996)) (internal quotation omitted). Plaintiffs allege that E*Trade stated it "would not charge any fees for a customer whose account was inactive for a period of time." Id. � 75. They further allege they were deceived by these statements when they "reasonably relied on E*Trade's false representations that no inactivity fees would be charged . . . [and] kept their accounts open instead of closing them before E*Trade could liquidate the account balances." Id. � 78. Plaintiffs allege both public deception and monetary harm; accordingly, they have properly pled a UCL claim for fraudulent business practices. Although plaintiffs' UCL claims stand, their allegations appear to be undercut by industry practice. Moreover, their UCL claims are derivative of their other claims, and do not assert an independent basis. Consequently, damages will be limited in accordance with the amount of duplication. Finally, Roling's UCL claim is dismissed because he does not allege that he is a California resident, or that the UCL otherwise applies to him. The UCL does not create a claim for non-residents where the misconduct or injuries are not alleged to have occurred in California. United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONCLUSION For the foregoing reasons, defendant's motion to transfer is DENIED and defendant's motion to dismiss is GRANTED in part and DENIED in part. IT IS SO ORDERED. Dated: November 22, 2010 MARILYN HALL PATEL United States District Court Judge Northern District of California 16 1 2 3 4 5 6 7 8 9 10 ENDNOTES 1. It is unclear why plaintiffs rely upon California and Ninth Circuit law regarding breach of contract. 2. It is unclear what damages, if any, plaintiffs can recover for fees assessed prior to the introduction of plaintiffs' fee schedule on the E*Trade website. 3. The doctrine of incorporation by reference "permits [the court] to consider documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the plaintiff's pleadings." Knieval v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (internal quotations and citations omitted). The doctrine has been extended "to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint." Id. (internal quotations and citations omitted). The Brokerage Agreement provides that the "brokerage commissions, charges and other fees . . . [are] set forth in E*Trade Securities' then-current fee schedule. . . ." and that a "[s]chedule of current fees and commissions is available on the E*Trade Securities Web site." Brokerage Agreement � 4(b). Neither party disputes the authenticity of either fee schedule. Nor do the parties dispute that both fee schedules were available on E*Trade's website as a "then-current fee schedule" when the fees at issue were assessed. Because both fee schedules were incorporated under the terms of the Brokerage Agreement, and plaintiffs' claim is dependent on the "then-current" fee schedules, both fee schedules may be considered in adjudicating the motion to dismiss. 4. Extrinsic evidence may include evidence of trade usage. United States Naval Inst. v. Charter Comm., Inc., 875 F.2d 1044, 1048-49 (2d Cir. 1989) ( "Usage and customs may be proved . . . to aid in interpretation of the words of the parties."). It appears that charging inactivity fees may be customary within the brokerage industry. See Exhibits to Docket No. 47 (Reply). The court expresses no opinion regarding which interpretation would prevail upon inclusion of extrinsic evidence, i.e., upon a motion for summary judgment. 5. Plaintiffs also allege that the brokerage agreement is unconscionable because E*TRADE drafted it, presented it to prospective customers on a "take it or leave it basis," and included choice of law and arbitration provisions. FAC �� 53-55. These provisions, individually, have been found to be enforceable by many courts. United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17


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Home/Africa/Russia is attempting to build its own 'independent Internet'
Russia is attempting to build its own 'independent Internet'
Russia may have its own independent internet infrastructure by August 1, 2018. That's according to members of the Russian Security Council who reportedly discussed the creation of an alternative to the globally used Domain Name System or DNS.
While Russian officials cite national security concerns as their prime motivator, critics fear the state may use this system to conduct offensive cyber-attacks.
Russian President Vladimir Putin, center, heads the Cabinet meeting at the Novo-Ogaryovo presidential residence outside Moscow on Wednesday, March 5, 2014. (AP Photo/RIA Novosti, Alexei Druzhinin, Presidential Press Service)
According to Russian state media site RT, the move comes as a response to perceived U.S. and E.U. intervention. One of the members of the council reportedly stated, "The increased capacities of western nations to conduct offensive operations in the informational space as well as the increased readiness to exercise these capabilities pose a serious threat to Russia's security."
The proposed internet system would include the nations of Brazil, Russia, India, China, and South Africa respectively (BRICS), and is designed to protect against "global internet malfunctions."
BRICS leaders meet at a summit in 2012. Russia's proposed alternative to the DNS would cover Brazil, Russia, India, China and South Africa's internet structure. Photo courtesy of ForeignPolicy.com
While Russian officials cite national security concerns and a demand for internet autonomy, some industry insiders see the move as a facade for aggression. Critics like technologist Peter Singer worry the move may allow Russia the ability to launch their own cyber-attacks with less consequence.
"There is a deep irony in Russia citing the increased capabilities of Western nations doing attacks in the information space," Singer told Defense One. "It is like the fake social media account of the pot calling the kettle fake."
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S. Africa's ruling ANC names Zuma's successor
Ancient tombs found near Egypt pyramids
Rwanda: French court rejects release of genocide suspect Felicien Kabuga
Kenya telecoms giant Bob Collymore dies of cancer at 61
Sierra Leone's losing candidate to challenge presidential results

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Confident Readers
How to Outsmart a Billion Robot Bees
Author(s): Paul Tobin
It's Friday the 13th again, and for sixth grade genius Nate Bannister, that means doing three more not-so-smart things to keep life interesting. But he has bigger problems than his own experiments. His nemesis, the Red Death Tea Society, is threatening to unleash a swarm of angry bees on the city of Polt if Nate doesn't join their ranks. But then a new group of people with murky intentions shows up -- the League of Ostracized Fellows -- and they want Nate as their own, too. To top it off, he's convinced there's a spy in his very own school. Nate must once again team up with his new, resourceful, friend Delphine to save the day. They'll need the help of Nate's crazy gadgets, such as his talking car Betsy and super-powered pets Bosper the Scottish terrier and Sir William the gull, if they hope to see another Friday the 13th. Because they might be battling more than just sting-happy bees and villains with a penchant for tea this time around. Awards for Bandette Winner, Eisner Award for Best Digital Comic Winter, IndieFab Award - Bronze, Graphic Novels & Comics
$15.00(NZD) RRP $14.99(NZD)
From Eisner-award winning author Paul Tobin comes the illustrated, hysterical sequel to How to Capture an Invisible Cat, which has double the baddies, double the laughs, and double the heart.
Tobin uses humor and great imagination to offer younger middle grade readers a delightful romp that will appeal to fans of madcap adventure. School Library Journal on HOW TO CAPTURE AN INVISIBLE CAT Middle grade readers, future inventors, and adventure-seekers will enjoy Nate and Delphine's encounters in this The Genius Factor title. School Library Connection on HOW TO CAPTURE AN INVISIBLE CAT This odd couple prove that teamwork works, and news of a sequel will likely be met with applause. Booklist on HOW TO CAPTURE AN INVISIBLE CAT Aimed equally at boys and girls ... This winning, consistently funny, smartly silly adventure could be one of Nate's kooky gadgets, a middle-grade reading attractor. Kirkus Reviews on HOW TO CAPTURE AN INVISIBLE CAT
Paul Tobin lives in Portland, Oregon with his wife, artist Colleen Coover, with whom he created the Eisner-award-winning Bandette. He is also the author of a multitude of comics for such publishers as Marvel, Dark Horse, and DC Comics. Paul is one of the two head writers for the Angry Birds comics, and is also writing episodes for the upcoming season of Angry Birds cartoon shorts. (He further rounds out his domination of iPhone games by writing the Plants vs. Zombies comics.) His other current projects include the Adventure Time: Flip Side series, combining the worlds of Prometheus/Aliens/Predator in conjunction with Dark Horse Comics/Ridley Scott, and continuing work on his award-winning horror series Colder. www.paultobin.net Katie Abey is the illustrator of numerous books published by Bloomsbury, including How to Capture an Invisible Cat and Earth to Daniel. Katie's art can also be seen in cards and jewellery stocked all over the U.K. in stockists which include Joy and Scribbler. Katie lives in Derbyshire, England, Planet Earth.
Publisher : Bloomsbury Publishing PLC
Imprint : Bloomsbury Publishing PLC
Publication date : January 2017
Availability date : March 2017
Reading Level : Children's - Grade 2-3, Age 7-8
Author : Paul Tobin
Illustrator : Thierry Lafontaine
Dewey classification : 813.6


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Providing Support to Native Americans in the Central Valley
by Jennifer Tinkelenberg · Published November 18, 2022 · Updated December 9, 2022
Ralph Vigil, whose mother has Alzheimer's disease, knows how important it is to have support when caring for a loved one living with the disease. As a board member of the Fresno American Indian Health Project, he brings Native American families from multiple tribes together. His work helps connect Native Americans to resources as well as proving a wider community of people for support.
Ralph Vigil
When Ralph Vigil, a member of the Mountain Ute tribe in Colorado, first moved to the Central Valley, he had a hard time finding community. According to the U.S. Census Bureau there are currently more than 14,000 Native Americans living in Fresno and Madera counties. Despite this fact, because Ralph wasn't a member of any the local tribes, he was considered an outsider.
Eventually, Ralph was able to connect with local Native Americans since many tribes carry similar traditions and beliefs. In 2006, Ralph was approached by the Fresno American Indian Health Project (FAIHP) to become a member of the board. Knowing first-hand how hard it is to find that community amongst tribes, Ralph applied and was accepted.
FAIHP is an organization that provides culturally-based health and wellness needs to Native American communities. "It's a welcoming community of regional natives," said Ralph. "They may not be from the local region, but they carry traditions and some of the philosophy of their tribes and their families. This is a place of support for people not on their native lands. It's about health and wellness, and I'm a huge supporter of that."
Hiding the signs
Shortly after becoming a member of FAIHP, Ralph and his family noticed that their mother was becoming more forgetful. "She hid her symptoms with jokes or arguments," said Ralph. "She would start things and not finish them like making a blanket or cooking a meal. We assumed she was just tired, or it was her age. You never think it's Alzheimer's disease."
Ralph's mother was an independent woman. She was a talented seamstress, an excellent cook and spoke several languages. She was a very strong woman who faced a lot of adversity in her life and overcame that by being herself. It is hard for Ralph and his family to watch their mother lose her independence and forget where the restroom is in a house she had been living in for years.
Difficulty with a diagnosis
Native Americans are more likely to develop Alzheimer's or other forms of dementia than White or Asian Americans. At the same time, American Indians overall have less access to healthcare and health services and are less likely to be diagnosed once they show symptoms.
According to the Alzheimer's Association 2021 Alzheimer's Disease Facts and Figures report, more than half (53%) of Native Americans believe that significant memory or cognitive losses are a normal part of aging. As many as 1 in 3 Native American Elders will develop Alzheimer's or some other form of dementia.
Eventually, Ralph took his mother to see a doctor. However, he felt like her doctors didn't want to deal with her cognitive decline or didn't have the means to diagnose her. "The doctors insisted [her memory loss] was because of diabetes and high blood pressure," said Ralph. "They wouldn't address her memory issues."
Difficulty getting care
The Facts and Figures report also states that 92% of Native Americans say that it is important for Alzheimer's and dementia care providers to understand their ethnic or racial background and experiences. However, only 49% of Native Americans say that they have access to culturally competent providers.
Ralph found that there was a lack of resources and expertise on dementia in his area, especially for the Native American community. "You have native and non-native resources," said Ralph. "You have more support in the Native world, but UCLA or Stanford [hospitals] might have more knowledge [on the disease]. There are some things that are unique to Native Americans in understanding the respect that goes with taking care of elders that may not be in Stanford systems."
Additionally, word of mouth plays a huge role in finding care in the Native American community. "Word of mouth is stronger than what is on paper," said Ralph. "If it's a bad experience, people will say, 'Why am I going to waste my time with that? I trust Auntie or Uncle with their experience, how will mine be any different.'"
Lastly, Ralph explains that Native Americans think beyond the individual. If there aren't enough resources to go around, then it's best to leave the resources for those who have a greater need. Because there are so few dementia resources in the Native American community, many families will not use them so that others, who are perceived to have a greater need, can have access to them. "We think of others first," said Ralph. "If we think others may need it more than us, we tend to stay away."
In 2017, Ralph's mother, who was now nearly 90, was diagnosed with Alzheimer's disease. Ralph and his brother became the primary caregivers for their mother at that time. "Between brothers, sisters, wives and husbands, there are eight of us in all," said Ralph. "My brother and I do the majority of care while the others help when a day task is needed, like a ride to the hospital or a cooked meal."
In addition to caring for his mother, Ralph is also a parent to his own children making him part of the sandwich generation. "Trying to manage your life and pay for everything is a challenge. A dollar only goes so far but you have to make sure your elder is taken care of. While you're tending to your parents you find your kids aren't being tended to. You have to have your head on a swivel. Frustration builds up without support and the caregiver gets drained."
Eventually, Ralph's mother was placed in an adult day care during working hours, as Ralph and all of his siblings had to work. However, in 2020, when the COVID-19 Pandemic hit, finding care for Ralph's mother became difficult. There was a lack of professional caregivers because everyone was trying to protect themselves from catching the disease.
Finding a care setting to care for their mother was also difficult because of financial reasons. The Facts and Figures report states that 61% of Native Americans say that affordability of care is a barrier. "You almost have to be without money to get assistance," said Ralph. "If you want to qualify under the State, your finances have to be under a certain level. We would have had to move the money out of my mother's name so she could get services. You have to get power of attorney in place and that costs money."
Eventually, Ralph and his brother were able to find in-home care for their mother, which she still uses to this day.
This past August, in 2022, the Alzheimer's Association and FAIHP partnered together to provide an education conference for the Native American community. Ralph was the emcee for the event. The conference focused on connecting Native Americans with support and resources on Alzheimer's and dementia.
"Caregivers need support," said Ralph. "The conference was really insightful and knowing that this organization is growing is a huge piece for any community. A lot of people don't acknowledge the disease because they don't know that's what they're facing. It's a matter of understanding the resources available."
Look for resources
In caring for his mother, Ralph has figured out ways to work with his mother to make difficult situations easier. He doesn't tell his mother what to do but instead, guides her into thinking things were her idea. "I set out towels and say, 'Hey I set out the towels like you asked me to for your shower,'" said Ralph. "I'd tell her she made a good meal and sit and eat with her even though she didn't make it. It smooths out the day."
Today, Ralph's mother doesn't know who Ralph is, but he continues to sit with her and show her old pictures. "We reflect on the past," said Ralph. "We find laughter in what we say."
Ralph encourages other caregivers to utilize all of the resources available to them. "Look inside your lodge and outside your lodge," said Ralph. "Know your landscape for support. Understand your landscape outside. On the inside you know what you need and what you need to communicate to fill any gaps. If you don't have enough firewood you have to look outside. Where do I get my wood? Where are my resources? Use those to try and close those gaps.
"Everyone wants the kind of people who are the best as far as understanding and interacting. I want to encourage Native families and all families to not feel alone. That when they hurt, to be brave beyond the sadness and stress. As a caregiver, condition yourself for a social triathlon. Stay balanced with mind, body, spirit and origin."
For more information on resources and support for Native Americans and Alzheimer's disease visit alz.org/nativeamerican. For more information on Fresno American Indian Health Project visit faihp.org.
Native American and Alzheimer's disease
10 Warning Signs
Alzheimer's resources
Tags: 10 Signs10 warning signsAlzheimerAlzheimer blogAlzheimer's AssociationAlzheimer's WalkAlzheimersAlzheimers Blogcentral valleydementiadementia blogdementia memory lossFAIHPFresnoFresno American Indian Health Projectindianmemory loss blogmoneyNative Americansigns
My journey living with Alzheimer's, finding joy
by Jennifer Tinkelenberg · Published February 7, 2020 · Last modified February 10, 2020
Sacramento Walker encourages you to know the 10 signs
by Jennifer Tinkelenberg · Published August 10, 2020 · Last modified August 11, 2020
NBC Bay Area Producers Use Emmy-Winning Moment to Shine a Spotlight on Alzheimer's
by Alzheimer's Association · Published July 6, 2016
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text:
Herbert Cook (1888 – after 1919) was an English footballer who played a handful of games in the Football League for Sheffield United. He also had spells at a number of other local teams including Doncaster Rovers and Chesterfield.

Career
Cook signed for Sheffield United in 1908 but failed to make a first team appearance until 1910.  He was a part-time player who worked at local firm Mappin & Webb and turned down the offer of a full-time contract from the club.  Instead he moved to Doncaster Rovers on part-time terms, following which he moved on to a number of local clubs. Cook did return to play for the Blades on a couple of occasions as a guest player during World War I, as well as some appearances for Watford during the same period, before joining the Royal Flying Corps for the remainder of the war.

References

1880s births
Year of death missing
Footballers from Sheffield
English footballers
Association football outside forwards
Worksop Town F.C. players
Thorpe Hesley F.C. players
Sheffield United F.C. players
Doncaster Rovers F.C. players
Chesterfield F.C. players
Mexborough Athletic F.C. players
Halifax Town A.F.C. players
English Football League players
Midland Football League players
Watford F.C. wartime guest players
Royal Flying Corps soldiers

redpajama_set_name: RedPajamaWikipedia


Recommendation adapted and integrated for the ANC guideline from the 2010 WHO publication Increasing access to health workers in remote and rural areas through improved retention: global policy recommendations (1).
Strong recommendations (abridged) on recruitment and staff retention from the above guideline include the following.
– Use targeted admission policies to enrol students with a rural background in education programmes for various health disciplines and/or establish a health-care professional school outside of major cities.
– Revise undergraduate and postgraduate curricula to include rural health topics and clinical rotations in rural areas so as to enhance the competencies of health-care professionals working in rural areas.
– Improve living conditions for health workers and their families and invest in infrastructure and services (sanitation, electricity, telecommunications, schools, etc.).
– Provide a good and safe working environment, including appropriate equipment and supplies, supportive supervision and mentoring.
– Identify and implement appropriate outreach activities to facilitate cooperation between health workers from better-served areas and those in underserved areas, and, where feasible, use tele-health to provide additional support.
– Develop and support career development programmes and provide senior posts in rural areas so that health workers can move up the career path as a result of experience, education and training, without necessarily leaving rural areas.
– Support the development of professional networks, rural health-care professional associations, rural health journals, etc., to improve the morale and status of rural providers and reduce feelings of professional isolation.
– Adopt public recognition measures such as rural health days, awards and titles at local, national and international levels to lift the profile of working in rural areas.
Should education, regulatory, financial and supportive interventions be used to improve recruitment and retention of health workers in remote and rural areas?


text:
Iran: Country Profile
Prisoners List
Fatemeh Bakhteri begins one-year jail sentence
Fatemeh Bakhteri presented herself at Tehran's Evin Prison today to begin her one-year jail sentence.
Fatemeh, who is 35 years old and known as Ilar, was informed in May that her appeal against her sentence, for "propaganda against the regime", had failed.
Last month, Article18 reported that for Ilar the prospect of a jail sentence was not as frightening as the two-year ban she has been given from all social activities following her release – meaning she will be unable to attend any group meeting of more than two people, effectively cutting her off from gathering with other Christians.
Ilar was first summoned for interrogation three years ago and threatened that she would be arrested if she continued to meet with other converts.
But she carried on attending house-church meetings as she "didn't see anything illegal in gathering with others to worship".
When she was next arrested, Ilar was ridiculed for her Christian faith and threatened. Then during her appearance before the court, the presiding judges, Hassan Babaee and Mashallah Ahmadzadeh, spent more time encouraging her to return to Islam than discussing her alleged crime.
She was asked to recant her Christian faith and told that if she did, the charges against her would be dropped.
When she refused, the judges told her to expect their verdict in a few days.
Four months later, on 18 May, she and her co-defendant, Saheb (Zaman) Fadaee, were notified that their sentences had been upheld.
Zaman is already serving a separate ten-year sentence, issued in July 2017, for forming a "house church" and "promoting Zionist Christianity". He was taken to serve that sentence in Evin Prison in July 2018, alongside his pastor, Yousef Nadarkhani, and two other members of their Rasht church – Mohammad Ali Mossabayeh and Mohammad Reza Omidi, who are also converts to Christianity.
Nine other members of the Rasht "Church of Iran" group have been arrested this year. In March, seven of them were released on bail, but two were held. Last month, five of them had their bail increased tenfold to the equivalent of $130,000, after insisting upon being defended by their own lawyer. Being unable and unprepared to pay such an amount, they were transferred to Evin Prison.
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Last edited by Kazicage
5 edition of Bel canto found in the catalog.
Cornelius L. Reid
principles and practices.
by Cornelius L. Reid
Published 1950 by Coleman-Ross in New York .
Bibliography: p. [203]-206.
LC Classifications MT820 .R36
OCLC/WorldCa 619053
A site dedicated to book lovers providing a forum to discover and share commentary about the books and authors they enjoy. Author interviews, book reviews and lively book commentary are found here. Content includes books from bestselling, midlist and debut authors. Bel Canto Summary. Get stuck in a hostage situation, discover a whole new world. Metaphorically, anyway. In a way, that's the plot of Bel Canto.. The book starts when the lights go out during a fantastic house party performance by the fictional opera superstar Roxane Coss.
Mary Saunders Barton is a Penn State University Professor Emeritus, currently residing in New York, where she maintains a musical theatre voice studio for professional performers. Explore this site to learn about upcoming workshops, masterclasses, recent publications, and educational material for sale. Jun 27, · Download FileRead our review and download Bel Canto PDF at the end. Bel Canto Review: There are a lot of novels and a lot of romance novels as well. Some of the novels are good and some of them are really good and worth reading for sure. The one we are talking about is one [ ].
Bel Canto brings us to a country in South America, although I think it is a fictional one, where they are throwing a party for a japanese businessman. All the partygoers are then taken as hostages, by a political group wanting to free a man who is in prison. From the minute they get there, their plans were foiled.4/4(K). The old adage "Wherever you go, there you are" is perhaps the most fully realized in Ann Patchett's latest novel, BEL CANTO. When a group of international business and political hotshots gather together to pay homage to a big cheese with serious money (which he may or may not offer to help the failing economy of the small Latin country that is hosting this event), they not only get the.
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Bel canto by Cornelius L. Reid Download PDF EPUB FB2
May 22, · Bel Canto is the second book I've read by Ann Patchett. Commonwealth was the first and I loved it. I'd been wanting to read Bel Canto for a long time. I liked some of the book but there were parts of it that really seemed to drag on and I had no problem setting it aside at intervals.
I felt like the action came very. late in the story/5. 'Bel Canto', the title of this novel, means 'beautiful singing' and this book truly sings. It is a lovely story packed with magical realism and focuses on a botched kidnapping in a third world fixdemocracynow.com by: 2.
Book Review: Bel Canto by Ann Patchett In Bel Canto, Patchett seamlessly combines action, romance and a high level Bel canto book maturity to produce an amazing fictional novel that truly deserves winning the PEN/Faulkner award and Orange Prize for Fiction.
It is Patchett's best work and one that. A short summary of Ann Patchett's Bel Canto. This free synopsis covers all the crucial plot points of Bel fixdemocracynow.com by: 2.
Jul 13, · Bel Canto Ann Patchett pp, Fourth Estate, £ Transfixed by the hijack of the Japanese embassy in Lima five years ago, Ann Patchett decided that it lacked one thing. Jan 08, · Bel Canto (Harper Perennial Modern Classics) - Kindle edition by Ann Patchett. Download it once and read it on your Kindle device, PC, phones or tablets.
Use features like bookmarks, note taking Bel canto book highlighting while reading Bel Canto (Harper Perennial Modern Classics)/5(K).
Read a Plot Overview of the entire book or a chapter by chapter Summary and Analysis. See a complete list of the characters in Bel Canto and in-depth analyses of Hosokawa, Roxanne Coss, and Gen Watanabe.
Find the quotes you need to support your essay, or. Sep 04, · Bel Canto was a book assigned to me in a college English class focused on novels.
This was the most traditional novel in the course yet the story was one of the most original. Bel Canto is a love story on every level.
The plot revolves around a group of /5. Bel Canto is a story about a group of people from various parts of the world who come to a developing country in South America and attend a function to hear Roxane Coss sing and encourage a businessman to invest in that country.
Bel canto (Italian for "beautiful singing" or "beautiful song", pronounced [ˌbɛl ˈkanto])—with several similar constructions (bellezze del canto, bell'arte del canto)—is a term with several meanings that relate to Italian singing.
The phrase was not associated with a "school" of singing until the middle of the 19th century, when writers in the early s used it nostalgically to. Apr 01, · "Bel Canto" is a beautifully written story of unlikely love and secret desires. Do not be put off by the barebones plot--a group of people at a party taken hostage by South American terrorists.
And do not think you are in for a routine "put a bunch of strangers in a Cited by: 2. Bel Canto is a book that I volleyed in and out of my wish list for years. The premise seemed compelling: terrorists guerillas storm the home of a Latin American vice president while he is entertaining international dignitaries, including the beautiful opera diva Roxanne Coss and Japanese businessman Katsumi Hosokawa.
During the following 4. Book Review: Bel Canto by Ann Patchett. Posted in Contemporary Literature, Fiction by mmelland. A dinner party in the capital city of a South American country takes an unfortunate turn when guerrillas storm the Vice President's mansion and take everyone hostage. Bel Canto explores what happens when these captors and captives spend months.
Free download or read online Bel Canto pdf (ePUB) book. The first edition of the novel was published inand was written by Ann Patchett.
The main characters of this fiction, contemporary story are Katsumi Hosokawa, Roxane Coss. The book has been awarded with Orange /5. Jun 02, · An FBI agent is determined to catch a man who bilks and murders wealthy women, but the chase goes slowly.
Brown (Tailspin,etc.) has published 70 bestsellers, and this one employs her usual template of thriller spiked with fixdemocracynow.com main character, Drex Easton, is an FBI agent in pursuit of a serial killer, but for him it's personal.
Sep 13, · Directed by Paul Weitz. With Julianne Moore, Ken Watanabe, Sebastian Koch, Ryô Kase. A world-renowned opera singer becomes trapped in a hostage situation when she's invited to perform for a wealthy industrialist in South America/10(K).
Bel Canto, Sydney, Australia. 15K likes. Bel canto celebrates the joy of singing and the beauty of the human voice in fixdemocracynow.comers: 16K. Open Tuesday - Sunday from 11AM to 7PM, Bel Canto Books at The Hangout will offer a curated selection of fiction, nonfiction, young adult and children's books, along with event space for author talks, book readings, book club meetings, workshops and so much more.
May 22, · "Bel Canto should be on the list of every literate music lover. The story is riveting, the participants breathe and feel and are alive, and throughout this elegantly-told novel, music pours forth so splendidly that the reader hears it and is overwhelmed by its beauty." —Lloyd Moss, WXQR.
Reading guide for Bel Canto by Ann Patchett - discussion guide for book clubs. Mar 12, · Bel Canto is my first experience reading Ann Patchett's work. And I adored it. She takes two groups of people and tosses them together like salad ingredients. The dressing is music, for it is the thread that winds its way through every page of the book.
The musical term bel canto is a style of multipart opera and Italian courtly solo singing.At its core, this book is about the way art can transform circumstances. For the characters in Bel Canto, opera is what transforms a hostage crisis from a terrifying and awful experience into a gateway to exploring new experiences and perspectives.
The characters in the book are forced into new emotional territory by their circumstances, and in.Sep 13, · "Bel Canto" is a movie holding its breath. At least, that's how it feels for much of its running time, as its multinational characters wander sedately around an ornate mansion (played by a.
fixdemocracynow.com - Bel canto book © 2020


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Home - Artworks - Paintings
The Angelus by Jean-François Millet – Top 8 Facts
By: Author Trace Bradley
Posted on Last updated: September 29, 2022
When this French artist moved from Paris to the countryside just south of Paris, he became the founding father of a group of artists now known as the Barbizon School.
Jean-François Millet (1814-1875) produced some of the most iconic Realism paintings during the 1850s, mainly focusing on peasants and their hard life in the field.
In this article, we'll take a closer look at some of the most interesting facts about The Angelus by Millet, an important painting by the artist for multiple reasons.
1. It was complete shortly after Millet finished his best-recognized work
2. It depicts two peasants conducting the Angelus in a field near Barbizon
3. The true relationship between the two figures remains a mystery
4. Salvador Dalí identified the painting as a funeral scene
5. It was commissioned by an American who never collected it
6. It became one of the most reproduced religious paintings of the 19th century
7. How big is The Angelus by Jean-François Millet?
8. Where is the painting located today?
The Angelus is a famous painting by French Realism artist Jean-François Millet. He was the founding father of the Barbizon School of painting after he moved there in 1849.
He grew up in the Normandy Region of France and was accustomed to hard labor in the field. He never lost touch with his roots so to speak, even though he lived in Paris for extended periods.
Struggling to find his true identity as an artist and after a failed attempt to get his work exhibited at the Paris Salon, he decided to start drawing inspiration from real life.
Peasants in the area of Barbizon became his main source of inspiration during the 1850s, culminating in his most important work titled "The Gleaners" (1857).
He completed this painting between 1857 and 1859, and shortly after he managed to sell his epic work for a handsome amount at the Paris Salon of 1857.
Jean-François Millet in the 1850s / Wiki Commons
The Angelus is a type of prayer in which Catholics commemorate the Incarnation of Christ. The painting depicts two peasants on a field who are saying this prayer.
The prayer's name is derived from the first few words of it in Latin "Angelus Domini nuntiavit Mariæ." This means "The Angel of the Lord declared unto Mary."
Millet said that he was inspired by his grandmother saying this prayer while the church bells rang while she was working in the field.
The church in the background is a reference to this. This is the church tower of Chailly-en-Bière, a small rural town just north of Barbizon
This is situated in the Seine-et-Marne department just south of Paris at the western edge of the huge Forêt de Fontainebleau.
Full view of the painting / Wiki Commons
The evening appears to be approaching which means that it's likely that the two peasants are saying their prayer at the end of the day's work.
We can see a pitchfork, a basket of potatoes, and a cart. We don't know who these peasants are and various suggestions about their relationship have been made.
Some of these suggestions are:
Colleagues at work.
A married couple.
A farmer and his maidservant (the common interpretation in the 19th century).
Detail of the two praying peasants / Wiki Commons
The Spanish artist Salvador Dalí (1904-1989) once saw a replica of the painting in his school as a child and was freaked out.
He didn't interpret the wok as merely two peasants saying a prayer to honor the people who had passed but saw the scene as a burial.
Never shy to speak his mind, the Surrealist artist even took it a step further and concluded that it was a married couple who was mourning their dead infant child.
Although nobody took Dalí's interpretation seriously, an x-ray conducted at the Louvre Museum confirmed that Millet overpainted a shape that resembled a coffin.
The conclusion was that Millet most probably started this work as a burial similar to Gustave Courbet's painting titled "A Burial at Ornans" (1850) but changed his mind later on.
Detail of A Burial at Ornans by Gustave Courbet / Wiki Commons
what's remarkable about this painting is that it was commissioned by an American artist and art collector from Boston named Thomas Gold Appleton (1812-1884).
Although Appleton never really managed to carve out a career as an artist himself, he was the son of a rich merchant which allowed him to become a patron of the arts.
The original title of the work was "Prayer for the Potato Crop" but when Appleton failed to collect his commissioned work, Millet changed the title to "The Angelus."
This also means that he only added the church in the distance at a later time to complement the new title.
Thomas Gold Appleton / Wiki Commons
Equally fascinating is that the painting was initially considered to be a work that featured a political statement.
Just like Courbet, Millet was classified as a socialist by the establishment in France who was a little too sympathetic to the working class.
It was only after this initial storm of criticism settled that Millet's masterpiece was considered to be an expression of religious devotion.
It eventually became one of the most reproduced works of art of the 19th century and prints could be found in countless households in France.
Etching of the painting by Millet / Wiki Commons
This painting is a relatively small work of art as it's only just over half the size of Millet's famous The Gleaners. This was also why he only managed to sell it for 1,000 francs.
The Angelus by Jean-François Millet is an oil on canvas painting that has dimensions of 55.5 × 66 centimeters (21.9 x 26 inches).
The painting at the Palais des Beaux-Arts de Lille / PBA LIlle / Wiki Commons
The painting switched hands multiple times after it was initially sold for 1,000 francs in 1860 to a Belgian artist named Victor de Papeleu.
The first time that the painting was exhibited was in Brussels in the year 1874. This increased the value tremendously as it was sold for 168,000 francs in 1881 to a French copper industrialist.
The Louvre tried to buy it in 1889 but was outbid by the American Art Association which paid 553,000 francs for the work.
A good investment because just a year later, they sold it to the French art collector Hippolyte François Alfred Chauchard (1821–1909) for 750,000 francs.
It was eventually bequeathed to the French state and after being on display at the Louvre between 1910 and 1986, it was transferred to the Musée d'Orsay in Paris in 1986.
The Musée d'Orsay in Paris / Wiki Commons
ArtworksJean-François MilletJean-François Millet paintingspaintingsRealismRealism paintings
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Geo-economics
Hyperconnectivity
What's gone wrong with democracy?
Jorge Soto Director, CitiVox
Since the global economy crashed in 2008, there has been an erosion of trust in political institutions and processes. Citizens now place more faith in companies than in their own leaders, and even then they don't particularly trust the private sector, with the latest Edelman Trust Barometer showing global trust in business at 58% while trust in government has sunk to 44%. As a Global Shaper of the World Economic Forum, this is an issue that resonates with those of my demographic: the world's youth.
In the last two years, citizen protest has dominated the headlines in many countries around the globe. Greece and Spain have seen unrest in the aftermath of the Eurozone crisis. Ukrainians occupied central Kiev. Few nations from North Africa to the Middle East remain unaffected by the fallout from the Arab Spring, as citizens of the digital age grow ever more confident to mobilize in the face of a democratic deficit. Hong Kong is the latest place to experience large-scale protest. Indeed, the Survey on the Global Agenda showed that in Latin America, the region I'm from, this trend has a much greater significance than in any other region. This was exemplified in Brazil, which in summer 2014 saw upheaval as people protested against income disparity and public spending on the World Cup and 2016 Olympic Games.
The mechanisms are in place for systems to be more democratic than they have ever been, yet there is a fundamental disconnect between citizens around the world and the elected officials that supposedly represent them. Thanks to the internet, the public can identify people with the same values and fears, exchange ideas, and build relationships faster than ever before. Our governments are simply not part of that conversation: we have 19th century institutions with 20th century mindsets, attempting to communicate with 21st century citizens. Our governments are elected, dissolved and re-elected only to pursue short-term agendas, yet the cycles that innovate and build trust with voters require long-term investment. It's little wonder that people see the system as broken.
I think it's clear that the old way of doing politics will definitely change, yet representative democracy itself will not – nor should it. As powerful as the online world may be, a social media-like structure for democracy, where everybody shares and discusses their opinions at once, would simply lead to anarchy.
Instead, representative democracy needs to modernise itself and actively involve citizens in decision-making processes. Rather than seeing themselves as 'pure' problem solvers, governments should position themselves as the bodies that articulate the issues faced by society, and then strive to create the right environment for private enterprise and academia to find the solutions, providing the necessary data, policies and funding to support these stakeholders. If our elected representatives were to do this, they would restore the public trust and challenge the sense that little of consequence has actually changed in that time.
As a starting point, our governments must treat people as individuals and communicate with them through the most appropriate means. Social media is not a panacea for this and, when used by traditional institutions such as the state, there tends to be a disparity between the messages that are circulated and events that are actually occurring at a local level. Even so, technology has the potential to ensure people feel truly represented. All sorts of democratic processes can be enhanced with technology: voting online, e-petitions, and surveys via smartphones are just three examples.
Above all else, our leaders must use technology – and their broader expertise – to really understand their citizens' incentives, fears and motivations, and then communicate clearly how considered policies will address these factors. When governments stop being the centre of everything, and the people perceive that they have become the problem solvers, that is when things will change. What we are seeing is not the death of democracy; rather, representative democracy must adapt to our times.
The Outlook on the Global Agenda 2015 report is now live.
Author: Jorge Soto is Director of CitiVox.
Image: A member of the European Parliament votes during a voting session at the European Parliament in Strasbourg December 17, 2008. REUTERS/Vincent Kessler
Jorge Soto, Director, CitiVox
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Talking to Carson Klosterman, one would never guess that farmers in the upper Midwest are heading into their fourth straight year of slumping commodity prices.
Klosterman, who just turned 30, is upbeat as he talks about the corn, soybeans and sugar beets he grows in Wyndmere on land that's been in his family since 1918.
This attitude comes from a recent rally that's allowed Klosterman to move some of his harvest from last year onto the market.