Prog-funk group Earphunk hosted a sold out performance at Atlanta’s Terminal West last night, September 12th. The show was filled with high energy, incredible improvisation, and a super jam to remember supported by an unexpected sensation, The Main Squeeze.Opening with a dark rendition of “Imperial March”, Earphunk seamlessly transitioned into a four song improvisational joy ride of phunk-tastic tunage. Following that up with a filthy cover of Billy Idol’s “White Wedding”, Earphunk displayed their versatility by segueing into the title track of their most recent studio album, Sweet Nasty. Earphunk came to play for keeps at Terminal West cementing stellar performance with a phunkified “Cantina Band” ditty and super jam with members from The Main Squeeze. Joining on stage was Ben “Smiley” Silverstein (keyboards) and Max Newman (guitar). This jam easily eclipsed the 10 minute mark while Newman and Earphunk guitarist, Paul Provosty, went toe-to-toe for a dueling guitar match of the century.From first note to the last sound fading away Earphunk put on a great one for the ATLiens in attendance. They’re showing a constant hunger, exploring the depth of improve that phunk phans crave. An impressive band night after night.Check out the full gallery of photos below, courtesy of Benjamin Adams PhotographySetlist: Earphunk at Terminal West, Atlanta, GA – 09/12/15Set One: Imperial March > Drove > Recoil > Laura, White Wedding > Sweet Nasty > Saura, (Cantina Band), Phine > Get Down 9—5 (Super Jam), MoshimoE: Omega, Species Load remaining images
DAYTONA BEACH – The caution is out. Nominations for The NASCAR’s Foundation 2018 Betty Jane France Humanitarian Award will close on Friday, March 23, at midnight.The award honors the philanthropic ideals and vision of the late Betty Jane France, who started the foundation in 2006. The award is annually presented to a NASCAR fan who embodies those ideals through service in their community to help improve the health and wellbeing of children. This is the eighth year for the award; the winner will be decided through an online fan vote this fall.RELATED: Nominate someone todayThe Betty Jane France Humanitarian Award has produced nearly $1.23 million in donations to charities represented by each year’s four finalists. This year’s finalists for the award will be guaranteed a minimum $25,000 donation toward their efforts, with the winner receiving a $100,000 donation from The NASCAR Foundation to the children’s charity they represent.“We have received some outstanding nominations, but we want to be sure our fans know there is still time to nominate,” said The NASCAR Foundation Executive Director Nichole Krieger. “Already, it looks like we are going to have a tough job deciding who our four finalists will be, but that’s a great ‘problem’ to have.MORE: Catch up on Speediatrics Fun Day“The quality of nominees and their accomplishments each and every year is inspiring. There is so much good work being by NASCAR fans on behalf of children. We are proud to have a chance to honor some of those people doing that work.”To submit a nomination for the 2018 Betty Jane France Humanitarian Award, go to NASCAR.com/Award.
Blue Note New York has announced a new virtual concert series initiative that will feature live performances (without fans in attendance) streamed in real-time from the stage of the famed New York City jazz club.Branded as, Blue Note Streaming Live, the new series will debut this weekend with a performance from trumpet player Maurice “Mobetta” Brown and his backing band faturing Chelsea Baratz, James Francies, Joe Blaxx, Parker McAllister, and Nir Felder on Friday, July 24th at 8 p.m. ET. Fans will be able to watch and listen to the performance taking place inside the empty venue for an affordable fee of just $10 per show. Fans who would like to purchase a ticket but can’t tune in to the Friday night webcast will be able to watch the re-stream on Saturday, July 25th at 2 p.m. ET.Blue Note executives are hoping that this new series provides the struggling venue with simply any form of long-term financial sustainability, as there is currently no clear return date for traditional indoor concerts in New York City on the horizon.Related: Live Nation UK, MelodyVR Announce ‘Live From O2 Academy Brixton’ Virtual Reality Concert Series“I don’t anticipate opening Blue Note New York anytime soon. In the meantime, we are going to present live shows from the Blue Note’s stage to our international audience using the streaming format,” Steven Bensusan, President of Blue Note Entertainment Group added in a press statement with last week’s announcement. “The quality of the livestream experience is important to us, both in audio and video production and we will be working with a professional team using a multi-camera set-up to produce the series. We hope jazz music fans around the world will support our efforts to continue presenting the high quality, live music experiences that the Blue Note is known for.”Click here for more info on the first episode of Blue Note’s new virtual performance series.
A CDC study released today compares motor vehicle crash death rates in the fifty most populous areas of the country with overall national rates. Read the Report: Motor Vehicle Crash Deaths in U.S. Metropolitan Areas – 2009Researchers analyzed 2009 data from the National Vital Statistics System and the U.S. Census Bureau and calculated rates for two groups – people of all ages, and young people 15 to 24 years old. They looked at 15-24 year olds separately because motor vehicle crashes are the leading cause of death for this age group.Some key findings:The motor vehicle crash death rate for all ages in the 50 MSAs was 8.2 deaths per 100,000 residents, lower than the national rate of 11.1 deaths per 100,000 residents. The motor vehicle crash death rate for 15-24 year olds in the 50 MSAs was 13.0 deaths per 100,000 residents, lower than the national rate of 17.3 deaths per 100,000 residents.Motor vehicle crash death rates in the 50 most populous U.S. metropolitan statistical areas varied widely, from 4.4 to 17.8 per 100,000 residents.
The Soldier Support Institute, on the corner of Hampton Parkway and Lee Road, has the mission to train, educate and grow professional human resource and financial management leaders.The institute also develops complementary concepts, doctrine, organizations and materiel in order to strengthen the U.S. Army to win in complex environments.The institute is a premier training and education center dedicated to:• Preparing Soldiers for their first assignment as human resources or financial management specialists within the Army.• The continual professional development of Soldiers, commissioned and noncommissioned officers, and civilians in the core competencies of human resources and financial management.The institute is an accredited Institute of Excellence and is a subordinate organization of TRADOC, Combined Arms Support Command and the Sustainment Center of Excellence (headquartered at Fort Lee, Virginia). The institute is fully integrated into the sustainment war-fighting function. The institute is the headquarters for the Army’s Adjutant General School and Financial Management School, the Fort Jackson Noncommissioned Officer Academy and the 369th Adjutant General Battalion.SCHOOLSThe adjutant general and financial management schools are “home” to their respective Army branches, the Adjutant General Corps and the Finance Corps. The two branch schools offer the Basic Officer Leadership Course for newly commissioned lieutenants and the Captains Career Course for officers in their third or fourth year of commissioned service. The school commandants are the proponents for their branches and oversee the development of doctrine, organizations, training, leader development, material and personnel within their corps (active and reserve components). The Soldier Support Institute’s Concepts Development & Integration Directorate and Training Development Directorate assist the commandants with these tasks. Both schools frequently assemble mobile training teams to go to specific geographical regions to train Soldiers.The Adjutant General School also includes the Army Bands Program and Army School of Music, currently located at Little Creek, Virginia. The Interservice Postal School, also an element of the Adjutant General School, trains enlisted Soldiers and NCOs from all of America’s military services in modern postal operations. The Adjutant General School also conducts basic warrant officer and advanced warrant officer courses within human resources management.The Noncommissioned Officer Academy is in Building 10,000. The academy provides enlisted leadership training for Soldiers holding human resource management, financial management or recruiting and retention military occupational specialties in the Army.369TH ADJUTANT GENERAL BATTALIONThe 369th Adjutant General Battalion is a subordinate command under the U.S. Army Soldier Support Institute at Fort Jackson. It is headquartered at Anderson Street and Magruder Avenue. The location of the AIT complex ranges from Sumter Avenue to Magruder Avenue and Long Street to Ferguson Street.The 369th Adjutant General Battalion and conducts AIT for the adjutant general and financial management courses. It conducts AIT for enlisted Soldiers striving to achieve technical and tactical competence in the personnel, administration, finance and legal MOSs.Soldiers of the 369th Adjutant General Battalion trace their unit’s lineage back to the Pacific Theater of Operations during World War II. Activated as the 74th Replacement Battalion in November 1943 at Schofield Barracks, Hawaii, the unit comprised a headquarters, headquarters detachment and four replacement companies.Processing replacements and casualties, the 74th supported combat divisions during the Army’s island-hopping campaigns in the South Pacific. For its support of 10th Army operations during the invasions of the Ryukyu Islands and Okinawa, the 74th was awarded the Meritorious Unit Commendation with battle streamer. After the cessation of hostilities, the 74th was inactivated in March 1946. In June 1947, the unit was redesignated as the 369th Replacement Battalion, Organized Reserve Corps, and assigned to the Third Army.In July 1947, the 369th was activated at Fort Jackson and remained in that status until June 1950, when it was inactivated again. On May 30, 1987, the unit was reactivated as the 369th Adjutant General Battalion.
GlobalFoundries,On Thursday, June 5, IBM specialists will deliver a disaster preparedness workshop to Vermont FoodBank members from flood-prone communities to ensure that organizations caring for some of the state’s most vulnerable people have strategies in place before the next disaster strikes. The outcome will be plans that outline how several organizations providing food for Vermont residents can maintain its mission during periods of extreme emergency. This workshop is the last in a series of six sessions provided by IBM in partnership with the Vermont Council on Rural Development (VCRD) to help support the state’s recovery from Tropical Storm Irene.”At each session over the past year, IBM has helped us focus on building resiliency – not only through improved disaster preparedness, but also through the increased use of digital tools to disseminate information, mobilize community volunteers, and attract donations, ” said Sharon Combes-Farr, VCRD’s Vermont Digital Economy Project Director. “IBM’s commitment of $150,000 in Impact Grants provided a significant share of the matching funds for the federal Economic Development Administration disaster relief grant that funded this important VCRD project.”When Tropical Storm Irene tore through the state in 2011, all Vermonters suffered, and those depending on food banks and other services of the social safety net were among the hardest hit. As a result of the disaster preparedness workshops that IBM has conducted, service providers from many vital segments of Vermont’s nonprofit spectrum are now able to visualize their missions more clearly and have developed effective strategies and tactics to help ensure continuity of service during future times of crisis, Combes-Farr continued.”More and more, today’s nonprofits must be technologically savvy in leveraging digital tools – both for operational resilience and also to maximize their message reach, extend their mission, do more good work with less, and raise funds, ,” she said. “This is why the Vermont Digital Economy Project was delighted when IBM made their expert consultants available to us in these important areas.”According to Cathleen Finn, IBM Corporate Citizenship and Corporate Affairs Manager for New England, IBM Impact Grants provide consulting expertise specifically designed for nonprofit organizations so they can better serve their communities.”IBM wanted to help Vermont in the aftermath of Tropical Storm Irene. When we became aware of the Vermont Digital Economy Project, we came to the conclusion that providing IBM experts to conduct in-depth analysis and workshops on a number of topics related to disaster preparedness would help many of the state’s most essential nonprofits build effective strategies ahead of the next disaster,” Finn said. “We have been extremely impressed by how committed Vermont’s organizations are in adopting new ways to carry out their missions and better serve the people who depend on them.”Last year, IBM consultants delivered a workshop on disaster preparedness to executives of the Vermont FoodBank, who share responsibility for distributing food to its network of 270 food shelves throughout the state. A similar workshop was held for the 26 members of the Vermont Access Network, who work on the front lines of communication as highly localized media outlets. Though both organizations are very different, both shared the same starting point when preparing a disaster plan.”The IBM consultants explained that the first step for both organizations during times of disaster is to uphold their missions,” Combes-Farr said. “Knowing the most important thing you do helps to guide exactly what you must do in an emergency and what you must protect from risk.”In addition, the portfolio of grants also included a “Strategies for Social Media” workshop hosted by the Vermont Division of Emergency Management and Homeland Security for the state’s emergency managers and their extended nonprofit partners. The end result was a roadmap designed by the IBM consultants which will enable these disparate groups to leverage grassroots volunteers by communicating more seamlessly during times of disaster. A Strategies for Social Media grant was also delivered to the directors of 10 public libraries across the state, and a Web User Experience workshop was given to help Vermont 211 create a strong, more user-friendly website to meet the needs of people who access their website for information about healthcare, childcare, emergency food and shelter, and more.On Thursday, the IBM Impact Grants will wrap up with the final workshop for about a dozen member organizations of the Vermont FoodBank network from across the state.“Everyone at VCRD and our partner organizations is extremely proud of the work we are doing in Vermont’s flood-impacted communities and throughout the state,” said Combes-Farr. “Without the Impact Grant donations by IBM, much of this great work would not have been possible.”About The Vermont Digital Economy ProjectThe Vermont Digital Economy Project was created by the Vermont Council on Rural Development (VCRD) to address vulnerabilities of Vermont business and communities that are not fully utilizing online tools. The project offers free support to speed flood recovery, spur economic development and job growth, and improve community resilience to disasters. The project is working directly with more than 40 of the towns that were affected by flooding to help businesses, nonprofits, and municipalities expand their innovative use of online tools. It is funded by a disaster recovery grant from the Economic Development Administration and from the donations and expertise of its partners (IBM, Microsoft, the Snelling Center for Government, the Vermont Department of Libraries, the Vermont Small Business Development Center, and the Vermont State Colleges) to provide grant services. More information can be found online at: http://vtdigitaleconomy.org/(link is external).
Rep. Stephanie Clayton says “Kansas has yet to achieve complete stability. Tremendous damage was done in the past several years, and that which has been torn takes time to mend.”Each legislative session, we provide the Shawnee Mission area’s elected officials with the chance to share their thoughts about what’s happening in the state capitol. We’re kicking off this year’s Capitol Update columns a week ahead of the start of the legislative session. Rep. Stephanie Clayton, Rep. Jarrod Ousley and Sen. Barbara Bollier are scheduled to send updates this week. Here’s Rep. Clayton’s filing:Good morning. A week from today, the 2019 Kansas Legislative Session will begin. As is always the case, the first week of the legislative session will start slowly. Monday will begin with the inauguration of the new Governor, Laura Kelly, followed by the swearing-in of the new legislators in the House, as well as a handful of new Senators. Legislators will have their first committee meetings, where committee rules, goals, and expectations will be laid out by the committee chairs. Some changes to committee structure in the House have taken place, most notably the elimination of the water and environment and technology committees, and the creation of a new Rural Revitalization committee. This term, I am pleased to continue my work on the Federal and State Affairs Committee, and to serve on two new committees: Education, and Taxation. The Governor will also present her budget to the legislature. This budget will be used as a baseline for legislators to approve, and, if necessary, amend. Past Johnson County legislator Larry Campbell has been retained as budget director by the Governor-elect; this bipartisan approach bodes well for our state, and I hope to see more positive appointments to the executive team as the legislative session progresses. The legislature has the opportunity to continue along the course of stability that was solidified with the partial repeal of the Brownback tax plan in 2017. The new plan that was put into place allowed the legislature to develop and fund a school finance plan that, with a few very minor changes, will finally put the state in compliance with our constitution after nearly a decade of chaos. Kansas has yet to achieve complete stability. Tremendous damage was done in the past several years, and that which has been torn takes time to mend. The legislature needs to establish an impenetrable funding source for transportation. Waiting lists for services for our most vulnerable citizens need to be reduced, or eliminated entirely. Legislators across all parties and factions campaigned on reducing or eliminating the sales tax on groceries, as our grocery tax burden is among the highest in the nation.The people of Kansas made it clear that they support a strong school funding system, a fully funded transportation plan, safety net programs that care for our most vulnerable Kansans, a Medicaid program that allows for hardworking Kansans to seek preventative care, and tax relief that is beneficial to all Kansans, regardless of income. I look forward to working with my colleagues and our new governor to bring these wishes of Kansans to fruition. I work for you! I enjoy hearing questions, thoughts, and ideas from constituents. For real-time updates from the House Floor, including all of the votes that I take, follow me on Twitter @sscjocoks. Find me on Facebook, or email me at email@example.com. My first town hall of the session will be at Foo’s Café in Leawood at 10 a.m. on Saturday, Jan. 26.
Share Pinterest LinkedIn Share on Facebook Email Early adolescent girls lose friends for having sex and gain friends for “making out,” while their male peers lose friends for “making out” and gain friends for having sex, finds a new study that will be presented at the 110th Annual Meeting of the American Sociological Association (ASA).“In our sample of early adolescents, girls’ friendship networks shrink significantly after they have sex, whereas boys’ friendship networks expand significantly,” said Derek A. Kreager, the lead author of the study and an associate professor of sociology and criminology at Pennsylvania State University. “But what really surprised us was that ‘making out’ showed a pattern consistent with a strong reverse sexual double standard, such that girls who ‘make out’ without having sex see significant increases in friendships, and boys who engage in the same behavior see significant decreases in friendships.”The study relies on data from the PROmoting School-community-university Partnerships to Enhance Resilience (PROSPER) longitudinal study, which tracked two cohorts of youth from 28 rural communities in Iowa and Pennsylvania from 2003 to 2007 when they were in sixth to ninth grade and 11 to 16-years-old. Students were surveyed in five waves: in the Fall of sixth grade and in the Spring of sixth, seventh, eighth, and ninth grades. Kreager’s study focuses on 921 students in the second PROSPER cohort who completed in-home surveys that included measures of sexual behavior. Share on Twitter As part of the PROSPER study, students were asked to nominate their best or closest friends in the same grade. In order to identify changes in peer acceptance, Kreager and his colleagues considered how many friendship nominations participants received in each wave.According to Kreager, in waves where they reported having sex, on average, girls experienced a 45 percent decrease in peer acceptance and boys experienced an 88 percent increase. On the other hand, in waves where they reported “making out” without having sex, on average, girls experienced a 25 percent increase in peer acceptance, while boys experienced a 29 percent decrease in peer acceptance.“Our results are consistent with traditional gender scripts,” said Kreager. “Men and boys are expected to act on innate or strong sex drives to initiate heterosexual contacts for the purpose of sex rather than romance and pursue multiple sexual partnerships. In contrast, women and girls are expected to desire romance over sex, value monogamy, and ‘gatekeep’ male sexual advances within committed relationships. A sexual double standard then arises because women and girls who violate traditional sexual scripts and have casual and/or multiple sexual partnerships are socially stigmatized, whereas men and boys performing similar behaviors are rewarded for achieving masculine ideals.”Kreager found that girls, who defy traditional gender scripts by having sex, lose both male and female friendships. In contrast, boys who defy gender scripts by “making out” without having sex mainly lose male friends.“This pattern suggests that other boys are the peers that police social norms when it comes to masculinity, whereas girls receive strong messages about gender-appropriate sexual behavior from boys and girls,” Kreager explained. “It is not surprising that girls do not punish boys for ‘making out,’ as this behavior is rewarding for girls both socially and physically. However, there is somewhat of a paradox for boys stigmatizing girls who have sex because these boys are punishing girls for behavior that benefits boys both socially and sexually. We believe one reason for this is that only a small minority of boys have such sexual access, so those who do not have sex negatively define the girls who are having sex.”While recent research that shows men and women are held to different standards of sexual conduct largely focuses on college “hook-up culture,” by studying early adolescents, Kreager was able to show that sexual double standards also affect youth who have only just reached sexual maturity.“During early adolescence, peer evaluations of initial sexual behaviors and virginity loss are likely to have large and lasting impacts on later sexual adjustment,” Kreager noted.
IntroductionThe introduction of a new statutory procedure for bringing a derivative claim under the 2006 act immediately generated substantial speculation. Permitting a derivative claim to proceed was no longer to be confined to the application of the rule in Foss v Harbottle  2 Hare 461 and its exceptions. Both academic and professional commentators were quick to point to the wider ambit of the derivative claim and consequently to speculate that the new legislation would facilitate a rise in the number of such actions, or at least an enhanced prospect of launching a derivative claim. An assortment of other reasons were also put forward; hasty conclusions drawn. For example, certain analyses pointed to the twin effect of a new statutory statement of directors’ duties instituted by part 10 of the 2006 act and the new procedure contained in part 11. In so doing, they echoed concerns expressed during the bill’s passage through the House of Lords that this combination would lead to ‘a double whammy’ for litigants (679 HL Official Report (5th Series) col GC2 (27 February 2006)). Such prophecies have not (or not yet) been borne out by events. Certainly the statutory procedure will alert interested parties to the existence of the provision. The ambit of the derivative claim is also now wider than at common law; it covers any cause of action falling within the four categories of ‘wrongs’ listed in section 260(3) of the 2006 act. And the limiting requirements of fraud on the minority and control by alleged wrongdoers no longer operate (cf Prudential Assurance Co Ltd v Newman Industries Ltd (No 2)  Ch 204). However, part 11 came into effect on 1 October 2007. The past 18 months have seen only two reported decisions in which permission to continue a derivative claim under the new regime has been the subject of determination; in neither case has the court acceded to the application. In a third case, Fanmailuk.com Ltd v Cooper and others  BCC 877, an application for permission to continue a derivative claim was adjourned for consideration, if necessary, after the trial of a preliminary issue. There is thus not yet reason to suggest that the position under the previous regime – whereby derivative claims were seldom brought and those which were brought were seldom successful – will be modified. Certainly both Mission Capital Plc and Franbar Holdings Ltd were concerned with an analysis of the facts at issue. The very nature of the substantive criteria according to which the court will now determine whether a derivative claim may proceed, as prescribed by section 263 of the 2006 act, means that each case will, on analysis, invariably concern questions of fact individual to that case. That notwithstanding, these two recent cases call for comment as they provide an (and the first) insight for putative litigant shareholders of a company as to how the courts will approach the new legislation. In particular, the cases are instructive in indicating the courts’ application thus far of the ‘hypothetical’ director test. Franbar Holdings Ltd was decided on 2 July 2008. The applicant company (Franbar) was a minority shareholder in Medicentres (UK) Ltd. Franbar sought permission to continue a derivative claim against the directors of Medicentres (the Respondents), on behalf of that company. Franbar claimed negligence, default and various breaches of duty of care owed by the respondents to Medicentres. The same substantive allegations founded a claim against the majority shareholder in Medicentres (Casualty Plus Ltd) for breach of a shareholders’ agreement it had entered into with Franbar and an unfair prejudice petition under section 994 against the respondents and Casualty Plus. First applying the hypothetical director test in section 263(2)(a), William Trower QC, sitting as a deputy judge of the High Court, summarised the different stances which could be adopted by the hypothetical director (at ). The discussion then focused on whether there were circumstances which, if made out at trial, may give rise to a cause of action. The case was judged to be one where there was ‘sufficient material for the hypothetical director to conclude that the conduct of Medicentres’ business by those in control of it had given rise to actionable breaches of duty’, leading to the conclusion that ‘I cannot be satisfied that a hypothetical director acting in accordance with section 172 would conclude that the case advanced was insufficiently cogent to justify continuation of the claim’. However, the balancing exercise carried out with regard to the factors at section 263(3) resulted in the refusal of permission. Applying the hypothetical director test in section 263(3)(b), Trower QC went on to set out certain of the considerations such a person would take into account (at ): ‘the prospects of success of the claim, the ability of the company to make a recovery on any award of damages, the disruption which would be caused to the development of the company’s business by having to concentrate on the proceedings, the costs of the proceedings and any damage to the company’s reputation and business if the proceedings were to fail. A director will often be in the position of having to make what is no more than a partially informed decision on continuation without any very clear idea of how the proceedings might turn out’. It was held that the hypothetical director would not presently attach great importance to continuation of the claim, as there was work still to be done in formulating a clear claim for breaches of duty which had caused actionable loss to Medicentres. This did not preclude the hypothetical director from attaching importance to its continuation at some future stage (that is when the complaints were in a form tending to that conclusion). It was also considered that the hypothetical director would be more inclined to regard its pursuit as less important in light of the fact that several of the complaints were more naturally formulated as breaches of the shareholders’ agreement and acts of unfair prejudice. In a similar vein, the availability (and use) of both the section 994 petition and shareholders’ action was attributed considerable weight, in a determination under section 263(3)(f). On an analysis of the facts, both the allegations of breach of duty to Medicentres and the losses it might have sustained were held likely to be relevant, respectively, to Franbar’s complaint of unfair prejudice as well as to the fair value of Franbar’s shares and attendant questions arising on the valuation. Consideration was also devoted to section 263(3)(d). In determining that certain of the conduct alleged may prove to be incapable of ratification, Trower QC construed section 239(7) of the 2006 act, which preserves any rule of law as to acts incapable of ratification, as including not only acts which are ultra vires the company in the strict sense, but also acts which, pursuant to any rule of law, are incapable of ratification for some other reason. He concluded that the proposition in North-West Transportation Company v Beatty  12 App Cas 589, 594 (that a company cannot ratify breaches of duty by its directors where it is oppressive towards those shareholders who oppose it) remained good law. Consequently, that where the question of ratification arises in the context of an application to continue a derivative claim, the court must still ask itself the question whether ratification has the effect that the claimant is being improperly prevented from bringing the claim (cf Smith v Croft (No. 2)  Ch 144, 185B). Future consequences Mission Capital and Franbar Holdings illustrate that certain of the criteria listed in section 263 will involve similar considerations to those given to derivative claims under the previous regime. As such, for those factors assistance may be derived from decided case law in anticipating how the tests will operate in practice. For example, in relation to the issue of whether there is a personal claim that could be pursued without involving the company arising under section 263(3)(f) (cf Konamaneni v Rolls-Royce  1 WLR 1269; Jafari-Fini v Skillglass  BCC 842; Mumbray v Lapper  BCC 990). Or indeed under section 263(3)(d), as illustrated by Franbar Holdings. Anticipating judicial determination of the hypothetical director test will, it is suggested, present greater difficulty when advising a prospective litigant on risk. The usual uncertainties of litigation will inevitably bear on a court’s determination of what such a person would decide in known circumstances. The considerations attributed to the hypothetical directors discernable in the decisions above, despite reflecting the facts at issue, reveal a similarity of approach and constitute broader commercial considerations militating against continuation. To that extent the cases afford an insight as to how the test will operate in practice. The hypothetical director deciding whether to continue the claim would, in Mission Capital, consider whether it had a ‘real purpose’, and in Franbar Holdings, consider whether there was ‘sufficient material’ or a sufficiently cogent case to substantiate a cause of action. The hypothetical director deciding how much importance to attach to its continuation would, in Mission Capital, consider the availability of an alternative course of action which did not involve litigation as well as the extent to which it could be said that the company will suffer loss, and in Franbar Holdings, consider the facts that the complaints were not in a form supporting a clear claim for breaches of duty causing actionable loss and more naturally fell within other types of claims already being pursued. Of contrast is the position under section 172 of the 2006 act. Section 172 grants a discretion to directors to act in the way they consider, in good faith, would be most likely to promote the success of the company. Although the factors listed in section 172 will be relevant to the balancing exercises conducted under both that section and on an analysis under subsections 263(2)(a) and (3)(b), at common law the duty now contained in section 172 was held to be a subjective one. The question was not what a court may consider was in the interests of the company (cf Re Smith and Fawcett Ltd  Ch 304; Re Regentcrest plc v Cohen  2 BCLC 80). This contrast in approach may, it is suggested, be explained on two bases. First, an act or omission challenged on an allegation of breach of the duty now contained in section 172 is conduct capable of subjective assessment – a judgment on past conduct rather than on a hypothetical. Second, the hypothetical director test is central to a permission application as the effect of permission being granted is to override the rights of a company’s directors to determine whether litigation should be commenced to enforce the company’s rights. That determination being displaced, the court steps into the shoes of a director to substitute its – hypothetical – view. The case lawThe first of the two cases in which permission to continue was refused was Mission Capital Plc, decided on 17 March 2008. Mission Capital’s former directors (the applicants) constituted a minority on its board. The board purported to terminate their employment and required them to resign from the board. Mission Capital obtained an interim injunction against the applicants, who: (i) counterclaimed for injunctive relief equating to specific performance of service contracts and reinstatement to the board; and (ii) brought a derivative claim against the remaining directors (a) contending that Mission Capital would suffer damage from their wrongful dismissal and the replacement director would act improperly and (b) claiming the same heads of relief as in the counterclaim. On the application for permission to continue the derivative claim, Mr Justice Floyd first addressed his mind to section 263(2)(a) of the 2006 act and the question whether a notional director would not seek to continue the claim. (The grounds for permission at sections 263(2)(a) and 263(3)(b) both require the court to apply the standard of the objective, reasonable director under section 172 of the 2006 act: see the 2006 act for the precise terms of the provisions). The debate focused on whether the derivative action was purely duplicative of the counterclaim. ‘Nobody brings a claim just for the sake of it’ (at ). Hence his conclusion that he could not be satisfied, negatively, that such a person would not seek to continue the claim, was premised on the finding that the derivative action was not duplicative of the counterclaim. Specifically, that: (i) the derivative claim might succeed where the counterclaim failed; and (ii) Mission Capital would be able to claim damages against the directors for damage it had suffered as a result of the applicants’ wrongful dismissal, not available to the applicants’ as shareholders. As such, there was ‘real purpose’ (at ) in bringing the claim. Floyd J went on to consider how to exercise his discretion under section 263(3) of the 2006 act. His refusal of permission was largely based on his judgment as to how important the hypothetical director would regard continuation of the claim within the meaning of section 263(3)(b). He held (at ) that, although he could not be satisfied that the notional section 172 director would not continue the claim, he did not believe that he would attach that much importance to it. His reasons were twofold: ‘Would a company which had wrongfully dismissed a director normally take action against those responsible for the damage that it has suffered? It would depend, but I suspect that the action it would take in preference would be to replace the directors. Moreover, on the evidence before me the damage… [Mission Capital] will suffer is somewhat speculative – another reason why the section 172 director would not attach great weight to it”. A second ground for Floyd J’s refusal seems to have been his brief consideration of section 263(3)(f), although not expressly cited (at ). He was not satisfied that there was anything sought by the applicants which they could not recover by means of an unfair prejudice petition under section 994 of the 2006 act. Georgina Peters is a barrister at 3-4 South Square and has contributed to The EC Regulation on Insolvency Proceedings: A Commentary and Annotated Guide and Company Directors: Duties, Liabilities, and Remedies, both published by Oxford University Press and available via the Law Society Online Bookshop (http://www.lawsocietyshop.org.uk). This article is abbreviated from an article which first appeared in the quarterly 3-4 South Square Digest. If you wish to be added to the circulation list please send an email to firstname.lastname@example.org Two interesting questions have emerged as relevant since the institution of part 11, chapter 1, sections 260-264 of the Companies Act 2006 (the 2006 act). They concern: (i) whether derivative claims will now have a better prospect of obtaining permission to continue; and (ii) how the courts will approach the ‘hypothetical’ or ‘objective’ director test established under those provisions. As to the first question of whether such claims will have a greater prospect of successfully proceeding to a hearing on the substantive merits of the claim, it is too early to tell. To observe otherwise would be frivolous. During the 18-month period since the provisions came into force, there have been only two reported decisions in which permission to continue a derivative claim under the 2006 act has been sought and determined: Mission Capital Plc v Sinclair and another  BCC 866 and Franbar Holdings Ltd v Patel and others  BCC 885. The second question, however, has been the subject of judicial consideration on both those occasions.
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