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JORDAN MARSH COMPANY vs. LABOR RELATIONS COMMISSION.
The filing of a demurrer to a petition for a writ of certiorari, without the filing of a return, is permissible practice to attack the sufficiency of the petition.
In the absence of extraordinary circumstances, certiorari does not lie, previous to a proceeding under Section 6 of G. L. c. 150A, inserted by St. 1938, c. 345, Section 2, to correct error of law alleged to have been committed by the labor relations commission in determining a collective bargaining unit and certifying collective bargaining representatives under Section 5; the remedy provided by Sections 6 (f) and 5 (d) following a proceeding under Section 6 is adequate and exclusive.
PETITION for a writ of certiorari, filed in the Superior Court on June 10, 1942.
The petitioner appealed from an order by Collins, J., sustaining a demurrer to the petition.
C. A. Robert, (W. F. Byrne with him,) for the petitioner.
L. E. Crowley, for the respondents.
QUA, J. This is a petition for a writ of certiorari to review a proceeding under Section 5 (c) of the State labor relations law, G. L. c. 150A, as inserted by St. 1938, c. 345, Section 2, wherein the Labor Relations Commission certified that a certain labor organization had been selected by a majority of the petitioner's employees in an appropriate bargaining unit as their representative for the purposes of collective bargaining. Various errors are alleged to have been committed by the respondents in conducting the proceedings. The respondents demurred without filing a return, and the demurrer was sustained in the Superior Court on the ground, among others, that the petitioner had an adequate remedy under Section 6 (f) of the State labor relations law.
The filing of a demurrer to a petition for a writ of certiorari, either with or without a return, is recognized as permissible practice where it is desired to attack the sufficiency of the petition itself. Worcester & Nashua Railroad v. Railroad Commissioners, 118 Mass. 561, 564. Selectmen of Wakefield v. Judge of First District Court of Eastern Middlesex, 262 Mass. 477. Webster v. Alcoholic Beverages Control Commission, 295 Mass. 572. Irwin v. Municipal Court of the Brighton District of the City of Boston, 298 Mass. 158. See Morrissey v. State Ballot Law Commission, ante, 121, 124.
The question in the case is whether certiorari lies to correct alleged errors of law where the commission has gone no further than to determine "the unit appropriate for the purposes of collective bargaining" (Section 5 [b]) and to "certify" the name of the union "designated or selected" (Section 5 [c]) "for the purposes of collective bargaining by the majority of the employees" (Section 5 [a]) in that unit, and where there has been as yet no charge of any "unfair labor practice" on the part of the petitioner, and no "cease and desist"
order (Section 6 [c]), and where, other than as above stated, no "final order . . . granting or denying in whole or in part the relief sought" (Section 6 [f]) has been made.
Petition for certiorari is the common method available under our practice for the correction of errors of law committed in the course of proceedings of boards and commissions acting in a quasi judicial capacity. Although procedure in certiorari, with its emphasis upon the return of the respondents, may be thought cumbersome and in some respects not wholly satisfactory, yet the function performed by it is highly necessary in the modern governmental structure. Swan v. Justices of the Superior Court, 222 Mass. 542, 544. Commissioner of Public Works of Boston v. Justice of the Municipal Court of the Dorchester District, 228 Mass. 12, 15. Whitney v. Judge of the District Court of Northern Berkshire, 271 Mass. 448, 458-459. On the other hand it is still true that certiorari is one of the so called "extraordinary remedies," and that resort may not be had to it if the law provides adequate remedies by other methods. Mayor of Medford v. Judge of First District Court of Eastern Middlesex, 249 Mass. 465, 468. Maher v. Commonwealth, 291 Mass. 343, 345, 346. The issue therefore reduces itself to the inquiry whether the remedies afforded the petitioner by the labor relations law itself are so inadequate as to render certiorari necessary for the prevention of substantial injustice and to lead to the conclusion that the statutory remedy was not designed to be exclusive.
the evidential basis for the facts found in the certification proceeding under Section 5. But at no other time and in no other way can he have, under the statute, a court review of the certification proceeding. The foregoing analysis of the State labor relations law is not only fairly apparent from a reading of the law itself, but is also in accordance with the construction placed by the Federal courts upon the national labor relations act (U. S. C. [1940 ed.] Title 29, Sections 151-166), which the State act closely follows, and by other State courts upon similar State statutes. American Federation of Labor v. National Labor Relations Board, 308 U.S. 401. National Labor Relations Board v. International Brotherhood of Electrical Workers, 308 U.S. 413. National Labor Relations Board v. Falk Corp. 308 U.S. 453. Pittsburgh Plate Glass Co. v. National Labor Relations Board, 313 U.S. 146, 152, 154. United Employees Association v. National Labor Relations Board, 96 Fed. (2d) 875. Southern Steamship Co. v. National Labor Relations Board, 120 Fed. (2d) 505. Wallach's, Inc. v. Boland, 277 N. Y. 345. Southeast Furniture Co. v. Industrial Commission, 100 Utah, 154.
prompt and as broad as an immediate petition for certiorari would be. The question is whether we ought to say that it is so inadequate that the Legislature could not have intended it as exclusive of a remedy by certiorari. We cannot go to that length in this case. If and when a complaint for an unfair labor practice is brought against the petitioner the whole proceeding, including any errors in the certifying of the representatives, will be open to court review under Sections 6 (f) and 5 (d). We think that the structure of the statute shows that the Legislature intended that at least in ordinary cases this should be the only remedy and that it was not intended that the mere preliminary fact finding proceeding that leads to the certification of the bargaining representatives should be separately reviewed by certiorari when elaborate methods were provided in the statute itself for review of all proceedings leading to a "final" order requiring the petitioner to act or to refrain from acting. The necessity for rapid action in matters involving labor relations, if the expected benefits of the statute are to be secured, militates against a construction that would result in introducing a lawsuit in court after the certification and before any further proceeding under the statute. See Myers v. Bethlehem Shipbuilding Corp. 303 U.S. 41. It is not necessary now to determine that no case could ever exist where the effect of a mere certification might be so immediately and completely disastrous to the legally protected interests of the employer that the Legislature must be presumed to have intended to leave open some avenue of escape other than the review provided for in the statute. See American Federation of Labor v. National Labor Relations Board, 308 U.S. 401, 404, 411, 412; International Brotherhood of Electrical Workers v. National Labor Relations Board, 41 Fed. Sup. 57; Klein v. Herrick, 41 Fed. Sup. 417. If there can be such a case there are no allegations in the petition now before us to indicate that this is such a case.
The demurrer was rightly sustained.

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Michele Johnson, Global Chair of the Litigation & Trial Department, is consistently recognized as a leading California litigator. She represents financial institutions, Fortune 500 companies, boards of directors, and individuals in securities, M&A, and other complex commercial litigation. Ms. Johnson is a former member of Latham & Watkins’ Executive Committee and the former Managing Partner of the Orange County office.
Ms. Johnson’s recent representations include special committee engagements in controlling stockholder transactions, multi-jurisdictional litigation arising out of solicited and hostile takeover attempts, and investigations and litigation on behalf of special committees and boards of directors related to public company crises. In a widely publicized matter that began in 2014, she represented Allergan in defending against the US$54.6 billion hostile takeover attempt by Valeant Pharmaceuticals assisted by Pershing Square. She has significant trial experience involving product liability, unfair business practices, tax, trusts and estates, and insurance bad faith trials.
Ms. Johnson was recognized as a Leading Lawyer for M&A Litigation by The Legal 500 US 2018. She was selected as Top-Rated Securities Litigation Attorney by Super Lawyers 2019. Recently, she was named to the 25 Most Influential Women in Securities Law by Law360, the Top Women Lawyers list in California by the Daily Journal, and the Profiles in Diversity Journal’s list of Women Worth Watching.
Ms. Johnson has served on the firm's Pro Bono, Associates, and Diversity Committees. She serves on the boards of Berkeley Center for Law and Business, the Public Law Center, the Orange County Bar Foundation, and the Orange County chapter of the Association of Business Trial Lawyers.
At trial, defeated more than 95% of plaintiffs’ claimed damages in rare Section 10(b) securities class action to go to jury verdict. Hsu v. Puma Biotechnology, Inc. (C.D. Cal. 2019).
Won dismissal of shareholder derivative action on standing grounds, on behalf of specialized electronic systems developer OSI Systems. Genesee County Employees’ Retirement System v. Chopra (Los Angeles Cty. Sup. Ct. 2019).
Won dismissal with prejudice of shareholder derivative actions on the basis of demand futility, on behalf of healthcare information systems developer Quality Systems, Inc. Foss v. Barbarosh (C.D. Cal. 2018).
Successfully represented specialized electronic systems developer OSI Systems and its officers and directors in securities fraud and derivative lawsuits following cancellation of a government contract. In re OSI Systems, Inc. (C.D. Cal. 2016).
Won summary judgment of all claims against healthcare information systems developer Quality Systems, Inc. and its chair and CEO in fraud case brought by former director/major shareholder; defeated repeated motions for summary judgment, summary adjudication, and judgment on the pleadings in connection with company’s cross-complaint against the shareholder. Hussein v. Razin (Orange Cty. Sup. Ct. September 16, 2015).
Won dismissal of securities fraud claims against medical device company Alphatec Spine and senior executives based on alleged material misrepresentations and breaches of fiduciary duty in connection with related-party acquisition, in case named by the Daily Journal as one of the Top Verdicts of 2013; won affirmance of dismissal on appeal in the Ninth Circuit. Mallen v. Alphatec Holdings, Inc. (S.D. Cal. 2013), aff’d (9th Cir. June 5, 2015).
Part of team who obtained unanimous defense verdict following three-week jury trial on behalf of CEO of enterprise-class technology company STEC in US$800 million SEC enforcement action alleging insider trading after earnings announcements, in one of the Daily Journal’s Top Verdicts of 2014; successfully represented the company and its founders in securities fraud class actions and derivative cases alleging disclosure violations and insider trading. Securities & Exchange Commission v. Manouchehr Moshayedi (C.D. Cal. June 6, 2014); In re STEC, Inc. Securities Litigation (C.D. Cal. 2013).
Successfully represented biomedical testing manufacturer Beckman Coulter and its officers and directors in securities fraud class action and derivative lawsuits following reduction in guidance. In re Beckman Coulter Securities Litigation (C.D. Cal. 2010).
Lead trial lawyer for One Town Center Associates (a Segerstrom entity) in a successful jury trial regarding a commercial lease dispute between recalcitrant tenant and Segerstrom-owned property. One Town Center Associates v. Town Center Club and Spa (Orange Cty. Sup. Ct. 2009).
Secured favorable settlement on behalf of managed care service provider Skilled Healthcare soon after fully briefing motion to dismiss securities fraud complaint following a restatement involving allegations of misleading statements in connection with the company's IPO. In re Skilled Healthcare Group (C.D. Cal. 2009).
Won dismissal of securities fraud claims against Alt-A mortgage lender Impac Mortgage, and secured a favorable settlement of derivative action and ERISA class action arising after the subprime mortgage industry collapse. Pittleman v. Impac Mortgage Holdings, Inc. (C.D. Cal. March 9, 2009).
Successfully represented small-molecule cardiovascular biopharmaceutical company CV Therapeutics in a securities fraud case and derivative litigation brought following the delay of FDA approval of company’s primary drug. In re CV Therapeutics, Inc. Securities Litigation (N.D. Cal. 2007).
Successfully represented officers and directors of electronics company Power Integrations in stock options backdating litigation. Quaco v. Balakrishnan (N.D. Cal. 2006).
Co-lead trial lawyer for ConocoPhillips Co. in a jury trial alleging US$250 million product defect claims arising from alleged groundwater contamination by gasoline additive MTBE, leading to successful settlement during trial. D.J. Nelson Trust dba Fruitridge Vista Water Company v. Atlantic Richfield Co., et al. (Sacramento Cty. Sup. Ct. 2006).
Lead trial lawyer for Orange County Halfway House, Inc. in a successful bench trial regarding a commercial lease dispute between charitable organization dedicated to serving troubled youth and its opportunistic landlord; obtained complete defense verdict and award of attorneys’ fees. Lorraine Cisneros v. Orange County Halfway House, Inc. (Orange Cty. Sup. Ct. October 27, 2004).
Successfully represented officers and directors of merchant energy generation company Calpine in state court securities fraud class actions involving allegations of price manipulation and wash trades. Hawaii Fund Structural Ironworkers Pension Trust Fund v. Calpine Corp. (Santa Clara Cty. Sup. Ct. 2003).
Won partial summary judgment on behalf of Arthur Andersen in a fraud case filed in connection with failed IPO. Sundance Venture Partners, LP v. Arthur Andersen (Orange Cty. Sup. Ct. 2002).
Lead trial lawyer for Henry Segerstrom as trustee of the Renee Mary Segerstrom Trust in a successful bench trial regarding Renee Segerstrom’s daughter’s claim to a portion of the US$40 million left by Renee’s estate to build the famed Segerstrom Center for the Arts. In re The Renee Mary Segerstrom Trust, Established 11-22-89 (Orange Cty. Sup. Ct. July 12, 2002).
Successfully represented ConocoPhillips Co., successor in interest to Tosco Corp. and Phillips Petroleum Co., in jury trial regarding US$500 million product defect claims arising from alleged groundwater contamination by gasoline additive MTBE, leading to successful settlement after eleven months of trial. South Tahoe Public Utility District v. Atlantic Richfield, et al. (San Francisco Cty. Sup. Ct. 2001-02).
Successfully represented ConocoPhillips Co. in bench trial regarding US$100 million product defect claims arising from alleged groundwater contamination by gasoline additive MTBE, leading to successful settlement during trial. CBE v. Unocal Corp., et al. (San Francisco Cty. Sup. Ct. 2001).
Won summary judgment on all claims against infringer brought by publisher Entrepreneur Magazine concerning its flagship trademark. Entrepreneur Media, Inc. v. Smith (C.D. Cal. June 28, 2000).
Represented Orange County Sunbird Aviation LLC in bench trial regarding taxable or tax-deductible nature of private jet used for business purposes by later-US Ambassador to Spain George Argyros. Orange County Sunbird Aviation LLC v. County of Orange (Orange Cty. Sup. Ct. 2000).
Won dismissal of securities fraud case seeking to block US$750 million sale of semiconductor manufacturer IXYS to Littelfuse. Sanchez v. IXYS Corp. (N.D. Cal. October 2, 2018).
Representing Special Committee of the board of directors of Dell Technologies in connection with proposed US$70.1 billion reverse merger with VMWare tracking stock (July 2018).
Representing Special Committee of the board of directors of telecommunications company in connection with proposed US$26 billion merger (April 2018).
Defeated motion to expedite and application for temporary restraining order seeking to block US$290 million take private of clinical-stage biopharmaceutical company Altor Bioscience Corp. Gray v. Soon-Shiong (Del. Chancery Ct. July 25, 2017).
Successfully defended coffee manufacturer Farmer Brothers against controlling shareholders’ failed proxy contest for control of board (December 2016).
Defeated motion to expedite and motion for preliminary injunction seeking to block US$4 billion acquisition of luxury fitness company; won dismissal on the pleadings of aiding and abetting breach of fiduciary duty claim against acquirer Leonard Green & Partners. Lusk v. LifeTime Fitness, Inc. (D. Minn. September 30, 2016).
Defeated motion for preliminary injunction seeking to block US$1.7 billion acquisition of leading developer of advanced digital imaging solutions and won dismissal of aiding and abetting breach of fiduciary duty claim against JP Morgan as financial advisor to seller. In re OmniVision, Inc. Shareholder Litigation (Santa Clara Cty. Sup. Ct. September 12, 2016).
Won motion for expedition on behalf of software developer Guidance Software in connection with its defense against former CEO’s proxy contest for control of board. Guidance Software, Inc. v. McCreight (Los Angeles Cty. Sup. Ct. April 2016).
Defeated application for TRO seeking to enjoin US$551 million acquisition of cutting-edge media company and won dismissal on basis of forum-selection bylaw of aiding and abetting breach of fiduciary duty claim against buyer Rizvi Traverse Management. Garfield v. RealD, Inc. (Los Angeles Cty. Sup. Ct. February 23, 2016).
Defeated would-be activist shareholder of biopharmaceutical developer Puma Biotechnology in his failed proxy contest for control of board. Eshelman v. Puma Biotechnology, Inc. (Del. Chancery Ct. January 2016).
Defeated motion for preliminary injunction seeking to enjoin US$3.5 billion acquisition of office real estate at hearing held hours before shareholder vote and won motion to dismiss breach of fiduciary duty claim, in case named by the Daily Journal as one of the Top Verdicts of 2015 . Fundamental Partners v. Hudson Pacific Properties, Inc. (San Francisco Cty. Sup. Ct. March 4, 2015).
Secured preliminary injunction against would-be hostile acquirer Valeant and co-conspirator Bill Ackman and his hedge fund management company Pershing Square for insider trading in connection with a US$54.6 billion hostile takeover attempt of specialty pharmaceutical company Allergan, in a transaction named The American Lawyer’s 2015 Global M&A Deal of the Year US. Allergan, Inc. v. Valeant Pharmaceuticals International, Inc. (C.D. Cal. November 4, 2014); PS Fund 1 v. Allergan, Inc. (Del. Chancery Ct. 2014).
Won summary judgment of shareholder class action against Allergan and its directors alleging breaches of fiduciary duty in connection with the company’s bylaws and responses to a hostile takeover attempt by Valeant and Pershing Square. In re Allergan, Inc. Stockholder Litigation (Del. Chancery Ct. November 7, 2014).
Defeated TRO and motion for preliminary injunction brought by preferred shareholders to enjoin US$2.3 billion real estate company merger. Cohen v. MPG Office Trust, Inc. (Baltimore Circuit Ct. July 24, 2013).
Defeated multiple motions and renewed motions for expedited discovery in two jurisdictions on behalf of Special Committee during pendency of go shop following announcement of management buyout of software provider, Quest Software, permitting a US$2.4 billion topping bid by Dell. In re Quest Software, Inc. Shareholders Litigation (Del. Chancery Ct.; Orange Cty. Sup. Ct. 2012).
Successfully represented semiconductor giant Broadcom in connection with its US$764 million unsolicited tender offer for Emulex Corp., including in expedited suit against target board challenging poison pill and multiple proxy-related suits against hostile bidder. Emulex v. Broadcom (Del. Chancery Ct.; C.D. Cal.; Orange Cty. Sup. Ct. 2009).
Defeated motion for preliminary injunction seeking to block US$350 million acquisition of computer consulting company. In re First Consulting Group Shareholder Litigation (Los Angeles Cty. Sup. Ct. January 8, 2008).
Defeated motion for preliminary injunction seeking to enjoin shareholder vote on US$2.1 billion acquisition of specialty pharmaceutical company. Kaiser v. ICOS Corp. (Snohomish Cty. Sup. Ct., Wash. December 15, 2006).
Revisiting Affiliated Ute: Back In Vogue In The 9th Circ.

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Three Additions to Daniel: A Study.
The principal chronological points, concerning which difficulties have been felt, arise: (A) in vv. 1, 2, concerning Astyages, Cyrus, and Daniel; (B) in v. 22, as to the destruction of Bel’s temple; and (C) in v. 33, as to Habakkuk being a contemporary of Daniel.
In connection with A, it is remarkable that v. 1 forms in the Vulgate the last verse of the preceding chapter, i.e. the last verse of Susanna. This arrangement may have been made from chronological reasons, possibly to escape an apparent difficulty; and in the LXX the verse is wanting altogether. Either plan, the attachment of the verse to 224Susanna, or its entire omission, has the effect of leaving the king in this piece nameless, and so solves the imagined difficulty of Cyrus and Daniel acting together as represented.
The text commented on by Theodoret offers the same solution in another form, viz. by transferring v. 1 to the end of chap. xii., and so concluding the book. He thus introduces it: Οὕτω πληρώσας τὴν ἀποκάλυψιν ἐπήγαγεν ὁ προφήτης καὶ ὁ βασιλεὺς Ἀστυάγης, κ.τ.λ. Theodoret comments no further on Bel and the Dragon, though his remarks in other parts of the commentary shew that he favourably regarded it. See his observations on v. 31, x. 1.
The disappearance in one case, and the displacements in the others of this verse, evidently point to some uncertainty in early times as to its right connection. But the difficulties raised as to this verse even where it stands are not so serious as was once thought. As Ball says in loc., “The cuneiform records have thrown unexpected light on difficulties which were the despair of bygone generations of scholars,” and quotes one which makes Astyages the captive of Cyrus. J. H. Blunt attempts to shew, not very satisfactorily, that the king of v. 2 was Darius. A note in Husenbeth’s Douay version, still less so, quietly says “Astyages, or Darius”!
It has also been suggested, with regard to this and difficulty C, that another Daniel is here intended, to be identified with the Daniel of Ezra viii. 2 (Bissell).
The second difficulty, B, is raised by the asserted destruction of Bel’s temple in v. 22. Now this is said not to have been destroyed till Xerxes’ return from Greece in 479. Even then Herodotus (I. 183) merely says that he ‘took’ (ἔλαβε) a golden statue, and slew the protesting priest; Strabo, on hearsay, (XVI. 1) and Arrian (Exp. Alex. VII. 17), however, assert its destruction. But this forms a small obstacle, unduly magnified. Supposing Bel’s temple to have been destroyed, as v. 22 narrates, it is far from improbable that another temple may have been raised before Xerxes’ arrival. The people were evidently attached to Bel’s worship, as v. 28 shews, notwithstanding the conviction of their king as to the truth of Daniel’s God. It is noticeable that the LXX has no mention of the temple’s, but only of the idol’s, destruction; and that Θ, according to the manuscript Q, has not ἱερόν but ναόν in v. 22.
A. Scholz entertains the strange opinion that this and other historic difficulties were purposely introduced by the writer: ”Der Verfasser unserer Erzählung kennt sichtlich die Verhältnisse in Babylon, 226und hat seine Darstellung so eingerichtet, dass es einfach unmöglich ist, sie geschichtlich zu verstehen“ (p. 219). But this is a desperate expedient to support his view of the whole story being intended for a ‘vision,’ and it would be hard to find any parallel to such a proceeding on the part of the sacred writers.8080The phrase applied to the Additions in the Introd. to Daniel in the Speaker’s Comm. (p. 216a), דבר פיוטין if we take פיוט to mean ’poet,’ would fall in with this view. J. M. Fuller does not make quite clear his source for this phrase.
So far as Babylon is concerned, there is no indication of anything but a time of peace, which is quite in accordance with the supposed period of the narrative.
There is perhaps more difficulty, C, in making Habakkuk than in making Cyrus, a contemporary of the grown-up Daniel. Indeed, with the earlier date formerly assigned to Habakkuk, the difficulty seemed all but insuperable, except by postulating two Habakkuks or two Daniels. And, much as it may lack vraisemblance, either of those suppositions is of course within the bounds of possibility. So Trapp notes, rather sneeringly, on Hab. i. 1: “Those apocryphal Additions to Daniel, which either are false, or there were two Habakkuks”; and J. H. Blunt, more seriously, to a similar effect on Hab. i. 1 227and Bel 33. Josippon ben Gorion (I. 7) joins the whole story with the canonical history, but, as given by Delitzsch (op. cit. p. 40), transposes, presumably from chronological motives, the den incident to the beginning of the story, ”in ordine chronologico iudaicæ traditioni de Habacuci ætate se accommodantem.“ Josippon, around whom considerable obscurity hangs, is dated as of the eighth or ninth century in the Biog. Univ. art. Gorionides, Paris, 1857; but in Hastings’ D. B. art. Bel and the Dragon, p. 267b, c. a.d. 940 is given as his time.
Habakkuk’s prophecy is now dated as late as 600 (Driver in Hastings’ D.B. art. Habakkuk; Kirkpatrick in Smith’s D. B2. art. Habakkuk, 1256b, says “not later than the sixth year of Jehoiakim”); and if Habakkuk prophesied in his youth, our story is not an impossible one. So Cornelius Jansen (Analecta, p. 154), ”Quapropter nihil obstabit quo minus idem Habacuc iam senex prandium in Babylonem detulerit,” and he quotes a tradition of Isidore Hispalensis (de vit. Proph.) that Habakkuk lived to see the return from the Captivity, and two years after. Rosenmüller, quoted in a note on Hab. i. 1 by Maurer (neither of whom were too partial to traditional views), thinks that the time of Habakkuk is consistent with the ”vetus fama in apocryphis 228Danielis additamentis.“ He even places chap. iii, of Habakkuk under Zedekiah, though with this Maurer does not agree (cf. Henderson, Min. Proph., Introd. to Hab.).
Jamieson, Brown, and Faussett in their Commentary, Introd. to Hab. (1869), by no means inclined to favour the Apocrypha, say that Bel and the Dragon agrees with the notion of Habakkuk prophesying in Jehoiakim’s reign.
G. A. Smith, however, in his Book of the Twelve Prophets, 1900, II. 130, contents himself with calling it “an extraordinary story of Habakkuk’s miraculous carriage of food to Daniel in the lions’ den, soon after Cyrus had taken Babylon.” But A. C. Jennings, in Bishop Ellicott’s Comm. for English Readers, Introd. to Hab., pp. 523–5, says: “The story, worthless in itself, nevertheless indirectly confirms the theory of date which we have accepted below” in these words, “Habakkuk’s prophecy dates from the reign of Jehoiakim, not more than five years at most before the battle of Carchemish—how much nearer that great event it is impossible to say.” Dean Farrar also curiously observes, “Habakkuk’s appearance in apocryphal legend (vv. 33–39) shews the impression he had made on the mind of his people, and perhaps indicates his date as a contemporary of Daniel.” 229(Minor Prophets in ‘Men of the Bible’ series, n.d., p. 160).
טלכא לביל תבד ולתנינא קטל ואתהפכו עליו ואמרין חד. Then follows a Latin translation, after which Martini adds ”Hucusque traditio,” and, after quoting Hab. i. 6, finishes his work.
The fact incidentally brought out in the story that Habakkuk was not engaged in reaping, but was occupied in taking out food for the reapers, fits in well with the idea of his advanced age. Such a task might well be undertaken by one who was no longer strong enough for field labour.8181Sozomen, H. E. vii. 29, says that Habakkuk’s tomb was found at Keilah, κελὰ, ἡ πρὶν κεὶλα . . . καθ᾿ ἢν ὁ Ἀβακοὺμ (sic) εὑρέθη. Now Keilah is mentioned in 1 Sam. xxiii. I as having threshing- floors worth robbing, and so presumably lay in a corn-growing district.
All these difficulties would, on other grounds, be deprived of much of their importance by the theory of A. Scholz, if that could be accepted as true. He regards the entire book of Daniel, including of course the Additions, as a series of apocalyptic visions (p. 201). This he considers as the earliest explanation, 231supported by the heading ὅρασις to each chapter of Daniel in A and some other MSS. But while removing one set of difficulties, this theory introduces others of a character at least as serious; and it is by no means easy to convince oneself that there is an “apocalyptic” tone about this or the other Additions. This remarkable theory cuts, rather than unties, such knots as are above noted, and carries with it to most minds a strange and improbable air.
80The phrase applied to the Additions in the Introd. to Daniel in the Speaker’s Comm. (p. 216a), דבר פיוטין if we take פיוט to mean ’poet,’ would fall in with this view. J. M. Fuller does not make quite clear his source for this phrase.
81Sozomen, H. E. vii. 29, says that Habakkuk’s tomb was found at Keilah, κελὰ, ἡ πρὶν κεὶλα . . . καθ᾿ ἢν ὁ Ἀβακοὺμ (sic) εὑρέθη. Now Keilah is mentioned in 1 Sam. xxiii. I as having threshing- floors worth robbing, and so presumably lay in a corn-growing district.

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Genes belonging to the pathogenesis related 10 (PR10) group have been studied in several plant species, where they form multigene families. Until now, such an analysis has not been performed in Vitis vinifera, although three different PR10 genes were found to be expressed under pathogen attack or abiotic stress, and during somatic embryogenesis induction. We used the complete genome sequence for characterising the whole V. vinifera PR10 gene family. The expression of candidate genes was studied in various non-treated tissues and following somatic embryogenesis induction by the auxin 2,4-D.
In addition to the three V. vinifera PR10 genes already described, namely VvPR10.1, VvPR10.2 and VvPR10.3, fourteen different PR10 related sequences were identified. Showing high similarity, they form a single cluster on the chromosome 5 comprising three pseudogenes. The expression of nine different genes was detected in various tissues. Although differentially expressed in non-treated plant organs, several genes were up-regulated in tissues treated with 2,4-D, as expected for PR genes.
PR10 genes form a multigene family in V. vinifera, as found in birch, apple or peach. Seventeen closely related PR10 sequences are arranged in a tandem array on the chromosome 5, probably reflecting small-scale duplications during evolution. Various expression patterns were found for nine studied genes, highlighting functional diversification. A phylogenetic comparison of deduced proteins with PR10 proteins of other plants showed a characteristic low intraspecific variability. Particularly, a group of seven close tandem duplicates including VvPR10.1, VvPR10.2 and VvPR10.3 showed a very high similarity, suggesting concerted evolution or/and recent duplications.
PR10 proteins belong to the huge family of pathogenesis related (PR) proteins ubiquitous in the plant kingdom. PR proteins were first identified as defence molecules produced in response to pathogen attack and some of them actually display an antimicrobial activity. However, numerous studies have reported their induction under a great variety of abiotic stress conditions as well as possible constitutive or developmentally regulated expression . Sharing common biochemical characteristics (acidic pI, resistance to proteolytic degradation, small molecular mass) PR proteins are divided into seventeen different groups based on their primary structure, serological relationships and biological activity . Most of them are extracellular, but some others are found in the cytoplasm, mainly in the vacuole. PR10 proteins present the specificity to be free in the cytoplasm and are therefore classified as intracellular PR (IPR) proteins. They are closely related to a group of major tree pollen allergens and food allergens, that belong to the Bet v 1-like superfamily .
PR10 genes form multigene families with low intraspecific variation and higher interspecific variation that make them interesting phylogenetic markers [4–6]. Some of them were shown to be organized in chromosome clusters [7, 8]. Characterised in a number of plant species, most PR10 genes share an open reading frame (ORF) from 456 to 489 bp interrupted by an intron of 76-359 bp at a highly conserved position . This ORF codes for an acidic small protein with conserved sequence features: three amino acids E96, E148 and Y150 (as positioned in Bet v 1) possibly involved in ribonucleasic activity and two other remarkable domains comprising the motif GXGGXGXXK (aa 47-55) that forms a P-loop supposed to have NTPase activity and the Bet v 1 motif [PS00451] characteristic of proteins from the Bet v 1 superfamily .
The significance of multiple close copies of a gene in a single plant species has to be clarified. In birch or yellow lupine, some PR10 genes are constitutively expressed while others are induced under pathogen attack, abiotic stress or during plant development, suggesting functional diversification [10, 11]. A significant common feature of PR10 proteins is a large Y-shaped hydrophobic cavity, as shown by the determination of three-dimensional structure [3, 12–15]. This internal cavity could be responsible for the intracellular transport of apolar ligands, so diverse as fatty acids, flavonoids, cytokinins or brassinosteroids [10, 14, 16, 17]. Slight modifications of the structure and shape of this cavity would allow to bind different ligands, what could account for the diverse roles hypothesised for PR10 proteins in plant defence and development [12, 13].
To date, three different PR10 genes have been described in Vitis vinifera. VvPR10.1 was shown to be up-regulated during a pathogen interaction with Pseudomonas syringae in the cultivar Ugni blanc , while the expression of VvPR10.1, VvPR10.2 and VvPR10.3 was detected during somatic embryogenesis (SE) induction in the cultivar Chardonnay . Moreover, several studies showed a strong and specific production of PR10 proteins in V. vinifera under salt or herbicide stress [20, 21], as well as after fungal attack [22, 23].
The recent publication of the whole genome sequence of V. vinifera by the Genoscope  and the Instituto Agrario San Michele all'Adige (IASMA)  makes genome scale analyses possible. Using these databases, we characterised all sequences of the PR10 gene family of V. vinifera and monitored the expression of nine candidate genes in various tissues and conditions.
We searched for all V. vinifera PR10 related sequences in the whole genomic sequence published by the Genoscope. An automatic list of chromosome regions containing PR10 and PR10-like gene annotations was produced. After correction for mis- and redundant annotations, ten sequences with a complete ORF were retained, comprising VvPR10.1 and VvPR10.2, previously identified (AJ291705 and AJ291704 respectively) and the recently described VvPR10.3 gene (EU379313) . Three additional incomplete sequences corresponded to pseudogenes. All thirteen sequences were arranged in a tandem array on the chromosome 5. On both sides of this cluster, we could identify four more PR10 related sequences, omitted by automatic annotation. No additional sequence was retrieved by a further homology search, suggesting that all V. vinifera PR10 genes are grouped in this single cluster, approximately 80,000 pb long and limited by putative genes not related to PR10 genes. The seventeen PR10 related sequences were named s1 to s17 and numbered according to their position on the chromosome regardless the strand they were located on (Figure 1): the twelve first (s1 to s12) and the last one (s17) on the minus (-) strand of the chromosome, and s13 to s16 on the plus (+) strand. VvPR10.1, VvPR10.2 and VvPR10.3 respectively correspond to s16, s10 and s12. All Genoscope references and precise locations are given in the additional file 1. The seventeen sequences collected from the Genoscope (PN 40024) were compared to their counterparts in the IASMA database (Pinot noir ENTAV 115), which are scattered on fifteen different scaffolds [additional file 2]. Each sequence was less than 2% divergent from its counterpart, highlighting a high similarity between the two genomes and databases.
Organisation of V. vinifera PR10 related sequences in a single cluster on chromosome 5. All sequences are located between the positions 599,000 and 681,000, on the + or the - strand. Nucleotide positions are as referenced on the Genoscope website.
The putative exon-intron structure of the seventeen PR10 related sequences was determined (Figure 2a). Each sequence is interrupted by a single intron at a very well conserved position, presenting consensus motifs at the 5' and 3' boundaries with exons (Figure 2b). The hypothetical CDS are 204 to 486 bp long. The length of exons is well conserved, except for s6, s7 and s9, which are shortened by a premature stop codon suggesting that they are pseudogenes. In addition, s9 presents a single nucleotide deletion in the first exon, which induces a frame shift definitely compromising a correct translation. The structure of the fourteen sequences with a complete ORF is in accordance with previous reports on Vitis vinifera and other plant PR10 genes [9, 18, 19].
Exon-intron structures of the seventeen PR10 related sequences. A: length of exons (bold dashes) and introns (thin dashes). B: frequency of nucleotides at the 5' and 3' putative splicing sites of introns. The size of letters is proportional to the nucleotide frequency at each position. The numbers indicate nucleotide position relatively to the first nucleotide of intron 1 (number 1 at the 5' end) or to the first nucleotide of exon 2 (number 1 at the 3' end). VvPR10.1, VvPR10.2 and VvPR10.3 respectively correspond to s16, s10 and s12.
The CDS were aligned for comparison. The percentages of nucleotide similarity are given in Figure 3. All sequences are very similar and show at least 48% of nucleotide similarity. A very high similarity (≥92%) was found between the six sequences s11-s16, including VvPR10.1 and VvPR10.3, that are also strongly similar to s10-VvPR10.2 (87-91% of nucleotide similarity), together forming a group of closely related sequences. The sequence of the pseudogene s6 is also remarkably similar to s5 (91%). The intron sequence is more variable and the similarity percentages range from 8 to 100%, being very high for the seven sequences s10-s16 comprising VvPR10.1, VvPR10.2 and VvPR10.3 on one hand, and for s5 and s6 on the other hand [additional file 3].
Percentages of nucleotide similarity between the CDS of the seventeen sequences. High percentages of nucleotide similarity are highlighted in red. VvPR10.1, VvPR10.2 and VvPR10.3 respectively correspond to s16, s10 and s12. The values were obtained from sequence alignments on ClustalW.
In order to determine whether the newly identified PR10 related sequences could be functional genes, we searched for related Expressed Sequence Tags (ESTs) in the databases (Table 1). Consistent with the prediction of s6, s7 and s9 as pseudogenes, no EST was found to match these incomplete sequences. In addition, we found no EST corresponding to s2, s4, s8 nor s17, suggesting that these sequences would not be transcribed, at least in the tissues and conditions reported in the databases. On the contrary, numerous different ESTs (> 100) were found to match s11, s13, s14 and s15 with up to 99% nucleotide similarity. Although some of them also matched the highly homologous VvPR10.1, VvPR10.2 and VvPR10.3, the expression of which was reported [18, 19], other ESTs were closer to s11, s13, s14 and s15, that would therefore be expressed in varied reproductive and/or vegetative tissues. Several ESTs corresponding to s1, s3 and s5 were also found (1, 52 and 4, respectively). Although a single incomplete EST (27% of coverage) matched s1, its sequence was 100% similar to the sequence of s1. Moreover, this EST covered the last 135 nucleotides of the CDS and 3'UTR, which are usually the most varying parts of a gene sequence, suggesting that this EST is a specific partial transcript of s1. The ESTs matching s3 and s5 with up to 99% similarity and 100% coverage argue for the expression of these two sequences. Using the Gene Finding program, a correct gene structure was predicted for the seven sequences s4, s5, s8, s11, s13, s14 and s15, in addition to VvPR10.1, VvPR10.2 and VvPR10.3 (Figure 4). All possess the well positioned TATA-box, transcription starting site (TSS) and polyadenylation signal, defining a CDS of 477-480 bp. No promoter was found for s1, s2, s3 and s17. When a manual search was performed, no TSS-motif was detectable for these sequences, but a TATA-box was identified for s1, s3 and s17 at the respective positions -1,214, -699 and -313 nucleotides. On the whole, in addition to the three well characterised V. vinifera PR10 genes, seven PR10 related sequences showed the canonical transcription signals, suggesting their possible expression, although no specific EST was found to match s4 nor s8. In contrast, s1 and s3 did not show the features usually described for effective transcription, but some specific ESTs were identified in the databases, indicating their probable expression. Finally, s2 and s17 showed no usual transcription signals, and no EST was found to match these two sequences.
BLAST results were obtained for the putative CDS of the seventeen sequences using the Vitis EST database of NCBI. The number of ESTs indicates the number of matching results for each query. The percentage of coverage indicates the relative length of coverage of the sequence by the best matching EST. The percentage of nucleotide similarity is given for the best matching EST. F = flowers; L = leaves; R = roots; Be = berries; Bu = buds.
Predicted structures for PR10 related sequences of V. vinifera. Only sequences having canonical transcription signals are shown. The arrow indicates the transcription starting site (+1). Predicted exons are represented as black boxes and deduced introns as dashed boxes. Given positions respectively correspond to the start of the TATA-box, the transcription starting site, the first nucleotide of the CDS, the last nucleotide of exon 1, the first nucleotide of exon 2, the last nucleotide of the CDS and the first nucleotide of the poly-A signal. Predictions were performed using the GeneFinding program. VvPR10.1, VvPR10.2 and VvPR10.3 respectively correspond to s16, s10 and s12.
The nucleotide sequences with a complete ORF were named according to usual nomenclature. The highly similar sequences VvPR10.1, s15 and s11 on one hand, and VvPR10.3, s13 and s14 on the other hand (≥97% nucleotide similarity) were named VvPR10.1-a, -b and -c, and VvPR10.3-a, -b and -c, respectively. The other sequences were named VvPR10.4 to VvPR10.10 for s8, s5, s4, s3, s1, s2 and s17, respectively, following increasing divergence from the group of VvPR10.1-a to VvPR10.3-c sequences. Putative protein sequences were deduced from nucleotide sequences, analysed and compared. All proteins are 158-160 aa long (Figure 5), have a calculated molecular mass ranging from 17.1 to 18.4 kDa and a theoretical pI from 4.7 to 6.3, consistent with usual plant PR10 features . Apart from few exceptions mentioned in the figure legend, all sequences present the three characteristic amino acids thought to be implied in ribonucleasic activity: E102, E149 and Y151, the characteristic P-loop motif (aa 47-55) described in various species and corresponding to the consensus sequence GXGGXGXXK, and the Bet v 1 motif which is the signature for the Pathogenesis-related proteins Bet v 1 family (Prosite accession PS00451)[3, 9]. The predictive three-dimensional structure of the deduced proteins was determined. As for PR10.1 (Figure 6), all proteins would be composed of three alpha-helices and a seven-stranded antiparallel beta-sheet arranged to form a large internal hydrophobic cavity. Nine short loops connect the secondary elements. This conformation is in accordance with the crystal structure determined for plant PR10 proteins in cherry, yellow lupine, birch and celery [12–15]. All these observations suggest correct structure and folding for the eleven putative V. vinifera PR10 proteins in addition to PR10.1, PR10.2 and PR10.3 [additional file 4].
Sequence alignment of deduced PR10 proteins. The P-loop and Bet v 1 signature are framed. A star (*) marks the amino-acids implied in possible ribonucleasic activity (E102, E149 et Y151). Alignments were performed with ClustalW. A V. vinifera specific Bet v 1 motif was determined: G-[DG]-[VA]-L-x(4)-E-[SY]-[IL]-[CSATV]-[HY]-[ED]-x-[KST]-x-[VE]-x(3)-[GNDS]-G(2)-[CS]-x(2)-K-x(2)-[SK]-X-Y. In PR10.8 and PR10.10, the last aa varies in the P-loop motif (E and T, respectively); in PR10.9, E102 is replaced by D102, the 4th aa in the P-loop motif is E, and the Bet v 1 motif presents 4 differences (out of 34 aa) at the positions 1, 6, 23 and 29; in PR10.6, there is one difference (out of 33 aa) in the Bet v1 motif (position 12).
Three-dimensional structure of V. vinifera PR10.1 represented by a ribbon diagram. The structure was predicted on an automated comparative protein modeling server using SWISS-MODEL.
A phylogenetic tree shows the relationships between V. vinifera PR10 proteins and representatives of the main PR10 subfamilies in other plants: Mal d 1 and Pru p 1 subfamilies I-IV in Malus domestica  and Prunus persica , Bet v 1 subfamilies I-III and V in Betula pendula  and LlPR10 subclasses I and II in Lupinus luteus  (Figure 7). In each species, PR10 proteins tend to form one (Betula pendula, Lupinus luteus) or two clades (Malus domestica, Prunus persica and Vitis vinifera), showing a low intraspecific and a higher interspecific variation, as previously described [4–6]. In a first clade, V. vinifera PR10 proteins are subdivided into two distinct homogeneous groups: PR10.1-A to PR10.3-C with more than 79% of amino acid identity and PR10.4 to PR10.6 with more than 81% of amino acid identity. These two groups of tightly phylogenetically connected proteins are closer to birch Bet v 1 than to PR10 proteins of other plant species, and are undoubtedly distant from the four other V. vinifera PR10 proteins, PR10.7 to PR10-10.
Phylogenetic relationships between V. vinifera PR10 proteins and representative PR10 proteins from Betula pendula , Lupinus luteus , Malus domestica and Prunus persica. GenBank accession numbers are as follows: Betula pendula Betv1.0401 (CAA54482), Betv1.0601 (CAA54484), Betv1.1101 (CAA54694), Betv1.1301 (CAA54696), Betv1.1701 (CAA96539) and Betv1.1801 (CAA96540); Lupinus luteus LlPR10.1A (CAA56298), LlPR10.1B (CAA56299), LlPR10.2A (AAF77633), LlPR10.2B (AAF77634) and LlPR10.2E (AAP37978); Malus domestica Mald1.01 (AAX18288), Mald1.02 (AAX18291), Mald1.03A (AAX18313), Mald1.04 (AAX18294), Mald1.05 (AAX18296), Mald1.06A (AAX18299), Mald1.07 (AAX18307) and Mald1.08 (AAX18310); Prunus persica Prup1.01 (ACE80940), Prup1.02 (ACE80942), Prup1.03 (ACE80944), Prup1.04 (ACE80946), Prup1.05 (ACE80948) and Prup1.06A (ACE80952). The V. vinifera Grip61 gene (CAB85634) was included as an outgroup representative of another Bet v 1 subfamily . The NJ-tree was generated with the Phylo_win program. The bootstrap value is given for each node.
The possible expression of ten out of the fourteen complete PR10 sequences was assessed in various non-treated tissues of V. vinifera cv. Chardonnay, as well as during secondary somatic embryogenesis. It was not possible to design specific primers for the detection of VvPR10.1-b and -c and VvPR10.3-b and -c transcripts, because of very high similarity with VvPR10.1-a and VvPR10.3-a transcripts respectively, even in the 5' and 3' UTRs.
Nine different genes were expressed in the tissues analysed, VvPR10.10 transcripts being undetectable in any condition (Figure 8). Moreover, VvPR10.4 and VvPR10.9 transcripts were only weakly detected in a few tissues.
Expression of V. vinifera PR10 genes. A: tissue-specific expression; R = roots, S = stems, L = leaves, F = flowers. B: expression during secondary somatic embryogenesis induction; E = non-treated somatic embryos at the cotyledonary stage, E2,4-D = calli obtained from embryos treated with 2,4-D. gDNA = genomic DNA. The length of amplified sequences are given in bp.
In intact tissues, all nine PR10 genes were expressed, depending on the plant organ. In roots, the expression of all genes except VvPR10.7 was detected, although VvPR10.8 transcription was very weak. At the opposite, VvPR10.7 transcription was high in leaves, while VvPR10.5 and VvPR10.6 transcripts were not detected; all other genes were expressed at varied levels. In stems, VvPR10.2, VvPR10.3-a and VvPR10.7 were the only clearly expressed genes. Immature flowers expressed all genes except VvPR10.4 and VvPR10.9. In non-treated somatic embryos, VvPR10.1-a, VvPR10.3-a and VvPR10.8 transcripts were weakly detected, while VvPR10.2 transcription was clear.
The 2,4-D treatment of embryos used for induction of secondary somatic embryogenesis increased the expression of VvPR10.1-a, VvPR10.3-a, VvPR10.5 and VvPR10.9 but not VvPR10.2 and VvPR10.8. The expression of VvPR10.6 was also weakly stimulated. On the other hand, VvPR10.7 transcription was weakly detectable in intact embryos but not at all in tissues derived from 2,4-D-treated embryos. VvPR10.4 expression was not detected in non-treated or treated embryos.
We found a total of seventeen PR10 related sequences in the whole V. vinifera genome. Thirteen unique sequences were retained from an automatic search that initially produced ninety regions, reflecting redundancy of the database as well as annotation errors partly due to wrong homology detection. A manual search allowed the recovery of four additional PR10 related sequences. All seventeen sequences were found in a single compact cluster on the chromosome 5. Plant PR10 belong to multigene families. There are at least five PR10 genes in pea , eighteen Mal d 1 genes in apple , ten Bet v 1 genes in birch , eight Fra a 1 genes in strawberry , six PR10 genes in Solanum surattense , eight in yellow lupine , five in rice , and eight Pru p 1 and Pru d 1 genes in peach and almond, respectively . They were shown to form physical clusters in apple  and peach . Poplar PR10 genes are also supposed to be grouped on chromosomes . Tandem duplicates are frequent in plant genomes and represent up to 16% of Arabidopsis genes . Such gene clusters are thought to be produced by successive single gene or small-scale duplications. We found that thirteen out of the seventeen V. vinifera PR10 sequences are present on the chromosome in direct orientation, suggesting that most copies were produced by unequal crossing over events, as described in Arabidopsis and rice .
Following duplication, new copies of a gene may undergo modifications allowing functional diversification, which is a significant source of evolutionary novelty in plants . However, gene duplication mostly creates copies that are rapidly lost through pseudogenisation. As a result, from numerous homologous sequences coexisting in a genome, only a part are functional genes. From the seventeen V. vinifera PR10 sequences, only fourteen have an intact ORF. In birch, the copy number of PR10 genes varies from twelve to twenty-five, depending on the species, and pseudogenes represents as much as one-third of Betula nigra alleles . In V. vinifera, the pseudogenes s7 and s9 share the highest nucleotide similarity with VvPR10.6 (s4), suggesting that they could derive from its duplication. Likewise, s6 is closer to VvPR10.5 (s5) than to all other sequences and could therefore originate from its duplication. Moreover, s6 and VvPR10.5 are also very similar at the intron level (81% of nucleotide similarity), indicative of possible recent duplication or slow pseudogenisation.
Apart from pseudogenes, sequence divergence is generally reduced in PR10 multigene families. PR10 genes within a species are generally very similar and more distant from gene copies of other plant species . Such a low intraspecific variability has been observed in Passiflora  and in the Betula genus . The different paralogs are thought to undergo strong concerted evolution which is the tendency of a family of repeated genes to jointly evolve. The close physical proximity of tandem duplicates facilitates gene conversion or unequal crossing-over events leading to concerted evolution . The phylogenetic tree in Figure 7 illustrates probable concerted evolution in the V. vinifera PR10 family. However, V. vinifera PR10 proteins divide into two clades interrupted by PR10 of other plants, indicating partial independent evolution. Interestingly, the seven sequences s10 to s16 corresponding to the very homologous proteins PR10.1-A to PR10.3-C follow one another on the chromosome, what could favor concerted evolution and suggest strong local selection pressure. However, it cannot be ruled out that recent duplication events produced these seven very homologous sequences.
Grapes, as other eudicot species, probably originate from an ancient hexaploid ancestor formed through whole genome duplication (WGD) events [24, 33]. Recurrent polyploidisation is tightly linked to evolution in angiosperms, providing raw materials for gene diversification and genome refinement, and coinciding with species radiation . A WGD is followed by incomplete and asymmetric loss of gene copies and chromosome rearrangements allowing the recovery of a diploid-like state compatible with effective reproduction. In Arabidopsis, it was possible to track gene pairs released by a recent specific WGD event . Only 28.6% of gene pairs were retained from the transient tetraploid genome, the other pairs having lost a copy from one of the homeologous chromosomes. In V. vinifera, PR10 sequences were solely located on the chromosome 5, suggesting loss of some of the triplicate ancestral copies and/or translocation on a unique chromosome. The seventeen present PR10 sequences are most probably due to repetitive small duplications having continuously occurred during V. vinifera evolution. Subsequent mutations and possible positive selection are responsible for the observed divergence within the sequences. However, at least a part of V. vinifera PR10 sequences are probably subjected to concerted evolution, reducing variability and hampering the identification of putative triplicate ancestral copies.
We were able to detect the expression of nine out of the fourteen complete PR10 related sequences in varied non-treated and treated tissues of V. vinifera cv. Chardonnay. Three genes, i.e. VvPR10.1-a, VvPR10.2 and VvPR10.3-a, were already shown to be expressed under pathogen attack or abiotic stress, and during somatic embryogenesis induction [18, 19], whereas expression of VvPR10.4-VvPR10.9 was never studied before. VvPR10.10 transcripts were not detectable in our conditions. This sequence has no corresponding EST in the databases and lacks canonical transcription signals. However, expression could be limited to very specific tissues and/or developmental stages. Although specific ESTs in the databases suggest a probable expression of the four sequences VvPR10.1-b and -c and VvPR10.3-b and -c, the distinction of each transcription product would require more sensitive methods than PCR, such as cDNA-AFLP or SSCP, which were used for discriminate highly homologous sequences in potato, polyploid cotton and barley [35–37]. The expression of VvPR10.5, VvPR10.7 and VvPR10.8 is not surprising because well matching ESTs were found in the databases. On the contrary, no EST was found to correspond to VvPR10.4, VvPR10.6 and VvPR10.9, whose expression is therefore reported for the first time. Interestingly, VvPR10.7, VvPR10.8 and VvPR10.9 are expressed although devoid of canonical transcription signals.
We found transcripts of all nine PR10 genes in varying amounts, in the different non-treated tissues analysed, suggesting a role apart from defence. Specific expression profiles were found in intact tissues, except for VvPR10.2 and VvPR10.3-a. Stems and intact embryos expressed a reduced subset of PR10 proteins. On the contrary, immature flowers expressed a large subset of PR10 genes, suggesting a possible role of some PR10 proteins during sexual reproduction. No V. vinifera PR10 gene was solely expressed in calli derived from 2,4-D-treated embryos. However, expression of several genes was enhanced in these tissues, at least weakly. Somatic embryogenesis is generally obtained from tissues subjected to the auxin 2,4-D, which acts as a stress factor able to trigger the reprogramming of plant somatic cells towards embryogenesis . As a consequence, high amounts of defence proteins are produced following a 2,4-D treatment, as shown in grapevine cultures . Consistent with the results reported here, we previously showed that varied PR genes including VvPR10.1-a and VvPR10.3-a are up-regulated during secondary somatic embryogenesis induction in V. vinifera . VvPR10.1 expression was also previously reported to be induced in whole plant leaves challenged with the incompatible bacterium Pseudomonas syringae . Interestingly, VvPR10.4 and VvPR10.7 were not responsive to 2,4-D treatment.
On the whole, various expression patterns were found for V. vinifera PR10 genes, indicating functional diversification and possible tissue specificity. Likewise, in other plants, PR10 proteins show expression diversity suggesting various biological activities . A major feature of PR10 proteins is their internal hydrophobic cavity with openings at the protein surface. Several three-dimensional modeling studies showed that this structure is suitable for the binding and transport of diverse hydrophobic ligands as brassinolides  or homocastasterone . Some birch and yellow lupine PR10 can bind diverse molecules such as cytokinins, brassinosteroids, fatty acids and flavonoids, suggesting that they could interfere with the trafficking of hormones inside the cell [10, 16, 17]. Moreover, overexpression of a PR10 gene in pea led to a change in the ratio between cytokinins and abscisic acid, showing that the PR10 content could be relevant for intracellular hormone regulation . Although all crystallographic models for PR10 proteins share the same canonical fold, their superimposition can reveal structural differences . Remarkably, the volume of the internal cavity and of its openings can show some variability, what could influence the type of transported ligand. In yellow lupine, different shapes for the inducible LlPR10.1A and the constitutive LlPR10.1B could account for their different biological roles .
The availability of the complete genome sequence of V. vinifera allowed us to characterise the PR10 gene family. Seventeen different PR10 related sequences including three pseudogenes were identified and located in a single compact cluster on the chromosome 5, most probably reflecting repetitive small duplications during evolution. A phylogenetic analysis showed a characteristic low variability within the different sequences, especially within seven sequences closely located on the chromosome, suggesting probable concerted evolution. We could analyse the expression of nine genes in various tissues. Different expression patterns indicate functional specialisation. Several genes showed a typical stress induced up-regulation. Further experiments will help to elucidate the differential regulation of V. vinifera PR10 gene expression.
The grapevine Genoscope database was used to identify any sequence related to PR10 genes . The Genoscope Blat tool  and the ClustalW alignment tool of the European Bioinformatics Institute (EBI)  were used to retrieve and compare the sequences. An automatic list produced twenty-three unique (among ninety) putative PR10 or PR10-like gene annotations. Seven annotations with no consistent homology with PR10 genes were removed. Six other annotations covered three complete sequences, from which each exon was annotated as an independent gene, suggesting that the intron splicing sites were not detected. The last ten annotations comprised seven sequences with a complete ORF, and three with a prematurely interrupted ORF. All thirteen PR10 related sequences were found to form a cluster on the chromosome 5, between the positions 604,886 and 675,550. Thoroughly examining this chromosome portion as well as its 5' and 3' extensions, we found four additional annotations with nucleotide similarity (48-71% in the ORF) to the thirteen previous sequences. The PR10 cluster was found to be limited by two putative genes not related to PR10 sequences GSVIVT00033064001 and GSVIVT00033091001.
All corresponding genome sequences originating from the Istituto Agrario San Michele all'Adige (IASMA) grapevine database were retrieved using the NCBI Blast tool . They were compared to the Genoscope sequences using the ClustalW alignment tool.
The exon-intron composition of PR10 sequences was automatically determined by the Gaze program on the Genoscope website. When necessary, the position of the intron was corrected relatively to the structure of VvPR10.1 , and according to the 5' and 3' splicing consensus sequences NN/GT and AG/NN, respectively.
Vitis sp. ESTs were searched, using the blastn program of the NCBI database .
Gene structures were predicted using the Gene Finding program on the University of London bioinformatics web server . The organism parameter was set on "dicots". The FGENESH method showed the position of the TATA-box, the first and last nucleotides of the exons and the position of the polyadenylation signal. The TSSP-TCM method localized the transcription initiation site (+1).
The putative CDS were translated using the Transeq program . The PM and pI were determined using the COMPUTE program . The PROSITE database  was used to find the Pathogenesis-related proteins Bet v 1 family signature. Three-dimensional structures were predicted on an automated comparative protein modeling server using SWISS-MODEL .
A phylogenetic tree was built using the Neighbor-Joining method, with the Phylo_win program . Bootstrap values were obtained from 500 replicates. The ClustalW alignment tool was used to compare protein sequences.
All expression studies were performed on V. vinifera plants or cultures of the cultivar Chardonnay.
We separately collected roots, stems (with nodes) and whole leaves from well developed plantlets (10-12 leaves) obtained from in vitro microcutting, as previously described .
Immature flowers were harvested from French vineyards, at the stage of separate flower buds.
Recurrent in vitro embryogenesis was induced from nodal explants of the V. vinifera cv. Chardonnay, as previously described . Young cotyledonary somatic embryos were isolated and transferred onto a medium containing the auxin analog 2,4-D for induction of indirect secondary embryogenesis. After three weeks, an undifferentiated callus was obtained from each embryo.
Tissues were collected, frozen in liquid nitrogen and further conserved at -80°C until RNA extraction. Two independent samplings were performed.
Total RNA extractions and semi-quantitative RT-PCR experiments were performed as reported . Primer pairs were designed to overlap the intron, in order to distinguish possible genome DNA contamination from gene expression products (Table 2). All primer pairs were shown to efficiently detect the respective corresponding genomic sequences (gDNA). Semi-quantitative RT-PCR tests were performed in three replicates. PCR products were sequenced to confirm their identity (Genoscreen, France).
This research was supported by the "Université de Haute Alsace" and by a doctoral fellowship from the "Ministère de l'Enseignement supérieur et de la Recherche" to SL.
SL performed all in silico analyses as well as RT-PCR experiments. PS participated in studies performed in silico. PM carried out the tissue cultures. PS, BW and PM designed and coordinated the study. SL and PM wrote the manuscript. All authors read and approved the manuscript.

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Present: Hadley, P.J., Poehler & Stark, JJ.
Grace M. Calamita and Karen J. Wisniewski for the plaintiff.
HADLEY, P.J. The plaintiff, Discover Bank, is a state-chartered bank incorporated under the laws of Delaware. The defendant, Yue Fang, is an individual who resides in Massachusetts. The plaintiff brought this action alleging that the defendant had become indebted to the plaintiff in the sum of $14,196.77 for charges and/or cash advances incurred on a credit account. The defendant filed an answer stating that he was without sufficient knowledge or information to form a belief as to the alleged debt and that based on his lack of information or belief, he denied the alleged debt.
The plaintiff filed a motion for summary judgment. The plaintiff indicated that its theory of liability was an account stated, and in support of its motion for summary judgment, it filed an affidavit from a litigation support specialist for Discover Products, Inc. She stated that the company was a servicing affiliate of Discover Bank and that in her capacity as an employee of Discover Products, Inc., she was "familiar with the facts" and that "to the best of [her] knowledge," the defendant was indebted to the plaintiff in the amount of $14,196.77. Her affidavit included a statement to the effect that on or before April 30, 2012, the defendant became indebted to the plaintiff in that amount according to the original books and/or computerized records of entry for an account ending in the number 1133. Her affidavit also stated that the defendant had paid nothing on that debt. The affidavit further stated that according to the records maintained by Discover Products, Inc., statements were either provided to the defendant electronically or mailed to the defendant at an address the company kept on file. In addition, the affidavit stated that the records maintained by Discover Products, Inc. listed the correct home address for the defendant. Finally, her affidavit stated that it was "[s]ubscribed and sworn" before an Ohio notary public.
The record before us in this expedited appeal under Dist./Mun. Cts. R. A. D. A. 8A also includes four pages of what appear to be credit card statements, although it appears that the plaintiff's motion for summary judgment was accompanied by eighty-eight pages of what were purportedly statements from Discover Bank bearing the names of the defendant and another person. There was, however, no specific reference to any of these documents in the affidavit submitted by the plaintiff.
or in electronic form," had ever been presented to him proving he had applied for a Discover Bank credit card account ending in 1133 or stating when and where he received, activated, and used the account. He went on to state that "[b]ase [sic] on the above fact, the Defendant denies that he is the cardholder of this credit account ending in 1133." He also stated that the plaintiff's affidavit failed to show that monthly billing statements were actually received by him at the time they were generated. He stated, "Therefore, I dispute this statement."
The defendant additionally stated that the documents the plaintiff filed did not support its claim that he opened an account with the plaintiff on October 4, 1990. More specifically, the defendant stated, "I found no document provide [sic] any legal basis for that statement. So I dispute this statement." Finally, in his affidavit, the defendant disputed the plaintiff's allegation that he made a payment on the subject account on August 14, 2011 in the amount of $250.00 (apparently, a transaction that was reflected somewhere in the eighty-eight pages of documents offered by the plaintiff). In this regard, the defendant stated in his affidavit, "[T]here is no proof that demonstrated the Defendant made such a payment personally and/or through his personal bank account. Again I dispute this statement."
Following a hearing, a District Court judge allowed the plaintiff's motion for summary judgment. Three days later, judgment entered in favor of the plaintiff in the amount of $14,196.77, plus court costs. Ten days later, the defendant filed three motions, including a motion to strike the affidavit filed in support of the plaintiff's motion for summary judgment. In that motion, the defendant noted that the affidavit included a representation from a notary that the statement was a "sworn" statement, but did not include a representation that the affiant made her statement "under penalties of perjury." The defendant also complained that the individual who signed the affidavit represented that the facts included in the affidavit were made "to the best of [her] knowledge," rather than on her "personal knowledge."
The defendant also filed a motion to strike the records that had been offered in support of the motion for summary judgment. He asserted that these purported account statements constituted inadmissible hearsay because they were not referenced in the plaintiff's affidavit, and were merely attached to the motion as an exhibit.
Finally, citing Mass. R. Civ. P. 59(e), the defendant filed a motion to alter or amend the judgment in favor of the plaintiff. In that motion, he repeated the arguments made in the first two motions, and argued that the plaintiff had failed to establish the existence of an account stated, and asserted that based on his own affidavit, there was a genuine issue of material fact in dispute.
bank records establish that the plaintiff is entitled to judgment on an account stated as a matter of law.
With regard to the defendant's own affidavit, we note that affidavits in opposition to a motion for summary judgment may not be based on general denials of the opponent's evidence. They must be based on specific factual statements. The defendant's vague statements to the effect that he denies the existence of the account, any alleged payments on the account, and the receipt of mailings on the account because he has not been provided with "legal documents" in the context of this litigation do not suffice to create genuine questions of material fact. The motion judge properly could have disregarded these vague, nonspecific denials when he considered the plaintiff's motion.
Concerning the attestation in the affidavit offered in support of the plaintiff's motion for summary judgment, "[a]n affidavit is a statement in writing sworn before an officer authorized to administer an oath." Murphy, petitioner, 321 Mass. 206, 213 (1947). In order to comply with Mass. R. Civ. P. 56, an affiant must either verify his or her affidavit by oath before a notary public or some other person authorized to take oaths, or sign the affidavit under the penalties of perjury. Although a statement containing a written declaration that the statement is "made under the penalties of perjury" satisfies the requirements for an affidavit, these exact words are not required. In this case, the plaintiff's affidavit states that it was sworn before an Ohio notary public. See Ohio Rev. Code Ann. § 147.07. Therefore, the attestation was sufficient, and the defendant's position on this issue is without merit.
"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith . . . ."
An affidavit founded upon belief or "information and belief," rather than upon the affiant's personal knowledge, is not sufficient. Here, the plaintiff's affiant represented that in her capacity as an employee of the company that services the plaintiff's accounts, she is "familiar with the facts" and that "to the best of [her] knowledge," the defendant is indebted to the plaintiff as alleged. She then went on to state that according to records maintained by her employer, billing statements were sent to the defendant's address. We find these representations made by someone who purports to be familiar with the facts, as opposed to having personal knowledge of them, to be analogous to statements made on "information and belief," which simply do not meet the requirements of Rule 56.
unobjected-to deficiencies and properly considered the affidavit. Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 12 n.2 (1988); Madsen v. Erwin, 395 Mass. 715, 721 (1985).
With regard to the purported credit card statements that were attached to the plaintiff's motion for summary judgment, they were not "sworn or certified" documents, and they were not referred to in the sworn affidavit the plaintiff supplied. In short, the plaintiff did not establish a foundation for the admissibility of these records, and the defendant is correct in his assertion that they constituted inadmissible hearsay. Accordingly, they were vulnerable to a motion to strike. Once again, the defendant made no objection to these documents prior to the hearing on the motion for summary judgment. Had the defendant failed to take any further action before the motion judge, an argument could be made that it would not have been reversible error for the judge to consider these documents at the initial hearing on the motion for summary judgment. See Stetson v. Board of Selectmen of Carlisle, 369 Mass. 755, 763 n.12 (1976); Stepan Chem. Co. v. Town of Wilmington, 8 Mass. App. Ct. 880 (1979).
The defendant, however, filed a timely motion pursuant to Mass. R. Civ. P. 59(e). In the context of a motion for summary judgment, this is treated as an application for rehearing, reconsideration, or vacation. See Piedra v. Mercy Hosp., Inc., 39 Mass. App. Ct. 184, 187 n.3 (1995). Through that motion, the defendant correctly pointed out that the court's decision to grant the plaintiff summary judgment was based on facts, of which the plaintiff's affiant had no personal knowledge, and on documents that contained inadmissible hearsay. There is a strong policy in favor of matters being decided on their merits and pursuant to Rule 56, it is the moving party's burden to show that it is entitled to judgment based on testimony and evidence that would be admissible at trial. For these reasons, the defendant's Rule 59(e) motion should have been allowed and the order for the entry of summary judgment should have been vacated.
Accordingly, the summary judgment entered for the plaintiff is vacated, the allowance of its Mass. R. Civ. P. 56 motion is reversed, and the case is returned to the trial court for further proceedings.


text:
According to the next verse, the vision continues.
This verse seems a bit cryptic. Efforts to explain it fall short, as far as I am concerned. It sounds to me as if the God Figure is criticizing the men of Israel because they are not soldiers in the battle, but that makes no sense. He as much as told them not to resist, as that would virtually guarantee their demise (See Jere. 21:9). It’s possible the Lord is taunting them, and making fun of their false sense of security.
The pronoun you in the middle of the verse is masculine plural. I believe the God Figure must be addressing the inhabitants of Jerusalem here.
From this verse on, some of the Hebrew is fraught with mystery, and the message seems to defy understanding.
Immediately we encounter a conundrum. What is meant by the expression “cushions upon all the joints of My hand?” Incidentally, other translators offer something like “cushions upon all elbows,” a mistranslation that ignores at least one of the seemingly unintelligible Hebrew words in the verse. It doesn’t help that the word appears no where else in the bible except here and in v. 13:20 below. I suspect that the last part of the verse, the question, might offer a clue as to the context. But it doesn’t help to understand the expression, or even much of the rest of the verse. I must assume that the expression meant something to Ezekiel and the Jews of the era, but that meaning is now lost. However, don’t despair; I have more to say about this below after v. 13:20. Meanwhile, the context for this verse and the next must be the famine in Jerusalem during the ongoing siege, when toward the end cannibalism was a means of survival.
What are these cushions mentioned here and in v. 13:18 above? Some other definitions of the basic word tAts'K (from v. 13:18) found in various bibles are pillows, bands, and false phylacteries. I find it difficult to reconcile any of these definitions within the context of v. 13:18, but in this verse the last two listed definitions seem to fit, yet still in a strange way. At least it’s conceivable that they could be ripped off the arms. Now there’s added strangeness in the Hebrew of this verse. The pronouns don’t all match their antecedents. Remember the persons being addressed are the seamstresses in v. 13:18, and they are feminine plural. The word translated here as cushions is also feminine plural. Yet the pronouns them in I will tear them and your in from your arms are both masculine plural. On occasion feminine plural antecedents are pointed to by masculine plural pronouns, but it’s relatively rare. Keep in mind that masculine plural pronouns are appropriate for mixed groups (of males and females), although there are no mixed groups identified here. Two illuminating thoughts that I have about this strange Hebrew are these: (1) The “seamstresses” in v. 13:18 are really a metaphor for the prophets being prophesied against (v. 13:2), and they are masculine plural; (2) The antecedent for the pronoun them could be the souls (of both males and females) and not the cushions, and that would make this masculine pronoun appropriate.

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