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Can indirect purchasers sue to recover losses from price-fixing that are passed on to them by direct purchasers? Indirect purchasers are purchasers who buy a product from direct purchasers, who in turn buy it directly from cartel members. In April, the BC Court of Appeal ruled that indirect purchasers cannot sue. Since it is no defence to say that direct purchasers passed on the loss, direct purchasers are entitled to recover the entire overcharge, leaving nothing for indirect purchasers. The court thus refused to certify class actions alleging that producers of high-fructose corn syrup conspired to fix prices, and that Microsoft conspired with computer manufacturers to keep prices high.
Not long after, an Ontario court certified a class action on behalf of direct and indirect purchasers alleging that makers of LCD panels fixed prices, and a Quebec court certified a class action consisting mainly of indirect purchasers alleging that makers of DRAM chips conspired to fix prices. The BC Court of Appeal certified a case alleging that Toyota Canada and its dealers conspired to fix retail car prices and even suggested that it may not be necessary to prove damages. As well, past cases in BC and Ontario have held that indirect purchasers can sue.
“When a price is offered to consumers, it must be accurate. Including a fine-print disclaimer is no licence to advertise prices that are not available,” Commissioner of Competition Melanie Aitken stated in announcing that Bell Canada had agreed to pay a $10 million fine to settle the Bureau’s concerns that it was charging higher prices than it advertised for many of its services. Bell hid mandatory fees from consumers in fine-print disclaimers, the Bureau claimed. Bell settled but did not admit liability.
Gasoline price-fixers sentenced: eleven individuals involved in fixing gas prices in Magog and Thetford Mines, Quebec, pleaded guilty and were sentenced to pay fines. So far 22 individuals and six companies have pleaded guilty and been fined over $2.8 million. Six individuals have been sentenced to serve a total of 54 months in the community.
Refrigeration conspiracy frozen: Kason Industries Inc. conspired with competitors, including Component Hardware Group Inc. to fix prices and allocate customers for refrigerator components. Kason pleaded guilty and was fined $250,000 in Canada, after agreeing to pay a $3.3 million fine in the US in 2010. Kason’s president, Peter Katz, also agreed to plead guilty in the US.
It smells like… bid rigging: six companies and five individuals were charged with rigging bids for government contracts for specialized sewer services in the Montreal area. One company pleaded guilty and was fined $75,000.
Clearing the air: a contractor pleaded guilty and was fined $425,000 for rigging bids for contracts to install ventilation systems in residential highrise buildings in the Montreal area.
Three contractors pleaded guilty to rigging bids for the expansion of the Chicoutimi Hospital in 2003 and were fined a total of $75,000.
Ontario’s top court ruled that when investigators encounter evidence of other crimes during a search of a computer, the “plain view” doctrine applies, and the Crown can use the evidence. Before conducting searches based on such evidence, however, they must get a fresh warrant.
Virtual real estate fight: the Bureau commenced an abuse of dominance application to force the Toronto Real Estate Board to allow real estate brokers to make MLS data directly available to their customers through innovative online tools. TREB says that it is merely exercising its copyright over the database, which is exempt from scrutiny.
Air Canada and United Airlines’ joint venture is a merger that would eliminate competition on routes between Canada and the US, the Bureau alleges in an application to prohibit the tie up. The Bureau also wants to stop the airlines from coordinating transborder business, including pricing, inventory, and yield management.
Google’s proposed acquisition of Motorola would not change existing market dynamics, the US Department of Justice and the European Commission concluded in allowing the deal to proceed in February 2012. The Bureau issued a “no action letter”, but did not comment publicly.
Canadian Tire’s acquisition of The Forzani Group would not enhance Canadian Tire’s market power in the retail sporting goods market, the Bureau concluded.
Bell and Rogers’ bid to buy 37.5% each of Maple Leaf Sports and Entertainment is being investigated, the Bureau confirmed. MLSE owns the Maple Leafs, the Raptors, the Toronto FC, the Marlies and the Air Canada Centre.
The Bureau expressed “serious concerns” in November about Maple Group’s bid to acquire TMX Group Inc.
The Bureau updated its Merger Enforcement Guidelines, issued Merger Review Process Guidelines, raised the pre-merger notification transaction-size threshold to $77 million for 2012, and announced plans to publish public monthly reports of concluded merger reviews. Its first such report, for February 2012, lists 16 transactions.
The skinny on skin cream: Claims by makers of Nivea that “My Silhouette” skin cream made people slimmer resulted in agreements to pay fines of $300,000 in Canada and $900,000 in the US, to recall the product, refund customers, and publish a corrective notice.
Claims by two Alberta spa retailers that their hot tubs complied with the ENERGY STAR Program got them into hot water. They were fined $130,000.
A Quebec court sentenced four call operators in a telemarketing fraud “boiler room” to community service. The two originators of the scam were extradited to the US and sentenced there to six and eight years’ imprisonment. They defrauded about 24,000 victims in the US of about $7 million by selling worthless pre-approved credit cards and loans.
An Alberta court convicted five individuals of fraud and telemarketing offences for falsely telling businesses they had ordered directory listings in order to pressure them to pay.
Montreal-based telemarketers that allegedly made over $172 million by pressuring targets to buy directory services or office supplies on the pretext of an established supply relationship, or to buy a medical kit ostensibly required by law, were charged with criminal offences.
An Alberta man was charged with breaching a 2006 consent agreement by continuing to operate an online job opportunities scam.
Several airlines settled class actions alleging they fixed cargo prices. SAS agreed to pay $300,000; Qantas, $237,000; Cargolux, $1.8 million; and Singapore Airlines, $1 million.
Chicken processor Nadeau Poultry lost its appeal from the Competition Tribunal’s decision not to force Groupe Westco to continue to supply it with chickens for processing.
The Used Car Dealers Association of Ontario is applying to force the Insurance Bureau of Canada to continue to supply it with claims data. IBC agreed to continue supplying claims data pending the outcome of UCDA’s application, but later changed its mind, citing a refusal from one of its members to provide this data.
Brandon Gray Internet Services Inc. was denied leave to apply to force the Canadian Internet Registration Authority to renew its certification as a .ca registrar. CIRA said it dropped Brandon Gray because of its association with Domain Registry of Canada, which has been accused of sending out misleading renewal notices.
Rogers settled a class action alleging that it misled landline customers about its long distance metering practices by agreeing to make a charitable donation and provide certain class members with two days of free landline calls within Canada.
The DOJ obtained over $748 million in fines from participants in a cartel that fixed prices and rigged bids in the auto parts industry. One of these, Yazaki Corporation, paid $470 million, the second highest fine for price fixing ever. Four Japanese executives have agreed to spend between 15 months and two years in US jails.
Clifford Edwards will be extradited to stand trial in the US on charges that he defrauded elderly US residents. Potentially exculpatory evidence he planned to lead at trial was not relevant to whether he should be extradited, the BC Court of Appeal held.
Price-fixers pay: Refrigeration compressor manufacturers were fined €161 million by the European Commission. Cartel members included Danfoss, Panasonic, and Tecumseh. Laundry detergent makers Proctor & Gamble and Unilever were fined €315 million, while Henkel received immunity for being the first to self-report. ArcelorMittal and 16 other producers of prestressing steel were fined nearly €270 million.
The Commission blocked a proposed merger between NYSE Euronext and Deutsche Borse because the merger would have resulted in a quasi-monopoly for trading in European financial derivatives. Commitments offered by the merging parties were not enough. The parties had previously agreed to divestitures to resolve the US DOJ’s concerns.
 Sun-Rype Products Ltd. v. Archer Daniels Midland Company, 2011 BCCA 187, http://www.canlii.org/en/bc/bcca/doc/2011/2011bcca187/2011bcca187.html.
 Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2011 BCCA 186, http://www.canlii.org/en/bc/bcca/doc/2011/2011bcca186/2011bcca186.html.
 Fanshawe College of Applied Arts and Technology v. LG Philips LCD Co., 2011 ONSC 2484, http://www.canlii.org/en/on/onsc/doc/2011/2011onsc2484/2011onsc2484.html.
 Options Consommateurs v. Infineon Technologies AG, 2011 QCCA 2115, http://www.canlii.org/en/qc/qcca/doc/2011/2011qcca2115/2011qcca2115.html.
 Steele v. Toyota Canada Inc.,  B.C.J. No. 352.
 Pro-Sys Consultants Ltd. v. Infineon Technologies AG, 2009 BCCA 503, http://www.canlii.org/en/bc/bcca/doc/2009/2009bcca503/2009bcca503.html; see M. Osborne “Aggregate Assessment of Damages Allows Certification of Conspiracy Class Actions, Courts Hold”, (2010) 23:3 Can. Comp. Rec. 82, http://www.thelitigator.ca/2010/04/aggregate-assessment-of-damages-allows-certifcation-of-conspiracy-class-actions-courts-hold.
 Irving Paper Ltd. v. Atofina Chemicals Inc.,  O.J. No. 4021 (S.C.J.).
 See “Indirect Purchaser Cases to be Heard by Supreme Court”, http://www.thelitigator.ca/2011/12/indirect-purchaser-cases-to-be-heard-by-supreme-court/.
 Commissioner of Competition v. Yellow Page Marketing, 2012 ONSC 927, http://www.canlii.org/en/on/onsc/doc/2012/2012onsc927/2012onsc927.html.
 Competition Bureau news release, 6 January 2012, “Competition Bureau Sends Signal to Price-Fixers with $12.5 Million Fine”, http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/01353.html.
 Competition Bureau news release, 30 May 2011, “Individual Fined in Quebec Gasoline Price-Fixing Cartel”, http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03380.html, 8 March 2012, “Individual Fined in Gasoline Price-Fixing Cartel in Thetford Mines”, http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03442.html.
 Competition Bureau news release, 10 Jun 2011, “Two Individuals Plead Guilty in Quebec Gasoline Price-Fixing Cartel”, http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03382.html; Competition Bureau news release, 27 January 2012, “Seven Sentenced for Fixing Gas Prices in Thetford Mines”, http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03041.html.
 Competition Bureau, 27 January 2012, “List of Charges and Sentences in the Quebec Gasoline Price-fixing Cartel”, http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03079.html.
 Canada v. Kason Industries Inc., 2011 FC 281, http://decisions.fct-cf.gc.ca/en/2011/2011fc281/2011fc281.html; Competition Bureau news release, 6 May 2011, Competition Bureau Exposes Customer Allocation Conspiracy, http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/02644.html.
 US Department of Justice Antitrust Division press release, 17 Aug 2010, “Georgia Manufacturer of Food Service Equipment Hardware Pays $3.3 Million Fine for Role in Customer Allocation Conspiracy”, http://www.justice.gov/atr/public/press_releases/2010/261565.htm.
 Competition Bureau news release, 22 Nov 2011, “Competition Bureau Exposes Sewer Services Cartel in Quebec”, http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03430.html.
 Competition Bureau news release, 19 July 2011, “Guilty Plea and $425,000 fine for Bid-rigging in Montreal”, http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03391.html.
 Competition Bureau news release, 17 February 2012, “Quebec Construction Companies Plead Guilty to Rigging Bids for the Chicoutimi Hospital”, http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03436.html.
 US Department of Justice, 13 Feb 2012, “Statement of the Department of Justice’s Antitrust Division on Its Decision to Close Its Investigations of Google Inc.’s Acquisition of Motorola Mobility Holdings Inc. and the Acquisitions of Certain Patents by Apple Inc., Microsoft Corp. and Research in Motion Ltd.”, http://www.justice.gov/opa/pr/2012/February/12-at-210.html.
 European Commission DG Competition news release, 13 Feb 2012, “Mergers: Commission approves acquisition of Motorola Mobility by Google”, http://europa.eu/rapid/pressReleasesAction.do?reference=IP/12/129&format=HTML&aged=0&language=EN&guiLanguage=en.
 Bloomberg, 30 Nov 2011, “TMX Falls After Competition Bureau Cites ‘Serious Concerns’”, http://www.bloomberg.com/news/2011-11-30/tmx-told-canadian-antitrust-regulator-has-serious-concerns-over-maple-deal.html.
 Competition Bureau news release, 7 Feb 2012, “2012 Pre-Merger Notification Transaction-Size Threshold”, http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03040.html.
 Competition Bureau news release, 6 Feb 2012, “Competition Bureau Moves to Increase Merger Review Transparency”, http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03118.html.
 Competition Bureau, Monthly Report of Concluded Merger Reviews, http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/02435.html.
 Federal Trade Commission news release, 29 June 2011, “FTC Settlement Prohibits Marketer from Claiming that Nivea Skin Cream Can Help Consumers Slim Down”, http://www.ftc.gov/opa/2011/06/beiersdorf.shtm.
 See: R. c. Posidio Patricio, 2011 QCCQ 5261, see: http://www.canlii.org/en/qc/qccq/doc/2011/2011qccq5261/2011qccq5261.pdf .
 See: R. v. Cheung, 2011 ABQB 225, see: http://www.canlii.org/en/ab/abqb/doc/2011/2011abqb225/2011abqb225.html and http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03402.html.
 Murphy v. Cie Amway Canada, 2011 FC 1341, http://decisions.fct-cf.gc.ca/en/2011/2011fc1341/2011fc1341.html.
 321665 Alberta Ltd. v. ExxonMobil Canada Ltd., 2011 ABQB 292, http://www.canlii.org/en/ab/abqb/doc/2011/2011abqb292/2011abqb292.html.
 Airia Brands Inc. v. Air Canada, 2011 ONSC 6286.
 Nadeau Poultry Farm Ltd. v. Groupe Westco Inc., 2011 FCA 188.
 The Used Car Dealers Association of Ontario v. Insurance Bureau of Canada, 2011 Comp. Trib. 10, http://www.ct-tc.gc.ca/CasesAffaires/CasesDetails-eng.asp?CaseID=350.
 The Used Car Dealers Association of Ontario v. Insurance Bureau of Canada, 2011 Comp. Trib. 20, www.ct-tc.gc.ca/CasesAffaires/CasesDetails-eng.asp?CaseID=352.
 See The Used Car Dealers Association of Ontario v. Insurance Bureau of Canada, 2012 Comp. Trib. 1, http://www.ct-tc.gc.ca/CasesAffaires/CasesDetails-eng.asp?CaseID=353; and http://www.ct-tc.gc.ca/CasesAffaires/CasesDetails-eng.asp?CaseID=352.
 Brandon Gray Internet Services Inc. v. Canadian Internet Registration Authority, 2011 Comp. Trib. 1, http://www.ct-tc.gc.ca/CasesAffaires/CasesDetails-eng.asp?CaseID=335.
 Wein v. Rogers Cable Communications Inc., 2011 ONSC 7290, see: http://www.canlii.org/en/on/onsc/doc/2011/2011onsc7290/2011onsc7290.pdf.
 US Department of Justice, 30 Jan 2012, “Yazaki Corp., DENSO Corp. and Four Yazaki Executives Agree to Plead Guilty to Automobile Parts Price-Fixing and Bid-Rigging Conspiracies”, http://www.justice.gov/atr/public/press_releases/2012/279734.htm.
 US Department of Justice news release, 12 Sept 2011, “Canadian National Sentenced to Serve 50 Months in Prison for Role in Fraud and Money Laundering Conspiracies Involving New Jersey Environmental Protection Agency at Superfund Site”, http://www.justice.gov/atr/public/press_releases/2011/274879.pdf.
 See: United States of America v. Edwards, 2011 BCCA 100, see: http://www.canlii.org/en/bc/bcca/doc/2011/2011bcca100/2011bcca100.pdf.
 European Commission DG Competition news release, 7 Dec 2011, “Commission fines producers of refrigeration compressors € 161 million in fifth cartel settlement”, http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/1511&format=HTML&aged=1&language=EN&guiLanguage=en.
 European Commission DG Competition news release, 13 April 2011, “Commission fines producers of washing powder € 315.2 million in cartel settlement case”, http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/473&format=HTML&aged=1&language=EN&guiLanguage=en.
 European Commission DG Competition news release, 4 April 2011, “Commission fines prestressing steel producers € 269 million for two-decades long price-fixing and market-sharing cartel”, http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/403&format=HTML&aged=1&language=EN&guiLanguage=en.
 European Commission DG Competition news release, 1 Feb 2012, “Commission blocks proposed merger between Deutsche Börse and NYSE Euronext”, http://europa.eu/rapid/pressReleasesAction.do?reference=IP/12/94&format=HTML&aged=0&language=EN&guiLanguage=en.
 US Department of Justice news release, 9 Feb 2012, “Justice Department Dismisses Antitrust Lawsuit Against Deutsche Börse And NYSE Euronext”, http://www.justice.gov/atr/public/press_releases/2012/280066.htm.

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Martin v. Franklin Capital Corp.
Sereboff v. Mid Atlantic Medical Services, Inc.
Federal Election Comm’n v. Wisconsin Right to Life, Inc.
United States v. Clintwood Elkhorn Mining Co.
Board of Trustees of Leland Stanford Junior Univ. v. Roche Molecular Systems, Inc.
Agency for Int’l Development v. Alliance for Open Society Int’l, Inc.
Impression Products, Inc. v. Lexmark Int’l, Inc.

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Kelchner, V. P., Perleoni, M. K., & Lambie, G. W. (Under Review). An investigation of change in elementary students with an individual education plan participating in a school-based mental health counseling intervention. Teaching Exceptional Children.
Perleoni, M. K., Borland, J., Joe, J. R., & Lambie, G. W. (Under Review). The influence of a humanistic school based mental health counseling intervention on the social-emotional functionality of students enrolled in title I elementary schools. The Journal of Humanistic Counseling.
Lambie, G. W., Solomon, C., Joe, J. R., Kelchner, V. P., & Perleoni, M. (in press). The influence of school-based mental health counseling services on elementary school students. Children & Schools.
Belser, C., Wheeler, N., Bierbrauer, S., Solomon, C. S., Harris, S., Crunk, A. E., & Lambie, G. W. (in press). The experiences of counselors-in-trainings with an after school-based mental health counseling practicum. The Journal of Counseling Preparation and Supervision.
Solomon, C., & Lambie, G. W. (2018). Hispanic teachers’ experiences with occupationanal stressors while working in Title I elementary schools. Journal of Latinos and Education.
Solomon, C., Bierbrauer, S. L., Harris, S., Belser, C., Wheeler, N., Crunk, E., & Lambie. G. W. (2016). Experience of caregivers and students in an elementary school-based mental health counseling practicum program. Journal of Child and Adolescent Counseling, 2(2), 125-142.
Perleoni, M. K., Lambie, G. W., & Kelchner, V. P., Borland, J. (March, 2019). Trauma-Informed School Based Counseling with Children Living in Poverty. Paper will be presented at the national conference of the American Counseling Association (ACA), New Orleans, LA.
Perleoni, M. K., Lambie, G. W., & Kelchner, V. P. (2018). The influence of a school-based mental health counseling intervention on elementary students with iep’s. Paper presented at the national conference of the Association for Assessment and Research in Counseling Conference (AARC), Richnmond, VA.
Perleoni, M. K., Lambie, G. W., Joe., J. R., Kelchner, V. P., & Borland, J. (April, 2018). School-based counseling with elementary school students in low ses communities. Paper presented at the national conference of the American Counselor Association. Conference (ACA), Atlanta, GA.
Perleoni, M. K., Lambie, G. W., Kelchner, V. P., Chase, A., & Wilson, N. (October, 2018). The influence of school-based mental health counseling services on elementary students on iep’s. Paper presented at the regional conference of the Southern Association for Counselor Education and Supervision (SACES), Myrtle Beach, SC.
Solomon, C., Belser, C. T., Bierbrauer, S. L., & Lambie, G. W. (April, 2016). Students, families, and counselors experiences with a school-based counseling program. Paper presented at the American Counseling Association (ACA) Conference in Montreal, Canada.

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Shoplifting charges are serious, and the penalties can be severe depending on the value of the items at issue, your prior record, and the circumstances of your case.
Assist anyone else in doing any of the above.
Under § 18.2-103, a shoplifting conviction involving goods valued at less than $500 is punishable as petit larceny. Petit larceny is punishable, under Virginia Code § 18.2-96, as a Class 1 misdemeanor with a maximum penalty of up to 12 months in jail and/or a fine of up to $2,500.
However, if the value of the stolen goods is $500 or more, then shoplifting is punishable as grand larceny, an unclassified felony punishable under § 18.2-95 with up to 20 years in jail, or up to 12 months in jail and/or a fine of up to $2,500, in the discretion of the judge or jury.
Under Virginia Code § 18.2-105.1, shop owners or loss prevention officers have the authority to temporarily detain an individual, if they have probable cause to believe that individual shoplifted, for up to one hour pending the arrival of law enforcement officers.
In addition to criminal penalties for shoplifting, Virginia Code § 18.2-104.1 provides that any person convicted of a shoplifting offense under § 18.2-103 is civilly liable to the store owner for the retail value of any merchandise illegally taken and not recovered by the owner, and for the all costs incurred in prosecuting the individual under § 18.2-103. Those costs are limited to the actual expenses incurred by the store, such as the base wage of one employee acting as a witness for the Commonwealth in the case. The maximum total allowable costs under this statute are $250, not including the retail value of the goods and merchandise.
Mistaken identity: Sometimes shop owners or loss prevention officers may identify the wrong individual as a suspect in a shoplifting case. A careful review of any surveillance footage and other evidence may be necessary to ensure that the Commonwealth can prove identity beyond all reasonable doubt.
Lack of intent: In order to obtain a conviction for shoplifting, the Commonwealth has to prove beyond a reasonable doubt that the defendant intended to “convert” (i.e., take or steal) the goods or merchandise to his own or another’s use or to defraud the owner of the goods. Simply taking something without such intent, such as when someone accidentally passes a checkout area without intending to take the goods and not paying for them, is not enough to prove intent to steal.
If you are charged with shoplifting, you need an experienced criminal defense attorney to guide you through the process, carefully evaluate the evidence against you, and help you assert any defenses you may have. Depending on your record and the circumstances of the case, your attorney may be able to negotiate a deferral agreement that results in the dismissal of the case. Alternatively, your attorney may negotiate a favorable plea agreement on your behalf with the Commonwealth. And where appropriate, an experienced defense attorney can help you fight the case at trial and seek a not guilty verdict.


On Defendants Blue Diamond LLC’s and Parkway Gravel, Inc.’s Motion for Judgment on the Pleadings.
Marc S. Casarino, Esquire Dana Spring Monzo, Esquire Nicholas Wynn, Esquire White and Williams, LLP Attorneys for Defendants Blue Diamond LLC and Parkway Gravel, Inc.
Pending before this Court is Defendants Blue Diamond LLC’s and Parkway Gravel, Inc.’s (“Defendants”) Motion for Judgment on the Pleadings. In their complaint, Plaintiffs allege that minor Thomas Lynam, IV (“Tommy”) was riding his motocross bicycle on Defendants’ motocross track. After riding off a jump, Tommy landed, lost control of his motocross bicycle, and collided with a metal shipping container near the track. Tommy apparently sustained serious injuries. Plaintiffs’ complaint raises one count of “negligence” as a theory for liability.Although not listed as a separate count in their complaint, Plaintiffs allude in their general “negligence” claim to a theory of reckless conduct by Defendants in connection with the operation of the motocross track.
In their motion, Defendants assert that their alleged behavior was, as a matter of fact and law, neither negligent nor reckless. Alternatively, Defendants raise an affirmative defense that they are released from any liability for negligent or reckless conduct due to a release agreement (the “Release”) signed by the Plaintiffs. Additionally, Defendants raise the doctrine of assumption of the risk as a separate affirmative defense as a bar to recovery.
Plaintiffs agree that they released Defendants from liability for Defendants’ own “negligence.” However, Plaintiffs contend that Defendants’ conduct amounted to recklessness, and that Plaintiffs never released Defendants from liability for their allegedly reckless conduct. In response to Defendants’ claim that Plaintiffs assumed the risk of injury, Plaintiffs contend that the risk of a collision with a metal shipping container was not contemplated at either the signing of the Release or when Tommy began using the facilities.
This Court concludes that the Release was not specifically tailored so as to release Defendants from liability for their allegedly reckless conduct. The Court also finds that the factual record is insufficiently developed to make a legal determination of whether Defendants’ conduct as a matter of law amounted to recklessness. Finally, the Court concludes that it is premature at this juncture to consider Defendant’s affirmative defense. Accordingly, the Court denies Defendants’ Motion for Judgment on the Pleadings.
On January 6, 2013, Tommy, then thirteen years old, was riding a motocross bicycle at Blue Diamond Motocross near New Castle. Plaintiffs allege that the track was advertised as being composed of “safe jumps.” While riding, Tommy rode off a jump, made a hard landing, and was unable to stop in time before colliding with a large metal shipping container.
Prior to granting Tommy admission to the Blue Diamond facilities to ride his motocross bicycle, Blue Diamond required Tommy’s father to sign a release agreement. The Release, entitled “Parental Consent, Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement, ” stated that Plaintiffs understood the “risks and dangers of serious bodily injury” posed by motocross and relieved Defendants from liability for their own negligence. The Release also released Defendants from liability for injuries suffered by Plaintiffs through their own negligence.
In their complaint, Plaintiffs allege that Defendants negligently allowed the container to remain on the premises at an unsafe distance from the motocross track. While Plaintiffs do not specifically allege recklessness as a separate claim for recovery, but rather include it in a single count of “Negligence, ” Plaintiffs’ complaint references reckless conduct as another potential theory of recovery.Plaintiffs, however, now agree that their claims of negligence are barred by the Release. But Plaintiffs assert that the Release did not specifically address or contemplate potential claims against Defendants for “reckless” behavior.
Defendants contend that the executed Release bars recovery for negligence. At oral argument on this motion, Plaintiffs agreed (Plaintiffs’ filings were not explicit on this point) that the Release bars recovery for injuries resulting from Defendants’ allegedly negligent conduct. Although Plaintiffs are residents of Pennsylvania, the parties agree that Delaware law applies to the present motion, as Defendants are Delaware businesses and the incident giving rise to the case at bar occurred in Delaware.
The Delaware Supreme Court held that the release was sufficiently clear and unequivocal, and that it expressly released the defendant from any and all causes of actions relating to the defendant’s own negligence. Defendants rely heavily on this case, asserting that it applies to claims of reckless conduct.
3. I consent to the Minor’s participation in the Event(s) and/or entry into restricted areas and HEREBY ACCEPT AND ASSUME ALL SUCH RISKS, KNOWN AND UNKNOWN, AND ASSUME ALL RESPONSIBILITY FOR THE LOSSES, COSTS, AND/OR DAMAGES FOLLOWING SUCH INJURY, DISABILITY, PARALYSIS OR DEATH, EVEN IF CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE OF THE “RELEASEES” NAMED BELOW.
4. I HEREBY RELEASE, DISCHARGE AND COVENANT NOT TO SUE the . . . track owners, [and] owners and lessees of premises used to conduct the Event(s) . . . all for the purposes herein referred to as “Releasees, ” FROM ALL LIABILITY TO ME, THE MINOR, [and] my and the minor’s personal representatives . . . FOR ANY AND ALL CLAIMS, DEMANDS, LOSSES, OR DAMAGES ON ACCOUNT OF INJRY, including, but not limited to, death or damage to property, CAUSED . . . BY THE NEGLIGENCE OF THE “RELEASEES” OR OTHERWISE.
Similar to the language at issue in Ketler, the Release expressly states that the signor assumes responsibility for injuries caused by Defendants’ own negligent conduct. The release also expressly states that the Defendants are released from any and all causes of action that may arise from Defendants’ negligent conduct. Accordingly, this Court agrees with the parties that the Release validly exculpates Defendants from liability for their own negligence.
Defendants also rely on Lafate v. New Castle County and Devecchio v. Delaware Enduro Riders, Inc. to support their position that the Release waives claims of reckless conduct. Both Lafate and Devecchio concern agreements that released the tortfeasors from liability for their own negligent conduct. Both cases also discussed whether the language of the releases was sufficiently tailored to release the tortfeasor’s negligent conduct. In Lafate, this Court refused to grant the defendant’s motion for summary judgment on grounds that the release did not clearly and unambiguously release the tortfeasor from claims that it was negligent. In Devecchio, this Court granted the defendant’s motion for summary judgment because the plaintiff signed a valid covenant not to sue for injury resulting from the plaintiffs own negligence.
Defendants’ reliance on these cases in light of Plaintiffs’ potential claim of reckless conduct is inapposite. Because the parties have agreed that Defendants are insulated from claims of negligence, the question of whether the release clearly and unambiguously insulates the defendants from liability for their own negligent conduct is moot. Neither the holding in Lafate nor in Devecchio relate to allegations of reckless conduct. Accordingly, because Plaintiffs now assert that Defendant’s conduct was reckless, Lafate and Devecchio are distinguishable from the case at bar.
Finally, the Court considers whether, for purposes of this motion, recklessness is subsumed in negligence, and is therefore barred as a form of negligence. Prosser and Keeton on Torts is particularly informative, providing that “such [exculpatory] agreements [that expressly exempt defendants from liability for their negligent conduct] generally are not construed to cover the more extreme forms of negligence, described as willful, wanton, reckless or gross, and to any conduct which constitutes an intentional tort.” Adopting Prosser and Keeton’s interpretation, this Court finds that although the Release does insulate Defendants from liability for negligent conduct, it does not bar claims of “more extreme forms of negligence, ” such as “reckless” conduct.
Although Tommy’s father’s execution of the Release precludes recovery from Defendants on a theory of “negligence, ” Plaintiffs assert that the Defendants’ conduct was “reckless.” Plaintiffs did not explicitly allege in a separate count of the complaint that Defendant’s conduct was reckless, but Plaintiffs did make it apparent in the complaint that it was an intended theory of liability. In their briefing and at oral argument, Plaintiffs suggested that Defendants, among other things, had been aware of previous collisions with the shipping container, and that their ignorance of these prior incidents amounts to reckless behavior.Accordingly, the Court must determine whether the Release bars Plaintiffs from asserting claims resulting from injuries caused by Defendants’ reckless conduct.
Courts in Delaware have a strong preference for resolving cases on their merits, or at least allowing discovery to proceed such that additional evidence in support of the parties’ contentions can be developed. While this preference is not outcome-determinative, the preference for resolving cases on the merits is a strong factor in determining whether to grant or deny a dispositive motion.
Plaintiffs, at oral argument and in their response to the motion, argue that they are entitled to recovery based on Defendants’ allegedly reckless conduct. The parties agree that this theory is separate from the one count of “negligence” listed in the complaint. The operative language of the Release does not explicitly enumerate or contemplate recklessness as a theory of recovery barred by the Release. Under Delaware law, as provided in Ketler, a release must be “clear and unambiguous” in order to effectively release the business owner from liability.
This Court finds that the language of the release is not “clear and unambiguous” with respect to Defendants’ liability for their own allegedly reckless conduct. In Ketler, the release at issue specifically used the word “negligence, ” and stated that Defendants “will not be liable for any injury, including, without limitation, personal, bodily, or mental injury . . . resulting from the negligence of [the defendants].” The Delaware Supreme Court held that this language satisfied the “clear and unequivocal” standard and upheld the language of the agreement.
Turning to the Release that Plaintiffs executed, this Court finds that the Release is silent as to claims of recklessness. The Release does not mention “reckless” conduct, and instead only expressly refers to injury caused by Defendants’ “negligence.” In the absence of such language, the Release does not clearly and unambiguously exculpate Defendants from liability for their own reckless conduct. Accordingly, the Release does not operate to bar Plaintiffs’ claim of recklessness.
Finally, Defendants’ contend that Plaintiffs assumed the risk of injury from Defendants’ alleged reckless conduct. However, the record has not been sufficiently developed to determine whether Defendants’ conduct was reckless or whether Plaintiffs assumed the risk of injury from Defendants’ allegedly reckless conduct. Accordingly, the Court does not reach this contention at this stage of the litigation.
Defendant’s Motion for Judgment on the Pleadings is DENIED. The Court has enclosed an Order establishing a Scheduling Conference in this case.
 Defendant Houghton’s Amusement Park, LLC did not make an appearance in this case and had a default judgment taken against it on June 21, 2016.
Defs.’ Mot. for J. on the Pleadings, Ex. A.
Defs.’ Mot. for J. on the Pleadings, Ex. A. Tommy also signed an agreement, titled “Minor’s Assumption of the Risk Acknowledgment, ” that Defendants reference in their motion as another reason they are not liable for Plaintiffs’ injuries. However, it appears from the motion and subsequent filings that the release signed by Tommy is only mentioned in passing, and is not relied upon by Defendants. The release signed by Tommy’s father is the determinative release in the case at bar.
Compl. ¶¶ 49, 51, 77, 87. Specifically, the Complaint alleges that “Defendants’ failure to exercise reasonable care as alleged above comprised outrageous conduct under the circumstances, manifesting a wanton and reckless disregard of the rights of the Plaintiffs.” Compl. ¶ 87. The Complaint also alleges that Tommy’s injuries were caused by the “reckless indifference” of Defendants. Compl. ¶¶ 51, 77. Moreover, the Complaint alleges that the track was “reckless[ly] design[ed].” Compl. ¶ 49.
At oral argument, Plaintiffs’ counsel answered in the affirmative when the Court asked “Am I understanding Plaintiffs’ position correctly when I read the papers to say that Plaintiffs are not alleging ordinary negligence, but rather recklessness?” Lynam et al. v. Blue Diamond LLC Motocross et al, C.A. No. N14C-11-121 RRC, at 6 (Del. Super. July 6, 2016) (TRANSCRIPT) [hereinafter Oral Arg. Tr.].
 A judgment on the pleadings is based only upon a review of Plaintiffs’ complaint and Defendants’ answer. However, under Rule 12(c), “If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment.” Super. Ct. Civ. R. 12(c). In the case at bar, Defendants introduced the two executed releases as exhibits to their motion. However, the releases were not a part of the pleadings. Nevertheless, the parties agree that this motion should be treated as a motion for judgment on the pleadings.
 Silver Lake Office Plaza, LLC v. Lanard & Axilbund, Inc., 2014 WL 595378, at *6 (Del. Super. Jan. 17, 2014) (quoting Blanco v. AMVAC Chem. Corp., 2012 WL 3194412, at *6 (Del. Super. Aug. 8, 2012)).
 Id. (quoting Velocity Exp., Inc. v. Office Depot, Inc., 2009 WL 406807, at *3 (Del. Super. Feb. 4, 2009).
 Id. (internal quotation marks omitted).
 See Oral Arg. Tr. at 6.
 Ketler v. PFPA, LLC, 132 A.3d 746 (Del. 2016) (upholding “hold harmless” agreements and releases that relieve a proprietor from liability for its own negligent activities).
 Riverbend Cmty., LLC v. Green Stone Eng’g, LLC, 55 A.3d 330, 336 (Del. 2012) (internal quotation marks omitted) (quoting State v. Interstate Amiesite Corp., 297 A.2d 41, 44 (Del. 1972)).
 Ketler, 132 A.3d at 747.
 Oral Arg. Tr. at 14-16.
 Defs.’ Mot. for J. on the Pleadings, Ex. A (emphasis added).
 1999 WL 1241074 (Del. Super. Oct. 22, 1999).
 2004 Del. Super. LEXIS 444 (Del. Super. Nov. 30, 2004).
 The plaintiff in Lafate was injured by a metal bar used to divide a basketball court. This Court found that while the agreement did “speak of ‘any and all injuries which may be suffered by [players] during [their] participation, ‘” the absence of the word “negligence” insufficiently insulated the defendants from liability for their own negligent conduct. Lafate, 1999 WL 1241074, at *4.
 In Devecchio, the defendant owned a motorcycle race track that required riders to sign agreements releasing the defendant from liability for injuries resulting from both the riders and the defendant’s negligence. The release pertaining to the defendant’s negligence expressly used the word “negligence.” This Court found that the release using the word “negligence” was sufficiently clear and unambiguous, and therefore insulated the defendant from liability for its own negligent conduct. Devecchio v. Enduro Riders, Inc., 2004 Del. Super. LEXIS 444 (Del. Super. Nov. 30, 2004).
 W. Page Keeton, et al., Prosser and Keeton on Torts, § 68 at 483-84 (5th ed. 1984)). Delaware courts often rely on Prosser and Keeton on Torts in reaching their conclusions. See, e.g., Culver v. Bennett, 588 A.2d 1094, 1097 (Del. 1991); Lafate v. New Castle County, 1999 WL 1241074 (Del. Super. Oct. 22, 1999); Brzoska v. Olson, 668 A.2d 1355, 1360 (Del. 1995).
This case involves claims of negligence. Negligence is the lack of ordinary care; that is, the absence of the kind of care a reasonably prudent and careful person would exercise in similar circumstances. That standard is your guide. If a person’s conduct in a given circumstance doesn’t measure up to the conduct of an ordinarily prudent and careful person, then that person was negligent. On the other hand, if the person’s conduct does measure up to the conduct of a reasonably prudent and careful person, the person wasn’t negligent.
Reckless conduct reflects a knowing disregard of a substantial and unjustifiable risk. It amounts to an “I don’t care” attitude. Recklessness occurs when a person, with no intent to cause harm, performs an act so unreasonable and so dangerous that he or she knows, or should know, that harm will probably result.
Del. Super. P.J.I. Civ. § 5.9 (2003), http://courts.delaware.gov/forms/download.aspx?id=85928. It is apparent from a comparison of the two different jury instructions that negligence conduct requires a departure from the ordinary standard of care exhibited by the reasonably prudent person, an objective standard. However, in contrast, it appears from the pattern jury instructions that reckless conduct requires a subjective “I don’t care” attitude that evidences an even greater departure from the ordinary standard of care, amounting to an unreasonable conscious disregard of a known risk.
 Compl. ¶¶ 49, 51, 77, 87. For example, Plaintiffs allege that “The reckless design of the track, which was intentionally constructed next to the pre-existing intermodal container, requires riders to land from a jump and immediately decelerate in order to execute a 90° right turn.” Compl. ¶ 49. Moreover, Plaintiffs allege that Tommy’s injuries were “a direct and proximate result of the negligence, carelessness and reckless indifference of Defendants.” Compl. ¶ 77.
 Pl.’s Suppl. Resp. in Opp’n to the Mot. for J. on the Pleadings, at 2.
 Keener v. Isken, 58 A.3d 407, 409 (Del. 2013); see also Wallace v. Wood, 2007 WL 3331530 (Del. Ch. Oct. 31, 2007); DeSantis v. Chilkotowsky, 2004 WL 2914314, at *2 (Del. Super. Nov. 18, 2004), Sup. Ct. Civ. R. 56.
 Plaintiffs did not plead any explicit claim of recklessness. See, e.g., J.L. v. Barnes, 33 A.3d 902, 916 n.77 (De. 2011) (treating recklessness and gross negligence as interchangeable and noting, “In order for a plaintiff to plead gross negligence with the requisite particularity, the plaintiff must articulate ‘facts that suggest a wide disparity between the process  used . . . and that which would have been rational.'” J.L. states that a complaint pleading ten pages of facts to support a claim of gross negligence or recklessness was sufficient to meet the pleading standard). Defendants argue that Plaintiffs have not properly pleaded reckless conduct under Superior Court Civil Rule 9(b). However, the Court need not reach that issue since it will give Plaintiffs the opportunity to amend their complaint.
 Because the Court finds that Defendants’ release does not explicitly bar claims of “reckless” conduct, this Court does not reach the question of whether such a release is potentially permissible under Delaware law. However, this Court notes that other jurisdictions have differing perspectives on whether exculpatory agreements barring claims for recklessness, gross negligence, willful acts, or strict liability are enforceable. See Randy J. Sutton, Annotation, Validity, Construction, and Effect of Agreement Exempting Operator of Amusement Facility from Liability for Personal Injury or Death of Patron, 54 A.L.R.5th 513 (1997). For example, in Barker v. Colo. Region-Sports Car Club of Am., the Colorado Court of Appeals held that exculpatory agreements can release a party only for simple negligence, and not from willful and wanton negligence. 532 P.2d 372, 377 (Colo.App. 1974). Similarly, in Wheelock v. Sport Kites, Inc., the United States District Court for the District of Hawaii held that a release was invalid with respect to claims of gross negligence and strict liability. 839 F.Supp. 730, 736 (D. Haw. 1993). The above annotation suggests that a common reason to not enforce such an agreement is because they are void against the state’s public policy.
Generally, in the absence of an applicable safety statute, a plaintiff who expressly and, under the circumstances, clearly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct may not recover for such harm, unless the agreement is contrary to public policy. When such an express agreement is freely and fairly made, between two parties who are in equal bargaining position, and there is no public interest with which the agreement interferes, it will generally be upheld.
412 S.E.2d 504, 508-09 (W.Va. 1991).
Delaware Courts have previously allowed such an amendment to be made. As this Court held in Guy v. Phillips, a party may amend a complaint following additional discovery when the amended count arises out of the same factual basis for the original complaint. 1997 WL 524124 (Del. Super. July 2, 1997).
 In support of this defense, the Court notes that Defendants rely solely on Deuley v. DynCorp Int’l, Inc., 2010 WL 704895 (Del. Super. Feb. 26, 2010). However, Deuley is distinguishable from the case at bar. In Deuley, surviving relatives of decedents killed by an improvised explosive device (“IED”) in Afghanistan filed a wrongful death action. As part of the employment agreement, the decedents signed an agreement that provided employees expressly assumed the risk of injury or death. In reaching its conclusion that the decedents assumed the risk of death, the Court found that “when [the decedents] signed the releases, even a poorly informed American had to have appreciated that working in Afghanistan involved the general risk of insurgent or terrorist attacking by an IED.” Deuley, 2010 WL 704895, at *4. “The complaint offers no reason to find that any plaintiff here was probably unaware of the general risk of being injured or killed by a bomb.” Id. In the case at bar, drawing inferences in the light most favorable to the Plaintiffs, it is unlikely that Plaintiffs were aware of the risk posed by the shipping container, since they allege that they were unable to inspect the track prior to Tommy using it. Accordingly, Defendants’ reliance on Deuley is inapposite since it could be determined that a collision with the metal shipping container was not contemplated by the Plaintiffs when they signed the Release.
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The one group of people who never sign a release and to whom you have no defenses are spectators. Here a spectator was injured during a bicycle race.
In this case, the plaintiff attempted to bring in USA Cycling, Inc. Spectators are always at risk, and defendants have little they can do to keep from getting sued except fencing in most cases.
Plaintiff Cyclists riding inside the race course was injured when a racer struck him. The plaintiff sued the club that put on the event and USA Cycling, Inc. that sanctioned the event. USA Cycling moved for summary judgment arguing it owed no duty to the plaintiff because it had no control over and did not do anything other than sanction the race.
In the underlying matter, the plaintiff seeks to recover for personal injuries allegedly sustained while cycling in Prospect Park, Brooklyn, New York on June 14, 2014. At the same time the plaintiff was cycling as a recreational activity, a cycling event was taking place in the same area of Prospect Park. The plaintiff was cycling the same route as those participating in the event when he collided with another cyclist who was a participant in the bike race.
As a result of injuries sustained by the plaintiff, which included a fractured and displaced clavicle that required surgical intervention….
Analysis: making sense of the law based on these facts.
The defendant USA Cycling was brought into the case to possibly add money to the pot that might be available to the defendant. USA Cycling argued that because they did not own, control or have anything to do with the race other than to sponsor the race for a fee, they could not be held liable for anything that happened.
At issue in this matter, is whether defendant USA Cycling owed a duty to the plaintiff and by virtue thereof is liable to the plaintiff for the injuries sustained during the bike tour.
… USA Cycling did not coordinate the Prospect Park event; did not control or employ any of the people organizing or managing or working the race; did not select the location of the race nor supervise the race. They did not have any employees or representatives at the race. In addition, they are not the parent company of Kissena Cycling Club nor is Kissena Cycling Club a subsidiary of USA Cycling.
Mr. Sowl testified at his deposition that while USA Cycling sanctions events in the United States they do not run cycling events. Mr. Sowl stated that while there are benefits to a third party such as Kissena Cycling Club for having an event sanctioned by USA Cycling which includes that a cyclist participating in the event can use the results for upgrading their national results and rankings and the third-party event organizers can independently obtain liability insurance for their event through USA Cycling, he nevertheless maintained that they have no involvement in the operation of the race or the design of the course.
So, the issue is, did USA Cycling’s involvement in the race rise to the level that it owed a duty to the plaintiff.
The plaintiff argued the involvement was much more than just providing insurance for the race.
They [USA Cycling] collect some fees to compensate for sanctioning the event and provide insurance for the event.
The plaintiff maintains that the defendant did more than just sanction the race as they issued safety guidelines, rule books, post event forms, permits, an event checklist and insurance information to the Kissena Cycling Club, and even received a copy of the incident report.
The court found the actions of USA Cycling did not rise to the level to create a duty to the plaintiff.
USA Cycling is the national governing body for cycling in the United States. They oversee the discipline of road, mountain bike, Cyc-cross, BMS and track cycling. Mr. Sowl testified that except for a few national championships, they do not actually run events. While they sanction events, the events are generally owned and operated by a third party (such as the Kissena Cycling Club). In sanctioning the race at Prospect Park, USA Cycling recognized the event as an official event and the results when considering national rankings. However, while they sanction events they do not sponsor them. The chief referee at the event is an independent contractor who works for the event organizer and not USA Cycling. Mr. Sowl further testified that USA Cycling does not share in any portion of the fees that are generated by the local events.
The court found USA Cycling had no control over the race. This lack of control could not create a duty to the plaintiff.
This Court finds that the plaintiff has not established a prima facie case that the defendant USA Cycling had a duty to the plaintiff, and not having a duty was not negligent, and thus, not liable to the plaintiff. This Court finds that USA Cycling was not responsible for the layout and design of the race course, and all of the safety precautions that were in place on the day of the race were supervised by the employees and volunteers of Kissena Cycling Club. USA Cycling had no involvement in the positioning of the plaintiff, who was a recreational cyclist, and the riders in the race. The fact that USA Cycling sanctioned the race, provided safety guidelines on its website and assisted the local race organizers in obtaining insurance does not result in a finding that they are liable for an incident that occurred in a local race that is fully operated and managed by a local racing club.
Spectators are necessary to any event. They “pay” for the event by either just being there so advertisers can sell to them or paying to enter the facility. Although the facts in this case are slightly different, other cyclists riding, the issues are still the same. Spectators are not a group of people that the event sponsors, owners; officials can create protection from litigation.
If a spectator gets hurt, there is little available to stop their claims.
Here the news was that USA Cycling had so little involvement in the race, they were able to successfully argue they owed no duty to the plaintiff. This argument is similar in all states; however, the definition of duty in each state and the type of involvement could make this difficult in some jurisdictions.


Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. Moreover, relator's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030.
Relator has now fully litigated two applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


THE PEOPLE ex rel. SAN FRANCISCO BAY CONSERVATION AND DEVELOPMENT COMMISSION, Plaintiff and Appellant, v. TOWN OF EMERYVILLE, Defendant and Respondent.
Thomas C. Lynch, Attorney General, Clayton P. Roche, L. Donald Boden and E. Clement Shute, Jr., Deputy Attorneys General, for Plaintiff and Appellant.
C. E. Fletcher, City Attorney, Breed, Robinson & Stewart and James R. McCall for Defendant and Respondent.
On behalf of the San Francisco Bay Conservation and Development Commission (hereinafter BCDC), the Attorney General brought suit to enjoin certain fill operations by the Town of Emeryville on the ground that Emeryville had not obtained a BCDC permit as directed by the McAteer-Petris Act. (Gov. Code, § 66604.) The trial court concluded that Emeryville was not required to secure a permit because its fill operations were assertedly exempted under the "grandfather clause" in the BCDC enabling legislation. (Gov. Code, § 66632.1.) fn. 1 The court entered judgment for Emeryville and dissolved an injunction which had theretofore restrained the town from conducting further fill activities. This appeal followed.
In view of the urgency of the litigation we ordered the cause transferred to this court. (Cal. Rules of Court, rule 20.) At that time we issued an order enjoining all fill operations by the town pending final determination of the appeal. We deemed the stay basic to the maintenance of this court's appellate jurisdiction because resumption of fill activities would have imperiled the value of appellant's right of appeal.
[1a] Emeryville insists that this court lacked jurisdiction to stay its fill activities since there was no process or order which this court could supersede or suspend once the trial court had dissolved its restraining order.  While the town's position is supported by older cases (see, e.g., In re Imperial Water Co. (1926) 199 Cal. 556, 557-558 [250 P. 394]), the preferable rule, which we henceforth follow, was recently declared in Deepwell Homeowners' Protective Assn. v. City Council (1965) 239 Cal. App. 2d 63, 65-66 [48 Cal.Rptr. [69 Cal. 2d 537] 321]: "So, too, the rule now is that in aid of their appellate jurisdiction the courts will grant supersedeas in appeals where to deny a stay would deprive the appellant of the benefit of a reversal of the judgment against him, provided, of course, that a proper showing is made. On principle, it would be a terrible situation if in a proper case an appellate court were powerless to prevent a judgment from taking effect during appeal, if the result would be a denial of the appellant's rights if his appeal were successful."
A trial court's familiarity with the evolving circumstances of a case normally constitutes it the appropriate forum to weigh the relative hardships on the parties, including the likelihood that substantial questions will be raised on appeal, and its refusal to grant or to continue an injunction during appeal is entitled to great weight. But where, as here, difficult questions of law are involved and the fruits of a reversal would be irrevocably lost unless the status quo is maintained, justice requires that an appellate court issue a stay order to preserve its own jurisdiction. [1b] While this power should be sparingly employed and reserved for the exceptional situation, the propriety of its exercise in this case cannot be seriously disputed: had Emeryville been permitted to resume its fill activities, it would have been able, as a practical matter, to render this appeal moot.
By contrast, no explicit constitutional grant is necessary to authorize issuance of such auxiliary writs as supersedeas, long recognized to be an attribute of the inherent power of the courts to preserve their own jurisdiction. (Ohaver v. Fenech (1928) 206 Cal. 118, 123-124 [275 P. 555], and cases cited.) "Among the many procedural phrases deleted from the former Constitution, the Commission deleted references to the appellate courts' power to issue 'writs in aid of appellate jurisdiction'--i.e., the writ of supersedeas. This action was taken upon the ground that any such stay in aid of appellate jurisdiction constitutes an exercise of the inherent power of the courts having that jurisdiction." (Italics added.) (Cal. Judicial Council, op. cit. supra, at pp. 76-77.) The elimination of such surplusage, which was one of the primary tasks of the commission, thus has no substantive significance. [1c] We are not unmindful that the stay order in this case is injunctive in nature, since it operates directly to restrain the fill activities of the town; but its office remains similar to that of a writ of supersedeas--to preserve the status quo pending determination of the appeal--and its issuance is therefore controlled by the same principles.
The Attorney General contends that, as of September 17, 1965, the date the BCDC enabling legislation took effect, Emeryville had not sufficiently finalized its underlying plan to have a "project" within the scope of the "grandfather clause." We find it unnecessary to decide, however, whether the town had a "project" as of the effective date for the reason that subsequent occurrences dispel any notion that Emeryville may now avoid the BCDC permit requirement. [5a] We hold that fundamental changes necessitated in the underlying plan of Emeryville after the effective date clearly bring its fill activities within the jurisdiction of the BCDC.
Prior to September 17, 1965, Emeryville had purchased a bulldozer and hired a dredge that commenced construction of one of two access roads leading to the main fill area. At that time the town had no firm plans to acquire and was under no contractual obligation to buy or to receive fill; the fill was accepted gratuitously from contractors under no duty to deliver it. The dredge, according to city council resolution, was hired "on a day-to-day basis at the discretion of the City Engineer. ..." By September 1965, the Powell Street Causeway had been substantially completed as a result of the town's filling and diking activity. As of the effective date of the act, Emeryville had expended or incurred obligations to a total of $55,000 for equipment purchase and rental, soil and engineering services, architectural fees, and other costs in connection with its planning, diking, and fill activities. Work on the Ashby Avenue Causeway, the second access road, began after September 17, 1965, and continued until the Attorney General secured a preliminary injunction enjoining further fill activity. Since June 1966 all fill activities have been suspended by this litigation.
As of the effective date of the act, the town had not arranged for the financing of the development or even for the financing of the fill portion of the development. On September 13, 1965, four days before the act became effective, Emeryville formally approved Phase A of a three-phase development scheme prepared by an architectural firm it had retained. The architect in charge testified that the brochure submitted by his firm, which set forth Phase A, was a "general plan," since "in our view this whole thing was somewhat promotional." In this general plan the firm recommended a pattern of land uses for the fill area. Entitled "Master Plan Development," Phase A included such items as a zoning plan indicating land use, densities, setback restrictions, the configuration of streets, lagoons, bulkheads, location of main utility runs, a master plan layout of the civic center, yacht harbor, public parks and promenades, and commercial areas, and the development of overall budget estimates.phase B was entitled "architectural control" and Phase C, "architectural services." Implementation of the general plan outlined in Phase A was mainly reserved for Phase B, not then detailed or adopted because the basic engineering for the development had yet to be performed. The architect testified that engineering work for Phase B could start while the fill was being [69 Cal. 2d 541] placed. He further testified that the general plan could not be made more specific until Emeryville had resolved the financing arrangements for its development proposals.
As of September 17, 1965, Emeryville had not arranged for the financing of the fill portion of the proposed development. At trial the mayor testified it would cost about $5,500,000 to finance the process of filling the main area, and although the town had a surplus of approximately $500,000 in its treasury, that money was not committed to the fill project, and the town could not, in the short run, undertake the financing of the fill without outside assistance. It was then estimated that the actual cost of the fill alone would be about $4,500,000. Sometime in the fall of 1965 it became known that sufficient free fill was available for the development from excavation jobs in connection with Bay Area Rapid Transit (BART) construction; but as of September 17, 1965, no contracts had been negotiated with BART, and it is unclear from the record whether Emeryville by that time had even contemplated arrangements for obtaining free fill from BART contractors.
Before the availability of BART fill became known, the town had planned to finance the fill operation by raising the required capital through floating the bonds of a nonprofit corporation. Emeryville had retained a financial consultant, who advised that clearance from the State Lands Commission would be required before financing the development as a whole, or merely the fill portion thereof, could be arranged. By the effective date of the act the town had not received such clearance. Other conditions precedent, according to Emeryville's own consultant, included a ruling from the Internal Revenue Service that the bonds would be tax exempt, a permit from the Corporations Commissioner authorizing the issuance of securities, the submission to the prospective lender of an engineering report confirming feasibility of construction, and a firm construction bid for harbor dredging, land fill and harbor construction. The corporation was not formed, and Emeryville did not attempt to satisfy the several other conditions. The total cost of all phases of the proposed development was approximately $250,000,000. No evidence in the record indicates that the town had in any way begun to assemble any portion of this vast capital outlay.
As of the effective date of the act, Emeryville intended to use the fill area primarily for private residential development. In its waterfront proposal, as then adopted, the town reserved [69 Cal. 2d 542] 109 acres, over 75 percent of the area to be filled, for housing of various densities with an anticipated population of 15,700 persons. The land use pattern, budget estimates, and other aspects of the proposal were designed to service this population.
We are not here concerned with the Army Corps of Engineers' permit requirement contained in Government Code section 66632.1, for the Attorney General agrees that such a permit was not required here. It is likewise clear that the town had at least commenced a filling and diking process since, as of the effective date, it had nearly completed one of two access roads leading to the main fill area. On the basis of the foregoing the trial court concluded that Emeryville was engaged in a "project" and "for many months prior to September 17, 1965, the Town was committed to and actively [69 Cal. 2d 543] engaged in an intensive program of activities to complete the said project."
On this appeal the meaning of the word "project," as used in section 66632.1, constitutes the principal issue of law raised by the parties. The trial court, in adopting the interpretation advanced by Emeryville, concluded, as expressed in its memorandum of decision, that "project" embraced all undertakings satisfying the conditions in the grandfather clause. Since the trial court did not accord "project" any independent meaning, it did not consider relevant the basic planning changes required of Emeryville after the effective date.
 Where, as here, the facts are not in significant dispute, we are not bound by the trial court's conclusions of law. "We must here ascertain the proper conclusion indicated by the probative facts presented by the record." (Ruberoid Co. v. California Unemp. Ins. Appeals Board (1963) 59 Cal. 2d 73, 78 [27 Cal. Rptr. 878, 378 P.2d 102]; see also Aerojet General Corp. v. D. Zelinsky & Sons (1967) 249 Cal. App. 2d 604, 610 [57 Cal. Rptr. 701].) Therefore, regardless of the status of the initial plan, the basic changes made by Emeryville in its waterfront development program compel the conclusion that there is now a new project not exempt from BCDC jurisdiction.
Notwithstanding these legislative findings, Emeryville contends that it had satisfied the conditions set forth in the grandfather clause, including commencement of the filling and diking process, in that it had a "project." No independent meaning, in Emeryville's view, can be ascribed to the word "project." Under that concept, however, a city or developer could proceed indefinitely, almost haphazardly, with fill activities in the absence of a plan, a construction which would work great violence on the regulatory scheme. Unless independent significance is attached to "project," in short, it would be impossible to ascertain exemptions under the act. Therefore we must determine what the Legislature intended by reference to the "project."
In view of the manifest intent of the Legislature "to protect the present shoreline and body of the San Francisco Bay to the maximum extent possible" (italics added) (Gov. Code, § 66604) and in view of its further direction to the BCDC to "give consideration to the master plans of cities and counties around the bay" (Gov. Code, § 66603), we are convinced that the Legislature used the word "project" as a term of limitation. The dominant theme underlying all generally accepted definitions of the word "project" is that of a detailed and specific plan prepared in furtherance of a determination to accomplish a certain objective. A determination without a concrete plan is not a "project" because the means of achieving the ultimate objective are not delineated sufficiently to permit prudent commencement of the enterprise. A plan without a determination is not a "project" because the operative decision to proceed toward the objective has not been made. Only [69 Cal. 2d 546] when that decision has been made and a plan has been conceived in the detail necessary for prudent commencement of physical efforts to achieve the objective does a "project" come into being. Thus, assuming a public agency had satisfied the two conditions for exemption of "projects" (i.e., governmental approval, if necessary, and commencement of the filling and diking process) the question remains whether the acts in satisfaction had been undertaken pursuant to a specific and detailed plan prepared in furtherance of a determination to accomplish a certain objective capable of realization--or whether such acts had been performed in some random manner unrelated to such a specific plan. fn. 4 Weighing only the [69 Cal. 2d 547] foregoing two conditions for exemption without considering the existence of a basic detailed plan would tend to reward those agencies, which act precipitously, with no specific constructive expectations, intending only to evade the act and to maintain their own options to the potential detriment of unitary development of the bay area.
[5b] On this record we are unprepared to say, as a matter of law, that Emeryville was not proceeding pursuant to a reasonably detailed and specific plan as of the effective date of the act. We already observed, however, that Emeryville cannot now realize its waterfront program as originally conceived: as indicated above, Emeryville knew, prior to the effective date, that its proposal might be deemed inconsistent with the terms of its tideland grant (see fn. 3, ante); Emeryville later substantially modified its proposal in an effort to [69 Cal. 2d 548] reach accommodation with the State Lands Commission; finally, under the 1968 amendment to its tideland grant (Stats. 1968, ch. 415), which we judicially note (Evid. Code, § 452, subd. (a)), Emeryville cannot use its tidelands for residential purposes, the principal objective sought in its waterfront program. fn. 5 In this posture we must decide whether the complete overhaul now required of Emeryville's initial proposal brings any future waterfront program within BCDC jurisdiction.
Section 66632.1 allows cities and counties, which had justifiably relied on previous grants of authority, to continue with their projects. Like grandfather clauses appearing in other regulatory acts, section 66632.1 serves, as the BCDC legislation took effect, to preclude harsh and inequitable results. But even assuming, arguendo, that Emeryville's waterfront proposal, as of the effective date of the act, constituted an exempt project, frustration of the initial project does not justify permitting successor projects undertaken by the town to escape the BCDC permit requirement. The situation herein is not unlike that presented in Harris v. Alcoholic Beverage etc. Appeals Board (1964) 61 Cal. 2d 305 [38 Cal. Rptr. 409, 392 P.2d 1]. We held that a person holding a dual liquor license under a grandfather clause could not transfer that status to a successor in interest. "The initial sanctioning of such licensing arrangements for the stated reason that the Legislature deemed it inequitable to conform certain business arrangements does not," we said, "justify the knowledgeable planning of prospective arrangements with intent to exploit the exception." (Id at p. 310.) Likewise, once Emeryville abandoned its initial project--assuming the town had a "project"--it lost the protection of section 66632.1. We can only conclude that Emeryville is now obligated to secure a BCDC [69 Cal. 2d 549] permit before recommencing its filling and diking activity on the basis of any newly developed plans.
[10a] Finally respondent contends that the BCDC constitutes a "special commission" which, by bringing this litigation, has interfered in the affairs of the town in contravention of article XI, section 13, of the California Constitution, which prohibits a delegation of authority over municipal functions. This contention has no merit. As heretofore indicated, the area which Emeryville proposes to fill is held in trust under a tideland grant from the State of California. The grant specifically requires that the facilities developed be limited to those in which there is a "general statewide interest." (Stats. 1959, ch. 921, p. 2952.) The BCDC enabling legislation amends, in effect, the terms of the tideland grant.  It is settled that "the state acting through the Legislature has the power to alter contractual or property rights acquired by the municipal corporation from the state for governmental purposes." (Mallon v. City of Long Beach (1955) 44 Cal. 2d 199, 209 [282 P.2d 481].) [10b] Since the Legislature acted within its settled power to alter the terms of a tideland grant, the BCDC enabling legislation constitutes a valid legislative act.
The judgment is reversed and the cause remanded with directions to enter an injunction enjoining the Town of Emeryville from proceeding with further diking and filling activity until such time as it has obtained a permit from the Bay Area Conservation and Development Commission.
FN 1. The "grandfather clause" in Government Code section 66632.1 reads as follows: "Nothing in this title shall apply to any project where necessary local governmental approval and a Department of the Army Corps of Engineers permit have been obtained to allow commencement of the diking or filling process, and where such diking or filling process has commenced prior to the effective date of this title, nor to the continuation of dredging under existing Department of the Army Corps of Engineers permits."
FN 2. Elsewhere, appellate courts issue stay orders to preserve jurisdiction. Under the All Writs Act (28 U.S.C., § 1651) federal courts of appeal, for example, issue injunctive stay orders against private parties. (See Federal Trade Com. v. Dean Foods Co. (1966) 384 U.S. 597, 605, fn. 3 [16 L. Ed. 2d 802, 808, 86 S. Ct. 1738].) A noteworthy illustration is the emergency order signed by Wright, J., in Application of President & Directors of Georgetown College, Inc. (D.C. Cir. 1964) 331 F.2d 1000 [118 App. D.C. 80, 9 A.L.R.3d 1367], cert. denied (1964) 377 U.S. 978 [12 L. Ed. 2d 746, 84 S. Ct. 1883].
FN 3. This was not unanticipated. Indeed, as of the effective date, Emeryville was on notice with a warning that its waterfront program might be inconsistent with the terms of its tideland grant. Senator Holmdahl, who then represented the town, requested the Attorney General for his opinion on the legality of the waterfront development proposal prior to its approval by the town council. By letter in May 1965, the Attorney General informed Senator Holmdahl: "It is difficult to see how permanent condominium type housing and the other permanent residences of the contemplated 'water- oriented community' which occupy so much space in proportion to the area devoted to harbor purposes will not interfere with the trust. But this is a determination to be made initially by the town council. It is a mixed question of law and fact upon which we can supply guides but no definite answer."
FN 4. The Attorney General argues that, in addition to a reasonably specific and detailed plan, a "project" within the meaning of section 66632.1 must be characterized by substantial elements of commitment. An entity seeking exemption from the permit requirement must, in his view, offer proof of financial commitment as well as commencement of the filling and diking process.
But the express wording of section 66632.1, as well as its legislative history, make it clear that the Legislature was so concerned about defining the required quantum of "commitment" that it set forth express conditions for this very purpose. Those conditions have been satisfied by the town in the instant case: (1) local and Army Corps of Engineers' approval, and (2) actual commencement of the diking and filling process prior to the effective date of the act.
The McAteer-Petris Act does not represent the first effort to effect regional control over San Francisco Bay. On February 4, 1964, a bill was introduced, which if enacted would have provided in general that no portion of the bay should be filled from the effective date of the proposed legislation until 90 days after adjournment of the regular session of the 1967 Legislature except for certain specified purposes.
The exemptions to the proposed moratorium were to be of two kinds. The first of these was analogous to the permit power contained in the McAteer- Petris Act: the bill's proposed commission was empowered to grant exemptions "when emergency conditions exist or in situations which are of urgent importance to the public health, safety or welfare or in situations where a project is so far advanced that the prevention of its completion would cause serious economic loss." The second class of exemptions was analogous to the exemption set forth in section 66632.1 of the McAteer-Petris Act, for it set forth those classes of fill operations which would be outside the scope of the act and beyond the powers of the commission. There were eight specific exemptions set forth, and the eighth of these was for "(h) Fills for residential, commercial or industrial purposes, if already in process, with appropriate governmental approval, financing arrangements and contracts for fill completed and in use." Assembly Bill No. 19 was referred to the Committee on Rules and never came to a vote in the Assembly.
The March 25 amendment thus injects into section 66632 a portion of the standards for granting permits which had been found in the former Assembly proposal. However, the amended section 66632 does not provide that the granting of a permit may be premised upon "emergency conditions" or situations in which "a project is so far advanced that the prevention of its completion would cause serious economic loss"--as the former bill had provided. Rather it provides only that a permit may be granted if the "project" in question "is ... of such a nature that it will not adversely affect the comprehensive plan being prepared." Thus it appears that the Legislature decided to withhold from the BCDC the power to grant exemption by permit based upon its determination as to the prospect of "serious economic loss" relative to a given proposed fill operation. The significance of this omission is that provision for exemption based upon change of position devolved entirely upon the amendment of April 1, 1965, which upon passage of the act became section 66632.1 of the Government Code.
That amendment was addressed to the same subject as the eight specific classes of exemptions which had been set forth in the former Assembly bill: namely, the subject of exemption through change of position or "commitment." But, whereas the former bill had required the presence of four factors (1. filling already in process; 2. appropriate governmental approval; 3. financing arrangements completed and in use; 4. contracts for fills completed and in use) in order to warrant exemption on this basis, the new amendment required only two (1. local governmental approval and Corps of Engineers' permit; 2. commencement of diking or filling process). These two, it will be observed, are respective equivalents of the first two factors required in the former bill; there is no mention of the last two factors required in the former bill. We cannot reinstate conditions which, we can only assume, were consciously eschewed by the Legislature.