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Welcome to the new Catasetinae alliance hybrids and species list. I have been working for years to assemble the finest plants for this breeding program. The plants have been selected on strict criteria of plant vigor, flower color, shape, and bloom count. These qualities lead to AOS awards and as a result much of the breeding stock has now been awarded. This listing represents the finest hybrids in Catasetinae breeding today.
In 2012 Sunset Valley Orchids received 3 of the highest award given by the American Orchid Society the coveted First Class Certificate for its Catasetinae hybrids.
The continued efforts in developing the hybrid genus Fredclarkeara (Fdk.) is evident this season. The Fdk. breeding produces flowers that are fragrant, of excellent shape, have amazing color and produce blooms that often last over 6 weeks.
The quality of the 3” plants this year is excellent with lots Catasetums hybrids that are sure to grow and flower well in almost every condition.
You will also see an increase in the number of Mormodias (Mo.) offered; the hybrids between Clowesias and Mormodes. They have the flower charm of Clowesia and the color of the Mormodes. Expect the Mormodias to produce 2-4 pendulous spikes from the mature blubs and have excellent flower keeping qualities as well as have a citrus like fragrance.
This listing has one Cycnodes hybrids (Cycnoches x Mormodes). This type of breeding produces excellent results. The primary hybrids get the best qualities of both parents, the Mormodes is dominant for color and recessive for form and the Cycnoches is dominant for form and recessive for color. Cycnodes hybrids have proven to be a reliable combination giving excellent results, if you have not grown this they are well worth a try.
If you are just getting interested in the Catasetinae alliance I am sure you will be surprised how easy these are to grow and then be “blown away” by how spectacular the flowers are.
If you have been growing the Catasetinae alliance you already understand…..
‘SVO Black Pearl’ is the best of the ‘black flowered’ types, when mature it produces 2-4 pendant inflorescences per bulb, carrying 15-25 flowers each. It is one of the best growers and bloomers of the grex, flowers last 6-7 weeks. These clones and are mature blooming size plants to flower this year.
‘Sunset Valley Orchids’ FCC/AOS is the best of the ‘spotted flowered’ types, it produces 2-3 pendant inflorescences per bulb, carrying 13-20 flowers that last 6 or more weeks. It is an excellent grower and the spotted flowers are amazingly beautiful. These clones are mature blooming size plants to flower this year.
A new direction in Fredclarkeara (Mormodes x Clowesia x Catasetum) breeding. Here we are looking for rich colors in shades of burgundy, red, and dark brown with many having darker spots. Flower life will be approaching 8 weeks as with other Fredclarkeara hybrids, this is a remarkable trait in this breeding line. Mo. Leopard Drops (Cl. Rebecca Northen x Morm. lawrenciana) is an excellent bloomer producing 3-5 pendent spikes with 15 or more flowers per bulb, you can imagine what a large mature plant with 100’s of flowers would look like. The Ctsm. Donna Wise (Ctsm. Orchidglade x Ctsm. tenebrosum) is a reliable breeder producing many exceptional offspring as it imparts flower size and its rich color. We had lots of seed germinate from this cross so a very special price is being offered for these. A superb new Fredclarkeara.
Another new Fredclarkeara hybrid. Here we are looking for dark green flowers with darker green stripes, how cool is that? The Mo. Lime Tiger (Cl. Rebecca Northen x Morm. elegans v. alba) is a green flower with green stripes and I believe this color will be a dominant characteristic. It produces 3-4 pendent inflorescence per bulb and is quite showy. The Ctsm. expansum is a dark green almost an olive color, very unusual for the species; it will reinforce the overall flower color and add bloom size to the grex.
Flower life will be close to 8 week s as with other breeding of this type.
Ctsm. pileatum v. imperale ‘SVO Blood Red’ is a solid red flower, it is the best I have of this type. It will bloom 3 times a year off a mature pseudobulb and carries 9-14 flowers each blooming. It really is a great plant. Ctsm. cernuum can produce 25 -30 flowers per inflorescence an amazingly high flower count, the lip has 3 points and the flower is a golden-yellow- green with brown spots. I expect the flowers to range from solid red to yellow with spots. Long stems will be produced with 15 or more flowers that have full shaped lips; some will have a 3 pointed lip margin. I am really looking forward to blooming these.
This cross will produce some exceptionally solid dark burgundy flowers with big full shaped lips. The Ctsm. Bela Vista’s Sangria has remarkable flowers with excellent shape and a deep burgundy color. The addition of Ctsm. pileatum v. imperale ‘SVO Blood Red’ with its 9-14 flowers in solid red flowers and its frequent blooming will reinforce the flower color, size and shape of this grex.
Ctsm. fimbriatum has a coarse fimbriate lip and ‘Golden Horizon’ has a good yellow color with fine red spotting and it is a has very nice flower form for the species. The flowers of Ctsm. Susan Fuchs ‘Burgundy Chips’ are just outstanding with its yellow base color and red spotting. Here we are expecting yellow flowers and red spots with large frilled lips. This is a proven hybrid with excellent vigor and easy to bloom.
I am excited about the possibilities with this cross. The flowers of Ctsm. fimbriatum ‘Golden Horizon’ have a good yellow color, fine red spotting and it’s a very nice flower form. This Ctsm. atratum has green segments with fine dark burgundy spotting and pure white lip that is very thick and waxy. The expectation is for yellow and green flowers with heavily textured, frilled lips.
The Ctsm. Donna Wise (Ctsm. Orchidglade x Ctsm. tenebrosum) is a reliable breeder producing many exceptional offspring as it imparts flower size, rich color and a free flowering habit. Ctsm. fimbriatum v. morrenianum is the rare and unusual dark burgundy color form of the species and is proving an excellent parent. This grex is going to have really dark flowers in the darkest burgundy; lips will be frilly as influenced by the Ctsm. fimbriatum and mature plants will be blooming 2-3 times a year.
This hybrid was named for the retired Sherriff of Virginia Beach, he bloomed the first one of the original cross. It was such a success that l have re-made it using the same parents. Ctsm. Frilly Doris (Ctsm. Doris Choice x Ctsm. Donna Marie) carries 22-26 flowers on an inflorescence, the color is a light green with burgundy spotting and a coarsely frilled lip, reminiscent of B. digbyana. The flowers of Ctsm. Susan Fuchs ‘Burgundy Chips’ are large, bright yellow with red spotting and it is a proven breeder.
Thanks to my friend Jamie Lawson of Micco, Fl. who gave me a bulb of his plant Ctsm. Portagee Star ‘Brian Lawson’s Sunrise’. This plant has turned out to be an excellent breeder. It is parents are (Ctsm. pileatum x Ctsm. Black Night), the flowers have excellent shape a flat lip and a pleasing soft yellow color with a blush of burgundy. The flowers of Ctsm. Susan Fuchs ‘Burgundy Chips’ are large with flowers that are bright yellow and red spotting. It have sired many outstanding offspring and this paring will be no exception. Expect big flat flowers in shaded of yellow to red with bold red spotting. Mature plants will bloom 2-3 times a year and will be real show stoppers.
I have been waiting for years to make this cross as something seemed to always happen, but here it is. These are my two best Ctsm. Frilly Doris mated together. Ctsm. Frilly Doris is (Ctsm. Doris Choice x Ctsm. Donna Marie) they both carry 22-26 flowers per inflorescence with light green with burgundy spotted flowers and a coarsely frilled lip, a bit like B. digbyana. Sib crossing will bring out the variability of the cross and make available one of my best hybrids to you Catasetinae lovers.
Here is a cross I am really excited about. Ctsm. Jose Abalo ‘SVO’ (Ctsm. sanguineum x Ctsm. Orchidglade) is just simply an outstanding plant and flower. The inflorescence is 24” long it’s straight up, carrying 15-18 flowers. But wait, there is more, the flowers are dark burgundy (almost black) the lips are hard as rocks… you need to see it in person to fully appreciate. Paring this with the unusual and dark burgundy color form Ctsm. fimbriatum v. morrenianum will really bring out some amazing flowers. Strong upright stems carrying 15 plus flowers in deep burgundy (almost black) flowers with lips that are heavy and frilled. A very novel hybrid with exceptional potential.
As with above this grex will have all the great qualities of the hybrid genus Cycnodes. Cyc. warscewiczii is an excellent breeding plant, the cultivar ‘Jumbo Mutation’ was selected from 100’s of flowering plants and is superior in flower size and form. The Morm. buccinator ‘Golden Green’ has amazing bright color and is producing 3-4 inflorescences per bulb, a really showy plant. The Mormodes will dominate for color and the Cycnoches for size and shape. These flowers will be a bright golden yellow and I expect many will exhibit the golden-green color, just fantastic eye catching colors.
The hybrid genus is a Mormodia (Mo.) which results from the crossing of Mormodes and Clowesia. As a breeder when you hit upon a successful combination you build upon it. So with the next series offerings we are doing just that. Cl. Rebecca Northen (Cl. Grace Dunn x Cl. rosea) is a famous and well recognized plant, it is easy to grow, has beautiful frilly pink flowers with a marvelous citrus fragrance, all produced on multiple pendent inflorescences. The Morm. elegans v. alba has 3-5 upright spikes per bulb, carrying 12-15 flowers each in a beautiful light green with darker green stripes. Mormodes are dominant for color transfer to their offspring. This cross will produce green striped flowers with a delicate pink blush; expect multiple pendent inflorescences holding 12-16 flowers, mature plants will be spectacular.
This is also a remake; the first batch had excellent golden yellow flowers with fine red spotting on pendulous inflorescences. The Cl. Grace Dunn (Cl. rosea x Cl. warscewitzii) it is a beautiful frilly pink flowers with a citrus fragrance produced on multiple pendent inflorescences. Morm. buccinator ‘Golden Green’ has amazing bright color and is producing 3-4 inflorescences per bulb. Everyone should own this cross it produces very successful offspring.
Obviously I liked Mo. Jumbo World so much I made it two ways. This Morm. buccinator ‘Xlnt Color’ has just that a brilliant golden yellow flower and a plant that is producing 3-4 inflorescences per bulb. Expect bright golden yellow flowers with fine red spotting on pendulous inflorescences.
Cl. Grace Dunn (Cl. rosea x Cl. warscewitzii) a beautiful frilly pink flowers with a citrus fragrance produced on multiple pendent inflorescences. The Morm. tapoayensis is a dark brownish flower with yellowish spots, the color is really unusual. As Mormodes are dominant for flower color and I am expecting the flowers of the offspring to be darkly colored with some degree of spotting. You will also have multiple pendulous inflorescences carrying 12-16 flowers each. A new and different combination.
This is a clone from Jumbo Orchids in Taiwan. It is a good example of the ‘typical’ from of pileatum and this cultivar is distinguished by its large green-gold lip color. Ctsm. pileatum is a vigorous grower and flowers well in a wide range of growing conditions.

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The following represent the 20 cases decided by the United States Supreme Court which, in Mr. Taylor's opinion, have had the greatest impact on the practice of drunk driving defense. The citations, facts and full majority opinions are set forth, along with any dissenting opinions.
For many years, government considered a driver's license "a privilege — not a right", and thus there were few effective remedies available to a driver who wished to contest a suspension. The U.S. Supreme Court changed that, recognizing that a license's "continued possession may become essential in the pursuit of a livelihood". Because of their value, then, they "are not to be taken away without that procedural due process required by the Fourteenth Amendment". Note: Were it not for Bell, it is doubtful that the California DMV today would provide hearings to contest DUI license suspensions. See also, Mackey v. Montrym (1979) 443 U.S. 1, involving a license suspension for refusing to submit to a DUI breath test.
In this case, the defendant was acquitted of larceny but convicted of burglary. successful on appeal, he was again charged with the burglary — and the larceny. The Supreme Court reversed, holding that the Double Jeopardy Clause of the U.S. Constitution applies to the states through the Fourteenth Amendment, thereby barring them from subjecting a citizen to repeated prosecutions for the same conduct. Note: Drunk driving defendants are routinely charged with both (1) DUI and (2) driving with .08% blood-alcohol; although it has been argued that this, in itself, raises related issues of "multiple prosecution" for the same conduct, it could raise issues under Benton's double jeopardy prohibition given the appropriate facts.
The Supreme Court is called upon to apply Miranda to a drunk driving case: When is a suspect "in custody" for purposes of determing whether the Miranda warnings must be given before questioning? In Miranda, the Court had held that the warning must be given when the individual is "in custody" — "or otherwise deprived of his freedom of action in any significant way". Clearly, a DUI suspect is not free to leave once he has been stopped and detained roadside — and certainly not when he is ordered to perform field sobriety tests. The Court, however, refused to provide any clear guidelines to the DUI stop/detention situation, seemingly recognizing a vague, undefined standard: "Either a rule that Miranda applies to all traffic stops or a rule that a suspect need not be advised of his rights until he is formally placed under arrest would provide a clearer, more easily administered line. However, each of these two alternatives has drawbacks that make it unacceptable..."
Does a defendant charged with drunk driving have a right to a jury trial? Not necessarily, according to the U.S. Supreme Court. In Blanton, the Court held that a citizen has a right to a jury trial only for "serious offenses" — not for "petty offenses". Basically, an offense punsihable by six months in jail or less is a "petty offense" — except in rare cases where additional statutory penalties indicate a legislative intent to consider the offense a "serious" one [such as license suspensions, fines, schools and ignition interlocks?]. Note: Today, a number of states, for example New Jersey, which punish fist offense DUIs with six months jail do not provide a right to jury trial. See also, Baldwin v. New York (1970) 399 U.S. 66.
The landmark case requiring the prosecution to produce upon request any evidence that is "material" to the issue of guilt. Note: See also, Arizona v. Youngblood (1988) where the Court held that it is a violation of due process for the prosecution to destroy evidence "in bad faith" which although not "clearly exculpable" was nevertheless potentially useful.
Another in the line of Brady-Youngblood "discovery" decisions (see above), this dealt with a drunk driving case. Where a breath test is given, the sample is captured in a test chanber, analyzed and purged out of the machine and into the air; nothing is saved. Since there is relatively cheap technology available to save such breath samples for later re-analysis by the defense, does the purging of the sample and the failure to preserve it constitute willful destruction of potentially exculpatroy evidence? No, said the Supreme Court, reversing the California Supreme Court: the destruction was "not a calculated effort to circumvent the disclosure requirements established by Brady v. Maryland", and, more importantly, the defnse failed to show that the breath sample would have had an "exculpatory value that was apparent before the evidence was destroyed [Note: How would a defendant possibly accomplish that?], and also be of such a nature that the defendant would be unable to obtain comparable evidence by other available means." Note: These "other available means" referred to the right of a DUI arrestee giving a breath sample to request an additional blood sample at his expense — a right which the police rarely advise the arrestee he has.
Very recent case. In a prosecution of a man accused of stabbing another man who raped his wife, the prosecution played a tape recording of the wife describing the stabbing. The defendant object on the grounds that he could not cross-examine the woman, but the trial judge found the tape recording to be "reliable" since it had been taped by the police and admitted it for the jury to hear. The Supreme Court held in a 9-0 opinion that this is a violation of the U.S. Constitution's Sixth Amendment right to confrontation ("in all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him."). The decision specifically overruled a previous holding in Ohio v. Roberts where the Supreme Court had held that evidence could be introduced where the judge finds it to be "reliable". The Court in Crawford decided that a judicial finding of "reliability" could not substitute for the right of confrontation, and that the Framers preferred the test of cross-examination to that of a judge's finding of reliability. Note: This very recent decision is particularly important in DUI cases, where prosecutors judges have commonly permitted prosecutors to introduce police reports in lieu of the testimony of the police themselves.
One of the cornerstones of our criminal justice system, this famous case dealt with a defendant charged with a felony who had no money and requested the trial judge to appoint legal counsel to defend him. The request was refused as state law provided for appointed attorneys only in capital cases, defendant had to defend himself at trial, and he was quickly convicted. Justice Black wrote the majority opinion, holding that the Sixth Amendment right to counsel applied not just to federal courts but to the states through the Fourteenth Amendment, and this "right to counsel" included the right to one even if one could not be afforded: "lawyers in criminal courts are necessitites, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours."
Federal Rules of Evidence 702 permits an expert to give his opinion "if scientific, technical, or other specialized knowledge will assist the trier of fact..." In Kumho, the trial judge excluded expert opinion testimony as to tire design because he found it unreliable. The issue on appeal was: Does Rule 702 apply only to "scientific" matters? Held, a trial judge's "gatekeeping" function is not limited by 702 to scientific matters, but applies to all expert testimony. Note: Since most states model their Evidence Codes after the Federal Rules, this decision was influential in how state courts would would limit expert testimony — including in drunk driving cases, where "expert" testimony (such as by the police officer) on such non-scientific matters as "field sobriety tests" is common. See also, Daubert v. Merrell Dow Pharmaceuticals (1993) 509 U.S. 579.
Landmark case in which the U.S. Suptreme Court established the "Exclusionary Rule" by holding that "all evidence obtained by searches and seizures in violation of the Constitution is, by [the Fourth Amendment], inadmissible in a state court." Note: In a DUI case, for example, the remedy for an officer stopping, detaining or arresting a suspect without sufficient probable cause would be suppression of all subsequently-obtained evidence: observations of appearance and behavior, field sobriety tests, breath test results, etc. See also, Wong Sun v. United States (1963) 371 U.S. 471.
Do roadside sobriety checkpoints violate the 4th Amendment protection from being stopped/detained without probable cause that he may be engaged in illegal conduct? In a much-criticized 6-3 decision, the Court overlooked the Constitution, focusing instead on the drunk driving problem: "No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it....the weight bearing on the other scale—the measure of the intrusion on motorists stopped briefly at sobriety checkpoints—is slight." Note: A few states (Michigan, for example, but not California) have continued to prohibit DUI checkpoints by relying upon their own state constitutions.
The landmark case in which the Court required that any "custodial interrogation" (questioning after arrest) must be preceded by the now-famous "Miranda warning" — including the right to remain silent and the right to have counsel present. Failure to so advise will result in suppression of any statements made in reply to such post-arrest questions. Note: In DUI cases, most questioning usually takes place during the field investigation — that is, non-custodial interrogation; it is not uncommon, however, for the police to continue asking questions in the police car or back at the police station during breath testing.
Defendant was both tried for selling marijuana — and then charged civilly for a failure to pay a tax on that marijuana. The Supreme Court held that it was a violation of the Constitutional prohibition against Double Jeopardy: The fact that one proceeding was criminal and the other civil did not matter, the Court said, as long as they both involved the same offense and both were intended as punishment. Note: This case has repeatedly been cited in DUI cases as authority for the proposition that the State cannot both criminally prosecute for driving with over .08% blood alcohol and civilly suspend the individual's driver's license for the same offense. Although there have been federal court decisions taking this position, to date state courts have not accepted this reasoning and the U.S. Supreme Court has not addressed the issue in a drunk driving context. See also, U.S. v. Halper (1989), 490 U.S. 435.
Involving a theft where the intent to steal was legally presumed from the conduct of removing the property, this decision established that conclusive presumptions are a violation of the presumption of innocence and takes away from the jury the function of facutally determining the elements of the offense. Presumptions pop up constantly in DUI cases today: defendants are presumed guilty if their blood-alcohol was over .08%; the blood-alcohol level at the time of testing is presumed to be the same at the time of driving if taken within three hours (despite scientific evidence and common sense to the contrary). In each situation, however, the presumption is rebuttable — that is, the jury can disregard it in view of other evidence. Note: Were it not for Morisette, the government would undoubtedly make these presumptions conclusive — that is, the jury must follow the legal presumption even if the evidence clearly contradicts it.
Defendant was charged with possession of a firearm by a convicted felon. Fearful that evidence of the prior felony conviction would prejudice the jury on the present case, defendant offered to admit to the fact of the prior felony so that evidence of the nature or facts of the crime would not be necessary. The prosecution refused, saying that it could prove the prior conviction if it so chose, and offered the facts of the prior crime. Held: the judge abuses his discretion in permitting evidence of the prior conviction where the nature of the current criminal charge raises a risk of a verdict tainted by evidence of that conviction. Note: This is a critical issue in drunk driving cases where a defendant is accused of DUI with prior convictions: evidence of the priors ("If he did it once...") almost guarantees a conviction.
After his arrest, a drunk driving suspect was given field sobriety tests at the police station. Some of these included tests of mental acuity, such as "Do you know what the date was of your sixth birthday?". The Supreme Court held that this constituted testimonial response to custodial interrogation and, since a Miranda warning had not been given, was inadmissible in trial. The court distinguished between questioning to determine the manner of speech (slurred) and the content (what was said) — that is, what was said rather than how it was said. Note: Applying Muniz to other DUI cases, post-arrest questions like "What time is it? Where are you?" and "divided attention" field sobriety tests ("Stand at attention with your eyes closed and tell me when 30 seconds have passed") should be similarly inadmissible without Miranda warnings.
Suspect swallowed drugs to get rid of evidence, whereupon police hit him and jumped on his stomach to make him throw up the drugs; at the hospital a physician forced an emetic through a tube into his stomach. Held, this conduct violated defendant's 14th Amendment right to Due Process. "Due Process" is a vague term, but it prohibited "conduct that shocks the conscience." Note: This is an important case in the drunk driving arena, as it is not uncommon practice for police to use violent means to obtain a blood sample from a resisting DUI arrestee.
At officer's request and over objection, blood was withdrawn from a DUI arrestee while he was being treated at a hospital for injuries from an accident. Issue: Did evidence of the blood test results violate the defendant's 5th Amendment privielege against self-incrimination? Held, no: the privilege applies only to oral and written communication or testimony, not to physical evidence, and blood tests are not due process violations if taken under humane and medically accepted circumstances.
If a DUI suspect refuses to submit to breath or blood alcohol testing, is it a violation of the 5th Amendment privilege against self-incrimination to use that refusal as evidence against him in trial? After the South Dakota Supreme Court held that it was a violation and thus inadmissible, the U.S. Supreme Court reversed, saying that a refusal was a matter of free choice, not compulsive. Note: The South Dakota Supreme Court later held that if not a violation of the U.S. Constitution, then evidence of refusals was a violation of the South Dakota Constitution — and again reversed the conviction.

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Poster Presentations | Water . Environment . Climate .
Pradeep Behera, Ramesh S. V. Teegavarapu, et al., 2016. Tracking Changes and Trends in the Potomac River Flow Extremes and Characteristics, EWRI 2016 International Conference, West Palm Beach, Florida, USA.
Ramesh S. V. Teegavarapu , Pradeep Behera, Milla Pierce, Precipitation Characteristics and Climate Variability, EWRI Congress, 2015,Austin,Texas, May 18, 2015.
Aneesh Goly+*, Ramesh S. V. Teegavarapu Optimal Selection of Predictor Variables in Statistical Downscaling Models of Precipitation, AGU Fall Meeting, 2014. December 15, 2014.
Sudhagar Nagarajan, Yushin Ahn, Ramesh S. V. Teegavarapu Analytical Incorporation of Velocity Parameters into Ice Sheet Elevation Change Rate Computations, AGU Fall Meeting, 2014. December 16, 2014.
Ramesh S. V. Teegavarapu+* and Chandra Pathak, Optimizing Reflectivity-Rain Rate (Z-R) Relationship Parameters for Improved Radar-based Precipitation Estimates, Weather Radar and Hydrology (WRaH), 2014. Washington D.C., April 8, 2014.
Ramesh S. V. Teegavarapu+*, Uncertainty Assessments of Spatially-Interpolated Missing Precipitation Data Estimates, AGU Fall Meeting, San Francisco, December 8-14, 2013. Presented.
Chandramouli Viswanathan+*, Karim Mohammad+*, Ramesh S. V. Teegavarapu*, Examining Climate Indices in the US Midwest Region to examine droughts, ASCE-EWRI, Environmental and Water Congress, 22 May, 2013, Cincinnati, USA.
Aneesh Goly+*, Ramesh S. V. Teegavarapu+, Selection and Evaluation of Different Spatial Resolutions for Statistical Downscaling of Precipitation, ASCE-EWRI, Environmental and Water Congress, 22 May, 2013, Cincinnati, USA.
Aneesh Goly+*, Ramesh S. V. Teegavarapu+, Statistical Characterization and Assessment of Precipitation Extremes during Different Phases of Multi-year and Multi-decadal Climatic Oscillations, ASCE-EWRI, Environmental and Water Congress, 21 May, 2013, Cincinnati, USA.
Ramesh S. V. Teegavarapu+*, Estimation of Missing Precipitation Records using Classifier, Cluster and Proximity Metric-Based Interpolation Schemes, American Geophysical Union (AGU) Fall Meeting, 2012.
Ramesh S. V. Teegavarapu+*, Integration of Spatial Interpolation Techniques and Association Rules for Estimation of Missing Precipitation Data American Geophysical Union (AGU) Fall Meeting, December 6, 2006.
Ramesh S.V. Teegavarapu+*, Stream Health Assessment using a Knowledge Assisted Decision Support System, Frontiers in Assessment Methods for the Environment (FAME), AEESP Conference, August 10 – 13, 2003, Minnesota, USA.
Ramesh Teegavarapu+* Presented two posters relating to Regional Assessment of Water Quality at PRIDE/NOAA Grant meeting, Somerset, KY, April 13, 2005.
Ramesh S. V. Teegavarapu+, Chandramouli Viswanathan+*, Ravi Chittamuru+, Examining climate change indices using Indiana rainfall data, KWRRI Annual Symposium, 2012.
Ramesh S. V. Teegavarapu+*, Chandramouli Viswanathan+, Pradeep Behera+, Variability of Precipitation Extremes and Climate Change: Evaluation using Descriptive Indices, AGU Fall Meeting, 2011.
Ramesh S. V. Teegavarapu+*, Anurag Nayak+, C. Pathak+. Evaluation of Long-term Trends in Extreme Precipitation Events and Links to Atlantic Multi-decadal Oscillation (AMO) Cycles in South Florida, World Environmental and Water Resources Congress, 2011.
Ramesh S. V. Teegavarapu+, and C. Pathak*, Development of Optimal Z-R Relationships, Weather Radar and Hydrology, Exeter, U.K., April 18, 2011.
Ramesh S. V. Teegavarapu+, Anil Tangirala+*, and Lindell Ormsbee+, Assessing Hydrological Similarity of Watersheds by analyzing Geometric Patterns in Streamflow Time series, American Geophysical Union (AGU) Fall Meeting, San Francisco, 8 – 14, December, 2003. Session # H12B-0969.
Ramesh S. V. Teegavarapu+*, Sharika Senerath+, C. Pathak., Evaluation of Variants of Monte-Carlo Simulation for Hydrologic Model Uncertainty Assessment, AGU Fall Meeting, 2009.
Ramesh S. V. Teegavarapu+*, Meskele, T., Chandra, P., Geo-Spatial Grid-based Transformations of Multi-Sensor Precipitation Estimates, AGU Fall Meeting, 2008.
Ramesh S. V. Teegavarapu+*, Estimation of Missing Precipitation Data using Soft Computing based Spatial Interpolation Techniques, AGU Fall Meeting, 2007.
Ramesh S. V. Teegavarapu+*, A. Nayak+ and C. Pathak+, Assessment of Long-term Trends in Extreme Precipitation: Implications of In-filled Historical Data and Temporal Window-Based Analysis. AGU Fall Meeting, San Francisco, 2010.
Ramesh S.V. Teegavarapu+* and Lindell Ormsbee; Modeling Environmental Systems using System Dynamics Approach and Object-Oriented Simulation Tools, AEESP/AAEE Conference, August 11-13, 2002, Toronto.
Ramesh S. V. Teegavarapu+*; Short-term Operation of Coupled Hydropower Systems, Facility for Intelligent Decision Support (FIDS), June 2000.
Husayn El Sharif+* and Ramesh S.V. Teegavarapu+, Spatial Statistics Preserving Methods for Estimation of Missing Precipitation Data Involving a Single Best Estimator, FAU Research Day, March 30, 2012. Research Poster Award Winner.
Aneesh Goly+ and Ramesh S. V. Teegavarapu+*, Evaluation of GCM and Scenario Uncertainty for GCM Downscaled Future Precipitation Projections in Florida, FAU Research Day, March 30, 2012.
Husayn El. Sharif+, Ramesh S. V. Teegavarapu+*, Spatial Statistics Preserving Interpolation Methods for Estimation of Missing Precipitation Data, AGU Fall Meeting, 2011.
Aneesh Goly+*, Ramesh S. V. Teegavarapu+*, Spatial and Temporal Variation of Precipitation Extremes in Florida: Influence of Teleconnections, AGU Fall Meeting, 2011.
Noemi-Gonzalez+*, Ramesh S. V. Teegavarapu+*, Lin Huang, Evaluation of Spatial and Temporal Distribution of Precipitation Events and their Relation to Peak Flooding Events: AGU Fall Meeting, San Francisco, 2010.
Andre Ferreira+, Ramesh S. V. Teegavarapu+*, C. Pathak+, Evaluation of Optimal Reflectivity-Rainfall (Z-R) Relationships for Improved Precipitation Estimates, AGU Fall Meeting, 2009.
C. Viswanathan+, Ramesh S. V. Teegavarapu+* and Lindell Ormsbee+, Surface Water Assessment and Hydrologic Modeling under Karst Conditions American Geophysical Union (AGU) Fall Meeting, December 6, 2005. EOS Transactions, 86(52) H21-1310.
Mohammad Tufail, Lindell Ormsbee, Ramesh S. V. Teegavarapu+*, Comparison of Artificial Neural Networks, Genetic Algorithms and Multiple Linear Regression for Water Quality Modeling, American Geophysical Union (AGU) Fall Meeting, December 6, 2006.
Anil K. Tangirala+*, Ramesh S. V. Teegavarapu+ and Lindell Ormsbee, Water Quality Management at Different Watershed Scales using System Dynamics Simulation, American Geophysical Union (AGU) Fall Meeting, San Francisco, 8 – 14, December, 2003. Session # H51C-1064.
Andre Ferreira+ and Ramesh S. V. Teegavarapu+*, Optimal Operation of Hydro Power Systems Under a Fuzzy Multi-Objective Decision Making Environment: A Partial Constraint Satisfaction Approach, ASCE-EWRI 2010 Conference, Chennai, India. January 5, 2010.
Aswartha Balla, Chandramouli Viswanathan, Ramesh S. V. Teegavarapu+* and Lindell Ormsbee, Evaluation of Spatial Interpolation methods for Estimation of Missing Precipitation Data, ASCE conference, Tampa, 2007.
Anil K. Tangirala+* and Ramesh S. V. Teegavarapu+, Model Identification and Selection Tool (MIST): A Knowledge-based System for Selection of Water Quality Models, 4th IT Symposium in Civil Engineering, ASCE, Nashville, December, 2003.
Aneesh Goly+*, Ramesh S. V. Teegavarapu+*, Climate Change and Variability: Influence of Teleconnections, FAU, 2011.
Lin Chia Hung+*, Ramesh S. V. Teegavarapu+*, Extreme Precipitation and Flooding Events in South Florida, FAU, 2011.
Aneesh Goly+*, Ramesh S. V. Teegavarapu+, Assessment of Extreme Precipitation Events in Florida during AMO (Atlantic Multi-Decadal Oscillation) Phases, FAU Research Symposium, April 8, 2011.
Scott Ornitz+*, Evangelos Kaisar, Ramesh S. V. Teegavarapu+, A Mixed Integer Nonlinear Programming Model to Optimize the Use of Aircraft Deicing and Anti-icing Fluids, TRB Annual Meeting, 2010.
Ramesh S. V. Teegavarapu+*, and Lindell Ormsbee+, Assessment of Water Quality Trends in the Upper Cumberland River Basin: Deterministic and Stochastic Analysis, Pine Mountain, KY, November 15, 2005.

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text:
NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY vs. THE T. STUART AND SON COMPANY.
(9) The agreement of indemnity, even when read with the quoted portions of the specifications, did not make the contractor responsible for the acts of negligence of the railroad corporation or its agents.
CONTRACT OR TORT with a declaration in two counts, the first count being upon the agreement of indemnity described in the opinion. Writ dated October 28, 1914.
stated in the opinion. The jury found for the plaintiff in the sum of $7,097.28. The defendant alleged exceptions.
L. A. Mayberry, for the plaintiff.
damages, received or sustained by any party or parties, by reason of any act of the said Contractor, or of any Subcontractor hereunder, or of any agent or servant of either said Contractor or said Sub-contractor, in the construction of said work, or by or in consequence of any negligence or carelessness in guarding the same; . . . Neither the completion and acceptance of the work, nor the final payment, operate to discharge the Contractor from his (or its) responsibility for any claims for any personal or property damages which may have arisen during the work under the contract, whether such claims are then known or may become known in the future." By paragraph two of the specifications, It no information upon any such matters derived from maps, profiles or specifications, or from the Engineer or his Assistants, shall in any way relieve the Contractor from all risks incident to the work." The seventh paragraph of the specifications states, that "The Contractor will properly and sufficiently sheet and brace the excavation along the property line of the Company, which is also the backline of the retaining wall, that the adjacent land of abutting owners shall not cave in or be in any way disturbed. The Contractor will not trespass or encroach on the land of abutting owners, except as he himself obtains permission so to do"; and in paragraph fifteen "The Contractor agrees that this being a wall on the property line of the Railroad Company, he will protect, brace, and not trespass upon, the land of abutting owners, and will protect the Railroad Company from all suits, claims or damages arising from the prosecution of the work, and will himself assume all responsibility for damages to the property of abutting owners."
and evidence in support of this contention was introduced at the trial. On November 8, 1909, after the completion of the wall, Szathmary brought a bill in equity against the Boston and Albany Railroad Company and the defendant for damages and for an injunction, at the trial of which as shown by a transcript of the proceedings admitted in evidence - the defendant was found to have trespassed; but damages only were awarded. On the plaintiff's appeal, the decree was reversed by this court, Szathmary v. Boston & Albany Railroad, 214 Mass. 42, and the trial court, after rescript, entered an interlocutory decree directing the removal of so much of the wall as constituted an encroachment on the plaintiff's land; but, the parties having agreed upon a settlement, the railroad company paid to Szathmary $3,585, and thereupon a final decree was entered, the material part of which is as follows: ". . . it appearing that a settlement of the matters in dispute therein has been made by grant of a certain easement in the land of the plaintiff . . . by deed . . . now therefore, upon consideration thereof, and by agreement of all parties hereto, it is ordered, adjudged and decreed that the plaintiff's bill be and the same is hereby dismissed without costs to either party." It was agreed by the parties that the defendant was seasonably notified of the pendency of the bill and given opportunity to defend the suit, but did not enter an appearance. It also was agreed that if Mr. George L. Mayberry, of counsel for the defence, were in court he would testify that "from the time the rescript in the case of Szathmary against the Boston and Albany Railroad, February twenty-sixth, nineteen thirteen, was handed down by the Supreme Judicial Court, to the date of the final settlement to Szathmary, July seventh, he was in constant touch with Mr. Jesse C. Ivy," counsel for the contractor.
mined in an equity suit in Suffolk, where the findings of fact show that there was an encroachment, and said findings were binding upon the parties to that suit, to their privies, and that the defendant company was bound by such finding of fact on the matter of encroachment or trespass; that therefore the court rules that the evidence offered is not admissible in this suit.
"If the plaintiff in good faith made the settlement on the basis that there was an encroachment there and made what he deemed in good faith was the best settlement that could be made under the circumstances, that although in reaching that settlement he got a deed for an easement in the Szathmary land, that that came in within the terms of the contract of indemnity, whereby the plaintiff [sic] was obliged to pay the plaintiff, what it paid out to get rid of the encroachment. if the taking of the deed was merely a form or means of reaching a settlement in good faith, that it would not deprive the plaintiff of a right of action against the defendant for an amount paid in good faith, if the real basis of the getting of the deed and the paying of it was to make a final settlement.
"I think it appears if the plaintiff acted as a reasonably prudent man would act under similar circumstances, acting in good faith, then that it may recover the amount it paid, although it turns out and the jury find that the work would have been done for less, if before the settlement the plaintiff notified the defendant that it was considering seriously the question of settlement, and gave some idea as to the approximate amount or Some amount that was being spoken of.
"It is open to the defendant in this suit to show that the work of removing the encroachment upon Szathmary land could be done for much less money than the plaintiff paid in settlement of the trespass, and that it is also open to the defendant to show that the money wasn't paid in good faith, that it was paid after the defendant notified the plaintiff through its counsel that it was ready to do the work of removing the encroachment, if there was an encroachment, for $200, provided it had the right to go on the property of Szathmary so to do."
the plaintiff contend,that the defendant, through its counsel, had consented to the settlement.
The plaintiff, accordingly, must show that the settlement was fair and reasonable in view of the circumstances under the indemnity clause. It was conceded that the plaintiff acted in good faith and the auditor found that the amount paid in settlement was fair and reasonable, and that it was not in excess of what it would have cost to comply with the conditions required by the interlocutory decree of January 10, 1914.
The judge rightly refused to rule that the final decree dismissing the bill was an adjudication that there was no encroachment upon the Szathmary land. But the ruling that the proceedings conclusively established the encroachment was erroneous. The opinion of this court in Szathmary v. Boston & Albany Railroad, supra, however, is not a part of the record in that case, Snell v. Dwight, supra, and the interlocutory decree therein was vacated by the final decree dismissing the bill. But the portion of the opinion quoted by the trial judge and the interlocutory decree were admissible in this suit for their bearing upon the reasonableness of the settlement. See Hawks v. Truesdell, 99 Mass. 557, 559; Attorney General v. Armstrong, 231 Mass. 196, 202; Carere v. F. W. Woolworth Co. 259 Mass. 238. The instruction given, to which the defendant excepted, that "it was the duty of the defendant to defend the suit and to take the place of the railroad company," was error. It was optional with the defendant whether it would appear and defend.
recover in this action"; and "If the plaintiff, or its engineers, inspectors, or agents furnished contracts, plans, lines, stakes or directions to the defendant for the construction of the retaining wall and the trespass or encroachment on the Szathmary land was caused by the defendant's following the contracts, plans, lines, stakes or directions furnished by the plaintiff, the defendant is not liable in this action to the plaintiff," should have been given. Boston & Maine Railroad v. T. Stuart & Son Co. 236 Mass. 98, 103. The case of New York Central Railroad v. William Culkeen & Sons Co., supra, cited by the plaintiff, is distinguishable. The covenant of indemnity in that case included damage as a result of acts of the indemnitee, and, if certain words of the covenant were to be given any effect, they had to be construed as not excluding negligent acts of the indemnitee. The indemnity clause in the case at bar, even if read with the second and fifteenth clauses of the specifications, does not contain language which supports a construction making the contractor responsible for the acts of negligence of the railroad or its agents.


You think texting while driving can be dangerous. Well, one employee’s two-word text cost his company more than $1 million in contract damages. This is because his text was found to amend the original contract.
The case, CX Digital Media v. Smoking Everywhere Inc., 2011 WL 1102782 (S.D. Fla. March 23, 2011), centered on a contract between an Internet lead generation company and a company that sold electronic cigarettes. The original contract was a standard written contract with an amendment clause providing that the contract could only be changed “by a subsequent writing signed by both parties.” The contract provided that the cigarette company would pay the lead generation company $45 for each sale of a free trial kit for a maximum of 200 sales a day.
Pedram Soltani, the account manager for the lead generation company contacted the vice president of advertising of the cigarette company, Nick Tairis, via text message, about increasing the number of leads per day.
Soltani (2:50:08 p.m.): We can do 2000 orders/day by Friday if I have your blessing.
Soltani (2:52:13 p.m.): Those 2000 leads are going to be generated by our best affiliate and he’s legit.
On the same day as the above text, the lead generation company started to substantially increase the number of leads funneled to the cigarette company. During the month of the text, the average sales increased by more than 1,000 from the previous month.
The lead generation fee for the two months after the ceiling on the number of leads was lifted was $1,339,419. The cigarette company refused to pay this amount, arguing that the original contract limiting leads to 200 a day was still in effect, and that the text did not modify the limit because no amendment had been signed by both parties. However, the court disagreed. It found, applying Delaware law, that the parties had implicitly agreed not to require that the amendment be signed by both parties. Even if the texts were not seen to modify the amendment provision, the court determined that since the lead generation company materially changed its position based upon the agreed-upon amendment by providing more leads, the cigarette company would be estopped from raising the amendment prohibition.
This case illustrates an intractable drafting problem. No matter how you beef up your no-amendments provision, the court can always find that future conduct amends the provision. Some commentators have suggested providing that a specific person must sign the amendment, that the amendment must be labeled as such, or that the amendment must be accompanied by a corporate resolution approving the amendment to be effective. Nevertheless, all of these requirements can later be held to be amended by conduct, so they do not provide a completely effective solution.
New York and California have enacted statutes that enforce no oral modification provisions in contracts. See Cal. Civ. Code §1698; N.Y. Gen. Oblig. L. §15-301. However, courts have found that the contracts can still be orally modified in violation of the written contract and, seemingly, the statute. See Weschler v. Hunt Health Systems, 186 F.Supp. 2d. 402 (SDNY 2002).
With no way to draft around the subsequent modification provision, we need to warn our clients to be careful about texting about contract terms. Otherwise, they may find after a couple of key strokes or a short chat with Siri that their contract has been significantly changed.
Elizabeth J. Goldstein is a member of the business group at Dilworth Paxson. Readers can contact her via email and follow her on Twitter.
This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney-client relationship.
Vulcan argued that a business combination “between” the parties must be a friendly one. The court lent credence to this interpretation by proposing an extreme example. The court explained that a “transaction between A and B involving the sale of A’s house” cannot be reasonably interpreted to mean that B can murder A to obtain the house. Vulcan also argued that because “between” immediately followed “transaction,” it only modified this word and not “business combination.” This placement suggests that there must be a voluntary transaction between the parties with affirmative participation by both parties rather than unilateral participation by one.
However, the court also recognized that Martin Marietta had a valid argument that the relevant provision did not provide that the contemplated transaction had to be negotiated or mutually agreeable to the parties. Moreover, if the parties would have included a standstill provision, the parties would have been prohibited from launching a hostile takeover while friendly merger talks proceeded. Thus, “between” could also be plausibly read to only require the eventual combination of the two parties’ assets.
The court also struggled to find a singular meaning of a “business combination transaction.” It rejected statutory definitions offered by both parties, finding that neither party intended to incorporate these formal definitions into the NDA. When looking at the “plain meaning,” the court found a multitude of definitions. Ruling that both “between” and “business combination transaction” could plausibly be interpreted both as Martin Marietta and Vulcan had suggested, the court ruled that the phrase was ambiguous. The court examined how the negotiation history of the parties evidenced the intent of the parties. The court found relevant that Martin Marietta’s general counsel’s negotiated revisions to the NDA all strengthen the confidentiality provision. In addition, the court cited Martin Marietta’s own pre-takeover behavior as supporting an interpretation that “business combination transaction between the parties” did not include hostile bids. When Martin Marietta decided to launch a hostile bid, it took actions signaling that it believed it would be in breach of the NDA by using the exchange documents. Namely, Martin Marietta’s general counsel attempted to gather all of the exchange documents and put them in her office. She told company employees and consultants not to use these documents for the takeover bid. The court, finding that pre- and post- negotiation behavior of the parties supported that the exchange documents were only intended to be used to support friendly transactions, ruled that Martin Marietta breached the agreement by using the exchange documents in aid of the hostile takeover. To remedy the situation, it enjoined Martin Marietta from taking steps to unilaterally acquire Vulcan for four months.
One lesson learned from this case is to be careful what you use as your base document to draft your agreement. In this case, Martin Marietta’s general counsel proposed the first draft of the NDA, basing it on a prior confidentiality agreement between the parties relating to an asset swap transaction. Both counsel apparently missed that an NDA for a possible merger should have an added provision relating to standstills. In this case, it would have been better to start fresh by reviewing some model form NDA agreements specifically drafted for potential merger agreements. A second lesson is to try to minimize actions and words that can later be construed by the opposing party as an admission that you are in violation of the agreement. As one famous Vulcan might put it, to do otherwise would be most illogical.
Apparently, ESPN knew long before Faith Hill belted out her NBC opening number that we’d all been waiting all day for Sunday night – and not for baseball. The case of ESPN v. Office of the Commissioner of Baseball, 76 F. Supp.2d 383 (S.D.N.Y. 1999), tells an interesting contractual tale. The contract between ESPN and MLB required ESPN to broadcast a baseball game every Sunday night. ESPN could pre-empt this schedule “for an event of significant viewer interest” if MLB gave its consent. MLB could not unreasonably withhold this consent.
In January 1998, ESPN requested MLB’s approval to broadcast several NFL games on Sunday night in lieu of baseball games. The baseball games would then be moved to ESPN2 per the parties’ contract. MLB refused to grant its permission for the switch. However, ESPN went ahead and broadcast the NFL games anyway. MLB refused to allow ESPN to broadcast the baseball games on ESPN2.
The same series of events occurred in January 1999. ESPN sought permission to move several Sunday night baseball games to ESPN2 so it could broadcast Sunday night NFL games on ESPN. MLB refused. In April 1999, MLB terminated its contract with ESPN, alleging breach of contract based upon ESPN’s decision to broadcast Sunday night NFL games. In the lawsuit, the parties disputed whether past conduct, including a prior written contract between the parties, was admissible to assist a jury in interpreting the contract provision in dispute, the provision requiring MLB not to unreasonably withhold its permission for ESPN to broadcast something other than baseball on Sunday nights.
MLB argued that ESPN could not introduce the prior written contract because of the current contract’s merger clause. The court, however, disagreed. It concluded that while the merger clause prevented the prior written agreement from being considered part of the agreement, it could be used to discern the meaning of an ambiguous contract term. Thus, the prior written agreement was admissible at trial to shed light on the meaning of the disputed provision.
Whether or not such a clause would effectively prevent a court from relying on extrinsic evidence where it finds the contract language ambiguous or unclear is problematic, however. The suggested language might well be effective to preclude additions or qualifications to the present agreement, but “interpretation” would be difficult to eliminate where a court is seeking guidance, in construing a doubtful term.
In any event, when parties seek to use a prior course of dealings to avoid contractual duties or to unreasonably withhold approval of the other party’s request for relief from an onerous term, perhaps the question should be: Are you ready for some litigation?
Imagine your physician practicing medicine identically to the doctors in Charles Dickens’ time. Ridiculous, right? However, we lawyers are still drafting contracts virtually identically to the solicitors who practiced in the days of Bleak House. I recently had the opportunity to interview Kingsley Martin, an attorney who is the CEO of Kiiac (pronounced kayak), a company that is harnessing the power of computing to create contract checklists for entire agreements and individual clauses.
Kiiac’s software can review a large sample set of agreements and identify the core, standard language and distinguish deal-specific terms. During our interview, Martin used a merger agreement as an example. Kiiac’s software has determined that there about 350 common clauses found in merger agreements. It is impossible for lawyers to keep all of these in their heads. Inevitably, lawyers will leave out key terms or put in duplicative or overlapping terms. Kiiac’s software application can review a draft agreement and compare its terms against the 350 standard merger provisions. It will indicate to the lawyer both possible additional terms and duplicative terms. The text of the reviewed agreement is color-coded. Black text means the text is commonly found in merger agreements, while red text delineates text that diverges from the standard agreement.
Martin has found that commercial clauses across agreements are strikingly similar, frequently using the same terms of art or common phrases. Additional analysis shows they share common sub-elements. Clauses, thus, can be viewed like agreements as checklists of elements, detailing mandatory and optional clauses. For example, the Nondisclosure Obligation in a confidentiality agreement can be viewed as containing four elements: (1) confidentiality, (2) non-use, (3) nondisclosure, and (4) protection of information.
Some contract terms with the most common text and frequent variations can be found for free at Kiiac’s website, www.contractstandards.com. These clauses create a checklist of elements detailing required and optional clause terms. Thus, Kiiac offers checklists at the macro and micro levels of contract drafting. It also automates template building, which should add to drafting efficiency.
Kiiac is working on analyzing all commercial agreements. Currently, it provides an interesting table on its website comparing and contrasting provisions among agreements. When agreements are compared this way, historical drafting idiosyncrasies are unearthed that can be corrected. For instance, almost all finance agreements have a representation and warranty concerning indebtedness. However, many acquisition agreements do not. This is a glaring omission, since the acquiring company should be as concerned with outstanding loans as a company providing financing.
A few lawyers have been critical of Kiiac’s contract analysis application because it indicates what language is prevalent but does not guarantee that the language is clear. However, the software performs an essential task, albeit one that could not be performed until now. With Kiiac, attorneys have the full anatomy of commercial contracts at their disposal. I predict that one day it will be malpractice not to use this type of software to draft and review contracts. This software, however, does not end the need for lawyers. Lawyers still must determine which clauses should be used in which contract and ultimately how these provisions should be drafted and interpreted. Nevertheless, it is inarguable that the computer is a powerful computational engine that can aid lawyers in drafting smarter agreements but does not allow lawyers to put themselves on autopilot. Now, excuse me while I fire up David Copperfield on my Kindle.
The case between Prince and a perfume company had not been going well. The action arose from a celebrity endorsement deal with the company for a perfume named after Prince’s album, “3121.” Prince had failed to appear in court when ordered to do so after his lawyer had withdrawn from the case. This led to a default judgment against him and his affiliated companies. Now, the only thing left for Prince to litigate was how much he and his affiliate companies were going to have to pay in damages.
Last week it was reported that a court ordered Prince to pay almost $4 million to the perfume company. The $4 million relates to out-of-pocket expenses that the perfume company paid to develop the product. Prince was not a party to the contract, but signed an inducement letter that was incorporated into the endorsement agreement. In the letter, Prince promised to promote the perfume during his next concert tour. This is a fraud case, but it teaches an important point about the strategic use of repudiation of a contract.
On Dec. 1, 2006, Prince signed the inducement letter. The very next day, Prince informed the perfume maker that he would not give interviews for the launch party or provide a photo for the press release announcing the product. Thus, Prince argued that all of the defendant’s out-of-pocket expenses after Dec. 2, 2006, could not be based upon the perfume maker’s reliance upon Prince’s promises to promote the fragrance. The court, however, found that because Prince’s company, which licensed Prince's name, likeness and “3121” album title and mark in connection with the fragrance products, had continually reassured the perfume company after Dec. 2, 2006, that Prince would in fact assist in the promotion of the perfume, that date was not an appropriate cut-off date for the perfume maker’s damages. Thus, the court awarded the full $4 million claimed by the perfume company for its out-of-pocket expenses.
When we represent clients, it is often our first instinct to try to get them to act reasonably when they are in the wrong. Following this instinct, we try to assure the other party that our client will meet its contractual obligations. In hindsight, Prince would have been better off if he and his affiliated companies communicated clearly and decisively to the perfume company the decision to repudiate the contract.
The next time you are dealing with a client whom you believe may ultimately not live up to the client’s end of the bargain, you should consider whether repudiation or rescission would be a more optimal strategy than seeking to reassure the other party that your client will meet its contractual obligations. Strategic use of repudiation or rescission may lessen the ultimate amount of damages your client will pay in the future. Reviewing Prince’s actions in the perfume deal and in the lawsuit, it does not seem like Prince uses a great deal of forethought and strategy in addressing the business issues in his life. This lack of planning and strategy has led to some expensive mistakes in the case at hand. It looks like Prince will not be partying like it is 1999 anytime soon.
Elizabeth J. Goldstein is a member of the business group at Dilworth Paxson. Readers can contact Goldstein via email and follow her on Twitter.
Once a year, when traffic clogs the downtown streets of Carlisle, Pa., and makes it impossible to get a table at my favorite Saturday morning breakfast spot, I realize that the annual Corvette show has come to town. Though I’m not sure what inspires such devotion to one particular model of car, I guess it is not surprising that such passion could ignite a contentious bit of litigation. In 1978, Chevrolet produced its first special edition Corvette. It was modeled after the Corvette that was to serve as the pace car at the Indianapolis 500 race that year. Buyers deemed the cars immediately collectible and the price quickly shot up to $10,000 more than the list price of $13,653. Chevy initially planned to limit production to 300 units; however, demand was so high that Chevrolet decided to build 6,502 units, one for each of its dealerships. The scarcity of the pace car model probably explains why a case was brought by a disappointed buyer against a dealership in New York.
The dealer defended the claim by alleging that he orally told the buyer that the sale was contingent upon the original buyer canceling the purchase of the car. The buyer argued that such parol (extrinsic) evidence was impermissible based upon the merger clause. The court rejected the buyer’s argument, finding that the seller sought to use the parol evidence to establish a condition precedent to the agreement. Since the merger clause would only be effective if the agreement were in force, it had no effect where the court found that a necessary condition precedent was not met. Thus, the court found that the dealer’s parol evidence relating to a prior buyer’s canceled purchase of the pace car was admissible in the breach of contract action.
Interestingly, a New York court refused to apply the same reasoning in a real estate case. (See Torres v. D’Alesso, 910 N.Y.S. 2d 1 (N.Y. App. Div. 2010).) Other courts, however, have applied the same reasoning in real estate cases. (See e.g. Luther Williams Jr. Inc. v. Johnson, 229 A.2d 163 (D.C. 1967).) The Restatement of Contracts also provides that parol evidence may be admissible to establish that a written contract is not effective because of a failure of a condition precedent. Restatement (Second) of Contracts, Section 217 (1981), Restatement of Contracts, 241(1932).
The addition of that sentence to the buyer’s contract in Tropical Leasing would have precluded the argument and likely would have made the plaintiff the proud owner of a 1967 pace car model Corvette. Maybe I’ll look for one at this year’s annual show just to see what a good investment that car would have been.
This post is part of a series on using checklists to ensure accuracy in contracts. Here is the first part.
Every well-constructed contract has a provision just as pivotal as the Jesus nut: the merger provision, also known as the integration clause. Without it, the entire contract can be decimated by one party’s assertion that a promise or representation outside the agreement contradicts what exists in the contract. That promise or representation, which can be oral or written, can dramatically change the character of the agreement. A contract for 10 pairs of shoes is now for 10,000 pairs. A contract for real estate in as-is condition is now warranted by the seller to be free from pollutants. The merger clause is the only defense against these dramatic changes and the all-too-human temptation to try to rewrite the contract post-hoc after many of the risks have played themselves out. Oil prices have tripled after the seller has agreed to the price-fixed contract. The intellectual property licensed has failed to obtain FDA approval. In the next several blog entries, I will be discussing the drafting of the merger clause. Today’s post focuses on how to handle merger clauses in amendments.
In my family, shopping is our only sport. Thus, I was disappointed to learn that a missing merger clause in an amendment to a lease may be the reason my car must ford a river and drive more than 45 minutes to get to the nearest Sam’s Club. This is a major inconvenience when I want to get a case of pretzel dogs for my carbs-fest après-Passover. A Sam’s Club was actually planned about 15 minutes from me in a shopping center that once had a Giant. I know this because the case was reported as Giant Food Stores v. THF Silver Spring Development 959 A.2d 438 (Pa. Super. 2008), appeal denied, 972 A.2d 522 (Pa. 2009).
The original lease between the Giant and the shopping center restricted the landlord from allowing a supermarket in addition to Giant from operating in the shopping center. However, the restriction lapsed if Giant no longer operated a supermarket in the shopping center. When the Giant moved out of the shopping center and found two replacement tenants to sublease its space, the shopping center and Giant entered into a first letter agreement that confirmed the parties’ intention to enter into a legally binding agreement in the future which would approve the sublease and reinstate the supermarket restriction placed on the shopping center, but without the requirement that Giant operate a supermarket in the shopping center.
The lease amendment stated that all terms not inconsistent with the amendment would remain as part of the agreement.
The Pennsylvania Superior Court found that the lease’s merger clause could only be read to exclude written agreements made prior to the execution of the lease; thus, the trial court was permitted to consider the two letter agreements along with the lease amendment. The lesson from this case is two-fold. One, you need to think through the boilerplate in every agreement and amendment. Two, for merger clauses, you need to think through the subject of the first sentence (i.e., “This Agreement contains the entire agreement”). You need to expand the subject to reference all relevant agreements.
For instance, if an employment agreement and intellectual property agreement are going to be signed together, both documents should be referenced in each merger clause. When several related agreements will be signed contemporaneously, the merger clauses should be the same in each. If there are several documents that need to be incorporated into the merger clause, one can use a defined term such as “Deal Documents” or “Transaction Documents.” While it is questionable in this case whether the shopping center would have really excluded the two letter agreements as part of the transaction, if it had thought through this issue at the time it drafted the lease amendment, it would be preferable to make a deliberate decision concerning this issue when drafting the document rather than leaving this issue to chance down the road. In addition, it is likely that the lawyer is going to be the one blamed for not addressing this issue in the contract. At least that’s who I am blaming when I have to drive across the Susquehanna to shop at Sam’s Club.
q Is a merger clause needed?
q What agreements should be referenced in first sentence?
Elizabeth J. Goldstein is a member of the business group at Dilworth Paxson. Readers can contact Ms. Goldstein via email and follow her on Twitter.
This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship.
Atul Guwande in “The Checklist Mainfesto: How to Get Things Right” shares the story of how a checklist he created for surgeons and nurses to use together in the operating room saved lives and reduced errors. His inspiration was the pilot’s takeoff checklist started by Boeing Corp. Boeing had built a state-of-the-art long-range bomber, Model 299. In 1935, it was competing with Martin and Douglas for new military contracts. On Oct. 30 of that year, the Army held a flying contest to compare the two companies’ new bomber models. Boeing’s plane was the sure favorite. It could fly faster than all previous bombers, carry five times more bombs than the Army specifications required, and travel twice as fast as the current models. To everyone’s surprise, the plane crashed in a fiery ball quickly after takeoff. The pilot and one crew member died in the crash. It was believed that pilot error was the cause of the crash. Boeing’s best test pilots concluded from the crash that a plane as complex as the Model 299 was too complex to be operated by memory alone. As a result, Boeing test pilots developed a flight takeoff checklist. The original takeoff checklist was short, about the size of an index card.
Guwande interviewed Daniel Boorman from Boeing on the subject of what makes a good checklist. Boorman said that checklists should be precise and should not cover every step. A checklist cannot be used to fly a plane. They are to be used by professionals to remind themselves of critical steps they may miss. They aid professionals with remembering how to handle complex tasks. It should feature items that are important but that are sometimes overlooked.
Checklists can be designed as a DO-CONFIRM checklist or a READ-DO checklist. For a DO-CONFIRM checklist, one does one’s job and then stops, reviews the checklist and determines that one has completed the tasks on the checklist. In contrast, one reviews each task of a READ-DO checklist and then completes it in turn. It works similar to a recipe. I will create checklists for this blog that are DO-CONFIRM checklists. I believe lawyers will likely refer to the checklists after they have completed their first draft of the agreement or after they review the first draft proposed by the other party.
The aim of this series will be to provide checklists on a weekly basis for the basic structure of contract and general provisions as well as specific provisions of frequent commercial agreements. As discussed above, the checklists are not intended to give a layperson or lawyer enough to draft an entire agreement or provision. They are meant to assist people in understanding key considerations that may get overlooked in the complex process of negotiating and drafting a commercial contract. I will start with the ubiquitous boilerplate, because this is a feature of every agreement. Plus, many of us were not taught how to draft these provisions. It is presumed that we know what boilerplate to include and what should be in the boilerplate. However, as you will see, boilerplate cannot be done by rote to the degree one might assume. There are nuances and complexities that one must consider. Today, to get started, we will consider a more basic question – how to handle multi-agreement transactions.
The checklists will generally address U.S. law except Louisiana with an emphasis in Pennsylvania and New Jersey law. However, as every practitioner knows, the law in each state varies. These checklists may not address the differences presented among different states’ laws, which can present important considerations that are not contained in the checklists presented.
Multiple-deal documents can invite mischief, both intended and unintended. In one deal, I was hired to attempt to unwind after it was executed related to the refinancing of a company’s real estate. At the closing, the company’s president sent an extra signature page around the table. Unbeknownst to my client, by signing this signature page, she purportedly agreed to an accelerated buy-out of the president’s stock. The president quit the very next day. Even when there are no bad actors, clients often sign blank signature pages at closings with no realization of what they have signed. Thus, they do not stop to ask their lawyers any questions. They just choose to rely solely on the lawyer’s assurances that the documents are acceptable. Only if a problem arises later will the client appreciate what he or she signed. In fact, the client may be quite surprised to learn what the client’s lawyer found to be an acceptable level of risk.
Ken Adams in “A Manual of Style for Contract Drafting” recommends two strategies to address the problem of unidentified signature pages traveling around the closing table: (1) refer to the type of the agreement in the concluding clause or (2) on the footer of the signature page state the title of the agreement and date of agreement. I prefer the latter solution. The footer clearly identifies the document.
One problem with multiple-deal documents is inconsistent boilerplate. The most problematic inconsistencies will lie if the agreements do not consistently choose (1) between litigation and arbitration and (2) the same venue to resolve the matter. Also, if the agreements do not choose one forum’s law for resolving disputes, one party may engage in forum shopping or litigation may take place in two jurisdictions.
q Consistent choice of law.
q Signature pages identify agreement (via conducting clause or footer).
Elizabeth J. Goldstein is a member of the business group at Dilworth Paxson. Contact her via email and follow her on Twitter.


As previously written about here, I had the privilege this year of being a part of the team of lawyers representing the plaintiff in Wallace v. Tesoro. The opinion issued in favor of my client by the Fifth Circuit in that case created very positive law for SOX whistleblowers around the country.
This past week I learned of a recent decision from the District of Connecticut in a Sarbanes-Oxley whistleblower retaliation case that adopted the Wallace pleading standard for SOX whistleblowers. The case serves to underscore the broad scope of protected conduct under SOX. In Wiggins v. ING, the court held that the heightened Rule 9(b) pleading standard for fraud claims does not apply to SOX retaliation claims and a whistleblower can plead that she had a reasonable belief that her employer violated one of section 1514A’s enumerated fraud provisions without specifically alleging that she believed that the employer’s conduct satisfied all of the elements of the federal statute/SEC rule that was allegedly violated.
In Wiggins, the Plaintiff worked as an operations consultant at an insurance company. She alleged that she disclosed irregularities in the processing of terminated retirement plans that reflected a lack of compliance with federal securities laws, including “frequent inaccuracies in market value assessments on retirement plans that were being terminated and sent to other providers, incorrect and inconsistent application of deferred sales charges, and deliberately failing to provide identified “problem” files for quarterly auditing procedures.” She alleged that the company terminated her employment in response to her whistleblowing.
The company argued that Ms. Wiggins’ complaint should be dismissed because it alleged she had blown the whistle about fraudulent activities but did not allege said fraud with the heightened particularity required under Rule 9(b) for pleadings in which a defendant is sued for fraud.
ING’s argument overlooks the fact that section 1514A(a)(1) “protects an employee who `reasonably believes’ that conduct violates an enumerated statute.” Wallace v. Tesoro Corp., 796 F.3d 468, 480 (5th Cir. 2015). As such, there is room for a plaintiff to maintain a SOX whistleblower claim under Section 1514A, assuming he has satisfied the other pleading requirements, “even if the [complained of] conduct turns out not to be fraudulent.” Id.; see also Guyden v. Aetna, Inc., 544 F.3d 376, 384 (2d Cir. 2008) (“a whistleblower need not show that the corporate defendant committed fraud to prevail in her retaliation claim under § 1514A”). Because section 1514A protects the employee who acted under a reasonable belief that fraud was occurring — rather than protecting only those employees who report activity that is, in fact, fraudulent —”Federal Rule of Civil Procedure 9(b) does not apply because [Wiggins] brings a retaliation claim based on his reasonable belief of fraud rather than a claim necessitating proof of fraud.” Jin Huang v. Harman Intern. Industries Inc., Civil Action No. 3:14-cv-1263-VLB, 2015 WL 4601047, at *2 n. 3 (D. Conn. July 29, 2015); see also Wallace, 796 F.3d at 480 (“Although [the defendant] maintains that dismissal can be affirmed for failing to satisfy Rule 9(b), it is plain from the rule’s text that it does not apply to this [SOX] retaliation suit”). Thus, ING’s argument that the Amended Complaint must be dismissed because it does not meet the heightened pleading standard of Rule 9(b) is without merit, because SOX whistleblower claims do not need to be plead in accordance with this heightened standard.
Wiggins follows the Fifth Circuit's holding in Wallace, of broadly construing SOX protected whistleblowers and refusing to impose a heightened standard of objective reasonableness. This is important because it makes it much more difficult for an employer to seek dismissal of a SOX whistleblower case at the pleading stage on a motion to dismiss.