The COVID-19 testing situation in the United States after eight months of the pandemic is déjà vu all over again. As cases surge, Americans around the country are once more lining up for hours in the hope of getting a virus test and then waiting for days for the results. Despite the fact that number of COVID-19 tests has recently been hovering around 1.5 million per day, that’s not nearly enough.
Why? Among other reasons, because the test positivity rate is now 10 percent, which is more than double the rate back in October. The percent positive rate “is a critical measure,” two researchers at Johns Hopkins University explain, “because it gives us an indication how widespread infection is in the area where the testing is occurring—and whether levels of testing are keeping up with levels of disease transmission.”
It didn’t have to be this way.
At the beginning of the pandemic, there were understandably few tests available for detecting coronavirus infections. But the federal government made the situation much worse by screwing up the development and deployment of testing. The Centers for Disease Control and Prevention botched its own COVID-19 test while the Food and Drug Administration (FDA) blocked the development of alternatives by private companies and universities. Months later, the United States still does not have enough tests.
The good news is that the FDA has since approved more than a couple hundred COVID-19 tests. But these tests are not available on the scale needed to stem the tide of infections by enabling Americans to test themselves, warn friends and family if they test positive, and then voluntarily isolate themselves to prevent the further transmission of the disease.
President Donald Trump and his administration deserve credit for launching Operation Warp Speed, which appears just months later to be delivering on its promise to provide safe and effective COVID-19 vaccines. The National Institutes of Health (NIH) also launched a Rapid Acceleration of Diagnostics (RADx) program, funded with $1.5 billion appropriated by Congress as part of the Paycheck Protection Program and Health Care Enhancement Act. The RADx initiative has been integral to developing numerous COVID-19 tests. In a July New England Journal of Medicine article, NIH researchers noted that RADx intended to expand COVID-19 testing capacity to 6 million persons per day by December. As of mid-November, we aren’t close to getting there yet.
Operation Warp Speed was successful at scaling up vaccine production in part because the federal government issued around $18 billion in contracts to their makers. Had the government similarly prioritized COVID-19 testing, the country would not now be piddling around with just 1.5 million tests per day. The Trump administration contracted in late August with Abbott Laboratories to purchase 150 million of its point-of-care BinaxNOW COVID-19 tests for $750 million. The tests, which take about 15 minutes to provide a result, began shipping to state public health agencies at the end of September.
That’s a start, but much more testing needs to be done. Instead of using tests primarily to diagnose COVID-19 cases, they should be used as part of disease surveillance approach in which every American can test themselves frequently. The Harvard epidemiologist Michael Mina and his colleagues argue for a crash program to roll out of tens of millions of cheap antigen tests that people can take at home.
In an interview published today in TheNew York Times, COVID-19 task force advisor and National Institute of Allergy and Infectious Disease director Anthony Fauci was asked, “If you had a national plan for testing, what would it be?” He responded by calling for
flooding the system with tests. Getting a home test that you could do yourself, that’s highly sensitive and highly specific. And you know why that would be terrific? Because if you decided that you wanted to have a small gathering with your mother-in-law and father-in-law and a couple of children, and you had a test right there. It isn’t 100 percent. Don’t let the perfect be the enemy of the good. But the risk that you have, if everyone is tested before you get together to sit down for dinner, dramatically decreases. It might not ever be zero but, you know, we don’t live in a completely risk-free society.
That would be terrific. Keeping in mind that all politicians’ promises are flexible, the Biden presidential campaign put testing at the top its plan to address COVID-19. Specifically, the incoming administration wants to ramp up “next-generation testing, including at home tests and instant tests, so we can scale up our testing capacity by orders of magnitude.” Better late than never.
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In Striking Rebuke, Consumer Reports Finds Tesla Has Second-Worst Reliability Of All Automakers Tyler Durden
Thu, 11/19/2020 – 17:20
Tesla shares pared their “S&P 500 inclusion” gains on Thursday after it was revealed that Consumer Reports decided to not “recommend” the company’s Model S and panned the company’s Model Y “due to a decline in their reliability”.
Model S ratings dropped due to issues with its suspension – the very same issue Tesla claims China “wrongfully” made it recall vehicles for overseas last month. The Model Y suffered from “hardware and paint problems,” according to CNBC. This means the Model 3 is the only Tesla vehicle that Consumer Reports recommends; for the time being, at least.
Previously, Consumer Reports had named the Model S its top rated vehicle ever in 2015. It’s amazing what can happen, though, when you actually drive a few of them off the lot and put some miles on them for a couple of years.
“We see a variety of problems on that car. It’s wavered throughout its life cycle,” Consumer Reports said, trying to sound objective.
The Model Y has “well below average reliability,” the report said. Tesla ranked second to last in Consumer Reports’ study of reliability – out of more than two dozen vehicles. The survey “is based on data collected from owners of more than 300,000 vehicles”.
Can’t say we didn’t see this one coming – what with names like Forbes and Electrek having weighed in over the summer with scathing critiques of Tesla’s newest Model (that happens to look a lot like its Model 3). Complaints over the summer included issues with paint, trim issues, indentations on the seats and even loose seatbelts.
Even Kelly Blue Book was forced to make note of the awful quality of the Model Y it tested over the summer on its YouTube channel: “As for quality issues. Our car’s b-pillar trim doesn’t fit right and neither does this lower bumper trim, the rear door alignment is slightly off, the rear seats are similarly uneven, and there’s a loud rattle coming from the rear somewhere,” they said at the time.
We look forward to seeing how Consumer Reports updates its Model 3 ratings in a year or two, once the hundreds of thousands of models on the road have been driven a little bit longer and suffer a little more wear and tear.
We have already documented numerous Model 3 quality control issues, including the vehicle’s bumper falling off “more than expected”. We’re not sure exactly how expected it should be that a bumper should randomly fall off of a car at any given time, but we digress.
Our friends over at InsideEVs released a scathing piece over the summer about Tesla’s Model 3, noting that the car’s bumper has a tendency to fall off at a rate that is “more widespread than expected”.
The blog shared three different horror stories of bumpers flying off that were sent to it after they posted their first article about a Model 3 bumper flying off. In all three cases, the owners were told by Tesla that the repairs would not be covered.
via ZeroHedge News https://ift.tt/3lOr3x5 Tyler Durden
The COVID-19 testing situation in the United States after eight months of the pandemic is déjà vu all over again. As cases surge, Americans around the country are once more lining up for hours in the hope of getting a virus test and then waiting for days for the results. Despite the fact that number of COVID-19 tests has recently been hovering around 1.5 million per day, that’s not nearly enough.
Why? Among other reasons, because the test positivity rate is now 10 percent, which is more than double the rate back in October. The percent positive rate “is a critical measure,” two researchers at Johns Hopkins University explain, “because it gives us an indication how widespread infection is in the area where the testing is occurring—and whether levels of testing are keeping up with levels of disease transmission.”
It didn’t have to be this way.
At the beginning of the pandemic, there were understandably few tests available for detecting coronavirus infections. But the federal government made the situation much worse by screwing up the development and deployment of testing. The Centers for Disease Control and Prevention botched its own COVID-19 test while the Food and Drug Administration (FDA) blocked the development of alternatives by private companies and universities. Months later, the United States still does not have enough tests.
The good news is that the FDA has since approved more than a couple hundred COVID-19 tests. But these tests are not available on the scale needed to stem the tide of infections by enabling Americans to test themselves, warn friends and family if they test positive, and then voluntarily isolate themselves to prevent the further transmission of the disease.
President Donald Trump and his administration deserve credit for launching Operation Warp Speed, which appears just months later to be delivering on its promise to provide safe and effective COVID-19 vaccines. The National Institutes of Health (NIH) also launched a Rapid Acceleration of Diagnostics (RADx) program, funded with $1.5 billion appropriated by Congress as part of the Paycheck Protection Program and Health Care Enhancement Act. The RADx initiative has been integral to developing numerous COVID-19 tests. In a July New England Journal of Medicine article, NIH researchers noted that RADx intended to expand COVID-19 testing capacity to 6 million persons per day by December. As of mid-November, we aren’t close to getting there yet.
Operation Warp Speed was successful at scaling up vaccine production in part because the federal government issued around $18 billion in contracts to their makers. Had the government similarly prioritized COVID-19 testing, the country would not now be piddling around with just 1.5 million tests per day. The Trump administration contracted in late August with Abbott Laboratories to purchase 150 million of its point-of-care BinaxNOW COVID-19 tests for $750 million. The tests, which take about 15 minutes to provide a result, began shipping to state public health agencies at the end of September.
That’s a start, but much more testing needs to be done. Instead of using tests primarily to diagnose COVID-19 cases, they should be used as part of disease surveillance approach in which every American can test themselves frequently. The Harvard epidemiologist Michael Mina and his colleagues argue for a crash program to roll out of tens of millions of cheap antigen tests that people can take at home.
In an interview published today in TheNew York Times, COVID-19 task force advisor and National Institute of Allergy and Infectious Disease director Anthony Fauci was asked, “If you had a national plan for testing, what would it be?” He responded by calling for
flooding the system with tests. Getting a home test that you could do yourself, that’s highly sensitive and highly specific. And you know why that would be terrific? Because if you decided that you wanted to have a small gathering with your mother-in-law and father-in-law and a couple of children, and you had a test right there. It isn’t 100 percent. Don’t let the perfect be the enemy of the good. But the risk that you have, if everyone is tested before you get together to sit down for dinner, dramatically decreases. It might not ever be zero but, you know, we don’t live in a completely risk-free society.
That would be terrific. Keeping in mind that all politicians’ promises are flexible, the Biden presidential campaign put testing at the top its plan to address COVID-19. Specifically, the incoming administration wants to ramp up “next-generation testing, including at home tests and instant tests, so we can scale up our testing capacity by orders of magnitude.” Better late than never.
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For years, I’ve been trying to impart a simple concept that Superman is not coming.
Dare I say, I had hopes that this new administration would usher in the dawning of a new day. As picks for President-elect Joe Biden’s Environmental Protection Agency (EPA) transition team were announced, I felt concerned and disheartened about a chemical industry insider being on the list.Are you kidding me?
Michael McCabe, a former employee of Biden and a former deputy Environmental Protection Agency administrator, later jumped ship to work as a consultant on communication strategy for DuPont during a time when the chemical company was looking to fight regulations of their star chemical perfluorooctanoic acid (PFOA) also known as C8. The toxic manmade chemical is used in everything from waterproof clothes, stain-resistant textiles and food packaging to non-stick pans. The compound has been linked to lowered fertility, cancer and liver damage. The Guardian reported this week that Harvard school of public health professor Philippe Grandjean, who studies environmental health, warns that PFAS chemicals, of which PFOA is one, might reduce the efficacy of a Covid-19 vaccine.
This smells of the dawn of the same old. To quote the Who: meet the new boss, same as the old boss.
It should go without saying that someone who advised DuPont on how to avoid regulations is not someone we want advising this new administration.
PFOA pollutes the blood of nearly every American and can pass from mother to unborn child in the womb. This toxic product of industry is a stable compound not easily broken down in the environment or in the human body, giving it the nickname “forever chemical”. Scientists have found it in living beings across the globe – from animals living in the depths of the sea to birds on remote islands.
The Environmental Protection Agency has set no enforceable national drinking water limits for perfluorinated chemicals, including PFOA. Tens of thousands of community drinking water systems across the country have never even tested for these contaminants.
McCabe started managing DuPont’s communications with the EPA about the toxic chemical in 2003, according to an article in the Intercept. This was the time in which DuPont faced a barrage of litigation after the company dumped 7,100 tons of PFOA-filled waste in West Virginia, which made its way into the drinking water of 100,000 people. Countless members of the community faced debilitating illnesses as a result. The legal battle with the company was turned into the film Dark Waters in 2019.
Mind you, DuPont suspected that their product was harmful since the 1960s – experiments they conducted in 1961 showed that PFOS affected the livers of dogs and rabbits. McCabe’s work inevitably contributed to staving off costly clean-up and additional regulation headaches for the company.
Are we the people supposed to trust a former DuPont man in a transition team tasked with reviewing the Chemical Safety Board? Is this how the newly elected leadership wants to start what is supposed to be a healing and unifying administration? Are we already falling back on the old and antiquated, hide-and-seek, conceal, dodge and deny leadership or are you going to come out and be the change and the hope needed when it comes to the environment?
I don’t see how picking someone from industry is moving us toward that goal.
The science is in. Research has linked exposure to this chemical to the following illnesses: kidney and testicular cancer, ulcerative colitis, thyroid disease, pregnancy-induced hypertension and high cholesterol.
This newly elected president says we need to listen to the science. Are you really listening to the science or are you listening to an industry insider, who is controlling the message?
With a lack of federal guidance on these dangerous chemicals, states have been left to create their own rules to enforce guidance and regulations. This chemical, and others like it, have been poisoning us for decades. Now is the time to act.
This is not about being rightwing or leftwing. It doesn’t matter what side of the aisle you are on. We cannot keep making picks from this inside, leaving we the people, once again on the outside.
What will it take to get our leadership to work with the people?
Stop working against and separately from your communities. Put your transition team on the ground and make them talk with those affected by these chemicals. Go out and see for yourself, learn and hear from those who you represent about what the heck is happening to them on the ground – those living and breathing in the toxic mess we have created.
It is time to keep your promise and give the people a voice and a seat the table in order to find a meaningful solution for the environment and for the people. Don’t close the door on us again.
We are in this mess because we continue to do the same old thing.
Let us not forget where these chemicals came from and who is responsible for putting them in our environment. Let us not bring the fox back into the hen house. DuPont executives should have no place in the Environmental Protection Agency.
Mnuchin Refuses To Extend Some Fed Bailout Programs, Treasury Wants Money Back Tyler Durden
Thu, 11/19/2020 – 16:48
Despite Fed Chair Powell’s desire for them to remain in place, Treasury Secretary Steven Mnuchin gas declined to extend several emergency loan programs established jointly with the Federal Reserve that are set to expire on Dec. 31.
The Fed’s corporate credit, municipal lending and Main Street Lending Program won’t be renewed, Mr. Mnuchin said Thursday.
Powell said earlier in the week that “The Fed will be strongly committed to using all of our tools to support the economy for as long as it takes until the job is well and truly done. When the right time comes, and I don’t think that time is yet or very soon, we will put those tools away.”
But now, WSJ reports that, in a letter to Mr. Powell on Thursday, Mr. Mnuchin said the facilities, backstopped by the Treasury with funds authorized under March’s Cares Act, “have clearly achieved their objective.”
Bond issuance volumes, which sank in March, have returned to their pre-Covid-19 levels along with borrowing spreads.
“Banks have the lending capacity to meet the borrowing needs of their corporate, municipal and nonprofit clients,” he said.
In fact, bond yields and spreads are at all-time record lows (despite surging debt/leverage).
Mnuchin almost noted that the move would allow Congress to reappropriate approximately USD 455bln remaining from the CARES Act.
Stocks have slipped after hours on the news…
Developing…
via ZeroHedge News https://ift.tt/2UJXFMA Tyler Durden
“Disappear For A While”: Prince Andrew Shilled For Buddy’s Bank Specializing In Shady Clients Tyler Durden
Thu, 11/19/2020 – 16:40
Disgraced royal Prince Andrew – who was put in a very long time-out by the Queen following a disastrous interview regarding his relationship with pedophile Jeffrey Epstein – served as an ‘unofficial door-opener’ for international bankers who specialized in serving clients of ill repute, according to Bloomberg Businessweek, which has reviewed ‘a trove of emails, internal documents, and previously unreported regulatory filings.”
“But Epstein is only the most infamous wealthy financier the prince has had dealings with. There’s another one the public knows less about. For years, Andrew acted as an unofficial door opener for David Rowland and his private bank in Luxembourg, Banque Havilland SA,” according to the report, which adds that Prince Andrew’s “royal cachet and his role as the U.K.’s special representative for international trade and investment until 2011 helped the Rowland family pitch their services to potential clients from the ranks of the world’s dictators and kleptocrats.“
In 2011, after the Daily Mail published a photograph of Philip with his arm around an underage girl – who has since accused him of rape – Banque Havilland CEO Jonathan (son of founder David) emailed Andrew about scrapping a planned trip to Africa, telling him to “Disappear for a while.”
David Rowland in 2010. (Photo: David Parker/ANL/Shutterstock)
For his ‘Royal’ hookup, Andrew was able to live beyond his reported $320,000 per year stipend – including using the Rowlands’ 45 million jet and benefiting from a private bank account at Banque Havilland under the pseudonym Andrew Inverness. The Rowlands, meanwhile, benefited from Andrew’s status.
David Rowland bought Banque Havilland out of the ashes of Iceland’s failed Kaupthing Bank – renaming it after Havilland Hall, the family’s estate on Guernsey – a Channel Islands tax haven popular for those with offshore accounts.
Havilland employs an “unusually bold business model,” according to Bloomberg.
Most banks have become increasingly selective about their clients to avoid running afoul of anti-money-laundering rules. Governments on both sides of the Atlantic require them to vet the sources of their clients’ wealth, monitor their transactions, and report any suspicious activity—with more stringent checks for those who hold prominent public positions. But the picture of Banque Havilland that emerges from the documents and interviews is of a bank willing to work with people most other financial institutions would shun. –Bloomberg
One such ‘unsavory’ client was Kolawole Aluko – a Nigerian energy magnate who received a $30 million loan while he was under fire over allegations of bribery in the country’s oil industry. Another individual, Joshua Kulei – former personal assistant to ex-Kenyan President Daniel Arap Moi – received a $2.9 million mortgage despite being banned from the US over allegations of graft which he has denied.
The Rowlands also made a $5 million loan to the heirs of deceased Georgian businessman Arkady Patarkatsishvili, which was routed “through one of their accounts at the bank, over objections from a senior compliance officer who described Patarkatsishvili, in emails to Jonathan Rowland and other bank executives in 2010, as an alleged criminal and his money as tainted.“
The report is careful to note that Prince Andrew isn’t connected to any of the above clients, nor is it known whether the Rowlands mentioned his affiliation while procuring and dealing with them. The bank claims that none of its current or former clients had been ‘introduced or referred by Prince Andrew,’ that it never employed him, and that he was never “a paid advisor or ambassador.”
That said, Bloomberg describes the 75-year-old Rowland and Andrew, 60, as “an odd pair.”
DavidRowland is 75, the son of a London scrap-metal dealer. He dropped out of school at 16. Short and barrel-chested, with a near-permanent scowl, he peppers his speech with expletives. He’s said he made his first million pounds in his 20s, buying and selling real estate. He moved on to shipping, timber, and chemicals, eventually setting up a company called Blackfish Capital Management, which he claimed managed $1 billion of his own money and that of his friends.
Through Blackfish and other entities, Rowland made loans to clients who might have had trouble borrowing from big banks. He sometimes charged annual interest of more than 10% and demanded collateral two or three times the value of the underlying loan, according to people with knowledge of Blackfish’s business. He parlayed his financial success into political capital, contributing more than £4 million to Britain’s Conservative Party in the two years after buying Banque Havilland, making him one of its biggest donors. David Cameron, prime minister at the time, named Rowland the party’s treasurer, its chief fundraising position, but he resigned before assuming the post when articles came out about his business dealings and offshore tax status. –Bloomberg
Andrew, meanwhile, comes ‘from the other side of the realm’ from Rowland.
born in Buckingham Palace, baptized by the Archbishop of Canterbury, and raised by a governess. He stood little chance of ascending to the throne; he also didn’t have much appetite for school. After joining the Royal Navy at 19, Andrew served as a helicopter pilot during the 1982 Falklands War.
He had a roguish side, too. He liked to party and had a string of girlfriends. A whiff of scandal accompanied him. In 2007 he sold a home his mother had given him to a Kazakh businessman for £3 million above the asking price. More recently he’s been embroiled in a dispute with the former owner of his Swiss chalet over an unpaid portion of the purchase price. His friendships, including with a son of former Libyan leader Moammar Qaddafi, have been a source of annoyance for Britain’s diplomats and politicians.
Andrew and Roland go back to at least 2005, when he was invited to the unveiling of a giant statue of Rowland at the financier’s estate. Over the years, the two have attended each other’s parties and met for private dinners. Andrew introduced Rowland to the queen – taking him to tea with his brother at the queen’s Scottish estate, the Daily Mail has reported. The Rowlands were fixtures at Andrew’s country house, while Andrew would visit the Rowlands at Havilland Hall.
Not allowed, says Delaware Court of Chancery Vice Chancellor Joseph R. Slights III, dealing with my notice opposing such sealing. (Many thanks to my local counsel Garrett Rice of Ross Aronstam & Moritz LLP for all his invaluable help, and to UCLA law student Jenna Battaglia, who worked on the case with me.) Here is an excerpt from the Vice Chancellor’s opinion; for similar federal cases, see Parson v. Farley(which I had also filed) and Holmes v. Grambling:
Court of Chancery Rule 5.1 … codifies the “powerful presumption of public access” to court proceedings and records…. [Confidential treatment is allowed only if a party] can demonstrate that “the public interest in access to Court proceedings is outweighed by the harm that public disclosure of sensitive, non-public information would cause.”
By design, the burden of demonstrating [this] is exacting, recognizing that “[t]hose who decide to litigate in a public forum … must do so in a manner consistent with the right of the public to follow and monitor the proceedings and the result of [the] dispute.” In this regard, our courts appreciate that public access to the courts and their business is “fundamental to a democratic state and necessary in the long run so that the public can judge the product of the courts in a given case.” And the public cannot “judge the product of the courts in a given case” if the information being withheld is necessary for understanding “the nature of the dispute” or the court’s bases for a decision….
[A.] MetTel’s Interest in Confidentiality
The harm MetTel alleges will be inflicted upon it in the absence of confidentiality protections is too broad to meet the requirements of Rule 5.1…. [T]o show an interest in confidentiality that outweighs the public’s right of access, MetTel must do more than make “[g]eneric statements of harm.” The showing must be particularized; in other words, MetTel “must point to specific information like ‘trade secrets or competitively sensitive pricing information'” that is not in the public mix and, if disclosed, will cause clearly identified harm.
MetTel claims to meet this burden by alleging “harm beyond its reputation, including but not limited to direct harm to its business relationships with current and potential customers”[:] … “[o]nce that seed [of the defamatory statement] has been planted, the client will undertake a critical look at a provider with which it had been perfectly happy” and “may terminate the contract based on a pretext”; “there is a real risk that MetTel will be asked to bid on fewer and fewer contracts going forward”; and “[o]nce confidence [in] a provider’s financial stability is called into question, customers … can simply choose the non-confrontational option of selecting a different vendor.” …
[But] it is difficult to imagine a defamation case, at least in a commercial setting, where these same concerns would not always be present…. [And] it is evident from a comparison to the examples in Rule 5.1 that potentially defamatory statements, per se, are not the kind of information the drafters of Rule 5.1 intended to protect. The five examples in Rule 5.1 include: “trade secrets; sensitive proprietary information; sensitive financial, business, or personnel information; sensitive personal information such as medical records; and personally identifying information such as social security numbers, financial account numbers, and the names of minor children.” Each of these enumerated categories is discrete and reflects information that is not, or at least should not be, of interest to the general public in the quest to understand the dispute before the court or the bases for the court’s decisions.
While I do not dispute there is some risk of economic harm to MetTel if the redacted information is made public, allowing such information to remain redacted “merely because its disclosure could cause the parties economic harm” would turn the presumption of public access on its head and frustrate the purpose of Rule 5.1.
[B.] The Public’s Interest in Understanding the Bases of the Dispute
The public maintains a strong interest in access to the content of the alleged defamatory statements. If the information currently redacted remains so, the public will have no means to understand the dispute MetTel has asked the Court to adjudicate. This conflicts with the public’s right to “monitor the proceedings and result[s]”—a right, again, that “has been characterized as fundamental to a democratic state.” In other words, when “the supposedly-confidential information represents the nature of the dispute itself—the interest of the public in accessing this information outweighs the economic harm to the parties that disclosure may cause.” That is the case here.
While MetTel and Professor Volokh debate the legitimacy of Professor Volokh’s planned use for this information, nothing in our law obligates Professor Volokh to prove why he seeks access to information filed in a Delaware court, much less that his purpose is somehow “proper.” Instead, MetTel is obligated to prove that good cause exists to deny Professor Volokh access to the information he seeks as a member of the public. That information—the gravamen of the case—cannot be discerned from the redacted Complaint, which, at best, notifies the public that Granite made some unknown defamatory statements that MetTel now asserts are defamatory for some unknown reason(s). [Footnote:]
This is hardly adequate to enable the public “to follow and monitor the proceedings and the result of [the] dispute.”
Not only would it be impossible for a member of the public to understand what is going on in this case based on the pleadings, “it is difficult to envision a judicial opinion in this matter that could maintain the confidentiality of all the designated material and yet be comprehensible to the reading public.” In its Complaint, MetTel asks this Court to determine whether Granite committed defamation, tortious interference with prospective economic advantage, tortious interference with contractual relations, trade libel and deceptive trade practices. When this Court is called upon to determine the merits of these claims in trial or motion practice, the Court will not be able to render and deliver a comprehensible decision without reference to the currently redacted information.
[C.] MetTel’s Reliance on CapStack is Misplaced
Finally, MetTel claims that [under] this court’s decision in CapStack [a prior Court of Chancery case involving a request for an anti-libel injunction] …, MetTel “cannot, on the one hand, argue that the defamatory and tortious statements by Granite are causing irreparable harm, while, at the same time, repeat those defamatory and tortious statements in the public record.” …
[I]t is true that CapStack held that the plaintiffs had “failed to establish that irreparable harm will likely result,” relying in part on the fact that the information was already public through the pleadings[.] … [But u]nder MetTel’s reading of CapStack, the factual gravamen of a defamation complaint could never be disclosed to the public in a court document if that information was not previously disclosed, regardless of whether access to the particular statements would cause particularized harm, because disclosure would potentially foreclose a showing of irreparable harm.
That reading would eviscerate the presumption of public access, ignore our Rule 5.1 jurisprudence requiring a showing of good cause to rebut the presumption, and conflict with the general rule that the mere fact information is “previously undisclosed” is not enough to justify confidential treatment….
Looks quite right to me. Note that the underlying document has not yet been unsealed, because MetTel still has time to appeal.
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When I was a kid growing up, I read 1984 by George Orwell. This was the grim version, as opposed to the much funnier version by Mel Brooks. It had a profound effect on my worldview, as books often do when you read them in 7th grade. In it, a globalist group of communists fought each other continuously, while subjugating the entirety of the human race. Hmmm, wait, that sounds familiar?
1984 was a bleak book. I’m not sure who I talked about it with, outside of writing the chicken scrawl of a report in schoolboy block letters and handing it to my really hot 7th grade English teacher. Since my reading scores were, well, advanced, she just let me read what I wanted to read while the rest of the class all read the same book. It felt nice being a special pretty pony.
I followed 1984 with Aldous Huxley’s Brave New World. I think my teacher suggested it. Whereas 1984 was a dystopia built on the subjugation of a boot eternally stomping on a human face, Brave New World was a dystopia built on frivolity.
Frivolity was where the masses were, more or less, endlessly drugged and entertained and so that their opinions never had a chance to develop, or impaired at birth so they could never think. The tyranny in Brave New World was the tyranny of a vapid public who never thought beyond the most recent mindless and sexual encounter (strongly encouraged by the state) and the latest movie.
Oh, wait, that sounds familiar too.
Yet another dystopia is the movie (and book) Fight Club.Fight Club is a 1999 movie based on a 1996 novel that (mostly) tracks the movie. It is a creation of the 1990s, but, to quote the most excellent YouTube® movie reviewer, The Critical Drinker (LINK, some PG-13 language), it is very relevant to today’s world. If you haven’t watched this 21-year-old movie and are interested, I suggest you watch The Critical Drinker’s review afterward – he includes spoilers. I’ll warn you – the R rating was earned, and there are some very dark moments to the movie.
There won’t be any spoilers here – what I have to say doesn’t require me to spoil the film.
To really get Fight Club? You have to watch it at least twice. It is a thoughtful movie. Does it have detractors on the Right? Sure. It’s R-rated. Some have called it nihilistic (I disagree) and there are other complaints which I won’t go into here. Regardless, I won’t beat myself up for going against the grain of other folks who didn’t like the movie.
Very few movies are perfect, but this one is very, very good.
I first watched Fight Club in 2012 or so. It made over $100 million at the box office, so at least someone talked about Fight Club. When I finally watched it (which was no fewer than three basement furniture re-arrangements ago) I was stunned. How stunned? It’s the only movie that has its own tag on this blog.
The constant, pervasive theme of this movie is that the systems of globalism have created boxes for men that make them less than men. Here’s Tyler Durden (one of the movie characters):
“We’re consumers. We are by-products of a lifestyle obsession. Murder, crime, poverty, these things don’t concern me. What concerns me are celebrity magazines, television with 500 channels, some guy’s name on my underwear. Rogaine, Viagra, Olestra.”
This is a simple translation. A large proportion of the citizens of the United States define themselves by:
How much and what kind of furniture do they have?
How nice is their apartment?
How well can they write reports in a soul-killing job where large corporations seek to avoid liability in a cold, systematic way? Does that kill their soul?
How can they avoid deviating from the norm to wear the right tie to the meeting?
These things are death to the soul. As the character Tyler Durden explains:
“You’re not your job. You’re not how much money you have in the bank. You’re not the car you drive. You’re not the contents of your wallet. You’re not your (deleted by J.W.) khakis. You’re the all-singing, all-dancing crap of the world.”
Marcus Aurelius and Seneca nod in approval. They’d follow up: you are your virtue.
And you, dear reader, are not your money or your clothes. In many ways we are conditioned by society to believe that those are the things that define us. We are not. And if you believe that, you’re not alone. Tyler describes the twilight of the soul brought about by a life dedicated to consumerism and status. Live for the material world, and you’ll be swallowed by the material world. You can never achieve enough, because someone always has more, does something better.
With that philosophy? Money becomes the god that men seek:
“Damn it, an entire generation pumping gas, waiting tables; slaves with white collars. Advertising has us chasing cars and clothes, working jobs we hate so we can buy (stuff) we don’t need. We’re the middle children of history, man. No purpose or place. We have no Great War. No Great Depression. Our Great War is a spiritual war. Our Great Depression is our lives. We’ve all been raised on television to believe that one day we’d all be millionaires, and movie gods, and rock stars. But we won’t. And we’re slowly learning that fact. And we’re very, very pissed off.”
I saw a meme (didn’t save it, don’t have the author but I’d love to credit them) that I (sort of) reproduce below:
Michigan is going to ban car sales based on popular Internet videos – the governor wants to stop car-owner-virus.
This meme gets me. It’s the essence of Fight Club. We’re a species that is, more or less, programmed to achieve. For who? For our group. It’s why the NFL® is popular today. Okay, that’s why the NFL™ was popular until they showed us that we’re really not part of their group at all.
We run races for a reason. We play basketball. We wrestle. We have swim races. Well, you guys have swim races. I was in a 100-yard swim race in sixth grade and placed 11 out of 12. I wasn’t dead last because some poor kid got the cramps. My 11th place finish wasn’t close. I think they ended up timing me with a calendar and an abacus.
Regardless, we compete.
Why?
It’s wired into us. Competition partially defines us. And the stakes have to be real. There is, of course, a religious aspect as well. A man has to serve a higher power. It’s not just competing for today. There is a bigger game, and there are bigger stakes. That’s what makes it worth playing the game. Life is more than consumption and procreation.
But men who can run a race fairly and lose with grace are men. They don’t have to like losing – no man does. But loss is a forge that makes us stronger, gives us incentives. Thomas Sowell (I think?) once said that if he were designing a car for safety, he’d put a Bowie knife pointed at the driver in the center of the steering wheel, not an airbag.
Incentives matter.
Now? We insulate children from the Great Game. Lose? That’s okay, you tried.
No, it’s really not. I lost the swim meet because I suck at swimming and am only slightly better than a car at swimming. Slightly.
Did I cry? No.
Antifa protestors – never have to take time off from work.
Did I focus my energy on something where I could be as good as nearly anyone in the state?
Yes.
Swimming was pointless. Telling me that it was okay was worse than pointless. It was a lie.
Back to Tyler:
JACK, in voiceover: On a long enough timeline, the survival rate for everyone drops to zero.
CLERK: Please… don’t…
TYLER DURDEN: Give me your wallet.
Tyler pulls out the driver’s license.
TYLER: Raymond K. Hessel. 1320 SE Benning, apartment A. A small, cramped basement apartment.
RAYMOND: How’d you know?
TYLER: They give basement apartments letters instead of numbers. Raymond, you’re going to die. Is this a picture of Mom and Dad?
RAYMOND: Yes.
TYLER: Your mom and dad will have to call kindly doctor so-and-so to dig up your dental records, because there won’t be much left of your face.
RAYMOND: Please, God, no!
JACK: Tyler…
TYLER: An expired community college student ID card. What did you used to study, Raymond K. Hessel?
RAYMOND: S-S-Stuff.
TYLER: “Stuff.” Were the mid-terms hard? I asked you what you studied.
JACK: Tell him!
RAYMOND: Biology, mostly.
TYLER: Why?
RAYMOND: I… I don’t know…
TYLER: What did you want to be, Raymond K. Hessel?
TYLER: The question, Raymond, was “what did you want to be?”
JACK: Answer him!
RAYMOND: A veterinarian!
TYLER: Animals.
RAYMOND: Yeah … animals and s-s-s —
TYLER: Stuff. That means you have to get more schooling.
RAYMOND: Too much school.
TYLER: Would you rather be dead?
RAYMOND: No, please, no, God, no!
Tyler uncocks the gun, lowers it.
TYLER: I’m keeping your license. I know where you live. I’m going to check on you. If you aren’t back in school and on your way to being a veterinarian in six weeks, you will be dead. Get the hell out of here.
JACK: I feel sick.
TYLER: Imagine how he feels.
Tyler brings the gun to his own head, pulls the trigger — click. It’s empty.
JACK: I don’t care, that was horrible.
TYLER: Tomorrow will be the most beautiful day of Raymond K. Hessell’s life. His breakfast will taste better than any meal he has ever eaten.
How many people would love to have Tyler come into their lives and make them live their dreams?
How many people struggle through life, because they can’t take the next step?
You’re not too old. If you’re breathing, you can make a mark on this world. You’re not too poor.
My limiting factor is my imagination. I realize that – it’s probably yours as well.
Regardless of the dystopias of 1984 and Brave New World, Fight Club shows a dystopia where we can win. How do we win?
By understanding that our lives are in a precarious balance, just like Raymond K. Hessell. And the first step to living life? It’s letting go. Achieving.
And if you lose at swimming? Try again. Or try a new game.
At the end of Fight Club, men prove themselves to be stronger and larger than the dehumanizing systems that they serve. It’s your choice. How will your breakfast taste tomorrow?
Also:
Avoid the clam chowder.
via ZeroHedge News https://ift.tt/2UKsHDP Tyler Durden
Value Rotation Stalls As Bond Yields, Dollar Slide Tyler Durden
Thu, 11/19/2020 – 16:01
Stocks have never been more expensive, but that doesn’t stop the machines panic-buying them to record-erer expensive levels.
The major US equity indices were loitering with no intent for much of the day, gently unwinding the recent value-rotation when headlines hit on Schumer-McConnell talks (stimulus!!!! buy mortimer buy!)… The machines the headline, figured stimulus and were insta-bid…
But, the algos ignored the fact that Republicans said the meeting was about the government funding deadline, not COVID relief.
And after all that, all the majors ended higher on the day, with Nasdaq and Small Caps outperforming, Dow lagging…
This market has gone to ’11’ in terms of utter irrationality.
The value rotation unwound a little today…
Source: Bloomberg
The Russell 2000 / Nasdaq 100 pair reverted a little today…
Energy stocks surged once again today (despite a marginal move in crude), pushing the Energy sector to its best Q4-to-date in at least 30 years…
Source: Bloomberg
Banks were higher today…
Source: Bloomberg
As VIX fell back to a 22 handle once again, implied correlation has tumbled to pre-COVID crisis levels (no systemic risk priced in to macro overlays)…
Source: Bloomberg
Cyclicals outperformed Defensives (pushing to their highest since Jan 2020), completely decoupled from bonds…
Source: Bloomberg
Treasuries were bid (with yields down around 2-3bps at the long-end, flat at the short-end)…
The Dollar roller-coastered higher then tumbled lower intraday, accelerating weaker on the Schumer headlines…
Source: Bloomberg
This is the lowest close for the dollar since April 2018…
Source: Bloomberg
Bitcoin held steady around $18,000…
Source: Bloomberg
Oil prices clung to positive gains on the day, closing just above $42…
Gold traded lower, back near Pfizer vaccine lows…
Finally, we note John Hussman’s latest note highlighting the fact that the valuation of U.S. stocks has never been more extreme, even at the 1929 and 2000 market peaks. Hussman points out that he has intentionally excluded the impact of pandemic GDP and profit weakness, which would otherwise make this measure even more extreme.
Hussman continues to expect the S&P 500 Index to lose two-thirds of its value over the completion of the current market cycle. That loss would not even breach historical valuation norms, but it would at least bring estimates of long-term expected S&P 500 returns closer to their historical average, in contrast to the negative 10-12 year prospects we observe at present.
“…we’re also well aware of how closely the speculative features of this market resemble the pre-crash peaks of August 1929 and March 2000, as well as lesser ones like January 1972 August 1987, and October 2007.”
Still, there’s always the overnight session to make the big bucks…
via ZeroHedge News https://ift.tt/32ZPAHQ Tyler Durden
Not allowed, says Delaware Court of Chancery Vice Chancellor Joseph R. Slights III, dealing with my notice opposing such sealing. (Many thanks to my local counsel Garrett Rice of Ross Aronstam & Moritz LLP for all his invaluable help, and to UCLA law student Jenna Battaglia, who worked on the case with me.) Here is an excerpt from the Vice Chancellor’s opinion; for similar federal cases, see Parson v. Farley(which I had also filed) and Holmes v. Grambling:
Court of Chancery Rule 5.1 … codifies the “powerful presumption of public access” to court proceedings and records…. [Confidential treatment is allowed only if a party] can demonstrate that “the public interest in access to Court proceedings is outweighed by the harm that public disclosure of sensitive, non-public information would cause.”
By design, the burden of demonstrating [this] is exacting, recognizing that “[t]hose who decide to litigate in a public forum … must do so in a manner consistent with the right of the public to follow and monitor the proceedings and the result of [the] dispute.” In this regard, our courts appreciate that public access to the courts and their business is “fundamental to a democratic state and necessary in the long run so that the public can judge the product of the courts in a given case.” And the public cannot “judge the product of the courts in a given case” if the information being withheld is necessary for understanding “the nature of the dispute” or the court’s bases for a decision….
[A.] MetTel’s Interest in Confidentiality
The harm MetTel alleges will be inflicted upon it in the absence of confidentiality protections is too broad to meet the requirements of Rule 5.1…. [T]o show an interest in confidentiality that outweighs the public’s right of access, MetTel must do more than make “[g]eneric statements of harm.” The showing must be particularized; in other words, MetTel “must point to specific information like ‘trade secrets or competitively sensitive pricing information'” that is not in the public mix and, if disclosed, will cause clearly identified harm.
MetTel claims to meet this burden by alleging “harm beyond its reputation, including but not limited to direct harm to its business relationships with current and potential customers”[:] … “[o]nce that seed [of the defamatory statement] has been planted, the client will undertake a critical look at a provider with which it had been perfectly happy” and “may terminate the contract based on a pretext”; “there is a real risk that MetTel will be asked to bid on fewer and fewer contracts going forward”; and “[o]nce confidence [in] a provider’s financial stability is called into question, customers … can simply choose the non-confrontational option of selecting a different vendor.” …
[But] it is difficult to imagine a defamation case, at least in a commercial setting, where these same concerns would not always be present…. [And] it is evident from a comparison to the examples in Rule 5.1 that potentially defamatory statements, per se, are not the kind of information the drafters of Rule 5.1 intended to protect. The five examples in Rule 5.1 include: “trade secrets; sensitive proprietary information; sensitive financial, business, or personnel information; sensitive personal information such as medical records; and personally identifying information such as social security numbers, financial account numbers, and the names of minor children.” Each of these enumerated categories is discrete and reflects information that is not, or at least should not be, of interest to the general public in the quest to understand the dispute before the court or the bases for the court’s decisions.
While I do not dispute there is some risk of economic harm to MetTel if the redacted information is made public, allowing such information to remain redacted “merely because its disclosure could cause the parties economic harm” would turn the presumption of public access on its head and frustrate the purpose of Rule 5.1.
[B.] The Public’s Interest in Understanding the Bases of the Dispute
The public maintains a strong interest in access to the content of the alleged defamatory statements. If the information currently redacted remains so, the public will have no means to understand the dispute MetTel has asked the Court to adjudicate. This conflicts with the public’s right to “monitor the proceedings and result[s]”—a right, again, that “has been characterized as fundamental to a democratic state.” In other words, when “the supposedly-confidential information represents the nature of the dispute itself—the interest of the public in accessing this information outweighs the economic harm to the parties that disclosure may cause.” That is the case here.
While MetTel and Professor Volokh debate the legitimacy of Professor Volokh’s planned use for this information, nothing in our law obligates Professor Volokh to prove why he seeks access to information filed in a Delaware court, much less that his purpose is somehow “proper.” Instead, MetTel is obligated to prove that good cause exists to deny Professor Volokh access to the information he seeks as a member of the public. That information—the gravamen of the case—cannot be discerned from the redacted Complaint, which, at best, notifies the public that Granite made some unknown defamatory statements that MetTel now asserts are defamatory for some unknown reason(s). [Footnote:]
This is hardly adequate to enable the public “to follow and monitor the proceedings and the result of [the] dispute.”
Not only would it be impossible for a member of the public to understand what is going on in this case based on the pleadings, “it is difficult to envision a judicial opinion in this matter that could maintain the confidentiality of all the designated material and yet be comprehensible to the reading public.” In its Complaint, MetTel asks this Court to determine whether Granite committed defamation, tortious interference with prospective economic advantage, tortious interference with contractual relations, trade libel and deceptive trade practices. When this Court is called upon to determine the merits of these claims in trial or motion practice, the Court will not be able to render and deliver a comprehensible decision without reference to the currently redacted information.
[C.] MetTel’s Reliance on CapStack is Misplaced
Finally, MetTel claims that [under] this court’s decision in CapStack [a prior Court of Chancery case involving a request for an anti-libel injunction] …, MetTel “cannot, on the one hand, argue that the defamatory and tortious statements by Granite are causing irreparable harm, while, at the same time, repeat those defamatory and tortious statements in the public record.” …
[I]t is true that CapStack held that the plaintiffs had “failed to establish that irreparable harm will likely result,” relying in part on the fact that the information was already public through the pleadings[.] … [But u]nder MetTel’s reading of CapStack, the factual gravamen of a defamation complaint could never be disclosed to the public in a court document if that information was not previously disclosed, regardless of whether access to the particular statements would cause particularized harm, because disclosure would potentially foreclose a showing of irreparable harm.
That reading would eviscerate the presumption of public access, ignore our Rule 5.1 jurisprudence requiring a showing of good cause to rebut the presumption, and conflict with the general rule that the mere fact information is “previously undisclosed” is not enough to justify confidential treatment….
Looks quite right to me. Note that the underlying document has not yet been unsealed, because MetTel still has time to appeal.
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