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FMV Lease: What if the Parties Can’t Agree
on the Purchase Price?
By Tom McCurnin
Leasing News Legal Editor

If the Lessee Continues to Pay Post Maturity, What Is The Nature of the Payments? Is it Bonus Money for the Lessor? A Down Payment on the Purchase Price? Or Are They Contractual Lease Payments?

We all know about evergreen clauses and the lessees requirement to notify the lessor of the intended purchase. But assume for a minute that the lessee validly notifies the lessor, and the two parties’ attempt, but cannot agree upon, the purchase option price by the maturity of the lease. Assume further that the lessee continues to pay on the lease while the parties negotiate. What is the nature of those payments? The facts follow.

Macquarie as lessor, leased equipment to Globalfoundaries as lessee. The lessee timely notified the lessor of the intended purchase of the equipment. The purchase price was the lesser of two amounts: the “Fair Market Value” or the “Purchase Cap.” The “Purchase Cap” set the value of the equipment at $4,810,250. The lease established an appraisal process for determining the Fair Market Value of the equipment.

For reasons not entirely clear, parties could not agree on a single appraiser, and the appraisal was not completed by maturity date and the lessee continued to make payments for several months after lease end.

Again, for reasons not discussed in the opinion, the lessee stopped making the monthly payments, and the lessor sued for breach of lease. I assumed that from the lessee’s perspective, it felt that the lessor was running out the clock while cheerfully cashing the lessee’s checks. From the lessor’s perspective, I assumed that the lessee really didn’t want to pay the real value, and likewise was running out the clock.

The lessor claimed that the lease should be interpreted to construe those lease payments as an additional obligation of the lessee. However, the lease did not address the nature of the interim payments. The lessee claimed that the obligation to pay on the lease terminated at maturity, and thus the payments should be a down payment on the purchase option, and thus, voluntary, and that no breach of lease occurred. Another possible theory was that the lease payments were voluntary payments, essentially gifts, and the lessor could keep them, even without a contractual obligation.

In an interesting opinion, the court ruled that the lessee’s obligation to make lease payments terminated on lease termination. The lessee’s sole obligation was to pay the purchase price. Thus, the post maturity lease payments should be construed as a down payment towards the eventual purchase of the equipment.

There are some practical implications which will benefit the lessee. Assuming that the lessee timely exercises the purchase option, the onus will now be placed on the lessor to run a two minute offense to reach a deal with the lessee. The lessor will not be able to refuse to negotiate and demand lease payments post termination. So if the lessor elects to stall, then its playing with its own chips.

The holding has some interesting takeaways for equipment lessors.

• First, No Longer Can the Lessor Stall on Negotiating the FMV. While this the first authority for this thorny issue, I think the court reached the right conclusion—the lease is terminated and being terminated, there is no obligation to pay rent. This should benefit everyone, in that the FMV will be quickly determined and failing that, the parties will go to court to litigate the FMV. This holding should incentivize lessors to reach a mutually agreeable FMV number.

• Second, The Lessee Still Has to Promptly Notify the Lessor of Its Intent to Purchase. Most states have not touched the issue of evergreen clauses, although New York and a few others require advance notification to the lessee of the upcoming election obligation. Other states, notably California and Illinois, have similar requirements, but they are limited to consumer transactions. Given how some lessors handle the issue, I expect additional states to enact laws protecting the lessees in the coming years. At least that is the trend.

The bottom line to this case is that for the first time a court has considered the nature of a post termination lease payment as being a down payment to the purchase option. It makes all the sense in the world.

Macquarie Electronics USA v. Globalfoundries U.S. Inc. (5 pages)
http://leasingnews.org/images/MacquarievGlobalfoundries2017.pdf

Tom McCurnin is a partner at Barton, Klugman & Oetting
in Los Angeles, California.

Tom McCurnin
Barton, Klugman & Oetting
350 South Grand Ave.
Suite 2200
Los Angeles, CA 90071
Direct Phone: (213) 617-6129
Cell (213) 268-8291
Email: tmccurnin@bkolaw.com
Visit our web site at www.bkolaw.com
Previous Tom McCurnin Articles:
http://www.leasingnews.org

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http://www.leasingnews.org/Conscious-Top%20Stories/leasing_cases.html

Working Capital from $10,0000 to $250,000 ChannelPartnersCapital.com

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Do I Need Permission to Take on a Second Job?
Career Crossroad---By Emily Fitzpatrick/RII

If I want to take on a second job, do I need to inform my employer?

Depending on the circumstances, often an employee needs a side job. Sometimes it weekends, other times a few hours several times a week, and sometimes even longer. Larger corporations particularly do not allow a second job and may enforce disciplinary action ranging from immediate dismissal to a reprimand! If you speak to your employer before taking any steps, you will know what to do.

It is our belief if a conflict of interest does not exist, e.g. working for a competitor in any role, a perfect scenario would be having your full-time role and having a weekend “gig” that is in a totally different industry, e.g. a retail role, tax preparation, selling your crafts, etc.

Be proactive and have a discussion with your immediate manager (no need to share with colleagues). If your employer pushes back, maybe approach the need for a salary increase or request bonus eligibility. If they will not “hear” you, you may want to think of a different employer together. Read your Employee Handbook that will most likely cover this topic. If it prohibits employees from taking on other means of creating income, have a discussion anyway; most individuals understand the need to be able to support yourself and your family.

Don't allow your employer's policies and red tape to scare you from creating financial padding and learning new skills. Whether you take on additional work as a freelancer, consultant, floor salesperson, or start selling your handcrafted goods, moonlighting can be your path toward building a better future…

If they still do not approve, volunteer or take a development class. While many employers won't support you getting paid to expand your skill set, they will endorse broadening your horizons in general ...”

Emily Fitzpatrick
Sr. Recruiter
Recruiters International, Inc.
Phone: 954-885-9241
Cell: 954-612-0567
emily@riirecruit.com
www.riicareer.com
Invite me to Connect on LinkedIn
www.linkedin.com/pub/emily-fitzpatrick/4/671/76
Also follow us on Twitter #RIIINFO
https://www.pinterest.com/recruitersinter/rii-career-services/

Career Crossroads Previous Columns
http://www.leasingnews.org/Conscious-Top%20Stories/crossroad.html

Leasing News Advisor
Ken Greene, Attorney

Ken Greene
Law Offices of Kenneth Charles Greene
5743 Corsa Avenue Suite 208
Westlake Village, California 91362
Tel: 818.575.9095
Fax: 805.435.7464
Skype: 424.235.1658
ken@kengreenelaw.com
kenlaw100@gmail.com

Ken is an attorney and has his own law firm, the Law Offices of Kenneth Charles Greene. Ken was involved in the formation of Leasing News and represented it (pro bono) in the early days. Ken is currently based in Southern California. Ken began his leasing career with BankAmerilease in 1981. He has been a partner in several law firms (including Ross & Ivanjack, one of the first law firms in the country devoted exclusively to the equipment finance industry).

Ken served as corporate counsel to a leasing company and a real estate development company. He was a partner in a major Universal City law firm before opening his own firm in Westlake Village, CA in 2013. The new firm continues representation of equipment finance companies, including lessors and brokers, in litigation, bankruptcy, licensing and transactions. He also represents small businesses and individuals in litigation, bankruptcy, transactions, contract, and corporate matters, as well as entities and individuals in the entertainment industry.

Ken has been associated with the American Bankruptcy Institute, California Bankruptcy Forum, Eastern Association of Equipment Lessors (“EAEL”), Equipment Leasing and Finance Association (“ELFA”—formerly the Equipment Leasing Association), and National Equipment Finance Association (NEFA) (formerly NAEL, UAEL, and, once upon a time, WAEL).

He has served on the Board of Directors of that association and has been its Legal Committee Chairman, Legal Line Editor, Regional Committee Chair, and Conference Chairman. He is currently a member of the NAELB (“National Association of Equipment Lease Brokers”) and has spoken at conference panels the last three years, and a member of the American Bar Association.

Ken has served on the Board of Directors of Big Brothers Big Sisters of Ventura County, the Mountain Play Association in Marin County, California, and the Marin Symphony Orchestra Association. He has been active in musical theater at the school and community levels. He currently serves as Musical Director at the Westlake Village Inn, and is very active in the Conejo Valley music community.

Ken received his B. A, at Brandeis University, located in Waltham, Massachusetts, graduating cum laude. He received his J.D. at Santa Clara University in 1980, also graduating cum laude.

Mr. Greene has been a frequent writer and lecturer on matters of leasing law and other related legal issues. He is an acknowledged contributor on bankruptcy issues to Miller & Starr, California Real Estate 2d (Bancroft Whitney). He has lectured on leasing law and documentation, litigation and collection matters, and has produced and presented seminars to leasing companies on enhancing the attorney-client relationship. He has also taught nationally for Euromoney Lease Training. Ken’s passions, besides music, include travel, yoga, cooking, hiking, camping, boxing, surfing, golf, the Yankees, cigars, wine, and more. He lives in Moorpark, California with his wife Barbara and their son Alex, who has a computer repair business (“The PC Whisperer”). His daughter Gigi graduated UC Irvine and is currently working at Oakwood School. She also has a photography business (PhotoGGraphy). Ken is the keyboard player and plays with several LA and SF Bay Areal bands, and also plays and records with other local artists.

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Year-End Leasing and Finance Association Membership
by Christopher Menkin

Leasing News has been conducting the membership survey for 17 years. There are periods when associations do not cooperate with providing membership numbers. This year it is the Commercial Finance Association (CFA) and Association of Government Leasing and Finance, affiliated with ELFA.

The CFA had a recent change with Bob Trojan leaving as Chief Executive Officer after 4 1/2 years, and at this time last year, Brian Cover, Chief Operating Officer left. The website states CFA is primarily involved in "asset finance and factoring," which Leasing News does not cover very much. There also is not much news about government financing and leasing, as it also appears we do not have that many readers in this category.

The association numbers are taken twice a year, at the beginning of the year, and March. What the first numbers indicate are the members from the previous year. The reason for March: renewals.

Membership committees attempt to retain members who have not renewed. From my personal experience as an association membership chairman for several years, I always waited until the third month. Most wait 30 to 60 days. I realize there are new members added; however,
March really gives you the low point of the year.

Taken into account, at the end of March, ELFA had 575 members. At the start of 2017 membership was 604. This shows a real growth and support, despite the mergers and acquisitions of the industry. The losses for both time periods were banks, obvious as many were merged or purchased. Improvements included Independence Finance Companies, up 17, Law First, 4, and Equipment Management Companies.

It should be noted the ELFA Conferences are very well attended, even though there appears serious competition from the many alternate financing conferences, often in the thousand in attendance. From my personal experiences, many of these large conferences are attended mostly by amateurs, who want to learn the business, as well as new marketing brokers. Through advertisers’ and supporters’ discounts as well as free attendance, the attendance is high. I do note there are those who have figured out how to use Google analytics and programs and develop leads via these programs are in attendance. These are the new sales professionals. The Google analytics may be catching up to the direct mail plastic card "automatic approval" marketing. Some say it has surpassed direct mail and even telephone marketing.

My impression, when it comes to equipment financing and leasing, vendor relationships remains number in being the best effective means of obtaining equipment financing and leasing business.

The good news is Monica Harper is back as Executive Director for the National Association of Equipment Leasing Brokers as part of the FSA Management Group. The website has been revamped, as well as a former feature of members helping out other members in placement of transaction is up and running on the website, receiving accolades as it is working! Harper brings over 17 years of experience in association management to the school, with nine years in the equipment leasing industry as the former Executive Director of the National Association of Equipment Leasing Brokers (NAELB). Her experience with event marketing, broadcast email communications, social media and membership development is outstanding, NAELB said in announcing her in this position. Definitely would have to agree.

Look for better conference attendance, too!

Certified Leasing and Finance Professionals (individuals)

2017: 399
2016: 289
2015: 213
2014: 199
2013: 173
2012: 168
2011: 174
2010: 159
2009: 182
2008: 179
2007: 204

At this time, CLFP has over 400 members. 114 took the exam last year. From an examination process, it takes a long time to grade each test, too, not counting the time to study and also take the test! Four were not graded until a few days after the first of this year, thus it was 399 for the year. March numbers will be the best test.

As readers may note from the List of Companies with More than Two Members, the company sponsorship and encouragement has grown, particularly with the support of the Equipment Leasing and Finance Association:

Canadian Finance & Leasing Association

Changes in the North American Free Trade Agreement certainly will affect the finance and leasing industries in Canada, as well as other countries, but perhaps more so with Canada and Mexico. It should be noted as what has been happening in the United States and elsewhere, there are more merges and acquisitions and thus while the membership numbers may appear down for CFLA, the changes are not from companies going of business, but needing to grow and thus aligning with larger entities.

2017: 228
2016: 246
2015: 280

(Leasing News provides this ad “gratis” as a means
to help support the growth of Lease Police)

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         1756- birthday of Aaron Burr, 3rd vice president of the US (Mar 4, 1801-Mar 3, 1805). While vice president, Burr is remembered most for challenging political enemy Alexander Hamilton to a duel and mortally wounded him July 11,1804, at Weehawken, Aaron Burr and Thomas Jefferson tied in the electoral vote and the election went to Congress. Hamilton, a leading Federalist, supported Jefferson. In those days, president and vice-present were elected separately ( Jefferson when he ran for re-election, choose his own vice-president, George Clinton, starting the tradition.) It was Hamilton who denied Burr the presidency by his one vote, and lead against Burr's politics. ( Hamilton was not familiar with firearms, but was a Man of Honor” and despite pleas from friends, his wife, sons, he felt he had to defend his honor, knowing it meant his death. ) Indicted for the challenge and for murder, Burr returned to Washington to complete his term of office (during which he presided over the impeachment trial of Supreme Court Justice Samuel Chase). Ironically, the man who was almost president joined forces, centered around land before Jefferson completed the Louisiana Purchase In 1807, one of his "partners" turned evidence against Burr to escape hanging, and Burr was arrested, tried for treason (in an alleged scheme to invade Mexico and set up a new nation in the West) and acquitted. Burr journeyed to New Orleans and entered into a conspiracy with U.S. Gen. James Wilkinson, although it is not clear what they conspired about. Wilkinson was actually in the pay of Spain at the time. This was about the time of great wars in Europe and the need for cash had France sell "the Louisiana Purchase" to the U.S. Speculation was that Burr intended either to establish an independent nation in the Southwest or to seize territory, now known as "Texas", for the same purpose in Spanish America. Burr secured financing from Harman Blennerhassett, of Blennerhassett Island in the Ohio River near present-day Parkersburg, West Virginia.. He set out from there in the fall of 1806 with about 60 well-armed men and headed downstream. The expedition aroused suspicion and Wilkinson, seeking to save his own skin, turned against Burr. He spread stories of Burr's intentions and sent dispatches to the government in Washington accusing Burr of treason. Burr was arrested and charged with of treason. Burr was arrested and charged with treason, but still had many friends in Washington and was acquitted in 1807. Born at Newark, NJ, he died at Staten Island, NY, Sept 14,1836.
    1788- by a vote of 187 to 168, Massachusetts became the sixth state to ratify the Constitution. The people of this state drafted the first constitution eight years earlier, which was utilized in the formation of the US constitution. Massachusetts is derived from two Indian words meaning ‘great mountain place'. This great mountain place in New England was one of the most important of the 13 colonies in the new America, which gave it its other nickname, Old Colony State. Boston, the capital of Massachusetts, has been the center of activity in the state since those old colony days. Massachusetts state symbols include the chickadee, state bird; American elm, state tree; ladybug, state insect; "All Hail to Massachusetts", state song; and mayflower, the state flower. Which arrived first, the ship or the flower? Unique to Massachusetts is a state beverage: cranberry juice and a state muffin; I am not making this up, the corn muffin is official. The Massachusetts state motto is: Ense petit placidam sub libertate quietem (By the sword we seek peace; but peace only under liberty).
    1788- France was the first country to recognize the independence of the United States. Treaties of amity and alliance between the United States and France were drafted in Paris this day.
http://memory.loc.gov/ammem/today/feb06.html
    1820- US population announced at 9,638,453 (1,771,656 blacks (18.4%)) The number of college graduates in the U.S. was estimated by James Fenimore Cooper to be 8,000. A financial panic that struck the U.S. in 1819 still brought fear as many state banks were closed and much western property was turned over to the Bank of the United States. Immigration slowed to a trickle for almost two decades, especially after the new immigration law was enacted by Congress. Stained relations between the North and the South hinted at trouble to come as the Union consisted of 11 free and 11 slave states. The North, however, was rapidly outdistancing the South in population and held a grown numerical advantage in the House of Representatives. Ready for state were Main, certain to be a free state, and Missouri, part of the Louisiana Purchase and likely to be a slave state. Big time political machines were introduced in the US led by a group of New York Democrats known as the Albany Regency. Martin Van Buren was among the leaders of the group, which controlled New York politics for two decades.
    1820- The first organized emigration of U.S. blacks to Africa began when the "Mayflower of Liberia" sailed from New York City for Sierra Leone with 86 blacks aboard. The ship arrived in Sierra Leone on March 9. Twenty-two years later, it took a U.S. Supreme Court ruling for 35 former passengers of the "Amistad" to accomplish the same thing. During this period of history there was a growing movement of “free” blacks to return to their native continent. As Northern states made slavery “illegal,” the “free” Blacks number grew from a few thousand in 1760 to 319,000 by 1830. Many of the movements were for the benefit of the organizer, who received fees as a “travel agent.” Some were outright “scams,” and others started the free state of Liberia. At the turn of the century, Marcus Garvey actually bought a steamship to send his followers to Liberia, and other countries in Africa.
http://www.connerprairie.org/historyonline/colon.html
http://www.columbia.edu/~gtl5/seminar6.html
http://www.blackvoices.com/feature/blk_history_98/fleming/column5.htm
    1843 - "The Virginia Minstrels", the first minstrel show in the United States, opened at the Bowery Amphitheatre in New York City.
    1862 -General Ulysses S. Grant provides the first major Union victory of the war when he captures Fort Henry on the Tennessee River. Ten days later, he captured Fort Donelson on the Cumberland River, which gave the Yankees control of northern Tennessee and paved the way for the occupation of Nashville.
http://www2.cr.nps.gov/abpp/battles/tn001.htm
http://users.aol.com/greenup1/page1.html
    1865- Dashing Confederate General John Pegram is killed at the Battle of Dabney's Mill, Virginia, only three weeks after marrying Hetty Cary, the "handsomest women in the Southland." Pegram graduated from West Point in 1854, 10th in a class of 46. He served in various posts in the west before resigning his commission at the start of the Civil War. He was well connected, a Southern gentleman, but not considered a good military officer by the troops he served under. After leaving the US Army, Pegram received an appointment as a lieutenant colonel in the Confederate army. Sent to fight in western Virginia during the summer of 1861, he was captured by General George McClellan's men at the Battle of Rich Mountain. Pegram was exchanged in April 1862 and sent to serve with General Pierre G. T. Beauregard in Mississippi. He fought in Tennessee and Kentucky and earned a promotion to brigadier general. After the Battle of Chickamauga in September 1863, Pegram was transferred to General Robert E. Lee's Army of Northern Virginia. He was wounded at the Battle of the Wilderness in May 1864, but recovered to fight with General Jubal Early during the Shenandoah Valley campaign in the summer of 1864. That fall, he was sent to defend his native city of Petersburg. On January 19, Pegram married Hetty Cary, a prominent Richmond socialite who many called the "handsomest women in the Southland." Even in the gloom of the ongoing siege, the ceremony was a grand affair attended by nearly all of the high-ranking Confederates, including President Jefferson Davis and his wife, Varina. The bride, commented onlookers, was a vision of beauty and one said that the "happy gleam of her beautiful brown eyes seemed to defy all sorrow." Just three weeks later, Pegram's body was returned to the same church, St. Paul's Episcopal, and his young widow knelt beside his coffin as the minister who married them presided over the dashing general's funeral.
http://www.richmountain.org/pegram.htm
http://www.ehistory.com/uscw/library/essays/paradoxicacavalier.cfm
http://router.patch.net/misc/cary.html
    1867-The Peabody Fund is established to promote Black education in the South.
http://www.picturehistory.com/find/p/11767/mcms.html
http://www.aaregistry.com/african_american_history/1776/
The_Peabody_Fund_established
( see the Letters of Robert C. Winthrop:
http://muweb.millersville.edu/~winthrop/news2.html )
    1891-The Dalton Gang's first attempt at train robbery was a fiasco as Bob, Grat, and Bill tried to rob a Southern Pacific train near Alila, California. While Bill kept any passengers from interfering by shooting over their heads, Bob and Grat forced the engineer to show them the location of the cash-carrying express car. When the engineer tried to slip away, one of the brothers shot him in the stomach. Finding the express car on their own, Bob and Grat demanded that the guard inside open the heavy door. The guard refused and began firing down on them from a small spy hole. Thwarted, the brothers finally gave up and rode away. The Daltons would have done well to heed the ominous signs of that first failed robbery and seek safer pursuits. Instead, they returned to Oklahoma, reunited with young Emmett, and began robbing in earnest. A year later, the gang botched another robbery, boldly attempting to hit two Coffeyville, Kansas, banks at the same time. Townspeople caught them in the act and killed Bob, Grat, and two of their gang members. Emmett was seriously wounded and served 14 years in prison. Of all the criminal Dalton brothers, only Emmett lived into old age. Freed from prison in 1907, he married and settled in Los Angeles, where he built a successful career in real estate and contracting.
    1895- George Herman “Babe” Ruth, Baseball Hall of Fame pitcher and outfielder born at Baltimore, MD. One of the baseball's greatest heroes, Ruth was raised at St. Mary's Industrial School for Boys. He was signed to a minor league baseball contract by Jack Dunn of the Baltimore Orioles and became known as “Dunn's Babe.” An out-standing pitcher, Ruth began swatting home runs in record numbers and was converted to the outfield. He hit 714 home runs in 22 major league seasons of play ( a record 60 in 1927) and played in 10 World Series. He was the game's greatest star and became an enduring legend. Inducted into the Hall of Fame in 19236. Died at New York, NY, on August 16,1948.
    1902- the Young Women's Hebrew Association was organized in New York City. Mrs. Bella Unterbergwas the founder and the first president. The first building used by the organization was at 1584 Lexington Avenue, New York City.
    1899 - The Treaty of Paris was ratified by the United States Senate by one vote, ending the Spanish-American War.
    1911- birthday of Ronald Wilson Reagan, 40th president of the US (1981-89). Former sportscaster, motion picture actor, governor of California (1967-74); he was the oldest and the first divorced person to become president. He would visit John Birch meetings down the street from us in the Pacific Palisades, CA., as I parked cars for our neighbor who held the meeting at his house. I also delivered flowers to his house when I was working for Oliver Bente Florist in Brentwood, CA. He is suffering from Alzheimer's. Born at Tampico, IL. Married actress Jane Wyman in 1940 (divorced in 1948); married actress Nancy Davis, Mar 4, 1952.
    1918-Birthday of trumpet player Howard McGhee, Tulsa, OK ;Died July 17,1987, New York City, NY
http://www.4stardust.com/howard.htm
http://www.trumpetjazz.com/artists.cgi?name=Howard+McGhee&x=23&y=12
    1919- a heady display of labor's growing power concluded when a general strike was called off in Seattle, Washington. World War I had swelled the ranks of the nation's unions, while the Marxist revolution in Russia raised hopes of deliverance for the world's workers. In the days before the war, a strong alliance of craft unions enabled Seattle's 35,000 dockworkers to gain some of the highest wages in the nation. With the outbreak of war, the government placed constraints on the shipyard worker's wages, in hopes of rolling their earnings back in line with the rest of the country. In January, the dockworkers retaliated by walking off the job, and on February 1, 25,000 of Seattle's other workers joined the dockworkers on the picket line. The workers began the strikes in response to government sanctioned wage cuts. A riff occurred in the various labor unions, some say due to anarchists, Marxists, socialist and other “malcontents.” The mood definitely was to protest the wage cuts. The five-day strike effectively shut down Seattle: factories, shops and the waterfront all sat dormant, waiting for a resolution to the dispute. A General Strike Committee swiftly stepped in and established temporary systems for feeding and protecting Seattle's citizens. Although the strike was peaceful, and the Committee judged that people were rapidly "learning to manage" the city's daily operations, local government and business chiefs threatened action against the country's unions. Feeling the fire of a potential legal or political nightmare, national labor leaders stepped in and urged Seattle's workers to end their strike. Seattle's strikers had not yet gained ground on their wage demands, but they heeded the call and headed back to work, releasing the city from their grip on this day in 1919.
http://users.rcn.com/figgins/generalstrike/northamerica/
unitedstates/washington.html
http://www.washington.edu/uwired/outreach/cspn/curcan/main.html
    1921- "The Kid", starring Charlie Chaplin and Jackie Coogan, released.
http://www.student.oulu.fi/~anpajune/chaplin/chaplin.html
    1921-Birthday of lead trumpet player Ernie Royal, Los Angeles, CA
http://www.artistdirect.com/music/artist/bio/0,,487546,00.
html?artist=Ernie+Royal
http://www.jazzprofessional.com/interviews/Ernie%20Royal.htm
    1922—Lead trumpet player great Conrad Gozzo birthday
http://www.trumpetstuff.com/images/Goz/
http://www.jazztrumpet.com/tofc/charts/gozzovol1.html
( Perhaps Hollywood's Best Lead Trumpet player, title now passed down to Warren Luening, Jr. )
    1924-Birthdayof arranger Sam Nestico, Pittsburgh, PA
http://www.52ndstreet.com/reviews/mainstream/cappplayitagain.html
http://www.fantasyjazz.com/catalog/basie_c_cat3.html
    1924-- Station KFSG (Kall Four Square Gospel) went on the air. One of the earliest radio stations licensed, it broadcast the services of Angelus Temple, the flagship congregation of the International Foursquare Gospel Church, founded by Aimee Semple Mc Pherson in 1923.
    1926- Norman Rockwell's Colonial Sign Painter cover for the Saturday Evening Post was the first to appear in full color. It depicted a Rockwell kindred spirit--a Colonial sign painter
    1933 - The 20th Amendment to the United States Constitution was adopted, allowing the president to take office in January instead of March.
    1933 –Birthday of Walter E Fauntroy (Representative-D-DC, 1971-1991 )
http://bioguide.congress.gov/scripts/biodisplay.pl?index=F000046
http://www.nblr.org/WEF.htm
    1936 –Birthday of rocker Otis Williams rocker (Charms and the Temptations)
http://www.allmusic.com/cg/amg.dll?p=amg&uid=4:40:55|
PM&sql=B2kq4g4jttv5z
http://www.rockhall.com/hof/inductee.asp?id=199
    1937-John Steinbeck's novella Of Mice and Men, the story of the bond between two migrant workers, is published. He adapted the book into a three-act play, which was produced the same year. The story brought national attention to Steinbeck's work, which had started to catch on in 1935 with the publication of his first successful novel, Tortilla Flat . Steinbeck was born and raised in the Salinas Valley, where his father was a county official and his mother a former schoolteacher. A good student and president of his senior class in high school, Steinbeck attended Stanford intermittently in the early 1920s. In 1925, he moved to New York City, where he worked as a manual laborer and a journalist while writing stories and novels. His first two novels were not successful. In 1930, he married Carol Henning, the first of his three wives, and moved to Pacific Grove, California. Steinbeck's father gave the couple a house and a small income while Steinbeck continued to write. He shortly thereafter moved to Los Gatos, California, where he lived in two homes, trying to avoid visitors and celebrity status. His third novel, Tortilla Flat (1935), was a critical and financial success, as were such subsequent books as In Dubious Battle (1935) and Of Mice and Men (1937), both of which offered social commentaries on injustices of various types. In 1939, Steinbeck won the Pulitzer Prize for The Grapes of Wrath, a novel tracing a fictional Oklahoma family as they lose their family farm in the Depression and move to California seeking a better life. His work after World War II, including Cannery Row and The Pearl, continued to offer social criticism but became more sentimental. Steinbeck tried his hand at movie scripts in the 1940s, writing successful films like Forgotten Village (1941) and Viva Zapata (1952). He also took up the serious study of marine biology and published a nonfiction book, The Sea of Cortez, in 1941. His 1962 nonfiction book, Travels with Charlie, describes his travels across the United States in a camper truck with his poodle, Charlie. Steinbeck won the Nobel Prize in 1962 and died in New York in 1968.
    1938-Birthday of Isaac Hayes, one of the most important forces in the development of Memphis soul music, born in Covington, Tennessee. He played piano in the house band at Stax Records in the 1960's, and also began composing hit songs, such as "Soul Man" and "Hold On, I'm Coming" for Sam and Dave and "BABY" for Carla Thomas. Hayes's 1969 album "Hot Buttered Soul" established his reputation as a performer. The lushly orchestrated and often lengthy songs that became his trademark laid the foundation for the disco music of such artists as Barry White. Hayes himself, with tights, cape and gold chains around his bare chest was the '70s forerunner to Mr. T. Hayes's commercial peak came in 1971 with his double soundtrack album for "Shaft." "The Theme From Shaft" hit number one on the Billboard Hot 100 and made Hayes an international superstar. But by 1976, mismanagement and personal excesses had forced Isaac Hayes into bankruptcy. He made several comeback attempts, one of them in 1979 producing the gold album, "Don't Let Go." He is currently the voice of 'Chef' on the hit adult cartoon "South Park".
    1940- TV media journalist Tom Brokaw birthday, Yanton, SD.
    1943 - Gen. Dwight D. Eisenhower was appointed commander-in-chief of the Allied Expeditionary Forces in North Africa.
    1943- Frank Sinatra makes his first appearance on “Your Hit Parade.”
    1943- birthday of singer Fabian ( Fabianoo Forte ), Philadelphia, PA. One of several manufactured teen idols to come out of Philly in the late 1950's, Fabian had three big hits in 1959, then disappeared from the charts. His most popular record was "Tiger," which hit number three on the Billboard Hot 100. Fabian later turned to acting, and in 1974 posed nude for Playgirl magazine.
http://www.history-of-rock.com/fabian.htm
    1943 - Swashbuckler screen actor Errol Flynn, age 33, was acquitted of three charges of statutory rape by a jury in Los Angeles Superior Court. It was well known that he had a penchant for teenage girls, and in the later years of his life lived openly in Havana, Cuba with 16-17 year old Beverly Aadland. While it is true, “In Like Flynn” became a popular expression during the 40's, the origination according to A Dictionary of Catch Phrases (Eric Partridge, 1986) came from: Edward J. Flynn (1892-1953) a New York City political boss who became a campaign manager for the Democratic party during FDR's presidency. Boss Flynn's "Democratic Party machine exercised absolute political control over the Bronx.... The candidates he backed were almost automatically 'in,' and he himself permanently so," Partridge comments.
http://www.inlikeflynn.com/
http://www.shopping-entertainment-online.com/vintage-
stars/errol-flynn.htm
http://bulletin.ninemsn.com.au/bulletin/eddesk.nsf/All/
D3473A226D5984F2CA256CB1001633C1!open
    1943 -- US government requires the 110,000 Japanese-Americans imprisoned in internment camps to answer loyalty surveys. The first questionnaire was issued on February 3 at Tule Lake and by this date all the internment camp require their “prisoners” to answer: Question 27 asks draft-age men: "Are you willing to serve in the US armed forces on combat duty, wherever ordered?"
22% of the 21,000 second-generation respondents will answer "no" or give no response. Known as Nisei [nih-say], these U.S.-born Japanese-Americans are not expressing disloyalty but their protest against the internment. In January 1944, the Selective Service began reclassifying to 1-A the Nisei men who answered "yes" to the question and issuing draft notices. After more than 300 Nisei refuse to be inducted, authorities arrest & indict Frank Emi and six others for conspiracy to violate the Selective Service Act. The seven are found guilty and sentenced to four years at Leavenworth Federal Penitentiary in Kansas.
http://www.us-immigration.com/asian-american-history-timeline/
http://www.cetel.org/timeline.html#4
http://www.ww2pacific.com/relocation.html
    1945- birthday of Bob Marley. With his group, The Wailers, Bob Marley was one of the most popular and influential performers of reggae music, an "off-beat-accented Jamaican" music closely associated with the political/religious Rastafarian movement (admirers of the late Ethiopian emperor Haile Selassie, who was formerly called Ras Tafari). Marley was born at Rhoden Hall in northern Jamaica. In 1963, Marley formed a vocal quintet, the Wailers, who achieved some success, but little financial reward, in their native country, before disbanding in 1966. The Wailers reunited in 1968, but for several years seemed no closer than before to establishing steady careers. Then, in 1972, Chris Blackwell signed them to Island Records and advanced them the money to record an album in Jamaica. The result was "Catch a Fire," the first album by Bob Marley and the Wailers to be marketed outside Jamaica. It was the start of their climb to international fame, aided by Eric Clapton's hit single of Marley's "I Shot the Sheriff." Over the next several years, Marley and the Wailers were largely responsible for the worldwide popularity of reggae music. Marley became a superstar in Jamaica, where he survived an assassination attempt in 1976. In 1980, a tour of the US was cancelled when Marley collapsed on stage during a concert. He had developed brain and lung cancer, which killed him in May, 1981, Maimi, FL.
http://www.bobmarley.com/
    1946-Birthday of Canadian folk singer Kate McGarrigle was born in St. Sauveur-des-Monts, Quebec. She and her sister Anna first attracted international attention in the 1970's as songwriters. Anna's "Heart Like a Wheel" was recorded in 1972 by McKendree Spring and served as the title song for a 1975 album by Linda Ronstadt. The duo's 1976 debut in London resulted in one British critic saying they were among "the very best voices to be heard in popular music today." The McGarrigles sing both their own songs and French-Canadian folk tunes.
    1949---Top Hits
A Little Bird Told Me - Evelyn Knight
Far Away Places - Margaret Whiting
Powder Your Face with Sunshine - Evelyn Knight
I Love You So Much It Hurts - Jimmy Wakely
    1950-Birthday of singer Natalie Cole (“This Will Be,” “Unforgettable'), born Los Angeles, Ca.
    1955- Horace Silver Quintet records “The Preacher” ( Blue Note 5062 )
http://www.harlem.org/people/silver.html
http://members.tripod.com/~hardbop/silver_discography.html)
    1957---Top Hits
Too Much - Elvis Presley
Young Love - Tab Hunter
Banana Boat (Day-O) - Harry Belefonte
Young Love - Sonny James
    1957--The Del-Vikings' first and biggest hit, "Come Go with Me," debuts on the pop chart. In four weeks, it peaks at #5 while on the R&B chart, it hits #3. 1958- Ted Williams signs with Red Sox for $135,000, making him highest paid in baseball. He retired from the Boston Red Sox at the end of the 1960 season with a lifetime batting average of .344, a lifetime home run count of 521 and a reputation that will span generations to come.
http://www.baseballhalloffame.org/hofers_and_honorees/
hofer_bios/williams_ted.htm
http://www.boston.com/sports/redsox/williams/
http://www.redsox.com/NASApp/mlb/bos/history/bos_history_timeline
_article.jsp?article=1939
    1961-- The Capris' "There's a Moon Out Tonight" enters the R&B charts.
    1962- Birthday of singer Axl Rose [William Bailey] Lafayette IN (Guns & Roses)
http://www.celebritystorm.com/mcelebs/pics/AxlRose/
    1965---Top Hits
You've Lost that Lovin' Feelin' - The Righteous Brothers
The Name Game - Shirley Ellis
This Diamond Ring - Gary Lewis & The Playboys
You're the Only World I Know - Sonny James
    1965-- The Temptations' "My Girl" hits #1 R&B.
    1967 - Muhammad Ali retained his world heavyweight title and won the WBA heavyweight title with a 15-round decision over Ernest Terrell in the Houston Astrodome.
    1968 - Joan Whitney Payson was elected as president of the New York Mets. One year later, the ‘Miracle' Mets would become world champions.
    1968 - The Xth Winter Olympic games opened in Grenoble, France. Some 18,000 people participated in the opening ceremonies as the games were dedicated by General Charles de Gaulle. Thousands of scented paper roses were dropped from helicopters against a background of five circles drawn in the sky by the smoke of parachutists. And Olympic flags were shot into the air by cannons.
    1971 - NASA Astronaut Alan B. Shepard took a six-iron stashed inside his spacecraft took a swing at three golf balls on the surface of the moon. Shepard whiffed the first swing. The others were good shots that went a few hundred yards in space's vacuum. Because his moonwalk suit was so bulky, he didn't get enough of a swing to launch the golf balls into orbit. But he did get a couple of divots.
http://antwrp.gsfc.nasa.gov/apod/image/9804/moonpunt_a15.jpg
    1973---Top Hits
Crocodile Rock - Elton John
Why Can't We Live Together - Timmy Thomas
Oh, Babe, What Would You Say? - Hurricane Smith
She Needs Someone to Hold Her (When She Cries) - Conway Twitty
    1978 - A massive nor'easter buried the cities of the northeastern U.S. Storm totals included 18 inches at New York City, 16 inches at Philadelphia, and 14 inches at Baltimore. The Boston MA area received 25 to 30 inches in "The Great New England Blizzard", and the mayor outlawed travel in the city for an entire week.
    1981---Top Hits
The Tide is High - Blondie
Celebration - Kool & The Gang
I Love a Rainy Night - Eddie Rabbitt
I Feel like Loving You Again - T.G. Sheppard
    1985 - For the first time in 123 years, French mineral water company, Perrier, debuted a new product. On grocery store shelves and in trendy establishments, you could find water with a twist of lemon, lime or orange.
    1985-Steve Wozniak, cofounder of Apple Computer and inventor of the best-selling Apple II computer, resigned from the company on this day in 1985. The company, which started in Wozniak's garage in 1976, had become a massive bureaucracy by the mid-1980s. Wozniak had developed his first computer, the Apple I, as a project to impress his friends in the Homebrew Computing Club. With Steve Jobs' help, he created the Apple II, which went on sale in 1977 and quickly became popular with mass-market consumers, not just electronics hobbyists. As the fastest growing company in history, Apple experienced serious growing pains, including the hiring of a professional management team. Wozniak, who preferred to remain an engineer rather than participate in management politics, objected to the tactics and strategies of Apple's management. He lives in Los Gatos, California, where he has attempted to start several companies, but basically remains a “dilettante.” The San Jose Technology Museum is located on a street named after him called “Woz Way.”
    1985- skier Dianne Roffe, 17, took first place in a giant slalom race to become the first US woman to win a gold medal in a World Alpine Skiing Championship race.
    1985-Microsoft announced it would develop a word processing program for the IBM PC on February 6, 1985. Microsoft later adapted the program, called Word, to the Macintosh. At first, Word was an underdog, competing with category dominator WordPerfect; however, Word's intuitive, user-friendly design quickly won users over, making it the most popular software in history. Word marked an important turning point for Microsoft, which moved from being an operating-systems company catering to computer manufacturers, to a consumer-oriented software company. Perhaps the best marketing ploy was the Microsoft Suite, where the software programs were bundled at a very low price and coordinated with each other: word, excel, access, money, and originally publisher ( later replaced by the browser Explore. It took up to 14 hard floppy disks to install and was quite time consuming and large for its day, but the integration between word and excel doomed the very popular word perfect and other spread sheet programs that were perhaps superior to excel at the time but more difficult to learn and more expensive, plus did not interchange with other software.
    1987 - President Ronald Reagan turned 76 years old, adding another year to his already established record as the oldest United States President. President Dwight D. Eisenhower was the previous record holder, by serving the country at age 70.
    1988 - Arctic cold invaded the south central and eastern U.S. Sixteen cities reported new record low temperatures for the date. Squalls in the Great Lakes Region produced a foot of snow at Arcade NY in three hours.
    1989---Top Hits
When I'm with You - Sheriff
Straight Up - Paula Abdul
When the Children Cry - White Lion
What I'd Say - Earl Thomas Conley
    1989- The first nude musical, "Oh! Calcutta!," closed on Broadway after 5,059 performances. John Lennon was one of the writers who contributed to the show, which opened off-Broadway in 1969
    1989 - Forty-one cities in the western U.S. reported new record low temperatures for the date. Lows of -30 degrees at Ely NV and -33 degrees at Richfield UT were all-time records. Morning lows of 31 degrees at San Francisco CA and -15 degrees at Reno NV were records for February. Logan Canyon UT was the cold spot in the nation with a low of 54 degrees below zero, and Craig CO hit 51 degrees below zero.
    1990- Brett Hull of the St. Louis Blues scored his 50 th goal of the season to join his father, Hall of Fame left wing Bobby Hull, as the only father-son combination in NHL history to score 50 goals in a season. 1993 - Tennis champion Arthur Ashe died of complications brought on by AIDS that he received from a blood transfusion.
    1992- Bob Dylan made a rare TV appearance on David Letterman's 10th anniversary special. He performed "Like a Rolling Stone," backed by an all-star band that included Emmylou Harris, Chrissie Hynde and Carole King.
    1995- Keith Lockhart replaced John Williams as conductor of the Boston Pops Orchestra. Williams had led the orchestra since 1980, when he took over after the death of the legendary Arthur Fiedler.
    1998 - Washington National Airport was renamed Ronald Reagan National Airport, for U.S. President Ronald Reagan.
    1998 - Carl Wilson, the Beach Boys' lead guitarist and youngest of the Wilson brothers, died at age 51 in Los Angeles. He'd been diagnosed with lung cancer which then spread to his brain. Despite chemotherapy, Wilson lost the battle. During the group's publicized ups and downs with drugs over the years, Carl's steady influence reportedly was responsible for keeping the group together. He went to University High School, West Los Angeles, CA. He really was a surfer, personal testimony; Zuma Beach, Malibu, rarely Santa Monica Beach.
    2000- the NFC defeated the AFC 51-31 which set an NFL record for most points scored by a conference and total points combined for a Pro Bowl.
    2000-Janice Mirikitani, wife of Rev. Cecil Williams of Glide Memorial, was named the poet laureate for San Francisco for 2000.

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