The New Old Age Blog: Why Can’t I Live With People Like Me?

“Aging in place” is the mantra of long-term care. Whether looking at reams of survey data, talking to friends or wishing on a star, who among us wouldn’t rather spend the final years — golden or less so — at home, surrounded by our cherished possessions, in our own bed, no cranky old coot as a roommate, no institutional smells or sounds, no lukewarm meals on a schedule of someone else’s making?

That works best, experts tell us, in dense cities, where we can hail a cab at curbside, call the superintendent when something breaks and have our food delivered from Fresh Direct or countless takeout restaurants. We’d have neighbors in the apartment above us, below us, just on the other side of the wall. Hearing their toilets flush and their children ride tricycles on uncarpeted floors is a small inconvenience compared to the security of knowing they are so close by in an emergency.

Urban planners, mindful that most Americans live in sprawling, car-reliant suburbs, are designing more elder-friendly, walkable communities, far from “real” cities. Houses and apartments are built around village greens, with pockets of commerce instead of distant strip malls. Some have community centers for congregate meals and activities; others share gardens, where people can get their hands in the warm spring dirt long after they can push a lawn mower.

All of this is a step in the right direction, despite the Potemkin-village look of so many of them. But it doesn’t take into account those who are too infirm to stay at home, even in cities or more manageable suburban environments. Some are alone, others with a loving spouse who by comparison is “well” but may not be for long, given the rigors of care-taking. It doesn’t take into account people who can’t afford a home health aide, who don’t qualify for a visiting nurse, who have no adult children to help them or whose children live far away.

But by now, aging in place, unrealistic for some, scary or unsafe for others and potentially very isolating, has become so entrenched as the right way to live out one’s life that not being able to pull it off seems a failure, yet another defeat at a time when defeats are all too plentiful. Are we making people feel guilty if they can’t stay at home, or don’t want to? Are we discouraging an array of other solutions by investing so much, program-wise and emotionally, in this sine qua non?

Regular readers of The New Old Age know that I am single, childless and terrified of falling off a ladder while replacing a light bulb, breaking a hip and lying on the floor, unattended, until my dog wails so loudly a neighbor comes by to complain. A MedicAlert pendant is not something that appeals to me at 65, but even if I give in to that, say at 75, I’m not sure my life will be richer for digging my heels in and insisting home is where I should be.

So I spend a lot of time thinking about the alternatives. I know enough to distinguish between naturally-occurring-retirement communities, or NORCs (some of which work better than others); age-restricted housing complexes (with no services); assisted living (which works fine when you don’t really need it and not so fine when you do); and continuing care retirement communities (which require big upfront payments and extensive due diligence to be sure the place doesn’t go belly up after you get there).

What I find so unappealing about all these choices is that each means growing old among people with whom I share no history. In these congregate settings, for the most part, people are guaranteed only two things in common: age and infirmity. Which brings us to what is known in the trade as “affinity” or “niche” communities,” long studied by Andrew J. Carle at the College of Health and Human Services at George Mason University in Fairfax, Va.

Mr. Carle, who trains future administrators of senior housing complexes, was a media darling a few years back, before the recession, with the first baby boomers approaching 65 and niche communities that included services for the elderly — not merely warm-weather developments adjacent to golf courses — expected to explode. In newspaper interviews as recently as 2011, Mr. Carle said there were “about 100 of them in existence or on the drawing board,” not counting the large number of military old-age communities.

Mr. Carle still believes that better economic times, when they come, will reinvigorate this sector of senior housing, after the failure of some in the planning stages and others in operation. In an e-mail exchange, Mr. Carle said there were now about 70 in operation, with perhaps 50 of those that he has defined as University Based Retirement Communities, adjacent to campuses and popular with alumni, as well as non-alumni, who enjoy proximity to the intellectual and athletic activities. Among the most popular are those near Dartmouth, Oberlin, the University of Alabama, Penn State, Notre Dame, Stanford and Cornell.

At the height of the “affinity” boom, L.G.B.T.-assisted living communities and nursing homes were all the rage, seen as a solution to the shoddy treatment that those of different sexual orientations in the pre-Stonewall generation experienced in generic facilities. A few failed, most never got built and, by all accounts, the only one to survive is the pricy Rainbow Vision community in Sante Fe, N.M.

A handful of nudist elder communities, and ones for old hippies, also fell by the wayside, perhaps too free-spirited for the task. According to Mr. Carle, despite the odds, at least one group of RV enthusiasts has added an assisted-living component to what began as collections of transient elderly, looking only for a parking spot and necessary water and power hook-ups for their trailers. Native Americans have made a go of an assisted-living community in Montana, and Asians have done the same in Northern California.

But professional affinity communities, which I find most appealing, are few and far between.

The storied Motion Picture & Television Country House and Hospital, a sliding-scale institution in the San Fernando Valley since 1940, survived near-closure in 2009 as a result of litigation, activism by the Screen Actors Guild and the local chapter of the Teamsters, and news media pressure. Among film legends who died there — along with cameramen, back-lot security guards and extras — were Mary Astor, Joel McCrea, Yvonne De Carlo and Stepin Fetchit.

New York State’s volunteer firefighters are all welcome to a refurbished facility in the Catskill region that offers far more in the way of care and activities, including a state-of-the-art gym, than when I visited there five years ago. At that time, the residents amused themselves by activating the fire alarm to summon the local hook and ladder company, which didn’t mind a bit.

Then there is Nalcrest, the retirement home for unionized letter carriers. Even as post offices nationwide are preparing to eliminate Saturday service, and snail mail becomes an artifact, the National Association of Letter Carriers holds monthly fees around the $500 mark, is located in central Florida so its members no longer have to brave rain and sleet to complete their appointed rounds, and bans dogs, the bane of their existence.

So why not aged journalists? We surely have war stories to embroider as we rock on the porch. Perhaps a mimeograph machine to produce an old-fashioned, dead-tree newspaper, which some of us will miss once it has given way to Web sites like this one. Pneumatic tubes, one colleague suggested, to whisk our belongings upstairs when we can no longer carry them. Other colleagues wondered about welcoming both editors and reporters. How can these two groups, which some consider natural adversaries, complain about each others’ tin ears or missed deadlines if we’re not segregated?

I disagree. The joy of this profession is its collaboration. We did the impossible day after day when young. We belong together when old.


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Detroit Car Sales Climb Again





DETROIT – Sales of new vehicles in the United States rose modestly in February, as consumers continued to buy more fuel-efficient cars and as businesses replaced aging pickup trucks with newer models.




Auto executives said overall industry sales for the month would improve about 2 percent over the strong results reported in the same period a year ago.


The seasonally adjusted annual sales rate – a closely watched indicator for the industry – is expected to total about 15.5 million vehicles for February.


That seasonal rate bodes well for the industry going forward, as automakers ratchet up production to meet demand for their new products.


The Detroit auto companies all posted positive results during the month.


General Motors, the largest American automaker, said it sold 224,000 vehicles in February, a 7 percent increase from the same month in 2012.


All of G.M.'s domestic brands – Chevrolet, Cadillac, GMC and Buick – had higher year-over-year sales. Cadillac led the way with a 20 percent gain, primarily because of healthy sales of the new ATS compact sedan.


G.M. also reported increases in sales of its newest small cars, like the Buick Verano and the Chevrolet Spark. But its most prominent gains were in pickup trucks.


The company said that sales of the Chevrolet Silverado pickup rose 29 percent, and the GMC Sierra increased 25 percent. Executives attributed the performance to a surge in housing starts and the need for construction companies to replace older pickups.


“A significant tailwind for our industry is new home construction, which is creating jobs and fueling the demand for pickups,” said Kurt McNeil, G.M.'s vice president of United States sales operations.


The Ford Motor Company, the second-biggest Detroit auto company, said it sold 195,000 vehicles during the month, a 9 percent gain from a year ago.


Ford said that many of its gains came from sales of sport utilities such as the Escape and Explorer. The company’s redesigned midsize sedan, the Fusion, also had a good month, with a 28 percent improvement over last year.


Like G.M., Ford also benefitted from the surging demand for pickups. Ford said that it sold 54,000 F-series trucks during the month, a 15 percent increase from February of 2012.


Chrysler, the smallest of the Detroit automakers, saw its growth rate slow somewhat after several months of reporting double-digit increases.


The company said that it sold 139,000 vehicles in February, a 4 percent improvement over a year earlier. That is a smaller increase than Chrysler has reported in previous months.


“In spite of a cautious ramp-up of some of our most popular products, which limited inventory last month, we still managed to record our strongest February in five years,” said Reid Bigland, head of United States sales for Chrysler.


Chrysler’s best performers during the month were passenger cars such as the new Dodge Dart. Sales of its Ram pickup increased 3 percent, while sales of its Jeep SUVs dropped 16 percent.


The big Japanese automakers were to report results later Friday. Analysts expected Toyota and Honda to continue their steady comeback from inventory disruptions because of the earthquake and tsunami in Japan two years ago.


Volkswagen, the German automaker that is rapidly expanding its American operations, said it sold 31,000 vehicles in February, a 3 percent increase from a year earlier.


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DNA science points to better treatment for acne









Ancient Egyptians were vexed by it, using sulfur to dry it out. Shakespeare wrote of its "bubukles, and whelks, and knobs, and flames o' fire."


Today, acne plagues us still. Doctors can cure some cancers and transplant vital organs like hearts, but they still have trouble getting rid of the pimples and splotches that plague 85% of us at some time in our lives — usually, when we're teenagers and particularly sensitive about they way we look.


But new research hints that there's hope for zapping zits in the future, thanks to advances in genetic research.








Using state-of-the-art DNA sequencing techniques to evaluate the bacteria lurking in the pores of 101 study volunteers' noses, scientists discovered a particular strain of Propionibacterium acnes bacteria that may be able to defend against other versions of P. acnes that pack a bigger breakout-causing punch.


As best as dermatologists can tell, zits occur when bacteria that reside in human skin, including P. acnes, feed on oils in the pores and prompt an immune response that results in red, sometimes pus-filled bumps. But the study subjects who had the newly discovered bacterial strain weren't suffering from whiteheads or blackheads, according to a report published Thursday in the Journal of Investigative Dermatology.


Someday, the realization that "not all P. acnes are created equal" might help dermatologists devise treatments that more precisely target bad strains while allowing beneficial ones to thrive, said Dr. Noah Craft, a dermatologist at the Los Angeles Biomedical Research Institute who conducted the study with colleagues from UCLA and Washington University in St. Louis.


Doctors might prescribe probiotic creams that deliver "good" P. acnes to the face the same way a daily serving of yogurt helps restore healthy bacteria in the digestive tract.


"There are healthy strains that we need on our skin," Craft said. "The idea that you'd use a nuclear bomb to kill everything — what we're currently doing with antibiotics and other treatments — just doesn't make sense."


The research is part of a broad effort backed by the National Institutes of Health to characterize the so-called human microbiome: the trillions of microbes that live in and on our bodies and evolve along with us, sometimes causing illness and often promoting good health.


Most of the microbiome attention so far has gone to studying species in the gut, said study leader Huiying Li, an assistant professor of molecular and medical pharmacology at UCLA's Geffen School of Medicine. But the NIH's Human Microbiome Project, which funds her research, also looks at microbial communities in the nasal passages, the mouth, the urogenital tract and the skin.


Li said she became interested in studying acne because the skin microbiome seemed particularly understudied.


The research team recruited 101 patients in their teens and 20s from dermatology clinics in Southern California. Among them, 49 had acne and 52 had "normal skin" and were not experiencing breakouts but had come to the clinics for other problems.


Doctors used adhesive pore strips to remove skin bacteria from patients' noses. The researchers then collected the waxy plugs — a combination of bacteria, oils, dead skin cells and other stuff — and used DNA to figure out which bacteria were present.


They found that the P. acnes species accounted for about 90% of the bacteria in pores, in both healthy patients and acne sufferers. Digging a little deeper into the DNA, they found that two particular strains appeared in about 20% of acne sufferers, while a third strain was found only in acne-free patients.


"Dogs are dogs, but a Chihuahua isn't a Great Dane," Craft said. "People with acne had pit bulls on their skin. Healthy people had poodles."


The team then sequenced the complete genomes — about 2.6 million base pairs apiece — of 66 of the P. acnes specimens to explore in more depth how the good and bad strains differed.


The two notable bad strains had genes, probably picked up from other bacteria or viruses, that are thought to change the shape of a microbe to make it more virulent. The researchers hypothesized that the foreign DNA, perhaps by sticking more effectively to human host tissues, may help trigger an inflammatory response in the skin: acne.


The good strain, on the other hand, contained an element known to work like an immune system in bacteria, Li said. Perhaps it allows this P. acne to fight off intruders and prevent pimples from forming.


Li said the researchers did not know why some people had the bad P. acnes strains and others did not, and whether genetics or environment played a bigger role.


Dr. Vincent Young, who conducts microbiome research at the University of Michigan Medical School but wasn't involved in the acne project, said advances in sequencing technology and analysis made the new study possible. In the past, he said, scientists wouldn't have tried to sequence dozens of genomes in a single species.


"They'd say, why waste the money?" he said. "Now you can do this in a couple of days."


Li and Craft — neither of whom suffered bad acne as teens — plan to keep up the work.


More research is needed to come up with super-targeted anti-microbial therapies, or to develop a probiotic cream for acne sufferers.


Craft continues collecting samples from patients' pores. He hopes to study whether twins share the same microbial profiles, how acne severity is reflected in bacteria populations, and how things change in a single patient over the course of a treatment regimen.


One of the study volunteers, 19-year-old UC Santa Cruz student Brandon Pritzker, said he would have loved to have treated his acne without affecting the rest of his body. When he took Accutane, he suffered back pain and mood shifts.


Now off the drug, Pritzker said he is at peace with his pimples. "I still have breakouts, but I figure I'm 19, that's the way it's going to be," he said.


But, he added, "it hindered my confidence at the time. Kids with clear skin are probably a little happier."


eryn.brown@latimes.com





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Good Eggs Aims to Be the Amazon of Local Food



Good Eggs, which launched last summer as the Etsy of local food, is expanding in a bid to become the Amazon of local food.


The San Francisco-based company launched a new web platform Thursday that lets users select items from local vendors and farmers and combine them in a single order ready for delivery or pickup. That’s transforming Good Eggs from a web stand for multiple vendors to a central hub for purchasing and delivering local food.


“We actually had the inventory for an awesome grocery store, but the missing piece was some kind of central distribution, some way for you place an order across all of these vendors and get a single pickup or delivery,” co-founder Rob Spiro told Wired. “We were experimenting with offices and pickup spots…. The model we found working well was very operational. You end up getting into the logistics game to provide a high quality of service.”


Unlike the traditional CSA (community-supported agriculture) deliveries, Good Eggs lets you customize what you want, to include specific amounts of fruits and veggies, fresh fish, prepared food, baked goods and more. You still pick from what’s in season, but if you hate potatoes, you don’t get potatoes.



To support its newfound operation, Good Eggs is moving into a giant warehouse where it can aggregate all of its vendors’ product and put together its made-to-order boxes of food. Spiro says that they’ve been running test routes throughout the San Francisco Bay Area to figure out which are most efficient, and naturally, the former Googler says that all routes are “optimized algorithmically.”


Delivery does, however, cost an extra $4, whereas pickups at various locations (there are seven in San Francisco) are free.


Unlike Farmigo, another online food startup, Good Eggs caters to the individual rather than the community. Farmigo CEO Benzi Ronen told Wired in December that his company opted out of home delivery because of high costs. Good Eggs’ Spiro says that isn’t so much a concern for him.


“We’re taking the challenge head on,” Spiro said. “We have all these producers already running their businesses through Good Eggs…. You place your orders, it goes directly to the producer, then it goes to this one warehouse…. The long-term goal is to build out hubs in hundreds of areas.”


Good Eggs is already in the process of signing vendors up in Brooklyn, New York City, and plans to expand to several other cities.


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Cellar victim Kampusch raped, starved in film of ordeal






VIENNA (Reuters) – A new film based on the story of Austrian kidnap victim Natascha Kampusch shows her being repeatedly raped by the captor who beat and starved her during the eight-and-a-half years that he kept her in a cellar beneath his house.


Kampusch was snatched on her way to school at the age of 10 by Wolfgang Priklopil and held in a windowless cell under his garage near Vienna until she escaped in 2006, causing a sensation in Austria and abroad. Priklopil committed suicide.






Kampusch had always refused to respond to claims that she had had sex with Priklopil, but in a German television interview on her 25th birthday last week said she had decided to reveal the truth because it had leaked out from police files.


The film, “3,096 Days” – based on Kampusch’s autobiography of the same name – soberly portrays her captivity in a windowless cellar less than 6 square metres (65 square feet) in area, often deprived of food for days at a time.


The emaciated Kampusch – who weighed just 38 kg (84 pounds) at one point in 2004 – keeps a diary written on toilet paper concealed in a box.


One entry reads: “At least 60 blows in the face. Ten to 15 nausea-inducing fist blows to the head. One strike with the fist with full weight to my right ear.”


The movie shows occasional moments that approach tenderness, such as when Priklopil presents her with a cake for her 18th birthday or buys her a dress as a gift – but then immediately goes on to chide her for not knowing how to waltz with him.


GREY AREAS


Antonia Campbell-Hughes, who plays the teenaged Kampusch, said she had tried to portray “the strength of someone’s soul, the ability of people to survive… but also the grey areas within a relationship that people don’t necessarily understand.”


The British actress said she had not met Kampusch during the making of the film or since. “It was a very isolated time, it was a bubble of time, and I wanted to keep that very focused,” she told journalists as she arrived for the Vienna premiere.


Kampusch herself attended the premiere, looking composed as she posed for pictures but declining to give interviews.


In an interview with Germany’s Bild Zeitung last week, she said: “Yes, I did recognize myself, although the reality was even worse. But one can’t really show that in the cinema, since it wasn’t supposed to be a horror film.”


The movie, made at the Constantin Film studios in Bavaria, Germany, also stars Amy Pidgeon as the 10-year-old Kampusch and Danish actor Thure Lindhardt as Priklopil.


“I focused mainly on playing the human being because… we have to remember it was a human being. Monsters do not exist, they’re only in cartoons,” Lindhart said.


“It became clear to me that it’s a story about survival, and it’s a story about surviving eight years of hell. If that story can be told then I can also play the bad guy.”


The director was German-American Sherry Hormann, who made her English-language debut with the 2009 move “Desert Flower”, an adaptation of the autobiography of Somali-born model and anti-female circumcision activist Waris Dirie.


“I’m a mother and I wonder at the strength of this child, and it was important for me to tell this story from a different perspective, to tell how this child using her own strength could survive this atrocious martyrdom,” Hormann said.


The Kampusch case was followed two years later by that of Josef Fritzl, an Austrian who held his daughter captive in a cellar for 24 years and fathered seven children with her.


The crimes prompted soul-searching about the Austrian psyche, and questions as to how the authorities and neighbors could have let such crimes go undetected for so long.


The film goes on general release on Thursday.


(Reporting by Georgina Prodhan, Editing by Paul Casciato)


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The New Old Age Blog: For the Elderly, Medical Procedures to Avoid

The Choosing Wisely campaign, an initiative by the American Board of Internal Medicine Foundation in partnership with Consumer Reports, kicked off last spring. It is an attempt to alert both doctors and patients to problematic and commonly overused medical tests, procedures and treatments.

It took an elegantly simple approach: By working through professional organizations representing medical specialties, Choosing Wisely asked doctors to identify “Five Things Physicians and Patients Should Question.”

The idea was that doctors and their patients could agree on tests and treatments that are supported by evidence, that don’t duplicate what others do, that are “truly necessary” and “free from harm” — and avoid the rest.

Among the 18 new lists released last week are recommendations from geriatricians and palliative care specialists, which may be of particular interest to New Old Age readers. I’ve previously written about a number of these warnings, but it’s helpful to have them in single, strongly worded documents.

The winners — or perhaps, losers?

Both the American Geriatrics Society and the American Academy of Hospice and Palliative Medicine agreed on one major “don’t.” Topping both lists was an admonition against feeding tubes for people with advanced dementia.

“This is not news; the data’s been out for at least 15 years,” said Sei Lee, a geriatrician at the University of California, San Francisco, and a member of the working group that narrowed more than 100 recommendations down to five. Feeding tubes don’t prevent aspiration pneumonia or prolong dementia patients’ lives, the research shows, but they do exacerbate bedsores and cause such distress that people often try to pull them out and wind up in restraints. The doctors recommended hand-feeding dementia patients instead.

The geriatricians’ list goes on to warn against the routine prescribing of antipsychotic medications for dementia patients who become aggressive or disruptive. Though drugs like Haldol, Risperdal and Zyprexa remain widely used, “all of these have been shown to increase the risk of stroke and cardiovascular death,” Dr. Lee said. They should be last resorts, after behavioral interventions.

The other questionable tests and treatments:

No. 3: Prescribing medications to achieve “tight glycemic control” (defined as below 7.5 on the A1c test) in elderly diabetics, who need to control their blood sugar, but not as strictly as younger patients.

No. 4: Turning to sleeping pills as the first choice for older people who suffer from agitation, delirium or insomnia. Xanax, Ativan, Valium, Ambien, Lunesta — “they don’t magically disappear from your body when you wake up in the morning,” Dr. Lee said. They continue to slow reaction times, resulting in falls and auto accidents. Other sleep therapies are preferable.

No. 5: Prescribing antibiotics when tests indicate a urinary tract infection, but the patient has no discomfort or other symptoms. Many older people have bacteria in their bladders but don’t suffer ill effects; repeated use of antibiotics just causes drug resistance, leaving them vulnerable to more dangerous infections. “Treat the patient, not the lab test,” Dr. Lee said.

The palliative care doctors’ Five Things list cautions against delaying palliative care, which can relieve pain and control symptoms even as patients pursue treatments for their diseases.

It also urges discussion about deactivating implantable cardioverter-defibrillators, or ICDs, in patients with irreversible diseases. “Being shocked is like being kicked in the chest by a mule,” said Eric Widera, a palliative care specialist at the San Francisco V.A. Medical Center who served on the American Academy of Hospice and Palliative Medicine working group. “As someone gets close to the end of life, these ICDs can’t prolong life and they cause a lot of pain.”

Turning the devices off — an option many patients don’t realize they have — requires simple computer reprogramming or a magnet, not the surgery that installed them in the first place.

The palliative care doctors also pointed out that patients suffering pain as cancer spreads to their bones get as much relief, the evidence shows, from a single dose of radiation than from 10 daily doses that require travel to hospitals or treatment centers.

Finally, their list warned that topical gels widely used by hospice staffs to control nausea do not work because they aren’t absorbed through the skin. “We have lots of other ways to give anti-nausea drugs,” Dr. Widera said.

You can read all the Five Things lists (more are coming later this year), and the Consumer Reports publications that do a good job of translating them, on the Choosing Wisely Web site.


Paula Span is the author of “When the Time Comes: Families With Aging Parents Share Their Struggles and Solutions.”

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DealBook: For S.E.C., a Setback in Bid for More Time in Fraud Cases

The Supreme Court on Wednesday delivered a swift and decisive rejection of the Securities and Exchange Commission’s argument that it should operate under a more forgiving statute of limitations in pursuing penalties in fraud cases.

As a result of the decision, the agency will have to find a long-term solution to give itself more time to investigate cases.

In Gabelli v. Securities and Exchange Commission, Chief Justice John G. Roberts Jr. wrote in the unanimous decision rejecting the S.E.C.’s argument that a federal statute that limits the government’s authority to pursue civil penalties should commence when a fraud is discovered, not when it occurred.

The S.E.C. was hoping that the court would apply what is known as the “discovery rule.” In 2010, the Supreme Court endorsed this rule in a private securities fraud class-action suit, Merck & Co. v. Reynolds, stating “that something different was needed in the case of fraud, where a defendant’s deceptive conduct may prevent a plaintiff from even knowing that he or she has been defrauded.”

The discovery rule is an exception to the protection afforded by a statute of limitations, which puts an endpoint on potential legal liability for conduct. Unlike most cases, when fraud is involved, it may not be apparent to the victims that they were harmed because the primary goal of deceptive conduct is to keep it from being exposed.

In the Gabelli case, the S.E.C. filed fraud charges in 2008 against the mutual fund manager Marc Gabelli and a colleague, Bruce Alpert, saying they had violated the Investment Advisers Act of 1940 for permitting an investor to engage in market timing. Ten years ago, a major scandal erupted when it came to light that some advisers had permitted select investors to buy shares at favorable prices to take advantage of pricing disparities in the securities held by mutual funds.

In its complaint, the S.E.C. sought civil monetary penalties based on market timing that it claimed had taken place from 1999 to 2002, and resulted in the preferred investor purportedly reaping significant profits while ordinary investors suffered large losses. The defendants denied the charges and filed a motion to dismiss the case because it was not brought in time.

A federal statute, 28 U.S.C. § 2462, provides that “an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued.” The provision dates to 1839, and applies to any government agency.

A decision by the United States Court of Appeals for the Second Circuit in Manhattan allowed the case to proceed by applying the discovery rule to a governmental action. Coincidentally, that decision was written by Judge Jed S. Rakoff, who despite being an occasional thorn in the S.E.C.’s side, accepted the agency’s argument to avoid a strict application of the five-year statute of limitations.

The Supreme Court, however, saw things differently. This week, it issued its opinion less than two months after it heard oral argument in the case in January, a clear sign the justices found no merit in the S.E.C.’s contention that the agency should be treated the same as private plaintiffs in trying to get around the statute of limitations.

According to the Supreme Court, victims in securities fraud cases should have a longer period to file a claim – from when the fraud was discovered. “Most of us do not live in a state of constant investigation,” the court wrote. “Absent any reason to think we have been injured, we do not typically spend our days looking for evidence that we were lied to or defrauded.”

Chief Justice Roberts explained that “the S.E.C. as enforcer is a far cry from the defrauded victim the discovery rule evolved to protect.” One of the reasons the agency exists is to detect and penalize violations, with tools that the ordinary investor simply does not have, like the authority to compel testimony and the production of documents. The message is simple. When it’s your job to investigate fraud, you cannot argue that your failure to do so is a justification for not meeting a statute of limitations.

The Supreme Court’s decision puts increased pressure on the S.E.C. to pursue its investigations with greater alacrity and not let them gather dust, which can occur as a result of staff turnover or other pressing issues. The market timing case is a good example of how an investigation might get lost in the shuffle as corporate accounting frauds at large companies like Enron and WorldCom, which also came to light in 2002, strained the S.E.C.’s investigative resources.

There are a couple of options to deal with this issue in the long run, apart from a substantial increase in the agency’s budget – an unlikely prospect in the face of the looming federal budget sequestration deadline.

The S.E.C. can obtain an agreement to stop the statute of limitations, known as tolling, from those it is investigating, something it has done in the past. For example, in its insider trading and securities fraud case against Samuel E. Wyly, his now deceased brother, Charles J. Wyly Jr., and two other defendants, the S.E.C. got an agreement that let it pursue claims beyond the normal five-year limitations period.

A permanent solution would be to seek legislation from Congress that would give the S.E.C. a longer window to complete its investigations. The statute of limitations is not a constitutional protection, so Congress can amend it as it sees fit, which it has done in other areas involving fraud.

The limitations period for banking crimes, for example, was extended to 10 years during the savings and loan crisis because of the crush of cases that made it difficult to finish investigations in the five-year window to initiate criminal prosecutions. The Fraud Enforcement and Recovery Act of 2009 added mail and wire fraud affecting a financial institution to the list of crimes that get the benefit of the 10-year limitations period, again because of fear that cases would be lost because of the number of investigations taking place after the financial crisis.

The issue of the statute of limitations may even come up at the confirmation hearings of Mary Jo White, who has been nominated to be chairwoman of the S.E.C. That could be an early indicator of whether she would be willing to push for relief from the effect of the Gabelli opinion to help out the enforcement division.

In the short run, the Supreme Court’s decision will cause defendants in government enforcement actions to examine whether they might be able to take advantage of the five-year limitations period. Given how slowly the government has been known to move on occasion, it may be that some cases will fall by the wayside because of the Gabelli decision.


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Race for L.A. city controller heats up









A previously low-profile race for Los Angeles city controller has begun to heat up as opponents of City Councilman Dennis Zine accuse him of "double dipping" the city's payroll and question why he is considering lucrative tax breaks for a Warner Center developer.


Zine, who for 12 years has represented a district in the southeast San Fernando Valley, is the better known of the major candidates competing to replace outgoing Controller Wendy Greuel.


The others are Cary Brazeman, a marketing executive, and lawyer Ron Galperin. Zine has raised $766,000 for his campaign, more than double that of Galperin, the next-highest fundraiser, and has the backing of several of the city's powerful labor unions.





He also has been endorsed by Mayor Antonio Villaraigosa and several of his council colleagues. Galperin is backed by the Service Employees International Union, one the city's largest labor groups, and Brazeman is supported by retired Rep. Diane Watson and several neighborhood council representatives.


With the primary ballot less than a week away, Brazeman and Galperin have turned up the heat on Zine, hoping to push the race beyond the March 5 vote. If no one wins more than 50% of the ballots cast, the top two vote-getters will face a runoff in the May general election.


In a recent debate, Zine's opponents criticized him for receiving a $100,000 annual pension for his 33 years with the Los Angeles Police Department and a nearly $180,000 council salary. Brazeman and Galperin called it an example of "double dipping" that should be eliminated.


That brought a forceful response from Zine, who shot back that he gives a big portion of his police pension check to charities.


"I am so tired of hearing 'double dipping,' " he said. "I worked 33 years on the streets of Los Angeles. I have given over $300,000 to nonprofits that need it.... That's what's happened with that pension."


In the same debate, Brazeman accused Zine of cozying up to a Warner Center developer by pushing for tax breaks on a project that already has been approved. The nearly 30-acre Village at Westfield Topanga project would add 1 million square feet of new shops, restaurants, office space and a hotel to a faded commercial district on Topanga Canyon Boulevard.


"The councilman proposed to give developers at Warner Center tens of millions of dollars in tax breaks even though it's a highly successful project," he said. "He wants to give it away."


City records show that less than a month after the development was approved in February 2012, Zine asked the council for a study looking at possible "economic development incentives" that could be given to Westfield in return for speeding up street and landscaping enhancements to the project's exterior.


The motion's language notes that similar tax breaks have been awarded to large projects in the Hollywood and downtown areas, and that "similar public investment in the Valley has been lacking." Westfield is paying for the $200,000 study.


Zine defended his decision before the debate audience, saying if the study finds that the city will not benefit, no tax breaks will be awarded. "If there's nothing there, then they get nothing," Zine said.


The controller serves as a public watchdog over the city's $7.3-billion annual operation, auditing the general fund, 500 special fund accounts and the performance of city departments. Those audits often produce recommendations for reducing waste, fraud and abuse.


But the mayor and the council are not obligated to adopt those recommendations, and as a result the job is part accountant, part scolder in chief. All the candidates say they will use their elective position not only to perform audits but also to turn them into action.


Their challenge during the campaign has been explaining how they will do that.


Zine, 65, says his City Hall experience has taught him how to get things done by working with his colleagues. He won't be afraid to publicly criticize department managers, he said, but thinks collaboration works better than being combative.


"You can rant and rave and people won't work with you," he said. "Or you can sit down and talk it out, and you can accomplish things."


Galperin, 49, considers himself a policy wonk who relishes digging into the details to come up with ways to become more efficient with limited dollars and to find ways to raise revenue using the city's sprawling assets. For instance, the city owns two asphalt plants that could expand production and sell some of its material to raise money to fix potholes, he said.


He's served on two city commissions, including one that found millions of dollars in savings by detailing ways to be more efficient. Zine is positioning himself as a "tough guy for tough times," but the controller should be more than that, Galperin said.


"What we really need is some thoughtfulness and some smarts and some effectiveness," he said. "Just getting up there and saying we need to be tough is not going to accomplish what needs to be done."


Brazeman, 46, started his own marketing and public relations firm in West Los Angeles a decade ago and became active in city politics over his discontent with a development project near his home. He has pushed the council to change several initiatives over the last five years, including changes to the financing of the Farmers Field stadium proposal that will save taxpayer dollars, he said.


As controller, he would pick and choose his battles, and, Brazeman said, be "the right combination of constructive, abrasive and assertive."


catherine.saillant@latimes.com





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Private Plan to Send Humans to Mars in 2018 Might Not Be So Crazy



An ambitious private manned mission to Mars aims to launch a two-person crew to fly around the Red Planet and return to Earth in 501 days, starting in January 2018.


This bold undertaking is planned by the Inspiration Mars Foundation, a non-profit company founded by millionaire and space tourist Dennis Tito that was officially unveiled on Feb. 27 after early details leaked. Though the spacecraft would not land humans on Mars or even put them in orbit, it would bring people within a few hundred kilometers of the Martian surface — roughly the same distance between the International Space Station and Earth — and represent a major milestone in human spaceflight. If successful, the mission would go down in history as the first time a private company accomplished something government agencies were unable to do in space.


The mission is extremely ambitious, well beyond anything previously accomplished by the private sector and it faces plenty of obstacles. The company has an aggressive schedule to keep if it wants to hit its 2018 mark and needs to make sure the necessary technology is developed and well-tested. Despite its deep-pocketed backer, the mission has nowhere near the funding it needs to launch and will require raising greater sums than have ever been done for a private space endeavor. Its designers also need to figure out exactly how to keep the crew healthy, both physically and psychologically, for the 501-day duration of the flight as they face dangers from radiation, bone and muscle loss, fatigue, and depression. Mission designers will have to ensure they can get the crew safely to the ground when the capsule returns to Earth at a screaming 30,000 mph.


Yet despite these hurdles, of all the bold announcements from private spaceflight companies in recent years, this one seems the most achievable.


“The reason this entire thing is possible is because it’s actually a very simple mission,” said Jane Poynter, president of the Paragon Space Development Corporation, which makes life-support systems and has partnered with Inspiration Mars. “We’re not trying to land, we’re going to fly by and we’re using extant technologies that NASA and the space industry have been developing for years.”


Inspiration Mars isn’t looking to sell a product in an unknown market, like the asteroid-mining Planetary Resources or the national-moon-ferrying Golden Spike Company, and doesn’t have incredibly aspirational aims, like the planet-colonizing Mars One. It hopes to undertake a straightforward mission that could spur innovation, inspire young scientists and engineers, and move human spaceflight forward.


“You have to have a reasonable degree of skepticism and realism,” said Taber MacCallum, who co-founded Paragon with Poynter (and is also her husband). “We might run into some insurmountable obstacle 18 months in. But with proper engineering, support, and a good mess of luck, we could see this done.”


Now all they have to do is actually fly to Mars.




As currently outlined, the Inspiration Mars mission would be departing on what’s known as a “fast free return trajectory,” which both minimizes the amount of time spent in space and the amount of fuel required. A spacecraft would fire its rockets for a single burn to set off to Mars, make a few course corrections on the way, circumnavigate the Red Planet, and then slingshot back home using Mars’ gravity, negating the need for another burn. Because of the positions of Earth and Mars, opportunities for such quick flybys happen only every 15 years and, if they miss the 2018 deadline, the next chance won’t come until 2031.


Paragon estimates that the mission would need to launch a 10-ton spacecraft with roughly 33 cubic meters of volume, equivalent to the space in the back of a large moving van. About half that volume would be taken up with water tanks, food, and life support, leaving a cramped living space with an area barely bigger than a parking space. That means putting two people in a room for 1.4 years that’s probably smaller than your bathroom.


The crew would process urine and flush water to recycle about 75 percent of it as drinkable water. They would carry the bare minimum of personal provisions, such as clothing and hygiene items. An initial feasibility study co-authored by Poynter, MacCallum, Dennis Tito, and others didn’t make allowances for privacy, separate sleeping quarters, or even showers (just sponge baths) in the habitat, but it remains to be seen how these ideas would evolve for a real mission.


No existing launch vehicle is large enough to get such a mass into space, though SpaceX plans to have its Falcon Heavy rocket ready within a few years. If SpaceX is unable to meet that deadline, the mission could use two smaller existing launch vehicles, one to bring the tank carrying the rocket engines and necessary fuel and another to launch the crew habitat, which complicates the mission and could make it more expensive.


The number one danger during the journey will be radiation. Whether charged particles streaming from the sun or galactic cosmic rays accelerated by distant sources, space is chock full of radiation. Humans on Earth are protected from this fallout by our magnetic field, which also shields astronauts on the ISS. But out in deep space, the crew of a 500-day trip would be exposed to total radiation roughly equal to the dose an astronaut that flew five or six times to the ISS would expect to receive over their career.


Among other things, radiation damages DNA thereby raising the risk of cancer, and lowers blood cell counts. The effect would be like smoking a pack of cigarettes a day during the whole mission, MacCallum said.


The most severe event to watch out for would be a solar flare or mass ejection, where the roiling surface of the sun produces a burst of charged particles and radiation. If exposed to such an occurrence, a crew might experience nausea, vomiting, blistering, and potentially death. Apollo astronauts were spared a potentially fatal flare in 1972 that occurred between Apollo 16 and 17 but the Inspiration Mars mission would be out in space for a long time, raising the odds of getting hit.


Solar particle events like these happen randomly, though in 2018 the sun will be closer to the minimum part of its activity cycle, lessening the chances of a large event. In the case of a major event, sun-observing satellites would provide some warning and the crew could retire to a storm shelter built from vehicle hardware. But a large event or even several smaller ones could weaken astronauts’ immune systems, said radiobiologist Ann Kennedy of the University of Pennsylvania, who works on the effects of radiation for the National Space Biomedical Research Institute.


With the sun at minimum the crew would be exposed to a higher rate of galactic cosmic rays than normal, and the chronic low-dose of ionizing radiation “can not be shielded against with current technology,” said radiation physicist Jeff Chancellor, also of the NSBRI.


Even surrounding the spacecraft with a huge, thick shield, something like five or six times what the ISS has, would not significantly lower galactic cosmic ray exposure, he added. In fact the more shielding you have, the worse, because the charged particles can interact with molecules in the material to produce further harmful radiation.


The crew can help counteract some of the radiation’s effects with drugs for nausea and vomiting and pills or supplements to provide the daily recommended doses of vitamins.


“My gut feeling is there’s a good chance they can do this mission, but there’s a lot left to be seen,” Chancellor said. Space travel is always risky, he added, though there is hope that further research can provide a crew with effective radiation countermeasures before 2018.


Beyond radiation, the main biomedical problem will be muscle and bone deterioration, which occurs to the human body during extended stays in microgravity. To counteract this, Poynter said it would be of the utmost importance for the crew to have an exercise machine that they use daily for several hours.


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DealBook: Obama’s Nominee for S.E.C. Tries to Allay Skepticism

Mary Jo White’s path to the Securities and Exchange Commission has reached a crucial juncture: the Congressional charm campaign.

Lawmakers are scrutinizing Ms. White ahead of her Senate confirmation hearing, raising questions about the former prosecutor’s lack of regulatory experience and the challenge of policing Wall Street firms she recently defended in private practice. But Ms. White is seeking to quell concerns about potential conflicts of interest.

She recently scheduled meetings with Senate Banking Committee members, who must clear her nomination, and answered a 20-page boilerplate questionnaire detailing her qualifications, according to a copy provided to The New York Times. The document sheds new light on her list of Wall Street clients, including little-known work performed for HSBC’s former chief executive. It also describes her ties to New York Democratic causes and laurels she earned both as a defense lawyer and federal prosecutor.

The questionnaire, created by the banking committee, focused significant attention on her movement through the revolving door between government service and private practice, a concern that has loomed since President Obama nominated Ms. White in January.

“As a government official, I believe I have an established track record and the reputation of being tough, but fair,” she said in the document.

Ms. White also offered a previously undisclosed concession, vowing “as far as can be foreseen,” never to return to Debevoise & Plimpton, where she had built a lucrative legal practice. To avert potential conflicts stemming from her work on behalf of Wall Street giants, Ms. White had already agreed to recuse herself for one year from most matters that involve former clients.

While Ms. White’s nomination is expected to sail through the committee before receiving full Senate approval, four Congressional officials who spoke anonymously warned that some Democrats have lingering reservations.

The Democrats note that her husband, John W. White, is co-chairman of the corporate governance practice at Cravath, Swaine & Moore, where he represents many of the companies that the S.E.C. regulates. They also question whether Ms. White’s recusals, even if well-intentioned, could cripple her ability to run the agency.

In a meeting on Tuesday with Senator Sherrod Brown, Democrat of Ohio, Ms. White did little to alleviate the fears.

“Senator Brown respects Ms. White’s credentials and experience, but is concerned with Washington’s long-held bias toward Wall Street,” his spokeswoman, Meghan Dubyak, said in a statement. “He pushed Ms. White,” to explain “whether her previous employment or her spouse’s current employment could cause her to recuse herself from key business facing the S.E.C.” The agency has already fallen behind in writing dozens of new rules for Wall Street.

Ms. White’s supporters counter that, before the White House announced the appointment, the Office of Government Ethics vetted her disclosures. The nonpartisan officials concluded that, even with her recusals, Ms. White could effectively run the agency.

Her supporters also trumpet her long tenure as a tenacious prosecutor. During stints as a federal prosecutor in Brooklyn and as the first woman United States attorney in Manhattan, she helped oversee the prosecution of the crime figure John Gotti and directed the case against those responsible for the 1993 World Trade Center bombing. The cases won her praise from several lawmakers.

Ms. White still has time to win over remaining skeptics. Her confirmation hearing is not expected until the week of March 11, Congressional officials briefed on the matter said.

Until then, Ms. White is blitzing through the halls of Congress, a routine practice for nominees. She began her charm offensive at the top of the banking committee’s roster, visiting this month with the Democratic chairman, Senator Tim Johnson, of South Dakota. A Congressional official briefed on the matter said Ms. White performed well at the gathering, and no major issues arose.

In the next round of meetings, she will face off with a more liberal arm of the committee known to scrutinize nominees. After meeting Mr. Brown, Ms. White is scheduled to see Senator Jeff Merkley, Democrat of Oregon. She also will meet Elizabeth Warren, the Massachusetts Democrat who is an outspoken critic of Wall Street, Ms. Warren’s office confirmed on Tuesday.

Even if Ms. White fails to satisfy lawmakers’ concerns, the meetings are an important step in clearing the way for her appointment.

“Senators will have a chance to size Mary Jo up, and I believe will come away with a great sense of comfort that she’s a candidate of true quality,” said Harvey Pitt, who passed through the confirmation process in 2001 to lead the S.E.C.

He noted that additional disclosures could bolster her candidacy. “I do think she will need to provide a level of comfort to the committee that she is aware of the issue, has a definitive plan for navigating through the potential conflict issues, and will be completely open about when she has a potential recusal issue, and how she has handled it,” he said.

Ms. White, a political independent, assured lawmakers in her questionnaire that she was “completely independent of political or personal influences.” She did disclose, however, $13,000 in campaign donations to Democratic candidates. She also served on the campaign committee of a Democrat who had run for New York attorney general.

Her ties to Debevoise — and its clients — are more significant; she represented JPMorgan Chase, UBS and Michael Geoghegan, the former head of HSBC.

Ms. White, 65, said this month said that she would retire from Debevoise after taking over the S.E.C. and would forgo the firm’s typical retirement perks: office space and a free BlackBerry. She also will sever financial ties to the firm during her term at the S.E.C., taking an upfront lump-sum retirement payment rather than collecting a monthly installment of $42,500.

Her husband has also offered concessions. He agreed to convert his partnership at Cravath, Swaine & Moore from equity to nonequity status and promised not to “communicate directly” with the S.E.C. about rule-making. Ms. White will not participate in a matter with a direct effect on his compensation.

In line with a standard move for federal appointees, Ms. White further agreed to recuse herself for one year from voting on enforcement cases involving Debevoise clients. There are limitations to the policy, though, in case it is “in the public interest” and a “reasonable” person would not object.

Some lawmakers dismiss questions about her potential conflicts, but still question her mastery of regulatory minutiae. While Ms. White is a skilled litigator, she lacks experience in financial rule-writing, unlike a predecessor, Mary Schapiro, a lifelong regulator who ran the S.E.C. for nearly four years.

In her questionnaire, Ms. White highlighted her role as a director of the Nasdaq exchange and other experiences that she said gave her “a firm grounding” in securities laws.

She also, inadvertently, drew a connection to Ms. Schapiro. Like Ms. Schapiro, Ms. White is an animal lover, currently serving as a board member of the American Society for the Prevention of Cruelty to Animals.

She agreed to step down from the board once she is sworn in at the S.E.C.

A version of this article appeared in print on 02/27/2013, on page B1 of the NewYork edition with the headline: Nominee For S.E.C. Tries to Allay Skepticism.
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