Plaintiff responds that closure of the Store is sought not because of promotion of materials which might be obscene but to enjoin a nuisance consisting of proscribed sexual activity and <mask>. Plaintiff maintains that title II applies to any building, erection or place used for purposes of lewdness, assignation, or prostitution and does not legitimize such activity solely because books, magazines or movies are also promoted thereat. Plaintiff asserts that the sanctions of injunction, confiscation of property, fine or imprisonment which might flow under title II would be occasioned not by virtue of any constitutionally protected activity occurring at the Store but solely on the basis of activity not so protected. Plaintiff also maintains that summary relief is improper as questions of fact have been raised by joinder of issue herein and since the determination of constitutional issues of the magnitude asserted by defendant is not proper on a motion for summary judgment.


The court applauds the interest of the neighbors and the police and their determination to eliminate those open-air drug markets. Unfortunately, the laws of the State of New York do not include any statute or combination of statutes that would allow for the prosecution of these defendants for the conduct alleged. On the contrary, the exemption statute in the section of the Penal Law that governs prosecutions for criminal <mask> states specifically that under certain situations "A person is not guilty of criminal solicitation” (see, Penal Law § 100.20, criminal solicitation; exemption [emphasis added]). For this reason, as is more fully set forth below, the defendants’ motions to dismiss the charges of criminal solicitation in the fifth degree must be granted in those cases where the informations allege the defendants solicited the undercover police officers to sell them marihuana. The cases in *859which the informations allege the defendants were attempting to buy a "marihuana-type substance” or "fake” marihuana are dismissed because the informations are defective. The two types of informations, and the two separate grounds for dismissal, are set forth below.


It is well settled that a stockholder is entitled to inspect the corporation’s stock book in order to be able to communicate with other stockholders and seek to persuade them, by <mask> of proxies and otherwise, to oust the existing directors and management and substitute a slate nominated or approved by the stockholder seeking the inspection (Matter of Durr v. Paragon Trading Corp., 270 N. Y. 464; Matter of Martin v. Columbia Pictures Corp., 282 App. Div. 686; Matter of Joslyn [Universal Labs.], 191 Misc. 512, affd. 273 App. Div. 945; Matter of Ditisheim, 96 N. Y. S. 2d 622). The fact that the existing management may be innocent of charges of mismanagement made by the petitioning stockholder is not a valid reason for denying inspection of the stock list (Durr v. Paragon Trading Corp., supra, Matter of Joslyn [Universal Labs.], supra).


The People allege in their responding papers that the crime solicited could also be criminal possession of marihuana in the fifth degree, because the defendant(s) were urging the undercover police officers to provide them with marihuana in open view on a public street, in violation of section 221.10. As discussed above, there are no factual or other allegations set forth in the information, however, that would support the People’s argument and the court finds that the informations do not sufficiently allege <mask> of the crime of criminal possession of marihuana in the fifth degree.


1. To ask for earnestly; seek to obtain by persuasion or entreaty. 2. To beg or entreat (a person) persistently. 3. To influence to action; tempt; especially, to entice (one) to an unlawful or immoral act. The Grand Jury could easily have inferred that defendant’s bringing forth the suggestion of a commission constituted a <mask>, especially when a specific percentage was mentioned. Defendant also indicated that in return for a “housewarming present” he would do his best to see that Quabbin was awarded each of the four contracts, even though he eventually conceded that his influence might not be sufficient to secure all of them. (Cf. People v Adams, 86 Misc 2d 634.) This type of commercial bribe seeking is *344exactly the kind of activity the statute was meant to prohibit. (See People v Jacobs, 309 NY 315; Sears, Roebuck & Co. v Kelly, 1 Misc 2d 624; People v Davis, 33 NY Grim Rep 460; United States v Seregos, 655d 33 [interpreting New York commercial bribery statute].)


Petitioner was found guilty after a disciplinary hearing of violating State-wide rules prohibiting unauthorized <mask> of goods, unauthorized exchange of personal items, possession of contraband, solicitation of smuggling and unauthorized provision of legal assistance for compensation. The misbehavior report states that, while conducting an "area frisk” of petitioner’s desk at the law library, the author found an order form for clothing in the name of an inmate Lopez among the legal papers of Lopez, that the clothing subsequently arrived at the facility and that a search of petitioner’s cell disclosed the presence of the clothing in his cell. Petitioner pleaded guilty to the charge of unauthorized exchange of personal items. Further, in his testimony at his disciplinary hearing petitioner conceded that he had performed legal work for Lopez and assisted him in filling out the order form, and gave no credible explanation for his possession of the ordered clothing.


On June 4, 1992, by means of a proxy <mask>, the Co-op gave notice of an annual meeting of the shareholders to be held on June 25, 1992, where votes would be taken on the proposed amendments to the proprietary leases, including one requiring persons involved in litigation or administrative proceedings with the Co-op to settle those proceedings prior to selling their shares in the Co-op. Mrs. Hoving’s proprietary lease presently contains no provision restricting the sale of the apartment during the pendency of litigation of claims between a tenant and the Co-op. The proposed amendment appears to be directed at plaintiffs and is designed to prevent the Co-op from becoming further indebted thereby allowing the Co-op to resolve its current financial problems by forcing persons bringing actions against the Co-op, to settle or discontinue those actions as a condition of selling their shares.


Careful attention must be paid, in attributing the actions of a nonculpable agent to the accused, to the evidence of causation. (See, Lanham: Accomplices, Principles and Causation, 12 Melbourne U L Rev 490 [1980].) The overbearing influence of the accused upon the unwitting actor is the functional substitute for the community of purpose to commit the crime, which is the usual predicate for accomplice liability, and must be proved to the same extent. (See, e.g., People v La Belle, 18 NY2d 405, 411-413 [1966].) In this sense, the accused may be said to have solicited the actor’s conduct, rather than have aided it, insofar as <mask> includes the “attempt to cause” a criminal result. (Penal Law §§ 20.00, 100.05-100.13; see, 18 USC § 2 [b].) Moreover, there must be proof that the defendant’s mentally culpable state applied to his own actions in regard to the agent, as well as to the agent’s actions in regard to the prohibited result. (Penal Law § 15.15 [1]; cf. Robinson & Grall, Element Analysis in Defining Criminal Liability, 35 Stanford L Rev 681, 734-735 [1983].) In other words, with regard to perjury, there must be proof that the defendant intentionally caused the witness to make a false statement under oath, which statement the defendant did not believe to be true, and by which he intended to deceive. (Penal Law § 210.00 [5].)


Defendants sell “closeout” merchandise over the Internet. This action allegedly “arises from a sale of goods between the parties over the internet” (see affirmation of Meyer Y. Silber in support of defendants’ motion ¶ 3). According to plaintiff’s complaint, he received an e-mail <mask> from defendants in *164August 2010, offering for sale 50,000 pairs of white tube socks (complaint ¶ 14). Defendants’ Web site represented that its closeout merchandise “should all be first quality . . . excess inventory” from “[n]ame-brand companies” (complaint ¶ 16). Based upon that Web site representation, plaintiff alleges that it agreed to purchase 50,000 pairs of tube socks from defendants for an agreed price of $6,000, plus $1,146 in shipping costs (complaint ¶¶ 17, 19).


If the plaintiff’s interpretation of this legislation were adopted, various entities which advertise temporary locations for sales would be required to comply with the provisions of article 10-A. Summer flea markets, antique shows whereby dealers commonly assemble at a central location, various art sales and jewelry sales often held at the Empire State Plaza, estate sales held “on premises” and other such activities would require the issuance of a three-day notice *867with each purchase. As in the case of the defendant herein, these types of business activities involve situations where a potential consumer makes an affirmative determination to attend same. Thus, the need to be protected from “high pressure door-to-door sales tactics” through personal <mask> is not present.


After the court had precluded further testimony by the witness as to other alleged acts of <mask> that he had observed subsequent to the alleged rapes and sodomies, the prosecutor did not move to strike this testimony. During jury deliberations the jury requested a read-back of the witness’ testimony relative to this incident. The court directed the court reporter to read back the testimony concerning the one incident only and to refrain from reading back the testimony given in derogation of the court’s ruling. The defendant objected that since there had been no motion to strike, the inadmissible testimony should be read back to the jury. This objection was overruled, and the testimony as to the one event only was read back to the jury.


Moreover, the first writing in the case in hand provided that the defendant would pay “ commission on all shipment Gross Billings ” and the second that it would pay “ commissions on all merchandise manufactured and shipped to Bobbie Brooks, Inc.” Neither promise is qualified by any requirement that *466the plaintiff should activate himself in obtaining for the defendant future business or further orders. As I see the ease, neither the original oral agreement nor the subsequent oral modification contemplated the <mask> or servicing of orders by the plaintiff, and there seems no reason to read into the writings an unexpressed restriction upon a promise stated unconditionally. The second agreement did not “ supersede ” the first, as suggested by the defendant. The word “ supersede ’ ’ may not be read so literally. It is plain that the parties intended only to modify the first agreement by substituting a commission computed at the rate of 35 cents per dozen for one of 3%.


Since the interdicted acts are presently forbidden “ in the city of New York ”, instead of within the erstwhile narrower compass of “ upon the public streets or highways ”, the result would appear to be the same whether operators of unlicensed vehicles solicited the public for hire, on or off the public thoroughfares. Such <mask>, under the clear terms of the statute, would be a violation of the law wherever patronage was sought, so long as the act were done “ in the city of New York ”. The specific place of solicitation within the city no longer being the pivotal factor, evidently, then, the nature of the service itself, offered or rendered, must be.


Defendant, to sustain his claim that the complaint is insufficient, cites the case of Prince v. Ridge (32 Misc. 666), where the court held that the illicit <mask> of sexual intercourse was not actionable on the theory that damages from mental suffering, unaccompanied by physical injuries, were not compensable. The holding in that case conforms with those in some other jurisdictions. Prosser in his Law of Torts slates ([2d ed.], p. 45): “ Thus far it has been held that no action will lie for the insult involved in inviting a woman to illicit intercourse” (citing cases) and then, quoting from Harvard Law Review (Vol. 49, pp. 1033, 1055), “ the view being, apparently that there is no harm in asking.” There are, however, authorities to the contrary. (See cases collated in 1936 Report of N. Y. Law Rev. Comm., p. 437.)


In finding this <mask> of grievances was unlawful, the Board relied on the fact that Gerawan did not have a past practice of soliciting grievances from its workers. The evidence showed the purported solicitations began as a new course of action starting in November of 2012. Since there was no past practice shown here, the Board applied the rebuttable presumption that Gerawan's solicitations of grievances involved an implied promise to remedy such grievances. That presumption, combined with the general antiunion tone of the flyers, mailers and DVD signaling the employer's opinion that the union was unnecessary to protect the workers' interests, led the Board to conclude that Gerawan had committed the unfair labor practice of solicitation of grievances.


In conclusion, this court holds that part of the defendant corporation’s business is the <mask> and servicing of New York accounts and these activities constitute “doing business” within the meaning of CPLR 301. These activities are systematic, regular and continuous and lead to the conclusion that the foreign corporation defendant and the individual defendant are “present” in New York for the purpose of in personam jurisdiction. This suit does not offend the “traditional notions of fair play and substantial justice.”


In short, section 12.0 does not prohibit the use of public streets to tow cars nor does it prohibit all <mask> of towing work. What it does prohibit is unregulated solicitation that interferes with the free choice by the damaged car owner who is in a poor position or condition at that moment to properly protect himself, the racing to the scene of an accident by tow car operators to first solicit and garner the towing contract with the resultant interference with the rights of other motorists and traffic in general, and the interference with the proper police investigation and other necessary police work at the scene of the accident. ■


In short, the Court finds nothing unreasonable about the Army’s technical evaluation of Plaintiff’s proposal. 14 The <mask> plainly required 2FA. If 2FA was to be accomplished via a token, as Plaintiff’s design proposes, the authentication period would end upon removal of the token, absent agreed upon conditions. Plaintiff provided no such conditions or evidence thereof. An additional USB port was therefore needed for the NGLD-M to simultaneously perform other critical functions. Plaintiff’s design proposal—under any reasonable or rational reading— incorporates a single USB port, which, as was reasonably determined by the Army, cannot carry out necessary functions simultaneously. Accordingly, the Army evaluators were neither arbitrary nor capricious in assigning two deficiencies to Plaintiff’s design methodology.


In this stage of the proceedings, when the appellants were about entering his house, for the purpose of selling his furniture, the respondent, at the urgent <mask> of his friends, *177consented to propose a compromise with M’Donald. M’Donald offered to stop the sale, and procure a restoration, to the respondent of all the property that had already been sold, if he would pay him the amount of a judgment which he held against his son John Neilson, jun., for 1600 dollars, and also a note of his son,' for 800 dollars, endorsed by one Jacob Boyce, together with the judgment upon which the sale had taken place ; and the respondent finally consented to give him his bond and mortgage, for 2500 dollars, payable in five annual instalments ; and M’Donald accordingly restored to him the property sold, discharged his judgment, and assigned to him the securities against his son and Boyce. John Neilson, jun., and Boyce are both proved then to have been, and still to be insolvent.


Marks has represented the defendant in New York City for the past twenty-two years. He employs an assistant salesman, whose salary he pays. In addition to his <mask> and selling activities in defendant’s behalf, Marks investigates complaints of customers and makes recommendations to defendant concerning adjustments for defective merchandise, and so forth. Sometimes these recommendations are accepted, and at other times they are rejected. When the defendant has refused to make an adjustment with one of Marks’ good customers, Marks has sometimes himself paid a small amount of money out of his own pocket in order to satisfy the customer. Occasionally Marks will reroute a shipment from a customer who has rejected it to another customer, after having first obtained permission to do so from defendant’s Pennsylvania office. Marks has made some collections on behalf of defendant. He testified that he collects about thirty-six checks a year, aggregating approximately $3,600. The checks are invariably made out to the order of the defendant, and Marks has simply forwarded them to the defendant’s Pennsylvania office.


Despite these facts and transactions, the surviving life beneficiary, the legal representatives of the other and the remainderman have interposed objections to the account predicated solely on the improper acquisition of the mortgage on the noted property which was located outside the city of New York. No assertion has been made that any false or misleading representations were made by the trustee to induce the approval of the account and the execution of the release; indeed, so far as the remainderman was concerned, it was effectively insulated by its attorneys from any contact with the trustee whatsoever. As to the life beneficiaries the only <mask> by the trustees, if it is capable of such appellation, was the letter of transmission of the account for what it was worth, with the suggestion that if it was satisfactory the acceptance and release *267be executed, but if they entertained any doubt on the subject, they would best consult their own counsel.


The County Committee of a political party in New York State is a creature of statute (Election Law, § 10 et seq.). I't is the local arm of the party and is the body through which the party’s internal affairs are handled at a county level. The functions include the promotion of the party’s candidates for public office, the raising of campaign funds and the <mask> of new party members (see Seergy v. Kings County Republican County Comm., 459 F. 2d 308).


The informations charging some of the defendants with criminal <mask> in the fifth degree allege that they attempted to buy a "marihuana-type substance” or "fake” marihuana from undercover police officers.2 Because the allegations that the defendants "attempted to buy” "marihuana-type substance” or "fake” marihuana do not allege that the defendants solicited any conduct constituting a crime, a necessary element of criminal solicitation, as set forth above, the informations in those cases are dismissed as defective. Had they alleged that the defendants solicited the officers to sell them marihuana, the informations would be dismissible because of the exemption provision in the Penal Law with respect to criminal solicitation charges, as set forth above. Had they alleged an attempt to possess marihuana they would be dismissible as defective because there can be no attempt under the Penal Law to possess marihuana in amounts that would only be chargeable as violations if actually possessed.


Respondent’s final application concerns the lifting of the so-called gag order. Since the order was designed to prevent extrajudicial communication with the jury during the pendency *124of the <mask> trial, and it is not clear when those charges will be retried, the court sees no reason to extend the order. Although it is this court’s expectation that the contempt hearing will be scheduled for the near future, the court’s ruling that defendant is not entitled to a jury trial makes it unnecessary to continue the gag order with respect to that matter. Accordingly, the court’s September 22, 1999 order is lifted in its entirety.


A similar question was before this court in the case of People v. Milne, 86 Mise. Rep. 417. In that case, the defendant was driving a taxicab belonging to the Yellow Taxicab Company, which had a starter on Broadway in front of the entrance to Churchill’s restaurant. The defendant was seen standing in front of the restaurant for about seven minutes and when approached by one whom he recognized to be an officer drove away, subsequently taking up the position in which the complainant had first seen him and was thereupon arrested and charged with a violation of article 3, section 1, of the public hack ordinance of the city of New York, adopted May 27,1913, approved June 2, 1913, which provides that no public hack shall ply for hire upon the. streets of the city of New York without first obtaining a license from the bureau of licenses. The defendant’s vehicle had a taximeter affixed and was equipped with a movable flag or device which when up displayed the word “ vacant.” The court held that the placing of such a cab on a public street where it is accessible to those who may wish to hire it and the <mask> of passengers for hire by word, act or exhibition of appropriate signs or devices was a plying for hire within the ordinance. Judge Crain said: “ Being actually hired is not the test of whether or not there is a plying for hire. One may ply for hire without being hired.” And further “ A taxicab, not a public hack, can doubtless lawfully be called for an ascertained patron or hirer to a given place and may proceed to such place and stop there, although such place be a public hack stand, and remain there subject to the orders of such person so engaging it, provided that no unreasonable use be made by such taxicab of such public stand and provide that such taxicab is not subject to hire by any person other than such ascertained person or hirer from the time that it is called until the time when it returns to the *350garage in which it is kept; and, for the purpose of securing customers taxicab companies may, by agreement, keep representatives in hotels, public restaurants and other places, but such representatives cannot be permitted to evade the ordinance in question by summoning taxicabs, not public hacks, from such garages to such places ostensibly for ascertained patrons or hirers, but in reality without such, but with a view to having them hired by any one from the public streets.”


On August 10, 2021, the Almy awarded SNC and GDMS contracts on the NGLD-M <mask>. AR Tabs 52, 55. The Almy notified Plaintiff on August 11, 2021, that it was "not selected for award" and that the "decision was driven by the unacceptable rating." AR 7137-38. The notification also highlighted the ratings of the three offerors' proposals and included a summaiy of Plaintiff's deficiencies and weaknesses. Id. The Almy, pmsuant to FAR 15.506, provided a post-award debriefing to CACI. See generally AR Tab 58. Additionally, the Almy,


Criminal <mask> is a defined and recognized crime distinct from the object crime and distinct from an attempt to commit a crime. The exemption is a limited one and not to be construed to exclude any incidental conduct but only “necessarily” incidental conduct (Penal Law § 100.20 [emphasis added]). A solicitation is not necessarily incidental to a sale though it may be incidental to a sale of marihuana. The law defines “sell” as “to sell, exchange, give or dispose of to another, or to offer or agree to do the same” (Penal Law § 220.00 [1]). Thus a person can be convicted of criminal sale of marihuana by offering the *1049same for sale without a requisite solicitation for such sale (see, e.g., Penal Law § 221.35; 3 CJI [NY] PL 221.35, at 1834-1836).


The basis of the complaint is that the board acted improvidently in selling school property with' an alleged value of nearly $2,000,000 for only $20,000. The complaint also alleges violations of sections 402, 403 and 405 of the Education Law and the State and Federal Constitutions, together with irregularities in the <mask> of the sale and the consideration of offers of purchase.


In adherence to the Federal cases on the issue, the New York courts have also recognized that "<mask> is endemic to class action certification cases.” (Stern v Carter, 97 Misc 2d 775, 779, mod on other grounds 82 AD2d 321.) Upon this basis, the late Hon. Seymour Lakritz of this court, citing the propriety of considering the ethical conduct, competence, experience and zeal of plaintiffs’ counsel, observed in Cannon v Equitable Life Assur. Socy. (106 Misc 2d, supra, at 1069): "Class action status should be denied where counsel’s unethical conduct has been or is prejudicial to the interests of the class or results in creating a conflict of interest between the attorney and the class and the attorney is therefore unable to protect the interests of the class (Korn v Franchard Corp., 456d 1206; Taub v Glickman, 14 FR Serv 2d 847). Generally, the unethical conduct condemned by the courts has been egregious misconduct or extreme examples of solicitation and champerty”. (Citations omitted.)


In Berner v. United Airlines (supra), cited by Ward in its brief, the court (p. 13), citing Holzer v. Dodge Bros. (233 N. Y. 216), recognizes the concept of 11 doing business” even that resting on mere <mask> by a salesman, has been broadened by International Shoe Co. v. Washington (326 U. S. 310, decided before the McGee case). (Cf. Benware v. Acme Chem. Co., 284 App. Div. 760.)


In December 2006, UBS and Declaration solicited IKB, seeking Loreley’s investment in Draco. (IT 94.) In January 2007, UBS provided IKB with a term sheet and marketing book (the Draco offering materials) that represented that Declaration would serve as Draco’s independent collateral manager. (U 96.) The Draco offering materials provided, inter alia, that (1) Declaration would select and manage Draco’s portfolio of assets for the benefit of Draco’s investors; (2) Draco would not enter into CDS contracts that referenced the ABS Home Equity Index (the ABX); and (3) all CDS collateral would be acquired on an arm’s length basis for fair market value. (IfIf 99, 104, 106.) Draco and Declaration were also parties to a collateral management agreement that provided that all proposals to enter into or terminate CDS transactions must only be initiated by Declaration and that CDS transactions cannot be entered into upon the recommendation, request, or <mask> of a counterparty to such transaction. (If 103.)


If the Legislature had intended to restrict the applicability of section 105.17 to agreements contemplating specified actions by the person under 16 years of age “it easily could have and surely would have written the statute to say so” (Matter of Theroux v Reilly, 1 NY3d 232, 240 [2003]), for example, by writing “agrees with one or more persons under sixteen years of age that one or more persons under sixteen years of age will engage in or cause the performance of such conduct,” or words to similar effect. In enacting the facilitation in the first degree and <mask> in the first degree statutes, at the same time as the conspiracy in the first degree statute, the Legislature did just that — limiting first degree facilitation to cases where the adult believes it probable that he is rendering aid to “a person under sixteen years of age who intends to engage in conduct that would constitute a class A felony” (Penal Law § 115.08), and first degree solicita*236tion to cases where the adult acts with intent that “another person under sixteen years of age engage in conduct that would constitute a class A felony” (Penal Law § 100.13; see L 1978, ch 422). The Legislature chose not to so limit the application of the conspiracy in the first degree statute.


George R. Bartlett III, J. On May 28, 1997, the Schoharie County Grand Jury, in a single indictment (97-13), charged defendants Donna Arroyo, Cary Wayne McKinley and Daniel Edwards with murder in the first and second degrees, conspiracy in the second degree and criminal possession of a weapon in the second degree in the shooting death of Frank Arroyo on May 12, 1997. Defendant Arroyo was also charged with criminal <mask> in the second degree. Notice of intent to seek the death penalty was filed by the District Attorney against all three defendants, and was withdrawn in the case of Cary McKinley.


An epitome of the relations subsisting between the creditor and the debtor will conduce to a proper and just consideration of the motion. On January 23, 1908, the creditor obtained a judgment for $773.18. On March 6, 1908, an*385other judgment was obtained for $775.77. Neither action was defended; but, before either action was commenced, the debtor had transferred his property to a corporation created for the purpose of liquidating his debts. On March 7, 1908, the debtor was examined by virtue of the judgment obtained in January. It appears that he testified that he had no property and, especially interesting for the purpose of this application, no bank account. After one adjournment and considerable' discussion, the attorney for the creditor (relying upon the testimony and the debtor’s expostulations of pecuniary embarrassment) and the debtor entered into an agreement whereby the debtor was to give a check and notes falling due at various periods in full payment of both judgments and the creditor to withhold all action under the proceedings supplementary; and, if the notes and checks were paid, the motion for the appointment of a receiver was to be withdrawn and the proceedings discontinued without costs to either party. The agreement was dated March 9, 1908. After repeated adjournments, made according to the terms of the agreement, the debtor, on April 7, 1908, by direction of the court was compelled to sign his testimony adduced in the supplementary proceedings. In the interim between March 9, 1908, and April 17, 1908, the creditor*, through his attorney, discovering that the debtor had a large sum of money deposited in the bank with which he testified he had ceased dealing, obtained an order restraining the said bank from paying to the debtor any part of the money. Upon the <mask> of the debtor this order was vacated, after the debtor promised, in return for this consideration, to procure an assignment of a large parcel of realty of which his wife held the title. The. transfer was never effected, because of the refusal of the debtor’s wife. When this refusal was communicated to the creditor’s attorney, he, having lost all patience with the debtor, obtained an order to examine the said bank under the judgment obtained on March 6, 1908, for the vacating of which order this motion is made.


As a general matter, “‘in order to be eligible to protest, one who has not actually submitted an offer must be expecting to submit an offer prior to the closing date of the <mask>.’” Id. at 1308 (quoting MCI Telecomms. Corp. v. United States, 878 F.2d 362, 365 (Fed. Cir. 1989)). In other words, the “prospective offeror” prong generally applies only in a pre-award protest. Aero Spray, Inc. v. United States, No. 21-1079, 2021 WL 5023371, at *17 (Fed. Cl. Oct. 28, 2021). As a result, “‘the opportunity to qualify either as an actual or a prospective bidder ends when the proposal period ends.’” Rex Serv. Corp., 448 F.3d at 1308 (quoting MCI Telecomms. Corp., 878 F.2d at 365). “After the date for submission of proposals has passed, however, the would-be protestor can no longer realistically expect to submit a bid on the proposed contract, and, therefore, cannot achieve prospective bidderhood with regard to the original solicitation.” MCI Telecomms. Corp., 878 F.2d at 365.


This type of nondisclosure by national banks such as defendant is emphatically proscribed by Federal regulations. (See, generally, Regulation Q, 12 CFR Part 217.) Thus time or amount requirements for interest rates on deposits as well as penalties for early withdrawals must be “clearly and conspicuously stated” in all advertisements (12 CFR 217.6 [d], [e]) and must be “expressly called to the attention of the customer.” (12 CFR 217.4 [e].) In these contexts Federal regulation is clear: “No member bank shall make any advertisement, announcement, or <mask> *** that is inaccurate or misleading or that misrepresents its deposit contracts.” (12 CFR 217.6 [g].)


conveyed all of his ownership stake in his various companies to Blue Mountain. While Owen initially retained ownership of all of Blue Mountain’s membership shares (for four days), he did so by conveying his personal ownership in all of the Blue Mountain Entities to Blue Mountain LLC, a separate and distinct legal entity. (See Curci Investments, LLC v. Baldwin (2017) 14 Cal.App.5th 214, 220 [“Ordinarily a corporation is considered a separate legal entity, distinct from its stockholders, officers and directors, with separate and distinct liabilities and obligations. [Citation.] The same is true of a limited liability company (LLC) and its members and managers.”].) Contrary to Owen’s contentions on appeal, he received valuable consideration in return for his contribution by receiving a 100 percent membership interest in the new company. (See Hilb, Rogal & Hamilton Ins. Servs. v. Robb (1995) 33 Cal.App.4th 1812, 1824 (Hilb) [discussed below].) Owen unquestionably “sold” or “otherwise disposed of” his entire ownership stake in the Blue Mountain Entities when he conveyed that interest to Blue Mountain under the Contribution Agreement. (Ibid.) Owen seeks to avoid this result by asserting that Acolyte is “the party through which Blue Mountain sought to enforce the allegedly anticompetitive covenant.” Not so. The plaintiff in this case is Blue Mountain, the sole entity that acquired all of Owen’s business interests under the Contribution Agreement and assumed contractual obligations with Owen under the Employment Agreement at issue in this appeal. Owen also challenges whether Blue Mountain can enforce a non<mask> covenant that is contained in the Employment Agreement rather than the Contribution Agreement. As discussed above, the Contribution Agreement was part of a global joint venture comprised of four interrelated contracts that must be read together. Blue Mountain’s ability to


A summary of, that statute is set forth in Martindale Hubbell Law Directory of 1976 (vol VI, Law Digests, p 347) as follows: "Personal jurisdiction over nonresident individual or foreign partnership, or his or its executor or administrator, may be exercised where he or it, in person or through an agent: (1) Transacts business in state; or (2) commits tortious act other than defamation of character in state; or (3) commits tortious act outside state causing injury to person or property within state, if (a) regular doing or <mask> of business, persistent conduct, or revenue from within state, or (b) in interstate commerce, and expects or should expect act to have consequences in state; or (4) interest in real property in state. Jurisdiction based on any of these acts does not confer jurisdiction for unrelated cause of action. (52-59b). Constructive service on Secretary of State and registered or certified mailing to defendant’s last known address required (33-41 l[c], added by 52-59b).”


Further, that this child ten years of age at the time of the hearing and though baptized a Catholic and a religious follower of such faith until the age of eight years, converted by the mother to another faith (Jehovah’s Witness) has often been observed on the streets and at various homes at different hours of the day or night carrying a bag of their literature for sale, <mask> or distribution among followers and the general public.


In addition, the trial court erred by not entertaining, and granting Merrill Lynch’s application for a preliminary injunction (CPLR 7502 [c]; see, Blumenthal v Merrill Lynch, Pierce, Fenner & Smith, 910d 1049), due to the likelihood of the respondent’s success on the merits, given the nature of the employment and non-<mask> agreements, the waiver signed by the petitioner, and the prejudice which would flow from denying this relief. Concur—Murphy, P. J., Sullivan, Rosenberger and Ross, JJ.


Subsection (b) of the online-solicitation-of-a-minor statute was amended in 2015. See Acts 2015, 84th Leg., ch. 61 (S.B. 344), §§ 1, 2, eff. Sept. 1, 2015. Subsection (b) now provides that a person commits an offense if, with the intent to commit one of several specified sexual offenses, he intentionally communicates in a sexually explicit manner with a minor or distributes sexually explicit material to a minor through an electronic or online message. Tex. Penal Code § 33.021(b) (West 2017). All references in this opinion are to the 2010 version of the online-<mask> statute.


The same principles have been applied by New York State and federal courts in the context of Internet defamation, which concluded that the posting of allegedly defamatory material outside New York about a New York resident on a Web site merely accessible in New York does not, without more, provide a basis for jurisdiction over a nondomiciliary for the purposes of CPLR 302 (a) (1) (see Gary Null & Assoc., Inc. v Phillips, 29 Misc 3d 245 [2010], citing Best Van Lines, Inc. v Walker, 490d 239 [2007]; SPCA of Upstate N.Y., Inc. v American Working Collie Assn., 74 AD3d 1464 [2010] [defendants were not subject to long-arm jurisdiction in a defamation action based on writings posted on their Web site]; see also Ehrenfeld v Bin Mahfouz, 9 NY3d 501 [2007] [defendant, a Saudi Arabian citizen, did not “transact business” in New York by, inter alia, posting the result of his English libel action against New York plaintiff on his Web site]). Instead, a nonresident’s Internet activity must be expressly targeted at or directed to the forum state to establish minimum contacts necessary to support the exercise of personal jurisdiction (Best Van Lines, supra; see Capitol Records, LLC v VideoEgg, Inc., 611 F Supp 2d 349 [SD NY 2009]; cf. Intellect Art Multimedia, Inc. v Milewski, 24 Misc 3d 1248[A], 2009 NY Slip Op 51912 [U] [Sup Ct, NY County 2009] [holding that plaintiff alleged sufficient facts to show that defendant transacts business in New York through its “Ripoff Report” *337Web site, given the high level of interactivity of the Web site, the undisputed fact that information is freely exchanged between Web site users, defendant’s alleged active role in manipulating users’ information and data, and defendant’s <mask> of companies and individuals to “resolve” the complaints levied against them on the Ripoff Report]).


Vital then moved for a preliminary injunction. It asked the district court to enjoin its former employees from violating their non-compete covenants by working for Elegance or another com- petitor during the one-year term of those covenants, “as such pe- riod may be extended due to tolling.” It also sought to enforce Al- fieri’s employee non-<mask> covenant. And it asked that Ele- gance be enjoined from interfering with the former employees’ re- strictive covenants and from using any confidential information be- longing to Vital. Perry settled with Vital before the district court ruled on the motion. After a two-day evidentiary hearing, the district court granted the motion in part. It first determined that the restrictive covenants were valid and enforceable under Florida law. See FLA. STAT. § 542.335. Specifically, it concluded that the covenants were justified by Vital’s “legitimate business interests” in its product for- mulae, in its other confidential information, and in its customer re- lationships. See id. § 542.335(1)(b). And it rejected the argument that Vital was required to “identify specific customers” to establish a legitimate business interest in its customer relationships. The district court then concluded that Vital “ha[d] shown a substantial likelihood of succeeding on its claims against Maros . . . but not [against] Alfieri or LaRocca.” It explained that Vital had “presented . . . more than sufficient evidence . . . that Maros ha[d] breached the [agreement] she signed” because the evidence estab- lished that “Maros accepted a position at Elegance while still em- ployed [by] and collecting [a] salary from [Vital].” And it reasoned USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 6 of 34


On June 14, 1988, Mr. Hamada solicited the consent of the limited partners to replacing him with Brady. The reason given for replacement was that it was "required” by a financing institution which was to refinance the existing mortgages on the property. A majority of the limited partners consented. The letter of <mask> did not indicate that Mr. Hamada would receive any consideration for such transfer.


Respondent’s final application concerns the lifting of the so-called gag order. Since the order was designed to prevent extrajudicial communication with the jury during the pendency *124of the <mask> trial, and it is not clear when those charges will be retried, the court sees no reason to extend the order. Although it is this court’s expectation that the contempt hearing will be scheduled for the near future, the court’s ruling that defendant is not entitled to a jury trial makes it unnecessary to continue the gag order with respect to that matter. Accordingly, the court’s September 22, 1999 order is lifted in its entirety.


The Grievance Committee now moves to confirm the report of the Special Referee to the extent that the charges were sustained, and requests that discipline be imposed accordingly. In this regard, the Grievance Committee disputes the Special Referee’s finding that the respondent made, without more, a “serious error in judgment.” Counsel for the respondent contends that, to the extent that “any discipline is imposed,” *33the Court should exercise leniency, and give “careful consideration” to the Special Referee’s findings, including, but not limited to, findings made with respect to the respondent’s credibility, and the absence of either venality, <mask> of the subject bequest, or any deliberate pattern of misconduct. Counsel also asks the Court to consider the mitigation offered, including, but not limited to, the respondent’s reputation for honesty and integrity, as well as his lack of any prior disciplinary history.


A proposal is submitted at a point in time and is evaluated over what is often a lengthy period. The Court agrees, of course, that an offeror must have a reasonable basis for all facts and representations made in its proposal — and may not knowingly or recklessly include false statements of material fact. A court’s assessment of an offeror’s knowledge of facts and representations, however, is made with respect to the point in time at which the offeror submitted its proposal. Software versions may change, planned approaches to contract performance might be altered or improved by the time of contract award, and employees may come and go — none of those are problems per se. Rotech Healthcare, Inc. v. United States, 121 Fed. Cl. 387, 400 (2015) (“Even if [the awardee] ultimately did hire individuals other than those listed in its proposal, . . . that would not be evidence that [the awardee] misrepresented itself given the fact that so much time has passed since it submitted its proposal.”); Wackenhut Int’l, Inc. v. United States, 40 Fed. Cl. 93, 99 (1998) (“If at some point after submitting its proposal [the awardee] decided to change its approach to securing the required license, such a change does not constitute fraudulent misrepresentation.”). And, where contemplated in a <mask>, the government typically has discretion to engage in discussions to verify proposal details, to extract more details and ultimately include them into an awarded contract, or to seek final proposal revisions (“FPRs”) for the purpose of confirming key personnel. But, the Court will not conjure up a rule — and particularly not one untethered from a statue, regulation, or Federal Circuit decision — requiring offerors or quoters to routinely update the government when facts and circumstances change post-proposal or quote submission, during the course of the government’s evaluation period.39


The first issue to be resolved is whether the defendant may constitutionally be subject to prosecution for the con*740duct here charged. The court rejects any contention that the defendant’s conduct may be equated with speech, within the meaning of the First Amendment. The defendant’s conduct in soliciting these juveniles to have sex with other juveniles for pay; asking them to undress; and showing them sexually explicit photographs is clearly of a sort that is within the police power of the State to punish. (See, e.g., Penal Law, §260.10, subd 1; §§235.05, 235.21, 230.30, subd 2; §230.15, subd 1.) The defendant was not engaged in the dissemination of ideas, and his conduct was not a form of protected expression. (See United States v O’Brien, 391 US 367; cf. Tinker v Des Moines Ind. Community School Dist., 390 US 942; Kingsley Pictures Corp. v Regents, 360 US 684.) The fact that the defendant may have intended to photograph the boys, for purposes of commercial distribution, does not necessarily bring his activities within the parameters of the First Amendment. (See People v Radich, 26 NY2d 114; People v Smith, 44 NY2d 613, 623.) Unlike the Ferber case, the defendant here was not charged with engaging in the dissemination of any book, film, photograph or other expressive visual representation, for which he was prosecuted based upon its content. The defendant’s crime was that he attempted to employ juveniles to engage in sexual conduct purportedly to be subsequently depicted in photographs or on film. The focus of the prosecution here is not upon the probable content of the photographs which the defendant may have subsequently produced, but upon the deleterious effects of the <mask> and inducement to perform such sexual conduct upon the well-being of the minors themselves. (See, e.g., Education Law, § 3229, subd 7; Labor Law, §§ 130-133; Casey v Kastel, 237 NY 305.)


Zelda Jonas, J. On February 11, 1997, a criminal proceeding was scheduled for trial before the Honorable Peter B. Skelos in the First District Court, 99 Main Street, Hempstead, New York, under information No. 15390/96 charging the defendant, Jon Christian Sajous, with the crime of criminal <mask> in the fourth degree (Penal Law § 100.05 [1]) and attempted tampering with a witness in the third degree (Penal Law §§ 110.00, 215.11 [1]). The allegations in the information provide in sum and substance that "the defendant, an attorney representing [J.W.] on charges pending in Nassau County Court, attempted to prevent Adolfo Smith from testifying against [J.W.] by engaging Gilbert Pagan to threaten Smith with physical injury should Smith testify.” Attached to the information is a sworn supporting deposition from Gilbert Pagan alleging, insofar as it is pertinent to this application, that: "On May 6, 1996, I went with my attorney, Jon Christian Sajous, to the District Court Courthouse on Main Street in Hempstead, NY. When we left the courthouse, I gave Sajous a ride back to his office. At that time, Sajous asked me to contact a person who is a witness against another client of his, [J.W.]. Sajous told me that he wanted the witness, Adolfo Smith, threatened. Sajous told me that he wanted to be certain that Smith would be so afraid of being beaten up that he would not testify against [J.W.] in [J.W.’s] robbery case.”


As to what is known as the one thousand dollars ($1,000) claim upon the Carrothers note, the facts are briefly as follows: There was held by the petitioner and the deceased, as trustees for the benefit of the deceased as life tenant and the petitioner as remainderman, this property which is known as the Carroth*300ers note. The petitioner was an officer in an insurance company in this city against which a judgment had been obtained. For the purpose of enabling the. company to appeal and stay the execution of a judgment against it an undertaking was made,, which was signed by the deceased. This case had been finally affirmed by the Court of Appeals and it became necessary to. pay the judgment thereon. The insurance company was practically insolvent and it is apparent that the petitioner was making efforts to raise the money in different directions to pay this judgment, and thus save his sister from the necessity of meeting the heavy obligation which she would incur from having-signed this undertaking. Being unsuccessful in raising the money in any other way, the petitioner .and the deceased raised it on this Oarrothers note, which was given to the petitioner and with which he paid the judgment in question, thus relieving his sister, the deceased, from any further liability under her undertaking. It is now the claim of the petitioner that this action by her in disposing of the trust fund deprived him of his right to the same as a remainderman and that, therefore, he is entitled to the judgment he has obtained against her estate. This is not only unconscionable, but is little short of actual villainy. Without reviewing the evidence in detail it is perfectly apparent that the deceased, when she went upon this undertaking, did so at his <mask> and under the moral, obligation, if not the legal obligation, that she would be saved harmless therefrom ;- and, when the money was raised on this Oarrothers note, in which he was the remainderman, he acquiesced in its use for this purpose, and the only person who- really had cause for complaint was the deceased, because the trust fund which was created for her benefit was invaded to this extent. Therefore-, this does not constitute a debt of the deceased which can be made the basis of this proceeding.


In People v. Milne (supra) the court was interpreting an ordinance of the City of New York which regulated taxicabs within its boundaries pursuant to the provisions of section 436-2.0 of the Administrative Code of the City of New York. The provisions of that statute are similar to the Hempstead Taxicab Ordinance. It has frequently been held that a vehicle not plying for hire, but rather operating solely in response to previous engagements, need not be licensed (People v. Sullivan, 199 Misc. 524, affd. 303 N. Y. 757; Yellow Taxicab Co. v. Gaynor, 82 Misc. 94, affd. 159 App. Div. 893; People v. Cuneen, 94 Misc. 509; People v. Milne, supra). However, regardless of the apparent purpose to which the vehicle is put, if it actually is used as a taxicab and is soliciting business, a license can be required (People v. Reser, 297 N. Y. 922). The enabling statute (Village Law, § 91, subd. 1) for the Hempstead ordinance requires two elements to be present, namely running on the streets for hire and <mask>. Insofar as section 345 of the Ordinances of the Village of Hempstead requires a license for taxicabs running on the streets for hire without the requirement of plying for trade, it is invalid.


On December 19, 2013, in response to the election objections,38 the Board issued an order in Gerawan Farming, Inc . (2013) 39 ALRB No. 20, to indicate which matters would be set for hearing. The Board determined that the objections alleging the employer unlawfully instigated or significantly assisted the decertification campaign would be set for a hearing.39 Additionally, the objection alleging disparate treatment would also be set for hearing, conditioned on the outcome of the General Counsel's pending investigation.40 Many of the other objections were also set for hearing, conditioned on the outcome of the General Counsel's investigation thereof, but with the further proviso that, as to such other *118objections, "a ballot count" would be required to determine whether the misconduct at issue "had a tendency to affect free choice in the November 5, 2013 election." (Id . at pp. 5-15.) Among the specific claims of objectionable conduct as to which a ballot count would have to be considered was the alleged employer support *1158of anti-UFW protests (including the October 2, 2013 bus trip), the one-day piece-rate increase, and the claims of direct dealing or <mask> of grievances. (Id. at pp. 5-13.)41


*836That argument ignores the difference in the language between the crimes of receiving unlawful gratuities and ones related to bribery and bribe receiving. The essence of the crime of receiving unlawful gratuities is the action of the public servant in soliciting, accepting or agreeing to accept a benefit. He or she need not actually receive the gratuity in order to have committed the crime; the crime is complete upon the <mask> or agreement to accept. The essence of the crimes of bribery or bribe receiving, on the other hand, “is not the payment of money, but rather the ‘agreement or understanding’ under which a witness accepts or agrees to accept a benefit.” (People v Harper, 75 NY2d 313, 317 [1990]; see also People v Bac Tran, 80 NY2d 170, 177-178 [1992].) Those crimes are complete when an agreement or understanding has been achieved, at least in the mind of defendant; the bribe giver or the bribe receiver, as the case may be, has, however, attempted to commit that crime by the mere offer or solicitation of the bribe.


In this stage of the proceedings, when the appellants were about entering his house, for the purpose of selling his furniture, the respondent, at the urgent <mask> of his friends, *177consented to propose a compromise with M’Donald. M’Donald offered to stop the sale, and procure a restoration, to the respondent of all the property that had already been sold, if he would pay him the amount of a judgment which he held against his son John Neilson, jun., for 1600 dollars, and also a note of his son,' for 800 dollars, endorsed by one Jacob Boyce, together with the judgment upon which the sale had taken place ; and the respondent finally consented to give him his bond and mortgage, for 2500 dollars, payable in five annual instalments ; and M’Donald accordingly restored to him the property sold, discharged his judgment, and assigned to him the securities against his son and Boyce. John Neilson, jun., and Boyce are both proved then to have been, and still to be insolvent.


Petitioner recovered a judgment in the amount of $16,009.38 against R & S Mehlman, Inc. (Mehlman) the judgment debtor which judgment remains wholly unsatisfied. It is uncontroverted that respondent Anchor Computers, Inc. (Anchor) has in its possession at the present time five magnetic computer tapes on which are encoded Mehlman’s mailing list, i.e., a list of thousands of names and addresses, which has commercial value and use in connection with customer <mask> through use of the mails. Mehlman delivered said tapes to Anchor to enable Anchor to perform certain computer services. These services consisted of data manipulation, modifi*453cation and assembly so as to create computer tapes which are capable of providing the names and addresses of purchasers of books; the subject matters thereof purchased, the date of last purchase, the amount of each purchase, the sex of the purchasers, the frequency of purchases, the customer sources, customer geography factors, including by State, by section centers, by zip code and so on. By reason of this work, labor and services, Anchor claims an artisan’s lien pursuant to section 180 of the Lien Law.


There are sound policy reasons why an indictment for both charges should be permitted. Any line drawn between <mask> and the attempted compulsion with which defendant is charged is bound to be perilously thin. Indeed, every solicitation would seem to imply some amount of coercion. As the Tenth Circuit Court of Appeals stated in United States v Hall (536d 313, 321): “[i]t cannot be said that in a bribery case there is never an aspect of coercion on the part of the bribee.” At least one other court has specifically held that solicitation of a bribe can be an attempted extortion. (State v Begyn, 34 NJ 35; see, also, United States v Phillips, 577d 495, 503, cert den 439 US 831; United States v Furey, 491 F Supp 1048,1057, cert den 451 US 913; Finley v State, 84 Okla Crim 309.)


JACKSON, Circuit Judge: By statute, certain federal employers are required to engage in collective bargaining with their employees’ representatives whenever there is a management-initiated change to the “conditions of employment affecting such employees.” Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7103(a)(12); see also id. §§ 7102(2), 7103(a)(14). Congress has defined “conditions of employment” to include “personnel policies, practices, and matters . . . affecting working conditions,” with certain enumerated exceptions. Id. § 7103(a)(14). And from the mid-1980s until the policy statement challenged here, the Federal Labor Relations Authority (“FLRA”) interpreted these statutory provisions to require collective bargaining over any workplace changes that have more than a de minimis effect on such working conditions. In September of 2020, the FLRA adopted a new threshold for when collective bargaining is required. Under the agency’s new standard, the duty to bargain is triggered only if a workplace change has “a substantial impact on a condition of employment.” U.S. Dep’t of Educ., 71 F.L.R.A. 968, 971 (2020). The petitioners are public-sector labor unions that challenge the FLRA’s decision to alter the bargaining threshold; they maintain that the FLRA’s new standard is both inconsistent with the governing statute and insufficiently explained, and is therefore arbitrary, capricious, and contrary to law. In the opinion that follows, we hold that the FLRA’s decision to abandon its de minimis exception in favor of a substantial-impact threshold was not sufficiently reasoned, and thus is arbitrary and capricious in violation of section 706 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A). We therefore grant the unions’ petitions for review and vacate the FLRA’s policy statement. BACKGROUND Before the fall of 2020, it was the longstanding view of the FLRA that, despite certain federal employers’ clear statutory duty to engage in collective bargaining over “conditions of employment,” 5 U.S.C. § 7103(a)(12), some public-sector management decisions were not subject to bargaining if they had only a “de minimis impact” on such conditions. Dep’t of Health & Human Servs. Soc. Sec. Admin., 24 F.L.R.A. 403, 407 (1986); see also Dep’t of Health & Human Servs. Soc. Sec. Admin. Reg. V, 19 F.L.R.A. 827, 834 (1985) (McGinnis, concurring); Dep’t of Health & Human Servs. Soc. Sec. Admin. Chi. Region, 15 F.L.R.A. 922, 924 (1984). The de minimis impact exception, the FLRA explained, “derive[s] from the Latin phrase ‘De minimis non curat lex,’ which . . . mean[s] that the law does not care for, or take notice of, very small or trifling matters[.]” Dep’t of Health & Human Servs. Soc. Sec. Admin, 24 F.L.R.A. at 407 & n.2 (quoting De Minimis Non Curat Lex, BLACK’S LAW DICTIONARY (5th ed. 1979)). In other words, the FLRA read 5 U.S.C. § 7103(a)(12) and (14) to imply a narrow exception to the statute’s collective bargaining requirement; one that pertained to management decisions that had only a trivial effect on conditions of employment. In October of 2019, the United States Departments of Education and Agriculture jointly requested that the FLRA issue a general statement of policy changing the impact threshold at which collective bargaining becomes mandatory. See 5 C.F.R. § 2427.2 (providing for general statements of policy or guidance). The Departments alleged several problems with the longstanding de minimis standard. For instance, they asserted that the de minimis policy was insufficiently concrete to permit consistent application, causing unnecessary litigation. They also asserted that “effective and efficient government would be promoted by the establishment” of a clearer standard, and they maintained that the ideal standard would be one under which only a “substantial change”—or, rather, a change having a “substantial impact” on conditions of employment—triggers the duty to bargain. Request for General Statement of Policy or Guidance at 3–4, J.A. 3–4. On September 30, 2020, the FLRA adopted the Departments’ proposed standard over a dissent and without soliciting public comment. In a four-page policy statement, the FLRA announced that “an agency will not be required to bargain over a change to a condition of employment unless the change is determined to have a substantial impact on a condition of employment.” Dep’t of Educ., 71 F.L.R.A. at 971. The FLRA stated that the “more than de minimis” test for determining when the duty to bargain is triggered is “not the appropriate standard,” id., in part because that test had resulted in bargaining “whenever management has made any decision, no matter how small or trivial” and is also “unpredictable,” id. at 969. The FLRA further faulted the initial agency decision to adopt the de minimis standard on the grounds that it was insufficiently explained. Id. at 970. With respect to the substantial-impact test, the FLRA suggested that this new standard would create “a line that [was] meaningful and determinative[,]” and noted that substantial impact is the governing bargaining threshold in the private sector. Id. The FLRA’s dissenting member argued that the agency’s adoption of a new bargaining threshold was an unjustifiable departure from past precedent and that there was a clear legal basis for the agency’s prior adoption of the de minimis standard. See id. at 972 (DuBester, dissenting). The dissent also maintained that the substantial-impact test was contrary to the governing statute, id. at 973, and that the FLRA’s policy change was not sufficiently reasoned or explained, id. at 973– 76. The petitioners in these consolidated cases—the American Federation of Government Employees, AFL-CIO, the National Treasury Employees Union, and the American Federation of State, County and Municipal Employees, AFL-CIO—are labor unions that represent employees of government agencies that the FLRA’s policy change covers. Each filed a timely petition for review of the FLRA’s policy statement, and we consolidated the petitions. The unions have standing as employee representatives whose “bargaining position” would be “fundamentally diminished” under the FLRA’s new interpretation, see Nat’l Treasury Emps. Union v. Chertoff, 452 F.3d 839, 853 (D.C. Cir. 2006), and we have jurisdiction over their petitions for review, see 5 U.S.C. § 7123(a). The unions challenge the FLRA’s policy statement on two grounds, both of which implicate APA standards. First, they argue that the new substantial-impact threshold rests on an impermissible reading of 5 U.S.C. §§ 7103(a)(12) and (a)(14); they contend, in particular, that removing management- initiated changes whose effects are more than de minimis but less than substantial from the scope of collective bargaining is contrary to the plain and unambiguous language of these statutory provisions. Second, the unions assail the FLRA’s policy statement adopting the substantial-impact standard as arbitrary and capricious. See 5 U.S.C. § 706(2)(A). In this regard, according to the unions, the FLRA’s explanation for dispensing with its old policy and adopting the new one was insufficient to support the policy change. DISCUSSION Our analysis begins with the petitioners’ arbitrary and capricious challenge. The petitioners also challenge the substantial-impact exception as contrary to the statute and unsupported by any canon that would justify its treatment as “inherent in most statutory schemes by implication.” See Ass’n of Admin. Law Judges v. FLRA (AALJ), 397 F.3d 957, 962 (D.C. Cir. 2005) (quoting Env’t Def. Fund, Inc. v. EPA, 82 F.3d 451, 466 (D.C. Cir. 1996)). Because we hold that the policy is unreasoned, we need not and do not reach the statutory claim. Cf. Shays v. FEC, 414 F.3d 76, 97 (D.C. Cir. 2005) (declining to assess a claim about the meaning of a statutory provision where the failure of the challenged action under the arbitrary and capricious standard offered a sufficient basis for decision). Under the arbitrary and capricious standard, “we must ensure that the [FLRA] ‘examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.’” AFGE v. FLRA (AFGE 2020), 961 F.3d 452, 456 (D.C. Cir. 2020) (alterations in original) (quoting Fred Meyer Stores, Inc. v. NLRB, 865 F.3d 630, 638 (D.C. Cir. 2017)). The key question is, at its core, whether the FLRA “engage[d] in reasoned decisionmaking.” Fred Meyer, 865 F.3d at 638 (internal citations omitted); see also FCC v. Prometheus Radio Project, 141 S. Ct. 1150, 1158 (2021). And while the FLRA certainly “may depart from its precedent,” in so doing, it “must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed.” AFGE 2020, 961 F.3d at 457 (quoting Nat’l Fed’n of Fed. Emps. v. FLRA, 369 F.3d 548, 553 (D.C. Cir. 2004)). The agency must also show that “the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better” than the previous policy. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (emphasis omitted). With these standards in mind and for the reasons explained below, we conclude that the FLRA’s decision to abandon its longstanding precedents and adopt the substantial-impact standard was not sufficiently reasoned in several critical respects. A The first problem with the FLRA’s reasoning is that its policy statement falls short on explaining the purported flaws of the de minimis standard. To start, the policy statement’s description of the problem it seeks to solve is inconsistent. At the beginning of its substantive discussion, the FLRA laments that “[it] has effectively extended the bargaining obligation under the de minimis test to . . . trigger[] an agency’s duty to bargain whenever management has made any decision, no matter how small or trivial.” Dep’t of Educ., 71 F.L.R.A. at 969. The policy statement explains that this purportedly ubiquitous misapplication of the de minimis standard to require bargaining in any and all circumstances has “drained” that standard “of any determinative meaning[.]” Id. In the preceding paragraphs, however, the policy statement’s background section highlights its concern that the de minimis standard is “unpredictable” and “has created uncertainty,” citing several examples of cases in which the FLRA concluded that a workplace change was de minimis and thus beyond the scope of bargaining. Id. at 969 & n.14; see also id. at 970 n.18 (explaining that the FLRA forewent <mask> of public comments “because we are well aware of the confusion sown by nearly thirty-five years of our caselaw”). It is not at all clear how the de minimis standard could both lead inexorably to the conclusion that all management decisions “no matter how small or trivial” must be subject to bargaining and at the same time yield unpredictable results, including, by the FLRA’s own telling, many instances in which the duty to bargain was not triggered. See id. at 969 & n.14. Yet that is how the FLRA’s policy statement reads: the existing standard both purportedly subjects every minor decision to review and is unworkable because it is impossible to predict. Even looking past this apparent contradiction, the FLRA’s claim that the de minimis standard’s unpredictability has “created uncertainty that has negatively impacted labor- management relations” is unconvincing on its own terms. Id. at 969 (internal quotation marks omitted). As evidence of the “vast differences of opinion among arbitrators, judges, and the [FLRA itself] as to what matters affect conditions of employment sufficiently to require bargaining,” the FLRA cites four pairs of decisions that involve purportedly similar facts in which the FLRA found certain management-initiated changes to be more than de minimis (and thus subject to bargaining) and others to be de minimis (and thus not). Id. at 969 & n.14. But closer inspection reveals that these divergent results are readily explained by distinguishable contexts. See id. at 973 (DuBester, dissenting) (“[T]he cases cited by the majority simply reflect the inherently fact-dependent nature of the de minimis exception.”). Take, for instance, the policy statement’s citation to two decisions about office and seating arrangements that the agency now claims were contradictory. In Social Security Administration, Baltimore, Maryland, the FLRA concluded that “changes in seating assignments . . . including the movement of four employees (one-fourth of all [bargaining] unit employees) and one employee[’]s[] loss of access to a window” when considered together were “sufficient to support the . . . conclusion that the changes in seating arrangements were more than de minimis.” U.S. Dep’t of Health & Human Servs., Soc. Sec. Admin., Balt., Md., 36 F.L.R.A. 655, 668, 688 (1990)). In GSA, Region 9, on the other hand, the FLRA determined that an employer’s decision to temporarily move a single employee to another building—after her union suggested that such a temporary move would benefit the employee—had, in light of “equitable considerations,” only a de minimis impact on her working conditions. 52 F.L.R.A. 1107, 1108–09, 1111–12 (1997). To describe these decisions is to distinguish them. And the latter decision, GSA, Region 9, indeed expressly distinguished the former as being about a “permanent relocation[] of employees that w[as] instituted by agency management for operational reasons,” rather than a temporary move at the employee’s union’s suggestion. See id. at 1112 (citing U.S. Dep’t of Health & Human Servs., Soc. Sec. Admin., Balt., Md., 36 F.L.R.A. at 655). The FLRA’s summary assertion that these decisions were irreconcilable and thus evidence of the de minimis exception’s unpredictability thus lacks merit. The FLRA’s other examples are more of the same. For instance, the agency speciously summarizes one of its decisions as holding that “[r]equiring [an] employee to give up a ‘second’ office while keeping [his] primary office” was “more than de minimis” and another as determining that “moving an employee permanently to a vacant office [was] held not to be more than de minimis.” Dep’t of Educ., 71 F.L.R.A. 969 n.14 (first citing U.S. Dep’t of the Air Force, Air Force Materiel Command, Space & Missile Sys. Ctr., Detachment 12, Kirtland Air Force Base, N.M., 64 F.L.R.A. 166, 173–74 (2009); and then citing Nat’l Treasury Emps.’ Union, Chapter 26, 66 F.L.R.A. 650, 653 (2012)). But these decisions too are readily distinguishable on their facts. U.S. Department of the Airforce concerned an employer’s decision to downsize the workspace of a trainer who was a member of the relevant collective bargaining unit. 64 F.L.R.A. at 173–74. In that case, the FLRA held that the employer’s decision to downsize the trainer’s primary office at the same time it took away a second workspace that he had used to conduct certain face-to-face training and store equipment— changes made on short notice and without relocation assistance—when viewed alongside problems with the new workspace, constituted a more-than-de minimis change. See id. In stark contrast, National Treasury Employees’ Union, Chapter 26, was not about the reassignment of a union employee at all; instead, it concerned a union’s challenge to an employer’s decision to assign an employee outside the bargaining unit to a vacant workstation in the same office as employees in the bargaining unit. 66 F.L.R.A. at 652–53. Unsurprisingly, the FLRA held that the mere presence of an employee outside the bargaining unit in the same office as unit members had only a de minimis effect on the union employees’ conditions of employment. Id. at 653. Once again, the FLRA’s evidence of an irretrievably broken standard falls flat. As this court observed once before, “there is little indication that the de minimis exception” has created the sort of “confusion” the FLRA now claims. AALJ, 397 F.3d at 963. Rather than demonstrate such confusion, the examples that the FLRA cites to frame the problem it seeks to address seem to us to demonstrate rigorous application by the FLRA of a fact- intensive standard to varying factual contexts. Put another way, far from demonstrating the de minimis standard is unworkable, the FLRA’s policy statement simply appears to demonstrate how it works. B The FLRA’s condemnation of the de minimis test also fails to grapple with the agency’s own past policy choices and this court’s decisions upholding them. In the policy statement under review, the FLRA insists that the agency’s initial adoption of the de minimis threshold back in 1985 was insufficiently explained and reasons that this initial failure supports the 2020 policy change. In this regard, the FLRA explains that the agency had used a substantial-impact standard for a few years before it adopted the de minimis threshold in 1985. And it calls the decision to discard the substantial-impact standard in favor of the de minimis threshold “specious” for failing to “provide any rationale as to why the substantial impact standard was incorrect.” Dep’t of Educ., 71 F.L.R.A. at 970 n.24. The FLRA further suggests that if a rigorous statutory analysis had been done in 1985, the agency would have discovered that “the de minimis standard is inconsistent with the purposes of the Statute.” Id. at 971. Thus, the FLRA seeks to cast its policy change as merely correcting thirty-five-year-old procedural and interpretive errors. That rationale cannot withstand scrutiny. It is true that before it adopted the de minimis exception in 1985 the FLRA had applied a substantial-impact standard like the one at issue here, apparently as a carryover from the executive-order regime that governed public-sector labor relations before the enactment of the Labor-Management Relations Statute in 1978. But the mere fact that the FLRA briefly used a substantial- impact standard soon after the agency’s creation does not provide inherent support for the present decision to discard thirty-five years of intervening precedent and return to that past policy. Indeed, Executive Order 11491, which governed before the Labor-Management Relations Statute, did not require bargaining at all. Instead, it directed agencies to “meet . . . and confer in good faith with respect to personnel policies and practices and matters affecting working conditions, so far as may be appropriate,” Exec. Order No. 11,491 § 11(a), 3 C.F.R. (1966-1970), which is in marked contrast to the Labor-Management Relations Statute’s requirement that agencies bargain over “any condition of employment,” 5 U.S.C. § 7114(b)(2); see also Nat’l Fed’n of Fed. Emps. v. FLRA, 369 F.3d 548, 554 (D.C. Cir. 2004) (“Congress passed the Federal Labor Relations Act to encourage collective bargaining between federal employees and their employers.”). And the FLRA has itself recognized that the Labor-Management Relations Statute is more protective of collective bargaining than was the Executive Order and practice thereunder. See Dep’t of Educ., 71 F.L.R.A. at 974 & nn. 42–44 (DuBester, dissenting). Furthermore, the FLRA’s characterization of its earlier decisions as lacking explanation for its adoption of the de minimis exception is misleading. In fact, as the dissenting Commissioner points out, id. at 974–75 (DuBester, dissenting), those earlier decisions expressly considered the question, and in light of Congress’s clear purpose of expanding public-sector bargaining rights, the mid-1980s FLRA specifically “rejected the ‘substantial impact’ test” in favor of the de minimis exception, Dep’t of Health & Human Servs. Soc. Sec. Admin. Chi. Region, 15 F.L.R.A. at 924. What is more, the agency explained back then that it was rejecting the substantial-impact threshold both because the de minimis test struck the correct balance between government efficiency interests and labor rights, see Dep’t of Health & Human Servs. Soc. Sec. Admin. Reg. V, 19 F.L.R.A. at 834 (McGinnis, concurring), and because “[t]he limited scope of Federal sector bargaining caused by external laws, rules, and regulations also demands that the [FLRA] not impose further limitations unless they are based on clear statutory authority and are buttressed by sound policy considerations,” Dep’t of Health & Human Servs. Soc. Sec. Admin., 24 F.L.R.A. at 406–07. And the FLRA has since reiterated the view that the de minimis standard is “the appropriate threshold” under the relevant statutory provisions. Soc. Sec. Admin. Off. of Hearings & Appeals, 59 F.L.R.A. 646, 653 (2004), aff’d, AALJ, 397 F.3d at 964. To be sure, the FLRA’s reasons for replacing the substantial-impact standard with the de minimis exception back in the mid-1980s were not tidily arranged in a single decision. But the FLRA’s present assertion that the agency had offered no “explanation or rationale to support the change” from the substantial-impact test to the de minimis standard, Dep’t of Educ., 71 F.L.R.A. at 970, is simply incorrect. Notably, even if the FLRA had failed to provide an adequate explanation for its adoption of the de minimis standard more than thirty-five years ago, any such failure would not absolve the agency of its present-day responsibility to explain its decision to jettison the precedents that apply the de minimis threshold. The FLRA cannot point to a latent and unchallenged purported defect in the original adoption of its prior policy and offer that as an independent basis for adopting a new one. Rather, the decision to adopt a new policy must be sufficiently explained on its own terms, because “[i]n administrative law, as elsewhere, two wrongs do not make a right.” Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 928 (D.C. Cir. 2017). We have long held that “we cannot condone the ‘correction’ of one error by the commitment of another,” id. (quoting Gray v. Mississippi, 481 U.S. 648, 663 (1987)), and we decline to do so here. Finally, to the extent that the FLRA now asserts that the de minimis standard must go because it is categorically “inconsistent with the purposes of the [Labor-Management Relations] Statute,” Dep’t of Educ., 71 F.L.R.A. at 971, that contention is plainly contrary to this court’s past interpretation of the statute. In AALJ, for instance, a union challenged the FLRA’s application of the de minimis exception to a new category of management decisions. The agency argued the exception was inherent in the statute, and thus urged us to hold that collective bargaining was not required for a de minimis change to conditions of employment. We agreed, concluding that an exception for de minimis effects on conditions of employment is “inherent in” the statute and thus “neither contrary to the text nor unreasonable in light of” the Labor-Management Relations Statute’s purpose. AALJ, 397 F.3d at 959, 962. Our holding in AALJ is a clear recognition of the appropriateness of a de minimis exception to the duty to bargain, as a matter of law. Thus, when the FLRA nevertheless reached the conclusion that the de minimis test is not “appropriate” for determining whether the duty to bargain is triggered, Dep’t of Educ., 71 F.L.R.A. at 971, it not only ignored its own decisions outlining the reasons for its adoption of the de minimis exception in the first place, but also “departed from precedent” that had expressly decided that the de minimis exception is consistent with the Labor-Management Relations Statute, AFGE 2020, 961 F.3d at 459. For this reason, too, we conclude the need for the policy change “is not sensibly explained.” Id. (internal quotation marks omitted). C Up to this point, we have focused on the deficiencies in the FLRA’s reasons for its conclusion that the de minimis standard was so problematic that it needed to be changed. Beyond the various ill-defined reasons that the FLRA offers for departing from the de minimis threshold, the policy statement under review also undertakes to explain why the FLRA now prefers the substantial-impact standard. The FLRA points to two principal reasons for this decision. And, once again, neither is sufficiently explained. The FLRA first heralds the substantial-impact standard’s bona fides by suggesting that it draws “a line that is meaningful and determinative” for agencies and their employees seeking to navigate labor negotiations. Dep’t of Educ., 71 F.L.R.A. at 970. And in its brief the FLRA further contends that its finding that the new standard will be more predictable and administrable is “precisely the sort of predictive judgment” to which this court must defer. FLRA Br. 63. But neither the FLRA’s challenged decision nor its brief on review analyzes the relative administrability of the substantial-impact and de minimis standards. This is a critical “gap in [the FLRA’s] reasoning[.]” AFGE 2020, 961 F.3d at 459. And the FLRA simply ignores the guidance and elaboration provided in its own opinions. See, e.g., Dep’t of Health & Human Servs. Soc. Sec. Admin. Region V, 19 F.L.R.A. at 834–35 (McGinnis, concurring) (identifying five factors informing application of the de minimis standard). It is especially striking that the FLRA does not provide a comparative analysis of the two standards or in its policy statement even argue that the substantial-impact standard used by the National Labor Relations Board (NLRB) in the private- sector context has in fact led to more predictable results, since, as noted above, the FLRA frames inconsistent application as the principal problem the new standard is designed to fix. There is no obvious reason to expect that labor unions and employers will disagree less frequently about whether any given management decision has a “substantial impact” on conditions of employment than they previously did over whether such a decision had a more than de minimis effect. But see Dep’t of Educ., 71 F.L.R.A. at 971. Indeed, these two standards share many characteristics that might lead one to expect just as much disagreement—and, for that matter, just as many “differences of opinion among arbitrators, judges, and the [FLRA] as to what matters affect conditions of employment sufficiently to require bargaining[,]” id. at 969 (internal quotation marks omitted)—when the substantial-impact threshold is applied. See also id. at 973–74 (DuBester, dissenting) (“The majority fails to explain how adoption of its new standard will produce decisions that are any less fact- dependent than those applying the current standard.”). Thus, the new standard that the FLRA has adopted is not the sort of “common sense” measure for “advanc[ing the decision’s stated] goals”—here, predictability and streamlined administration—that we have found adequate to withstand arbitrary and capricious review. Free Access & Broad. Telemedia, LLC v. FCC, 865 F.3d 615, 618 (D.C. Cir. 2017). To address this obvious shortcoming, the FLRA argues for the first time in its brief that the new substantial-impact standard will have more predictable results because the FLRA will be able to draw on fifty years of NLRB decisions applying the substantial-impact test. The FLRA does not explain in its brief or otherwise why the NLRB’s substantial-impact decisions would be easier to apply than the FLRA’s own thirty- five years of precedents using the de minimis test. But, regardless, this argument is forfeit because it was not raised “where it counts”—i.e., in the challenged decision itself. AFGE 2020, 961 F.3d at 457; see Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983) (“[C]ourts may not accept appellate counsel’s post hoc rationalizations for agency action.”). What remains is the FLRA’s bald assertion that its own “determination that the substantial impact test would draw a line that is [more] meaningful and determinative is precisely the sort of predictive judgment to which this [c]ourt accords heightened deference.” FLRA Br. 63 (internal quotation marks omitted). We fully recognize that we must defer to expert agencies’ “reasoned predictions about technical issues[.]” BNSF Ry. Co. v. Surface Transp. Bd., 526 F.3d 770, 781 (D.C. Cir. 2008). But there is nothing technical about the predictability assessment that the FLRA makes here, and we are not bound by the FLRA’s conclusory and counterintuitive assertions about the consistency with which its new standard is likely to be applied in subsequent adjudications, especially when the record contains no factual basis for making such a forecast. With respect to its consistency concern, the FLRA must at least explain why and how it has concluded that the substantial- impact threshold is “better” than the standard it was relinquishing. Fox Television, 556 U.S. at 515. It has failed to do so. The FLRA’s final tack is to invoke the NLRB’s longstanding use of a substantial-impact standard in the private-sector context, as an independent reason for the FLRA’s adoption of the same collective bargaining threshold. The FLRA’s policy statement asserts that, because “collective bargaining in the public sector” under the Labor-Management Relations Statute “must be narrower” than in the private sector, “[i]t is incongruous . . . [to apply] a standard more lenient than the test applied by the [NLRB] . . . to determine whether a change requires bargaining.” Dep’t of Educ., 71 F.L.R.A. at 970. In its brief, the FLRA adds that it is not just permitted but indeed required to consider NLRB precedents when it administers parallel provisions of its statute; in this regard, it points to our instruction that “when the [FLRA] departs from a familiar principle rooted in private sector precedent, it should either identify ‘practical distinctions between private and governmental needs’ that justify the departure, or offer some evidence in the language, history, or structure of the statute suggesting that Congress intended a different result.” AFGE v. FLRA (AFGE 1988), 853 F.2d 986, 992 (D.C. Cir. 1988) (citation omitted). But NLRB precedent cannot save the FLRA’s unreasoned and unreasonable determination to import the substantial- impact standard. To start, the FLRA flips the controlling question on its head. Unlike in AFGE 1988, we are not being called upon to review a decision to part ways with NLRB precedent in the first instance. Instead, we are evaluating the FLRA’s recent departure from its own longstanding precedents that since the 1980s have struck a balance that is different from the NLRB’s decisions. In other words, the baseline for our review is the FLRA’s longstanding and repeatedly reaffirmed decision to diverge from NLRB policy, which makes AFGE 1988’s explanation of what the FLRA must do to rationalize a new departure from NLRB precedent inapposite. The FLRA’s decision to adopt the NLRB’s substantial- impact test also fails to account for the agency’s own past assessments of how the differences between the public-sector and private-sector bargaining contexts inform the appropriate bargaining threshold. We have previously cautioned that the FLRA must “be careful to appreciate fully those distinctions between the private and public sectors that might necessitate a different legal analysis and conclusion” with respect to collective bargaining, since “the bargaining status of any given subject is determined by different statutory provisions and by different policy considerations.” Library of Cong. v. FLRA, 699 F.2d 1280, 1287 (D.C. Cir. 1983). The FLRA apparently took those distinctions into account in its 1986 decision in Department of Health & Human Services Social Security Administration, when it acknowledged the NLRB’s substantial-impact standard was “similar[]” to the FLRA’s de minimis exception, 24 F.L.R.A. at 406 n.1, but nevertheless opted to apply the de minimis standard. Critically, that decision highlighted “[t]he limited scope of Federal sector bargaining caused by external laws, rules, and regulations[,]” and observed that this context “demands that the [FLRA] not impose further limitations unless they are based on clear statutory authority and are buttressed by sound policy considerations.” Id. at 406–07 (emphasis added); cf. Library of Cong., 699 F.2d at 1287 & n.33 (explaining that “[t]he scope of collective bargaining is far broader in the private sector,” in terms of the categories of conditions subject to bargaining, since the Labor-Management Relations Statute “exclu[des] from the scope of federal sector bargaining [] matters provided for by federal statute, such as the pay rate or hours of employment”). Thus, the FLRA has held in the past that the relative substantive narrowness of the public-sector bargaining mandated under the Labor-Management Relations Statute in fact supports the de minimis standard notwithstanding the NLRB’s more stringent bargaining threshold. See Dep’t of Health & Human Servs. Soc. Sec. Admin, 24 F.L.R.A. at 407. That conclusion is precisely the opposite of the one that the FLRA reached here. The agency now ignores its earlier balancing of the factors unique to public-sector bargaining and fails to address the reasons that it previously found persuasive when it decided to select a test that differs from the one that pertains to private-sector bargaining. We conclude that, whatever the virtues of the FLRA’s present analysis concerning the statutory scheme for public- sector bargaining relative to its private-sector counterpart (which we do not here decide), the FLRA must acknowledge that in the past it reached the opposite conclusion about the need for congruity between the public- and private-sector bargaining thresholds. Thus, “[i]t is not enough” for the agency to now rest on abstract invocations of the “narrowness” of public-sector bargaining or “rely vaguely on [it]s general duty to interpret the statute with government efficiency in mind.” AFGE 1988, 853 F.2d at 993. Rather, the FLRA’s adoption of the substantial-impact threshold after it previously and specifically rejected that standard must be built on a more “solid foundation,” id., including an explanation of the agency’s view of why the new approach better comports with all of the provisions that Congress enacted to govern collective bargaining in the public sector. See, e.g., 5 U.S.C. § 7101(a)(1)(B) (finding that collective bargaining “contributes to the effective conduct of public business”). The FLRA’s failure to address its previous balancing of the Labor-Management Relations Statute’s priorities—a balancing that led it to adopt a different policy than that of the NLRB—is yet another indication that the FLRA has not, in fact, “engage[d] in reasoned decisionmaking.” Fred Meyer, 865 F.3d at 638; see 5 U.S.C. § 706(2)(A). CONCLUSION The cursory policy statement that the FLRA issued to justify its choice to abandon thirty-five years of precedent promoting and applying the de minimis standard and to adopt the previously rejected substantial-impact test is arbitrary and capricious for the reasons explained above. Consequently, the unions’ petitions for review are granted and the FLRA’s September 30, 2020 general statement of policy is vacated. So ordered.


(a) A person may be convicted under a law of this state of an offense committed by his or her own or another person's conduct for which he or she is legally accountable if: (1) Either the conduct or a result that is an element of the offense occurs within this state; (2) Conduct occurring outside this state constitutes an attempt to commit an offense within this state; (3) Conduct occurring outside this state constitutes a conspiracy to commit an offense within this state and an overt act in furtherance of the conspiracy occurs within this state; (4) Conduct occurring within this state establishes complicity in the commission of, or an attempt, <mask>, or conspiracy to commit, an offense in another jurisdiction that is also an offense under the law of this state; (5) The offense consists of the omission to perform a legal duty imposed by *463a law of this state based on domicile, residence, or a relationship to a person, thing, or transaction in the state; or (6) The offense is defined by a statute of this state that expressly prohibits conduct outside the state and the conduct bears a reasonable relation to a legitimate interest of this state and the person knows or should know that his or her conduct is likely to affect that legitimate interest of this state. (b) When the offense is homicide, either the death of the victim or the physical contact causing death constitutes a "result" within the meaning of subdivision (a)(1) of this section. Torres concedes that the State had jurisdiction to try him for murder pursuant to subsection (b) because the death occurred in Arkansas. However, Torres contends that the statute is void of language that would authorize a rape prosecution. The plain language of subsection (a)(1) provides that a person may be convicted under Arkansas law of an offense committed by his own conduct for which he is legally accountable if either the conduct or a result that is an element of the offense occurs within this state. In other words, based on the plain language of the statute, to establish jurisdiction over the predicate felony of rape, there are two options:


In short, section 12.0 does not prohibit the use of public streets to tow cars nor does it prohibit all <mask> of towing work. What it does prohibit is unregulated solicitation that interferes with the free choice by the damaged car owner who is in a poor position or condition at that moment to properly protect himself, the racing to the scene of an accident by tow car operators to first solicit and garner the towing contract with the resultant interference with the rights of other motorists and traffic in general, and the interference with the proper police investigation and other necessary police work at the scene of the accident. ■


The respondent’s counsel contends that there was no evidence that Johnson was the agent or servant of Smith or in any manner under his control, or subject to his order, or identified with him in business or purpose, and he cites, among other cases, Robinson v. New York Central and Hudson Riverr Railroad Company (66 N. Y., 11) and Dyer v. Erie Railway Company (71 N. Y., 228.) Those cases are distinguishable from the one before us. In the first, the plaintiff had accepted an invitation to take a ride with a person every way competent and fit to manage a horse. In the second ease, the plaintiff traveled in a vehicle over which he had no control, voluntarily and gratuitously, at the invitation of the owner and driver, who was competent to control and manage the team, and was traveling entirely on business of his own. In this case, the *36owner of tbe horse and vehicle was conveying the plaintiff at the request and <mask> of the latter, upon the latter’s own business, and there was evidence tending to show that at the time, the owner and driver was, to the knowledge of the'plaintiff, not in a fit condition to control his horse at so dangerous a place as the railroad crossing in question, and that he managed his horse in a careless and reckless manner. Notwithstanding the owner was not the agent of the plaintiff or employed by him for hire, yet he was acting at the plaintiff’s solicitation and in furtherance of the plaintiff’s business. In view of the circumstances, we think it was the duty of the plaintiff, in the exercise of proper care, to have remonstrated with him and to have used all proper effort and influence on his part, to effect a safe crossing of the defendant’s track. In the case of Robinson (supra), Chief Justice Chuboh, delivering the opinion of the court, remarked: “ It is not claimed but that Conlon (the driver) was an able-bodied, competent person to manage the establishment, nor that he was intoxicated, or in any way unfit to have charge of it.” From this it is to be implied that, in the view of the court, if the circumstances in this case respecting the competency and condition of the driver had existed in that, the court might have held the negligence of the driver imputable to the plaintiff.


In view of the defendant, subdivision 12 of section 63 of the Executive Law has no application to litigation arising from a typical consumer complaint, i.e., questions concerning the performance or durability of the product. Rather, defendant contends, subdivision 12 of section 63 was intended to regulate only such activities as pyramid sales, bait and switch sales and such statutory violations as misleading advertising (General Business Law, § 349) or violations of the Home <mask> Sales Act (Personal Property Law, art 10-A). While the Executive Law clearly applies to such activities, the language of subdivision 12 of section 63 does not require the restrictive interpretation urged by the defendant. Although the suit of the Attorney-General arises from the factual context of a consumer product complaint, the essence of the suit is not the quality of the product per se, but the knowledge of the defect and *374the attempt by GM to limit its liability by means of concealment and limited warranties for the defective product.


Mr. Cloutier has acknowledged that none of the three recipients in State’s Office of Acquisition Management to whom the plaintiff emailed its proposal “read, replied to, or forwarded the emails, or opened the attachments.” (AR 2674.) According to Mr. Cloutier, “Mr. Elsasser and Ms. Sutliff did not recognize the <mask> number, and as branch chief for the local guard branch Ms. Bellevue is routinely copied on proposal submissions sent to the cognizant contracting officers in her branch.” (Id.) Although Ms. Sutliff failed to recognize the solicitation number, the subject line of the plaintiff’s emails correctly provided 19AQMM21R0036 as the solicitation number. (See AR 841-54.)


This memorandum also reviews “best and final” offers solicited for site C. (Id.) Despite Dairyland’s prior ultimatum, Dairy-land declined to respond to this <mask>. Dairyland’s unresponsiveness may have indicated that its expressed immediate need for expansion space in the public market area was not so pressing or that its threat to move precipitously out of New York City was not entirely genuine. Moreover, Dairyland “put forward a very low, uncompetitive offer” for 155 Food Center Drive, indicating that Dairyland just assumed its ultimatum would garner this site or, instead, was “already half way out the door to New Jersey.” (Exhibit 12 at 1.) In any event, EDC had an 11.8-acre alternative site to both 155 Food Center Drive and site C to offer Dairyland.