After early start, worst of flu season may be over

NEW YORK (AP) — The worst of the flu season appears to be over.

The number of states reporting intense or widespread illnesses dropped again last week, and in a few states there was very little flu going around, U.S. health officials said Friday.

The season started earlier than normal, first in the Southeast and then spreading. But now, by some measures, flu activity has been ebbing for at least four weeks in much of the country. Flu and pneumonia deaths also dropped the last two weeks, the Centers for Disease Control and Prevention reported.

"It's likely that the worst of the current flu season is over," CDC spokesman Tom Skinner said.

But flu is hard to predict, he and others stressed, and there have been spikes late in the season in the past.

For now, states like Georgia and New York — where doctor's offices were jammed a few weeks ago — are reporting low flu activity. The hot spots are now the West Coast and the Southwest.

Among the places that have seen a drop: Lehigh Valley Hospital-Cedar Crest in Allentown, Pa., which put up a tent outside its emergency room last month to help deal with the steady stream of patients. There were about 100 patients each day back then. Now it's down to 25 and the hospital may pack up its tent next week, said Terry Burger, director of infection control and prevention for the hospital.

"There's no question that we're seeing a decline," she said.

In early December, CDC officials announced flu season had arrived, a month earlier than usual. They were worried, saying it had been nine years since a winter flu season started like this one. That was 2003-04 — one of the deadliest seasons in the past 35 years, with more than 48,000 deaths.

Like this year, the major flu strain was one that tends to make people sicker, especially the elderly, who are most vulnerable to flu and its complications

But back then, that year's flu vaccine wasn't made to protect against that bug, and fewer people got flu shots. The vaccine is reformulated almost every year, and the CDC has said this year's vaccine is a good match to the types that are circulating. A preliminary CDC study showed it is about 60 percent effective, which is close to the average.

So far, the season has been labeled moderately severe.

Like others, Lehigh Valley's Burger was cautious about making predictions. "I'm not certain we're completely out of the woods," with more wintry weather ahead and people likely to be packed indoors where flu can spread around, she said.

The government does not keep a running tally of flu-related deaths in adults, but has received reports of 59 deaths in children. The most — nine — were in Texas, where flu activity was still high last week. Roughly 100 children die in an average flu season, the CDC says

On average, about 24,000 Americans die each flu season, according to the CDC.

According to the CDC report, the number of states with intense activity is down to 19, from 24 the previous week, and flu is widespread in 38 states, down from 42.

Flu is now minimal in Florida, Kentucky, Maine, Montana, New Hampshire and South Carolina.

___

Online:

CDC: http://www.cdc.gov/flu/

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Stocks end higher for sixth straight week, tech leads

NEW YORK (Reuters) - The Nasdaq composite stock index closed at a 12-year high and the S&P 500 index at a five-year high, boosted by gains in technology shares and stronger overseas trade figures.

The S&P 500 also posted a sixth straight week of gains for the first time since August.

The technology sector led the day's gains, with the S&P 500 technology index <.splrct> up 1.0 percent. Gains in professional network platform LinkedIn Corp and AOL Inc after they reported quarterly results helped the sector.

Shares of LinkedIn jumped 21.3 percent to $150.48 after the social networking site announced strong quarterly profits and gave a bullish forecast for the year.

AOL Inc shares rose 7.4 percent to $33.72 after the online company reported higher quarterly profit, boosted by a 13 percent rise in advertising sales.

Data showed Chinese exports grew more than expected, a positive sign for the global economy. The U.S. trade deficit narrowed in December, suggesting the U.S. economy likely grew in the fourth quarter instead of contracting slightly as originally reported by the U.S. government.

"That may have sent a ray of optimism," said Fred Dickson, chief market strategist at D.A. Davidson & Co in Lake Oswego, Oregon.

Trading volume on Friday was below average for the week as a blizzard swept into the northeastern United States.

The U.S. stock market has posted strong gains since the start of the year, with the S&P 500 up 6.4 percent since December 31. The advance has slowed in recent days, with fourth-quarter earnings winding down and few incentives to continue the rally on the horizon.

"I think we're in the middle of a trading range and I'd put plus or minus 5.0 percent around it. Fundamental factors are best described as neutral," Dickson said.

The Dow Jones industrial average <.dji> ended up 48.92 points, or 0.35 percent, at 13,992.97. The Standard & Poor's 500 Index <.spx> was up 8.54 points, or 0.57 percent, at 1,517.93. The Nasdaq Composite Index <.ixic> was up 28.74 points, or 0.91 percent, at 3,193.87, its highest closing level since November 2000.

For the week, the Dow was down 0.1 percent, the S&P 500 was up 0.3 percent and the Nasdaq up 0.5 percent.

Shares of Dell closed at $13.63, up 0.7 percent, after briefly trading above a buyout offering price of $13.65 during the session.

Dell's largest independent shareholder, Southeastern Asset Management, said it plans to oppose the buyout of the personal computer maker, setting up a battle for founder Michael Dell.

Signs of economic strength overseas buoyed sentiment on Wall Street. Chinese exports grew more than expected in January, while imports climbed 28.8 percent, highlighting robust domestic demand. German data showed a 2012 surplus that was the nation's second highest in more than 60 years, an indication of the underlying strength of Europe's biggest economy.

Separately, U.S. economic data showed the trade deficit shrank in December to $38.5 billion, its narrowest in nearly three years, indicating the economy did much better in the fourth quarter than initially estimated.

Earnings have mostly come in stronger than expected since the start of the reporting period. Fourth-quarter earnings for S&P 500 companies now are estimated up 5.2 percent versus a year ago, according to Thomson Reuters data. That contrasts with a 1.9 percent growth forecast at the start of the earnings season.

Molina Healthcare Inc surged 10.4 percent to $31.88 as the biggest boost to the index after posting fourth-quarter earnings.

The CBOE Volatility index <.vix>, Wall Street's so-called fear gauge, was down 3.6 percent at 13.02. The gauge, a key measure of market expectations of short-term volatility, generally moves inversely to the S&P 500.

"I'm watching the 14 level closely" on the CBOE Volatility index, said Bryan Sapp, senior trading analyst at Schaeffer's Investment Research. "The break below it at the beginning of the year signaled the sharp rally in January, and a rally back above it could be a sign to exercise some caution."

Volume was roughly 5.6 billion shares traded on the New York Stock Exchange, the Nasdaq and the NYSE MKT, compared with the 2012 average daily closing volume of about 6.45 billion.

Advancers outpaced decliners on the NYSE by nearly 2 to 1 and on the Nasdaq by almost 5 to 3.

(Additional reporting by Angela Moon; Editing by Bernadette Baum, Nick Zieminski, Kenneth Barry and Andrew Hay)

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New Focus in Mali Is Finding Militants Who Have Fled Into Mountains

Tyler Hicks/The New York Times

A fish market in Konna, Mali, that had been occupied by Islamist rebels. It was the seizure of Konna, in the Mopti region, that provoked France’s military intervention last month.

DAKAR, Senegal — Just as Al Qaeda once sought refuge in the mountains of Tora Bora, the Islamist militants now on the run in Mali are hiding out in their own forbidding landscape, a rugged, rocky expanse in northeastern Mali that has become a symbol of the continued challenges facing the international effort to stabilize the Sahara.

Expelling the Islamist militants from Timbuktu and other northern Malian towns, as the French did swiftly last month, may have been the easy part of retaking Mali, say military officials, analysts and local fighters. Attention is now being focused on one of Africa’s harshest and least-known mountain ranges, the Adrar des Ifoghas.

The French military has carried out about 20 airstrikes in recent days in those mountains, including attacks on training camps and arms depots, officials said. On Thursday, a column of soldiers from Chad, versed in desert warfare, left Kidal, a diminutive, sand-blown regional capital, to penetrate deep into the Adrar, said a spokesman for the Tuareg fighters who accompanied them.

“These mountains are extremely difficult for foreign armies,” said the spokesman, Backay Ag Hamed Ahmed, of the National Movement for the Liberation of Azawad, in a telephone interview from Kidal. “The Chadians, they don’t know the routes through them.”

These areas of grottoes and rocky hills, long a retreat for Tuareg nomads from the region and more recently for extremists from Al Qaeda in the Islamic Maghreb, will be the scene of the critical next phase in the conflict. It will be the place where the Islamist militants are finally defeated or where they slip away to fight again, military analysts say.

French special forces are very likely already operating in the Adrar des Ifoghas, performing reconnaissance and perhaps preparing rescue operations for French hostages believed to be held in the area, said Gen. Jean-Claude Allard, a senior researcher at the Institute for International and Strategic Relations in Paris. But African forces are likely to be assigned the brunt of the combat operations, going “from well to well, from village to village,” General Allard said.

The few Westerners who have traveled in this inaccessible region bordering Algeria say it differs from Afghanistan in that the mountains are relatively modest in size. But its harsh conditions make it a vast natural fortress, with innumerable hide-outs.

“The terrain is vast and complicated,” said Col. Michel Goya of the French Military Academy’s Strategic Research Institute. “It will require troops to seal off the zone, and then troops for raids. This will take time.”

The number of militants who remain is in dispute, with estimates varying from a few hundred fighters to a few thousand. They are becoming more dispersed and are hiding themselves ever more effectively, Western military officials say.

The French military has been flying fewer sorties over the region in recent days, “from which I deduce a lack of targets,” said a Western military attaché in Bamako, Mali’s capital, who was not authorized to speak on the record. “They are just not finding the same targets. Clearly they are hiding better and dispersing more widely.”

A ranking Malian officer stationed in the northern town of Gao said: “We don’t know how many there are. They have learned to hide where the French can’t find them.”

The militants are versed in survival tactics in the hills, supplying themselves from the nomads who pass through and getting water from the numerous wells and ponds, said Pierre Boilley, an expert on the region from the Sorbonne. Still, the sources of water are an opportunity for the French and Chadian forces, as they can be monitored without too much difficulty, experts said.

“It’s a sort of observation tower on the whole of the Sahara,” General Allard said. The fighters have had years to build installations, modify caves, and stock food, weapons and fuel, he said, and the precise locations of their refuges remain a mystery.

Even if the bulk of the militants have retreated into the mountains, pockets remain around the liberated towns of Timbuktu and Gao, said a French military spokesman, Col. Thierry Burkhard. Last week, French forces patrolling the area around Gao engaged in firefights with militants, some of whom fired rockets, officials said.

“We’re encountering residual jihadist groups that are fighting,” said Jean-Yves Le Drian, France’s defense minister.

On Friday, a suicide bomber blew himself up at a military checkpoint in Gao, wounding a soldier, an act that provided further evidence of the continued threat of the militants.

Adam Nossiter reported from Dakar, and Peter Tinti from Gao, Mali. Eric Schmitt contributed reporting from Washington, and Scott Sayare and Steven Erlanger from Paris.

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7 million iPhones and iPads have been jailbroken in just four days

The Evad3rs Jailbreak Team on Monday released their evasi0n jailbreak tool for Apple’s (AAPL) iPhone, iPad, and iPod touch devices running iOS 6.0 or iOS 6.1. Jay Freeman, the man behind the jailbroken app store known as Cydia, announced that nearly seven million iOS devices have been freed from Apple’s walled garden in only four days, Forbes reported. The astonishing number makes evasi0n the fastest-adopted jailbreaking solution of all time. As of Thursday night, numbers from Freeman’s alternative app store revealed that 5.15 million iPhones, 1.35 million iPads, and 400,000 iPod touches were jailbroken with evasi0n. Jailbreaking an Apple device is similar to rooting an Android smartphone or tablet, and allows greater customization and opens the door to features such as wireless tethering.

[More from BGR: Apple could release both the iPhone 5S and a five-inch ‘iPhone 6′ this year]

This article was originally published on BGR.com

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Tiger Woods & Lindsey Vonn Are 'Spending More Time' Together: Source

Buzz

By Steve Helling

02/09/2013 at 06:00 PM EST

Tiger Woods and Lindsey Vonn

Mick Tsikas/Reuters/Landov; Luis Guerra/Ramey

It was quite the gesture.

After Lindsey Vonn suffered a devastating injury during the Alpine World Championships in Austria, she got a bit of help from Tiger Woods. Walking on crutches, Vonn – who tore two ligaments in her right knee and fractured her shin when she crashed on Tuesday ­– boarded Woods's private jet to return home.

Is it a sign that the rumored relationship between Woods and Vonn is heating up?

"Tiger and Lindsey have been friends for a while, and nothing started out romantically at all," a source tells PEOPLE. "But they really have a lot in common and got closer and closer. He still refers to her as 'my very good friend,' but he's been spending more and more time talking to her – and talking about her."

Last month, Vonn's reps kept mum about the rumored relationship, telling PEOPLE that her "focus is solely on competing and on defending her titles and thus she will not participate in any speculation surrounding her personal life at this time."

But the source close to Woods tells PEOPLE that Woods, 37, and Vonn. 28, talk and text frequently.

"Tiger really does want a woman who he can have good conversations with," he says. "He wants shared interests and outlooks. He is finding that with [Lindsey]."

Woods made international headlines in 2009 when he was linked to dozens of women while still married to his ex-wife, Elin Nordegren.

Since then, he has dated sporadically, but struggled to find someone who wanted a relationship for the right reasons.

"She's not freaked out by his past, and that's really appealing to him," says the source. "He really does deserve to be happy. He has been flogging himself for three years, and it's good to see him moving forward."

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After early start, worst of flu season may be over

NEW YORK (AP) — The worst of the flu season appears to be over.

The number of states reporting intense or widespread illnesses dropped again last week, and in a few states there was very little flu going around, U.S. health officials said Friday.

The season started earlier than normal, first in the Southeast and then spreading. But now, by some measures, flu activity has been ebbing for at least four weeks in much of the country. Flu and pneumonia deaths also dropped the last two weeks, the Centers for Disease Control and Prevention reported.

"It's likely that the worst of the current flu season is over," CDC spokesman Tom Skinner said.

But flu is hard to predict, he and others stressed, and there have been spikes late in the season in the past.

For now, states like Georgia and New York — where doctor's offices were jammed a few weeks ago — are reporting low flu activity. The hot spots are now the West Coast and the Southwest.

Among the places that have seen a drop: Lehigh Valley Hospital-Cedar Crest in Allentown, Pa., which put up a tent outside its emergency room last month to help deal with the steady stream of patients. There were about 100 patients each day back then. Now it's down to 25 and the hospital may pack up its tent next week, said Terry Burger, director of infection control and prevention for the hospital.

"There's no question that we're seeing a decline," she said.

In early December, CDC officials announced flu season had arrived, a month earlier than usual. They were worried, saying it had been nine years since a winter flu season started like this one. That was 2003-04 — one of the deadliest seasons in the past 35 years, with more than 48,000 deaths.

Like this year, the major flu strain was one that tends to make people sicker, especially the elderly, who are most vulnerable to flu and its complications

But back then, that year's flu vaccine wasn't made to protect against that bug, and fewer people got flu shots. The vaccine is reformulated almost every year, and the CDC has said this year's vaccine is a good match to the types that are circulating. A preliminary CDC study showed it is about 60 percent effective, which is close to the average.

So far, the season has been labeled moderately severe.

Like others, Lehigh Valley's Burger was cautious about making predictions. "I'm not certain we're completely out of the woods," with more wintry weather ahead and people likely to be packed indoors where flu can spread around, she said.

The government does not keep a running tally of flu-related deaths in adults, but has received reports of 59 deaths in children. The most — nine — were in Texas, where flu activity was still high last week. Roughly 100 children die in an average flu season, the CDC says

On average, about 24,000 Americans die each flu season, according to the CDC.

According to the CDC report, the number of states with intense activity is down to 19, from 24 the previous week, and flu is widespread in 38 states, down from 42.

Flu is now minimal in Florida, Kentucky, Maine, Montana, New Hampshire and South Carolina.

___

Online:

CDC: http://www.cdc.gov/flu/

Read More..

Stocks end higher for sixth straight week, tech leads

NEW YORK (Reuters) - The Nasdaq composite stock index closed at a 12-year high and the S&P 500 index at a five-year high, boosted by gains in technology shares and stronger overseas trade figures.

The S&P 500 also posted a sixth straight week of gains for the first time since August.

The technology sector led the day's gains, with the S&P 500 technology index <.splrct> up 1.0 percent. Gains in professional network platform LinkedIn Corp and AOL Inc after they reported quarterly results helped the sector.

Shares of LinkedIn jumped 21.3 percent to $150.48 after the social networking site announced strong quarterly profits and gave a bullish forecast for the year.

AOL Inc shares rose 7.4 percent to $33.72 after the online company reported higher quarterly profit, boosted by a 13 percent rise in advertising sales.

Data showed Chinese exports grew more than expected, a positive sign for the global economy. The U.S. trade deficit narrowed in December, suggesting the U.S. economy likely grew in the fourth quarter instead of contracting slightly as originally reported by the U.S. government.

"That may have sent a ray of optimism," said Fred Dickson, chief market strategist at D.A. Davidson & Co in Lake Oswego, Oregon.

Trading volume on Friday was below average for the week as a blizzard swept into the northeastern United States.

The U.S. stock market has posted strong gains since the start of the year, with the S&P 500 up 6.4 percent since December 31. The advance has slowed in recent days, with fourth-quarter earnings winding down and few incentives to continue the rally on the horizon.

"I think we're in the middle of a trading range and I'd put plus or minus 5.0 percent around it. Fundamental factors are best described as neutral," Dickson said.

The Dow Jones industrial average <.dji> ended up 48.92 points, or 0.35 percent, at 13,992.97. The Standard & Poor's 500 Index <.spx> was up 8.54 points, or 0.57 percent, at 1,517.93. The Nasdaq Composite Index <.ixic> was up 28.74 points, or 0.91 percent, at 3,193.87, its highest closing level since November 2000.

For the week, the Dow was down 0.1 percent, the S&P 500 was up 0.3 percent and the Nasdaq up 0.5 percent.

Shares of Dell closed at $13.63, up 0.7 percent, after briefly trading above a buyout offering price of $13.65 during the session.

Dell's largest independent shareholder, Southeastern Asset Management, said it plans to oppose the buyout of the personal computer maker, setting up a battle for founder Michael Dell.

Signs of economic strength overseas buoyed sentiment on Wall Street. Chinese exports grew more than expected in January, while imports climbed 28.8 percent, highlighting robust domestic demand. German data showed a 2012 surplus that was the nation's second highest in more than 60 years, an indication of the underlying strength of Europe's biggest economy.

Separately, U.S. economic data showed the trade deficit shrank in December to $38.5 billion, its narrowest in nearly three years, indicating the economy did much better in the fourth quarter than initially estimated.

Earnings have mostly come in stronger than expected since the start of the reporting period. Fourth-quarter earnings for S&P 500 companies now are estimated up 5.2 percent versus a year ago, according to Thomson Reuters data. That contrasts with a 1.9 percent growth forecast at the start of the earnings season.

Molina Healthcare Inc surged 10.4 percent to $31.88 as the biggest boost to the index after posting fourth-quarter earnings.

The CBOE Volatility index <.vix>, Wall Street's so-called fear gauge, was down 3.6 percent at 13.02. The gauge, a key measure of market expectations of short-term volatility, generally moves inversely to the S&P 500.

"I'm watching the 14 level closely" on the CBOE Volatility index, said Bryan Sapp, senior trading analyst at Schaeffer's Investment Research. "The break below it at the beginning of the year signaled the sharp rally in January, and a rally back above it could be a sign to exercise some caution."

Volume was roughly 5.6 billion shares traded on the New York Stock Exchange, the Nasdaq and the NYSE MKT, compared with the 2012 average daily closing volume of about 6.45 billion.

Advancers outpaced decliners on the NYSE by nearly 2 to 1 and on the Nasdaq by almost 5 to 3.

(Additional reporting by Angela Moon; Editing by Bernadette Baum, Nick Zieminski, Kenneth Barry and Andrew Hay)

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IHT Rendezvous: IHT Quick Read: Feb. 9

After a failed attempt to set spending targets at a summit meeting in November and in a 24-hour marathon of talks this week, European leaders finally agreed late Friday to a common budget for the next seven years. The new budget, which is slightly smaller than its predecessor — the first decrease in the European Union’s history — reflects the climate of austerity across a Continent still struggling to emerge from a crippling debt crisis. James Kanter and Andrew Higgins report from Brussels.

Few things divide British eating habits from those of Continental Europe as clearly as a distaste for consuming horse meat, so news that many Britons have unknowingly done so has prompted alarm among shoppers and plunged the country’s food industry into crisis. A trickle of discoveries of horse meat in hamburgers, starting in Ireland last month, has turned into a steady stream of revelations, including, on Friday, that lasagna labeled beef from one international distributor of frozen food, Findus, contained in some cases 100 percent horse meat. Stephen Castle reports from London.

The coaches of England’s Premier League are an aggressively unstylish bunch, stalking the sideline in the most scrutinized sport in the world with wardrobes that speak less of Savile Row than of the remainder rack on the Island of Misfit Clothes. The way the coaches dress, there’s no mistaking the English Premier League sideline for a fashion runway. Sarah Lyall reports from London.

With only two weeks to go before national elections, the Italian campaign has become a surreal spectacle in which a candidate many had given up for dead, former Prime Minister Silvio Berlusconi, has surged. Although he is not expected ever to govern again, with his media savvy and pie-in-the-sky offers of tax refunds, Mr. Berlusconi now trails the front-runner, Pierluigi Bersani, the leader of the Democratic Party, by about five or six points, according to a range of opinion polls published on Friday. Rachel Donadio reports from Rome.

ARTS The auction of Impressionist and Modern art followed by Surrealist works that took place at Sotheby’s on Tuesday evening ended with 52 lots fetching £121 million. It will be remembered by auction house professionals as the second most successful sale in the field held at Sotheby’s London and, by some of those attending, as the strangest session in living memory. Souren Melikian reports from New York.

SPORTS If size or the weight of history were the sole determining factors in a soccer match, then you might wonder why Burkina Faso would even bother to turn up against Nigeria in the Africa Cup final. Rob Hughes reports from London.

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Einhorn case against Apple rests on unusual legal tactic

NEW YORK (Reuters) – Hedge fund star David Einhorn wants to force Apple Inc to share some of its huge cash reserves with investors, but his lawsuit rests on a U.S. securities rule that has little legal precedent.

Einhorn’s Greenlight Capital sued the iPad and iPhone maker in U.S. District Court in Manhattan on Thursday to try to prevent Apple from eliminating preferred stock from its charter. The suit is part of Einhorn’s bid to pressure Apple to use some of its $ 137 billion in cash to issue perpetual preferred shares that pay dividends to existing shareholders.

The suit contends Apple violated Securities and Exchange Commission rules that prohibit companies from “bundling” unrelated matters into a single proposal for a shareholder vote.

Establishing that Apple violated the rules could be tricky. Little to no case law exists on the question and the SEC’s own rule is relatively general with little guidance, legal experts said.

Still, James Cox, a professor at Duke University School of Law, thinks Einhorn “has a hell of good case.”

“I think he’s got Apple in the crosshairs,” he added, saying that it “strikes me as a fairly dramatic case of bundling.”

The hedge fund manager is seeking an injunction to block a February 27 shareholder vote on the proposal, saying Apple violated Section 14 of the Securities Exchange Act of 1934. Arguments are to be heard before U.S. District Judge Richard Sullivan on February 22. Apple has until February 15 to file a response with the court.

The proxy proposal at issue, Proposal No. 2, seeks to amend Apple’s articles of incorporation in three ways: by providing for majority voting for directors, establishing a par value for Apple stock and eliminating its ability to issue preferred stock.

Einhorn is represented by law firm Akin Gump Strauss Hauer & Feld, Greenlight’s long-time outside counsel. No lawyer for Apple is yet listed on the court docket and a representative declined to say who would represent Apple in the case.

On Friday, the California Public Employees Retirement System, the biggest U.S. public pension fund and owner of 2.7 million Apple shares, and influential proxy voting firm ISS Proxy Advisory Services both urged investors to vote in favor of the shareholder proposal in question.

“All shareholders should have a vote,” Anne Simpson, CalPERS Senior Portfolio Manager and Director for Corporate Governance said on CNBC. “We don’t want the board cutting a deal on the side with a hedge fund out of fear of a lawsuit that will cancel the annual meeting.

“This is a big issue that needs to be thought through carefully and we want the board to come to all shareholders and give a chance to have their voice heard.

ISS, which issues recommendations on how shareholders should vote on proxy proposals, generally believes the “bundling” of proposals was not in the best interest of shareholders, but supported the elimination of “blank check” preferred shares due to their potential to be misused as a takeover defense.

“Though many investors have viewed Apple’s cash holdings as excessive and wanted to see more of it returned to shareholders, that view may not be universally held: other investors may prefer to see the cash (or at least a large portion of it) deployed for investments and acquisitions,” it said in its Friday statement.

HOW WILL APPLE RESPOND?

It is unclear how Apple will respond in its formal reply to the lawsuits. On Thursday, Apple said Einhorn’s lawsuit was misguided and that adoption of Proposal No. 2 would not preclude preferred share issuances in future.

“Currently, Apple’s articles of incorporation provide for the issuance of ‘blank check’ preferred stock by the Board of Directors without shareholder approval,” Apple said. “If Proposal #2 is adopted, our shareholders would have the right to approve the issuance of preferred stock.”

Einhorn, a well-known short-seller and Apple gadget fan, said in an interview with CNBC the company harbored a “Depression-era” mentality that led it to hoard cash and invest only in the safest, lowest-yielding securities.

Apple nearly went broke in the 1990s before Steve Jobs returned and engineered a sensational turnaround, with products such as the iPhone and iPad that became must-haves for consumers around the world. The company’s near-death experience has led Apple to be exceptionally conservative with its cash.

Greenlight in its complaint said it supports two of the proposals, but not getting rid of preferred stock. Einhorn deems preferred stock superior to dividends or share buybacks and has separately put forward a proposal for an issuance of Apple preferred stock with a perpetual 4 percent dividend.

But as Apple’s proxy proposal is structured, Greenlight said, shareholders have “no choice but to either vote in favor of an amendment they oppose, or against an amendment they support.”

Few lawsuits have ever been filed challenging proposals under the rules, a situation some legal experts attributed to the normally passive nature of shareholders.

“In most cases you’re not going to get a lot of complaining about bundling,” said Brian Slipakoff, special counsel at law firm Duane Morris in Philadelphia.

In one of the few related lawsuits, the 2nd U.S. Circuit Court of Appeals in New York in 1999 recognized an implied private right of action by shareholders suing over alleged anti-bundling rule violations.

That precedent could back Einhorn in his legal standing to bring the case. The appeals court ruling was cited by Greenlight in additional court papers filed late on Thursday.

Francis Vasquez, a lawyer with the law firm White & Case who is not involved in the case, said Apple might argue that because the stockholder proposals in Proposal 2 are all amendments to the charter, they are properly related.

The California company has another five proposals up for a vote, which are not being challenged by Einhorn and do not involve amending Apple’s charter. Those measures focus on matters such as director elections and executive compensation.

“Apple’s first argument likely is going to be, ‘Look, these are all amendments we put in one place, they don’t have to do with the other items,’” Vasquez said.

The anti-bundling rules date from 1992. John Coffee, a professor at Columbia Law School, said the idea was to “prevent managements from bribing shareholders with a sweetener into voting for a proposal they would otherwise reject.”

The case is Greenlight Capital LP, et al., v. Apple Inc., U.S. District Court, Southern District of New York, 13-900.

(Reporting By Nate Raymond in New York. Additional reporting by Poornima Gupta; Editing by Martha Graybow, Tiffany Wu, Tim Dobbyn and Todd Eastham)

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Minka Kelly: 'I'm Not Worthy' of Acting with Oprah

By Jennifer Cress

02/08/2013 at 07:40 PM EST

Minka Kelly as Jacqueline Kennedy Onassis

Pacific Coast News

It's intimidating enough to play Jackie O, but Minka Kelly felt even more pressure to perform when she found out who was joining the cast of her latest film, The Butler.

"I'm not worthy. I feel so lucky and grateful. I was like, 'What am I doing here?!' " Kelly tells PEOPLE of starring alongside Robin Williams, Forest Whitaker, John Cusack, Vanessa Redgrave, Jane Fonda and more in the upcoming film, which tells the story of a butler who served eight presidents.

The movie also features another major star: the one and only Oprah Winfrey. "I didn't get to meet Oprah because our shooting schedules were different, but she's a pretty loved lady," Kelly says. "I have yet to hear a bad thing about her!"

Kelly found that the most difficult part of playing Jackie Kennedy was nailing the former first lady's distinct accent. "I think she spoke in a way she thought she should speak, so getting that down was hard. There's a musicality and rhythm to the way she speaks," Kelly explains. "I went to sleep listening to her."

Another tough task? Slipping into the retro costumes. "My body is so different from her because I have curves, so fitting into those vintage clothes was actually really hard," she shares. "Also it was hot – and there was a lot of wool!"

Jennifer Graylock / Getty

But Kelly had no issue slipping into the stunning Oscar de la Renta gown (left) she strutted down the runway in at the Red Dress Collection fashion show in N.Y.C. on Wednesday night. The actress walked for the second year in a row in honor of The Heart Truth campaign, which encourages women to monitor their heart health.

For the month of February, Diet Coke will donate $1 for every person who uploads a heart-inspired photo to Twitter or Instagram using the hashtag #showyourheart. Visit to dietcoke.com/showyourheart for more information.

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