Welcome

I have discovered that there is no shortage of interesting, sometimes humorous and occasionally outright quirky legal disputes that have a golf connection. Please enjoy

I also invite you to join the Golf Dispute Resolution Linked In group, which you can access here.

Please don’t hesitate to share ideas for either the blog or the Linked In group.

By way of background, I am an attorney who serves as general counsel to a financial services company.  I also frequently serve as a mediator and arbitrator. And, of course,  I enjoy golf, most often at the Yale Golf Course. You can learn more about my experience here.

Now, for the required disclaimer, so I can remain in the good graces of the legal ethics powers-that-be:  This website, which may constitute Attorney Advertising in some jurisdictions, is for informational purposes only and does not constitute legal advice.

Best,

Rob Harris
rharris@golfdisputeresolution.com
914-482-2448

 

 

By: Rob Harris

In the words of Clint Eastwood, “a man’s got to know his limitations.”

This man knows he is exceedingly unqualified to advise golf clubs, in this challenging membership environment, how to engender goodwill among members and their guests. However…. I have a strong belief that what recently occurred at Massachusetts’ Weston Golf Club is not the way to go about it.

The full story can be read here. I offer a few excerpts:

“What began on a Saturday night in September as an attempt by the Weston GC president to enforce the dress code among a large group of members and guests having drinks in the clubhouse bar escalated into a scene fit for reality television. The resulting verbal altercation was so intense police were called to defuse the situation.

“It’s unclear what kind of denim people in the group were wearing that September night, but as Stephen and Charlotte Weeple walked toward the clubhouse around 10:45 p.m, they were intercepted by club president Tom Ferry. The Weeples are not members but they and other guests were meeting Weston GC members for a nightcap in the clubhouse bar.

“At 10:58, Weston police received a 911 call reporting a fist fight in progress.

“’When I arrived, I observed two men . . . engaged in a loud, verbal argument,’ patrolman Joseph Kozowyk wrote in his report, noting that ‘neither man had any signs of a physical altercation.’

“The incident broke up when the Weeples left Weston GC without joining their friends inside.

“Within days of the incident Ferry volunteered to take a one-month suspension. But after a number of other members organized a petition calling for a clubwide meeting, Ferry resigned as president in early November…

“Meanwhile, the Weston GC directors began their own investigation a week after the incident, having learned that others in the group the Weeples planned to join, including club members, also were wearing jeans that night. The board sought interviews with eight couples and subsequently suspended five couples for three months, for either wearing jeans or being involved in dress code violations.

“The 10 members still owe club fees during their suspension.”

 

By: Rob Harris

Be careful what you ask for.

For those who have questioned the wisdom of Vijay Singh’s seemingly quixotic lawsuit against the PGA Tour, a subpoena recently issued by the Tour reinforces their bewilderment.

By now, everyone presumably is aware that Vijay claims unfair treatment by the Tour regarding the actions taken in response to his use of deer antler spray.

With the litigation playing out like a slow motion car wreck, the Tour is seeking to obtain information from IMG, the management company that represents Vijay “concerning any agreement or potential agreement between Vijay Singh and any sponsor or potential sponsor.”

The Tour’s attorney offered the court the following justification for why it needs this information:

“In this action, Plaintiff Vijay Singh – a professional golfer and member of the TOUR – alleges that the TOUR wrongfully disciplined him as a result of his admission to using a product that contained IGF-1, a prohibited substance under the TOUR’s Anti-Doping Program. Mr. Singh asserts that, as a result of the TOUR’s actions, he has lost extensive endorsement opportunities with several companies.

“IMG is a sports agency that represents Mr. Singh in negotiations with sponsors. IMG thus possesses documents and information relevant to this action, including, inter alia, documents and communications related to IMG’s discussions with potential sponsors on behalf of Mr. Singh. … [T]he discovery sought from IMG is material and necessary for the defense of this action.7. Moreover, the TOUR cannot obtain this information directly from Mr. Singh because Mr. Singh would not have communications internal to IMG or between IMG representatives and potential sponsors…”

The information sought by the Tour may reveal a host of reasons for any decline in Vijay’s sponsorship marketability, some of which may be unflattering to Vijay. A risk of litigation is that internal dirty laundry gets shared and aired. Hard to see how this helps Vijay.

By: Rob Harris

After purchasing the Escondido Country Club, Michael Schlesinger commenced plans to turn the golf course into a housing development. The City Counsel thwarted the development by adopting an initiative declaring the land permanent open space.

Schlesinger responded by commencing a lawsuit and also by seeking to have the voters approve a referendum allowing him to proceed.

We discussed recently that election night did not turn out so well for Mr. Schlesinger, with the voters rejecting the proposed referendum.

Taking the electoral defeat in stride, Mr. Schlesinger stated at the time that “0ur team, and those who support us, will move forward to restore the accurate and original zoning of the land through the legal system. We are very confident that we will prevail in the California courts.”

Mr. Schlesinger’s November is proving to be better with the California judges than with its voters. This past Friday, Superior Judge Earl H. Maas III denied the city’s motion to dismiss Schlesinger’s lawsuit, and offered his view that the city and Schlesinger should explore a negotiated settlement. As Judge Maas stated,“each side seems certain they are going to win. It’s not so black and white to me. Nothing seems certain in this case except that it could be long and expensive for both sides.”

Words from the wise. Look for a negotiated resolution over the next few months.

 



By: Rob Harris

The attached article (which includes a copy of the federal court complaint) serves as a reminder to golf clubs that employee claims remain an ever present risk.

The plaintiff alleges that she brought her accusations of harassment to the club, but she was promptly terminated. Assuming the case does not settle, the courts ultimately will determine whether this allegation (along with the claim of harassment) is factually accurate.

While perhaps the club did conduct an internal investigation, that is not clear. The takeaway for golf clubs should be the importance of having appropriate protocols in place that provide for the investigation of claims.

From the online edition to South Carolina’s The Times and Democrat

“Police were contacted by the manager of Santee National Golf Course in regards to a complaint about an unrestrained animal on Nov. 4.

“A guest had been on the putting green when an adult male pit bull and a pit bull puppy walked onto the golf course. The manager showed police a picture he took of the guest’s hand that was badly scratched and bleeding after coming into contact with the puppy. The owners of the dogs were identified and informed of the incident.”

Fast forward. Golfer sues dog owner; golfer sues course owner; golf course owner sues dog owner. Lawyers make $$$. Golfer makes $$$ and shames foursome into giving him additional strokes due to impairment.

By: Rob Harris

The United States Court of Appeals recently issued a decision that may be of interest to physicians, to attorneys who represent them, and to members of the public concerned about health care costs.

As the court described, a federal law, called the Stark statute, “prohibits doctors from referring Medicare patients to a hospital if those doctors have certain specified types of ‘financial relationships’ with that hospital… And, in turn, the Stark statute prohibits that same hospital from presenting claims for payment to Medicare for any medical services it rendered to such referred patients.”

Similarly, as the court explained, “the Anti-kickback statute prohibits a hospital from financially inducing a person to refer a Medicare patient… [by] knowingly ‘offer[ing] or pay[ing] any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind to any person to induce such person . . . to refer an individual [for medical services] for which payment may be made in whole or in part under a Federal health care program’ such as Medicare.”

In the case before the court, a senior employee of a large medical network claimed that the network “made payments to six neurosurgeons and provided a golf-trip benefit to four other doctors to induce them to refer, or to reward them for referring, Medicare patients to the Defendants’ Medical Center in Naples, Florida.” The claimant asserted that, following these enticements, referrals indeed were made.

According to the court, the complaint … alleges that the Defendants flew several Naples, Florida doctors—at the Defendants’ expense and on Defendant HMA’s corporate jet—to an April 2008 golf tournament. The Defendants provided the doctors with free rental cars, tournament tickets, meals, and drinks. The Defendants ‘selected the physicians [for this 2008 trip] based on their ability and willingness to send patient referrals to HMA hospitals, particularly Collier Boulevard.’”…

“The Defendants provided the 2008 golf trip to ‘generat[e] patient referrals, including Medicare and Medicaid patients.” CEO Moebius described the golf trip as a ‘once in a lifetime business development tool’ for the Medical Center. Each flight had a single doctor and at least one hospital administrator, who discussed how the doctor could do additional business with HMA hospitals.”

The medical network moved to dismiss the claims against it, arguing that, even if the allegations were true, no viable cause of action had been asserted against it. For purposes of the motion to dismiss, the medical network acknowledged that “the 2008 golf-trip benefit provided to the doctors created financial-referral incentives in violation of the Stark and/or Anti-kickback statutes.”

However, the medical network argued that dismissal of the lawsuit was appropriate, because the complaint failed to allege “that the Defendants submitted or presented any false claim to the government for these referred patients or that the government paid any such claim.”

As the court explained, “healthcare providers do not violate the [law]simply by having a financial relationship with a doctor. Merely alleging a violation of the Stark and Anti-kickback statutes does not sufficiently state a claim  It is the submission and payment of a false Medicare claim and false certification of compliance with the law that creates … liability. And the Defendants’ interim claims were not false unless those claims submitted or presented were for Medicare patients who had been (1) referred by one of the ten doctors and (2) treated by the Defendants.”

Based upon this standard, the Court of Appeals concluded that the claimant’s detailed familiarity with the medical network established a basis for the case to proceed regarding events that occurred when he was still employed. For the period following his termination of employment, however, he lacked sufficient information to assert viable claims.


By: Rob Harris

Who bears the consequences of the actions of a bad actor? This question arises frequently, with victims turning to the courts to determine the answer.

This issue is squarely presented by Dustin Johnson’s recently filed lawsuit against the law firm with whom his (presumably) former friend Nat Hardwick was affiliated. As widely publicized, Johnson claims that he Hardwick solicited from Johnson a $3 million loan/investment for the law firm, for which Johnson would receive $4 million in return.

Hardwick allegedly misappropriated Johnson’s money, which Hardwick intended to use to help address other embezzlements he had committed.

Thus, Johnson and the law firm find themselves skirmishing over who will suffer the financial consequences of Hardwick’s bad acts.

In response to Johnson’s claims, the law firm and its principal partners have filed a motion to dismiss, attempting to separate themselves from Hardwick, while asserting that Johnson’s relationship should be viewed as solely with Hardwick and not with the firm or its partners.

The early posturing on the case will continue, until the court provides guidance.

By: Rob Harris

New Hampshire’s Owl’s Nest Resort & Golf Club was conceived as a residential and golf resort. In each of 2008 and 2009, sales of residential units exceeded $3 million, before plummeting the following year, with no sales occurring subsequently.

Many would argue the economy was to blame. The developers, however, attributed the project’s decline to plans to construct a new hydropower line through the property, arguing that is what scared off buyers. The developers brought suit against the Northern Pass power line project in 2013.

Recently, the New Hampshire superior court dismissed the lawsuit.

Without property sales, the Owl’s Nest developers have defaulted on bank loans and face imminent foreclosure.

By: Rob Harris

Thanks to Harvey Weiner, President of Search America, for alerting us to the guilty plea entered by the former general manager of New York’s Rye Golf Club.

The article announcing the plea and describing the larceny can be found here.  According to the article, Scott Yandrasevich “had been accused of stealing about $342,120 from the club over 5 ½ years by collecting money through a shell business called RM Staffing for services that were never provided.”

Our earlier discussion of this matter, with the prediction that “this will not end well for the general manager,” can be found here.

By: Rob Harris

Poor Dr. Sarris.

As recently described by the United States Court of Appeals,

“In 2003, Dr. John G. Sarris, owner of Defendant dental practice John G. Sarris, D.D.S., P.A., hired a marketing manager and gave him ‘free rein’ to market the dental practice. Two years later, this marketing manager was solicited by Business to Business Solutions (‘B2B’), which offered to send out mass fax advertisements. After receiving payment of $420.00 from Sarris, D.D.S., B2B sent 7,085 successful transmissions of an advertisement promoting the dental practice. Among these was the December 13, 2005 transmission to [Palm Beach Golf Center-Boca, Inc.], a golf equipment store. Despite its successful transmission, … no employee of Palm Beach Golf could recall actually seeing or printing the fax advertisement.”

This being America, Palm Beach Golf Center-Boca, Inc. opted to become the named plaintiff in a class action suit brought against Dr. Sarris’s dental practice. The lawsuit was brought under a federal statute that the court characterizes as a “‘bounty’ statute, specifically providing a prevailing plaintiff $500 in statutory damages for each unlawful fax sent, as well as treble damages under certain circumstances for intentional violations of the statute.”

In addition, Palm Beach Golf Center-Boca, Inc. claimed that Dr. Sarris’s dental practice unlawfully converted its fax machine, occupying the telephone line for the duration of the fax transmission and causing it to incur expenses for the paper and ink.

Dr. Sarris asked the lower court to grant summary judgment in his favor on the claims made against him, and the lower court agreed, ruling in his favor “immediately following oral argument.”

According to the lower court, “because there was no evidence that any employee of Plaintiff’s saw or printed the transmitted fax, … Palm Beach Golf was unable to demonstrate that it had suffered a sufficiently concrete injury” to pursue its claims. Moreover, there was no evidence that Dr. Sarris had authorized the fax to be sent to Palm Beach Golf Center-Boca, Inc.

The Court of Appeals, however, viewed things differently. As it explained, the specific injury targeted by the [statute] is the sending of the fax and resulting occupation of the recipient’s telephone line and fax machine,not that the fax was actually printed or read.” As for Dr. Sarris’s personal involvement, the court ruled that the facts were sufficiently in controversy that a trial would be necessary to determine his personal role.

And let’s not forget the claim by Palm Beach Golf Center-Boca, Inc. that it was harmed by the unauthorized appropriation of its telephone line and fax machine, for the duration of the one minute transmission and the cost of the paper and ink to print one page. While the lower court dismissed this claim “because ‘the paper and ink allegedly converted in the printing of a one-page fax had no underlying, intangible value, and . . . the value of the paper and ink was minimal,’” the Court of Appeals explained that “nothing in Florida law … requires that the property have monetary value in order to be converted. While Palm Beach Golf could not prove that any employee saw the fax in question or that it was printed by its fax machine, the record reflects that its phone line and fax machine were occupied on December 13, 2005 for one minute. Although the value of such an interruption is undoubtedly minimal, that does not warrant the dismissal of the claim.”

So, based on its ruling, the Court of Appeals has sent the case back to the lower court for reconsideration.

As for Dr. Sarris? According to his website, he is the principal of Elite Smile Designs, which appears to be a successful dental practice. Perhaps his fax campaign was worthwhile, after all.

One question perplexes me, however. Why would his marketing vendor ever think it made since to send a promotional advertisement to a golf equipment store?

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