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

Claiming that it was owed in excess of $4,000,000 on a $12,700,000 contract for the construction of a golf course, the builder filed mechanics liens and commenced foreclosure against the golf course owner.

The owner claimed that it was immune from suit. Why? Allow the New York Court of Appeals to explain:

“Defendant Lewiston Golf Course Corporation (Lewiston Golf) is an indirect, wholly owned subsidiary of the Seneca Nation of Indians, a federally recognized Indian tribe. We are asked to decide whether that corporation is protected from suit by the Seneca Nation’s sovereign immunity.”

This week, the Court of Appeals, affirming the decisions of lower New York courts, rejected the sovereign immunity claim. You can read the Court of Appeals decision here. Our earlier discussion of the lower court decisions can be found here.

By: Rob Harris

We have discussed on multiple occasions (see here, here and here) the lawsuits brought against Westchester County (New York)’s famed Quaker Ridge Golf Club by adjacent landowners who claim legal injury by the intrusion on their property of errant golf shots.

Last June, in a somewhat surprising (at least to me) ruling, a New York appellate court permitted neighbors to sue Quaker Ridge for nuisance because it failed to prevent golf balls from entering their yard, even though the neighbors purchased the property decades after the club was established.

The homeowners also sued the developer who sold them the land, claiming that it “fraudulently concealed the risks to the property posed by the neighboring golf course.” As to this claim, last week the New York appellate court (with different judges sitting on the panel) affirmed the trial court’s dismissal of the lawsuit.

According to the appellate court,

“New York adheres to the doctrine of caveat emptor and imposes no duty on the seller or the seller’s agent to disclose any information concerning the premises when the parties deal at arm’s length, unless there is some conduct on the part of the seller or the seller’s agent which constitutes active concealment…

“Here, [the developer] had no duty to disclose any information regarding the premises under the doctrine of caveat emptor… Moreover, any risk to the property posed by the incursion of golf balls was a matter readily ascertainable by the plaintiffs through the exercise of ordinary intelligence, and the documentary evidence submitted on the motion demonstrates that any such concerns were a matter of public record…”

 

 

By: Rob Harris

A newly filed federal class action lawsuit may bear watching.

Property owners on Callawassie Island, South Carolina allege that they became members of the golf club with the right to resign at any time. They contend that the board thereafter exterminated the ability to escape by improperly amending the club’s rules:

“When many property owners bought on Callawassie, they were told that they could choose to join the Golf Club, or not, or that they could resign or terminate their memberships. Through the surreptitious practice of changing the Club’s ‘Rules’ — rather than the public process of formally amending its bylaws— the Golf Club has manipulated its governing documents and eliminated all realistic and reasonable paths for members to resign their memberships. The Club claims that property owners (and their heirs) are not allowed to resign until they sell their property and transfer their membership to a person approved bythe Golf Club. This is a nearly impossible standard…”

The club has not yet filed its responsive pleading. Recognizing that speculation may prove wrong, the best guess is that the club will argue that the governing documents enabled it to make this change.

The question ultimately may be whether a substantive change such as that alleged could legitimately be effected through a procedure that permitted amendments to club rules.

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.

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