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

We wrote the other day about Titleist’s patent infringement suit against a number of companies, including Kick X Golf Corporation.

Well, Kick X may or may not be a patent infringer–that obviously remains to be determined–but the company without doubt is a great marketer.

Kick X has found a way to leverage its status as a defendant with a press release praising its product. After acknowledging that “the Titleist lawsuit alleges that the dimple pattern on the Kick X Tour Z golf balls violates the pattern patented by Acushnet Company,” the press release goes on as follows:

“We understand why they are targeting us as we are a longer premium ball and one of the fastest growing brands on the market,” said Bob Koch, chief executive officer of Kick X Golf.

“The TourZ is Longest Premium Ball on the Market

“In an independent comparison conducted last summer at the highly respected Golf Laboratories, Inc. testing site in San Diego, the Kick X TourZ outdistanced the best premium balls from Titleist including the Titleist Pro-V1 and the Titleist Pro-V1x golf balls.

“The Kick X TourZ ball features a Metal Fuzion Core™ that creates an exceptionally high coefficient of restitution-the spring effect found in premium golf balls-thanks to a fusion of three proprietary metals that concentrates mass in the center of its core, which allows the ball to rebound more quickly when compressed at impact, producing additional launch speed and distance. An aerodynamic cover provides unmatched accuracy on tee shots, exceptional spin control on approaches and triple-layered construction that’s engineered to deliver a soft, superior feel around the green.”

Buy ‘em fast, cause if Titleist has its way, they may not be on the market for long.

Thanks to Harvey Silverman for sharing this.

By: Rob Harris

Golfers get enough of a bum rap about not being finely tuned athletic machines playing a “real” sport. Had Robert Germano prevailed in his lawsuit against American Golf Corporation, operator of LaTourette Golf Course on New York’s Staten Island, the perception might have been reinforced.

It appears that Mr. Germano suffered serious injuries while playing at LaTourette. His lawsuit, however, sought to hold the golf course operator liable for leaving clumps of wet grass on the golf course.

As a New York court recently explained in denying Mr. Germano’s claim, “plaintiff maintains that when he stepped out of the golf cart and began walking down hill towards his ball, he tripped and fell on a clump of wet grass that purportedly was left on the fairway after the grass had been cut. In essence, plaintiff argues that by cutting the grass while it was still wet, clumps of slippery grass were allowed to form on the fairway, thereby creating an unexpected danger for golfers playing the course.”

The court, however, rejected Mr. Germano’s claim, holding that the operator could not be held responsible for Mr. Germano’s misfortune. As the court held:

“the evidence presently before the court indicates that plaintiff was aware that the grass on the course was wet on the date of the subject accident. In fact, plaintiff admitted that the course was “saturated”, and “like a sponge”. As a result, it would be apparent to any experienced golfer such as plaintiff that the wet conditions existing on the course would operate to increase the risk of slipping. …[G]iven the undisputed testimony that a hurricane had struck the area only two or three days previously, it should have been perfectly obvious to even a novice golfer that the course would present less-than-optimal playing conditions on the day of the accident … Nevertheless, plaintiff proceeded to play 12 holes of golf despite the obviously wet and soggy condition of the course before reaching the 13th fairway. Under these circumstances, given his level of experience, plaintiff must be deemed to have accepted personal responsibility for any increased risk of injury posed by the condition of the course…. Being familiar with the topography of LaTourette, and having been forced to wait until defendant’s employees finished mowing the 13th fairway before resuming play, plaintiff will not be heard to disavow this knowledge, or the increased potential for slipping or tripping on matted clumps of wet grass that were likely to have been left behind by the mower.

“Furthermore, there is a dearth of evidence that any clumps of grass that may have been laid down by the mower presented such an unusual or unique condition to golfers, especially one who had witnessed the mowing, to constitute either a trap or hidden danger for which defendant may be held liable… Nor has this happenstance been shown to present such an extreme aberration as to be unforeseeable by golfers playing in the wet, It is well known that the game of golf is played outdoors, typically on uneven terrain composed of various hills, slopes, and depressions; that different parts of the course are covered with grasses of varying lengths; and that the condition of the course is continuously affected by the weather. In addition, it is well known that the grass clippings generated by mowing are permitted to fall to the ground. Thus, golfers can expect to encounter an assortment of conditions, including thunder storms, whose commonly appreciated risks they are deemed to assume by choosing to play. …

“Finally, plaintiff’s mere assertion that slippery clumps of matted grass may form on a wet golf course as a result of mowing is insufficient to demonstrate that their presence constitutes a trap or a snare. In the absence of any supporting evidence, plaintiffs claim that such conditions are beyond the scope of the risks inherent in playing golf in the wet represent pure speculation, conjecture or surmise, none of which will suffice to defeat a motion for summary judgment.”

Many thanks to Joe Laird, attorney at Wilson Elser, who claims to be “a devoted follower of your LinkedIn group and website” (Joe, you have to find a better use of your time!!), for bringing this decision to my attention.


By: Rob Harris

Titleist includes Jordan Spieth among its stable of players using its Pro V1x golf ball.  When  the endless winter indeed ended, and I teed up one of those babies on Saturday, little did I know that what made the ball in my hand so special was a ”triangular dipyramid dimple pattern.” Now I (and perhaps Masters Champ Spieth) know.

Titleist’s owner, Acushnet, has filed suit against nine companies, accusing them of violating it patented dimple design that ”reduce[s] both lift and drag, causing the ball to fly along a more penetrating ball flight.”

According to  Titleist, ”for an optimal golf ball trajectory, the goal is to develop a ball with an optimal balance of lift and drag forces, not merely to minimize drag while maximizing lift. A ball that simply maximizes lift risks flying too high, which can cause reduced accuracy and possibly reduced distance.”

The lawsuit seeks an injunction and damages from nine companies that allegedly sell golf balls with 318 dimples using the patented triangular dipyramid dimple pattern:  Zimventures LLC dba 3 Up Golf; Dixon Golf Inc.; Kick X Golf Corporation dba Kick X Sports; Lightning Golf; Monsta Golf LLC; Rife Golf; Vail Roberts LLC dba I Need The Ball; Vice Sporting Goods GmbH dba Vice Golf; Nexen Corp. dba Saintnine; and Ariva Golf.

Those possessing one of the allegedly infringing balls may wish to count the dimples. Or try to qualify for the Masters.

By: Rob Harris

The doom and gloomers proclaiming golf is a dying industry may want to pay attention to a zoning objections registered by Westlake Golf and Country Club against a prospective new neighbor.

Westlake is a 55 and older adult community. The prospective new neighbor is Oliverie Funeral Home.

Westlake residents have expressed the following concerns“It’s a constant reminder of death,” “it just reminds you that, you know, you don’t have that much time left,” and “that they’re gonna roll us across the street over to the funeral home.”

The local zoning board has approved the project, with approvals from the county and state still to be obtained.

By: Rob Harris

According to a published report, Bob Carson, who had the contractual right to operate Brooksville, Florida’s Quarry Golf Course, took a page from The Producers.

He is alleged to have sold the golf course management rights to two separate investors, taking down payments from both.

The claimed misconduct, however, doesn’t stop there. One of the purchasers, the one who actually started operating the facility, was dismayed to have received only $55 in receipts on day one, after Carson had told him the course generated annual revenue of $85,000 to $1335,000. He also allegedly misrepresented the duration of the operating lease as “up to 20 years,” when only two years remained. He discovered that workers had been paid under the table, and bills had not been paid, including several thousand owed for golf carts.

Without seeming too harsh as to the victims, one question does emerge: Does the phrase “due diligence” mean anything to you?

By: Rob Harris

The legal troubles for the beleaguered golf network start up Back9Network continue, with investors having filed suit claiming that, as recently as December 2014, they were provided with false assurances that ”the company was not going to go out of business, that the lights would not be turned off, that there would not be layoffs read about in the paper, ‘Not in a million years.’”

Back9 responded to the lawsuit with the following statement:

“Despite obstacles such as an unsubstantiated investor lawsuit, the current management team of Back9Network will continue devoting 100 percent of its efforts, without pay, to pursuing the best deal possible for all of its valued investors.

“It is regrettable that Mr. & Mrs. Ghio have taken this action against Back9Network and certain current and past employees of the Company,” Back9 said. “Just like every accredited investor in Back9Network, the Ghios were informed both verbally and in writing of the inherent risk of their investment, and they signed investment agreements to that effect regardless of such warnings. The Ghios frequently attended company events since their initial investment in 2012 and closely watched the business grow over the years. As recently as late 2014, the Ghios requested that a family member be given an internship at the company based upon their investment history, which was agreed to.”

In February, Back9Network announced it was suspending operations due to a lack of money. Back9 also is in the midst of arbitration proceedings with its former CEO, Jamie Bosworth.


By: Rob Harris

California’s newly issued restrictions on water use brings into even sharper focus a federal court decision recently entered that the Agua Caliente Band of Cahuilla Indians has a “reserved right” to groundwater.

Finding that “the federal government impliedly reserved groundwater, as well as surface water, for the Agua Caliente when it created the reservation,” the court’s decision precipitated the water agency to caution that “the Tribe could decide to use the public’s drinking water supply for any purpose it might wish, such as to build a lake, irrigate golf courses or build a water bottling plant, without regard to the impacts on others who rely on that supply.”

As for thirsty golf courses, the tribe maintains two of them at its Indian Canyons Golf Resort in Palm Springs. As to the right of the tribe to use the groundwater for golf course irrigation, the court’s decision states that the water agencies may argue against this “in later phases of this case.”

Meanwhile, the water agencies have indicated their intention to appeal the court’s decision.

By: Rob Harris

Kiawah says it didn’t; a lawsuit filed in federal court claims it did.

According to the lawsuit, Kiawah unlawfully underpaid service workers from Jamaica.

Kiawah’s president has responded with a written statement asserting that the allegations are “fraught with misrepresentations and basically untruths…. Anybody can write anything that forces us into a position where we have to defend ourselves, and we vigorously will.”

Stay tuned.

By: Rob Harris

As the winner of the Latin American Amateur Golf Championship, Matias Dominguez earned an invitation to play in the Masters. However, over the Christmas break, Dominguez, who plays collegiately for Texas Tech, participated in an exhibition in his home country of Chile, for which he recently received a payment. Under USGA rules, this would make him a professional, thereby disqualifying him from the Masters according to its rules and protocol.

According to a published report, Dominguez promptly returned the money, and has started a court proceeding in Argentina seeking to declare that his amateur status remains intact, while also seeking to have the USGA reinstate his amateur status (sounds somewhat like an annulment / divorce quandry).

Whether his invitation to Augusta will be revoked seems to be the question of the hour.

Read more here.

By: Rob Harris

The  Country Club of Rancho Bernardo faces a sexual harassment and wrongful termination / retaliatory discharge claim arising out of the firing of Kristen Dawson, a dining room supervisor who received emails from her boss, the subsequently hired clubhouse manager, Joe Furlow. As reported by the California Appellate Court, here is a sampling of the emails:

On December 12, 2010, Furlow sent an e-mail from “joe_furlow@yahoo.com” to Dawson’s Club e-mail address that said, “lets get you some golf lessons sometime soon, ok?!” Dawson interpreted this as Furlow offering to have a Club golf pro provide her with some lessons, so she responded on December 14, “I am definitely on board for golf lessons sometime soon!” On December 17, Furlow responded, “OK, happy to give you some anytime, lets figure out a day and maybe we could grab lunch or dinner too? Shoot me your personal e-mail too if thats ok, I don’t want this to be a work thing!” This e-mail “automatically made [Dawson] uncomfortable,” so she did not respond; instead, she discussed it with coworker Don Murders, her boyfriend, and her father.

On December 23, Furlow sent another e-mail from his yahoo.com account to Dawson’s Club address. He suggested meeting at an offsite driving range so that Club members would not distract them. Furlow added, golf “is certainly not . . . an easy game at times, but playing with friends and adding libations can enhance the experience.” Dawson was still uncomfortable, so again she did not respond.

On January 2, 2011, Furlow sent two more e-mails from his yahoo.com account to Dawson’s Club account. In the first, he asked, “Just checking to see if you are up for some golf lessons after work Tuesday?” In the second, he stated (in part), “There is a driving range one exit north of pomerado, we should go there Tuesday, ok? I am staying the night, so if you want, let’s go have some dinner and talk about dinner menu and wine list. Have you been to barrel room?” The e-mails made Dawson uncomfortable because Furlow was her “boss” and she interpreted the overnight reference as “insinuating something.”

Murders was with Dawson when she received the January 2 e-mail. Dawson wanted to write Furlow an e-mail “in a way that would not offend him, if he were to get upset, that [she] didn’t want to do dinner with him or have him teach [her] golf lessons.” Murders helped Dawson draft the following response, which she sent Furlow on January2: “I want to make our restaurant something that we are both proud of as well. . . . My only concern is that I don’t want to be in a position to give members or staff any reason to make any kind of assumptions if they saw the two of us together off premises. I know it might sound a bit paranoid, but I have seen how fast rumors can spread and unfortunately, it has happened to me in the past where members and/or staff had made false assumptions. This can occur in any business setting, and although as innocent as it may be, some people could perceive it differently which is sad that they would do such a thing. With that being said, I am not willing to take that risk. [¶] . . . I would be completely fine with a group setting to visit different restaurants, etc.”

Given the dynamic of such matters, it is not surprising that the relationship between Ms. Dawson and Mr. Furlow deteriorated, and with it, Ms. Dawson’s standing within the club.

Having received a commendation from the club’s board of directors in February noting her personal contribution to the Club’s success, she found herself jobless by June, having challenged the club’s investigation of the events. Of interesting note, the club’s investigation encompassed a series of emails ostensibly written by Ms. Dawson to Mr. Furlow from an email address that, in fact, was not one held by Ms. Dawson. Although evidence, at least circumstantial, suggested that Mr. Furlow had created the email account and authored the emails from “Ms. Dawson” to add favorable context to an otherwise problematic dynamic, the club concluded it was not possible to determinatively link Furlow to the emails.

The court’s decision traces in detail the factual underpinnings of such a claim, and presents a good primer to clubs everywhere on how investigations should be handled. At this point, procedurally, the appellate court has held that Ms. Dawson is entitled to a trial on her claims.

 

« Older entries