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I see a lot of law firm strategic plans that talk about "establishing a position of dominance" or "being preeminent" in an area of practice, an industry or a geographic area. In my mind these are precisely the kind of market-driven, externally focused goals that law firms should be setting for themselves. The obvious question, however, is how does a law firm know whether or not it has created a position of dominance?
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The Women's Bar Association of the State of New York has joined the New York State Bar Association in lobbying for a no-fault divorce law. Mindy Zlotogura, president of the 3300-member women's bar group, said that she planned to lead a delegation to Albany to meet with key legislators about changing the law. The decision to support the state bar initiative represents a sea change for the women's bar, which has traditionally opposed no-fault divorce measures.
In last month's newsletter, we discussed two 1970s New York decisions that held marriages between transsexuals and persons of their birth sex to be invalid. No recent cases on this issue have been brought in this State, so we are left to ponder what would be the outcomes of those cases in present-day New York. Recently, however, the Florida Court of Appeal relied on those old New York cases -- <i>Frances B. v. Mark B.</i>, 78 Misc. 2d 112 (1974) and <i>Anonymous v. Anonymous</i>, 67 Misc. 2d 982 (1971) -- when it decided that marriage in Florida between a female-to-male transsexual and a woman was invalid at its inception. In light of recent social trends in the State of New York, was that reliance justified?
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Recent rulings of importance to you and your practice.
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In March, the U.S. Supreme Court heard arguments in a case brought by Jessica Gonzales against the city of Castle Rock, CO. Cert. granted by <i>Town of Castle Rock v. Gonzales</i>, 160 L. Ed. 2d 316 (U.S. 2004). This civil rights case, which is being watched closely by municipal governments and women's rights advocates nationwide, asks whether a court-issued domestic restraining order, whose enforcement is mandated by a state statute, creates a property interest protected by the due process clause of the Fourteenth Amendment. The district court held it does not, and dismissed the action under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief could be granted.
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My insurance pays dividends. Sounds like a good idea. Some insurance companies offer "dividend plans" that allow a policyholder to obtain dividends from the insurance company, often based on the loss experience under the policyholder's insurance program. If losses are low, the insurance company promises to pay the policyholder dividends. Dividend plans do have their pitfalls, however, as a number of Kemper policyholders have discovered. In an undated letter to policyholders, Michael A. Coutu, the acting president and chief executive officer of the Kemper Insurance Companies, stated that as a result of Kemper's financial condition, Kemper "will not declare any dividends in the foreseeable future" meaning that "a payment due Kemper may be larger than anticipated or that a return or credit may be less than expected, despite underlying losses." As a result, these "loss-sensitive" dividend plans have not always performed as expected.
Highlights of the latest insurance cases from around the country.
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On April 5, 2005, the New York Court of Appeals upheld long-standing New York law that a policyholder's late notice defeats coverage under a commercial liability policy without any specific requirement that an insurer demonstrate prejudice. The court disagreed with any assessment that the "no prejudice" rule was a doctrine whose time had come. It rejected a policyholder's request to apply a prejudice rule to "notice of a suit in commercial policies where the notice was admittedly late." <i>See Argo Corporation, et al. v. Greater New York Mutual Insurance Co.,</i> (N.Y. April 5, 2005). In a separate opinion issued on the same day as <i>Argo,</i> the court did apply a "prejudice" standard in the limited context of supplemental underinsured motorist ("SUM") coverage where late notice of a SUM claim followed timely notice of the underlying accident. <i>Rekemeyer v. State Farm Mutual Automobile Insurance Co.,</i> (N.Y. April 5, 2005).
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Highlights of the latest commercial leasing cases from around the country.
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As the popularity of lifestyle center developments continues to grow, the national and regional small-shop tenants forming the leasing backbone of these projects persist in their efforts to negotiate lease rights traditionally granted only to anchor tenants just a few years ago. One such right is the sales volume termination right. Generally, the sales volume termination clause allows a tenant to terminate its lease in the event sales from the tenant's premises do not exceed a predetermined sales volume during a specific period of time. The primary purpose of this clause is to provide a tenant with an exit strategy for an underperforming store. Although the cause of such underperformance may be attributable to a struggling shopping center, alternate causes include poor store management and misguided merchandising decisions, among others. Certainly, landlords would prefer to avoid granting tenants any termination rights; however, the relative bargaining position of the parties may require that the landlord concede to the tenant's insistence for a sales volume termination right. If a landlord finds itself providing a sales volume termination right, then the sales volume termination clause should be structured to address the tenant's specific concerns rather than serve as an open-ended