The McTexLaw Email Alert for August 15, 2002
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New on The McTexLaw Business Owner's Resource Center & Commercial Real Estate Resource Center:
A DOGGONE SHAME Barney, in this case a beloved pet Golden Retriever-Labrador mix instead of a purple dinosaur, recently got the shaft from the Pennsylvania court system. In 1991, Anthony Desanctis married Lynda Pritchard. Presumably in order to help solidify their marriage, they adopted Barney the dog from their local SPCA. Alas, Barney didn't have the desired effect on the marriage, for they separated just two months later, and eventually ended up in divorce court in 2000. But instead of trying to return the dog to the SPCA for a refund, the unhappy twosome just added Barney to their settlement agreement, giving Ms. Pritchard possession (the "Joint Managing Possessory Conservator" in Texas slang) while Mr. Desanctis had visitation rights. Things went along fine until Ms. Pritchard moved in March of 2000, and refused to allow Mr. Desanctis any further visitation. So, with no other alternative way to see his beloved pooch, Mr. Desanctis sued Ms. Pritchard to enforce his visitation rights. Well, the Pennsylvania Superior Court told him he was barking up the wrong tree, but he was not deterred, and so he appealed the dismissal of his case. Unfortunately, the court of appeals may have been even more harsh on him. Comparing Barney the dog to a "table" and "lamp", all three of which are "personal property," the court of appeals concluded that:
It was, alas, a unanimous decision. No word yet on whether an appeal to the Pennsylvania Supremes is in the works. In the meantime, hopefully Barney will not discover his status as anything less than a human, thereby requiring mental health therapy. This is just one more example, albeit wacky, of a written contract which was altered by state law in a way that totally frustrated the intent, hopes and expectations of one of the parties. And isn't that just a doggone shame. AUGUST 14, A HISTORIC DAY In response to the Enron, Worldcom, etc., situations, the SEC ordered the top executives and finance officers of 947 large firms, those with at least $1.2 billion in annual revenue, to swear under oath that their company's financial reports are accurate. The deadline for 745 of those companies (those on the calendar year) to verify their financial reports was yesterday, August 14. The remaining 202 fiscal year companies have until September 28. Separately, federal legislation requires executives from all 15,000 public companies to vouch for quarterly and annual reports in the future. For me personally, the significance of August 14 is that it is 2 days before the 25th anniversary of Elvis entering the witness protection program...... This whole matter has landed squarely in the laps of the companies' lawyers, and probably personal lawyers of the CEO's and CFO's as well. Several of these lawyers approached the SEC after adoption of that rule to see if their clients could "qualify" the verification, basically to see if they could write in a loophole or two in case the numbers turn out to be something other than correct. To its credit, the SEC stubbornly refused, and so the verification will read simply "to the best of my knowledge." If a company fails to comply, the SEC has its full range of remedies available, from cease and desist orders and fines to criminal referrals. A company can obtain a short 5 business day extension for the asking. As of August 7, only about 5% of the companies (48) had submitted verified financials, meaning the midnight oil has surely been burning these last few days. I read a few editorials arguing that this is a non-event, but I assure you, to every CEO and CFO making the certifications, and their lawyers, it is a big event. To get updated information, go to www.sec.gov and select "CEO, CFO certifications." The certifications are scanned and posted as quickly as possible after being evaluated by the SEC for compliance. We can only hope this brings the hoped for stability to the stock markets. SPARE THE ROD AND SPOIL THE......CLIENT? When I was planning this newsletter, I thought I would spotlight the crazy things clients do, and the wacky stories that sometimes become cases. But lately the lawyers and judges have been taking the cake. Here's a story that's sure to make the legal system the butt of more jokes. Leslie Cerrtato, a Connecticut resident, retained Milo Altschuler to represent her in a breach-of-peace case. At the courthouse before trial, Lawyer Altschuler was preparing Ms. Cerrato to testify by asking her some expected questions. As she answered, Ms. Cerratato began to fidget. Lawyer Altschuler believed this behavior would lead the judge to believe she was lying, and so, according to Ms. Cerrato, he decided to beat the fidgeting instinct right out of her. Literally. In yet another installment of "truth is stranger than fiction," Mr. Altschuler removed her hose and underwear, bent her over his lap, and spanked her right there in the courthouse. Then he asked her if she would continue to fidget, to which she obviously said "no!," and Lawyer Altschuler then replied "Well, I guess it worked." I doubt Mr. Altschuler received very many referrals from his prior clients....... Lawyer Altschuler's story is a bit different, claiming he only threatened to spank her. But it doesn't end here. Lawyer Altschuler said he often threatened his clients in this way, because he wanted them more afraid of him than the prosecutor. Needless to say, professional discipline was in Lawyer Altshculer's future, as were personal injury and professional malpractice lawsuits. Ms. Cerratato argued that the spanking was so intertwined with delivery of professional services-namely trial preparation-that the spanking was the practice of law. The Connecticut courts disagreed, concluding that the whole concept that such a "sexual assault" would somehow improve her testimony was "pure fantasy." I never thought to ask any of my (many) "family law" lawyers how they would prepare me for hearings, but after reading this, I suppose anyone retaining a trial lawyer should inquire about their trial preparation strategies, just to be on the safe side. REFERRAL NETWORKS Your new client referrals are a big part of our continued success, and the same is true about this newsletter. 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