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Eminent Domain Law Update: School Property Takings

December 22, 2022 by Cohen & Malad, LLP Leave a Comment

Recently the Indiana Court of Appeals heard a case between Indiana school corporations and the State of Indiana regarding a political subdivision’s ability to assert a Takings Clause claim for the taking of its property in Lake Ridge School Corporation and School City of Hammond, West Lafayette Community School Corporation v. Eric Holcomb, Indiana State Board of Education, Indiana Department of Education, and Todd Rokita, Case No. 22A-PL-423. In that case, Lake Ridge School Corporation, School City of Hammond and West Lafayette Community School Corporation learned that as political subdivisions, the State could force them to sell or lease their schools, once they were no longer in use, to a charter school or state education institution for $1.

In 2019 and 2020, Lake Ridge and School City of Hammond closed schools in their districts. Under Indiana Code, once the school closed, the schools should have notified the State within 10 days, made the building available to a charter school or state educational institution and sell that building to the interested charter school or state educational institution for $1. The Schools sued the governor, the attorney general, the Indiana Department of Education and the Indiana State Board of Education contesting the validity of the statute and claimed that the statute constituted a taking of the Schools’ property. The State argued that the Schools could not sue the State for an unconstitutional taking because “the Takings Clause has no role to play in intragovernmental disputes between a State and one of its agencies or political subdivisions”.

The Court of Appeals agreed with the State. In its decision for the State, the Court cited a US Supreme Court case that political subdivisions are created as convenient agencies for exercising such governmental power of the state as may be entrusted to them. “The state, therefore, at its pleasure, may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the character and destroy the corporation.” The Court went on to explain because a political subdivision is merely a department of the state and held that the state may withhold, grant or withdraw powers and privileges as it sees fit, that political subdivisions cannot sue their states under the takings clause.

This case may have lingering effects on the rest of political subdivisions and municipalities throughout Indiana, as the State may now seize any property of a political subdivision for any reason or any purpose, with no compensation. I have practiced eminent domain condemnation law for over a decade and accept case referrals from attorneys across Indiana and represent commercial, agricultural and residential landowners to assert their rights and maximize compensation in land acquisition transactions.

Article by: Lindsey M. Bennett, Attorney

Sexual Abuse Is Still a Problem in Indiana Schools

December 19, 2022 by Cohen & Malad, LLP Leave a Comment

It is estimated that 1 out of every 10 children will experience sexual misconduct at the hands of a trusted teacher, coach, or other school official by the time they graduate high school. On average, a teacher will be transferred to three different schools before they are reported to police. In reality, these numbers likely do not accurately represent the growing scourge of educator sexual misconduct in our schools; the incident rate is likely much higher. Crimes of a sexual nature remain the most underreported of crimes. Further, empirical research in the context of school-related sexual abuse is extremely limited. There are no national surveys that collect incident data on school employee sexual misconduct and there is no comprehensive, searchable national database to manage and track reported incidents.

As a direct result of a lack of understanding, awareness, and reporting of these acts, parents hold their children’s hands and walk them into what has turned into a safe haven for sexual predators: school. The vast majority of schoolteachers are people who have our children’s best interests at heart and seek to better the children’s lives and the community as a whole. However, the unfortunate and terrifying reality is that any youth-serving organization will always be a target for sexual predators. As institutions continue to bury their heads in the sand in an effort “keep things quiet,” this epidemic continues to grow. At Cohen & Malad, LLP we receive many calls relating to educator sexual misconduct, and we currently represent several children who’ve been victimized by their trusted teachers.

Legal representation for child survivors of sexual abuse by a teacher

In one case, our client was a fourteen-year-old honor roll student who was subjected to months of harassment and inappropriate sexual innuendo at the hands of her social studies teacher before it ultimately culminated in sexual assault. Kristen,* an eighth grader, endured months of sexual jokes, racy comments, and inappropriate looks before she was attacked at a school dance by her teacher. Her teacher snuck up on Kristen from behind, forcefully grabbed her hips, and thrust his penis toward her buttocks. But the abuse did not stop there. Despite being reported to school officials, the teacher was not relieved of his duties. In fact, the teacher was able to orchestrate a time to be alone with Kristen in a classroom. While alone, the teacher sexually assaulted Kristen. Sadly, Kristen was not the first victim of this teacher. For years, parents and students alike had complained about the teacher’s inappropriate behavior. The school did nothing to protect Kristen or other kids or to prevent her assault.

In another case, our client was a shining star in her high school’s Fine Arts program. Reeling from her parent’s difficult divorce, Elaine* found a second home within her theatre class. The director of the theatre program homed in on Elaine’s vulnerability and seized this opportunity to groom Elaine and eventually start a sexual relationship with her. What began as the theatre teacher confiding things about his personal life to Elaine escalated to them making out in the school theatre and eventually to sexual intercourse both inside and outside of the school. Elaine was just seventeen years old; her abuser was forty-seven years old. Again, the high school had been on notice for a number of years about the theatre teacher’s bad behavior. Yet, nothing was done. This school, too, failed to protect its children.

These are only two instances of on-going litigation against Indiana educators accused of sexually abusing kids. Educator sexual misconduct is rife within our society. With no apparent incentive and certainly no consequences, many schools continue to have culpability in this matter as they continue to look the other way. Contact us if you or your child were sexually abused by a trusted teacher, aide, or coach.

*Names have been changed to protect confidentiality.

Update on Indiana Eminent Domain Law: Duke Energy, LLC v. Bellwether Properties, LLC

October 14, 2022 by Cohen & Malad, LLP Leave a Comment

Bellwether Properties, LLC, (“Bellwether”) owned property encumbered by a 10’ utility easement owned by Duke Energy, Indiana (“Duke”). Duke owned a transmission power line that ran through the property centered within the easement area. Bellwether wanted to build a warehouse on its property abutting the easement. Duke informed them that the electrical safety code would not allow Bellwether to build within 12.5 feet of the power line, some of which was outside of the 10’ Duke easement. Bellwether sued Duke for inverse condemnation, claiming that Duke had taken part of its land without compensation by disallowing Bellwether to utilize the property abutting the easement for the warehouse.

The parties disagreed whether Bellwether’s claim was an issue of a physical taking or a regulatory taking. A physical taking is one where the government acquires the private property for a public purpose as opposed to a regulatory taking where the government’s regulation of the property is so onerous that it in effect has taken the property. The court recognized two categories of regulatory action that are deemed regulatory takings: (1) where government requires an owner to suffer a permanent physical invasion of her property and (2) regulations that completely deprive an owner of all economically beneficial use of their property.

The Court treated the claim as a regulatory taking and examined the case under the lens of Penn Central Transportation Co. v. New York City and weighed the factors created by the US Supreme Court for regulatory takings – (1) the economic impact of the regulation on the property owner, (2) the character of the governmental action and (3) if there was a physical invasion as opposed to a public program adjusting the benefits and burdens to the property owner to promote the common good. Using the Penn Central factors, the court determined that the economic impact to the Bellwether property was minimal. The warehouse to be built had to be resized by only 150 square feet and it reduced the number of storage racks in the building from thirty to twenty-nine. The court also found that the electrical code clearance standard had already been in the Indiana Administrative Code when Bellwether purchased the property and property owners are charged with knowledge of the laws that affect their property. Further, the clearance was intended to protect lives and property from being too close to electric transmission lines, which is applied across the board, not just to the Bellwether property.

Because Bellwether did not meet the standard set forth in Penn Central, the court ultimately found that the prohibition of building the warehouse, even outside the easement area, was not a compensable taking by Duke. The decision in Duke Energy, Indiana, LLC v. Bellwether Properties, LLC affirms a condemnor’s rights within right of way easements and should serve as a caveat to landowners to carefully consider easements when considering current and future property improvements. I have practiced eminent domain condemnation law for over a decade and accept case referrals from attorneys across Indiana and represent commercial, agricultural and residential landowners to assert their rights and maximize compensation in land acquisition transactions.

Article by: Lindsey M. Bennett, attorney

5G Is Coming, What Are Your Rights?

September 13, 2022 by Cohen & Malad, LLP Leave a Comment

Could you come home one day to discover that a 5G tower is being built in your front yard?

For a group of Indianapolis homeowners, the answer was “yes.”

Local media reported this summer that some Indiana homeowners had come home to find a 5G tower being built essentially in their front yards. One homeowner expressed shock as they had no notice that a large pole would be placed in the right of way of their front yard. As they investigated the matter, they quickly discovered that they had no recourse to have it removed.

What is 5G?

5G refers to fifth generation mobile network and is supposed to deliver faster more reliable data speeds. This means that you will be able to, for example, download a movie faster without buffering, join a zoom call so you can work remotely and program your smart refrigerator from your smart phone. 5G and Wi-Fi currently coexist but 5G can be used as an alternative, if its available. The main 5G disadvantages are that it is offered in limited areas, it requires several towers where it is available and some believe that it can cause cancer. 5G is made possible by wireless antennas and other equipment called “small cell facilities”. The small cell facilities supplement cellular networks and facilitate the 5G deployment; they require a support structure and a single pole in most cases called a “tower” to transmit signals properly. You might see them attached to a utility pole or the 5G company may construct a new pole to support the small cell facility. Towers can reach up to fifty feet (50’) tall.

Where are 5G towers allowed?

The federal government allows telecommunication providers to place their 5G towers in rights of way or other city-owned property. Rights of way are generally found along roads, whether on main streets or in neighborhoods. The right of way area of a neighborhood is usually found between the curb and the sidewalk of each property.

Who regulates 5G?

The Federal Communications Commission (FCC) regulates the telecommunications industry. Federal law gives 5G companies discretion to place their poles where they see fit to implement 5G. Many people get upset at their local government for allowing placement of the 5G towers in their neighborhoods, but in Indiana, local governments are prohibited from regulating most aspects of 5G towers and cannot prohibit the 5G tower from being placed in the right of way.

Local governments have limited, control of 5G towers. Municipalities may require a permit for (1) the construction of new support structures, (2) substantial modification of a support structure, (3) collocation of wireless facilities on an existing structure and (4) construction, placement and use of small cell facilities. If the municipality has an existing ordinance which restricts its right of way for underground or buried utilities in residential areas, a communications provider may be required to apply for a waiver and send notice to a neighborhood association that a new pole is to be placed in their neighborhood. The neighborhood and the municipality can work together to have a say in the preferred location of the new poles and what the pole should look like.

How can you protect your property?

Check your property and see where the right of way is located. Check with your local government and ensure that they have passed the required ordinances. Sign your neighborhood up for notifications with your local government. Stay involved in the process if you receive notification and communicate regularly with your elected officials.

The Federal Communication Commission has stated that “supporting the deployment of 5G and other next-generation wireless services through smart infrastructure policy is critical” and that they are “committed to doing (their) part to help ensure the United States wins the global race to 5G to the benefit of all Americans”. Indiana 5G Zone recently announced their intent to launch a $2 million grant program to accelerate 5G related projects around the state. 5G isn’t going anywhere and the federal government is making rules and enacting laws that ensure it will continue to grow. Make sure you know your rights.

The government and public utilities do have certain rights related to the right of way easements of private property. However, if the government or public utility requires a portion, or all your land in addition to the right of way easement for a public project that is when you need an eminent domain attorney. I have over a decade of experience in eminent domain law and help landowners protect their rights and maximize compensation in land acquisition transactions. There is no cost for a case evaluation. Contact me to learn more.

Article by: Lindsey M. Bennett, attorney

FBI Investigates Sexual Abuse Claims Within New Orleans Catholic Church

July 11, 2022 by Cohen & Malad, LLP Leave a Comment

News of a federal investigation into sexual abuse claims within the Catholic Church in New Orleans has gained national attention. And while this type of news isn’t as surprising as it once was, the nature of this investigation and the possible legal claim is.

Reports of alleged sexual abuse within the Roman Catholic Diocese of New Orleans involve priests who allegedly abused children during trips to camps and amusement parks in Mississippi, Texas and Florida. Sexual abuse claims that involve travel across state lines fall under the scope of the Mann Act, an anti-sex trafficking law. And while some of the reports about New Orleans priests involved alleged abuse that happened decades ago, there is no statute of limitations for violations of the Mann Act. This means that adults who were allegedly molested as children are able to bring a claim against these predator priests and the church under the Mann Act.

Mann Act and Justice For Sexual Abuse Survivors

The application of the Mann Act is important as the average age for disclosure of sexual abuse is 52, well after the abuse occurred. Many sexual abuse claims are barred by state laws that contain time limits on how long a victim has to file a lawsuit, aka statute of limitations. For instance, in Indiana a victim of sexual abuse generally has until the age of 25 to file a lawsuit if they were sexually abused as a minor. That means if they wait until they are 52, which is the average age of disclosure, it will be too late for them to take legal action in Indiana. Of course, there are some exceptions. It is important for anyone who has suffered sexual abuse to speak with an attorney experienced with sexual abuse lawsuits who can advise them of their legal rights and options.

It takes courage for survivors to report sexual abuse. There are a variety of factors that influence when, or even if, a survivor will disclose the abuse they suffered. Sexual abuse perpetrated by priests, religious leaders and faith community volunteers can inflict a deep sense of shame and guilt. Victims are often left to struggle with sexual abuse trauma as well as conflicts with their religious beliefs. Our sexual abuse litigation team at Cohen & Malad, LLP has represented people who suffered sexual abuse within faith communities and can help you.

Sexual Abuse Crisis in Faith Communities

The Catholic Church has certainly garnered the most attention for its history of failing victims of sexual abuse. Investigators found church leaders covered up reports of abuse for decades and allowed perpetrator priests to relocate to other diocese where they often continued to prey on children. But this problem isn’t unique to the Catholic Church. If fact, the Southern Baptist Convention was recently the subject of a investigation by Texas journalists who exposed decades of sexual abuse reports within the church that SBC leaders ignored or mishandled. After the media broke the story, SBC leaders hired Guidepost Solutions to conduct an independent investigation into reports of sexual abuse within the church. A 259-page report was published in May 2022 which included a number of findings regarding the mishandling of sexual abuse claims and allegations of mistreatment of sexual abuse victims by Executive Committee members which spanned 20 years.

Across social media the #ChurchToo movement has helped sexual abuse survivors find their voice. Our attorneys have represented survivors in civil court for over 20 years and have fought to get compensation for sexual abuse survivors so they can pay for mental health services and other resources to heal from the trauma of sexual abuse. If you have been sexually abused by a priest, pastor, faith leader or anyone within a religious community we believe you and stand ready to help you. You are not alone. Contact us now.

Sexual Assault: How the Burden of Proof in a Criminal Prosecution Can Affect a Civil Lawsuit

July 22, 2021 by Cohen & Malad, LLP Leave a Comment

By: Amina A. Thomas, Attorney

The New York Times’ Monday morning headline this week was a report on How Rape Cases Get Dropped. The article examines why, even amidst increased social and cultural awareness in recent years surrounding sexual assault, prosecutors often still refuse to bring criminal prosecutions of sexual assault and frequently drop cases after they do bring charges. The report states:

“The Me Too movement led to heightened awareness of the prevalence of sexual assault, an increase in reports to police, and a new hope that people accused would be more frequently held accountable. But in New York City, statistics and the accounts of women who say they were attacked suggest that little has changed about the way the criminal justice system grapples with rape accusations.”

As mentioned in the report, a major reason rape and sexual assault cases are so often rejected by prosecutors is because of the high burden of proof that prosecutors must meet, coupled with the fact that sexual assault cases often present inherent challenges of witness credibility. Usually, there isn’t a third-party witness to these crimes, and as the report notes, in cases where “the attacker is not a stranger and alcohol is involved,” it can be extremely difficult to convince a jury of the defendant’s guilt.

The burden of proof in civil litigation, however, is lower than that in a criminal prosecution. Instead of proving his or her case “beyond a reasonable doubt,” a rape or sexual assault survivor plaintiff most only convince a jury by a “preponderance of the evidence.” In other words, the plaintiff must only be able to show that, more likely than not, the assault occurred.

While this lower evidentiary standard is, at first blush, helpful to survivor-plaintiffs, the aftermath of a criminal prosecution usually has a strong effect on the outcome of a civil lawsuit. Almost all the evidence set forth in a criminal prosecution against a perpetrator will become relevant in a civil action against that same perpetrator. When a prosecutor secures a guilty plea or conviction against a perpetrator, the survivor’s civil case is inherently much stronger.

On the other hand, if a criminal case is dropped or a jury finds a perpetrator not guilty, a survivor who wishes to pursue a civil lawsuit against his or her perpetrator will be left with an extremely onerous battle of combating the negatively skewed evidence from the criminal proceedings. Furthermore, a negative result in a criminal case is emotionally draining for a survivor, and in turn can often make survivors hesitant to move forward with civil action at all.

Cohen & Malad, LLP’s clients who are survivors of sexual assault are usually also taking part in a criminal prosecution against their perpetrators. In the unfortunate circumstance that a prosecutor believes he or she is unable to prove a rape or sexual assault charge, the decision to pursue a different or lesser charge, such as “battery,” is often still more helpful to a subsequent civil case than a prosecutor bringing no case at all or pursuing a charge on which a jury is unlikely to convict.

Prosecutors should continue to encourage survivors of sexual assault to come forward against their abusers. One way to encourage survivors is by exploring alternative courses of action that enable prosecutors to see these cases through. At the end of the day, a finding of guilt on a lesser charge such as battery, is still an acknowledgement by the perpetrator and by society that the accused act did in fact occur. It will result in at least some level of accountability for the perpetrator and creates more positive evidence for a survivor to build a civil case against their perpetrator. Most importantly, a conviction or guilty plea—even of a less serious offense— can provide recognition to the survivor that his or her courage to come forward was not for nothing.

5 Reasons You Should Consider a Premarital Agreement

September 9, 2020 by Cohen & Malad, LLP Leave a Comment

By: Nicole Makris, Attorney

When marriage is on the horizon, the discussion of a premarital agreement can be an important step in planning for the future. Some people are hesitant about discussing a premarital agreement with their significant other because they fear it appears to be “planning for divorce.” This outlook overlooks the numerous benefits to a premarital agreement. Similar to an insurance policy, the premarital agreement is only there if you need it someday. Here are five reasons to consider when deciding if a premarital agreement is right for you.

Premarital agreements can be personalized.

You can design your premarital agreement to meet your specific needs. Some couples only wish to distinguish their personal property owned prior to the marriage as separate property so that the rest of the property acquired during the marriage would be considered marital property in the event of divorce. Premarital agreements can be limited in scope to protect specific assets, such as inheritances or residences, or to designate responsibility for specific debts, such as student loans.

Premarital agreements promote financial disclosure.

The process of entering into a premarital agreement helps promote transparency as to each party’s assets and debts. The sharing of financial standings with one another before marriage can help promote openness in dialogue surrounding financial matters during the marriage.

Premarital agreements are not only for people who have significant assets at the time of the marriage.

Indiana law considers all property of the parties to a marriage to be marital property subject to division. A premarital agreement can be especially important for individuals who have significant assets that he or she will be bringing into the marriage. Through a premarital agreement, these assets can be classified as that individual’s separate property if a divorce occurs. When an individual has interests in a family business, a premarital agreement can designate the business interests as that person’s non-marital property. However, premarital agreements are not only for people who have significant assets at the time of the marriage. Even if neither party has personal property of value at the time of the marriage, a premarital agreement can plan for the division of future assets that the couple acquires throughout the marriage, such as retirement accounts.

Premarital agreements can simplify property division in the event of divorce.

Premarital agreements can be extremely valuable in the event of divorce by outlining each spouse’s property rights, from real estate to bank accounts. Premarital agreements also allocate responsibility for debts of the couple, such as credit cards and vehicle loans. Having an agreement on these issues before marriage can minimize the number of issues that the couple must determine if a spouse later files for divorce.

Premarital agreements may be modified.

You and your spouse can decide to make changes to your premarital agreement during the marriage. Any modification will need to be in accordance with the terms of the original premarital agreement. Couples may choose to modify a premarital agreement when new significant assets or debts have been acquired or if they agree upon a new division of property in the event of dissolution of the marriage.

Premarital agreements can provide clarity to couples on property issues and simplify the division of property if divorce occurs in the future. I have helped many clients over the years with premarital agreements. If you are considering a premarital agreement or have additional questions, please contact me for a consultation.

The Effect of Covid-19 on Business Contracts

May 5, 2020 by Cohen & Malad, LLP Leave a Comment

By: Arend J. Abel, Attorney

With much of the nation shut down during the Covid-19 pandemic, many business contracts may not be performed. One of the questions that arises from that circumstance is whether non-performance will be considered a breach of contract, subjecting the non-performing party to an action for damages. There are three areas to consider in analyzing that question: 1) Force Majeure; 2) Impossibilitiy; and 3) Impracticability. Impracticability is confined to contracts for the sale of goods governed by the Uniform Commercial Code

Force Majeure

Force Majeure, a French term meaning “superior force,” is a doctrine that excuses contractual performance made impossible by events listed in a contractual force majeure clause. As the Indiana Court of Appeals has observed “the scope and effect of a force majeure clause depends on the specific contract language, and not on any traditional definition of the term. Specialty Foods of Indiana, Inc. v. City of South Bend, 997 N.E.2d 23, 27 (Ind. Ct. App. 2013). A typical force majeure clause may look something like the following:

If a party cannot perform the obligations of this agreement due to an act of God, legal prohibition, fire, flood, natural disasters, military operations, or any other circumstance not within the control of the party, then the party is excused from performing such obligations.

The key question to ask in considering whether a force majeure clause excused a party’s performance is whether the event causing the non-performance is one of the events listed in the clause. If the language does not specifically include diseases or epidemics, a court may or may not find that general language describing “other circumstances not within the control of the party” covers the event. The Court of Appeals decision in Specialty Foods suggests that the particular clause set out above would cover such an event. However, even slight changes in language can affect the result. For example, a clause that excuse a party from performing for “reasons outside the party’s control such as an act of God, legal prohibition, fire, flood, natural disasters or military operations” might not cover CoVid-19 because the “such as” language might be interpreted to require the unlisted events to be similar in kind to those listed. See Kel Kim Corp. v. Central Markets, Inc., 70 N.Y.2d 900, 902, 519 N.E.2d 295, 296 n.* (1987) (language that “other similar causes beyond the control of such party” did not cover an inability to perform due to an inability to obtain insurance coverage).

Impossibility

Under Indiana law, as well as the law of most States, impossibility of performance excuses contractual performance, even in the absence of a force majeure clause. Wagler v. West Boggs Sewer District, 980 N.E.2d 363, 378 (Ind. Ct. App. 2012). However, the party claiming the defense must show that performance is “not merely difficult or relatively impossible, but absolutely impossible, owing to the act of God, the act of the law, or the loss or destruction of the subject-matter of the contract.” Id. (quoting Ross Clinic, Inc. v. Tabion, 419 N.E.2d 219, 223 (Ind.Ct.App.1981), which in turn quoted Krause v. Bd. of Trustees of Sch. Town of Crothersville, 162 Ind. 278, 283–284, 70 N.E. 264, 265 (1904)).

This may be difficult to meet in the case of Covid-19, though perhaps a business ordered to close by the authorities could meet the requirements, depending on the specific contract involved.

The Indiana Court of Appeals has considered whether an epidemic excuses contractual performance on two occasions. Gregg School Township v. Hinshaw, 76 Ind. App. 503, 132 N.E. 586, 587 (1921); Gear v. Gray, 10 Ind. App. 428, 37 N.E. 1059 (1894). In Gregg, the Court held that the fact that a school was ordered closed due to the 1918 flu pandemic meant that the School board did not have to pay teachers during the time the school was closed. In Gear, the Court reached the opposite conclusion when a school was closed due to a local diptheria epidemic. Explaining the different results, the Court in Gregg noted that in Gear, the local health authorities who ordered the school closed did not have express statutory authority to close the schools. In Gregg, the Court noted, there was such authority, and the contract had to be read as incorporating such authority, which rendered performance of the contract impossible.

It is unclear how Gregg will affect contracts of businesses that have been shut down in the latest pandemic. If the contract is one that literally cannot be performed when the business is shut down (such as a contract for an entertainer to appear at a venue), then most likely a court would excuse performance on grounds of impossibility. However, contracts by which a business purchases goods and services may be technically possible to perform, even if pointless. Courts may hold that performance is not excused in such cases.

Impracticability

Where contracts are for the sale of goods, the impracticability provisions of the Uniform Commercial Code could come into play. Section 2-615(a) of the U.C.C. provides:

Delay in delivery or non-delivery in whole or in part by a seller who complies with paragraphs (b) and (c) is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.

Significantly, the provision excuses a failure to deliver goods by a seller but offers no relief to buyers. In addition, to be excused from performance, the seller must comply with paragraphs (b) and (c) of the statute. If the situation only partially affects the seller’s ability to deliver goods, paragraph (b) requires the seller to allocate production and deliveries among customers in a manner that is “fair and reasonable.” Paragraph (c) requires the seller to provide the buyer with notice that there will be a non-delivery or delay, and if an allocation is required under paragraph (b) what the buyer’s allocation will be.

Impracticability is a lesser standard than impossibility, so sellers may have the ability to avoid contracts that become burdensome to perform, though not strictly impossible.

Regardless of whether Force Majeure, impossibility, or impracticability is invoked, the result will depend on particular facts and circumstances affecting contract performance. The issues will also likely depend on contractual language that covers, or can be read to cover, the specific events in question. I have represented businesses in a variety of litigation for over 30 years. If you are in a contract dispute as a result of this pandemic, contact me to discuss how I can help your business and protect your rights.

Will Your Business Also Survive COVID 19?

April 16, 2020 by Cohen & Malad, LLP Leave a Comment

By: George W. Hopper, Attorney

The well-being of you and your family are of utmost concern during this pandemic. What about the well-being of your business? All businesses, large and small are navigating through the current economic downturn and its unique challenges.

Over the past 38 years, I have been advising business clients through five economic recessions. Each recession had certain similarities, but each was also unique in cause, effect and length. Nevertheless, during each recession, the business clients that survived and ultimately prospered each made the same crucial decisions in common:

Each client chose to be proactive rather than reactive in confronting economic and legal challenges to their businesses before they exhausted their financial resources; and
Each client engaged competent legal counsel and financial advisors sooner rather than later in the process.

Of course, it is without question extremely challenging to successfully manage a business in a good economy. During a recession, the task becomes even more challenging and can easily become overwhelming with the addition of new legal issues, shrinking cash flow and reduced available credit. The situation can change and will change dramatically and quickly during this crisis. For this reason, there will be no substitute for timely and competent legal and financial advice.

Depending on the situation confronting your business, there are a variety of tools that can be employed to find solutions. Early in the process, management can consider and pursue solutions that do not involve a formal legal case or proceeding such as:

Refinancing
Loan restructuring
Turnaround negotiations with affected creditors
Recapitalization
Sale or merger

If circumstances do not lend themselves to any of the forgoing tools, business clients may have to resort to litigation, or chapter 11 bankruptcy or a combination of the two approaches.

The bottom line is the sooner the business client proactively meets the challenges presented by the current economic crisis, the greater number of options will be available to address the client’s needs. In fact, during and as a result of the 2008 great recession, the vast majority of cases that I was involved in were successfully resolved out of court, which saved many thousands of dollars in professional fees and generated a superior outcome for both the struggling business and its creditors. Each one of those cases began and ended as a result of the timely decision by management to engage experienced legal counsel. It does not pay to wait. Contact me to discuss ways I can help you protect your business.

Nursing Homes in Indiana and Across the Country are Overwhelmed by COVID-19

April 13, 2020 by Cohen & Malad, LLP Leave a Comment

By: Amina A. Young, Attorney

On Friday, April 10, 2020, the Indiana State Department of Health (ISDH) Commissioner Kristina Box confirmed that twenty-four residents at Bethany Pointe Health Campus in Anderson, Indiana had passed away. Sixteen of the residents who died had tested positive for COVID-19. The other eight showed similar symptoms. Bethany Pointe, owned by Trilogy Health Services, LLC, is one of many nursing homes across the country facing coronavirus outbreaks.

Health care experts and officials have long stated that the elderly are likely one of the most vulnerable populations to the coronavirus due to compromised immune systems and/or underlying conditions.

On March 21, 2020, the Centers for Disease Control and Prevention (CDC) issued guidance for nursing homes and other long-term care facilities to take steps to assess and improve their preparedness for responding to COVID-19. The CDC noted nursing homes are among the highest at risk of being affected by COVID-19 because of their “congregate nature and the residents served (e.g., older adults often with underlying chronic medical conditions).” In its guidance, the CDC recommended rapid implementation of active screening of residents and health care personnel for fever and respiratory symptoms, restricting all visitation except for certain compassionate care situations, such as end of life situations, and implementing sick leave policies and other occupational health considerations.

The CDC also released a Coronavirus Disease 2019 (COVID-19) Preparedness Checklist for Nursing Homes and other Long-Term Care Settings, which identifies key areas that long-term care facilities should consider in their COVID-19 planning. The CDC’s checklist includes a comprehensive communication plan for facilities to ensure that they are communicating with staff, residents, and their families regarding the status and impact of COVID-19 in the facility.

On its website, Trilogy Health Services declares, in responding to the COVID-19 virus, it is “following guidance from the CDC, CMS, and state officials” and is “taking extra precautions over the coming weeks and months to ensure that [its] campuses remain guarded against the spread of viral infections.”

However, a chief complaint of Bethany Pointe residents’ families is that they aren’t being kept informed on the status of the facility’s overall impact from COVID-19, or with regard to their loved one in particular. Many families of Bethany Pointe residents state they were not even so much as notified when the first known cases were confirmed in the nursing home, and before they knew it or had a chance to respond to the situation, their loved one was showing symptoms of COVID-19.

Residents in nursing homes are members of our community and should be given the same respect and access to resources that the rest of the community has access to during a crisis. Families of nursing home residents should be kept timely informed on the overall status of the facility’s impact to COVID-19, and on their loved one’s health.

If your loved one is residing in a nursing home or long-term care facility, and you are concerned about the facility’s handling of its response to COVID-19, one action you can take is to file a complaint or report an incident to the ISDH. Complaint forms can be found on the Indiana State Department of Health’s website.

COVID-19 presents unchartered territory. This article is not legal advice. To discuss the specific facts of your situation, contact us.