April 2006 Archives

Felony Conviction for Cruelty to Goldfish

April 25, 2006

In the course of attacking his companion, defendant destroyed a fish tank and stepped on a goldfish killing it. Defendant claimed that the goldfish was not a companion animal and was therefore not subject to the criminal statute forbidding cruelty to animals. The relevant statute defines a companion animal as a dog or cat and any other domesticated animal. Defendant claimed that a goldfish cannot be a companion because it is not domesticated nor able to reciprocate feelings to its owner. Defendant claimed further that a domesticated animal has no desire or inclination to escape. A goldfish, however, would swim away if dropped into a body of water. The court, in rejecting defendant's claims, held that the statute did not require feelings of mutual affection and that domestication merely meant an animal living with humans and not a wild animal. Loyalty was not required; many pets would escape if given the opportunity.

Significant Changes to NY LLC, PLLC and LLP Publication Laws

April 12, 2006

There has been a major change to the publication requirement of the LLC, PLLC and LLP laws. Presently, an entity must publish the fact of its creation, date of filing and/or formation, county where the entity is located, purpose, and address for service of process in two weekly newspapers, once a week for six weeks. The penalty for failing to publish is the loss of the entity's ability to sue. As of June 1, 2006, the content of the publication and the penalty for failing to publish change dramatically. As of June 1, these entities must also publish the names of the ten members of the entity who are actively engaged in the business and hold the most valuable interest (all of the members' names must be published where there are less than 10 members). The frequency of the publication is also changed, from six weeks in a weekly newspaper, to four weeks, but in one weekly and in one daily. Although unclear, the size of the notice of publication may be larger than is presently required. The penalty for failing to publish is the suspension of the entity's right to carry on its business. In addition to being unable to carry on its business, this provision creates a significant concern that once the entity is suspended---which is automatic after 120 days from the date of entity's formation---the members of the entity will continue to operate as a business but without the liability protection offered by the entity. Even if the suspension is cured, and publication is made, it is unclear whether the members/partners of the entity retained their liability protection for the period of the suspension. Mistakes or inadvertent omissions of a member or partner's name will not void the publication. Certain investment companies/funds are exempt from the "10 person" portion of the disclosure. These new publication requirements also apply to entities formed before June 1, 2006, but entities formed before January 1, 1999 are deemed to be in compliance. Entities formed between January 1, 1999 and May 31, 2006, have 18 months to publish or face suspension. It appears that retroactive protection is retained for these entities, so long as publication under this new law is timely made (18 months from June 1, 2006). I have read that there is a competing bill, not yet signed into law, which will, among other things, shorten this cure period from 18 months to 120 days and change the publication period back to six weeks. This bill also states that absent publication, the members/partners are personally liable for the debts and obligations incurred by the entity after June 1, 2006.