March 28, 2014, was the last date on which the Georgia Court of Appeals could issue opinions for cases submitted during the September Term of Court. As is typical, the opinions issued at the end of term involved some of the more complicated and interesting matters decided by the Georgia Court of Appeals. In Greenstein v. Bank of the Ozarks, Case No. A13A1790 (decided March 28, 2014), the divided court reversed a summary judgment granted in favor of a bank in a case in which the bank sought to enforce several promissory notes and guarantees. The primary issue on appeal… Read more
Tag: Georgia Appellate
A Fresh Look At Class Actions in Georgia
In two recent cases, Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), and Comcast v. Behrend, 133 S. Ct. 1426 (2013), the United States Supreme Court established precedents that require federal district courts to rigorously examine proposed class actions to determine whether the standards for certifying class actions have been met. Those precedents are now having an impact on Georgia state courts. In MCG Health, Inc. v. Perry, Case No. A13A1996 (decided March 20, 2014), the Georgia Court of Appeals reversed the certification of a class. The plaintiffs in the case were patients who had received treatment at… Read more
The Eleventh Circuit Approves Collective Action Waivers
In Walthour v. Chipio Windshield Repair, LLC, Case No. 13-11309 (decided March 21, 2014), the Eleventh Circuit Court of Appeals held that employers could enter into enforceable arbitration agreements with their employees in which their employees waived their right to bring class actions or collective actions under the Fair Labor Standards Act (“FLSA”). In Chipio, the plaintiffs had sued their employers contending that their employers had failed to pay them the required minimum wage and overtime wages for having worked in excess of 40 hours per week. Each of the employees had entered in an arbitration agreement that provided that… Read more
The Eleventh Circuit Reinforces A High Pleading Standard
In Simpson v. Sanderson Farms, Inc., Case No. 13-10624 (decided March 7, 2014), the United States Court of Appeals for the Eleventh Circuit affirmed the dismissal of a putative class action filed under the Racketeer Influenced and Corrupt Organizations (RICO) Act. The plaintiffs alleged that the defendants’ practice of hiring illegal immigrants had depressed the wages of employees who were lawfully in the country. For practitioners, the larger significance of this Simpson decision lies in the Eleventh Circuit’s enforcing of a high standard for pleading the factual basis for a claim. In Bell Atlantic Corp. v. Twombly, 550 U.S. 544… Read more
An Example Of Why Litigation Outcomes Are Uncertain
Lawyers are often called upon to predict or at least estimate the potential outcomes of litigation. Doing so is, at best, an imprecise art. An example of why that is so is reflected in the decision of the United States Court of Appeals for the Eleventh Circuit in Feaz v. Wells Fargo Bank, N.A., Case No. 13-10230 (decided February 10, 2014). In deciding that case, the Eleventh Circuit addressed a question identical to one addressed by several other federal courts. Those courts, looking at the same statutes, regulations and contract language, have reached divergent outcomes. The Feaz case involved flood… Read more
The Eleventh Circuit Clarifies The Liability For A Bankrupt Company’s Pension Benefits
In Durango-Georgia Paper Co. v. H. G. Estate, LLC, Case No. 11-15079 (decided January 7, 2014), the Eleventh Circuit addressed what it defined as a question of first impression: “whether under ERISA the trustee of a corporation that is a contributing sponsor and is in bankruptcy can maintain an action for the benefit of the bankruptcy estate and the estate’s unsecured creditors against the corporation’s former owner … for liabilities arising from the termination of a pension plan.” Opinion, p. 5. The Court held that the answer is “no.” The Employment Retirement Income Security Act of 1974 (“ERISA”), among other… Read more
THE ELEVENTH CIRCUIT ADDRESSES EXPERT DISCOVERY
In Republic of Ecuador v. Hinchee, Case No. 12-16216 (decided December 18, 2013), the Eleventh Circuit addressed the extent to which a party’s expert witness must produce documents in discovery. Appellate court decisions addressing discovery issues are rare. The decision suggests how attorneys might better deal with their experts. The Hinchee case is an outgrowth of a heavily-litigated dispute between plaintiffs in the Republic of Ecuador and Chevron. Among other things, those parties are involved in a dispute pending in the Permanent Court of Arbitration in The Hague. In connection with that arbitration, the Republic of Ecuador subpoenaed documents from… Read more
GEORGIA LOCAL GOVERNMENTS LOSE BID TO RECOVER BACK TAXES FROM ONLINE TRAVEL COMPANIES
In City of Rome v. Hotels.com, L.P., Case No. 12-14588 (decided December 13, 2013), municipalities in Georgia lost their bid to recover back taxes they allege should have been collected by online travel companies. Online travel companies purchase blocks of hotel rooms at a “wholesale” price. They then sell those rooms to travelers at a higher “retail” price. Many local governments in Georgia have a hotel/motel tax that requires the person renting a room to pay a tax that the hotel collects. In dealing with online travel companies, hotels were collecting and remitting taxes based on the wholesale price paid… Read more
THE HAZARDS OF CONTRACT CONSTRUCTION
The Georgia Court of Appeals has reached the end of its November 2013 term. Two decisions issued towards the end for that term indicate the problems that parties face when an unclear or ambiguous contract ends up in court. One of those cases was DJ Mortgage, LLC v. Synovus Bank, Case No. A13A1046 (decided November 22, 2013). Synovus Bank loaned money to DJ Mortgage which DJ Mortgage in turn used to fund mortgages. The parties’ agreements required that when DJ Mortgage made a mortgage loan, it would assign the relevant documents to Synovus. The parties disputed whether the bank was… Read more
THE SUPREME COURT CLARIFIES THE ENFORCEMENT OF CONTRACT FORUM SELECTION CLAUSES
In Atlantic Marine Construction Co., Inc. v. United States District Court for the Western District of Texas, Case No. 12-929 (decided Dec. 3, 2013), the Supreme Court clarified how federal courts should enforce a forum selection clause contained in a contract. The case involved a contract dispute between a corporation based in Virginia and a corporation based in Texas. They entered into a contract that provided that all disputes would be litigated in Virginia state court in Norfolk, Virginia or the United States District Court for the Eastern District of Virginia. When a dispute arose, the Texas corporation filed a… Read more