In Cushing v. Cohen, Case No. A13A0736 (decided July 16, 2013), the Georgia Court of Appeals looked at whether a particular financial transaction fit within the definition of a security under Georgia law. That decision has implications for all types of business and investment structures in Georgia. In Cushing, the principals created a “leveraged lending program,” in which a corporation they controlled pooled money borrowed from other parties with money borrowed from a bank. The corporation then loaned the money to developers. The individual investors received a promissory note in exchange for their investment. When the developments funded by the… Read more
Tag: Georgia Appellate
GEORGIA ADAPTS TO THE ABOLITION OF JOINT AND SEVERAL LIABILITY
In 2005, the Georgia Legislature abolished joint and several liability in tort cases. Because those changes applied only to claims arising after their enactment, cases applying those changes in the law are only now reaching the Georgia appellate courts. The Georgia appellate courts are beginning to work through their ramifications. In District Owners Assoc., Inc. v. AMEC Environmental & Infrastructure, Inc., Case No. A13A0621 (decided July 8, 2013), the Georgia Court of Appeals addressed whether or not there exists a right of contribution among tortfeasors after the abolition of joint and several liability. The case was a premises liability claim… Read more
WHEN CAN A BUSINESS BE SANCTIONED FOR KNOWINGLY VIOLATING A FEDERAL SAFETY STANDARD?
In Comtran Group, Inc. v. U.S. Department of Labor, Case No. 12-10275 (decided July 24, 2013), the United States Court of Appeals for the Eleventh Circuit addressed when a business could be sanctioned for knowingly violating a federal safety standard. The case specifically addressed this question: If a supervisor violates a standard, is his knowledge imputed to his employer such that the employer can be deemed to have knowingly violated the standard? The case involved a company that installed underground utilities. That work sometimes involved the digging of trenches. That activity is subject to specific regulations to prevent a trench… Read more
BINDING PRECEDENT REVISITED
In an earlier posting (When Is a Published Decision Not Binding Precedent, posted April 8, 2013), this blog looked at the phenomenon of published decisions of the Georgia Court of Appeals that are not binding precedent. If a case is decided by a three-judge panel of the Court and at least one judge concurs in whole or in part in the “judgment only,” that decision is not a binding precedent as to that part of the decision in which a judge has so concurred. A subsequent three-judge panel is free to reach a different outcome. The earlier blog posting noted… Read more
SOMETIMES LANGUAGE DOES MATTER
In two recent cases, the Georgia Court of Appeals illustrated how the careful parsing of words in a document can affect the outcome of a lawsuit. In Thompson v. LaFarge Building Materials, Inc., Case No. A13A0740 (decided July 16, 2013), the Georgia Court of Appeals carefully examined the language of a guaranty agreement and refused to enforce it against the purported guarantor. Page one of the relevant document was an application for credit by a limited liability company. The second page of the document contained a section labeled “Continuing Guaranty.” In that section, the signer agreed to unconditionally guarantee the… Read more
The Georgia Court of Appeals Analyzes Limitation of Liability Clauses
In Monitronics Int’l, Inc. v. Veasley, Case No. A13A0090 (decided July 16, 2013), a divided Georgia Court of Appeals addressed a number of issues relating to contractual limitation of liability clauses. The decision should cause businesses to re-examine the clauses they use. The plaintiff had been assaulted by an intruder who broke into her house. She sued the company with which she had a contract to monitor her home’s security system. The jury returned a large verdict for the plaintiff. One of the key issues on appeal was the effect of a limitation of liability clause in the contract between… Read more
THE APRIL TERM OF COURT ENDS AT THE GEORGIA COURT OF APPEALS
On July 16, the April term of court ended at the Georgia Court of Appeals. As is typical, the last few days of the Court’s term brought the most interesting decisions. This blog will be writing about some of them over the next few days. In Georgia-Pacific Consumer Products, LP v. Ratner, Case No. A13A0455 (decided July 16, 2013), a divided court affirmed the certification of a class action brought on behalf of a collection of property owners who claimed that the emission of hydrogen sulfide gas from a Georgia Pacific mill had damaged their properties and interfered with their use… Read more
FAX ADVERTISEMENT LIABILITY CASE RETURNS TO THE GEORGIA COURT OF APPEALS
The first posting on our Georgia Appellate Developments Blog discussed the decision of the Georgia Supreme Court in A Fast Sign Company, Inc. v. American Home Services, Inc. (posting November 29, 2012). The Georgia Court of Appeals has written the penultimate chapter in that saga with its decision in American Home Services, Inc. v. A Fast Sign Company, Inc., Case No. A11A0719 (decided July 11, 2013). The Georgia Supreme Court had held that liability under the Telephone Consumer Protection Act of 1991 for the sending of unsolicited fax advertisements merely required a showing of the sending of the fax to… Read more
GEORGIA DOES NOT RECOGNIZE A PRIVATE RIGHT OF ACTION TO ENFORCE PRIVACY OBLIGATIONS IN FEDERAL LAW
The Gramm-Leach-Bliley Act, which regulates financial institutions, includes a provision that provides that it is “the policy of the Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers’ nonpublic personal information.” In Wells Fargo Bank, N.A. v. Jenkins, Case No. S12G1110 (decided June 17, 2013), the Georgia Supreme Court held that a bank customer could not rely upon that statutory statement of policy to create a private right of action under Georgia tort law for an alleged breach of a duty… Read more
THE GEORGIA SUPREME COURT REJECTS THE INEVITABLE DISCLOSURE DOCTRINE IN A TRADE SECRET DISPUTE
The following situation can occur when employees and executives possess a company’s trade secrets and confidential business information. An employee works for Company A. The employee signs a confidentiality agreement promising not to disclose certain information after his employment ends. His employment with Company A ends, and he goes to work for a competitor, Company B. There is no evidence that the former employee has documents with confidential information or trade secrets or has revealed any of A’s trade secrets or confidential information to Company B. However, Company A argues that its former employee has the trade secrets and confidential… Read more