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Litigation

Jul 27, 2022

What Is Monopolization Anyway? (And How To Know It When You See It)

“Monopoly” is an economic threat that anyone can understand. Back in 2009, the Federal Trade Commission published a cartoon short for children that illustrates what happens when businesses don’t have to compete for customers, workers, or suppliers. As that cartoon said of the 1890s, “prices were up, and, quality…well…it wasn’t a priority.” In other words, when competition is absent, the monopoly wins, and everyone else winds up paying more money for less product and worse service, and workers get a lower wage. In recent years, monopoly has re-entered the public’s attention as calls to “break up big tech” have escalated… Read more

Jul 5, 2022

SCOTUS: Prosecutors Must Prove “Subjective” Knowledge to Convict Doctors Under the Controlled Substances Act

On June 27, 2022, the United States Supreme Court clarified the “knowingly or intentionally” standard for criminal prosecutions against doctors accused of overprescribing addictive medications in violation of the Controlled Substances Act. In Ruan v. United States and Kahn v. United States, federal prosecutors accused two licensed doctors of illegally prescribing large volumes of opioid painkillers to patients. The cases arose under 21 U.S.C. § 841, which makes it a crime: (1) except as authorized; (2) knowingly or intentionally; (3) to manufacture, distribute, or dispense… a controlled substance. For background, the prosecution must prove that the defendant “knowingly” broke the… Read more

Jun 2, 2022

Unanimous U.S. Supreme Court Rejects Prejudice Requirement for Arbitration Waiver

On May 23, 2022, the U.S. Supreme Court considered the question of waiver in a case governed by the Federal Arbitration Act (“FAA”) and held that a party can waive its right to arbitration irrespective of whether the other party suffered prejudice. Morgan v. Sundance, Inc., No. 21-328 Robyn Morgan worked as an hourly employee for Sundance, Inc., a Taco Bell franchisee that operated more than 150 Taco Bell restaurants. Morgan worked for Sundance’s Taco Bell restaurant in Osceola, Iowa. When she applied for that job, she signed an arbitration agreement in which she agreed to “use confidential binding arbitration,… Read more

May 3, 2022

Blinded By The Light? Georgia Court of Appeals Says Commercial Greenhouse Light Not A Nuisance

In Kempton v. Southern Flavor Real Estate, L.P.[1], the Georgia Court of Appeals affirmed a summary judgment order in favor of a commercial greenhouse operator and against a residential neighbor’s claim of nuisance due to excess light emitted from the greenhouse. The greenhouse business was located on rural land zoned for agricultural use. The greenhouse used automated lights mounted near the glass roof and pointed down toward the floor. A significant amount of the light reflected upward and was emitted through the roof. The neighbor owned the adjoining land with a house located about 1,000 feet from the greenhouse. The… Read more

Apr 19, 2022

Georgia General Assembly Passes HB 478: Establishes Daubert Evidentiary Standard in Georgia Criminal Cases

On Wednesday, March 30, 2022, the Georgia General Assembly passed HB 478 to extend the Daubert evidentiary standard for expert testimony in Georgia to criminal prosecutions. The move to adopt Daubert for criminal matters was motivated, in part, by the need for insightful discussion into the validity of expert testimony in criminal cases and the need for consistency across civil and criminal proceedings in Georgia.[1] Undoubtedly, the passage of HB 478 is timely and important. The benefits of this bill would upgrade Georgia’s criminal jurisprudence and make the State’s expert witness standards consistent. The Daubert standard (embodied in O.C.G.A. §… Read more

Apr 14, 2022

Is Your Product Really “Made in the USA?” The FTC is Asking.

Authored by: Amy E. Buice and Wm. Parker Sanders The FTC is serious about enforcing the Made in USA Labeling Rule. On April 12, 2022, the DOJ, on behalf of the FTC, sued Lithionics Battery LLC and its owner, Steve Tartaglia, in the United States District Court for the Middle District of Florida for allegedly falsely representing that its lithium ion cells are made in the United States.[1] It brought its action under the Made in the USA Labeling Rule and Section 5 of the FTC Act. The Made in the USA Labeling Rule, which took effect on August 13,… Read more

Mar 8, 2022

Rescission of Agreement Defeats Arbitration Clause

Authored by: Marcia M. Ernst The Eleventh Circuit Court of Appeals recently affirmed the district court’s denial of a defendant’s motion to compel arbitration because the parties had mutually rescinded the settlement agreement containing the arbitration clause. In Reiterman v. Abid,[1] a law school admissions test prep teacher sued a former student in 2018, claiming she had defamed him by creating anonymous blogposts that accused him of sexually assaulting multiple women.[2] The former student denied involvement in the internet smear campaign, and the teacher and student entered into a settlement agreement in the summer of 2018. The settlement agreement included… Read more

Feb 10, 2022

Use of Signal Jammer to Prevent Employees from Using their Phones at Work Results in FCC Fine

Authored By: Marcia M. Ernst  While the National Labor Relations Board (“NLRB”) previously upheld an employer policy that prohibited employee phone use at work for safety and security reasons[1], the Federal Communications Commission (“FCC”) recently upheld a fine against an employer for using a signal jamming device to prevent employees from using their phones at work.[2] Signal jammers, which overpower, block, or interfere with authorized radio frequencies and communications, are illegal under the federal Communications Act of 1934, as amended (“Act”)[3], with only a few exceptions recognized for use by the government. Jammers present a direct danger to public safety… Read more

Feb 1, 2022

SB 329 and HB 961 Introduced in the Georgia General Assembly to Address Court Ruling Barring Apportionment of Damages in Single Defendant Cases

Authored By: Marcia M. Ernst In Alston & Bird, LLP v. Hatcher Management Holdings, LLC, 862 S.E.2d 295 (Ga. 2021), the Georgia Supreme Court limited the apportionment of fault in tort cases. As reported in SGR’s Appellate Blog, the Court ruled that O.C.G.A. § 51-12-33(b) allowed the apportionment of fault among persons who are liable (parties and non-parties) only in a multi-defendant case. In other words, where a case is brought against only a single defendant, no fault can be apportioned to responsible non-parties and the defendant must pay 100 percent of the damages, less any percentage of fault attributed… Read more

Jan 25, 2022

There is No Common-Law Right to Boot a Vehicle in Georgia: Booting a Car is Not the Same as Corralling Livestock

Authored by: Marcia M. Ernst In the case of RCC Wesley Chapel Crossing, LLC et al. v. Forrest Allen et al., the Georgia Supreme Court addressed whether a common-law right exists to allow a private property owner to boot a vehicle parked on its property without permission. Booting is the practice of immobilizing a vehicle until the owner pays to have the immobilization device removed. Plaintiff sued the owner-operator of a parking lot and the commercial tenants of the connected shopping center claiming negligence, premises liability, false imprisonment, conversion, and violation of the Georgia Racketeer Influenced and Corrupt Organizations Act… Read more