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

Jun 29, 2021

Elizabeth Holmes: A Lesson in Attorney-Client Privilege

Joint Employer Rule

When an attorney works with a company, either in-house or as outside counsel, that attorney often wears many hats. They’ll attend meetings, be copied on all sorts of emails, and give both legal and business-related advice. Given this dynamic and the multiple lines and types of communication, employees may be confused about their relationship with corporate counsel and may mistakenly believe their communications are protected by attorney-client privilege. This confusion can lead to serious implications for the later invocation of the attorney-client privilege both for the company and the employee. Most recently, these blurred lines led to a loss of… Read more

Jun 4, 2021

The Importance of Follow-Up/Oversight on Contract Provisions

Companies should be aware that even when they have a written contract that spells out the parties’ responsibilities, e.g., pay rent monthly, they need to monitor compliance with those responsibilities.  Failure to do so – sloppy follow-up – can result in a “quasi-new agreement.” The Georgia Court of Appeals’ recent decision in The Hatchett Firm, P.C. v. Atlanta Life Financial Group, Inc., 358 Ga. App. 607 (2021), vividly illustrates this point.  In that case, a sublessee paid partial rent payments for ten months and no rent for 6 months.  The sublessor sued the subtenant for the unpaid past due rent… Read more

Mar 30, 2021

United States Supreme Court Unanimously Rejects a Causal Link Requirement in Specific Jurisdiction Inquiry

Ford Litigation

A unanimous U.S. Supreme Court held in Ford Motor Co. v. Montana Eighth Judicial District Court that the connection between Ford’s activities in a forum state and products liability claims was “close enough” to support specific jurisdiction. The 8-0 decision (Justice Barrett not participating) rejected Ford’s arguments that the state courts lacked jurisdiction because Ford had not designed, manufactured, or sold the particular vehicles involved in the car accidents. The Montana Eighth Judicial District Court case was consolidated with Ford Motor Co. v. Bandemer. Montana Eighth Judicial District Court case involved a Ford Explorer that had originally been purchased in Washington that through subsequent repurchases… Read more

Nov 2, 2020

Yellowstone Proceedings and the Pandemic: Do COVID-19 Mandates Frustrate Performance?

For Lease

The legal press is rife with articles and speculation about the defenses of impossibility and/or frustration of performance to lease defaults triggered by state and local mandates prohibiting or limiting access to businesses. A decision released last week addressed that issue. Rame, LLC leased space at 200 Park Avenue from Metropolitan Realty Mgt., Inc. In September 2020, Metropolitan sent Rame a notice of default, alleging that it owed unpaid rent from December 1, 2017 through September 1, 2020 in the amount of $1,863,821.70, and set a deadline of on or before September 14, 2020 to cure the default. Rame sought… Read more

Oct 23, 2020

Do Inability to Perform Catchall Provisions Excuse Non-Performance Due to the COVID-19 Pandemic?

Non-performance lease

Many contracts contain an “inability to perform” provision. And these same provisions also often times provide specific excusable reasons for a party to not perform, followed by a catchall statement, setting forth “or any other cause beyond the parties reasonable control, whether or not such other cause shall be similar in nature to those hereinbefore enumerated”. With the COVID-19 pandemic still in full effect, businesses across New York City have begun to face significant economic hardships, and are thus pointing to this catchall statement, as confirmation that they are likely excused from performing their contractual duties. However, they should not… Read more

Oct 5, 2020

The President Authorizes the Antitrust Criminal Penalty Enhancement and Reform Permanent Extension Act

On June 25, 2020, the U.S. House of Representatives and Senate passed identical bills, H.R. 7036 and S. 3377, repealing the sunset provisions of the Antitrust Criminal Penalty Enhancement and Reform Act (“ACPERA”).[1] On October 1, 2020, the President signed into law a continuing resolution. The resolution contains the Antitrust Criminal Penalty Enhancement and Reform Permanent Extension Act, which reauthorizes ACPERA and repeals its sunset provision. [2] ACPERA was enacted in 2004 to encourage antitrust violators to cooperate with government prosecutors and private litigants in antitrust cases. Under the Act, if an amnesty applicant into the Department of Justice’s Antitrust… Read more

Sep 21, 2020

Waiver Of Money Damages And The Inadvertent Consent To Injunctive Relief

When drafting commercial contracts, attorneys often insist on including a provision requiring one or both parties to waive claims for money damages in the event of an alleged breach. For example, commercial leases often include a provision requiring the tenant to waive claims for money damages in matters pertaining to the landlord’s exercise of its judgment in withholding consent or approvals under the lease. While these provisions are intended to reduce risk by removing the exposure to money damages, they may have the unintended consequence of a finding that the parties have contracted for, and consented to, the granting of… Read more