Litigation Archives

Apr 15, 2020

Does The Money In Your Bank Account Really Belong To You?

Given the economic uncertainty caused by the current health crisis, many borrowers may be forced to default on loans or lines of credit they have with their banks. It is therefore an important time to understand the legal relationship between a bank and a depositor, and the bank’s right of setoff. Take a look at the balance in your checking or savings account. How much of that money actually “belongs” to you? You may be surprised to learn that, in New York, the funds in a general bank account do not technically belong to the depositor. At the moment of… Read more

Apr 15, 2020

They Don’t Call Us “Counselor” For Nothing: Part Two of Three

In Part One, the importance of sustaining a client’s morale was discussed. Sustaining morale becomes particularly difficult when rendering candid advice. Part Two will discuss the balance between sustaining morale and rendering candid advice. Rule 2.1 of the Rules of Professional Conduct, in the part entitled “Counselor,” addresses “giving candid advice”: In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. A lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client. The Comment following the Rule 2.1 reveals the delicate balance a “counselor”… Read more

Apr 13, 2020

Updates: New York Federal & State Courts

In less than two weeks, there have been several changes to the response of the New York Federal & State Courts to COVID-19. This blog post is to provide an update to our prior blog post that may be found here. New York Federal Courts SDNY All jury trials are now suspended until at least June 1, 2020. In-court appearances are restricted to “emergency matters” NDNY Most criminal proceedings are now temporarily being held remotely via Skype. New York State Court Court of Appeals The Court of Appeals will not hear oral argument during the April/May session and the building… Read more

Apr 9, 2020

They Don’t Call Us “Counselor” For Nothing: Part One of Three

Greetings from the Smith, Gambrell & Russell Litigation Blog: During challenging times like these, everyone could use a trusted advisor. With this in mind, the SGR Litigation Blog presents a three-part post entitled “They Don’t Call Us ‘Counselor’ for Nothing.” We hope you enjoy this series, which examines how attorneys counsel their clients by doing more than just providing legal advice. They Don’t Call Us “Counselor” For Nothing: Part One of Three The title “counselor” is often applied to lawyers; however, it connotes far more than one who gives legal advice.[1] We have ethical and professional responsibilities to “counsel” clients,… Read more

Apr 1, 2020

Response by the New York Federal & State Courts to COVID-19

New York Federal Courts OVERVIEW The response by the federal courts of New York to COVID-19 has been less drastic than the response by the New York State (“NYS”) courts. For example, in NYS court, pursuant to the Administrative Order of Chief Administrative Judge Lawrence Marks, all non-essential proceedings are halted. That means no filing of any kind – electronic or hard copy – is permitted. And pursuant to the Executive Order signed by Governor Cuomo, as of March 20, all time limits prescribed by New York procedural law, and all statues of limitations, are tolled until April 19, 2020…. Read more

Mar 9, 2020

Coronavirus: Can Georgia Government Officials Order An Individual Quarantined for Public Health Reasons?

At the end of February 2020, Georgia Governor Brian Kemp issued an executive order establishing a Coronavirus Task Force, comprised of subject-matter experts from the private and public sectors, to assess Georgia’s procedures for preventing, identifying, and addressing cases of the coronavirus (COVID-19). A few days later, in early March 2020, Governor Kemp confirmed that there were two confirmed cases of COVID-19 in Fulton County, Georgia. These cases involve two individuals who reside in the same household, one of which recently returned from Italy. In a press conference held on March 9, 2020, Governor Kemp stated there were six confirmed… Read more

Feb 17, 2020

Quick Answers to Four Top Questions When You Receive a Government Subpoena

In today’s increasingly regulated business environment, it is not uncommon to interact with a multitude of state and government agencies as you report and they confirm that certain aspects of your business are in compliance with regulations, statutes, and administrative orders. While these sorts of standard interactions may seem rote, another, more jarring interaction with government is when you or your employees receive a subpoena, Civil Investigative Demand (CID), or other request for testimony or production of documents. What is a subpoena or CID? A subpoena is a legally enforceable order made by a court at the request of a… Read more

Feb 5, 2020

When in Doubt Write it Out: Modifying, Cancelling, Revoking or Rescinding a Contract Subject to the Statute of Frauds

When entering into a contract, parties always have to ask themselves whether the contract must be written down and signed. Under the Georgia Statute of Frauds, contracts for (1) marriage; (2) sale of real property; (3) guaranteeing another’s debts; (4) terms of longer than one-year; (5) sale of goods for more than $500; (6) executor or other estate representative, promising to pay damages out of his/her own estate; (7) reviving a debt after the passage of the statute of limitations; and (8) commitment to lend money, must be in a writing and signed by the party to be charged therewith…. Read more

Jan 16, 2020

Okay, Google: Did You Violate U.S. Antitrust Laws?

Google[1] rang in the New Year with a fresh lawsuit, filed against it on November 25, 2019, looming in the United States District Court for the Northern District of Georgia by Inform, Inc. (“Inform”), an online advertising company.[2] Nothing says “Merry, Merry” and “Happy New Year” like a fresh batch of anticompetitive claims against the search engine we all resorted to for our obligatory “what to give Dad” and “30-day cleanse” searches. The suit alleges that “[t]o maximize [Google’s] advertising profits, to protect their valuable monopolies against potential competitive threats, and to extend Defendants’ [monopolies] globally and across digital devices,… Read more

Jan 7, 2020

Plaintiffs Beware: You May Have Less Time Than You Think to Bring a FDCPA Claim

In a recent 8-1 decision, the United States Supreme Court resolved a circuit split in favor of debt collectors. Rotkiske v. Klemm[1] (Rotkiske III). Mr. Rotkiske brought suit on June 29, 2015 against Klemm & Associates (Klemm) for violation of the Fair Debt Collection Practices Act (FDCPA). Id. at *2. In September 2014, Mr. Rotkiske applied for a mortgage and learned that Klemm had an outstanding $1,500 default judgment against him. Id. In 2008, Klemm attempted service at Mr. Rotkiske’s previous address and learned that Mr. Rotkiske no longer lived there. Id. Klemm dropped the suit for failure to serve… Read more