Sep 5, 2019

Standing to Sue for Unsolicited Text Messages

unsolicited text message

In Salcedo v. Hanna, Case No. 17-14077 (decided August 28, 2019), Mr. Salcedo had received a single unsolicited text message from his former lawyer offering a discount on services.  Mr. Salcedo sued Mr. Hanna alleging that the unsolicited text message violated the Telephone Consumer Protection Act of 1991 (TCPA). The TCPA imposes statutory damages of $500 per text, which can be trebled for a text sent knowingly or willfully. Mr. Salcedo sought to represent a class of former clients of Mr. Hanna who had also received such unsolicited text messages.  But, did Mr. Salcedo have “standing” to sue? The United… Read more


Aug 30, 2019

Public Policy and Enforcing Contracts in Georgia

GA Loan Repayment

Several Georgians borrowed modest sums and secured those loans using the proceeds they might recover on personal injury claims.  Repayment of the loans was contingent on the borrowers’ recovering on their personal injury claims.  The borrowers filed a lawsuit against the lenders in Georgia state court alleging that the interest rates on the loans were usurious and violated the Georgia Payday Lending Act and Industrial Loan Act. The lenders removed the case to federal court and argued that the loan agreements required such a lawsuit to be filed in Illinois and also forbid class actions.  But, could those requirements be… Read more


Aug 22, 2019

Eleventh Circuit Limits Local Utility Monopolies

City Water Supply

Can a municipal water utility use its monopoly to increase its natural gas sales to homeowners?  In Diverse Power, Inc. v. City of LaGrange, Georgia, Case No. 18-11014 (decided August 20, 2019), United States Court of Appeals for the Eleventh Circuit answered “no.” The City of LaGrange enjoys a monopoly on providing water service within the City of LaGrange and in portions of surrounding, unincorporated Troup County. The City also provides natural gas service to those areas.  In 2004, the La Grange City Council passed an ordinance that provided that for new residential construction outside of the city limits of… Read more


Jul 23, 2019

When Can You Apportion Liability For A Group Action?

Liability on Loan

How do you apportion liability among parties equally responsible for a decision? Short answer: Sometimes, you don’t. That was the answer reached by the United States Court of Appeals for the Eleventh Circuit in Federal Deposit Insurance Corporation v. Loudermilk, Case No. 16-17315 (decided July 22, 2019). The case involved the failed Buckhead Community Bank. After the bank failed, the FDIC, as receiver, sought to hold the directors who served on the loan approval committee liable for allegedly negligently having approved certain risky loans. Eventually, a jury held the committee members liable for approving four loans and awarded the FDIC… Read more


May 21, 2019

Georgia Supreme Court Looking at Data Breach Liability

Personal Data Breach

Data breaches and the unintentional disclosure of personal information are much in the news. Whether such events give rise to tort liability is an issue being looked at by the Georgia Supreme Court. Georgia Department of Labor v. McConnell, Case Nos. S18G1316 and S18G1317 (decided May 20, 2019), involved an unintentional disclosure by the Georgia Department of Labor of the personal information of applicants for unemployment benefits and other Department services.  A Department employee had sent an email to approximately 1000 recipients that included a spreadsheet containing the personal information, including social security numbers, of over 4500 applicants.  One individual… Read more


May 2, 2019

Another Tool to Fight Frivolous Litigation

Tool to Remedy Frivolous Litigation

In Showan v. Pressdee, Case No. 17-15547 (decided April 29, 2019), the United States Court of Appeals for the Eleventh Circuit held that litigants in federal court cases governed by Georgia law could invoke a Georgia statute that provides a remedy for frivolous litigation. O.C.G.A. § 9-11-68 includes provisions creating a procedure for a party to make an offer of judgment. If a party makes such an offer and the outcome of the case is not as favorable to the other party as accepting the offer of judgment would have been (the statute defines the thresholds), the offering party can recover… Read more


Feb 7, 2019

Is a Foreign Country a More Convenient Forum for Litigation?

Ziplining case: foreign forum for litigation?

O.C.G.A. § 9-10-31.1 allows a court to dismiss a lawsuit filed in Georgia, “for the convenience of the parties and witnesses” when that claim “would be more properly heard in a forum outside of” Georgia. Can a Georgia case be dismissed in favor of a forum of a foreign country? In La Fontaine v. Signature Research, Inc., Case No. S18G0078 (decided February 4, 2019), the Georgia Supreme Court said “no.” The plaintiffs in the case resided in Michigan and the defendant was a Georgia corporation. However, the case arose when the plaintiffs were injured in a fall from a collapsed zip-line… Read more


Nov 5, 2018

Product Warranties in the Amazon Age

Product Warranties: Amazon boxes ready to ship

New products typically come with warranties. Those warranties also can include other provisions that affect the consumer’s legal rights such as disclaimers of warranties and arbitration clauses. These days, products often aren’t purchased at a store. Consumers purchase them with the click of a mouse, and they are delivered to the front door. How do the terms of a product warranty come into existence when the buyer never touches the product until they arrive after the purchase? The Eleventh Circuit Court of Appeals addressed this question in Dye v. Tamko Bldg. Products, Inc., Case No. 17-14052 (decided November 2, 2018)…. Read more


Oct 23, 2018

Eleventh Circuit Rejects Georgia’s Copyright for the Annotations to the Official Code of Georgia

Georgia Supreme Court: Georgia Code

A government cannot copyright a statute, but what about the annotations to the statute? In Code Revision Commission v. Public.Resource.Org, Inc., Case No. 17-11589 (decided Oct. 19, 2018), the United States Court of Appeals for the Eleventh Circuit held that the annotations to the Georgia Code were part of the Code and could not be copyrighted by the State of Georgia. Like many state codes, Georgia’s Official Code is published with annotations including describing relevant case law applying the provisions of the Code. Those annotations are prepared by a private company under contract with the State of Georgia. That company… Read more


Oct 23, 2018

Who Decides Whether Class Action Arbitration Is Available? The Eleventh Circuit Weighs In

California Grange Summary Judgement

In JPay, Inc. v. Kobel, Case No. 17-13611 (decided September 19, 2018), the United States Court of Appeals for the Eleventh Circuit addressed whether a court or an arbitrator must decide whether a matter could be arbitrated as a class action. The two claimants at issue had purchased services from JPay. As part of their purchases, they entered into agreements that provided that any dispute between the parties arising out of their agreements would be resolved by arbitration. The agreements specifically said that disputes would be arbitrated pursuant to Rules of the American Arbitration Association. The agreement further provided that… Read more