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


Jun 18, 2018

Big Decisions Come as Georgia Supreme Court Nears the End of its Term

Georgia Supreme Court: Georgia Code

The Georgia Supreme Court is reaching the end of its April Term. This means that cases submitted to the Court during the December Term that have not yet been decided will be decided in the next few weeks. On June 18, the Georgia Supreme Court issued a number of significant decisions. Colonial Oil Ind., Inc. v. Lynchar, Inc., Case No. S18G1788. This case involves the enforcement of agreements guaranteeing the payment of a debt. The relevant agreement identified the debtor as T&W Oil, Inc. When the debt was not paid, Colonial sued the two guarantors. The guarantors claimed that the… Read more


Jun 5, 2018

Distracted Driving and Snapchat

Distracted Driving: woman on cell phone

In Maynard v. Snapchat, Inc., Case No. A18A0749 (decided June 5, 2018), the Georgia Court of Appeals addressed a tragic situation involving an automobile accident caused by distracted driving and the popular application Snapchat. The Maynards were injured in a traffic accident involving another automobile. According to an affidavit given by a passenger in that other vehicle, the driver of the other vehicle was using the Snapchat application at the time of the accident. The Snapchat application allows the user to take temporary photos and videos and share them. The application has various filters that allow the user to include… Read more


Mar 26, 2018

The Georgia Supreme Court Looks at Georgia’s New Evidence Code

Evidence Code

Effective January 2013, the Georgia General Assembly enacted a new Evidence Code modeled after the Federal Rules of Evidence. Since then, Georgia courts have wrestled with how to interpret Georgia’s Evidence Code and what to do with the body of earlier case law addressing evidence issues. The Georgia Supreme Court recently confronted this issue in Chrysler Group, LLC n/k/a FCA US LLC v. Walden, Case No. S17G0832 (decided March 15, 2018). The case arose out of a personal injury judgment entered against Chrysler. The specific issue the Supreme Court confronted was the admission into evidence of the annual compensation of… Read more


Feb 21, 2018

Attempt to Add an Arbitration Clause to a Customer Agreement during Litigation is Ineffective

Arbitration

In Dasher v. RBC Bank (USA), Case No. 15-13871 (decided February 13, 2018), the United States Court of Appeals for the Eleventh Circuit considered whether a bank could invoke an arbitration clause to block litigation when the bank had added the arbitration clause to its customer agreement by amendment while the litigation was in progress. The Eleventh Circuit held that the bank could not. Mr. Dasher filed a lawsuit against RBC Bank regarding the bank’s overdraft practices. A 2008 customer agreement contained an arbitration agreement, but a 2012 amendment to the customer agreement, issued while the case was pending, had… Read more


Feb 5, 2018

The Georgia Supreme Court Will Look at Litigation Funding

Court Ruling

A previous post in this blog reported that the Georgia Court of Appeals decided in Cherokee Funding, LLC v. Ruth, Case No. A17A0132 (decided June 27, 2017), that a litigation funding agreement was not subject to the Georgia Industrial Loan Act or the Payday Lending Act. That decision removed a potential barrier to litigation funding.  It has become a more common means for plaintiffs (and sometimes defendants) to finance the costs of litigation. Today, the Georgia Supreme Court granted certiorari in that case and posed to the parties the question: “Are the litigation funding agreements at issue in this case subject… Read more


Feb 1, 2018

Does a Self-Serving and Uncorroborated Affidavit Have Any Use? “Yes,” Says the Eleventh Circuit.

Rule 56 of the Federal Rules of Civil Procedure allows a court to dispose of a case as a matter of law when no genuine issue of material fact exists. Can an affidavit from a party create a genuine issue of material fact even if it is “self-serving and uncorroborated”? In United States v. Stein, Case No. 16-10914 (decided January 31, 2018), the United States Court of Appeals for the Eleventh Circuit answered “yes.” The case involved an IRS tax assessment against Mrs. Stein. The government alleged that Ms. Stein owed outstanding taxes, penalties, and interest for a number of… Read more


Sep 27, 2017

Please Call Back: When is a Voice Mail from a Debt Collector Harassing?

man dialing phone

An individual received a voice mail message from a debt collection company. The message stated the name of the company and that the call was from a debt collector, and asked that individual to call back at a particular number. She filed a lawsuit alleging that the voice mail was a harassing communication that violated the Fair Debt Collection Practices Act (“FDCPA”). In Hart v. Credit Control, LLC, Case No. 16-17126 (decided September 22, 2017), the United States Court of Appeals for the Eleventh Circuit addressed two issues about the application of the FDCPA to that voice mail message. First,… Read more


Sep 25, 2017

Judicial Estoppel Won’t Automatically Preclude a Lawsuit Omitted from Bankruptcy Schedules

Bankruptcy Law & Judicial Estoppel

Courts regularly apply the equitable doctrine of judicial estoppel to justify the dismissal of a lawsuit brought by a person that had filed for bankruptcy. The doctrine generally has worked as follows. A party files for bankruptcy. As a part of that process, the debtor must identify his assets. Those assets could include a potential lawsuit (an automobile accident claim, a discrimination claim). However, the bankrupt party fails to include that potential claim on his list of assets. The party completes the bankruptcy process. The party then files a lawsuit asserting the claim that he failed to identify in his… Read more