In Buehrle v. City of Key West, Case No. 14-15354 (decided December 29, 2015), the United States Court of Appeals for the Eleventh Circuit considered whether a limit on the number of tattoo establishments in the City of Key West, Florida infringed the First Amendment rights of a tattoo artist. From 1966 through 2007, the City of Key West, Florida prohibited the operation of any tattoo parlors. Opinion, pp. 2-3. As a result of litigation, Key West adopted an ordinance permitting two tattoo businesses to operate in its historic district. According to the Opinion, Key West maintained that “tattoo establishments… Read more
Tag: Georgia Appellate
Generic Drug Labeling in Georgia
In Georgia, Brand Name Drug Manufacturers are Not Responsible for the Labeling of Generic Drugs In Pliva, Inc. v. Dement, Case No. A15A1157 (decided November 20, 2015), the Georgia Court of Appeals joined the majority of jurisdictions that have held that a party who claims to have been injured by allegedly incorrect or inadequate warnings on a drug produced by a generic manufacturer cannot attempt to blame the manufacturer of the identical brand name drug. Under federal law, a generic drug manufacturer is obligated to use the same labeling that the FDA has approved for the identical brand name drug…. Read more
Commercial Speech in the Eleventh Circuit
You Say Tomato, I Say Tomato In Dana’s Railroad Supply v. Florida Attorney General, Case No. 14-14427 (decided November 4, 2015), the United States Court of Appeals for the Eleventh Circuit addressed an interesting issue involving the application of the First Amendment to commercial speech. The Court concluded that the State of Florida was improperly regulating commercial speech by authorizing one type of conduct and penalizing other conduct when, in the Court’s view, there was no difference between the two types of conduct. In the Court’s view, the statute at issue drew a distinction merely over how the conduct was… Read more
Interns Come to the Eleventh Circuit
Recently, the news has contained reports about litigation over the status under federal labor laws of unpaid interns. Such internships can provide valuable training to students as well as offering a foot in the door of a future employer. However, internships may at times feel more like real work than educational experiences. Interns may feel that employment-like experiences entitle them to employment-like benefits such as regular pay and the protection of federal labor laws. When does an internship cross over from being an educational experience into employment? The Eleventh Circuit addressed that issue in Schumann v. Collier Anesthesia, P.A., Case… Read more
A Lesson About Protective Orders
In Glock v. Glock, Inc., Case No. 14-15601 (decided August 17, 2015), the United States Court of Appeals for the Eleventh Circuit addressed a novel about the use of discovery taken in the United States to aid a case filed overseas. However, the more useful lesson of that case is about protective orders. Glock, Inc. is the well-known manufacturer of guns. In 2011, Gaston Glock and Helga Glock began a divorce proceeding in Austria. In connection with those proceedings, Helga Glock filed an action in the United States under 28 U.S.C. § 1782 seeking to discover evidence from Glock, Inc. and… Read more
The Georgia Supreme Court Again Looks at the Apportionment of Fault Among Tortfeasors
Since the Georgia Legislature adopted a statute that abolished joint and several liability among tortfeasors and required juries to apportion fault among responsible parties, including nonparties, the Georgia Supreme Court on several occasions has wrestled with the issue of who could be a party at fault and, therefore, someone to who a jury could attribute a share of responsibility. In Zaldivar v. Prickett, Case No. S14G1778 (decided July 6, 2015), the Georgia Supreme Court interpreted very broadly the definition of who could be a party at fault. That has implications for a wide variety of cases. The Zaldivar case arose… Read more
The Georgia Supreme Court Addresses What Triggers a Duty to Preserve Evidence
In recent years, many courts, including the Georgia appellate courts, have addressed the issue of what triggers the duty of a party to preserve potential evidence for a dispute. In an era of proliferating electronic documents, that issue has become even more pressing. In a number of cases, the Georgia Court of Appeals held that a potential defendant did not have a duty to preserve potential evidence until a potential plaintiff gave notice of a possible claim. In Phillips v. Harmon, Case No. S14G1868 (decided June 29, 2015), the Georgia Supreme Court rejected that bright line test. That decision may… Read more
Federal Banking Laws Preempt the Application of the Florida Whistleblower Act to Federally-Chartered Banks
In Wiersum v. U.S. Bank, N.A., Case No. 14-12289 (decided May 5, 2014), the United States Court of Appeals for the Eleventh Circuit held that federal statutes governing federally-chartered banks preempt the application of the Florida Whistleblower Act in a case brought by a former bank officer. U.S. Bank, N.A. is a federally-chartered bank. The plaintiff, a former vice-president of the bank, alleged that the bank had violated a particular federal statute governing banking practices. The plaintiff claimed that, in retaliation for his objections about the practice, the bank terminated his employment. Plaintiff brought a claim under the Florida Whistleblower… Read more
Disclaimer and Merger Clauses in Contracts
In Legacy Academy, Inc. v. Mamilove, LLC, Case No. S14G1891 (decided April 20, 2015), the Georgia Supreme Court reinforced a long-standing rule in Georgia that disclaimer and merger clauses in contracts are effective to defeat claims that a party to a contract was defrauded by promises and representations not reflected in that contract. Mamilove and its officers had sued Legacy Academy for rescission of a franchise agreement and for damages relating to the purchase of a franchise. The franchisees claimed that they had received from the franchisor representations about the future earnings of the franchise. However, the franchise agreement they… Read more
The Georgia Court of Appeals Looks at Duties Arising from Insurance Company Inspections
The January term of the Georgia Court of Appeals ended on March 30, 2014. As is often the case, the Court issued some of its more interesting decisions at the end of the term. In Bing v. The Zurich Servs. Corp., Case No. A14A1911 (decided March 25, 2015), the Court addressed the tort duties that arise when an insurance company undertakes inspections of its insured’s property. The case arose out of the explosion that occurred in 2008 at the Imperial Sugar Company sugar refinery in Port Wentworth, Georgia. Zurich American Insurance Company, who had issued a property insurance policy for… Read more