In Chan v. Ellis, Case No. S14A1652 (decided March 27, 2015), the Georgia Supreme Court addressed an unusual application of Georgia’s anti-stalking law. The Court held that mean or abusive postings on a party’s own website that were not sent to the alleged victim did not amount to illegal stalking. Mr. Chan operated a website in which and others published commentary critical of copyright enforcement practices that they considered predatory. Ms. Ellis is a poet whose efforts to enforce her copyrights had drawn the attention of Mr. Chan. On his website, Mr. Chan had published varied posts about Ms. Ellis… Read more
Tag: Georgia Appellate
A Cautionary Tale for Business Organizations Testifying Through a Designated Representative
Under Federal Rule of Civil Procedure 30(b)(6), a party can seek to depose a corporation or an organization by sending a notice or subpoena that describes “with reasonable particularity the matters for examination.” The corporation or organization must then identify an individual who “must testify about information known or reasonably available to the organization” regarding the designated subjects. Because a corporation had failed, in the view of the district court and the court of appeals, to fulfill its obligation to provide a sufficiently knowledgeable designated representative, it was the subject of sanctions that were affirmed on appeal in Imperial Premium… Read more
“Full-Time” Work Covenant
Can an Employer Enforce a Covenant Requiring an Employee to Devote “Full-Time” to Their Work? In Early v. MiMedx, Inc., Case No. A14A2141 (decided February 10, 2015), the Georgia Court of Appeals addressed the enforceability of a covenant requiring a person to “devote her full working time” to the performance of her duties. The decision raises interesting issues about the enforceability of such agreements. MiMedx entered into a consulting agreement with another company, ISE, that provided that Ms. Early, the founder, and president of ISE, would “devote her full working time (not less than forty (40) hours per week) to… Read more
An Arbitration Agreement Binds a Receiver
In Wiand v. Schneiderman, Case No. 14-11203 (decided February 10, 2015), the United States Court of Appeals for the Eleventh Circuit held that a receiver appointed by a federal court was bound to adhere to existing arbitration agreements when performing activities as a receiver. A federal court had appointed the appellant, Burton Wiand, as a receiver for six hedge funds that were alleged to have been part of a Ponzi scheme. The receiver was appointed to marshal the assets of the hedge funds in order to compensate the defrauded investors. As a part of that effort, Mr. Wiand initiated cases… Read more
What Are The Odds That The Georgia Supreme Court Will Grant You A Write of Certiorari?
The Georgia judicial system has two levels of appellate courts: the Georgia Court of Appeals and the Georgia Supreme Court. Except in a few narrow categories of cases, appeals from decisions of Georgia trial courts go to the Georgia Court of Appeals. However, the Georgia Supreme Court can review a decision of the Georgia Court of Appeals by issuing a writ of certiorari. The statistics published by the Court indicated that the Georgia Supreme Court grants a writ of certiorari in response to approximately one out of 10 of the petitions that it receives. The Court’s rules state that a… Read more
A Million-Dollar Challenge Is Not An Enforceable Contract
“I would pay a million dollars if that happened” might seem like an empty boast. However, if you took the trouble to make happen what the boasting party wanted to have happen, could you claim the million dollars? The United States Court of Appeals for the Eleventh Circuit addressed that issue in Kolodziej v. Mason, Case No. 14-10644 (decided December 18, 2014). In the circumstances presented, the Court held that the empty boast could not form the basis of an enforceable contract. In the course of a murder prosecution in Florida, the prosecution advanced a theory that the defendant, in… Read more
D&O Insurance Coverage and Failed Banks
The financial crisis that occurred several years ago led to the failure of a number of financial institutions. The failure of those financial institutions inevitably led to litigation over who should bear the consequences of those failures. When the Federal Deposit Insurance Corporation (“FDIC”) took over a number of banks, it filed lawsuits against the directors and officers of the failed institutions, alleging negligence and improper banking practices. Those lawsuits led to further litigation over whether the D&O insurance for the banks provided coverage for those claims. Directors and officers liability Insurance (“D&O”) is liability insurance payable to the directors and officers of a… Read more
When Published Decisions Of The Georgia Court Of Appeals Are Not Binding Precedent
In two earlier postings (“When a Published Decision is Not Binding Precedent,” posted April 8, 2013; “Binding Precedent Revisited,” posted July 25, 2013), this blog looked at the frequency with which the Georgia Court of Appeals has issued published decisions that are not binding precedent. If the case is decided by a three-judge panel of the Court and at least one of the judges concurs in whole or in part in the “judgment only,” that decision is not binding precedent as to that part of the decision in which a judge has so concurred. December 1, 2014 was the last… Read more
The Eleventh Circuit Rejects A Strategy For Mooting A Class Action
In recent years, defendants facing a consumer class action have attempted to moot the class action by making an offer of judgment that would give complete relief to the individually-named plaintiffs. The Eleventh Circuit rejected that strategy in Jeffrey Stein, D.D.S., M.S.D., P.A. v. Buccaneers Ltd. Partnership, Case No. 13-15417 (decided Dec. 1, 2014). In the Stein case, six plaintiffs filed a proposed class action alleging that they had received unsolicited faxes from the defendant in violation of the Telephone Consumer Protection Act. That statute imposes statutory damages of $500 per violation, which can be trebled. After removing the case… Read more
What Makes An Effective Disclaimer?
In Raysoni v. Payless Auto Deals, LLC, Case No. S13G1826 (decided November 17, 2014), the Georgia Supreme Court offered guidance to sellers and buyers about what constitutes an effective disclaimer of warranties and representations. The Plaintiff had purchased a minivan from Payless Auto Deals. Asserting claims of common law fraud and violations of the Fair Business Practices Act, the Plaintiff alleged that the salesperson had misrepresented the vehicle as never having been damaged. The trial court had dismissed the case, finding that the complaint failed as a matter of law to state a claim, and the Georgia Court of Appeals… Read more