Business Litigation

Business Succession Planning: The Conflict of Corporate and Fiduciary Duties

In Georgia, a new state Supreme Court ruling will significantly affect court cases involving trusts and conflict of fiduciary duty. Rollins v. Rollins, decided in March, illustrates the substantial conflict of interest that can occur when the owners of a family-operated business also control a trust that owns a part of that business. Attorney John Tatum discusses the outcome of the case and what it means for business succession plans.

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Commercial Property Owners: Be Aware of Potential Environmental Liability

As government regulators have enacted increasingly stringent environmental regulations, commercial real estate owners are finding themselves vulnerable to greater environmental liability and related financial loss. It is important that business owners take a proactive approach to risk analysis and risk control when it comes to environmental concerns.

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Benefits of Mediation in Business Disputes

This article for Business in Savannah discusses when mediation can be a strategic alternative to traditional litigation.

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Appeals Process Can Provide Resolution in Business Disputes

HunterMaclean partner John M. Tatum offers an overview of Georgia’s appellate system, focusing on its potential importance for business disputes.

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Understanding Business Contracts

HunterMaclean partner Ben Hartman provides an informative overview of business contracts, offering suggestions to maximize their effectiveness for business owners.

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Arbitration and Mediation vs. Litigation

HunterMaclean attorney David M. Burkoff discusses the benefits of arbitration and mediation and when these options can serve as a strategic option during business disputes.

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Document Your Documents: Developing a Retention Policy

The twenty-first century ushered in a wave of new technology that has forever altered the way companies conduct business. Indeed, hand-written letters, large desktop calendars, and the postal service have been largely replaced by electronic documents, calendars on smart phones and e-mail. A major consequence of this switch to electronic information is that businesses are now creating and storing much more information than ever before.

Every company, large and small, should give serious thought on how to organize such vast amounts of information, not only because it is good business, but also because it could mean the difference between winning and losing a lawsuit. The solution to this organizational problem is creating an effective document retention policy.

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E-Commerce Growth, Mobiles Push Consumer Legislation

The Internet has emerged as an intercontinental catalogue of data, services and entertainment and a virtual marketplace for our on-demand society. As a result, mobile, web and social media usage has increased and e-commerce has exploded.

Both of these trends are expected to continue to grow at an extraordinary rate in 2012. However, despite its colossal benefits, the Internet is a breeding ground for consumer litigation, leaving legislators struggling to keep up, while courts are challenged with limited case law available.

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Does the Company or Staff Own Its Social Media Activities?

By Shawn A. Kachmar, published in Business in Savannah.

There is no doubt that the emergence of social media use in our everyday lives – both personally and professionally – has generated conflicting feelings of enthusiasm and uncertainty.

Businesses looking to establish a social media presence are faced with questions about which social media platforms and strategies are most effective and who is responsible for implementing the company’s social media strategy. Often overlooked in this process are questions about ownership of the company’s social media activities.

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Increased NLRB Activity Causes Controversy

The National Labor Relations Board (NLRB) has stepped up its scrutiny and oversight of alleged National Labor Relations Act (NLRA) violators, causing unrest among business leaders who oppose and fear an increasingly active NLRB. The five-member board is working to adopt a more pro-union perspective on the heels of the relatively pro-employer era of President Bush through increased enforcement and new rules.

The NLRA covers most private employers that meet certain minimum standards for involvement in interstate commerce. Retail or service employers are generally covered if they have gross sales of more than $500,000. Other employers (including manufacturers) are generally covered if they have an “inflow” or “outflow” of $50,000 or more to or from other states. The NLRA does not cover public employers and certain employers in the transportation industry.

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Business Contracts: Understanding the Ties That Bind

By Allan C. Galis, published on October 19, 2011, in Business in Savannah.

In all industries, from hospitality and manufacturing to exports and retail, contracts define the terms of agreements and, if clearly drafted, minimize potential future disputes.

A contract is typically a written or oral agreement in which the important terms are sufficiently definite to be legally binding and enforceable in a court of law. An effective contract requires a written agreement which includes an unambiguous offer (which should specify terms, conditions, and deadlines) and a valid acceptance, the manner of which may be determined by the terms of the agreement itself or by the conduct or course of dealing of the parties. Performance terms, conditions, and deadlines can be negotiated by either party before final acceptance.

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Federal, State Immigration Law Reform: What Employers Need to Know

On September 21, 2011, the Judiciary Committee of the United States House of Representatives approved a proposed bill that would mandate the use of E-Verify for all new hires in the U.S. The bill will now go to the full House of Representatives for a vote, but a date has not been determined. The proposed bill is the latest in a series of state and federal attempts to create a solution to immigration and employment concerns across the nation.

Georgia already has a mandatory E-Verify law, House Bill 87. Every public employer and most private employers will eventually be required to use E-Verify to determine the work authorization of new employees. Georgia employers with 500 or more employees will be required to use E-Verify starting January 1, 2012; employers with 100 to 499 employees will be required to use it starting July 1, 2012; and, employers with 10 to 99 employees will be required to use the program starting July 1, 2013.

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Retroactive Changes Affect Lobbyist, Ethics Legislation

Due to a broadening of the legal definition of a lobbyist in 2010, many Georgia companies found that they suddenly had quite a few such individuals on their payroll. After a frantic reaction across the state, the Georgia Legislature moved quickly to change the law. On March 15, 2011, Governor Nathan Deal signed House Bill 232, which narrows last year’s ”new” definition of lobbyist.

Now, if at the end of a month a person has spent more than 10% of their monthly working hours engaged in traditional lobbying activities – and has been specifically compensated for such lobbying activities – that person is required to register and report as a lobbyist.

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Board of Directors Positions Come With Rights, Liabilities

In the present litigious society, it has become a cautionary habit for individuals in positions of governing, directive or corporate power – where the probability and risks of a legal liability are high – to seek protection from liability in the event a lawsuit occurs.

Individuals in these leadership positions are typically invited to sit on a corporate or nonprofit board of directors to assist in the governing and management functions of the institution. However, most flattering propositions come with strings attached, and it is wise to consider two very important questions before accepting: What are the rights and responsibilities of the board as a collective and its members? Is there liability protection or insurance in place for its members?

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How to Avoid Business Partnership Disputes

By Nicholas J. Laybourn, published on February 23, 2011, in Business in Savannah.

There is much to be said about forging a business partnership. After all, two heads are usually better than one. However, business partnerships can highlight differences in personalities, goals and management styles and increase the chance for partnership disputes.

Entering into a business partnership in 2011? Rule number one: never enter into a business partnership without first securing a comprehensive partnership agreement or contract suitable to both parties. The process of planning for each situation is an enlightening process for partners and fundamental to a lasting partnership. This agreement also helps avoid costly court battles down the road, which could ultimately need to be sorted out by a judge.

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New Ethics Legislation Broadens Lobbyist Definition

Congratulations! You now have lobbyists on your payroll.

A recent change in Georgia’s law has greatly expanded the definition of lobbyist. Businesses beware – your salespeople may now be considered “vendor lobbyists” if they “court city and county agencies to buy goods and/or services.” Additionally, if they pitch any agency considered a “local political subdivision”, they must also register as a lobbyist.

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Bankruptcy vs. Workouts

Many businesses and business owners are in financial trouble during the current “Great Recession.”

Real estate related companies such as developers, community banks, mortgage brokers, realtors and contractors are particularly at risk. The reasons are simple: the bubble has burst, the value of commercial real estate has declined by 30% or more, the borrowers are required to continue to pay interest, the banks are required by the regulators to “clean up” their books by dumping real estate loans and demanding higher interest and earlier pay-downs of principal, and the borrowers have run out of cash at a time when their incomes are severely depressed.

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The Growing Importance of Brands and Trademarks in Today's Economy

This article discusses the importance of trademarks and trademark protection, particularly in light of current economic trends.

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UNESCO Documents and Procedure: The Need to Account for Political Conflict When Designating World Heritage Sites

By Allan C. Galis, published on March 1, 2009, in Georgia Journal of International and Comparative Law.

The United Nations Educational, Scientific, and Cultural Organization’s (UNESCO) World Heritage Convention has been called “the most successful global instrument for the protection of cultural and natural heritage,” 1 while also being criticized as “an instrument of ‘foreign domination.’ ” 2 Adopted by the United Nations in 1972, the World Heritage Convention (the Convention) is intended to identify, protect, and preserve cultural and natural heritage sites of “outstanding universal value” around the world. 3 Currently, 890 sites are protected under the Convention, 4 but not all of these listings were accepted without controversy. 5 The most recent controversial listing involves a border dispute between Thailand and Cambodia. The controversy surrounds the Temple of Preah Vihear and its inclusion on the World Heritage List (the List) as a Cambodian site. 6

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ADR: Is it Right for You?

By Kirby G. Mason, published on November 15, 2007, in Inside The Minds, Alternative Dispute Resolution Strategies.

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Litigation Attorneys Ease Business Disputes

By Kirby G. Mason, published on December 31, 1999, in Business in Savannah.

Before a business owner decides to take a dispute to court, there are some important matters to consider.

First, there are three primary ways to resolve a civil dispute: mediation, arbitration and trial. Mediation allows both parties to agree to a settlement with the help of a neutral party whose job it is to listen to both sides and help find a mutually agreed upon solution. Arbitration allows disputing parties to choose a neutral party to make a binding decision in the case. The proceedings are usually confidential, and the decision is normally not subject to appeal.

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