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Georgia Business Litigation

Robert C. Port

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Georgia Business Litigation, edited by Robert C. Port, is a one-volume, comprehensive guide to matters business litigators will encounter, including:  officer, director, shareholder, partnership and LLC disputes; securities litigation; non-compete and trade secret issues; RICO; business torts; fraudulent transfers; employment litigation; and the ever-increasing use of arbitration.  


Transactional attorneys will also find this handbook tremendously useful, as these issues present themselves regularly in non-adversarial or pre-adversarial contexts.  Written by a stellar panel of veteran GA litigators and arbitrators,  Georgia Business Litigation allows the reader to focus research, save time, field quick client questions, and follow specific areas of law as they develop year to year.

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  • Availability: Available
  • Brand: Daily Report (GA)
  • Product Type: Books
  • ISBN: 978-1-57625-822-4
  • Pub#/SKU#: GABL2
  • Pub Date: 06/19/2014

Author Image
  • Robert C. Port
Robert C. Port is of counsel with the Atlanta law firm of Gaslowitz Frankel, LLC. Previously he was a partner of Cohen, Goldstein, Port & Gottlieb, LLP, where he practiced business and securities litigation, with a particular emphasis on representing investors harmed by the misconduct of their stockbrokers, investment advisors, or insurance agents.

Contributing Authors

Suzanne H. Bertolett (Securities Litigation) Sutherland Asbill & Brennan LLP

Michael P. Carey (D&O Liability) Bryan Cave LLP

Claire Carothers (Business Torts) King & Spalding

B. Summer Chandler (Fraudulent Transfer Litigation) McKenna Long & Aldridge LLP

Benjamin Fink (Restrictive Covenant Litigation) Berman Fink Van Horn P.C.

John E. Floyd (RICO Litigation) Bondurant Mixson & Elmore, LLP

David L. Gordon (Employment Litigation) Jackson Lewis LLP

Joan C. Grafstein (Arbitration) JAMS

Jeffrey D. Horst (Trade Secrets) Krevolin & Horst

Gary W. Marsh (Fraudulent Transfer Litigation) McKenna Long & Aldridge LLP

L. Dale Owens (Employment Litigation) Jackson Lewis LLP

S. Lawrence Polk (Securities Litigation) Sutherland Asbill & Brennan LLP

Thomas S. Richey (D&O Liability) Bryan Cave LLP

Theodore J. Sawicki (Minority Shareholder Litigation)Alston & Bird

Lawrence A. Slovensky (Business Torts) King & Spalding

AndrewT. Sumner (Minority Shareholder Litigation) Alston & Bird

Neal F. Weinrich (Restrictive Covenant Litigation) Berman Fink Van Horn PC

Harry J. Winograd (Limited Liability Company and Partnership Litigation), Bodker,Ramsey, Andrews, Winograd & Wildstein, PC



Chapter 1:
1-1 INTRODUCTION
1-1:1 Choice of Law; Internal Affairs Doctrine
1-1:2 Georgia Principles of Corporate Governance:
Comparison With Other States
1-2 DUTIES OF CORPORATE DIRECTORS AND
OFFICERS IN GEORGIA
1-2:1 General Considerations
1-2:1.1 Duties Owed to Third Parties
1-2:1.2 Heightened Director and Officer Duties
1-2:2 Statutory Duties and Liabilities Under the
Georgia Business Corporation Code
1-2:3 Duty of Care; Standard of Care
1-2:4 Duty of Loyalty
1-2:5 Interested Party Transactions
1-2:6 Duties Relating to Disclosure
1-2:7 Corporate Waste Doctrine
1-3 THE BUSINESS JUDGMENT RULE IN GEORGIA
1-4 RIGHTS OF RELIANCE ON OFFICERS,
EMPLOYEES, PROFESSIONALS, COMMITTEES,
AND EXPERT ADVISORS
1-5 CORPORATE OPPORTUNITY DOCTRINE
1-6 TRANSACTIONS AND CLAIMS INVOLVING
CORPORATE SECURITIES
1-7 ACTIONS AGAINST DIRECTORS AND OFFICERS
1-7:1 Types of Claims
1-7:2 Direct Versus Derivative Actions
1-7:3 The Demand Requirement
1-7:4 Stay or Dismissal; Special Litigation Committees
1-7:5 Standing and Procedural Requirements for
Derivative Actions
1-7:6 Limited Exception for Direct Actions in Closely
Held Corporations
1-7:7 State Law Shareholder Class Actions
1-7:8 Jurisdictional Considerations
1-7:9 Shareholder Inspection Rights
1-7:10 Corporate and Shareholder Remedies
1-7:10.1 Statutory Remedies  37
1-7:10.2 Attorneys’ Fees
1-7:10.3 Dissenters’ Rights
1-7:11 Shareholder Ratification; Estoppel
1-7:12 Statutes of Limitations
1-8 SECONDARY LIABILITY
1-8:1 Corporate Liability for Acts of Its Agents
1-8:2 Personal Liability for Corporate Acts and Debts
1-8:3 Control Person Liability Under Various Statutes
1-8:4 Aiding and Abetting Breaches of Fiduciary Duty
1-8:5 Piercing the Corporate Veil
1-9 EXCULPATION: LIMITATIONS ON LIABILITY OF
DIRECTORS IN ARTICLES OF INCORPORATION
1-10 INDEMNIFICATION AND INSURANCE
1-10:1 Indemnification of Directors, Officers, and
Employees; Advancement of Defense Expenses
1-10:1.1 Mandatory Indemnification
1-10:1.2 Permitted Indemnification Without
Shareholder Approval
1-10:1.3 Permitted Indemnification With
Shareholder Approval
1-10:1.4 Advancement of Defense Expenses
1-10:2 Director and Officer Liability Insurance
1-11 INSOLVENT AND FINANCIALLY TROUBLED
CORPORATIONS
1-11:1 Fiduciary Duties Owed to Creditors
1-11:2 Liability for Wrongful Distributions to Shareholders
1-11:3 Receiverships and Custodianships
1-11:4 Removal of Directors and Officers
1-12 CRIMINAL LIABILITY
1-12:1 Criminal Liability of Corporations
1-12:2 Criminal Liability of Persons Acting on or Under a
Duty to Act on the Corporation’s Behalf

Chapter 2: Limited Liability Company and Partnership Litigation
2-1 INTRODUCTION  61
2-2 LIMITED LIABILITY COMPANIES

2-2:1 Governing Law
2-2:1.1 The Georgia Limited Liability
Company Act
2-2:1.2 The Operating Agreement
2-2:1.3 Construction and Application of Limited
Liability Company Agreements
2-2:2 Liability of Members and Managers to
Third Parties
2-2:2.1 Charging Orders and Judgment
Creditors’ Rights
2-2:2.2 Claims for Member’s Failure to
Make Capital Contributions
2-2:2.3 Torts Committed by the Company
2-2:2.4 Professional Limited Liability
Organizations
2-2:2.5 Piercing the Veil
2-2:3 Member and Manager Duties and Liabilities
2-2:3.1 Manager or Managing
Member Duties
2-2:3.2 Fiduciary Duties
2-2:3.3 Duty of Care
2-2:3.4 Business Judgment Rule
2-2:3.5 Conflicting Interest Transactions
2-2:3.6 Duty of Loyalty
2-2:3.7 Contractual Modifications of Duties
and Liabilities
2-2:3.8 Indemnification of Members
and Managers
2-2:4 Derivative Actions
2-2:5 Inspection of Limited Liability Company
Books and Records
2-2:6 Accounting
2-2:7 Removal of Managing Member
2-2:8 Appointment of Receiver
2-2:9 Removal of Members
2-2:10 Dissociation and Dissolution
2-2:10.1 Events of Dissociation and Dissolution
2-2:10.2 Judicial Dissociation and Dissolution
2-2:10.3 Improper Resignation
2-2:10.4 Rights and Obligations of Dissociated
Members
2-2:11 Procedural Issues
2-2:11.1 Jurisdiction
2-2:11.2 Venue
2-2:11.3 Service of Process
2-2:12 Bangor Punta Doctrine Barring Claims
2-2:13 Failure to Join Necessary and Indispensable Parties
2-2:14 Foreign LLCs
2-3 PARTNERSHIP LITIGATION
2-3:1 Introduction
2-3:1.1 The Georgia Code
2-3:1.2 Uniform Partnership Law
2-3:1.3 Construction and Application
of Partnership Agreement
2-3:1.4 Duties of Partners to Each Other
2-3:2 Liability to Third Parties
2-3:2.1 Liability for Partnership Debts
2-3:2.2 Acts Which Bind the Partnership
2-3:2.3 Ratification
2-3:2.4 Incoming Partner Liability
2-3:2.5 Withdrawing Partner Liability
2-3:2.6 Dissolution Impact on Liability
2-3:2.7 Partnership Liability for Tortious
Acts of Partners
2-3:3 Partnership Opportunities and Liability Among
Partners
2-3:3.1 Removal of General Partners
2-3:3.2 Derivative Actions
2-3:4 Partner’s Interest in the Partnership
2-3:5 Inspection of Partnership Books and Records
2-3:6 Accounting
2-3:7 Withdrawal of Partners
2-3:8 Dissolution
2-3:9 Appointment of a Receiver
Chapter 3: Minority Shareholder Litigation
3-1 INTRODUCTION
3-2 DIRECT VS. DERIVATIVE ACTIONS
3-2:1 Standing
3-2:1.1 Standing in Derivative Actions and
Direct Shareholder Actions Generally
3-2:1.2 Minority Shareholder Status
3-2:2 Direct Actions
3-2:3 Derivative Actions
3-2:3.1 Demand
3-2:4 Statutory Close Corporations
3-2:5 Judicial Considerations
3-2:5.1 Minority Shareholder Vulnerability
3-2:5.2 Duties Owed to Minority Shareholders
3-2:5.3 Breach of Fiduciary Duties Owed to
Minority Shareholders
3-2:5.3a Illegal, Fraudulent, and
Oppressive Conduct
3-2:5.3b Corporate Deadlock
3-2:5.3c Corporate Waste
3-2:5.3d Appropriation of Corporate
Opportunity
3-2:5.3e Conflicting Interest
Transactions
3-2:5.4 Estoppel
3-3 REMEDIES
3-3:1 Generally
3-3:2 Ordinary Relief
3-3:2.1 Specific Performance
3-3:2.2 Cancellation or Alteration of
Corporate Documents
3-3:2.3 Removal and Appointment of
Directors and Officers
3-3:2.4 Appointment of Provisional Directors
and Custodians
3-3:2.5 Accountings
3-3:2.6 Dividend Payment
3-3:2.7 Damages
3-3:3 Extraordinary Relief
3-3:3.1 Share Purchase 
3-3:3.1a Determining Fair Value
3-3:3.1b Specifying Terms of Purchase
3-3:3.2 Delivery of Shares and Completion
of Share Purchase
3-3:3.3 Dissolution
3-3:3.3a Dissolution Procedure
3-3:3.3b Appointment of Receivers
and Custodians
3-3:4 Right to Dissent
3-3:4.1 When Dissenters’ Rights are Available
3-3:4.2 Procedure for Perfecting
Dissenters’ Rights
3-3:4.3 Payment
3-3:4.4 Dissatisfaction With Offer of Payment
3-3:4.5 Judicial Action
3-4 INSPECTION OF CORPORATE RECORDS
3-4:1 Shareholder’s Right to Inspect Corporate Records
3-4:1.1 Records Required to Be Kept
by Corporation
3-4:1.2 Time and Place for Notice and Inspection
3-4:1.3 Who May Inspect
3-4:1.4 Scope of Inspection
3-4:1.4a Proper Purpose
3-4:1.5 Court-Ordered Inspection
Chapter 4: Securities Litigation
4-1 INTRODUCTION
4-1:1 History and Purpose of the Securities
and Exchange Act of 1934
4-1:2 Rule 10b-5
4-2 PRIVATE RIGHT OF ACTION UNDER RULE 10b
4-3 STANDING
4-3:1 Plaintiff Must Be Actual Purchaser or Seller
4-3:2 Exceptions to the Purchaser/Seller Requirement
4-3:2.1 Shareholders and the Forced
Seller Doctrine
4-3:2.2 Pledge Doctrine
4-3:3 Privity and Required Relationship Between
Plaintiff and Defendant
4-4 ELEMENTS OF A SECTION 10(b)
AND RULE 10(b)(5) CLAIM
4-5 MATERIALITY
4-6 MISREPRESENTATION OR OMISSION
4-6:1 Mismanagement or Breach of Fiduciary Duty
Is Not Sufficient
4-6:2 Prospectuses
4-6:3 Opinions, Forecasts, Predictions or Projections
4-6:3.1 Bespeaks Caution Doctrine
4-6:3.2 Safe Harbor of the Private Securities
4-6:3.2a Forward-Looking Statements Known to Be False but Accompanied by Meaningful Cautionary Language May Still Be Protected by Safe Harbor
4-6:3.2b Statements of Current Facts Are Not Forward-Looking Statements
4-6:3.2c Incorporation by Reference of Cautionary Language Sufficient for Oral Statements
4-6:3.2d Incorporation by Reference of Cautionary Language Sufficient for Written Documents
4-6:3.2e Cautionary Language Is Not Required to List All Potential Risk Factors or to Specifically List Risk Factors That Actually Occur
4-6:4 Financial or Periodic Reports, Accounting Data, and Valuations
4-6:5 Mergers, Reorganizations, and Tender Offers
4-6:6 Defenses
4-6:6.1 No Fraud by Hindsight
4-6:7 Nondisclosures and Omissions
4-6:7.1 Who Has a Duty to Disclose
4-6:7.1a Insiders
4-6:7.2 Substance and Timing of Duty to Disclose
4-7 SCIENTER
4-7:1 Financial or Periodic Reports, Accounting Data, and Valuations
4-7:2 Burden of Proof
4-7:3 Pleading Scienter
4-7:3.1 Strong Inference of Scienter
4-7:3.1a Aggregation of Facts Alleged to Give Rise to Strong Inference of Scienter
4-8 RELIANCE
4-8:1 Justifiable Reliance 
4-8:2 Presumption of Reliance
4-8:2.1 Rebuttable Presumption of Reliance—
Failure to Disclose
4-8:2.2 Rebuttable Presumption of Reliance—
Fraud-on-the-Market
4-8:2.2a Elements Necessary to Invoke Rebuttable Presumption of Reliance
4-8:2.2b Rebutting the Presumption of Reliance in a Fraud-on-the- Market Claim
4-9 CAUSATION
4-9:1 Loss Causation
4-9:1.1 Loss Causation and Fraud-on-the-Market Claims
4-10 IN CONNECTION WITH PURCHASE OR SALE OF A SECURITY
4-10:1 In Connection With the Purchase or Sale
4-10:2 Of a Security
4-10:2.1 Stock
4-10:2.2 Investment Contract
4-10:2.2a “Solely” Does Not Mean
Solely
4-10:2.3 Note
4-11 BY MEANS OF THE MAILS, INTERSTATE
COMMERCE OR NATIONAL SECURITIES
EXCHANGE
4-11:1 Foreign Defendants or Transactions
4-12 PERSONS LIABLE
4-12:1 Defendant Must Have Ultimate Authority Over
Contents of Statement to Be the “Maker”
4-12:2 Section 20(a) Control Person Liability for Violation of Section 10(b) and Rule 10b-5
4-12:2.1 Section 20(a) Is Not Exclusive Means of Imposing Derivative Liability
4-12:2.2 No Liability Under § 20(a) Without a Primary Violation of the 1934 Act
4-12:2.3 Who Is a Controlling Person?
4-12:2.4 Affirmative Defense of Good Faith and Non-Inducement
4-12:3 No Private Right of Action Against Aiders and Abettors
4-13 PRACTICE AND PROCEDURE CONSIDERATIONS
4-13:1 Statute of Limitations
4-13:1.1 Abrogation of Eleventh Circuit’s“Inquiry Notice” Rule
4-13:2 Pleading Requirements
4-13:2.1 Federal Rule of Civil Procedure 9(b)
4-13:2.2 Pleading Requirements Under the PSLRA
4-13:2.2a Pleading Scienter Under the PSLRA
4-13:3 Jurisdiction and Venue
4-14 REMEDIES
4-14:1 Proportionate Liability Under the PSLRA
4-14:1.1 Interplay of Proportionate Liability Under the PSLRA and Joint and Several Liability Under § 20(a)
4-14:2 Plaintiff May Recover Only Actual Damages
4-14:2.1 Out-of-Pocket Loss Rule
4-14:2.1a Limitation on Damages for Fraud-on-the-Market Claims
4-14:3 Rescission
4-14:4 Attorneys’ Fees
4-14:4.1 Recovery of Attorneys’ Fees and Costs by Prevailing Defendant When Contractual Relationship Permits
4-14:4.2 Attorneys’ Fees Available for Abusive
Litigation Under the PSLRA
4-14:5 No Punitive Damages Under 1934 Act
4-14:6 Injunctive Relief
4-14:7 Prejudgment Interest
4-15 AFFIRMATIVE DEFENSES
4-15:1 Statute of Limitations
4-15:2 Waiver
4-15:3 Estoppel and Ratification
4-15:4 In Pari Delicto
4-16 RELATED OR ALTERNATIVE FEDERAL CLAIMS
4-16:1 Other Federal Actions
4-16:1.1 The PSLRA Applies to Claims Brought Under §§ 11 and 12(a)(2) of the 1933 Act4-16:1.2 Section 11 of the 1933 Act
4-16:1.3 Section 12(a)(2) of the 1933 Act 4-16:1.4 Controlling Person Liability Under § 15of the 1933 Act
4-16:1.5 Limitations Under §§ 11 and 12(a)(2)of the 1933 Act 4-16:1.6 Non-Removal of § 11 and § 12(a)(2)
Claims Filed in State Court
4-17 ACTIONS UNDER GEORGIA STATUTORY OR COMMON LAW
4-17:1 Definition of Security
4-17:2 Georgia Uniform Securities Act of 2008
4-17:2.1 Fraudulent Conduct Relating to the Purchase or Sale of Securities
4-17:2.2 Private Right of Action Under the Act
4-17:2.2a Actions Against Sellers
4-17:2.2b Actions Against Purchasers
4-17:2.2c Actions Against Broker-Dealers for Violation of Registration
Requirements Under the Act
4-17:2.2d Actions Against Investment Advisers for Violation of Registration Requirements
Under the Act
4-17:2.2e Actions Against Persons Receiving Consideration for the Provision of
Investment Advice
4-17:2.2f Control Person Liability
4-17:2.2g Private Right of Action Against Aiders and Abettors
4-17:2.2h Limitations
4-17:2.2i Offer of Restitution May Bar
Private Right of Action
4-17:2.2j Miscellaneous Provisions
Under the Act
4-17:3 Georgia RICO Statute
4-17:4 Georgia’s Fair Business Practices Act Does
Not Apply to Securities Transactions
4-17:5 Georgia Common Law Claims
4-17:5.1 Fraud and Negligent Misrepresentation
4-17:5.1a “Holder” Claims
4-17:5.2 Breach of Fiduciary Duty
4-17:5.3 Breach of Contract
4-17:5.4 Vicarious Liability
Chapter 5: Restrictive Covenant Litigation
5-1 INTRODUCTION
5-2 TYPES OF RESTRICTIVE COVENANTS
5-3 GEORGIA’S NEW RESTRICTIVE COVENANTS ACT
5-3:1 Background
5-3:2 Issues With the Effective Date
5-3:3 Prospective Application
5-3:4 Potential Challenges to the Ballot Referendum
Language
5-3:5 Rules for Enforceability Under the New Restrictive Covenants Law
5-3:5.1 Types of Agreements Governed by the New Law
5-3:5.2 Employees to Whom the New Law Applies
5-3:5.3 Legitimate Business Interests
5-3:5.4 Reasonableness Presumptions for Post-Termination Restrictive Covenants
5-3:5.4a Duration
5-3:5.4b Geography
5-3:5.4c Scope of Activities
5-3:5.5 Customer Non-Solicitation Covenants
5-3:5.6 Employee Non-Recruitment
Covenants
5-3:5.7 Non-Disclosure Covenants
5-3:6 In-Term Restrictive Covenants
5-3:7 Court Modification and Blue Penciling
Overbroad Covenants
5-3:8 Hardship Defense
5-3:9 Areas Left Unchanged by the New Law
5-4 THE “OLD” LAW APPLICABLE TO COVENANTS PRE-DATING THE NEW LAW
5-4:1 Public Policy Implications of Restrictive Covenants
5-4:2 Levels of Scrutiny and the Three-Prong Reasonableness Test
5-4:2.1 Strict Scrutiny: Covenants Ancillary to
Employment and Other Agreements
5-4:2.2 Intermediate Scrutiny: Covenants Ancillary
to Partnership and Shareholder
Agreements
5-4:2.3 Liberal Scrutiny: Covenants Ancillary
to the Sale of a Business
5-4:2.3a Blue-Penciling Territorial Restrictions Under Liberal Scrutiny
5-4:2.3b Duration and Scope Under Liberal Scrutiny
5-4:2.3c Covenants Ancillary to Employment Executed in Connection With the Sale of a
Business
5-4:3 Factors Determining Enforceability Under the Old Law
5-4:3.1 Consideration
5-4:3.2 Reasonableness
5-4:3.3 Scope of Conduct Restricted
5-4:3.3a Non-Solicitation Covenants
5-4:3.3b Non-Competition
Covenants
5-4:3.4 Duration of the Restraint
5-4:3.5 Geographic Limitations
5-4:3.6 Legitimate Business Interest
5-4:3.7 Non-Recruitment and No-Hire
Covenants
5-4:3.8 Non-Disclosure Covenants
5-4:3.9 Severability and Blue-Penciling of Overbroad Covenants
5-4:3.10 Tolling Provisions
5-5 CHOICE OF LAW AND FORUM ISSUES
5-5:1 Choice of Law Provisions
5-5:2 Forum Selection Provisions
5-6 REMEDIES
5-6:1 Injunctive Relief for Beneficiaries of Restrictive
Covenants
5-6:2 Declaratory and Injunctive Relief for Parties
Bound by Restrictive Covenants
5-6:3 Damages
5-6:4 Forfeiture of Post-Termination Compensation
5-6:5 Arbitration
5-6:6 Statute of Limitations  
5-6:7 Appeals
5-7 OTHER RELATED DUTIES AND CLAIMS
5-7:1 Trade Secrets
5-7:2 Computer Fraud and Cyber Crimes
5-7:3 Fiduciary Duty and Duty of Loyalty
5-7:4 Usurping Opportunities by Officers and Directors
5-7:5 Tortious Interference
5-7:6 Conversion
5-8 PRACTICE POINTERS FOR RESTRICTIVE
COVENANTS CASES
5-8:1 Obtaining Evidence of a Breach
5-8:2 Electronic Data
5-8:3 Spoliation of Evidence
5-8:4 Customers as Witnesses
5-8:5 Discovery of Confidential Information
5-8:6 Forum Shopping
5-8:7 The First-Filed Rule
5-8:8 Removal of Declaratory Judgment Actions
Chapter 6: Trade Secret Litigation
6-1 INTRODUCTION
6-2 THE GEORGIA TRADE SECRETS ACT
6-2:1 Overview of the GTSA
6-2:2 Distinguishing Trade Secrets From Other Forms
of Intellectual Property
6-2:3 Definition of Trade Secret in the 1990 GTSA
6-2:4 The Tangible-Intangible Distinction
6-2:5 Amended Trade Secret Definition Under the 1996 GTSA
6-2:6 Complexity of Information Impacts Likelihood of Trade Secret Protection
6-2:7 Economic Value of Information Must Derive From Being Neither Generally Available Nor Readily Ascertainable
6-2:8 Reasonable Efforts Must Be Taken to
Maintain Secrecy
6-2:8.1 Nondisclosure Agreements and
Actual Disclosure
6-2:8.2 Reasonable Efforts Illustrated
6-2:9 Misappropriation
6-2:10 Burden of Proof
6-2:11 Statute of Limitations
6-2:12 Remedies
6-2:12.1 Injunctive Relief
6-2:12.2 Damages and Attorney’s Fees
6-3 APPLICABILITY, PREEMPTION, AND SCOPE
OF THE GTSA
6-4 GEORGIA OPEN RECORDS ACT
6-5 NON-DISCLOSURE AGREEMENTS
6-6 CONCLUSION
Chapter 7: Georgia RICO
7-1 INTRODUCTION
7-2 FEDERAL RICO
7-2:1 Statutory Overview
7-2:2 Elements of RICO
7-2:3 Enterprise
7-2:3.1 Employed by or Associated with an
Enterprise
7-2:3.2 Engaged In or Affecting Interstate or
Foreign Commerce
7-2:3.3 The Relationship Between the
Defendant and the Enterprise
7-2:4 Collection of Unlawful Debt
7-2:5 Racketeering Activity
7-2:5.1 Defined
7-2:5.2 Pattern of Racketeering Activity
7-2:5.3 Relatedness
7-2:5.4 Continuity
7-2:6 Violations
7-2:6.1 18 U.S.C. § 1962(a): Investment of
Racketeering Income
7-2:6.2 Acquisition Or Maintenance of an Interest in or Control of Any Enterprise
7-2:6.3 Conducting Or Participating in the Enterprise’s Affairs
7-2:6.4 Conspiracy to Violate Subsections (a)–(c)
7-2:7 Criminal Penalties
7-2:7.1 Imprisonment, Fine, Forfeiture
7-2:8 Civil Remedies
7-2:8.1 Recoverable Injury
7-2:8.2 Treble Damages
7-2:8.3 Causation
7-2:8.4 Costs and Attorneys’ Fees
7-2:8.5 Injunctive Relief
7-2:9 Statute of Limitations
7-2:9.1 Four Years
7-2:9.2 Rules of Accrual
7-2:10 Removal
7-2:10.1 The Rooker-Feldman Doctrine
7-3 GEORGIA RICO
7-3:1 Comparison With Federal RICO
7-3:1.1 Findings and Legislative Intent
7-3:1.2 Existence of an Enterprise Not Always Required
7-3:1.3 Defendant’s Relationship With the Enterprise
7-3:1.4 Racketeering Activity
7-3:1.5 Pattern of Racketeering Activity
7-3:1.6 Relatedness Required
7-3:1.7 Continuity Not Required
7-3:2 Criminal Penalties
7-3:2.1 Imprisonment, Fine, Forfeiture
7-3:3 Civil Remedies and Proceedings
7-3:3.1 Recoverable Injury
7-3:3.2 Treble Damages
7-3:3.3 Causation
7-3:3.4 Punitive Damages
7-3:3.5 Costs and Attorneys’ Fees
7-3:3.6 Estoppel by Conviction
7-3:3.7 Injunctive Relief
7-3:4 Statute of Limitations
7-3:4.1 Five Years
7-3:4.2 Rules of Accrual
7-3:4.3 Where to Bring Suit, Federal or State Court
Chapter 8: Georgia Business Torts
8-1 OVERVIEW OF GEORGIA BUSINESS TORTS
8-2 FRAUD
8-2:1 Overview of Fraud Claims Under Georgia Law
8-2:2 Elements of Fraud
8-2:2.1 False Representation or Omission of Material Fact
8-2:2.1a False Representations of Material Fact
8-2:2.1b Omissions of Material Fact
8-2:2.2 Scienter
8-2:2.3 Intention to Induce Action or Inaction
8-2:2.4 Reasonable Reliance
8-2:2.5 Proximate Cause
8-2:2.6 Damages
8-2:2.6a Measure of Damages
8-2:2.6b Expert Testimony
8-2:3 Pleading Fraud
8-2:4 Affirmative Defenses to Fraud Claims
8-2:4.1 Merger Clauses
8-2:4.2 Statute of Limitations
8-2:5 Punitive Damages in Fraud Cases
8-2:6 Distinctions Between Fraud, Constructive
Fraud, and Negligent Misrepresentation
8-3 NEGLIGENT MISREPRESENTATION
8-3:1 Overview of Negligent Misrepresentation and Distinction From Fraud Claims
8-3:2 Elements of Negligent Misrepresentation
8-3:2.1 Negligent Supply of False Information
8-3:2.2 Information Supplied to Foreseeable Recipients
8-3:2.3 Reasonable Reliance
8-3:2.4 Proximate Cause
8-3:2.5 Damages
8-3:3 Defenses to Negligent Misrepresentation Claims
8-3:3.1 Disclaimers and Merger Clauses
8-3:3.2 Statute of Limitations Defenses
8-3:4 Punitive Damages in Negligent Misrepresentation
Claims
8-4 TORTIOUS INTERFERENCE
8-4:1 Overview of Tortious Interference Claims Under Georgia Law
8-4:2 Elements of a Tortious Interference With
Contract or Business Relations Claim
8-4:2.1 Defendant Acted Improperly and Without Privilege
8-4:2.1a Defendant Acted Improperly
8-4:2.1b Defendant Acted Without Privilege
8-4:2.1c Stranger Doctrine
8-4:2.2 Defendant Acted Purposefully and With Intent to Injure
8-4:2.3 Defendant Induced a Third Party to Discontinue Business Relationship With Plaintiff
8-4:2.4 Defendant’s Actions Caused Financial Injury
8-4:3 Tortious Interference With Prospective Business
Relations
8-4:4 Tortious Interference With Fiduciary Duties
8-4:5 Statute of Limitations for Tortious
Interference Claims
8-4:6 Punitive Damages in Tortious Interference Claims
8-5 UNFAIR COMPETITION
8-5:1 Overview of Unfair Competition Claims Under
Georgia Law
8-5:2 Georgia’s Uniform Deceptive Trade Practices Act
8-5:2.1 Elements of a Georgia Uniform
Deceptive Trade Practices Act Claim
8-5:2.2 Remedies Limited to Injunctive Relief
and Attorney’s Fees
8-5:2.3 Statutory Exceptions
8-5:3 Georgia’s Fair Business Practices Act
8-5:3.1 Elements of a Georgia Fair Business
Practices Act Claim
8-5:3.1a Violation of the Act
8-5:3.1b Causation
8-5:3.1c Damages
8-5:3.2 Requirement of Pre-Suit Notice
8-5:4 Common Law Unfair Competition Claims
8-5:4.1 Elements of a Common Law Unfair Competition Claim
8-5:4.2 Damages
Chapter 9: Fraudulent Transfer Litigation
9-1 INTRODUCTION
9-2 TYPES OF FRAUDULENT TRANSFERS
9-2:1 Transfers Made With Actual Intent to Hinder, Delay, or Defraud
9-2:2 Transfers Involving Constructive Fraud, Inadequate Consideration, and Insolvency
9-2:3 Transfers Made When the Debtor Was Insolvent

9-3 IMPORTANT TERMS IN THE UFTA
9-3:1 Transfer
9-3:2 Insider
9-3:3 Reasonably Equivalent Value
9-4 FRAUDULENT TRANSFER: ACTUAL INTENT
9-4:1 Proving Actual Intent
9-4:2 Badges of Fraud
9-4:2.1 Statutory Badges of Fraud
9-4:2.2 Nonstatutory Badges of Fraud
9-4:3 Illustrative Cases Evaluating Badges of Fraud
9-5 FRAUDULENT TRANSFER: CONSTRUCTIVE INTENT
9-5:1 Fraudulent Transfer Leaving Debtor with Unreasonably Small Remaining Assets
9-5:2 Fraudulent Transfer Before Debtor Incurs
Future Debts
9-5:3 Fraudulent Transfer When Debtor is Insolvent or is Rendered Insolvent
9-6 FRAUDULENT TRANSFER: INSIDER
PREFERENCE
9-7 DETERMINING WHEN A CAUSE OF ACTION ARISES UNDER THE GEORGIA UFTA
9-7:1 When Has a Transfer Been Made?
9-7:2 Incurrence of an Obligation
9-8 STATUTE OF LIMITATIONS
9-9 RELIEF AVAILABLE TO CREDITORS
9-9:1 Creditors’ Remedies Against Transferees
9-9:2 Defenses Available to Transferees
9-9:3 Defenses Available to Insiders
Chapter 10: Employment Litigation
10-1 INTRODUCTION
10-2 GEORGIA HAS NO GENERAL ANTI-DISCRIMINATION LAW APPLICABLE TO PRIVATE EMPLOYERS
10-2:1 Discrimination Suits Under Federal Law
10-2:2 Remedies Available for Discrimination
10-3 SPECIFIC TYPES OF DISCRIMINATION
PROHIBITED BY GEORGIA LAW
10-3:1 Equal Pay
10-3:2 Disability
10-3:3 Age
10-3:4 First Offender Act
10-3:5 City of Atlanta Anti-Discrimination Ordinance
10-4 AT-WILL EMPLOYMENT
10-4:1 Definition of At-Will Employment
10-4:2 Limited Legislative Public Policy Exceptions
10-4:3 No Judicially Created Public Policy Exception
10-4:4 No Implied Contract Exception
10-5 TORTS ASSOCIATED WITH EMPLOYMENT
10-5:1 Negligent Hiring, Supervision, and Retention
10-5:2 Intentional Infliction of Emotional Distress
10-5:3 Tortious Interference with Employment
10-5:4 Defamation
10-5:5 Invasion of Privacy
10-5:6 Fraud
10-6 EMPLOYEE PRIVACY
10-6:1 Drug and Alcohol Testing
10-6:2 AIDS Testing
10-6:3 Polygraph Testing
10-7 EMPLOYEE RIGHTS
10-7:1 Leave
10-7:1.1 Judicial Proceedings
10-7:1.2 Military Leave
10-7:1.3 Time Off for Voting
10-7:1.4 Break Time for Natural Feeding
10-7:1.5 Federal Family and Medical Leave Act
10-7:2 Wage and Salary
10-7:2.1 Minimum Wage and Overtime Pay
10-7:2.2 Bonuses and Commissions
10-7:2.3 Wage Payment Statute
10-7:3 Unemployment Compensation
10-7:4 Child Labor Restrictions
10-7:5 Maintenance of Employee Records
10-7:6 Workplace Safety
10-7:6.1 Workplace Violence
10-7:6.2 Workplace Safety Standards
10-7:7 Notice of Mass Layoffs and Plant Closings
10-8 ARBITRATION OF EMPLOYMENT CLAIMS
10-9 LABOR LAWS
10-9:1 Right to Work Protection for Employees
10-9:2 Protections for Employers from Unlawful Union Acts
10-10 OTHER GEORGIA RELATED EMPLOYMENT LAWS
10-10:1 Georgia Security and Immigration Compliance
10-10:2 Georgia New Hire Reporting
10-10:3 Employer-Owned Vehicles
10-11 SEVERANCE AGREEMENTS
10-12 TRAINING
Chapter 11: Arbitration
11-1 INTRODUCTION
11-1:1 Arbitration, Litigation, and Mediation
11-1:2 Arbitration: Faster, Cheaper, and Better?
11-1:3 Roles of Parties, Advocates, Decision Makers, and Courts in Arbitration
11-1:3.1 Arbitrators
11-1:3.2 Parties and Attorneys
11-1:3.3 Arbitration Administration and
Arbitration Providers
11-1:3.4 Courts
11-1:3.4a Court Involvement Before
Arbitration
11-1:3.4b Court Involvement During
Arbitration
11-1:3.4c Court Involvement After
Arbitration
11-2 SOURCES OF ARBITRATION LAW AND
PROCEDURE
11-2:1 Federal Arbitration Act
11-2:2 Georgia Arbitration Code
11-2:3 Agreement of the Parties
11-2:4 Other Sources of Arbitration Procedures
11-3 KEY LEGAL ISSUES
11-3:1 Arbitrability
11-3:2 Bases for Vacating Arbitral Awards
11-3:2.1 Standard of Review for a Petition to Vacate  
11-3:2.1a Corruption
11-3:2.1b Evident Partiality
11-3:2.1c Arbitrators Exceeded Their Powers
11-3:2.1d Manifest Disregard
11-3:2.2 Sanctions for Improper Motions to Vacate
11-3:3 Arbitration of Specific Types of Substantive Claims
11-3:3.1 Consumer Statutes
11-3:3.2 Employment Discrimination
11-3:3.3 Class Actions
11-3:3.4 Personal Injury Claims
11-3:3.5 Securities Disputes
11-3:3.6 Claims of Unconscionability
11-3:4 Legislation
11-3:4.1 Recent Legislative Enactments
11-3:4.2 Pending Legislation
11-4 PRACTICAL OVERVIEW OF THE ARBITRATION PROCESS
11-4:1 Initiating Arbitration
11-4:2 Claims and Counterclaims
11-4:3 Arbitrator Selection
11-4:3.1 Arbitrator Neutrality
11-4:4 Prehearing
11-4:4.1 Prehearing Conference
11-4:4.2 Information Exchange and Discovery
11-4:4.3 Motions
11-4:4.4 Scheduling the Evidentiary Hearing
11-4:5 Evidentiary Hearing
11-4:5.1 In Person, Telephonic, or Other Presentation of Evidence
11-4:5.2 Record and Transcript
11-4:5.3 Evidentiary Rules
11-4:5.4 Post-Hearing Briefs
11-4:5.5 Closing the Hearing
11-4:6 Awards
11-4:6.1 Reasoned and “Bare” Awards
11-4:6.2 Attorneys’ Fees, Interest, Arbitration
Fees and Costs, and Other Relief
11-4:6.3 Time Limits
11-4:6.4 Issuance and Service of the Award 11-4:6.5 Change or Modification of Award
11-4:6.6 Final Awards
11-4:6.7 Proceedings to Enforce, Confirm,
Modify, or Vacate Award
11-5 INTERNATIONAL ARBITRATION
11-5:1 Overview
11-5:2 Arbitration’s Special Appeal in International Business Disputes
11-5:2.1 Greater International Enforceability of Awards Versus Court Judgments
11-5:3 2012 Georgia International Commercial Arbitration Code
11-5:4 Court Decisions and Bar Rules Favoring
International Arbitration
11-5:4.1 Bar and Court Rules
11-5:4.2 United States Court of Appeals for the Eleventh Circuit
11-5:4.3 Georgia Court of Appeals and Georgia
Supreme Court
Table of Cases ....................................................................................
Index ..................................................................................................