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AGG Litigation Insights Newsletter - Summer 2015

By: Henry R. Chalmers and David J. Marmins

Submitted by Firm:
Arnall Golden Gregory LLP
Firm Contacts:
Edward Cadagin, Henry M. Perlowski, Teri A. Simmons
Article Type:
Legal Update
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Welcome to the inaugural issue of Arnall Golden Gregory’s Litigation Insights—a guide to the art and science of effective litigation. In this issue, we explore strategies for securing or preventing an award of attorneys’ fees. We trust that you will find these insights helpful. If you have any suggestions for future newsletters, or if we can ever be of assistance, we’re just a phone call away.

LITIGATION NEWS YOU CAN USE

U.S. Supreme Court: Attorneys’ Fees Provisions Must be Strictly Construed, by: David J. Marmins

You can recover your attorneys’ fees, but your can’t recover the fees incurred in recovering your fees. So says the U.S. Supreme Court in a recent decision, making clear in most cases, the American Rule still rules. More.

THE ART AND SCIENCE OF WINNING YOUR CASE

Offers of Judgment: Settlement Leverage and Foundation for Recovering Attorneys’ Fees, by: Eric D. Olson

Rule 68 offers of judgment are often under-utilized, but, when employed strategically, they are a powerful tool that can force a favorable settlement of your dispute. Although they have shortfalls, offers of judgment can apply pressure on opposing parties, increase your bargaining leverage, and expose your adversary to liability for the costs of litigation, which may also include attorneys’ fees.  More.

Contractual Attorneys’ Fees Provisions: Consider the Unintended Consequences, by: David L. Hobson

In an effort to provide certainty in the event of litigation, you’ve drafted your contracts to contain attorneys’ fees and indemnification provisions. Yes, such clauses can help allocate risk, but beware the law of unintended consequences: there are often compelling reasons not to include these provisions in your agreements. More.

When All Else Fails, Look to Fee-Shifting Statutes to Recover Attorneys’ Fees, by: Megan P. Mitchell

Even if a contractual attorneys’ fees provision does not apply in your case, statutory schemes may provide you with an avenue for recovery of, or expose you to liability for, attorneys’ fees. More.

AGG LITIGATORS IN THE TRENCHES

Beauford Properties, LLC – Jury Trial Results in Defense Verdict, Recovery of Attorneys' Fees for AGG Client

Following a four-day jury trial, Jim Gober won a complete defense in favor of Beauford Properties, LLC, denying a former tenant over $750,000 in alleged damages. Beauford also recovered $120,000 in attorneys’ fees under the prevailing party provision of the lease. More.

Jungang PRI USA – AGG Wins Jury Trial in Suit Over Stolen Earnest Money 

Andrew Flake and Megan Mitchell secured a jury verdict in favor of Jungang PRI USA after a week-long jury trial. Jungang won a judgment, as well as its attorneys’ fees, against a real estate firm franchisor and qualifying broker who were responsible for an escrow account that held earnest money for Jungang. Jungang sued to recover $1 million in earnest money stolen from the account. More.

Shane’s Rib Shack – AGG Defeats Franchisee’s Motion for Interlocutory Injunction, Secures Award of Attorneys’ Fees

A franchisee sued Shane’s Rib Shack and obtained an ex parte Temporary Restraining Order halting the termination of its franchise agreement. On two day's notice, David Marmins and Rick Mitchell represented Shane’s at a seven hour evidentiary hearing and had the TRO lifted and the termination reinstated. Within days, a new franchisee was secured for the location and Shane’s was reimbursed the majority of its fees incurred in the dispute. More.

Shops Around Lenox, LLC – AGG Client Wins Summary Judgment, Attorneys’ Fees 

Jim Gober and Rebecca Lunceford obtained a $100,000 judgment for Shops Around Lenox, LLC against its tenant in a rent dispute, as well as $145,000 in attorneys’ fees under a prevailing party contract provision. The Georgia Court of Appeals had previously affirmed summary judgment to Shops Around Lenox on the enforceability of a radius restriction in the commercial lease. More.

Gipson Family, LLLP – AGG Scores Defense Win, Favorable Settlement on Counterclaim, and Recovery of Attorneys’ Fees

Days before trial, Jim Gober, Knox Withers, Chesley McLeod, and Drew Stevens combined to win rulings on behalf of Gipson Family, LLLP, dismissing a former tenant’s claim of $2 million and finding it committed discovery violations. The tenant subsequently agreed to pay Gipson Family $150,000 in damages and over $200,000 in attorneys’ fees under a prevailing party provision in the lease. More.

LITIGATION TOOLKIT

eDiscovery Advantage: The Trinity of Reasonable Anticipation, by: Scott A. Wandstrat

The obligation to issue a legal hold is triggered once the client reasonably anticipates litigation or a governmental proceeding or investigation. If that sounds familiar, that’s because it is. It’s the point in time when a party can begin claiming the work product doctrine. And it’s the trigger for notice under many kinds of liability insurance policies. It’s what I call the Trinity of Reasonable Anticipation. More.

Featured Publication: Delaware Rapid Arbitration Act Promises Speedy Arbitrations, by: Henry R. Chalmers

A powerful new tool now exists for companies seeking quick, efficient, and private resolution of business disputes. The Delaware Rapid Arbitration Act (DRAA), enacted in April 2015, streamlines the process for initiating arbitrations, sets tight deadlines for completion, automatically confirms awards without court intervention, and provides speedy and final resolution of challenges directly to the Delaware Supreme Court. And the DRAA cleverly ensures quick completion of the process by imposing financial penalties on the arbitrator if an award is not issued within 120 days of commencement. More.