The Court of Appeals of Georgia recently turned aside an attempt to exploit Georgia’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, handing a win to Bloom Parham clients Strategic Jubilee Holdings, LLC and Jubilee Manager, LLC (“Strategic Jubilee”). Strategic Jubilee filed claims for breach of contact, breach of fiduciary duty, and declaratory judgment seeking a ruling regarding rightful ownership of Jubilee Manager. The defendants filed a motion to strike under Georgia’s anti-SLAPP statute, arguing that the asserted claims arose from the defendants’ constitutionally protected activities. The trial court disagreed, ruling that Strategic Jubilee’s claims arose from a dispute over corporate governance and membership and were not subject to the anti-SLAPP statute.
The defendants filed an immediate appeal. On January 9, 2018, the Court of Appeals unanimously affirmed the trial court’s decision. The appellate court’s opinion makes clear that the anti-SLAPP statute does not apply anytime there is a tangential connection between a lawsuit and constitutionally protected conduct but rather applies only when the claims alleged stem directly from the exercise of such rights.
On January 8, 2018, the United States Supreme Court denied Bamberger-Rosenheim, Ltd.’s (also known as “Profimex”) petition for a writ of certiorari. The Supreme Court declined to review the decision of the United States Court of Appeals for the Eleventh Circuit affirming the confirmation of an arbitration award in favor of OA Development, Inc. (“OAD”). Profimex asked the Supreme Court to hear the case to consider the Eleventh Circuit’s holding that an arbitrator’s determination of arbitral venue under the parties’ arbitration agreement is entitled to deference.
Profimex had argued that the international character of the arbitration required the court to apply a more rigorous standard of review to the arbitrator’s construction of a venue provision because of alleged substantive consequences that attach to the venue of the arbitration in the international context. The Eleventh Circuit had relied on well-established law that arbitrators are presumed to decide disputes regarding arbitration procedures and agreed with four other circuit courts of appeal that disputes over the interpretation of venue selection clauses raise presumptively arbitrable procedural questions. The Supreme Court’s decision to decline review of the case allows the Eleventh Circuit’s decision and the reasoning behind it to stand.
On July 17, 2017, the United States Court of Appeals for the Eleventh Circuit affirmed Simon Bloom and Troy Covington’s victory at the U.S. District Court where Judge Eleanor Ross confirmed the arbitration award in favor of our client OA Development, Inc. against Bamberger-Rosenheim, Ltd. Bamberger argued that OAD’s claims should not have been arbitrated in Atlanta under the applicable venue provision found in the parties’ arbitration agreement.
The Eleventh Circuit disagreed, holding that the arbitrator’s venue determination was entitled to deference. The court relied on well-established law that courts must defer to arbitrators’ determinations regarding arbitration procedures such as venue. The panel’s published opinion joined four other circuit courts of appeal in concluding that disputes over the interpretation of venue selection clauses are procedural and should be left to the arbitrator to decide as long as it was clear that the arbitrator arguably interpreted the provision in good faith. In this case, because the arbitrator plainly engaged with the language of the agreement and more than arguably interpreted the venue provision at issue, the court deferred to the arbitrator’s interpretation. Depending on further appeals, the District Court will next address OAD’s motion for attorneys fees against Bamberger.
Simon Bloom argued the appeal before the appellate panel on May 17, 2017 and Troy Covington authored the briefing.
On June 6, 2017, the Georgia Court of Appeals issued a decision which clarifies the standard that Georgia courts should apply when examining alleged evidence of undue influence. The opinion almost completely reverses retired Superior Court Judge Wendy Shoob’s order granting summary judgment based on the erroneous conclusion that a fact finder may only look at evidence of undue influence that occurred on the date of execution of challenged documents. Instead, the Court reiterated years of precedential Georgia case law and made clear that a trier of fact in an undue influence case may look at evidence indicative of undue influence before, during and after the date of execution of the challenged documents.
In addition to incorrectly limiting the scope of the evidence, the Court also found that the trial court discredited evidence, adopted the opposing party’s theory of the case, and improperly weighed the evidence. Accordingly, the Court reversed the trial court’s grant of summary judgment on our client’s undue influence claims, as well as the opposing parties’ adverse declaratory judgment claims.
Slosberg v. Giller, et al., Case No A17A0091, A17A0092 (Ga. Ct. App. June 6, 2017)
Simon Bloom argued before the United States Court of Appeals for the Eleventh Circuit on Tuesday, May 17 in Atlanta. Bloom Sugarman represents OA Development, Inc. (“OAD”), the Appellee in the matter. In April 2014, Appellant Bamberger-Rosenheim, Ltd. (also known as “Profimex”) filed an arbitration against OAD through the International Chamber of Commerce, seeking the payment of certain contractual fees. OAD filed a counterclaim for defamation, and Profimex asked the arbitrator to dismiss the counterclaim. The arbitrator refused to do so, and the parties proceeded to litigate their various claims through six months of discovery and pre-trial briefing. Following a week-long trial in July 2015 and post-trial briefing, the arbitrator ruled in OAD’s favor on its defamation claim. The arbitrator awarded OAD approximately $1,000,000 in compensatory damages, punitive damages, and attorney’s fees.
The U.S. District Court for the Northern District of Georgia confirmed the arbitration award to OAD. Profimex appealed to the Eleventh Circuit. Profimex continues to argue that OAD’s defamation counterclaim should not have been arbitrated in the Atlanta proceeding under the applicable venue provision found in the parties’ arbitration agreement. That issue was at the center of Tuesday’s appellate argument, with Mr. Bloom arguing that the arbitrator properly decided OAD’s counterclaim and violated neither the parties’ arbitration agreement nor any applicable federal or international arbitration law.
Click here for audio of Tuesday’s oral arguments.
Successfully obtained reversal of grant of summary judgment in favor of lender regarding interpretation of loan agreement. The lender agreed to limit its remedies upon the maturity of the loan to taking the real estate, which served as collateral, and giving the borrowers credit equal to the greater of the fair market value for the several tracts of collateral or the minimum release prices for the tracts contained in the loan agreement. The lender could then issue deficiency notes to the borrowers for any principal balance remaining after the borrowers were credited for the collateral.
The Georgia Court of Appeals agreed with Bloom Sugarman’s argument that the correct interpretation of the loan agreement requires that the separate minimum release price assigned to each tract of the collateral must be compared to the fair market value of that tract, with the borrowers receiving credit for the greater number for each tract. The Court of Appeals further agreed that the fair market value of each piece of the collateral is disputed by the parties and must be determined by a jury.
Defended appeal of trial court’s grant of summary judgment and $45,000 of attorneys’ fees to Bloom Sugarman. Trial court property granted summary judgment in favor of Bloom Sugarman’s client on claims related to the rezoning of an adjacent property. Trial court subsequently awarded attorneys’ fees and costs in favor of client. The Georgia Court of Appeals affirmed the ruling.
Successfully obtained a reversal of summary judgment in favor of opposing party. The trial court improperly granted summary judgment to opposing party in nuisance and trespass actions after concluding that there was no evidence of causation. On appeal, Bloom Sugarman argued that the trial court misapplied the law and ignored disputed evidence of causation. The Georgia Court of Appeals agreed and reversed the trial court’s ruling. The Georgia Supreme Court denied certiorari.
On December 6, 2016, Bloom Sugarman Partner F. Skip Sugarman argued a major fiduciary-litigation case before the Georgia Court of Appeals. The case could ultimately have major implications for the legal standard applicable to claims of undue influence involving non-probate documents, such as trusts, deeds, and beneficiary-designation forms for life insurance and payable-on-death accounts.
Successfully obtained summary judgment in client’s favor in a suit by a neighboring landowner seeking to enforce a restrictive covenant. The neighbor—who had not been an original party to the restrictive covenant at issue—sought to enforce an interpretation of the covenant that would have substantially impacted the value of multiple lots in client’s residential development. The Court agreed with Bloom Sugarman’s arguments showing why the neighbor’s interpretation was incorrect as a matter of law under the recorded document, leaving only our client’s claim for attorneys’ fees pending in the case. The Georgia Court of Appeals affirmed the trial court’s order in our client’s favor.