Craig Pendergrast Article on Foreclosure Confirmation Proceedings Published in Georgia Bar Journal

The Georgia Bar Journal has published an article by Taylor English litigator Craig Pendergrast on the perils and strategies associated with foreclosure confirmation proceedings. The article is highly relevant to lenders, borrowers, and guarantors of secured real estate loans in Georgia: Georgia Foreclosure Confirmation Proceedings in Today’s Recessionary Real Estate World

13 Attorneys from Taylor English featured in Georgia Trend’s “Legal Elite” Rankings

Atlanta – December 16, 2010 – Georgia Trend magazine named 13 attorneys from Taylor English Duma LLP to its eighth annual listing of the state’s “Legal Elite.” The magazine recognized attorneys from six separate practice areas as among the best in the state, based on votes cast solely by practicing attorneys in Georgia.

“We greatly value this acknowledgment by our peers,” said Al Hill, managing partner of Taylor English. “Having a significant portion of our firm gain such recognition attests to the quality and experience of the attorneys drawn to Taylor English by our innovative approach to business.”

Continuing to attract attorneys that predominantly have more than 15 years of experience and who work directly with clients, Taylor English has continued its impressive growth in 2010. The firm was recognized earlier this year by Atlanta Business Chronicle as the fastest-growing law firm in Atlanta.

Members of the 2010 Legal Elite rankings include:

Paul G. Durdaller – Bankruptcy / Creditor Rights
George C. Gaskin – Business Law
Jonathan B. Wilson – Business Law
Foy R. Devine – Business Law and General Practice / Trial Law
Todd E. Jones – General Practice / Trial Law
Henry M. Quillian lll – General Practice / Trial Law
John J. Richard – General Practice / Trial Law
Joseph M. English – Labor & Employment
Randy C. Gepp – Labor & Employment
Marc. A. Taylor – Labor & Employment
Vivian D. Hoard – Taxes / Estates / Trusts
Aaron J. Kowan – Taxes / Estates / Trusts
Melissa E. McMorries – Taxes / Estates / Trusts

Holiday Parties: Preventing Holiday Bliss from Becoming Your New Year’s Nightmare

‘Tis the season to build morale and celebrate hope with an end of year holiday office party. However, failing to recognize the potential liabilities associated with these events can yield devastating results. The most significant concern is associated with the consumption of alcohol. In many states, employers can be held legally responsible for injuries and damages caused by an intoxicated employee or guest who gets into an accident after leaving an office party. Another area of potential liability relates to the “Exclusive Remedy” provision of the Workers’ Disability Compensation Act. While this Act usually protects an employer with respect to work-related injuries, such protection does not apply to injuries “incurred in the pursuit of an activity, the major purpose of which is social or recreational” (i.e. the company holiday party). Here are some tips to help protect employers from having their holiday party turn into a New Year’s nightmare:

WHAT TO DO
Consider an alcohol free party or requiring employees to purchase alcohol beyond the first one or two drinks. People are less likely to over-consume if they are paying for the alcohol. Generally, the average 150 lb male can consume approximately 2 drinks per hour without becoming legally intoxicated. Because this can vary depending upon a number of factors, behavioral signs of intoxication also need to be observed.

Consider providing drink tickets to limit the number of drinks per person and limit the period during the party at which alcohol is served.

If requiring guests to purchase alcohol, check with an alcohol licensing attorney to determine whether a special permit is required for your event.

Hold your event at an establishment licensed to serve and sell alcohol, such as a restaurant or event facility, and use their servers to serve the alcohol. If this is not an option, hire a licensed caterer (with liquor liability insurance) for the alcohol portion of your function.

Ensure that bartenders are trained in responsible alcohol sales and service and instruct them to stop serving individuals who appear to be intoxicated and not to sell to anyone who could be underage unless a valid ID establishing legal age is provided.

Circulate a memo or reminder to employees to drink responsibly and advising them of alternative transportation that will be available.

Include spouses, domestic partners or another adult guest of your employees. If appropriate, consider making your party a “family function” with games for kids as most adults are less likely to over-consume if their children are around.

Have a variety and surplus of non-alcoholic beverages available.

Have plenty of food. Avoid spicy or salty foods that increase thirst, but focus on foods high in starch and protein as these foods stay in the stomach longer and help slow down the absorption of alcohol.

Plan for entertainment or some activity for attendees besides drinking.

End alcohol service at least 30 minutes before the end time of the party. Have an assortment of desserts or an end of party event/giveaway to encourage attendees to stay after the bar is closed.

Designate employees or security staff who will not be drinking to circulate and identify individuals who appear to be intoxicated so that responsible measures can be taken to insure that any such individual will not be driving.

Provide paid taxis or some other form of alternate transportation for anyone who requests such or who appears to be intoxicated. Offer the service both to and from the event.

Recognize that many general liability insurance policies exclude coverage for events where alcohol is served. Consider a “special event” or “dram shop” policy to cover your event. Request a policy that covers both liquor liability as well as other liability exposure.

WHAT NOT TO DO
Schedule the event during normal working hours.

Pay employees while they are at the event or consuming alcohol.

Require employees to attend as a condition of their employment.

Conduct any type of business meetings or work related matters at the event (before, during or after).

Let employees pour their own drinks, or have employees responsible for serving or mixing drinks. Always hire a third party for alcohol service.

Make the bar the focus of your event – have the bar in a corner or separate room.

Have drinking games or other entertainment that encourages the consumption of alcohol.

Knowingly allow an intoxicated employee or guest to consume alcohol.

Provide alcohol to minors or allow parents to provide alcohol to their children at your event.

*Licensed to practice law in Georgia and South Carolina, Michele Stumpe has been representing and assisting businesses and alcohol retailers for over 17 years. Her experience includes successfully handling multi-million dollar civil dram shop and premises liability lawsuits. In addition, Ms. Stumpe has served as a consultant to various governmental entities, trade organizations, and major corporations and has also served as an expert witness on alcohol compliance issues. Stumpe is a partner at the law firm of Taylor English Duma LLP.

Taylor English Grows Again, Adds Four Associates

Atlanta – December 9, 2010 – Taylor English Duma LLP has added four attorneys in response to continued growth in demand for its services.

Peyton Nunez specializes in environmental and toxic tort litigation, as well as environmental regulatory and transactional matters. She has litigated a broad range of environmental matters in Georgia and throughout the nation. She also has substantial experience defending clients in private-party cost recovery actions, government enforcement actions, and toxic tort cases. Nunez is a former chair of the State Bar of Georgia’s Environmental Law Section. She previously practiced with the Environmental & Land Use group at Alston & Bird LLP.

Amanda Groover Hyland focuses on business and media litigation, including commercial torts and contract disputes. She also specializes in complex intellectual property matters, including copyright and trademark prosecution, licensing, and litigation. Hyland has represented national technology and manufacturing companies, television stations, newspapers, authors, entertainment companies, publishers and producers in complex litigation and intellectual property matters. She previously worked as an out-of-chambers clerk in the Eleventh Circuit Court of Appeals.

Rachael Lee Zichella is a member of Taylor English’s Litigation and Dispute Resolution and Employment, Labor and Immigration practices. She has represented clients in federal and state court in all phases of trial practice, arbitration, and mediation in a wide range of shareholder, employee and contract disputes. Zichella also counsels clients on preventative strategies involving the ADA, Title VII, the ADEA, the FMLA, the FLSA and other federal and state statutes and defends matters before the EEOC, NLRB and OSHA. Prior to Taylor English, Zichella worked as an associate with Kilpatrick Stockton LLP and Fisher & Phillips LLP.

Jeffrey Kuntz joins the Intellectual Property practice where he assists in patent prosecution, litigation, and licensing. A 2010 cum laude graduate of Georgia State University College of Law, Kuntz brings industry experience as an IT consultant in the telecommunications industry and as a consumer products engineer. He is a magna cum laude graduate of the Georgia Institute of Technology in mechanical engineering and a Certified Engineer-in-Training.

“Peyton, Amanda and Rachael each add specific industry expertise to our rapidly growing litigation group,” said Taylor English partner Joe English. “With Jeff, we continue the expansion of the intellectual property group.”

Taylor English’s litigation and intellectual property work earned top rankings in the 2010 Best Law Firms rankings released in September by U.S. News Media and Best Lawyers.

Protecting Consumer Privacy in an Era of Rapid Change

On December 1, 2010, the U.S. Federal Trade Commission (“FTC”) released its staff report on consumer privacy. This report outlines the FTC’s preliminary recommendations to protect consumers in the privacy arena. The report is entitled “Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Businesses and Policymakers” and can be found in its complete form at: http://www.ftc.gov/os/2010/12/101201privacyreport.pdf

The proposed staff framework represents a significant change in the way the FTC views data privacy. Previous FTC policy was based on the idea of “notice and opt-out”. The rationale was that it was legally sufficient if a business gave notice of its privacy practices and gave consumers the opportunity to “opt-out” of having their data collected.

The proposed framework increases the burden on businesses to attempt to balance consumers’ privacy interests with the ever-changing technological innovation that requires consumer information to function. The report addresses the need to reduce the burden on consumers by simplifying choice, making privacy policies more consistent across the board, and embracing the concept of “privacy by design.” That concept, which some have criticized as vague and ambiguous, embraces the idea that businesses should develop their systems and operations from inception with the goal of protecting consumer privacy and that other commercial concerns should be secondary.

In many cases, the report claims, consumers do not even realize that they are providing or sharing the information. For instance, the report specifically mentions the example of social media or online shopping sites that track a consumer’s interests and share those personal interests with other affiliates or third parties.

Many companies use privacy policies to explain their information practices, but these legalistic disclosures are often lengthy, hard to find, and not understood by consumers. To deal with this problem, the FTC supports implementation of a “Do Not Track” mechanism so that consumers can easily choose whether to allow the collection of data regarding their online searching and browsing activities. However, the FTC falls short of proposing who will be responsible for developing and/or maintaining such mechanisms, and the report concedes that the FTC may lack the legal authority to mandate such a system.

To reduce further the burden on consumers and increase consumer privacy protections, the report recommends that “companies should adopt a ‘privacy by design’ approach by building privacy protections into their everyday business practices.” This would include reasonable procedures to promote data accuracy, reasonable security for consumer data, as well as limited collection and retention of such data. In addition, companies should implement and enforce reliable privacy practices throughout their organizations, including training employees on privacy policies and conducting privacy reviews for new products and services.

The report also recommends other measures to improve the transparency of information practices, including consideration of standardized notices that allow the public to compare information practices of competing companies. The report recommends allowing consumers “reasonable access” to the data that companies maintain about them, particularly for data brokers.

The FTC staff report should be of interest to every business that collects consumer data in any form, including banks, hospitals, health care providers, social networks, online directories, Internet advertising businesses and online merchants. While the FTC staff report does not carry the weight of law, it does represent the opinions of the FTC and can form the basis for regulatory enforcement and possible future legislation. If all of the staff report’s provisions became law, most businesses with online data collection mechanisms would need to implement significant changes in the way they do business.

Deadlines for comment on the proposals are January 31, 2011, and the report includes a number of specific questions on which the FTC is seeking feedback.

Companies with an interest in online data collection should review the FTC staff report carefully and consider providing comments to the FTC.

Taylor English attorneys regularly advise clients on online data privacy standards and risks and are available to discuss the FTC staff report. For more information please contact Corey Cutter, at 770-434-6881 or Jonathan Wilson, at 678-336-7185.

Harold Gill and Thomas Wamsley Join Taylor English

Atlanta – November 29, 2010 – Taylor English Duma LLP welcomes Harold Gill and Thomas Wamsley as new members of the firm.

“Hal and Tom both bring tremendous insight into the challenges faced by our clients to their work,” said Marc Taylor, founding partner. “Hal has seen every aspect of real estate as a developer himself and through his work with lenders and other developers. Tom combines a litigator’s perspective with his role as outside general counsel for many growth-oriented clients.”

A former regional partner of RealtiCorp Commercial Investment Fund, Hal Gill works with lenders throughout Georgia and the Southeast to close loans secured by real estate and to structure workouts, loan modifications, and foreclosures. He also represents developers of retail, mixed use, hotel and condominium projects throughout the country.

“With contacts throughout the state and a rate structure that makes more sense for my clients than traditional firms, Taylor English is a great fit for my practice,” said Gill. “We’ve already seen mutual benefits.”

Prior to joining Taylor English, Gill was a partner at several highly regarded Atlanta law firms, including Smith, Gambrell & Russell, LLP.

As a litigator with nearly 25 years of experience, Tom Wamsley focuses his practice on product liability, and business and professional liability litigation. His attention to issues of risk together with his work forming and developing companies also enables him to work effectively as an outside general counsel for clients.

“As an advisor, I help companies develop and advance. As a litigator, I try to keep the road toward growth clear for them,” said Wamsley. “Taylor English gives me the flexibility to meet my clients’ needs in both functions and to draw on the decades of experience and particular expertise of the firm’s attorneys to assist clients in other areas as well.”

Wamsley joins Taylor English from Nelson Mullins Riley & Scarborough LLP, where he was a partner.

Podcast for Renewable Energy Project Developers

Taylor English Duma attorneys Greg Sanderson and Jonathan Wilson have prepared a podcast through Lexis-Nexis on the upcoming December 31, 2010 deadline for renewable energy project developers hoping to obtain grants from the U.S. Treasury.

Section 1603 of the American Recovery and Investment Act of 2009 made it possible for the owners of certain renewable energy projects to obtain a grant of up to 30% of the cost of completing the qualified energy project. Project developers hoping to take advantage of these grants have until December 31st of this year to make sure that their projects qualify.

In this podcast, Sanders and Wilson explain what project developers need to do now to make sure that their projects will qualify for Treasury Grants in this program.

The Taylor English Renewable Energy Finance team advises project developers, investors and electric utilities on the corporate, tax and finance issues central to the development of new sources of renewable energy.

Webinar: The Great PACE Financing Controversy

One of the Obama administration’s plans to encourage small businesses and homeowners to adopt energy efficiency improvements and renewable energy projects in their business and homes counted on a financing mechanism known as PACE – Property Assessed Clean Energy. The effort stalled during 2010, however, after Fannie Mae and Freddie Mac objected to the potential posed by PACE to place super-priority tax liens ahead of home mortgages. Several states and local governments have sued in response and the PACE financing effort seems to have stalled.

Why was PACE so controversial?

Jonathan Wilson, part of the Taylor English Duma Renewable Energy Finance, team will moderate a panel discussion sponsored by the American Bar Association to answer that question.

The panel will explore the origins of the PACE financing program and the policy conflicts that have led to the current stalemate.

The webinar runs from 12 noon to 1:30 pm (eastern time) on Tuesday, May 4, 2010. Registration and other information is available from the ABA webinar information page.

Panelists include:
Elias Hinckley, Venable LLP, Washington DC

Maura Marcheski, Venable LLP, Washington DC

Joining Mr. Pilger at the webinar will be:

Rob Morton – President/CEO of Secure Health

WSB News features attorney Henry Quillian on use of Georgia RICO law to recover embezzled assets (video)

Mr. Quillian used the powerful tool of the Georgia Racketeer Influenced and Corrupt Organization Act (RICO) to obtain a temporary restraining order and an interlocutory injunction freezing the assets of the embezzler to prevent the dissipation of the embezzler’s assets prior to the entry of a money judgment or restitution order against the embezzler. Well over $100,000 of value was preserved. An injunction can be obtained under this statute by the plaintiff/victim without having to prove that there is no adequate remedy at law – i.e., the plaintiff does not have to prove irreparable harm in the absence of the injunction.

“Click here to view video”

Marietta Daily Journal interviews Taylor English attorney Henry Quillian on use of Georgia RICO Statute to help client recover embezzled assets

by Kim Isaza
kisaza@mdjonline.com

MARIETTA – Assets of the former office manager of a Marietta company have been frozen under Georgia’s RICO statute, even though Sheri Burton Blount has been convicted of no crime.

“Some people might think the statute is only for use against mobsters,” said Henry Quillian III, a lawyer in the Galleria-area firm of Taylor English Duma. “Georgia RICO is dramatically more flexible than federal statute, and requires only two racketeering activities, and those are defined as a list of run of the mill crimes. If the person has done more than one taking, the RICO can be used.”

He is representing Blount’s former employer, Expanded Technologies Inc. of Marietta, in a civil suit against Blount. The company presses steel for air filters, and has about 50 employees. It is located on Hayes Industrial Drive, near Interstate 75 and Canton Road.

Quillian said his client believes Blount, 43, stole more than $225,000 over at least seven years, and he said bank records and canceled checks show the money was used to buy two cars, a WaveRunner, concert tickets, artwork and more. Quillian said that after Blount was fired in April for other reasons, company officials discovered that checks had been forged and Blount’s corporate credit card used for personal purchases.

Blount is the daughter of Emmett Burton, who was east Cobb Commissioner from 1984 through 1992.

Attorney Jimmy Berry is representing Blount in the civil case, which was filed May 24 in Cobb Superior Court, and against criminal charges. She was arrested June 17 on a charge of theft by deception, and is free on $35,000 bail. Both the criminal and civil cases are in preliminary stages, all parties have said.

“I can’t really comment on the facts or whether she’s guilty or innocent,” Berry said. “Right now, we’re just accumulating information.”

As for the freezing of his client’s assets, he called it “fairly routine.”

“Plaintiffs want to freeze assets so nothing can be disposed of,” he said.

Quillian said that was exactly why he sought the asset-freeze, including an injunction preventing her from selling her home in northeast Cobb.

“With embezzlement, usually people are taking the money to spend it, and the cash is gone before the company can do anything about it,” he said. “We also got the order without any notice to the defendant. If any defendant knew in advance [that assets were to be frozen], they’d likely sell everything and spend the money.”

Although the RICO statute provides for triple damages on top of punitive damages, Quillian acknowledged that his client is unlikely to see that much.

“We’re definitely looking for more [than what was stolen], because we’ve spent a lot on attorney’s fees,” Quillian said. “But it’s looking unlikely she has the ability to pay on her own for all the money she’s taken.”

Blount’s lawyer, Berry, reiterated that “the case has not been tried, either civilly or criminally.”

As to how his client is able to pay bills if her accounts are frozen, he said people in this situation can open new accounts for routine bills. Blount has a daughter in college, Berry said, and her family is assisting her.

“People who are very lucky have family who can step in and help,” he said.

Read more: The Marietta Daily Journal – Woman accused of embezzling from company