Law

NEWS - Law

SBJ Special Report

Local attorneys Jeff Harris, Darren Penn and Stephen Lowry of Harris, Penn & Lowry, LLP, with offices in Savannah and Atlanta, secured one of the largest verdicts of 2009, according to the recently released VerdictSearch report.

The attorney’s $40 million award in the case of Mundy v. Ford Motor Company and Legacy Ford Mercury, Inc, tried in DeKalb County in April of 2009 was the 45th largest verdict of 2009, according to the national report.

The outcome puts the firm at the top of the heap for Georgia – securing the single biggest verdict in the state for 2009 as well as one of the largest personal injury decisions in its history.

The $40 million judgment “forces Ford and other auto makers to look carefully at their processes, safety standards and, ultimately, affect change that will benefit thousands of consumers annually,” according to Harris. “In fact, during the trial, the National Highway Transportation Safety Administration (NHTSA) opened an investigation to test the failures in Ford Explorers demonstrated in this case.”

Jessica Mundy, a 24 year old accountant, was paralyzed after being run over by the front left tire of her 2004 Ford Explorer outside a post office in McDonough, about 30 miles south of Atlanta. Harris, Penn & Lowry (HPL) successfully argued that the incident arose as a result of a defect in the 2004 Explorer’s transmission, creating a condition known as “false park.”

The jury heard evidence of 751 complaints regarding Ford vehicles shifting themselves into reverse after being seemingly stable in park. “There is a space between park and reverse where the gear can get hung up and allow the vehicle to move back into reverse,” explained Harris. “The driver believes she is set in park then the SUV begins to roll.”

Each year, people are seriously injured or killed as a result of faulty products, corporations cutting corners or a lack of adherence to industry safety standards. The partners at HPL are quick to point out that the purpose behind their work is to protect and inform consumers, assist those who have been hurt and hold negligent organizations liable.

“Without going to trial, clearly demonstrating the facts of the Mundy case and, ultimately winning, Georgians wouldn’t be aware of the false park issue,” said Lowry.

“Ford knew about the problem and could have corrected it for under $20 per vehicle, they simply didn’t do it. Civil juries have the power to make a significant difference when companies don’t do the right thing. It sends a very clear message,” he said

NEWS - Law

SBJ Staff Report

NEWS - Law

12/07/2009 - Lawyers from a pair of Savannah firms have landed on Georgia Trend’s list of the Peach State’s leading attorneys.

The statewide business magazine conducts voting among Georgia lawyers to make its annual selections to the “Legal Elite,” published in its December issue. Georgia Trend sends questionnaires to several thousand Georgia lawyers asking for attorney nominations they consider the best in 10 different practice categories.

Selected for the 2009 Legal Elite from Bouhan, Williams & Levy LLP were  M. Tyus Butler Jr., David Michael “Mike” Conner, Leamon R. Holliday III and Edgar Pomeroy Williams.

HunterMaclean placed three partners on the list: W. Brooks Stillwell, Wade W. Herring II and Frank S. Macgill.  All are featured in the magazine’s December 2009 issue.

Stillwell practices in commercial real estate, business litigation and bankruptcy/workouts.

Herring represents businesses and management, with a practice that focuses on all aspects of employment problems and issues, including internal employment practices, wage-hour issues, drug testing, sexual harassment, equal employment opportunity, the Americans with Disabilities Act and employee benefits.

Frank S. Macgill serves as the firm’s administrative partner, practicing in trusts and estates, taxation, tax-exempt organizations and corporate law.

NEWS - Law

In these challenging economic times, protecting intellectual property is paramount. This is especially true as bankruptcy filings continue to soar. For businesses, it is important to understand how intellectual property is treated under bankruptcy law.

Business bankruptcy filings totaled 55,021 for the 12-month period ending June 30, up a whopping 63 percent from the 33,822 filings for the 12-month period ending June 30, 2008, according to statistics released in August by the Administrative Office of the U.S. Courts.

Bankruptcy gives the debtor company broad authority to cancel contracts with other companies.  For example, Chrysler used this power, given under Section 365 of the Bankruptcy Code, to terminate more than 700 dealer franchise agreements.

An amendment that was enacted in 1988 limits the ability of bankrupt companies that have licensed their intellectual property to others to terminate the licensee’s rights over the objection of the licensee. However, the amendment does not extend this protection to all kinds of intellectual property. Frank Perch, a bankruptcy attorney at the Savannah law firm of HunterMaclean, said Congress defined intellectual property in Section 365 to include trade secrets, copyrights, patents and patent applications, but did not include trademarks.

As a result, for businesses that incorporate another entity’s trademarks into their product, the licensor’s bankruptcy filing could have dire consequences. For example, consider a Hewlett-Packard computer with an Intel processor. Hewlett-Packard has a license to use Intel’s copyrighted material and the associated trademark. If Intel were to file for bankruptcy, Hewlett-Packard would still be able to use the Intel processor, but the use of the trademark could be in jeopardy.

Rachel Young, who specializes in intellectual property law at HunterMaclean, said trademarks are different from other intellectual property in that they exist perpetually as long as they are in continuous use and have not become generic. On the contrary, patents and copyrights are granted for a limited time.

This difference adds more negotiable value to the trademark, Perch said, citing the recent liquidations of retailers such as Circuit City, Linens & Things and Montgomery Ward. Even after the stores were liquidated, the trademarks were sold for substantial sums that were distributed among the creditors. The former retailers’ trademarks are now being used to operate online stores under different ownership.

“There are a lot of situations where trademarks are deemed to have value in bankruptcy,” Perch explained, “Even when the company has been liquidated.”
Young said a trademark owner such as Intel may still choose to license its trademark to the current business partner, but because the trademark license is not protected by Section 365, the licensor may renegotiate for better terms. The licensor also could sell the trademark to a competitor for a higher price.

“The trustee might be willing to continue to license the trademark, but they’re going to want to negotiate for more favorable terms,” Young said. “If the trademark adds substantial value to the licensee's product ,the trustee is going to have much greater leverage to negotiate the terms of the license.”

To protect one’s business interests, Young and Perch recommend a few ways that a licensee could avoid the pitfalls of Section 365. First, a licensee could negotiate for ownership of the trademark, which could possibly be coupled with a license back to the now-former trademark owner. Notably, while ownership would ensure protection, trademark owners are not likely to sell their interests without a sizeable offer.

Another strategy would be to take a security interest in the licensor’s other assets, Young said. “A security interest could compensate the licensee for loss of the use of the mark,” she explained. “But it’s also a way for the licensee to gain leverage to keep the licensing agreement.”
If a company fails to negotiate for either of the previous trademark deals, Perch and Young recommend seeking counsel as soon as a bankruptcy is filed to challenge the decision to reject the trademark license.

An attorney could argue that the decision to reject is an inappropriate exercise of the debtor’s business judgment.

Because of the trademark license’s special circumstances, Young recommends separating trademark agreements from other types of intellectual property contracts.  Section 365 allows trade secret, patent and copyright licensees to retain their rights to use the intellectual property, but in return the licensee must continue to pay royalties.  Thus, with a bundled payment, a licensee could face paying for a rejected trademark license in order to keep using the other types of intellectual property.

Perch and Young also stressed that the protection given by Section 365 is limited.  A licensor may still reject the patent, trade secret or copyright license. If the license is rejected, Section 365 grants the licensee the ability to use the intellectual property and enforce exclusivity provisions, but the licensor is no longer responsible for updating or continuing to develop the intellectual property.

Also, Section 365 only applies to actual license rights before bankruptcy and does not apply to an agreement to grant a license at some later date. To ensure that these and any other possible problems are addressed, consider having an attorney present when drafting any contract, Perch said.

“As in most cases, it is better to have an attorney review these issues at the start of the contract rather than later,” Perch added. “A little forethought now can save you a big headache later.”

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Robert (Bobby) S. Glenn Jr. has joined the law firm of Ellis, Painter, Ratterree & Adams LLP as a partner.  A graduate of Princeton University, Glenn has been practicing law in Savannah since obtaining his law degree from University of Georgia in 1976.  He brings to the firm extensive experience in the areas of admiralty & maritime law, arbitration & mediation, and construction litigation, according to the firm and is an active member of the Maritime Law Association of the United States, the Maritime Arbitration Association of the United States and many other professional and charitable organizations.

Benjamin D. Ellis has also joined the firm as an attorney practicing in the areas of corporate and securities law, trusts and estates, and banking and finance.  Ellis obtained his degree from the Georgia State University College of Law and has practiced in Savannah and Atlanta since being admitted to the Georgia Bar in 1997.  He is also a member of the North Carolina Bar and has practiced law in Cashiers, N.C.

NEWS - Law

Peter D. Muller was recently elected as a vice president for the Georgia Defense Lawyers Association for 2009-10.  He also serves as the editor of the GDLA newsletter, “Georgia Defense Lawyer.” Muller is an attorney with Bouhan, Williams & Levy LLP in Savannah, where his legal practice focuses on catastrophic injury, torts, professional malpractice and employment law.

“Muller is a very well-respected defense attorney by both his clients and his peers,” said Bouhan, Williams & Levy LLP partner Carlton E. Joyce.  “It is no surprise that he was elected to such an honorable position.  I am certain he will do well.”

The Georgia Defense Lawyers Association is committed to fostering success, communication and professionalism among attorneys whose practices are focused primarily on defending civil lawsuits.  Members must be in good standing with the State Bar of Georgia.

Bouhan, Williams & Levy LLP is one of Georgia's oldest law firms with a long tradition of excellence.  For over 100 years, the firm has gained extensive knowledge and experience from the representation of clients in a variety of matters.  Whether locally, nationally or internationally, the firm is qualified and superbly equipped to handle all of its clients' legal needs.  For more information visit www.bouhan.com or call 912-236-2491.

NEWS - Law

David Michael Conner, a partner at the Savannah law firm of Bouhan, Williams & Levy LLP, has been selected by other attorneys in Georgia to be included in the 2009 edition of Georgia Trend’s Legal Elite, a listing of the most respected lawyers in the state in several categories.

Conner, who primarily serves clients in Savannah and southeast Georgia, will be one of the few attorneys in the state listed in the December 2009 issue of Georgia Trend. Conner has consistently been recognized for his performance locally, regionally and nationally, including being selected by his peers for inclusion in The Best Lawyers in America, a Georgia Rising Star in 2006, 2007, 2008 and 2009 by Super Lawyers.

He holds the position of lead chair in Georgia for the Council on Litigation Management and is a fellow and Georgia state chair of the Litigation Council of America, an organization reserved for the top 3,500 litigation lawyers in the United States. Both organizations are dedicated promoting integrity in litigation, conducting thorough peer reviews to make it easier for consumers to identify and access reputable attorneys and reducing legal costs by working to eliminate superfluous lawsuits.

Connor successfully tried and won one of the largest condemnation cases in the history of the state for an international corporation with offices in Savannah. Additionally, he achieved a settlement of nearly $2 million in 2007 for the parents of a child killed in an automobile accident and a $3 million settlement in 2006 for the widow and children of a Guyton man killed in a collision.

In addition to practicing personal injury law, Conner serves a diverse roster of clients ranging from individuals to Fortune 500 corporations in corporate areas such as general corporate law, commercial litigation, business law, securities law and litigation, intellectual property law, bankruptcy, adversary litigation, construction litigation, product liability and white-collar crime.

NEWS - Law

(SAVANNAH, GA) Consumer Credit Counseling Service of Savannah (CCCS) will host National Protect Your Identity Week with two days of events that are free and open to the public.

In Savannah, National Protect Your Identity Week will kick-off on Thursday, October 22 from 1 p.m. until 5 p.m. at the Bull Street Library, located 2002 Bull St. A mobile ShredEx document shredding truck will be on-site to shred personal papers from 1 to 3 p.m.

From 3 to 4:30 p.m., financial crime and identity theft experts will be on hand to offer free advice about how to keep your information safe and what to do if you become a victim of identity theft. Credit counselors will also be available to provide mini-credit report review sessions. Bring your own recent credit report or we can pull one for you (sessions are available on a first come, first served basis). Refreshments and door prizes will be available courtesy of The Coastal Bank.

On Friday, Oct. 23, National Protect Your Identity Week continues from 9 a.m. to 1 p.m. at the United Way office, located at 428 Bull St. A mobile shredding truck from Seacoast Shredding will be onsite to shred your sensitive documents from 9 a.m. to 11:30 p.m. From 11:30 a.m. to 1 p.m., financial crime and identity theft experts will be on hand to offer free advice about how to keep your information safe and what to do if you become a victim of identity theft. Credit counselors will also be available for mini-credit report review sessions with you. Refreshments and door prizes will be provided by The Coastal Bank.

"Identity theft is a frightening experience," said Mandy Ownley, Vice President of Sales, Service and Cash Management at The Coastal Bank. "Here at The Coastal Bank, we cannot stress identity theft protection education and vigilance enough. Our goal is to encourage consumers to follow a few simple measures that will safeguard them from fraudulent practices. We even offer a special checking account with a free identity theft recovery service for our customers."

In 2008, the National Foundation for Credit Counseling (NFCC) reported that 10 million Americans fell victim to identity theft. An estimated 25 percent of victims who had new accounts opened in their names did not discover that their identity was stolen until more than six months after the crime first occurred.

"We advise and counsel families in any type of financial situation," said Skye Tyler, the Education Coordinator for CCCS. "Financial education is vital to protect your assets. We help families with budget counseling, credit counseling, debt management, education and first time home buying."

The Consumer Credit Counseling Service (CCCS) is a non-profit organization that has been serving residents of Chatham County and surrounding areas since 1965.

A recent National Foundation for Credit Counseling (NFCC) survey conducted by Harris Interactive revealed that 45 percent of all U.S. adults, roughly 101 million people, would feel at most risk for identity theft when making a purchase with a credit card that requires the card to be temporarily taken out of their sight, for example, at a restaurant.

By contrast, consumers are least fearful of falling victim to identity theft when using their credit card to make a purchase in person, for instance at a store. Only 21 percent of U.S. adults listed this as a concern, suggesting that consumers are comfortable as long as they can keep an eye on their card.

"In 2007, 8.4 million Americans reported being a victim of ID theft. That number increased by 19 percent to 10 million victims in 2008, making identity theft the crime that won't go away," said Susan C. Keating, president and CEO of the NFCC. "Americans must remain vigilant against this crime, protecting themselves through awareness and education."

In an effort to provide consumers with identity theft education and protection, the NFCC announces its second annual National Protect Your Identity Week (PYIW), October 17-24. Joining the NFCC as a full partner this year is the Council of Better Business Bureaus (CBBB), combining the strength of two well-respected nonprofits behind this initiative.