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February 2016

Website Accessibility Lawsuits Are Coming, Are You Prepared?

By: Marty Heller

Have you ever had a hard time finding something on a website? The writing was too small or the navigation between pages was difficult? According to many blind or disabled Plaintiffs, that website might be illegal. Generally, Title III of the Americans with Disabilities Act requires places that are open to the public to not discriminate against individuals due to their disability or otherwise deny them “the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.” These rules apply to any Company that permits entry by the public. However, the rules may apply to the internet domain as well.

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California's New Fair Pay Act Drastically Expands Employers' Potential Liability

By: Julie Marquis and Allison Shrallow

California’s new Fair Pay Act (SB 358) could well cause a significant increase in pay discrimination claims.  Under the Act, an employee paid less than a co-worker of a different gender performing “substantially similar” work – even though they have different job titles and work in different facilities – may sue based upon the pay differential.  If so, the employer must prove the pay differential is based on factors other than gender.

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SCOTUS Holds that Unaccepted Offer of Judgment Does Not Moot Plaintiff’s Class Action Case

By: Matt Foree

In Campbell-Ewald Co. v. Gomez, the Supreme Court held that an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case, such that the District Court retained jurisdiction to adjudicate the plaintiff Gomez’s complaint after he did not accept a settlement offer and offer of judgment in satisfaction of his Telephone Consumer Protection Act claims. 

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MDL Procedures At-Risk For Closer Scrutiny Going Forward

By: Ryan Babcock

For years, the resolution of large-impact product defect and personal injury litigation has been shifting away from class actions in favor of Multidistrict Litigation cases that are consolidated in front of one judge in the federal and state systems. A recent scholarly article authored by University of Georgia law professor Elizabeth Chamblee Burch, Judging Multidistrict Litigation, 90 N.Y.U. L. Rev. 71 (2015), offers some empirical evidence that supports many anecdotal stories and apparent trends regarding the management and resolution of these types of cases, and points to the likely need for additional future regulation of these kinds of cases, especially in the federal system.

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FMG Announces New Of Counsel in Atlanta Office

FMG is pleased to announce that Coleen Hosack has been named Of Counsel. Ms. Hosack practices in the Atlanta office and focuses on providing a strategic legal defense to local governments in civil litigation matters involving constitutional and civil rights issues.

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Firm and Attorney News 

Ben Mathis and Bill Buechner obtained a favorable ruling from the Eleventh Circuit affirming the district court’s grant of summary judgment in favor of a public employer on race and sex discrimination claims brought by a former police captain.  Stevens v. City of Forest Park, --- Fed.Appx. ---, 2015 WL 9287741 (11th Cir. 12/22/15).   The plaintiff was terminated after she refused to sign a last chance agreement, which was intended to give her a final opportunity to improve her performance before being terminated.   The plaintiff was given the last chance agreement due to a series of incidents that culminated with her encouraging several subordinates on an accident review panel to find an officer not at fault for an accident without providing them with photographs (as required by city policies) showing that the accident was avoidable.   The plaintiff argued that the major who recommended her termination made comments demonstrating gender bias and that the termination decision was therefore tainted by gender bias even though the final decision was made by the city manager based on the recommendation of the police chief.   The Eleventh Circuit rejected the plaintiff’s “cat’s paw” argument and held that the major’s alleged gender bias was not a motivating factor in the plaintiff’s termination because the police chief interviewed the plaintiff before deciding to give her the last chance agreement, re-wrote significant portions of the last chance agreement and rejected the major’s initial recommendation to terminate her instead of giving her a last chance agreement.    The Eleventh Circuit also rejected the plaintiff’s arguments that she did not engage in any misconduct in connection with the accident review, and that the City treated similarly-situated supervisors more favorably.


Freeman Mathis &  Gary is pleased to announce that Bart Gary’s Georgia Construction Law Handbook, 2016 edition is now available. This is the fourth annual edition and is expanded to include new topics and recent developments. The 345-page book is devoted to construction law in Georgia, and is intended for all construction professionals as well as the legal profession. It is an organized reference to topics such as regulatory matters and the collection of money using the mechanic’s lien law or the public works bond laws. The book is available in either hardcopy or E-Book from ALM, a leading publisher for the legal profession.


Brian Dempsey, Sun Choy, and Kevin Stone recently won summary judgment on behalf of a city in a trip-and-fall case which was brought in the State Court of DeKalb County.  The plaintiff’s fall occurred while the plaintiff was descending an outdoor concrete stairway at a recreational property.  First, the court ruled that the plaintiff’s ante litem notice was defective because it did not state the place of the alleged injury with sufficient detail to allow the city to investigate before plaintiff filed suit.  Second, the court held that Georgia’s Recreational Property Act barred the claim, since the alleged injury occurred on property that the city permits any person to use for recreational purposes without charge.  Third, the court agreed with the city’s argument that the plaintiff’s prior successful use of the stairway and her knowledge of its open and obvious condition defeated her claim. 


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About Freeman Mathis & Gary, LLP

Freeman Mathis & Gary, LLP is a leading national litigation firm, serving clients through its practice groups in CGL and Business Liability, Commercial and Complex Litigation, Construction and Design Law, Financial Services and Transactions, Government Law, Government Relations, Insurance Coverage and Bad Faith, Labor and Employment Law, and Professional Liability. With offices in Georgia, California, Pennsylvania, New Jersey, New York, North Carolina and Florida, FMG attorneys serve as trusted counsel to corporations and governments throughout the country, providing practical, efficient, and cost-effective solutions for legal issues. For more information about FMG, visit www.fmglaw.com.


Information conveyed in this presentation should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided in this presentation is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.
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