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January 2016

Data Breaches Expected To Fuel D&O Claims Premised On Inadequate Board Oversight Over Cybersecurity Risks

By: Mike Wolak and John Goselin

With the recent filing of a shareholder derivative action against several directors and officers of The Home Depot following the company’s severe data breach in 2014, questions concerning the adequacy of board oversight over cybersecurity risks will be at the forefront of derivative claims that are expected to increase in frequency following data breaches at publicly-traded companies. 

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A Bumpy Road Ahead: More Uber Drivers to Join Misclassification Class Action Lawsuit

By: Allison Shrallow

Living in San Francisco, the mecca of all things tech, can make a person very accustomed to getting everything on-demand. Need groceries? Use Instacart.  Want someone to clean your home? Try Handy.  Looking for a date?  Consider Bumble. The push-button economy has become so commonplace that it is difficult to imagine our lives without it.

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Drug Distributors May Find Themselves Without A Defense

By: Michael Bruyere and Kristian Smith

Rising prescription drug abuse has put drug distributors under scrutiny in the last few years. Now, pharmaceutical companies are being sued for the economic costs associated with the epidemic, but they may not be able to rely on their insurance companies for a defense. Pending a decision by the 11th Circuit, insurers may not have to provide a defense to pharmaceutical companies in “pill mill” lawsuits.

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Straight from the Horse's Mouth: Final Changes to FLSA Are Moving Slowly

By: Marty Heller

So it turns out that the changes to the minimum salary level for exempt positions may not be changing as quickly as many thought. Linked here is a great article from HR Morning about comments made by Department of Labor Solicitor Patricia Smith at a recent American Bar Association conference. At the conference, Ms. Smith said that the DOL does not expect to issue a final rule until "late 2016," which for anyone who follows government deadlines likely means 2017.

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Firm and Attorney News 

The Atlanta Business Chronicle’s annual ranking of Atlanta law firms listed FMG as the second fastest growing law firm in 2015 in Atlanta as measured by revenue increase. This marks the fifth consecutive year that FMG has been ranked among the fastest growing firms in Atlanta as ranked by the Chronicle.


Brad Adler and Matt Foree successfully defended an educational institution in a claim by its former CFO that the company had breached its employment agreement with him when it terminated his employment with cause.  The plaintiff claimed that the company orchestrated his termination with cause to avoid a severance obligation and demanded over $245,000 as a part of his lawsuit.  After several depositions and the close of discovery, the plaintiff accepted a nominal amount of money to resolve the matter.    


Brian Dempsey, Sun Choy, and Kevin Stone recently prevailed before the Eleventh Circuit Court of Appeals, which affirmed a grant of summary judgment in favor of police officers who were accused of using excessive force while arresting a nurse at a mental hospital.  The officers had explained to the nurse that they had a warrant to arrest a patient accused of sexually assaulting another patient.  Still, the nurse refused to allow the officers access to the patient.  After several warnings, the officers arrested the nurse for obstruction.  The district court found that the officers were entitled to qualified immunity because the officers did not violate clearly established law.  The Eleventh Circuit agreed and upheld the judgment in favor of the officers.


Neil Wilcove and Brian Lake recently secured an arbitration award for its client, a DeKalb County real estate developer. The opposing side sought half the profits and assets of a partnership he previously initiated with the client in 2003, and further alleged that the client had committed fraud and wrong-doing in the handling of the business. In response, the client filed a counterclaim alleging that the claimant had abandoned the partnership, and sought to recover half the net cash capital contributions she had committed to the business since its inception. The arbitrator found in our client’s favor on all counts and denied claimant’s demand for damages in its entirety. The arbitrator further agreed that the client had complete authority to manage the partnership and entered an award in her favor in the amount of $292,226.70. 


Seth Kirby won summary judgment on behalf of an  insurance agent sued in Liberty County Georgia.  The suit alleged that the agent had misrepresented the costs and terms of a flexible premium life insurance policy , thereby inducing his customer to purchase a policy he could not afford.  Through extensive discovery efforts Mr. Kirby was able to establish to the trial court that the terms of the policy had been accurately provided to the insured at the time of the transaction and the plaintiff’s claims were barred on both procedural and substantive grounds.

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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.


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