In my law practice as an ATL Business Lawyer handling employment contracts, I have noticed a sharp increase in Georgia employment contract litigation/lawsuits regarding non-competition and non-solicitation clauses in Georgia employment contracts. It is my opinion that the weak US economy is responsible for the sharp increase in Georgia employment contract litigation. While I believe the US economy shows some signs if improvement, many Georgia companies continue to struggle to make sales forecasts and hold on to employees. To be more specific, it is my opinion the current tough business environment has caused an increase in the number of disputes and lawsuits that involve non-competition or non-solicitation agreements between former employers and employees. In Georgia, non-competition (commonly known by employment attorneys as Georgia non-compete contracts) and non-solicitation contracts are common in many industries and protect the company from former employees who might otherwise compete directly with the company or solicit business from the company’s clients.

Potential employers can become wary of candidates that they are considering hiring once it is discovered that they signed a Georgia non-compete or non-solicitation agreement at a former company. The fear is that the hiring company may be pulled into a lawsuit filed by the employee’s former company. When a former employee is being sued over a non-compete that is invalid, a qualified Atlanta Business Contract Attorney is essential in arguing to have the non-compete contract case dismissed thereby allowing the employee to continue to working.

Under Georgia law, many non-compete and non-solicitation contracts are found to be unenforceable for the simple reason that they are too broad in scope. For non-competition agreements, if only one clause in the agreement is found to be unenforceable then the entire agreement is invalid. When non-competition and non-solicitation agreements are properly written, they are key in protecting a company’s interests when employees leave. However, to guarantee that these written agreements are enforceable, companies must include restrictive provisions that are reasonable under Georgia employment law. Georgia has well-founded public policies that protect against restraints on trade, so any company using a non-competition or non-solicitation agreement needs to make the contract sufficiently narrow to be enforceable. In all Georgia non-compete lawsuits, three primary questions are asked and scrutinized by the Georgia courts in the following manner:

One: Is the scope of the duties of the employee substantially similar to the duties the employee undertook in his or her previous employment? Two: Is the time-period for which the former employee is prevented from competing short enough to be considered reasonable? In most cases, a two-year time-period in which a former employee cannot compete with his former employer is the outer time limit a Georgia court will hold enforceable. Third: are the restrictions on the geographic region in which the employee is prevented from working sufficiently narrow and effectively predetermined for the non-competition agreement to be held enforceable by a Georgia court?

Non-solicitation agreements are also a restraint on trade and undermine competition among Georgia businesses, and therefore heavily scrutinized by Georgia courts. However, as a general rule they are held enforceable by Georgia courts much more often than non-competition clauses. Non-solicitation clauses prevent a former employee from taking clients away from his former employer. Actions by a former employee that would be grounds for a Georgia court to order and injunction due to a non-solicitation agreement would be the use of his or her former employer’s client list to contact clients of the former employer and solicit their business over to his or her new employer.
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In my career as an Atlanta, Georgia construction lawyer, I have found that Georgia builders and contractors commonly rely on the one-year new home warranty, mandated by state law, to shield them from accountability for home construction defects. Unfortunately, many new homeowners are unaware that in Georgia, the one-year warranty period does not set a time limit on their ability to rectify Georgia construction defect issues. The fact is that homeowners can sue for compensation related to defects that are discovered after the warranty period has expired.

To ensure proper treatment for home defect issues, it is imperative to consult with an experienced Georgia Real Estate Construction Lawyer as soon as the defects are discovered. An effective strategy for fighting construction defects is to file a breach of construction contract claim. Breach of contract can consist of the builder or contractor not using the proper materials for the job, failure to build the structure to industry standards, poor workmanship on the project and incomplete work. The Georgia statute of limitations for claims involving breach of written contracts is six years, which in many cases is sufficient time for defects to surface. What is more, the statute of limitations only begins to run on latent defects when they are discovered or should have been discovered.

A lawyer qualified to handle Georgia construction breach of contract disputes can guide homeowners through the options for recovering financial losses already incurred and for obtaining monies to repair home defects. Builders and contractors frequently will try to convince homeowners that the one-year warranty period precludes them from having to make an effort to resolve the defects. In these cases the builder is mistaken. Nevertheless, consulting with an Atlanta, Georgia home defect attorney immediately is a prudent first step toward confronting the builder or contractor and the process of forcing the responsible party to correct any problems the homebuyer may have.
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Over the past few years in my Atlanta, Georgia business law firm, I have found that causes of action for breach of contract are much more prevalent today than in recent history. As an Atlanta Business Litigation Attorney, I have seen this trend steadily increase and attribute it to both the current economic situation and to the fact that we live in a highly transactional society.

Contracts can be written or oral and others are merely implied, but they can all be valid contracts under Georgia law. The number of businesses that provide services to each of us on a business or personal level is staggering – lending and investment institutions, Internet service providers, hospitals, lawn care services, etc. We use contracts when we set up a Georgia business entity, buy or lease office space or hire employees. The list is endless. Thus, disputes and litigation of Georgia breach of contract cases is endless as well.

Business contracts are used to substantiate and clarify the commitment to an agreement between at least two parties or more. With the shear volume of contracts that we come in contact with, it is not surprising that legal claims for breach of contract are common. A breach of contract occurs when the promise made per a contract is not fulfilled. For example, a breach of contract exists when the service or product specified in the contract is not delivered, if payment for the service or product is not made in a timely fashion, or if there is a failure to complete or start the work specified in a contract.

When faced with a breach of contract, it is best to seek the counsel of an experienced Georgia business attorney who handles breach of contract disputes. An attorney will analyze the situation and pursue the most appropriate course of action. Once a breach occurs, the non-breaching party is usually freed from the contractual obligation. Georgia courts typically resolve these cases by awarding damages that make the non-breaching party whole, as if they had never entered into the contract. When money awarded by the court does not fully compensate for the breach, the breaching party may be ordered to fulfill the terms of the agreement anyway. If the breaching party is found to be intentionally acting in bad faith, the court may award attorney’s fees as well as punitive damages to the harmed party.
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As an Atlanta employment dispute attorney, I am quite sure I speak for most persons when I say that looking for employment is exceedingly stressful. Moreover, when an offer of employment finally comes in from an employer, it can be a whirlwind experience. Because the hiring process can be rushed for both the new employee and the company, many Georgia employment agreements are entered into without giving sufficient consideration to key factors. Unfortunately, not paying attention to the details of an employment agreement up front can be a big mistake in the long run.

In my Atlanta, Georgia Business Law firm, I have counseled clients on both sides of the table regarding Georgia employment agreement disputes. Oftentimes, these cases hinge on the circumstances under which the employment agreement was signed. When an employment disagreement arises, Georgia courts likely will take into consideration many factors surrounding the signing of an employment agreement. This is especially true concerning whether the employee was presented with the agreement before employment actually began. If an employer gives the employee an employment agreement before employment begins as well as ample time to review the agreement and consider the implications of signing, then it is more likely that the court will favor the employer and enforce the signed contract. The terms of employment should be presented before work begins and supplying the employee with a comprehensive contract will allow for fair “arm’s length” negotiations between parties.

Before signing any employment contract it is always wise to ask a Georgia Business Employment Contract Attorney to review the terms and conditions of the agreement. An experienced contract lawyer will be able to spot potential issues or areas that are lacking in the contract that might become a problem in the future. It is even more critical for an employee to retain a Georgia employment contract attorney if asked to sign an employment agreement after work has already begun. The courts do not typically tolerate this type of approach by companies, especially if the terms set out are not favorable for the employee. Examples are if the contract presented spells out a reduction in employee benefits or a change in remuneration.
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The building, renovation, or repair of a home can involve great expense and stress, even when the project is going smoothly. But when issues arise with contractors over construction defects, the cost and stress of the project can spiral out of control. The resulting mess can ultimately lead to a lawsuit that does not always solve the homeowner’s issues completely. The Georgia Right to Repair Act of 2004 was created to protect homeowners and help them handle these types of construction disputes in a more cost effective and efficient manner. The Act attempts to get homeowners and contractors to work together to solve these disputes without Georgia construction defect litigation or arbitration in a Georgia forum.

The Georgia Right to Repair Act requires that the homeowner perform a series of tasks before seeking relief from the Georgia court system or through the Georgia construction arbitration process. While it is open to question that the Right to Repair Act Letter can be waived by the parties to a construction defect dispute, the general process is that homeowners are first required to inform the contractors in writing of the construction defects. After that, the contractors are allowed a chance to correct the defects. They may opt to fix the problem completely or partially, offer a monetary settlement in place of a fix, or a combine the two methods. Over a 3-month period, several communications are required that must fall within a specific timeline before a lawsuit or an arbitration complaint can be filed by the homeowner. If the contractor fails to respond to the initial notice, or if the settlement offered is inadequate or never executed, the homeowner may file a Georgia construction defect lawsuit or proceed with the Georgia arbitration process for resolution of the construction defect.

Most homeowners will not be able to perform these tasks adequately without the help of an Georgia construction law firm. Failure to comply with the complete series of requirements outlined in the Act will affect the homeowner’s ability to pursue a legal claim. Moreover, the failure to send a Right to Repair Act Letter can be used as an effective defense against defective construction claims. In effect, the steps required by the Right to Repair Act are best handled by an experienced Georgia Construction Defect Attorney who can protect the homeowner’s rights and ability to file a claim.
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In my real estate litigation law firm, I wanted to make you aware that home sellers are required to disclose the home defects to any buyers or they could be held liable for failure to disclose defects when selling the home. Georgia law requires disclosure of defects on the “Seller’s Disclosure Statement“, which is part of most sales contracts and incorporated into the contract. The seller of a home must disclose defects, which are not readily discoverable by the homebuyer.

Conversely, the homebuyer cannot just rely on the home seller to gain a full knowledge of the condition of the home they are purchasing. The homebuyer must use due diligence to inspect the home and discover and defects which could be reasonably discoverable upon a diligent inspection. Homebuyers are not required to discover latent defects or defects hidden by the home seller. When a homebuyer is tricked by a home seller into buying a home through fraud and misrepresentation, many causes of action may be brought against the home seller. Unfortunately, in today’s real estate market where homes are hard to sell, our Georgia real estate fraud law firm is seeing more and more cases where the sellers of a home have engaged in fraud, fraudulent inducement, or misrepresentation of material issues in order to effectuate the sale of their home.
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While each state has its own laws regarding operating agreements, Georgia business law does not specifically require LLCs to have a Georgia operating agreement. However, it is wise to draft one, since the operating agreement is arguably the one document that provides significant legal protection to members of any partnership or corporation. In my Atlanta, Georgia Business Law firm, I have seen many clients come to me with serious issues stemming from a failure to draft this agreement, especially in family run businesses. Neglecting to draft this document before or upon creating a partnership or corporation often results in costly and time-consuming litigation.

The Georgia operating agreement allows you to define the LLC’s financial structure and working relationships between members. Key items to be addressed and defined by the agreement are percent ownership of each member, duties and rights of each member, voting power of the members, allocation of profits and losses, the management model and rules for meetings and voting. Additionally, the operating agreement will include provisions that outline not only what will occur if the business is sold, but also what will happen if a member dies, becomes incapable of performing the stated duties, or wants to sell their share of the business.

Although an operating agreement in Georgia can be oral (for multi-party LLCs only), it is always best to prepare it as a formal written document. In Georgia, the preparation of a written operating agreement should not be overlooked for several important reasons. It will help limit misunderstandings between members, ensure that the business is run by the rules established by the owners (not by the default rules of Georgia statute) and it will protect the company’s limited liability status (by preventing “piercing the corporate veil“). Protecting the company’s limited liability status is especially important if one person owns the LLC. With a properly drafted operating agreement, the one-person LLC can easily defend its status as an LLC in court proceedings, and the owner can avoid personal liability issues.
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As a Georgia property title lawyer, I know that under Georgia law property title law, individuals that do not hold legal title to land may take ownership of land legally under several scenarios. For many non-lawyers, this is hard to understand or believe. Georgia property owners need to be made aware of these types of situations in order to protect their right of ownership. Georgia law offers a number of ways that real property ownership can be transferred. Under Georgia law, adverse possession, prescriptive title, and color of title, are commonly referred to as “squatters rights.” Georgia law states that an individual who occupies a piece of land, but who is not the legal holder of the title, may gain ownership under certain circumstances after 20 years, or under “color of title” after 7 years. Under Georgia law, “Color of title” is evidence that the individual has a legal claim to property, although that claim has a defect. Examples are when the individual claiming ownership has a deed, but the deed is deficient or when two individuals hold deeds to the property simultaneously.

Despite what the statute of limitations is (7 or 20 years), the individual occupying the property usually must truly occupy the property continuously for the specified period of time. One possible exception to this rule is referred to as “Tacking.” The individual must also occupy the land in an open manner (not hidden from the real owner) and the individual must be using the property exclusively. Common scenarios are the use of a pathway between houses that the “squatter” has improved with a brick-paver pathway. If the real titleholder did not contest the use and improvement of this piece of land, because that owner never realized that the property fell within his property line, then the individual who made the improvements and used the pathway could take possession under the law. Another example is if a church allowed a parishioner to occupy a vacant home on church property, free of rent for over 20 years. That individual could file for adverse possession and attempt to take legal possession of the property.

In both these cases, regardless of the statute of limitations, the individuals laying claim to the land would have to have used the land continuously for the specified period. Because the individual occupying the property must do so without hiding their intention, most landowners do not realize that a problem exists and that the individual is squatting on the land. The issue usually arises when it is time to sell the property and the title is being checked. Unfortunately by this time, it is possible that the 7 or 20-year statute of limitations has run out and the land could be transferred to the squatter legally. For this reason it is imperative that boundary lines are checked when any property is purchased. Also, for vacant land, it is important to have the property checked periodically to move off any squatters. A qualified Atlanta, Georgia Real Estate lawyer can work to provide protection from these types of situations.
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The majority of the businesses in the United States are close corporations. Georgia close corporations are classified as having a maximum of fifty shareholders, no publicly traded stock and active management by shareholders. Because close corporations usually employ the shareholders, these companies generally have a more relaxed management style. The downside is that this management model puts the minority shareholders in a situation where they quickly can be faced with “squeeze out” or “freeze out” tactics, that typically result in termination of employment with the company.

Often times, income from employment is the most valuable stake that these minority shareholders have as shareholders. Shares held have no value on the open market. That, coupled with the fact that majority shareholders are unlikely to buy the minority’s shares at a fair price, leaves the minority shareholder with little or nothing upon being terminated. Georgia business law statutes provide protection for minority shareholders faced with this situation. Just as in ordinary corporations, all shareholders in close corporations have the right to inspect the documents pertaining to the company, including, but not limited to, bylaws, shareholder meeting minutes, documentation of actions taken outside of meetings and resolutions related to share classification. In the case of wrongdoing, documents discovered during inspection can provide the required evidence to file a lawsuit against the company.

Additionally, Georgia law states that the majority shareholders have a fiduciary duty to the minority, allowing for minority shareholders to sue for dissolution of the close corporation when these duties are not fulfilled. These suits can be filed if the majority shareholders have acted, are acting or are expected to act in an illegal, fraudulent, oppressive or unfair fashion toward the minority. Minority shareholders also can sue for fair valuation of their shares. Whatever the circumstance, it is critical to seek the counsel of an experienced Atlanta, Georgia Business litigation attorney to resolve shareholder complaints. Having a properly drafted operational agreement can prevent these types of disputes from developing, but if conflicts do arise, a qualified lawyer will ensure that all possible legal avenues are pursued to help the minority shareholder receive fair treatment and compensation under Georgia law.
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The Atlanta business lawyers at The Libby Law Firm have noticed that in these tough economic times when everyone is trying to save money, a lot of consumer offers seem to good to pass up. When we complete a purchase, sometimes we come to the realization that we have been mislead or a contract has been breached, and by this time it is often too late to return the product or we are left with what seems to be no recourse. So what can an ordinary consumer do when faced with a deceptive business practice? It is common to feel powerless, but fortunately Georgia has a law to help consumers fight back.

The law is called the Georgia Fair Business Practices Act and it protects Georgia consumers against many types of unfair and unscrupulous practices related to transactions made on personal, family and household products. The protection that this law gives to the consumer is broad, including, but not limited to, provisions on health spa and gym memberships, credit reports, insurance, telemarketing, multilevel marketing opportunities, “going out of business” sales and specific types of promotional activities, such as vacation prize offerings, contests and giveaways.

The Georgia act (O.C.G.A. Sections 10-1-390 et seq.) is enforced by the Governor’s Office of Consumer Affairs and specifically prohibits the following:

1) Misrepresenting who the actual manufacturer is of the good or service
2) Claiming that goods come from a geographical location, when they actually come from a different location
3) Representing used goods as new

4) Falsely stating the quality, grade or model of goods and services
5) Making false or misleading statements about a business or its product or service
6) Advertising goods or services with the intent of not honoring the advertising claim
7) Advertising goods or services without enough product on hand to satisfy consumer demand, except when the advertisement states that quantities are limited
8) Making untrue statements about sale prices

If you feel that you have purchased a product or service that is not living up to the claims stated by the seller, contact a qualified Atlanta, Georgia Business Attorney. Your attorney will work with you to recover damages and fight to stop the offending seller from continuing the unfair or deceptive practice.
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