Summer 2013
Labor & Employment Law News
Official Publication of the Atlanta Bar Association
Labor & Employment Law Section
A Message from the Editor
by A. Craig Cleland, Ogletree Deakins Nash
Smoak & Stewart, PC

With the Dog Days of late summer upon us, I have three fine articles to distract you--all suggesting that we must use yet more care when drafting and litigating Georgia restrictive covenants. First, Matt Maguire, Tony Cochran, and John Larkins dive deeply into the myriad issues around physician restrictions, before and since the Restrictive Covenants Act, concluding that now more than ever Georgia courts are likely to enforce these promises. Second, Ben Fink and Amy Dehnel look at how a seemingly straightforward holding, the Georgia Supreme Court's 2013 decision in Holton v. Physician Oncology Services rejecting the inevitable-disclosure doctrine, is more nuanced and raises more questions than we imagined. Finally, Neal Weinrich wonders how the Supreme Court's 2013 pro-arbitration opinion in Nitro-Lift Technologies affects two key Georgia appellate cases holding that, when a party seeks injunctive relief in court, that court may also address the restrictive-covenant claims, even if an arbitration agreement requires a different forum. Yes, you would rather be adrift on water with cool drink in hand than thinking about all this. But trust me: soaking up these articles will ensure that you sleep better at night. Enjoy what's left of your summer.
Restraints on Physician Competition in Georgia
by J. Matthew Maguire, Jr., Parks, Chesin & Walbert, P.C., Anthony L. Cochran, Chilivis, Cochran, Larkins & Bever LLP and John K. Larkins, Jr., Cochran, Larkins & Bever LLP

Many Georgia physicians are bound by contractual covenants that seek to restrict their ability to compete (non-compete covenants), to solicit patients or referral sources (non-solicitation covenants), to solicit co-workers (non-recruitment covenants), or to use or disclose confidential information (non-disclosure covenants).  Restrictive covenants may appear in physicians' employment agreements,  partnership agreements,  medical director contracts,  agreements executed upon the sale of a medical practice,  and even real estate leases. 

View entire article
The Georgia Supreme Court's "Rejection" of the Inevitable Disclosure Doctrine - What it May Mean and What it May Not
by Benjamin I. Fink and Amy E. Dehnel,
Berman Fink Van Horn PC

As readers of this newsletter know, when an employee leaves a company to join a competitor, the company often fears that the employee will use confidential information or trade secrets to unfairly compete.  Even if the employee does not take any documents, files, or software, the employer can be unnerved by the thought that an employee may use proprietary information gained in her employment to the detriment of the former employer. 

View entire article
Arbitration Clause in Non-Compete Agreements: The United States Supreme Court Chimes In
by Neal Weinrich, Berman Fink Van Horn PC

Many non-competes lawsuits involve agreements containing mandatory arbitration clauses.  Sometimes an employment agreement expressly authorizes the employer to seek temporary injunctive relief from a court prior to arbitration as an exception to the mandatory arbitration clause.  Sometimes the agreement permits the employee to seek injunctive relief prior to arbitration.  When an agreement permits an employee to seek injunctive relief from a court, the employee may ask a court to enjoin the employer from seeking to enforce any overbroad restrictive covenants, in an arbitration or otherwise.

View the entire article
In This Issue
2013-2014 Section Board of Directors


Ian E. Smith

Vice Chair/Chair-Elect
Benjamin I. Fink

A. Craig Cleland

Immediate Past Chair
William C. (Cory) Barker

Members at Large
Mary M. Brockington
Andrea Doneff
Amanda Farahany
Marcia Alembik Ganz
Daniel Hart Dan Klein
Robert Lewis
Adriana Midence Scott
Michelle E. Shivers

Newsletter Editor
A. Craig Cleland

Newsletter Editor

Ellen Malow
Do you have an article suggestion for the Section Newsletter?

We want to hear from you!  Please contact Incoming Newsletter Editor Ellen Malow with your ideas & suggestions. 
All articles should be submitted in a Microsoft Word format.
Follow Us

Like us on Facebook   Follow us on Twitter    View our profile on LinkedIn