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The day trading firms where Mark O. Barton worked before embarking on a shooting rampage are not liable for the victims’ injuries and deaths, Georgia’s court of appeals has ruled. The case had its origins in the worst shooting incident in Georgia history. On the afternoon of July 29, 1999, Barton went to Momentum’s offices, dressed in Bermuda shorts and a polo shirt, and carrying a Colt .45 and a Glock 9mm handgun. He shot a manager and several day traders before crossing the street and opening fire in All-Tech’s offices. Again, he shot several managers, and fired on several day traders as he left the building. An appeals court panel ruled that the victims of Barton’s killing spree and their survivors failed to show their damages were a foreseeable result of day trading firm practices. The opinion upheld an order by Fulton State Court Judge Susan B. Forsling, which granted summary judgment in 13 related cases to the defendants, All-Tech Investment Group Inc., Momentum Securities Inc. and Barton Protective Services Inc. Brown et al. v. All-Tech Investment Group, Nos. A031842-54. “We find this case is one in which the issue of proximate cause is so plain, palpable and indisputable as to demand summary judgment for the defendants,” Judge John J. Ellington wrote for the unanimous panel, which also included Judge Herbert E. Phipps and Presiding Judge G. Alan Blackburn. All-Tech’s lawyer Michael J. Gorby, of Gorby, Reeves & Peters, whose office is in the nearby Resurgens Plaza on East Paces Ferry, said he remembered his office being locked down on the day of the shooting. The incident, he said, was awful to remember. “That was just a horrible, horrible thing,” he said. “It’s like a Tarantino movie.” Barton killed nine and wounded 12 before escaping. SWAT team members later cornered Barton in the parking lot of a gas station, where he died after shooting himself in the head. Investigators later discovered that, days earlier, In addition to the nine deaths in Buckhead, Barton also had beaten his wife and two children to death with a ball-peen hammer in their Stockbridge apartment. Six of those who survived being shot, and the survivors of seven of those who perished in the shooting, filed suit against the day trading firms, alleging that it was the firms’ negligence that caused Barton to go berserk and start shooting people. Plaintiffs’ lawyers Michael Weinstock, of Weinstock & Shave, and David M. Zachs and Raymond G. Chadwick of Kilpatrick Stockton, argued that the firms triggered Barton’s madness by failing to screen him adequately as a trader, and by making it very easy for Barton to lose far more money than he could afford. Doing so, they noted, earned the firms commissions on each trade. Zacks said his clients might consider asking for reconsideration, and, if necessary, an appeal. “The victims are important, and that’s why we want to pursue all of our options,” he said. TURNED INTO ‘FRANKENSTEIN’ Ellington noted the plaintiffs argued that the way the firms operated turned Barton into a “Frankenstein monster.” Barton, they argued, “was the victim of the original tort, and his subsequent criminal act was a result of and response to that tort.” But the plaintiffs faced some serious legal obstacles. According to Ellington’s opinion, the defendants had to show that the trading firms had a duty to protect them from “unreasonable risk of harm,” that the firms’ conduct was the immediate cause of the plaintiffs’ injuries, and that the firms’ failure to do their duty caused the plaintiffs’ injuries. However, under Georgia law, a third-party criminal act breaks the chain of connection between one party’s action and another’s injury. The only exception is if the plaintiffs can show that the intervening criminal act was foreseeable, that the defendant triggered the act, and that the act was enough on its own to injure the plaintiffs. “The appellants conceded, as they must, that Barton’s deadly assaults constitute intervening criminal acts of a third party between the trading firms’ conduct and the appellants’ injuries,” Ellington wrote. In an effort to get around that concession, however, the appellants called Barton’s burst of violence an “intervening consequence” of the firms’ business practices. Had it not been for the firms’ practices, they argued, Barton never would have cracked. “They made some really strong arguments,” Gorby said. Day trading enjoyed a brief heyday in the late ’90s. Firms would lease space for “trading floors” — big rooms with rows upon rows of computers outfitted with trading software. Day traders, some with experience, some with none at all, would come in to execute a slew of trade orders — sometimes as many as 40 an hour. The idea was to hold securities just long enough to profit from the minute-to-minute fluctuations of the market. The trading firms made commissions on each trade, but traders themselves often lost significant amounts. Gorby said that when Barton’s victims sued, they intended to put the whole practice of day trading on trial. “At the time, day trading was undergoing a Senate investigation and had some warts on it,” he said. HEAVY LOSSES When Barton began trading with All-Tech in April 1998, he told the firm he had a net worth of $500,000. All-Tech never verified Barton’s claim, but Barton deposited $100,000 in his account and began trading. “Over the next 11 months, Barton sustained heavy losses, including over $200,000 just in August 1998,” Ellington wrote. Despite the requirements of company policy, no All-Tech manager ever met with Barton to discuss his mounting losses or to evaluate his viability as a trader. By May 10, 1999, Barton had lost more than $400,000 and owed All-Tech more than $30,000. All-Tech then closed his account. A few days later, Barton went across the street to Momentum to open an account, telling Momentum managers he was worth $750,000. Like All-Tech, Momentum didn’t check out Barton’s claims. Again, Barton deposited $100,000 in his account, and again Barton lost a lot of money. Barton lost most of his $137,500 initial investment about six weeks before he started shooting. Nobody from Momentum ever met with Barton to ask about his losses, according to the opinion. The defendants, claimed the appellants, should have known that the heavy losses attendant on day trading would drive some people to violence. Heavy economic losses, they argued, spark violence, and the firms knew it — or should have known it. Both the trial and appeals court discarded that argument. “The entire thrust of this case is that there is foreseeability of this kind of behavior,” Zacks said. And in a footnote, Ellington states that legal recognition of such a connection could have serious repercussions. “We are � troubled by the implication that the list of defendants potentially liable for any person’s violence, if sparked by economic misfortune, would be limited only by the number of stock brokers, investment advisers, lawyers, business partners, lottery ticket sellers, etc., whom the assailant blamed for his financial losses,” he wrote. Ellington also noted that it had to be foreseeable that if the firms didn’t monitor Barton, he would turn violent and might harm people in the workplace. However, there never had been a prior crime at All-Tech of any kind. And nobody had any idea that Barton was a potential mass-murderer. “It is undisputed that before Barton pulled out his weapon, no employee of All-Tech or Momentum had any reason to believe Barton in particular could be dangerous,” Ellington wrote. Even if All-Tech had conducted a thorough search, Gorby said, “it wouldn’t have turned up a thing.”

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