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North Carolina Business Litigation Report

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John Buford
Mack Sperling

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State law antitrust claims in North Carolina seem to go together with unfair and deceptive trade practices claims (Chapter 75 claims) like peanut butter and jelly.  Section 75-2 of the General Statutes says that “any act, contract, combination in the form of trust, or conspiracy in restraint of trade or commerce which violates the principles of the common law” is a violation of the unfair and deceptive trade practices law. So why did Business Court…
Judge Robinson boldly went where no North Carolina Judge writing published Opinions had gone before last month in the case of Wheeler v. Wheeler, 2018NCBC117.  The subject was a corporate officer’s right to the advancement of legal fees incurred in defending against a lawsuit. Judge Robinson noted that there was only “one case in which our appellate courts have dealt with the issue of advancement.”  Op. ¶1 & n.1.  That case was inapplicable to…
The NC Business Court delivered a full Opinion last week on attorney-client privilege in Technetics Group Daytona, Inc. v. N2 Biomedical, LLC, 2018 NCBC 115.  It’s on the subject of the scope of attorney-client privilege accorded to corporate clients. That a corporation is entitled to the protection of the attorney-client privilege is “generally accepted.”  Op. ¶13.  But how far down the corporate employee ladder does the privilege extend?  As Judge Conrad observed, “it is…
The  Business Court Opinion last month in Shaw v. Gee, 2018 NCBC 108,  deals with two interesting trial procedure issues: how to preserve all your arguments for making motions for judgment not withstanding the verdict and for a new trial. Shaw had won at trial on one of his claims (that Gee had breached his fiduciary duty), but the jury had not considered damages (finding that Shaw’s claims were barred by his “unclean hands”).  Shaw…
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This hurricane — Florence — has proved so far to be underwhelming in Greensboro. But North Carolina is nevertheless taking this hurricane very seriously.  It’s seen as so devastating that the Chief Justice of the NC Supreme Court has issued blanket extensions of time in cases pending in 14 Counties, most on the coast or not far inland.  The Counties mentioned in his Order are Beaufort, Brunswick, Carteret, Craven, Currituck, Dare, Hyde, Jones, New…
Having a client required to arbitrate a case — even though that client never signed off on an arbitration provision — is nothing new.  Judge Conrad dealt with that situation late last month in Charlotte Student Housing DST v. Choate Construction Co., 2018 NCBC 88, where he said: Because arbitration is a matter of contract, the usual rule is that “a party cannot be required to submit to arbitration any dispute which he has not…
It is one of the most frustrating things you can have happen after concluding a successful deposition.  The witness backtracks on all the substantive admissions she has made during her testimony. Can she really do that?  Well, yes.  Rule 30(e) of the North Carolina Rules of Civil Procedure says that the deponent can review her testimony and: If there are changes in form or substance, the deponent shall sign a statement reciting such changes and…
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North Carolina’s Unfair And Deceptive Trade Practices Act (G.S. sec. 75-1.1) carries with it the heady possibility of triple damages and attorneys fees.  So nearly every Plaintiff’s lawyer routinely includes a Chapter 75 claim in his or her Complaint. But last week, in Brewster v. Powell Bail Bonding, Inc, 2018 NCBC 74, Judge Conrad cautioned against that practice,  calling it “a regrettable trend in North Carolina business litigation.”  Op. ¶36. The…
I have been complaining about  the fees approved by the NC Business Court for those lawyers obtaining disclosure only settlements since there was a Wachovia Bank.  Some of you may not be old enough to remember that venerable bank. Now, at last, Judge Gale has found a disclosure only settlement to have yielded (almost) immaterial disclosures, and slashed the attorneys’ request for fees (by more than 50%) and expenses (to zero).  The Opinion, delivered…
The title of Judge Bledsoe’s Opinion in Carolina Home Solutions 1, Inc. v. Crystal Home Solutions, Inc., 2018 NCBC 57, is ominous in itself.  It is titled “Order and Opinion Denying Pro Hac Vice Admission and Referral to the Georgia and North Carolina State Bars.” How hard is it to get a pro hac vice (PHV) admission in the Business Court?  Not very.  You just have to comply with N.C. Gen. Stat. §84-4.1. …