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North Carolina Business Litigation Report

NC Business Court On Changing A Witness’ Deposition Testimony

By Mack Sperling

August 13, 2018

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…

North Carolina Business Litigation Report

NC Business Court Warns Lawyers Not To Bring Chapter 75 Claims In Shareholder Disputes

By Mack Sperling

August 1, 2018

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…

North Carolina Business Litigation Report

It May Not Be Worth It For Plaintiffs’ Lawyers To Come To North Carolina And To Seek Fees Based On Disclosure Only Class Settlements

By Mack Sperling

July 9, 2018

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…

North Carolina Business Litigation Report

Don’t Do This If You Are Out-of-State Counsel Appearing in The NC Business Court

By Mack Sperling

July 3, 2018

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. …

North Carolina Business Litigation Report

NC Business Court Schools Plaintiff’s Attorney On How To File A Document Under Seal In The Court

By Mack Sperling

June 14, 2018

The attorney for the Plaintiff in Preiss v. Wine and Design Franchise, LLC, 2018 NCBC 53, apparently didn’t bother to read the Business Court’s Rules on what must be done in order to file a document under seal. That lawyer failed on three separate occasions to comply with the Court’s procedures for sealing a document. So Judge McGuire took the Plaintiff’s lawyer to school, though pretty gently. He said: On the charitable assumption that…

North Carolina Business Litigation Report

NC Business Court Rejects The Idea Of A “Settlement Privilege”

By Mack Sperling

May 21, 2018

Statements made in the course of settlement negotiations are inadmissible at trial, per Rule 408 of the NC Rules of Evidence. But does that dead end to admissibility protect against the production of such items during discovery? No, said Judge Bledsoe, in his Opinion late last month in Duke Energy Carolinas, LLC v. AG Insurance SA/NV, 2018 NCBC 38. He could have rejected Defendant Duke’s claim that communications regarding settlement of ther cases…

North Carolina Business Litigation Report

Another NC Business Court Appeal Bites The Dust

By Mack Sperling

May 1, 2018

I guess that every North Carolina lawyer doesn’t know that since October 2014, appeals of final decisions by the NC Business Court go directly to the NC Supreme Court instead of to the NC Court of Appeals. You didn’t know that? Well you are not alone. The Notice of Appeal of Judge Gale’s Opinion in Zloop, Inc. v. Parker Poe Adams & Bernstein, 2018 NCBC 16 dismissing all of Plaintiff’s claims was addressed to the…

North Carolina Business Litigation Report

NC Business Court On Shareholder Inspection Rights

By Mack Sperling

April 9, 2018

It’s been a while since the Business Court devoted a full opinion to a shareholder’s rights to inspect corporate records. But last week, Judge Bledsoe filled that gap with his Order and Final Judgment in Sharman v. Fortran Corp., 2018 NCBC 27. Fortran? If you are thinking that Fortran Corp. must control the rights to the Fortran computer coding language, like I was, you are wrong. This Fortran Corporation is a “telecommunications system…

North Carolina Business Litigation Report

NC Business Court: Choice Of Law Dooms Trade Secrets Claim

By Mack Sperling

February 19, 2018

What choice of law rule applies to trade secrets claims? No North Carolina appellate court has answered that question, but Judge Robinson of the NC Business Court stepped into that breach in his Opinion in SciGrip v. Osae, 2018 NCBC 10. The Plaintiff certainly didn’t like the answer, as it resulted in the dismissal of its claim for the misappropriation of its trade secrets. Defendant Osae had worked for the Plaintiff SciGrip for years developing…

North Carolina Business Litigation Report

“Holding All The Cards” And Fiduciary Duty Claims

By Mack Sperling

February 7, 2018

It is hard to base your case on a breach of fiduciary duty when there is a contract in place between the parties. Contracting parties owe no special duties to each other beyond the terms of the contract. Branch Banking & Tr. Co. v. Thompson, 107 N.C. App. 53, 61, 418 S.E.2d 694, 699 (1992). But the NC Business Court twice in January allowed fiduciary duty claims to survive when the relationship between the parties…

Brooks Pierce LLP

NC Business Court On Changing A Witness’ Deposition Testimony

NC Business Court Warns Lawyers Not To Bring Chapter 75 Claims In Shareholder Disputes

It May Not Be Worth It For Plaintiffs’ Lawyers To Come To North Carolina And To Seek Fees Based On Disclosure Only Class Settlements

Don’t Do This If You Are Out-of-State Counsel Appearing in The NC Business Court

NC Business Court Schools Plaintiff’s Attorney On How To File A Document Under Seal In The Court

NC Business Court Rejects The Idea Of A “Settlement Privilege”

Another NC Business Court Appeal Bites The Dust

NC Business Court On Shareholder Inspection Rights

NC Business Court: Choice Of Law Dooms Trade Secrets Claim

“Holding All The Cards” And Fiduciary Duty Claims

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