Judge Gale’s approval last week of a class action settlement, in In re Krispy Kreme Doughnuts, Inc. Shareholder Litigation, 2018 NCBC 1 gives me another opportunity to rail against disclosure only settlements.  You know that I don’t like them.  If you don’t know that, I’ve written on this subject several times. Like here, here, and here. The Krispy Kreme shareholder class litigation followed what has become the inevitable path for almost…

The Defendant in SQL Sentry, LLC v. ApexSQL, LLC, 2017 NCBC 105 was alleged to have copied the Plaintiff’s software program which was designed to make “resource intensive T-SQL queries. . . in the Microsoft enterprise database platform, SQL Server.”  Op. Par. 5.  (Ask your IT person). Adding insult to injury, the Defendant marketed the program it had copied under the same trademark used by the Plaintiff  to sell its competing program (“Plan Explorer”).  So, when…

The North Carolina Rules of Civil Procedure are fairly identical to the Federal Rules of Civil Procedure.  In fact, I am hard pressed to think of any substantial differences. But the lack of one word contained in FRCP 14 — “original” — but omitted from the parallel NC Rule made all the difference in the NC Business Court’s Opinion in AP Atlantic, Inc. v. Crescent University City Ventures, LLC, 2017 NCBC 91. The case had…

You’ve probably never had to decide what it means to agree to arbitrate.  Usually, there is a written provision that references the AAA Rules and includes a consent to AAA’s procedures as to the appointment of the arbitrator(s) and the conduct of the procedure. And most usually, the word “arbitration” is used in the provision. Lately, however, the NC Business Court wrestled with two cases in which there was no provision referencing the AAA, no…

You probably thought that you would never again have to argue that a demand on a corporation’s board of directors before filing a derivative action should be excused because it would have been futile.  That’s because the North Carolina Legislature amended NC corporate law in 1995 to make clear that a demand on the corporation to take action is an essential prerequisite to the filing of a derivative action.  Section §55-7-42 of the General Statutes,…

The North Carolina General Assembly has decided to legislate choice of law in commercial transactions.  The new statute, enacted in June, is called the “North Carolina Choice of Law and Forum in Business Contracts Act.” It will be codified at N.C. Gen. Stat. §1G-1. The Statute Applies Only To “Business Contracts” The statute applies only to “business contracts.”  That term is defined as: “[a] contract or undertaking, contingent or otherwise, entered into primarily…

I don’t think that there is anything worse than having a client get subpoenaed in a case to which it isn’t a party.  It didn’t want to be drawn into someone else’s problem, to have to scour its records to respond to an unanticipated and intrusive request for documents, and to have to deal with the expense of an outside lawyer to handle the mess. The good news is that Rule 45 provides greater protection…