Mack Sperling

Mack Sperling

Brooks Pierce

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A Couple Of Things Not To Do In The NC Business Court

The NC Business Court's decision last month in Krawiec v. Manly, 2016 NCBC 7, illustrates a couple of things not to do in the Court. Don't Make "Aiding and Abetting" Claims - The Plaintiff made a claim against some...more

2/3/2016 - Aiding and Abetting Breach of Contract Counterclaims Motion to Dismiss Trade Secrets

Arbitration Provision Which Completely Prohibited Any Discovery Enforced By NC Business court.

I don't draft arbitration provisions in agreements, but if I did I would not draft one like the one in Taggart v. Physicians Pharmacy Alliance, Inc. Not because it turned out to be unenforceable, but because it was found to...more

1/20/2016 - American Arbitration Association Arbitration Agreements Business Court Discovery Enforceability Litigation Fees & Costs Motion to Compel Stock Purchase Agreement

NC Business Court Revokes Pro Hac Vice Admission Of Out Of State Lawyer

Judge McGuire came down pretty hard on a Florida attorney admitted pro hac vice (meaning "for this one particular occasion") by another Superior Court Judge, in McCarthy v. Hampton, 2016NCBC 4. He revoked the lawyer's...more

1/12/2016 - Attorney Misconduct Business Court Discipline Pro Hac Vice Settlement Agreements

Should An Arbitrator Or A Judge Be The One To Decide Whether An Arbitration Is Barred By Res Judicata

There are all sorts of questions when court proceedings run alongside an arbitration dispute. Who decides issues that cut across both? Judge? Arbitrator?...more

12/30/2015 - Arbitration Arbitrators Business Court Judges Res Judicata Revised Uniform Arbitration Act

Sometimes It Might Not Be Worth It To Appeal The Denial Of A Preliminary Injunction

I don't think that it was worth it for TSG to appeal Judge Murphy's Order denying its Motion for a Preliminary Injunction on a covenant not to compete. That's true even though an injunction (though not on the covenant) was...more

12/23/2015 - Appeals Contract Terms Inevitable Disclosure Doctrine Non-Compete Agreements Preliminary Injunctions Restrictive Covenants

Problems To Avoid When Making A Meiselman Claim And/Or Filing A Derivative Action

The Business Court's Opinion last week in Coleman v. Coleman, 2015 NCBC 110, provides useful guidance on how to properly plead a Meiselman claim, and proper procedure to follow before making a derivative claim. Plaintiff...more

12/17/2015 - Business Judgment Rule Closely Held Businesses Derivative Suit Director Removal Fiduciary Duty NC Supreme Court

A Couple Of Points About Receiverships

There's a lot to wonder about receiverships. Like, how is the Receiver's compensation calculated? And does it make a difference to compensation if a corporate shareholder says the receivership was unnecessary, and that it...more

12/14/2015 - Compensation Insolvency LLC Real Estate Market Receivership

Plaintiff Gets A Rare Win On A Motion For Reconsideration In The NC Business Court

It's pretty hard to succeed at getting a Business Court Judge to reconsider a prior ruling and reverse himself. But the Plaintiff in RREF BB Acquisitions, LLC v. MAS Properties, LLC, 2015 NCBC 105, accomplished exactly that...more

12/8/2015 - Business Court Division ECOA Motion for Reconsideration

What Are Your Options When You Think That Your Arbitrator Has Gone Out Of Control?

You don't have many options when you think that the arbitrator who you agreed to hear your case has delivered a plainly wrong arbitration award. In fact, you probably have none at all. The Defendants in the NC Business...more

11/23/2015 - Arbitration Arbitration Awards Arbitrators Federal Arbitration Act Revised Uniform Arbitration Act Vacatur

NC Business Court Turns 100

The Business Court turned out its one hundredth published (numbered) opinion of 2015 at the end of last week. It came in the form of a tax case, in Home Depot U.S.A., Inc. v. North Carolina Dept. of Revenue, 2015 NCBC 100....more

11/11/2015 - Business Court Division Equal Protection Home Depot Tax Refunds

You CAN Get A Ruling From A Superior Court Judge After Your Case Is Designated To The Business Court

I wrote yesterday about the arbitration aspects of Gaylor, Inc. v. Vizor, LLC, 2015 NCBC 98. But there is a significant aspect of Business Court procedure addressed in that case which deserved its own post....more

11/4/2015 - Arbitration Business Court Division Judges

NC Business Court On Arbitrability: Clear And Unmistakable

You may have pondered over the question whether a Judge or an Arbitrator decides if a particular dispute is subject to an agreement to arbitrate. If you have wondered who makes that sort of decision, it's actually not an...more

11/3/2015 - American Arbitration Association Arbitration Arbitration Agreements Arbitrators Breach of Contract Construction Industry Federal Arbitration Act Subcontracts Unfair or Deceptive Trade Practices

Rule 11 Sanctions (Again!) From The NC Business Court

This month, for the second time in the last two months, Judge McGuire of the NC Business Court entered Rule 11 sanctions against a party whose attorney relied on inaccurate information from the client in making claims against...more

10/28/2015 - Business Court Division Limited Liability Companies Motion for Sanctions Rule 11 Sanctions

Unusual Area Of Law For The NC Business Court: Life Estate In A Beach House

When Governor McCrory appointed Judge Gregory McGuire to the Business Court, I doubt that he had any concern whether Judge McGuire had any expertise in the area of trusts and estates. After all, that area of law is not...more

10/23/2015 - Business Court Division Life Estates Limited Liability Companies Property Owners Rental Income

Two Cases From NC Business Court: Class Action Fees Doubled And Expedited Discovery Denied

Last week (well, two weeks ago, I'm kind of behind) seemed like class action week at the Business Court. Judge Gale issued three rulings in class action cases. ...more

10/21/2015 - Acquisitions Attorney's Fees Business Court Division Class Action Discovery Expedited Discovery Fee-Shifting Mergers Proxy Statements Sale of Assets Shareholder Litigation Shareholders

It Can Be A Tough Road For Trade Secrets Plaintiffs In The NC Business Court

If you are a regular reader of this blog, you know that litigating a trade secrets case in the Business Court can be tough. Last year, the Court barred a plaintiff from engaging in any discovery at all until it identified...more

10/16/2015 - Business Court Discovery Former Employee Laptop Computers Misappropriation Motion to Compel Non-Parties Pleadings Subpoenas Trade Secrets

Can An NC Superior Court Judge Modify Another Judge's Classs Certification Order?

Is the certification of a class by an NC state court set in stone or can it be modified during the course of the litigation? The federal rule vs. the state rule - There is a difference between the federal rule...more

9/30/2015 - Class Action Class Certification Federal Rules of Civil Procedure Homeowners Interlocutory Orders KB Homes Real Estate Transfers Rule 23 Rules of Civil Procedure

Court Of Appeals Affirms Business Court Award Of $1 Million In Fees To Class Counsel

It seems like forever ago that the then venerable North Carolina institution, Wachovia Bank, failed and was acquired by Wells Fargo. (This was actually seven years ago). But just last week came what might be the final...more

9/21/2015 - Acquisition Agreements American Rule Appeals Attorney's Fees BVI Business Companies Class Action Settlement Agreements Wachovia Wells Fargo

Business Court Enjoins Enforcement Of High Interest Rate Loans Made By American Indian-Related Business

Judge Gale's opinion last week in Western Sky in State v. Western Sky Financial, LLC, 2015 NCBC 84 has a little bit of everything in it: choice of law, the U.S. Constitution, claims for usury (excessive interest rates) and...more

9/1/2015 - Business Court Division Choice-of-Law Commerce Clause Consumer Financial Products Consumer Lenders Dormant Commerce Clause FTC Interstate Commerce Jurisdiction Loan Agreements Native American Issues Permanent Injunctions Preliminary Injunctions Public Policy Sovereign Immunity Usury

A Happy Dance For Plaintiffs Who Moot A Motion To Dismiss By Moving To Amend Their Complaint

Maybe you've been in this situation before. You've moved to dismiss a complaint, have fully briefed your motion, and the defendant dances in on the day of the hearing on your motion and amends his complaint. And the...more

8/25/2015 - Amended Complaints Mootness Motion to Dismiss Rules of Civil Procedure

Business Court Awards Rule 11 Sanctions For Baseless Fiduciary Duty Claim

It is probably a good idea for a corporation to avoid making fiduciary duty claims against its employees (unless they are also officers and directors). Clients (or their lawyers) who insist on making such claims are liable...more

8/20/2015 - Attorney's Fees Business Court Division Fiduciary Duty Rule 11 Sanctions

Minority Shareholder Owed No Fiduciary Duty To Other Shareholders In Merger Transaction

Judge Gale's decision earlier this month in Corwin v. British American Tobacco PLC, 2015 NCBC 74 dismissed all of the claims of the Plaintiff class. If the name Corwin is ringing a bell with you, his case is the shareholder...more

8/19/2015 - Board of Directors Class Action Delaware General Corporation Law Dismissals Fiduciary Duty Merger Agreements Mergers Minority Shareholders RJ Reynolds Shareholder Litigation Shareholders Tobacco

Did It Need To Be In Writing?

Surratt v. Brown, 2015 NCBC 72, decided last week by the Business Court, involved an oral partnership to open and operate tattoo parlors throughout North Carolina. Plaintiff and Defendant entered into an partnership...more

8/6/2015 - Contract Formation Conversion Partnerships Statute of Limitations Written Agreements

Be Very Careful If You Are Instructing Your Clients Not To Answer Questions At A Deposition

In an (unpublished) Order last week in Griggs v. Bittersweet Farms, LLC, Judge McGuire ruled that Plaintiffs' counsel's instruction to his client not to answer certain deposition questions was improper. He granted a Motion...more

8/4/2015 - Attorney's Fees Business Court Defense Strategies Depositions Federal Rules of Civil Procedure Motion to Compel Protective Orders

The Meaning Of "Successors," "Members," And "Designees" In A Release

The words "successors," "members," and "designees," as used in a Release were at issue in Judge Bledsoe's Opinion last week in TaiDoc Technology Corp. v. OK Biotec Co., 2015 NCBC 71. Plaintiff TaiDoc had settled a...more

7/21/2015 - Contract Interpretation Limited Liability Companies Members Release Agreements Releases Successors Summary Judgment

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