Mack Sperling

Mack Sperling

Brooks Pierce

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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

If You Reach A Settlement At Mediation, And Say The Settlement Will Be The Subject Of A Forthcoming Formal Agreement, Do You Have...

You have most likely walked out of a mediated settlement conference at which the shorthand version of the settlement put to paper by the lawyers and the mediator stated that there would be a later, more detailed agreement. ...more

7/13/2015 - Business Disputes Contract Drafting Mediation Negotiations Settlement Agreements Settlement Negotiations

When You Wish Upon A (Lode)Star: NC Business Court Cuts Fees Requested By Attorneys For Class Plaintiffs

The Business Court last week knocked down a fee request of Plaintiffs' class action counsel to $500,000, from the $660,000 requested, in an Order in Nakatsukasa v. Furiex Pharmaceuticals, Inc., 2015 NCBC 68. The...more

7/9/2015 - Attorney's Fees Business Court Division Class Action Pharmaceutical Industry Shareholder Litigation

Don't Overplay Your Hand In The Business Court

When you last heard about London Leasing LLC v. Arcus, the Business Court had entered a default in March 2015 against two of the Defendants for what I called their "defiant and obnoxious conduct." It then seemed like...more

7/6/2015 - Business Court Division Business Disputes Default Judgment Motion to Amend

There's A Difference Between "Confidential And Proprietary Information" And A Trade Secret

I can't remember the last time that the Business Court granted a motion opposing the designation of a case as a mandatory complex business case. And since the Business Court Modernization Act went into effect in October...more

6/24/2015 - Breach of Contract Business Court Confidential Information Confidentiality Agreements Misappropriation Non-Compete Agreements Physicians Proprietary Information Restrictive Covenants Trade Secrets

Something That You Might Not Have Known About Injunctions

I had always thought that you need to post a bond in order to obtain an injunction, both in federal and state court. It turns out that I was wrong. The federal rule seems to require a bond. ...more

6/18/2015 - Business Court Injunction Bonds Injunctions Injunctive Relief Judicial Discretion Security

Business Court: High To Low Posting of ATM Debit Card Transactions Properly Disclosed By Bank

The meaning of the word "item" was the definitive factor in the Business Court's decision last week in Gay v. People's Bank, 2015 NCBC 59. The case was an attempted class action involving claims against the Bank for...more

6/15/2015 - Banking Sector Banks Business Court Division Checking Accounts Claim Preclusion Class Action Overdraft Fees Terms and Conditions

NC Business Court Says That Bank Didn't Owe A Fiduciary Duty To Its Customer, But Recognizes New Cause Of Action: Breach Of A Duty...

Were you thinking that the Business Court might, one day, find that a bank owed a fiduciary duty to its customer? That seemed like it might happen eventually, as the NC Supreme Court seemed to hold out that possibility last...more

6/11/2015 - Banking Sector Breach of Duty Contract Negotiations Fiduciary Duty Good Faith Lenders NC Supreme Court Negotiations Real Estate Development

When A Motion To Strike Can Be Proper

After a defendant succeeded on a Motion for a More Definite Statement, a plaintiff added more detail to the claims that had been dismissed. The defendant responded to the beefed up allegations with a Motion to Strike....more

6/9/2015 - Federal Rule 12(b)(6) Motion To Strike Pleadings

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