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Mack Sperling

Mack Sperling

Brooks Pierce


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Claims For Legal Malpractice Aren't Assignable In North Carolina

Maybe you've wondered whether a claim for legal malpractice can be assigned. Maybe you haven't. But yesterday, the North Carolina Court of Appeals answered that question. In Revolutionary Concepts, Inc. v. Clements Walker...more

5/9/2013

Fourth Circuit Takes A Narrow View On Recovery Of E-Discovery Costs

You've undoubtedly prevailed in a federal case -- either at summary judgment or after a trial -- and you have probably struggled with what you are entitled to recover as costs under 28 U.S.C. ยง1920. And recently, your client,...more

5/2/2013 - Discovery Electronically Stored Information Legal Costs

Arbitration Compelled Based On Unsigned Arbitration Agreement

If you were thinking that an arbitration agreement needs to be signed in order to get an order compelling arbitration, your world may have been turned on its ear by the Order from the Business Court last week in Morton v....more

4/29/2013 - Arbitration Arbitration Agreements Revised Uniform Arbitration Act

When Law Firms Dissolve: Dividing Up The Proceeds From Contingent Fee Cases

The Court of Appeals in February 2011 ordered Judge Jolly to dissolve Mitchell, Brewer, Richardson, Adams, Burge & Boughman, a law firm organized as a member-managed professional limited liability company. The dissolution was...more

3/11/2013 - Attorney's Fees Contingency Fees Corporate Dissolution LLC

Subpoenas To Non-Parties: A Few Ground Rules

If you are in NC state court and want to take the deposition of an out-of-state non-party, the Order last week in Out of the Box Developers, LLC v. Logicbit Corp. carries a few lessons. Serving A Subpoena. You can't...more

3/6/2013 - Depositions Non-Parties Personal Jurisdiction Subpoenas

Developments In NC State Trademark Law

When I last wrote about SCI North Carolina Funeral Services, LLC v. McEwen Ellington Funeral Services, Inc., Judge Murphy had entered a TRO against the Defendants for trademark infringement over their use of the McEwen name...more

2/28/2013 - Infringement Likelihood of Confusion Trademarks

North Carolina Securities Act Claims Take Shape In The Business Court

There is little case law under the North Carolina Securities Act. But last week, in NNN Durham Office Portfolio 1, LLC v. Highwoods Realty Limited Partnership, 2013 NCBC 12, Judge Gale took several steps into that uncharted...more

2/26/2013 - Commercial Leases Justifiable Reliance Material Misstatements Misrepresentation Pleadings Scienter Securities Securities Act Tenancy-in-Common Tenants

O Lord Don't Buy The Nanny A Mercedes-Benz

The Order Wednesday of last week in Patriot Performance Materials, Inc. v. Powell, 2013 NCBC 10 was appropriately timed for the day before Valentine's Day. Powell, the Defendant, had a 50% interest in several businesses...more

2/18/2013 - Corporate Gifts Third-Party Unjust Enrichment

Business Court Excludes Testimony Of Financial Expert On Lost Profit Damages

The case of Blythe v. Bell is like the gift that keeps on giving. It generated two significant opinions last year, and this week a third and a fourth. The July 2012 opinion was a major e-discovery decision, and the December...more

2/14/2013 - Blythe v Bell Damages Expert Testimony Lost Profits

NCCOA: The Constitution Reins In The Uniform Enforcement Of Foreign Judgments Act

If you've been practicing law for more than a few years, you've undoubtedly been asked to "domesticate" in North Carolina's courts a judgment entered in another state....more

1/21/2013 - Full Faith and Credit Uniform Enforcement of Foreign Judgments Act

Funeral Homes In Charlotte Battle Over Trademark Infringement

You don't see a trademark infringement action in the Business Court every day, let alone a TRO decision, but a case with both came along last Friday in SCI Carolina Funeral Services, LLC v. McEwen Ellington Funeral Services,...more

1/15/2013 - Advertising Infringement Inherently Distinctive Trade Names Trademarks TRO

The Middle District Of North Carolina Okays Cellphones (With Cameras!)

If you are a lawyer practicing in the Middle District of North Carolina, you will be excited about Standing Order #2, issued by the Judges of the Court on January 8th....more

1/11/2013 - Cell Phones

Be Ready To Prove Your Damages If You Want To Get To Trial

The lesson in the Business Court's first opinion of the year, Allen Smith Investment Properties, LLC v. Barbarry Properties, LLC, 2013 NCBC 1 is to be ready to present your calculation of damages at the summary judgment stage...more

1/8/2013 - Damages Dismissals Summary Judgment

Hotels.com And Other Online Travel Vendors Don't Have To Pay Occupancy Taxes To North Carolina Counties

It's hard to like the result in Wake County v. Hotels.com, LP, 2012 NCBC 61. The case is a consolidation of cases brought by several North Carolina counties (Mecklenburg, Wake, Dare, and Buncombe) against Hotels.com and other...more

1/7/2013 - Conversion Dismissals Local Ordinance Occupancy Tax Online Travel Vendors Pleadings

An Important Opinion On Assigning LLC Interests From The NC Business Court

Today's post is really a thank you to Judge Gale for delivering the Christmas gift I requested in last week's post: a decision from the North Carolina Business Court on an open question of North Carolina's corporate law to...more

12/11/2012 - LLC Transfer of Interest

Parol Evidence Rule Barred Defendants' Interpretation Of Earn-Out Provision

Premier, Inc. v. Peterson, 2012 NCBC 59, decided last Friday by Judge Murphy, turned on a strict application of the parol evidence rule. At issue was whether the defendants were entitled to a substantial earn-out payment...more

12/10/2012 - Parol Evidence Stock Purchase Agreement

Delaware Law On Derivative Actions And Fiduciary Duties

If you are a derivative action plaintiff, and you make a demand on an LLC to take action which is then considered and rejected, may you still pursue your claims? Judge Murphy answered that question, and others relating to...more

12/6/2012 - Derivative Suit Fiduciary Duty

Does A Trial Judge Have The Discretion To Deny Costs To A Prevailing Party?

If you've ever made a Motion for Costs following a win at summary judgment or a win at trial you know that the law on such motions is a quagmire. Does the trial court have discretion in determining whether to award costs to a...more

12/4/2012

North Carolina Business Court Defers To Delaware Courts In Class Action Challenging Sealy Merger

Maybe one day North Carolina will be the center of the business litigation universe, but for now the center of that universe remains in Delaware. The Order last week in Justewicz v. Sealy Corp., 2012 NCBC 57 -- in...more

12/3/2012 - Class Action Order to Stay

The Fourth Circuit Says Don't Do This

In a case decided last week, McKenzie v. Hall, the Fourth Circuit sent a clear message that it does not tolerate Motions to Strike. The Appellants had filed such a Motion to strike portions of an adversary's brief which they...more

11/28/2012 - Motion To Strike

Hurricane Sandy Reaches The North Carolina Business Court

North Carolina has had more than its fair share of hurricanes over the years, but Hurricane Sandy, which hit New Jersey and New York City, even reached the North Carolina Business Court....more

11/13/2012

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