Mack Sperling

Mack Sperling

Brooks Pierce

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Why North Carolina Is Probably The Best State In Which To File A Voluntary Dismissal Of Your Case

You have a case set for trial in a state trial court. You are tenth on the trial calendar, but the nine cases in front of you have crumbled and settled over the weekend. Plus, your most important witness is gone from your...more

5/9/2016 - Voluntary Dismissals

NC Business Court Refuses To Enjoin Similar British Lawsuit

It's possible to get an NC state court to enjoin a party from pursuing parallel litigation in another American state. But what about enjoining a party before an NC court from pursuing a parallel case in another country?...more

4/8/2016 - Attorney's Fees Business Court Comity Declaratory Relief Foreign Jurisdictions Forum Injunctive Relief International Litigation Parallel Claims Promissory Notes UK

It Can Happen To Anyone: Mistakes In Appeals

The road to an appellate court can be lined with unanticipated obstacles, You can avoid them if you follow the NC Rules of Appellate Procedure and you keep up with changes in the law regarding appeals. Or you might retain a...more

3/21/2016 - Amended Legislation Appeals Business Court Dismissals Jurisdiction NC Supreme Court Notice of Appeal Pro Se Litigants Rules of Appellate Procedure

Is It Better To Be A LLC Member In The Minority Than A Minority Corporate Shareholder?

It is pretty common to think that limited liability company members have similar rights as shareholders in a corporation. But they don't, (although in some respects the rights afforded to LLC members may be better). The...more

3/16/2016 - Breach of Duty Business Court Fiduciary Duty Limited Liability Companies Minority Shareholders Operating Agreements Shareholders

Do You Think You can Recover The $1100 Fee For Designating A Case To Business Court As A "Cost"? Maybe You Can't.

Recovering the $1,000+ fee for designating a case to the Business Court seems like the unattainable Holy Grail for successful parties in the Court. That's so even though the NC General Assembly amended the statute listing...more

3/10/2016 - Business Court Cost Recovery Dismissals Fees Prevailing Party Rules of Civil Procedure

You Can Designate A Case To The NC Business Court Based On A Counterclaim, But It Can Be Tricky

The Business Court issued a significant Order last week, in Composite Fabrics of America, LLC v. Edge Structural Composites, Inc., 2016 NCBC 11 that Judge Gale said was an "opportunity to clarify. . .how the Court interprets...more

3/4/2016 - Business Court Complex Litigation Counterclaims Jurisdiction Proposed Regulation

Don't Count On The Sheriff To File Your Notice Of Appeal

Filing a Notice of Appeal seems like a pretty easy thing to do. You walk it over (or mail it) to the Clerk of Superior Court in the County in which the case was filed, and the Clerk puts a "filed" stamp on it indicating the...more

3/4/2016 - Appeals Business Court Division E-Filing Filing Requirements Motion to Dismiss Notice of Appeal

"Giving" And "Getting": The NC Business Court On Disclosure Only Class Action Settlements

Disclosure only settlements are in deep trouble in Delaware based on the Court of Chancery's recent decision in In re Trulia Inc. Stockholder Litigation. That decision is said to have sounded a "death knell" in Delaware for...more

3/4/2016 - Attorney's Fees Business Court Class Action Disclosure-Based Settlements Mergers Shareholder Litigation Supplemental Disclosures Trulia

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

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