Mack Sperling

Mack Sperling

Brooks Pierce

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NC Business Court Sends Some Important Messages About Fees To Lawyers For Class Action Plaintiffs

If you've been reading this blog for any length of time, you know that I am very sour on substantial attorneys' fees being awarded to the lawyers for class action plaintiffs who obtain nothing more for the class than...more

11/30/2016 - Attorney's Fees Business Court Division Class Action Disclosure-Based Settlements Mergers

Who Knew That A Motion To Transfer Venue Could Be So Complicated?

North Carolina cases that are filed in an "improper county" can be transferred to the "proper county" if the "defendant, before the time of answering expires, demands in writing that the trial be conducted in the proper...more

11/17/2016 - Corporate Dissolution Motion to Dismiss Motion to Transfer Principal Place of Business Rules of Civil Procedure Venue

Protecting In-House Counsel From Having To Be Deposed

There a probably few things in legal practice as annoying as getting a Notice of Deposition for your client's in-house counsel. Are you willing to pursue a Motion for a Protective Order to prevent the deposition? ...more

11/9/2016 - Attorney-Client Privilege Business Court Division Corporate Counsel Depositions Protective Orders

Member Of A Delaware LLC? Don't Bring Claims To Inspect Books And Records, Or For Dissolution, In North Carolina's Courts

The Plaintiff in Camacho v. McCallum, 2016 NCBC 79 has to head to Delaware to litigate her claims for inspection of the records of the LLC of which she is a member, and also to seek dissolution of the LLC. Why, even...more

11/4/2016 - Books & Records Delaware General Corporation Law Exclusive Jurisdiction Inspection Rights Limited Liability Company (LLC) Subject Matter Jurisdiction

Can You Compel An Insurance Carrier Representative To Attend A Mediation In Person?

You've undoubtedly been in a mediation where the lawyer on the other side has asked for a break so she can call her client's insurance carrier in order to get a response to your latest settlement offer. You wait -- reliant...more

10/26/2016 - Insurance Industry Mediation Settlement Conferences

Does A Petition For Discretionary Review Divest A Trial Court Of Jurisdiction?

The place where a a trial court's jurisdiction over a case on appeal meets the competing jurisdiction of the appellate court over that same case is is a busy intersection. It is often hard to tell when the trial court no...more

10/18/2016 - Appeals Business Court Division Jurisdiction Petition for Review

Protecting Your Client's President From Having To Be Deposed: NC Business Court

You have probably been in this situation. Your client is a successful corporate entity, maybe publicly held. You are defending the entity in a lawsuit and you receive a Notice of Deposition for the CEO of your client. The...more

9/23/2016 - Apex Doctrine Business Court CEOs Depositions Protective Orders

It Takes More Than Just $5 Million To Get A Case Into The NC Business Court

This week, I published a post on this blog in which I suggested that a case involving $5 million in controversy could be designated to the Business Court without the Court having to analyze the nature of the claims before it...more

9/1/2016 - Business Court Division Jurisdiction

The Business Court Opens Its Door Wide To "Intellectual Property" Disputes

The Business Court doesn't often discuss its interpretation of the statutory bases for a designation to the Court, all of which are contained in G.S. sec. 7A-45.4. So its published Order this month in Southeastern...more

8/30/2016 - Amended Regulation Business Court Division Business Disputes Intellectual Property Litigation Jurisdiction

The NC Businesss Court On Non-Solicitation And Non-Inducement Provisions

There is more discussion of non-solicitation clauses and non-inducement clauses in Judge McGuire's opinion last week in Sandhills Home Care,, LLC v. Companion Home Care-Unimed, Inc., 2016 NCBC 59, than I think that I've ever...more

8/10/2016 - Blue Pencil Contract Modification Business Court Employment Contract Legitimate Business Interest NLRA Non-Compete Agreements Non-Solicitation Agreements Protected Concerted Activity

A Few Things To Avoid When Drafting A North Carolina Covenant Not To Compete

The Business Court closely examined a set of restrictive covenants last week in Sandhills Home Care,, LLC v. Companion Home Care-Unimed, Inc., 2016 NCBC 59. This decision collects a number of North Carolina Court of Appeals...more

8/8/2016 - Contract Drafting Contract Terms Former Employee Health Care Providers Non-Compete Agreements Restrictive Covenants

"Winding Up" A Law Firm Partnership Doesn't Necessarily Mean Liquidation

You can "wind up" a partnership without having to liquidate all of its assets and terminating its existence. So ruled Judge McGuire last week in Hardin v. Lewis, 2016 NCBC 55. But that may not be true for all partnerships. ...more

7/28/2016 - Business Court Dissolution Law Firm Ownership Law Firm Partners Law Practice Management Liquidation Partnership Agreements Receivership Winding Up Petitions

Your "Limited Appearance" in the Business Court May Not Be As Limited As You Think

The attorney for the Plaintiff in Foster Biodevice, LLC v. Cantrell. 2016 NCBC 51 said that he was only making a limited appearance, but the Business Court (through new Business Court Judge Robinson, in his first Opinion for...more

7/25/2016 - Business Court Court Appearances Declaratory Relief Governor Pat McCrory Judges Judicial Appointments Motion to Withdraw Rules of Professional Conduct Voluntary Dismissals

NC Court Of Appeals, Not Sure That It Had Jurisdiction, Dismisses Appeal From Business Court Decision

How does your appeal get dismissed when you've appealed to the "right", "appropriate", or "correct" court? In other words, your appeal was to the Court with jurisdiction over your appeal. It happened in the NC Court of...more

7/11/2016 - Appeals Business Court Business Litigation Complex Litigation Dismissals Jurisdiction NC Supreme Court

NC Attorney General Reaches $9 Milllion Settlement With "American Indian Business" Western Sky Over Usurious Loans

You will remember the North Carolina Attorney General's lawsuit against Western Sky Fin'l, LLC. It generated an opinion from the Business Court last year in which Judge McGuire enjoined the Defendants from making further high...more

6/22/2016 - Attorney Generals Consumer Financial Contracts Final Judgment Interest Rates Loans Permanent Injunctions Tribal Corporations Usury

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 Company (LLC) 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

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