Mack Sperling

Mack Sperling

Brooks Pierce

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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 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

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