Mack Sperling

Mack Sperling

Brooks Pierce

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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 Manufacturers 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

Business Court Refuses To Unwind Mediated Settlement Agreement

The Defendants in last week's decision in DeCristoforo v. Givens, 2015 NCBC 53 were hellbent on getting out from under a settlement they had agreed to at mediation. They offered a host of challenges to the validity of their...more

6/4/2015 - Appeals Limited Liability Companies LLC Mediation Operating Agreements Release Agreements Settlement Signatures

Two Cases: Mixed Success In Getting Fees Awarded In The NC Business Court

There's nothing better than winning a case or a motion in Court and to then follow that up with an award of attorneys' fees. On that subject, two rulings in the Business Court last week addressed the award of attorneys'...more

6/1/2015 - Attorney's Fees Corporate Records Fees Inspection Rights Trade Secrets Voluntary Dismissals

NC Business Court: Motions To Amend And The Statute Of Limitations

Maybe you have the same nightmare that I do. You have moved to amend your Complaint to add a new defendant. The statute of limitations is about to run, but your motion to amend was made before the end of the limitations...more

5/28/2015 - Amended Complaints Motion to Amend Relation Back Doctrine Rules of Civil Procedure Statute of Limitations

NC Business Court Gives Full Faith And Credit To LegalZoom's California Class Action Settlement

There are probably some of you who lie awake at night wondering whether Leagalzoom's offering of do it yourself lawyering products will be found to be the unauthorized practice of law (UPL) in North Carolina....more

5/19/2015 - Full Faith and Credit LegalZoom Putative Class Actions Unauthorized Practice of Law

Two Claims You May Not Want To Make In North Carolina

I said yesterday that there was too much in DSM Dyneema, LLC v. Thagard, 2015 NCBC 47 for just one post, so here are the rest of the key points from the case. They involve two claims you might not want to bother to make in...more

5/18/2015 - Fiduciary Duty Former Employee Inevitable Disclosure Doctrine Trade Secrets

Trade Secret Plaintiff Avoids Dismissal, Gets Discovery

One of the most interesting Business Court decisions of last year was Judge Bledsoe's opinion in DSM Dyneema, LLC v. Thagard, 2014 NCBC 50, in which he held that the Plaintiff, which was suing for misappropriation of trade...more

5/15/2015 - Discovery Honeywell International Judgment on the Pleadings Misappropriation Trade Secrets

Interpreting The Right To Specific Performance In A Shareholder Buy-Sell Agreement

I've never thought very hard about the remedy of specific performance. That means ordering a party to a contract to perform its contractual obligations. But the ability of the Court to order specific performance was...more

5/8/2015 - Buy-Sell Agreements Closely Held Businesses Shareholders Specific Performance Stocks

Can You Sue Only One Conspirator After Dismissing Its Co-Conspirators?

Can you sue an alleged conspirator without suing the other parties to the alleged conspiracy? That was one of the questions addressed by Judge Gale in the decision last week in Loftin v. QA Investments LLC, 2015 NCBC 41....more

5/6/2015 - Conspiracies Fiduciary Duty Motion to Dismiss Unfair or Deceptive Trade Practices

An Interesting Trade Secrets Case From The Business Court

If you were unsure whether customer information held by your client -- like customer contact information, sales reports, prices and terms books, sales memos, sales training manuals, commission reports, and vendor information...more

5/1/2015 - Business Court Division Confidential Information Conversion Customer Lists Employer Liability Issues Former Employee Non-Disclosure Agreement Tortious Interference Trade Secrets

NC Business Court: What Part Of Disqualification Do You Not Understand?

You will all recall the Business Court's disqualification of a law firm from representing its longtime client, in Kingsdown Inc. v. Hinshaw, 2015 NCBC 27. Now there is a second chapter to the disqualification, which came in...more

4/27/2015 - Disqualification Law Firm Partners

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