Business Court Judges Explain Section 75-1.1

by Ellis & Winters LLP
Contact

In my research for this blog, I recently found a June 2006 presentation on section 75-1.1 by Judges Al Diaz and John Jolly.  This presentation occurred when Judge Diaz and Judge Jolly were serving together on the North Carolina Business Court—that is, before Judge Diaz joined the U.S. Court of Appeals for the Fourth Circuit in December 2010.  The audience for the presentation was the Conference of North Carolina Superior Court Judges.

(The original presentation was in a slide format that didn’t translate well to PDF, so for readability, we’ve converted it into a lighter-colored format.)

The presentation gives an overview of the law under section 75-1.1 (as of 2006).  Although Judge Jolly and Judge Diaz have both written several opinions on section 75-1.1, this presentation is more interesting than any one opinion would be, on a couple of levels:

  •  First, it covers a wider range of topics under section 75-1.1 than any opinion could ever cover.

  •  Second, the presentation is material that dozens of other North Carolina judges—judges who might not encounter section 75-1.1 quite as often—have on their bookshelves.

One of the most interesting parts of the presentation is the section at the end called “practical pointers.”  This passage, in particular, caught my eye:  “Be on lookout for UDTPA claims thrown in to gain leverage for what is really a breach of contract case.  A not-uncommon practice.  Potential sanctions.  See Meineke.

Here and elsewhere, the judges cited Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331 (4th Cir. 1998).  In Meineke, a class of Meineke franchisees parlayed a dispute over Meineke’s compliance with franchise agreements into a 590-million-dollar judgment.  The Fourth Circuit reversed the judgment with this ringing language:

[T]he district court should not have allowed [a section 75-1.1] claim to piggyback on plaintiffs’ breach of contract action. . . . The courts differentiate between contract and deceptive trade practice claims, and relegate claims regarding the existence of an agreement, the terms contained in an agreement, and the interpretation of an agreement to the arena of contract law.  Given the contractual center of this dispute, plaintiffs’ UTPA claims are out of place.

By citing Meineke here, Judge Diaz and Judge Jolly showed the Business Court’s ongoing concern for policing the distinction between single-damages claims for breach of contract and treble-damages claims under section 75-1.1.  The court has enforced this distinction in a number of recent opinions as well.  We will discuss this distinction further in future posts.

In sum, even though Judge Diaz is no longer on the Business Court, this presentation still offers a rare, less filtered, look at what expert North Carolina judges think about section 75-1.1.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ellis & Winters LLP | Attorney Advertising

Written by:

Ellis & Winters LLP
Contact
more
less

Ellis & Winters LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.