WASHINGTON, D.C. — (Mealey’s) A California appellate panel erred when it refused to enforce an arbitration clause contained in a cable provider’s customer agreement, a divided U.S. Supreme Court ruled this morning, finding that the appellate panel’s interpretation was preempted by the Federal Arbitration Act (FAA) ( DIRECTV, Inc. v. Amy Imburgia, et al. , No. 14-462, U.S. Sup.). “We recognize...

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 enumerated in the types of case that warrant designation to the Business Court, contained in G.S. §75A-45.4 . But yesterday's decision in Davis v. Davis , 2015 NCBC 95 required exactly that...

Last month, North Carolina Business Court. Judge Gale issued three rulings in class action cases. Two of the rulings were in consolidated class actions that had been settled. Those were in In re Pike S'holders Litig. , 2015 NCBC 89 [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ] and 90. The third decision was in a case just at its commencement: Raul v. Burke , 2015 NCBC...

To state a cause of action for fraud in Virginia, a plaintiff must plead that there was (1) a false representation of (2) a material fact, (3) made intentionally and knowingly, (4) with intent to mislead, and that the plaintiff (5) reasonably relied on that false representation and (6) that his reliance resulted in damages. What lawyers and judges often overlook is that to survive demurrer, a plaintiff must also show...

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 its allegedly misappropriated trade secrets with sufficient particularity. And the Court has frequently dismissed trade secrets claims altogether because they weren't pled with the necessary degree...

WASHINGTON, D.C. — (Mealey’s) A California appellate panel erred when it refused to enforce an arbitration clause contained in a cable provider’s customer agreement, the attorney for the cable provider argued Oct. 6 before the U.S. Supreme Court ( DIRECTV, Inc. v. Amy Imburgia, et al. , No. 14-462, U.S. Sup.). “The agreement provides for individual arbitration and expressly precludes class arbitration...

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 governing class actions ( FRCP 23 ) and the North Carolina equivalent ( NCRCP 23 ). The length and precision of the federal rule is overwhelming when measured against the short and simple state rule. The...

It seems like forever ago that the then venerable North Carolina institution, Wachovia Bank, failed and was acquired by Wells Fargo. (This was actually seven years ago). But just last week came what might be the final closure in the battle by the lawyers representing the class which challenged that acquisition to be paid their "well-deserved fees." If you don't detect the sarcasm in that last sentence, you...

Judge McGuire'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 American Indians [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ]. If that doesn't impel you to read on, I don't know what would. The chances...

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 defendant doesn't even bother to make a motion to amend his complaint! What effect does that have on your well-drafted, sure to be granted, motion to dismiss? Judge Bledsoe addressed...

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 to be assessed with the attorneys' fees of the persons they sue, at least based on the circumstances in Judge Gale's Order last week in Southeast Air Charter, Inc. v. Stroud , 2015 NCBC 79 ...

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 [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ]. If the name Corwin is ringing a bell with you, his case is the shareholder class action over the now completed transaction among Reynolds American, Inc. (RAI), Lorillard, Inc., British...

Derivative actions are a mainstay of modern business litigation . They allow a shareholder of a corporation to enforce a right the corporation has but is wrongfully refusing to enforce. Normally, corporate management would be responsible for deciding whether to pursue litigation against someone, but sometimes it's the management itself--such as an officer or director--that is causing the problem. In such situations...

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 [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ]. Plaintiff and Defendant entered into an partnership (without any written agreement) to open a tattoo parlor in Winston-Salem. Defendant Brown was to finance the business...

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 Biotech Co ., 2015 NCBC 71 [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ]. Plaintiff TaiDoc had settled a related lawsuit previously pending in the Western District of North Carolina in...

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. And maybe, the next day, as work began on the "more formal agreement to be prepared later," you and your opposing counsel putting the more detailed pen to paper sank into disagreement on the...

by Devin J. Chwastyk When people think about data breaches, corporate giants like Target, Home Depot and Michael’s spring to mind. But even small businesses holding personal information can face costly consequences if a breach occurs. In the past, cases only proceeded in the courts if plaintiffs could show actual harm (such as money stolen by identity thieves) – the mere exposure of personal information...

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 [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ]. The Settlement Of The Class Action The ruling was entered in conjunction with the approval of a settlement of four...

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 the Plaintiff was just a hop, skip, and a jump away from obtaining a default judgment against the Defendants against whom there had been an Entry of Default, but last week Judge McGuire...

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 2014? I don't think one has been granted. But earlier this week, Judge Gale did exactly that, in an Order this week in Cornerstone Health Care, P.A. v. Moore , 2015 NCBC 62 . Plaintiff Cornerstone...

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. It says: (c) Security . The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any...

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 secrets, was barred from pursuing discovery because it had not identified its trade secrets with "sufficient particularity [ an enhanced version of this opinion is available to lexis.com...

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 front and center in the North Carolina Business Court's decision Wednesday in Hilco Transport, Inc. v. Atkins , 2015 NCBC 44 [ an enhanced version of this opinion is available to lexis.com subscribers...

I’ve seen this many times before: entrepreneurs enter into handshake agreements with others, trying to save on legal fees. Often, the counterparties are contractors, employees, investors, or co-founders. These entrepreneurs are not entirely wrong to do so. Oral agreements are still enforceable for the most part. Here is a short summary of when handshake agreements can be enforced in a court of law, when agreements...

To prove a cause of action under section 2C:41-2(c) of the New Jersey Racketeer Influenced and Corrupt Organizations Act (“New Jersey RICO”), N.J.S.A. § 2C:41-2(c), the plaintiff must demonstrate (1) the existence of an enterprise, (2) that the enterprise engaged in or its activities affected trade or commerce, (3) that defendant was employed by, or associated with the enterprise, (4) that he participated...