This past Friday, the Mecklenburg County Bar held its 7th Annual North Carolina Business Court CLE.   If you regularly practice in the Business Court, this is a “must attend.”  There were a number of helpful, relevant, and informative presentations, but the highlight of the CLE was the day’s last session, when attendees heard directly from the Business Court Bench itself, with Chief Judge Bledsoe, Judge McGuire, and Judge Conrad sharing insights and practice pointers.  The session began with Chief Judge Bledsoe providing a compilation of statistics about the Business Court and its cases.  For those of you not in attendance, but nevertheless interested, here’s what I jotted down:

Disclaimer–Any errors in these stats are likely my transcription errors.

Number of Cases Filed in the NCBC by Year:

2013 — 134

2014 — 119

2015 — 141

2016 — 148

2017 — 203 (136 when Charlotte School of Law cases are removed)

2018 — 173 (145 when Charlotte School of Law cases are removed)

2019 (so far) — 91 (on pace for 112 for the year)

 

2019 NCBC filings by County:

Mecklenburg – 24

Wake – 16

Guilford – 8

No other county has had more than four NCBC cases filed in 2019

 

NCGS sec. 7A-45.4(a) Basis for Notice of Designation in 2019 NCBC Filings:

Law of Corporations (7A-45.4(a)(1)) — 55

Trade Secrets (7A-45.4(a)(8)) —19

Securities (7A-45.4(a)(2)) — 11

Breach of Contract where amount in controversy is greater than $1,000,000 (7A-45.4(a)(9)) — 10

Intellectual Property (7A-45.4(a)(5)) — 8

Trademarks (7A-45.4(a)(4)) — 6

Antitrust (7A-45.4(a)(3)) — 3

*These add up to 102, presumably meaning that some of the 91 cases filed thus far in 2019 had numerous statutory bases for designation to the NCBC.

 

Opinions Published by the NCBC by Year:

2013 — 73

2015 — 112

2016 —106

2017 —113

2018 —137

2019 (so far) — 70 (on pace for 85)

*It was noted that while the number of opinions published this year appears to be in decline from prior years, those opinions that have been published in 2019 have been extremely comprehensive, with many of these opinions over 100 pages in length and a substantial number between 50-100 pages in length.

 

Historic Results of Appellate Review of NCBC Cases (from 1/1/14 to Present):

Affirmed — 55

Modified/Affirmed —1

Dismissed — 8

Affirmed/Reversed — 6

Reversed — 2

 

Stay tuned later in the week when I will post a recap of the “practice pointers” and “personal preferences” that Judges Bledsoe, McGuire, and Conrad shared with the group…

–Patrick Kane

The Business Court sorted through the drama of an affiliated outsider who wanted to buy a company, settled for half and became an insider, and then allegedly used that perch to benefit himself and his family in W. Avalon Potts v. KEL, LLC, et al, 2019 NCBC 29, 2019 WL 2058599 (N.C. Super. Ct. May 9, 2019). See Order and Opinion. The story has a common backdrop: a nearly 30-year old company (founded by two partners) that wrestles with ownership changes and their impact on the entity’s fortunes. The twist: an original owner goes to the mat to reclaim control and alleges claims that allow the Court to revisit several legal principles that animate disputes over frayed business relationships.

Takeaways:

  • The Business Court, like the North Carolina Supreme Court, declines to hold that a minority shareholder exercising “actual control” could have a fiduciary duty to other shareholders.
  • The Court confirms that the business judgment rule, designed to curb “judicial second guessing,” does not apply “when the officer or director has an interest in the disputed transaction.”
  • Adopting a Third Circuit holding, the Court finds that when “independent third parties are alleged to have joined,” a conspiracy can exist in face of claims that an agent and principal cannot conspire as a matter of law.

Steel Tube, Inc. is a manufacturer of carbon steel and galvanized steel tubing. Plaintiff Potts and Walter Lazenby founded it, divided the stock evenly, and, over time, used the services of Leon Rives, an accountant. Rives offered to buy the company in 2014. Potts resisted the transaction, but Rives bought Lazenby’s shares – in which Lazenby retained a security interest. ¶¶ 5, 6.

With no notice to Potts, Lazenby and Rives promptly executed a management agreement under which Rives and one of his entities would manage Steel Tube. ¶ 7. That shaky start was predictive of what would follow: a series of disputes over Rives’ role in the company that included numerous allegations of self-dealing to benefit Rives and his family. Potts filed a lawsuit seeking dissolution, but recast it a year later in an amended complaint that alleged fiduciary duty breaches, fraud and other individual and derivative counts. Potts changed course after acquiring Lazenby’s security interest in the stock on which Rives ultimately defaulted, and he regained control of Steel Tube. ¶¶ 13-14.

Fiduciary Duty

At summary judgment, the Court considered the fiduciary duty claims within the lens of its general rule that shareholders “do not owe a fiduciary duty to one another.” Id. at ¶ 24. It rejected one exception to that rule – that majority shareholders have a duty to protect minority interests – because Rives and Potts had equal ownership shares. Id. Judge Conrad took a cautious course with regard to a second purported exception: that a minority shareholder exercising “actual control” could have a fiduciary duty to other shareholders. That doctrine had been adopted by the Court of Appeals at the time of the summary judgment hearing, but by the time of the Potts decision the Supreme Court had reversed and found it unnecessary to decide the ultimate issue because the particular plaintiffs had not sufficiently alleged “actual control.” Corwin v. British Am. Tobacco PLC, 251 N.C. App. 45, 51, 796 S.E.2d 324, 330 (2016), rev’d 371 N.C. 605, 821 S.E.2d 729 (2018); see also Blog Post Smoke ’em if You Got ’em (June 2, 2019). So, too, Judge Conrad found it unnecessary to decide what the Supreme Court would not, as the record reflected insufficient evidence of Rives’ “actual control.” The Court added:

Potts points to evidence that Rives was able to misappropriate Steel Tube’s resources without his knowledge, but that is not evidence of control. Rather, if true, it shows the opposite, confirming the Rives was forced to circumvent the board to accomplish his goals.

2019 NCBC 29, at ¶ 26.

Derivative Claims

The Court allowed a variety of derivative claims regarding Rives’ duties to Steel Tube to survive to trial. These included allegations of (i) improper payments to Lazenby, (ii) monthly and lump sum cash withdrawals by Rives, (iii) transferring $120,000 to a company Rives helped form in which his wife was a member, and (iv) entering a services deal with defendant KEL, owned by Rives’ brothers. ¶¶ 8-10. The Court rejected the contention that payments to Rives were contracts fixing compensation for officers allowed under Fulton v. Talbert, 255 N.C. 183, 184, 120 S.E.2d 410, 411 (1961). It found factual disputes about the payments, and that the payments could be challenged under the Court’s recent holding that “`[c]onflict-of-interest transactions between a corporation and its officers or directors have long been subject to special rules,’ including that the transaction must be fair to the corporation.” (citing Ehmann v. Medflow, Inc., 2017 NCBC 86, 2017 WL 4321107 (N.C. Super Ct. Sept. 26, 2017).

Business Judgment Rule

Rives seemed to contend that his transfer of $120,000 to Elite Tube, the company he helped found, was shielded by the business judgment rule. The Court rejected applying the rule, which limits “judicial second guessing,” by noting that those “protections do not apply when the officer or director has an interest in the disputed transaction.” The Court noted sufficient allegations of self-dealing and efforts to conceal the transaction to preclude use of the rule. 2019 NCBC 29, at ¶ 37.

Civil Conspiracy

Rives also contended a civil conspiracy claim that relied on the relationship between himself and one of his companies, Rives & Associates, was barred under the doctrine of intracorporate immunity, because an agent and principal cannot conspire as a matter of law. Id. at ¶ 42. But, showing that family ties take as they give, the Court ruled that inclusion of KEL (owned by Rives’ brothers) preserved a conspiracy claim where “independent third parties are alleged to have joined the conspiracy.” Id. (citing Robison v. Canterbury Vill., Inc., 848 F.2d 424, 431 (3d Cir. 1988)).

Brad Risinger is a partner in the Raleigh office of Fox Rothschild LLP. He maintains a commercial litigation practice that frequently involves business disputes before the North Carolina Business Court, and the state’s federal and state trial courts.

N.C. Business Court Addresses the Scope of a Judicial Appraisal Proceeding

In Reynolds American Inc. v. Third Motion Equities Master Fund Ltd. et al., 2019 NCBC 35 (N.C. Super. Ct. June 4, 2019), the Business Court considered the scope of a judicial appraisal proceeding under G.S. § 55-13-30. The defendants, who owned stock in the plaintiff company, dissented from a merger involving the plaintiff and sought to have their interest bought out at fair value. Navigating an issue of first impression, Chief Judge Bledsoe held that whether the defendants had perfected their appraisal rights was a question beyond the scope of the proceeding and, accordingly, would not be considered at trial.

Take-Aways:

  • A judicial appraisal proceeding is limited in scope under G.S. § 55-13-30.
  • The question whether dissenting shareholders have perfected their appraisal rights is outside the scope of the proceeding, and will not be addressed by the Court, at least not where the issue is first raised after summary judgment.    
  • A corporation seeking to contest perfection should specifically request in their complaint a declaratory judgment that certain dissenting shareholders have not properly perfected their appraisal rights.

It all started when British American Tobacco p.l.c. (“BAT”) sought to increase its (already 42% indirect) ownership interest in Reynolds American, Inc. (“RAI”) by acquiring the balance of RAI’s outstanding common stock. Compl. ¶ 26.

Following extensive negotiations, the RAI shareholders voted overwhelmingly in favor of the acquisition, whereby the RAI shareholders would receive, in exchange for their RAI shares, “Merger Consideration” consisting of a mix of BAT shares and cash. Compl. ¶¶ 31, 36.

Not all RAI shareholders were on board with the acquisition, though. Instead of carrying forth their investment in RAI through an equity interest in BAT, a number of “dissenting” shareholders decided it was time to cash out.

The dissenting RAI shareholders thus exercised their appraisal rights pursuant to G.S. § 55-13-21, initiating a detailed process aimed to compensate the dissenters for the “fair value” of their shares.

The question then became, of course: What is the fair value of the RAI shares?

RAI estimated the fair value of the shares at $59.64, and sought to pay each dissenting shareholder accordingly. Reynolds American Inc., 2019 NCBC 35 ¶¶ 5-6. The dissenting shareholders (not surprisingly) disagreed with RAI’s valuation, and instead offered their own valuations ranging from $81.21 to $94.33 per share. Id. ¶ 7.

This disagreement prompted RAI to institute a proceeding under G.S. § 55-13-30, essentially asking the Court to resolve the parties’ dispute over the fair value of the dissenters’ RAI shares. Id. ¶ 8.

Once in the Business Court, the parties staked out their competing positions as to what they deemed “fair value” of the RAI stock. The difference in their valuations stemmed largely from disagreement over the “controlling date” for the valuation: Was it the date that the merger was announced that should be used to value the shares (as RAI argued), or was it the closing date of the merger that should control (as the dissenters argued)? Id. ¶ 8; CMO, ECF No. 33, p. 3-6.

As the case approached trial, RAI shifted focus to a different issue. RAI argued (in its pre-trial submissions) that certain dissenting shareholders had never perfected their appraisal rights, and therefore were not proper parties to the proceeding. These dissenters should be dismissed from the case, according to RAI, unless they could prove at trial that they had, in fact, perfected their appraisal rights (i.e., the burden was on the dissenters to make this showing). Id. ¶ 11.

The dissenters disagreed. They countered that “through filings or conduct in this litigation, [RAI] had admitted or waived its right to contest [the dissenters’] entitlement to appraisal.” Id. ¶ 14. Basically, RAI had conceded perfection when it instituted the appraisal proceeding, the scope of which was limited to determining the fair value of the dissenters’ shares. (The dissenters also disagreed that it was their burden to prove perfection.)

Addressing the issue on its own motion, and noting the late stage at which the “perfection” issue had been raised (after summary judgment and just prior to trial), the Court did not analyze the issue as one of “waiver.” Instead, the Court simply asked: Is the issue of perfection within the scope of a judicial appraisal proceeding? Put differently, was the dissenters’ perfection of (or failure to perfect) their appraisal rights a “relevant” issue for trial? Id. ¶ 16.

The answer, the Court concluded, was “no.”

The Court reasoned that perfection was not relevant to a judicial appraisal proceeding brought under G.S. § 55-13-30 because, first, the plain language of the statute did not allow the Court to consider it. Id. ¶¶ 26–28 (“There is no language in this subsection allowing or requiring a review of a dissenting shareholder’s entitlement to appraisal. The lack of such a provision is consistent throughout the statute.”).

But “[m]ost importantly,” according to the Court, the statute contemplates only two possible outcomes – and both involve the dissenting shareholders recovering a judgment. Id. ¶ 29.  The dissenters are “entitled” to a judgment, and the question is simply the “form” of the judgment, which “depends upon whether the dissenter is (i) a shareholder that has already received a payment consistent with the corporation’s estimate fair value or (ii) a shareholder ‘for which the corporation elected to withhold payment under G.S 55-13-27.’” Id. (quoting G.S. § 55-13-30(e)). In short, there is “no third option” under the statute “whereby the corporation may obtain a judgment declaring certain shareholders are not entitled to appraisal after failing to perfect their appraisal rights.” Id.

The Court rejected RAI’s argument that perfection was a requirement “inherent” to (and therefore within the scope of) a judicial appraisal proceeding. The Court reasoned that although G.S. § 55-13-21(c) provides that a shareholder who votes in favor of a proposed corporate action “is not entitled to payment under this Article,” “only sections 55-13-30 and 55-13-31 deal directly with the subject matter of a judicial appraisal action, the trial court’s jurisdiction over that action, the required parties for such an action, and the relief the trail court may provide.” Id. ¶ 32. The more specific provision (section 55-13-30) and its clear instruction regarding the dissenters’ entitlement to a judgment in an appraisal proceeding therefore controlled. Id.

The Court also considered RAI’s (rather compelling) argument that:

“without a requirement that dissenting shareholders prove their entitlement to appraisal rights…, section 55-13-30 puts corporations in an impossible position of choosing to either comply with the procedures laid out by [the NC statutes] and bring a claim for judicial appraisal under section 55-13-30, thereby forfeiting the right to challenge a shareholders’ entitlement to appraisal, or to take a gamble by asserting that a shareholder is not entitled to appraisal, thereby risking any negative consequences that might follow should the corporation be incorrect, all without the benefit of discovery.” Id. ¶ 39.

The Court did not completely disagree with this line of reasoning, but observed that it was the function of the General Assembly, not the Court, “to make decisions based on such policy concerns.” Id. ¶ 40.   Likewise, the Court declined to adopt the two-step process utilized by the Delaware Chancery Court – whereby the court first determined perfection, and proceeded second to determine fair value only if perfection was met. Id. ¶ 40. While noting that there was “much to commend about the clarity and simplicity offered by Delaware’s statute,” the Court reiterated that it could not “ignore the lack of any such statutory provision in North Carolina’s Business Corporation Act, nor [could] it create one on its own.” Id.

Finally, the Court further rested its decision on the fact that RAI never requested a judicial determination as to the dissenter’s appraisal rights. RAI had simply filed a “Complaint for Judicial Appraisal” seeking a determination as to the fair value of the dissenters’ shares, and “did not seek a judicial determination or declaration that [the dissenters] failed to perfect their appraisal rights and did not forecast [the dissenters’] perfection of rights as an issue for judicial determination in the parties’ Case Management Order.” Id. ¶ 45. Nor had RAI amended its complaint, after the issue of perfection was raised, to include a request for declaratory judgment as to the dissenters’ appraisal rights. Id. ¶ 46. Thus, even assuming that the statute allowed the Court to address the issue of perfection, “RAI’s failure to bring a claim for declaratory judgment, request other relief, or even plead facts showing the existence of a controversy as to [the dissenters’] perfection of appraisal rights would still place a determination regarding the [dissenters’] right to participate in this proceeding beyond the scope of the present case.” Id. ¶ 47 (citing N.C. R. Civ. P. 57 and N.C. R. Civ. P. 8(a)(1)).

In sum, based on the statute, the pleadings, and the late stage at which “perfection” had been raised, the issue of whether the dissenters had perfected their appraisal rights was outside the limited scope of the judicial appraisal proceeding. As such, any evidence relating to perfection was “irrelevant” and inadmissible at trial.

_________________________________

Matt Krueger-Andes is a litigation associate in Fox Rothschild’s Charlotte office.  He regularly represents clients in the Business Court and advises on Business Court and other business litigation-related matters.  He is also a former law clerk to the Honorable Louis A. Bledsoe, III, Chief Judge of the North Carolina Business Court. 

 

Sometimes when seeking a trail of breadcrumbs to help unwind a twisty problem, one finds the whole loaf, instead. So it was for the N.C. Business Court in granting a preliminary injunction on a claim for misappropriation of trade secrets in Biesse America, Inc. v. Dominici, 2019 NCBC 50 (N.C. Super. Ct. Aug. 19, 2019). See Order and Opinion.

Takeaways:

  • Trade Secret Misappropriation cannot be remedied by return of confidential information. N.C. Gen. Stat. § 66-155 is violated when a defendant acquires information it knew (or should know) is a trade secret.
  • A geographically unbounded covenant not to compete is not dead on arrival, but showing its rational tie to the employer’s business and the employee’s job is a “tall order.” 2019 NCBC 50 at ¶43.

Shortly before leaving a job with Plaintiff, Defendant Dominici “began making unusual requests for documents” containing confidential information, including sensitive purchase order forms, price lists and negotiated discounts. Id. at ¶10. In entering a temporary restraining order, the Court ordered the return of that information; Dominici complied, and also produced thousands of other electronic files to his former employer. Id. at ¶15.

Contained in that bevy of confidential information was a conveniently labeled “Opportunities” spreadsheet created by Dominici that recorded dozens of Plaintiff’s perceived business opportunities in the Pacific Northwest, an area Dominici did not supervise for Biesse but where he was expected to work for his new employer, Defendant SCM Group North America, Inc. Id. at ¶17. While the Court concluded such information was unneeded for Dominici’s work with Plaintiff, “it “had self-evident value for his next job.” Id. at ¶28. A tart footnote sealed the analysis:

As best the Court can tell, Dominici’s position is that he never intended to contact these customers but instead identified them so that he would know which customers not to contact during his employment with SCM America. Nothing in the record lends credence to this alleged motive[.] (emphasis in original).

Id. at n.1. Placing special emphasis on the purloined “opportunity” information, as well as another self-created “Masterfile” spreadsheet that contained Plaintiff’s stock inventory and sales price information, the Court found “substantial evidence” that Dominici acquired and used Plaintiff’s trade secrets in violation of N.C. Gen. Stat. § 66-155, and entered a preliminary injunction. Id. at ¶¶16, 32.

Dominici and his new employer argued that any harm to Plaintiff had been “cured” by the return of Plaintiff’s information in conjunction with the TRO, but the Court demurred, stating that “[t]his is simply not the law.” Noting the long-term effects associated with misappropriations, the Court affirmed the necessity of a preliminary injunction given Dominici’s acquisition of the information with intent to compete. Id. at ¶34.

Judge Conrad’s resolute findings on misappropriation did not color the Court’s plain rejection of a non-compete clause in Dominici’s employment agreement with Plaintiff. The Court found the clause had no geographic restrictions, essentially making it a worldwide covenant. The opinion noted that neither the Plaintiff, nor the Court of its own inquiry, had identified “any case in which a North Carolina court has granted a preliminary injunction to enforce a worldwide covenant not to compete.” Id. at ¶¶42-43. The Court found that the non-compete clause’s short duration of six months did not sufficiently balance its “boundless territorial scope.” Id. at ¶45.

The Court did not reach the issue of whether the non-solicitation clause was unenforceable. While the case’s early record was replete with references to Dominici’s acquisition of Plaintiff’s information with the intent to compete against it, the Court denied a preliminary injunction because “there is no evidence that Dominici has solicited [Plaintiff’s] customers.” Id. at ¶38.

Brad Risinger is a partner in the Raleigh office of Fox Rothschild LLP. He maintains a commercial litigation practice that frequently involves business disputes before the North Carolina Business Court, and the state’s federal and state trial courts.

N.C. Business Court Refuses to Allow Member-Managers to Assert Contract Claims Belonging to their LLC.


In its second opinion in Bennett v. Bennett, 2019 NCBC 45 (N.C. Super. Ct. Aug. 6, 2019), the Business Court denied Plaintiff Bert Bennett’s motion to dismiss a breach of contract claim by an LLC, but granted his motion to dismiss the same claim by three of its member-managers for lack of standing – even though the individuals were parties to the contract at issue. See Order and Opinion.

A Takeaway:

  • A member of an LLC who is a party to an Operating Agreement lacks standing to sue for its breach when the legal injury asserted belongs solely to the LLC.

This case involves a dispute between sibling members of Bennett Linville Farm, LLC (“Bennett Farm”), a real estate company created to facilitate estate planning of the parties’ parents. Plaintiff Bert Bennett (along with Terry Bennett, who is no longer a party) alleged that Defendants Graham, Ann, and Jim Bennett gained control of the company to the exclusion of the other sibling members, and nearly all actions they took were unauthorized. A prior post describes the nature of Plaintiffs’ claims. See Don’t Fence Me In (Aug. 12, 2019).

Through counterclaims, Defendants Graham, Ann, and Jim Bennett allege the following: they are the managers of Bennett Farm; a majority of the managers may order capital contributions from the company’s members pursuant to its Operating Agreement; the managers authorized seven capital calls over a two-year period; Plaintiff Bert’s total share of the contribution was about $380,000; and Bert failed to pay it. These individual member-managers (and the LLC under their direction) seek an order directing Bert’s capital payment to Bennett Farm.

The Court questioned whether it had subject matter jurisdiction over the member-managers’ claim. The general rule is that members of an LLC cannot pursue individual causes of action against third parties for wrongs or injuries to the company. Op. ⁋ 4 (citing Energy Investors Fund, L.P. v. Metric Constructors, Inc., 351 N.C. 331, 335 (2000)).

Defendants Graham, Ann, and Jim argued they have standing to enforce the Operating Agreement because they are parties to it.

In response, the Court looked to the terms of the Operating Agreement alleged to be in force. It makes clear that members who fail to make required capital contributions are to be liable “to the Company.” Op. ⁋ 5.

While the Court noted that some operating agreements may be crafted to support actionable individual claims like these, Op. n.3, this Operating Agreement did not do so. It dismissed the member-managers’ individual claims.  The company’s breach of contract claim survived dismissal.

The Business Court tentatively waded back into its well-settled case law that tends to scold litigants who try to convert internal company disputes into unfair trade practice claims in Constr. Managers, Inc. v. Amory, 2019 NCBC 31, 2019 WL 2167311 (N.C. Super. Ct. May 17, 2019). In doing so, the Court denied much of the defendant’s motion to dismiss the Amended Complaint. See Order and Opinion.

Takeaways:

  • The Business Court still thinks that a Chapter 75 claim is not the right vehicle for addressing shareholder disputes, disagreements among company members and other issues of internal management or strife.
  • The Court is likely to continue its vigilance policing Chapter 75 counts so that cases are not unnecessarily burdened by illusory claims that threaten great damages.
  • Only limited factual allegations that allege events beyond the confines of a single market participant may be needed to meet the “in or affecting commerce” standard.

The defendant provided accounting and bookkeeping functions for an integrated set of plaintiffs that were in the business of building, leasing, and managing clinics for the U.S. Department of Veterans Affairs. Id. at ¶¶ 2-3, 13. Before leaving to join a construction consulting firm, the Amended Complaint alleges Amory downloaded a raft of confidential and trade secret information and emailed some to one of plaintiffs’ former employees. Id. at ¶¶ 15, 17-18.

Plaintiffs’ claim under N.C. Gen. Stat. § 75-1.1 led the court to confront an issue it has addressed repeatedly in the last several years: is the conduct alleged “in or affecting commerce,” as required by the statute, or is it an “intra-company feud about internal operations” for which there is other, more appropriate legal recourse. Brewster v. Powell Bail Bonding, Inc., 2018 NCBC 74, 2018 WL 3603023, at *6 (N.C. Super. Ct. July 26, 2018) (Judge Conrad). See Order and Opinion. Construction Managers, Brewster and a host of other Business Court opinions have examined the issue within the North Carolina Supreme Court’s guidance in White v. Thompson, 691 S.E.2d 676, 679-680 (N.C. 2010) that § 75-1.1 regulates “a business’s regular interactions with other market participants” and not the “internal conduct of individuals within a single market participant.”

Plaintiffs complained that Amory was using their trade secrets to compete against them, but failed to describe how he was competing, and failed to assert that Amory had disclosed trade secrets to his new employer. Construction Managers, at ¶ 80. Moreover, plaintiffs essentially conceded that their fears about improper competition were prospective. Amory, plaintiffs claimed, “could begin to unfairly compete” with them, and was “preparing to cause” them significant damages by using the illegally obtained information. Id. at ¶ 81. The Court even found that plaintiffs’ general allegations of competition didn’t allege specific facts that were sufficient, under White, to remove it from fact patterns “contained solely within a single business.” Id. at ¶ 82.

Yet, the Court “reluctantly conclude[d]” that as a matter of notice pleading, the Chapter 75 claim survived a motion to dismiss because it was “barely sufficient to provide Amory with sufficient notice of the nature of the claim to withstand Amory’s motion to dismiss.” Id. at ¶ 83. Thus, the Court held that it was sufficient under Chapter 75 for the plaintiffs to claim – generally – that Amory was unfairly competing against them, without alleging facts regarding any of “the events or transactions which produced the claim to enable the adverse party to understand the nature of it and the basis for it[.]” Spoor v. Barth, 811 S.E.2d 609, 612 (N.C. Ct. App. 2018).

Construction Managers is a tenuous fit in the Business Court’s “in or affecting commerce” jurisprudence. The Court has regularly dismissed Chapter 75 claims that purport to center on shareholder disputes, disagreements among company members and other issues of internal management or strife. Conflating these events into unfair trade practice claims is, the Court has held, “a regrettable trend in North Carolina business litigation.” Brewster, 2018 WL 3603023 at *6. Indeed, the Court has gone out of its way to intentionally put a fine a point on the point:

By now, the message should be clear: section 75-1.1 plays no role in resolving these internal corporate disputes. Yet time and time again, section 75-1.1 appears where it does not belong, with consequences that are significant and unhealthy. The routine addition of section 75-1.1 claims in these cases invites avoidable motion practice – driving up the cost of litigation, taxing the resources of the Court, and exposing the plaintiff to a potential award of attorney fees under section 75-16.1. It also impedes settlement discussions by introducing remedies (including treble damages) that would otherwise be unavailable, thereby distorting the parties’ incentives and their perceived risks.

Id. at *7. Construction Managers cites the letter of the Court’s Chapter 75 doctrine on the types of claims it feels are within the statute, but slightly disclaims its spirit. Here, the barest pleading nudge by the plaintiffs – unsupported by facts regarding defendant Amory’s purported competition against them – was enough to survive characterization as an “internal business matter” that would doom an unfair trade practice claim. It’s by no means a Chapter 75 doctrinal sea change for the Court, but it foretells a decision or two down the line that address attempts to salvage wounded claims with the “notice pleading” life raft extended in Construction Managers.

Brad Risinger is a partner in the Raleigh office of Fox Rothschild LLP. He maintains a commercial litigation practice that frequently involves business disputes before the North Carolina Business Court, and the state’s federal and state trial courts.

N.C. Business Court Dismisses Two Contract Claims on Summary Judgment for Lack of Mutuality


In separate cases, the North Carolina Business Court answers the question: When exactly is a contract formed?  The Court reminds business leaders that parties do not form an enforceable agreement until their minds meet on all the material terms.

In Denver Property Partners, LLC v. Sisson, 2019 NCBC 22 (N.C. Super. Ct. Apr. 1, 2019), Judge Robinson granted the Defendants’ motion for partial summary judgment on the Plaintiffs’ breach of contract claim.  See Order and Opinion.

In Hocutt v. Hocutt, 2019 NCBC 24 (N.C. Super. Ct. Apr. 4, 2019), Judge McGuire denied a Defendant’s motion to enforce a settlement agreement allegedly formed prior to the action’s filing.  See Order and Opinion.

Denver Property Partners, LLC v. Sisson

In Denver Property Partners, the Plaintiffs claimed the Defendants breached an agreement to purchase an indoor shooting range and firearms retail store. The Defendants argued the parties never formed an accord. The Court agreed.

The facts in the light most favorable to the Plaintiffs showed the following:  The Plaintiffs and Defendant Mr. Sisson entered into an agreement whereby Mr. Sisson would manage the range and store and would undertake due diligence to determine whether to purchase them.  Thereafter, the  parties began negotiations for the purchase:

  • Mr. Sisson emailed the Plaintiffs’ agent, attaching a signed purchase agreement that he called a “draft.”  He invited the Plaintiffs to sign it.
  • The Plaintiffs’ agent responded, telling Mr. Sisson to add the effective date of the agreement and to add two related parties as sellers.
  • Mr. Sisson replied, telling the Plaintiffs’ agent to modify the purchase agreement as needed.

The parties engaged in no further negotiations.

Two months later, Mr. Sisson informed the Plaintiffs he wanted out. He would neither purchase the businesses, nor manage them. Litigation ensued.

In granting Mr. Sisson’s motion for partial summary judgment, Judge Robinson cited Normile v. Miller, 313 N.C. 98, 103 (1985), for the general rule that new terms added by acceptance operate as a counteroffer and a rejection of the original offer.  He determined that the first Sisson email was an offer.  The agent’s response was a counteroffer (and a rejection).  Sisson’s reply was an invitation to the Plaintiffs to make an additional offer.

Neither party ever accepted the other’s terms. There was no contract.

Hocutt v. Hocutt

In Hocutt v. Hocutt, Judge McGuire denied a Defendant’s motion to enforce a settlement agreement allegedly formed prior to the action’s filing. He treated the motion as one for summary judgment.

This case arose from “a long-simmering dispute” over control of three closely-held corporations among Plaintiff Joey Hocutt; his father, Defendant Mike Hocutt; and his brother, Defendant Jay Hocutt.  In an attempt to resolve their conflict, the family engaged counsel, who met without their clients to discuss a framework for settlement. Counsel circulated unsigned draft agreements to their respective clients to work toward resolution. Defendants Mike and Jay accepted the terms of a final draft, but Joey did not. Joey offered additional terms, which the Defendants rejected. Joey filed this action.

Defendant Mike filed a motion to enforce the settlement agreement. He argued that an agreement existed because Joey’s attorney circulated it, and each Defendant signed it. Yet, he provided no evidence that the final draft was a formal offer. To the contrary, Defendant Mike admitted that Joey refused to sign the final draft and that Joey’s attorney communicated Joey’s rejection of it.

Judge McGuire denied the motion to enforce.  He cited Chappell v. Roth, 353 N.C. 690, 692 (2001), for the rule that a valid contract requires a meeting of the minds as to all material terms.  “If any portion of the proposed terms is not settled, or no mode agreed on by which they may be settled, there is no agreement.” Chappell, 353 N.C. at 692.

Going even further, the Court cautioned the motion was “close to frivolous, and that undisputed facts arguably would entitle Plaintiff to judgment as a matter of law” rather than Defendant Mike.

In a series of recent opinions in Justice v. Mission Hospital, Inc., the Business Court dismissed claims that MedPay benefits were improperly routed to a treating hospital, dismissed the appeal of the dismissal, and dismissed the appeal of the dismissal of the appeal. First, the Court dismissed a purported class action on behalf of the Plaintiffs who complained that the medical payments coverage (“MedPay”) under their automobile insurance policy was improperly directed to the hospital where they were treated, rather than to them. See 2019 NCBC 21 (N.C. Super. Ct. Mar. 27, 2019). Second ,after the Plaintiffs directed their Notice of Appeal to the Court of Appeals instead of the North Carolina Supreme Court (as required by statute), the Court reluctantly reaffirmed its 2018 ruling in a similarly postured case that a trial court does not have authority to address such a jurisdictional defect. The Plaintiffs’ misdirected appeal was dismissed, with their only recourse to seek discretionary review from the Supreme Court. See 2019 NCBC 36 (N.C. Super. Ct. Jun. 5, 2019).  Third, Plaintiffs timely appealed the Court’s dismissal of its first appeal, and the Business Court dismissed it, too, finding that the Court of Appeals was not vested with jurisdiction in such circumstance.  See 19 NCBC 52 (N.C. Super. Ct. Aug. 21, 2019).

Takeaways:

  • The Business Court holds that MedPay benefits may appropriately be considered “health insurance” and can be assigned to a treating entity.
  • The Business Court reaffirmed that clients and counsel need to be vigilant about directing appeals to the North Carolina Supreme Court in cases filed after October 1, 2014.

Plaintiffs were involved in an automobile accident, and were brought to defendant Mission Hospital for treatment. 19 NCBC 21 at ¶7. As part of a Consent to Treatment/Financial Agreement executed contemporaneously with treatment, the Plaintiffs assigned all “liability and health insurance benefits” to the provider. Id. at ¶10. The carrier paid out three checks to the provider constituting the limits of the subject MedPay. Id. at ¶14. The Plaintiffs objected that these payments were made without them being consulted. Even if their obligations to the provider exceeded the MedPay, Plaintiffs felt the money was theirs to control and pay out, if they chose, at their discretion. Id. at ¶30.

The Court ruled that the MedPay benefits were “unambiguously” assigned under the agreement executed by the Plaintiffs. Id. at ¶35. The Court was unable to conclude that MedPay could be considered “liability insurance” under the Agreement, but it had no trouble deciding that it was “clearly and unambiguously” considered “health insurance.” Id. at ¶41. As the Court noted, “MedPay coverage is first-party coverage where one seeks to provide coverage for injury irrespective of fault and liability.” Id.

Plaintiffs also contended they could not assign their MedPay payments because of an anti-assignment clause in their policy with the insurance carrier. The Court noted this was an issue of first impression in North Carolina as it related to MedPay. Id. at ¶49. The Court dismissed the challenge because such clauses are interpreted to benefit the carrier, and do not prevent assignments after a loss has occurred. Id.

The Court did not tread new ground in dismissing Plaintiffs’ misdirected appeal. Indeed, it took “no pleasure in doing so.” 19 NCBC 36 at ¶19. But, N.C. Gen. Stat. § 7A-27(a)(2) requires appeals from final judgments in cases designated as a mandatory complex business case to be directed to the North Carolina Supreme Court, not the Court of Appeals. Judge Gale did the analytical work on the issue the previous year in Zloop, Inc. v. Parker Poe Adams & Bernstein. See 2018 NCBC 39 (N.C. Super. Ct. Apr. 30, 2018). Citing his opinion in Zloop, Inc., Judge Gale put it frankly: “The Court here again concludes it must dismiss the appeal, even though the jurisdictional defect was clearly inadvertent and the record would allow for no finding that Defendant was surprised as to the matter being appealed from or otherwise suffered prejudice.” 19 NCBC 36 at ¶2.

This issue has attracted attention and discussion in the state’s appellate Bar. Our colleagues at the North Carolina Appellate Practice Blog have discussed the application of Rule 3 of the North Carolina Rules of Appellate Procedure, if it should be amended, and whether the Notice of Appeal rule interpreted and applied in these cases is truly jurisdictional. See Zloops! Another Rule 3 Dismissal (June 6, 2019); When Is a Deadline or Other Requirement for Filing a Notice of Appeal Jurisdictional? (State Edition) (May 3, 2018).

Plaintiffs’ second appeal challenged whether the Court had the authority “to dismiss a second appeal that seeks appellate review of its earlier order dismissing a first appeal.” 19 NCBC 52 at ¶4. In an exchange worthy of a fancy flow chart:

  • Plaintiffs argued that App. Rule 25 only applies to instances of untimely appeal filings; and
  • The Business Court held that Court of Appeals cases deciding issues of untimely filings under App. Rule 25 compelled a finding that no appellate jurisdiction vests from a notice of appeal of an order dismissing an appeal.

Id. at ¶¶5-8. As in last year’s Zloop decision, the Court found that “where a record on appeal has not been filed, the trial court has power to dismiss a timely notice of appeal that is jurisdictionally defective.” Id. at ¶10.

Brad Risinger is a partner in the Raleigh office of Fox Rothschild LLP. He maintains a commercial litigation practice that frequently involves business disputes before the North Carolina Business Court, and the state’s federal and state trial courts.

N.C. Business Court Dismisses All Counterclaims in a Dispute Stemming from a Failed Romance.


In Rabinowitz v. Suvillaga, 2019 NCBC 7 (N.C. Super. Jan. 28, 2019), Judge Robinson granted the Plaintiff’s motion to dismiss the Defendant’s counterclaims in an action involving an alleged agreement “predicated on the Defendant’s expectation” that the couple “would live together and remain in a relationship indefinitely.” Op. ⁋ 2. While the Court refused to dismiss the responsive pleading in its entirety, it did dismiss all of the counterclaims asserted therein, providing the Plaintiff with a significant win.  This unlikely Business Court case provides a trove of valuable nuggets for court watchers. See Order and Opinion.

Takeaways: 

  • A party may seek Business Court designation based on an opposing party’s amended pleading even when the amendment is filed in violation of a court order and even though the designating party seeks to strike it.
  • Neither Rule 12(b)(1), nor Rule 12(f), nor Rule 15(a) permits the Court to strike or dismiss an untimely amended pleading.
  • Rule 41(b) permits a court to dismiss counterclaims in a pleading for failure to comply with the Rules of Civil Procedure or a court order. This authority derives from the inherent power of the Court to manage its proceedings.
  • A trial court has discretion pursuant to Rule 41(b) to dismiss counterclaims with prejudice, but this action is imposed only when the Court determines less drastic sanctions are insufficient.
  • Contracts between parties in a romantic relationship can be enforced so long as illicit services do not provide consideration for that contract.
  • An indispensable element of the formation of a partnership is co-ownership of a business venture.
  • The Business Court requires negligent misrepresentation to be pled with particularity pursuant to Rule 9(b).
  • Equitable estoppel is a proper defense, but not a proper claim.

Allegations

Mr. Rabinowitz (Plaintiff) and Ms. Suvillaga (Defendant) carried on a romantic relationship for about ten years. They began a dating in Spring Valley, New York in 2006.  When Ms. Suvillaga got a job about two hours away, Mr. Rabinowitz purchased an apartment for Ms. Suvillaga to use.  Ms. Suvillaga paid for rent and utilities.

On weekends, Ms. Suvillaga would return to Spring Valley.  While there, she performed what she called “relationship duties”—cooking; cleaning; doing laundry; helping with Mr. Rabinowitz’s doctors’ appointments, medical problems, and hygienic needs; and engaging in a sexual relationship with Mr. Rabinowitz.

In 2015, Mr. Rabinowitz wanted to move to North Carolina. After the couple ventured to Wilmington to tour homes, Mr. Rabinowitz purchased one.  He allegedly told Ms. Suvillaga that after the move, she would not have to work again, she could live with him forever, and he would leave her money and the Wilmington property in his will. Ms. Suvillaga quit her job, and the couple moved south.  Ms. Suvillaga alleged that the parties “expressly formed a contract that obligated [them] to act as if they were married,” but, after the move, Mr. Rabinowitz ended the relationship abruptly.

Procedure

Mr. Rabinowitz filed the lawsuit in January 2017 for Ms. Suvillaga’s alleged failure to pay for her portion of the Wilmington house. He alleged breach of contract and various tort claims.

Ms. Suvillaga answered. Six months later, she moved to amend her response. In the amendment, she would reassert her answer and affirmative defenses and would add counterclaims including breach of contract, breach of a partnership agreement, negligent misrepresentation, and equitable estoppel. But, the motion was never calendared.

Later, Mr. Rabinowitz noticed his own motions for a hearing as well as Ms. Suvillaga’s motion to amend.  The Court granted Ms. Suvillaga’s motion to amend.  It ordered her to file the amended pleading within five days. She filed it over a month later.

Ten days after Ms. Suvillaga’s late filing, Mr. Rabinowitz filed a Notice of Designation to the Business Court based on the breach of partnership claim asserted in the untimely pleading. Once the Business Court had jurisdiction, Mr. Rabinowitz moved to dismiss the entire amended pleading pursuant to Rule 15(a) and all the counterclaims therein pursuant to Rule 12(b)(6).

Analysis

Rule 15(a)

Mr. Rabinowitz urged the Court to dismiss Ms. Suvillaga’s amendment because she violated Rule 15(a). Rule 15(a) requires that after a responsive pleading is served, a party may amend a pleading only with leave of court. Since Ms. Suvillaga filed her amendment outside the time allotted, Mr. Rabinowitz argued that she lacked the Court’s leave.

Ms. Suvillaga countered that Mr. Rabinowitz wholly relied on the amendment for its designation notice, thereby waiving his right to object it.

The Court found no merit in Ms. Suvillaga’s waiver argument. It held that Mr. Rabinowitz has “a statutory right to have [the] matter designated to the Business Court” without waiving “any right to dispute the validity of [the] counterclaims.” Op. ¶ 28 (citing N.C. Gen. Stat. 7A-45.4).

Then the Court considered Mr. Rabinowitz’s Rule 15(a) argument.  It determined the rule provides no authority to dismiss an untimely amendment. At Mr. Rabinowitz’s urging, the Court considered whether it could  dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), or whether it could strike the pleading as “redundant, irrelevant, immaterial, impertinent, or scandalous” under Rule 12(f).  The court determined that Rule 12(b)(1) did not apply and Rule 12(f) did not permit the Court to strike Ms. Suvillaga’s amended pleading.

But … , what about Rule 41(b)?

Rule 41(b)

Rule 41(b) permits a court to dismiss counterclaims in a pleading for failure to comply with the N.C. Rules of Civil Procedure or any court order. Since Ms. Suvillaga violated Rule 15(a) (and the prior order) by filing the amendment late, the counterclaims were subject to dismissal under Rule 41(b). Judge Robinson noted that Mr. Rabinowitz did not move to dismiss pursuant to Rule 41(b), but the Court still had the power to do so. See, e.g., Plasman ex rel. Bolier & Co. v. Decca Furniture (USA), Inc., 811 S.E.2d 616 (N.C. Ct. App. 2018) (affirming dismissal under Rule 41(b) for a Rule 8(a) violation when the plaintiffs were on notice that defendants were seeking dismissal). The Court used its authority under Rule 41(b) to dismiss Ms. Suvillaga’s untimely amendment.

But … , would the dismissal be with or without prejudice?

Judge Robinson had discretion to dismiss with prejudice under Rule 41(b), but he noted the Court should do so only when less drastic sanctions are insufficient. Here, despite the “flagrant” rule violation, Judge Robinson determined that dismissal with prejudice was not warranted because counsel had neither engaged in repeated rule violations, nor did anything further to aggravate the Rule 15(a) violation. Op. ¶ 39.

Having found dismissal without prejudice appropriate on procedural grounds, Judge Robinson then considered the merits of Ms. Suvillaga’s individual claims.

Substantive Allegations

Pursuant to Rule 12(b)(6), Judge Robinson dismissed seven of Ms. Suvillaga’s eight counterclaims with prejudice and one without prejudice.

Breach of Contract

Ms. Suvillaga alleged that the parties contracted to act as if they were married, and they exchanged various promises related to that agreement. Mr. Rabinowitz argued the alleged contract is not recognized by North Carolina law. Ms. Suvillaga countered that the contract is enforceable because it is not based solely upon illicit services.

The Court stated that contracts between two people in a romantic relationship can be enforced “so long as illicit services do not provide consideration for that contract.” The Court distinguished cases where the parties had contracts related to activities independent from their relationship. Here, though, the alleged contract went to the very essence of the parties’ personal relationship. Accordingly, North Carolina law will not enforce it. Judge Robinson dismissed the claim with prejudice.

Breach of Partnership

Ms. Suvillaga alleged that the parties “formed an equal partnership both assuming equally responsible roles which included maintaining the household.”

An indispensable element to the formation of a partnership is co-ownership of a business venture. The amendment contained no allegations that the parties “participated in any business venture, let alone operated as co-owners of that business.” Op. ¶ 58. Thus, the claim could not satisfy “the elements minimally necessary to assert a valid breach of partnership counterclaim.” Op. ¶ 59. Judge Robinson apparently did not think much of the claim.  He dismissed it with prejudice.

Misrepresentation

Ms. Suvillaga alleged that Mr. Rabinowitz misrepresented that he would take care of her and help her pay off her debt. She did not specify whether Mr. Rabinowitz’s misrepresentation was fraudulent or negligent.

The Court did not quibble about the oversight.  It held that Ms. Suvillaga failed to properly allege either claim with the required particularity.  Op. ⁋ 61.  Rule 9(b) requires a claimant to plead “averments of fraud, duress, and mistake” with particularity.  But, the rule is silent as to negligent misrepresentation.  The Court cited another Business Court case, Deluca v. River Bluff Holdings II, LLC, 2015 NCBC LEXIS 12, at *20 (N.C. Super. Ct. Jan. 28, 2015) (Judge Gale), for the rule that negligent misrepresentation must meet the same pleading standard as fraud.  Deluca, in turn, cited an earlier Business Court case, BDM Invs. v. Lenhil, Inc., 2012 NCBC LEXIS 7, at *56 (N.C. Super. Ct. Jan. 18, 2012) (Judge Gale), and a case from the Middle District, Breedon v. Richmond Cmty. Coll., 171 F.R.D. 189, 199 (M.D.N.C. 1997) (holding the particularity requirements of Rule 9(b) of the Federal Rules of Civil Procedure apply to negligent misrepresentation to “more accurately comport[] with the basis behind the rule and its original rationale”).

In order to plead fraudulent or negligent misrepresentation with particularity, “one must allege (1) the time, place and content of the misrepresentation, (2) the identity of the person making the representation and (3) what was obtained as a result of the fraudulent acts or representations.”  Op. ⁋ 61.  “Additionally, the representation must be definite and specific, more than ‘mere puffing, guesses, or assertions of opinions’ but actual representations of material facts.” Id. (quoting Rowan County Bd. of Educ. v. U.S. Gypsum Co., 332 N.C. 1, 17, 418 S.E.2d 648, 659 (1992)).  Ms. Suvillaga failed to meet these requirements.  Thus, the Court dismissed the misrepresentation claim without prejudice.

Equitable Estoppel

Ms. Suvillaga pled equitable estoppel as a claim. The doctrine cannot be used as a sword, but only as a shield.  The Court dismissed the claim, but allowed Ms. Suvillaga’s corresponding defense to stand.

Ms. Suvillaga never filed a second amended complaint. The parties settled the matter shortly before a bench trial was to begin.

Thanks to Ashley Oldfield, Fox Rothschild summer associate, for her work on this post.

N.C. Business Court Declines to Impose Fiduciary Duties among Sibling Managers of an LLC and Declines to Extend Any “Control Group” Exception to LLCs, but allows Dissolution Claim to Survive, which Creates a Possible Ruling on Meiselman’s application to LLCs.


In Bennett v. Bennett, 2019 NCBC 18 (N.C. Super. Ct. Mar. 15, 2019), Judge Conrad considered a dispute between two groups of six siblings who are current or former members of family-owned real estate company. The case pits Plaintiffs Bert and Terry Bennett against four of their siblings, Defendants Graham, Ann, Jim, and Louise Bennett, for their alleged improper actions concerning Bennett Linville Farm, LLC (“Bennett Farm”), which the parties formed with their parents to facilitate the latter’s estate planning. The Court granted the controlling group’s motions to dismiss certain breach of fiduciary duty claims and constructive fraud claims, but denied the group’s motions to dismiss a claim for judicial dissolution.  See Order and Opinion.

Takeaways:

  • Infringement of an LLC member’s voting rights (including the right to elect managers and the residual right to vote in the absence of proper managers) is a distinct harm and supports a direct claim against fellow members.
  • Dilution of an LLC member’s relative ownership interest is a distinct harm to the member which can confer standing.
  • Judge Conrad held that a group of minority LLC members alleged to exercise control of the company did not owe fiduciary duties to minority members, and he is reluctant to grant such rights when minority members fail to include them in the operating agreement.
  • Judge Conrad did not dismiss an LLC member’s assertion of Meiselman claims in the LLC context because it would be “prudent” (at this juncture) to address the issue after discovery.

Allegations

Plaintiffs allege that  Defendants Graham, Ann, and Jim gained control of the company to the exclusion of the other sibling members and nearly all actions they took were unauthorized.  Plaintiffs assert direct claims against Defendants Graham, Ann, and Jim, alleging they conspired to control the company; that they fraudulently amended the operating agreement to consolidate their control; and that they engaged in unauthorized activity. Defendants Graham, Ann, and Jim moved to dismiss, challenging Plaintiffs’ standing and the merits of their claims. Plaintiffs dismissed their monetary demands against Louise, but kept her in the case as a necessary party.

Operating Agreement

For years, the siblings owned an equal share of Bennett Farm. The Plaintiffs alleged that the limited liability company was designed to be member managed. The original Operating Agreement, however, required management by certain managers listed on its Schedule II, or by others elected by the membership. Plaintiffs allege the Operating Agreement included no Schedule II when executed, and no managers were ever elected. They further allege that Defendants Graham and Ann were later listed on a document labeled as Schedule II, but without membership approval.

Amended Operating Agreement

Plaintiffs allege that in 2010, Defendants Graham, Ann, and Jim amended the Operating Agreement without the knowledge of the other members, and made significant changes. The Amended Operating Agreement:

  • designated Jim as a third manager,
  • authorized the managers to make capital calls without member consent, and
  • permitted Bennett Farm to redeem any member’s interest upon the consent of members owning at least 75% of the company.

While Plaintiffs acknowledged that they executed the signature page for the Amended Operating Agreement, they allege they did so without seeing the document and as a result of brother Graham’s trickery.

Transition

In 2012, the Bennett parents’ ownership interest in Bennett Farms passed to their children, leaving the six siblings in sole ownership. Thereafter, a seventh Bennett sibling (John) granted Bennett Farm a right of first refusal to his 35-acre tract at the request of Defendants Graham, Ann, and Jim. When he requested termination of the right, conflict erupted.

The Conflict

Plaintiffs Bert and Terry (together with Nominal Defendant Louise) claimed they knew nothing of Bennett Farm’s purported acquisition of brother John’s property right, but they would have granted it. Defendants Graham, Ann, and Jim disagreed and, “claiming managerial authority, decided to exercise and enforce the right of first refusal even in the absence of majority approval of the members.” Op. ⁋ 10.

Plaintiffs allege that Defendants Graham, Ann, and Jim used the controversy to force sister Plaintiff Terry out.  Graham allegedly informed Terry that she would have to make a capital contribution of over $100,000, or she could sell her interest to the other siblings. Terry alleges she could afford a capital contribution only with access to a trust fund, for which Defendant Ann served as trustee. Ann allegedly refused to assure Terry that she could dip into the fund for the contribution. Thereafter, Terry sold her interest to the five sibling owners remaining.

Nominal Defendant Louise (allegedly weary from the conflict) sold her ownership interest to the remaining sibling owners in 2018, giving Defendants Graham, Ann, and Jim a combined 80% of the company, and leaving Plaintiff Bert with the remaining 20%.

Analysis

Fiduciary Duty

Plaintiffs Bert and Terry alleged that Defendants Graham, Ann, and Jim breached their fiduciary duties to them as fellow LLC members. Defendants argue Plaintiffs lack standing and the claim lacks merit.

Plaintiffs Alleged Sufficient Distinct Harm to Confer Standing.

The Court held that Plaintiffs Bert and Terry alleged distinct injuries so as to confer standing.

Barger v. McCoy Hillard & Parks, 36 N.C. 650, 658 (1997), provides the rules for shareholder standing for corporations. These rules apply “equally to LLCs.” Op. ⁋ 24. While normally, “shareholders cannot pursue individual causes of action against third parties for wrongs or injuries to the corporation that result in the diminution … of the value of their stock,” Barger’s exceptions allow direct claims when members are owed a special duty, or if the injury is separate and distinct from the harm to other shareholders or to the corporation. Op. ⁋ 24 (citing Barger, 36 N.C. at 659).

Plaintiffs alleged that Defendants deprived them of their voting rights, which include the right to elect managers and the residual right to vote in the absence of proper managers. The Court held that infringement of the voting right is a distinct harm and the subject of a direct claim.

Plaintiffs alleged additional harm to support standing. Plaintiff Terry properly alleged distinct harm caused by Defendant Graham’s alleged wrongful inducement that she sell her ownership interest. Plaintiff Bert properly alleged distinct harm caused by the alleged improper sale of Nominal Defendant Louise’s membership interest, which diluted Bert’s relative share. Op. ⁋ 27 (citing Corwin v. British Am. Tobacco PLC, 821 S.E.2d 729, 735-36 (N.C. 2018) (corporations case)). (See Blog Post Smoke ’em if You Got ’em, dated June 2, 2019).

Plaintiff Alleged Insufficient Facts to Impose a Fiduciary Duty.

While Plaintiffs had standing, their claims based on Defendants’ corporate actions failed on the merits.

Fiduciary Duties Excluded By Operating Agreement

Generally, LLC members do not owe fiduciary duties to each other or to the company. Perhaps because of that rule (and because the original Operating Agreement disclaimed fiduciary duties concerning its members), Plaintiffs based their claim on other factors: the sibling relationship and their disparate business acumen.

The Court had no trouble dispensing with the claim. The Court questioned whether a fiduciary duty could attach in light of the original Operating Agreement’s express language precluding it. But, the Court did not have to decide that issue because the allegations failed to show the requisite control needed. Under North Carolina law, a fiduciary duty can arise only when one party “holds all the cards.” Op. ⁋ 32. As no individual sibling was alleged to wield all the power in the company, no fiduciary duty could attach. Id.

No Control Group Exception for LLCs

You may wonder: could the collective interest of the Defendant siblings form a control group that owes a fiduciary duty to a minority member? When Terry liquidated her membership interest, Defendants Graham, Ann, and Jim together owned more than 50% of the company.  They could use their collective interest against Plaintiff Bert, a minority owner.

The Business Court has recognized the possibility that multiple minority shareholders in a corporation who act in concert to control the corporation may owe a duty to a minority shareholder. See, e.g., Brewster v. Powell Bail Bonding, Inc., 2018 NCBC 74, *19-32 (N.C. Super. Ct. Jul. 26, 2018) (Judge Conrad).

(In Brewster, Judge Conrad cited the Court of Appeals decision in Corwin v. British Am. Tobacco PLC, in which the Court determined that a minority shareholder of a corporation exercising actual control may owe a fiduciary duty to other shareholders. See 796 S.E.2d 324 (N.C. Ct. App. 2016). When the North Carolina Supreme Court considered the issue in the Corwin appeal, it left the matter undecided. (See Blog Post Smoke ’em if You Got ’em, dated June 2, 2019).)

Judge Conrad noted that some recent Business Court cases “have stated that a holder of a majority interest who exercises control over the LLC owes a fiduciary duty to minority interest members.” Op. ⁋ 35 (citing Fiske v. Kieffer, 2016 NCBC 22, ⁋ 35) (N.C. Super. Ct. Mar. 9, 2016) (emphasis added) (Judge McGuire)). But, he also noted that the “scope of the [control group] exception … remains unsettled” and that “[t]his Court has cautioned against a broad application because of the fundamental differences between LLCs and corporations.” Id. Minority members of LLCs have “much greater” ability to negotiate for protections in the operating agreement. Id. Thus, “this Court has routinely refused to extend the control group exception to LLCs.” Id.

Judge Conrad was unwilling to grant such a right here. He determined that Defendants Graham, Ann, and Jim owed no fiduciary duty to Plaintiffs for their actions related to Bennett Farm.

Judicial Dissolution

Plaintiffs also seek judicial dissolution of Bennett Farm. They argue it is not practicable to conduct business in conformance with the operating agreement and governing statutes, and liquidation is necessary to protect their rights and interests. They seek dissolution based on the frustration of their reasonable expectations (rights enjoyed by shareholders of closely held corporations). See Meiselman v. Meiselman, 309 N.C. 279, 299 (1983).

The Court held that Plaintiff Terry lacks standing to seek the remedy because she is no longer a member of Bennett Farm.

But, Plaintiff Bert remains a member. If he develops evidentiary support for his claims, a jury might face “thorny questions” about the company’s ability to bring itself into compliance with its operating agreement after a decade of what would be unlawful management. The Court did not state whether Meiselman’s dissolution standards would apply to LLCs. It decided it would be “prudent” (at this juncture) to address the issue after discovery. Op. ⁋ 70 (citing Pure Body Studios Charlotte, LLC v. Crnalic, 2017 NCBC LEXIS 98 ⁋ 27-8 (N.C. Super. Ct. Oct. 18, 2017) (Judge Robinson)).

This leaves open the possibility that the Court could apply Meiselman in the LLC context.