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It’s Just Business

Analysis of North Carolina Business Court Decisions (and other musings)

Topics

About the Court

Productivity and Progress: Recap of the 2024 Business Court Report and Some CivicsChanges on the Horizon: Recent Announcements Affecting the Composition of the North Carolina Business Court11th Annual NC Business Court CLE is October 20, 2023

Abuse of Process

Seven of One, Half a Dozen of the Other

Amended Pleadings

Third Time's the Charm. Mostly.Business Court Confirms the “Special” Cases Where State Law Claims “Arise Under” Federal Law Remain a RarityMarshall at Sutter’s Sawmill

Antitrust

NC Business Court Refuses to Strike a Most-Favored-Nation Clause Challenged as Hopelessly Vague by Pork Industry TitanSeven of One, Half a Dozen of the OtherSykes Affirmed - Healthcare Practitioners Take Note

Appeals

Business Court Rejects Effort to Eclipse Tax Credit Regime that Spurred NC Solar Farm BuildsNC Supreme Court Endorses Flexibility for Business Court in Determining “Fair Value” for Dissenting ShareholdersTo Thine Own Documents be True

Arbitration

N.C. Business Court Brings Clarity to Issues of ArbitrabilityWhen the (International) Shoe Doesn’t Fit

Attorney Fees

When Discovery Goes Off Track, can a Pro Se Party Right the Course?Check your Receipts at Summary Judgment: Court Awards Attorney's Fees Against Party that Pressed on with “Meritless” Claim After Close of DiscoveryA Bitter Dish in the Dessert Industry: Company Pays Litigation Expenses for a Corporate Officer who Won Dismissal of Its Misappropriation Claims

Business Court Designation

Productivity and Progress: Recap of the 2024 Business Court Report and Some CivicsHalf the Battle May be Just Showing Up, but in Business Court Giving Timely Notice that You’re Coming is an Unbending RuleBusiness Court Amends Designation Procedure for Mandatory Complex Business Cases

Business Judgment Rule

A Clubhouse ConundrumN.C. Business Court Declines to Adopt Rule that a Minority Shareholder Exercising "Actual Control" Could Have Fiduciary Duty to Other Shareholders.

Civil Procedure

Out-of-State Attorneys Have Room to Argue their Work for North Carolina Residents Does Not Create “Minimum Contacts”Business Court Expands Potential Duties of Landowners for Torts that Begin on Their Property, but Conclude ElsewhereAce is the Place for Many Things, but not Always for Proper Rule 4 Service

Class Actions

N.C. Business Court Brings Clarity to Issues of Arbitrability

Closely Held Business

A(nother) Cautionary Tale on the Importance of Operating AgreementsBusiness Court Gives Maggie Valley’s Ghost Town in the Sky More Time to Scare up Some InvestorsDerivative Claim Boots are Made for Walking, Business Court Says, but Only When an LLC Leaves Them on the Rack.

Conflict of Interest

One Law Firm. Two Clients. Three Times the Complexity.Cross-Border Litigations Over Control of an LLC with an Unusual Twist: the Same Law Firm on Both Sides of the Battle

Conspiracy

Minority Shareholders can “Follow the Money” Linked To Alleged Diversions by Majority for Phantom Salaries and BenefitsN.C. Business Court Declines to Adopt Rule that a Minority Shareholder Exercising "Actual Control" Could Have Fiduciary Duty to Other Shareholders.

Contract Breach

We Get By With a Little Help from Our Friends*Two business court rulings offer insights on trade secret pleadings, employment agreements, and credibilitySeeing the Forest for the Trees, and Protecting it: a "Cap and Trade" Litigation Tale

Contract Formation

Friends, Family, and Partnerships: a Litigation Tale as Old as TimeNot an Offer He Can't RefuseUnhappy Campers

Contract Interpretation

NC Business Court Refuses to Strike a Most-Favored-Nation Clause Challenged as Hopelessly Vague by Pork Industry TitanWhen the (International) Shoe Doesn’t FitLernaean Hydra

Contracts

We Get By With a Little Help from Our Friends*Two business court rulings offer insights on trade secret pleadings, employment agreements, and credibilitySeeing the Forest for the Trees, and Protecting it: a "Cap and Trade" Litigation Tale

Corporate Governance

Delaware Curbs Shareholder Challenges to Executive CompensationA(nother) Cautionary Tale on the Importance of Operating AgreementsWide Access for Inspecting LLC’s Records has Narrow, but Crucial, Guideposts

Data Breach

Data Breach 101: a Curriculum Spoiler for NC College Students

Deadlines

19th Nervous Breakdown: on the Wrong Side of a Contractual Deadline, You Can’t Always Get What You Want

Defenses

Love May Make a Subaru a Subaru, but Title is Still Required to Claim It.

Derivative Actions

Silence as to Some Facts in a Complaint can be GoldenWhen Finding a Corporate Stalemate is Like Searching for Bobby FischerOne Law Firm. Two Clients. Three Times the Complexity.

Discovery

Discovery Molehills, Mountains, and a Climbing Guide from the NC Business CourtWhen Discovery Goes Off Track, can a Pro Se Party Right the Course?Check your Receipts at Summary Judgment: Court Awards Attorney's Fees Against Party that Pressed on with “Meritless” Claim After Close of Discovery

Disretionary Stay

When You're Reminded a Win May be Fleeting

Dissolution

Business Court Gives Maggie Valley’s Ghost Town in the Sky More Time to Scare up Some InvestorsWhen Finding a Corporate Stalemate is Like Searching for Bobby FischerDon't Fence Me In

Economic Loss Rule

Business Court Assesses Duties to Protect Patient Information Shared Through Electronic PortalsSex Toy Titan Sues Estate of Founder to Compel Redemption of Shares Whose Value May Exceed $60 Million

Electronic Discovery

Discovery Molehills, Mountains, and a Climbing Guide from the NC Business Court

Employment

Two business court rulings offer insights on trade secret pleadings, employment agreements, and credibilityWhen a Legally Protected Activity is in the Mist, but Not in the ComplaintEmployer Tip: Don't Forget to Re-Up Your Employment Agreements

Equitable Estoppel

Marshall at Sutter’s Sawmill

Estoppel

Marshall at Sutter’s SawmillWar of the Roses

Expert Testimony

A Pirate’s Story, it Turns Out, is Worth its Weight in GoldAn Expert that is Thorough, but Thoroughly Misses the Issues at Play, Gets No SayNo Harm, No Foul

Fiduciary Duties

A(nother) Cautionary Tale on the Importance of Operating AgreementsJNOV is a Tough Road, but it’s Not a One in a Million ShotWhen Employees Become Competitors, NC Business Court Keeps a Careful Watch on Disturbances in Marketplace Force

First Amendment

TikTok’s New Domestic Owners Still Face an Array of State Consumer Protection Claims Over Unfairly Targeting MinorsA Publicly Filed Court Document Does Make a Sound, Even if No One is Around to Hear ItA Business Court Finds There is Little "Neutral" Ground in Disputes Over Church Business

Fraud

Courts have Rods and Reels, But Don’t Make Them Fish for The StoryThird Time's the Charm. Mostly.In Planning a Law Firm Exit, Business Court Commends Attention to the Things that Go Unspoken

Fraudulent Conveyance

Love May Make a Subaru a Subaru, but Title is Still Required to Claim It.

Fraudulent Misrepresentation

Marshall at Sutter’s Sawmill

Governmental Immunity

Charlotte’s Contracts to Build Transit System are Inseparable Part of Government Function to Provide Service to Public

Health Care

N.C. Business Court Affirms the Assignability of MedPay Benefits to Treating Hospitals and Reminds Litigants to Direct Appeals to the Proper CourtSykes Affirmed - Healthcare Practitioners Take Note

Illegal Contracts

Two business court rulings offer insights on trade secret pleadings, employment agreements, and credibilityMarshall at Sutter’s Sawmill

Inspection Rights

Wide Access for Inspecting LLC’s Records has Narrow, but Crucial, GuidepostsA Corporate Riddle: When are Three Director Seats on a Five-Member Board not a Majority?Court Sharply Limits Attorney Fee Award in Dispute Over Access to Corporate Records of Charlotte Country Club

Intellectual Property

Two business court rulings offer insights on trade secret pleadings, employment agreements, and credibilityDenied!  Judge Davis rejects a “half-hearted” approach to obtaining a preliminary injunctionNorth Carolina Supreme Court Unpacks a Service Contract and Finds a Potential Software Sale Lurking Within

Interlocutory Appeals

A Counterclaim Bet You May RegretWhen You're Reminded a Win May be Fleeting

Intervention

Even in an Olympic Year, a “Low Bar” for Intervening Parties can be a Major Hurdle

JNOV

When Doing the Same Thing Over Again and Expecting Different Results is not Insane, a Court Explains

JNOV

JNOV is a Tough Road, but it’s Not a One in a Million Shot

Judge Bledsoe

Productivity and Progress: Recap of the 2024 Business Court Report and Some CivicsNo rubber stamps here.  Judge Conrad denies a motion to seal.19th Nervous Breakdown: on the Wrong Side of a Contractual Deadline, You Can’t Always Get What You Want

Judge Conrad

TikTok’s New Domestic Owners Still Face an Array of State Consumer Protection Claims Over Unfairly Targeting MinorsBusiness Court Expands Potential Duties of Landowners for Torts that Begin on Their Property, but Conclude ElsewhereProductivity and Progress: Recap of the 2024 Business Court Report and Some Civics

Judge Davis

Two business court rulings offer insights on trade secret pleadings, employment agreements, and credibilityBusiness Court Assesses Duties to Protect Patient Information Shared Through Electronic PortalsA(nother) Cautionary Tale on the Importance of Operating Agreements

Judge Earp

We Get By With a Little Help from Our Friends*Want to pierce the corporate veil?  Plead facts, not just factors.Ace is the Place for Many Things, but not Always for Proper Rule 4 Service

Judge Gale

Straight from the Source - Comments from the Business Court JudgesNC Supreme Court Modifies Crossclaim Guideposts in Affirming Business CourtAnother PJ Decision: Remember - PJ is a waivable defense...

Judge Houston

Out-of-State Attorneys Have Room to Argue their Work for North Carolina Residents Does Not Create “Minimum Contacts”Courts have Rods and Reels, But Don’t Make Them Fish for The Story

Judge McGuire

Straight from the Source - Comments from the Business Court JudgesHow High is the Bar to Prove a Plaintiff’s Complaint is a Mere Sham?Once … Twice … Three times… You’re sanctioned.

Judge Robinson

Providing Investment Advisory Services in North Carolina May be a “Profession,” But Doesn’t Get Limitations Period for Professional Negligence ClaimsWolfspeed, Durham-Based Semiconductor Producer, Fighting Financial Peril in the Market and Employee Exits in the CourtsProductivity and Progress: Recap of the 2024 Business Court Report and Some Civics

Judgment on the Pleadings

Business Court Expands Potential Duties of Landowners for Torts that Begin on Their Property, but Conclude ElsewhereCan a Private Corporation Be Required to Produce Its “Public” Records?Love May Make a Subaru a Subaru, but Title is Still Required to Claim It.

Judicial Estoppel

War of the Roses

Mandamus

Court Declines to Undo a Corporate Board’s Vote that a Disgruntled Shareholder Skipped

Mediation

Charlotte’s Contracts to Build Transit System are Inseparable Part of Government Function to Provide Service to PublicA Mediation Isn’t Quite Hotel California, but Check Out Times are Still Strictly Regulated

Meiselman Duties

Business Court Gives Maggie Valley’s Ghost Town in the Sky More Time to Scare up Some InvestorsDon't Fence Me InWar of the Roses

Mergers

NC Supreme Court Endorses Flexibility for Business Court in Determining “Fair Value” for Dissenting ShareholdersWhen It’s Time for a Second Opinion

Misrepresentation

North Carolina Supreme Court Unpacks a Service Contract and Finds a Potential Software Sale Lurking WithinCampsite Moments: Stars, S’Mores, and Statements of Material FactScrutinizing With Particularity

Motion to Strike

A Publicly Filed Court Document Does Make a Sound, Even if No One is Around to Hear ItAn “Introduction” in a Complaint: How Much Is Too Much?Marshall at Sutter’s Sawmill

Motions in Limine

An Expert that is Thorough, but Thoroughly Misses the Issues at Play, Gets No Say2022 Business Court CLE: What the Business Court Judges Want You to Know

Negligence

Providing Investment Advisory Services in North Carolina May be a “Profession,” But Doesn’t Get Limitations Period for Professional Negligence ClaimsBusiness Court Assesses Duties to Protect Patient Information Shared Through Electronic PortalsBusiness Court Expands Potential Duties of Landowners for Torts that Begin on Their Property, but Conclude Elsewhere

Negligent Misrepresentation

North Carolina Supreme Court Unpacks a Service Contract and Finds a Potential Software Sale Lurking WithinScrutinizing With ParticularityMarshall at Sutter’s Sawmill

Non-compete

A Swan Song for Noncompete Clauses?A Worldwide Covenant not to Compete May Someday Merit a Preliminary Injunction, but it Won't Likely Come Soon in the N.C. Business Court.

Partnership Agreement

We Get By With a Little Help from Our Friends*Business Court Rejects Effort to Eclipse Tax Credit Regime that Spurred NC Solar Farm BuildsFriends, Family, and Partnerships: a Litigation Tale as Old as Time

Personal Jurisdiction

Out-of-State Attorneys Have Room to Argue their Work for North Carolina Residents Does Not Create “Minimum Contacts”Not all contacts are created equal:  more PJ lessons from the Business Court. Investors in Wilmington Project Lose Bid to Sue Company that Solicited Their Investments through Marketing Efforts in China

Pierce Corporate Veil

Want to pierce the corporate veil?  Plead facts, not just factors.A Corporate “One Man Band” Might be a Lonely Road, but the Company is Not Always a PuppetWar of the Roses

Professional Responsibility

One Law Firm. Two Clients. Three Times the Complexity.

Public Records

A Publicly Filed Court Document Does Make a Sound, Even if No One is Around to Hear ItNC Supreme Court Narrows What Counts as a “Public Record” Held by Private Entities with Extensive Government TiesBusiness Court Narrows How Public Records Act Applies to Entities with Government Ties

Receivership

2022 Business Court CLE: What the Business Court Judges Want You to Know

Retaliatory Employment Discrimination Act

When a Legally Protected Activity is in the Mist, but Not in the Complaint

Rule 41 Dismissal

Marshall at Sutter’s Sawmill

Sanctions

No lawyer, no problem.  Justice will still be served. When Discovery Goes Off Track, can a Pro Se Party Right the Course?A Mediation Isn’t Quite Hotel California, but Check Out Times are Still Strictly Regulated

Service of Process

Ace is the Place for Many Things, but not Always for Proper Rule 4 ServiceWhen Serving Pleadings by FedEx, Use the Right One.A Rule 4 Service Drama: all FedEx, DHL and UPS Delivery Modes are not Created Equal

Settlement Agreement

19th Nervous Breakdown: on the Wrong Side of a Contractual Deadline, You Can’t Always Get What You WantWhen “Divorcing” Physicians Scuffle Over Contractual Plans to Honor Patient Choice, do they Render Medical Service?A Discovery Tale as Old as Time: Seek What You Really Want, or You May Never Find It

Shareholder Actions

Delaware Curbs Shareholder Challenges to Executive Compensation

Standing

Silence as to Some Facts in a Complaint can be GoldenSupreme Court Rules that Nominal Damages Can Be Quite Valuable…Maybe?Don't Fence Me In Again

Start-ups

It's Always About the Money : Regulating the "Finders" who Secure Financing for Start-ups

Statute of Limitations

Charlotte’s Contracts to Build Transit System are Inseparable Part of Government Function to Provide Service to PublicSilence as to Some Facts in a Complaint can be GoldenBusiness Court Holds Clause Curbing Limitations Period Means Exactly What Contracting Parties Said it Did

Stay

A Counterclaim Bet You May RegretWhen You're Reminded a Win May be Fleeting

Subject Matter Jurisdiction

A Bitter Dish in the Dessert Industry: Company Pays Litigation Expenses for a Corporate Officer who Won Dismissal of Its Misappropriation ClaimsBuyer Acquired Claims "of Any Kind,” Including Seller's Charge that its Own President's Misconduct Forced a Sale at Suppressed PriceOnce a Business Court Case, Always a Business Court Case

Tax

Business Court Rejects Effort to Eclipse Tax Credit Regime that Spurred NC Solar Farm BuildsYes, This Post is About Taxes, but There’s Bonus Content about The Beatles and Batman!When It Pays to Be Scrappy

Tortious Interference

Wolfspeed, Durham-Based Semiconductor Producer, Fighting Financial Peril in the Market and Employee Exits in the Courts

Trade Secrets

Two business court rulings offer insights on trade secret pleadings, employment agreements, and credibilityDenied!  Judge Davis rejects a “half-hearted” approach to obtaining a preliminary injunctionA Trade Secret Tale: When a “Gold Mine” is not Worth the Digging

Trade Secrets

Wolfspeed, Durham-Based Semiconductor Producer, Fighting Financial Peril in the Market and Employee Exits in the CourtsTwo business court rulings offer insights on trade secret pleadings, employment agreements, and credibilityDenied!  Judge Davis rejects a “half-hearted” approach to obtaining a preliminary injunction

Trademarks

Contract Now. Wine Later.

Uncategorized

Two business court rulings offer insights on trade secret pleadings, employment agreements, and credibilityA(nother) Cautionary Tale on the Importance of Operating AgreementsProductivity and Progress: Recap of the 2024 Business Court Report and Some Civics

Unfair & Deceptive Trade Practice

TikTok’s New Domestic Owners Still Face an Array of State Consumer Protection Claims Over Unfairly Targeting MinorsData Breach 101: a Curriculum Spoiler for NC College StudentsNo lawyer, no problem.  Justice will still be served. 

Unjust Enrichment

A Trade Secret Tale: When a “Gold Mine” is not Worth the DiggingUnhappy Campers

Wrongful Discharge

When a Legally Protected Activity is in the Mist, but Not in the Complaint

It’s Just Business

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