Plaintiff Leiber, a German citizen, had put money at the urging of Spreti in a number of United States investments (the "AAC entities"). The AAC entities were operated by two other Germans, Count and Countess Arco. Over a fifteen year period, the AAC entities sent hundreds of thousands of dollars of Leiber's distributions and tax refunds to Spreti. 

Spreti paid some of the money he received to Leiber, but kept hundreds of thousands of dollars of Leiber's money for himself. Leiber knew that his payments were sent to Spreti, but he never objected to this practice and apparently wasn't very attentive to his investment.  Leiber began to suspect Spreti's misconduct, but Spreti committed suicide the night before the two were to meet to discuss matters.

The specific distributions at issue in the case were payments to Leiber for redemption of his interests in two of the AAC entities. Spreti received both of these payments.  One was a Wachovia Bank check for $151,274 and the other a Bank of America check for $254,858.  Spreti forged Leiber's indorsement on the checks, cashed them, and kept the money.

After Spreti's suicide, Leiber sued the AAC entities, alleging that they had improperly sent the checks to Spreti.  He also sued Wachovia and Bank of America, alleging that they had improperly paid the checks over Spreti's forged indorsement.

Agency Issues

The defense of the AAC entities was that Spreti had been acting as Leiber's agent, and they therefore had acted appropriately in sending Leiber's distributions to Spreti. The opinion contains a thorough discussion of the law of agency, including actual authority, apparent authority, apparent agency, agency by estoppel, and ratification.

Judge Tennille determined that although Leiber had not expressly authorized Spreti to act as his agent, there were a number of legal theories on which Spreti would be deemed to be Leiber's agent:

• Spreti had implied actual authority to act for Leiber, because Spreti had acted as Leiber's only contact with the AAC entities for 15 years; and Leiber knew that his checks were being sent to Spreti and had never objected to that practice.
• Spreti had apparent authority to act on Leiber's behalf, because Leiber had held Spreti out to the AAC entities as having authority to act for him by using Spreti to manage his investments in the AAC entities for 15 years.
• An apparent agency relationship existed between Leiber and Spreti, because Leiber's silence regarding the checks sent to Spreti caused the AAC entities "to believe an agency relationship existed" and the AAC entities had relied on Leiber's action to their detriment.
• Because Spreti was the general partner of two of the AAC partnerships, he was deemed to be Leiber's agent.

The Court further determined that even if there were no agency relationship, Leiber's fifteen year silence regarding the checks was a ratification of Spreti's unauthorized acts. The Court granted summary judgment on all of Leiber's claims against the AAC entities, as they all depended on the argument that Spreti had not been authorized to receive checks on Leiber's behalf.

The Forged Indorsements

The Bank of America check on which Spreti forged Leiber's indorsement had been deposited by Spreti at his account at a German bank, Oberbank.  Oberbank transferred the check to Wachovia for collection. Wachovia then presented the check to Bank of America for payment, and Bank of America made payment in full.

Bank of America crossclaimed against Wachovia on its liability for the payment of this check, contending that Wachovia had breached the presentment warranty of N.C.G.S. §25-3-417(a)(1), which is a warranty that there are no unauthorized or missing indorsements on a check presented for payment.  Presentation warranties are breached if a check contains a forged indorsement.

Judge Tennille ruled that the presentment warranty had been breached, and that Wachovia was liable to Bank of America on its crossclaim  He observed that Wachovia was free to go "down the collection chain" to the German bank at which the check had been deposited.  Under the UCC, final liability "rests ultimately on the initial depository bank which presumably could have guarded against the loss by inspecting the indorsement more closely."

Arbitration

In Griessel v. Temas Eye Center, P.C., the Court held that it was not error for the trial court to deny a motion to compel arbitration without making findings of fact.  Findings of fact were required under the North Carolina Uniform Arbitration Act, but the 2-1 majority found in a case of first impression that they are not required under the Revised Uniform Arbitration Act. 

The majority reasoned that since there is only one ground under the RUAA which allows the denial of a motion to compel arbitration (that there is no valid agreement to arbitrate), the court must have made that determination in denying the motion. Judge Steelman disagreed, and said "[i[f one takes the position that the trial court must have logically made the correct decision, then there is little need to have appellate courts."

Discovery And Medical Review Committees

In Woods v. Moses Cone Health System, the issue was whether a plaintiff in a medical malpractice action was entitled to discovery of a letter from the decedent's surgeon to a hospital's peer review committee.  The  Court determined that committee to be a "medical review committee" within the meaning of G.S. §131E-95 of the General Statutes, which provides that the records and materials of such a committee "shall not be subject to discovery or introduction into evidence in any civil action against a hospital."  This protection exists "because of the fear that external access to peer investigations conducted by staff committees stifles candor and inhibits objectivity."

Plaintiff said that since the surgeon had sent the letter to persons who weren't on the committee, the privilege had been waived.  The Court of Appeals said the privilege couldn't be waived by the dissemination of the letter, because the letter was absolutely privileged under the statute. The Court didn't reach an interesting question whether the letter was discoverable because it had been provided to Defendant's expert witnesses.

Copyright 

The Fourth Circuit Court of Appeals ruled in Quantum Systems Integrators, Inc. v. Sprint Nextel Corp. that software stored in a computer's random access memory can be sufficiently fixed to support a claim for copyright infringement, following what it described as the leading case on the issue, MAI Systems  Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993). That was a question of first impression in the Fourth Circuit, but the Quantum opinion is unfortunately unpublished.

This was a thorough 44 page opinion addressing a number of non-compete and trade secrets issues, so this is a long post.  You'll have to read to near the end to see why the post gets a picture of, of all things, a sausage?

Background

Hope was the Executive Vice President of Sales for DLO, responsible for the company's sales of iPod accessories throughout the United States and Canada.  Hope had substantial interaction in that position with a $75 million customer, Best Buy, and other major DLO customers.

In December 2006, Hope signed a Letter Agreement containing a broad covenant not to compete.  It prevented him from working in the same or similar position for a DLO competitor anywhere that DLO conducted business, potentially throughout the entire world, for a two year period.

The stock of DLO was purchased by Phillips Electronics six months later.  Phillips operated DLO as a separate entity until January 2009, when DLO was merged into Phillips.  (This created an interesting standing issue regarding the right of a corporate acquirer to enforce a non-compete, discussed below under the heading "Standing").

In 2008, while still employed by DLO, Hope began planning to compete with the company.  He contacted others at DLO about the possibility;  began discussions with a manufacturer about making competing products; and used confidential DLO materials in his efforts, including DLO's business plan and internal financial information.

Hope resigned from DLO months later, the day after his new company obtained financing.  He misled his old employer about his intentions, saying he was going to work with his father.  The new company immediately began selling to some of DLO's customers, including Best Buy.  Several months later, DLO discovered Hope's involvement with the new competitor.

Irreparable Harm to DLO

Judge Schroeder found that DLO would suffer irreparable harm, as "loss of permanent relationships with customers and loss of proprietary information may constitute irreparable harm."  DLO had established that "Hope's alleged breach of the Non-Competition Agreement undermines its relationship with its customers, including its most significant -- Best Buy, and could result in the further loss of customer relationships and goodwill."

Likelihood of Harm to Hope

Hope argued that he would be deprived of a livelihood if the covenant were enforced, but the Court pointed to Hope's written acknowledgment in the Letter Agreement that it would "not prevent [him] from earning a livelihood or otherwise impose undue hardship on [him]."  Judge Schroeder said that the entry of an injunction would "only require Hope to do that which he agreed to do" in the Letter Agreement.

Standing

Judge Schroeder held that the covenant was enforceable by Philips, the acquirer of DLO's stock.  He ruled that "a non-competition agreement is enforceable by an entity acquiring the agreement through a stock purchase,"  and noted that Hope had consented in the Letter Agreement to its assignment.

The Court also observed that when there is a merger, "the surviving corporation succeeds to 'all real estate, and other property owned by each merging corporation' by operation of law, without the need for an express assignment."

(Note: There are two Business Court opinions on the right of an asset purchaser to enforce a non-compete, Better Business Forms and Covenant Equipment Corporation,  If this had been an asset purchase instead of a stock transaction, the covenant might not have been enforceable under those decisions).

Reasonableness of Territory

DLO's covenant prohibited Hope from competing where "(i) the Company carriers on or transacts its business, (ii) the Company sells or markets its products or services, or (iii) the Company's customers are located; including without limitation (A) the world, (B) the United States of America [and then a shrinking range of territories down to] (I) the territory within a 100 miles radius of each other office of the Company."

Plaintiff presented a list of thousands of specific locations throughout the country where its products were sold, including retail stores in every state and a store in the District of Columbia, as well as evidence of Hope's extensive involvement in its nationwide sales efforts.

The Court noted that "though certainly not the norm, North Carolina courts have upheld nationwide restrictions on former employees in at least three reported cases," and that a countrywide restriction was warranted "based on Hope's client contacts, his knowledge of DLO's business, the area assigned to Hope and the nature of his duties, and the fact that DLO competes nationally."

The Court wasn't troubled by the worldwide restriction in subsection (iii) of the non-compete.  It held that "under North Carolina law, the court may use its 'blue pencil' to excise subsection (iii) from the definition of territory, particularly where this provision is separated by the term 'or,' indicating that the three parts are distinctly separable."  The Court also observed that the Letter Agreement had a provision providing that the parties intended to sever any unenforceable provisions.

Reasonableness of Restriction as to Time

The Court found the two-year restriction to be reasonable, stating that "a non-competition agreement of two years is 'well within the range that the North Carolina courts have deemed reasonable.'"

Judge Schroeder further found that the two year period should be tolled for the eleven month period during which Hope had been in breach of the agreement, based on language in the agreement that "[t]he periods of protection . . . shall not be reduced by any period of time during which [Hope is] not in compliance therewith."

Legitimate Business Interest

The Court held that the covenant protected a legitimate business interest as it protected customer relations and goodwill against misappropriation," and that it "merely prevents Hope from working for a direct competitor in substantially the same or similar position as he held within the twelve months prior to his resignation from DLO."

Trade Secrets Protection Act

The Court also held that the Plaintiff had shown a likelihood of success on its claim under the North Carolina Trade Secrets Protection Act, ruling that Hope had access to a variety of trade secret information, including the DLO business plan, customer preferences, DLO's financial calculator to determine profitability (which was known internally for some reason as "the sausage"), new packaging plans, product costs, pricing information. and market share data that DLO had obtained from a third-party vendor. 

Judge Schroeder held that "customer pricing lists, cost information, confidential customer lists, and pricing and bidding formulas may constitute trade secrets," and that "special knowledge of customer needs and preferences is a trade secret."

The Hope opinion also contains a discussion of whether the holder of the trade secret had taken reasonable steps to protect the information.  Judge Schroeder held that Philips had taken such steps, although he said they were "not robust."  These included a training course titled "Ethics and Business," where Hope and other employees had been counseled about the need to protect business information against improper use and disclosure; Hope's execution of a confidentiality agreement; and independent steps taken by Philips to maintain secrecy of proprietary information within the company. 

A factor contributing to the trade secrets injunction was Hope's efforts to hide his competitive activities from his employer.  Judge Schroeder held that "injunctive relief may be appropriate where the departing employee is not forthright as to his intentions," or when "there is a showing of bad faith, underhanded dealing, or inferred misappropriation (justified by circumstances tending to show the new employer plainly lacks comparable technology."   He described the case as "a sad example of an overzealous employee's egregious disregard for his obligations to his current employer."

Public Interest

The Court found that the public interest would be served by the entry of an injunction, because Philips had "a legitimate interest in developing its customer relationships and being able to share confidential and proprietary information with its employees without fear it will end up in the hands of a competitor."

It determined also that the public interest would be served by "ensuring that contracts are enforced" and "preventing unethical business behavior."

Assignments of Error Are Abolished

Far and away the most significant change is the welcome elimination of assignments of error, to be replaced by a list of proposed issues.

The new procedure set out in Rule 10(b) provides that "proposed issues that the appellant intends to present on appeal shall be stated without argument at the conclusion of the record on appeal in a numbered list.  Proposed issues on appeal are to facilitate the preparation of the record on appeal and shall not limit the scope of the issues presented on appeal in an appellant's brief."  There are examples of proposed issues in Table 4 to Appendix C in the Rules.

Supplementation of Record on Appeal

There's a new procedure for supplementing the Record on Appeal without leave of Court. Rule 9(b)(5)(a) says "if the record on appeal as settled is insufficient to respond to the issues presented in an appellant's brief or the issues presented in an appellee's brief pursuant to rule 10(c), the responding party may supplement the record on appeal with any items that could otherwise have been included, pursuant to this Rule 9. . . . The supplement shall be filed no later than the responsive brief or within the time allowed for filing such a brief if none is filed."

Transcripts To Be Delivered Electronically, Email Addresses Required

The amended Rules take a couple of steps into the electronic age.  The court reporter is required to deliver the transcript to counsel electronically (Rule 7(b)(1)), in .pdf format (Rule 7(b)(2)), and to file the electronic transcript with the appellate court (Rule 7(b)(2)).  Signature blocks need to include email addresses (Rules 26(g)(3) and 28(b)(8)).

Out-Of-State Attorneys

The revised Rules impose more oversight on lawyers admitted pro hac.  The Record on Appeal now requires the inclusion of any order that admitted an out of state attorney (Rule 9(a)(1)(n)). Furthermore, out of state attorneys intending to appear in the appellate courts must make a motion in order to do so (Rule 33(d)).

New Protections For Identity Of Juveniles

If you handle appeals involving juvenile law (like termination of parental rights cases), there are new procedures in Rule 3.1 to protect the identity of juveniles.

There's a redlined copy of the Rules available which shows all the changes, including all of the many gender-neutralizing changes.

Anderson & Associates of Virginia, Inc. v. Tuscany Development Co. (Guilford)(Tennille): whether an individual can be personally liable for the obligations of an LLC when the entity was erroneously designated in the contract documents.

Berton v. Jacobson (Wake)(Jolly):alleged misrepresentations to induce plaintiffs to invest in limited liability companies, allegations of a Ponzi scheme.  Claims under the North Carolina Securities Act, breach of fiduciary duty, fraud, negligent misrepresentation, N.C. RICO, and to pierce the corporate veil. Related to the Shareff case, below.

BB&T BOLI Plan Trust v. Massachusetts Mutual Life Ins. Co. (Forsyth)(Diaz): alleged mismanagement of $55 million securities investment by BB&T, which BB&T claims was to be reallocated into less risky investments if the value fell below a certain amount.   BB&T claims "despite knowing of the meltdown in the mortgage-backed securities market and that [the fund] was heavily investment in [mortgage backed securities] investments, [Defendant] failed to take timely steps to protect BB&T's premiums."

Engineering Services, P.A. v. Dail (Wake)(Jolly): claims for breach of fiduciary duty and conversion by corporate officer and shareholder, counterclaim seeking dissolution of the corporation or redemption of defendant's ownership interest.

Ferguson Fibers, Inc. v. Foster (Davidson)(Tennille): claims against former employee for unfair competition and misuse of proprietary information.

Kiser v. Shelby (Caldwell)(Diaz): claims for breach of operating agreement of LLC, breach of buy-sell agreement, breach of fiduciary duties, dissolution and misappropriation of intellectual property.

Oracle Flexible Packaging, Inc. v. Industrial Air Quality, Inc. (Forsyth)(Diaz): This is a Rule 2.1 case in which "Plaintiff seeks in excess of $31,000,000 for damages resulting from an explosion . . . at a manufacturing complex where it produced aluminum packaging materials" allegedly resulting from defendants' design and installation of an "oily foil trim collection system."

Red Ventures, LLC v. Modern Consumer, LLC (Mecklenburg)(Diaz): alleged fraud in Plaintiffs' acquisition of business sold by the Defendants.

Rouen v. Smith (New Hanover)(Diaz): plaintiffs allege that the defendants formed a sand mining business that was intended to include the plaintiffs as members, but failed to include them.  Also claims for usurpation of corporation opportunities and wrongful sales of member interests in the venture.

Shareff v. Lakebound Fixed Return Fund, LLC (Wake)(Jolly): alleged misrepresentations to induce plaintiff to invest in limited liability companies, claims under North Carolina Securities Act and North Carolina Investment Adviser Act and for common law fraud.  Related to the Berton case, above. 

The North Carolina courts are taking some serious strides towards the implementation of electronic filing in Superior Court.  The State has gone live with pilot e-filing programs in Chowan and Davidson Counties.  Wake County will be added shortly as a third pilot county.  The goal is full and mandatory implementation throughout the State within two years.

The State has selected a software program called E-Flex from Tybera to handle electronic filing.  If you want to bone up in advance on the filing procedures, there's an on-line manual available from Tybera, as well as some general information about the program, including training opportunities with CLE credit.

The Supreme Court has approved a new set of rules for e-filing, which are titled Supplemental Rules of Practice and Procedure for the North Carolina eFiling Pilot Project for Chowan and Davidson Counties Initially, and then also for Wake County.

At the end of recent report from the Technology Committee of the AOC about the e-filing project, the author says "Bottom Line: E-Filing and E-Pay is here.  The money is in hand.  The implementation will be gradual but the estimated time for mandatory use throughout the state, barring any major problems, is less than two years.  Hold on tight -- this will be quite a trip."

Plaintiff, who had sued in federal court in North Carolina, argued that she was a college student without the financial means to fund a lawsuit in Amsterdam, that contingency fee arrangements were not permitted in Amsterdam, and that she wouldn't be able to pursue her claim if the forum selection clause was enforced.

The Fourth Circuit, relying on the Supreme Court's decision in The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972), held that the inconvenience of litigating in a foreign forum doesn't warrant setting aside a selection clause "where it can be said with reasonable assurance" that at the time the contract was made the parties contemplated the claimed inconvenience.  The party seeking to avoid a forum selection clause also must show that a trial in the specified forum "will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court." 

The Fourth Circuit found the clause to be valid, ruling that the claimed burden of a trial in Amsterdam should have been foreseeable when Plaintiff accepted the benefits of the agreement, and that she had presumably been compensated for those burdens.

The North Carolina Business Court rejected an attack earlier this year on a forum selection clause specifying litigation in the Commercial Court of Paris, in Speedway Motorsports International Ltd. v. Bronwen Energy Trading, Ltd., 2009 NCBC 3 (N.C. Super. Ct., February 18, 2009).  The party objecting to the application of that clause said that litigation in France would deprive it "of the full scope of discovery that would otherwise be available in" the North Carolina Courts. 

In the Speedway case, Judge Diaz held that there was "no authority . . . for the proposition that merely requiring a party to litigate in a forum with substantially different discovery rules than those applied in a U.S. court is sufficient cause to override the parties' choice of forum."  He ruled that the party forced to fight its claim in France was neither "deprive[d] of its day in court" nor "without an adequate remedy."

Another issue in the Fourth Circuit decision today concerned whether Plaintiff, a professional tennis player who was a minor when the contract with Adidas was signed by her agent, had acted promptly enough to disaffirm the agreement after she attained the age of majority.  The Fourth Circuit said that she hadn't, because her agent had accepted payments from Adidas after she turned 18, and she didn't inform Adidas that she was voiding the contract until 32 months after her 18th birthday.

The issue in A-1 was Plaintiff's calculation of a bonus due one of the Defendants, which was to be based on Plaintiff's gross profits. The Plaintiff's consolidated financial statements had eliminated a significant receivable due from a subsidiary. The Defendant asserted that his bonus would have been substantially higher with the inclusion of that receivable in the gross profit calculation, and brought a claim under the North Carolina Wage and Hour Act.

The Plaintiff moved for summary judgment, relying on an affidavit from the accountant who had prepared the financial statements on which the calculation was based.  The Defendant objected to what it termed "improper opinion testimony," and argued that the accountant had never been designated as an expert witness.

Judge Diaz rejected the argument that the accountant was an undisclosed expert who shouldn't be allowed to testify, holding:  

The record shows that Plaintiff’s accountant personally prepared the relevant financial statements and arrived at the $5,000.00 bonus amount that A-1 paid Blount. As a result, Plaintiff’s accountant is not an expert witness, but is instead a fact witness, albeit one with specialized knowledge in accounting. Cf. Turner v. Duke University, 325 N.C. 152, 168, 381 S.E.2d 706, 716 (1989) (“Where a doctor is or was the [patient’s] treating physician and is called to testify not about the standard of the [patient’s] care but rather about the [patient’s] treatment and the doctor’s choice of surgical procedures, he is not an expert witness.”).

The Court furthermore didn't accept the argument that the consolidated financial statements had improperly excluded the intercompany receivable:

the accounting methodology used by Plaintiff's accountant to generate the consolidated financial statements . . . is entirely consistent with GAAP.  When a parent company prepares consolidated financial statements, GAAP requires the parent to eliminate certain transactions among the parent and its affiliates, including accounts receivable, to avoid counting revenue twice and to accurately portray the operating results of affiliated companies as a single economic unit. 

Plaintiff's motion for summary judgment was granted. 

There have been two other opinions from the Business Court in the A-1 case, one involving a claim for reformation of the asset purchase agreement at issue in the case; and the other denying a request for a preliminary injunction involving title to a motor vehicle.

Brief in Support of Motion for Partial Summary Judgment

Brief in Opposition to Motion for Partial Summary Judgment

Reply Brief in Support of Motion for Partial Summary Judgment

The photo at the top is from roboppy's photostream on Flickr.

If you have privileged documents, you shouldn't share them with your wife and daughter.  You should also be careful with technology, which lets you do "dumb things".  Those are the lessons of Judge Tennille's very short opinion last week in Crockett Capital Corp. v. Inland American Winston Hotels, Inc.

An executive of the Defendant had sent his wife and daughter emails which included attorney-client communications.  The reason for sending the emails to his wife was to "vent frustration" about work-related matters.  The daughter was apparently asked for grammatical advice.

The Plaintiff said that the privilege had been waived by this intentional production.  Judge Tennille determined that the privilege had not been waived, emphasizing that his decision was based on the specific circumstances before him.  Here's what he said:

Technology multiplies the opportunities for man to do dumb things and increases the speed at which he can do them.

Venting one’s frustrations about work to a spouse is an everyday occurrence.  Attaching a string of emails containing attorney client information to an email to a person’s spouse venting one’s frustration at work is just not smart. The Court does not believe it constitutes a waiver of the attorney client privilege under these circumstances.

Using a child as a grammarian with the result that attorney client privileged information is included in emails to her is just not smart. The Court does not believe it constitutes a waiver of the attorney client privilege under these circumstances.

There isn't much discussion in the opinion, so if you are looking for some law on the issue of privilege waiver, you might want to look at the briefs.  The principal brief was filed under seal, but the brief on why privilege hadn't been waived and the reply brief in support of the waiver argument are available.

I don't think Bart Simpson would carelessly share privileged documents.  Homer?  Probably.

The claim made by Plaintiff was that one of the Defendants had used his position as an officer of one of the Plaintiff's companies to misappropriate over $1 million in cash and inventory.  The Defendants had disputed the allegations.

Judge Diaz observed that the bulk of the damages sought by Plaintiff were lost profits, and that Plaintiff had not shown that it would be able to prove those with the required "reasonable certainty."  He held:

the Court notes that TAI is a relatively new enterprise, having been formed in 2005, and the record is silent on Plaintiff’s history of profitability, if any. And while North Carolina law has no per se rule precluding an award of damages for lost profits here a business has no recent record of profitability, such businesses, like established businesses, must prove such damages with reasonable certainty. . . .  Plaintiff’s evidence here falls short of proving its lost revenue or profits with reasonable certainty, and thus, Plaintiff has not shown a likelihood of success on the merits of a substantial portion of its claim.  

The Court concluded, in denying the Motion::

At bottom, this is a case where Plaintiff seeks money damages. Plaintiff is asking the Court to issue a preliminary injunction to prevent the Hall Defendants from rendering a monetary judgment against them unenforceable. Plaintiff, however, has not sustained its burden to show that it will suffer irreparable injury should the injunction not issue. Specifically, there is no evidence in this record that the Hall Defendants have fraudulently transferred assets (whether those purportedly belonging to Plaintiff or their own) to a third party or taken any other action to thwart Plaintiff’s ability to recover damages should it prevail on the claims.

Brief in Support of Motion for Preliminary Injunction

Brief in Opposition to Motion for Preliminary Injunction

The Defendants, who apparently had second thoughts about their deal, refused to make the $425,000 payment called for by the agreement.  They took the position that their payment was a condition precedent to the effectiveness of the settlement agreement, and that their failure to comply with the condition precedent resulted in the entire agreement being void.

The Fourth Circuit rejected that argument in an unpublished opinion, finding it to be "incomprehensible."  The Court drew a distinction between promises and conditions precedent, ruling that the obligation to make the settlement payment was a binding promise on behalf of the Defendants, not a condition precedent.  When the Defendants failed to pay, they breached their promise, and the District Court had properly entered judgment against them in the full amount of the settlement, plus interest.

The Court further observed that the Defendants were not entitled to refuse to make the payment and to then benefit from their own failure to satisfy the condition.  It held, relying on a line of North Carolina cases, that "one who prevents the performance of a condition, or makes it impossible by his own act, will not be permitted to take advantage of the nonperformance."

In the personal jurisdiction case, the Court reversed the Court of Appeals in an alienation of affections case, Brown v. Ellis.  The Court ruled that there was jurisdiction over the out-of-state defendant in North Carolina even though the defendant had "never set foot in the State of North Carolina."  The Supreme Court based jurisdiction on defendant's daily phone calls and emails to the plaintiff's wife.  The Supreme Court didn't accept defendant's protestations that these extensive communications were "the normal pleasantries associated with a friendly working relationship."

The deposition case, Rodriguez-Carias v. Nelson's Auto Salvage & Towing Service, Inc., resulted in an unfortunate 3-3 split.  Rodriguez-Carias involved the practical issue whether the court reporter for a telephone deposition needs to be in the physical presence of the deponent.  The Court of Appeals decision ruled that it was sufficient for the court reporter to be in the "vocal and aural presence" of the deponent, not his or her physical presence.  The effect of a 3-3 decision is that the Court of Appeals ruling stands, but without precedential effect.  The fact that there were three members of the Court willing to reverse this decision makes it risky to take depositions without having the court reporter at the other end of the phone line, with the deponent.

The Whistleblower decision, Helm v. Appalachian State University, reversed the Court of Appeals. Plaintiff was a Vice Chancellor at Appalachian who claimed she was fired for objecting to the issuance of a $10,000 check from the University Endowment to obtain an option to buy property for $475,000.  Plaintiff complained that there weren't funds available in her budget to exercise the option and she had blown the whistle about a "misappropriation of funds." The Court of Appeals majority affirmed the dismissal of her case, saying that the option had an "inherent, intrinsic value," and thus there had been no misappropriation to report.  The Supreme Court adopted Judge Calabria's dissent in the Court of Appeals, in which she said "while the enforceable right to purchase does have theoretical value, its value under the facts as alleged by the plaintiff does not justify the expenditure of $10,000 from the public funds."

You can find the rest of today's decisions from the Supreme Court here.

The bribes -- determined to be such by the jury -- included cash payments, use of a BMW, and tickets to all manner of entertainment and sporting events.  Those included everything from tickets to the circus, tickets for Broadway shows, and World Series tickets (2004, Cardinals vs. the Red Sox).

The payments were made to induce the Defendant to hire Plaintiff to participate in a lucrative advertising program for Defendant's client.  The client learned of the bribes, and conducted a confidential attorneys' eyes only investigation which confirmed the payments.  The employee was then fired by the Defendant.  Shortly after that, the Defendant terminated its contract with the Plaintiff, which Plaintiff contended had been represented to be non-cancelable.

The Plaintiff sued, making a variety of claims.  All of its claims were dismissed in pretrial rulings by the Business Court except for an unfair and deceptive practices claim.  The jury found for the Plaintiff.  It also found that the Plaintiff had bribed the employee, but that the employer had known about the bribes.  The Business Court entered judgment on the jury's verdict of more than a million dollars.  On appeal, the Defendant contended that the Plaintiff's "commercial bribery" barred its claim.  It said "since every transaction that [the Plaintiff] performed for [the Defendant] was spawned from commercial bribery, [Plaintiff] cannot recover."

The Court of Appeals disagreed.  It held that "commercial bribery has not been recognized as a defense, complete or otherwise, to unfair and deceptive trade practices in North Carolina."  It distinguished a New Jersey decision, Jaclyn, Inc. v. Edison Bros. Stores, Inc., 406 A.2d 474 (N.J. Super. 1979), in which the Court had dismissed a contract claim based on the plaintiff's bribery of an agent of the defendant who had entered into the contract in question.

The Court held that unfair and deceptive practice claims "are not subject to the same defenses as traditional contract and tort claims."  Judge Elmore ruled that "not only is the defendant's intent irrelevant when evaluating a UDTP claim, the plaintiff's intent and conduct is also irrelevant."  He that it had been error even to charge the jury on whether commercial bribery had occurred, but that the error had not affected the outcome.

This case spawned four rulings by the Business Court: an opinion on the discoverability of a settlement agreement, an opinion refusing leave to the defendant to amend its counterclaim because of undue delay (which was also affirmed by the Court of Appeals), an opinion dismissing Plaintiff's claim for damages based on diminution in value of its business (also affirmed by the Court of Appeals), and an opinion denying the successful Plaintiff's motion for attorneys' fees (also affirmed).

Start from square one: The District Court has jurisdiction over matters involving $10,000 or less and the Superior Court has jurisdiction over cases exceeding $10,000 (per G.S. §7A-243).  Since the Business Court is a part of the Superior Court division of the trial courts, a case that falls under District Court jurisdiction can't be designated to the Business Court because there isn't sufficient amount in controversy to qualify for Superior Court jurisdiction.

But it happens that cases are filed in District Court which involve more than $10,000.  Or there are District Court cases in which counterclaims are made for more than that amount and which properly belong in Superior Court.  Or there might be a case filed in District Court asking for injunctive relief against a statute, for which Superior Court is the correct division under G.S. §7A-245.  In all of these circumstances, there's a mechanism in G.S. §7A-258 for transferring a case from District Court to Superior Court.

So let's say you are representing the Defendant in a District Court case which wasn't properly filed there because it involves more than $10,000, or in which you are going to counterclaim for more than $10,000, and the issues in the case otherwise make it appropriate for mandatory jurisdiction in the Business Court   Can you jump the case straight from District Court to the Business Court?

The answer is no.  In Bailey Pointe, the Plaintiff sought to designate the District Court case it had filed to the Business Court.  The designation was based on counterclaims raising corporate governance claims and seeking in excess of $10,000 in damages.  Judge Tennille held that G.S. §7A-45.4(b) says that cases are designated "by filing a Notice of Designation in the Superior Court in which the action has been filed. . . ."  So, he held, "only actions filed in or transferred to Superior Court may seek mandatory complex business designation."

In other words, you can't hopscotch directly from District Court to Business Court.  Judge Tennille denied the Notice of Designation by the Plaintiff in Bailey Pointe, and held that the only route to the Business Court for that Plaintiff was a motion to the Chief District Court Judge, per Rule 2.1 of the General Rules of Practice, to recommend that the case be designated as a complex business case. 

Plaintiff's failure to timely respond to discovery, standing alone, might not have warranted dismissal, but It had been preceded by a string of failures to meet deadlines. 

Those began with a failure to file the Case Management Report per Rule 17, continued with a failure to respond to a counterclaim resulting in an entry of default, then a lack of compliance with the deadlines in the Case Management Order for mediator selection and cost estimates, and culminated in Plaintiff no-showing at a hearing regarding the missed deadlines. 

The failure to respond to discovery was then the straw that broke the camel's back. The due date came and went for responses to interrogatories and document requests.  Defendant's counsel followed up and asked for responses, but Plaintiff's counsel responded that he had "been traveling and [was] swamped."  The responses finally came about two months after they were due, and only after more prodding from Defendant's counsel. 

Judge Diaz observed that Rule 37 provides for a wide range of sanctions for a party who doesn't respond at all to interrogatories, including "[a]n order striking out pleadings . . . or dismissing the action or proceeding."  He said that "the Court may impose drastic sanctions for discovery violations, including dismissal of claims with prejudice when it is 'just' to do so," and that it wasn't necessary for there first to be an order directing compliance.

Plaintiff's counsel said at the Motion to Compel hearing that his inability to respond "was the result of factors beyond his client's control."  The Court held that it was true that "if a party is unable to answer discovery requests because of circumstances beyond its control, an answer cannot be compelled," but said that there was no evidence presented as to the reason that Plaintiff was unable to respond.

The Court held that "Plaintiff has demonstrated (time and again) an unwillingness to give proper attention to litigation that it initiated. In light of Plaintiff’s most recent transgression, and because the fact discovery deadline has now expired, the Court concludes, in its discretion and after considering lesser sanctions, that the appropriate sanction is dismissal of Plaintiff’s Amended Complaint with prejudice." 

The COA decision, Blitz v. Agean, Inc., involved the Telephone Consumer Protection Act.  That federal legislation was enacted 18 years ago, when fax machines were a routine means of communication.  The TCPA outlawed the annoying practice of sending unsolicited fax advertisements.  It imposed penalties of $500 per unsolicited fax, allowed for attorneys' fees, and immediately attracted class action lawyer like moths to a flame.

The Blitz case was a purported class action on behalf of 900 individuals who had received multiple faxes from the defendant, a restaurant operator in Durham.  The Business Court had dismissed the case in a 2007 ruling, holding that individual inquiries of whether the recipients had consented to the receipt of the faxes, and whether there was a "established business relationship" between the faxer and the faxees, would predominate over the common issues.  Judge Diaz also ruled that the claims were better brought in small claims court.

The Court of Appeals reversed, ruling that the need to determine consent wasn't determinative, and that the decision on whether a TCPA class action should proceed should be made on a case by case basis.  On the point about small claims court, the appellate court said that there were circumstances under which a class member's claims might exceed the $5,000 limit of small claims jurisdiction, and that the small claims court didn't have the power to enter the injunctive relief permitted under the TCPA and requested by the Plaintiff.

The other fax related ruling last week, Estwanik v. Gudeman, was a Business Court decision on a completely different subject.  The issue was a receiver's application for fees.  The application included a charge of $301 for faxes, which was attributable to 301 pages faxed by the receiver's counsel to a lawyer in response to three subpoenas. 

The receiver's counsel had asked to send the 301 pages by email, but the lawyer requesting them had insisted on getting them via fax, the same day that the subpoenas were served.  The receiver's law firm apparently charged its standard $1.00 per page fax charge. Judge Diaz rejected the $1.00 per page fee, said it was "exorbitant," and ruled that the receiver should collect it from the attorney who sent the subpoena.

Can a lawyer charge $1.00 per page for a fax?  Maybe.  This type of charge is covered in ABA Formal Opinion 93-379 (titled Billing for Professional Fees, Disbursements and Other Expenses).  The Opinion doesn't address fax charges specifically, but says the following about the allowable charge for copying by a law firm: "no more than the direct cost associated with the service (i.e., the actual cost of making a copy on the photocopy machine) plus a reasonable allocation of overhead expenses directly associated with the provision of the service (.e., the salary of a photocopy machine operator).

The ABA Opinion goes on to say "it is impermissible for a lawyer to create an additional source of profit for the law firm beyond that which is contained in the provision of professional services themselves.  The lawyer's stock in trade is the sale of legal services, not photocopy paper, tuna fish sandwiches, computer time or messenger services."

The Plaintiff claimed that the Defendant directors had diverted money through "a web of sham entities" for their own personal benefit during a time when the corporation faced "deepening insolvency" and that they were liable to it under a theory of constructive fraud.

Here's how Judge Diaz described North Carolina law on the duties of directors of a corporation in financial difficulty:

In certain circumstances. . . corporate directors may owe a fiduciary duty to creditors of the corporation. The circumstances under which a director’s fiduciary obligations extend to creditors have been limited to those situations 'amounting to a "winding up" or dissolution of the corporation.'

'Once the fiduciary duty arises, a director must treat all creditors of the same class equally by making any payments to such creditors on a pro rata basis.'

Where a creditor can show constructive fraud by a director at a time when the corporation 'is in declining circumstances and verging on insolvency,' or 'where such facts establish circumstances that amount "practically to a dissolution,"' the claim is one that 'belongs to the creditor and not the corporation.'

Op. ¶¶42-45.

The Court denied the Defendants' motion to dismiss the Plaintiff's claim for constructive fraud.  It also rejected arguments that the claim had been settled as a part of the corporation's bankruptcy proceeding, ruling that "where . . . the claim arises from a purported breach of a fiduciary duty owed by a corporate director to a creditor, and where the claim, therefore, properly belongs to the creditor and not the corporation, 'it is not a part of the bankruptcy estate, and the trustee in bankruptcy does not have authority to bring [or settle the] claim.'"  

In another part of the Opinion, the Court granted a motion to dismiss a fraud claim because it failed to comply with Rule 9(b).  The Complaint, which asserted the fraud claim against a group of individuals, did not identify the specific person who made the alleged misrepresentations.  The Court allowed leave to amend.

Why was the Plaintiff Health Management Associates, Inc.,  taking the position that the Court should disregard the corporate separateness between it and its wholly owned subsidiary, Louisburg H.M.A., Inc?

The parent and the subsidiary had settled a medical malpractice case brought against them and the doctors that had been involved in a surgical procedure that went very badly.  The surgery had taken place at the facility operated by the subsidiary.  The surgeon and his practice refused to participate in the settlement, but the parent (not the subsidiary) paid the settlement and obtained a release for everyone involved in the procedure, including the surgeon.

The parent and the subsidiary then sued the surgeon and his practice for contribution.  The problem for the parent was that it was simply the owner of the allegedly negligent facility operated by its subsidiary, and it therefore wasn't a joint tortfeasor entitled to contribution.  So the parent argued that the Court should pierce its own corporate veil and find it the alter ego of its subsidiary, which had been alleged to be a joint tortfeasor.

But the parent had taken a completely different position in the underlying malpractice lawsuit, responding to discovery and asserting that its subsidiary was not a "mere instrumentality," and that it did not dominate its subsidiary's finances or policies.  It had also taken the position that the subsidiary was adequately capitalized and did have its own independent corporate identity.  

Judge Jolly, relying on the doctrine of judicial estoppel, held that:

[e]ven if there was evidence of record that would support an inference that the corporate veil between HMA and Louisburg HMA could be pierced, under the facts of this action, the Plaintiffs are estopped from making such an argument by virtue of their knowingly having taken diametrically opposed positions on the corporate veil issues in the [earlier lawsuit] and in the instant action.

The Court rejected an alternative theory posited by the parent which was that it should be treated as an insurer subrogated to the claim of its "insured," the subsidiary.  Relying on N.C. Gen. Stat. §58-28-15, the Court held that an unlicensed insurance carrier was not entitled to maintain an action in the Courts of North Carolina. 

The car at the top?  It's a 1948 Tucker.  The prototype was built without a reverse gear.

Here's a link to the only brief available:

Brief in Opposition to Motion for Summary Judgment

By a little bit of direction, I mean exactly that.  It's only this tidbit from the last paragraph of the Order, where Judge Tennille said:

Attached hereto is an opinion from Magistrate Judge Andrew Peak in William A. Gross Construction Association, Inc. v. American Manufacturers Mutual Insurance Company.  It contains a message for counsel. 

What's the message of American Manufacturers?  Well, that case involved a dispute between parties about how a keyword search of an email database in the hands of a non-party ought to be done.  The parties disagreed on what words ought to be searched for.  One wanted narrow terms, the other broad terms, and no one had bothered to talk to the party that held the emails about what would make sense.

Instead of making any deliberate effort to resolve the issue, the parties dropped the problem in Judge Peck's lap.  He wasn't happy about being the decider, noting that he was "no keyword expert."  He said:

This case is just the latest example of lawyers designing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails.  Prior decisions . . . have warned counsel of this problem, but the message has not gotten through to the Bar in this District.

Judge Peck said he was delivering a "wake-up call to the Bar."  He said that "[i]t is time that the Bar -- even those lawyers who did not come of age in the computer era -- understand" what it takes to craft an appropriate keyword search.  He stressed the "need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms . . . to be used to produce emails or other electronically stored information."

So, that's the "message" conveyed today by Hill v. StubHub. Judge Tennille told the parties that they had twenty days "to meet and confer and agree upon a word search that is carefully crafted with the appropriate keywords determined after consultation with StubHub's ESI custodians."  He also ordered the parties to "address quality control and testing in their discussions and, if the volume of documents is excessive, use of appropriate sampling methodologies."

[Update: It's actually nineteen new cases, I added the Napco case, which I had overlooked, after this post was first published.]

American Acquisition, LLC v. Goldman (Mecklenburg)(Diaz): claims involving dissolution of general partnership, and general partner's refusal to distribute proceeds from sale of partnership asset based on his position that funds may be necessary to defend against potential claims.

Boone v. American Benefit Concepts, Inc. (Guilford)(Tennille): Claim by investors that defendant brokers violated the North Carolina Securities Act by inducing them to invest in a company later placed into SEC receivership (Diversified Lending Group, Inc.).

Bradley v. Bradley Farms, Inc. (Halifax)(Tennille): shareholder dispute alleging misappropriation of funds, claims for breach of fiduciary duty and dissolution.

Cartridge Limited v. JRiDevelopment Group, LLC (Alamance)(Tennille): defendants, formerly associated with plaintiff, are alleged to have stolen Plaintiff's technology for use and sale by a competing entity.

Fitte v. Rutter (Guilford)(Tennille):dispute between members of an LLC, plaintiff alleges that he has been improperly excluded from participating in the management of the LLC.

Henderson v. Manuel (Guilford)(Tennille): Claims for breach of fiduciary duty and self-dealing against member and partner in multiple business entities.

Howard Perry & Walston Realty, Inc. v. Campbell (Wake)(Jolly): Allegations of theft of trade secrets and violation of non-compete agreements against former employees of real estate brokerage firm.

InSource Business Strategies, Inc. v. Bell (Iredell)(Diaz): claims that member/manager allegedly failed to provide truthful and accurate information about the financial condition of the Plaintiffs, and improperly obtained investment in the corporation without proper board approval and usurped corporate opportunities.  Also issues of validity of board approval of asset purchase agreement due to deficiencies in notice and lack of quorum.

Mast v. Edward D. Jones & Co. (Johnston)(Jolly) claim against securities broker involving unanticipated tax consequences from rollover of insurance policies.

Napco, Inc. v. PBM Graphics, Inc. (Alleghany)(Diaz): alleged misappropriation of trade secrets involving process for manufacture of sports memorabilia cards, breach of confidentiality agreement.

Pineway Partners, LLC v. Holt Asia, LLC (Alamance)(Tennille): claims for wrongful dissolution of an LLC and breach of fiduciary duty.

Port City Java, Inc. v. Reynolds and Sutton v. Reynolds (New Hanover)(Jolly): interpretation of shareholders' agreement, counterclaims regarding breach of fiduciary duty and violation of the Stored Communications Act and the North Carolina Computer Crimes Act.

Queen City Television Services Co. v. Player (Mecklenburg)(Tennille): the Third Party Complaint seeks dissolution of a corporation based on alleged breaches of fiduciary duty.

St. George Technology, Inc. v. Watkins (New Hanover)(Jolly): alleged diversions of funds by former president of company, claims for breach of fiduciary duty, fraud, NC RICO, and unfair and deceptive practices.  Defendant claims he was released from such claims when Plaintiff purchased his stock in the company.

Tai Sports, Inc. v. Hall (Gaston)(Diaz):Claim by sports apparel company for injunctive relief to "freeze" corporate assets or appoint receivers, for accounting, for declaratory judgment concerning the ownership, use and possession of corporate assets, and for breach of cororate fiduciary duties.

Tedder v. Tedder (Dare)(Jolly): shareholder dispute (between brothers) alleging misconduct by shareholder and officer, including claims for conversion, "bogus expense reports," and excess compensation. 

Triad Group, Inc. v. Wachopvia Bank, N.A. (Yadkin)(Tennille): securities claims regarding bonds issued by plaintiff and sold by Wachovia and also claims involving an interest rate swap agreement.

Wefald v. Wake Heart and Vascular Associates, P.A. (Johnston)(Tennille):lawsuit by cardiologist forced out of medical practice, issues whether termination was "for cause" and right of corporation to redeem former employee's shares.