North Carolina Business Litigation Report

State of North Carolina ex rel. Cooper v. McClure, 2004 NCBC 8 (N.C. Super. Ct. Dec. 14, 2004)(Tennille)

Plaintiff, a state agency, charged that the defendants had engaged in a conspiracy to fix prices for environmental consulting work. The defendants claimed that they were entitled to immunity under the Noerr-Pennington doctrine. The Court rejected this argument, characterizing defendants' supposedly protected conduct as involving the submission of false data for the purpose of inflating reimbursement rates. It held that the defendants were using anticompetitive means for the purpose of economic gain, which was not entitled to immunity under Noerr-Pennington or as protected free speech.

The Court further held, in a case of first impression, that some of the defendants were immune from liability under the North Carolina Nonprofit Corporation Act, which provides that directors of nonprofits are immune individually from civil liability for monetary damages, while others were not. Directors of non profits cannot act in bad faith, or engage in intentional misconduct for their own personal gain and then claim immunity under the Act.

The Court also discussed state action immunity and found that it did not apply, and also rejected the filed rate doctrine as a defense. Nor did intracorporate immunity apply, because not all of the persons involved were employed by the same entity.

In a small victory for the defendants, however, the Court dismissed the unfair and deceptive practice claims, determining that the services provided by the defendants were already extensively regulated, and therefore not the type of "regular, day to day" activities that the statute was meant to cover; and also dismissed the damages claims under N.C.G.S. §133-28.

Full Opinion

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Mack Sperling
Brooks Pierce, LLP
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