In modern business litigation in North Carolina, it is increasingly rare to see a complaint that does not contain a claim under G.S. § 75-1.1 for unfair or deceptive trade practices. Courts that have prevented the statute from having almost unlimited application have done so by determining that particular activities are not "in or affecting commerce." The Supreme Court continued that pattern last week, holding that a dispute between partners did not trigger Chapter 75 liability.
In White v. Thompson, partners in a Bladen County fabrication and welding business enjoyed initial success, but "eventually fell victim to disagreements and infighting among the partners." Two partners filed suit alleging that the third partner started a competing business that diverted the business of the original partnership. The plaintiffs asserted that their partner’s conduct constituted breach of fiduciary duty and unfair and deceptive trade practices. The jury found in plaintiffs’ favor and awarded judgment in the amount of $138,195 against the former partner. The trial court ruled that the acts were unfair and deceptive and trebled the judgment amount pursuant to G.S. § 75-16.
Both defendants appealed, and a divided panel of the Court of Appeals reversed as to the former partner. (Mack Sperling reported the Court of Appeals’ decision to you last May). Plaintiff appealed to the Supreme Court as of right based on the dissent in the Court of Appeals.
Justice Newby examined several prior Chapter 75 cases, including HAJMM Co. v. House of Raeford Farms, Inc., 328 N.C. 578, 403 S.E.2d 483 (1991). HAJMM established that securities transactions and other "capital-raising activities" are not "in or affecting commerce" so as to trigger Chapter 75 liability. The Court also cited Bhatti v. Buckland, 328 N.C. 240, 400 S.E.2d 440 (1991), for the proposition that the General Assembly intended to regulate conduct between market participants in two categories: "(1) interactions between businesses, and (2) interactions between businesses and consumers." (The Business Court has relied on the HAJMM line of cases to reject internally-generated Chapter 75 claims on several occasions, including J Freeman Floor Co., LLC v. Freeman (May 14, 2009) (unpublished) (usurpation of LLC opportunities, dismissed on basis of Court of Appeals’ opinion in White); Reid Pointe, LLC v. Stevens, 2008 NCBC 15, 2008 WL 3846174 (Aug. 18, 2008) (discharging LLC manager and demanding capital call); Kaplan v. O.K. Technologies, LLC (June 27, 2008) (unpublished) (dispute among LLC members), and Maurer v. Slickedit, Inc., 2005 NCBC 1, 2005 WL 1412496 (May 16, 2005) (dismissal as CEO, denial of board participation, and failure to take action to sell company)).
As the Supreme Court stated, Section 75-1.1 "is not focused on the internal conduct of individuals within a single market participant, that is, within a single business. . . . As a result, any unfair or deceptive conduct contained solely within a single business is not covered by the Act." Because the dispute was between partners, the Court affirmed the decision of the Court of Appeals reversing the trial court judgment.
Justice Hudson, joined by Justice Timmons-Goodson, dissented. She criticized the majority’s holding for relying on an outdated statement of purpose contained in a disco-era version of the statute. She also distinguished HAJMM on the grounds that the capital-raising activities in that case were not the core function of the company, whereas the disputes in White involved two partnerships competing for the business of a particular customer.
The bottom line is that, although White doesn’t exactly break new ground given that HAJMM has been the law of North Carolina for nearly 20 years, the Supreme Court declined the opportunity to retreat from HAJMM and expand the scope of the unfair and deceptive trade practices statute. The upside for North Carolina businesses is that treble damages should continue to be unavailable in internal corporate disputes.