This past Friday, I went to a seminar put on by the Antitrust and Complex Business Disputes Law Section of the North Carolina Bar Association in an almost successful effort to finish getting my required CLE hours for 2014. This seminar included presentations from Business Court Chief Judge Gale as well as Business Court Judges Bledsoe, McGuire, and Jolly (Judge Jolly was presented with the Section’s Distinguished Service Award).
Sometimes there is real value in a seminar. One tip from Chief Judge Gale was worth the price of admission to this alone. The tip concerned an open question under the Business Court Modernization Act, which became effective on October 1, 2014.
The Modernization Act created a new class of cases which can be designated to the Business Court: Contract disputes where a corporation, partnership, or LLC is a party and where the amount in controversy is more than $1 million. It is the only type of case which requires the consent of all parties before it can be properly designated to the Business Court. G.S. §7A-45.4(a)(9)(d).
That consent requirement is hard to reconcile with the requirement that a Notice of Designation must be filed "contemporaneously with the filing of the complaint." G.S. §7A-45.4(d)(1).
How can you get the consent of the opposing party before the complaint is filed? What if you have no idea what lawyer is going to represent the defendant? And even after the filing, it may take weeks before counsel appears for the opposing party. If you wait for counsel to appear and consider your request that the case be designated, you may run afoul of the "contemporaneous" requirement.
So what’s the best course of action? Here’s where the tip from Judge Gale came in handy. He said that it is best not to wait, but to file the Notice of Designation immediately and request that it be held in abeyance pending a response from all other parties whether they will consent.
You would think that having all the Judges in one place last Friday would mean that no opinions would be issued by the Court that day, giving me a day off. But that was not the case. Judge Bledsoe delivered an opinion late Friday evening in Atkinson v. Lackey, 2015 NCBC 13, an interesting case involving the North Carolina Securities Act. Considering that the Judge probably didn’t get back to Charlotte from Cary until 6:30 p.m. at the earliest, it makes me wonder how late his clerks work. But I will write about that case tomorrow.