State law antitrust claims in North Carolina seem to go together with unfair and deceptive trade practices claims (Chapter 75 claims) like peanut butter and jelly. Section 75-2 of the General Statutes says that “any act, contract, combination in the form of trust, or conspiracy in restraint of trade or commerce which violates the
About The Business Court
NC Business Court Rules On What Constitutes An “Arbitration”
You’ve probably never had to decide what it means to agree to arbitrate. Usually, there is a written provision that references the AAA Rules and includes a consent to AAA’s procedures as to the appointment of the arbitrator(s) and the conduct of the procedure. And most usually, the word "arbitration" is used in the…
Five Things You Should Know About Discovery Under The New Business Court Rules
There are new Rules for the NC Business Court In effect, as of January 1, 2017. If you have a case in the Business Court, or are expecting to designate a case there, you should look them over. They are applicable to all actions currently pending in the Business Court.
If you are not willing…
You Can Designate A Case To The NC Business Court Based On A Counterclaim, But It Can Be Tricky
The Business Court issued a significant Order last week, in Composite Fabrics of America, LLC v. Edge Structural Composites, Inc., 2016 NCBC 11 that Judge Gale said was an "opportunity to clarify. . .how the Court interprets the statutory mandates for designating a case as a mandatory complex business case" and that the Business…
Shake Up At The NC Business Court
Yesterday, Governor Pat McCrory announced that he has appointed Raleigh lawyer Greg McGuire as a Special Superior Court Judge for a term beginning October 13, 2014. The Governor’s plan is to designate Judge McGuire as a Special Superior Court Judge for Complex Business Cases at the beginning of the Judge’s term.
Judge McGuire will serve…
Mark Your Calendar For October 1st For Changes To The Business Court
If you litigate cases in the NC Business Court, mark your calendar for October 1st. That’s when the General Assembly’s "modernization" of the Business Court is due to become effective. The bill containing these changes was signed into law by Governor McCrory last week.
I wrote about the proposed bill back in May, and…
Appealing From Business Court Jurisdiction
Five Reasons You Should Care About The Rulings From The North Carolina Business Court Even Though The NC Court Of Appeals Says You Shouldn’t
I’m Back With An Update on Six Business Court Cases
i was gone (not fishin’) for the entire month of September. I haven’t written on this blog since August and nobody has noticed. Nobody has emailed me to ask where the heck I was or what I was doing or whether anything worth knowing had happened in the Business Court The lack of any outcry about my absence hurt my feelings, but I am back even so with this September update on cases in the Business Court decided during the missing September. They ran the gamut, from subpoenas to injunctions to how not to get an extension of time in the Business Court.
Standing to Object to Subpoenas to Non-Party Banks
In Deyton v. Estate of Kenneth C. Waters, Jr., 2011 NCBC 34, Judge Gale ruled that a party to a lawsuit lacked standing to object to a subpoena sent by the opposing party to a non-party bank. The Judge observed that "as a general proposition, parties to a lawsuit typically lack standing to challenge a subpoena issued to a third party."
Although there is an exception to that general rule if the objecting party has privilege in the documents requested, the moving party attempted to invoke, Judge Gale held there is not a privilege created in bank records by the Federal Right to Privacy Act of 1978 (12 U.S.C. §3402) or the North Carolina Financial Privacy Act (N.C. Gen. Stat. §53B-1, et seq.).
The rule might be different in federal court. Judge Gale stated in a footnote that an Eastern District of North Carolina court has said in United States v. Gordon, 247 F.R.D. 509, 510 (E.D.N.C. 2007) that "[a] small number of courts have held that a party’s claimed privilege with respect to his or her bank account records is sufficient to confer standing for purposes of challenging a subpoena."
In another case decided on the same day, Jones v. Sutherland, Judge Murphy, without the benefit of the Deyton discussion, considered an objection by a defendant to a subpoena to a non-party bank. He denied the motion to limit the subpoena even though it covered a nine-year "extensive time period," saying it was not "designed to be a fishing expedition."…
Continue Reading I’m Back With An Update on Six Business Court Cases
The Teacher Becomes the Student: Delaware Creates Its Own Business Court
The North Carolina Business Court was formed in 1995, largely inspired by Delaware’s Chancery Court. Our state recently returned the favor: Delaware now has created its own business court division of its Superior Court, sparked by the experiences of North Carolina and sixteen other states. Delaware’s new Complex Commercial Litigation Division (“CCLD”) shares some common…