A manager of an limited liability company may not, as a condition of the payment of consideration from a merger of the LLC, require that the member receiving the consideration execute a general release exonerating the manager and insiders from any misconduct. Holding the consideration "hostage" in exchange for such a release might amount to willful and
Unfair & Deceptive Practices
Cox v. Mitchell, February 6, 2008 (Tennille)(unpublished)
Paintiffs, who had suffered signficant losses on variable annuity policies sold to them by the defendant agents and insurance companies, asserted claims on multiple theories: breach of fiduciary duty, constructive fraud, unfair and deceptive practices, negligence, negligent misrepresentation, aiding and abetting breach of fiduciary duty, and unjust enrichment.
The Court dismissed some claims and ordered…
Braun v. Earthworks Lawn & Landscape, Inc., June 2007 (Diaz)(unpublished)
The Court denied Defendant’s motion to dismiss Plaintiff’s unfair and deceptive practices claim. It rejected the argument that the matter before the Court was simply a private dispute which did not implicate the consuming public or the general marketplace, and was therefore not "in commerce."
The Court held that the statute reaches "derivative claims arising…
Media Network, Inc. v. Long Haymes Carr, Inc., January 14, 2008 (Diaz)(unpublished)
The Court declined to award attorneys’ fees under the Unfair and Deceptive Practices Statute. It found that there was no unwarranted refusal to fully resolve the matter, the case involved unique issues of law, and the defendant had valid reasons to refuse to settle this matter and to litigate it to conclusion.
Wake County v. Hotels.Com, LP, 2007 NCBC 35 (N.C. Super. Ct. Nov. 19, 2007)(Diaz)
Four North Carolina counties sued hotels.com, alleging that the online aggregator purchased blocks of hotel rooms from hotel owners and only paid occupancy tax based on the price paid, even though they sold those rooms to lodgers for more than they had paid and even though the lodgers paid occupancy tax based upon the higher…
Battleground Veterinary Hospital, P.C. v. McGeough, 2007 NCBC 33 (N.C. Super. Ct. Oct. 19, 2007)(Diaz)
Defendant, a veterinarian, had signed a covenant not to compete with his former employer. He was, at the time, the sole shareholder, sole officer, and sole director of his employer, although the management of the company was controlled by an affiliated entity (VetCor). Defendant left the business and sold its stock, but before doing so…
Schlieper v. Johnson, 2007 NCBC 29 (N.C. Super. Ct. Aug. 31, 2007)(Tennille)
The Court held that the plaintiffs could not state a claim for fraud because neither of them took advantage of their opportunity to investigate the facts presented to them or to seek clarification, and there was no allegation that they had been denied the opportunity to investigate.
Plaintiffs also had no claim for unfair and…
State ex re. Long v. Custard, 2007 NCBC 26 (N.C. Super. Ct. Aug. 8, 2007)(Tennille)
The North Carolina Insurance Commissioner sued the defendants, shareholders of insurance carriers in liquidation, for breach of fiduciary duty. Defendants moved to dismiss, claiming that the claims were barred by the statute of limitations at the time of the filing of the petition for liquidation. The Court found the statute of limitations for breach of…
Lawrence v. UMLIC-Five Corp., 2007 NCBC 20 (N.C. Super. Ct. June 18, 2007)(Diaz)
The Court held that plaintiffs had failed to plead fraud with particularity, and dismissed their fraud claim pursuant to Rule 9(b) of the North Carolina Rules of Civil Procedure. Plaintiffs had attempted to plead both affirmative misrepresentations and fraud by concealment. With regard to the first, the Court held that the Complaint contained no specific allegations…
Latigo Investments II, LLC v. Waddell & Reed Financial, Inc., 2007 NCBC 17 (N.C. Super. Ct. June 8, 2007)(Diaz)
The only issue before the Court in this case was whether it should dismiss plaintiff’s unfair and deceptive practices claim. Plaintiffs had sought to raise money to recapitalize their business. Defendants had promised to provide the necessary capital, but then reneged on their commitment. Plaintifs suffered a loss as a result, and sued on a…