The attorney for the Plaintiff in Preiss v. Wine and Design Franchise, LLC, 2018 NCBC 53, apparently didn’t bother to read the Business Court’s Rules on what must be done in order to file a document under seal. That lawyer failed on three separate occasions to comply with the Court’s procedures for sealing a
Watching The Court
Another NC Business Court Appeal Bites The Dust
I guess that every North Carolina lawyer doesn’t know that since October 2014, appeals of final decisions by the NC Business Court go directly to the NC Supreme Court instead of to the NC Court of Appeals.
You didn’t know that? Well you are not alone. The Notice of Appeal of Judge Gale’s Opinion in…
NC Business Court: Choice Of Law Dooms Trade Secrets Claim
What choice of law rule applies to trade secrets claims? No North Carolina appellate court has answered that question, but Judge Robinson of the NC Business Court stepped into that breach in his Opinion in SciGrip v. Osae, 2018 NCBC 10.
The Plaintiff certainly didn’t like the answer, as it resulted in the dismissal…
A Case Doesn’t Have To Be “Complex” To Be Designated To The NC Business Court
The North Carolina Business Court sent a message to all lawyers practicing in the Business Court last week in Barclift v. Martin, 2018 NCBC 5. Judge Gale said in the ruling that:
The Court is publishing this Order & Opinion to provide guidance to the practicing bar on the statutory process for designating
You Don’t Want Your Confidentiality Agreement Evaluated Like A Non-Compete Agreement
You probably think that you can avoid having a confidentiality agreement struck down by an NC court because it doesn’t have to meet the stricter standard applied to non-compete agreements.
The NC Business Court’s Opinion this month in Duo-Fast Carolinas,, Inc. v. Scott’s Hill Hardware & Supply Co., 2018 NCBC 2 may get you…
NC Business Court On Conversion Of Electronic Data
The Defendant in SQL Sentry, LLC v. ApexSQL, LLC, 2017 NCBC 105 was alleged to have copied the Plaintiff’s software program which was designed to make "resource intensive T-SQL queries. . . in the Microsoft enterprise database platform, SQL Server." Op. Par. 5. (Ask your IT person).
Adding insult to injury, the Defendant marketed the…
Nc Business Court Stretches NCRCP 14 to Allow New Third Party Defendants To Be Added Years After The Commencement Of Litigation
The North Carolina Rules of Civil Procedure are fairly identical to the Federal Rules of Civil Procedure. In fact, I am hard pressed to think of any substantial differences.
But the lack of one word contained in FRCP 14 — "original" — but omitted from the parallel NC Rule made all the difference in the…
Incorporating By Reference In Your NC Business Court Brief? Don’t Do It!
If you have ever drafted a Complaint, you have undoubtedly used the words that your previous numbered allegations were "incorporated by reference." It’s a way of not having to repeat yourself. That shortcut is specifically allowed by Rule 10(c) of the North Carolina Rules of Civil Procedure, which says that: "Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion in the action."
If you have a case where you have filed multiple briefs, you might "incorporate by reference" arguments you made in an earlier brief. You probably haven’t thought twice about that.
Well, Judge McGuire of the NC Business Court has thought about it, and he doesn’t like it. In American Air Filter Co. v. Price, 2017 NCBC 54, he ruled that the use of incorporation by reference of earlier briefs could be a violation of the Rules of the NC Business Court and that it could result in the Court refusing to consider the referenced argument.
How could that be, you are wondering, as there is no mention (or any prohibition) of this practice in the Court’s rules. The reason is that the inclusion of the pages of a previously filed brief might push you over the page limitations contained in the Business Court Rules for briefs. The Rules require the lawyer for a party filing a brief to limit her words to 7,500, and to "include a certificate by the attorney or party that the brief complies with this rule." BCR 7.8.
Judge McGuire said in the American Filter case that:
The General Rules of Practice and Procedure for the North Carolina Business Court (“BCR”) do not expressly permit parties to incorporate previously-filed briefs and documents outside of the brief at issue, at least not to supplement the substantive text of the brief at issue. In fact, BCR 7.8 provides strict word limits on briefs submitted to this Court. Even if incorporation of previous briefs were allowable, it appears a party incorporating a previously-filed brief would have to certify under BCR 7.8 that the brief and the incorporated brief did not exceed the word limits. Defendants have not done so in this case. As a result, the Court declines to consider Defendants’ arguments and authorities regarding choice of law issues contained in other filings with the Court.
Op. at n.2.
Continue Reading Incorporating By Reference In Your NC Business Court Brief? Don’t Do It!
When You Settle A Case, Don’t “Over-Release” The Defendant
The parties to Security Camera Warehouse, Inc. v. Bowman, 2017 NCBC 38, had been adverse to each other in a previous lawsuit (not in the Business Court), which they settled. Security Camera released Bowman, one of its former owners, from all claims in that settlement. But during the settlement negotiations which resulted in…
It Doesn’t Take Magic Words To Revoke An Offer
The lawyers in Baker v. Bowden, 2017 NCBC 30, decided this week by Judge Robinson, were negotiating a settlement agreement by email. The Plaintiff thought that it had a deal. When the Defendant balked, the Plaintiff moved the Business Court to enforce the settlement.
The Plaintiff, whose lawyer had sent an email to…