MVA Litigation

As home to the second largest banking center in the country, North Carolina has stepped onto the leading edge of innovation in the FinTech and InsurTech arenas. Late last year, Governor Cooper signed into law H624, the North Carolina Regulatory Sandbox Act of 2021  (“Sandbox Act”), which established what is known as a “regulatory sandbox” program to encourage innovation in the development of FinTech and InsurTech products to be offered to consumers. The regulatory sandbox program provides a modified regulatory environment in which companies can have licensing or other ...

This week Chief Justice Paul Newby announced that Grant Buckner will serve as the 17th Clerk of Court for the N.C. Supreme Court.  Buckner will assume the position next month when Amy Funderburk departs after serving four years in the role. This office will be a natural fit for Buckner, who has served the Supreme Court in various capacities since 2014. He is currently lead counsel for the Court’s Office of Administrative Counsel—an office he helped to establish. Among other things, Buckner has provided legal counsel to the Supreme Court, supported the Chief Justice’s Rules Advisory Commission, and assisted the Chief Justice in responding to the COVID-19 pandemic.

When state and local governments began issuing shutdown and stay-at-home orders a little over a year ago, it was difficult to fathom how long businesses would be struggling to operate within the boundaries of the unprecedented restrictions. The economy has been hit hard across the board, with the U.S. travel and hospitality industry suffering an estimated $1.1 trillion in direct and indirect losses in 2020, hospitals and healthcare systems losing at least $323 billion in 2020, the NCAA and the four major U.S. sports leagues losing at least $14.1 billion, many major retailers

For the last two months, the doors of millions of businesses and homes have been shuttered due to government mandated stay at home orders. Through it all, the individuals who have served on the front lines and in essential businesses have been required to risk exposure to the novel coronavirus (COVID-19) to continue to serve and keep those businesses running. Several North Carolina Representatives recently introduced H.B. 1057 - WC/COVID-19 Front Line Coverage/Funds, a bill that would amend North Carolina’s workers' compensation law by creating a rebuttable presumption that ...

At 5:00 p.m. on Monday, March 30, 2020, all citizens and businesses of North Carolina will join hundreds of millions of others in the United States that are subject to state or local government issued “stay-at-home” orders. On March 27, 2020, North Carolina Governor Roy Cooper issued a statewide stay-at-home order via Executive Order 121, “Stay-At-Home Order and Strategic Directions for North Carolina in Response to Increasing COVID-19 Cases” (Stay-At-Home Order”). The Governor stated several findings as the basis for the Order, including that 763 COVID-19 cases ...

Over the course of the last several years, we have seen movement at the state and local levels to revamp land use laws to prepare North Carolina for the future. Population growth in North Carolina has outpaced the nation during the last ten years and significant portions of that growth have been centered in Mecklenburg County and the Charlotte metropolitan area. Data reflects that North Carolina “ha[s] grown 8.5% compared to the nation’s 5.8%” since 2010. “From 2017 to 2018, the combined populations of Mecklenburg and Wake Counties grew by over 37,000 people, accounting for ...

It is an exciting time to be living in Charlotte, North Carolina, whether you have deep roots here or are a recent addition to our burgeoning city. North Carolina is experiencing rapid growth, adding nearly 309 people per day, and more than one third of the State’s growth by 2035 is projected to occur in Charlotte. This expansion is one of the key factors driving a focus on planning for the future of the City, with respect to both land use and transportation. The Charlotte City Council recently approved several zoning and land use initiatives spearheaded by the Department of Planning ...

NEW TRANSIT ORIENTED DEVELOPMENT REGULATIONS APPROVED, WHAT'S NEXT? (May 2019): The City of Charlotte has revamped its approach to Transit Oriented Development (TOD) as an initial step in the process of transforming the city into a liveable one that provides transportation options for all residents to access employment, services, and housing. As Chair of the Charlotte Unified Development Ordinance Advisory Committee (Advisory Committee), I was granted the opportunity to speak in support of the proposed TOD amendments at the public hearing in March 2019. After some revision

CHARLOTTE'S TOD REVISION IN FULL SWING WITH UPCOMING PUBLIC HEARING (Jan. 2019): The Charlotte Department of Planning, Design & Development (Planning Department) is facilitating the transformation of the city into “a vibrant LIVEABLE CITY where all residents of all income levels have convenient transportation access to employment[,] services and housing options.” The revision of Charlotte’s Transit Oriented Development (TOD) Districts is a key component of making that vision a reality and it is in full swing. A text amendment application is pending City Council review ...

DRILLING INTO CHARLOTTE'S TRANSIT ORIENTED DEVELOPMENT (TOD) - FINAL PUBLIC DRAFT AVAILABLE FOR REVIEW (Oct. 2018): Several months ago, Charlotte’s Planning Director Taiwo Jaiyeoba charted a new course for drafting Charlotte’s Unified Development Ordinance (CLTUDO). We are now undertaking the development of a comprehensive vision plan for the City, with hopes of substantial community engagement, while work on the CLTUDO drafting process continues simultaneously. Comprehensive Plan development kicked off September 2018 with a goal of draft review beginning ...

Class actions challenging corporate merger transactions often result in settlement agreements in which the only remedy obtained by the plaintiff class is the company defendants’ additional disclosure of information related to the merger. These “disclosure-only” settlements have proliferated in recent years, drawing criticism, in part, due to questions regarding the materiality of any additional disclosures that are obtained and the broad release of claims that the corporate defendants typically receive in exchange for the disclosures. The Delaware Chancery Court ...

INSIDE DEVELOPMENT OF THE CLTUDO: CASTING A NEW VISION FOR CHARLOTTE (May 18, 2018) - The Charlotte Mecklenburg Planning Department and the Charlotte Unified Development Ordinance (CLTUDO) Advisory Board have continued the meticulous work of transforming the City’s old zoning and land use ordinances into one unified ordinance, while making efforts to engage with stakeholders and the public to drive the process forward. Planning Director Jaiyeoba has discussed the need for the rewrite process to be “reset” to allow up to 18 months for the development of a new comprehensive ...

THE NEW DIRECTION OF CLTUDO DEVELOPMENT (March 23, 2018): The Charlotte-Mecklenburg Planning Department welcomed its new Director, Taiwo Jaiyeoba, in January 2018 and with him a new direction for facilitating the development of the Charlotte Unified Development Ordinance (CLTUDO). Under Director Jaiyeoba, the Advisory Committee will take a new direction to acknowledge the diverse interests of our stakeholders and to facilitate their involvement. As a complement outside of the Advisory Committee format, the Planning Department has scheduled several upcoming ...

CHARLOTTE IS MOVING ON TRANSIT-ORIENTED DEVELOPMENT (March 12, 2018): Charlotte, North Carolina is set to adopt zoning ordinance revisions to create new transit-oriented development (TOD) districts this summer. What is TOD and what does it mean for Charlotte planning, development and transportation? Read more.

COMPANIES DEFENDING CLASS ACTIONS IN NC HAVE NEW RIGHT TO APPEAL CLASS CERTIFICATION (June 4, 2017): The North Carolina legislature recently passed H.B. 239, over Gubernatorial veto, which gives company defendants the right to appeal trial court decisions allowing class certification directly to the North Carolina Supreme Court, securing a guaranteed avenue for early review of class action cases that was not available to companies in the North Carolina courts before and minimizing delays and costs associated with the two-step appellate process. Read more.

The North Carolina legislature recently passed H.B. 239, over Gubernatorial veto, which gives company defendants the right to appeal trial court decisions allowing class certification directly to the North Carolina Supreme Court. This law parts from North Carolina case law precedent and eliminates the need for the NC Supreme Court to invoke its supervisory authority to review a grant of class certification prior to resolution of a trial, as the court recently did in Fisher v. Flue-Cured Tobacco Coop. Stabilization Corp., 794 S.E.2d 699, 2016 N.C. LEXIS 1120, (NC Dec. 21, 2016 ...

A WINDOW VIEW INTO THE CLTUDO -- THE VISION & ANTICIPATED TIMELINE (May 22, 2017): The restructuring of Charlotte’s land use policies and zoning ordinance are among the most significant planning-related projects the City has undertaken. The impact of the CLTUDO will be long-lasting and will define in many ways the future of the City. The CLTUDO Advisory Board recently discussed an anticipated timeline for development of the CLTUDO and the Charlotte Place Types that will serve as a springboard for drafting the new ordinance. Read More for details.

Rolling into the new year, North Carolina attorneys are on notice that the ability to gain approval of class action settlements and related attorneys’ fees may become more difficult in some cases. In recent years, we have seen more class actions challenging corporate merger transactions and settlements in which the only remedy obtained by the plaintiff class was the company defendants’ additional disclosure of information related to the transaction. In exchange for the additional disclosures, the corporate defendants typically would receive a broad-based release of ...

NC DISCLOSURE-ONLY CLASS ACTION SETTLEMENTS & ATTORNEYS' FEES MAY FACE INCREASED SCRUTINY (Feb. 2, 2017): Rolling into the new year, North Carolina attorneys are on notice that the ability to gain approval of class action settlements and related attorneys’ fees may become more difficult in some cases. Read More

DEFEATED NC CLASS ACTION ULTIMATELY RESULTS IN VICTORY IN MAP ACT FIGHT AGAINST NCDOT (June 16, 2016): What began several years ago as a defeated attempt at a class action against the North Carolina Department of Transportation (NCDOT) ultimately resulted in a win plaintiff landowners in Kirby v. NCDOT (No. 56PA14-2). On June 10, 2016, the North Carolina Supreme Court held that the State’s restrictions placed on property owners under the Roadway Corridor Official Map Act (Map Act) constitute a taking of their property, requiring the state to compensate the landowners ...

What began several years ago as a defeated attempt at a class action against the North Carolina Department of Transportation (NCDOT) ultimately resulted in a win this month for plaintiff landowners in Kirby v. NCDOT (No. 56PA14-2). On June 10, 2016, the North Carolina Supreme Court held that the State's restrictions placed on property owners under the Roadway Corridor Official Map Act (Map Act) constitute a taking of their property, requiring the state to compensate the landowners appropriately. The case was brought originally as a putative class action on behalf of nearly 800 ...

            On October 2, 2013, the Local Rules Committee of the Federal District Court for the Middle District of North Carolina announced that it has published for comment proposed amendments to the Local Civil Rules and Local Criminal Rules.  The proposed amendments to the Local Civil Rules include the addition of new rules and changes to some existing rules, including LR 5.4, 7.1(a), 7.3(i), 7.6, 15.1, 16.2, 16.3, 26.2, 37.1, 54.1, 72.4, 83.7, 83.9e(i), 83.10h(d), 83.11, and 103.2(b).  The only proposed amendment to the Local Criminal Rules includes the incorporation under LCrR 57.1 of ...

            When the law imposes personal liability on an attorney for actions connected with the representation of a client, it is worth noting and bringing to all of our attention.  Under North Carolina law, if a state employee is injured by a third party and recovers damages from the third party, the State Health Plan for Teachers and State Employees (the “State Health Plan”) has the right to reimbursement for the medical expenses it has covered due to the injury.  In the first North Carolina appellate case to review the statute that gives the State Health Plan this right, The State Health Plan for ...

            Arbitration under the Federal Arbitration Act (“FAA”) has been the hot topic of many cases in the past few years, with the U.S. Supreme Court having reaffirmed the federal policy favoring arbitration and the preemptive power of the FAA over state laws governing arbitration.  The North Carolina courts are among those that have been petitioned to resolve conflicts regarding the enforceability of arbitration agreements, and the North Carolina Court of Appeals recently issued another arbitration decision that should be of interest to businesses facing disputes in this state.  The ...

            Justice Initiatives, Inc. (“JI”) has completed another year of service to the North Carolina justice system and Mecklenburg County by advocating for “reforms related to the Judicial Branch’s organization, structure and/or administration” and for “the needs of court system offices and programs within the 26th Judicial District, NC.”  JI recently released its 2011-2012 Annual Report which reflects the depth and breadth of the organization’s commitment to bridging gaps between our local communities and the court system, as well as making a difference to the ...

            The U.S. Supreme Court recently has reinforced in Marmet Health Care Center, Inc. v. Brown, 132 S. Ct. 1201 (2012) and AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011) that the Federal Arbitration Act (“FAA”) prohibits states from categorically excluding certain types of claims from arbitration.  However, companies still may have to contend with the policies of private organizations like the American Arbitration Association (“AAA”) that administer arbitrations and place categorical restrictions on the types of cases they will administer.  In Concepcion, the ...

            The North Carolina Judicial Branch recently issued its Fiscal Year 2011-12 Annual Report, which gives us a real picture of the strain that our court system has been under for the past four years.  The stated mission of the Judicial Branch is “[t]o protect and preserve the rights and liberties of all the people, as guaranteed by the Constitutions and laws of the United States and North Carolina, by providing a fair, independent and accessible forum for the just, timely and economical resolution of their legal affairs,” (emphasis added).  Deep budget cuts and the corresponding ...

            In the digital age where the internet permeates every aspect of our lives and commerce, the courts are continually called upon to demarcate where and how communications and intellectual property laws apply to the services provided by websites and internet service providers.  Many internet-based companies find themselves facing potential liability based upon their legitimate business activities due to the unfortunate attempts by users of their services to thwart the intellectually property rights of others.  The U.S. District Court for the Western District of North Carolina is ...

"Justice does not require that courts profess to be more ignorant than the rest of mankind."  -       NC Court of Appeals in HCW, 2012 N.C. App. LEXIS 939 (2012)

North Carolina public policy favors arbitration and requires that doubts about whether arbitration is appropriate be resolved in favor of arbitration.  However, the Court of Appeals made clear in a recent decision that the courts will not turn a blind eye or deaf ear to compel arbitration at all costs.  Defendants seeking to compel arbitration of claims brought against them must proceed with the awareness that missteps prior to moving to ...

   The duty to preserve evidence in the face of impending litigation is a burden that befalls litigants and potential litigants.  We recently discussed the impact of the decision in Zubulake v UBS Warburg LLC 220 FRD 212 (S.D.N.Y. 2003) on the determination of when the duty to preserve attaches with respect to the preservation of electronic documents.  See my previous blog here addressing the reasonable anticipation standard established by Zubulake and as applied in state court in VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 2012 NY Slip Op 00658 (Jan. 31, 2012).  The duty to preserve ...

   Justice Initiatives, Inc. continues to raise the bar in its efforts to support and advocate for our court system. For six years, Justice Initiatives, Inc. has hosted the illustrious “Evening at the Courthouse” fundraising event, which has a guest list that reads like a “Who’s Who” of North Carolina federal and state judges, state and local elected representatives, and members of the Mecklenburg County Bar and Community. The event is hosted free of charge to guests, with a request for donations to support the organization. At this year’s event on May 8th, I was among those ...

   Members, managers, directors, and executives of limited liability companies (“LLC”) are provided protections under North Carolina law which limit their personal responsibility for obligations incurred by the LLC.  This limitation includes liabilities incurred for professional negligence, malpractice, and other wrongdoing attributable to the LLC and other employees or members of the LLC.  There is, however, a limit to the limited liability protection provided under North Carolina General Statutes § 57C-3-30; and plaintiffs continue to attempt to impose personal ...

   Former U.S. Supreme Court Justice Sandra Day O’Conner was likely happy to see the news of Governor Perdue’s Executive Order 86 which established the North Carolina Judicial Nominating Commission.  In 2010, former Justice O’Connor highlighted that the U.S. was the only nation in the world that had elections for its judges (at the state level) and admonished: “I know you have some public funding of elections, and it's nonpartisan, but that doesn't do enough. So I hope that someday you'll think about something else in North Carolina.”  See here for former Justice ...

   While it is difficult to find the right words to say, I want to say something to honor my friend who recently passed away.  Judge Christopher M. Collier was far too young and taken too suddenly for me to have been prepared to reflect on his life and the impact he had made on the world and those around him.  I have had a couple of weeks since his passing for the loss to sink in.  We are incredibly fortunate to have been touched by Chris Collier while he was with us. 

    I first became friends with Chris when we were undergraduate students at University of North Carolina at Chapel Hill.  Our paths continued to ...