MVA Litigation

"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 critical inquiry into the breadth and depth of the U.S. Supreme Court’s ruling in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011) continues with two Petitions for Writ of Certiorari recently filed in the high court: Buffington et ux. v. SunTrust Banks Inc., S.Ct. case number 12-146, and American Express Co. et al. v. Italian Colors Restaurant et al., S.Ct. case number 12-133.  The decisions of the Second Circuit in Amex and the Eleventh Circuit in Buffington stand juxtaposed, with the Second Circuit having found a class arbitration waiver unenforceable because it was not ...

     What is the proper inquiry into expert evidence proffered by parties at the class certification stage?  Last year, we discussed cases from several U.S. Courts of Appeals which highlighted some of the uncertainties surrounding the applicability of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993) and the depth of analysis courts should apply to expert evidence at the class certification stage.  See my previous blog here.  The Daubert analysis and Rule 23 rigorous analysis often seem to be conflated by parties and lower courts.  And in the midst of the U.S ...

Discussion regarding the impact of the U.S. Supreme Court’s ruling in AT&T Mobility LLC v. Concepcion has included recognition of the likelihood that Concepcion would not serve as a stamp of approval on all class arbitration waivers – under some circumstances Concepcion likely would not preclude class actions or class arbitrations.  Over the last year, we have watched lower courts and regulatory bodies analyze Concepcion and the validity of class arbitration waivers in a variety of contexts:  state claims vs. federal claims, employment claims vs. consumer claims, antitrust ...

Several recent U.S. Supreme Court cases have emphasized that there is a strong federal policy in favor of arbitration.  Yet, an arbitration agreement is not impenetrable or always enforceable.  It is beneficial for businesses to understand the areas in which the interest in enforcing arbitration agreements may not be as strong as other interests at issue.  The enforceability of arbitration agreements in the bankruptcy context is one such area, which the U.S. Supreme Court has recently been asked to address.  As it now stands in the Fourth Circuit and several others, an arbitration ...

   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 ...

In the age of e-discovery, businesses across the nation have been challenged with seemingly insurmountable hurdles when facing litigation.  The costs of conducting e-discovery can be extraordinarily high, given the volumes of data often at issue in complex commercial litigation.  The recent case VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 2012 NY Slip Op 00658 (Jan. 31, 2012) decided by the New York State Supreme Court Appellate Division admonishes potential litigants that mishandling the e-discovery process comes at a much higher price.  Despite protests from litigants ...

   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 ...