Id. at ¶¶ 15, 17-18.Plaintiffs’ claim under N.C. Gen. Stat. § 75-1.1 led the court to confront an issue it has addressed repeatedly in the last several years: is the conduct alleged “in or affecting commerce,” as required by the statute, or is it an “intra-company feud about internal operations” for which there is other, more appropriate legal recourse. Brewster v. Powell Bail Bonding, Inc., 2018 NCBC 74, 2018 WL 3603023, at *6 (N.C. Super. Ct. July 26, 2018) (Judge Conrad).

The North Carolina Business Court has recognized a new type of claim: a claim for failing to negotiate in good faith. Raising the stakes further, the court has held that failing to negotiate in good faith could lead to treble damages under N.C. Gen. Stat. § 75-1.1. The Business Court’s decision came inRREF BB Acquisitions, LLC v. MAS Properties, L.L.C.The RREF Decision BB&T made two loans to Mark Saunders, a sophisticated real-estate developer. In 2012, Saunders was under financial pressure from other lenders, so his BB&T loans needed restructuring. BB&T and Saunders had extensive negotiations to try to restructure the loans. BB&T’s negotiations with Saunders progressed to the point where BB&T’s outside counsel gave Saunders a proposed term sheet. BB&T, Saunders, and their lawyers met to discuss these points. They agreed on many of the proposed terms, but not all of them. Even so, at the end of the meeting, Saunders and a BB&T official “shook hands in a manner that Saunders understood to indicate that the parties had reached a deal.” Shortly after the meeting, another BB&T official wrote internally that the meeting had been “successful in negotiating a structure for extension” of the loans. She also wrote that she would be seeking approvals

We have written before about the “aggravated breach of contract” theory under N.C. Gen. Stat. § 75-1.1. This theory can make a breach of contract a springboard to treble damages.

Because the statute of limitation for violation of North Carolina’s Unfair and Deceptive Practices Statute was four years, it was still a timely claim. Defendant argued that because the alleged damage for the Unfair and Deceptive Practice ($500,000 endorsement value) was the same alleged for the Breach of Contract, there was actually no damages to Plaintiff for violation of N.C. Gen. Stat. § 75-1.1. Defendant argued that there must be independent damages, separate and apart from a breach of contract. Therefore, Plaintiff’s Unfair and Deceptive Trade Practice claim should be dismissed for failing to show a required element-- injury.

The Di Sciullos filed a lawsuit against Griggs arguing, among other things, Griggs’ conduct under the contract and its abuse of superior knowledge regarding construction practices constituted unfair or deceptive trade practices. The Court reiterated North Carolina precedent, that “a mere breach of contract, even if intentional, is not sufficiently unfair or deceptive to sustain an action under N.C.G.S. § 75-1.1.”[2] Accordingly, the aggrieved party must show “substantial aggravating circumstances” in connection with the contract breach to justify the recovery of treble damages under N.C.G.S. § 75-1.1.

In a straight forward copyright infringement case the plaintiff cannot usually also assert a claim under North Carolina Gen. Stat. 75-1.1 because the claim is preempted by federal copyright law. See, e.g., Iconbazaar, L.L.C. v. Am. Online, Inc., 308 F. Supp. 2d 630, 636-37 (M.D.N.C. 2004); Vogel v. Wolters Kluwer Health, Inc., 630 F. Supp. 2d 585, 593 (M.D.N.C. 2008).

Lorillard subsequently moved to dismiss this counterclaim. In deciding this motion to dismiss, the Court started with the established principle in North Carolina that “a plaintiff who files an ‘objectively reasonable’ lawsuit cannot be held liable for an unfair trade practice under N.C. Gen. Stat. 75-1.1.” Id.

NC Process forSettlement of a Putative Class Action Dispute:Terri Moose vs. Allegacy Federal Credit UnionSometimes, the short-cut turns out to be the long way around. A North Carolina Business Court opinion by Judge Adam Conrad sheds light on the intricacies and potential pitfalls of settling class action lawsuits under North Carolina law and procedure 2023 NCBE Order 39, Aug. 21, 2023. In the case ofTerri Moose vs. Allegacy Federal Credit Union, the plaintiff, Terri Moose, sued as a putative class representative for damages resulting from the practices of Allegacy Federal Credit Union (“Allegacy”) in assessing overdraft fees for debit-card transactions (“APSN” or “Authorize Positive, Settle Negative” transactions).The Grounds of the LawsuitMoose’s complaint included individual,and class claims for breach of contract, unjust enrichment, and unfair or deceptive trade practices under N.C.G.S. § 75-1.1. The lawsuit was pending for nearly three years, and despite its duration, Moose and her legal team never took the necessary steps to certify the class.The Proposed SettlementWithout a certified class, and without a process for class notification, a settlement deal was reached. Both parties jointly moved for an order that would approve the dismissal of Moose’s individual claims with prejudice and the putative class claims without prejudice. Typically, a so-called bilateral settlement of a putative class is allowed, but this is true only if it does not prejudice absent class members. Even in pre-class-certification cases, an individual settlement can trigger notice to putative class and a fairness hearing if there is a complicating barrier such as a statute of limitations issue.Both parties denied any collusion and contended that practical considerations drove the decision to settle. Moose’s counsel claimed that they initially had severely overestimated the damages that the putative cl

61 (2016).The Court emphasized that the “renewal” standard – doing the same thing over and hoping for a different result – was critical. In denying JNOV on the jury’s fraud verdict, for instance, the Court found the defendants hadn’t adequately preserved their argument about the underlying value of machinery contributed to the company where its directed verdict motion only addressed alleged representations about agreeing to have those items appraised. Id. ¶¶ 19-20. The Court similarly rejected JNOV on the jury’s conversion award where defendants’ motion went “far beyond what Moody raised at trial” in his directed verdict motion. Id. ¶ 27.The Court did grant a motion to unseat the jury’s Chapter 75 decision, ostensibly based on evidence that Moody shrouded a “self-dealing lease agreement” he executed on behalf of Vanguard, on the one hand, and a company he controlled, on the other. Defendants challenged the jury’s verdict on grounds that the activity was not “in or affecting commerce” (N.C.G.S. § 75-1.1) because it didn’t reflect business relationships undertaken “with other market participants.” Id. ¶¶ 37-38.Judge Conrad agreed, consistent with the Business Court’s now-regular admonitions about Chapter 75 claims based on intra-company interactions that can’t fairly be said to be involving other market actors. We’ve written about these issues here and here.When conduct is internal to a single market actor, as opposed to involving another, continues to be a case-by-case analysis with thorny features. Here, the Court found that a lease Moody caused Vanguard to enter with an outside entity was actually an “interaction among the principals of Vanguard” because the other party was merely an alter ego of Moody. Thus, as the Court put it, “Moody used the entity to extract cash from Vanguard while concealing it from Pai Lung and his fellow managers” such that is was tantamount to Moody cutting a Vanguard check to himself. Id. ¶¶ 39-41.TakeawaysThe framing and execution of motions for directe

ibly applying either North Carolina or South Carolina law to the “unfair practices” claim, the Court found that “[e]ither way, it is deficient.” Id. ¶ 17.Under South Carolina law, Judge Conrad simply found there wasn’t any conduct it could be applied to. The separation agreement elected North Carolina law to govern the agreement and the parties conduct under it. Further, the Court found that while South Carolina law might apply to extracontractual conduct, “none is alleged.” Judge Conrad found plaintiffs had consistently styled their allegations as arising from “breach of and to enforce” the separation agreement. Id. ¶¶ 18-19.Under North Carolina law, the Court had to decide whether the Patels’ allegations of hijinks by Shah to frustrate and impede the aims of the agreement separating their practices was a “rendering of medical service” that would qualify to meet the exception in Chapter 75 that it does not apply to “professional services rendered by a member of a learned profession.” N.C.G.S. § 75-1.1(b). The Court found that “alleged conduct – centered on patient solicitation – “is directly related to providing patient care,” Id. ¶ 25 (quoting Sykes v. Health Network Sols., Inc., 372 N.C. 326, 336 (2019)). That was especially so, Judge Conrad held, where the complaint specifically alleged that Shah sought “to deceive patients into seeking medical service” with Palmetto instead of the Patels. Id.TakeawaysIt’s certainly true that “[t]his exception for medical professionals has been broadly interpreted.” Shelton v. Duke Univ. Health Sys., Inc., 633 S.E.2d 113, 117 (2006). But Chapter 75 litigants do have some leeway in which to operate. In Hamlet H.M.A., LLC v. Hernandez, 821 S.E.2d 600, 608 (2018), the Court of Appeals paused at finding “that negotiations regarding a business arrangement, even between a physician and a hospital” meet the standard. “The learned profession exception does not cover claims simply because the participants in the contract are medical professionals.”[View sou