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).

lished opinions There’s a lot to chew on here. Here’s my summary of a few of the more interesting or unusual cases.Warren v. Cielo Ventures, COA22-926. On July 8, 2017, the plaintiffs found that their water heater had leaked throughout their home. They notified their insurer, whose representative inspected the house two days later. The defendant notified the plaintiffs that extensive and immediate repairs were needed. Plaintiffs moved into a hotel and entered an authorization contract with the defendant. That contract included a clause stating to no action could be brought pursuant to the contract more than one year after the claiming party knew or should have known of the cause of action. On July 20, 2017, plaintiffs visited their home and saw that no work had been done. Mold proliferated and eventually the house had to be demolished. Although the plaintiffs were compensated for the loss of their house, on July 9, 2021 they brought suit alleging an unfair and deceptive practice under N.C.G.S § 75-1.1. Defendant moved for summary judgment, arguing that the claim was time-barred based on the one-year limitations period in the contract. The trial court allowed the defendant’s motion. The Court of Appeals reversed. The court noted that, in some instances, parties can contract for a limitations period shorter than that allowed by statute. However, the court observed that the legislative purpose of § 75-1.1 is “[t]o provide civil legal means to maintain ethical standards of dealings between persons engaged in business and …the consuming public within this State, to the end that good faith and dealings between buyers and sellers at all levels of commerce be had in this State.” The court then cited Morris v. Rodeberg, 385 N.C. 405, 895 S.E.2d 28 (2023) for the proposition that statutes of limitation are public policy choices intended to promote, not defeat, the ends of justice. Accordingly, the court declined to “construe the generalized one-year clause of limitation contained in the auth

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