You’ve probably never had to decide what it means to agree to arbitrate.  Usually, there is a written provision that references the AAA Rules and includes a consent to AAA’s procedures as to the appointment of the arbitrator(s) and the conduct of the procedure. And most usually, the word "arbitration" is used in the provision.

Lately, however, the NC Business Court wrestled with two cases in which there was no provision referencing the AAA, no mention of the words "arbitrate" or "arbitration" but only a provision deferring resolution of…

Continue Reading NC Business Court Rules On What Constitutes An “Arbitration”

There are new Rules for the NC Business Court In effect, as of January 1, 2017.  If you have a case in the Business Court, or are expecting to designate a case there, you should look them over.  They are applicable to all actions currently pending in the Business Court.

If you are not willing to take the time to read the new Rules (which is not recommended), here are five things which affect discovery in the Business Court under the new Rules:

Be Courteous And Cooperative

New Rules 10.1…

Continue Reading Five Things You Should Know About Discovery Under The New Business Court Rules

Yesterday, Governor Pat McCrory announced that he has appointed Raleigh lawyer Greg McGuire as a Special Superior Court Judge for a term beginning October 13, 2014.  The Governor’s plan is to designate Judge McGuire as a Special Superior Court Judge for Complex Business Cases at the beginning of the Judge’s term.

Judge McGuire will serve in Wake County, which means that he will be assigned to the Raleigh Business Court.

What about Judge Jolly, you are thinking?  He was been the Judge in the Raleigh Business Court since that Court…

Continue Reading Shake Up At The NC Business Court

If you litigate cases in the NC Business Court, mark your calendar for October 1st.  That’s when the General Assembly’s "modernization" of the Business Court is due to become effective.  The bill containing these changes was signed into law by Governor McCrory last week. 

I wrote about the proposed bill back in May, and you can look back at that post as most of the changes proposed in the initial version of the bill have made it through to the approved version.

There were some changes to the bill…

Continue Reading Mark Your Calendar For October 1st For Changes To The Business Court

You all know the procedure for getting into and out of the jurisdiction of the Business Court.  It’s kind of like the Hotel California: "you can check in any time you like, but you can never leave."  I don’t know why people fight so hard to leave "such a lovely place," but there are often challenges to the Court’s mandatory jurisdiction, and the Chief Judge rarely grants them.

There’s a "check out" procedure in G.S. §7A-45.4 which has never been used before.  It is about to be tested for…

Continue Reading Appealing From Business Court Jurisdiction

Continue Reading Five Reasons You Should Care About The Rulings From The North Carolina Business Court Even Though The NC Court Of Appeals Says You Shouldn’t

i was gone (not fishin’) for the entire month of September.  I haven’t written on this blog since August and nobody has noticed.  Nobody has emailed me to ask where the heck I was or what I was doing or whether anything worth knowing had happened in the Business Court  The lack of any outcry about my absence hurt my feelings, but I am back even so with this September update on cases in the Business Court decided during the missing September.  They ran the gamut, from subpoenas to injunctions to how not to get an extension of time in the Business Court.

Standing to Object to Subpoenas to Non-Party Banks

In Deyton v. Estate of Kenneth C. Waters, Jr., 2011 NCBC 34, Judge Gale ruled that a party to a lawsuit lacked standing to object to a subpoena sent by the opposing party to a non-party bank.  The Judge observed that "as a general proposition, parties to a lawsuit typically lack standing to challenge a subpoena issued to a third party." 

Although there is an exception to that general rule if the objecting party has privilege in the documents requested,  the moving party attempted to invoke, Judge Gale held there is not a privilege created in bank records by the Federal Right  to Privacy Act of 1978 (12 U.S.C. §3402) or the North Carolina Financial Privacy Act (N.C. Gen. Stat. §53B-1, et seq.).

The rule might be different in federal court.  Judge Gale stated in a footnote that an Eastern District of North Carolina court has said in United States v. Gordon, 247 F.R.D. 509, 510 (E.D.N.C. 2007) that "[a] small number of courts have held that a party’s claimed privilege with respect to his or her bank account records is sufficient to confer standing for purposes of challenging a subpoena."

In another case decided on the same day, Jones v. Sutherland, Judge Murphy, without the benefit of the Deyton discussion, considered an objection by a defendant to a subpoena to a non-party bank.  He denied the motion to limit the subpoena even though it covered a nine-year "extensive time period," saying it was not "designed to be a fishing expedition."Continue Reading I’m Back With An Update on Six Business Court Cases