"CAN’T I GET PUNITIVE DAMAGES?"
Clients who have been wronged often are insistent on going after the opposing party for “punitive damages”. Typically, those clients are really just looking for “enhanced damages”, meaning they want to force the opposing party pay more money than the client lost.
True punitive damages are available in North Carolina where the opposing party acted willfully, or with fraud or malice; but there are numerous conditions and limitations. For example, a simple breach of contract cannot be the basis for punitive damages. A client must prove that they suffered actual financial harm, and the number of punitive damages can be limited based upon the amount of financial harm that was suffered. North Carolina General Statutes expressly permit recovery of punitive damages in certain circumstances and prohibit it in others.
Besides punitive damages, there are sometimes alternate avenues available for a client to recover enhanced damages. Clients who have suffered harm because of unfair or deceptive business practices can recover treble (triple) damages, and attorneys’ fees. Clients who bring an action for unpaid wages, can sometimes recover double the amount of wages owed. Shareholders who are wrongfully denied the right to inspect company records can often force the company to pay for the inspection, a cost that would normally fall on the shareholder.
As a practical matter, the Court is sometimes resistant to awarding enhanced damages. It is common for the Court to find creative ways to deny or reduce enhanced damage awards.
For more information about enhanced damages and theories of legal recovery, contact Parton Law.
When government investigators come knocking, people generally get anxious and don’t know what to do. In our experience, this is equally the case with State and Federal government officials regardless of what agency or department they are from. Investigators typically have the advantage of knowing when they are coming and what they are looking for, leaving you to feel caught off-guard and out of the loop. Knowing how to act on the spot can help you avoid legal jeopardy and ensure that your interaction with the investigators only lasts as long as necessary.
In most cases, if an investigator is asking for something, it’s because they need it. If they had enough evidence to obtain a warrant or make an arrest, they most likely would not be talking with you. It could be the case that a courteous investigator is just trying to save the time and trouble associated with obtaining a warrant, but it is always your right to make them take that extra step.
Remember that an investigator does not have to be candid or truthful about why they are interacting with you, and any evidence you provide can be used to your legal detriment. A restaurant owner, for example, who voluntarily provides security camera footage or bar receipts to help with a DUI investigation, might be surprised when that same evidence is used later to prove that the restaurant negligently/criminally overserved a patron, or failed to properly check a customer’s ID.
While it is important not to consent to any searches, it is also important to be courteous to investigators and to comply with their demands. Even if you think an investigator’s demands are unlawful, the proper time and place to challenge them is not on the spot and doing so risks escalating tensions and prolonging your interaction. Stating something to the effect of: “Respectfully, I would like to speak with our attorney before talking to you or agreeing to anything” is typically effective to assert your rights without angering the investigator.
Be sure that your business has established processes for responding to investigations in place, and that your employees are informed of their rights and responsibilities and are trained on how to professionally interact with investigators. Having an upper-level employee designated to speak on behalf of your business can prevent a rogue employee from making statements that will be attributed to your organization, and gives other employees a way to defer when speaking with investigators.
Every investigation is different, so what constitutes an appropriate response will necessarily depend on the unique facts and circumstances. For more information on preparing for and responding to government investigations, contact Parton Law, PLLC.
The U.S. Supreme Court will soon hear a challenge to widely used race-conscious admissions policies designed to skew college admissions towards Black and Hispanic students across the country. The cases, Students for Fair Admission v. President & Fellows of Harvard College, No. 20-1199 and Students for Fair Admission v. University of North Carolina, No. 21-707, are expected to be heard during the court’s next term beginning in October.
The Students for Fair Admission group accuses both universities of race-based discrimination during their admissions process, specifically accusing the University of North Carolina of favoring minorities over white and Asian American applicants in a bid to increase diversity on their campuses. Race has publicly been a factor in the application review process for both organizations, also stating that limiting race would limit diversity among students and decrease minority representation on their campuses.
The landmark 1978 case University of California v. Bakke first set the foundation that race could be used as a factor in admissions, but that schools could not have racial quotas to guide their admissions practices. 2003’s Gutter v. Bollinger case also affirmed the ruling, with the Court deciding that the University of Michican Law School’s extensive applicant review process meant that race did not define an automatic acceptance or rejection and was therefore constitutional.
With President Trump-appointed Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett now residing on the Court, a 6-3 Conservative majority means that both cases have the potential to upend affirmative action and eliminate race-based admissions from universities that receive federal funding. While Harvard University and UNC are private and public respectively, both receive federal funding.
The University of North Carolina at Chapel Hill is the state’s flagship university. Unlike Harvard, UNC is a public university that is covered by the Fourteenth Amendment’s guarantee of equal protection. The Students for Fair Admissions took their cases directly to the Supreme Court after being rejected by a North Carolina federal district court, requesting that both their argument toward UNC and Harvard be heard. After deliberations begin in the new term, the cases will likely see decisions by early 2023.
Contact Parton Law for more information on Constitutional issues and how they may affect your case.
If you own a share of a privately held business, your rights are largely determined by your operating and purchase agreements. Where an operating agreement does not address an owner’s rights, North Carolina Law often steps in to provide “default” provisions or rights. However, your rights as a shareholder vary based on the portion of the company that you own. This article will consider some of those statutory rights for “qualified minority” shareholders, meaning those who own between 5% and 50% of a company’s shares or have owned less than 5% for at least six months.
If you are a minority shareholder, you have the right to vote, dissent, and access key documents. These rights give you a say in the selection of corporate directors, the sale of assets outside normal operations, corporate mergers, and share exchanges. Second, you can “dissent” from the corporation in some instances, such as if you disagree with a merger or if the corporation shifts to foreign ownership and the revamped shares disfavor you relative to the old ones. In dissenting, you invoke your “appraisal” rights, which may give you the right to resell your shares to the corporation at fair value. In almost all cases, you are entitled to a list of shareholders ahead of meetings, meeting minutes, and important financial statements. Shareholders who are considered “qualified” under the law also have the ability to inspect privileged corporate documents—including accounting reports, records of director actions, and minutes from shareholder meetings.
If you are a shareholder in North Carolina, you may, under the right circumstances, even have the right to force a company to distribute its profits via a dividend. This right, like all others, is subject to numerous disqualifying circumstances and has many caveats, so it is important you speak with an attorney about your specific situation.
For more information about shareholder rights, contact Parton law.
Declan M. Hurley
North Carolina Law makes it illegal for businesses to engage in unfair or deceptive practices. This generally means that they lied, misled, or manipulated their way into economic advantage at the expense of another party. An afflicted party can seek recourse in the civil courts; but it’s not always easy to know when a business has committed an “unfair” or “deceptive” act.
A business acts “unfairly” when it intentionally suppresses competition. Forming monopolies, conspiring or forming cartels with other businesses to fix prices, filing frivolous bad faith lawsuits, and even selling gasoline for below cost have all been held by “unfair” by the Court. The common thread for many of these unfair practices is their anti-competitive nature.
A business acts “deceptively”, on the other hand, when it secures its customers or clientele through lies or mistruths or acts that have the tendency to deceive. For example, a business cannot falsely claim that a retail product is being sold “wholesale” or dubiously claim that you won a prize. A debt collector cannot misrepresent the amount of your debt, and a business selling perishable products can’t lie about their location. In all these cases, the proscribed conduct is counted as deceptive because it motivates you to transact with a business—and incur losses—on false pretenses.
For more information on claims involving unfair and deceptive business practices, contact Parton Law.
Declan M. Hurley
When local and county authorities extend their clutches beyond legal limits, they act ultra vires—a Latin phrase that translates to “beyond the powers.” Government actions that the court finds to be ultra vires can be voided, and upon such a ruling a person may be entitled to compensation for the harm they suffered as a result.
Types of government overreach, as defined by the courts, include the government (1) collecting fees without the legal ability to do so, (2) charging you for a service it is unable to provide, (3) collecting taxes inconsistent with the state constitution and laws, and (4) inspecting your property without statutory justification. These examples are not all-inclusive, but it is worth considering them individually to gain a sense of what conduct is counted as “overreach.”
For example, the Town of Cary was forced to repay local-education fees that it collected from a developer as a condition of zoning approval, because those fees were not permitted by North Carolina statutes. The Court of Appeals even called the fees an “illegal custom and practice” (Amward Homes v. Town of Cary). In New Hanover County, the water authority was rebuked for collecting fees for services that they were unable to provide and that were not desired by the end user. Wake County was barred from collecting taxes to finance abortions that they claimed were essential medical services, but the NC Supreme Court found that an abortion is not one of the “basic necessities of life” and voided the local tax effort (Stam v. State).
For more information on government overreach and what to do when it affects you, contact Parton Law.
Declan M. Hurley
If you sue someone in the United States, the general rule is that you will be required to pay your own attorney’s fees and litigation expenses. This practice is so ingrained in our legal system that it is called the “American Rule” and has been referenced by the Supreme Court (ex: Alyeska Pipeline v. Wilderness Society). In theory, the American Rule ensures that you will not be afraid to sue or defend yourself in court because you might have to pay the legal fees for both sides. It also ensures that parties only end up in court when it’s really worth it to be there.
North Carolina Law offers some limited exceptions to the American Rule. Examples may include lawsuits for libel and slander (N.C. Gen. Stat. § 6-18), wherein you are entitled to the costs of counsel “of course” if you win in court. However, if your lawsuit is unsuccessful, you could be required to pay the legal costs of the person whom you sue (N.C. Gen. Stat. § 6-19). You may also be entitled to repayment of your attorney’s fees if you have been defrauded in certain financial contexts (N.C. Gen. Stat. § 78A-56), if your city or county exceeded their powers (N.C. Gen. Stat. § 6-21.7), or if you were the victim of unfair deceptive trade practices (N.C. Gen. Stat. § 75-16). Finally, if you win a breach-of-contract lawsuit when you and the other party contractually agreed that the winner of any such lawsuit would be entitled to attorney’s fees, the court may award you repayment for your legal costs (ex: N.C. Gen. Stat. § 57D-2-32).
However, even if the court orders that you be recompensed for your legal costs, you will be entitled to only “reasonable” attorney’s fees—i.e., enough money to cover the legal actions actually necessary for you to win your case. As you can imagine, a subject standard like this leaves a lot of room for the court’s discretion.
Despite the American Rule, there is a small chance that you can recover your legal fees in Federal court. For this to occur, compensation for attorney’s fees must be enumerated by some federal law—as it is in 200 instances, per the Congressional Research Service—or the losing party must have acted in bad faith (i.e., annoyingly or wastefully) in connection with their suit.
Declan M. Hurley
Civil law ensures that if you are harmed by someone else, you will be repaid for the injury you suffer. This compensation is generally referred to as “damages.” However, unlike criminal law, civil law is invoked only when you file a lawsuit against the person or entity that injured you.
How do I recover damages in a lawsuit?
A lawsuit allows you to recover damages from a person who was required to act in a certain way (either by statute, contract, or a generally accepted standard of care) fails to do so and causes you monetary loss.
Broadly speaking, the law allows you to recover the actual financial cost of your harm. For example, if a construction company contracts with you to do work that they then fail to do, you may be able to recover the money you paid them, or the money that it costs you to complete the work properly. The fact that you spent time on the phone arguing with the project manager, or picking up the contractor’s mismanaged debris, typically is not something you can recover damages for - even though your time is valuable.
What are enhanced damages in a lawsuit?
There are other categories of “enhanced” damages which are generally created by law. For example you may be entitled to punitive damages which are designed to punish people who commit malevolent acts “wantonly, willfully, and deliberately” and deter similar future conduct by other parties. North Carolina also permits enhanced damages for business practices that are deemed “unfair” or “deceptive”, depending on the circumstances. “Double damages” can be recovered for employees who are harmed by an employer’s failure to comply with hourly wage and overtime requirements.
These type of enhanced or increased damages are the exception to the normal rule that in order to recover damages, you must provide evidence that you lost money, had to spend extra money, or failed to receive money you were entitled to.
For additional information on the availability of damages in specific cases, contact Parton Law to speak with an attorney.
INteresting article on industrial hemp and cbd issues from the nc state bureau of investigation
Whether law enforcement has probable cause to search is a critical issue in most drug arrests where the defendant is inside a vehicle. Often times, that probable cause is based on the law enforcement officer's detection of the odor of marijuana. This letter from the State Bureau of Investigations Director opines that law enforcement officers are not able to differentiate between the smell of legal CBD products (which contain small amounts of THC) and marijuana, an illegal controlled substance; and provides additional ammunition to defense attorney's challenging probable cause for searches based on marijuana odor.
For more information on warrantless searches and Constitutional rights, contact Parton & Associates.
When a client is deciding whether or not to file a lawsuit, it is important to analyze what assets a defendant has and whether the defendant will actually be able to pay-up after losing at trial. You can’t get water from a stone or blood from a turnip. Sometimes, a defendant has assets, but they’re extremely limited (think single-member LLCs, holding companies etc.). In those cases, clients may be rightfully concerned that the defendant will start dumping assets once they sense litigation coming.
Fortunately, under Article 35 in Chapter 1 of the North Carolina General Statutes, there is a mechanism to bring the defendant’s assets under the custody of the court until the conclusion of the case. Attachment is available in any case that is seeking to secure a judgment for money upon a showing that the defendant has an intent to defraud its creditors by disposing of the property or removing property from the state. The type of property doesn’t matter, it can be a personal property item or a parcel of real estate.
When it comes to proving defendant’s intent to defraud, evidence can range from a statement by the defendant to a listing of real property for sale by a real estate company. The potential trap for the plaintiff in using this strategy is the requirement that plaintiff to post a bond, set by the court, in an amount they deem necessary to afford reasonable protections to the defendant. If the evidence of defendant’s intent to dispose of their property is clear, the court may affix a statutory minimum bond. The sheriff then levies the property, prohibiting the defendant from disposing of it until the conclusion of the case.
For some reason, this attachment tool seems to be little known and used even less in North Carolina. Strategic use of the attachment process can greatly increase a client’s likelihood of actually collecting any judgment they are entitled too, removing a significant source of uncertainty that comes with filing a lawsuit.
For more information on strategic use of statutory liens and commercial litigation, contact Parton Law, PLLC.
Drafted by J. Burton Powell with edits from Corey V. Parton
The law applies differently in each situation. Nothing on this page should be construed as or be relied upon as legal advice.