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.
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
Interesting case from just North of the Virginia State line. The alleged value in this dispute is the network of Twitter "followers" that the Reporter developed during his employment with the Paper. In North Carolina, the law generally holds that customer lists do not constitute "trade secrets" and can't be the basis of a legal claim. In the newspaper industry where the customers are the readers, could there be an argument that Twitter followers are really just a list of readers/customers? https://bit.ly/2KBs73H
For information on trade secret misappropriation and other commercial law issues, contact the team at Parton & Associates. http://www.partonnc.com/commercial-litigation.html
The Equal Justice Initiatives’ (“EJI”) National Memorial for Peace and Justice recently unveiled The Legacy Museum, dedicated to the victims of violent, non-judicial executions in the form of lynchings. The 14th Amendment of the United States Constitution guarantees every citizen the right to notice of what crime they are alleged to have committed and an opportunity to defend those allegations before they are deprived of their liberty or, more importantly, their life.
The National Memorial for Peace and Justice pays tribute to those who were deprived their 14th Amendment rights and to the suffering caused by lynchings which occurred frequently throughout the South. According to the EJI report, which was compiled by a small group of lawyers and documented over 4,000 lynchings between the Civil War and WWII, lynchings were often conducted most minor perceived infractions: walking behind a white woman, attempting to quit a job, organizing sharecroppers, and even reprimanding children for throwing rocks (https://www.nytimes.com/2018/04/25/us/lynching-memorial-alabama.html).
The Legacy Museum, built on the site where enslaved black people were imprisoned, traced the roots of inequality and racism through slavery, lynching, racial segregation and attempted to show connections to perceived implicit biases present in the modern justice system.
Speakers came from all over the country to attempt to address criminal justice reform in the United States, including Ray Hinton, who spent 30 years on death row for a crime he did not commit.
For more information on civil rights and the history of United States laws, contact Parton & Associates, PLLC.
This weekend, only because I’m a nerd, I decided to watch one of my favorite TED talks (again). In 2012, Civil Rights Advocate Bryan Stevenson delivered an impactful lecture on America’s criminal justice system. If you ever have the time, I suggest you give it a watch.
I had the unique pleasure of hearing Bryan speak at a book signing here in Charlotte and one quote that always stuck out to me was how not only race, but money and the lack thereof shapes outcomes. “We have a system of justice in this country that treats you much better if you’re rich and guilty than if you’re poor and innocent. Wealth, not culpability, shapes outcomes; and yet, we seem to be very comfortable.”
In 2016, as an example, 18% of inmates in Mecklenburg County were imprisoned for failure to pay fines or court costs. Those who could not afford bail stayed in jail for an average of 4 days. That’s 4 days of incarceration before a person is convicted or even has a substantive court date. Research has shown that one’s ability to pay does not reduce the chances for failure to appear or risk to commit another crime – so the “pay or stay” model doesn’t seem to advance a worthy objective.
The dollars don’t make sense either. In 2014, Mecklenburg County spent $113 million dollars on its local jail, roughly $166 dollars a day per inmate.
Many County leaders are not comfortable with wealth shaping judicial outcomes, and are attempting to shift how we look at bail and other forms of monetary punishment. In October, Mecklenburg County was awarded a $2 million-dollar grant aimed at reducing its incarcerated population. The grant came from the John D and Catherin T, MacArthur Foundation, with the goal of reducing our jail population by 13%.
To achieve its reduction goal, the County looking to implement the following programs:
For more information on disparities in the justice system and County policies, contact Parton & Associates, PLLC.
Drafted by Micheal L. Littlejohn, Edited by Corey V. Parton
Earlier this week, Mecklenburg County became the latest victim of a ransomware attack that resulted in a shutdown of the County’s IT systems. The Hackers demanded $23,000 in Bitcoin in exchange for an encryption key that would release the files. The County was left with the choice of either paying the ransom and restoring their usual systems, or resorting to old fashioned paper systems. As the deadline passed to meet the Hacker’s demands, Mecklenburg County Manager Dena Diorio announced she will not pay criminals and that the County would rebuild its system applications and restore files and data from backups. Some of Parton & Associates Clients may be impacted by interruptions in the following County services:
Criminal Justice Services
Child Support Enforcement (CSE)
Community Support Services
Mecklenburg County has been providing updates on their website at the following link: http://bit.ly/2BY05fK
Drafted by Attorneys Micheal L. Littlejohn & Corey V. Parton
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The law applies differently in each situation. Nothing on this page should be construed as or be relied upon as legal advice.