North Carolina Lawyers Weekly March 2023

STEPPING UP

Female attorneys are closing the gender gap in the

PAGES 4-7

5 QUESTIONS WITH New Morningstar Law Group partner Swain Wood discusses navigating government investigations, negotiation and litigation.

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FEATURE

Mecklenburg County District Attorney Spencer Merriweather has dedicated his career to public service.

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Meeting the Moment

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CONTENTS

COVER STORY: TIPPING THE SCALES

p4 | Female attorneys in the Carolinas are closing the gender gap — but work still remains

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SERVICE BEFORE SELF

p8 | Mecklenburg County District Attorney Spencer Merriweather has dedicated his life to public service

5 QUESTIONS WITH

p10 | New Morningstar Law partner Swain Wood on all things government investigations and negotiation

IN THE NEWS

p15 | Latitude offers law firms recruiting solutions

COURTS

p16 | 4th Circuit rules on web domain re-registrations

OPINIONS

p19 | Highlights of Court of Appeals opinions

VERDICTS & SETTLEMENTS

p25 | The latest results on North Carolina legal action

LAWYERS IN THE NEWS

p28 | A roundup of personnel news across North Carolina

COMMENTARY

p30 | The tide is turning against noncompetes

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COMMENTARY

p34 | It's time to raise judicial pay in North Carolina

CAROLINA PARALEGAL NEWS

p35 | Interships fuel interest in law careers

p38 | New e-filing system a work in progress

p39 | Q&A: Mikki Hancock

p40 | Q&A: Cheryl LeGrand

TIPPING THE SCALES

In 1970, Victoria Eslinger, a first-year law student at the University of South Carolina, approached a Senate clerk with her application to serve as a page.

“He leaned down and looked at me and said, ‘Well, you’re a girl,’ and I said, ‘Yes sir,’” Eslinger said. “He said, ‘Well, we don’t hire girls. If you were your brother, we would be happy to have

you.’ I said, ‘I don’t think you can do that. I think that’s a violation of the 14 th Amendment.’

“He leaned down and patted me on the head and he said, ‘So, sue me.’ So, I did.”

As a first-year law student, Eslinger brought a lawsuit against the governor and the South Carolina Senate for discrimination. Her lawyers included Jean Toal, who later became chief justice of the South Carolina Supreme Court, and Ruth Bader Ginsburg, former associate justice of the Supreme Court of the United States.

“It took three years,” Eslinger

said. “And now there are women in South Carolina’s Senate as pages. Now we have women senators, I’m happy to see. This was sort of the beginning.”

Eslinger graduated from the University of South Carolina School of Law in 1973 as one of five women in her class. She went on to form the South Carolina Women’s Lawyers Association, and is now a senior counsel at Nexsen Pruet, and a faculty member at Harvard University School of Law.

Eslinger’s is among the genera-

See Page 5

B y H aviland S tewart • hstewart @ nclawyersweekly . com

Female attorneys in the Carolinas are closing the gender equality gap — but work remains

Victoria Eslinger

tion of women that paved the way for female attorneys across the Carolinas, and nationally.

“When I started practicing law, only 3% of the nation's lawyers were female,” Eslinger said. “I remember somebody thinking it was a great compliment to tell me I was pretty smart for a woman.”

While the discrepancy between men and women in leadership positions in the law field remains, according to a 2020 global study conducted by the Thomson Reuters Institute, women now make up 56% of junior associates. While this is a notable improvement from 50 years ago there is still work to be done.

“I know women go into law school pretty equally, if not more than men right now,” Aindrea Pledger, attorney at Daggett Shuler said.

“However, when you look at leadership, that is just not the case. There’s not nearly as many women partners in organizations. I think that having all the perspectives at the table is very important, because the people we represent are extremely diverse. The world is diverse, so we must have diverse voices at the table.”

Despite the fact that industry data shows gender diversity to have positive impacts on law firm performance, women account for only 24% of equity partners, according to the 2020 study.

Owner and founder of Sharp Law Firm, and immediate past president of the South Carolina Bar, Mary Sharp is among women in leadership roles in the

Carolinas.

“When I started practicing law about 30 years ago, I was in a small, rural part of the state,” Sharp said. “I’m a trial lawyer, so I found myself going to roster meetings and seeing portraits of men on the walls, and not many women in the courtroom with me, and I experienced periodic discrimination or harassment.”

Lingering cultural attitudes about women’s roles in the home has been identified as a barrier for women in the law field.

“Sometimes you walk into a place and people seem surprised,” Regina Hollins Lewis, Member at Gaffney Lewis LLC said. “They look at you like, ‘Oh gosh, this is not who I thought it was going to be.’”

Since then, Sharp has noticed the importance of mentorship among female attorneys and has gotten involved in many organizations that provide community and support to women in the law field. In the past, she has acted as president of the South Carolina Women’s Lawyers Association, and president of the National Conference of Women’s Bar Associations.

“I saw that there were ways women’s lives could be improved as lawyers,” Sharp said. “Getting involved in bar organizations and women’s bar organizations was a way to try to help further women’s roles in the legal profession.”

The theme of community and mentorship is echoed by many other women in law across the Carolinas.

“The way to survive as a woman in law, is to surround yourself with other women in law,” Pledger said.

Despite the organizations and associations aimed at supporting women attorney, nationally, women are choosing to leave law after facing barriers. According to an American Bar Association study, by age 50, women make up only 27% of the profession.

The ABA report includes input from more than 1,200 big firm lawyers who have been in practice for at least 15 years. According to the study, women were far more likely than men to report factors that blocked their, “access to success,” including lacking access to business development opportunities, being perceived as less committed to career, and being denied or overlooked for promotion.

“At the 10 to 12 year mark is really where we’re seeing women leave,”

Samantha Sliney, attorney at the U.S. Air Force, and North Carolina Association of Women Attorneys immediate past president said. “In different surveys and data when you ask women why they leave, many will cite striking the balance between career and parenthood, they will cite lack of support, like lactation support, they will cite lack of standardized parental leave.”

The research showed that although firm leaders and male partners believe their firms are

Page 6

Aindrea Pledger

Mary Sharp

Regina Hollins Lewis

Samantha Sliney

succeeding in advancing experienced women, women tend to disagree. For example, 84% of managing partners agreed that their firms have succeeded in promoting women into leadership, and 75% of experienced men agreed whereas just 55% of women agreed.

“The fact that women find themselves in the position where they feel like they had to choose between the family they wanted and the career they wanted, I find to be very sad,” Sliney said. “What that tells me is that we don’t have the support and protections under the law that mandate employers to provide that support to women so they feel like they can do both.”

To create support and equality within firms, Jennifer Van Zant, partner at Brooks Pierce, believes it is vital for people to be cognizant of their unconscious bias, and educate themselves about the discrepancy in compensation and leadership.

“I would like people to look at their own firms and their own situation and try to identify what barriers there are to success within their organization,” Van Zant said.

According to Pledger, in order to combat the lack of retention of female attorneys, women’s voices need to be involved in creating policies to cultivate an environment that will retain more women.

“Biologically and anatomically, we face different phases of wom -

anhood that men don’t face,” Sliney said. “It just requires differing levels of support for us to be able to manage a career, and womanhood, and motherhood –should you decide to have children.”

According to the ABA study, flexible working arrangements have been cited as an effective method to increase women’s ability to reach senior management roles.

“The pandemic really ushered in a lot of remote work,” Pledger said. “I think that has been helpful for working parents a lot of which are moms. We’ve been able to have remote depositions and remote hearings. All of those things that allow flexibility into the schedule help retain working mothers.”

Since remote and hybrid work became more common, woman have faced less difficulty in their legal career and ultimately rising to leadership positions, which has a long term effect on women in the law field.

“Once you see the example of women in leadership roles, it really just inspires hope for those that are younger that it is attainable,” Sliney said. “Organizations like North Carolina Associations of Women Attorneys strives to ensure that example is out there and that we are setting the stage and creating an environment where women can be successful in the legal profession.”

Leadership outside of law firms, but in the bar, are seeing similarly increased trends of women in leadership roles over the past few decades. As

the 123 rd president of the North Carolina Bar Association, Caryn McNeill, partner at Smith Anderson, was the seventh woman to hold the position.

“We’ve stopped counting in that way though, which I think is a good thing,” McNeill said. “It’s normal enough that people have lost track of what the number is.” While the gender disparity in law field leadership remains prevalent, according to

Annemarie Pantazis, Managing Partner at Wilder Pantazis Law

Group, it no longer viewed as abnormal for women to hold these positions.

“I think women have made so many strides, but what I love the most is that it’s not unusual anymore to be a woman who owns a law firm or a woman who’s a managing partner or a woman who has a seat at the table, it’s typical,” Pantazis said. “I think that’s the biggest stride, that’s not unusual. It’s becoming the norm and not the exception, which is exactly where it should be.”

To keep the advances that women have made in the law field, Eslinger echoes the words of her former attorney, Jean Toal, urging female attorneys in leadership roles to “keep the ladder down,” and help their fellow women in law reach similar success.

“I do a lot of talks to young women lawyers,” Eslinger said. “I usually end it by telling them that I hope they’ll live their lives in such a way, that every morning when their feet hit the ground, Satan shutters and says, ‘Oh crap, she’s awake.’”

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Annemarie Pantizis

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Mecklenburg County DA Spencer Merriweather dedicates career to public service

Hand in hand with his mother, 3-year-old Spencer Merriweather marched in protest of the brutal lynching of Michael Donald, in his hometown of Mobile, Alabama.

“The Klan picked him up in the middle of the night,” Merriweather said. “They beat him terribly and hung from a tree in a neighborhood not far from where I'm from.”

A friend of Merriweather’s mother was a prominent attorney in the case Donald v. United Klans of America, that resulted in civil remedies and in

the bankruptcy of the United Klans of America, which was known as one of the largest and most violent factions of the KKK.

“That was the first inkling that I had about, ‘Wow, this is what lawyers do,’” Merriweather said.

Since his first act of political activism, Merriweather has dedicated his career to public service. As district attorney for North Carolina’s largest prosecutorial district, Mecklenburg County, Merriweather has focused on prosecuting violent offenses, supporting victims, and creating a safer

community.

Merriweather grew up with a passion for public service, and political activism instilled in him. Both of his parents worked as public school educators in Mobile, and his father was also a Parks and Recreation director, showing Merriweather firsthand the importance of service.

“My parents, carry a lot of history with them too, they were black people in the state of Alabama who were among the first in a generation of

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B y H aviland S tewart • hstewart @ nclawyersweekly . com

Spencer Merriweather has focused on prosecuting violent offenses and supporting victims.

(Photo/Provided)

Continued From Page 8

African Americans to attend college in both of their families,” Merriweather said. “My dad arrived at Alabama State University in Montgomery in time to boycott buses, and my mother was among the first African American educators to teach in what had formerly been a predominantly white high school.”

After high school, Merriweather went on to attend Princeton University, graduating in 2000 with a bachelor’s degree in politics. He then attended University of North Carolina and graduated with his J.D. in 2005.

After finishing law school, Merriweather began his career as a legislative associate in the Office of Delegate Eleanor Holmes Norton of the U.S. House of Representatives. He became assistant district attorney in Mecklenburg County in 2007, where he worked as a felony trial attorney, prosecuting homicide, sexual assault, domestic violence, and drug crimes.

Merriweather has served as the district attorney since 2017 after being appointed by North Carolina Gov. Roy Cooper. He was sworn in for his second full term in January 2023. Since stepping into the role of DA, Merriweather has implemented several programs to confront crime in the community, create accessible resources for victims, and reform the justice system.

“When I got to this office, and I saw the wide spectrum of people that I would engage with and the wide spectrum of issues that one had to confront on a daily basis, it reminded me of what I saw through my dad's eyes and what I saw through my mother's eyes,” Merriweather said. “I could use the skills that I had and the knowledge that I gained in law school, and I could employ the sense of advocacy that I saw from my boss on Capitol Hill, Congressman Norton, but I was still dealing with, ‘real people,’ and that that was something

that greatly appealed to me and quite frankly, still does.”

During his time prosecuting sexual assault and domestic violence, Merriweather noticed ways in which the justice system was failing women and children. He recognized the importance of prosecuting sexual violence and the necessity of creating a culture where women feel empowered to report these crimes.

“You see [the victim] for just one moment, be able to reclaim a reclaim this power that was taken from them at their most vulnerable moment,” Merriweather said. “I have never worried about whether or not I was making an impact in my job. I knew by bringing those sorts of things to light and aiding a survivor, or a family, or others in reclaiming that kind of

and support to vulnerable victims, including the Survivor Resource Center, the Family Justice Center, and the Umbrella Center, that provide accessible comfort and protection to survivors and their families.

“A common model in the absence of a Family Justice Center, or in the absence of a Survivor Resource Center, you have to go five different places, get on the phone with five different people, and fill out 12 different forms,” Merriweather said. “Each one of those different phone calls, forms and visits are a place where a survivor might decide, ‘You know what, it's not worth it, it's not that big of a deal.’ By making those services available in one place, it increases public safety as a whole. It strengthens and empowers that survivor and makes it

strength, that that was important.”

While passionate about prosecuting domestic and sexual violence, Merriweather wanted to create a system where victims are nurtured and protected, rather than retraumatized by the court system. To address this, he created a Special Victims Team, made up of attorneys dedicated to prosecuting these crimes using trauma-informed practices. This team relies on alternative evidence to prove guilt, so the plaintiff is not forced to testify in court.

In effort to protect women and children in Mecklenburg County, Merriweather has established multiple facilities aimed at providing care

more likely that they're going to be in a place of protection and comfort, which enables us to hold abusers accountable in the way that's necessary.”

While providing immediate care for victims and families through the use of advocates, counselors, health professionals, and law enforcement, these programs also seek to end the cycle of domestic and sexual violence.

“It is common for people who have been exposed to trauma at an early age, and who have seen patterns of inner interpersonal violence repeated

See Page 32

“Justice, true justice, is not encapsulated by the number of guilty verdicts that you hear,” Merriweather said. “It's encapsulated by whether or not the right thing was done.”

-Spencer Merriweather

QUESTIONS WITH... Swain Wood

Swain Wood, who served as the first assistant attorney general of North Carolina, supervising the civil, criminal, multistate and appellate legal work of the Department of Justice under Josh Stein since 2017, recently rejoined Morningstar Law Group as a partner.

At Morningstar, Wood will lead a new, national practice focused on helping clients navigate the complex legal and political challenges associated with government investigations, negotiation, and litigation, including matters involving state attorneys general and other government entities.

While in the attorney general’s office, Wood was involved in many high profile issues, including the multi-billion-dollar national opioid settlements with multiple Fortune 50 companies. Wood also directed North Carolina’s investigation and litigation against e-cigarette make Juul for marketing to children and negotiated the state’s coal ash clean-up agreement with Duke Energy.

In the following Q&A, Wood chats with North Carolina Lawyers Weekly his experience as First Attorney General, his involvement in the multi-billion-dollar national opioid

settlements, and the new national practice at Morningstar Law group focused on government investigations, negotiation.

Q. What have you learned through your experience as First Attorney General that you're excited to integrate into your new position?

A: One of the greatest things I learned was the sheer enjoyment of being part of a really high-functioning team of talented and hard-working people who trust each other and are doing critically important work. Leading the legal operations of a 300+ lawyer department in North Carolina’s Attorney General’s Office and working closely with Attorneys General and their senior staffs in other states on multi-state investigations and litigation required an enormous amount of trust going in all directions. When you’re with the right people and the team is working well, as it did for me at NC DOJ, it is truly a special experience. I have no doubt that being back with my colleagues and friends at Morningstar will be every bit as enjoyable and rewarding.

Q. What are some of your goals regarding leading the new national practice focused on government investigations, negotiation, and litigation at Morningstar Law Group?

A: As a state, North Carolina has become a major player on the national scene in so many areas, ranging from job creation to new technologies to politics to basketball. The talent that exists in our legal community – in private practice, government, corporate in-house, and non-profits — is as strong as anywhere in the country. So even while we continue to serve our local communities, there are tremendous opportunities to make use of our resources to help clients both here and around the country tackle challenges that have national impact. Many of those challenging issues arise at the point where law, business, public policy, and politics intersect, and often come in the form of government investigations and litigation involving state attorneys general and, increasingly, local governments. My main goal as we launch this new practice group is to help guide clients to successful resolutions of those complex, multi-dimensional challenges.

Q.Throughout your career, you have been involved in many high-profile cases, including the multi-billion-dollar national opioid settlements with multiple Fortune 50 companies in what the New York Times referred to as, “one of the most complicated and gargantuan legal battles in American history.” Do you agree with that description? Why or why not?

A: Without a doubt, the battles and teamwork that led to the national opioid settlements were “complicated and gargantuan,” and the result was certainly historic in the relief it will provide to help fight the addiction crisis for the next 17 years. Figuring out how to bring together nearly all US states, D.C., and the territories — each with its own leadership and goals – was a major challenge. When you add the thousands of counties and cities

that were also involved, it became exponentially more complex. Standing alone, several of the deals with individual companies would have been among the biggest multistate settlements in US history. By dealing with multiple major industry players nearly simultaneously, where they often spurred each other into action and compromise, we were able to construct a combined series of deals that is second in size only to the national tobacco settlement in the 1990s.

Q. What type of litigation are you post passionate about, and how do you hope to cultivate that passion in your new role at Morningstar?

A: I’m most passionate about litigation that has no easy answers and requires you to think strategically at every moment to get to a successful conclusion. With those

kinds of cases, successful conclusions inevitably require not just hard-nosed litigation, but also careful negotiation and diplomacy, and usually some degree of compromise, to reach an end result that accomplishes the client’s strategic goals.

Q. As an avid runner and hiker, what is your go-to trail/place to escape to?

A: I started running seriously during the pandemic on the greenways and bike paths of Raleigh. There’s lots of variety, history, and beauty on those trails — often in places you don’t expect it. For hiking, the trails in Big Sur overlooking the Pacific Ocean are extraordinary (although they’ve suffered in recent years from wildfires). But honestly, the mountains of North Carolina are as beautiful a place to hike as anywhere I’ve ever been.

Bill Nettles

Former

FINDING A BALANCE

Legal recruiting firm Latitude opens office in Charlotte

B y H aviland S tewart • hstewart @ nclawyersweekly . com

After nearly 30 years as a litigation attorney, Clark Goodman decided to hang up his attorney cap, and switch into the world of legal recruiting for the national firm, Latitude, when it launched a Charlotte office in January 2023.

Goodman, who was previously the Charlotte office managing partner at Womble Bond Dickinson, is the founder and leader of Latitude’s Charlotte office, which will serve legal departments and law firms in the Carolinas and across the nation.

Latitude has seen great success in the past year, opening five new locations since January 2022, including Charlotte, Minneapolis, Philadelphia, San Francisco and St. Louis.

Latitude’s goal is to work to help firms balance staffing in a cost efficient way while creating a more sustainable work environment for attorneys’ mental health and wellbeing.

While broadly, lawyers are known to experience mental health struggles at a high rate, awareness of the problem seems to be increasing, as firms take more tangible action to provide mental health support. By providing firms with additional attorneys when needed, firms are less likely to overwork their attorneys and

negatively contribute to their mental health.

“The direct benefits are that we provide another legal staffing resource for law firms and legal departments, and opportunities for legal professionals who may want or need alternative career paths,” Goodman said. “A less obvious benefit which aligns with my own passions is to support the health and wellness of professionals.”

A challenge that Goodman faced while working in law firm leadership, was forecasting work demands. Firm leadership is often tasked with deciding the number of attorneys their firms are going to need at a given time, which has proved difficult to maintain the right balance of staffing, when caseloads are in constant fluctuation.

“You want to have enough [staff] to meet the demand efficiently, without carrying excess capacity,” Goodman said. “So, you have this constant tension between maximizing utilization – keeping everybody busy and maintaining sufficient capacities to ensure that you can provide outstanding service and retain your best people. Latitude helps its’ clients overcome this challenge by providing the right legal professionals for the time that they are needed, in a way that is cost effective. This helps law firms and legal departments scale their teams to the existing demands without having to maintain excess capacity at all times just in case there's a surge in demand.”

By providing a viable and cost-ef-

fective way to ensure adequate staffing to meet temporary surges in demand, Latitude hopes to help employers in the legal profession support the wellness of their valuable team members.

Goodman’s extensive background in litigation and law firm management, aligns perfectly with Latitudes “peer to peer,” service model. This means that Latitude aims to staff former practicing attorneys and law firm decision makers, to ensure that clients are being provided high quality service, by a professional who understand their client’s situation.

“Our niche really is this peer-topeer service model of having people like me, who are experienced legal professionals and have been in decision making roles, helping provide the talent to our counterparts who are still decision makers in law firms and legal departments in a way that that helps them meet their staffing demands,” Goodman said.

While a big change from practicing law, at its core, this new position similarly aligns with Goodman’s passions for problem solving.

“As a litigator, I found fulfillment in helping clients solve problems,” Goodman said. “Sometimes that solution was a successful legal argument and sometimes it was a hard fought trial or arbitration. In my new role with Latitude, I’m going to continue helping clients solve problems. Instead of having to deal with the challenge of a legal dispute, I’m going to be helping them address the challenge of maintaining the right level of staffing in a way that’s cost effective and promotes the preservation of the existing team.”

Clark Goodman

4th Circuit: ACPA covers domain re-registrations

Cybersquatters may violate federal law even if they aren’t the original registrants of the challenged domain, according to a ruling from the 4th U.S. Circuit Court of Appeals.

In a matter of first impression, the Fourth Circuit affirmed summary judgment against a Chinese company accused of violating the AntiCybersquatting Consumer Protection Act, or ACPA, by re-registering a domain name with a bad faith intent to profit.

“[W]e join the Third and Eleventh Circuits in holding that the term ‘registers’ and its derivatives extend to each registration of a domain, including the initial registration and any subsequent re-registrations,” Judge Stephanie D. Thacker wrote. “Where a successive registration of a disputed domain name postdates the trademark registration of the corresponding mark, the mark owner may show that

the successive registration was done in bad faith.”

The judge also concluded that the defendant wasn’t rescued by the ACPA’s “safe harbor” provision.

Thacker was joined by Senior Judge Henry F. Floyd and Judge Albert Diaz in The Prudential Insurance Company of America v. Shenzhen Stone Network Information Ltd. (VLW 023-2-024).

PRU.COM

Prudential Insurance Company of America is a worldwide insurance and financial services company. In November 2002, Prudential registered several trademarks on the term PRU and other PRUformative marks in the U.S., as well as several other countries and territories.

Because an unaffiliated company named “Prudential plc” uses the PRUDENTIAL trademark in China, Prudential agreed not to use its marks on

that country’s mainland.

Shenzhen Stone Network Information, or SSN, is a Chinese internet company that distributes financial and economic information to Chinese consumers online and focuses on the foreign exchange industry.

Zhaoyuan Zhang, a Chinese citizen and SSN’s CEO, purchased the PRU.COM domain name for SSN from an unidentified Texas company in October 2017. Zhang registered the domain with GoDaddy and agreed to its dispute resolution policy with jurisdiction in Arizona for most disputes.

Visitors to PRU.COM were routed to a GoDaddy landing page with pay-per-click hyperlinks displaying Prudential’s marks and those of its competitors, as well as the phrase “Would you like to buy this domain?”

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A federal court has ruled that cybersquatters may violate the law even if they aren't original registrants of a challenged domain.. DepositPhotos

Prudential anonymously offered to buy PRU.COM in March 2020. But SSN refused, saying it had already received a “six figure” offer for the domain and demanding the buyer’s location and business before quoting a price.

Shortly after SSN rejected its offer, Prudential filed for administrative dispute resolution, and again tried to buy the domain from SSN, this time offering $50,000. Zhang rejected the offer, explaining that SSN planned to develop PRU. COM into a website covering foreign exchange economic news.

After dispute resolution failed, Prudential sued Zhang, SSN and the PRU. COM domain name in the Eastern District of Virginia. Prudential claimed the defendants violated the ACPA by registering a domain name identical to their distinctive mark with the bad faith intent to profit.

The district court dismissed Zhang as a defendant for lack of personal jurisdiction, but allowed Prudential’s claims against SSN to proceed.

Even though SSN wasn’t the initial registrant of the domain, the district court determined that the ACPA encompassed subsequent re-registrations.

The district court concluded that SSN possessed the bad faith intent to profit from the disputed domain, granted Prudential’s motion for summary judgment and ordered SSN to transfer PRU. COM to Prudential.

Registration

Thacker explained that a cybersquatter who registers a domain identical or confusingly similar to a distinctive or famous mark with a bad faith intent to profit from the domain is liable to the trademark owner under the ACPA.

But “registers” isn’t defined in the statute. While other circuits have split on the word “registers” and its derivatives, Thacker said it was an issue of first impression for the court.

She noted that the Merriam-Webster Dictionary defines “registration” as “the act of registering,” and re-register merely

means “to register again.”

“Therefore, the ordinary meaning of the word “registers” necessarily includes both the first registration and any subsequent re-registrations,” she wrote. “And because the ACPA does not expressly limit the term registers to only the initial or creation registration, we conclude that the re-registration of a domain name is a registration for purposes of the ACPA.”

SSN relied heavily on a 9th U.S. Circuit Court of Appeals ruling — GoPets Ldt. v. Hise — to bolster its contention that ACPA liability based on re-registration is improper since “[n]othing in the text or structure of the statute indicates that Congress intended that rights in domain names should be inalienable.”

Thacker said this reliance was misplaced.

“Because property interests are generally freely alienable, the Ninth Circuit declined to read the term ‘registration’ to include re-registrations because such an interpretation could frustrate the alienability of domain names,” she wrote. “While this concern is well-taken, it would be ‘nonsensical’ to not include re-registrations within the purview of the ACPA as it would allow for ‘the exact behavior that Congress sought to prevent.’”

Bad faith

Plaintiffs must satisfy two elements to prevail on a cybersquatting claim: the party using the domain had a bad faith intent to profit from it, and the domain name is identical or confusingly similar to or dilutive of a distinctive and famous mark.

“Here, there is no dispute that PRU. COM is confusingly similar to Prudential’s trademarked PRU because the parties agree that the domain name PRU.COM is identical to the trademarked term PRU,” Thacker said.

Thus, the “sole and dispositive issue” is whether SSN had a bad faith intent to profit from using the PRU.COM domain name.

Of the nine non-exclusive factors a court may consider when determining bad faith, Thacker found that eight favored Prudential.

In fact, she noted, SSN doesn’t use the PRU mark to advertise its organization and hasn’t ever actively used PRU.COM.

“It is undisputed that while registered to SSN, PRU.COM resolved to a parked page accessible in the United States, where Prudential uses the PRU and PRU-formative marks,” the judge wrote. “And SSN does not have any valid property rights in the PRU mark in any country, and thus, is not a legitimate concurrent user.”

No safe harbor

Finally, Thacker said SSN failed to satisfy requirements for the ACPA’s safe harbor provision.

“[N]otably, at the bottom of the document SSN submitted as evidence of the purported tutorial videos it launched online at PRU.COM in early March 2020, there is a ‘Notice of Non-Affiliation’ stating, ‘pru.com is not … in any way officially connected with [Prudential],’” the judge wrote. “This statement directly contradicts SSN’s claims that it did not have knowledge of Prudential or Prudential’s trademarks prior to March 2020.”

The district court’s grant of summary judgment to Prudential was affirmed.

‘Important circuit’

Lucy Wheatley, a partner at McGuire Woods, litigates high stakes intellectual property cases.

“The Fourth Circuit is a very important circuit for domain name issues because Verisign is located in Virginia, and they are the registry for .com’ domains,” she told Virginia Lawyers Weekly. “It’s nice to see a clear decision from the Fourth Circuit on the side of registration having a broader meaning than just the initial registration.”

She added that many practitioners have found the Ninth Circuit’s GoPets opinion to be “problematic.”

“We’ve certainly had clients who faced cybersquatting problems and there’s been an issue as to what remedies are available to them,” she said.

‘Deliberate indifference’

Deaf man’s suit over hospital’s lack of interpreter reinstated

Adeaf man who sued a hospital after it failed to provide him with an interpreter during his wife’s childbirth had his disability discrimination lawsuit reinstated by the U.S. 4th Circuit Court of Appeals.

The Fourth Circuit reversed the decision by the district court to dismiss the man’s claims after finding he “has plausibly pled enough under the Rehabilitation Act to survive a Fed. R. Civ. P. 12(b)(6) dismissal motion.”

“Although hospital staff provided some auxiliary aids in the form of two [Video Remote Interpreting] machines, its failure to address the substantial shortcomings of these devices over a three-day period despite repeated requests for an interpreter gives rise to a plausible inference of deliberate indifference,” Judge J. Harvie Wilkinson III wrote.

Wilkinson’s opinion in Basta v. Novant Health Incorporated (VLW 022-2-272) was joined by Judge Paul V. Niemeyer and Senior Judge William B. Traxler Jr.

Neil Basta, a “profoundly deaf individual” who primarily communicates in American Sign Language, or ASL, sought medical care for his pregnant wife at Novant Health Huntersville in June 2017.

Basta’s wife had experienced life-threatening complications during a previous childbirth, so Basta sought to act as her healthcare proxy and communicate with the hospital during his wife’s childbirth “in the event that his wife could no longer advocate for herself.”

Per the opinion, Novant Health’s website states that interpreter services, including “sign language interpreters” and “other services for deaf or hard-of-hearing individuals,” are available free of charge upon request. Basta asked that he be provided with a qualified ASL interpreter prior to June 2017 and was assured one

would be on site if he contacted the hospital while in route to the facility.

When his wife went into labor, Basta contacted Novant Health and repeated his interpreter request, but was told to wait until his arrival. Basta and his wife then repeated the request, which a staffer said the hospital was working on.

Novant Health provided Basta with a video remote interpreting device, or VRI, which would allow Basta to communicate with an interpreter via an internet stream. This device malfunctioned and was “blurry, choppy, and did not have a clear enough picture” for communication.

A second VRI device was brought into the room later, which also malfunctioned. The device was also plugged in away from Basta’s wife’s bed, “which required Basta to leave his wife’s bedside to use.”

After the second VRI device malfunctioned “Novant Health did not provide a live in-person interpreter or any other auxiliary devices” for the duration of Basta’s three-day stay, despite repeated requests for interpreters. Because of this, Basta claimed he was unable to ask questions or comprehend what was going on during the delivery process.

Basta filed suit against Novant Health, alleging violations of the Rehabilitation Act, the Patient Protection and Affordable Care Act, or ACA, and Title III of the Americans with Disabilities Act. Basta sought declaratory and injunctive relief under his Americans with Disabilities Act claim and compensatory damages under the other two claims.

Novant Health filed a motion to dismiss Basta’s claims, arguing Basta lacked standing for injunctive relief under the ADA and failed to state a claim as to his other two claims.

A magistrate judge advised that Novant Health’s motion to dismiss be granted in its entirety.

Basta objected to the magistrate’s recommendation as to the RA and ACA claims, but conceded his ADA claim.

The district court adopted the recommendation of the magistrate judge and dismissed Basta’s complaint in full.

Basta appealed the order of the district court. His complaint, he contended, plausibly alleged claims under the proper statutes. He also argued that intentional

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The U.S. 4th Circuit Court of Appeals has reinstated a lawsuit filed by a deaf man against a hospital after it failed to provide him with an interpreter during his wife's childbirth. Pexels.com

discrimination via deliberate indifference existed in this case and could be proven by the fact that Novant Health “failed to provide any other interpretive services or auxiliary aids despite repeated requests” after the VRI devices malfunctioned.

Wilkinson agreed with the district court’s analysis that Basta’s remaining claims “rise and fall together,” and first focused on the standard of compensatory damages under the Rehabilitation Act.

“A plaintiff who proves a prima facie violation of the RA may seek the remedies available under Title VI of the Civil Rights Act, including damages,” Wilkinson wrote. To do so requires the plaintiff to prove that a defendant-entity failed to provide appropriate aids and “acted with an intent to discriminate.”

Both parties in the case proceeded under a “deliberate indifference” standard, with Wilkinson noting most sister circuits “have also found that intentional

discrimination can be proven via deliberate indifference.”

“Because there is a substantial interest in preserving a uniform approach to this question, we too will proceed under that standard,” Wilkinson said.

The standard requires a plaintiff to plausibly plead the defendant “knew that harm to a federally protected right was substantially likely and failed to act on that likelihood.”

The district court ruled in Novant Health’s favor on this, reasoning that “systemic and pervasive problems, rather than an isolated incident … must exist to succeed in showing intentional discrimination through deliberate indifference.”

Wilkinson disagreed.

“Requiring plaintiffs to make this showing improperly shifts the emphasis under the Rehabilitation Act from the violation of an individual right at a discrete point in time to widespread violations, spanning across multiple people or multiple visits,” Wilkinson wrote.

The judge said the Rehabilitation Act seeks to protect individual citizens, and compelling findings of a longstanding pattern would “defeat this goal.”

As to the current case, Wilkinson said the fact that Novant Health had notice of Basta’s need for auxiliary aids and failed to provide them, knowing that would create a communication barrier for Basta, “supports a finding of deliberate indifference.”

The judge said Basta’s main argument “is not the malfunctioning VRI on the first day of his stay: it is that despite repeated requests for another auxiliary aid … Novant Health did nothing to ensure that Basta could communicate with its staff for the rest of his three days at the hospital.”

The court reversed the district court’s dismissal of Basta’s Rehabilitation Act Claim.

Also, since Basta’s ACA claim was predicated on the plausibility of his Rehabilitation Act claim, the court also reversed the dismissal of that claim.

To view the full list of opinion digests, please visit www.nclawyersweekly.com.

Civil Practice

Statute of Limitations – Refiled & Amended Complaints – Rule 41 Savings Clause – Different Plaintiff

After the statute of limitations had expired, the complaint was amended so that it changed the identity of the plaintiff. The substituted plaintiff’s claims do not relate back to the filing of the same claims asserted by the original plaintiff.

We affirm summary judgment for defendant.

This action to recover water and sewer access fees was originally timely filed, then voluntarily dismissed, and timely refiled pursuant to the savings clause in N.C. R. Civ. P. 41. However, it turned out that the plaintiff named in the original and refiled complaints, Texas corporation Gantt Construction Co., is not at all affiliated with Gary Gantt, the developer who paid the access fees. After the expiration of the three-year statute of limitations set by G.S. § 1-52(15) for recovery of an unlawful fee, the complaint was

amended to substitute Gary Gantt d/b/a Gantt Construction as plaintiff.

In this case, two separate and distinct legal entities have filed pleadings as the named plaintiff: “Gantt Construction Company[,] . . . a corporation organized and existing under the laws of the State of Texas with its principal place of business in Texas[,]” filed complaints on 11 January 2019 and on or about 28 April 2020; meanwhile, “Gary Gantt d/b/a Gantt Construction” filed the amended complaint with leave of court on 13 January 2021. It is well established that, to benefit from the one year extension provided by Rule 41 following a voluntary dismissal, the refiled suit must involve the same parties.

“Gary Gantt d/b/a Gantt Construction” is neither a corporation nor incorporated under the laws of Texas. Accordingly, we conclude that plaintiff cannot avail himself of relation back under Rule 41(a), because the second action does not involve the “same parties” as the first. Since the amended complaint was not filed until on or about 28 April 2020, after 14 November 2019—the

last date plaintiff could have timely brought his action—plaintiff’s claims are barred by the statute of limitations.

Affirmed.

Gantt v. City of Hickory (Lawyers Weekly No. 012-574-22, 9 pp.) (Jeffery Carpenter, J.) Appealed from Catawba County Superior Court (Nathaniel Poovey, J.) James DeMay, Daniel Bryson, Scott Harris and John Hunter Bryson for plaintiff; Paul Culpepper and Timothy Swanson for defendant. 2022NCCOA-920

Constitutional

First Amendment – Traffic Stop –Livestreaming Encounter with Police

Plaintiff has sufficiently alleged a town policy that violates his right to free speech: a ban on livestreaming a traffic stop by police. At the motion-to-dismiss stage, the town has not shown that the alleged policy is sufficiently grounded in and tailored

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to strong government interests to survive First Amendment scrutiny. However, plaintiff has not sufficiently alleged that the defendant-officers violated a clearly established right, so the officers are entitled to qualified immunity.

We affirm the district court’s grant of the officers’ motion to dismiss, but we vacate the grant of the defendant-town’s motion to dismiss.

The plaintiff-passenger has alleged that the town has a policy that prohibits an occupant from livestreaming their own traffic stop. And plaintiff’s allegation is plausible.

He supports his allegation by asserting: (1) defendant Officer Myers Parker Helms (sued in both his official and individual capacities) tried to seize his phone upon learning plaintiff was streaming to Facebook Live; (2) Officer William Blake Ellis (sued in his official capacity only) said that in the future if plaintiff broadcasts on Facebook Live his phone will be taken from him and, if plaintiff refuses to give up his phone, he will go to jail; and (3) both officers justified their efforts to prevent livestreaming using the same officer-safety rationale. It is a reasonable inference that absent a policy the two officers would not have taken the same course, for the same reason, nor would those officers have known in advance that plaintiff would face the same treatment if he tried to livestream another officer in the future.

Furthermore, recording police encounters creates information that contributes to discussion about governmental affairs. So too does livestreaming disseminate that information, often creating its own record. We thus hold that livestreaming a police traffic stop is speech protected by the First Amendment.

The town’s speech regulation only survives First Amendment scrutiny if defendants demonstrate that (1) the town has weighty enough interests at stake, (2) the policy furthers those interest and (3) the policy is sufficiently tailored to furthering those interests.

The town purports to justify the policy

based on officer safety. According to defendants, livestreaming a traffic stop endangers officers because viewers can locate the officers and intervene in the encounter. They support this claim by arguing that violence against police officers has been increasing—including planned violence that uses new technologies. In defendants’ view, banning livestreaming prevents attacks or related disruptions that threaten officer safety.

Even though the town has a strong interest in protecting its officers, defendants have not done enough to show that this policy furthers or is tailored to that interest. Nor is that gap filled here by common sense or caselaw. At this stage, plaintiff has plausibly alleged that the town adopted a livestreaming policy that violates the First Amendment.

Qualified Immunity

The First Amendment right here is a passenger’s alleged right to livestream their own traffic stop. There is no controlling authority in this jurisdiction that establishes plaintiff had this right when his car was pulled over.

In addition, none of plaintiff’s out-of-jurisdiction case citations address a passenger livestreaming a police officer during their own traffic stop. Instead, they generally are about video recordings, not livestreams, and the people doing the recording tend to be bystanders, not the subjects of the stop itself.

A different balance is struck when an officer prevents a bystander from recording someone else’s traffic stop than when the officer prevents a passenger from livestreaming their own stop. Without a consensus of cases barring the latter, plaintiff cannot show that a reasonable official in Officer Helms’s shoes would understand that his actions violated the First Amendment. Consequently, the district court was correct to dismiss the 42 U.S.C. § 1983 claim against Officer Helms in his individual capacity.

Vacated in part, affirmed in part, and remanded.

Sharpe v. Winterville Police Department (Lawyers Weekly No. 001-013-23, 23 pp.) (Julius Richardson, J.) (Paul Niemeyer, J.,

concurring) No. 21-1827. Appealed from USDC at Raleigh, N.C. (James Dever, J.) Andrew Tutt, Greg Doucette, Jing Wang, John Freedman, David McMullen and Isaac Ramsey for appellant; Dan Hartzog and Katherine Barber-Jones for appellees; Joseph Michael McGuinness, Lauren Bonds, Christopher Mills, David Milton, Victoria Clark, William Aronin, Vera Eidelman, Carl Takei, Irena Como, Kristi Graunke, Mickey Osterreicher, Alicia Wagner Calzada, Lin Weeks, Gabriel Rottman, Ian Kalish, Sarah Ludington, Megan Iorio, Jake Weiner, Sophia Cope, Mukund Rathi, Clark Neily and Jay Schweikert for amici curiae. 4th Cir.

Contract

Revolving Credit – Attorney’s Fees –N.C. Law

Despite conflicting lines of cases from North Carolina’s intermediate appellate court, we read G.S. § 6-21.2(1) and (2) as they are written and uphold the district court’s award of attorney’s fees to the plaintiff-lender in an amount equal to 15 percent of the outstanding balance of the defaulted loan.

We affirm summary judgment for the lender.

Mitigation & Obstruction

The defendant-borrower does not contest the fact that it defaulted on its revolving credit account (revolver) with the lender. The borrower asserted defenses, arguing that the lender failed to mitigate its damages and obstructed the borrower’s contract performance by declining to approve several third-party financing options. However, the borrower only proffered vague testimony from its majority shareholder, Greg Lindberg, with no details about these financing proposals.

This lack of detail matters. Under North Carolina law, the burden is on the breaching party (here, the borrower) to prove that the nonbreaching party (here, the lender) failed to exercise reasonable diligence to minimize the loss.

To avoid summary judgment, the borrow-

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er needed to raise triable issues about whether any of the purported financing offers could have prevented a breach, mitigated damages, or enabled repayments and whether the offers’ terms were sufficiently favorable that it would have been unreasonable or wrongful for the lender to withhold its approval. The borrower failed to do so.

Attorney’s Fees

In North Carolina, a prevailing party is not entitled to attorneys’ fees unless expressly authorized by statute. As relevant here, G.S. § 6-21.2 makes “[o]bligations to pay attorneys’ fees upon any . . . evidence of indebtedness . . . valid and enforceable . . . subject to” certain “provisions” set forth in the rest of the statute. This case requires us to interpret the relationship between two of those provisions.

The first—Subsection 1—addresses circumstances where the “evidence of indebtedness provides for attorneys’ fees in some specific percentage of the ‘outstanding balance.’” § 6-21.2(1). In that situation, “such provision and obligation shall be valid and enforceable up to but not in excess of fifteen percent of said ‘outstanding balance’ owing on said note, contract or other evidence of indebtedness.”

Subjection 2, in contrast, applies if the “evidence of indebtedness provides for the payment of reasonable attorneys’ fees by the debtor, without specifying any specific percentage.” § 6-21.2(2). In that case, “such provision shall be construed to mean fifteen percent of the ‘outstanding balance’ owing on said note, contract or other evidence of indebtedness.”

Though the North Carolina Court of Appeals has varying lines of cases construing this statutory language, the state Supreme Court has not reconciled them. We predict that the high court would give effect to the plain meaning of the statute.

This statute’s plain words divide the world into two types of fee-shifting provisions: those that “provide for attorneys’ fees in some specific percentage of the ‘outstanding balance’” and those that “provide for the payment of reasonable attorneys’

fees . . . without specifying any specific percentage.” § 6-.21.2(1)–(2). Because the revolver provides for “the reasonable fees, charges and disbursements of outside counsel and the allocated cost of inside counsel,” without mentioning any specific percentage, it is governed by Subsection 2. Subsection 2, in turn, provides the revolver “shall be construed to mean” that Academy is required to pay “fifteen percent of the ‘outstanding balance’” as attorneys’ fees.

It is well established in North Carolina that the word “shall” is generally imperative or mandatory, and here the inference is strengthened by the legislature’s use of “up to but not in excess of fifteen percent” in the directly neighboring Subsection 1. The district court thus did not err in imposing a 15 percent fee award.

Affirmed.

Colorado Bankers Life Insurance Co. v. Academy Financial Assets, LLC (Lawyers Weekly No. 001-020-23, 13 pp.) (Toby Heytens, J.) No. 22-1104. Appealed from USDC at Raleigh, N.C. (James Dever, J.) Matthew Nis Leerberg, Matthew KruegerAndes and Aaron Tobin for appellant; Lauren Elizabeth Fussell, Camden Webb and Alexander Gormley for appellee. 4th Cir.

Corporate

Records Request – Affiliated Company – Board of Directors –Voting Agreement

Although the Delaware charter of defendant Cycle Labs, Inc., gives a North Carolina company (defendant Cycle Holdings, Inc.) the voting power to elect a majority of Cycle Labs’ directors (i.e., three of the five directors), a voting agreement between Cycle Holdings and a new investor in Cycle Labs restrains the way Cycle Holdings may vote as to one of those three seats. Since the voting agreement is valid under Delaware law, Cycle Holdings no longer has the authority to elect a majority of Cycle Labs’ directors. As a result, plaintiff, as a qualified shareholder of Cycle Holdings, no longer has the right under G.S. § 55-16-02 to inspect the records of Cycle Labs.

The court grants partial summary judgment for defendants.

G.S. § 55-16-02(h) provides, “A qualified shareholder of a corporation that has the power to elect, appoint, or designate a majority of the directors of another domestic or foreign corporation . . . has the inspection rights provided in this section with respect to the records of that other corporation.”

Plaintiff, a qualified shareholder of Cycle Holdings, seeks to inspect the records of Cycle Labs pursuant to § 55-16-02(h). At issue is whether – after entering into the voting agreement with a new investor –Cycle Holdings still has the authority to elect a majority of Cycle Labs’ directors. The voting agreement requires Cycle Holdings to use its voting power to elect the Cycle Labs CEO to one of the three board seats that the Cycle Labs charter gives Cycle Holdings the authority to fill.

The parties agree that Delaware law controls the validity of the voting agreement.

Plaintiff argues that the voting agreement is an invalid attempt to restrict Cycle Holdings’ unfettered right to elect a majority of Cycle Labs’ directors as guaranteed in Cycle Labs’ certificate and that any such change in Cycle Holdings’ rights with regard to the composition of the board could only be effectuated through an amendment to the certificate itself.

However, voting agreements are expressly authorized under the Delaware General Corporation Law, and the Delaware Supreme Court has made clear that shareholders possess significant flexibility in entering into such agreements.

Neither the parties’ briefs nor the court’s research has disclosed any case in which a Delaware court has actually held that a shareholder voting agreement was invalid because it conflicted with the company’s charter. Nevertheless, the reasoning of In re Westech Cap. Corp., 2014 Del. Ch. LEXIS 92 (Del. Ch. May 29, 2014), and Klaassen v. Allegro Dev. Corp., 2013 Del. Ch. LEXIS 247 (Del. Ch. September 27, 2013), compels a ruling in favor of defendants. These cases demonstrate the critical distinction recognized under Delaware law between (1) an agreement that expressly takes away a power granted to a shareholder in the com-

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pany’s charter and (2) an agreement that instead simply constrains the manner in which the shareholder exercises that power.

Here, the voting agreement does the latter rather than the former. Although the voting agreement—which was signed by all shareholders, including Cycle Holdings— binds Cycle Holdings to vote its shares in accordance with the provisions contained therein regarding the election of Cycle Labs’ third common director, it does not impermissibly conflict with the certificate. Instead, as in Westech and Klaassen, the voting agreement serves as “a contractual overlay that constrains the manner in which [Cycle Holdings] can exercise [its] rights” under the certificate.

Therefore, the court concludes that the voting agreement is valid under Delaware law. As a result, Cycle Holdings does not have the power to elect, appoint, or designate a majority of Cycle Labs’ board of directors for purposes of § 55- 16-02(h).

Motion granted.

Downing v. Cycle Holdings, Inc. (Lawyers Weekly No. 020-010-23, 23 pp.) (Mark Davis, J.) Benton Sawrey for plaintiff; Steven Scoggan and James Weiss for defendants.

2023 NCBC 10

Domestic Relations

Equitable Distribution – Marital Home – Separate Property – Debt Distribution

Even if the trial court erroneously distributed $5,000 of debt on the marital home –found to be the defendant-Wife’s separate property – to the plaintiff-Husband, this did not prejudice him since it effectively lowered the distributive award to Wife.

We affirm the trial court’s equitable distribution order.

Wife owned real property prior to the parties’ marriage, a home was built thereon during the marriage, and the property was encumbered by a loan in Wife’s name. The trial court classified the home as separate property but mistakenly identified “Plaintiff” (i.e., Husband) as the owner. The trial court found the

home to be worth $135,000 with a debt of $140,000.

The trial court distributed (-$5,000) to Husband, apparently distributing a portion of the debt on the home to Husband. Even if this “distribution” were error, Husband has not shown how it prejudiced him. If this negative $5,000 distribution to Husband had not been included in the order, the trial court would have found the value of marital assets being distributed to Husband to be $5,000 greater, which would have required the trial court to order a larger distributive award to Wife.

McLeod v. McLeod (Lawyers Weekly No. 012-565-22, 5 pp.) (Chris Dillon, J.) Appealed from Iredell County District Court (Dale Graham, J.) Patricia Riddick for plaintiff; no brief for defendant. 2022-NCCOA-867

Insurance

Life – Labor & Employment – ERISA – Policy Conversion Deadline –Equitable Tolling

Even though plaintiff’s decedent, an ERISA plan participant, was incapacitated by illness during the period when he could have converted his employer-provided life insurance policy to an individual policy, and even though the participant tried to make the conversion 26 days after the conversion period ended, the defendant-plan administrator did not abuse its discretion in refusing to pay life insurance benefits to plaintiff.

We affirm judgment for defendant.

Both in the district court and in this court, plaintiff has maintained that she seeks relief only pursuant to 29 U.S.C. § 1132(a)(1)(B), which provides in relevant part, “A civil action may be brought . . . by a . . . beneficiary . . . to recover benefits due . . . under the terms of [the] plan. . . .” Section 1132(a)(1)(B) does not allow this court to apply the doctrine of equitable tolling to alter the terms of an Employee Retirement Income Security Act, and the plan administrator did not abuse its discretion by enforcing the terms of the plan. A conversion deadline is not akin to a statute of limitations, i.e., a deadline for converting benefits is not triggered by the violation

giving rise to the action.

As the district court pointed out, 29 U.S.C. § 1132(a)(3) does allow a court to grant “other appropriate equitable relief,” but plaintiff did not sue under that provision, never sought leave to amend her complaint to add such a claim, and continues to disclaim reliance on any such a theory before this court.

We note that plaintiff errs in asserting she could not have sought relief under subsection (a)(3). True, a plaintiff who prevails in a claim for benefits under subsection (a) (1)(B) may not also obtain other relief under subsection (a)(3). But Fed. R. Civ. P. 8(a)(3) specifically permits pleading “in the alternative,” so nothing would have prevented plaintiff from suing under both provisions.

Affirmed.

Hayes v. Prudential Insurance Co. of America (Lawyers Weekly No. 001-028-23, 11 pp.) (Toby Heytens, J.) No. 21-2406. Appealed from USDC at Greenville, S.C. (Joseph Dawson, J.) Leila Louzri and Nathaniel Bax for appellant; Ian Morrison for appellee. 4th Cir.

Labor & Employment

Railroad Worker – Race Discrimination Claim –Insubordination

Before a train trip, Amy Sine, a person unknown to plaintiff, who was not wearing Amtrak garb, informed plaintiff that he would be on the team uncoupling a car from the train on which plaintiff was working. Plaintiff initially refused, saying he did not know Sine. However, even after plaintiff’s supervisor told him who Sine was and instructed him to comply, plaintiff refused to participate in the preparations to uncouple the car. Then, while the uncoupling was taking place, plaintiff attempted to interfere and yelled at the conductor in the presence of passengers and others. Given defendant’s evidence of insubordination, plaintiff cannot show that he was performing his job in accordance with his employer’s legitimate expectations.

We affirm summary judgment for defen-

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dant on plaintiff’s claim of race discrimination.

Plaintiff’s evidence of a white comparator who was not disciplined came in the form of hearsay, which the district properly declined to consider. In any event, the comparator’s asserted insubordination arose in the context of scheduling, which does not pose the same safety risks as plaintiff’s behavior.

Though a collective bargaining agreement might be relevant to understanding how defendant defines and punishes insubordination, the gravamen of plaintiff’s race discrimination claim is that defendant engaged in disparate disciplinary actions in violation of 42 U.S.C. § 1981, not that defendant violated the CBA or improperly applied it to him. Since we need not interpret the CBA to resolve this case, the Railway Labor Act does not preclude us from considering plaintiff’s discrimination claim.

Giles v. National Railroad Passenger Corp. (Lawyers Weekly No. 001-015-23, 12 pp.) (Henry Floyd, J.) No. 21-1887. Appealed from USDC at Charlotte, N.C. (David Keesler, USMJ) Geraldine Sumter and Chandler Bryant for appellant; Stephen Douglas Dellinger for appellees. 4th Cir.

Real Property – Condominium Declaration – Repairs – Out-ofPocket Expenses

Where the parties’ condominium declaration says the defendant-homeowners’ association (HOA) will “repair” any incidental damage that is caused to a condo unit during common area repairs, this promise to “repair” does not encompass out-ofpocket expenses caused by common area repairs. Although the common area repairs at issue required plaintiff to vacate her condo unit for two years, the HOA is not responsible for the out-of-pocket moving, storage, and living expenses she incurred while forced out of her unit.

We affirm summary judgment for the HOA.

Gehrke v. The Gates at Quail Hollow Homeowners’ Association, Ltd. (Lawyers Weekly No. 012-575-22, 6 pp.) (Richard Dietz,

J.) Appealed from Mecklenburg County Superior Court (George Bell, J.) James Galvin for plaintiff; Brett Dressler for defendant. 2022-NCCOA-921

Tort/Negligence

Misappropriation of Trade Secrets –Unfair Trade Practices – Intellectual Property – Patent Ownership –Domestic Relations

Plaintiff claims that its scientist’s notes are trade secrets. However, the scientist left her notebook on her desk at home, where her ex-husband/competitor came to drop off their children. Plaintiff did not take reasonable steps to guard the scientist’s notes, so they do not qualify as trade secrets.

Defendants’ motion to dismiss is granted as to plaintiff’s claims for misappropriation of trade secrets and trespass to chattels; the motion is granted in part and denied in part as to plaintiff’s claims of unfair trade practices and unfair competition; otherwise, the motion is denied. The court also denies defendants’ motion to stay this action while the couple’s equitable distribution and related causes of action are litigated in district court.

Facts

Plaintiff BIOMILQ’s scientist, Dr. Strickland, was married to defendant Guiliano. The couple formed defendant 108Labs, LLC. Dr. Strickland was interested in synthesizing cell-cultured human milk outside the body. Guiliano reviewed scientific literature at Dr. Strickland’s request; however, the couple did not proceed with the project.

Dr. Strickland met Michelle Eggers in August 2019. In January 2020, Dr. Strickland and Eggers founded and incorporated plaintiff to further Dr. Strickland’s human milk project.

In March 2020, Dr. Strickland and Guiliano separated. Because of his review of scientific literature, Guiliano’s name was included on one of plaintiff’s subsequent patent applications. Plaintiff submitted several more patent applications and received two patents, but Guiliano’s name was not includ-

ed on the latter applications and patents. While dropping the couple’s children off at Dr. Strickland’s home (the former marital home, of which Guiliano was part owner) on 18 February 2022, Guiliano allegedly photographed pages of a BIOMILQ-issued notebook containing trade secret and confidential information. Defendants contend that they have contributed to the development of BIOMILQ’s technology, patents, and alleged trade secrets, and that defendants have rights in them.

Misappropriation of Trade Secrets

In order to state a claim for misappropriation of trade secrets, a plaintiff must allege that the trade secret information is subject to reasonable efforts to maintain its secrecy. G.S. § 66-152(3)(b).

Although plaintiff alleges its security measures generally and as they pertain to notebooks that Dr. Strickland has already filled, it does not allege measures taken to maintain the secrecy of the trade secrets set out in any notebook that Dr. Strickland is currently using, including the one allegedly photographed by Guiliano. Plaintiff alleges that Dr. Strickland kept her notebooks in secure locations such as (1) at BIOMILQ’s offices, (2) in a closed bag within her residence which, it alleges, she does not share with Mr. Guiliano, (3) in a closed bag together with her laptop when travelling between home and work, and (4) on her work surface at home. However, saying something is “secure” or “kept confidential” is not enough to survive a motion to dismiss without allegations of efforts to protect the misappropriated trade secrets.

The notebook at issue was protected only by a lock on the home to which Guiliano had access. Keeping the notebook in a closed bag at home, in a closed bag when travelling between work and home, or on a work surface at home, are not measures taken to maintain the secrecy of the trade secrets.

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least some occasions brought the children to Dr. Strickland’s residence, and that Dr. Strickland was keeping the notebook unlocked in a building at least partially owned by Guiliano and to which he had access, at least on the occasions he took the children to the home, the measures BIOMILQ took to maintain the secrecy of the notebook are unreasonable under the circumstances.

Plaintiff has failed to allege reasonable measures to maintain the secrecy of the notebook and the alleged trade secrets contained therein.

Motions granted in part, denied in part.

BIOMILQ, Inc. v. Guiliano (Lawyers Weekly No. 020-013-23, 40 pp.) (Michael Robinson, J.) Dickson Phillips, Stephen Feldman and Rachel Walsh for plaintiff; Stephon Bowens, Tara Warwick and Jonathan Carnes for defendants. 2023 NCBC 13

Tort/Negligence

Defamation – Medical Malpractice –Surgeon’s Duty to Read Scan

The defendant-supervising surgeon told others that the plaintiff-surgical fellow had started a patient’s unnecessary heart surgery because plaintiff had “misread” an echocardiogram. Since plaintiff never read the echocardiogram, and since the issue of whether she had a duty to read the scan is hotly contested, there is a genuine issue of material fact as to whether defendant’s statement was materially false.

We vacate the district court’s grant of summary judgment for defendant.

Plaintiff’s Assertions

Defendant accepted “Patient M” as a surgical patient for aortic valve replacement. Defendant did not read the results of Patient M’s pre-operative transesophageal echocardiogram (TEE), yet he told plaintiff that he had done so and that the TEE showed severe aortic insufficiency (AI), neces-

sitating the planned surgery. Defendant instructed plaintiff to start the surgery.

An anesthesiologist performed an intraoperative TEE, which showed only moderate AI. The anesthesiologist did not inform plaintiff of the results of the intraoperative TEE until after plaintiff had cut through Patient M’s breastbone. Minutes later, the anesthesiologist informed plaintiff of the results of the TEE, and plaintiff halted the surgery.

Defendant later told others that plaintiff had “misread” the TEE. Plaintiff filed this action for defamation. The district court found that, since plaintiff had proceeded to surgery based on an incomplete understanding of the anesthesiologist’s interpretation of the intraoperative TEE, defendant’s statement that plaintiff “misread” the TEE was not false.

Discussion

The issue of falsity focuses on substantial truth. Thus, a plaintiff must establish that “the sting,” the aspect causing injury to the plaintiff’s reputation, is materially false.

In making this assessment, we consider the allegedly defamatory statement and the facts implied by that statement within their full context. After reviewing the evidence and the parties’ arguments, we find a genuine dispute exists regarding the substantial truth of defendant’s assertion that plaintiff had “misread” Patient M’s TEE or “failed to recognize” from the TEE that the AI was moderate.

Plaintiff offers two alternative interpretations of these statements that a jury, believing her evidence, could reasonably draw and conclude were false.

First, the accusation that plaintiff misread or misapprehended the TEE results implies that she read those results in the first place, which she did not. Saying that a person has misread something communicates not only that she read it, but that she did so incorrectly—implying, in this case, that she lacks skill in applying her medical judgment.

A jury might reasonably conclude

that this accusation constitutes a distinct critique of plaintiff’s professional competence. A statement like plaintiff “did not read the TEE,” by contrast, says nothing about her ability to do so or about her judgment to proceed with a sternotomy despite supposedly having viewed the concerning TEE results. In other words, defendant’s assertion that plaintiff had misread the TEE—a statement that all concede is literally false— may be viewed as “materially false” as well.

Use of the term “misread,” in this context, could cause the statement to produce a different effect on the audience than would have been produced had the truth of the matter been spoken. Whether it did so is for a jury to decide.

Second, defendant’s statements that plaintiff “misread” and “failed to recognize” the findings of the intraoperative TEE before the sternotomy could be understood to imply that plaintiff had an obligation to read and understand the TEE before beginning the surgery, which she failed to fulfill. Whether such an obligation exists is hotly disputed in this case. If a jury believed plaintiff’s evidence, it could conclude that the sting of defendant’s implication—that plaintiff had a professional obligation she admittedly did not fulfill—is materially false.

The defamatory sting of defendant’s statements under this theory is not that plaintiff failed to recognize moderate AI on the intraoperative TEE but that she had a professional obligation to do so before beginning the surgery, implying that her failure to read and understand the TEE before making the first incision was malpractice. And a false accusation of malpractice may certainly be defamatory.

Vacated and remanded.

Robinson v. Williams (Lawyers Weekly No. 001-011-23, 15 pp.) (Allison Jones Rushing, J.) (William Traxler, S.J., concurring) No. 20-1636. Appealed from USDC at Greenville, N.C. (Louise Flanagan, J.) John West Gresham and Cheyenne Chambers for appellant; Laura Howard McHenry and Joshua Stein for appellee. 4th Cir.

$2.5 MILLION SETTLEMENT Collision with drunk driver results in $2.51M settlement

Type: Motor vehicle accident, dram shop claims

Verdict or settlement? Settlement

Amount: $2.51 Million

Injuries: Permanent scarring, fractured arm, abrasions

Case Name: Withheld

Court: Withheld

Date of settlement: Winter 2022

Attorneys for plaintiffs: Winston Kirby and Andrew Avram, Edwards Kirby, LLP

B y Haviland S tewart

hstewart@nclawyersweekly.com

A Wake County mother and child were injured during a collision with a drunk driver. The plaintiffs have settled their claims against the driver and the establishments that served him for $2.51 million, the plaintiff’s attorneys, Winston Kirby and Andrew Avram reported.

“It was clear from the receipts from the bars that the drunk driver had consumed enough alcohol to the point where he would have been highly intoxicated,” Kirby said. “Our position was that the drunk driver had no memory of the events of the day because he had consumed enough alcohol that his brain was incapable of forming and retaining memories of the day’s events. When someone is that drunk, he would have appeared intoxicated to anyone, including the bartenders and servers who continued to serve him alcohol.”

served in the first place and he certainly should not have been allowed to drive himself away from the bar.”

The plaintiff’s counsel reported that the defendants contended that the mother’s injuries were insufficient to warrant a large recovery, and that her child had suffered almost no harm. The driver plead guilty to driving under the influence of alcohol, plaintiff’s counsel reported.

According to the plaintiff’s attorneys, none of the bars he visited on the day of the collision received citations or warnings from the North Carolina Alcoholic Beverage Control Commission.

The defendants collectively paid $2.51 million to the plaintiffs at mediation.

$3 MILLION SETTLEMENT Fatal collision results in $3M settlement

Is this a verdict or settlement? Settlement

According to the plaintiff’s counsel, their clients were struck by a drunk driver who was traveling the wrong direction down the highway and struck the plaintiff’s vehicle headon. The accident resulted in permanent facial and arm scarring, a fractured arm, and abrasions to the mother, and minor injuries to the child in the back seat.

The establishment denied that there was any evidence that the defendant was visibly intoxicated at the time he was served. The defendants contended that because the driver had returned to his home after visiting several bars, the alcohol consumed at those bars was not a proximate cause of the collision. Additionally, the defendants contended that there was insufficient evidence to prove that the driver appeared visibly intoxicated at any of the bars.

Andrew Avram

According to Avram the plaintiff counsel discovered that the driver had consumed at least 10 drinks at the same bar over the course of two hours, and then stopped at another bar, less than a mile from the scene of the accident, where he had an additional three drinks less than an hour before the collision.

Type of case: Motor vehicle wreck

Amount: Single limit policy limits paid property damage and personal injury settlement totaled $3 million

Injuries alleged: Death

Case name: Confidential

Court: Mecklenburg County

Case No.: Confidential

Date of settlement: Sept. 1, 2022

Demand: Policy limits

Insurance carrier: Confidential

Receipts from multiple bars where the driver was served the day of the accident indicated that the driver would have been extremely intoxicated, the plaintiff attorneys reported.

According to Kirby, the driver had no memory of the events of the day after the second bar he visited, nearly five hours before the wreck.

“Importantly, the last bar that the drunk driver visited had clear policies in place that prohibited bartenders from serving alcohol to intoxicated patrons,” Avram said. “In the event that a bartender acknowledged or observed that a patron was intoxicated, the bar had a policy requiring that a taxi or ride be called for that person. We know that based on the receipts obtained in this case, this individual was severely intoxicated, and pursuant to the policies and procedures of the final bar, he should have never been

Attorney(s) for plaintiff and their firm(s): Ronard C. Dixon, Jr. of Hall & Dixon, PLLC and Mark S. Jetton Jr. of Jetton & Meredith, PLLC

Attorney(s) for defendant and their firm(s): Confidential

Was the opposing represented by counsel? Yes

Were liability and/or damages contested? Yes

Has the judgment been successfully collected? Yes

B y Haviland S tewart hstewart@nclawyersweekly.com

On Aug. 4, 2021, the defendant was driving a commercial dump truck on Moores Chapel Road in Mecklenburg

Winston Kirby

County. According to the plaintiff counsel, Ronard Dixon, the defendant’s dump truck veered off the right side of the road and then made an abrupt over correction from the right shoulder into the opposing lane, colliding into the 26-yearold plaintiff’s vehicle head on.

Case name: Alvin Spencer and Frederick Avery v. Capital Chevrolet Inc.

Court: Wake County Superior

Case No.: 20-CVS-661

Mediator: Asa L. Bell

Date of settlement: Sept. 8, 2022

Special damages: Punitive damages

ronment rose to a level of wanton disregard for the safety of others,” Sparkman Larcade said.

Spencer and Avery both experienced severe burns and were sent to the burn center in Chapel Hill where they received months of treatment.

Ronard Dixon

At the time of the accident, the plaintiff was on the job also driving a company dump truck. The head-on collision between the two dump trucks caused the plaintiff’s vehicle to catch fire. Plaintiff and defendant were both pronounced dead on scene. According to an autopsy report, the plaintiff’s cause of death was found to be thermal injuries, with a time of death proximately 18 minutes after the collision, information which Dixon reported to be a very important piece of evidence in this case.

The plaintiff’s estate settled for $3 million on Sept. 1, 2022.

“Being able to help the family through their grief process, as well as bring them some closure on this matter was very important to our firm,” Dixon said. “Even though it will never be enough to fully compensate for their loss, we still provided the necessary representation to adequately serve their needs.”

Many details of this case have been withheld due to a confidentiality agreement.

$5 MILLION SETTLEMENT

Injuries from solvent explosion leads to $5M settlement

Is this a verdict or a settlement? Settlement

Type of case: Fire explosion

Amount: 5 million

Injuries alleged: Severe burns, disfigurement, scarring, PTSD, closed head injury, permanent neurological deficits, lost income, and future earning capacity

Insurance carrier: Zurich American Insurance Company Attorney(s) for plaintiff and their firm(s): Jodee Sparkman Larcade and Wade E. Byrd Attorney(s) for defendant and their firm(s): Rodney E. Pettey

Was the opposing represented by counsel? Yes Were liability and/or damages contested? Yes

By Haviland Stewart hstewart@nclawyersweekly com

In the late night of Jan. 7, 2019, a fire explosion caused significant injury to two employees of an independently contracted janitorial team, Alvin Spencer and Frederick Avery, after being directed to clean grout with a flammable solvent by their client, Capital Chevrolet Inc.

Prior to the incident, the general manager of Capital Chevrolet was unhappy with the grout results so far and provided Avery with an unidentified canister of solvent to use, plaintiff attorney Jodee Sparkman Larcade reported. After Avery “tried out” the solvent and it seemed to work, the manager then showed him where to find more solvent while cleaning that evening.

The solvent was later identified as “brake wash,” a highly flammable chemical that is used to degrease metal car parts.

According to Sparkman Larcade, after Avery spread solvent was spread on the floor, Spencer turned on the floor buffer, which ignited a fire explosion.

“Quite frankly, introducing a flammable solvent into that kind of work envi-

According to Sparkman Larcade, the defense disputed liability, arguing that the plaintiffs should have known not to use the solvent and had a responsibility familiarize themselves with the product prior to using it.

“They were familiar with the chemical components of the solvents that they normally use and have used for years and years,” Sparkman Larcade said. “But that night they were unfamiliar with it. And quite frankly, for my clients, when the boss tells you to do something, they’re gonna do it.”

According to Sparkman Larcade, following the explosion Spencer and Avery suffered severe burns, PTSD, closed head injuries, and permanent neurological deficits, that they continue to receive treatment for.

On Sept. 8, 2022, the plaintiffs settled for a total of $5 million

The defense attorney did not respond for comment.

$12 MILLION SETTLEMENT Family of man fatally crushed at warehouse settles for $12M

Is this a verdict or a settlement? Settlement

Type of case: Premises liability and products liability. Plaintiff ’s decedent died because of being crushed by materials stored in warehouse.

Amount: $12 million

Injuries alleged: Wrongful death of husband; negligent infliction of emotional distress of wife

Case name: Estate of Behzad Abedi-Asl and Angela AbediAsl v. Confidential

Court: Mecklenburg County

Case No.: Confidential

Mediator: Thomas Duncan

Date of settlement: Oct. 11, 2022

Special damages: We had a $3.3 million-dollar economic loss report

Most helpful experts: Artemis Malekpour & David Ball, focus group and jury consultants. Gary Albrecht, economist. Martin Davis, OSHA safety expert. Rodney Turk, forensic mechanical engineer. Mark Nelson, Rimkus Consulting Group, forensic mechanical engineer. Jonathan Mitnick, warehouse and stone handling safety expert. Kathryn Sain, grief counselor psychologist. Dr. Craig Mallak, forensic pathologist consultant. Insurance carrier: Confidential

Attorney(s) for plaintiff and their firm(s): Michael A. DeMayo and Adrienne Blocker; DeMayo Law Offices LLP Attorney(s) for defendant and their firm(s): Confidential

Was the opposing represented by counsel? Yes

Were liability and/or damages contested? Yes

Has the judgment been successfully collected? No judgment was entered as the case was resolved pre-trial. The settlement has been paid in full by the defendants.

By Haviland Stewart hstewart@nclawyersweekly.com

The family of a man fatally injured from falling material at a warehouse has settled for $12 million.

In September 2019, Behzad

Adrienne S. Blocker

Abedi (“Al”) and his wife Angela

Abedi were at a warehouse to select building materials for homes that they constructed, when stored materials in the warehouse fell onto Al, causing him to sustain catastrophic and fatal injuries.

According to the plaintiff’s counsel, Adrienne Blocker, the couple built homes as a hobby since Al was fully employed as a vice president of a manufacturing company in Gastonia. They frequently went to warehouses to pick the materials for homes they constructed. On this day, Al had pointed out a particular material that he liked to Angela, and then the pair separated in the warehouse. Shortly after, Angela heard a loud crashing sound and came running back to find her husband trapped under the materials.

Al was pronounced dead approximately 15 minutes after the materials fell on him.

Al left behind his wife of 23 years, a son and a daughter.

Plaintiffs alleged premises liability and products liability claims. The premises liability claims against the lessee of the warehouse related to the manner of storage of the materials. Plaintiffs also alleged a products liability claim as to the manufacturer of the rack used at the premises to store the building materials.

A settlement was reached at mediation with the frame manufacturer, but deadlocked regarding the liability of the warehouse lessee. After several depositions counsel for both parties were able to reach a final resolution.

On Oct. 11, 2022, the Abedi family settled for $12 million.

Michael DeMayo

The lawsuit included claims for Al’s pain and suffering as well as his wrongful death, and for negligent infliction of emotional distress to Angela.

“...Angela and the children are now able to obtain some level of closure regarding the legal aspects of this tragic occurrence,” Blocker said. “Their road to personal recovery has been challenging and ongoing. They still face constant struggles daily with the memory of a truly amazing and phenomenal husband and father.”

School of Law to host SJREI gala

The North Carolina Central University School of Law will host the Social Justice and Racial Equity Institute gala on April 15, 2023, at the NCCU Student Center, 500 Nelson St. Irving Joyner, legendary civil rights lawyer and NCCU law professor, will serve as the keynote speaker.

The gala aims to bring together community leaders, social justice advocates and legal experts who are committed to working together in the spirit of social and racial equity, a news release stated.

Established in 2022, the institute addresses systemic racism and other forms of inequality through interdisciplinary problem solving that researches the legacy of racial injustice and advanc-

es a just and prosperous society for all people. Guided by a variety of values, ranging from integrity and collaboration to vested community engagement, it focuses on issues of economic, housing, health, education and criminal justices.

“NCCU School of Law has been educating social justice advocates for over 80 years and most of our graduates accept public service positions, so the initiative aligns with our mission,” said Malik Edwards, interim dean of NCCU’s School of Law. “With all the turmoil occurring throughout the world, we are using our resources to help bring about a world that is more just and less racist. Our Social Justice and Racial Equity

Institute will help us to achieve that goal.”

The SJREI will also establish a research center to conduct and sponsor empirical research, draft and publish white papers, and host conferences and workshops on social justice issues. Guided by its research and workshops, the SJREI will work with community partners to engage in social impact initiatives that provide direct assistance to individuals and communities in need.

To learn more about NCCU’s Social Justice and Racial Equity Institute and to purchase tickets for the gala, visit law. nccu.edu or email sjrei@nccu.edu. The deadline to purchase tickets is April 3.

Firm names office managing partner for Charlotte

Womble Bond Dickinson announced that Sarah Motley Stone has been named office managing partner in Charlotte.

Stone advises corporations, individuals, and public entities in resolving complex business disputes, defending class actions, and responding to federal regulatory and state attorney general investigations.

Stone serves on the Mecklenburg County Bar (MCB) Association’s Board of Directors and is the secretary and chair of the Development and Marketing Committee for Child Care Resources, Inc.

Hall Booth Smith opens new office in Raleigh

Hall Booth Smith, P.C. has opened a new office in Raleigh.

The HBS Raleigh office will be led by new HBS Partner, Maria P. Wood, according to an HBS news release. Wood will be joined by associate attorneys Elliott Andrews and Brian Manikowski.

With the addition of this location, HBS now has three North Carolina offices: Raleigh, Asheville and Charlotte.

Wood specializes in medical malpractice, aging services, correctional health care, professional malpractice and ethics, appellate and general liability matters. She earned her J.D. from Wake Forest University, and a B.A. with honors, in Political Science from the University of North Carolina. Andrews represents long-term

care facilities, physicians, insurance carriers and businesses through all stages of litigation in aging services, business litigation, general liability, and medical malpractice matters. He earned his J.D. from Campbell University School of Law, and his B.A. in Psychology from Wake Forest University.

Martin & Jones names two new shareholders

Attorneys Hunt Willis and Steven Corriveau have been named shareholders of the Raleigh law firm Martin & Jones, PLLC, according to a news release.

Willis joined the firm in August of 2013 and Corriveau joined in May of 2015.

Willis has tried many significant personal injury cases to successful jury verdicts throughout the state and beyond, and negotiated settlements in many significant cases before and during trial.

Corriveau frequently tries cases before the North Carolina Industrial Commission, and he is expanding his role into some of the firm’s more complex civil litigation.

After receiving his undergraduate degree from Appalachian State University, Willis was commissioned as an officer in the United States Army, where he served as a captain. Corriveau graduated from Wake Forest University School of Law in 2013.

Ellis & Winters partner lands Trial Lawyers role

Ellis & Winters managing partner Leslie Packer is now the vice chair of the NC Chapter of the American College of Trial Lawyers. In the following year, she will be named chair of the organization. Packer also presented Recent Decisions of

Relevance at the meeting.

The American College of Trial Lawyers (ACTL) is composed of preeminent members of the Trial Bar from the United States and Canada and is recognized as the leading trial lawyers organization in both countries.

Robinson Gray adds member to staff

Matthew B. Hill has joined law firm, Robinson Gray as a member, according to a news release.

Hill’s practice primarily focuses on the areas of commercial real estate, banking, and finance. He regularly provides guidance and assistance to clients on all phases of commercial real estate development including site identification and acquisition, construction, financing, leasing and disposition.

Hill received his bachelor’s degree in Psychology from Davidson College in 1997, and his J.D. from the University of South Carolina School of Law in 2001.

Attorney joins Raleigh-based personal injury firm

Claudia Barceló recently joined Thorp Law, a Raleigh-based personal injury firm, as an associate attorney.

Since she’s a native Spanish speaker, the addition of Claudia expands Thorp Law’s capabilities

Maria Wood

Claudia Barcelo

Elliott Andrews

Leslie Packer

Matthew Hill

Sarah Motley Stone

to handle cases for Spanish-speaking clients without having to work through a translator.

An advocate for those who need a champion and a voice, Claudia also serves as Guardian ad Litem in the 10th Judicial District, where she advocates on behalf of children in legal proceedings. In addition, she is a member of the North Carolina Advocates for Justice.

Cranfill Sumner promotes attorney

Cranfill Sumner LLP today announced that Anna Hedgepeth has been promoted to the position of director of strategy and business development.

joined BCLP as the new global leader of the firm’s Heath Care Practice and a partner in the firm’s Corporate & Finance Transactions Department. Resident in the Charlotte office, Hutchens heads the firm’s dynamic Health Care Practice working with clients firmwide.

Law firm founder appointed to state commission

release.Attendees of the ceremony included justices of the Supreme Court of North Carolina, judges of the North Carolina Court of Appeals, and family and friends of Judge Riggs. Supreme Court of North Carolina

Anna Hedgepeth

In this new role, Hedgepeth is responsible for developing and setting firm strategy and oversight of implementation of strategic initiatives. She advises the firm’s Management Committee on the firm’s strategic position while also leading the strategic planning committee and business development and marketing team.

She is a graduate of Campbell Law School and the University of North Carolina at Chapel Hill.

Law firm adds to national health care team

International law firm Bryan Cave Leighton Paisner announced the addition of Counsel Kelly Koeninger to the firm’s Health Care Practice. Kelly will be resident in BCLP’s Charlotte office and will work across the firm’s global 30-office platform. Koeninger focuses her practice on strategic, operational and compliance matters for health care clients and also counsels clients on telehealth, privacy and cybersecurity issues.She will work closely with Jennifer Hutchens, who recently

North Carolina Supreme Court Chief Justice Paul M. Newby recently appointed Raleigh attorney Kieran J. Shanahan, founder of Shanahan Law Group, PLLC, to the North Carolina Innocence Inquiry Commission.The commission was established by the N.C. General Assembly in 2006 to investigate and evaluate post-conviction claims of factual innocence.

Shanahan is one of a select group of North Carolinians to have earned appointments from all three branches of state government. Former Gov. Pat McCrory appointed Shanahan as secretary of Crime Control and Public Safety, and he received a Legislative appointment to the Centennial Authority, where he currently serves as vice chairman.The North Carolina Innocence Inquiry Commission, which was created by the N.C. General Assembly in 2006, is the first commission of its kind in the nation. The Commission has reviewed over 3,000 innocence claims and conducted multiple hearings.

Judge takes the oath of office at NC Court of Appeals

Judge Allison Riggs has been formally invested as judge of the North Carolina Court of Appeals.She was sworn in during a ceremony in the Court of Appeals courtroom on Thursday, Feb. 9, according to a news

Associate Justice Anita Earls conducted the presentation to the Court, and North Carolina Court of Appeals Chief Judge Donna Stroud administered the oath of office.Riggs was appointed to the Court by Governor Roy Cooper after serving as the Co-Executive Director and Chief Counsel for Voting Rights at the Southern Coalition for Social Justice, the release stated.Previously, she was a staff attorney and senior staff attorney at the Southern Coalition for Social Justice. Riggs was a civil rights litigator and community lawyer who has served as lead counsel in numerous voting rights cases, including twice arguing before the United States Supreme Court.Riggs received her bachelor’s degree, master's degree and her Juris Doctor from the University of Florida

North Carolina Court of

Appeals

judge invested

Judge Julee Flood has been formally invested as Judge of the North Carolina Court of Appeals during a swearing-in ceremony in the Court of Appeals courtroom on Thursday, Feb. 23, according to a news release.Attendees of the ceremony included justices of the Supreme Court of North Carolina, judges of the North Carolina Court of Appeals, and family and friends of Flood. The Honorable Robert N. Hunter, Jr. (Ret.) conducted the presentation to the Court, and North Carolina Court of Appeals Chief Judge Donna Stroud administered the oath of office.

Flood received B.S. and M.S. degrees in Animal Science from the University of Florida; an M.P.A. from the University of Maine; a J.D. from the University New Hampshire Franklin Pierce School of Law; and a Ph.D. from the University of Tennessee, specializing in higher education law and policy.

Kieran Shanahan

The tide is turning against noncompetes

By Erin Barker and Natalie Sanders

The last decade has seen significant pushback against non-compete agreements in the employment context. Several states have laws that prohibit or significantly limit their use, and now, the federal government is targeting them.

On Jan. 4, 2023, the Federal Trade Commission (FTC) found that three employers’ non-compete agreements “constituted an unfair method of competition” and violated the FTC Act. The next day, the FTC proposed a broad rule prohibiting non-competes by all employers. Most recently, the Workforce Mobility Act of 2023 (WMA) was introduced in both the U.S. Senate and House of Representatives.

The FTC-proposed rule defines a non-compete as “a contractual term between an employer and a worker that prevents the worker from seeking or accepting employment with a person, or operating a business, after the conclusion of the worker’s employment with the employer.” The rule includes de facto non-compete clauses that prohibit a worker from seeking or accepting employment under a functional test. That means if another restrictive covenant, such as a confidentiality or non-solicitation agreement, is so broad that it is the functional equivalent of a non-compete, it too is prohibited.

The FTC-proposed rule contains no grandfather provision. Instead, it would require employers to rescind existing non-competes and individually notify workers in writing that the non-compete is no longer in effect and is unenforceable against the worker. In addition, the FTC proposed rule provides only limited use of non-competes in the sale of a business context, allowing their use for a substantial (25%) owner, but not for key employees or non-substantial owners. In contrast, and perhaps as a signal of where the FTC may land after it consid-

ers comments to its proposed rule, the WMA does not require employers to rescind prior agreements and it allows broader use of non-competes in the sale of a business context. Specifically, it would allow non-owner, senior executives to enter into severance agreements containing a non-compete where the period of severance payments matches the period of non-competition, with a maximum one-year duration following the sale of a business or its dissolution.

While all of this signals imminent change nationwide in the use and enforceability of non-compete agreements, neither the FTC proposed rule or the WMA are law yet. The FTC proposed rule is open to public comment until March 20, 2023. The FTC would expect employer compliance with any final rule within 180 days after its publication. Of course, court battles and legal challenges to the FTC’s authority to impose and enforce such a rule are likely. Similar uncertainty surrounds the WMA. While the WMA has bipartisan support, it has been proposed in the past, without becoming law.

For now, attorneys can assist their clients in responding to the turning tide against non-competes in the following ways:

• Encourage employers who depend on non-competes to protect their trade secrets and competitive advantages to actively comment on the FTC proposed rule and communicate with lawmakers regarding the WMA;

• Review and update agreements. Consider the importance of severability clauses in the event a non-compete clause within an agreement becomes invalid and make sure other restrictive covenants (confidentiality and non-solicitation) are not so broad as to act as a noncompete;

• Confirm that non-competes con-

form to applicable state laws. In North Carolina, that includes understanding the “blue-pencil” rule and its limits. See Beverage Systems of the Carolinas, LLC v. Associated Beverage Repair, LLC, 368 N.C. 693, 784 S.E.2d 457 (2016), in which the North Carolina Supreme Court clarified that, while a court may strike through an unreasonable non-compete provision, it may not revise or rewrite the provision on behalf of the parties to the agreement to make it enforceable; and

• Frequently monitor legal developments impacting non-competes at both the federal and state level.

Erin Barker is an attorney at Brooks Pierce and advises clients on various employment and ERISA and benefits related matters. In addition to her employment and benefits practices, she also works with businesses, non-profits and individuals on an array of transactional matters. She is resident in the firm’s Greensboro office.

Natalie Sanders is a partner at Brooks Pierce in the firm’s Greensboro office. She provides counsel and defense to businesses in all aspects of the employment relationship. Her 25 years of experience as an attorney, operations manager, entrepreneur, and community volunteer allow her to relate well to management and provide nuanced guidance in complex matters.

Erin Barker

Natalie Sanders

SHARE, Advocacy Center to share space

Charlotte Center for Legal Advocacy officially recently welcomed SHARE Charlotte as a new tenant of the Advocacy Center, at a special event held with CEO Toussaint Romain and SHARE’s managing director, Melissa Hovey.

Both leaders discussed the importance of strengthening community-based solutions at an event hosted at their shared space located at 5535 Albemarle Road in Charlotte, according to a news release. SHARE Charlotte connects and supports more than 600 local nonprofits with engagement opportunities, one of whom is The Advocacy Center which pursues justice for those in need. Learn more at charlottelegaladvocacy.org and sharecharlotte.org.

Sharing space in The Advocacy Center’s new east Charlotte location will increase SHARE Charlotte’s visibility in a diverse and growing part of Charlotte that is highly accessible. Likewise The Advocacy Center will benefit from increased awareness among SHARE Charlotte’s vast network of nonprofit partners which

have the potential to create partnerships and synergy for the benefit of The Advocacy Center’s client base. Both organizations are committed to fostering a spirit of networking and relationship building with the Charlotte community in mind.

“The vision of Charlotte Center for Legal Advocacy is to build a just community where all people are treated fairly and have access to legal representation to meet their basic human needs. We cannot achieve that vision alone,” said Romain in the release. “SHARE supports like minded nonprofit organizations in Charlotte and beyond with opportunities to connect, grow and thrive.”

“The need in our community is so great. In order to empower Charlotte neighbors to achieve safety, security and stability, it takes every agency and organization working closely together,” said Hovey. “We are excited about the natural intersections that will occur from sharing space.”

Volunteers are cornerstone for both The Advocacy Center and SHARE Charlotte, which thrive due to

the involvement of the Charlotte public, once ranked eleventh in the nation for volunteerism. In 2022, The Advocacy Center coordinated over 6,000 pro bono hours from attorneys and law firms to help clients with issues ranging from asylum and immigration support, to criminal record expunction and estate planning. That same year, SHARE coordinated 4,200 volunteer opportunities for nonprofit organizations like Classroom Central and Roof Above.

SHARE Charlotte started as a single platform built for Charlotteans to find and connect with local nonprofits who need support and volunteers. In December 2012, that platform went live with 87 nonprofit partners. In ten years, the platform has grown to 624 nonprofit partners, representing approximately 85% of all active 501c3 organizations in Mecklenburg County. SHARE’s community-wide giving campaigns and events have influenced $42 million in financial support to local nonprofits and 22,000 volunteer opportunities.

Staff report

Toussaint Romain, CEO of the Charlotte Center for Legal Advocacy, speaks about strengthening community-based solutions. (Photo/Provided)

Continued From Page 9

over and over again, to thinks it's okay,” Merriweather said. “The Family Justice Center allows an opportunity for us to interrupt that cycle.”

Another program that Merriweather has initiated is Second Chances, a strategy for drug prosecution that provides those who suffer from addiction to receive treatment through Mecklenburg County drug recovery courts. Merriweather has advocated for a program that acts as a vehicle to recovery rather than incarceration.

“I want to be able to go to members of my community and say, ‘We're using the limited resources that we have wisely, we are thoughtful and intentional about how we're prioritizing cases within our office, and we also understand that a lot of the people that are interacting with us are sick.’”

It is important to Merriweather that addiction is recognized as the complex issue it is, and when faced with simple possession cases, courts can aid users on their way toward recovery, rather than furthering the cycle of incarceration.

“Justice, true justice, is not encapsulated by the number of guilty verdicts that you hear,” Merriweather said. “It's encapsulated by whether or not the right thing was done.”

Merriweather has been recognized as a leader in justice reform efforts, offering alternatives to prosecution, opening the door to conversations about the reinvention of the bail system, and presenting new training to combat racial bias.

“When people talk about me being reformed minded, I take that as a compliment,” Merriweather said. “I'm always willing to look and listen and think about something in a different way. There are some things that I think the stability the system requires me to not change, and there's some things that I think we can take a fresh look at.”

It is important to Merriweather to ensure that people in his office are

especially thoughtful on issues of diversity, inclusion, and equity. He has initiated the creation of a Diversity, Equity, and Inclusion Team, as well as created a mandatory curriculum for all attorneys and staff members in his office.

“This is meant not to indoctrinate, it's meant to raise questions,” Merriweather said. “If you're in the role of making the kind of decisions that our folks are making or engaging with the public in the way that we are, I'm not trying to get you to believe anything, I’m trying to get you to take a beat and just think.”

As the first Black District Attorney in Mecklenburg County, Merriweather feels that he has a unique opportunity to instill confidence in the people in his community.

“People just want to know, and they want to see that you're being fair,” Merriweather said. “They want to know that justice is not dictated by what someone looks like, or what zip code they live in, or how much money they have in their pocket.”

Throughout Merriweather’s second term, he hopes to restore resident’s confidence in justice system, shortening the wait of cases, applying trauma informed principles, and confronting juvenile violence in the community.

He will continue advocating for justice and serving the public, just as he always has.

To hear more from Merriweather, check out the Q&A below.

Q: What are your plans following your second term as Mecklenburg County District Attorney?

A:As a wise former judge I knew once said, “I don’t ever buy green fruit.”

Q: What are some of the key things you learned as Assistant District Attorney that prepared you to step into the role of District Attorney?

A: (1) It’s hard to talk about something you haven’t seen. (2) Create the time and space to empathize with others.

Q: What is your favorite “hidden gem” in Charlotte?

A: There’re a lot of them. My dad was a Parks and Rec Director, so I’m constantly amazed by how easy it is to lose yourself in our county’s beautiful park system. Trails, greenways, picnic areas, there are so many places to find a sense of peace.

Q: What is your favorite book?

A: This answer changes every couple of years. I’m partial to nonfiction. “Parting The Waters,” by Taylor Branch is the one I keep coming back to. “Wilmington’s Lie,” by David Zucchino and “Getting Something to Eat in Jackson,” by Joseph C. Ewoodzie, Jr. are the ones I talk to other people about most frequently in the last couple of years.

Q: Who are a few of the most influential people in your life?

A: Here’s where I get a little hokey. My parents made me. My wife sustains me. My little girl gives me hope. The people in my life who have taken the time to teach me something (which includes each of the people I’ve already mentioned) are the ones I cherish more that I have words to express to them.

Q: What is the best advice you have ever received?

A: People will forgive a bad call. They won’t forgive bad faith.

Q: Outside of the office, how do you like to spend your time?

A: When I can find the time, I look to cook, and I’m especially partial to baking. It’s something where you can lose yourself in the precision and balance of the tasks. Also, it can draw the physical presence of my wife and child, which is a great bonus.

House OKs election changes for Wake County

improve representation for suburban and rural communities outside the population hubs of Raleigh and Cary.

"This is good for the people of Wake, and it's the right thing to do," she said on the House floor.

Commissioners would be elected by the existing districts beginning in 2024. Two additional members would be elected by the county at large beginning in 2026, raising the number of commissioners to nine.

RALEIGH, N.C. (AP) — A bill changing the election process for county commissioners in the state's most populous county passed the North Carolina House on a unanimous vote Wednesday after the Republican sponsor announced a compromise earlier this week.

The proposal from Wake County's only Republican state lawmaker, Rep. Erin Paré, would require that most commissioners be elected by district instead of by the county at large.

The 117-0 House vote comes two days

after Paré and the Wake County Board of Commissioners, which is entirely composed of Democrats, said they reached an agreement on the proposed electoral changes. The bill now heads to the Senate.

While each of the seven current board members represents and lives in a residency district drawn by the commission in 2021, the entire county currently votes for all candidates.

Paré said the local bill, which is not subject to the governor's veto, would

LAWYER TO LAWYER / Directory

The changes would make Wake consistent with other populous counties, such as Mecklenburg and Guilford, which elect their commissioners through a combination of at-large and district seats.

Paré and the board agreed that commissioner elections would remain partisan, as is currently the case in all 100 North Carolina counties. The board did not support an original version of the proposal calling for nonpartisan plurality elections with no primaries or runoffs.

It’s time to raise judicial pay in North Carolina

When it comes to judicial pay, North Carolina has fallen far behind.

According to a recent report from the National Center for State Courts, North Carolina ranks 47th in the nation for salaries for the state’s highest court. Here, the current pay for an associate justice is $167,807. In neighboring South Carolina? It’s $213,321. In Tennessee, it’s $208,704.

In case you’re wondering, things aren’t rosier at the Court of Appeals. At the intermediate appellate level, we rank 38th. If that sounds better, know that there are only 41 states with intermediate appellate courts.

Questions about judicial pay are nothing new. Debates about judicial pay at the nation’s founding led to the compensation clause in article III of the federal constitution. That clause prevents Congress from decreasing a federal judge’s pay while in office.

And throughout the nation’s history, there have been calls for raising judicial pay, especially at the federal level. Those calls haven’t dissipated. In an annual report to Congress, Chief Justice John Roberts explained that the judiciary can’t serve its role if it’s either restricted to the wealthy, who can be indifferent to compensation, or to those who receive a raise when becoming a judge. There are fine judges in both categories, but the nation–and this state–shouldn’t depend on such a narrow pool of talent.

Don’t get me wrong: it’s possible to overpay. Plato worried about that over 2,000 years ago, warning that the government shouldn’t entice the greedy to seek public office. But at

current salaries, that’s a distant concern.

And there’s nothing inherently wrong with paying judges less than they’d make in private practice. But there is something wrong with paying judges less than a first-year associate. Back in 2021, the national, median salary for first year associates in private practice was $165,000. And that’s not even including bonuses. There’s no reason for a first-year associate and the Chief Justice of the North Carolina Supreme Court to receive the same pay.

We do ourselves a disservice by keeping judicial pay so low. When the gap between a judicial salary and an attorney’s next best alternative is too great, we lose out on the best legal minds our state has to offer.

Although the current salaries may seem substantial compared to the average worker’s salary in North Carolina, many attorneys leaving private practice for a judgeship would need to radically change the lives of their families. Younger judges, who are still providing for their children, are especially susceptible to the burdens of low pay. Many attorneys aren’t willing to put their families through that, even if they’re personally interested and willing to join the bench. Some judges have resigned when they’ve felt the burden on their

families become too much, especially given the costs of education.

This isn’t to say that salaries for our trial court judges necessarily need raising. At the trial level, things are more complicated because the cost of living varies so much across the state.

By contrast, all our appellate judges keep chambers in Raleigh, and most of them reside in Raleigh permanently. So it’s fair to tie the salaries for all our appellate judges to Wake County metrics, which are at the high end for the state.

This isn’t a radically expensive proposal. At the appellate level, we’re talking about the salaries of just twenty-two people. Give them all a 20% raise–let them have a salary that starts with a 2–and it will only add about $700,000 to the budget. That’s a small sum for appellate judges whose rulings determine the law for the entire state.

Ultimately, it’s not asking too much for North Carolina to pay our judges a salary that reflects their importance to our democracy. They’re doing hard, often thankless work. Let’s pay them for it.

Troy Shelton is an appellate partner in Raleigh at Fox Rothschild LLP. He partners with trial attorneys to win on appeal in state and federal courts.

Troy Shelton

AN OPEN MIND

At Ward and Smith, paralegal internships pave the way to fulltime careers

n BY TERI SAYLOR Contributing writer

Ginger Jones was in her 50s when she decided the time was right to become a paralegal.

Now, she is on her way to earning her paralegal technology degree from Pitt Community College in Greenville, N.C., and slated to graduate in May.

Now, two months into a unique paralegal internship at Ward and Smith in New Bern, N.C., Jones knows she made the right move.

“What I like most about my internship is the incredible amount of learning there is still to do in real life outside the tests, quizzes, and hours spent in labs,” she wrote in an email. “ e training process at Ward and Smith includes patience, a lot of good humor, and no lack of opportunity.”

Many law rms o er paralegal internships in a variety of formats, but Ward and Smith takes a unique approach, says Jessica Denoy-

er, human resources coordinator at the rm.

“We’ve always had a summer associate program for the attorneys, and we decided to create a sta internship program three years ago,” she said in a recent zoom interview.

Seeking out the right partners

One of the law rm’s goals is to build its own talent pipeline, and so far, their e orts are paying o . ey’ve hired six full-time sta through their internship program.

e paid internships run 16 weeks, and edgling paralegals are treated as part time temporary employers, Denoyer said. e rm hires one paralegal for each of its ve o ces in New Bern, Asheville, Greenville, Raleigh, and Wilmington.

Denoyer turns to local community colleges for help with recruiting.

“When we were seeking education partners for our internship program, we wanted to nd those that best represented the communities where we live and work, and

we believed the community colleges met that goal,” she said.

e community college system also supports Ward and Smith’s DEI goals to nurture a diverse sta that includes people of di erent backgrounds and experiences.

Internship programs like the one at Ward and Smith are music to Vicki Coleman’s ears. Coleman, paralegal department chair at Pitt Community College, is inundated with requests for paralegals from area law rms.

“ ere’s probably four or ve jobs for every student,” she said in a recent zoom interview. Currently, the student population, at 35, is at a low ebb.

“In the past, we have had as many as 70, so we’re down about half,” she said. “When the economy is bad, our enrollment picks up, but the job market is really good right now.”

For Pitt Community College students, participation in a work-based learning pro-

Ginger S. Jones was in her 50s when she decided to enroll in Pitt Community College’s , Paralegal Technology program. Meghan Doll, a litigation and family law paralegal is her mentor at Ward and Smith in New Bern.

Jessica A. Carroll (left), a student at Cape Fear Community College, goes over paperwork with her mentor, Jennifer Roeder, a real estate paralegal at Ward and Smith in Wilmington.

MIND / ‘...way to fulltime careers’

gram is mandatory, Coleman said.

While other law rms o er paralegal and support sta internships, many are unpaid, which can be hard for students who are working full time while going to school, Coleman said.

She is impressed with Ward and Smith’s paid internship model, which is carefully designed as real on-the-job training.

“Ward and Smith is coming through with a structured working experience, and is really committed to making it work,” Coleman said. “ e fact that they have a structure, and they have a competitive application process, and intentionally provide them with a broad range of experience, they’re just doing a really nice job with their program.”

Finding the right match

Part of Ward and Smith’s unique approach is exposing interns to a broad range of duties and practice areas. e rm has an email queue that any fulltime paralegal or administrative assistant can use to post an assignment. Whoever has capacity that day simply takes it. Sta and interns may be tasked with a variety of duties like dra ing documents, calling courthouses, or writing correspondence

“ e interns might get to work in three di erent sections in one day,” Denoyer said. “We let them get their feet wet in all our practice areas.”

For Jones, working at Ward and Smith has been eye-opening and rewarding.

“ e variety of tasks a paralegal must perform is ludicrous, and an exact match with the type of job I wanted,” she said. “I wanted a career that makes me want to go to the o ce and see what dragons there are to slay, even that involves 1,000-plus pages of redaction.”

Two interns in Ward and Smith’s 2023 class are students at Cape Fear Community College in Wilmington, where paralegal students working toward their associate

degree are required to complete a 160-hour internship.

“Ultimately the student is responsible for nding a job and getting hired, but we do help them with placement,” said Jessica Cornette Faulk, who teaches in the college’s paralegal program. Faulk is also in charge of work-based learning.

“Internships help our students get re-

the job.

“What I like most about this internship is the teamwork and how everyone is willing to help you understand the many di erent aspects and technologies that accompany paralegal work and ultimately accomplish your goals,” she wrote in an email.

She adds that a er her internship ends, she’ll be ready for any type of job in a law rm.

“My internship has given me real experience in the legal workforce,” she wrote. “I have performed many of the duties I’ve studied about, and I love being able to put those skills to work for Ward and Smith.”

Learning from experience

Students applying for internships at Ward and Smith start with an interview with a team made up of Denoyer, the rm’s administrative services manager, and paralegal supervisors in each of the rm’s practice

Want to know more?

FOR INFORMATION ABOUT PARALEGAL INTERNSHIP PROGRAMS, CONTACT:

al-world experience, and they help attorneys ll a sta ng need,” she said. “We’re training the future paralegals in the legal profession.”

When students graduate from Cape Fear’s paralegal program, they o en leave with a portfolio of experiences with tasks like motions, deeds, wills or other work products.

“I want paralegals that come out of this program to become an expert in their eld, to know everything there is to know about their practice area and be indispensable to their attorney,” she said.

Cape Fear student Jessica Carroll, a paralegal intern in Ward and Smith’s Wilmington o ce is learning that lesson on the job and enjoys taking a collaborative approach on

Jessica Denoyer, Ward and Smith JLDenoyer@wardandsmith.com

Vicki Coleman: Pitt Community College vgcoleman356@my.pittcc.edu

Jessica Cornette Faulk: Cape Fear Community College Jcfaulk673@mail.cfcc.edu

Precious Vines Harris: Durham Technical Community College paralegal@durhamtech.edu

Courtney L. Holliday (le ) and Paris N. Jarmon are former paralegals at Ward and Smith who how have full time jobs in the rm’s New Bern o ce.

CAROLINA PARALEGAL E-FILING

WORK IN PROGRESS

 BY TERI SAYLOR

Despite a steep learning curve and technical problems, North Carolina’s new online case management system, in a pilot phase, is rolling out on schedule with four counties on board and a h expected to come online this summer.

Delivered with great fanfare, paralegals report the system is not measuring up to their expectations yet.

Complaints include problems uploading documents and trainings that don’t match the way the system actually works.

Natalie Porter, owner of Apricus Paralegal Group in Winston-Salem, supports a variety of attorneys across the state and was excited about

the new system, designed to smooth the transition from an antiquated paper practice to digital. She has ended up discouraged instead.

“It’s frustrating to know that we spent our time either traveling to do a training onsite or spent time training online at home and when we tried ling documents it didn’t work because the training doesn't align with how the portal actually functions,” she said.

But a spokesperson for the Administrative O ce of the Courts said improvements are in the works.

Graham Wilson wrote in an email that the system is still a work in progress and getting better each day.

“Both attorneys and courthouse sta are gaining comfort and familiarity with the system,” he wrote.

“ at said, any new system has a learning curve and requires con guration re nements during the pilot phase, and that is the case with this project.”

Across the United States, court systems are implementing Odyssey, a judicial information system designed to replace old processes that have been in place for decades.

In North Carolina, the Odyssey suite replaces older legacy systems with a streamlined case management solution including eFiling, eDiscovery, nancial management, document management and other functions for all types of cases.

It is designed to create e ciencies by reducing paperwork and increasing collaboration among court o cials, lawyers, law enforcement o cers

Lifelong learning and giving back

As the functional director of membership and marketing for the Legal Sta Professionals of South Carolina, Mikki Hancock believes in lifelong learning and giving back to her profession.

e LSPSC is a chapter of NALS — the National Association for Legal Support Professionals, and Hancock views her leadership role as a path to education, professional growth and the ability to be the best asset to attorneys as possible.

“I believe that paralegals have a duty not only to their rm, but to themselves to continue learning,” she says. “I have attended many CLEs to broaden my knowledge about the paralegal profession.”

Hancock is a paralegal at the Dean Law Firm in Orangeburg. She says she experienced what she considered an unfair ruling in a court matter, and that inspired her to pursue her paralegal career with the goal of working in criminal law. But her career took a slight detour path away from criminal law, and today she focuses on workers compensation and personal injury.

In addition to her work at the law rm, Hancock owns a handmade cra business called Mikki’s Designs & Decals and she continues honing her expertise through continuing education.

Professional development is key to getting ahead in her career.

“If you can’t move forward, you will become stagnant,” she says.

Growing up:

I am originally from Williston, S.C., and for the past 30 years I have been in the Branchville/Smoaks area of South Carolina. When I say I live in the middle of nowhere, I mean it literally. It takes me at least 20 minutes to get to any kind of shopping. I went to school at Williston Elko High School where I graduated

with honors in a class of 53 students. From there, I went to USC-Aiken and majored in accounting. A er some family issues, I was not able to return to school until I was 29. I received my associate degree in public service/ paralegal studies from Orangeburg Calhoun Technical College.

Career path:

While I was attending OC Tech, one of my classmates was working full time for a law ofce that needed a paralegal. She recommended me for the position, and I began my paralegal career while attending classes. I worked for Yarborough, Hutto & Jackson, speci cally for Attorney F. Hall Yarborough. He mainly handled probate work with a little real estate thrown in. Mr. Yarborough retired, and I was le without a job. Fast forward eight years, and I began working for Attorney Clyde C. Dean, Jr. at Dean Law Firm

I love my job because:

Every day is di erent. I work with a great sta and an awesome attorney. No two days are alike because of the diversity of clients we deal with.

My passion outside the law:

I have a handmade crafting business called Mikki’s Designs & Decals. I do everything at home. My favorite saying is, “I have never met a craft I didn’t love.” YouTube gets me into a lot of trouble because I watch a lot of videos about how to do different crafts. Working on tumblers, t-shirts, laser engraving, wreaths, and other products is my stress therapy. While I am working on any craft, my focus is on that craft alone. It gives my brain a chance to recharge before going back to work at the law firm.

Top career success:

I think my main career success is passing the professional paralegal certi cation exam the rst time taking it. I rmly believe it has made me a more valuable paralegal, but at the same time, it taught me so much about di erent aspects of the multitude of elds in the legal profession.

I have learned:

I didn’t have as much patience as I needed for this career. Over the last 10 years, I have gained an in nite amount of patience while dealing with so many di erent types of clients.

Work/life balance:

I married a great man who stands behind all my decisions. He encourages me at every step whether it was studying for the paralegal certi cation exam, bringing work home to do, or going to legal conferences to further my education. Having that encouragement allows me to move forward with my career. Of course, it helps that my children are grown.

Q&A: MIKKI HANCOCK

Mikki Hancock

Q&A: CHERYL LEGRAND

Cheryl LeGrand finds joy in helping others succeed

Charleston native Cheryl LeGrand is so passionate about her local Guardian ad Litem program that she even has a longterm goal to volunteer fulltime in that field after she retires.

LeGrand is a litigation paralegal at Barnwell Whaley Patterson & Helms of Charleston, where she works with civil and defense litigation cases, including personal injury, dram shop litigation, employment and defamation.

“I have also worked in other legal areas in the past, including workers’ compensation, construction defects, residential real estate, trucking and even a little probate and estate law,” she says.

She studied business at Mansfield Business College and in 2020, she completed a paralegal certificate course at the University of South Carolina.

Career path.

I chose the paralegal career path because I find this type of work so interesting and rewarding. I am intrigued by the details and preparation involved in investigating the facts of a case and determining the best possible outcome for all parties. I have been watching online trials in recent years and find them interesting and exciting. I also love taking continuing legal education courses not only in this field, but just about any area.

What motivates me:

I feel blessed to work with the best attorneys in the Charleston area and in such an interesting field. I enjoy being part of a team and helping attorneys succeed in obtaining the best results and outcomes for their clients. I also love to learn, and there is no lack of educational opportunities in this line of work. I am the person that gets excited about the successes of others, and you can often hear me “woo-hooing” upon receipt of good news. It is a satisfactory feeling to know I play a role in working for the common good.

My job:

The question “if there is a such thing as a typical day” pretty much says it all. The work and technology are constantly changing. I focus on helping our litigation team make sure all we meet all deadlines, and I concentrate on pristine case management and organization.

Time management tips:

Reviewing all correspondence in detail and making notes of what needs to be done. I create and use a lot of indexes and charts. I use technology to track tasks and create follow-up reminders. I also try to be flexible to best serve our attorneys and clients because on some days priorities can change quickly. The keys are focus, at-

CAROLINA PARALEGAL NEWS BRIEFS

n Legal staff professionals announce 2023 officers

At the January meeting of the Legal Sta Professionals of South Carolina, president Katherine Helms recognized the 2022-2023 o cers. ey are Traci B. Wolfe, president-elect; Jamie I. Early, secretary; Sonia L.

Hunt, treasurer, Cheryl LeGrand, functional director of membership and marketing; Susan L. Olmstead, functional director of education and certi cation, and Stacy Russo-Strobel, immediate past president and parliamentarian.

LSPSC’s 58th Annual Meeting and

tention to detail, and willingness to serve.

Advice to teenaged self:

Keep grounded in the goal to be the best you can be. Stay focused, be yourself, stay on the narrow path, and practice positive thinking.

When I’m not at work:

I enjoy spending time with my miniature dachshunds. I love working decorating my home, doing yardwork, gardening, spinning, reading, volunteering in community and church, walking in scenic areas, and trying different recipes for church and other special events.

Educational Conference will take place at the Holiday Inn & Suites on Highway 21 in Beaufort, S.C. Paralegals are invited to attend for continuing education, networking, and the association’s annual meeting. LSPSC is a

Cheryl LeGrand

and the public. e North Carolina Administrative O ce of the courts has joined 38 other states to use Tyler Technologies’ Odyssey suite.

e NCAOC started its pilot program in four counties in central North Carolina — Harnett, Johnston, Lee, and Wake. e go live date was February 13 in those counties, where e- ling is now mandatory. Further, attorneys in other counties who wish to le cases in the four pilot counties will also be required to use the e- ling program.

With plan to launch the system in Mecklenburg County this summer, the NCAOC will continue a slow roll-out with all 100 counties expected to be online by 2025, Wilson said.

Meredith Kohari, a real estate paralegal at Manning Fulton in Raleigh is struggling with the new system. She uses it to do title searches and le documents with the court.

“I have tried ling, but the system is not accept-

ing my documents,” she said in a recent phone interview. “ ere was a lag time, and when I tried to track them down in the system, I had trouble nding them by name, and had to use the attorney number and the le number.”

Porter worries about the mandatory nature of the eFiling system and especially about pro se litigants who may not have a computer or an internet connection.

“I can't imagine trying to le a document using le and serve on my phone,” she said. “And for pro se litigants who have to use their phone to le an answer or initiate an action, I think the requirement to use this program creates an unnecessary barrier to accessing the court system.”

Wilson says the system is optional for self-representing litigants, and for those who do wish to e- le, public Wi-Fi is available in all courtrooms statewide.

“Every courthouse in the state is equipped with public access kiosk devices that provide the public

Meeting the Moment

with access to AOC legacy and Odyssey case management data,” Wilson wrote. “If home Internet is not available, Internet accessible computers can be found at most public libraries along with access to the online AOC Odyssey case management system.”

Despite their frustrations, Porter and Kohari remain optimistic that the system will bene t the courts, attorneys, paralegals, and the public when it begins operating smoothly.

“I think that with some tweaking to speci cally tailor the trainings to how the portal actually works, it could be a great tool for folks,” Porter said.

And while Kohari recognizes it might take time to get the issues resolved, she is committed to keep trying.

“I’m just going to keep uploading les and hope for the best,” she said.

Teri Saylor is a freelance writer in Raleigh, N.C. Contact her at terisaylor@gmail.com

Lawyers Mutual goes beyond simply being a malpractice insurance company. We are here for you – our insureds – to make the practice of law in North Carolina better.

In response to changes in the legal profession, Lawyers Mutual now offers a Practice Management program to assist insureds with issues of technology and practice management, spanning from start up to wind down and all points in between.

By focusing on technology and a systems-based approach to practice management, our goal is to help insureds operate more efficiently and with less risk.

We are more than an insurance company; we are your partner in law

 Continued from Page 36

sections.

“It’s a pretty-good sized panel, and we tell our prospective interns in advance what they’ll be facing,” she said. “ e reason I chose to do it this way is because not only do we get to interview and evaluate the interns, they have a chance to ask questions of paralegals who have been in the business for a long time.

A er interns come on board, mentors are available to show them the ropes and help them feel welcome. ey quickly become part of their rm’s family, attending rmwide and local o ce activities.

“Once a month, we have a rmwide happy hour on a giant Zoom call and we talk about what’s going on,” Denoyer said. “I encourage it because it’s a great way for them to learn our rm culture, and how an o ce works.”

Recently Denoyer joined the Paralegal Advisory Committee at Durham Technical Community College, a group that provides guidance and advice to the paralegal program faculty and administrators and helps ensure that the program meets the needs of students and the community.

Precious Vines Harris, director of the Durham Tech paralegal technology program says enrollment, at around 80 students, is strong. She regularly elds requests for interns coming from law rms across the Triangle area of North Carolina, the Attorney General’s o ce, and a variety of businesses and nonpro ts.

“We have a good mix of students who are

 Continued from Page 40 chapter of NALS, the National Association for Legal Support Professionals. Visit www lspsc.org to learn more.

n Ward and Smith attorney and paralegal chaired 2023 4All Probono day of service

Attorneys and paralegal across North Carolina convened virtually and in person on March 3 for the 4All Probono day of service.

looking for real work experiences to match what they are learning in class,” she said in a phone interview.

Harris and Durham Tech have been working with Ward and Smith from the beginning. Next month the college is convening a partnership collective to cultivate relationships with business and industry.

“Building alliances and creating relationships will help us learn where employers have gaps and how we can help meet their needs,” Harris said.

A boost in confidence

Courtney Holliday and Paris Jarmon are former Ward and Smith interns who landed full-time jobs at the rm in New Bern.

Holliday is a legal administrative assistant in the rm’s Business Law Section. She says her internship gave her a boost of self-con dence and a head start when she started her professional career.

“I felt I had an advantage since I have been able to work with other paralegals rsthand and learn from them while completing my degree,” she wrote in an email. “During my internship, I had projects in every practice area of the rm, so it also helped me learn what areas of law I enjoyed working in.”

Jarmon also appreciated the practical work experience. She is a real estate legal administrative assistant.

“It wasn’t as though we were shadowing the other paralegals at Ward and Smith, but we were actually given assignments that professional paralegals do on a day-to-day basis,” she wrote.

In addition to bringing in college interns,

Ward and Smith attorney Jeremy Wilson and paralegal Stephanie Crosby are co-chairing this year’s initiative, which the rm calls one of the “most extensive pro bono legal projects in the state to help those in need.”

e day is a collaborative e ort between the North Carolina Bar Association and the North Carolina Bar Foundation to provide free legal services to those who cannot a ord it.

Wilson and Crosby are coordinating with local organizations throughout the state. eir e orts includein helping recruit

Ward and Smith is planning ahead, with a program that exposes high school students to careers in law.

Working with area high school career counselors, the rm recruits kids to help out in its o ce services department, work in records and reception and spend time in the mailroom.

“ is spotlights the professions in the legal eld that high school students don’t necessarily think of,” Denoyer said. “You may think jobs in law mean becoming an attorney or maybe paralegal, but you don’t know all the other positions we have at a law rm and we hope someday they’ll be interested in working at our rm.

For Denoyer an ideal paralegal intern is open and inquisitive.

“Sometimes our interns come in with their minds made up, and it’s interesting to learn how their opinions evolve over time,” she said. “For example, some come in thinking they will hate family law and then go out loving it. is experience opens their minds.”

And for most of the students, their internship reinforces their decision to become a paralegal.

Holliday says her experience made her feel more secure in her career choice.

“I enjoyed working here as an intern and I was thrilled to be o ered a full-time position because I was dreading leaving the rm a er my internship ended,” she wrote. “Working with fulltime paralegals and helping with projects rsthand got me excited about lling a paralegal role myself.”

Teri Saylor is a freelance writer in Raleigh, N.C. Contact her at terisaylor@gmail.com

volunteer attorneys, paralegals, and law students from across North Carolina to provide free legal assistance in matters such as family law, immigration issues, eviction, and others.

“One call can be a lifeline for someone facing an otherwise impossible situation,” Stephanie said in a report on the rm’s website. “It’s why initiatives like 4ALL are so important, and it’s been a pleasure to be part of the e ort. I encourage every attorney, paralegal, and law student to donate their time.”

At Liberty University School of Law, we provide unparalleled skills training to produce practice-ready graduates who will become lawyers of distinction. We promote a culture that cultivates both integrity and high ethical standards to ensure our graduates are ready to lead in their communities.

At Liberty University School of Law, we provide unparalleled skills training to produce practice-ready graduates who will become lawyers of distinction. We promote a culture that cultivates both integrity and high ethical standards to ensure our graduates are ready to lead in their communities.

At Liberty University School of Law, we provide unparalleled skills training to produce practice-ready graduates who will become lawyers of distinction. We promote a culture that cultivates both integrity and high ethical standards to ensure our graduates are ready to lead in their communities.

At Liberty University School of Law, we provide unparalleled skills training to produce practice-ready graduates who will become lawyers of distinction. We promote a culture that cultivates both integrity and high ethical standards to ensure our graduates are ready to lead in their communities.

At Liberty University School of Law, we provide unparalleled skills training to produce practice-ready graduates who will become lawyers of distinction. We promote a culture that cultivates both integrity and high ethical standards to ensure our graduates are ready to lead in their communities.

Three consecutive years of high bar passage rate for first-time takers:

At Liberty University School of Law, we provide unparalleled skills training to produce practice-ready graduates who will become lawyers of distinction. We promote a culture that cultivates both integrity and high ethical standards to ensure our graduates are ready to lead in their communities.

Three consecutive years of high bar passage rate for first-time takers:

Three consecutive years of high bar passage rate for first-time takers:

Three consecutive years of high bar passage rate for first-time takers: 95% (2018)

( July-Oct. 2020)

Three consecutive years of high bar passage rate for first-time takers:

2020)

Three consecutive years of high bar passage rate for first-time takers: 95% (2018) 92% ( July-Oct. 2020) 92% (2019)

2020)

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