South Carolina Lawyers Weekly July 2023

CONTENTS

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COVER STORY :

p4 | Pandemic has ushered in a new age of lawyering

PROFILE :

p8 | Lawyer has state reporters and editors’ backs

OPINION DIGESTS :

p12 | Judges hear cases on appeal

ICONS & PHENOMS :

p17 | Fifteen attorneys recognized for excellence, leadership.

VERDICTS & SETTLEMENTS :

p22 | The latest roundup of South Carolina legal cases

CAROLINA PARALEGAL NEWS :

p29 | Pro bono work more popular than ever

NEWS LETTER FROM THE EDITOR

First, there was the office. Well-dressed lawyers worked shoulder to shoulder with fellow attorneys, paralegals and the support staff. Phones rang almost incessantly. Clients rotated through the waiting room.

Then, the passing of time tempered those things. Casual Fridays toned down office dress. Increasing amounts of business were handled by email. Online resources that put everything from case histories to forms at lawyers’ fingertips whittled down the office staff.

Few people thought the situation would change further — but it did.

The COVID-19 pandemic shoved aside much of the office routine. Lawyers used to a mad scramble in a bustling office found themselves working from a desk or the dining room table at home. Partners and others who once hustled into an office with the latest update or urgent situation were replaced by a school-age child or a beloved pet coming in for help or attention.

While the pandemic is largely past, many changes it fostered at law practices have not passed away. As Heath Hamacher reports in this edition, many lawyers have found that they can be just as productive working from home, that the stress level there is lower, and that the time spent commuting to work could be better invested elsewhere.

Some issues might still require an office presence. Mentoring, for instance, might be more effective in person than over Zoom or Teams, and some clients will still insist on face-to-face meetings.

But the eight-to-five workday in the high-paneled office amid a sea of other legal professionals — “old-school lawyering,” as one attorney put it — is shifting to a more modern legal practice.

Editor Ross Chandler can be reached — at home — at rchandler@lawyersweekly.com.

COVER PHOTO: DEPOSITPHOTOS.COM

Chandler

The old way of practicing law is dead, and the coronavirus killed it.

If that sounds like hyperbole, ask around. Better yet, look around your local law office. You’ll find fewer staff members congregating at the water cooler, fewer attorneys discussing life and the law in the hallways, and more unoccupied desks than you would have found in 2019. Despite these, most firms have at least maintained their lawyer count and many have added attorneys and opened new locations.

Pandemic

Some firms, particularly smaller ones, have permanently adopted wholesale changes caused by a pandemic that required a new normal, whereas others have complied out of necessity while openly longing to get back to “oldschool lawyering.” But despite practices’ reboots and relaunches, law firm life today vaguely resembles its former incarnation.

“We’re never going to go back to exactly the way things were, and we don’t need them to,” Allen Robertson, managing partner of Robinson

Bradshaw, said last year. Robinson Bradshaw’s primary location is in Charlotte, and it maintains an office in Rock Hill. “We’re depending on lawyers to basically control their own schedules and act reasonably to support the culture and make a commitment to being together most of the time. Even our most senior lawyers have learned to operate remotely, and that’s going to be a real advantage in the future.”

Never be the same

At Brooks Pierce in Greensboro,

North Carolina, managing partner Reid Phillips said that he learned long ago that things would never be the same. He said more attorneys are showing up to the office than a couple of years ago as they continue to discover what works best for them and their clients.

“We continue to believe in the value of presence,” Phillips said. “It enhances learning, cooperation, creativity and teamwork. We also believe that our attorneys know what works best for their circumstances. And so, while being clear to everyone about the value of presence, we trust our attorneys to make the right decision about when to be in the office.”

Phillips added that whether to work remotely, in the office or some combination thereof is often a decision made after much experimentation.

One might stereotypically assume that older lawyers prefer the office while younger attorneys would rather work from home, but Phillips said that has not been his experience.

“I think the decision about where to work is often defined more by personality, commuting distance and how conducive the home is to work,” Phillips said. “We have very nice offices, whereas not every residence has a good, quiet, distraction-free and comfortable place to work.”

Metrics offer proof

Betty Temple, U.S. chair and CEO of Womble Bond Dickinson, which has offices in Charleston, Columbia and Greenville, said that while there has been a notable increase in office occupancy over the last year or so, many of the firm’s employees “continue to thrive in a hybrid or remote setting.”

“We try to work with team members on their workplace needs whenever possible,” Temple said. “Respect for the individual is a core value of our firm, and it guides important decisions like this one.

Our office administrators do a great job of scheduling social gatherings, lunchand-learn sessions, holiday celebrations and other events that bring people together.”

While being absent from the office might have connotations of decreased productivity, Temple said that she has seen no such correlation.

“The metrics show that our firm is strong and getting stronger,” she said. “Years ago, we pursued a path of growth — if that growth opportunity was a good fit for our firm and our clients — and it has worked out well. But I’m still a corporate attorney at heart, and my professional satisfaction always has been tied to: ‘Are my clients happy? Are we helping them achieve their business goals?’ Those questions must remain our north star.”

Attorneys and staff members at Moore & Van Allen in Charleston and Charlotte are increasingly spending more time in their offices, but attendance is still lower than it was pre-pandemic, managing partner Thomas Mitchell said.

“Any initial pushback to being back in the office has dissipated,” Mitchell said. “Many of our attorneys and staff still have the flexibility to sometimes work from their homes, and they can find a good balance for their lives and work.” That balance has led to adaptation.

“The firm adapted well to take advantage of the improvements that were made in the legal industry during the pandemic in terms of technology and virtual connectivity, and we are very pleased with how it is working to help serve our clients,” Mitchell said.

At Sodoma Law in Rock Hill and Greenville, managing principal Nicole Sodoma said emphatically that while

there is no going back to the way things were before, decreasing productivity was never an option.

“People continued to get divorced through the pandemic, and our employees rose to the occasion to continue to meet those needs,” Sodoma said. “Our productivity before and after the pandemic has remained steady and, in many areas, even increased with the trends for which we have been accustomed since we opened our doors 15 years ago.”

Progress through pain

Sodoma said she vividly remembers the day courthouses shut down for the pandemic. Rather than panic, she got to work upgrading her firm’s digital capabilities and managing the expectations of clients who had pending family law cases related to children, support obligations, “and so much more.”

She said nothing beats connecting in person, but that learning to navigate new frontiers and work together through a crisis as a firm might have been one of the better team-building exercises Sodoma Law has undergone, learning to support its clients and one another through the upheaval and uncertainty.

“Emerging on the other side, there is no question in my mind that our cohesion and connectedness are better than ever, and I believe that is due to our efforts to keep staff as connected as possible during the early days of the pandemic and focusing on rebuilding that community once we were able in the latter days,” she said.

Phillips said that going from three offices to more than 175 workspaces presented challenges and allowed firm leaders to think ahead about how to do things better going for-

See Page 6

Phillips

Mitchell

Sodoma Temple

ward.

“We’re still having fun at it, but we certainly haven’t conquered all the challenges yet,” Phillips said. “I worry especially about data security with everyone having a laptop and taking them to so many places. With all that having been said, the freedom and flexibility that remote work gives is undeniably a great benefit overall.”

Mitchell said some old-school ways, such as in-person mentoring and social events, might experience a renewal, but the practice of law will never mirror yesteryear.

“The pandemic itself was a global tragedy, and it changed the world in ways that we now have an obligation to learn from and make things even better,” Mitchell said. “Some change is slow and deliberate, while other changes are prompted by forces out of our control. I view it as a part of

our commitment to our clients and community to be both resilient to change, but also responsive and adaptive.”

Temple said that while the days of every attorney showing up to the office Monday through Friday are a thing of the past, the pandemic merely accelerated an existing trend. She said new approaches that increase productivity and better

position attorneys to help clients should be embraced. But this does not mean, she added, that old-school lawyering is dead.

“‘Old-school lawyering,’ as I’ve always understood it, means getting to know our clients, understanding their needs and concerns, and working tirelessly to serve them,” Temple said. “That never changed, and it never should.” ◆

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“[W]hile being clear to everyone about the value of presence, we trust our attorneys to make the right decision about when to be in the office.”

Reid Phillips, Managing partner, Brooks Pierce

Danny Crowe

Jon Austen

Theron Cochran

Ellen Adams

Sam Clawson

Anne Culbreath

Bob Calamari

Kevin Barth Kip Darwin

Eric Englebardt Karl Folkens

Earl Ellis Vernon Dunbar

Amy Gaffney

Rob Hassold Mills Gallivan

Mitch Griffith

Harry Goldberg

Richard Hinson

Bill Lyles

David McCormack Ben McCoy

Regina H. Lewis

Stuart Mauney

Becky Laffitte Marvin Infinger Anthony Livoti

John Moylan

Walter B. Todd, Jr.

Tom Stephenson Lee Plumblee

Franklin Shuler Lana Sims, Jr. Ronald Stanley Darren Sanders Matt Story

Thomas Wills Brad Waring Ned Tupper Derrick Williams Bo Wilson

Lawyer defends free press, public’s right to know

B y r oss c H andler

Taylor M. Smith IV’s professional career started in journalism, moved into the law and then morphed into a combination of the two.

A partner with Harrison, Radeker & Smith in Columbia, his practice includes serving as lead counsel for the S.C. Press Association, the professional organization for the state’s 82 daily and weekly newspapers.

His work for the association and other media-related clients runs the gamut from defending against libel lawsuits to lobbying the South Carolina General Assembly to convincing recalcitrant public officials — and, if they still resist, their attorneys — to meet the requirements of the state’s freedom-of-information and public-meeting laws.

Chance led Smith to what was then Harrison & Radeker in November 2011.

“I was a protester in law school as part of the Occupy Columbia movement, a part of the greater Occupy Wall Street movement,” he says.

When officers arrested protesters on the Statehouse grounds, Smith met Drew Radeker, “who offered to bring suit for violation of their free speech rights.” Smith, who was not among those charged, was offered the chance to help with the case as an informal intern at the practice. That evolved into a formal clerkship in 2012 and a job after he graduated from the University of South Carolina School of Law in 2013.

Today, he spends about 40 percent to

• Place of birth: Birmingham, Alabama.

• Education: University of South Carolina, B.A. 2008 and J.D. 2013.

• Firms affiliated with: Harrison, Radeker & Smith (originally Harrison & Radeker), associate and later partner.

• Other civic engagements: Coaches boys varsity soccer team at Brookland-

VIDEO: See Taylor Smith explain the important distinction of speaking on and off the record in a video at sclawyersweekly.com.

50 percent of his time practicing on behalf of the press association and its member papers.

“Primarily, I interface with editors and reporters from around the state through email, phone conversations and text messages about issues primarily around transparency through open records or meetings,” he says. “The majority of the time, it’s consulting with those individuals about accessing government records or public meetings or interfacing with the government and its lawyers about issues surrounding access to those records or meetings.”

local governments’ public notices to the need to add penalties and tougher language to curb violations of public-records laws.

“Typically, the press association — and it was true of this session — is one of the only organizations present in the Statehouse to advocate for open government and freedom of speech,” Smith says. “It’s not an easy task to get appropriate consideration of those issues, which are vital for our democracy.”

Sometimes, other groups pitch in — he cites the state chapter of the American Civil Liberties Union and occasional ad hoc coalitions — but usually, such work is a solo effort.

“So often the press association is a lone voice, which we are privileged and honored to [be],” he says.

Smith

Smith also helps them comb through stories for privacy concerns or potential issues such as defamation. He teaches press association webinars and seminars on media-related issues and serves as an adjutant professor teaching media law at USC’s School of Journalism and Mass Communications.

But his work is broader than that done for individual clients. He helps the press association move the needle statewide by lobbying the General Assembly on subjects ranging from newspapers publishing

TAYLOR M. SMITH IV AT A GLANCE

Cayce High School.

• First job: “My first job was after [high school] graduation. That was filling in for my dad’s writers at The Press and Standard in Walterboro when they went on vacation.”

• How to maintain work-life balance: “I have tried my best to not work at home

Practicing media law would seem to be natural for the Alabama-born lawyer. His grandfather worked for two decades as the editor of The Anniston Star, a daily newspaper in the Alabama city of the same name, and his father was the publisher of The Press and Standard in Walterboro for more than 25 years. Smith majored in print journalism at the University of South Carolina, graduating in 2008 and going to work for the Greenville Journal.

But the decline of newspapers saw him eventually laid off. Needing a job, he worked for Nexsen Pruet, partly on its marketing staff and partly as a runner.

“They were the ones who convinced me to go to law school,” he says. ◆

(laughs). Also, when feasible, I have taken motivation from our Iberian brethren and take a nap, a siesta, in the early afternoon.”

• With a month off, I would: “[T]ravel to all of the soccer stadia around the world for the teams that I have watched or idolized since I was a boy.”

QUESTIONS WITH... Donald Reynolds and Larry

Delaware’s Chancery Court is deciding whether TripAdvisor can leave the state and reincorporate in Nevada, a move that the plaintiffs say will help insulate company directors from stockholder litigation. Gregory Maffei, a controlling stockholder, employs “sophisticated financial engineering” to achieve personal gain at the expense of minority investors, the plaintiffs allege.

Attorneys for TripAdvisor have declined to comment on the pending litigation, but the company has said in public filings that the move would provide better protection from “unmeritorious litigation” and that the company could pay less in franchise taxes.

Donald Reynolds and Larry Robbins, both of Wyrick Robbins in Raleigh, North Carolina, recently spoke with Lawyers Weekly about the potential move and what it might mean for involved parties.

Reynolds joined Wyrick in 1993 and has experience ranging from representing startup companies in the initial phases of organization and financing to companies and underwriters in public offerings, mergers, acquisitions, and SEC reporting and compliance. He earned his bachelor’s degree from Whitman College and his law degree from New York University School of Law.

Robbins practices in the areas of venture capital, corporate finance,

mergers, acquisitions, securities and taxation. He represents entrepreneurs, beginning with early startups and continuing through the initial public offering stage. He earned his bachelor’s, Master of Business Administration and law degrees from the University of North Carolina at Chapel Hill.

1Q. Nevada appears to be a hot spot for incorporation and reincorporation. What is the logic behind the move in this case?

A: Reynolds: For many years, Nevada has sought to become the “next Delaware” in terms of being

See Page 10

Robbins

Robbins

the jurisdiction of choice for companies. Among other things, Nevada has far lower annual franchise taxes than Delaware, and it has laws intended to minimize the duties, and therefore the potential liability, of officers and directors to their stockholders.

Q. If allowed, what does this move mean for TripAdvisor shareholders?

A: Robbins: Delaware permits a corporation to opt out of duty of care, but not duty of good faith or duty of loyalty or recently case law-imposed duties of oversight. Nevada eliminates liability for duty of care, duty of loyalty, duty of good faith and duties of oversight, but leaves the ability of shareholders to bring claims for fraud, intentional misconduct and knowing violation of law. An added risk on both sides of this situation is the lack of the large body of historical case law precedent — not to mention a judiciary with years of experience in this arena — that exists is in Delaware, meaning neither stockholders suing the company nor the company’s officers and directors have as clear a sense of where the line is in Nevada between protected behavior and breaches of the law.

For big public companies, the franchise fee savings are less of an issue, but TripAdvisor does make the point in its proxy materials that it believes it will save almost $250,000 per year being in Nevada rather than Delaware.

A: Reynolds: For the average investor, I’m not sure any of this should make much of a difference. It is conceivable, though, that some large institutional investors would eschew Nevada corporations, at least on the margins, and of course if you make enough large institutional investors not want to hold your

stock, it can have a negative effect on valuation and liquidity, which hurts all stockholders.

Q. What might this mean, if anything, for Delaware, which has been known as a mecca for incorporation?

A: Reynolds: Honestly, we’ve seen Nevada and some other jurisdictions make efforts over decades, if not longer, to attempt to become the new Delaware, all with very limited success. While the TripAdvisor situation is a highly visible potential defection, if history is any guide, Delaware seems likely to retain its status as the jurisdiction of choice for public companies.

Q. Is this something that we’ve seen locally?

A: Reynolds: We represent at least one publicly traded Nevada corporation, although it is not based in the Carolinas, and we have had a few local clients inquire about reincorporating there. We stay up to date on all these kinds of developments and advise clients to help them make the

decisions they think are best for them from a strategic perspective. That said, we don’t expect a major exodus of local companies out of Delaware and into Nevada, at least not in the near term, particularly in light of the relative dearth of precedential case law in Nevada.

Q. From your perspective, is this tactic an underhanded means of evading liability, or does it just make good business sense?

A: Reynolds: I wouldn’t characterize this tactic as either of those extremes. There’s a strategic risk/ reward analysis that each company needs to make to determine which state they prefer.

A: Robbins: I believe that the move serves two purposes — first, make it more attractive to serve on public boards; and second, at the time these changes were made, Nevada significantly increased its annual fees, so while still significantly below Delaware, this seems to be intended to be somewhat of a revenue driver for the state. ◆

TripAdvisor is seeking to move its incorporation from Delaware to Nevada, where company directors have fewer legally specified duties to shareholders.

Striking of unvaccinated jurors didn’t violate Sixth Amendment

Afederal District Court didn’t violate the Sixth Amendment right of criminal defendants to a jury of their peers when it struck potential jurors who were unvaccinated against COVID, the 4th U.S. Circuit Court of Appeals has held.

The defendants — unvaccinated due to sincerely held beliefs — objected that striking jurors based on vaccination status wouldn’t produce a representative sample of their peers. The District Court overruled their objection.

Judge A. Marvin Quattlebaum Jr. affirmed the District Court’s ruling.

“The fair-cross-section requirement applies to jury venires, not petit juries,” the judge explained. “And the district court’s decision to strike unvaccinated jurors based on their perceived inability to serve without creating unnecessary safety risks affected the composition of the petit jury for this particular case, not the individuals represented in the venire from which the petit jury is selected. So, we affirm.”

Judges G. Steven Agee and Allison Jones Rushing joined Quattlebaum in United States v. Cruz-Colon.

COVID-19 concerns

Jose Cruz Colon and his wife, Natassja Lopez-Alvarado, were indicted for drug trafficking and money laundering in the Eastern District of Virginia. Their September 2021 trial coincided with the emergence of the Delta variant of COVID-19.

Concerned about safety in advance of trial, U.S. District Judge David J. Novak ordered the defendants to file a joint position as to their own COVID-19 vaccination status and whether they would agree to strike unvaccinated jurors.

The defendants said they were unvaccinated due to their “sincerely held beliefs” but they agreed to be tested before and during trial. They also objected to striking unvaccinated jurors for cause. The govern-

ment took no position.

The court sent a questionnaire to a venire of 110 prospective jurors for the parties to make strikes without having the individuals physically present. In addition to background and case specific questions, there were eight questions related to COVID-19 risk and vaccination.

Neither defendant objected to the vaccination questions. At a pretrial conference, the parties discussed which prospective jurors to strike for cause based solely on the questionnaires. The stricken jurors wouldn’t be required to appear for jury selection.

Novak struck all potential jurors who weren’t vaccinated, as well as several others for typical reasons, such as the burden on a single parent with children. The judge found alternative reasons to strike all but one of the unvaccinated individuals for cause.

Given an opportunity to explain their objection to striking jurors based solely on vaccination status, defense counsel explained that “[t]he thought process is that it may [not] include a representative sample of the jury. For instance, in this case, our clients are not vaccinated.”

The jury wouldn’t know whether the

defendants were vaccinated, Novak responded. Defense counsel said the issue was “whether there was a jury of their peers,” which Novak construed to be a Batson challenge for discriminatory strikes.

After pointing out that being vaccinated isn’t a protected class, Novak explained that he would strike unvaccinated jurors due to the COVID-19 risk with the Delta variant and jurors eating lunch together without masks.

They weren’t raising a Batson challenge, the defendants clarified. Instead, they argued that striking unvaccinated individuals excluded a section of potential jurors and pointed out that the court didn’t know whether vaccinated individuals interacted with the unvaccinated.

Overruling the defendants’ objection, Novak cited statistics showing that unvaccinated people were 11 times more likely to die from COVID-19 that the vaccinated. Another unvaccinated juror was discovered and struck during voir dire over the defendants’ objections.

After ultimately being convicted of multiple crimes, the defendants appealed.

Shared attitudes

The defendants said the District Court’s use of for cause strikes to exclude unvaccinated jurors established a prima facie violation of their Sixth Amendment right to have their case heard before a “fair cross section of the community.”

Before addressing the defendants’ prima facie case, however, Quattlebaum focused on a threshold issue — whether the Sixth Amendment’s fair-cross-section requirement applied to the District Court’s decision to strike the unvaccinated potential jurors for cause related to COVID-19 safety risks.

“We hold that it does not,” the judge wrote.

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

cannot do.

Arbitration

FAA – Interstate Commerce –Contract Recitation

Even though the parties’ contract said any dispute would be resolved by binding arbitration “governed by” the Federal Arbitration Act, since there was no showing that the contract involved interstate commerce, the notice requirements of the South Carolina Arbitration Act still applied.

We reverse the Court of Appeals’ decision, which had overturned the circuit court’s denial of defendant’s motion to compel arbitration.

In the parties’ dispute arising from their employee-uniform rental contract, the circuit court denied defendant’s motion to compel arbitration, ruling that (1) the contract did not implicate interstate commerce and (2) the arbitration provision was not enforceable because it did not meet the SCAA’s notice requirements. Our Court of Appeals reversed, finding the contract did implicate interstate commerce.

Defendant asks us to bless the principle that parties may agree—preemptively—that a court may apply the FAA’s federal preemption power to their contract without first peeking behind the curtain to ensure interstate commerce is involved. This we

The FAA is a sequential whole whose enforcement and preemption power may only be called upon when the dispute arises against the backdrop of a written provision in a “maritime transaction or a contract evidencing a transaction involving commerce.” 9 U.S.C. § 2. “[T]o invoke its statutory powers under §§ 3 and 4 to stay litigation and compel arbitration according to a contract’s terms, a court must first know whether the contract itself falls within or beyond the boundaries of §§ 1 and 2.” New Prime Inc. v. Oliveira, 139 S. Ct. 532 (2019).

A party seeking to compel arbitration under the FAA must demonstrate that the contract implicates interstate commerce. Just as the parties may not prove the requisite connection to interstate commerce by agreeing their transaction or relationship contemplates interstate commerce, they may not make the connection by declaring or contemplating the FAA will govern. Instead, the party pushing arbitration must prove the contract involves “commerce in fact.”

To the extent Munoz v. Green Tree Fin. Corp., 343 S.C. 531, 542 S.E.2d 360 (2001), and Damico v. Lennar Carolinas, LLC, 430 S.C. 188, 844 S.E.2d 66 (Ct. App. 2020), aff’d in part, rev’d in part, 437 S.C. 596, 879 S.E.2d 746 (2022), have been read as allowing parties to agree the FAA preempts South Carolina law without an accompanying demonstration the contract involves interstate commerce, we clarify now they do not.

The Court of Appeals reached its conclusion after noting the following points: defendant shipped the uniforms from Kentucky to South Carolina, and plaintiff’s payments were made to and deposited by defendant in Massachusetts, the site of defendant’s headquarters and board

of directors.

The problem with the Court of Appeals’ conclusion is that the points it relied upon to find the contract involved interstate commerce debuted too late; they first appeared in defendant’s motion to alter or amend and were never mentioned by the circuit court. The Court of Appeals could not use them to rescue defendant’s interstate commerce argument. At any rate, the points came from assertions made by defense counsel. They are not mentioned in the pleadings, not apparent from the language of the contract, nor supported by affidavits or other evidence. It was error to rely on them in deciding whether the contract involves interstate commerce.

Because the contract did not involve interstate commerce in fact, the order of the circuit court denying defendant’s motion to compel arbitration is affirmed, and the Court of Appeals’ opinion is reversed.

Hicks Unlimited, Inc. v. UniFirst Corp. (Lawyers Weekly No. 010-031-23, 7 pp.) (Garrison Hill, J.) Appealed from Anderson County Circuit Court (Scott Sprouse, J.) On writ of certiorari to the Court of Appeals. James Eakes and David James Brousseau for petitioner; Ian Douglas McVey and Jude Cooper for respondent. South Carolina Supreme Court

Civil Rights

Bivens Claim – Prisons & Jails – New Context

The plaintiff-prisoner seeks money damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), based on his claims that the defendant-prison officials (1) violated his right to equal protection by racially discriminating against him and (2) deprived

him of due process when he was (a) placed in administrative segregation and then (b) transferred to a different facility. The court declines to expand Bivens to encompass plaintiff’s claims, given that they arise in a new context and that Congress is better positioned to fashion remedies for such claims.

We affirm the district court’s dismissal of the case.

Bivens recognized an implied cause of action under the Fourth Amendment to sue federal officials for money damages arising from an unreasonable search and seizure. Bivens was later expanded twice: first to recognize gender discrimination in violation of the equal protection component of the Fifth Amendment’s due process clause and second for deliberate indifference to an inmate’s serious medical needs in violation of the Eighth Amendment.

We may not recognize a Bivens claim if it arises in a new context or if there are separation-of-powers principles that counsel against judicial intrusion into a given field. Here, we are faced with both a new context for Fifth Amendment claims and special factors that lead us to reject plaintiff’s attempt to expand Bivens.

Plaintiff’s claims are brought against a new category of defendants – prison officials – operating in a different legal and factual context – prison litigation. And Congress is better suited than the courts to weigh the costs and benefits of allowing such damages actions to proceed. In fact, Congress has frequently legislated in the area of prisoner litigation but has so far declined to create an individual-capacity damages remedy for federal inmates.

Affirmed.

Mays v. Smith (Lawyers Weekly No. 001-067-23, 16 pp.) (James Wynn, J.) No. 20-7540. Appealed from USDC at Raleigh, N.C. (Louise Flanagan, J.)

Devin Redding and Lawrence Rosenberg for appellant; Marie Cepeda Mekosh, Michael Easley and

Sharon Wilson for appellees; Samuel Weis and Easha Anand for amici curiae. United States Court of Appeals for the Fourth Circuit

Civil Rights

Due Process – State-Created Right – Post-Conviction Exculpatory Evidence

North Carolina has created a constitutionally protected right to demonstrate one’s innocence post-conviction with new evidence and DNA testing. After plaintiff was convicted of two murders he did not commit, the DNA of another man was identified from evidence at the murder scene, and a court ordered further examination of the DNA evidence. When further examination of the DNA evidence revealed exculpatory evidence, plaintiff had a liberty interest in having such evidence turned over to him.

We affirm the district court’s grant of summary judgment to the City of Durham and affirm the jury verdict against defendant Dowdy, who was in charge of the investigation that led to plaintiff’s wrongful conviction. We reverse the grant of summary judgment to defendants Pennica and Soucie, who conducted the post-conviction investigation, and remand the case to the district court for further proceedings.

Background

Doris Washington and her 13-yearold daughter, Nishonda, were sexually assaulted and murdered before their apartment was set on fire. Witnesses said they had seen plaintiff arguing with Doris earlier that day. Although DNA evidence from Nishonda’s body excluded defendant, defendant was convicted of the murders.

Subsequently, DNA evidence from Doris’s body was matched to Jermeck Jones via the FBI’s Combined DNA Index System (CODIS).

A court ordered further examination of the DNA evidence. The order

was served on the Durham County DA. Prosecutor Morrill could not recall whether the forwarded the order to defendants Pennica and Soucie at the Durham Police Department (DPD), but they obtained a new DNA sample and interviewed Jones. Jones made incriminating statements. Although plaintiff was informed of the DNA match, he was not informed of Jones’ incriminating statements.

Discussion

The duty of disclosure set out in Brady v. Maryland, 373 U.S. 83 (1963), does not extend post-conviction. But when a state enacts a law granting convicted individuals a right to evidence and a procedure for accessing such evidence, that state-created right can lead to due process rights.

North Carolina has created a constitutionally protected right to demonstrate one’s innocence post-conviction with new evidence and DNA testing. G.S. §§ 15A-269, 15A-1415(c).

Although a police officer generally does not owe a duty to disclose exculpatory evidence post-conviction, in this case, such a duty became essential to realizing plaintiff’s rights to demonstrate his innocence under state-created procedures. Both by statute and by court order, plaintiff had a right to access DPD’s files. And it would transgress “fundamental fairness” if a police officer could willfully ignore North Carolina’s state-created procedures and a court order by withholding evidence to which an inmate seeking post-conviction relief was entitled. As such, plaintiff’s rights are entitled to protection under the Due Process Clause.

Plaintiff must prove that the officers suppressed the evidence in bad faith. His evidence must negate any negligent or innocent explanation for the officers’ actions.

The key factual dispute is whether Pennica and Soucie knew about the court order. Although there is evi-

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OPINIONS

dence to the contrary, portions of the record suggest that Pennica and Soucie understood both the significance of their interview with Jones and their obligation under the court order to disclose the recording and notes related to that interview.

The jury could conclude that prosecutor Morrill told Pennica and Soucie about the order. Though Morrill could not specifically remember whether he served the order on Pennica, he testified that it was his practice to notify DPD of any court-ordered disclosure obligations.

A jury could find that, by not turning over the video of an alternative suspect making incriminating statements or their notes related to that interview, Pennica and Soucie intentionally hid evidence from plaintiff in his innocence proceedings. Of course, a reasonable juror could also conclude that on this occasion, Morrill did not follow his general practice of informing DPD about its court obligations. But the weight to give this competing testimony is a credibility issue that should be left to the jury.

In support of his claim against the city, plaintiff presented evidence that the DPD’s Organized Crime Division had an express policy requiring that Brady material regarding confidential informants be kept secret, in violation of its constitutional obligations. We are not convinced that such a violation – followed by the captain of one police department division – can be laid at the city’s doorstep.

Affirmed in part, reversed and remanded in part.

Dissent

(Quattlebaum, J.) I disagree that the district court erred in granting summary judgment to Pennica and Soucie. Morrill does not recall speaking to Pennica—his contact with the DPD on the post-conviction case—after the order was issued. Pennica and Soucie are unequivocal—they insist no one told them about the court

order or the obligations of the police under it. I would affirm.

Howard v. City of Durham (Lawyers Weekly No. 001-065-23, 50 pp.) (James Wynn, J.) (Marvin Quattlebaum, J., concurring in part & dissenting in part) No. 22-1684. Appealed from USDC at Greensboro, N.C. (Thomas Schroeder, C.J.) Anna Benvenutti Hoffmann, Amelia Green, Bradley Bannon and Narendra Ghosh for appellant/cross-appellee; James Nicholas Ellis, Reginald Bernard Gillespie, Henry Sappenfield, Eric Stevens, Sarah Fritsch and Michele Livingstone for appellees/cross-appellants. United States Court of Appeals for the Fourth Circuit

Constitutional

Due Process – Involuntary Commitment – Sexually Violent Predator – First Impression

Petitioner was charged with multiple sexual offenses, but he was incompetent to stand trial. The Sexually Violent Predator Act applies to persons “convicted of a sexually violent offense”; however, the Act defines this phrase to include a person who has “been charged but determined to be incompetent to stand trial for a sexually violent offense.” S.C. Code Ann. § 44-48-30(6)(c). Therefore, petitioner was subject to sexually violent predator proceedings.

We affirm the Court of Appeals’ decision upholding the circuit court’s ruling that petitioner “committed the act for which he was charged,” “remains incompetent to stand trial,” and “probable cause exists to have [him] evaluated under the Act to determine whether or not he suffers from a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence if not confined.”

The fact that petitioner’s charges were dismissed in 2005 makes no difference to this conclusion. For

purposes of the “convicted of a sexually violent offense” requirement, it is sufficient that petitioner had been charged in 2005, found incompetent to stand trial, and re-indicted in 2014 and 2015 – after the Department of Mental Health recommended that petitioner be transferred to a residential care facility and before the § 44-48-100(B) hearing in 2016.

Due Process

Because the state’s right and obligation to protect the public is hindered by the inability to criminally try an incompetent person, the state’s only option is to proceed under the Act and seek involuntary civil commitment of the person. This is precisely the reason the General Assembly excluded “the right not to be tried while incompetent” from the constitutional rights available to persons under the Act but granted every other right available to criminal defendants. S.C. Code Ann. § 44-48-100(B). Without the exclusion of this right, the state would be unable to protect the public from some dangerous sexually violent persons.

Petitioner’s due process rights are satisfied by the safeguards articulated in the Act. Under the very specific procedures outlined in the statute, the risk of an erroneous deprivation of petitioner’s – any incompetent person’s – liberty interest by involuntary civil commitment is significantly reduced if not completely eliminated. Affirmed.

In re Oxner (Lawyers Weekly No. 010-033-23, 7 pp.) (John Few, J.) Appealed from Lexington County Circuit Court (Diane Schafer Goodstein, J.) On writ of certiorari to the Court of Appeals. Blake Terence Williams, Allen Mattison Bogan, Robert Michael Dudek and David Alexander for petitioner; Alan McCrory Wilson and Deborah Shupe for respondent. South Carolina Supreme Court

OPINIONS

Criminal Practice

LWOP – Juvenile Offender –Resentencing Hearing – Burden of Proof

When a petitioner who, as a juvenile, was sentenced to life without parole seeks resentencing pursuant to Aiken v. Byars, 410 S.C. 534, 765 S.E.2d 572 (2014), neither the petitioner nor the state has a burden of production or persuasion.

We affirm the circuit court’s imposition of a sentence of life without parole.

In 1999, when he was 16, petitioner and another juvenile escaped from juvenile detention by brutally murdering the owner of the farm on which they were working and stealing the man’s truck. The boys drove the truck on a violent crime spree and then led police on a 30-mile high-speed chase, firing shots at pursuing law enforcement vehicles. Petitioner was sentenced to life without parole.

After the decisions in Miller v. Alabama, 567 U.S. 460 (2012), and Aiken, petitioner sought resentencing. The circuit court again sentenced petitioner to life without parole.

We now clarify that in an Aiken resentencing hearing—as with almost any other sentencing proceeding1 —there is no burden of proof or persuasion placed on either party and there is no presumption for or against any sentence. Instead, both the state and the defendant have a mutual burden of production to provide the resentencing court with any evidence and arguments they believe bear on the factors set out in Aiken or that otherwise relate to what should be the appropriate sentence.

The sentence to be imposed is within the discretion of the resentencing court. In exercising this discretion, the resentencing court may give no deference to the prior sen-

tencing court’s decision to impose life without parole. The resentencing court must consider all the evidence and arguments presented at the resentencing hearing and impose an appropriate sentence without any regard to the prior sentencing court’s thought process or decision.

When sentencing courts consider the Aiken factors and all the evidence that relates to those factors, because of children’s diminished culpability and heightened capacity for change, appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. The decision belongs to the resentencing court, and this court will not recognize any presumption nor impose any burden of proof or persuasion. We trust our circuit judges are well-equipped to make the right decision in each case.

Here, the circuit court considered the transcript from and other evidence surrounding the original guilty plea to murder. The court heard extensive testimony from an expert psychologist who interviewed petitioner several times and reviewed thousands of pages of his records. The court also heard testimony from four other witnesses the state and petitioner presented regarding the circumstances of the crime and petitioner’s personal background and history. The court then heard arguments from the attorneys on both sides and analyzed the Aiken factors in light of those arguments.

Aiken requires that juveniles “receive an individualized hearing where the mitigating hallmark features of youth are fully explored” before being sentenced to life without parole. Here, the resentencing court gave petitioner just such an individualized hearing and soundly exercised its sentencing discretion without placing any burden of proof or persuasion on petitioner nor giv-

ing any deference to the previously imposed sentence.

Affirmed.

State v. Smart (Lawyers Weekly No. 010-034-23, 7 pp.) (John Few, J.) Appealed from Clarendon County Circuit Court (Craig Brown, J.) On writ of certiorari to the Court of Appeals. Joanna Katherine Delany for petitioner; Alan McCrory Wilson, Jeffrey Young, Donald Zelenka, Melody Jane Brown and Ernest Adolphus Finney for respondent. South Carolina Supreme Court

Criminal Practice

Murder – Facebook Screenshot –Impeachment – Collateral Matter

At defendant’s trial for the murder of his wife, defendant’s father testified that he knew his son well. The state impeached the father with a screenshot of defendant’s Facebook profile picture and its accompanying caption: “I know who I am. I’m a dude, playing a dude, disguised as another dude.” The admission of this evidence was error. A witness may not be impeached by extrinsic evidence of a collateral matter.

Nevertheless, given the substantial evidence of defendant’s guilt, there is no good-faith argument that the admission of the Facebook caption affected the outcome of the trial. The error in admitting the caption was harmless.

We modify the Court of Appeals’ opinion, which upheld defendant’s murder conviction, and affirm.

State v. Passio (Lawyers Weekly No. 010-035-23, 4 pp.) (John Kittredge, J.) Appealed from Jasper County Superior Court (Carmen Mullen, J.) On writ of certiorari to the Court of Appeals. Elizabeth Anne Franklin-Best for petitioner; Alan McCrory Wilson, Donald

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OPINIONS

Continued From Page 15

Zelenka, Melody Jane Brown, William Joseph Maye and Isaac McDuffie Stone for respondent. South Carolina Supreme Court

Criminal Practice

PCR – Pro Se Defendant – Pretrial Counsel

Because petitioner began representing himself the morning trial began, there is a genuine issue of material fact as to whether petitioner had an opportunity to correct pretrial counsel’s alleged errors.

We reverse the post-conviction relief court’s order in part and remand for a hearing on petitioner’s claims that pre-

COURTS

JURORS

Continued From Page 11

The U.S. Supreme Court “ha[s] never invoked the fair-cross-section principle to invalidate the use of either for-cause or peremptory challenges to prospective jurors, or to require petit juries, as opposed to jury panels or venires, to reflect the composition of the community at large,” Quattlebaum noted, citing the 1986 holding in Lockhart v. McCree.

He added that “Lockhart explained that ‘any … group defined solely in terms of shared attitudes that render members of the group unable to serve as jurors in a particular case, may be excluded from jury service without contravening any of the basic objectives of the fair-cross-section requirement.”

And, looking to 1990’s Holland v. Illinois, Quattlebaum said the Supreme Court rebuffed an attempt to extend “the faircross-section requirement from the venire to the petit jury.”

In the instant case, the District Court’s use of voter registration lists to choose a

trial counsel failed to adequately investigate the criminal charge, failed to communicate with material witnesses whose testimony would have allegedly been favorable to the defense, failed to advise him of the right to appeal, failed to provide the necessary information for filing a notice of appeal, and failed to file a notice of appeal on his behalf.

Two of petitioner’s claims—pretrial counsel’s alleged failure to adequately investigate the criminal charge and failure to communicate with material witnesses whose testimony would have been favorable to the defense—require us to determine whether a pro se defendant may allege ineffective assistance of pretrial counsel. Citing Cook v. Ryan, 688 F.3d 598 (9th Cir. 2012), the PCR court summarily dismissed these claims. The PCR court found petitioner

“assumed responsibility for correcting any pretrial errors when he elected to represent himself.” We disagree. The defendant in Cook began representing himself two weeks before trial, while petitioner began representing himself the morning trial began.

We have never adopted a bright-line rule forbidding pro se defendants from alleging ineffective assistance of pretrial counsel, and we decline to do so today.

Lewis v. State (Lawyers Weekly No. 010-032-23, 5 pp.) (George James, J.) On writ of certiorari to Florence County (Craig Brown, Post-Conviction Relief Judge) Kathrine Haggard Hudgins for petitioner; Alan McCrory Wilson, Megan Harrigan Jameson and Danielle Dixon for respondent. South Carolina Supreme Court

venire has been expressly approved by the Fourth Circuit, the judge wrote. The master jury wheel included the unvaccinated individuals, as did the qualified jury wheel and the list of prospective jurors used to assemble the jury venire.

Qauttlebaum acknowledged that the lower court’s “categorical strikes” of jurors who hadn’t been vaccinated took place in a fairly unusual manner.

“In order to limit the number of individuals in the courtroom, the district court struck the jurors at a pre-trial conference after the venire was assembled but before the clerk of court assembled panels from which the parties conducted voir dire,” Quattlebaum wrote. “That, however, does not mean the ‘limited scope’ of the faircross-section requirement applies to the use of strikes for cause based on vaccination status.”

Again, citing Lockhart, the judge said the “fair-cross-section requirement applies only where groups are excluded ‘for reasons completely unrelated to the ability of members of the group to serve as

jurors in a particular case.”

The jurors in Lockhart were excluded based on their view of the death penalty, rather than “immutable characteristics” — such as race, gender or ethnic background — and historically disadvantaged groups weren’t deprived of their right to serve.

The same was true here, Quattlebaum wrote.

“While the district court’s strikes of unvaccinated jurors were based on COVID-19 safety risks rather than strongly held views about the subject matter of the case, those safety reasons related to the potential jurors’ ability to serve in this particular case,” he explained. “More specifically, the court felt that seating unvaccinated jurors in the midst of a global pandemic unnecessarily jeopardized the safety of the parties, the witnesses, the jurors and court personnel.”

Because the for-cause strikes affected the petit jury, not the venire, the Fourth Circuit held that the Sixth Amendment’s fair-cross-section requirement didn’t apply. ◆

ANDREW L. ABRAMS

DEAN EMERITUS AND PROFESSOR OF LAW CHARLESTON SCHOOL OF LAW

Andy Abrams’ renowned legal acumen may be surpassed only by his baking skills — at least in a pandemic pinch.

Abrams drew considerable culinary praise for the brownies he made for hungry students during the COVID-19 pandemic. From banana rum to butterscotch walnut, his inventive concoctions were a comforting mainstay during a stressful time.

Abrams, who followed his father into the law, served as legal coun sel and a teacher at the College of Charleston, working his way into a role as general counsel before he was recruited by the Charleston School of Law in 2005, its second year in operation. He became dean in 2008.

Over the years, he fostered the school’s student-first culture and giving-back mantra, creating a center for learning where the doors were always open and where the classroom experience was prioritized.

During commencement, he was known for telling the graduates to stand, turn around and thank their parents, spouses, children and friends, who bore the law school journey along with them.

VERNON F. DUNBAR ATTORNEY MCANGUS GOUDELOCK & COURIE GREENVILLE

Vernon Dunbar has fond memories of hunting and fishing with his grandfather near Beech Island, though he notes the name of the island is something of a misnomer.

“Beech Island is neither a beach nor an island. But it is the home of the late James Brown,” Dunbar said.

Dunbar’s practice focuses on insurance and workers’ compensation defense. He is also a seasoned mediator.

“Careful preparation and treating others with respect are the hallmarks of a successful career,” he said. “Pay attention to the finest details of your case, and never let revenge and anger control your actions.”

In high school, Dunbar learned life lessons as a student school bus driver.

“I learned that when we are entrusted with the lives of others, their health and safety must be the only objective,” he said. “As an attorney, husband and father, I must always perform to the best of my ability to meet the needs and expectations of my clients and family.”

MARK D. BALL

Over his 30-year career as an attorney, Mark Ball has handled several thousand personal injury and defective product cases involving everything from heavy trucks, buses and cars to consumer prod-

Ball is a partner at the Parker Law Group in Hampton. Many of his cases have been successfully tried to verdict, resulting in several

In addition to practicing law, Ball is known for his dedication to giving back to his community in Hampton and Colleton counties and across South Carolina.

He was instrumental in forming several community organizations and has served on many of their boards, including the Hampton County Special Needs and Disabilities Board, Friends of Hospice, The Hampton County Literacy Council, United Way, South Carolina Small Business Chamber of Commerce, and other community initiatives.

Ball also is the past president of the South Carolina Association for Justice.

JOHN P. “JOHNNY” LINTON SPECIAL COUNSEL DUFFY & YOUNG CHARLESTON

A term as a page in the South Carolina Senate during high school fueled Johnny Linton’s fascination for the law. He followed his father into the profession and never looked back.

Linton has been a trial lawyer for nearly five decades, first at Haynsworth Sinkler & Boyd and now as special counsel at Duffy & Young. He has the distinction of arguing an original jurisdiction case before the U.S. Supreme Court.

He has enjoyed working with several high-profile entrepreneurs who have gone on to develop national brands.

“I’ve experienced a sense of accomplishment in handling litigation, but I’ve found it most rewarding to represent start-ups, and observe how successful individuals have handled risk,” he said.

Community service has also been a hallmark of Linton’s career. He is a fellow of the American College of Trial lawyers and a recipient of the Order of Palmetto for his contributions to the profession and the state.

JULIUS W. “JAY” MCKAY II PARTNER THE MCKAY FIRM COLUMBIA

A third-generation attorney, Jay McKay practices at the law firm his grandfather founded in Columbia over 100 years ago.

“Growing up, I remember coming to the office and watching my father, grandfather and uncle working as attorneys,” he said. “Hard work and dedication were instilled in me at an early age.”

Someday, McKay hopes to leave his own legacy as an attorney who took care of his family’s law business and cared about his clients and the team at The McKay Firm.

“I believe my most valuable legacy would be knowing I was able to mentor young lawyers and encourage them not only in our profession but also as business and community leaders,” he said.

A trial lawyer, McKay leads his firm’s health care litigation team. Over the years, his career taught him to put his clients first.

“Remember that if you put your clients’ needs above all else and they feel like you served as their voice and their advocate, then win or lose, you will still come out on top,” he said.

ELIZABETH SCOTT MOISE PARTNER, NELSON MULLINS CHARLESTON

Elizabeth Moise’s somewhat unlikely success story tells of a pro bono case involving a young man sentenced to life without parole under the three-strikes law for selling small amounts of drugs.

“My client didn’t understand that by turning down a plea offer and going to trial he would go to prison for life if found guilty,” she said.

With help from an associate and two partners, Moise navigated two post-conviction relief proceedings and an appeal, before convincing the court to reverse the sentence and give her client a new trial. He was released after serving 12 years and now leads a productive life.

Moise deals in insurance, products liability and appellate law. But it was her first job as a waitress that taught her to be organized, work under pressure and communicate with people from all walks of life — and make pancakes when the cooks get behind.

“Those are all skills I still need today in my legal practice, except for the pancakes,” she said.

Nominated by former President Donald Trump in 2018, Judge A. Marvin Quattlebaum Jr. fills a seat on U.S. Court of Appeals for the Fourth Circuit previously held by Judge William Byrd Traxler Jr.

Before taking his seat on the bench, Quattlebaum spent most of his career at Nelson Mullins Riley & Scarborough in Greenville for nearly 30 years where he defended product liability lawsuits, focusing on tire manufacturers.

He has also served terms as the South Carolina lottery commissioner and on former Gov. Mark Sanford’s task force on Government Restructuring and Campaign Finance Reform.

He is a past chairman of the South Carolina Bar Association and still serves on the House of Delegates. He is also past chairman of the Greenville YMCA Board and is a fellow of the American College of Trial Lawyers.

Before his appointment to the U.S. Court of Appeals, Quattlebaum served as the U.S. district judge of the United States District Court for South Carolina.

By the age of 14, Cheryl Shoun already knew she wanted to be a lawyer.

Growing up in West Virginia, Shoun attended public school and early on displayed the work ethic and determination that would even tually lead her to an accomplished legal career.

A litigator and shareholder in the Charleston office of Maynard Nexsen, Shoun defends corporations in a variety of matters. She prides herself in giving every case she handles her best effort and to never leave a stone unturned.

Active in the Federal Bar Association, Shoun is president of the South Carolina Chapter. She is also on the South Carolina Bar Association House of Delegates, a past president of the Charleston County Bar Association, and a fellow of the Litigation Counsel of America.

Shoun has three daughters, one of whom is a graduate of the University of South Carolina School of Law, and two who work with Kaleidoscope, the Charleston County School District after-school and summer program.

FLORA L. VINSON

ADMINISTRATIVE LAW JUDGE COLUMBIA

Judge Flora Vinson serves as an administrative law judge at the Office of Disability Adjudication and Review in Columbia.

Vinson graduated from the College of Charleston and was a 1985 graduate of the University of South Carolina School of Law. She previously worked as an associate at Folkens Law Firm.

Active in the South Carolina Women Lawyers Association, Vinson is also a past president of the South Carolina Bar Association.

FRED W. SUGGS JR. OF COUNSEL OGLETREE DEAKINS GREENVILLE

Fred Suggs likes to joke that he does most of his heavy lifting on his farm near Greenville, a job he considers a labor of love.

“I come to the office a few days each week to rest,” he said.

That office would be at Ogletree Deakins, where he was a founding member and currently serves as of counsel. In high school, Suggs cultivated his love of the law when he served as speaker of the House in a YMCA Youth Legislators pro -

“We had lawyers as mentors, and that’s when I set my sights on being a lawyer,” he said.

He went on to enjoy a distinguished career as a labor and employment lawyer, and today advises aspiring attorneys to be sure they are passionate about the profession and to stay the course.

“If you do have the desire to practice law, do not let unexpected events deter you from that goal,” he said. “That is to say, find a way.”

TAYLOR GILLIAM PRO BONO DIRECTOR UNIVERSITY OF SOUTH CAROLINA SCHOOL OF LAW COLUMBIA

Early in Taylor Gilliam’s career, he reveled in being an appellate defender with the South Carolina Commission on Indigent Defense. He participated in 20 oral arguments in the state’s appellate courts and helped convince the judges to reverse some of his clients’ convictions.

“I enjoyed performing legal research, diving into a case, and standing before the court, arguing on behalf of clients who didn’t have anyone else in their corner,” he said. “In my new venture, my goal is to instill in like-minded young professionals the same ideals.”

Gilliam’s legal interests caught fire when he was an undergraduate student at the Citadel.

Along with many of his classmates, he was written up for neglecting to sign out online before leaving campus. After doing some research, he discovered the regulations had not been updated to require students to do so.

“As a result, we were all released from our punishments, and I have been chasing that high ever since,” he said.

CONGRATULATIONS TO ALL OF OUR 2023 ICONS & PHENOMS

After months of planning, Chase Keibler finally summoned the courage to open his own Lexington practice in 2022. It was daunt ing.

“The day I handed in my resignation to my former law firm, I learned my wife and I were expecting baby number two,” he said.

It has worked out well for Keibler. Owning his practice gives him more time to spend with that young family.

Keibler Law Group is a personal injury practice that operates remotely and relies on technologies to serve its Carolina clientele.

Years ago, Keibler received a bit of advice he relies on today, and that is to embrace discomfort and suffering, and do the hard things first. He keeps these reminders on notes stuck to his computer.

“Whether it is an uncomfortable conversation, reviewing detailed expert reports, or getting the first draft on paper, I find it best to do that hard thing first and schedule my day around it,” he said.

JEANMARIE TANKERSLEY ATTORNEY CLAWSON & STAUBES GREENVILLE

Growing up in Greenville, Jeanmarie Tankersley watched her grandfather serve the community as a local lawyer and was inspired to follow in his footsteps. Today she practices civil litigation at Clawson & Staubes in Greenville.

“Trying my first case was really when I started feeling like a litigator,” she said. “Every time I try another case, I feel more accomplished and confident in my legal practice.”

Tankersley continues to draw from a piece of advice early in her career to simply be herself in the courtroom.

“The jury can tell if you’re being inauthentic, and you come across poorly. Knowing I don’t have to be like all the great trial lawyers of the past and instead just be myself has helped me in every trial I have been a part of.”

When Tankersley’s not involved in a trial, she enjoys working with organizations focused on community service.

“The South Carolina Bar provides countless services for people around our state and relies on attorneys to carry out those services,” she said.

LA’JESSICA STRINGFELLOW ASSOCIATE ROBINSON GRAY COLUMBIA

Still early in her career, La’Jessica Stringfellow’s leadership positions attest to a legal acumen beyond her years.

Stringfellow is education subcommittee chair of the Diversity Committee; co-chair of the South Carolina Young Lawyers Division, Protecting Our Youth committee; co-chair of the ABA Section of Litigation Young Advocate Committee; and a member of the South Carolina Access to Justice Commission.

“As a first-generation law student and the first lawyer in my family, my professional journey has been filled with milestones and never-before-accomplished goals,” she said.

She credits her success to the support system she had and the exposure to new places, ideas and cultures while growing up in Chester. Her favorite bits of guidance: Treat others the way you like to be treated, and constantly strive for excellence.

“Both pieces of advice have helped me advance my career and succeed,” she said.

SENIOR ASSOCIATE NELSON MULLINS LEXINGTON

Charles West’s lifelong interest in history led him to practice law. He was drawn to his profession after discovering that the figures he admired most were lawyers.

He especially revered the ones who practiced during the civil rights movement, including Charles Hamilton Houston, Thurgood Marshall and Constance Baker Motley.

A mentor once inspired West to embrace change and to be a change leader.

“In college, my mentor asked me ‘how often does something have to happen to you before it occurs to you?’” he said. “I am reminded that different forces are constantly at work in my daily life, and it is important that I learn lessons from all my experiences, big and small.”

Today, the former eighth-grade math teacher focuses his practice on pharmaceutical and medical device litigation and product liability, and says someday he would love to successfully represent an incarcerated individual before a parole board and lead a trial team in a high-value case.

CHARLES H. WEST JR.

$8.35 MILLION SETTLEMENT

22-year-old killed after bars served underage driver

Action: Wrongful death and dram shop

Injuries alleged: Death

Amount: $8.35 million

Date: April 26, 2023

Attorneys: Kenneth Berger and Brad Lanford of the Law Office of Kenneth Berger, Myrtle Beach, and David Yarborough and Reynolds Blankenship of Yarborough Applegate, Charleston (for the plaintiff)

On Jan. 15, 2022, Austin Henson was served alcohol at multiple bars in York County. The bar names remain confidential pursuant to the settlement agreement, though it is undisputed that at least one of these bars served Henson despite knowing he was only a teenager at the time.

Throughout the night, Henson consumed more and more alcohol. He and his friends traveled to multiple

CONFIDENTIAL SETTLEMENT

bars before making their way to the 99 Island Dam. The group then decided to drive to a nearby lookout as snow began to fall. Riding next to Henson was a friend, Tristen Hewitt, 22.

Henson was intoxicated and traveling too fast for conditions along Cherokee Falls Road when his vehicle approached a bend. He lost control, and the vehicle went off the right side of the road and struck a tree. Hewitt was severely injured.

Rushed to a local hospital, he was placed on life support. He died later with his mother, Angelisa Sullivan, holding his hand.

Henson was charged with felony DUI. His toxicology report showed a blood alcohol level of 0.11, and testing revealed cocaine, benzoylecgo -

nine and THC in his blood.

A civil action was subsequently filed against Henson and the bars that allegedly served him. The lawsuit was properly served upon all defendants. The defendant bars then provided their insurance broker with copies of the lawsuit well within the time an answer was due. The insurance broker nonetheless failed to forward copies of the lawsuit to the respective liquor liability carriers, resulting in an entry of default against the bars.

The combination of dram shop liability and broker negligence posed an extraordinary risk for the bars and the insurance agency. Through a series of complex negotiations, all claims were eventually settled for $8.35 million. ◆

$20M project stalled by insurer’s refusal to pay after fire

Action: Bad faith refusal to pay insurance

Injuries alleged: Destruction of $20 million project for the failure to pay insurance proceeds needed to allow the project to proceed

Case name: Withheld

Court/case no.: U.S. District Court, Charleston Division

Mediator: Tom Wills

Amount: Withheld

Date: May 16, 2023

Attorney: Jamie A. Khan of McCullough Khan Appel, Charleston (for the plaintiff)

Metanoia, a nonprofit organization incorporated for the purpose of building leaders, establishing quality housing and generating economic development in North Charleston, was about to start on a $20 million-plus project transforming the Old Chicora Elementary School into a community asset in partnership with the

city of North Charleston.

The plan was to turn the former school into a multiuse facility encompassing a performance arts center, an early childhood education center, affordable artists studios and an educational space for the community.

A large fire broke out in the school in February 2019 just before the redevelopment project began, destroying the historic theater and damaging a large part of the school.

Metanoia had builder’s risk insurance coverage on the building before the fire with a limit of $21.4 million in coverage. The builder’s risk insurer refused to fully cover the loss despite adequate coverage being in place for the loss.

The project, which was to cost more than $20 million, fell apart and sat idle for

years because the insurer would not pay the claim and a large financial gap was created by the failure of the carrier to pay for the damage and destruction to the school.

Metanoia and the city of North Charleston sued in federal court in 2020, alleging breach of contract and bad faith refusal to pay benefits under the policy. There were multiple legal and factual issues in the case, including the issue of insurable interest as it related to Metanoia and the city.

After years of litigation, many depositions, expert witnesses, strategic motions practice and three mediations, plaintiff’s counsel was able to successfully negotiate a significant confidential settlement for Metanoia in 2023 so the large-scale project could once again move forward for the benefit of the community. ◆

$3 MILLION SETTLEMENT

16-year-old settles over fall from roof, severe injuries

Action: Workers’ compensation

Injuries alleged: Brain injury, incomplete paraplegia, injuries to neck, back, internal organs, arms and legs

Case name: Withheld

Court/case no.: South Carolina Workers’ Compensation Commission

Mediator: Lana Sims

Amount: $3 million

Date: Feb. 6, 2023

Attorneys: David T. Pearlman and Adam P. Greene of Steinberg Law Firm, Charleston and Goose Creek (for the plaintiff)

On March 28, 2022, a 16-year-old Honduran national was working on the roof of a threestory private residence in Myrtle Beach, cleaning up shingles without a harness. He fell more than 30 feet to the cement below. He was rushed to Grand Strand Regional

$3.25 MILLION SETTLEMENT

Hospital, with injuries involving his brain and spinal cord resulting in debilitating injuries requiring lifelong care. He was hospitalized for about three months.

The teenager’s claim was denied by three employers, all of which denied he was their employee. After his hospitalization, he has received no medical treatment or weekly benefits. Fortunately, his aunt and uncle took him into their small mobile home.

The case faced multiple hurdles, including denial by three employers and their insurance companies that the injured worker was an employee, complex questions surrounding his immigration status and the fact he is a minor, his mother and father’s desire to bring him back to Honduras and the tragic death of his uncle who was taking care of him.

The settlement included three insurance

companies, with one providing $1.5 million and the other two companies agreeing to $750,000 each toward the total $3 million settlement.

This complicated case included many depositions, Spanish interpreters and how to best serve and protect the interest of the minor and allow him to return home to be with his family.

The settlement will provide living expenses and medical rehabilitation treatment so he can return to his mother and father in Honduras. The settlement required the establishment of a pooled minor’s trust with the ability to be administered internationally to ensure protection of the settlement proceeds and to allow for disbursement of funds for the young man’s care once he returns to his parents in Honduras. ◆

Injuries caused when unused pipe rolled onto road

Action: Negligence

Injuries alleged: Loss of spleen, spinal injuries

Case name: Larry Beverly Brown v. Tom Brigman Contractors Inc.

Court/case no.: Richland County Court of Common Pleas, No. 2021-CP-40-02112

Jury and/or judge: N/A

Amount: $3.25 million

Date: April 10, 2023

Attorneys: Richard A. Harpootlian and Phillip D. Barber of Richard A. Harpootlian, Columbia (for the plaintiff)

Defendant Tom Brigman Contractors

$1.84 MILLION VERDICT

Inc. had installed pipe on the south side of Congaree Road. A 30-foot-long section of pipe that went unused was stored on the north roadside on Dec. 21, 2020, for later use elsewhere.

The plaintiff alleged the pipe rolled into the road because of Tom Brigman’s negligence in storing the pipe by the road. The plaintiff alleged that Tom Brigman left the pipe by the side of the road for about two weeks on a sloping embankment, without any chocks, staking or bracing to reduce the likelihood of the movement.

The embankment was near railroad tracks running parallel to the road. At the

time, the track ties near the collision site were worn out and scheduled for replacement, causing excessive vibration when trains passed over that section of track.

Based on seismic data collected at the scene, the plaintiff alleged the vibration of passing freight trains slowly dislodged the pipe, and that the passage of a CSX train only seconds before the collision was the final triggering event that moved the pipe into the road.

The defendant argued the pipe was moved by thieves attempting to steal it. Tom Brigman’s carrier paid $3.25 million to settle the plaintiff’s claims. ◆

Failure to disclose turns real estate deal into lawsuit

Action: Real estate transaction — failure to disclose

Case name: 4105 Liberty Hwy LLC v. Redland Properties LLC and Larry S. Hoeben

Court/case no.: Oconee County Court of Common Pleas, No. 2020-CP-37-00303

Jury and/or judge: Judge Thomas L. Hughston, Jr. (jury

verdict)

Amount: $1.84 million

Date: April 28, 2023

Attorneys: Carter R. Massingill and Zachary L. Weaver of Gallivan, White & Boyd, Greenville (for the plaintiff); Larry C. Brandt of Larry C. Brandt, Walhalla and Richard H. McDuff of

Merrell Jahn & McDuff, Seneca (for the defense)

The lawsuit involved the sale of a commercial office park and the alleged failure to disclose a failed and collapsed underground stormwater drainage system and related erosion issues. ◆

New associations

Trey Robinson has joined the Charleston office of Maynard Nexsen. His practice focuses primarily on general corporate and commercial real estate transactions, and he regularly advises and assists his clients in matters including drafting and negotiating supply, distribution, purchase and other commercial agreements and real property easements, covenants and leases, corporate and LLC formation and governance issues, joint ventures and bond issuances.

Austin Ciuffo has joined Spencer Fane’s Greenville office as an associate in the intellectual property practice group. He centers his practice on collaborative client service for inventors, entrepreneurs and businesses in patent litigation throughout the U.S., and he litigates infringement cases in a wide variety of technologies.

compensation law, Erin R. Conroy has joined Moore, Bradley, Myers in West Columbia.

Law Firms

Smith, Currie & Hancock and Oles Morrison Rinker & Baker, both construction and federal government contract law firms, have announced their combination. The firm will use Smith Currie Oles and Smith Currie , along with corresponding logos, under the auspices of Smith, Currie & Hancock. The firm will now include 76 attorneys across seven offices, including Columbia.

Honors

fessional and serves as the firm’s intellectual property and technology regional service line leader, with over 15 years of legal experience and an electrical engineering degree. Also recommended for prosecution, Jason Smith concentrates his practice in the areas of patent application preparation, prosecution and post-grant proceedings, as well as opinion work and client counseling. IAM recommended Alex Long , a member of the U.S. Patent Bar since 2005, for litigation and prosecution based on his extensive experience in patent, trademark and copyright prosecution as well as counseling and licensing.

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Joining Haynsworth Sinkler Boyd in the Greenville office as a litigation associate is Carson S. Phillips , who focuses his practice on toxic tort litigation and works closely with the firm’s asbestos team.

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Julianne Oehlbeck has joined MRB Group as chief legal officer and general counsel in Charleston. The former vice president of legal and associate general counsel for Chobani, she will shepherd the legal interests of the engineering, architecture and municipal services firm as it continues to grow.

Shumaker partner Peter Silverman has been elected as a Fellow of the College of Commercial Arbitrators. Co-chair of the firm’s retail and consumer business sector, he has more than 40 years of experience in the areas of commercial litigation and general business counsel. Silverman has been an active arbitrator since 1986 and a mediator since 1990 and is a member of the American Arbitration Association Large, Complex Case Arbitration Panel.

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MADD South Carolina presented its 2023 Dram Shop Justice Award to Officer Zach Azari of the Charleston Police Department at its Law Enforcement Recognition Dinner and Training Symposium. Created by Yarborough Applegate partner David Lail , the award honors an officer who has been relentless in his or her commitment to victims of drunken driving by identifying irresponsible establishments that break the law by over-serving alcohol and putting drunken drivers on the roads.

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Practicing in the areas of criminal law, personal injury and workers’

Three Shumaker intellectual property attorneys in the Charlotte and Greenville offices have been recognized as top patent attorneys in the world with their inclusion in Intellectual Asset Management’s (IAM) Patent 1000 attorneys. Patrick Horne , recommended by IAM for prosecution, is a registered patent attorney and certified licensing pro -

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Molly Campolong , an associate with Robinson Gray in the Columbia office, has been elected to the Emerging Leaders Advisory Board of Meritas, an invitation-only alliance of business law firms. At the firm, she splits her practice between commercial transactions and insolvency and creditor’s rights representation. ◆

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US Supreme Court bites back at parody’s use of the First Amendment

“This case is about dog toys and whiskey, two items seldom appearing in the same sentence.”

So began the U.S. Supreme Court’s only trademark decision of the 2022-23 term, Jack Daniel’s Properties Inc. v. VIP Products LLC (June 8, 2023).

Parody, trademarks and the First Amendment also were at issue. In a unanimous decision written by Justice Elena Kagan, the court rejected the use of a First Amendment filter to defeat a trademark claim before getting to the question of the likelihood of confusion, provided that the mark is also source-identifying. The court thus declined an opportunity to make an expansive pro-First Amendment ruling. It instead charted a measured course for applying First Amendment concerns to source-identifying parody trademarks.

VIP made a squeaky, chewable dog toy designed to look like a bottle of Jack Daniel’s whiskey. Rather than the name Jack Daniel’s, it used “Bad Spaniels.” Other writing on the bottle was changed to what the 9th U.S. Circuit Court of Appeals called “humorous message[s],” and it displayed a disclaimer of affiliation with Jack Daniel’s.

Jack Daniel’s sued for federal trademark infringement, asserting ownership of various trademark rights in the name and bottle and a likelihood of confusion, as well as trademark dilution by tarnishment. VIP defended on parody grounds.

After a bench trial, it was found, largely based on survey evidence, that consumers were likely to be confused about the source of the toy. In the first appeal, the 9th Circuit reversed and remanded, adopting and expanding the Rogers v. Grimaldi (875 F.2d 994 (2d Cir. 1989)) First Amendment filter test from the 2nd Circuit.

That test originated from Ginger

Rogers’ lawsuit against the producers of a Federico Fellini film titled “Ginger and Fred” concerning dancers imitating Rogers and Fred Astaire. Under the federal Lanham Act, Rogers objected to the use of her name. The 2nd Circuit articulated a test that the First Amendment mandated rejection of claims like hers if the title of the artistic work had an expressive element “with at least some artistic relevance” and was not “explicitly misleading as to source or content.”

The 9th Circuit remanded for determination of whether the Rogers test was satisfied and found that VIP defeated the dilution claim without addressing the anti-dilution statute’s exclusion for parody and other fair uses. The 9th Circuit decided that VIP’s parody was noncommercial, even if used to sell a product. After the first remand, VIP won, the 9th Circuit affirmed and certiorari was granted.

The Supreme Court rejected the 9th Circuit’s use of the Rogers test and “any threshold First Amendment filter” (per footnote 1 of the decision). The court wrote that the Rogers test has always been a “cabined doctrine” applicable when the defendant is not using its mark as a source-identifier. The test should not be used to insulate a defendant’s source identification from ordinary trademark scrutiny.

Quoting Mattel Inc. v. MCA Records Inc. (296 F.3d 894, 900 (9th Cir. 2002)), the Supreme Court reasoned that “when a challenged trademark use functions as ‘source-identifying,’ trademark rights ‘play well with the First Amendment’: ‘Whatever

First Amendment rights you may have in calling the brew you make in your bathtub “Pepsi”’ are ‘outweighed by the buyer’s interest in not being fooled into buying it.’”

Since the lower court had already determined that VIP’s alleged parody was source-identifying, the Supreme Court reversed and sent the case back down for consideration of whether there was infringement under standard trademark analysis. But this time in that process, the lower court must consider the attempt to ridicule Jack Daniel’s and arguable parody.

The Supreme Court expressly declined to rule whether the Rogers test should be applied in other, non-source source-identifying contexts. Three of the justices — Justices Neil Gorsuch, Clarence Thomas and Amy Coney Barrett — wrote a concurrence, noting that it was not clear that the First Amendment commanded the Rogers test or whether it was even correct.

With respect to dilution, the Supreme Court also dispatched the 9th Circuit’s analysis. The court wrote that the noncommercial use exclusion “cannot include, as the Ninth Circuit thought, every parody or humorous commentary.” That would reverse the direction of the statute and nullify Congress’ limit on the fair-use exclusion for parody, the court reasoned.

How this decision will play out in other cases will likely be explored over the next few decades. But the Supreme Court has made clear for now that in the context of source-identifying parodies, there is no First Amendment filter prior to considering traditional trademark analysis.

David Sar of Brooks, Pierce, McLendon, Humphrey & Leonard’s Greensboro office is an intellectual property lawyer and is a board-certified specialist in trademark law. ◆

NLRB, FTC take aim at non-compete agreements

Following the Federal Trade Commission’s notice of proposed rulemaking seeking to ban non-compete agreements earlier this year, another federal agency has joined the attack on non-competes.

On May 30, Jennifer Abruzzo, the National Labor Relations Board’s general counsel, issued a memo to all NLRB regional directors, officersin-charge and resident officers stating that non-competes in employment agreements and severance agreements violate the National Labor Relations Act except in rare circumstances.

Specifically, Ms. Abruzzo said that such covenants interfere with workers’ rights under Section 7 of the act, which protects employees’ right to self-organize, join labor organizations, bargain collectively and “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Ms. Abruzzo thus concluded that non-competes typically violate Section 8(a)(1) of the act, which makes it an unfair labor practice for an employer to interfere with an employee’s Section 7 rights.

Memo’s (dubious) reasoning

Ms. Abruzzo’s rationale for her determination is similar to the FTC’s: The memo claims (with scant support, we would add) that non-competes “are overbroad,” and can be construed by employees as “deny[ing] them the ability to quit or change jobs by cutting off their access to other employment oppor-

tunities that they are qualified for based on their experience, aptitudes, and preferences as to type and location of work.”

While some non-competes used by employers might be overbroad, Ms. Abruzzo treats it as a foregone conclusion that all non-competes are overbroad — notably without citing to any support for this statement. This determination also ignores state law, which typically requires that a non-compete be no broader than necessary to protect an employer’s legitimate business interests.

Ms. Abruzzo also infers — again, without support — that non-competes chill protected activity because employees who perceive that they cannot seek new employment may be discouraged from threatening to resign en masse (although the memo concedes that there is not a recognized Section 7 right to “concertedly resign from employment”), concertedly seeking to join a competitor and more.

While primarily focused on non-competes, the memo potentially spells trouble for other restrictive covenants as well, including non-solicits. Ms. Abruzzo claims that agreements prohibiting employees from soliciting their former colleagues could run afoul of Section 7 rights, as well. And while the memo does not explicitly mention non-disclosure agreements, query whether the NLRB would scrutinize such agreements as potentially chilling employees’ desires to seek new employ -

ment, too (similar to the FTC’s proposed “de facto” test to determine whether an agreement includes a supposedly unlawful non-compete).

Ms. Abruzzo acknowledges that non-competes may be permissible, if they are “narrowly tailored to special circumstances justifying the infringement on employee rights,” which does not include a covenant whose only purpose is the employer’s “desire to avoid competition.” But again, this ignores that courts have agreed for centuries that competition is permitted — unfair competition is not. While Ms. Abruzzo points to low-wage and “middle-wage” employees with no access to trade secrets being bound by overbroad non-competes, she conspicuously avoids discussing the dozen states that have enacted wage thresholds for non-competes and even non-solicits in some states, and the four state legislatures that have banned non-competes entirely (including most recently Minnesota).

As for the circumstances in which Ms. Abruzzo believes non-competes may be permissible? Like the FTC’s proposal, they are extremely limited. She only mentions restrictions on an individual’s “managerial or ownership interests” in a competing business, and “true independent-contractor relationships” (although she does concede that there may be other circumstances in which a narrowly tailored covenant is “justified by special circumstances,” but notably declines to give examples of such circumstances).

Perrelli

Mertineit

Coleman

In the memo’s final paragraph, Ms. Abruzzo encourages NLRB employees to “seek make-whole relief” for employees who believe they have lost employment opportunities based on their employer’s non-compete, “even absent additional conduct by the employer to enforce the provision” (emphasis added).

Don’t panic; be prepared

While the foregoing sounds alarming, a few words of caution before abandoning the use of non-competes. Ms. Abruzzo’s interpretation of the act is not binding or precedential. Instead, cases seeking “make-whole relief” as urged by the memo will first be brought by regional directors, who issue complaints of unfair labor practices, and are then decided by administrative law judges. An administrative law judge decision comes with a recommended order which can then be appealed to the full NLRB in Washington. If no exceptions are filed to the administrative law judge’s decision, the order becomes the order of the NLRB. But an administrative law judge’s decision is not binding legal precedent in other cases unless it has been adopted by the NLRB on review of exceptions.

Moreover, if adopted by the NLRB, the matter can then be appealed to the D.C. Court of Appeals or the Court of Appeals where the employer does business. In other words, it might be an uphill battle for the NLRB to successfully challenge and invalidate an employer’s use of non-competes.

And that is before you consider that — like the FTC — this is a new tactic without historical support. In the nearly 90 years since the NLRB was created and the act became law, this is the first time that the agency has declared that non-competes violate the act. In fact, prior NLRB cases have held that the conduct of employees acting in concert to become competitors or to under-

mine their employer’s relationship with other employees is not protected by the Act (see, e.g., National Express Corp., d/b/a ATC/Forsythe & Assocs. Inc. , 341 NLRB 501 (2004); Clinton Corn Processing Co. , 194 NLRB 184 (1971), and employers who terminate employees for engaging in such conduct do not violate the act. (See, e.g., Kenai Helicopters , 235 NLRB 931 (1978); Associated Advertising Specialists Inc. , 232 NLRB 50 (1977).)

In fact, the NLRB’s Division of Advice held in 2012 that a confidentiality and non-solicitation agreement (the latter of which, as noted above, is tackled in Ms. Abruzzo’s memo) did not violate the act, and in making this determination, noted that the agreement did not explicitly restrict an employee’s Section 7 rights, was not adopted in response to Section 7 activity, and employees would not reasonably construe the agreement to interfere with Section 7 rights. ( Charles Schwab Corp. , 28-CA-084931 (Sept. 14, 2012) (Adv. Mem.)).

While conceivably there may be some non-competes implemented in order to interfere with Section 7 rights, the vast majority are not, and we suspect the NLRB will face challenges demonstrating such an alleged motive.

Where to go from here?

It remains to be seen if the NLRB will in fact bring cases to invalidate non-competes, and if so, whether it will see any success given past decisions. That said, as always, employ -

ers should take measures to ensure that their agreements are narrowly tailored, compliant with relevant law and only applied to employees that pose a legitimate competitive threat.

In that vein, employers should consider the risk in even asking non-exempt, low-wage or mid-wage employees to execute agreements containing non-competes. Even if employers have no intent of enforcing non-competes against such employees, various state laws already prohibit merely entering into or maintaining non-competes with such employees, and some allow employees to recoup their attorneys’ fees from employers in declaratory judgment suits seeking to invalidate such covenants. Various enforcement agencies appear poised to target the use of such agreements as well, even without employers’ attempts to enforce them through litigation.

Dawn Mertineit is a partner in Seyfarth’s commercial litigation group and a member of the trade secrets, computer fraud and non-competes practice in its Boston office.

Jesse Coleman is a partner in Seyfarth’s commercial litigation group and a member of the trade secrets, computer fraud and non-competes practice in its Houston office.

Katherine Perrelli co-chairs Seyfarth’s national trade secrets, computer fraud & non-competes group and chairs the ABA Committee on Trade Secrets and Interference with Contracts. She is a partner based in Boston. ◆

While some non-competes used by employers might be overbroad, Ms. Abruzzo treats it as a foregone conclusion that all non-competes are overbroad — notably without citing to any support for this statement.

Supreme Court leaves key internet protection untouched

When the U.S. Supreme Court agreed last fall to consider two cases seeking to narrow the scope of the immunity provided to internet companies by Section 230 of the Communications Decency Act (47 U.S.C. § 230), those internet companies — and the lawyers who represent them — were understandably concerned. They breathed a collective sigh of relief in May when the court, in a pair of unanimous decisions, avoided the Section 230 questions and, as a result, might have strengthened the law’s protections.

Since its enactment in 1996, Section 230 has provided robust immunity to internet companies that published content from third parties, an immunity that helped fuel the explosive growth of the internet over the past 27 years. Specifically, Section 230(c)(1), dubbed “the 26 words that created the internet” by author Jeff Kosseff, provides: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

In short, when a website (think Facebook, Twitter, Instagram, YouTube) simply publishes content created by third parties, the website generally cannot be held liable for that user-generated content. Section 230’s immunity allowed internet companies to create websites relying on user-generated content without the fear of crippling tort liability. After all, if Twitter could be held liable for every defamatory tweet someone posted, it would be out of business faster than anyone can type 280 characters.

In recent years, creative lawyers have sought ways to avoid Section 230 and to hold internet companies liable for harm allegedly caused to their clients. Those efforts — for example, product liability claims alleging that the design of the website caused harm — have enjoyed limited success. For the most part, courts

have held that if the crux of the claim relates to user-generated content, it is barred by Section 230 unless the website “materially contributed” in some way to the tortious content.

The two cases considered by the court, Twitter Inc. v. Taamneh and Gonzalez v. Google LLC, involved a new twist arising from tragic facts. In Taamneh, the plaintiffs were family members of a person killed in a 2017 attack by the Islamic State group on a nightclub in Turkey. In Gonzalez, the plaintiffs were family members of a person killed in the 2015 IS group attacks in Paris. In both cases, the plaintiffs sued social media companies under 18 U.S.C. § 2333, which allows U.S. nationals who have been “injured … by reason of an act of international terrorism” to sue in civil court “any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.”

In both cases, the plaintiffs alleged that the social media company defendants had “aided and abetted” the IS group by allowing the terrorist organization to use their platforms to recruit new terrorists and to raise funds. According to the complaints, the social media companies “knew” that the group was using their platforms to recruit and raise funds, but they did not take steps to stop it. The defendants asserted they were protected by Section 230. In Taamneh, the 9th Circuit Court of Appeals rejected that defense; in Gonzalez, the court held that the defendants were immune from suit.

After Section 230 became a political football in the 2020 presidential campaign, the Supreme Court’s decision to

hear these cases raised a concern that the court was looking for an opportunity to narrow the scope of the law’s immunity. Instead, the court in Taamneh focused almost entirely on the text of 18 U.S.C. § 2333, analyzing whether the complaint plausibly alleged that the social media companies had “aided and abetted” the IS group simply by employing “recommendation algorithms” that enable it to connect with the “broader public, fundraise and radicalize new recruits. And, in the process … profit from the advertisements placed on ISIS’ tweets, posts and videos.”

The Supreme Court held plaintiffs could not allege that the defendants “gave such knowing and substantial assistance to the IS group that they culpably participated” in the terrorist attack. Specifically, the court held these social media websites are no different than cellphones, emails or the internet generally — bad actors might use them in the commission of their crimes, but that does not mean the companies “aided and abetted” the bad actors. A “recommendation algorithm” that is simply part of the “infrastructure” of the website and is not directed specifically at the bad actor (e.g., the IS group) does not create liability for the website. In Gonzalez, the court remanded the case back to the 9th Circuit for reconsideration in light of Taamneh.

By focusing on 18 U.S.C. § 2333, the court avoided direct consideration of Section 230. (It is not mentioned at all in the Taamneh opinion.) Nonetheless, the court’s requirement of a “concrete nexus” between the defendants’ alleged “assistance” and the bad acts might help inform lower courts as they consider new attempts to hold internet companies liable for harms allegedly created or facilitated by using their website.

Eric David is a partner at Brooks Pierce. He focuses his practice on business litigation, constitutional litigation, and media and communications law. ◆

David

Paralegal Pro bono work more PoPular than ever

■ BY TERI SAYLOR

If Katie Riddle’s profession is in law, then her heart is in pro bono work. And through volunteering she has charting her career.

Riddle’s pro bono work inspired her

to go to law school, and she recently enrolled at North Carolina Central University Law School.

“My pro bono work is one of the primary reasons why I pursued law school,” she says. “Although there are

more pro-bono opportunities for paralegals than ever before, I believe I can do more substantive work and make more of an impact as an attorney.”

Paralegals volunteered their time and effort at a recent FEMA clinic in Morehead City, N.C. From left: Bonnie Dubier, Dawn LaRue, Johanna Owens, Rachel Royal and Bianca Simmons

PRO BONO

n Continued from Page 29

As a life products paralegal with Lincoln Financial Group in Greensboro, Riddle devotes considerable time to causes she loves, like Legal Aid of North Carolina’s Expunction Project and the N.C. Pro Bono Resource Center’s driver’s license restoration clinics. She has also served as a Guardian ad Litem for nearly three years. An avid dog lover, with two furry family members of her own, she volunteers with Triangle Beagle Rescue.

Two years ago, she began reporting her pro bono hours to N.C. Pro Bono Resource Center, quickly qualifying for its Honor Society’s first class of paralegals. She received the N.C. Bar Associ-

ation’s Pro Bono Paralegal of the Year award in 2022.

“I can’t imagine being in the legal field and not doing any type of pro bono work or serving others,” she said. “Having my knowledge and experience and knowing there are people that need legal support makes me feel obligated to help.”

The Pro Bono Resource Center thrives on legal professionals like Riddle. A program of the Equal Access to Justice Commission, the Center was launched in 2016, under Chief Justice Mark Martin. A key component of the Center is its Pro Bono Honor Society, a way to publicly thank attorneys and

paralegals who donate 50 hours or more annually to pro bono work.

The Honor Society for paralegals launched in 2021 with 11 paralegals listed. Last year, the paralegal pro bono honor society more than doubled in size, with 27. Riddle is on both lists.

The Pro Bono Resource Center’s organizers created the Honor Society in 2017 to harness the power of the private bar in addressing unmet legal needs, said executive director Sylvia Novinsky.

The program curates a myriad of pro bono opportunities and runs signature programs like the Driver’s License Expunction program.

Over the years, the Center has host -

ed other projects and clinics including legal services responses to disasters. Grants and private funding make these programs possible.

It was at a clinic that Novinsky met Rachel Royal, founder of Royal Touch Project Solutions and now the fulltime project and finance manager at the N.C. Equal Access to Justice Commission.

Royal, who has served as pro bono chair of the North Carolina Bar Association Paralegal Division for the last five years, has worked to get paralegals involved in pro bono opportunities, including speaking to paralegal organizations to help them understand the role they can play in pro bono work. At some firms, management takes the lead and provides paralegals with room in their workday to work on pro bono services.

“Many of the pro bono paralegals we had in the Honor Society this year were batch-reported by the law firms,” Novinsky said. Many of them have dedicated pro bono programs with attorneys supervising the paralegals.”

Novinsky adds that the Center’s staff is trying to reach paralegals who are doing volunteer work on their own, possibly with a nonprofit or with a solo practitioner in more remote counties where she believes pro bono legal professionals can make an impact, especially if there is no access to legal clinics or Legal Aid offices.

For paralegals who want to explore pro bono opportunities, Royal recommends they start at their own law firm. The first place for paralegals to start is within their own firm where they can foster a sense of teamwork and grow professionally.

State and local bar associations and paralegal associations often promote pro bono opportunities, and Royal often promotes paralegal service on the NC Bar Association’s Paralegal Division’s blog.

“I would like to see more paralegals feel empowered to approach their firm

management and offer to start a pro bono program,” Royal said. “Even in a small firm, paralegals can be the driving force behind that.”

And anything paralegals can do in their regular jobs, they can do as a pro bono paralegal, she added.

“That might include staying in touch with clients, conducting client interviews, doing fact finding, and anything else that’s within the ethics rules and as long as they are not directly providing advice to a client,” Royal said. “Other tasks might include drafting complaints or doing client intake or screening calls to direct them to the most appropriate attorney or practice group to help them with their problem.”

Recent studies by UNCG in North Carolina and South Carolina reveal a comprehensive need for legal services for low-to-medium income people who don’t have the money to pay for an attorney. The top three areas of need are housing, family law and immigration, where paralegals can play an important role.

“One challenge is training volunteer paralegals in pro bono programs and offering them the appropriate amount of mentoring and supervision they need,” Novinsky said. “I think we’re all attempting to think through the unmet legal needs and the appropriate avenues for lawyers and paralegals to follow.”

For Royal it all goes back to the reason she became a paralegal in the first place. Years ago, she and her husband fostered his niece and nephew and had to go through the process of gaining temporary custody of them wo they could enroll them in school and buy health insurance for them, among other things.

“We didn’t have the money for an attorney, so I had to figure out on my own how to draft a complaint and get it served, but in the end, we had to hire a lawyer to get the kids’ mother served, so I maxxed out a credit card to pay for

it,” she said.

Royal remembers feeling helpless to find a way to take care of the children as she and her husband struggled to get legal custody of them.

“It ended up working out, but it was very difficult and time consuming,” she said. “I don’t want to feel that helpless again and I want to help other people not feel that way.”

She became a paralegal and started participating in pro bono work to help others get through personal crises too.

Today, the Pro Bono Resource Center team factors in paralegal volunteerism when they consider taking on projects, like pro bono clinics that help people regain their driver’s license, a program Riddle enjoys volunteering for.

For now though, Riddle is expecting her first child in August and has a full plate. Still working fulltime, she is taking her classes in the evenings and hopes to have her JD by December 2025.

At her office, she created a public engagement community to foster volunteerism and pro bono service while serving as a resource to get her legal department involved.

And she’s still doing pro bono work, mostly participating in virtual programs.

“I think some people are cautious of getting involved in pro bono work because they fear the time commitment, or they may be inexperienced in some areas of law,” she said. “Many pro bono services can be tailored to meet individual needs, so if you only have three hours a week, you can find projects available for those three hours.”

Despite Riddle’s activities, she has managed to report 30 hours of pro bono work so far this year.

“It’s completely achievable, and I encourage people to not be overwhelmed by the idea of that time commitment,” she said. “Joining the Pro Bono Honor Society can be done, and it’s an accomplishment to be proud of.”

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Family law path has proven rewarding for Clark

Jessica Clark enjoyed her career as a custom picture-framer in Raleigh, but when the company she worked for shut its doors during the recession in 2009, she found herself in search of a job.

They say when a door shuts, another one opens, and for Clark, that door opened into the world of law, and last year she celebrated her 10th anniversary as a paralegal at the Wunsch Law Firm in Harnett County, N.C.

In school, Clark learned the paralegal profession was a good fit for her, and she excelled in her studies.

“I graduated from Central Carolina Community College in December 2011 with an Associate in in Applied Science

degree in paralegal technologies,” she says. “During my time at Central Carolina, I was a member of Phi Theta Kappa, on the Dean’s List, and I received a paralegal scholarship.”

Clark, who is a family law paralegal, started working part time for Chad Wunsch in 2012. It was her first job after earning her degree.

“I was just excited to get my foot in the door,” she says. “I didn’t realize at the time that I would still be working for him, and continuing to do family law work, over a decade later.”

She credits Wunsch with showing her

Q&A: Jessica Clark

Jessica Clark

Q&A: Jessica Clark

the ropes and helping her succeed.

“If it wasn’t for working for such an amazing attorney, I don’t think I would be where I am at in my career today,” she says.

Family law challenges: Just as in any profession, the expectations and needs of clients or employers can be stressful. In the legal profession, these stressors can also come with an emotional aspect to them, especially in family law. I hear the concerns and fears our clients have. When they express tears and emotion, I am on the other end of the phone. It takes a special type of person to be able to last a long time as a family law paralegal. The emotional exhaustion and excessive worrying about your never-ending to-do lists, and those thoughts that can plague you in the middle of the night (“did I pass along that message”, “did my client get her visitation”, “did I file the motion”, “did I call that client back yesterday”) are daunting at times and can lead to burn-

out. It is important to strive for a good work-life balance. Find something you enjoy and just make the time to do it. I found that kickboxing is an exceptional way to alleviate the stress from a day at the office, a weekend away camping, or a nice soak in a hot tub.

Family law rewards: In this profession, the rewards are plentiful, although it can be hard to see that. I have seen delighted families fill their hearts through adoption. I have witnessed parents who have been alienated from their children get the contact and the reunification they deserved, and I have had clients simply say “thank you’. It’s nice to look at Christmas cards over the years and see kids I have never met grow up, or hear back from a client I haven’t spoken to in years, and learning the kids are doing great.

I have learned: I have more patience than I give myself credit for.

Knowledge wish list: I would like to

CAROLINA PARALEGAL NEWS BRIEFS

n Ward and Smith wraps up successful internship season

Ward and Smith has closed out another successful round of staff internships as part of their program begun in 2021 to promote diversity, equity, and inclusion in the legal field.

This season’s class consisted of eight interns who worked with Ward and Smith attorneys and staff on a variety of legal projects, initiatives and events. They are: Victoria Blount, paralegal intern and Emma Schemerhorn, office services assistant intern in Greenville; Ginger Jones, paralegal intern and Catherine Everett, office services assistant intern in New Bern; Tamara Burton, paralegal intern in Raleigh; Jessica Carroll and Wyatt Fields, paralegal interns, and Micaela Washington, office services assistant intern, in Wilmington.

The firm launched the internship program in collaboration with local high schools and

community colleges to provide students with real-world experience in a law firm. The interns work in the firm’s offices across the state.

Ward and Smith has long offered internships for law students, and its newest program focuses on support staff.

"We believe that providing a unique, professional experience to our interns helps to cultivate the next generation of diverse legal professionals," said Michael Christman, Ward and Smith's Director of Human Resources in a news release. "Plus, our local schools are brimming with talent, and we want to make sure those students have the opportunity to reach their full potential."

n Tara Jean Brown installed on NALS Board

Tara Jean Brown, a paralegal with Greene Law Firm in Greenville, S.C., has been named to the board of the National Associa-

have a better understanding of coding and complex excel spreadsheet building. Karen Johnson, a paralegal at my firm, does exceptional work in coding. She is impressive, and we have put it to use in our daily work.

Advice for aspiring paralegals: Patience is the first tool you need. If you don’t have patience, this profession is not for you. Multi-tasking in a high stress and fast paced environment is a must in family law. These are the required skills in most paralegal job posts. Paralegals must be flexible in several ways – rules changes, procedure, and sometimes the way our bosses want things done. You must be open to constructive criticism and understand our clients don’t typically call us because they are happy. Most are stressed, angry, sad, and dealing with the most difficult times in their lives.

Spare time: I enjoy camping and fishing. I am a crafter and enjoy all things creative. ◆

tion for Legal Support Professionals (NALS) as a director. Brown also serves as president of the Legal Staff Professionals of South Carolina.

In her professional role, Brown has over 20 years of experience specializing in domestic law, aestate planning, and tax law at Greene, with a focus on internal revenue law. She is a member of the South Carolina Bar Paralegal Division and has also served as president of Legal Staff Professionals of Greenville, along with various other offices at both the state and local levels.

Brown is currently the chairperson for the Annual Greenville County Probate Court Seminar, open to legal support staff, paralegals and attorneys. Brown was awarded the 2015-2016 Legal Staff Professional of South Carolina Award of Excellence and was a 2016 NALS Award of Excellence Finalist.