South Carolina Lawyers Weekly November 8, 2021

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VOLUME 19 NUMBER 23 ■

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NOVEMBER 8, 2021 ■ $8.50

Former public defender settles suit against exboss for $605K

TIGHT JOB

MARKET PUTS FIRMS IN SCRAMBLE

■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com Nearly six years of legal wrangling between a former Charleston County public defender and his former boss is over, as Beattie Butler, who alleges that he was wrongfully terminated from the 9th Circuit Public Defender’s Office in 2014, has settled his lawsuit against Circuit Public Defender Ashley Pennington for $605,000.

Butler’s complaint included several other actions for defamation, breach of contract, denial of due process, and violations of the Family and Medical Leave Act. Butler, then the office’s chief litigator, accused Pennington of stifling his free speech “countless times” by blocking his attempts to file misconduct grievances against the 9th Circuit Solicitor’s Office or criticizing, publicly or privately, Solicitor Scarlett Wilson.

Eventually, Butler took his concerns of corruption to the South Carolina Association of Criminal Defense Lawyers (SCACDL), which later filed a grievance against Wilson with the Office of Disciplinary Counsel, which was ultimately dismissed.

Butler said that his decision angered Pennington and contributed to a retaliatory termination just as Butler was at his lowest point in his battle with rectal cancer.

“He fired me because I made public his office policy with respect to prosecutorial misconduct, part of which included ordering me to not to report it, or even speak about it to

■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com Like the proverbial rose that grew from the crack in the concrete, the legal industry continues to demonstrate its resilience.

Not long ago, seeds of doubt were planted in the minds of lawyers and aspiring lawyers because a profession often considered prestigious and lucrative developed a reputation as being a barren job market saturated with attorneys.

But backed by evidence of healthy hiring and recruiting practices, many in the industry are saying that the sun is starting to shine again.

Legal recruiting firm Ave Staffing in Raleigh, North Carolina, helps staff South Carolina law firms and fill in-house positions with attorneys in nearly all practice areas.

The firm’s founder, Nikki Green, said that client demands this year are significantly higher than last year’s.

“2021 has been a strong year for a lot of law firms and legal departments, and we will continue to see the rise in 2022, as well,” Green said.

See Job market Page 7 ►

S e e E x- b o s s P a g e 3 ►

S.C. Supreme Court affirms order on coal-fired power plants ■ BY CORREY E. STEPHENSON BridgeTower Media Newswires A pair of energy companies can be reimbursed for certain costs but not for environmental compliance costs associated with North Carolina law nor litigation costs incurred in defense against various lawsuits, the South Carolina Supreme Court has ruled, affirming orders from the Public Service Commission (PSC).

Duke Energy Carolinas and Duke Energy Progress (collectively, Duke) each own one coal-fired

power plant in South Carolina and seven coal-fired power plants in North Carolina, for a total of 16 plants.

In November 2018, the companies filed separate applications for ratemaking with the PSC. In both applications, Duke requested the ability to increase rates so as to compensate for expenditures related to coal ash remediation in North Carolina and South Carolina, litigation expenses related to defending itself in various coal ash lawsuits, carrying costs on certain deferred accounting expenses, and construction costs incurred in pursuing a nuclear project.

The remediation costs were triggered by the Coal Ash Management Act (CAMA), a new law enacted in North Carolina following a pipe failure at Duke’s Dan River facility, resulting in the unpermitted discharge of approximately 27 million gallons of coal ash wastewater and 39,000 tons of coal ash.

CAMA imposed several new requirements on the continued operation of coal-fired power plants in North Carolina, including the closure of all existing coal ash ponds in the state and a prohibition on the S e e Po w e r p l a n t s P a g e 8 ►

INSIDE BAR EXAM

VERDICTS & SETTLEMENTS

VERDICTS & SETTLEMENTS

Applicants up, pass rate down slightly for July 2021 bar exam

Family injured by drunk driver settles suit for $1.125M

Dog bites man story: Jury awards UPS driver $175K

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S O U T H C A R O L I N A L A W Y E R S W E E K LY I N ove m be r 8, 2021

Applicants up, pass rate down slightly for July 2021 bar exam ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com

Charleston announced in February that it had returned to bar exam compliance status with the American Bar Association, as 80 percent of its 2019 graduates who sat for the bar More applicants sat for the July 2021 bar passed it. The school had fallen out of compliexam in South Carolina than sat for last sumance based on the bar passage rate of mer’s administration, and the pass rate the Class of 2017 (it fell short of the dipped slightly, due in large part to outSee minimum standard by just one graduof-state examinees not faring quite as South ate, the school said). well as they did in 2020, the state’s OfCarolina’s The ABA requires that 75 percent of fice of Bar Admissions has reported. newest a school’s graduates pass the bar exam The overall pass rate also decreased within two years of graduating. slightly, as 65.3 percent (261 of 400) lawyers, Only 74 of 113 (65.5 percent) of test-takpassed this year as opposed to 71.7 perPage 6 ers from schools outside of South Carolina cent (276 of 385) last year. passed this year, down from 81.8 percent The University of South Carolina (72 of 88) who passed the bar exam in 2020.

School of Law posted a nearly identical rate as To pass the Uniform Bar Exam in South July 2020, with 81.7 percent (125 of 153) of its Carolina, an examinee must score of 266 or graduates passing. Last year, USC sat 166 testhigher on a 400-point scale. While July exams takers, 137 of whom passed (82.5 percent). feature more first-time test-takers than repeat At Charleston School of Law, 46.3 percent test-takers, the South Carolina Office of Bar (62 of 134) of graduates passed July’s exam, Admissions office does not publicly release the whereas 51.2 percent (17 of 131) passed a year pass percentages for either group. ago.

BAR DISCIPLINE

ROUNDUP Attorney: Michael Justin Mims Location: North Charleston Bar membership: Member since 2007 Disciplinary action: Suspended from the practice of law until further order on Oct. 22 Background: The Office of Disciplinary Counsel asked the Supreme Court to place Mims on interim suspension pursuant to Rule 17(a) of the Rules for Lawyer Disciplinary Enforcement, and the court ordered that Mims’ license to practice law in the state be suspended until further order. It was further ordered that a special receiver be appointed to assume responsibility for his client files and law office accounts to protect the interests of his clients.

Previous discipline: None All information contained in the Bar Discipline Roundup is compiled and edited by Lawyers Weekly editor in chief David Donovan. He can be reached at david.donovan@ sclawyersweekly.com.

LAWYERS IN THE NEWS Dallas C. Meacham has joined Turner Padget as an associate in the firm’s litigation practice group in its Greenville office. Meacham joins the firm’s insurance industry team to assist in handling matters in state and federal venues, at both the trial and appellate levels. Prior to joining Turner Padget, Meacham served as an assistant solicitor for the 13th Circuit.

David Beale has joined Samuels Reynolds Law Firm in Columbia. Beale is an experienced trial attorney who tries cases before juries and the South Carolina Workers’ Compensation

Commission.

Kori McGraw and Dylan Glick have joined Finkel Law Firm as associates in the Charleston and Columbia offices. McGraw will focus her practice on general litigation, default services, foreclosure, and homeowner’s association law. Glick will focus his practice on construction litigation.

Brandon Rattray has joined Robinson Gray in Columbia as an associate, where his practice will focus on workers’ compensation.

Jamie DeMint and Bill Dodson have joined Parham Smith & Archenhold in Greenville. DeMint

and Dodson had both run their own law practices, which will be merged into their new firm. Both attorneys focus their practice on litigation, including medical malpractice, wrongful death, and motor vehicle accidents.

Morgan & Morgan announced that the firm has opened its first South Carolina office, in Hilton Head.

Lauren Carroway, who previously served as the deputy public defender for the state’s 14th Judicial Circuit, has joined the firm to help manage the new office, which will handle personal injury cases, including car crashes and medical malpractice.

NEWS BRIEFS U.S. to pay $88M to families, victims of S.C. church massacre WASHINGTON (AP) — Families of nine victims killed in the racist attack at Mother Emanuel AME Church have reached a settlement with the Justice Department over a faulty background check that allowed Dylann Roof to purchase the gun he used in the 2015 massacre.

The Justice Department will pay $88 million, which includes $63 million for the families of the nine people killed and $25 million for five survivors who were inside the church at the time of the shooting, it was announced on Oct. 28.

Bakari Sellers, an attorney who helped broker the agreement, told The Associated Press the “88” figure was purposeful. It’s a number typically associated with white supremacy and the number of bullets Roof said he had taken with him to the attack.

“We’ve given a big ‘F you’ to white supremacy and racism,” Sellers told the AP. “We’re doing that by building generational wealth in these Black communities, from one of the most horrific race crimes in the country.”

According to the Justice Department, settlements for the families of those killed range from $6 million to $7.5 million per claimant. Survivors’ settlements are $5 million per claimant.

Months before the June 17, 2015 church shooting, Roof was arrested

“All nine of these families have been so strong, and they deserve this closure.

Of course we wanted more, but this is just, and this is justice, and finally, these families can say that they got it.”

Bakari Sellers, an attorney who helped broker the agreement

on Feb. 28 by Columbia police on the drug possession charge. But a series of clerical errors and missteps allowed Roof to buy the handgun he later used in the massacre.

The errors included wrongly listing the sheriff’s office as the arresting agency in the drug case, according to court documents. An examiner with the National Instant Criminal Background Check System found some information on the arrest but needed more to deny the sale, so she sent a fax to a sheriff’s office. The sheriff’s office responded it didn’t have the report, directing her to the Columbia police.

Under the system’s operating procedures, the examiner was directed to a federal listing of law enforcement agencies, but Columbia police did not appear on the list. After trying the separate West Columbia Police Department and being told it was the wrong agency, the examiner did nothing more.

After a three-day waiting period, Roof went back to a West Columbia store to pick up the handgun.

The lawsuit for a time was thrown out, with a judge writing that an examiner followed procedures but also blasting the federal government for what he called its “abysmally poor policy choices” in how it runs the national database for firearm background checks. The suit was subsequently reinstated by a federal appeals court.

“The mass shooting at Mother Emanuel AME Church was a horrific hate crime that caused immeasurable suffering for the families of the victims and the survivors,” Attorney General Merrick Garland said in a statement. “Since the day of the shooting, the Justice Department has sought to bring justice to the community, first by a successful hate crime prosecution and today by settling civil claims.”

In 2017, Roof became the first person in the U.S. sentenced to death for a federal hate crime. Authorities have said Roof opened fire during the Bible study at the church, raining down dozens of bullets on those assembled. He was 21 at the time.

The slain included the Rev. Clementa Pinckney, pastor of the AME Emanuel Church, a state senator, as well as other pillars of the community. They all shared deep devotion to the church, known as Mother Emanuel, and passed that faith along to their families, many of whom offered Roof forgiveness when he appeared in court just days after the attack.

The FBI has acknowledged that Roof’s drug possession arrest should have prevented him from buying a gun.

Speaking with AP in Washington ahead of the news conference, Pinckney’s eldest daughter recalled the night of the shooting and said she was committed to maintaining the legacy of her father, who died when she was 11.

“I’ve done whatever I can to keep his memory alive and to carry on his legacy throughout my life,” Eliana Pinckney, 17, told the AP. “Just to make sure that the memories that I have with him can be shared with other people, so that other people are inspired by the life that he lived, and the life that he would keep living if he was still here.”

The deal, which was reached earlier this month, is still pending a judge’s approval, Sellers said.

“All nine of these families have been so strong, and they deserve this closure,” Sellers said. “Of course we wanted more, but this is just, and this is justice, and finally, these families can say that they got it.”

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Family injured by drunk driver settles suit for $1.125M ■ BY DAVID BAUGHER A Horry County family will receive $1.125 million in insurance settlements after being injured by a drunk driver that the family alleged had been over-served by a local drinking establishment, their attorney reports.

Luke Rankin of Rankin & Rankin in Conway reports that his clients were driving home from an elementary school open house in 2016 when another driver, Katherine Lois Welker, crossed the center line and collided with their vehicle.

The driver, Eric Roberts, sustained knee, back, thumb, chest, hip, and shoulder injuries and Luke Rankin will ultimately require a hip replacement, Rankin said. His sister-in-law, Susan, suffered neck and back troubles from the incident, while her minor child fractured a wrist.

Rankin said that Straight from Philly Pizzeria & Sports Bar in Myrtle Beach had served Welker numerous alcoholic drinks prior to the crash.

Sales slips established Welker’s presence at the bar, and Welker indicated that she’d been drinking at the establishment both at midday and after work.

“She was drunk and, through discovery, we found out where she’d been and brought in the restaurant/bar as a defendant and collected from their coverage,” Rankin said. “She admitted it in

her deposition and in her hospital exchange with nurses and staff.”

Rankin said that Welker was visibly drunk in police dashcam footage taken in the wake of the crash.

Under the terms of the settlement, Straight from Philly’s insurer will pay $797,000, most of it to Eric Rogers.

The plaintiffs also received $278,000 under the terms of their own underinsured motorist policy, with an additional $50,000 coming from Welker’s policy.

Ed Pritchard of Pritchard Law Group, which represented Straight from Philly, said the settlement was not an admission of liability and was reached simply to mitigate the risk of a trial.

“It is an alcohol-related injury,” Pritchard said.

“You never know what a jury is going to do with that. There were two competing stories. You don’t know who the jury is going to believe.”

Pritchard said that staff working for Straight from Philly denied serving Welker any alcohol at all. He said she was apparently there with a group of coworkers, some of whom were drinking, but said that Welker was served only water.

“There was some evidence that she had consumed alcohol in other locations,” Welker said.

Pritchard said that there was also a dispute over the extent of the injuries in the case, particularly the need for surgery on Eric Roberts’s knee.

Edward Love of King & Love in Florence represented Welker. He did not return a request for comment.

SETTLEMENT REPORT – DRAM SHOP/MOTOR VEHICLE CRASH

Amount: $1.125 million Injuries alleged: Knee, back, thumb, chest, hip, and shoulder injuries; neck and back injuries; fractured wrist Case name: Eric Rogers v. Katherine Lois Welker; Straight From Philly Pizzeria & Sports Bar; Auto Owners Insurance Company Court: Horry County Circuit Court Case No.: 2017-CP-26-00335 Mediator: Jim Davis of Lindemann & Davis in Columbia Date settlement: August 2021 Insurance carrier: Sentinel Insurance Company for dram shop defendant, GEICO for driver defendant, and Auto Owners Insurance Company for underinsured motorist insurer Attorney for plaintiff: Luke Rankin of Rankin & Rankin in Conway Attorneys for defendants: Ed Pritchard of Pritchard Law Group in Charleston for dram shop defendant and Edward Love of King & Love in Florence for driver defendant The settlement was finalized in August. Jim Davis of Lindemann & Davis in Columbia served as mediator.

Dog bites man story: Jury awards UPS driver $175K ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com Dogs chasing after beleaguered mail carriers may be a comedy cliché, but it remains a very real job hazard for couriers—the U.S. Postal Service alone sees thousands of workers attacked by dogs each year.

So, an unprovoked and severe dog bite inflicted upon a UPS driver in Mount Pleasant was certainly no laughing matter. The incident came back to bite the dog’s owners, as a Charleston County jury recently awarded $175,000 to the courier.

Catie Meehan and Michael J. Jordan of Steinberg Law Firm in Charleston and Goose Creek, respectively, represented Robert Shannon, who was bitten in the face by a 75-pound Labrador mix as he delivered a package to defendant Tara Inabinett.

According to the complaint, Inabinett was gardening in her front yard when Shannon greeted her and handed her the package.

Shannon, a self-proclaimed dog lover, alleged that the dog was sitting on the front porch when it suddenly attacked him.

The injury required 18 stitches across Shannon’s jawline and reconstructive surgery, and Shannon’s injuries cost him $20,000 in medical bills and approximately $5,000 in wages, his attorneys said.

Meehan said that the dog had no history of aggression and just “snapped.” She also said that its vaccinations weren’t current, which caused Shan-

non additional anxiety for the 14 days the dog was quarantined.

The defendants’ attorneys, Julie Craig and Joseph Weston of Mount Pleasant, did not return a request for comment. But Meehan said that the defendants disputed the extent of Shannon’s damages. The defendants’ homeowner’s insurance carrier made a pretrial offer Catie Meehan of just $50,000, less than half of the policy’s limits, and rejected an offer of judgment.

Meehan said that after the twoday trial that concluded on Sept.

14, the jury got it right. After assessing prejudgment interest of nearly $25,000, the judgment was nearly twice the available coverage.

“Our client sustained a dog bite Michael J. to the face through no fault of his Jordan own while performing his job duties,” Meehan said. “He has to live with a constant reminder of the dog bite—permanent scarring to his face. We are glad that the jury recognized the permanent nature of our client’s injury and compensated him fairly.”

Because of the scarring, Shannon postponed his wedding, which was set for a month after the attack.

Shannon testified that his wife would not have been

VERDICT REPORT — PERSONAL INJURY

Amount: $175,000 Injuries alleged: Permanent disfigurement of face requiring two surgeries, lost wages, anxiety Case name: Robert Shannon v. Nick Inabinett and Tara Inabinett Court: Charleston County Circuit Court Case No.: 2018-CP-10-1051 Judge: Kristi Curtis Date of verdict: Sept. 14 Highest offer: $50,000 Most helpful experts: Dr. Thomas Hahm of Carolina Aesthetic Plastic Surgery Institute in Mount Pleasant Insurance carrier: Allstate Attorneys for plaintiff: Catie Meehan and Michael J. Jordan of Steinberg Law Firm in Charleston and Goose Creek, respectively Attorneys for defendants: Julie Craig and Joseph Weston of Mount Pleasant pleased with the photographs, Meehan said.

“He’s one of the nicest guys I’ve ever met,” Meehan said. “He’s personable and friendly … this is just an unfortunate situation.”

EX-BOSS / Defender accused solicitor’s office of misconduct C o nt inu e d f r o m 1 ►

others,” Butler told Lawyers Weekly.

In his answer to the complaint, Pennington contended that Butler was fired because his behavior and personal issues with the solicitor’s office had become “disruptive” to the public defender’s office and its efficiency.

Caroline Cleveland and Bob Conley of Cleveland & Conley in Charleston and Nancy Bloodgood and Lucy Sanders of Mount Pleasant represented Pennington. A message left with Cleveland & Conley wasn’t

immediately returned, but in a 2015 email to Lawyers Weekly, Pennington wrote that he has never tried to quash grievances about prosecutorial misconduct and that Butler sensationalized his complaints.

Butler asserted not only a constitutional right to speak about Wilson, a publicly elected official, but an obligation as an attorney to report alleged deception and evidentiary manipulation in criminal cases.

In fact, Butler self-reported to the ODC, fearing that his silence may have breached his ethical duties.

Prior bad acts

Butler alleges that in 2007, attorneys from the solicitor’s office began a pattern of misconduct against public defender clients that continued for several years.

For example, Butler said that an assistant solicitor in a 2007 murder trial introduced a purported eyewitness’s statement that they knew had been recanted, then tried to conceal the retraction.

The failure to disclose exculpatory evidence ultimately led to a mistrial, Butler said. The complaint alleged that Pennington told Butler to keep

the grievance to himself lest Wilson’s office retaliate against public defender clients.

In 2012, the South Carolina Supreme Court struck down the state’s system of allowing prosecutors to control the criminal docket and exclusively determine how criminal cases are disposed of.

Butler alleged that Pennington and Wilson looked to circumvent that ruling by drafting a variance allowing Wilson to control all criminal cases for 30 months after a defenSee Page 5 ►

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S O U T H C A R O L I N A L A W Y E R S W E E K LY I N ove m be r 8, 2021

Clients are like any consumer: they want to feel appreciated ■ BY CHRISTOPHER F. EARLEY BridgeTower Media Newswires

“I’ve learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel.”

— Maya Angelou

The number one reason lawyers receive ethical complaints is for not communicating with their clients. But while regular and consistent communication may avoid ethical problems, more is needed in order to truly “wow” clients.

One of the core values of my firm is to provide clients with the very best client service we can possibly provide.

To me, this is of absolute critical importance. We approach this through a variety of ways that focus on one singular objective: consistently showing clients they are valued and appreciated.

The very start of the representation is a great time to impress the client and set the tone (and eliminate any type of “buyer’s regret”). Each new client receives a telephone call welcoming them, as well as a welcome card in the mail.

The team member assigned then will call the client every three weeks.

The call must be documented in our case management software. If it is not documented, the call never happened.

Even if we have nothing new to report, we still call clients every three weeks. Clients appreciate this, and moreover, it substantially reduces the likelihood that a client would ever complain that we are not communicating enough.

But calling is not enough. When the clients are called, they need to be asked how they are and shown genuine empathy. They need to be asked about their family. Truly listening to the clients and what they are saying is really important.

If we learn the client has had a big life event (birth of a child, job promotion, graduation, etc.) we send a handwritten card congratulating the client. If there has been a death in our client’s family, we send a handwritten sympathy card. We want our clients to know we listen to them and care about them, and this in turn creates a strong and meaningful emotional connection.

We further contact clients through regular, automated drip emails that are intended to enter the conversa-

tion going on in the client’s head and proactively answer the questions the client may be thinking about. This is an automated process that requires no physical work on our part and provides another channel of communication with clients.

We conclude the case with a thankyou card to the client. Then, we call the client each year on his or her birthday, and also send out a birthday card each year. If the client refers a client to us, we immediately send the client a handwritten thank-you card showing our appreciation for the referral.

Most clients are easy and don’t expect very much. But still, go above and beyond for them anyway. If you do that, they will love you and will always remember the way you made them feel.

At the end of the day, the practice of law is a business like any other business involving consumers paying for a service. Consumers want and need to feel valued and appreciated, so give them that. Everything else to them is secondary.

Christopher F. Earley is a Boston attorney and author who concentrates his practice on the representation of the seriously injured and their families.

"Helping lawyers practice better, more efficiently, and more profitably."

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What exactly is emotional intelligence?

Well, it’s complicated.

■ BY KAREN NATZEL BridgeTower Media Newswires We often equate emotional intelligence (EQ) with empathy—the ability to be aware of, understand, be sensitive to, and vicariously experience the feelings, thoughts and experiences of another. While truly a demonstration of high EQ, and a powerful way to connect and build relationship, simply “turning on” one’s empathy won’t attain the full depth and value of one’s emotional repertoire. First, empathy is more complex than that, and second, strength in EQ requires deep, personal work. To raise EQ, one must start with self-awareness.

Daniel Goleman, a thought leader of emotional intelligence, provides a good framework for understanding what it is and why it is so compelling, speaking to both personal and social competencies.

Personal competency

Starting with an inward look, personal EQ is being able to name your emotions (preferably as you are experiencing them), understanding their triggers, choosing a healthy and appropriate way to respond, making an honest assessment of your strengths and areas for growth, and understanding what motivates you.

Knowing what motivates you can help you create the necessary circumstances to thrive. Goleman speaks to how motivation taps into one’s achievement drive, commitment, initiative-taking readiness, and optimism to persist. Collectively, this affords us a stronger sense of self-worth and efficacy. High EQ is also a necessity for healthy stress management

and personal accountability.

EQ can help you identify when your emotional tank is running low— i.e., tired, stressed, anxious, in a funk, or languishing. Naming these emotional states is the first step in making a conscious choice in how you manage your work, your energy and your relationships.

Social competency

This is where the complexity of empathy comes in. When integrated into how you show up, empathy helps you understand, support and develop others. It can program one’s thinking into an anticipatory, service-oriented mindset—expanding the ability to be inclusive and raising awareness of the emotional currents and dynamics in groups (i.e., the ability to read a room).

Research speaks to two kinds of empathy: affective—sensations and feelings we get in response to others’ emotions—and cognitive (“perspective-taking”)—identifying and understanding people’s emotions. With affective empathy you are mirroring the emotions of others in such a way that you experience an identical resonance. That means you actually feel what the other person is feeling – often absorbing someone’s delight, enthusiasm, hopes, stress, anxiety, and fear. In this way, emotions can be contagious.

Beneficial empathy requires boundaries so you don’t become entangled in another person’s emotional state. The invitation is to step into a “witness position”—being fully present to hear the story without judgment of trying to fix it, and simply allowing the person to be seen and

heard in a heartfelt, safe space, without getting consumed by it.

Compassion fatigue, normally reserved for those on the front lines of caring for others who are suffering, has crept into the vernacular of non-health-care professionals. It’s a feeling of running on empty, and it shows up with feelings of anger, dread, exhaustion and hypersensitivity. Boundaries can help us preserve cognitive empathy while fueling our own needs for sustainable care.

Without EQ, we can experience an emotion as “the truth” about something, especially when we have a visceral reaction. A common dynamic at play: we have a difficult emotion and our defenses go up. In that space, we create a story about what is transpiring—making others wrong and protecting ourselves (ego). In a matter of minutes, we have crafted a narrative that we find difficult to surrender. After all, who doesn’t like to be right?

Commonly, when we react with low EQ, we slip into more of a victim head space. We express attitudes and behaviors that are more rigid, we fail to adapt our style, and we have weak relationships, unrealistic goals, an insatiable need for recognition, a preoccupation with appearance, and a relentless, burnout-producing striving mentality.

How many of us have had the experience of blowing up over something minute? Overreacting to a situation?

Feeling frustrated, challenged, and defensive at a meeting? Oftentimes if we are passionate about an issue, uncertain about an outcome, and/or feeling out of control, our emotions See EQ Page 5 ►

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NEWS / 5

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Novem ber 8, 2021

C o nt inu e d f r o m 3 ►

dant’s arrest.

Butler said that Pennington told Wilson in an email that he had not let other circuit defenders in on the plan.

That same year, Butler said, one of his clients spent two years in jail awaiting a murder trial that was “replete with errors and questionable conduct by prosecutors.” Butler contends that despite undisputed evidence that the defendant acted in self-defense, solicitors vigorously opposed a motion for directed verdict that was ultimately granted with the court’s apologies.

Wilson allegedly told media outlets that it was Butler’s fault that his client sat in jail so long because she would’ve dropped the charges if Butler hadn’t withheld exculpatory information to put on a dramatic trial.

Butler also accused Pennington of leaking contents of an SCACDL listserv—posts Butler made confidentially seeking feedback from other defense attorneys regarding the alleged misconduct—to Wilson, who in an email thanked Pennington for the “heads up.”

Sidebar

The news told differently

Reputations at stake

In his defamation claim, Butler alleged that Pennington and the county released to a Charleston reporter a redacted version of his termination letter which contained false and disparaging remarks that Butler said effectively accuse him of malpractice.

Butler said he believes the release was motivated by more than a Freedom of Information Act request and that the letter intended for him was aimed at a bigger audience.

“At his deposition, Pennington couldn’t recall ever having written a termination letter before,” Butler said. “Why now? Without the letter, the public and Solicitor Wilson would not have been able to read what Pennington wrote about me.”

Pennington countersued for defamation, claiming that Butler falsely told several attorneys that Pennington told him not to file a grievance, inferring that Pennington was covering for Wilson. Pennington also claimed that Butler repeated those accusations to Lawyers Weekly, which published them in an article.

Jennifer Munter Stark of Mount Pleasant, Richard Kammen of Indianapolis, and Maren Chaloupka of Scottsbluff, Nebraska represented Butler Media outlets report that neither party admitted fault under the Oct. 6 settlement. Butler told Lawyers Weekly that “the settlement speaks for itself.”

SETTLEMENT REPORT — WRONGFUL TERMINATION

Amount: $605,000 Injuries alleged: Lost wages, mental and emotional anguish, humiliation, loss of enjoyment of life Case name: Butler v. Pennington and Charleston County Court: U.S. District Court for the District of South Carolina Case No.: 2:15-cv-04455 Judge: Bruce Howe Hendricks Date of settlement: Oct. 6 Insurance carrier: South Carolina Insurance Reserve Fund and Chubb North America Attorneys for plaintiff: Jennifer Munter Stark of Mount Pleasant, Richard Kammen of Indianapolis, and Maren Chaloupka of Scottsbluff, Nebraska Attorneys for defendants: Caroline Cleveland and Bob Conley of Cleveland & Conley in Charleston and Nancy Bloodgood and Lucy Sanders of Mount Pleasant

school university DOCTOR’S DEVISE, T E L L M E W H AT Y O U S E E In the internet age, if we can’t quite recall the precise name of something—a school, for instance—we can usually fill in our blanks with a quick and easy search.

If only Google had existed in the 1970s, it might have been a lot of clearer which of two South Carolina medical schools was the intended beneficiary of one doctor’s bequest.

Dr. Geraldine McDaniel Hardy was born in Greenville in 1925. After graduating from what is now Winthrop University, she went to medical school in Michigan and rarely, if ever, returned to her native state. Nevertheless, in 1977 she executed a trust document leaving her estate—which turned out to be significant—to “Medical School, University of South Carolina, Charleston” to establish a chair to deal with the study of the psychiatry of women.

Problematically, there is not now and has never been a “Medical School, University of South Carolina” in Charleston.

Instead, there is a Medical University of South Carolina in Charleston, and a University of South Carolina, which has a School of Medicine and is of course in Columbia. Both schools claimed to be Hardy’s intended beneficiary, requiring a Michigan

judge to try to divine Hardy’s true intent.

The judge ruled in favor of MUSC, and USC appealed.

On Oct. 28 Michigan’s Court of Appeals affirmed that ruling. While the court admitted—and in multiple places in the opinion, amply demonstrated—that it “lacked familiarity with South Carolina,” it agreed with the trial court that it was more likely that Hardy slightly misremembered the name of the school she wished to endow than misstated the city where it was located.

Further illustrating how things have changed, USC’s arguments leaned on the fact that its medical school enrolled its first class the year Hardy executed her trust, and the new school was written about often in local newspapers. But as the court noted, Hardy likely would have encountered little, if any, local news from South Carolina in 1977, and it’s unclear if she even knew that USC’s medical school existed when she made her gift.

Indeed, it’s quite unlikely that Sidebar (or you, perhaps) would have even learned about the whole dispute if not for the internet—he first learned about it through a friend’s helpful email.

D.D.

EQ / How to manage emotions in a more productive manner C o nt inu e d f r o m 4 ►

are more explosive. If we understand the root causes, we can manage emotions in a more honest and productive manner. If we can own the reason we overreacted to an email—perhaps it was not exactly about the subject, but more about our fears of making a mistake or frustrations of not feeling appreciated or respected or (insert real trigger here)—then we can begin the

deeper emotional work that brings mastery and equanimity.

Empathy is also demonstrated in the adeptness of gaining a desirable response in others. This does not mean posturing or manipulating, however. It means doing the deeper work to influence, inspire, communicate, lead, change, strengthen connections, and collaborate. When empathy is used as a tool to simply get what you want, you break the bond of trust.

Simon Sinek explains that effective leadership isn’t so much about taking charge, but rather about “taking care of the people in your charge.”

How will you raise your EQ?

Research indicates that empathy is rooted in our brains and our bodies, making this an evolutionary human journey—and the first step in taking compassionate action—for ourselves and others. Compassion, according to

Merriam-Webster, is a “sympathetic consciousness of (our and) others’ distress together with a desire to alleviate it.” Learning how to be compassionate in an empowering, respectful and caring way is the key to bringing joy to your role and transformation to your workplace.

Karen Natzel is a business therapist who helps leaders create healthy, vibrant and high-performing organizations.

6 / NEWS

S O U T H C A R O L I N A L A W Y E R S W E E K LY I N ove m be r 8, 2021

Introducing South Carolina’s newest lawyers – Fall 2021 South Carolina Lawyers Weekly would like to congratulate each of the bar applicants who passed the July 2021 South Carolina bar exam. The following names were provided by the South Carolina Supreme Court to recognize those who received a scaled score of 266 or higher on the July 2021 Uniform Bar Examination administered in South Carolina.

Brandon Carl Adams Jefferson Boone Aiken IV Tucker Allen Akin Brooke Delaney Alexander Hanna Brooke Alexander Marissa Nicole Alsip Cindy S. Alvear Destini J. N. E. Anderson Virginia Elizabeth Ariail Daniel Quintin Atkinson Caroline Keith Avant Dylan Benjamin Bagnal Christopher Grant Bales Kamri Nichole Barber D. Russell Barlow II James Erickson Bassett Shannon Lee Bastarache Ethan David Beck Avery Anabelle Behrle Brice Alexander Bertschin Stephanie Gillis Besselievre Meyoshia Sharice Bethea Dillon Calhoun Biering Jacob Alan Biltoft Lisa Brennan Bisso Emily Wray Blackshire Austin Heath Blackwell Hiram Matthew Blasko Jack Hurst Bonds Alison Caroline Bonner Madeline Anne Bowers John Perry Bozeman Kyle Lee Brady Liza Jane Branyon James Clowney Brice IV Jalen Dourine Brooks-Knepfle Grace Gardner Brown John Edward Brown Logan Anthony Brown Nathan Adam Bruccoliere Carl T. Brzorad Caroline Kaye Buchanan Allan Trevor Buhr Allison Marie Burns Katherine Victoria Busbee Melissa Oellerich Butler Martin Emerson Cain Paola Ivette Camacho Theresa Lyn Campbell Ethan Lester Carroll Sydney Lauren Case Madison Ashley Chapel Allison Jennette Chetta Kenneth Dalton Clifton Jonathan Ricky Coates Weldon Lucas Coates David Allen Coker

C o nt inu e d f r o m 2 ►

Judge freezes Alex Murdaugh’s money as lawsuits grow COLUMBIA (AP) — A prominent South Carolina lawyer whose wife and son were killed five months ago and has since found himself part of a half-dozen state investigations and a number of lawsuits had his assets frozen on Nov. 2 by a judge worried he and his son might be scheming to hide money.

Judge Daniel Hall sided with an attorney suing Alex Murdaugh on behalf of the family of a 19-year-old woman killed in a crash on Murdaugh’s boat

Emily Elizabeth Collins Robert Blake Cooper Shannon Abigial Coy Sharon Britt Cripe Gage Stephen Crum Brittney Marie Darnell Delia Maye DeBlass Lewis Charles DeHope Brenten Heath DeShields Sophia Evonne Dieckhaus Emily Michelle Dowell Mary-Madison Driggers Jacqueline Alexis Dufour David S. Ehmen Cecilia Rose Ehresman Victoria Louise Elgin Enrique Elizondo Katherine Elizabeth Engels Brooke Nicole Ennis Taylor Jane Estes Catherine Abigail Etchells Lillian Gower Fant David Luis Ferrer Erika Norma Fowler Ralitsa Cassandre Francois Allison Ann Franz Allison Mary Fuller Katherine Nell Fuller Allison Rayn Fultz Amanda Nicole Funai Hugh Michael Gallagher IV Lindsey Elizabeth Gardner Thomas Garry Gardner Joshua Caleb Garlick Scott William Giblin John William Gillespie Dylan Ross Glick Taylor Kathleen Goffer Kelli Elizabeth Murphy Goldstein Ariyana Nicole Gore Melanie Christine Gravlin Zachary David Griffin David Wesley Griffith III John Pyatt Grimes Jr. Stephen Thomas Dene Gursky Madison Caroline Guyton Emily Nicole Hansbarger Christopher Justin Hanson James Drake Hanson Matthew Cullen Hardy Michelle Nicole Hart Matthew McCauley Henderson Caroline Kathryn Hicks Charles Edward Hicks Whitney Lace Higginbotham Mark Alexander Hinds Robert D. Holland III Simone Renee Holloway Matthew Aaron Hughes Thomas Christopher Hughes Seth Prior Hunt III Shawn Cunningham Hunter Thomas Blase Iandoli Jaquon Edmar Irby Mackenzie Brooke Iversen Cecil Kelly Jackson Jr. Kirsten Jantavia Jamison Connor Taylor Jasso

which prosecutors said his late son was driving.

The family’s lawsuit says Murdaugh is trying to hide millions of dollars they could possibly collect in their lawsuit and he could shift money between unknown accounts and potentially sell off property and a boat after he turned all his affairs over to his surviving son, Buster Murdaugh.

He could also benefit from the estates of his slain wife and son and his father who died of natural causes a few days later, attorney Mark Tinsley said.

“They have refused from day one to give me any information,” Tinsley said.

Murdaugh inherited part of a legal empire in tiny Hampton County.

Murdaugh’s father, grandfather and

Santanna Kadeedra Johnson Elizabeth Lanier Kade Alexis Danielle Kenny William T. King Rexford Patrick Kneece Jr. Christian Robert Kolic Ellen Marie Koscielniak Thomas Paul Krahe II Mary Augusta Paige Kregor Eli Emet Lachenman Sarah Megan Larabee Callen Reed Larus Caroline Elizabeth Latimer Kayla Elaine Lattimore Clyde LeMark Lemon Weston Douglas Liefer Brett Aaron Lonadier Christopher Francis Lutz Austin Curtis MacManus Theresa Marie Maheu Timothy Michael Maio Jessica Theo Majkowski Morgan Erik Malino John Logan Mallett Parker Stowe Manning Michelle Annette Mapp Jonathan Yves Marcelo Aaron Kyle McCall Andrea Louise McDonald Shawn Salyer McDougall Madison Brown McElheney Kori Ashton McGraw Dequan Devaughan Miller Frances Nicole Mock Morgan Landers Monroe Jessica Lee Monsell Mary Harriet Moore Michael Paxton Moran Jamie William Morehead Tara Haylee Morris Ansley Alyssa Mulkey Suha Suhail Najjar Emily Christine Neal Lindsay Amber Nishan James Harold Noel Sarah H.L. Norton Keats Wineland Nyvall Jackson Kean O’Brien Caroline Whitney O’Kelly Margaret McCravey O’Shields Chloe Eleanor Ogden Zachary Brice Ohanesian Christy Marie Oler Graydon Vester Olive IV Mariana Croghan Outten Anna Catherine Parham Nash Williams Parham Michael Robert Parks Niki Dipak Patel James Kemper Patton Jason Carl Pedigo Amanda Leigh Perry Malcolm Howard Philips Jr. Edward Thomas Pinnell III Jennilee Elizabeth Pirtle Campbell Plumblee Hunter Ray Pope Anna Marie Powell

great-grandfather were all elected prosecutors. The family’s law firm, located in the most impressive building in town after the courthouse, has spent a century winning multimilliondollar verdicts.

Remaining unsolved now for nearly five months are the deaths of Murdaugh’s wife, Maggie, 52, and their son Paul, 22. Murdaugh said he returned to their rural Colleton County home to find them shot to death. Tightlipped state police have neither named any suspects nor ruled anyone out.

Murdaugh has adamantly denied having anything to do with their killings.

The deaths lead to five more criminal investigations into Murdaugh, from whether he stole money from the family’s century-old PMPED Law

Chandler Robert Pyke Zachary B. Randolph Brandon Marc Rattray Tod Rainsford Reel Jr. Julia Rae Reynolds John Christian Rieber Nathan Gardner Roach Renique Kathryn Robinson Anthony Paul Roccograndi Garrett Skyeler Rogers Ryan T. Romano Aaron D. Sanders Ashwin Ray Sanzgiri Robert Louis Schwarz Michael Paul Scruggs Michael Edward Secrist Justin Andrew Shealy Matthew Ian Shearer Oliver Larkin Skinner Maya G. T. Slaughter Emery Taylor Sloan Hannah Elizabeth Smith Lucille Banks Smith Marcedes Kay Smith Matthew Tyler Smith Nicholas Denver Smith Stephen Timothy Snow Richard Lee Snyder Chandler Grayson Soapes Kristen Aurora Soucy Jillian Miranda Souza Morgan Elizabeth Spires Lauren Gsell Starkey Meredith Laura-Lindley Steer Cori Christine Stewart Rachel Nicole Stewart Stratton Lee Stone Hunter James Street Sara Anne Sykes Kathryn Nicole Tanner Kelly Lynn Taylor Amanda Liguori Tecklenburg Mary Caroline Templeton Nicholas Jerry Theos Makenzie Autumn Thomas Jacob Melvin Thompson III Jessica Bailey Thompson Katheryn Bass Thompson Abigail Virginia Toohey Mason Shelby Turner Zachary Aaron Turner Victoria Ivey Tuten Chelsea Rae Vander Pols Caitlin Rebecca Walker Tyler Len Walker Eric Michael Ware Brooklynn Hunter White John Othniel Wienges Jr. Astasia Kay Williams-Bertles Destinee Simone Wilson Kindrea Nichole Wilson Joseph Daniel Winterstein Andrew Oliver Wood John Adam Woods Grier Hudson Worthy Christopher Ronald Wray Robert Brooks Wright Kaitlin Elizabeth Yoffie

Firm to the events around his housekeeper’s death and insurance payout to whether he or his family tried to obstruct the investigation into the boat crash.

A lawyer for Murdaugh argued at a hearing before the judge on Oct. 29 that he has not been found responsible in any civil suits since his wife and son were killed and has insurance to cover if he is required to pay damages.

Attorney John Tiller also argued if Murdaugh loses control of his assets, that would open the door for similar things to happen in countless other cases if the person who sues thinks the defendant does not have enough insurance.

See Page 7 ►

NEWS / 7

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Novem ber 8, 2021

JOB MARKET / Recruiters say they’ve never seen it so busy C o nt inu e d f r o m 1 ►

Rosario Canales, the firm’s digital marketing specialist, said that clients are bouncing back from a disappointing 2020 often through creative means.

“To stay competitive a lot of employers have broadened their staffing efforts to seek talent in other regions, especially for remote roles,” Canales said. “Legal departments use legal contractors/consultants in order to meet their teams’ increasing demands.”

Green said that lawyers with three to five years of experience in litigation, real estate, family law, trust and estates, intellectual property, business, and employment law are at the top of her clients’ wish lists.

Remote possibilities

The legal field was dramatically— possibly permanently—changed by a pandemic that forced it to adapt to new ways of doing business. Remote work was instituted out of necessity but it’s now likely here to stay and has created for many a new perspective on lawyering, cultivating a desire for greater work/life balance and altering goals.

Another upshot of the rise in remote work is that the market for legal talent is increasingly national.

And recruiters in many parts of the country are seeing unusually tight job markets like what’s being seen in the Carolinas.

C o nt inu e d f r o m 6 ►

Murdaugh, 53, remains in the Richland County jail without bond after being charged with stealing nearly $3 million in insurance payments meant for the sons of his housekeeper, who died in a 2018 fall in his home. His legal team did not immediately respond to a request to comment on the latest ruling.

A judge handling the Murdaugh criminal cases last month asked for a report on his mental state before considering whether to set bond. A date for a hearing has not been set.

While the criminal investigations into Murdaugh continue—he also has been charged with trying to arrange his own death so his surviving son could get a $10 million life insurance policy—the civil lawsuits against him are also piling up.

Murdaugh faces at least six lawsuits seeking money as damages, from claims over the 2019 fatal boat crash to allegations he stole accidental death insurance settlements meant for his housekeeper’s sons and money from his family’s centuryold law firm to his own brother saying Murdaugh owes him $46,500 on $90,000 loaned in September in part to get Murdaugh into drug rehab.

Hall’s latest decision deals only with the lawsuit from the family of 19-year-old Mallory Beach. She died after Murdaugh’s boat hit a Beaufort County bridge in February 2019 and her body was found seven days later.

Prosecutors say Paul Murdaugh was driving the boat recklessly while intoxicated and charges against him were dropped after he and his mother were killed at the family’s Colleton County home in June.

Lawyers in two other lawsuits against Alex Murdaugh filed similar

“Employees want to feel equal and appreciated. I’ve had candidates that left their roles because they never felt acknowledged despite the years they put into the firms.”

Nikki Green, founder of Ave Staffing in Raleigh, North Carolina

“In the fall of 2020, we started an amazing uptick in searches, and it’s been increasing every month,” said a recruiter who heads the in-house counsel recruiting division at Major, Lindsey & Africa in Boston. “I know we have never seen it this busy.”

While firms and companies look to hire the perfect candidate, candidates are looking to join the perfect firm or company. That sometimes means landing the position with the highest salary or most prestige, but not always.

So, while a hefty paycheck is generally a powerful incentive, some attorneys have different priorities when choosing whether to join a new law firm.

“Many firms have seen an increase in demand for flexible work schedules and remote work options,” Green said.

Lawyering from afar is not ideal from everyone’s perspective, but Canales said that employers should be

motions asking to have the independent lawyers review and catalog all of Murdaugh’s assets and approve whether he can spend money. They will get part of any legal settlements or judgments against Murdaugh in the cases they are involved.

Those cases involve a man on the boat who said the Murdaugh family tried to falsely pin him as the boat’s driver along with the family of Murdaugh’s late housekeeper Gloria Satterfield. The Murdaughs said she died after a fall in the family’s home in 2018.

Murdaugh has been charged with pocketing nearly $3 million worth of insurance settlements that was supposed to go to Satterfield’s estate.

Prosecutors have accused Murdaugh of illegally diverting the money to his accounts. They said he then paid off a $100,000 credit card bill, transferred more than $300,000 to his father and $735,000 to himself.

“He’s living pretty well for someone with no assets. He has a crisis manager,” Tinsley said at the hearing.

Last week, at least two more lawsuits were filed against Murdaugh looking to collect debts. His old PMPED Law Firm sued, saying they loaned him $470,000 in 2021 and has not been paid back. The law firm has a separate suit against Murdaugh seeking money they said he stole from them. That suit didn’t specify any amount, but legal papers have suggested it is in the millions.

Also Randolph Murdaugh IV sued his brother, saying $90,000 he loaned before his arrest to help his brother make payroll and after the arrest for rehab has not been paid back minus a $43,500 tractor and rotary cutter that court papers said were given to the brother after Alex Murdaugh first tried to sell it.

aware that it is an attractive perk being offered by competitors.

“Currently the work schedule most preferred by professionals is two days in the office and three days remote,” Canales said. “Offering flexibility can potentially attract better talent for open positions and boost retention.”

What works now

Some firms and companies have reported less-than-overwhelming success in hiring ideal candidates, often finding them unavailable or unqualified. But others say that while outstanding talent doesn’t always fall into their laps, they have managed to do quite well recently.

“We attribute it to targeted investment of significant time and intention to diversity and inclusion efforts and expanding where we’re going to meet candidates from our old standard operating procedures, and we’re finding that there are a

lot of talented lawyers out there,” said Angela Craddock, a shareholder with Young Moore in Raleigh and chair of the firm’s recruiting and diversity and inclusion committees.

Craddock said that younger lawyers have been a primary target based on the firm’s current needs, and that while the firm has focused its efforts on recent law school graduates and lawyers fresh from clerkships, it has also managed to land some “really talented laterals.”

“I believe we’ve hired attorneys across every single practice area we have,” Craddock said. “The law is busy right now.”

Sometimes one has to cast a wide net to catch the right fish. Craddock said that hiring success means being open to more ideas and methods, including keeping in contact with law schools, intentionally networking, prominently posting job listings, participating in jobs fairs, and using headhunters or recruiting firms to help for certain hires—the idea is to be as expansive as possible.

In her years of recruiting, Green said that one thing has proven universal for employees of any industry, including the law: They do not enjoy robotic work environments.

“Employees want to feel equal and appreciated,” Green said. “I’ve had candidates that left their roles because they never felt acknowledged despite the years they put into the firms.”

Pat Murphy contributed to this story.

Personal injury law firm is looking to expand South Carolina operations to serve more citizens of South Carolina.

Firm is interested in discussing a merger or acquisition with an existing South Carolina based personal injury law firm.

If interested, please e-mail Inquiry@PILawMerger.com to include the name of your law firm along with a name, e-mail address, and phone number of your firm’s contact.

8 / NEWS

S O U T H C A R O L I N A L A W Y E R S W E E K LY I N ove m be r 8, 2021

POWER PLANTS / S.C. users won’t pay costs due to N.C. law C o nt inu e d f r o m 1 ►

continued use of wet ash handling.

PSC granted Duke just under 50 percent of the coal ash remediation expenses requested, permitting the costs associated with consent decrees following the Dan River accident as well as compliance related to federal regulations. It disallowed costs solely attributable to CAMA. Expenses associated with the nuclear project were allowed, as were some of the carrying costs, but the PSC denied recovery entirely for the litigation expenses.

Duke appealed both orders directly to the Supreme Court. In a decision authored by Acting Chief Justice John W. Kittredge, the court affirmed the consolidated PSC orders in full.

“The PSC’s orders in these two cases are exemplary in that they clearly set forth in detail the arguments and evidence presented by both sides, and then equally clearly articulated reasons for selecting one side’s arguments or evidence over the other,” Kittredge wrote. “Many of the issues on appeal involve judgment calls based on factual determinations, and given our deferential standard of review, we cannot say the PSC’s decisions are unsupported or irrational. Moreover, after careful review, we respectfully reject Duke’s effort to recast the PSC’s factual findings as legal errors. We therefore affirm the PSC’s comprehensive orders.”

No benefit to S.C. ratepayers

Kittredge first tackled the coal ash expenses. Witnesses for Duke explained that the requested costs were the result of recent changes to the law, while testimony from the South Carolina Office of Regulatory Staff (ORS) stated that South Carolina customers should be exempt from all incremental cost differences that were directly attributable to North Carolina state law.

On appeal, Duke argued that disallowing costs related to CAMA was an error because the costs were reasonably and prudently incurred in the delivery of power generation services to South Carolina customers, but the court disagreed.

“There is no evidence of any direct benefit to South Carolinians that stems from coal ash remediation costs required by North Carolina’s CAMA scheme,” Kittredge wrote.

“CAMA … is a post hoc environmental remediation scheme intended by the North Carolina General Assembly to ensure the cleanliness, safety and beauty of North Carolina’s en-

vironment and the health of North Carolina’s citizens. Duke’s reliance on the power-generation and costsharing arrangement conflates the benefits of joint electricity production with the benefits of cleaning up a previously-legal, unlined coal ash pond or landfill.

“The environmental cleanup costs are wholly unrelated to the current production of power for which South Carolina ratepayers must pay. Had CAMA never been passed, South Carolina’s ratepayers would have enjoyed the same benefits and lowcost electricity that they received after CAMA’s passage.”

Nor was the court persuaded that the PSC’s decisions were arbitrary and capricious.

“The PSC made a factual determination that Duke’s South Carolina customers did not benefit from the North Carolina-specific CAMA law,” he wrote. “Because there is evidence to support this finding, we may not rely on contrary evidence and (assuming we were inclined to do so) substitute our view of the facts for the PSC.” Duke’s contention that the PSC’s decision was clearly erroneous and unsupported by the evidence in the record also failed.

“It is clear from the level of detail set forth in the PSC’s orders that it thoroughly and thoughtfully weighed the testimony and evidence prior to reaching its decisions,” Kittredge said.

PSC affirmed

Duke requested nearly $1 million in legal fees related to coal ash litigation expenses for ongoing insurance litigation and defending itself in an unspecified number of state enforcement actions. The PSC denied the entire request, finding it significant that Duke made no attempt to calculate the number of hours billed or total amount sought for each case. Duke also sought to require customers to pay the costs of defending lawsuits filed by the state of North Carolina.

While Duke argued that it was entitled to a presumption of the reasonableness of its litigation expenses, that its coal ash litigation expenses were related to the normal and prudent operations of an enterprise like Duke and that if the litigation was successful, it would benefit ratepayers, Kittredge agreed with the PSC that Duke failed to provide sufficient evidence to substantiate its expenses.

“Duke did not break down its litigation costs case-by-case or even in a summary fashion that would be

“The environmental cleanup costs are wholly unrelated to the current production of power for which South Carolina ratepayers must pay. Had CAMA never been passed, South Carolina’s ratepayers would have enjoyed the same benefits and lowcost electricity that they received after CAMA’s passage.”

Justice John W. Kittredge’s opinion

easily understood by the fact finder,” he wrote. “It may have been technically possible for the PSC or ORS to sort through the 1,500-page spreadsheet and parse the data themselves. However, we decline to impose a requirement that they do so, particularly since Duke had the burden of proof.”

Further, none of Duke’s witnesses explained the lengthy spreadsheets, the actions within or how those actions benefitted Duke’s ratepayers (if at all), Kittredge said.

As for the denial of an expense request for carrying costs for deferred accounts, he again affirmed the PSC. “This issue presents a quintessential policy determination to which there is no one right answer,” he wrote.

“The PSC was faced with a policy decision and made a choice. There is certainly evidence in the record to support Wallace its conclusion, and we there- Lightsey fore decline to reverse the PSC’s decision, particularly given that the PSC generally approaches the question of the propriety of carrying costs on deferred accounts on a case-by-case basis to better consider the individual impact on the utility and the ratepayers.”

Finally, Kittredge affirmed the PSC’s allowance of $125 million over the course of 12 years to recover some of the costs incurred for DEC’s nuclear project.

Justice John Cannon Few filed

a separate opinion, concurring and dissenting. While he agreed with the majority regarding the litigation costs, carrying costs and costs associated with the nuclear project, he reached the opposite conclusion regarding the environmental compliance costs not allowed by the PSC. “In my opinion, disallowing the cost of complying with another state’s environmental laws simply because the requirements of that law were imposed by the other state’s legislature is arbitrary and, therefore, erroneous,” Few wrote.

Wallace K. Lightsey of the Wyche Law Firm in Greenville, who represented SCORS, said he was “delighted” with the decision.

“This was a complicated case—the record on appeal had well over 6,000 pages— but to me, the basic issue was simple: should South Carolina customers have to pay for costs that were required to be incurred solely because of a North Carolina law?”

Lightsey said. “We felt it was very intuitive that the answer was no.”

Robert E. Stepp of Robinson Gray Stepp & Laffitte in Columbia represented Duke. Stepp did not respond to a request for comment.

The 44-page decision is Duke Energy Carolinas, LLC v. South Carolina Office of Regulatory Staff (Lawyers Weekly No. 010-063-21). The full text of the opinion is available online at sclawyersweekly.com.

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10 / OPINION DIGESTS

S O U T H C A R O L I N A L A W Y E R S W E E K LY I N ove m be r 8, 2021

Opinions S.C. SUPREME COURT U.S. DISTRICT COURT

10

12

S.C. COURT OF APPEALS UNPUBLISHED 4TH U.S. CIRCUIT COURT OF APPEALS

S.C. SUPREME COURT

Public Utilities Electricity – Ratemaking – Cost Recovery – Coal Ash Remediation – N.C. Law Where the Public Service Commission (PSC) determined that North Carolina’s Coal Ash Management Act of 2014 (CAMA) did not confer any benefits to South Carolina ratepayers, nor did the ratepayers have any opportunity to influence the North Carolina General Assembly’s actions since those legislators did not represent South Carolina ratepayers, we cannot say the PSC acted arbitrarily in declining to allow appellants Duke Energy Carolinas, LLC, and Duke Energy Progress, LLC (Duke) to recover coal ash remediation costs that were solely attributable to CAMA. We affirm the decision of the PSC to disallow, in part, Duke’s application to increase its rates so as to recover coal ash remediation costs, litigation expenses, and carrying costs for deferred accounts. We also affirm the PSC’s decision to allow Duke to increase its rates so as to recover prudent construction costs for a project that Duke ultimately abandoned.

In November 2018, Duke sought to increase its rates so as to compensate it for (1) expenditures related to coal ash remediation in North and South Carolina (including both CAMA-compliance costs and costs associated with consent agreements Duke entered into with DHEC); (2) litigation expenses related to defending itself in various coal ash lawsuits; (3) carrying costs on certain deferred accounting expenses; and (4) construction costs actually incurred in pursuing the Lee Nuclear Project.

As to the coal ash remediation expenses, the PSC granted Duke slightly less than 50 percent of the amount requested. The amount allowed corresponded to the costs associated with complying with the EPA’s Coal Combustion Residuals rule (CCR Rule) and the DHEC consent agreements; the amount disallowed corresponded to costs that were solely attributable to CAMA. As to the litigation expenses, the PSC denied recovery entirely, finding Duke failed to provide sufficient evidence to substantiate its claimed legal fees.

As to the carrying costs, the PSC ruled Duke could recover any money spent on operations and maintenance costs, but could not receive a profit for having delayed recovery of those expenses by placing them into deferral accounts.

Finally, as to the recovery of costs associated with Duke’s now-abandoned Lee Nuclear Project, the PSC allowed the expenses, finding they were prudently incurred, and that the General Assembly’s repeal of the

14

Base Load Review Act (BLRA) did not foreclose Duke from recovering its actual expenses in a general ratemaking proceeding.

Coal Ash Remediation

Reasoning that the 2014 coal ash spill in North Carolina’s Dan River was the impetus behind the North Carolina General Assembly’s enactment of CAMA, the PSC concluded it would be unreasonable to require South Carolina customers to pay costs incurred as a result of Duke’s admitted criminal negligence and the resulting unilateral action of the North Carolina General Assembly.

The PSC also noted CAMA did not confer any benefits to South Carolina ratepayers, nor did the ratepayers have any opportunity to influence the North Carolina General Assembly’s actions since those legislators did not represent South Carolina ratepayers. Nonetheless, the PSC emphasized that the disallowance of CAMA costs was only its decision “at this time,” and future developments could change its position.

The PSC made the factual determination that the CAMA costs sought here neither directly benefitted Duke’s South Carolina customers, nor were they intended to do so.

There is evidence in support of this factual determination. We thus conclude the PSC did not commit an error of law in disallowing CAMA costs.

Much of the dissent consists of arguments Duke has never made. Appellate courts do not reverse based on issues and arguments never made by an appellant.

Litigation Expenses

In its application to recover litigation expenses, Duke made no attempt to calculate the number of hours billed or total amount sought for each case, instead leaving that task to the PSC or Office of Regulatory Staff (ORS). It may have been technically possible for the PSC or ORS to sort through the 1,500-page spreadsheet and parse the data themselves. However, we decline to impose a requirement that they do so, particularly since Duke had the burden of proof.

Accordingly, we affirm the PSC’s decisions as to the litigation expenses issue.

Carrying Costs for Deferred Accounts

With the PSC’s permission, Duke created deferred accounts for several expenses, all of which involved operations and maintenance costs. As with all deferred accounts, Duke paid the expenses on behalf of its customers but did not seek immediate recovery via a new ratemaking application.

Although Duke acknowledged that operations and maintenance costs generally were not subject to carrying costs, it nonetheless believed carrying costs were required in this instance in order to make the shareholders’—and the time-value of their

11 4TH U.S. CIRCUIT COURT OF APPEALS UNPUBLISHED money—whole.

Ultimately, the PSC allowed Duke full, dollar-for-dollar recovery of the amounts deferred—the standard practice for non-deferred operations and maintenance costs. However, the PSC disallowed Duke the requested carrying costs. The PSC concluded that to rule in favor of Duke’s position would encourage the utility to seek more accounting deferrals in the future, which would “greatly inflate costs in future years, which [would] be passed on to customers through rates.”

The PSC was faced with a policy decision and made a choice. There is evidence in the record to support its conclusion, so we decline to reverse the PSC’s decision.

Construction Costs for Abandoned Project

When it repealed the BLRA, the General Assembly specifically prohibited a general ratemaking application related to post-construction costs for the V.C. Summer project.

Therefore, impliedly, Duke was permitted to recover its actual, out-ofpocket costs related to its now-abandoned Lee Nuclear Project—but only if Duke could prove its expenditures were prudent.

ORS agreed with Duke that the expenses were prudently incurred in pursuit of the Lee Nuclear Project before various factors changed and made abandonment of the project the most beneficial option for ratepayers, and the PSC accepted that view of the facts. As the PSC noted in its initial order, no party presented evidence to the contrary. We therefore

15

affirm.

Dissent

(Few, J.): I disagree with the majority’s rationale with respect to Duke’s claim for environmental compliance costs associated with North Carolina law.

If Duke acted reasonably in not taking extra precautions to control the environmental consequences of its coal ash, then, when the state and federal governments came along later and required remediation, Duke should be allowed to have the new expenses included in its rate base.

Duke Energy Carolinas, LLC v. South Carolina Office of Regulatory Staff (Lawyers Weekly No. 010-063-21, 44 pp.) (John Kittredge, Acting Chief Justice) (John Few, J., concurring in part & dissenting in part) Appealed from the Public Service Commission. Robert Stepp, Frank Ellerbe, Sarah Spruill, Heather Shirley Smith and Thomas Mullikin for appellants; Jeffrey Nelson, Jenny Rebecca Pittman, Lessie Hammonds, Andrew Bateman, Alexander Knowles, Christopher Michael Huber, Steven Hamm, Wallace Lightsey, Scott Elliott, Carolyn Grube Lybarker, Laura Rebecca Dover, Alexander George Shissias, Richard Whitt, Stephanie Underwood Eaton, Carrie Grundmann, Derick Williamson, Bess Jones DuRant, Thadeus Culley, Robert Guild, Bridget Lee, Katherine Lee Mixson, Gudrun Thompson and David Neal for respondents; Wm. Grayson Lambert and Bradley Wright for amicus curiae. S.C. S. Ct.

LAWYER TO LAWYER / Directory

OPINION DIGESTS / 11

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Novem ber 8, 2021

S.C. COURT OF APPEALS, UNPUBLISHED

Tort/Negligence Auto Accident – Driver’s Perceptions – Personal Knowledge – Expert Testimony – Accident Reconstruction Although plaintiffs argue that the defendant-truck driver did not have firsthand knowledge of plaintiff Bundy’s movements prior to their vehicles’ collision, the trial court did not err in admitting into evidence a diagram of the accident, which was drawn by the truck driver for his employee personnel file (Exhibit 13). On Exhibit 13, the truck driver wrote, “car pull in on my left side trying to beat me making a left turn.” As revealed both in Exhibit 13 and in his testimony, the truck driver’s perception of events was that Bundy was not in the median when he pulled into it, but she was in the median when he got of his tractor-trailer after feeling a bump.

Exhibit 13 was thus admissible under Rules 602 and 701, SCRE. The evidence was rationally based on the truck driver’s perception of the events and he had clear personal knowledge of the event.

We affirm judgment for defendants.

Although the defense expert in accident reconstruction concluded that the truck driver was in the median first, directly contradicting Bundy’s testimony, this does not make the expert’s testimony inadmissible. The expert was well qualified, he based his opinion on multiple factors, and his specialized knowledge assisted the jury in deciding the dispositive issue at trial.

Furthermore, the expert did not improperly give testimony regarding a hypothetical person. The expert used a person with the same physical characteristics as Bundy to estimate the amount of force that would have been exerted on a person in the driver’s seat of the car involved in the accident as a result of the impact. The expert based the hypothetical person on facts supported by the evidence, and it was not an abuse of the trial court’s discretion to allow the testimony.

Finally, defendants elicited testimony from Bundy and her husband regarding previous accidents that could have caused back and neck injury. Bundy admitted to previous treatment for neck and back pain. Bundy’s surgeon testified that Bundy’s back injury must have been present before the accident at issue.

The jury could have found the accident with the truck driver did not contribute to Bundy’s injuries and did not cause the need for neck and

back surgeries or future care. The trial court did not err in denying plaintiffs’ directed verdict and posttrial motions.

Affirmed.

Bundy v. Jett (Lawyers Weekly No. 012-025-21, 8 pp.) (Per curiam) Appealed from the Circuit Court in Kershaw County (DeAndrea Benjamin, J.) Michael Brent McDonald for appellant; John Martin Grantland and Rogers Edward Harrell for respondents. S.C. App. Unpub.

Criminal Practice Murder – Identification – 7-Year-Old Witness – Detective’s Statements Even though witness Holmes was only seven years old when she claimed to see defendant burn the victim’s car, Holmes had the ability to view defendant as he set the car on fire on her street, and she could see him from her yard. Holmes accurately described defendant as a light-skinned black man with dreadlocks, she instantly identified him during a photo lineup, she said she was 100 percent certain of her choice, and the lineup occurred only three days after the crime occurred. Because Holmes’ identification was reliable, the trial court did not err in admitting the photo lineup, identification and related

testimony.

We affirm defendant’s convictions for murder, possession of a weapon during the commission of a violent crime, and grand larceny.

The trial court properly denied defendant’s motion for a directed verdict on the murder charge. The state presented testimony that defendant sat in the front passenger seat of the car, while his codefendant and the victim were in the back seat. The lack of glass at the crime scene and surveillance video of the victim’s car after the shooting showed the gunshot did not break the car’s windshield, which would have been likely if she had been shot from behind by the codefendant.

Surveillance video showed defendant placing an item from the waistband of his pants into the bed of his truck shortly after the victim’s murder. A witness testified that he heard a gunshot and then saw to men pulling the victim out of her car. Defendant and his codefendant were in possession of the victim’s car shortly after her death. While evidence of events after the victim’s murder may not have been enough to survive a directed verdict, the state presented more than just flight and cover-up evidence.

The trial court abused its discretion in prohibiting defendant from

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12 / OPINION DIGESTS cross-examining a detective about statements he made during an interrogation of the codefendant Defendant should have been allowed to question the detective about his statements that the state (1) had solved the case in 24 hours and (2) believed the murder was not premeditated.

The statements would not violate Bruton v. United States, 391 U.S. 123 (1968), because (1) the statements were the detective’s, not the codefendant’s and (2) to the extent the statements could be construed as a confession from the codefendant, they were redacted to not mention or refer to defendant.

The statements would not open the door to the codefendant’s confession, which implicated defendant and exculpated himself, because the detective could testify that he made the statements to build rapport with codefendant and the detective’s credibility would not need to be further rehabilitated by introducing the confession.

Nonetheless, the statements do not provide any evidence that defendant did not murder the victim, and they do not necessarily tend to show the state rushed to a wrong judgment in this case. Consequently, this error was harmless beyond a reasonable doubt. Any value defendant would have gained from asking the detective about these statements would have been diminished or altogether erased by the detective’s testimony that he made these statements to build rapport with the codefendant.

Affirmed.

State v. McIver (Lawyers Weekly No. 012-026-21, 6 pp.) (Per curiam) Appealed from the Circuit Court in Horry County (Steven John, J.) William Yarborough and Lauren Carole Hobbis for appellant; Alan McCrory Wilson, Donald Zelenka, Melody Brown, Anthony Mabry and Jimmy Richardson for respondent.

S.C. App. Unpub.

Civil Practice Sanctions Motion – Timing – Appeals Despite the fact that plaintiff appealed the circuit court’s judgment, since defendant filed its motion for sanctions within ten days of the entry of the circuit court’s judgment, the circuit court had jurisdiction to consider sanctions under subsection (A) of the Frivolous Civil Proceedings Sanctions Act. We reverse and remand for the circuit court’s consideration of the motion for sanctions under subsection (A) of the FCPSA and Rule 11, SCRCP. Plaintiff brought this case seeking a change in the law regarding fraud claims and the death of the alleged victim. The circuit court ruled against plaintiff, and plaintiff appealed.

Within ten days of entry of the circuit court’s judgment, defendant moved for sanctions. The circuit court held that defendant’s motion was premature. Defendant appeals.

Under Pee Dee Health Care, P.A. v. Estate of Thompson, 424 S.C. 520, 818 S.E.2d 758 (2018), the appropriate standard of review is for an abuse of discretion.

Our research has not revealed any authority in which South Carolina courts have considered sanctions solely under subsection (A) of the post-2005 FCPSA. Nevertheless,

taken together, Holmes v. E. Cooper Cmty. Hosp., Inc., 408 S.C. 138, 758 S.E.2d 483 (2014) (considering FCPSA subsection (C)), and Pitman v.

Republic Leasing Co., 351 S.C. 429, 570 S.E.2d 187 (Ct. App. 2002) (“a motion for sanctions would be timely if filed within ten days of judgment”), suggest that a circuit court at least has the authority to issue sanctions under the FCPSA within ten days after entry of the judgment and that a circuit court might lose jurisdiction to do so after the passage of ten days.

Therefore, we conclude that the circuit court erred when it found it could not consider a motion for sanctions before the conclusion of respondent’s appeal of the circuit court’s substantive ruling in the case.

Because the circuit court can timely consider sanctions under the FCPSA in this matter before an appeal, sanctions under Rule 11 can be decided in the same case.

We understand the awkward position that could, at first glance, confront circuit courts facing similarlysituated motions for sanctions under our holding in this case. Plaintiff’s practical argument that a circuit court could rule that a party had violated the FCPSA or Rule 11 by filing a case contrary to clear precedent, only to see our Supreme Court reverse that precedent, resonates with us. But we believe that concern should not govern our decision here for a couple of reasons.

First, federal courts have consistently taken a similar approach. Second, the standard under the FCPSA is not success, but reasonableness.

The wording of the statute suggests that the legislature considered that a party might make a good-faith or reasonable argument to reverse precedent, only to see the appellate courts decide that the precedent should stand nonetheless. Some legal issues are close, and the common law continues to evolve. A circuit court can timely consider prior to appeal a motion for sanctions under the FCPSA precisely because the benchmarks in the legislation do not hinge on the ultimate outcome of the litigation. Whether a litigant has made a reasonable, good-faith argument sufficient to avoid sanctions is an inquiry a circuit court should make based on the case and the facts before it.

Reversed and remanded.

Hughes v. Bank of America N.A. (Lawyers Weekly No. 012-02721, 15 pp.) (Per curiam) Appealed from the Circuit Court in Spartanburg County (Grace Gilchrist Knie, J.) Robert Muckenfuss and Elizabeth Marion Zwickert Timmermans for appellant; Michael Kelly, Bradley Davis Hewett and Jamie Nicole Smith for respondents. S.C. App. Unpub.

Municipal Zoning – Plan Approval – New Accessory Use – Rooftop Bar The applicable version of Charleston’s zoning ordinances clearly authorized its Board of Zoning Appeals (BZA) to consider all of the plans for a hotel, including all of the accessory uses. Since the ordinances also authorized the BZA to place conditions on accessory uses, the respondenthotel could not add or change accessory uses without seeking BZA approval for such alterations.

We reverse the circuit court’s declaration that the respondent-hotel has the legal right to add a bar to its

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eighth floor/rooftop.

Although the general ordinance concerning permitted principal uses said a property owner was entitled to accessory uses, the more specific ordinances—concerning special exceptions for accommodation uses and granting the BZA authority over accessory uses—prevail over the ordinance’s general definition.

While the hotel argues that its eighth-floor bar is not a rooftop bar, it admitted that “guests visiting the interior accessory uses are free to go on the terrace, and, to that extent, their presence on the terrace might be considered an extension of the uses on the interior or facilitated by the accessory uses…” Moreover, a neighborhood resident testified that he had been invited to a large party—200 to 250 people were to attend—planned to be held on the rooftop before the appellant-city closed the eighth floor.

We also note that the proposed uses for the eighth floor would draw additional people, besides hotel guests, to the hotel. However, the hotel failed to provide the BZA with information about the impact on parking and traffic, as required by the zoning ordinance.

Even though the building division approved the hotel’s plans, and even though the building inspector did not stop the construction, since the city’s ordinances clearly require applicants to submit all plans to the BZA and authorize the BZA to evaluate all accessory uses, the hotel was required to submit an application for an amendment to its approved plans.

Reversed.

Dewberry 334 Meeting Street, LLC v. City of Charleston (Lawyers Weekly No. 012-028-21, 9 pp.)

(Per curiam) Appealed from the Circuit Court in Charleston County (J. C. Nicholson, J.) Frances Isaac Cantwell and Daniel Simmons McQueeney for appellants; John Phillips Linton and George Trenholm Walker for respondent. S.C. App. Unpub.

U.S. DISTRICT COURT

Constitutional Due Process – Vagueness – Disorderly Conduct & Disturbing Schools Laws South Carolina’s “Disorderly Conduct Law” and its former “Disturbing Schools Law” do not give public schoolchildren notice of the conduct prohibited, and the laws’ subjectivity has led to disproportionate enforcement against children of color and those living with disabilities.

The court grants plaintiffs’ motion for summary judgment and declares these laws unconstitutionally vague.

Disorderly Conduct Law

Known as the Disorderly Conduct Law, S.C. Code Ann. § 16-17-530 provides, “Any person who shall (a) be found on any highway or at any public place or public gathering in a grossly intoxicated condition or otherwise conducting himself in a disorderly or boisterous manner, (b) use obscene or profane language on any highway or at any public place or gathering or in hearing distance of any schoolhouse or church or (c) while under the influence or feigning to be under the influence of intoxicating liquor, without just cause

or excuse, discharge any gun, pistol or other firearm while upon or within fifty yards of any public road or highway, except upon his own premises, shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than one hundred dollars or be imprisoned for not more than thirty days.”

The terms “disorderly,” “boisterous manner,” and “obscene and profane language” are unconstitutionally vague on their face as applied to primary and secondary school students because the statute fails to provide both sufficient notice of what conduct is prohibited and a standard for enforcement.

The testimony of Greenville County Sheriff’s Captain Michael Rinehart demonstrates that there is no objective standard for determining what sort of disorderly conduct reaches a criminal level, and that each individual officer relies on his or her discretionary assessment of the circumstances. The school codes of conduct made part of the record reflect that the sort of disorderly conduct that could be charged as criminal could just as likely be subjected to a verbal reprimand. That schools throughout the state categorize as minor the same behavior that an officer could charge as criminal highlights the lack of notice the law provides as to what conduct is prohibited. The overlap also underscores the potential for arbitrary enforcement when the decision of whether to charge a student is left to the discretion of an individual officer.

This subjectivity has led to a disproportionate number of Black students and students with disabilities entering the juvenile justice system.

The undisputed record further demonstrates that contact with the juvenile justice system increases the risk that a young person will drop out of school and that he or she may be incarcerated later in life.

Contrary to defendants’ argument, the undisputed record demonstrates that in practice, disorderly conduct charges are not limited to only instances in which a student uses profanity with fighting words.

As Plaintiffs have well shown, the Disorderly Conduct Law is vague because of the intractability of identifying the applicable legal standard.

The Disorderly Conduct Law provides no discernible standard for applying and enforcing it to the state’s elementary and secondary school students. Furthermore, the undisputed record reflects that the lack of any such standard has resulted in a disproportionate number of students of color and students living with a disability being charged under the Law. Accordingly, the court finds that the law is unconstitutionally vague on its face as applied to elementary and secondary school students in South Carolina.

Former Disturbing Schools Law

As enforced prior to the May 17, 2018 amendments (the amended statute does not apply to students), the Disturbing Schools Law provided, “(A) It shall be unlawful: (1) for any person willfully or unnecessarily (a) to interfere with or to disturb in any way or in any place the students or teachers of any school or college in this State, (b) to loiter about such school or college premises or (c) to act in an obnoxious manner thereon; or (2) for any person to (a) enter upon any such school or college premises or (b) loiter around the premises, except on business, without the permis-

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sion of the principal or president in charge. (B) Any person violating any of the provisions of this section shall be guilty of a misdemeanor and, on conviction thereof, shall pay a fine of not more than one thousand dollars or be imprisoned in the county jail for not more than ninety days.” S.C. Code § 16-17-420.

In Town of Honea Path v. Flynn, 176 S.E.2d 564 (S.C. 1970), the South Carolina Supreme Court interpreted the phrase “‘interference’ . . . ‘in any manner’” and found that the term failed to provide clear notice and that it infringed upon protected First Amendment rights.

Furthermore, the former Disturbing Schools Law does not require intent, demonstrated causation, or actual disruption of classes.

The former law applies to all people who in “any way or in any place” willfully or unnecessarily disturb students or teachers of any school or college. Worse, it allows for the criminal prosecution of just about any minor perceived infraction, without providing notice as to the type of conduct that will lead to an arrest.

Defendant has not overcome the clear absence of an objective standard necessary to distinguish between typical childhood and adolescent behavior and the sort of conduct that is criminally prohibited. And, as with the Disorderly Conduct Law, the undisputed record reflects that the lack of any such standard has resulted in a disproportionate number of students of color and students living with a disability be-

ing charged under the former Law. Accordingly, the court finds that the former Disturbing Schools Law is unconstitutionally vague on its face as applied to elementary and secondary school students in South Carolina.

The state’s enforcement of S.C. Code Ann. § 16-17-530 is permanently enjoined as to elementary and secondary school students in South Carolina while they are attending school. The state is also permanently enjoined from retaining the records of the certified subclasses relating to being taken into custody, charges filed, adjudication, or disposition under S.C. Code Ann. § 16-17-420, prior to May 17, 2018, and under S.C. Code Ann. § 16-17530, except as would be permissible following expungement under S.C. Code Ann. § 17-1-40.

Motion granted.

Kenny v. Wilson (Lawyers Weekly No. 002-015-21, 39 pp.)

(Margaret Seymour, S.J.) 2:16-cv2794. Galen Leigh Sherwin, Sarah Ann Hinger, Shirene Carole Hansotia, Susan King Dunn, David Allen Chaney, Dennis David Parker, Emma Jane Roth, Lenora Michelle Lapidus and Tiffani Joy Burgess for plaintiffs; James Emory Smith, Robin Lilley Jackson, Sandra Jane Senn, Andrew Lindemann, Robert David Garfield, Steven Richard Spreeuwers, Dana Marie Thye, William Michael Hemlepp, Anne Culbreath, Michael Stuart Pitts, Logan McCombs Wells and Robert Coler for defendants; Robert Sneed for amicus curiae. D.S.C.

Banks & Banking NSF & Overdraft Fees – Regulation E – Breach of Contract – ‘Item’ Definition The plaintiff-customers challenge the defendant-bank’s use of “available balance” bookkeeping rather than actual balance bookkeeping.

Plaintiffs have stated claims alleging that the bank failed to give sufficient notice of its practices and that the bank failed to abide by its own customer agreement.

The bank’s motion to dismiss is denied.

Timeliness

A claim under the Electronic Funds Transfer Act (EFTA) must be brought “within one year from the date of the occurrence of the violation.” 15 U.S.C. § 1693m(g). The bank charged plaintiff Butcher an NSF fee for an overdraft that resulted from a debit card transaction on July 22, 2019, almost a year and a half before she filed her claim in this case.

In support of its argument that suit must be filed within one year of the first instance of an allegedly noncompliant transfer, the bank cites cases involving a series of preauthorized, recurring transactions. Those cases are distinguishable and/or unpersuasive.

The instant case does not involve preauthorized, recurring transfers; rather, the provision of the Federal Reserve Board’s Regulation E at issue here, 12 C.F.R. § 1005.17, applies to non-recurring debit card and

ATM transactions. Courts have rejected the same timeliness challenge brought by the bank in cases involving materially similar facts.

Butcher brought her claim within one year of an allegedly noncompliant transfer, so her claim was timely filed.

Disclosure

The bank argues that, when all the relevant provisions in its personal deposit account agreement (PDAA) and its “Opt-in Agreement” (for its overdraft program) are read in harmony, they unambiguously disclose that the bank uses the available balance method to make overdraft determinations.

However, Butcher has made a plausible showing that the Opt-in Agreement fails to clearly and accurately describe the bank’s overdraft program.

The primary objective of the EFTA, and by derivation Regulation E, is “the protection of individual consumers engaging in electronic fund transfers and remittance transfers.” 12 C.F.R. § 1005.1(b). To fulfill that mandate, Regulation E governs certain aspects of a financial institution’s overdraft policy. In particular, it establishes that a financial institution shall not assess a fee or charge on a consumer’s account for paying a one-time debit card transaction pursuant to the institution’s overdraft service, unless the institution provides the consumer with a notice in writing segregated from all other information, describing the institution’s overdraft service.

Plaintiffs’ amended complaint alleges a plausible Regulation E violation because the Opt-in Agreement states that an overdraft “occurs

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14 / OPINION DIGESTS when you do not have enough money in your account to cover a transaction, but we pay it anyway”, whereas the bank’s available balance practice allegedly results in overdraft fees when sufficient money remains in the account to cover the transaction in question. Moreover, the statement “we pay it anyway” suggests that the bank 0advances its own funds to cover an overdraft, but the amended complaint describes situations in which the account holder’s own money satisfies the transaction and an overdraft fee is still assessed.

If the bank’s Opt-in Agreement inaccurately or incompletely describes the conditions under which overdraft fees are assessed for ATM and nonrecurring debit card transactions it can hardly be said to describe the bank’s overdraft service in a clear and readily understandable way.

Courts have found the same language from the bank’s Opt-in Agreement to be ambiguous as to the account balance calculation a financial institution uses to assess overdraft fees. Butcher has plausibly alleged that she was not provided sufficient information regarding the bank’s overdraft practices to give informed consent, and the motion to dismiss the Regulation E claim for failure to state a claim is denied.

Breach of Contract

Plaintiff Fludd alleges that the bank violated its own PDAA because it charged her NSF fees when a merchant re-presented a previously rejected item (for which she had already been charged an NSF fee). At bottom, the parties’ dispute over repeat NSF fees boils down to their respective interpretations of the word “item” as it is used in the PDAA. Where a contract’s material terms are ambiguous, their meaning becomes a question of fact unsuitable for a motion to dismiss.

Fludd’s good faith and fair dealing claim also survives. Even if the bank complied with the literal terms of the PDAA, an assumption which Fludd disputes, a plausible claim remains that the bank imposed NSF fees in an abusive manner.

Motion denied.

Fludd v. South State Bank (Lawyers Weekly No. 002-016-21, 29 pp.) (Bruce Howe Hendricks, J.) 2:20-cv-1959. Emily Jo Kirk, Mark Charles Tanenbaum, Michele Vercoski, Richard Harpootlian and Richard McCune for plaintiffs; Brian Kahn, Thomas Richmond McPherson and Zachary McCamey for defendants. D.S.C.

4TH U.S. CIRCUIT COURT OF APPEALS

Criminal Practice Mentally incompetent, dangerous individual may be civilly committed Where the defendant was deemed mentally incompetent to stand trial, was unlikely to be restored to competency in the foreseeable future and was a dangerous person, he was civilly committed.

Background

Gary Curbow was charged in the Northern District of Mississippi with committing a federal criminal offense. The Mississippi district court deemed Curbow to be mentally incompetent to stand trial and temporarily placed him in the custody

of the attorney general for further evaluation.

Staff members at FMC Butner eventually concluded that Curbow was unlikely to be restored to competency in the foreseeable future and that his mental condition rendered him dangerous to others. The government then filed a certificate in the Eastern District of North Carolina, where FMC Butner is located, attesting that Curbow was a dangerous person who should be civilly committed. Following an evidentiary hearing, the North Carolina district court agreed and ordered Curbow’s civil commitment.

Analysis

Curbow principally argues that he was ineligible for civil commitment under this court’s recent decision in United States v. Wayda, 966 F.3d 294 (4th Cir. 2020), because the attorney general no longer had legal custody of him at the time of his dangerousness certification.

The record reflects that the FMC Butner evaluators understood that, pursuant to the June 6, 2019, order, they were to assess both Curbow’s restorability and dangerousness. In addition to recognizing that the FMC Butner evaluators complied with the Mississippi court’s 30-day deadline by completing their report within 30 days of the June 6, 2019, order, the North Carolina court found that it was not unreasonable that it took another 20 days for FMC Butner’s warden and the united states attorney to review the report and prepare and file the § 4246 certificate.

Curbow contends that the North Carolina court erred in focusing on the 49-day period. Curbow argues that the court should have instead considered the entire period of his custody—not just his continuous confinement at FMC Butner since Aug. 22, 2018, but his custody reaching back to March 2018 when he was first evaluated for mental competency to stand trial.

Curbow’s entire-period-of-custody contention is based on a misinterpretation of one sentence of Wayda.

Under Curbow’s reading of that sentence, this court held that the proper subject of the reasonableness inquiry was Wayda’s entire period of custody. But the court did not so hold.

Therefore, the North Carolina court correctly focused on the 49-day period. That is the period comparable to the crucial six-month period in Wayda, between Wayda’s unrestorability determination and his § 4248 certification.

Relatedly, Curbow argues that the North Carolina court should have ruled that the government was obliged to conduct his dangerousness evaluation well before his unrestorability determination. The problem for Curbow is that the North Carolina court did not say that a dangerousness evaluation must be conducted prior to an unrestorability determination whenever possible.

Nor is there other precedent or statutory authority for that proposition.

Finally, Curbow asserts that the North Carolina court’s “determination that the time period was reasonable does not bear scrutiny.” Curbow seeks to replace the reasonableness standard with a quickest-possiblemanner test. Again, this court rejects Curbow’s effort and recognizes that the North Carolina court correctly evaluated the Government’s conduct for reasonableness.

Turning to whether the North Carolina court erred by rejecting Curbow’s theory that his legal custody expired before the third period

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of § 4241(d) custody even began, as a result of unreasonable delays in the first two periods of § 4241(d) custody, § 4246(a) eligibility provisions are not subject matter jurisdictional and may be waived. Here, the court concludes that the theory has been waived and thus does not decide its merits as a matter of either evidence or law.

Affirmed.

Concurrence

(Thacker, J.): I concur with the majority opinion that Curbow has waived the opportunity to challenge the delays in his first two periods of 18 U.S.C. § 4241(d) custody. I write separately solely to address my colleague’s concurring opinion regarding Wayda.

Concurrence

(Traxler, J.): I recognize, of course, that Wayda is binding precedent and that we are obliged to apply its holding. Wayda, however, did not resolve the question about the effect of internal delays during the § 4241 evaluation process, and I believe, at a minimum, that we should exercise caution before extending it beyond its actual, relatively limited holding.

United States v. Curbow (Lawyers Weekly No. 001-177-21, 67 pp.)

(Robert Bruce King, J.) (Stephanie Thacker, J., concurring) (William Byrd Traxler Jr., S.J., concurring) Case No. 20-7797. Oct. 19, 2021.

From E.D.N.C. at Raleigh (W. Earl Britt, S.J.) Jennifer Claire Leisten for Appellant. Genna Danelle Petre for Appellee.

Criminal Practice Sentence reduction statute’s exhaustion requirement is not jurisdictional Although 18 U.S.C. § 3582(c)(1)(A) requires a defendant to exhaust his administrative remedies before seeking a sentence reduction in federal court, because the requirement was a non-jurisdictional claim-processing rule, it could be waived or forfeited.

Background

Saeed Abdul Muhammad moved the district court for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A), asserting that his increased risk for severe illness from COVID-19 due to his age and medical conditions constituted extraordinary and compelling circumstances supporting his immediate release.

Appellant filed his motion for a sentence reduction 149 days after asking the warden of FCI Loretto, the facility where he is imprisoned, to file the motion on his behalf and 132 days after the warden denied his request to do so.

The district court held that because the warden responded to appellant’s request within 30 days, appellant had to exhaust his administrative remedies before he could file a motion on his own behalf. But appellant did not appeal the warden’s denial through the Bureau of Prison’s administrative remedy program and thus did not exhaust his administrative remedies. Therefore, the district court denied appellant’s motion without reaching the merits.

Appellant timely appealed, asking this court to reverse the decision of the district court and remand with instructions to resolve the motion on its merits. The government agrees with appellant that remand is appropriate.

This court must determine whether § 3582(c)(1)(A)’s thresh-

old requirement that appellant request the Bureau of Prisons to file a motion on his behalf and exhaust his administrative remedies or wait 30 days from the date of such request to file his own motion is a jurisdictional prescription and thus appropriately raised on its own by the district court. It further considers whether appellant satisfied the requirement—namely, whether the threshold requirement was satisfied when appellant filed his § 3582(c)(1) (A) motion in the district court more than 30 days after he submitted his request to the warden, but without pursuing an administrative appeal.

Claim processing rule

The text of § 3582(c)(1)(A) does not plainly demonstrate that Congress imbued the so-called exhaustion requirement with jurisdictional consequences. Section 3582(c) is not part of a jurisdictional portion of the criminal code but, rather, it is part of the chapter dealing generally with sentences of imprisonment. Moreover, the statute “neither ‘speak[s] in jurisdictional terms’ nor ‘refer[s] in any way to the jurisdiction’ of the courts.” This court conclude, as have many other circuits, that the statute’s requirement that a defendant satisfy the threshold requirement before filing a motion in the district court is a non-jurisdictional claimprocessing rule.

Because the requirement is not jurisdictional, it may be waived or forfeited. The district court therefore erred by, on its own, dismissing the motion based on the threshold requirement, even assuming appellant had not completed the prerequisites to suit.

Merits

Turning to the second issue, whether or not appellant satisfied the threshold requirement in § 3582(c) (1)(A), the court concludes that he did. According to the statute’s plain text, once a defendant completes the initial step of requesting that the Bureau of Prisons bring a motion on their behalf, the defendant may file a motion with the court after (1) “fully [exhausting] all administrative rights to appeal . . . or” (2) after “the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier…” § 3582(c)(1)(A).

The words “or” and “whichever” make it unambiguously clear that Congress has provided defendants with two alternative ways to satisfy the threshold requirement. The conclusion that § 3582(c)(1)(A) outlines two routes—one of which does not require exhaustion of administrative remedies—is further supported by the concurring conclusions of other sister circuits.

Therefore, the threshold requirement in § 3582(c)(1)(A) is nonjurisdictional and satisfied if a defendant requests the Bureau of Prisons to bring a motion on their behalf and either fully exhausts all administrative rights to appeal the Bureau’s decision or waits 30 days from the date of their initial request to file a motion in the district court. Appellant has satisfied that requirement here. He did not exhaust his administrative remedies, but he did file his motion 149 days after asking the FCI Loretto warden to file the motion on his behalf. Therefore, the district court erred in dismissing the motion.

Vacated and remanded.

United States v. Muhammad (Lawyers Weekly No. 001-178-21, 9 pp.) (Stephanie Thacker, J.) Case No. 20-7520. Oct. 20, 2021. From E.D.

OPINION DIGESTS / 15

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Novem ber 8, 2021

Va. at Richmond (Robert E. Payne, S.J.) Geremy C. Kamens and Robert J. Wagner for Appellant. Raj Parekh and Richard D. Cooke for Appellee.

Immigration AG Sessions’ opinion on authority of immigration judges abrogated Where former U.S. Attorney General Sessions opined that immigration judges and the Board of Immigration Appeals, or BIA, lack authority to administratively close cases, but his opinion was at odds with the plain meaning of the regulations and the government has since disavowed it, Sessions’ opinion is abrogated.

Background

In August 2016, Javier Chavez Gonzalez was granted deferred action on his removal from the United States pursuant to the Deferred Action for Childhood Arrivals program, or DACA. As a result of a subsequent misdemeanor conviction, the Department of Homeland Security, or DHS, terminated petitioner’s grant of deferred action, and placed him in removal proceedings.

However, during the course of his proceedings before the immigration judge, or IJ, DHS officially restored petitioner’s DACA grant of deferred action. As a result, petitioner asked the IJ to either administratively close his case, terminate the removal proceedings or grant a continuance based on his mother’s pending application to be a legal permanent resident, or LPR. The IJ denied all requests for relief, and petitioner appealed to the BIA. While the matter was pending in the BIA, petitioner’s mother obtained LPR status, and petitioner filed a motion to remand with the BIA. The BIA affirmed the IJ’s decision and denied the motion to remand. It relied on Matter of S-O-G- & F-D-B-, 27 I. & N. Dec. 462 (A.G. 2018), where Attorney General Sessions concluded that IJs and the BIA may only exercise the powers delegated to them by statute or federal regulation, and that no statute or regulation confers to IJs and the BIA the general authority to terminate proceedings.

The BIA also found administrative closure and a continuance to be inappropriate based on the speculative possibility of petitioner’s mother earning LPR status. The BIA denied the motion to remand because petitioner failed to present prima facie evidence that his mother’s LPR status would qualify him for cancellation of removal.

Deference

In Romero v. Barr, 937 F.3d 282 (4th Cir. 2019), interpreting the very same regulations at issue here, the court held that “the plain language of [the regulations] unambiguously confers upon IJs and the BIA the general authority to administratively close cases such that an Auer deference assessment is not warranted.” There is no reason to reach a different result as to the unambiguity of the regulations with regard to termination of removal proceedings.

Therefore, per Romero, no deference is due to the attorney general in his view of the immigration laws and regulations in this regard.

Merits

As set forth in Romero, this court interpreted the “expansive language” of sections 1003.10(b) and 1003.1(d) (1)(ii) and held that “the authority

of IJs and the BIA to administratively close cases is conferred by the plain language.” Thus, pursuant to Romero, the regulations clearly encompass the “action” of termination of removal. The government’s arguments to the contrary do not hold up.

This court has found no provisions stating that the IJ or BIA cannot terminate removal proceedings, and the government does not cite to any. The attorney general’s decision in Matter of S-O-G- is therefore in conflict with the plain meaning of section 1003.10(b) and 1003.1(d)(1)(ii) and must be abrogated.

Even assuming the plain language of the regulations is ambiguous and implicates Auer deference, the government’s position fails. To begin with, this court has overruled Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018), in Romero. Further, Attorney General Garland no longer takes the position set forth in CastroTum and has since disavowed the idea that the IJs and BIA cannot administratively close proceedings. The attorney general’s decision in Matter of S-O-G- is hereby abrogated.

Closure

Petitioner next challenges the BIA’s rejection of his request for administrative closure without specifically addressing DACA as a basis for his request. The government does not dispute that the BIA did not mention DACA in rejecting petitioner’s request. Furthermore, the government admits that in some cases, the agency will (and has) granted administrative closure based on DACA. Therefore, upon remand, the BIA must address petitioner’s DACA-based administrative closure argument.

Remaining arguments

Petitioner next contends that the IJ abused its discretion in denying petitioner’s request for a continuance in order to allow him to apply for cancellation of removal based on his mother’s then-pending LPR application. Because the IJ’s decision was not without rational explanation, did not inexplicably depart from established policies or did not rest on an impermissible basis, this argument is rejected.

Finally, petitioner contends that the BIA erred in declining to remand his case so that he could apply for cancellation of removal based on his mother’s newly awarded LPR status.

The court disagrees. However, that on remand, petitioner may choose to renew his request for cancellation of removal based on his mother’s LPR status.

Petition granted in part, denied in part, vacated and remanded.

Gonzalez v. Garland (Lawyers Weekly No. 001-179-21, 26 pp.)

(Stephanie Thacker, J.) Case No. 201924. Oct. 20, 2021. From the Board of Immigration Appeals. Benjamin Ross Winograd for Petitioner. Sara J. Bayram for Respondent.

Criminal Practice Relation back doctrine makes superseding indictment timely Where the factual allegations in the original indictment involving conspiratorial conduct in Nigeria to conceal proceeds of a fraud scheme in the United States provided the defendant notice of the accusations, and the superseding indictment departed from the original by changing “conspiracy to commit wire fraud” to “wire fraud,” the superseding indictment related back to the original and

was thus timely.

“wire fraud.”

Background

Remaining arguments

Seun Banjo Ojedokun was convicted of conspiracy to commit money laundering, in contravention of 18 U.S.C. § 1956(h). Ojedokun’s conviction arose from his conspiratorial conduct in Nigeria, which involved efforts to distribute and conceal the proceeds of an extensive fraud scheme based in the United States.

The grand jury returned a superseding indictment in August 2020, which Ojedokun unsuccessfully moved to dismiss as untimely.

Ojedokun filed multiple unavailing suppression motions, was convicted and sentenced to 108 months of imprisonment and subsequently moved for a new trial. Following the district court’s denial of that motion, Ojedokun filed a motion for reconsideration, asserting the court lacked subject matter jurisdiction by reason of an inappropriate application of § 1956’s extraterritorial jurisdiction provision. The court likewise rejected that motion.

Extraterritorial jurisdiction Ojedokun’s principal argument is that § 1956(f) did not afford the district court extraterritorial jurisdiction to hear the § 1956(h) money laundering conspiracy charge growing out of his actions abroad.

First, he urges that the express terms of § 1956(f) do not overcome the presumption against extraterritoriality with respect to § 1956(h) conspiracy offenses, because a subsection (h) conspiracy is not “conduct” as subsection (f) conceives of that term and because such conspiracy offenses do not require a “transaction” as contemplated by § 1956(f) (2). Second, Ojedokun asserts that even if § 1956(f) applies to § 1956(h) conspiracies as a general matter, the provision cannot extend to cover his conspiratorial conduct in this case because his actions did not occur “in part in the United States” but instead exclusively in Nigeria.

The court rejects both arguments.

Section 1956(f) clearly and unambiguously extends the extraterritorial reach of § 1956 to conspiracy offenses under § 1956(h) and also applies on its own terms to Ojedokun’s conduct in Nigeria. The district court did not err in so determining and was properly vested with subject matter jurisdiction over this case.

Timeliness

The second issue presented by Ojedokun in this appeal is whether the district court erred in determining, multiple times, that the superseding indictment was timely returned. Ojedokun contends that the superseding indictment was untimely under the five-year limitations period set out at 18 U.S.C. § 3282(a) because it “substantially amended” the nature of the conspiracy charge in the original indictment, such that it could not relate back to the date of the original.

A court’s consideration of whether the superseding indictment “substantially amended” the original indictment is not confined to considering elements of the charged offense, but must instead take stock of the larger context of what each indictment alleged and whether the substance of the first “fairly alerted the defendant to the subsequent charges” outlined in the second. Here, the factual allegations recited in the original indictment afforded Ojedokun more than sufficient notice of what he was accused of in the superseding indictment, which departed from the original largely by changing the phrase “conspiracy to commit wire fraud” to

The remaining two contentions put forward by Ojedokun were not presented to the district court, and both grow out of his interview by the FBI in April 2019. First, Ojedokun asserts that the FBI agents violated the Fourth Amendment when they entered his home in Chicago and that the district court’s admission of the resultant evidence was accordingly reversible plain error.

Second, Ojedokun alleges his trial counsel rendered constitutionally ineffective assistance as defined by the Sixth Amendment by failing to move to suppress the FBI’s evidence on the aforementioned Fourth Amendment grounds. The court concludes that Ojedokun’s Fourth Amendment claim lacks merit and decline to reach the ineffective assistance claim raised for the first time on direct appeal.

Affirmed.

United States v. Ojedokun (Lawyers Weekly No. 001-180-21, 41 pp.) (Robert Bruce King, J.) Case No. 21-4127. Oct. 26, 2021. From D. Md. at Greenbelt (Paul W. Grimm, J.) Brent Evan Newton for Appellant.

John Michael Pellettieri for Appellee.

4TH U.S. CIRCUIT COURT OF APPEALS, UNPUBLISHED

Civil Practice Discovery – Insurance – Bad Faith Denial – Attorney-Client Privilege – Damages The plaintiff-insureds’ only basis for claiming the defendant-insurer waived its attorney-client privilege is the fact that the insurer denied bad faith in its answer. A denial of bad faith and/or an assertion of good faith in an answer does not, standing alone, place a privileged communication “at issue” in a case such that the attorney-client privilege is waived.

We affirm summary judgment for the insurer.

The insureds are dissolved corporations against which a confession of judgment was entered. The insureds and their assignee fail to articulate how the confession of judgment, which the insureds will never be liable for, could factually or legally constitute consequential damages sustained by the insureds. Therefore, the insurer was entitled to summary judgment on plaintiffs’ claim of bad faith refusal to defend or indemnify.

ContraVest, Inc. v. Mt. Hawley Insurance Co. (Per curiam) Case No. 20-1915. Oct. 13, 2021. From D.S.C. at Beaufort (David Norton, J.) Gregory Milam Alford and Jesse Allen Kirchner for appellants; Charles Mitchell Brown, Robert Lyles and Thomas Hydrick for appellee.

Tort/Negligence PIPA Claim – Personal Identifying Information – No External Transfer – FTCA – No Hacks On a matter of first impression, we agree with the district court that South Carolina’s Prescription Information Privacy Act (PIPA) applies only to external transfers of customer data and does not prohibit the defendant-pharmacy’s transfers of customer data between its own corporate divisions.

16 / OPINION DIGESTS We affirm the district court’s dismissal of the plaintiff-customers’ claims.

Plaintiffs allege that the transfer of their personal identifying information (PII) from the Walgreens pharmacy filling their prescription to separate, internal company databases violates their rights under various federal and state statutes and state tort claims.

We disagree.

PIPA

The PIPA does not define what it means to “transfer,” “receive,” or “[disclose]” protected information, nor does South Carolina have any case law interpreting the PIPA. Although the statute does not expressly modify the word “transfer,” that term’s plain meaning supports this narrow construction. The Webster’s Third New International Dictionary defines the verb “transfer” as “to carry or take from one person or place to another”; “to move or send to a different location esp. for business, vocational, or military purposes”; “to cause to pass from one person or thing to another”; “to make over or negotiate the possession or control over.” Naturally read, then, the PIPA’s prohibition on “transfer[s]” is only implicated when a patient’s PII leaves the custody of the corporate entity originally entitled to possess it (a “person”) to a different legal entity or natural person.

There is no textual basis for interpreting “transfer” and “receipt” to apply to movements of data between parts of a single legal entity. To adopt that construction would mean that a pharmacy would violate the PIPA any time it moved data outside of the four walls of the pharmacy, including basic

functions such as transmitting information for legal, administrative, or IT services that do not occur within the four walls of the pharmacy. We affirm the district court’s dismissal of this claim.

FTCA

The Federal Trade Commission Act does not explicitly provide for a private right of action. And the FTCA’s authorization of the Federal Trade Commission to enforce its provisions indicates Congress’s intent against creating an implied right of action. Though we have not yet addressed this issue, other circuits have uniformly found the FTCA does not contain an implied private right of action. We think this conclusion is correct and forecloses plaintiffs’ claim.

But even assuming the FTCA does contain an implied private right of action, the district court properly determined plaintiffs failed to assert a violation. The complaint highlights Walgreens’ purported failure to “maintain the security and privacy of” patient’s PII, which they contend resulted “in the unauthorized transfer, receipt, and/or use, disclosure, or dissemination” of that PII. Yet the only factual basis for this alleged violation is Walgreens’ internal transfer of information within various in-house electronic databases to be accessed

by Walgreens employees for purposes of processing a patient’s health care information for a billing determination. There are no allegations of any attempt—much less a successful endeavor—by an unauthorized thirdparty to access plaintiffs’ PII. Plaintiffs have thus failed to state a claim under the FTCA, even assuming one exists.

S O U T H C A R O L I N A L A W Y E R S W E E K LY I N ove m be r 8, 2021

Other Issues

Though plaintiffs allege that their PII is accessible by the 160 non-pharmacist employees in Walgreen’s 340B Complete division, there is no assertion that Walgreens has publicized that information to the public at large. The alleged internal corporate disclosures are not “public” broadcasts, as the PII is only accessed by those employees for private, business purposes. Therefore, plaintiffs failed to state a claim for invasion of privacy under South Carolina law.

The Supreme Court of South Carolina has squarely held that the Pharmacy Practice Act only “regulate[s] the licensing and practice of pharmacists; ... [its] provisions do not set forth, explicitly or implicitly, a duty of confidentiality.” Evans v. Rite Aid Corp., 478 S.E.2d 846 (S.C. 1996).

Thus, plaintiffs’ claim that the PPA imposes a duty of care to “maintain the confidentiality of [plaintiffs’] PII” is foreclosed.

There are no allegations that unauthorized persons obtained access to plaintiffs’ PII, and plaintiffs have cited no authority to plausibly establish that a non-pharmacist Walgreens employee’s access to that data to determine if a transaction qualifies for a government program is “unauthorized.”

Recently, we joined our sister circuits in holding that the Health Insurance Portability and Accountability Act does not create a private right of action. Payne v. Taslimi, 998 F.3d 648 (4th Cir. 2021). Therefore, the district court properly dismissed plaintiffs’ negligence per se claim based on an alleged HIPAA violation.

Affirmed.

J.R. v. Walgreens Boots Alliance, Inc. (Per curiam) Case No. 20-1767. Oct. 19, 2021. From D.S.C. at Charleston (David Norton, J.) Michael Moore, Charles Byrd, Aimee Hall and William Nettles for appellants; Robert Hochman, David Dukes, Amanda Kitts, Adam Hegler, Scott Stein, Matthew Bergs and Ross Kloeber for appellees. 20 pp.

Civil Rights Search & Seizure – Criminal Law Violations – Reasonable Suspicion Plaintiff asserts that defendants violated 18 U.S.C. §§ 241 and 242; however, §§ 241 and 242 are federal criminal statutes, and plaintiff has not shown that these statutes give rise to civil liability or authorize a private right of action.

We affirm summary judgment for defendants.

Where defendants Pelfrey and Labrecque received reliable and credible information that plaintiff was taking pictures of children and had reported that he was a pedophile, and where plaintiff was observed possessing a camera and refused to explain what he was photographing, these defendants had a reasonable suspicion that plaintiff was in possession of child pornography or was grooming children in preparation for child trafficking or abduction.

Capps v. Long (Per curiam) Case No. 20-6789. Oct. 18, 2021. From D.S.C. at Anderson (Donald C. Coggins Jr., J.) Michael Capps, pro se; Stacey Todd Coffee and James William Logan for appellees. 7 pp.

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