South Carolina Lawyers Weekly December 6, 2021

SCLAWYERSWEEKLY.COM Part of the

VOLUME 19 NUMBER 25 ■

network

DECEMBER 6, 2021 ■ $8.50

Insurer to pay $1.5M after missing Tyger River deadline

FIGHTING

FOR A SECOND CHANCE

■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com

■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com

An at-fault driver’s insurance company will pay $1.5 million to a man who was injured in a car crash, after the insurer failed to meet a five-day deadline to reply to the plaintiff’s demand for a settlement for the driver’s full policy limits.

Justin Bamberg of Bamberg represented the plaintiff, who was driving home when the defendant crossed into the plaintiff’s lane and struck his vehicle head-on, leaving the Justin plaintiff entrapped Bamberg in the vehicle with a broken femur.

Pursuant to a confidentiality agreement, many of the details of the case were withheld, including the identities of the parties and the insurer and its attorneys.

Bamberg said that the defendant’s insurer accepted liability and informed him of the available limits of $25,000 per person, $50,000 per accident, and $25,000 in property damage limits, the minimum coverage allowed under state law. Bamberg said that the claims adjuster contended that the case wasn’t an aggravated liability claim, which must include not only negligence, but recklessness.

“We knew we had to be aggressive, focus on our own documentation, and prepare for an insurer bad-faith or negligence case because the liability limits were insufficient for our client’s injuries,” Bamberg said, adding that on a Thursday afternoon, he overnighted a five-day Tyger River de-

A South Carolina man who was convicted of a violent crime under South Carolina’s stringent “hand of one, hand of all” accomplice liability law spent 37 years in prison before being set free by a parole board that believed he was fit to rejoin society.

The man will be under state supervision until his dying day, but will die free because he and his attorney, Tommy Thomas of Columbia, convinced seven governor-appointed men and women that his future will be different than his past.

“He was a young kid who got himself into serious trouble,” said Thomas, one of the few South Carolina attorneys who exclusively handles parole and pardon petitions. “Today, he is a hard worker and doing exceptionally well … he calls us just to tell us how he’s doing.”

Rarely does the slam of a gavel or the clanking of prison doors signal the end of a convicted person’s fight for freedom. Beyond appeals and post-conviction relief petitions, for many, lie opportunities to plead before the South Carolina Department of Probation, Parole, and Pardon Services (SCDPPPS) that they deserve a second—or subsequent— chance at liberty.

Counsel isn’t required or provided at parole hearings.

But when lawyers become involved, they begin their own investigations and develop an individualized parole plan to address issues that the board might find problematic: Does the inmate have family support and a place to live?

Does he have a concrete plan for the future? How likely is she to reoffend?

Advocates with different angle

Where a trial judge or jury sits to determine guilt or innocence, the parole board considers those who stand before it guilty as charged. An inmate’s counsel can offer mitigating factors and explanations regarding the circumstances surrounding the crime, but the lion’s share of its effort is spent crafting a persuasive argument of rehabilitation for a board that is more interested in a potential parolee’s future behavior than their past behavior.

See Second chance Page 6 ►

See Deadline Page 3 ►

Jury awards over $3M after gas station sells alcohol to minor ■ BY DAVID BAUGHER A South Carolina gas station has been found liable as part of a more than $3 million award stemming from a drunk driving crash after staff allegedly failed to check identification of an underage alcohol purchaser.

David Yarborough, Reynolds Blankenship, and David Lail of Yarborough Applegate in Charleston represented Damien Cooper, who filed suit after a 2017 collision left him with extensive injuries including a

broken femur, two broken knees, a fractured wrist, a punctured lung and post-concussive syndrome issues.

“We knew there was a drunk driver involved on the other side, and we knew that he was underage, so obviously we set out to find out where the alcohol came from,” Yarborough said.

Sunoco LP and Sunoco Retail LLC were named in the suit, which alleged that the drinks were bought at See Alcohol to minor Page 3 ►

David Yarborough

Reynolds Blankenship

David Lail

INSIDE VERDICTS & SETTLEMENTS

LAW

SURVEY RESULTS

$925K settlement for slip-and-fall at body shop

When does alternative dispute resolution make sense?

Law firm resiliency increased during the remote work transition

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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 D e c e m be r 6, 2021

NEWS BRIEFS Chief Justice tells magistrates they need to work 40 hours COLUMBIA (AP) — South Carolina’s top judge is telling full-time magistrates they must work 40-hour weeks or face discipline.

Chief Justice Donald Beatty issued an order earlier this month saying it had been brought to his attention that some magistrates are working less than 40-hour weeks despite having a full-time job and the pay to go along with it.

The backlog of more than 270,000 pending cases in magistrates court statewide will be impossible to handle without the judges putting in their full time, Beatty wrote in his Nov. 8 order.

Deliberately working fewer hours than assigned breaks several rules for judges, and Beatty said he will seek disciplinary action against magistrates who continue to not work their assigned time.

Beatty did not single out any magistrates or say who made the complaints.

Magistrate courts are the lowest level of South Carolina’s court system, handling plenty of misdemeanor crimes and small civil matters.

New indictments: Alex Murdaugh stole almost $5 million COLUMBIA (AP) — South Carolina attorney Alex Murdaugh has been indicted on 27 additional charges, with prosecutors saying he stole nearly $5 million in settlement money he had obtained for his dead housekeeper, an injured state trooper and other people and fees meant for his law firm.

There are still no charges in the shooting deaths of Murdaugh’s wife, Maggie, and son, Paul, in June which began what has led to six investigations into Murdaugh, his family and his finances. These state investigations are ongoing.

Murdaugh, 53, remains in jail without bond after two previous arrests—a stunning fall for a lawyer whose father, grandfather and great-grandfather were elected prosecutors in tiny Hampton County and whose family founded and grew a private law firm that takes up an entire block in the county of 20,000 people.

This latest indictment by the state grand jury says Murdaugh stole more than $4.8 million over the past five years. About $3.5 million was meant as insurance settlements for the sons of Murdaugh’s housekeeper, whose death in 2019 was attributed to a fall at his home.

He already faced additional charges in that case.

Prosecutors also allege that

Murdaugh was trying to hide money from lawyers who sued him and his family over the death of a teenager killed when authorities said Paul Murdaugh was driving intoxicated and wrecked his father’s boat.

“We are not surprised by these new charges relating to Alex’s handling of client funds and law firm fees. We have made it clear that Alex regrets that his actions have diverted attention from solving the murders of his wife, Maggie, and son, Paul,” Murdaugh spokesperson Amanda Loveday said in a statement.

The 27 counts include seven of money laundering; four of breach of trust; seven of obtaining signature or property by false pretenses; eight of computer crimes; and one of forgery.

The new charges were laid out in five indictments, describing five separate schemes in five counties where Murdaugh’s firm operated. Some are several years old and some took place in the months before his wife and son were killed. All 27 counts are felonies and if convicted of all the charges in just one of the plots, he would face more than 100 years in prison, prosecutors said.

All the charges involve a fraudulent bank account Murdaugh created with a name similar to a company that handles legal settlements, investigators said.

Murdaugh used the money to pay bank overdraft fees, credit card payments, checks written to friends and family and other items, the indictments say.

Murdaugh stole a $125,000 settlement from a state trooper injured on duty and about $450,000 from two other clients who hired them to handle their personal injury cases, indictments say.

Another indictment said Murdaugh had a fellow lawyer write checks for $792,000 in fees directly to him, instead of his PMPED Law Firm, saying the firm gave its blessing for the arrangement and “because of possible civil liability in a case involving a boat crash in which a young woman died.”

When the firm started asking questions, Murdaugh only paid them $600,000, leaving the other lawyer to make up the remaining $192,000, prosecutors said.

Murdaugh was fired from his law firm in September, one day before investigators said he tried to have himself killed so his surviving son could get a $10 million life insurance policy. The bullet only grazed his head. Murdaugh has been charged with conspiracy and a false insurance claim in that case.

The PMPED Law Firm has said Murdaugh stole millions of dollars.

State investigators are looking into these allegations, but no charges have been filed.

The state Supreme Court suspended Murdaugh’s law license after his initial arrest.

The majority of the stolen money listed in the indictments involves the family of the Murdaugh family’s maid, Gloria Satterfield.

Murdaugh arranged nearly $3.5 million in insurance settlements with Satterfield’s sons after convincing them to use a banker and an estate attorney without telling them the men were his longtime friends, according to a lawsuit filed against Murdaugh by Satterfield’s family.

The sons said they received none of that money.

Lawyers for Murdaugh have asked a judge to throw out or postpone the sons’ lawsuit because they have already received more than $6 million in legal settlements from Murdaugh’s law firm and insurers of the attorney and bank, well more than the amount the sons were supposed to get.

Murdaugh’s attorneys said the criminal case over the Satterfield settlements involves the same allegations, making the civil suit unnecessary.

Lawyers for Satterfield’s family called that filing absurd and promised to fight. They also said the 27 new charges are “welcome, long overdue and were appropriately brought.”

“While justice can appear at times to move slowly, when the dam breaks, justice flows like a mighty river — and in this case a mighty river is needed to cleanse all that has occurred,” attorneys Eric Bland and Ronnie Richter said in a statement.

Black man stomped

by Orangeburg officer gets $650K COLUMBIA (AP) — A South Carolina city is paying $650,000 to a Black man who was stomped in the head by a white police officer upset that the man could not quickly lie flat on his stomach because of rods and pins in his leg.

Orangeburg officials also have apologized to Clarence Gailyard and are reviewing the police department’s use of force policies, City Administrator Sidney Evering said in a statement released by Gailyard’s lawyer Justin Bamberg. The city’s insurance will cover the payment.

Gailyard was walking with a stick wrapped in shiny tape on July 26 when someone mistook the reflective object for a gun and called 911, investigators said.

Orangeburg Public Safety Officer David Lance Dukes ordered Gailyard to the ground and when the 58-year-old didn’t immediately drop, the officer stomped on his head and neck, causing his forehead to hit the concrete of the parking lot, according to police body camera video.

Gailyard said he moved slowly and often walks with a cane because of pins and rods in his leg from being hit by a vehicle while riding a bicycle. He also said he was carrying the stick to protect himself from potential dog attacks.

The city’s statement said most officers do their difficult jobs well—a second officer tried to calm the situation and told a supervisor who came to the scene later that Dukes lied about his actions—but swift, fair action must be taken when officers do wrong.

“When an officer falls short of these expectations and conducts themselves in ways unbecoming to their department and the City, that officer must and will be held accountable,” Evering said.

Dukes, 38, was fired two days after the incident and charged with felony first-degree assault and battery a few days after that. His lawyer has said the former officer is fully cooperating with state police in what he called a difficult and unfor-

tunate situation.

Gailyard’s lawyer said he appreciated how quickly Orangeburg worked to both help Gailyard and change the culture of a police department which had seen three years of increasing use-of-force case where 75 percent of the 13,000 residents are Black.

The police chief retired shortly after the incident and the department’s interim chief is reviewing use of force rules. The force is also creating a group of citizens to oversee how officers treat people, the city said.

“I’ve handled numerous cases involving police violence previously and rarely have I seen a city swiftly accept responsibility and also work to ensure that this never happens to another person,” Bamberg said.

Gailyard is happy to put what happened behind him, Bamberg said.

Gailyard spoke to reporters a few weeks after he was hurt.

“Every time I look in the mirror, I see the scar on my forehead, and it’s not OK. The only thing I want the community to do is change,” Gailyard said.

S.C. Senate starts Dec. 6 special session COLUMBIA (AP) — The South Carolina Senate is returning to the Statehouse for a special session where lawmakers are expected to address redistricting.

Senate President Harvey Peeler said senators will meet Dec. 6 at 1 p.m.

The House will also return in early December, with House Speaker Jay Lucas announcing that the primary focus will be on approving the new state House, state Senate, and U.S. House districts based on 2020 U.S. Census data.

The December session would leave three months for legal challenges about the new maps to be resolved before filing for the new districts in the 2022 elections starts in March.

The Legislature set aside only a few issues that can be taken up in the special session without a twothirds vote.

They include redistricting, as well as spending billions of dollars in federal pandemic funds and from a settlement with the federal government over radioactive material stored past a deadline at the Savannah River See 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 Decem ber 6, 2021

$925K settlement for slip-and-fall at body shop ■ BY DAVID BAUGHER A woman who slipped while making a delivery has negotiated a $925,000 settlement with a body shop as compensation for her back injuries, her attorney reports.

Trip Riesen of Riesen DuRant in Mount Pleasant said that his client fell on a “grease-like substance” evidently spilled by a customer and covered with a paper towel by the shop’s employees. She sustained annular tears necessitating physical therapy and lumbar injections as well as a discectomy and fusion.

The names of both the plaintiff Trip Riesen and the defendant remain confi-

dential under the terms of the settlement.

Riesen said that the plaintiff, who was in her 60s, was unable to return to work due to her injuries, and that the defendants launched a comparative negligence argument that the hazard was open and obvious.

“Because the plaintiff had been in this store making deliveries previously, it was not uncommon for her to experience substances on the floor, especially slippery substances found in and around body shops,” Riesen said.

He also said that his client already had a previous workers’ compensation claim and a 5-pound lifting restriction, both related to her lower back.

“We were able to successfully show through several doctor’s depositions that the plaintiff’s fall resulted in an aggravation of a pre-existing condition

SETTLEMENT REPORT – PREMISES LIABILITY

Amount: $925,000 Injuries alleged: Annular tears at L4-5 and L5-S1 resulting in anterior discectomy and fusion Case name: Confidential Venue: Confidential Attorney for plaintiff: Trip Riesen of Riesen DuRant in Mount Pleasant Attorneys for defendant: Confidential necessitating the need for surgery,” he said, and discogram testing and “severe radicular symptoms” established the extent of injury.

DEADLINE /

ALCOHOL TO MINOR /

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mand—including $22,000 in medical bills—for the policy limits.

Bamberg said that after the deadline expired at 5 p.m. the following Tuesday, the claims adjuster called and sent a letter acknowledging the missed deadline, claiming that the demand didn’t enter the claims file until after close of business. Bamberg said that this was untrue and that the adjuster was hoping to have the deadline tolled by making the plaintiff “fall into the proverbial bad-faith, ‘what is reasonable’ trap” since the deadline had expired just hours before.

Because just two of the five days were business days (the Monday was a federal holiday), Bamberg said that correspondence and conversations over the following 24 hours would be crucial regarding his ability to make the Tyger River demand hold up in court given the recent opinion in Columbia Insurance Company v. Reynolds.

In June, the 4th U.S. Circuit Court of Appeals held in Reynolds that no reasonable jury could find that the insurer refused to settle unreasonably and in bad faith by failing to accept the 10-day demand by plaintiffs’ counsel at the outset of a case, depriving the insurer of the right to conduct a reasonable investigation.

In South Carolina, there is no bright-line rule for time-limit demands or mandatory period in which insurers must respond, but insurers have a duty to settle a personal injury claim if it is the reasonable thing to do. If an insurer refuses to settle within policy limits, it will be liable for the entire amount of the judgment, even if the amount exceeds policy limits.

Bamberg said that when he declined to accept the liability limits, the claims adjuster became angry and hurled insults.

“All I could do was wonder what would make him so angry to the point of personal insults over an insurance claim, Bamberg said. “I knew there had to be more to the adjustment on this claim than he was letting on.”

Bamberg said that the claims supervisor declined his offer to negotiate and sent a liability limits check to Bamberg’s office. Within an hour, Bamberg said, the check was being returned to sender, along with a lawsuit filed against the at-fault driver.

Bamberg extended a two-week opportunity for the insurer to settle before serving the defendant.

Bamberg said that the insurer had only five days to tender the policy limits, but it had known for two months that the reasonable thing to do was to immediately offer the limits to the plaintiff rather than sitting idly by.

“It could have offered these insufficient limits two months before when the supervisor himself determined our claim was valued in excess of the policy,” Bamberg said.

The day before the new deadline expired, the insurer accepted the settlement bracket proposed by the plaintiff and suggested mediation, Bamberg said. He added that he settled the case “rather than dying on the sword of a five-day Tyger River demand sent on a holiday weekend,” should an unfavorable court opinion be written while the case was pending.

“While I believed everything would hold up in court, at the very end of the day, as we say in our neck of the woods, the pigs get fed and hogs slaughtered,” Bamberg said. “We turned a $25,000 liability policy into a $1.5M umbrella policy in just a few months.”

one of its locations.

Yarborough said the defense made a variety of arguments in the matter, including attempting to undercut testimony from the purchaser about whether he had obtained the beverages from the store at all.

“They tried to take away from the credibility of the boys by suggesting that there was no evidence of the sale, but at the same time they allowed for the possibility that it did occur,” he said.

Yarborough said that Sunoco contended that no receipt was found to prove the purchase happened and that security video footage from the time in question had already been automatically recorded over.

Yarborough said the defendants also argued that the buyer had previously used a fake ID at the location, although he testified that he hadn’t done so in this instance. Complicating matters further, the purchaser of the alcohol wasn’t the at-fault driver.

“I think that was one of the sticking points for Sunoco in disputing liability in the case was that they didn’t believe that the law in South Carolina provided for a cause of action against a store when they sold it to one minor and he shared it with another minor,” Yarborough said.

Yarborough argued that the defendant was still liable and that the company’s own training materials noted the possibility of minors sharing alcohol after its illegal acquisition and its policy was to card anyone who appeared to be below the age of 30.

There was also dispute over the extent of injury in the case, with the defense arguing that Cooper had made a good recovery and had resumed work.

“Our position was that he may be back at work now making more than before, but over the course of his lifetime, he won’t be able to have a full work life,” Yarborough said. “We argued that he had a loss of earning capacity as opposed to lost wages.”

Yarborough said that Jackson Watts, the at-fault driver, was named in the suit but acknowledged liability in the crash and testified about the purchase. On Nov. 4, Jurors awarded $3.064 million in actual damages for which Sunoco and Watts jointly and severally liable, including $715,000 in past and future medical expenses and $224,000 in lost earning capacity. The jury also found Watts liable for $100,000 in punitive damages.

“We were very grateful that the jury was able to see through the defenses and that they came back with a full measure of justice for Damien Cooper,” Yarborough said.

Ryan Holt and Mark Barrow of Sweeny Wingate & Barrow represented Sunoco and Robert Kneece III of Turner Padget represented Watts. None of the attorneys returned messages requesting comment.

“While I believed everything would hold up in court, at the very end of the day, as we say in our neck of the woods, the pigs get fed and hogs slaughtered.”

Justin Bamberg of Bamberg Legal in Bamberg

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $1.5 million Injuries alleged: Broken femur Case name: Withheld Court: Withheld Mediator: Doyet Early III of Mount Pleasant Date of settlement: Nov. 2 Insurance carrier: Withheld Attorney for plaintiff: Justin Bamberg of Bamberg Legal in Bamberg Attorneys for defendant: Withheld

VERDICT REPORT – DRAM SHOP

Amount: $3.164 million Injuries alleged: Orthopedic injuries including a broken femur, two broken knees, a broken wrist, a chipped cervical bone, post-concussive syndrome, torn ACL, and torn PCL Case name: Damien Cooper v. Jackson Watts; Sunoco LP; Sunoco Retail, LLC Court: Charleston County Circuit Court Case No.: 2017-CP-10-6307 Judge: Jennifer McCoy Date of verdict: Nov. 4 Highest offer: $1 million Special damages: $715,000 in past and future medical expenses, $224,000 in lost earning capacity, $100,000 in punitive damages Attorneys for plaintiff: David Yarborough, Reynolds Blankenship, and David Lail of Yarborough Applegate in Charleston Attorneys for defendants: Ryan Holt and Mark Barrow of Sweeny Wingate & Barrow of Columbia for Sunoco and Robert Kneece III of Turner Padget in Charleston for driver

4 / 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 D e c e m be r 6, 2021

When does alternative dispute resolution make sense?

■ BY MICHAEL BRIER BridgeTower Media Newswires Not infrequently, businesses find themselves enmeshed in disputes that cannot be resolved through informal negotiation. Those disputes can always be litigated in the courts, but the path to resolution is often timeconsuming and expensive.

In recent decades, the burdensome nature of litigation has led many businesses and their in-house counsel to consider alternative dispute resolution as a way to avoid the court system.

But what exactly is ADR? Many business owners (and maybe even some in-house counsel who come from a transactional background) do not have a clear answer to that question.

Far more will wonder if ADR makes sense for them in a given situation.

Types of ADR

ADR is a general term that encompasses any means of settling a dispute through the assistance of an outside neutral. Of these, by far the most important are mediation and

arbitration. (Other types of ADR, like engaging a panel to issue a non-binding verdict following a “mini trial,” are much less common).

In mediation, the parties engage a mediator to help broker a settlement at some point in the litigation process.

In arbitration, the parties engage an arbitrator who hears the evidence and then acts as judge and jury, eventually issuing a binding judgment.

Thus, while mediation and arbitration both involve the assistance of a third-party neutral, they are fundamentally different from one another.

So the question of why use ADR is really the two distinct questions of why mediate and why arbitrate.

Why mediate?

Every litigant sees a case from his or her own perspective. Good counsel aim to be more objective, but they are not immune from the natural human inclination to see the case from the prospective of their clients. Nor are lawyers as a rule especially effective at communicating the weakness of a case to their clients: after all, clients like to hear good news, and the law-

yers work for them.

Mediation seeks to ameliorate these problems by having a neutral lawyer read a summary of the evidence from both sides and sometimes hear oral statements from the parties.

Then the two sides move to separate breakout rooms, and the mediator shuttles between them in an effort to broker the settlement.

Good mediators don’t just convey settlement offers — anyone can do that. Rather, they help to encourage settlement by speaking frankly to each side about the strengths and weaknesses of the case, the amount of a possible recovery, and the costs of further litigation. At the end of the process, both parties hopefully walk out of the mediation with a signed settlement that they may not be happy about but can live with.

At its best, mediation can help parties reach a settlement that they would have trouble negotiating on their own. Why then shouldn’t parties mediate every case as soon as a dispute arises? After all, whether you See ADR Page 5 ►

Survey results: Law firm resiliency increased during the remote work transition ■ BY NICOLE BLACK BridgeTower Media Newswires The pandemic and its effects have dramatically affected the legal industry and will undoubtedly continue to have a long-term impact on how legal work is conducted in the years to come. For lawyers, it hasn’t always been easy navigating the practice of law during a worldwide pandemic.

Nevertheless, they’ve adopted new technologies into their firms at rates never before seen, and are increasingly relying on technology to ensure newfound business resiliency, productivity and profitability.

While it’s unclear how many of these changes will persist post-pandemic, a new report released earlier this week offers evidence that the legal industry has changed for good and the pandemic’s effects will undoubtedly have a long-lasting impact on the practice of law.

The Legal Industry Report 2021: Lessons Learned from the Pandemic, was published by MyCase. (Online: https://info.mycase.com/industry).

The report is based on the results of a survey of over 2,000 legal professionals that was conducted in August and September of this year. (Note: I am the Legal Technology Evangelist for MyCase).

The report provides in-depth insight into how the pandemic impacted law firms, the steps lawyers took to continue to grow their firms during this unprecedented time, and how those tactical decisions helped build the foundation for long-term sustainability. Some of the most interesting survey results focused on how the technology choices that lawyers made during the pandemic helped to keep their law firms afloat despite the many challenges presented by pandemic-related uncertainty.

From the shift to remote work and

choosing new technology to implement and using legal software, law firms were able to adapt and thrive during this challenging time. And most notably, the technology choices they made allowed them to continue to provide their clients with the best possible service even when working remotely.

For example, survey respondents were asked about their firms’ use of remote working software. Nearly half (46%) reported that their firms invested in remote working software as a direct result of the pandemic. And, according to the survey results, the most popular remote-working tools firms used due to the pandemic were video conferencing tools (32%), e-signature (22%), law practice management software (14%), time and billing software (13%), and communication software (16%).

Cloud computing software usage was also addressed. The results indicated that the vast majority of lawyers now use cloud computing software. Before the pandemic, 76% of law firms used cloud-based computing, and that percentage has now increased to 88%. The types of cloudbased software that law firms adopted due to the pandemic included law practice management software (23%), document management software (13%), calendar management software (12%), and credit card online payment tools (12%).

Notably, for the vast majority of respondents, their firms’ investment in cloud-based remote working software has been beneficial. About 73% reported that the remote working tools had increased productivity, and 80% reported that remote working tools were part of their firm’s long-term business continuity strategy.

Law firms invested in several different types of software to enable remote work during the past two years.

For example, during the pandemic,

getting paid was challenging for many firms due to social distancing requirements. As a result, the adoption of touch-less payment processes was necessary to keep firms profitable during the pandemic. For that reason, it’s not surprising that the vast majority of respondents (77%) reported that their firms now use online payment processing tools to accept credit card payments from clients.

The good news is that the majority of survey respondents reported that this transition to online payments increased profit or revenue stability for their firms. According to the survey results, 60% of law firms’ revenue stayed the same or increased in 2020.

E-signature tools were another time-saving remote-working tool that law firms increasingly relied on during the pandemic. Because social distancing requirements prevented inperson meetings, e-signature software was the best option for obtaining the necessary signatures on documents.

For that reason, it’s no surprise that the survey results showed that the overwhelming majority of respondents (79%) reported that their firms used e-signature tools. Of those firms, 67% saved time as a result, and 28% saved six or more hours each month.

The bottom line: remote working technology is here to stay. The pandemic pushed many law firms to acquire and implement technology that enables remote working. This technology investment not only bridged the remote working gap, but also increased the productivity and profitability of many firms, and laid the groundwork for long-term business resiliency. So no matter what happens in the future, those law firms will be prepared.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase legal practice management software.

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

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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 Decem ber 6, 2021

ADR / Good advice can sort out pros and cons of arbitration C o nt inu e d f r o m 4 ►

are the plaintiff or the defendant, you can save a lot of time and money by settling right away instead of on the courthouse steps (or while the jury is out)! Sometimes courts even compel mediation in an effort to get the parties to settle.

The first reason is lack of information. When a dispute comes up, each party typically doesn’t know much about the other party’s case. (Sometimes, they don’t even know much about their own case). The strengths and weaknesses of each will become apparent only through the discovery process of document productions, interrogatory answers and depositions.

By the same token, lawyers will often not have a full picture of the other side’s legal arguments until summary judgment.

In many instances, in-house counsel would be wise to skip the arbitration provision in their contracts or put off mediation, at least for the time being. This can make it hard to mediate early, despite the obvious advantages of settlement before costs begin to pile up. Parties are essentially being asked to settle “blind,” which can be quite risky as either a plaintiff or a defendant.

Moreover, the mediator has less ammunition to try to move parties away from their entrenched positions, making the mediation more likely to fail (and potentially making settlement harder later on).

Mediations after significant discovery (or the denial of a motion for summary judgment) tend to have a better shot at success.

The second reason mediation may not make sense is that — even after discovery — the sides are just too far apart to reasonably expect mediation to be successful. Sometimes it is entirely rational for the parties to be

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The list of items did not include COVID-19 vaccine or mask mandates.

The General Assembly returns in January for the second year of its regular session.

Lawsuit accuses doctors of taking data to rival hospital CHARLESTON (AP) — A group of cancer doctors at the Medical University of South Carolina took confidential information to a competitor in an effort to establish a new treatment facility, according to a recently filed lawsuit.

MUSC filed the lawsuit in state court on Nov. 29 against six of its departing doctors and HCA Healthcare, which owns North Charlestonbased Trident Medical Center.

Charleston-based MUSC wants a judge to halt what it termed the “wholesale departure of physicians, nurses, technicians, staff and fellows” from the hospital’s head and neck oncology division to Trident’s new facility in an effort to impede MUSC’s ability to compete, news outlets reported.

The doctors sought information including case logs, patient lists and

far apart. For example, the case may turn on a novel legal issue the courts haven’t addressed before. Or the evidence may be too finely balanced to predict how a jury is going to view it.

In such instances, it can be a hard sell to convince either party to settle for half a loaf and call it a day.

Arguably just as common is a situation in which one party is so convinced that it is right that it is not willing to compromise, regardless of the evidence. There’s not much the other party can do in such an instance besides go to trial. A mediator isn’t going to be able to bridge the gap where a plaintiff’s demand is for $10 million and the defendant’s offer is for $5,000.

Why arbitrate?

Arbitration generally begins long before a dispute arises, when the parties to a contract agree to a provision by which they agree to submit any conflicts they might have to an arbitrator rather than go to court.

Parties are free to agree to arbitrate after a dispute arises as well, but this is much less common, since once the contours of a dispute become apparent, one party will usually conclude that it is more advantageous to proceed in court. (This is why it is highly unusual for tort litigation to be resolved by arbitrators.)

In either case, arbitration has several possible advantages over traditional litigation.

First, arbitration is confidential: The case documents and trial are not open to the public, as court proceedings are. This is often the biggest attraction of arbitration for businesses that do not want their confidential documents or ex-employees’ allegations of wrongdoing appearing in court documents.

Second, arbitration can be cheaper than litigation, primarily because it usually involves less discovery.

other data that belongs to MUSC in the months leading up to and after they announced their resignations, the medical research university alleged in a complaint.

It would take Trident eight to 10 years to independently develop the “misappropriated confidential and proprietary information” that MUSC has, the latter claimed in court documents.

Trident has denied MUSC’s claims.

“Physicians frequently move their practice locations and affiliations,” the health system said in a written statement to The Post and Courier.

“We are well-positioned to care for head and neck patients and are excited these physicians have chosen to be part of the Trident team. This last-minute lawsuit appears to be an effort to keep patients away from their doctors.”

MUSC says it is in the public interest for a judge to stop the plan because the hospital is a public university hospital and research institution, whereas Trident is private and for-profit.

As Lawyers Weekly went to press, MUSC was seeking a hearing on the preliminary injunction before Dec. 1, the day the six defendant physicians were scheduled stop working at the hospital.

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Whereas in court parties can generally seek production of documents about any matter relevant to the claims at issue, in arbitration the scope of document productions tends to be narrower. Interrogatories are uncommon, and depositions tend to be confined to the parties themselves, rather than to anyone who might know relevant information.

On the other hand, arbitration isn’t guaranteed to be cheaper than traditional litigation: The parties need to pay the arbitrator, which isn’t the case in court, and the summary judgment procedure — which can eliminate or narrow many disputes prior to trial — is disfavored.

Third, arbitrations are decided by a trained lawyer, rather than a jury (although a waiver of jury trial provision in a contract can achieve a similar affect).

Finally, arbitration is usually faster than traditional litigation, often being completed in a year or less rather than the two or three common in court.

What then are the drawbacks that in-house counsel should consider as they are negotiating contracts with business partners and employees?

Arguably, the biggest drawback is that there generally is no appeal from the decision of the arbitrator.

Of course, the winning party loves the lack of appellate rights. But the losing party is out of luck, even if the arbitrator got the law entirely wrong.

This allows the arbitrator to decide cases based on what he or she believes is the “right” result as opposed

to what the law says. This makes arbitration less predictable than traditional litigation.

Also, in-house counsel will need to consider a few drawbacks particular to arbitration agreements with employees and consumers. Under the terms of the Federal Arbitration Act and many state analogues, these agreements are usually enforceable and, as an added bonus, can prohibit class action lawsuits.

However, the law does permit courts to refuse to enforce arbitration agreements that are unconscionable, for example because they require plaintiffs to foot too much of an arbitration bill. As a result, companies often end up being required to pay for the whole cost of arbitrations in which they are the defendant. They also can be drawn into costly and time-consuming side litigation about whether the arbitration provision they crafted is enforceable in the first place.

Conclusion

In sum, ADR can be a useful tool in a variety of situations. But it is not a panacea. In many instances, in-house counsel would be wise to skip the arbitration provision in their contracts or put off mediation, at least for the time being. The key in any instance is having good advice to determine what the best choice is for the business.

Michael Brier is an attorney at Gesmer Updegrove in Boston, where he maintains a diverse litigation practice with a particular emphasis on complex business and employment disputes.

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.

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 D e c e m be r 6, 2021

SECOND CHANCE / 1 in 4 eligible offenders granted parole C o nt inu e d f r o m 1 ►

“What have you been doing since you’ve been incarcerated to prepare yourself for release?” Thomas said.

“What are you going to do when you get out? It has to show a difference between what you’re going to do when you get out versus what you were doing when you got in.”

Though the objective is different, parole lawyers—like trial lawyers— are tasked with presenting the best version of their client to a body that can grant or deny freedom.

The lawyer must help paint a potent picture of a responsible, rehabilitated individual who shouldn’t be defined by a rap sheet and prison file.

Speaking to Lawyers Weekly on the condition of anonymity, a 58-year-old small-business owner from Rock Hill said that he was paroled and later pardoned after serving two years at an Upstate prison for assault and battery and drug possession.

He said that being paroled likely saved his family from breaking up, and that being pardoned improved his sense of self-worth and gave him “the cleanest slate I could have after a bunch of stupid [stuff] I did as a kid.”

“I did get an attorney because I just thought he could tell my story better than I could,” the man said.

“Because of the seriousness of my crime, I didn’t know what my chances of getting out early were.”

According to SCDPPPS statistics,

C o nt inu e d f r o m 5 ►

S.C. 4th Circuit hearing on abortion moved to January COLUMBIA (AP) — Appellate arguments over a lawsuit challenging South Carolina’s abortion law have been pushed into the new year.

Oral arguments in the case had originally been planned for December, but the 4th U.S. Circuit Court of Appeals has rescheduled them for the last week in January, according to an order from the court. Earlier this week, attorneys for the state also requested that the case be heard toward the end of that week, due to a scheduling conflict.

Planned Parenthood is suing South Carolina to over the measure, which was signed into law by Republican Gov. Henry McMaster earlier this year and requires doctors to perform ultrasounds to check for a so-called “fetal heartbeat.” If cardiac activity — which can typically be detected about six weeks into pregnancy — is detected, the abortion can only be performed if the pregnancy was caused by rape or incest, or if the mother’s life is in danger.

Opponents have argued many women do not know they are pregnant at six weeks. And, they argue, with such an early deadline, the law gives women little time to consider whether to have an abortion.

Medical experts say the cardiac activity is not an actual heartbeat but rather an initial flutter of electric activity within cells in an embryo.

They say the heart doesn’t begin to form until the fetus is at least nine weeks old, and they decry efforts to

approximately one in four eligible offenders is granted parole, a privilege unsurprisingly extended more often to non-violent offenders than to violent offenders (though there is some quirkiness to what the state classifies as violent). Either way, attorneys must show that their client—an inmate who is likely strapped with multiple risk factors—is unlikely to recidivate.

Studies show that a large percentage of the prison population is burdened with mental health issues, drug addiction, unstable home environments, and poor employment history. They are often undereducated and have a significant criminal history, so the key is to highlight efforts and plans a client has made to overcome or mitigate the effects of those risks, Thomas said.

Completing rehabilitation programs during incarceration or preenrolling in treatment programs prior to a parole hearing can go a long way in showing the board that an individual is serious about creating a new life and adhering to the social contract.

Thomas dispelled what he calls a myth rampant among the prison population: parole hearings are a mere formality because the board’s decision is predetermined.

“Not true. The board doesn’t have time,” Thomas said. “The presentation is the single most important factor in the parole process. What it has to show is a difference between what you’re going to do when you get out

promote abortion bans by relying on medical inaccuracies.

The 4th Circuit had originally planned to hear the case the week of Dec. 6, the week after the U.S. Supreme Court heard a challenge to Mississippi’s new abortion law. South Carolina’s law has been blocked, pending the outcome of that legal challenge.

Mississippi wants the high court to uphold its ban on most abortions after the 15th week of pregnancy, telling the court it should overrule the landmark Roe v. Wade decision guaranteeing a woman’s right to an abortion, and the 1992 decision in Planned Parenthood v. Casey that prevents states from banning abortion before viability.

South Carolina is among a dozen states awaiting the U.S. Supreme Court’s decision on Texas’ abortion law—the most restrictive in the nation—which bans abortions as early as six weeks and has no exceptions for rape or incest.

Its unique enforcement mechanism also allows anyone—even someone outside Texas—to sue an abortion provider, or anyone else who may have helped someone get an abortion after the limit, and seek financial damages of up to $10,000 per defendant.

In July, 20 mostly Republican-led states went on record in support of South Carolina’s law, arguing that a federal judge was wrong to pause the entire measure instead of just the provision being challenged. Several months later, 20 Democratic attorneys general voiced support for the legal challenge to South Carolina’s law, arguing that the restrictive measure could harm their states by taxing resources if women cross borders to seek care.

and what you were doing when you got in.”

Whatever weight the board lends to the evidence presented, South Carolina’s process is more comprehensive and promising than many, including North Carolina’s curtailed version that precludes parole for anyone imprisoned in the last 27 years.

That state’s General Assembly effectively abolished discretionary parole in 1994 with the state’s Structured Sentencing Act. Now, short video conference reviews by one of four commissioners are offered every other year and only to inmates convicted as juveniles.

“For everyone else, there is nothing,” said Benjamin Finholt, direct of Duke Law School’s Just Sentencing Project. “People in prison do not communicate with the parole commission … at all. “They can send in documents, but they have no idea whether anyone has read them. They get no feedback.”

Benjamin called the modified process—which leads to the parole of a small percentage of those eligible— “terrible.”

Conversely, South Carolina inmates are informed immediately after their hearing whether they have been approved or denied.

Just mercy

Whether an individual in South Carolina is paroled or serves their entire sentence, many choose later to petition the same board for a par-

don that will provide further freedom by relieving them of all legal consequences of their crimes. A pardon restores all civil rights, including the right to hold office, serve on a jury, and possess firearms.

Popular is the saying that a pardon forgives but it doesn’t forget. It does not erase all traces of a criminal past, and convictions remain in the public record. Still, the pardoned can become eligible for more forms of educational opportunities and financial assistance, housing, and employment—all key components in the war against recidivism.

Thomas said that while a pardon is not as advantageous as an expunction, he has seen how beneficial they can be to his clients, many of whom have “hit rock bottom and run out of luck.”

“The work can be very rewarding,” Thomas said. “What we’re able to do is to help them with more than just getting out, we can identify things that are going to benefit them and assist them with trying to get education … employment … inpatient drug programs.”

The Rock Hill business owner agreed, saying that he was able to attain licenses that he wouldn’t have been eligible for but for the grace of the parole and pardon board and a real estate attorney who helped inject a bit of humanity into his plea for mercy.

“It was a blessing,” the man said, “and I really think having a lawyer with me helped.”

OPINION DIGESTS / 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 Decem ber 6, 2021

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8 / 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 D e c e m be r 6, 2021

Opinions S.C. COURT OF APPEALS

8

4TH U.S. CIRCUIT COURT OF APPEALS

S.C. COURT OF APPEALS

Tort/Negligence Breach of Contract with Fraud – Civil Practice – Election of Remedies In this case arising from an employee’s development of a competing business while he was working for the plaintiff-employer and using plaintiff’s money, personnel and other resources, it is possible that the jury used plaintiff’s evidence of different categories of damages to make the jury’s apparently corresponding awards on multiple claims; however, this would be mere speculation. We have no way of knowing that the jury’s award of nearly $1.5 million in damages for breach of contract with a fraudulent act does not encompass the damages the jury awarded for breach of fiduciary duty, misappropriation of trade secrets and breach of contract.

Moreover, it is evident that the damages available for these four claims completely overlap, plaintiff asserted the same facts in support of these claims, and nothing from the jury indicated that it intended the awards to be added together. Consequently, plaintiff was required to elect just one remedy from among the jury’s awards for these four claims.

We reverse the circuit court’s ruling that plaintiff was required to elect only between the breach of contract and trade secret claims.

The circuit court was not required to discount its award of attorneys’ fees to plaintiff simply because some of plaintiff’s causes of action permitted such an award and others did not. Though it could have reduced the award, it was within the court’s discretion to not do so.

In a consolidated case, defendant Clear Touch Interactive, Inc., claimed plaintiff used confidential data it had acquired from Clear Touch while the companies were working together to unfairly compete with Clear Touch after the relationship between the companies fell apart. However, Clear Touch conceded its claims could have been litigated in the primary case.

Furthermore, Clear Touch used the same factual basis—alleged unfair competition by plaintiff—as a defense to plaintiff’s motion for restitution.

Once Clear Touch raised unfair competition, it was obligated to raise all claims related to that unfair competition. The circuit court correctly ruled that Clear Touch’s separate action was barred by res judicata.

Finally, plaintiff argues that the circuit court should have required Clear Touch to pay roughly $5.5 million in restitution. We agree with the circuit court that plaintiff had an adequate remedy at law: it successfully brought claims for trade secret violations, breach of contract with fraud, tortious interference, and others. On many of these claims, plaintiff asked the jury to award Clear Touch’s full

8

value, $5.5 million, in damages. The jury could have done so but declined to do so. We defer to that decision and decline to order equitable relief.

Affirmed in part, reversed in part and remanded.

Encore Technology Group, LLC v. Trask (Lawyers Weekly No. 011-089-21, 15 pp.) (Blake Hewitt, J.) Appealed from Greenville County Circuit Court (Lawton McIntosh, J.) Joseph Owen Smith and Joshua Jennings Hudson for defendants; Gregory Jacobs English and Rita Bolt Barker for plaintiff. S.C. App.

Criminal Practice Meth Trafficking – Statutory Amount – Text Messages – Prior Bad Acts Where defendant was charged with trafficking in methamphetamine based on a specific quantity of meth found in the pocket of a pair of pants in the home defendant shared with others, the trial court should not have admitted into evidence (1) several weeks’ worth of text messages or (2) a police investigator’s interpretation of the slang in those messages, given that this evidence tended to show defendant had dealt in meth in the prior weeks, but it did not tend to show that defendant owned the meth found in the pants pocket.

We reverse defendant’s convictions of trafficking methamphetamine and possession of a weapon during the commission of a violent crime. We remand for a new trial on these charges.

We affirm defendant’s convictions of possession of a handgun by a person convicted of a crime of violence and possession of a handgun with the serial number obliterated.

The state did not proffer Investigator King as an expert, but the circuit court allowed King to testify about the meaning of slang used in defendant’s text messages.

King was not closely involved in the investigation until after defendant was arrested. While he extracted text messages from the cell phone after the fact, he was not personally involved in the surveillance of defendant’s home and appears to have had no other role in the investigation before then. Instead, he interpreted the messages based on his general druginvestigation experience alone. This was textbook expert testimony and should not have been admitted unless the court first qualified King as an expert.

We agree with defendant’s argument that the text messages were used by the state as improper character evidence to show defendant was attempting to traffic the drugs in the current case because he had a general propensity to traffic drugs.

Defendant was charged with trafficking because he was allegedly in possession of a large enough quantity of the drugs to constitute trafficking.

Therefore, whether defendant was regularly involved in the sale or distribution of drugs was not crucial to the state’s case. Even if defendant

were just a user, if he had the requisite quantity of drugs, he could be found guilty of trafficking. For that reason, the defense’s argument that defendant was not actively involved in the distribution of methamphetamine did not by itself open the door for the state to introduce the contested evidence if it would otherwise be improper.

The state asserts that the text messages prove the defendant’s identity as the owner of methamphetamine.

However, nowhere does the state cite any specific facts or evidence offered at trial that illustrate how the text messages—even if they do prove a drug trafficking scheme—connect defendant to the specific drugs at issue.

Indeed, an argument that defendant owned these drugs because defendant is a drug dealer is a definitional example of propensity evidence. The inference that the state clearly wanted jurors to draw was that because some of the text messages indicated defendant was dealing drugs earlier—sometimes weeks before the incident at issue—then he must have owned the drugs found on January 25, 2017.

The state could use any text messages that showed or tended to show that defendant was in possession of the drugs that were at issue in the present case. None of the messages did so. They established defendant dealt drugs, at times from his home.

But they did not, for example, establish that he usually kept them in his pants.

The state was attempting to prove that, because defendant had text messages indicating that he was dealing some methamphetamine at around the same time, he must have known of the drugs that were at his home and yet not specifically referenced in any of the text messages. This pattern of inferences could work only for the exact reason that such evidence is generally barred: because defendant often owned drugs, he must have owned these drugs.

Even if the evidence could be used to prove intent, its admission was substantially more prejudicial than probative. Because defendant did not need to have a subjective intent to traffic the drugs in order to be convicted under the statute, the probative value of the text message evidence is relatively small on that aspect of intent.

The state admitted 113 text messages into evidence, covering a period from December 8, 2016, to January 25, 2017. Some of them included crude or threatening language that appears to have little or no connection to the drugs allegedly found at defendant’s home. Nor did the state make much of an overt attempt to connect most of the messages to the drugs at issue in defendant’s indictments.

Further, the state said in its closing argument that the evidence on the phone was “the State’s strongest evidence in this case and ... will completely destroy the credibility of any defense argument because you take one look at that phone and you know

the truth beyond a reasonable doubt.”

Considering the state’s focus on the text messages, the sheer number of text messages admitted, and the limited probative value of the evidence, the presentation of the text messages proved to be substantially more prejudicial than probative.

Because of the degree to which the phone evidence became a central aspect of the state’s case, we find that neither of the circuit court’s erroneous rulings was harmless.

Because King translated some of the most damning text messages for the jury, the state’s case was by its own admission built on testimony we have found to be impermissible.

Defendant was not on trial for any of the drug transactions recorded in his text messages. By the end of the trial, though, defendant was no longer defending himself merely against the charges in the indictments, but also against the implicit charge that he had previously dealt drugs on multiple occasions. It does not take an imaginative mind to see how even a juror who held a reasonable doubt that the drugs in defendant’s home were his could be persuaded to convict defendant nonetheless, or how the evidence in the text messages might have been the final quantum of proof needed to persuade a hesitant juror that the defendant was indeed the owner of the drugs.

Affirmed in part, reversed in part and remanded.

State v. Ostrowski (Lawyers Weekly No. 011-090-21, 31 pp.) (John Geathers, J.) Appealed from York County Circuit Court (Brian Gibbons, J.) William Yarborough and Lauren Carole Hobbis for appellant; Alan McCrory Wilson, Jonathan Scott Matthews and Kevin Scott Brackett for respondent. S.C. App.

4TH U.S. CIRCUIT COURT OF APPEALS

Criminal Practice Federal gun prosecution wasn’t barred by Double Jeopardy Where the defendant was previously charged in state court with capital murder of a police officer after a traffic stop, a later federal prosecution for possession of a firearm by a felon was not barred by Double Jeopardy. An offense committed under the laws of a state is not the same offense as one committed under federal law, even if both offenses result from the same conduct and consist of the same elements.

Background

During an automobile stop in Richmond, Virginia, Travis Ball engaged in a struggle with a Virginia law enforcement officer, during which he pulled out a gun and shot the officer, killing him. Virginia prosecutors charged him with capital murder, and

OPINION DIGESTS / 9

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 Decem ber 6, 2021

pursuant to a plea agreement, he was sentenced to life imprisonment with all but 36 years suspended.

Shortly after that state sentence was imposed and following community outrage over the inadequacy of the sentence, federal prosecutors charged Ball with possession of a firearm by a felon. The district court sentenced Ball to the statutory maximum of 10 years’ imprisonment and required that it be served consecutive to the state sentence.

Ball contends on appeal that his federal indictment should have been dismissed for various reasons. He also challenges his federal sentence.

Double jeopardy

The Supreme Court has long held that an offense committed under the laws of a state is not the same offense as an offense committed under the laws of the United States, even if the two offenses result from the same conduct and consist of the same elements. Here, the Virginia murder statute under which he was convicted punishes the “willful, deliberate, and premeditated killing of a law-enforcement officer,” while the federal statute makes it unlawful for a convicted felon, knowing his status as such, to knowingly possess a firearm that affected commerce.

Thus, the state murder violation requires proof of a killing, whereas the federal firearm violation does not.

Conversely, the federal firearm violation requires proof that the defendant was a felon, while the state murder violation does not. Therefore they are not the same offense.

Ball argues that the federal prosecution violates the collateral-estoppel principle “embodied in” the Double Jeopardy Clause. However the elements of Ball’s § 922(g)(1) conviction were not “issue[s] of ultimate fact” resolved in the state prosecution. Moreover, the state and federal proceedings did not involve the same parties.

Finally, Ball points to no precedent (and this court has found none) supporting the proposition that collateral estoppel can be used to circumvent the dual-sovereignty doctrine.

Delay

Ball also contends that because the federal government delayed indicting him for over two years after he possessed the gun he used to kill the special agent, the district court erred in failing to grant his motion to dismiss the indictment under Federal Rule of Criminal Procedure 48(b). Ball’s argument, however, fails to take account of the fact that Rule 48(b) is “limited to post-arrest situations.” As such, the rule does not regulate the time between Ball’s firearm possession and the government’s obtaining custody of Ball.

Ball contends that the district court nevertheless should have exercised its inherent powers to “dismiss [the] indictment for lack of prosecution.”

There is no basis to conclude that the district court abused this discretion in the circumstances presented. Indeed, in the ordinary course, the time between when a crime is committed and when a defendant is indicted for that crime is regulated by statutes of limitations, not discretionary judicial

power.

Vindictiveness

Because the federal prosecution is not a retrial, but rather the federal government’s first and only action to redress a perceived violation of federal criminal law, it is entitled to the presumption of legitimacy. While Ball points only to the timing of the federal prosecution, which was initiated after completion of his state prosecution, and the community outcry over what was perceived as an inadequate state sentence, neither fact nor both facts combined satisfy his burden. Indeed, both are consistent with a proper exercise of prosecutorial discretion based on the federal prosecutor’s conclusion that the state prosecution inadequately vindicated federal interests.

Sentencing

Ball contends that the district court erred in calculating the guidelines range for his gun-possession offense by cross-referencing to U.S.S.G. § 2A1.1, which imposes an offense level of 43 for first-degree murder, i.e., premeditated killing. He argues that the cross-reference should instead have been to manslaughter because he killed Walter in the “heat of passion” as he was resisting arrest. The court concludes that the facts allowed the court to make the finding that the killing was premeditated.

Finally, Ball argues that the 10year sentence was longer than what he would have received for an analogous state offense and therefore was substantively unreasonable. Ball’s

references to state law are unavailing.

Affirmed.

United States v. Ball (Lawyers Weekly No. 001-185-21, 20 pp.) (Paul V. Niemeyer, J.) Case No. 20-4340.

Nov. 18, 2021. From E.D. Va. at Richmond (Henry E. Hudson, S.J.) Patricia A. Rene for Appellant. Richard Daniel Cooke for Appellee.

Criminal Practice Defendant fails to show prejudice from ineffective assistance of counsel Where the record showed the public defender failed to communicate to the defendant a plea offer of 20 years’ incarceration, there was no prejudice because there was also support for findings that the defendant was unwilling to accept a substantial term of incarceration during that same timeframe.

Background

John Walters appeals from the district court’s denial of his 28 U.S.C. § 2254 petition. This court granted a certificate of appealability on one issue: counsel’s failure to timely relay a favorable plea offer to Walters.

Analysis

To establish ineffective assistance of counsel, a petitioner must prove: (1) his counsel was deficient in his representation and (2) he was prejudiced as a result. For the first factor, the petitioner must show that “counsel’s representation fell below an objective

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10 / OPINION DIGESTS standard of reasonableness.” To show prejudice in this context, petitioners must demonstrate a reasonable probability that (1) “they would have accepted the earlier plea offer had they been afforded effective assistance of counsel” and (2) “the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.”

Here, the state court appropriately determined that Walters failed to show a reasonable probability he would have accepted the March plea offer had public defender Thomas L. Stanley timely communicated it to him. In fact, reviewing the “contemporaneous evidence to substantiate [Walters’] expressed preferences” at the time of the March plea offer reflects he would not have accepted such an offer.

The record provides ample support for the state court’s factual finding that Walters was unwilling to accept a substantial term of incarceration during the relevant timeframe.

Letters sent by Walters signal that around the relevant timeframe, Walters would have been unwilling to accept any term of incarceration even close to the 20-year sentence provided in the March plea offer.

The testimony of Stanley and another assistant public defender, Joseph Whiteoak, during the evidentiary hearing, as well as Walters’ reaction to the March and July plea offers, bolster this conclusion. As Stanley testified, “[Walters] didn’t think the punishment should exceed maybe three years tops in his mind.”

Whiteoak corroborated this, noting that Walters believed that “whatever happened was worth about three years at most.” And when Stanley conveyed the March plea offer to Walters, Walters did not request that Stanley attempt to reopen it. Finally, Walters exhibited similar disinterest in accepting a plea deal when he requested that Stanley secure a 30-day extension for the July plea offer, but then declined to act on that offer after the extension was secured.

Walters fails to present clear and convincing evidence to the contrary.

As for his own post hoc testimony, he asserted that he would have accepted the March plea offer “if [he] had [had] effective counsel [so] that [he] would have been able to review the matter.”

But his “self serving assertion that he would have accepted the plea is ... the type of testimony ... subject to heavy skepticism.” As the state court persuasively recognized, “while [Walters] did send a plea offer to the State in November showing his willingness to then engage in plea negotiations, that was three months following the expiration of the State’s last plea offer, which [he] rejected.”

Walters next attempts to undermine the state court’s factual determination by highlighting that the plea he ultimately took resulted in a longer sentence (43-65 years) than the one included in the March plea offer (20 years). But where a petitioner points to the disparity between the plea and the sentences he received “to demonstrate a reasonable probability that he would have accepted a plea, a petitioner’s testimony that he would have done so must be credible.” And here, the state court reasonably found Walters’ testimony not credible, concluding that he could not establish a reasonable probability that he would have accepted the March plea offer had he timely known of it. Satisfied that Walters cannot demonstrate

prejudice under Strickland based on his inability to meet the first Frye prong, the court declines to address the second.

Affirmed.

Walters v. Martin (Lawyers Weekly No. 001-186-21, 20 pp.) G. Steven Agee, J. Case No. 19-7391.

Nov. 18, 2021. From N.D. W.Va. at Wheeling (Frederick P. Stamp Jr. S.J.) Madison Mischik for Appellant.

Michael Ray Williams for Appellee.

Criminal Practice Death sentence is once again vacated Where a panel of the circuit court previously held that the district court applied the wrong standard when it vacated the defendant’s death sentence for the murder of a police officer, but the case was then heard by an en banc panel, the district court’s judgment was affirmed by an equally divided court.

Background

During a traffic stop in Horry County, South Carolina, James Bryant turned to the police officer, wrestled him to the ground, beat him unconscious with the officer’s flashlight and then, using the officer’s pistol, shot the officer in the head. After a manhunt, Bryant was arrested the next day and charged with first-degree murder and armed robbery. The jury found him guilty on both counts, and he was sentenced to death for the murder and 20 years’ imprisonment for the robbery.

After exhausting his state remedies, Bryant applied to the district court for habeas relief, and the court vacated his death sentence. The district court concluded that the state postconviction court (1) unreasonably determined that a juror who was hearing impaired was competent to sit on the jury and unreasonably applied clearly established federal law in so concluding and (2) unreasonably concluded that Bryant’s state trial counsel was not ineffective in allowing the hearing-impaired juror to sit on the jury. But the district court rejected a claim by Bryant that his trial counsel was ineffective for failing to press a Batson challenge.

A panel of this court concluded that the district court did not give effect to the proper standard in overruling the state post-conviction court, so it vacated the district court’s rulings on the issues pertaining to the hearing-impaired juror. On June 30, 2021, a majority of judges in regular active service and not disqualified voted in a requested poll of the court to grant the petition for rehearing en banc.

Analysis

On rehearing en banc, the panel opinions in Bryant v. Stephan, 998 F.3d 128 (4th Cir. 2021), are vacated, and the judgment of the district court is affirmed by an equally divided court.

Bryant v. Stephan (Lawyers Weekly No. 001-187-21, 3 pp.) (Per curiam) Case No. 20-4. Nov. 15, 2021.

From D.S.C. at Charleston (Bruce Bowe Hendricks, J.) Michael Douglas Ross for Appellants. Lindsey S. Vann for Appellee.

Labor & Employment Federal employees can’t sue for disparate impact under ADEA The text, structure and the legal

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landscape in which the Age Discrimination in Employment Act, or ADEA, was passed law do not support a finding that the statute’s federal-sector provision encompasses disparate-impact liability.

Background

Dr. Jane DiCocco brought Title VII and Age Discrimination in Employment Act, or ADEA, claims because she failed an allegedly discriminatory physical-fitness test that was a condition of her federal employment and was told to either retake the test, resign or be fired. She resigned. The district court dismissed her complaint for lack of Article III standing, finding that her resignation did not constitute an “adverse employment action” that could serve as the basis of either claim.

Standing

The district court began its analysis by finding that Dr. DiCocco failed to state a valid cause of action because she alleged no injury and therefore lacked standing. But this approach improperly conflated the threshold standing question with the merits of her claims. Standing does not turn on whether a plaintiff has definitively stated a valid cause of action.

Dr. DiCocco has adequately pleaded an injury in fact. Dr. DiCocco alleges that she was injured by a loss of employment and the resulting loss of wages and other benefits. Such harms are “classic and paradigmatic” injuries for standing purposes.

Even so, a plaintiff’s injury is not fairly traceable to the defendant’s action if the plaintiff “independently caused his own injury.” But Dr. DiCocco’s allegations—which must be taken as true at this stage—do not show that she independently caused her own injuries. Dr. DiCocco’s complaint alleges that Bureau of Prison, or BOP’s, ultimatum, which followed from the allegedly discriminatory policy, was the but-for cause of her injuries. Because Dr. DiCocco’s complaint adequately alleges an injury in fact, causation, and redressability, she has standing to raise her ADEA and Title VII claims in federal court.

Her complaint should not have been dismissed on this ground.

ADEA

Dr. DiCocco argues that the BOP’s fitness test disparately impacts those older than 40. The government argues, however, that the ADEA provision that governs federal-government employees, 29 U.S.C. § 633a(a), does not provide for a disparate-impact cause of action. Without a cause of action, Dr. DiCocco’s claim fails. The government continues, explaining that because the statute does not provide for such a claim, Congress has not waived the federal government’s sovereign immunity for a federal employee’s ADEA disparate-impact claim.

The court concludes that the language of § 633a(a) does not create a disparate-impact cause of action. The arguments that emerge from two Supreme Court decisions—based on the statute’s text, the law’s structure and the legal landscape in which the law was passed—do not support finding that the ADEA’s federal-sector provision should also encompass disparate-impact liability. And because the government’s waiver of sovereign immunity is limited to claims by persons “aggrieved” under the section, her claim is not within the scope of that waiver.

Conclusion

The district court erred in dismissing Dr. DiCocco’s complaint for lack of standing based on its analysis of the merits of her claim. But the dismissal of her ADEA claim must be affirmed because the government’s waiver of sovereign immunity does not cover disparate-impact claims. Though the government asks that this court address the merits of her Title VII disparate-impact claim on appeal, it remands that claim for consideration first by the district court.

Affirmed in part, reversed in part and remanded.

Concurrence/Dissent

(Floyd, J.): I agree with the majority that Dr. DiCocco possesses Article III standing to bring her disparateimpact claims under the ADEA and Title VII. I also concur with the majority’s decision to remand Dr. DiCocco’s disparate-impact claim under Title VII for substantive findings in the first instance.

But rather than similarly remanding Dr. DiCocco’s disparate-impact claim under the ADEA for findings in the first instance, the majority reaches its own debatable holding.

Diverging from our sister circuits and overruling our prior precedents, the majority holds that the ADEA does not afford a disparate-impact cause of action for federal employees. In my view, the ADEA does not tolerate this holding under the traditional tools of statutory interpretation and our precedents.

DiCocco v. Garland (Lawyers Weekly No. 001-188-21, 47 pp.) (Julius N. Richardson, J.) (Henry Franklin Floyd, J., concurring in part and dissenting in part) Case No. 20-1342.

Nov. 17, 2021. From E.D. Va. at Richmond (John A. Gibney Jr., S.J.) Jay J. Levit for Appellant. Jonathan Tyler Lucier for Appellee.

Tort/Negligence Father fails to show prison officials created danger that led to death Where a prison guard was beaten to death by an inmate, her father’s suit failed to plead facts showing how individuals who managed the prison or worked there created or enhanced the danger that resulted in her death.

Background

Sergeant Meggan Lee Callahan worked as a shift supervisor responsible for a prisoner housing unit at Bertie Correction Institution, or BCI. On April 26, 2017, she was beaten to death by Craig Wissink, who was housed in the medium custody unit that she supervised.

John Joseph Callahan, her father and the administrator of her estate, sued the North Carolina Department of Public Safety, which operates BCI, and six individual defendants, who either managed the prison or worked there. The district court held that Callahan’s substantive due process claim failed to adequately allege facts that would implicate the statecreated danger doctrine. Specifically, it concluded that Callahan “failed to allege how the individual defendants ‘created or substantially enhanced the danger which resulted in’ Sgt. Callahan’s death” and failed to plead “intent to harm.”

Analysis

Callahan argues that the defendants knew about the risks, “had an affirmative duty to avoid them, and

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instead affirmatively acted to keep Inmate Wissink [in Callahan’s unit] while assigning too few and untrained staff. He also contends that he alleged that the “defendants affirmatively sent Sgt. Callahan, and her coworkers, into [that unit] on April 27 with full knowledge” of two risks—the risk posed by Wissink and the risk of understaffing and improper training.

According to Callahan, these are affirmative acts that, if accepted as true, would give rise to a state-created danger claim.

Callahan’s argument, however, misses the point. The question is not how Callahan characterizes the allegations. It is not enough to reframe a failure to protect against a danger into an affirmative act. The critical questions are: What is the pertinent danger, and did the state create it?

Callahan’s allegations make clear that the danger was Wissink, and none of the defendants created that danger. The staffing and training decisions may reflect a failure to adequately respond to the danger posed

by Wissink. But under this court’s precedent, such failures do not support a state-created danger claim.

They are neither the “immediate interactions” with the plaintiff nor the “direct cause” of the injuries. These choices are simply too far down the causal chain of events to result in liability under the Due Process Clause.

And without allegations that, if ac-

cepted as true, meet these legal requirements, the complaint does not plausibly state a § 1983 substantive due process claim under the statecreated danger theory.

Affirmed.

Callahan v. North Carolina Department of Public Safety (Lawyers Weekly No. 001-189-21, 13 pp.)

(A. Marvin Quattlebaum Jr., J.) Case No. 20-1410. Nov. 17, 2021. From E.D.N.C. at Elizabeth City (Malcolm J. Howard, S.J.) William Ellis Boyle for Appellant. Tamika Lynn Henderson for Appellees.

Tort/Negligence Private plaintiff has no right to injunctive relief under RICO In an issue of first impression that has divided other circuits, the court held that the Racketeer Influenced and Corrupt Organizations, or RICO, Act does not give private plaintiffs a right to sue for injunctive relief.

Background

The named plaintiffs received short-term loans from online lenders affiliated with a federally recognized Native American tribe. Eventually the borrowers defaulted and brought a putative class action against tribal officials and two non-members affiliated with the tribal lenders to avoid

repaying their debts, which they alleged violated Virginia and federal law.

The defendants moved to compel arbitration and to dismiss the complaint on various grounds. The district court denied the motions to compel arbitration and, with one significant exception relevant here, denied the motions to dismiss. Four of those rulings are now before this court in this interlocutory appeal.

Arbitration

In four prior cases, this court has assessed arbitration provisions requiring application of tribal law to the practical exclusion of other law and, in each case, has held the arbitration provision (including the delegation clause) invalid as a prospective waiver of federal rights. The court sees no material distinction between this case and the precedent set forth in these prior decisions. As in those cases, the choice-of-law clauses of this arbitration provision, which mandate exclusive application of tribal law during any arbitration, operate as prospective waivers. In effect, those clauses would require the arbitrator to determine whether the arbitration provision impermissibly waives federal substantive rights without recourse to federal substantive law.

As a result, the delegation clause is unenforceable as a violation of public policy.

Because the delegation clause is unenforceable, the court must address plaintiffs’ challenge to the validity of the arbitration provision as a whole.

It agrees with the district court that the choice-of-law clauses operate as a prospective waiver of the borrowers’ federal statutory rights and remedies.

Therefore, the entire arbitration provision is unenforceable.

The arbitration provision contains a severability clause stating that “if any of this Arbitration Provision is held invalid, the remainder shall remain in effect.” But the existence of a severability clause cannot save an arbitration provision if the invalid terms are integral to the agreement.

In line with two of this court’s prior decisions, and every court of appeals to consider the question, the court concludes that the choice-of-law clauses applying tribal law to the exclusion of federal law cannot be severed because they “go[] [to] the ‘essence’” of the agreement to arbitrate.

Sovereign immunity

The tribal officials assert that sovereign immunity bars plaintiffs’ claims against them seeking prospective relief to enjoin violations of state law. The Supreme Court’s decision in Michigan v. Bay Mills Indian Cmty., 572 U.S. 782 (2014), forecloses the tribal officials’ argument. Tribal sovereign immunity does not bar state law claims for prospective injunctive

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12 / OPINION DIGESTS relief against tribal officials for conduct occurring off the reservation.

The tribal officials assert that the court should not follow Bay Mills because its statements about suing tribal officials to enforce state law were dicta and, if taken seriously, would “silently [overrule]” multiple settled precedents. The court is not persuaded.

Choice of law

Defendants moved to dismiss the complaint because plaintiffs’ claims depend on Virginia usury law, while the governing-law clause of the loan agreements elects tribal law to govern the loans. The district court held the governing-law clause unenforceable as a violation of “Virginia’s compelling public policy against the unregulated lending of usurious loans.” The court agrees.

The court concludes that the Supreme Court of Virginia would not enforce the governing-law clause because it violates Virginia’s compelling public policy against unregulated usurious lending. The court acknowledges that contractual choice-of-law clauses should be enforced absent unusual circumstances, but the circumstances here— unregulated usurious lending of low-dollar short-term loans at triple-digit interest rates to Virginia borrowers—unquestionably “[shocks] ... one’s sense of right” in view of Virginia law.

RICO

Plaintiffs also seek prospective injunctive relief against the tribal officials pursuant to RICO. The district court granted the tribal officials’ motion to dismiss the RICO claims against them, ruling that RICO does not give private plaintiffs a right to injunctive relief. Other circuits are evenly divided on this question, which presents an issue of first impression for this court. Congress’s use of significantly different language to create the governmental right of action in section 1964(b) and the private right of action in section 1964(c) compels the court to conclude by negative implication that, although the government may sue for prospective relief, private plaintiffs may sue only for treble damages and costs.

Affirmed.

Hengle v. Treppa (Lawyers Weekly No. 001-190-21, 57 pp.) (Allison Jones Rushing, J.) Case Nos. 201062, 20-1063, 20-1358, and 20-1359.

Nov. 16, 2021. From E.D. Va. at Richmond (David J. Novak, J.) Rakesh N. Kilaru and Matthew E. Price for Appellants. Matthew W. H. Wessler for Appellees.

Criminal Practice Record supports sentencing court’s drug conspiracy conclusion Where defendants challenged their sentence for conspiracy to distribute and possess ice-level purity methamphetamine, it was not clearly erroneous for the district court to rely on testing results and circumstantial and direct evidence to conclude the conspiracy was centered on ice methamphetamine and that each appellant knew or should have known that fact.

Background

Bradley Scott Williams, Larry Levi Bennett, James Robert Johnson and Shawn Wayne Farris each pled guilty to conspiracy to distribute and possess with intent to distribute 500

grams or more of methamphetamine.

While their pleas did not specify that the methamphetamine was of ice-level purity, the district court at sentencing found that the conspiracy involved ice and that each was responsible for its distribution. Based on those findings, the district court sentenced appellants using ice guidelines.

Williams, Bennett, Johnson and Farris challenge their sentences, arguing first that the court should have categorically rejected the ice guidelines on policy grounds due to the 10to-1 sentencing disparity between ice methamphetamine and lower-purity methamphetamine. Williams, Johnson and Bennett further argue that it was not reasonably foreseeable to them that the conspiracy involved ice, which the guidelines define as methamphetamine that is at least 80% pure. Separately, Johnson argues that the district court failed to consider his argument that his presentence report substantially overrepresented his criminal history.

Sentencing disparity

Under United States v. Booker, 543 U.S. 220 (2005), sentencing guidelines are “effectively advisory.” For that reason, district courts have discretion to reject the ice guidelines on policy grounds and, as appellants note, some have done so. But just because you can does not mean you must.

Here, the district court decided not to reject the ice guidelines because of the vastness of this conspiracy and the danger posed by ice and the appropriateness of treating higher purity methamphetamine more seriously than lower purity methamphetamine.

The district court had discretion as to whether or not to reject the ice guidelines. This court finds no abuse of that discretion in the district court’s decision.

Individualized assessment

Appellants next argue that the district court erred in applying the ice guidelines. Appellants argue that the district court failed to perform an individualized assessment of whether the conspiracy’s involvement in ice, as opposed to the sale of a lower purity methamphetamine, was reasonably foreseeable to each appellant. This court has not specifically addressed the type of evidence required to establish that it was reasonably foreseeable to a defendant that the conspiracy of which he was a part involves ice.

It concludes that the district court must have latitude to consider whatever reliable evidence is available to make its 80% purity determination. That can include evidence of a drug’s source, price and appearance as well as statements or testimony by co-conspirators, users or dealers.

However, while such evidence may be used, it must be sufficiently reliable and specific that it actually supports the government’s position that the drug’s purity is 80% or above.

Here, given the evidence presented as to each of the appellants, it was not clearly erroneous for the district court to determine that the government met its burden of proving the conspiracy involved ice. The district court did not err in determining that the testing results of some of the methamphetamine in the conspiracy, as well as the circumstantial and direct evidence as a whole, was sufficient to establish that this conspiracy was centered on ice methamphetamine and that each appellant knew

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or should have known that fact.

Johnson

Johnson contends that two additional points were added to his criminal history calculation for being on probation for a DUI charge during 30 days of the conspiracy. That DUI offense also added one point to the criminal history calculation. Thus, at the sentencing phase, Johnson argued that his presentence report overrepresented the seriousness of his criminal history, warranting a downward variance. Johnson also requested a two-level variance so that he would benefit from the First Step Act’s safety valve application.

He claims that the district court was required to address his arguments and its failure to do so constitutes an abuse of discretion. The district court, however, sufficiently addressed Johnson’s arguments.

Affirmed.

United States v. Williams (Lawyers Weekly No. 001-191-21, 20 pp.)

(A. Marvin Quattlebaum Jr., J.) Case Nos. 20-4002, 20-4086, 20-4123, and 20-4225. Nov. 23, 2021. From W.D. Va. at Abingdon (James P. Jones, S.J.) Nicholas David Smith for Appellants. Samuel Cagle Juhan for Appellee.

Elections Appeal mooted by unsealing of records Where media entities sought to unseal the existing district court docket and filings as well as any future proceedings, and to vacate the nondisclosure order blocking their state public records requests, the appeal was dismissed because the district court effectively granted that relief after briefing in this court concluded.

Background

Media entities appeal from the district court’s denial of their motion to intervene and in support of unsealing and vacating nondisclosure orders entered in two cases that were pending before that court. After briefing in the appeal concluded, the district court unsealed both cases and lifted the nondisclosure orders.

This court then requested supplemental briefing on whether these changed circumstances rendered the appeals moot.

Analysis

The media entities sought to intervene in the district court for two particular purposes: (1) to unseal the existing district court docket and filings as well as any future proceedings and (2) to vacate the nondisclosure order blocking their state public records requests. The district court’s March 2021 orders accomplished both purposes. The district court’s docket and filings were unsealed within days of its unsealing orders.

Since that time, the media entities— and the public at large—have known the nature of the case and had access to the docket entries. Because the grand jury investigation has ended and the district court’s order released all of the election boards’ records subject to the subpoenas, there’s no viable concern about future hearings or filings in the underlying proceedings that might be sealed.

The media entities challenge this conclusion by pointing to catch-all language in the unsealing orders that they contend could be applied to pro-

hibit access to the records they seek in the state public records request. Specifically, they refer to the language in the district court’s March 2021 orders that “all other materials that would disclose a matter occurring before the grand jury shall remain sealed.”

But it would be contradictory for this general language to be used to defeat or nullify the more specific language contained elsewhere in the district court’s order. That language expressly provided for complete unsealing of “the docket and filings” (save for limited redactions) as well as the specific release of the election boards’ records that were subject to the subpoenas that were at the heart of the corollary proceedings to the grand jury investigation.

The court agrees with the government that the “disclose a matter occurring before the grand jury” language in the district court’s March 2021 orders effectuates Rule 6(e)’s general principles of secrecy regarding grand jury proceedings, i.e., ensuring that hearing transcripts would remain secret. It does not apply to the subpoenaed records held by the election boards, which are now released from the subpoena and nondisclosure orders. But even if this were open to dispute, this court holds the government to its representation during oral argument that the original sealing order entered in the district court proceedings in January 2019 is “not in effect” and thus does not bar the state board from disclosing the public records that had previously been subject to any sealing order in the district court proceedings.

The media entities’ second purpose for intervening—to vacate the nondisclosure order impeding their state public records request—has also already been achieved. One of the district court’s March 2021 orders expressly lifted the December 2019 nondisclosure order, which had been entered in direct response to the state public records request. At oral argument, the media entities questioned whether the district court’s March 2021 order also applied to the January 2019 oral nondisclosure order cross-referenced in the December 2019 nondisclosure order. In response to the court’s questioning, the government represented unequivocally that it understood the district court’s March 2021 orders to have lifted both nondisclosure orders.

Despite having achieved both the objectives it sought by intervening, the media entities nonetheless assert that the appeal is not moot because their case falls within the exception for issues “capable of repetition, yet evading review.” At a minimum, this case fails to satisfy the exception because it does not present a “reasonable expectation that [the media entities] will be subjected to the same action again.” This court’s conclusion that this case is moot and does not fall within this exception is bolstered further by the media entities’ remaining arguments for a contrary result, which reflect that they essentially seek an advisory opinion as opposed to meaningful relief in the present appeal.

Dismissed.

In re: Capitol Broadcasting Company Incorporated (Lawyers Weekly No. 001-192-21, 18 pp.) (G. Steven Agee, J.) Case Nos. 20-1651 and 20-1652. Nov. 24, 2021. From E.D.N.C. at Raleigh (Terrence W. Boyle, J.) Michael J. Tadych and Hugh Stevens for Appellants. Christopher Michael Anderson for Appellee.