DRI Appellate Advocacy Seminar - June 21-22

Womble Carlyle is actively involved with DRI, an international organization of defense attorneys and corporate counsel that is recognized as a thought leader and an advocate for the defense bar at the national and state level, as well as in Europe.  Due to this involvement, we wanted to let our readers know about DRI’s 2012 Appellate Advocacy Seminar.

This year’s seminar will be held June 21-22 at the Hyatt Regency Cambridge in Cambridge, Massachusetts. This two day seminar will feature experienced appellate practitioners, in-house counsel, as well as distinguished faculty of judges, in-house counsel and leading practitioners, all of whom will provide valuable instruction and insight on effective strategies, advocacy and business tactics.

Seminar attendees will learn specific aspects of good writing from the judges who read the briefs and rule on the cases; tips on effective oral advocacy from the judges who hear the arguments; how in-house counsel effectively manage their appellate dockets and relationships with outside appellate counsel; compelling historical context for appellate practice and growth of the nation; recent developments in law from the appellate courts that are important to businesses; tips on building an appellate practice, as well as how to handle review of interlocutory orders effectively.

In-house counsel will learn how to better manage their appellate litigation by improving their skills in evaluating outside counsel’s work and by learning about specific appellate issues recently decided as well as those that will arise in the future.  They will also be able to network and discuss insights with other in-house counsel regarding the retaining of outside law firms in order to improve their contractual negotiations.

Register for the 2012 Appellate Advocacy Seminar here or by calling DRI’s Customer Service Department at 1.312.795.1101.

Permalink: http://www.womblencappellate.blogspot.com/2012/05/dri-appellate-advocacy-seminar-june-21.html

Womble Carlyle Attorneys Win Tax Case in U.S. Supreme Court

WASHINGTON, D.C.—A Womble Carlyle team successfully represented a taxpayer before the U.S. Supreme Court in a potentially landmark tax case. At issue was the amount of time the IRS has to pursue audits against taxpayers—normally three years, although that can be extended to six years in certain circumstances. The Supreme Court’s decision in United States vs. Home Concrete & Supply LLC helps define and limit when the IRS can audit taxpayers beyond the normal three-year statute of limitations.

Read more...

Permalink: http://www.womblencappellate.blogspot.com/2012/05/womble-carlyle-attorneys-win-tax-case.html

Greensboro News & Record Report on Supreme Court Output

Doug Clark, author of the Greensboro News and Record's Off the Record Blog, recently interviewed Chief Justice Sarah Parker of the North Carolina Supreme Court and others regarding the number of opinions produced by the Court.  Clark's piece seems to conclude that the Supreme Court is not publishing enough opinions.

Clark also published a piece on the United States Supreme Court's opinion in Goodyear Dunlop Tires v. Brown.  The North Carolina Supreme Court declined to review the case, but the United States Supreme Court heard the case and reversed the opinion of the North Carolina Court of Appeals.  In Clark's view the North Carolina Supreme Court's refusal to hear the case and the subsequent reversal by the United States Supreme Court "led to an embarrassment for the N.C. Supreme Court." 

The North Carolina Supreme Court's level of output has been a source of much debate in the last few years.  Clark's writings echo concerns raised in a white paper entitled The North Carolina Supreme Court in 2010: Is it Time for Reform by Elon University Law School Professor Scott Gaylord. 

In my opinion, the Supreme Court should not take cases and issue opinions just to reach some arbitrary number of opinions that is deemed appropriate by practitioners and the media.  It does not serve the interest of the citizens of North Carolina for the Supreme Court to issue opinions just for the sake of issuing opinions.  However, the Supreme Court's output should be subject to scrutiny and criticism if it is failing to address issues of importance to the jurisprudence of the state or if it is failing to address issues of law have resulted in confusion or conflicting opinions in the lower courts. 

If you think that there are specific issues the Supreme Court should be taking up, but it is not, mention it in the comments.  If we get a number of interesting issues, we may see if we can get guest authors to discuss these issues in future blog posts.

Permalink: http://www.womblencappellate.blogspot.com/2012/04/greensboro-news-record-report-on.html

COA: Joint Bank Account May Create a Fiduciary Relationship

Today, in Dixon v. Gist, a unanimous panel of the Court of Appeals (Stephens, Chief Judge Martin, and Robert C. Hunter) addressed the circumstances surrounding when a party should have become aware of a fraudulent transfer of property and discussed whether entering into a joint bank account creates a fiduciary relationship between the account holders.

The Court of Appeals summed up Dixon's allegations as follows:

In her complaint, Dixon alleged that she was “befriended” by the Gists, “tricked into believing a special relationship of trust and confidence had been established with [the Gists],” “induced” by the Gists to “convert[ her] bank account into a joint account with rights of survivorship” with the Gists, and, ultimately, “defrauded” by the Gists “out of sixteen [] acres of land and property” and many thousands of dollars in cash. Based on Dixon’s allegedly fraud-induced conveyance of real property to the Gists and on the Gists’ allegedly fraudulent withdrawal of money from Dixon’s bank account, Dixon asserted claims against the  Gists for constructive fraud, civil conspiracy, undue influence, conversion, and declaratory judgment voiding conveyances.

The Gists answered and asserted, in a Motion for Judgment on the Pleadings, that Dixon's claims were barred by the statute of limitations.  The trial court agreed and dismissed Dixon's claims. On appeal, the trial court's opinion was affirmed in part, reversed in part, and vacated in part.
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Permalink: http://www.womblencappellate.blogspot.com/2012/04/coa-joint-bank-account-may-create.html

COA: Mergers of Less-Well-Known Banks May Not Be Judicially Noticed

Today the COA found that courts may not take judicial notice of mergers between smaller or lesser-known banks. The case is TD Bank, N.A. v. Mirabella. Smaller or lesser-known banks seeking to prove a merger should therefore provide affidavits and evidence of the merger to the trial court.

Plaintiff TD Bank sued borrower Mirabella on a Promissory Note on which Mirabella defaulted. The Note was between Mirabella and First Carolina Bank as lender, not TD Bank. TD Bank got summary judgment on the amount owed. On appeal the borrower claimed that TD Bank failed to show that it was the owner and holder of the Note.

The Court of Appeals found that there was insufficient evidence that TD Bank was the holder of the Note, and therefore summary judgment was improper. TD Bank claimed that it stood in the place of First Carolina Bank due to a merger between the two banks. The COA noted that neither the complaint nor any other documents in the record provided any evidence of the merger. TD Bank's inclusion of the merger documents as an appendix to its appellate brief was not a proper method of presenting evidence of the merger to the Court, especially since the borrower contested the validity of the documents. The COA noted that TD Bank could have filed the documents or an affidavit with the trial court.

The COA also found that it could not take judicial notice of the merger between Carolina First Bank and TD Bank because it did not fall within the realm of “common and general knowledge.” The COA noted that this merger could not be analogized to that of Wachovia and Wells Fargo (which has been judicially noticed by at least one federal court) because TD Bank and First Carolina Bank "are not quite so well-known as Wells Fargo and Wachovia as this panel has never heard of TD Bank or First Carolina Bank, much less of their merger[.]"

Permalink: http://www.womblencappellate.blogspot.com/2012/03/march-20-2012-coa-opinions.html

COA: StubHub not liable for ticket scalping under NC law

Today, in Hill v. StubHub, Inc., the North Carolina Court of Appeals (Ervin, Beasley, and Thigpen) held that resale of athletic and other event tickets for a fee on the internet does not violate North Carolina law prohibiting ticket “scalping.” Womble Carlyle attorneys Burley Mitchell and Bob Numbers represented eBay Inc. as amicus curiae.

The case involved Defendant StubHub, Inc., a company that operates an online marketplace enabling third parties to buy and sell tickets to sporting contests, concerts, and similar events. In September 2007, Plaintiffs Jeffrey and Lisa Hill purchased four tickets to a "Miley Cyrus as Hannah Montana" concert through StubHub's website for $149.00 each, plus a shipping fee of $11.95 and a service fee of $59.60, bringing the total to $667.55. The face value of the tickets was $56.00 each. The Hills subsequently filed a complaint, both individually and as representatives of a proposed class, against StubHub and other defendants, claiming in part that StubHub had engaged ticket scalping and had violated fee provisions of N.C. Gen. Stat § 14-344.

The case presented an issue of first impression for the Court of Appeals: was StubHub entitled to immunity from liability pursuant to 47 U.S.C. § 230? Given that the United States Supreme Court has not addressed the scope of immunity under § 230 and that the North Carolina appellate courts had not yet construed the statute, the Court looked to persuasive decisions from lower federal courts and other state courts, which have broadly construed § 230 immunity.

In order to qualify for § 230 immunity, StubHub was required to meet three criteria: (1) StubHub must be a provider or user of an interactive computer service; (2) StubHub's liability must be based on its having acted as a publisher or speaker; and (3) StubHub could only claim immunity with respect to information provided by another information content provider. There was no dispute that StubHub met the first and second criteria. The issue was whether StubHub functioned as an "information content provider" with respect to the ticket price at issue.

That inquiry, the Court explained, hinges upon the extent to which a website materially contributed to the development of unlawful content. To materially contribute to the creation of unlawful material, a website must effectively control the content posted by third parties or take other actions which essentially ensure the creation of unlawful material. Merely encouraging the posting of market-based ticket prices or being congnizant of the risk that tickets are priced in excess of face value will not suffice to strip a website of § 230 immunity.

Here, the evidence showed that the seller, Defendant Justin Holohan, set the price of the concert tickets. StubHub did not price the tickets, require Holohan to sell them at a particular price, or act as Holohan's agent in making the price determination. Therefore, StubHub was not responsible for creating or developing the content at issue, which was the price at which Holohan sold the tickets. Accordingly, the Court held that pursuant to § 230, StubHub was immune from liability for claims based on that particular content. In so holding, the Court emphasized that the § 230 immunity analysis must focus on the specific content at issue in the case, rather than the website as a whole.

Finally, the Court held that the fees StubHub charged for its services did not violate N.C. Gen. Stat. § 14-344 because that statute applies only to sellers or sellers' agents, and StubHub was not the seller or Holohan's agent.

Click here for access to the record on appeal, parties' briefs, and amicus brief.

Permalink: http://www.womblencappellate.blogspot.com/2012/03/coa-stubhub-not-liable-for-ticket.html

COA Opinions (2/21/12)

This morning, the NC Court of Appeals published 20 opinions.  We will have more on any opionions of interest later.

Permalink: http://www.womblencappellate.blogspot.com/2012/02/coa-opinions-22112.html