Welcome to the New Bar Year With ACBD!

Shana, a Black woman with dark brown hair, wears a navy blue dress and a red, blue, and yellow beaded necklace. By Shana Fulton

Dear Colleagues,

Welcome to the 2024-25 NCBA year! My name is Shana Fulton, and it is my privilege to serve as the Chair of the Antitrust & Complex Business Disputes Law Section for this year.

Our section has a busy year planned. Please be on the lookout for networking opportunities including opportunities with other sections who are also interested in our work and our members. In addition, under the leadership of Lauren Snyder, we will have our annual meeting and CLE event on January 30, 2025.

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Antitrust & Complex Business Disputes Law Section Annual CLE Program

Greg, a white man with brown hair, wears a white shirt, blue tie and black jacket.By Greg Skidmore 

The Antitrust & Complex Business Disputes Law Section invites you to register for its annual program on February 2, 2023. The program contains 7.0 hours of CLE credit, including 1.0 hour of credit for both ethics and substance abuse/mental health. The topics are tailored toward the active and aspiring business litigator, including navigating complex privilege issues, using experts, insurance issues in complex litigation and addressing mental health for litigation attorneys. We also will have the popular View From the Bench featuring the current North Carolina Business Court Judges. We look forward to seeing you in person at the Bar Center. Additional information and details are available on the program registration page. Hope to see you in February.

Updates from the Antitrust & Complex Business Disputes Law Section

John P. MarshallBy John P. Marshall

Dear Colleagues,

Welcome, albeit a bit late, to the 2022-2023 NCBA year! It is my privilege to serve as your chair for the bar year.

Our section has a busy year planned. With COVID-19 now becoming a manageable and distant memory, be on the lookout for more networking opportunities that will be offered by our section. In addition, under the leadership of Greg Skidmore, we will have our annual meeting and CLE event on February 2, 2023, at the Bar Center in Cary. Greg has already planned and is putting the finishing touches on what promises to be a very informative and interesting program. Once again, we are fortunate that our Business Court Judges have agreed to be part of our event. Their portion of the program is always a hit, and we are fortunate that the judges are willing to take time out of their schedule to share their insights with us.

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CAFA Exception or Requirement? A Pane-ful Choice for Defendants

By Kyle Medin

In last fall’s television sensation Squid Game, unwilling participants in a gruesome game show compete in a series of deceptively simple challenges where one wrong move can have lethal consequences. The penultimate challenge is to cross a bridge made up of pairs of glass panes. In each pair, one pane is tempered glass, which will hold a person’s weight and allow him to proceed to the next pair. The other is normal glass, which will shatter under his weight, sending him plummeting to his doom in the chasm below. The panes look identical to the untrained eye, but the contestants must correctly decide where to jump if they hope to survive the game. For defendants, the 2005 Class Action Fairness Act (“CAFA”) hides a similar series of high-stakes decisions between nearly identical choices.

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2022 Antitrust & Complex Business Disputes Law Section Program

John P. MarshallBy John P. Marshall

The Antitrust & Complex Business Disputes Law Section invites you to register for its annual program on February 3, 2022. The program promises a full agenda and plenty of CLE credit through timely presentations designed for the active and aspiring business litigator. We will also have the very popular View From the Bench featuring the current North Carolina Business Court Judges. You may attend virtually or in person. For additional information and details, register here.

Hope to see you there.

Class-Action Incentive Awards Under Siege?

This article was originally published in DRI’s The Voice and has been republished with permission. 

By Michelle Liguori and Carson Lane

Until recently, litigators on both sides of the “v.” routinely included incentive awards in class-action settlements. The Eleventh Circuit’s recent decision in Johnson v. NPAS Solutions, LLC, 975 F.3d 1244 (11th Cir. 2020), shook things up, holding incentive awards are prohibited under Supreme Court case law dating back over a century. While the Eleventh Circuit currently stands alone on this issue, its stark line in the sand suggests that counsel everywhere should take pause before including an incentive award in their next class-action settlement.

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Changes to N.C. Civil Procedure Rule 5 and N.C. Business Court Rule 3

By John P. Marshall

Effective Oct. 1, 2020, House Bill 679 became law, amending Rule 5 of the North Carolina Rules of Civil Procedure.

The changes are outlined below:

1. Service is now proper on a party’s attorney of record via electronic mail to an email address of record with the court in the case. Such email must be sent by 5:00 p.m. Eastern Time on a regular business day. If the email is sent after 5:00 p.m., it will be deemed to have been sent on the next business day.

2. Service may also be made on a party by email, but only if the party has consented to receive email service in the case at a particular email address, and a copy of the consent is filed with the court by any party. The same rules apply as set forth in paragraph 1 as to timing of service by 5:00 p.m.

3. Where electronic filing is available (for example, the Business Court), an automated certificate of service generated by that system satisfies the requirements of Rule 5.

4. The certificate of service must show the date and the method of service, and if by email or fax, the email address or fax number of each person served in that manner.

5. If you serve via email, just like service via fax, there is no “three-day rule” that exists for regular mail.

6. Service in other manners heretofore allowed under Rule 5 are still allowed.

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Pending Case Will Answer Questions on Key Antitrust Immunity

By Matthew W. Sawchak

For years, courts have struggled to decide how federal antitrust law applies to regulatory decisions by state agencies. SmileDirectClub v. Battle, a case pending in the U.S. Court of Appeals for the Eleventh Circuit, should offer some answers. SmileDirect is likely to clarify what counts as active supervision that can immunize a state agency from federal antitrust liability.


SmileDirect involves the state-action doctrine, which holds that the federal antitrust laws do not apply to sovereign acts of state governments. Under the doctrine, state statutes and decisions of state supreme courts are absolutely immune. Other types of government actions are immune only under certain conditions.

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A Message From the Chair

By Jenna Fruechtenicht Butler

As I look out the window from my home office, the waters on Masonboro Sound are soothingly calm. There is no hint of the worldwide pandemic raging around us, but then I think back to the email I received last Friday from the wife of a client I had last seen at the end of February. Her life has been turned upside down by her husband’s untimely passing from COVID-19. It’s a lot to digest, and as lawyers, we are dealing with our own situations as well as those of our clients.

Yesterday, I participated in a zoom call with NCBA President, LeAnn Nease Brown, NCBA Executive Director, Jason Hensley, and other bar leaders and section chairs. Our discussion centered on what the NCBA is and can be doing right now for you, its members. Toward that end, I encourage you to visit the NCBA website if you are in need of any COVID-19 resources or updates. The bar is doing an excellent job of staying on top of things, and there is a link that takes you to a lot of useful information.

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Fight Hunger, Help Others in the COVID-19 Pandemic – Participate in the Legal Feeding Frenzy and Support Your Local Food Bank!

Michele Livingstone

Will Quick

By Michele Livingstone and Will Quick

We are in unprecedented times with COVID-19 (Coronavirus).  It is now more important than ever that we help our neighbors and those who are not as fortunate. I am confident that each of you is doing your part.

Even in the best of times, however, over 1.5 Million North Carolinians struggle with hunger—of those, nearly half a million are children. With public schools and many religious and nonprofit organizations that traditionally serve the food insecure in our communities being closed for indefinite periods, and government leaders calling for social distancing to help limit the spread of Coronavirus, that need is never more pressing than now.

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