And Now For Something Completely Different … About CLE Titles

By Catherine Peglow

Have you ever wondered how our CLE programs get their names?

“The Alimony Tour – Not Starring John Cleese” was the name of the 2015 Family Law Section Annual Meeting CLE in Asheville. Now, I’m a Monty Python fan, but a clever name like that can present some problems when you consider the life cycle of a typical North Carolina Bar Association Foundation CLE program. After the live program, we generally do video replays across the state, and those video replays count as live CLE credit. After the replays finish, the program is edited into sessions and uploaded to our On Demand catalog. When you view those sessions online from the convenience of your home or office, they count as online CLE credit.

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Economic Liberty Challenges In the 21st Century

By Drew Erteschik and J.M. Durnovich

erteschik_drew_LH

Introduction

Most of us left law school with the understanding that so-called “economic liberty” challenges to state regulations will generally fail under rational basis review.  That area of the law, however, has changed dramatically.

This article looks at the change in three parts:

 

The first part offers a brief refresher on the history of economic liberty challenges in the 20th century.

The second part describes a flurry of recent cases involving successful economic liberty challenges on substantive due process grounds.

The third part examines some possible legal and policy explanations for the modern trend.

20th Century Views

In 1905, the U.S. Supreme Court decided Lochner v. New York, a case that considered a state law capping the maximum hours for bakery employees.[1]  The Court struck down the law on the grounds that it violated the “right of an individual to be free in his person and in his power to contract in relation to his own labor.”[2]  Over the next thirty years—the “Lochner era”—the Supreme Court struck down a number of state laws that infringed upon economic liberty rights.[3]

The Lochner era, however, was short-lived.  Headlined by the Court’s decision in U.S. v. Carolene Products, the Great Depression ushered in the post-Lochner era—a time when the Court established a presumption of constitutionality for state regulations.[4]  Most scholars attribute the shift to non-jurisprudential reasons:  If President Roosevelt’s New Deal was to survive constitutional challenges, the Court needed to dilute Lochner’s potency.[5]

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Fourth Circuit’s RLM Communications, LLC v. Tuschen Tackles Noncompetition and Trade Secret Misappropriation Issues

Wall,JonBy Jonathan Wall

Noncompetition agreements (“non-competes”) present thorny issues.  In most cases, you have a former employee who has signed a black-and-white contract prohibiting him or her from engaging in certain employment, and the employee goes and does the one thing that the contract specifically prohibits.  Not that long ago, most judges would view the matter purely as a contract issue, and once an employee’s attorney admitted that yes, that was the client’s signature on the agreement, they did not want to hear much else, with visible disinterest giving way to agitation the longer the argument proceeded.

On rare occasions, if the employee could present special circumstances, the trial courts would do more than pay lip service to the maxims like “noncompetes are strongly disfavored in North Carolina.”  Was the territory much more expansive than where the employee actually operated?  Was this really a lower-level employee, with the noncompete designed to keep the employee hostage rather than protecting legitimate employer interests?

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Update From the EEOC: New Charge-Handling Procedures

Nicholson,Travis (2)By Travis Nicholson

EEOC has implemented new procedures to be followed in all of our offices for the submission and release of position statements. The procedures apply to EEOC requests for position statements to employers made after Jan. 1, 2016. The purpose of the new procedures is to advance investigations by facilitating more pertinent information from both parties, including a response from the charging party.

An effective position statement is clear, concise, complete and responsive. EEOC recommends these practices for employers:

  • Submit position statements that are fact-based and thorough;
  • Ensure that the position statement focuses on the allegations in the charge;
  • Provide relevant documentation, evidence, and/or information that supports the employer’s position;
  • Segregate confidential information in attachments, including personally identifiable information, sensitive medical information, confidential financial information, etc.

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Attorneys, Paralegals Beware: Wire Instruction Fraud Plagues N.C. Lawyers

 Stell,CamilleBy Camille Stell

Over the last few weeks, Lawyers Mutual has received multiple reports of North Carolina attorneys who were targeted by scammers attempting to divert seller closing proceeds following real estate transactions. Unfortunately, several of these attacks were successful and hundreds of thousands of dollars were stolen and are very unlikely to be recovered.

I’ve asked our claims attorney, Troy Crawford, to talk with me about what went wrong and how to prevent it.

Troy: While the details of the recent scams are emerging, it appears hackers first became aware of the closing by compromising email accounts of differing parties.  Sometimes the attorney account was compromised, sometimes the seller’s account was compromised but the most common scenario was the realtor’s account was being monitored by international criminal organizations.

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The Chair’s Comments: An Exciting Course For the Year

By Robert M. Ward

I am honored to serve as chair for the 2016-2017 term. Let me begin by thanking Trey Allen for his outstanding job as our chair during the 2015-2016 term. Under Trey’s leadership we had a budget carryover, which was put to good use by Law Related Education. Additionally, as reported in the spring issue of The Constitutionalist, our membership increased more than 8 percent over the past year.

Our kickoff council meeting was held on Aug. 18, 2016, at the Bar Center. Jay Ferguson of Thomas, Ferguson & Mullins of Durham provided an excellent presentation: “Eighth Amendment: Evolving Standards of Decency to Eliminate the Death Penalty.” His presentation was quite informative and precipitated a lively discussion among the members of the council. To those of you who may be interested, Jay has agreed to share his Power Point presentation.  If you would like a copy, please contact him at:  [email protected]

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The Chair’s Comments: Big Plans For the New Year

Leaven,JessicaBy Jessica E. Leaven

As I was preparing my first comments as chair, this tune kept coming to my mind. “To everything – turn, turn, turn – there is a season – turn, turn, turn.” Maybe it’s because the summer is ending and the kids are going back to school. Or maybe it’s because it’s blueberry season in the mountains, and going blueberry picking with my family always marks the end of summer and beginning of fall. It could be because during this election season, I’ve too often thought of the lines “a time for love, a time for hate, a time for peace, I swear it’s not too late.” Either way, it’s time to welcome everyone to the new bar year for the Labor & Employment Section, and it’s my turn to be our chair.

I’m very excited and honored to serve as chair of the Labor & Employment Section this year. It was my pleasure working closely with our immediate past chair, Grant Osborne, over the past year, and I am grateful to have the assistance of our section’s new officers, Vice Chair Margaret Manos, Secretary Michael Kornbluth, and Treasurer Melanie Tuttle, and committee leadership this year. We have big plans for our section this year, and I would like to use this comment as an opportunity to let you know about some changes we have made to the section’s newsletter, the wonderful lineup for the annual CLE and social events planned for this October in Asheville, and the push to develop podcasts for our section.

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Contemplations on ‘An Act to Further Define … ‘Practice [of] Law’,’ ‘Requirements for Web Site Providers’ and Chapter 84 of the North Carolina General Statutes

Osborne,GrantBy Grant B. Osborne

Ulysses Everett McGill (previously imprisoned for practicing law without a license and about to be hanged):  “It ain’t the law!”

Sheriff Cooley:  “The law? The law is a human institution.”

— “Oh Brother, Where Art Thou?” (Joel and Ethan Coen, 2001)

How much time have you spent reading Chapter 84 of the North Carolina General Statutes on “Attorneys-at-Law”? Probably not much, which is a little surprising considering that it defines what it means to engage in the “practice [of] law” in North Carolina and regulates what we do for a living. Most attorneys in North Carolina (including your humble author until he wrote this) have probably spent more time monitoring updates on LinkedIn and Facebook than they have engaging in study of the statutes that, until recently, gave us in North Carolina a virtual monopoly over the rendition of legal services. The General Assembly and our Governor, however, have recently amended what it means to engage in the “practice [of] law.” Those amendments warrant attention.

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What Is Collaborative Practice and What Does It Have To Do With the Practice Of Employment Law?

Woodward,DanaeBy Danae C. Woodward

Collaborative practice is a relatively new alternative dispute resolution process which has been adopted by family law practitioners throughout the United States and in many other countries. Collaborative law practice was developed in 1990 by a Minnesota family law attorney, Stuart Webb, who proposed this new dispute resolution practice to the Honorable A. M. Keith, Justice of the Minnesota Supreme Court. Webb believed that good lawyering, which he defined as “the analytical, reasoned ability to solve problems and generate creative alternatives and create a positive context for settlement” was often missing in early mediation. Webb sought to create a settlement climate replicating the way some of his cases had naturally settled:

We find ourselves in a conference with the opposing counsel, and perhaps the respective clients, where the dynamics were such that in a climate of positive energy, creative alternatives were presented. In that context, everyone contributed to a final settlement that satisfied all concerned—and everyone left the conference feeling high energy, good feelings and satisfaction. More than likely, the possibility for a change in the way the parties related to each other in the future may have greatly increased. As a result, the lawyers may also develop a degree of trust between them that might make future dealings more productive.

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Recent Court Opinions

Murray,JoeBy Joseph S. Murray IV

The U.S. Court of Appeals for the 4th Circuit and the N.C. Court of Appeals issued the following labor and employment law opinions in the past several weeks:

Adams v. State of NC, COA15-1275 (N.C. Ct. App. Aug. 2, 2016)

Hubbard v. NC State Univ., COA16-38 (N.C. Ct. App. Aug. 2, 2016)

Tully v. City of Wilmington, COA15-956 (N.C. Ct. App. Aug. 16, 2016)

RLM Communications, Inc. v. Tuschen, No. 14-2351 (4th Cir. July 28, 2016)

Amaya v. Power Design, Inc., No. 15-1691 (4th Cir. Aug. 15, 2016)

Calobrisi v. Booz Allen Hamilton, Inc., No. 15-1331 & No. 15-1399 (4th Cir. Aug. 23, 2016) (unpublished)

 

 

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