I hope everyone had an enjoyable holiday season despite all the challenges we continue to face from this enduring pandemic. The Workers’ Compensation Section of the North Carolina Bar Association held its quarterly meeting on January 26, 2021. Several updates came out of the meeting and I wanted to share them with everyone.
Next week, beginning Thursday afternoon, February 4, 2021, the Section is holding its Spring CLE event. This event would typically be held at the Grandover in Greensboro but will be broadcast virtually this year. If you have not signed up, more information can be foundhere. Jeanette Byrum and Sherman Criner have put together an outstanding program this year with many varied topics. Additionally, if you are a Section member, you will receive a reduced rate!
Since the last 27 days didn’t give you much bandwidth to absorb any more new information, you may have missed the fact that we haven’t posted any new content to the blog yet. Our goal is to have a new article up every week, so we are already behind schedule. Which is partly why we are now calling on you!
The success of this blog depends on our members sharing their knowledge and experiences, as well as upcoming opportunities and events. Posting to the Litigation Section Blog is not only a good way to make sure your colleagues are informed, but to make sure they know who you are. All of us have likely seen referrals from other counsel, and showing your knowledge here can help you with that endeavor.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Litigationhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngLitigation2021-01-28 09:47:232021-01-28 09:47:23Calling for Content!
What we learned in 2020 was to expect the unexpected. Prior to February of 2020, who would have predicted the impact of a pandemic in general, let alone COVID-19 in particular, when drafting commercial real estate purchase contracts? Likewise, who would have predicted the impact of COVID-19 on due diligence, loan documents, and closings?
In the immediate aftermath of the initial impact of COVID-19 in the U.S., focus was on whether COVID-19 was within the scope of a force majeure clause or whether COVID-19 could reasonably be construed as an “Act of God.” Attorneys debated whether the governmental “stay-at-home” orders and other similar regulatory orders fell within the legal impossibility and/or frustration of purpose doctrines. Since then, what lessons have we learned?
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00RealPropertyhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngRealProperty2021-01-27 10:37:432021-01-28 13:52:30COVID-19 Checklist - Issues to Consider for Commercial Real Estate Purchase Contracts and Closings
On January 14, 2021, the Supreme Court of the United States handed down its opinion in City of Chicago, Illinois v. Fulton, where the Court addressed a single issue: whether an entity in mere possession of property in which a bankruptcy estate has an interest has an affirmative obligation under the Bankruptcy Code’s automatic stay, 11 U.S.C § 362, to return that property to the debtor or trustee immediately upon the filing of the bankruptcy petition.
Background
The case arose from four separate chapter 13 bankruptcy cases in which the debtors sought to regain possession of their vehicles from the City of Chicago, Illinois (“City”), which had seized and impounded the vehicles prepetition due to unpaid parking tickets and similar traffic fines. The bankruptcy court held in each case that, by refusing to return possession of the vehicles to the chapter 13 debtors upon post-petition request, the City had “exercised control” over property of the estate in violation of 11 U.S.C. § 362(a)(3). The bankruptcy court ordered the City to return the debtors’ vehicles and imposed sanctions for the City’s violation of the automatic stay. The cases were consolidated and certified for direct appeal to the U.S. Court of Appeals for the Seventh Circuit. The Seventh Circuit affirmed the bankruptcy court, relying on its prior holding in Thompson v. General Motors Acceptance Corp., that a creditor must return a debtor’s vehicle upon the filing of a petition for bankruptcy to comply with the automatic stay.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Bankruptcyhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngBankruptcy2021-01-26 15:27:392021-01-26 15:27:39Mere Retention of Property of the Estate Does Not Violate Section 362(a)(3)
Join us for our next Bluebook Club meeting! Sign up now to join a small group of other appellate-minded attorneys in a special Zoom social meeting. You can choose from two dates (or join us for both). Each registrant will be assigned into a small group of 3-6 other participants for a quick and fun discussion over your lunch break. No need to fear those dreaded, awkward Zoom silences — we’ll provide appellate-oriented icebreakers to kick-start your discussion. Whether you attended one of our fall sessions or are a new participant, we would love for you to join us!
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Appellatehttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngAppellate2021-01-21 10:37:272021-01-21 10:37:27The Bluebook Club - Back by Popular Demand
The agenda will be released shortly for this spring’s Elder Law and Special Needs Symposium, which will be provided by webcast. When the Symposium planning began, the Elder Law Section Council had been hoping that life would be sufficiently normal for everyone to gather together for fellowship and to trade war stories in addition to receiving some great education. Obviously, things have not returned to normal yet, and we will have to look forward to an in-person symposium next year.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00ElderLawhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngElderLaw2021-01-20 11:04:442021-01-20 11:04:44Thoughts on the Upcoming Elder Law Symposium
Kettering Foundation Announces New Vice President, Treasurer, and CFO
Jack L. Harper will serve as Vice President, Treasurer, and CFO of the Kettering Foundation. Harper has more than 27 years of public and private experience in tax law and corporate governance. In this position, Harper will oversee the foundation’s finances as well as play a role in the foundation’s work on democracy-related research. As a former Senior Director with Walmart, he was responsible for tax planning and led federal and state tax audit teams. Harper established Walmart’s Global Tax Controversy Center of Excellence. A Certified Public Accountant, Harper served as Chair of the North Carolina Bar Association’s Tax Section. He received a Bachelor of Science in accounting from North Carolina Central University, a Master of Science in taxation from Colorado State University, and a Juris Doctorate, with honors, from North Carolina Central University School of Law.
New Associate Joins the Law Offices of Anna Smith Felts, PLLC
Charles “Charlie” Gray has joined the Law Offices of Anna Smith Felts. His areas of practice are criminal and traffic law, and he is especially interested in criminal defense. He received a bachelor’s degree in political science and a minor in biological sciences from North Carolina State University, a Juris Doctorate from Campbell Law School, and a Master of Laws from Nottingham Law School.
Bradley Arant Boult Cummings LLP Announces New Partner
Matthew S. DeAntonio is now a partner at the Charlotte office of Bradley Arant Boult Cummings LLP. DeAntonio focuses on litigating in matters of intellectual property and complex business disputes. He represents clients in high-stakes trademark infringement cases at the trial court and on appeal and litigates complex business disputes in a variety of commercial settings. DeAntonio also leads the firm’s Franchise and Distribution Practice Group. He earned his Bachelor of Science, cum laude, from the University of South Carolina and his Juris Doctorate, cum laude, from the University of South Carolina School of Law. Read more
The decrease in the corporate tax rate by the 2017 Tax Act has made it more favorable for businesses to operate as C corporations. With more businesses opting to be C corporations, the gain exclusion of Section 1202 is more important. Section 1202 provides an exemption to eligible taxpayers of between 50% and 100% of the gain of the sale of Section 1202 stock.
Section 1202 applies only to qualified small business stock held for more than five years. Qualified small business stock is stock of a C corporation that was issued on or after August 10, 1993, if (a) as of the date of issuance, the corporation was a qualified small business, and (b) the stock was acquired by the taxpayer at its original issue (subject to narrow exceptions). A qualified small business is a U.S. corporation that is a C corporation and the aggregate gross assets of which at all times after August 10, 1993, and before and immediately after issuance did not exceed $50 million. Additionally, the corporation must meet an active business requirement. At least 80% by value of the assets of the corporation must be used in the active conduct of one or more qualified trades or businesses. A qualified trade or business is any trade or business other than the performance of services in the field of health, law, engineering, architecture, accounting, actuarial science, performing arts, consulting, athletics, or financial services, any trade or business where the principal asset of such trade or business is the reputation or skill of one or more of its employees, banking, insurance, financing, leasing, investing, or similar business, any farming business (including raising or harvesting trees), any business involving the production or extraction of products to which a deduction is allowable under Section 613 or 613A, or operating a hotel, motel, restaurant, or similar business.
Sophisticated construction projects often require engaging many professionals whose services are all interconnected and critical to the overall success of the project. Sometimes a design produced by architects and engineers will prove to be flawed, thereby delaying the project as a whole. Such flaws and delays can result in the builder being incapable of completing the project within the specific timeframe designated in the builder’s contract with the property owner and in this event, the property owner may be entitled to terminate the builder for breach of contract.
If a builder is terminated by the property owner in this scenario, does the builder have enforceable claims against the architects and engineers? What if the builder does not have a direct contract with those professionals, or did not have a valid general contractor license at the time work commenced on the project? According to a recent decision from the North Carolina Court of Appeals, the answer is yes, so long as those claims are solely based in common law negligence.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Constructionhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngConstruction2021-01-15 10:14:382021-01-15 10:18:05Court of Appeals Rules on the Application of the Licensure Defense in Tort Claims
NCBA WC Section Update – January 2021
Workers' Compensation SectionI hope everyone had an enjoyable holiday season despite all the challenges we continue to face from this enduring pandemic. The Workers’ Compensation Section of the North Carolina Bar Association held its quarterly meeting on January 26, 2021. Several updates came out of the meeting and I wanted to share them with everyone.
Next week, beginning Thursday afternoon, February 4, 2021, the Section is holding its Spring CLE event. This event would typically be held at the Grandover in Greensboro but will be broadcast virtually this year. If you have not signed up, more information can be found here. Jeanette Byrum and Sherman Criner have put together an outstanding program this year with many varied topics. Additionally, if you are a Section member, you will receive a reduced rate!
Read more
Calling for Content!
Litigation SectionPJ Puryear
Adam Banks
Tandy Mathis
By PJ Puryear, Adam Banks, and Tandy Mathis
Since the last 27 days didn’t give you much bandwidth to absorb any more new information, you may have missed the fact that we haven’t posted any new content to the blog yet. Our goal is to have a new article up every week, so we are already behind schedule. Which is partly why we are now calling on you!
The success of this blog depends on our members sharing their knowledge and experiences, as well as upcoming opportunities and events. Posting to the Litigation Section Blog is not only a good way to make sure your colleagues are informed, but to make sure they know who you are. All of us have likely seen referrals from other counsel, and showing your knowledge here can help you with that endeavor.
Read more
COVID-19 Checklist – Issues to Consider for Commercial Real Estate Purchase Contracts and Closings
Real PropertyWhat we learned in 2020 was to expect the unexpected. Prior to February of 2020, who would have predicted the impact of a pandemic in general, let alone COVID-19 in particular, when drafting commercial real estate purchase contracts? Likewise, who would have predicted the impact of COVID-19 on due diligence, loan documents, and closings?
In the immediate aftermath of the initial impact of COVID-19 in the U.S., focus was on whether COVID-19 was within the scope of a force majeure clause or whether COVID-19 could reasonably be construed as an “Act of God.” Attorneys debated whether the governmental “stay-at-home” orders and other similar regulatory orders fell within the legal impossibility and/or frustration of purpose doctrines. Since then, what lessons have we learned?
Read more
Mere Retention of Property of the Estate Does Not Violate Section 362(a)(3)
BankruptcyOn January 14, 2021, the Supreme Court of the United States handed down its opinion in City of Chicago, Illinois v. Fulton, where the Court addressed a single issue: whether an entity in mere possession of property in which a bankruptcy estate has an interest has an affirmative obligation under the Bankruptcy Code’s automatic stay, 11 U.S.C § 362, to return that property to the debtor or trustee immediately upon the filing of the bankruptcy petition.
Background
The case arose from four separate chapter 13 bankruptcy cases in which the debtors sought to regain possession of their vehicles from the City of Chicago, Illinois (“City”), which had seized and impounded the vehicles prepetition due to unpaid parking tickets and similar traffic fines. The bankruptcy court held in each case that, by refusing to return possession of the vehicles to the chapter 13 debtors upon post-petition request, the City had “exercised control” over property of the estate in violation of 11 U.S.C. § 362(a)(3). The bankruptcy court ordered the City to return the debtors’ vehicles and imposed sanctions for the City’s violation of the automatic stay. The cases were consolidated and certified for direct appeal to the U.S. Court of Appeals for the Seventh Circuit. The Seventh Circuit affirmed the bankruptcy court, relying on its prior holding in Thompson v. General Motors Acceptance Corp., that a creditor must return a debtor’s vehicle upon the filing of a petition for bankruptcy to comply with the automatic stay.
Read more
The Bluebook Club – Back by Popular Demand
Appellate PracticeBy Amie Sivon
Join us for our next Bluebook Club meeting! Sign up now to join a small group of other appellate-minded attorneys in a special Zoom social meeting. You can choose from two dates (or join us for both). Each registrant will be assigned into a small group of 3-6 other participants for a quick and fun discussion over your lunch break. No need to fear those dreaded, awkward Zoom silences — we’ll provide appellate-oriented icebreakers to kick-start your discussion. Whether you attended one of our fall sessions or are a new participant, we would love for you to join us!
Read more
YLD e-Blast: January 2021
Young Lawyers DivisionChristina Cress
Claire O’Brien
By Christina Cress and Claire O’Brien
Dates to Know
Jan. 28, 2021 | Law Student Networking Event | 5 to 6 p.m.
Jan. 29, 2021 | Insurance Law Section CLE & Annual Meeting | 8:25 a.m. to 4:45 p.m.
Feb. 4, 2021 | Antitrust & Complex Business Disputes Law Section CLE | 7:55 a.m. to 5:00 p.m.
Feb. 11, 2021 |Mingling with Membership: Crafting Enforceable Settlement Agreements at Mediation: Paths and Pitfalls | 4 to 5 p.m.
Feb. 28, 2021 | Deadline to Submit YLD Writing Competition Entry | 5 p.m.
March 11, 2021 | Mingling with Membership: Movies About the Law | 4 to 5 p.m.
March 18, 2021 | Estate Planning Section CLE | 8:55 a.m. to 4:10 p.m.
Read more
Thoughts on the Upcoming Elder Law Symposium
Elder & Special Needs LawThe agenda will be released shortly for this spring’s Elder Law and Special Needs Symposium, which will be provided by webcast. When the Symposium planning began, the Elder Law Section Council had been hoping that life would be sufficiently normal for everyone to gather together for fellowship and to trade war stories in addition to receiving some great education. Obviously, things have not returned to normal yet, and we will have to look forward to an in-person symposium next year.
Read more
Checking In: Jan. 19, 2021
Checking InCompiled by Jessica Junqueira
Kettering Foundation Announces New Vice President, Treasurer, and CFO
New Associate Joins the Law Offices of Anna Smith Felts, PLLC
Charles “Charlie” Gray has joined the Law Offices of Anna Smith Felts. His areas of practice are criminal and traffic law, and he is especially interested in criminal defense. He received a bachelor’s degree in political science and a minor in biological sciences from North Carolina State University, a Juris Doctorate from Campbell Law School, and a Master of Laws from Nottingham Law School.
Bradley Arant Boult Cummings LLP Announces New Partner
Matthew S. DeAntonio is now a partner at the Charlotte office of Bradley Arant Boult Cummings LLP. DeAntonio focuses on litigating in matters of intellectual property and complex business disputes. He represents clients in high-stakes trademark infringement cases at the trial court and on appeal and litigates complex business disputes in a variety of commercial settings. DeAntonio also leads the firm’s Franchise and Distribution Practice Group. He earned his Bachelor of Science, cum laude, from the University of South Carolina and his Juris Doctorate, cum laude, from the University of South Carolina School of Law.
Read more
Gain Exclusion for Section 1202 Stock
Tax SectionThe decrease in the corporate tax rate by the 2017 Tax Act has made it more favorable for businesses to operate as C corporations. With more businesses opting to be C corporations, the gain exclusion of Section 1202 is more important. Section 1202 provides an exemption to eligible taxpayers of between 50% and 100% of the gain of the sale of Section 1202 stock.
Section 1202 applies only to qualified small business stock held for more than five years. Qualified small business stock is stock of a C corporation that was issued on or after August 10, 1993, if (a) as of the date of issuance, the corporation was a qualified small business, and (b) the stock was acquired by the taxpayer at its original issue (subject to narrow exceptions). A qualified small business is a U.S. corporation that is a C corporation and the aggregate gross assets of which at all times after August 10, 1993, and before and immediately after issuance did not exceed $50 million. Additionally, the corporation must meet an active business requirement. At least 80% by value of the assets of the corporation must be used in the active conduct of one or more qualified trades or businesses. A qualified trade or business is any trade or business other than the performance of services in the field of health, law, engineering, architecture, accounting, actuarial science, performing arts, consulting, athletics, or financial services, any trade or business where the principal asset of such trade or business is the reputation or skill of one or more of its employees, banking, insurance, financing, leasing, investing, or similar business, any farming business (including raising or harvesting trees), any business involving the production or extraction of products to which a deduction is allowable under Section 613 or 613A, or operating a hotel, motel, restaurant, or similar business.
Read more
Court of Appeals Rules on the Application of the Licensure Defense in Tort Claims
Construction Law SectionSophisticated construction projects often require engaging many professionals whose services are all interconnected and critical to the overall success of the project. Sometimes a design produced by architects and engineers will prove to be flawed, thereby delaying the project as a whole. Such flaws and delays can result in the builder being incapable of completing the project within the specific timeframe designated in the builder’s contract with the property owner and in this event, the property owner may be entitled to terminate the builder for breach of contract.
If a builder is terminated by the property owner in this scenario, does the builder have enforceable claims against the architects and engineers? What if the builder does not have a direct contract with those professionals, or did not have a valid general contractor license at the time work commenced on the project? According to a recent decision from the North Carolina Court of Appeals, the answer is yes, so long as those claims are solely based in common law negligence.
Read more