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One of the more satisfying commitments I take part in at North Carolina Lawyers Weekly is the chance to recognize lawyers who have invested time and effort in their field.
The magazine recently presented its Icons & Phenoms honor to those who have risen or are rising to the top of their professions. It was a pleasure — really, an honor — to watch the reactions of those who were recognized at the presentation luncheon in Charlotte. That has not been the only such opportunity the magazine offers. In the spring, there was the Leaders in the Law presentation. The next similar event will recognize more than lawyers. North Carolina Lawyers Weekly will help honor the 50 Most Influential Women this autumn.
On top of these, the magazine offers its Power List series, recognizing lawyers in personal injury, business defense, health care, and family law at various times throughout the year. This month, the magazine’s Power List recognizes those who stand out in employment law.
These recognitions do not bring the acclaim that Pulitzers, Oscars and the like offer, but they are a chance for a lawyer to stand before his or her peers, be clapped on the back, receive a handshake, and be heartily and sincerely told “Well done!” by colleagues.
I suspect that makes the long days that lawyers put in a little more worthwhile.
Ross Chandler is the editor of North Carolina Lawyers Weekly. Email him at rchandler@lawyersweekly.com.
Substance and shadows coexist in the wake of the Supreme Court’s decision curtailing affirmative action.
Yes, U.S. Chief Justice John Roberts was clear: Race no longer has a place in admission decisions at institutions of higher learning.
Yet, diversity remains critical to many law schools and law firms. And the decision in Students for Fair Admissions v. Harvard cast a shadow of uncertainty over how to achieve
diversity without breaking the letter or the spirit of the law — which Roberts assured us is the same.
On June 29, the same day the Harvard decision was rendered, the Supreme Court ruled in Students for Fair Admissions v. University of North Carolina that UNC’s consideration of race in admissions violated the Constitution’s Equal Protection Clause.
Officials from the University of North Carolina School of Law
declined to comment.
South Carolina Attorney General Alan Wilson did not immediately respond to a request for comment, but his office — along with 12 other state attorneys general — signed an open letter to Fortune 100 companies warning them of their obligations as an employer to refrain from discrimination based on race “whether under the label of ‘diversity, equity, and inclusion’ or otherwise.”
“Treating people differently because
of the color of their skin, even for benign purposes, is unlawful and wrong,” the letter reads. “Companies that engage in racial discrimination should and will face serious legal consequences.”
North Carolina Attorney General Josh Stein released a statement after the high court’s rulings, calling education the “great equalizer” that helps Americans achieve the American dream and noting that the decision makes it more difficult for young Americans to bring that dream to life.
“With crippling student debt and without affirmative action, minority students and those from working families will have to work even harder to catch up to their peers from more privileged backgrounds,” Stein wrote. “Our nation represents the promise of opportunity for all; that promise has been tarnished this week. I will keep fighting for an America that delivers on its ideals.”
At law schools across the Carolinas, officials said the decision will have minimal impact on their admission practices. Speaking for the entire university, University of South Carolina President Michael Amiridis said the school will continue to be committed to a campus environment that respects individuals with a variety of life experiences, including those from underrepresented backgrounds.
“We will continue to welcome qualified students who contribute to our diverse university learning environment and embrace a student body that reflects the people and communities that make up our state and our nation,” Amiridis said.
At Campbell University School of Law in North Carolina, Assistant Dean of Admissions Miguel Hernandez said admission is determined by holistic reviews of all applicants, regardless of ethnicity. He does not expect the process to change much, if at all.
“I, along with peers at law school admissions offices around the coun-
VIDEO: See Larry Cunningham, dean of the Charleston School of Law, talk about diversity and its impact on the school in a video at nclawyersweekly.com
COMMENTARY: Taylor Dumpson, who co-authored the brief for the respondent-students in Students for Fair Admissions v. University of North Carolina, outlines options to ensure diversity in admissions in a commentary on Page 33.
try, have anticipated this ruling for a few years now and have geared our evaluation process toward a holistic review as did the University of California system following the passing of Proposition 209 which … prohibited state governmental institutions from considering race, sex or ethnicity,” Hernandez said. “It’s important to note that our reality as a country is that we continue to become more diverse, and as this happens, our institutions of higher learning will inevitably follow suit.”
Dean Larry Cunningham of the Charleston School of Law said that while the school will carefully monitor the analysis of accreditors, the Law School Admission Council, higher education law experts, and others to ensure that the school complies with the Supreme Court decisions, the rulings are unlikely to affect how Charleston does business.
“We do not engage in the types of practices that were at issue in the UNC and Harvard cases,” Cunningham said. “And the court left open the ability of schools to consider the lived experiences of individual students, including about race and ethnicity, which is consistent with a holistic review of applications.”
Representatives for the law schools at Elon, Duke and Wake Forest universities did not respond to requests for comment. A representative from N.C. Central University’s law school replied after press deadline.
But ensuring that the admission
process is not in conflict with the law is one thing; another is to do so while still achieving some level of diversity in the classroom — and the legal field. One need not look further than Justice Sonia Sotomayor’s dissent to find a blessing to do so.
Roberts, noting that a dissent is rarely a good place to look for legal advice on complying with an opinion, clarified that “universities may not simply establish through application essays or other means the regime we hold unlawful today.” Sotomayor, however, claimed the tools she suggested — including socioeconomic factors and first-generation college applicants — are not interchangeable with race.
But socioeconomic factors can be harder to use in law school admissions. Admitting more people from ZIP codes that generally indicate limited means does not work when applicants no longer live where they grew up.
Cunningham said it is understandable in a community of diverse viewpoints that people of goodwill have good-faith disagreements about the decisions. He pointed to an opinion piece written by Charleston Law professor Nancy Zisk and published in The Post and Courier newspaper in Charleston. Zisk opined that the ruling majority ignored pleas from several universities that race — part of who we are — is an important factor to consider in the admission process.
“Even if there is not a ‘race’ box to check, it simply cannot be removed from the lives we live and the stories we tell,” Zisk wrote. “And those stories are the stuff of personal statements and letters of recommendation.
“Will the Supreme Court ban those next?”
Hernandez said reactions were mixed at Campbell Law.
“Students and faculty have
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Continued From Page 5
expressed disappointment because of the many opportunities that affirmative action has brought to underrepresented people and the sense that these opportunities may be far fewer,” Hernandez said. “Others approve of the decision, citing a sense of ensuring that the playing field is now level for all.”
From Hernandez’s perspective, the rulings will not prohibit higher education institutions from thriving, as evidenced by California’s recovery more than 25 years ago.
“The thing that I believe the [University of California] system did well was create a robust admissions policy that has withstood many contests in the courts,” Hernandez said. “By and large, the main critique of what the U.C. system did not do was market to their audience and let them know how valuable they were. Taking a page from that book, my peers and I feel very strongly about our common message to prospective students of all backgrounds: ‘The legal profession needs you.’”
Admissions alternatives
Cunningham, of Charleston, compared college admission to a pipeline or funnel that begins with prospective students interested in a specific degree program. He does not believe the Supreme Court’s decisions affect “pipeline-building efforts.” He said that the law school routinely works with undergraduate colleges to encourage students to consider a career in law.
“Our pipeline building even extends into the K-12 level through programs like our Street Law Clinic, where law students teach legal topics to students in Title I schools in part to get them interested in the law and see themselves as future attorneys,” Cunningham said. “Moreover, just as an applicant to college may write in a personal statement about his or her family’s legacy of attending that col-
lege, applicants are also free to write about their lived experiences with race and ethnicity and how they have affected their personal development and future outlook.”
Hernandez pointed to the holistic review employed by Campbell Law as the most common alternative to race-based admission, allowing an applicant’s strengths to emerge from any portion of the application.
“As I mentioned before, and in anticipation of the Supreme Court decision, schools across the U.S. have implemented holistic reviews as an alternative before it was necessary,” Hernandez said. “Beyond that, individual institutions and their leadership are the source of examining alternatives that best suit their institutional culture and goals.”
Hernandez went on to say that he believes the decision to outlaw affirmative action might generate more diverse applicants as a “form of public response.”
“For example, this year’s Law School Admissions Council Forum in Washington, D.C., was just two weeks ago, and immediately followed the SCOTUS decision on affirmative action,” he said. “It was one of the most diverse and well-attended law school forums in my experience, and I believe that the Supreme Court inspired that.
“As far as recruiting, Campbell Law School will continue to stay the course of recruiting a broad range of applicants. The truth is that both underrepresented and majority populations stand to gain a great deal from one another by engaging.”
The decisions do not change Charleston Law’s shared commitment to diversity, equity and inclusion or the concrete steps the institution takes to advance those values, Cunningham said.
“The decisions also do not affect Charleston Law’s continued support of student organizations like the Black Law Students Association, Women in Law and First Generation
Law Students Association, to name a few, that contribute meaningfully to our campus culture in which students of all ethnicities and backgrounds work and hone their legal skills in an academically challenging environment,” he said.
The fear among many is that the rulings will decrease the representation of minorities and underrepresented groups in college, and that effect will trickle into law schools and the legal profession. According to the American Bar Association, just 10% of attorneys are Black or Hispanic (5% each), and non-Hispanic whites make up 86% of all lawyers in the United States. A voluntary survey in North Carolina suggests that 9% of attorneys in the state are African American, while a similar survey suggests that 7% of South Carolina attorneys are.
Despite the discrepancy, not everyone believes that the Supreme Court’s rulings in Harvard and UNC will be detrimental to the success of the legal industry.
Robert Goings of the Goings Law Firm in Columbia said that while it might not be popular to voice among some, many lawyers and constitutional scholars agree with the high court’s decisions. He said that nothing in the Constitution permits universities to base the admission process on race.
“The holding of the Supreme Court will cause law school admissions to become more merit-based, and this will ultimately require law firms to hire and promote attorneys based on talent, skill, industry, experience and ambition, not just to meet a diversity quota,” he said. “Going forward, I would expect many lawsuits to be filed against ‘corporate America,’ especially the larger law firms, for Civil Rights Act violations due to enacting aggressive affirmative action hiring practices, diversity and inclusion programs that exclude, or other racially based hiring and promotion concepts.” ◆
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Lenneka H. “Nikki” Feliciano plays two roles as chair of the board of directors of Legal Aid of North Carolina: the passionate advocate for the organization and its steady leader.
Her duties might not have her in the office day to day, but she carefully monitors the work of the organization she and others pronounce “lance.”
“[F]or the board chair, I have a broad range of duties, including leadership of the board, leadership of the executive committee, the overall oversight that the board has in certain matters in LANC,” she says. “It’s not like a daily responsibility, but it’s always something that needs to be addressed.”
Then there is the partner at Pinto, Coates, Kyre and Bowers in Greensboro who takes pride in LANC and willingly shares that with others, in part to recognize its many successes but also to build interest and support in the community. One place where pride comes through is when she describes how she recruits others to help the organization.
“I just try to educate those around me concerning the work that LANC does and the need for support from the community,” Feliciano says. “That comes in terms of educating those at my firm and also in my various circles and friends, just letting them know all the wonderful things that
• Place of birth: Greensboro.
• Education: Bachelor’s in political science, N.C. State University, 2004; Juris Doctor, Elon University School of Law, 2011.
• Firm: Pinto, Coates, Kyre and Bowers in Greensboro, rising from legal assistant to paralegal to summer law clerk to associate
VIDEO: See Nikki Feliciano talk about the challenges of returning to law school after she already had established a successful legal career in a video at nclawyersweekly.com.
LANC does and all the support that is needed to further that work and continue that work.”
The path that led her to the law was a long one. A long-held personal interest and a relative fueled her interest in the field.
“When I was younger, I would say at least the time I was in the preteens, I wanted to be a lawyer,” she says. “I had an uncle who was in practice in Pennsylvania, and he would share stories of the courtroom. … That intrigued me and was the one source I had for the practice of law at the time.”
As a college student, she interned at a law office during the summer and worked as a legal assistant during her senior year at N.C. State University.
“It just continued from there. It let me know that this was something I can do and would do.”
After earning her bachelor’s in English at N.C. State, she started to work at Pinto, Coates, rising from legal assistant to paralegal. The experience led her to apply to Elon University School of Law, where she earned a Juris Doctorate in 2011.
Returning to Pinto, Coates as an associate, she is now a partner with a practice in worker’s compensation, insurance
and now partner.
• Civic engagement: “Legal Aid [of North Carolina] does take up a lot of my time.” Also rearing three children, two of whom play club or travel volleyball; chairs insurance law section of the N.C. Bar Association; formerly worked with Potter’s House community kitchen.
defense, insurance coverage, subrogation, and personal injury, commercial and construction litigation, the firm’s website says.
The path to her role in Legal Aid was shorter.
A friend, S. Camille Payton of the Hunter, Everage law firm in Charlotte, recruited Feliciano in June 2019 to volunteer with the agency. She quickly rose in its leadership, serving as vice chair of the board before taking the gavel from departing chair Gonzalo E. Frias, a member of the legal team for Wells Fargo, on July 1.
Installing Ashley Campbell as the agency’s new executive director has been Feliciano’s most satisfying success so far, but the effort was more than simply choosing the strongest candidate.
“I was part of the process when we got a new CEO for Legal Aid,” she says. “That certainly was something I was very honored to be a part of and proud of the manner in which the transition and search committee handled that process and proud of the relationships that I strengthened in that process.”
As the board chair, her plans for Legal Aid combine her goals and those of others.
“One of my top priorities is to have a closer relationship with the staff of LANC,” she said. “My other goals are to have a closer relationship with the client council of LANC and to continue the board
• First job : “I was 15, and I worked at McDonald’s.”
• Biggest career challenge: “A continuing challenge is the work-life balance that we all try to achieve. I have children, and I’m a single mom. … I have to maintain my practice, and I want to give back to my community.”
For decades, the North Carolina Legal Education Assistance Foundation has focused on recruiting and retaining public interest attorneys whose salaries are lower than public-sector attorneys and whose law school debt might prevent them from engaging in public service. According to the agency, assistant district attorneys, public defenders and nonprofit lawyers often must choose between public service and pursuing higher salaries.
Katherine Blass Asaro, NC LEAF’s executive director, spoke recently with Lawyers Weekly, discussing key components of the agency, including its mission, who benefits from its
work, and why its existence is important.
Before she joined NC LEAF, Asaro served as senior staff attorney and Disaster Legal Services program director at the North Carolina Pro Bono Center, a program of the North Carolina Supreme Court’s Equal Access to Justice Commission; clerked for Chief Judge William Osteen Jr. and Senior Judge N. Carlton Tilley in the Middle District of North Carolina; and served as a staff attorney at the North Carolina School Boards Association in Raleigh.
The Michigan-born, Ohio-reared Asaro has a bachelor’s degree in history and a teaching certification from Duke University, a master’s in educa-
tion from Harvard University and a law degree from the University of North Carolina School of Law.
1What is NC LEAF?
A: The North Carolina Legal Education Assistance Foundation was founded in 1989 by North Carolina law students and deans passionate about public interest work, making the program the oldest loan repayment assistance program in the country. Since its inception, over $7 million has been awarded to 1,500 attorneys serving our state as legal services providers, prosecutors, public defenders and
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attorneys at nonprofits. We have had a varied history of funding from the state for loan repayment assistance and are currently in the state budget through June 2023. This funding allowed us to grow from serving approximately 20 attorneys in 2019 to welcoming our largest class of recipients to date — 113 public interest attorneys — in 2023.
Whom do you serve?
A: All public interest attorneys across North Carolina. Equal access to justice is a cornerstone of our legal system. NC LEAF encourages attorneys across North Carolina to pursue and remain in careers in pub -
lic service through an educational loan repayment assistance program. Student loan debt continues to be an overwhelming reason why attorneys decline or leave public interest law. Most law students borrow to finance their legal education, and rising costs have imposed staggering debt. Public interest salaries have failed to keep pace with the escalating cost of education. With starting salaries below $55,000 and an average debt load of $150,000, it is a challenge to pursue one’s desire for public interest law.
What does that service look like?
A: NC LEAF reimburses our participants up to $400 per month for required monthly loan payments.
4
2 3 5 Continued From Page 9
Who is eligible for your services?
A: An applicant must be a licensed North Carolina attorney and employed full time in North Carolina in a public interest field. Full eligibility requirements are available at ncleaf.org/ apply-now/#eligibility.
Why is what you do so important?
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A: NC LEAF impacts everyone in North Carolina. We serve the unique purpose of improving access to justice in North Carolina through helping public interest attorneys stay in public interest jobs. As a current recipient relayed: “I want to make any community I am in better, but knowing I am trading any chance of making more money to pay off student loans for a more rewarding career is a burden. NC LEAF gives me that assistance in making my student loan payment something I can forget about month to month, while giving me one less worry in/out of courtroom but one more reason to stay and help where I am.”
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Public interest attorneys are historically underpaid and burdened by debt. NC LEAF works to alleviate that burden and allow more excellent attorneys to enter public interest work. This directly impacts the citizens of North Carolina by having more attorneys available to provide legal help when they need it. One of this year’s recipients put it: “The people of North Carolina reap the benefits of NC LEAF largely because it helps so many public interest attorneys remain in their positions.
Two university officials' internal deliberations about a professor’s retirement plans and resistance to technology after not renewing her contract were not “direct evidence” of age discrimination, the 4th U.S. Circuit Court of Appeals has held.
The court affirmed the Western District of Virginia’s grant of summary judgment for Liberty University on the plaintiff’s Age Discrimination in Employment Act, or ADEA, claim.
“Stated succinctly, [the plaintiff] has failed to demonstrate that age was the but-for cause of her 2018 nonre-
newal,” U.S. Circuit Judge Robert B. King wrote. “[The plaintiff] was not meeting [the university’s] legitimate expectations at the time of her nonrenewal, in that she repeatedly failed to develop a digital art skillset.”
Senior Circuit Judge Diana Gribbon Motz and Judge Julius N. Richardson authored concurring opinions.
The opinion is Palmer v. Liberty University Inc.
Richmond litigator Richard F. Hawkins III told Lawyers Weekly that he has moved the 4th Circuit for
reconsideration and is prepared to take Palmer’s case to the U.S. Supreme Court.
He said there are two “big issues” with Liberty’s legitimate expectation argument.
“A year or two before she was let go, they asked Eva Palmer to teach online courses; she declined and they never asked again,” he said. “The bigger question was, ‘Could she do it?’ She wasn’t proficient yet, but they didn’t require that of everybody, and she was never told that her job was on the line.
Instead, they said ‘you need to do these things to get promoted’ and that’s exactly what she did.”
Hawkins said Liberty hired several younger art professors with graphic design skills.
“But they never stopped teaching Palmer’s class,” he noted. “Liberty gave her the highest accolade possible and then couldn’t have terminated her sooner under their process.”
Hawkins reported that his client recently died. She was 84.
Liberty is a Christian university in Lynchburg, Virginia, where Palmer taught studio art courses from 1986 to 2018. She was eventually promoted to full professor by 2016. She never taught a digital art class while employed at Liberty.
Before her 2016 promotion, Palmer
worked with department Chair Todd Smith and Dean Scott Hayes to create a professional development plan. The plan advised her to develop digital art and technology skills. Annual evaluations repeated that advice.
After Smith and Hayes said Palmer wasn’t qualified to help Liberty meet the increased demand for digital art courses, Liberty decided not to renew her 2018 contract.
In later discussions, Smith and Hayes decided to report that Palmer retired; Hayes told the provost that Palmer wasn’t qualified to teach digital art class or use the online platforms.
When the provost suggested that Palmer be given a year to improve, Hayes responded that she was resistant to change. Palmer was 79 years old when Liberty informed her of the nonrenewal.
Palmer sued Liberty under the ADEA in the Western District of
Virginia.
U.S. District Judge Norman K. Moon granted Liberty summary judgment on the ADEA claim, but ruled that Palmer wasn’t a “minister” for purposes of the First Amendment’s “ministerial exception.”
Under the ADEA, “‘an employee cannot prevail … by showing that age was one of multiple motives for an employer’s [adverse employment] decision; the employee must prove that the employer would not have fired her in the absence of age discrimination,” King pointed out.
“Starting with the retirement comments, at least two of our sister circuits have concluded that mere comments or inquiries about retirement — without more — fail to constitute direct evidence of age discrimination.
Pursuant to the recently promulgated 20 C.F.R. § 404.1520c, the administrative law judge should have sought more information rather than rejecting plaintiff’s claim based on the ALJ’s discounting of a doctor’s opinion.
We reverse the denial of benefits and remand for further proceedings.
Background
Plaintiff’s main complaint is back pain, which he asserts limits him to resting most of the time. However, he is able to do some chores if he takes breaks.
Plaintiff has a very limited medical record. According to plaintiff, he cannot afford medical care.
An independent medical examination by Dr. M.A. Samia revealed “severe narrowing” of one spinal disk, “moderate narrowing” of another spinal disk, and “[p]rominent hypertrophic degenerative changes” in plaintiff’s lower lumbar facet joints. Based on Dr. Samia’s recommendation, plaintiff uses a cane.
The ALJ discounted Dr. Samia’s opinion that plaintiff needs an ambulatory device and concluded that plaintiff had the residual functional capacity for medium work.
Under new regulation 20 C.F.R. § 404.1520c, when determining the persuasiveness of medical opinions, an ALJ must consider the following factors: (1) supportability; (2) consistency; (3) a physician’s relationship with the claimant; (4) a physician’s specialization; and (5) other factors, like a physician’s familiarity with the evidentiary record or their understanding of the Social Security Administration’s policies and evidentiary requirements.
If the available evidence is incomplete, insufficient, or inconsistent, an ALJ will determine “the best way” to resolve the issue, which may include one or more of four paths forward: (1) recontacting a medical source for clarification; (2) requesting additional existing evidence; (3) asking the claimant to undergo a consultative examination; or (4) asking the claimant or others for more information. If “there are inconsistencies in the evidence that [the ALJ] cannot resolve or when, despite efforts to obtain additional evidence, the evidence is insufficient to determine whether [a claimant is] disabled, [the ALJ] will make a determination or decision based on the evidence [she possesses].” 404.1520b(b)(3).
Dr. Samia’s opinion offers little explanation underpinning the recommendation of an ambulatory device. But it is likewise true that Dr. Samia diagnosed plaintiff with arthritis, and that imaging results supported the impression that plaintiff suffered from multi-level disk disease.
To the extent that Dr. Samia’s justification for his ambulatory-device recommendation was ambiguous, the medical record is incomplete and the ALJ should have “take[n] additional actions” to seek clarification. 20 C.F.R. § 404.1520b(b). If given the opportunity, Dr. Samia could discuss whether the passage of time between 2018 and 2019 could explain plaintiff’s apparently deteriorated gait and mobility, particularly given his undisputed, objective diagnoses of sciatica, disk disease, and arthritis. A simple inquiry could have resolved any ambiguities, and in the
absence of clarity on the issues of consistency and supportability with respect to the three medical examinations, it cannot yet be said that substantial evidence supports the denial of benefits.
The ALJ also failed to adequately consider the intensity and persistence of plaintiff’s pain, and the ALJ improperly considered whether plaintiff’s daily activities were inconsistent with his claim of disability.
Reversed and remanded.
Dissent (Rushing, J.) At no point did the ALJ find Dr. Samia’s report “ambiguous” or “incomplete.” Rather, she found his opinion about plaintiff’s need for an ambulatory device unsupported by his own examination of plaintiff and inconsistent with the other medical examinations in the record. The duty to weigh the evidence and resolve conflicts in the record rests with the ALJ, not with a reviewing court, and the ALJ fulfilled that duty here.
Furthermore, the ALJ didn’t question the reality or severity of plaintiff’s pain but instead reasoned from the medical records and other evidence that his pain did not result in major deficits to his strength, range of motion, or ability to ambulate. That was the relevant question for assessing plaintiff’s claims about the limiting effects of his symptoms.
Oakes v. Kijakazi (Lawyers Weekly No. 001068-23, 19 pp.) (Henry Floyd, S.J.) (Allison Jones Rushing, J., dissenting) No. 21-2421. Appealed from USDC at Raleigh, N.C. (Robert Numbers, M.J.) Karl Osterhout for appellant; Natasha Todman McKay, Michael Easley and Keeya Jeffrey for appellee.
Before the Office of Administrative Hearings, teacher Matthew Minick direct-
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ed that all documents be sent to his attorney; in fact, on the contested case hearing petition form, he listed his attorney’s office address in the blank labeled “Print your full address.” Nevertheless, when the State Board of Education sought judicial review of the OAH’s decision, G.S. § 150B-46 required the SBOE to serve process on Minick directly. Where the SBOE sent its petition to Minick’s attorney, the superior court did not obtain personal jurisdiction over Minick.
We affirm the superior court’s dismissal of the SBOE’s petition.
Section 150B-46 states in relevant part, “Within 10 days after the petition is filed with the court, the party seeking the review shall serve copies of the petition by personal service or by certified mail upon all who were parties of record to the administrative proceedings. Names and addresses of such parties shall be furnished to the petitioner by the agency upon request.”
Although service on an attorney of record would be appropriate in many other types of cases under N.C. R. Civ. P. 4, § 150B-46 controls service in this context.
The mere appearance of the attorney as counsel in the case does not constitute a “directive” to serve the attorney for purposes of § 150B-46. Minick’s OAH petition does not include any language to indicate that, by printing an address other than his own on the petition, Minick waived the statutory service requirements of § 150B46.
Even if Minick had actual notice of the SBOE petition, this notice does not render service upon his attorney compliant with § 150B-46. Strict compliance with § 150B-46 is required for proper service of a party, and without such compliance there is no personal jurisdiction.
Affirmed.
North Carolina State Board of Education v. Minick (Lawyers Weekly No. 011-108-23, 14 pp.) (Donna Stroud, C.J.) Appealed from Orange County Superior Court (Mark Klass, J.) Zach Padget for petitioner; MaryAnn Leon for respondent; Michael McGuinness and Verlyn Chesson Porte for
amicus curiae. North Carolina Court of Appeals.
In separate engagement letters, a law firm agreed to represent (1) the defendant-limited liability company as to corporate matters and (2) the defendant-LLC members with respect to the current litigation. The latter engagement letter stated that “in the unlikely event of a disagreement among you, the attorney-client privilege will not protect the information you share with us.” There was evidence to support the trial court’s ruling that one of the LLC members could waive the attorney-client privilege as to a secret recording that he made of a Zoom meeting among counsel and the LLC members.
We affirm the trial court’s ruling.
At issue is whether the trial court properly determined that defendant Hurysh jointly held the attorney–client privilege over the Zoom call and whether the court used the proper legal test to make that determination.
The usual five-factor test is set out in Friday Invs. LLC v. Bally Total Fitness of the Mid-Atl., Inc., 370 N.C. 235 (2017). The defendant-LLC asks us to adopt a more sophisticated test used by other courts when a corporate officer asserts a personal claim of attorney-client privilege over communications with the corporation’s counsel. In re Bevill, Bresler & Schulman Asset Mgmt. Corp., 805 F.2d 120 (3d Cir. 1986).
We see the benefit of endorsing the Bevill test for use when our courts must determine whether a corporate official can assert an individual attorney–client privilege over communications with corporate counsel.
However, in this case, the facts found by the trial court mean there was no need to apply the Bevill test, because the advice the law firm provided was not given as corporate counsel but instead as joint defense counsel for the company and its individual members who were named par-
ties in this litigation. Specifically, the trial court found that Hurysh was represented by the firm in this litigation under the terms of an express engagement letter. That engagement letter stated that the firm jointly represented Hurysh, his fellow LLC members, and the LLC and that “there will be no way in this joint representation for you to pursue your individual interests through your common attorney.” The engagement letter further stated that “in the unlikely event of a disagreement among you, the attorney–client privilege will not protect the information you share with us.”
After reviewing the entire Zoom-call transcript in context, the trial court found that the purpose of the call was for an attorney from the firm to give the four members of the LLC information for them to determine whether it was in their individual best interests to sign a proposed amended operating agreement, drafted by the firm’s attorneys for possible execution, particularly in light of the pending litigation. Based on this finding, the court further found that, during the call, the communications from the attorney were “in his capacity as an attorney” with “a firm that Hurysh had hired to defend him in this litigation, providing legal advice about the potential impact of Hurysh’s possible actions (signing an amendment to [the LLC’s] operating agreement) on his defense in this litigation.”
Finally, the trial court acknowledged that the attorney “very messily” stated at one point during the call that “our client is the company” and that the amended operating agreement “is in the best interest of the company.” But the trial court found that this “disclaimer” did not change the fact that the attorney went on to “give Hurysh advice that was in his best interest in defending himself in the lawsuit” and that the attorney gave that personal legal advice to Hurysh “without limitation or qualification.” Thus, the trial court found that the attorney’s communications on the July 22 call were subject to the litigation engagement letter creating a joint defense relationship among Hurysh, his fellow LLC members, and the company itself. All of these fact findings are support-
ed by at least some competent evidence in the record.
The trial court found that the law firm was not acting as corporate counsel but instead as joint defense counsel for a number of clients including Hurysh. Based on that finding, the trial court properly determined that Hurysh jointly held the attorney–client privilege with respect to the Zoom call and that Hurysh “therefore may opt to waive the privilege if he so desires.” Affirmed.
Howard v. IOMAXIS LLC (Lawyers Weekly No. 010-024-23, 13 pp.) (Richard Dietz, J.) Appealed from Mecklenburg County Superior Court (Michael Robinson, J.) Patrick Kelly, Greg Ahlum and David Lewis for plaintiffs; Benjamin Chesson, David Allen, Anna Majestro and Travis Bustamante for the defendant-LLC; Jason Miller, Paul Flick, John Holton, Robert Rader and Robert Orr for defendant Hurysh. North Carolina Supreme Court
Even though the respondent-debtors’ mortgage payment is higher than the amount listed in the “National and Local Standards” for their area, since a mortgage is a secured debt, the entire amount of the debtors’ mortgage payment may be deducted from their gross income in order to determine the amount of disposable income they have left over to pay unsecured creditors.
We affirm the bankruptcy court’s order overruling the petitioner-trustee’s objection to respondents’ Chapter 13 plan.
We join the 6th and 9th Circuits in holding the Chapter 13 means test permits above-median income debtors to deduct the actual costs of their mortgage payments when calculating their disposable income.
In Chapter 13 of the Bankruptcy Code, “disposable income” means “current monthly income received by the debtor” minus “amounts reasonably necessary to be expended.” 11 U.S.C. § 1325(b)(2). And
for above-median income debtors like respondents, the Bankruptcy Code instructs that “[a]mounts reasonably necessary to be expended . . . shall be determined in accordance with subparagraphs (A) and (B) of section 707(b)(2).” § 1325(b) (3).
“The debtor’s average monthly payments on account of secured debts shall be calculated as the sum of . . . the total of all amounts scheduled as contractually due to secured creditors in each month of the 60 months following the date of the filing of the petition.” § 707(b)(2)(A)(iii)(I) (“Clause Three”).
The mortgage on the debtors’ house is a “secured debt[].” 11 U.S.C. § 707(b)(2)(A)(iii). Accordingly, Clause Three says the debtors’ “average monthly payments on account of” that mortgage “shall be calculated” based on the amounts “contractually due to secured creditors,” § 707(b)(2)(A) (iii)(I)—that is, what the debtors owe under their mortgage agreement. Performing that calculation, the debtors reached an average monthly payment of $2,233.34.
Then, § 707(b)(2)(A)(i) tells the debtors to “reduce[]” their “current monthly income” “by the amount[] determined under” Clause Three. § 707(b)(2)(A)(i). Thus, the debtors subtracted $2,233.34 (and other uncontested amounts) from their current monthly income to reach a disposable income of $253.27. Easy-peasy.
We reject the trustee’s arguments to the contrary.
11 U.S.C. § 707(b)(2)(A)(ii)(l) provides in part, “The debtor’s monthly expenses shall be the debtor’s applicable monthly expense amounts specified under the National Standards and Local Standards . . . issued by the Internal Revenue Service for the area in which the debtor resides, as in effect on the date of the order for relief[.]”
Because the Local Standards contain allowances for “[h]ousing expenses”—and define that term to include “mortgage (including interest),” Internal Revenue Manual § 5.15.1.10.1 (Nov. 22, 2021)—the trustee insists the debtors must use the
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lower, Local Standard number rather than their actual mortgage payment.
However, just two sentences after the language the trustee relies on, § 707(b)(2) (A)(ii)(I) states, “Notwithstanding any other provision of this clause, the monthly expenses of the debtor shall not include any payments for debts.” A home mortgage is, of course, a debt. Thus, the National and Local Standards govern a debtor’s “monthly expenses,” but mortgage payments are not “monthly expenses.”
The trustee’s plea for a reasonableness limitation sounds in public policy. Because Congress made a conscious effort in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 to cabin the discretion of bankruptcy judges by removing the judges’ power to determine what is or is not “reasonably necessary,” we decline to interpret the statute to restore the very power Congress removed. Affirmed.
Bledsoe v. Cook (Lawyers Weekly No. 001-070-23, 10 pp.) (Toby Heytens, J.) No. 22-1328. Appealed from USBC at Wilmington, N.C. (Stephani Humrickhouse, J.) Joseph Bledsoe for appellant; Richard Preston Cook for appellees. United States Court of Appeals for the Fourth Circuit.
The appellant-insurer concedes that it appeals from an interlocutory order: an order requiring it to defend its insured in an underlying lawsuit. The insurer contends the order is immediately appealable under 28 U.S.C. § 1292(a)(1) because the order functions as an injunction. However, because the underlying action has been resolved, there is no possible present or prospective requirement for the insurer to act by providing a defense to its insured. Instead, any breach by the insurer in failing to provide the insured a defense can be remedied at this juncture by an award of damages.
Appeal dismissed.
Selective Insurance Co. of America v. Westfield Insurance Co. (Lawyers Weekly No. 001-083-23, 11 pp.) (Barbara Milano Keenan, S.J.) No. 19-1498. Appealed from USDC at Raleigh, N.C. (Earl Britt, S.J.) Matthew Adams Abee and Robert Calamari for appellant; Morgan Stuart Templeton, Michael Terry Medford, Sanford Thompson, Mark Langdon, Phillip Reeves and James Dedman for appellees. United States Court of Appeals for the 4th Circuit
DWI – Search & Seizure –Warrantless Blood Draw – Exigent Circumstances – ‘Driver’ Testimony
Responding to a report of a single-vehicle accident, (1) the responding officer found defendant seriously injured near the vehicle, (2) the officer spent an hour investigating the scene before following defendant to the hospital, (3) defendant was unresponsive and the officer believed he might need surgery, and (4) the officer feared a trip to the magistrate’s office might take too long as defendant’s blood alcohol content dissipated. Exigent circumstances thus allowed the officer to secure a warrantless draw of defendant’s blood.
We find no reversible error in defendant’s convictions for driving while impaired and reckless driving to endanger.
In Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019), a plurality of the U.S. Supreme Court held that exigent circumstances “almost always” exist to conduct a warrantless blood draw where an unconscious driver is taken to the hospital. Generally, once the state shows exigent circumstances, the defendant should have the opportunity to offer evidence of a lack of exigency. Here, defendant had that opportunity, as Mitchell was discussed at length below. The trial court did not reversibly err by allowing the results of the warrantless blood draw into evidence.
Even though the officer should not have been allowed to testify that defendant was the driver of the wrecked vehicle, the trial court cured the error by instructing the jury that the jury should disregard such testimony because the question of whether defen-
dant was the driver was for the jury to decide. In any event, defendant cannot show prejudice because he failed to object to other evidence – including the officer’s report – identifying defendant as the driver.
Dissent
(Tyson, J.) The natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.
The majority’s opinion cites Mitchell, which neither party argues nor relies upon in their briefs, to support its conclusion. But the facts of Mitchell do not support the admission of the warrantless blood draw in this case.
Moreover, the majority’s opinion unconstitutionally shifts the burden onto the defendant to prove the default necessity of a warrant!
The purported possibility the magistrate might be delayed, defendant’s unconsciousness, or possibility of blood alcohol dissipation does not excuse the trooper’s inaction and does not create an exigent circumstance to justify the trooper’s failure to seek a warrant or to order or compel a medical professional to act contrary to defendant’s rights. The burden to show probable cause and the reasons for the absence of a warrant rests upon the state, not the defendant. That burden does not shift. The state’s evidence does not support the trial court’s denial of defendant’s motion to suppress.
State v. Burris (Lawyers Weekly No. 011120-23, 26 pp.) (Chris Dillon, J.) (John Tyson, J., concurring in part & dissenting in part) Appealed from Buncombe County Superior Court (Jacqueline Grant, J.) Phillip Reynolds for the state; Kimberly Hoppin for defendant. N.C. Court of Appeals
Even though the insured agreed to buy insurance on his own life simply as a means of making money on the sale of the policy to a stranger, since the insured always had the option of retaining the policy, the policy was not an illegal wagering contract on human life.
The life insurance policy issued by plain-
tiff to the insured is legally valid and enforceable.
In 2005, after a friend made money selling a policy insuring the friend’s life, Dr. Gordon Trevathan, age 81, met with the same insurance producer who had arranged the policy and sale for his friend. That producer, Wesley Chesson, arranged for Dr. Trevathan to obtain a $2 million life insurance policy from the plaintiff-insurer. A company owned by Chesson, E&W, lent Dr. Trevathan the amount needed to pay the policy’s premiums for two years.
At the end of the first two years, Dr. Trevathan had three options: (1) surrender the policy to E&W in full satisfaction of the premium loan; (2) pay off the loan balance to E&W and continue to retain the policy for himself going forward; or (3) sell the policy and use the proceeds to satisfy the loan balance. As he had always intended to do, Dr. Trevathan chose the third option, and he made a profit of $205,173 after repaying his loan to E&W.
Having received $2.7 million in premiums on the $2 million policy, the insurer now seeks a declaration that the policy is void as an illegal wagering contract on human life, i.e., a “stranger-originated life insurance” (STOLI) policy.
Our Supreme Court has made clear that a life insurance policy is a form of property and that, once lawfully issued, it can be assigned or sold to any third party—for investment purposes or otherwise. Hardy v. Aetna Life Ins. Co., 152 N.C. 286 (1910).
Nevertheless, our Supreme Court has also held that in order for a life insurance policy to be lawfully issued, the party obtaining the policy must possess an insurable interest in the life of the named insured at the time of issuance; otherwise, the policy is void ab initio as an unlawful wagering contract. Trinity College v. Travelers’ Ins. Co., 113 N.C. 244 (1893).
Based on a review of Supreme Court precedent, the court finds that, under North Carolina law, where a policy is taken out by the insured on his own life, the following rule applies: The policy is void as a wagering contract only where there is evidence of an agreement—prior to the policy’s issuance—that the policy would be assigned to a third party and that the third
party participated in that agreement. In other words, in order for such a policy to be deemed an unlawful wagering contract in this context, the ultimate assignee must have been a participant in (1) the sequence of events by which the policy was initially obtained, and (2) the agreement that the assignment would occur thereafter.
Here, as plaintiff concedes, there is no evidence in the record of any involvement whatsoever by LifeTrust, Advanced Settlements, Assured, or CSNL (the entities involved in the purchase of Dr. Trevathan’s policy) relating to the policy until 2007—which was well after the policy’s issuance in 2005. Thus, plaintiff is unable to satisfy the test articulated by our Supreme Court with regard to whether the policy is void as a wagering contract.
We note that Chesson would not have profited from Dr. Trevathan’s death and, in fact, continues to collect commissions each time the policy is renewed.
In the absence of legislation regulating STOLI policies, the court applies principles articulated by our Supreme Court and declares the policy on Dr. Trevathan’s life valid and enforceable.
Columbus Life Insurance Co. v. Wells Fargo Bank, N.A. (Lawyers Weekly No. 020-035-23, 30 pp.) (Mark Davis, J.) 2023 NCBC 35. Travis Joyce, Michael Broadbent, Philip Farinella, Isaac Binkovitz and Gregory Star for plaintiff; Zachary Buckheit, Matthew Houston, Lee Hogewood, Harry Davis and Robert Griffin for defendant. NC Business Court
Defendant Aon Hewitt Investment Consulting, Inc., an investment consultant to Lowe’s Companies’ employee retirement plan, could cross-sell (i.e., sell a new service to a client who already uses its other services) its delegated-fiduciary services without breaching its fiduciary duties under the Employee Retirement Income Security Act. Moreover, Aon did not need to re-review its own growth-oriented fund before recommending it to Lowe’s.
We affirm judgment for defendant on plaintiff’s breach of fiduciary duty claims.
After Aon was hired as the delegated fiduciary for the Lowe’s retirement plan — allowing the Lowe’s plan committee to outsource its duties to Aon — plan members lost out on significant market gains. Plaintiff appeals the district court’s decision that Aon did not breach its fiduciary duties of loyalty and prudence under ERISA.
Out-of-circuit case law supports the idea that selling services is not investment advice. Just like on an initial sale or negotiation, when a cross-seller pitches his other services, he is performing an arms-length negotiation that doesn’t constitute a fiduciary function. The only aspect of the relationship that has changed is the cross-seller does owe fiduciary duties in other capacities, while with the initial sale, no fiduciary duties have attached yet.
Aon’s efforts to sell Lowe’s its services as a delegated fiduciary were not investment advice. Accordingly, Aon was not acting as a fiduciary, so it owed no fiduciary duties.
It is true that Aon had an interest in Lowe’s adopting a streamlined menu of investment options. However, plaintiff must show that Aon acted on that interest — that is, it failed to act as if it were free of any conflict. And, to the contrary, the district court found — in a factual finding to which we give deference — that Aon did not act disloyally.
Aon’s recommendation to streamline the investment menu may have incidentally benefitted its own interest. But, because that interest did not motivate Aon’s recommendation, it did not violate the duty of loyalty.
The separate duty of prudence is defined based on the “circumstances then prevailing.” 29 U.S.C. § 1104(a)(1)(B). This means it is a context-specific duty. The duty of prudence is not results oriented; it looks for a reasoned process. A fiduciary who appropriately investigates the merits of an investment decision prior to acting easily clears this bar.
Aon created its “Growth Fund” after an extensive review of the available options on the market left them dissatisfied. So by the time Aon was selected as delegated
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fiduciary, it had already decided where the plan’s growth-option assets were headed: its own Growth Fund. This means that— once chosen as delegated fiduciary — Aon did not consider any funds other than the Aon Growth Fund for the “growth” equity option in the Lowe’s Plan.
When Aon created the Growth Fund, it considered other potential investment funds and strategies. In fact, it considered the very funds that plaintiff now points to. So Aon investigated, researched, and reviewed the options. But the available funds did not allocate assets in a way consistent with Aon’s thinking.
While Aon created the Growth Fund in 2013, it had been closely tracking the Growth Fund’s performance since its inception and understood how it compared against benchmark and peer funds when it selected the fund for Lowe’s in 2014. Maybe — in hindsight — Aon was wrong that it could do better (or maybe it was right and hit the market at the wrong time). Again, though, prudence looks for process, not results. The process here was reasoned and calculated to maximize the benefits of the plan, so Aon cleared the prudence bar.
The duty of prudence includes a continuing duty to monitor investments and to remove imprudent ones. As the district court found, “Aon over time exercised its expertise to keep apprised of alternate investments in the market” and compared the Growth Fund to those alternatives. And, through its manager-of-managers role, it could — and did — make underlying tweaks to the Growth Fund without jumping ship entirely. Together, these actions discharged Aon’s “continuing duty to monitor . . . investments and remove imprudent ones.”
Affirmed.
Dissent
(King, J.) Aon — which was indisputably an ERISA fiduciary rendering “investment advice” to the Lowe’s retirement plan — failed to act as if it were free of any conflict. The fiduciary investment advice Aon provided to the Lowe’s retirement plan was made at least in part to enhance Aon’s
position. That alone constitutes a breach of ERISA’s exacting duty of loyalty.
Reetz v. Aon Hewitt Investment Consulting Inc. (Lawyers Weekly No. 001085-23, 26 pp.) (Julius Richardson, J.) (Robert King, J., dissenting) No. 21-2267. Appealed from Statesville, N.C. (Kenneth Bell, J.) Matthew Wessler, Paul Lukas, Kai Richter, Brock Specht, Mark Thomson and Patricia Dana for appellant; Brian Boyle, Michael Adams, Nicholas Lee, Jonathan Hacker, Shannon Barrett, Deanna Rice, Stuart Sarnoff and Laura Aronsson for appellee. United States Court of Appeals for the Fourth Circuit
Defendant Moody was both an officer of the plaintiff-LLC and the alter ego of defendant Nova Wingate Holdings, LLC. Moody was the signatory for both parties when he executed a lucrative lease agreement between plaintiff and Nova Wingate. The unfair trade practices arising from the lease were not in or affecting commerce.
The court grants jnov for defendants as to plaintiffs’ unfair trade practices claim. Otherwise, defendants’ post-trial motions are denied.
Moody was the CEO and manager of plaintiff Vanguard Pai Lung, LLC. Moody’s contribution to Vanguard was in the form of knitting machines. In this lawsuit, plaintiffs claimed that the machines were obsolete and useless.
Moody stored the knitting machines in a warehouse owned by defendant Nova Wingate Holdings, LLC — which the jury found was Moody’s alter ego. Moody signed the $10,000-per-month lease agreement for both parties.
The jury found that the lease was the result of unfair trade practices. However, this dispute does not concern the regular interactions of separate market participants. Indeed, the premise of the claim is that Moody harmed his employer (Vanguard) and its majority member (plaintiff Pai Lung Machinery Mill Co.) by channeling money to himself through a shell
company and then concealing his misconduct from them.
It is undisputed that Nova Wingate conducts no real business, has no identity of its own, and does not exist apart from Moody in any meaningful sense. Moody used the entity to extract cash from Vanguard while concealing it from Pai Lung and his fellow managers. And the main purpose of the lease agreement was to store Nova Trading’s suspect capital contribution.
These are membership and management matters that concern the internal operations of Vanguard, not its day-to-day business interactions with others in the market.
Plaintiffs believe that the facts here are analogous to those in Sara Lee Corp. v. Carter, 351 N.C. 27 (1999). They are not.
There, the claim involved an employee who “sold computer parts and services to his employer from companies owned by him,” so that the employee and employer were “clearly engaged in buyer-seller relations in a business setting.” The unfair conduct of the defendant-employee in Sara Lee was in or affecting commerce because it occurred outside of the employer-employee relationship. By contrast, the unfairness in this case occurred in interaction among the principals of Vanguard.
The evidence, taken in the light most favorable to Vanguard and Pai Lung, is that Moody used Nova Wingate as a front in his internal dealings with the company, its members, and its managers. The lease agreement, which was not the product of an arm’s-length negotiation in a business setting, is more properly classified as the misappropriation of corporate funds within a single entity rather than commercial transactions between separate market participants in or affecting commerce.
Defendants have failed to preserve any other issues for post-trial review.
Motions granted in part, denied in part.
Vanguard Pai Lung, LLC v. Moody (Lawyers Weekly No. 020-044-23, 22 pp.) (Adam Conrad, J.) 2023 NCBC 44. Matthew Tilley, Russ Ferguson, Patrick Spaugh, John Schnurer, John Esterhoy, Yun Lu and Hayden Schottlaender for plaintiffs; Preston Odom for defendants. North Carolina Business Court ◆
TABLE OF CONTENTS
KENNETH P. CARLSON JR..........................19
BARTINA EDWARDS...................................19
BRODIE ERWIN..........................................20
JEREMY FALCONE.....................................20
NARENDRA K. GHOSH...............................20
MARC E. GUSTAFSON................................20
KATIE WEAVER HARTZOG...........................21
BETH TYNER JONES..................................21
D. BETH LANGLEY......................................22
MARGARET BEHRINGER “MEG”
MALONEY..................................................22
J. MICHAEL McGUINNESS..........................22
LAURA NOBLE...........................................22
J. HEYDT PHILBECK...................................23
SABRINA ROCKOFF....................................23
NICHOLAS J. SANSERVINO JR....................23
EDWARD S. SCHENK III..............................24
KERRY A. SHAD.........................................24
PHILLIP J. “PHIL” STRACH..........................24
BENTON L. TOUPS.....................................25
JOSHUA R. VAN KAMPEN...........................25
TRAVIS W. VANCE......................... .............25
ANGELIQUE VINCENT.................................26
JONATHAN WALL................... ...................26
JEREMY R. SAYRE.....................................24
LAURA J. WETSCH....................................26
Admitting he has a strong aversion to boredom, Ken Carlson chose a career in law for its variety and opportunities to move in the myriad of practice areas. Just to keep things interesting.
“I also loved the idea of being a professional in a field with unlimited opportunities to make a positive difference,” he said.
Motivated to empower individuals and companies to use the law to improve their lives and businesses, Bartina Edwards followed her passion for entrepreneurship and started her own firm.
“It seemed a most fulfilling way to effectuate change one person and one business at a time while encouraging others to see law as an avenue of change rather than a symptomatic remedy,” she said.
Carlson, a partner at Constangy, Brooks, Smith & Prophete in Winston-Salem, co-chairs the firm’s trade secrets and unfair competition practice group. With a focus on mediation, he handles virtually every aspect of employment law.
He was drawn to the field for the intellectual stimulation. As a defense attorney, he enjoys building relationships with his clients and helping them be the kind of employers they want to be.
“Simply stated, when properly approached and practiced, being a lawyer is one of our highest callings,” Carlson said. “The primary challenge, of course, is living up to its ideals.”
As an employment lawyer, Edwards is on a mission to help protect workers' rights and improve the workplace.
“I'm not sure I've realized that idealized goal because the challenges change,” she said. “But those ideals still drive me today, as I believe we have made some progress in this area, despite forces intent on moving workplace equity and fairness backwards.”
Edwards feels she is making progress when she hears from satisfied clients.
“The look in a client’s eye or the sound in their voice when they express gratitude for our services keeps me uplifted, even in the most challenging times,” she said.
Brodie Erwin can’t remember a time when he did not want to be a lawyer.
“The prospect of being part of a learned profession, steeped in tradition, whose function is to assist members of the community in achieving their goals and protecting their rights was too much to pass up,” he said.
Erwin practices as counsel with Kilpatrick Townsend in Raleigh and was drawn to labor and employment by the field’s diversity.
“Any given case requires you to become an expert on the ins and outs of a particular industry, the rules governing it, and the priorities for your clients,” he said. “You learn something new with each case that comes your way.”
Erwin most values relationships with his clients and has forged personal relationships with many of them.
“I am fortunate to have the opportunity to represent businesses and employers that I believe in and care about both inside and outside the courtroom,” he said.
Jeremy Falcone’s broad experience gives him a decided edge when it comes to representing his clients.
Falcone began his career litigating high-stakes cases for Skadden in New York and honed his skills as an in-house corporate attorney at Wells Fargo. But he also has experience as a small-town lawyer, handling everything from traffic tickets to family law.
He has cultivated his wide-ranging expertise over the course of his career and is both passionate about his work and intrigued with the background his clients bring.
“From departing-employee trade secrets matters to allegations of wrongful termination, there is always an interesting backstory that we get to work through in litigating the case,” he said.
Falcone credits attorneys and mentors with influencing his successful career.
“I have been fortunate to work with some of the best attorneys in the state, he said. “I honed my craft by learning from the very best of our profession.”
Narendra Ghosh started his career as a computer programmer in Silicon Valley before enrolling in law school at New York University. He joined Patterson Harkavy in 2005.
Today he is a partner, with many high-profile cases under his belt. The desire to help people find justice led Ghosh to choose employment law.
“Representing working people is way to achieve some measure of economic justice for individuals in an environment that if often very unfair to workers,” he said.
In 2016, the N.C. Legislature passed a bill to eliminate tenure for public school teachers. Ghosh and his firm represented the N.C. Association of Educators in challenging the new law, taking it all the way to the North Carolina Supreme Court, where they prevailed.
“Our work resulted in the North Carolina Supreme Court declaring the law unconstitutional,” he said. “This was a significant ruling for teachers, and I consider it my most important case.”
Known as a “go-to lawyer” among toptier law firms for executives in non-compete and trade secrets matters, Marc Gustafson views his role as a true counselor of law, and values the relationships he builds with clients.
He also serves as a mediator in civil disputes, bringing a variety of approaches to resolving matters in the best interest of all parties involved.
“Too many times lawyers start off matters aggressively and then have a hard time pulling back,” he said. “It’s our role to be the calming voice in the room, to focus on the end goal, and to try to work to a reasonable solution that all parties can live with.”
He added that despite a small number of cases ever going to trial, litigation is often played like a zero-sum game.
“But that is rarely the outcome,” he said. “And the cost of playing it that way oftentimes outweighs the benefits.”
A founding partner of the Hartzog Law Group in Raleigh, Katie Hartzog discovered her passion for law when she interned with a small firm in her hometown and participated in a high school moot trial competition.
“I quickly learned that the legal field provides an opportunity to work in a dynamic environment that is constantly changing and differs from day to day,” she said. “It was important for me to help people and have a fulfilling challenging career and I saw that the legal field would provide me with both.”
Hartzog found her niche in employment law and appreciates the opportunity to practice litigation. She also enjoys developing and maintaining relationships with longterm clients who wish to avoid litigation and need advice on how to do that.
“I get a lot of satisfaction from helping employers prevent or stop problems before they grow into something larger,” she said.
Beth Jones builds upon over 30 years of experience as an human resources professional, an in-house employment lawyer, and a college faculty member to defend employers and serve as a valued adviser to educational institutions.
A managing partner at Womble Bond Dickinson and leader of the firm’s employment and pensions service team, Jones is known as a focused, go-to lawyer for high-stakes employment law matters and credits her colleagues for helping her achieve success.
“I appreciate that my colleagues make me a better attorney, and I value working together as a great team for our clients’ benefit,” she said.
Jones focuses a substantial portion of practice in the higher education sector in both the employment arena and across their operations.
“I’m mindful of the tremendous positive impact these institutions have in our ever-changing world, and I’m grateful of the opportunity to help them achieve their missions,” Jones said.
These
These are the three pillars to successfully representing individuals in employment litigation.
These are the three pillars to successfully representing individuals in employment litigation.
At Van Kampen Law, PC., we take the time to ensure our firm is the right fit for each client we choose to represent.
At Van Kampen Law, PC, we take the time to ensure our firm is the right fit for each client we choose to represent.
Van Kampen Law has established a reputation as being one of the most aggressive and well resourced employment litigation firms in North Carolina, and that reputation has enabled the firm to deliver premium se lements on a faster track than is typical in employment cases. The firm brings big firm savvy and expertise to bear on behalf of individuals from the factory floor to the board room. For the past five years, founder Josh Van Kampen has been included in Super Lawyers Top 100 a orney list for North Carolina in any area of practice. Van Kampen Law boasts a talented group of associates and professional sta capable of matching the deep bench typically relied upon by corporate defendants.
Van Kampen Law has established a reputation as being one of the most aggressive and well resourced employment litigation rms in North Carolina, and that reputation has enabled the rm to deliver premium settlements on a faster track than is typical in employment cases. The rm brings big rm savvy and expertise to bear on behalf of individuals from the factory oor to the board room. For the past ve years, founder Josh Van Kampen has been included in Super Lawyers Top 100 attorney list for North Carolina and Top 25 list for Charlotte. These are not top lists for employment attorneys; Josh is recognized among the top lawyers in North Carolina in any area of practice. Van Kampen Law boasts a talented group of associates and professional staff capable of matching the deep bench typically relied upon by corporate defendants. www.ncemploymenta orneys.com
Van Kampen Law has established a reputation as being one of the most aggressive and well resourced employment litigation rms in North Carolina, and that reputation has enabled the rm to deliver premium settlements on a faster track than is typical in employment cases. The rm brings big rm savvy and expertise to bear on behalf of individuals from the factory oor to the board room. For the past ve years, founder Josh Van Kampen has been included in Super Lawyers Top 100 attorney list for North Carolina and Top 25 list for Charlotte. These are not top lists for employment attorneys; Josh is recognized among the top lawyers in North Carolina in any area of practice. Van Kampen Law boasts a talented group of associates and professional staff capable of matching the deep bench typically relied upon by corporate defendants.
are the three pillars to successfully representing individuals in employment litigation.
At Van Kampen Law, PC., we take the time to ensure our firm is the right fit for each client we choose to represent.
Beth Langley’s first job put her on the path to the legal world, though the job itself — at a financial institution — was not part of that world.
“I worked closely with the general counsel’s office and was fascinated by the legal profession, particularly the problem-solving aspect of attorneys’ roles,” she said. “I applied for law school as a result.”
She credits timing and good fortune for leading her to employment law. She started her practice around the time several landmark federal employment laws were in motion, and was assigned to do research around them.
“I also had a supportive partner mentor who encouraged me to take ownership of my client relationships and grow the employment practice,” she said.
Her favorite aspect of her work is helping clients navigate complex issues.
“Whether representing companies or individuals, I’m advising and strategizing with clients on issues that affect peoples’ lives profoundly,” she said. “I’ve loved employment law since day one.”
As founder of Maloney Law & Associates, Meg Maloney feels most successful when she exposes abuses of power, stands up for victims of sexual harassment and sexual assault, and makes a difference in the workplace at large.
“My biggest professional achievements come when I can improve my clients’ lives beyond the legal services I provide,” she said.
She started her career representing employers. Today, she works with individuals, sharing her knowledge and experience to help them become successful in the workplace, or recover from discrimination, harassment or retaliation.
Maloney believes that in life and in law, compassion is essential.
“This means making a commitment to do whatever it takes to know the facts better than anyone else involved in a case, to take the time to express empathy, and to understand the personalities and psychologies of those involved,” she said. “Success means being willing to stand up and fight to make a difference.”
With a broad array of experiences in many walks of life, Michael McGuinness brings a unique perspective to a practice that has shaped employment law in North Carolina.
McGuinness provides trial and appellate advocacy from his hometown of Elizabethtown, in a wide variety of civil litigation, including employment and labor relations disputes.
McGuinness earned a college scholarship from the N.C. Veterans Administration and labored on farms, in factories, on construction sites, and as a research associate to put himself through school.
A board-certified civil trial advocate, McGuinness has litigated and resolved hundreds of cases in the eastern United States and before the U.S. Supreme Court. Many of his cases have paved the way for employment lawyers in North Carolina to get justice for their clients.
“My career has been mostly fun and very challenging, and it has presented opportunities to help restore dignity for my clients and mend wounds from often devastating loss,” he said.
Laura Noble’s passion for civil rights and her interest in business matters led her to employment law.
A seasoned litigator with over 30 years of diverse legal experience, Noble finds satisfaction in offering clients personal and powerful representation. She also helps businesses minimize risk and says her goal is to “level the playing field for employees.”
Noble launched her firm in 2009, focusing on core values of collaboration, leadership, empathy, integrity and innovation. It is recognized as a leader in employment law, with offices in Chapel Hill, Charlotte and Mount Pleasant, S.C.
“My practice allows me to work with individual clients on a personal level to help them succeed in their workplaces,” she said.
Along with her practice, Noble hosts the podcast “Worksights: Insight Into the Workplace,” and interviews key individuals in the world of employment law and analyzes news stories on employment law issues.
Heydt Philbeck has brought justice to countless clients from all walks of life who have been subjected to wrongdoing by employers on the job.
He spent the early part of his career in general practice, but found his passion when he began focusing on civil rights and employment law.
“At some point, instead of being familiar with all, and master of none, I decided to focus my practice and discovered a particular passion for representing those who try to treat others as they wish to be treated, but encounter individuals who kick them in the teeth,” he said. “This passion led me to civil rights and employment law, and not a day goes by that I don’t appreciate having the privilege to serve those who put their lives and legal interests in my hands.”
Philbeck was recently elected as a fellow in the American College of Labor and Employment Lawyers.
Sabrina Rockoff credits her leadership roles at her law firm and in a variety of civic groups with helping her understand the needs and issues affecting employers across western North Carolina.
The Asheville native is the managing shareholder of McGuire, Wood & Bissette in Asheville and serves on the boards of the Asheville Independent Restaurant Owners Association, the Asheville Chamber of Commerce and other organizations.
In a 2020 interview with Law Practice Today, Rockoff said effective leaders are those who show up with their hearts open.
That means “having an intense love for the organization you lead and for the people in it,” she said. “It means being able to put your own ego aside and do what is best for the organization every time, and it also means being able to meet those who disagree with you and lash out at you with compassion, while remaining steadfast in supporting the organization as a whole.”
Nick Sanservino can trace his interest in employment law back to his childhood, when his mother introduced him to her practice. He recalls being intrigued by the attorneys at her firm.
“My mother worked at a labor/employment firm when I was young and I started working there as a file clerk in high school and college,” he said. “The attorneys seemed to enjoy their jobs and they had great war stories.”
Over his 20-year career, Sanservino, of counsel at Edwards Beightol, has brought unique and invaluable experience to his practice. He is known for his focus on a “triple-bottom line”: client impact, financial impact and social justice.
Sanservino finds it rewarding when he can play a role in helping his clients reach a favorable outcome, and when his clients feel they were heard and had passionate representation.
“In that vein, it is most rewarding when I receive an unsolicited, heartfelt ‘thank you’ note from a client,” he said.
With a background in math and computers, Jeremy Sayer enjoyed a brief career in software engineering before pursuing his interest in law. Over time, he has realized his analytical qualities have allowed him to approach legal issues from a perspective that is often different from his clients and other attorneys.
“I’ve become a big believer in the value of having diverse perspectives and the importance of being able to differentiate yourself,” he said.
As a partner at Fox Rothschild in Raleigh, Sayre enjoys the fact that employment law is all about people and he takes a personal approach to his profession.
“We’ve all been employees at one point in our lives, and the issues employment professionals deal with are issues that just about everyone can appreciate on a personal level,” he said. “I found working in this familiar environment was much more rewarding to me than other legal disciplines which were harder to relate to personally.”
As an English major in college, Edward Schenk had a professor who emphasized Greek argumentation, a discussion model that emphasizes reasoning, systematic questioning and persuasive communication of ideas.
Schenk found that method translated to the practice of law and discovered it was a perfect career fit.
Before joining Williams Mullen, he practiced insurance defense, representing employers in workers compensation claims, and discovered an entrepreneurial opportunity.
“I had a captive audience of potential employment law clients, and I couldn’t answer their employment law questions, so a law partner and good friend of mine pitched the idea of starting that firm’s first labor and employment practice,” Schenk said. “They gave us the chance to do it. and we built it from the ground up.”
In addition to his practice, Schenk enjoys mentoring associates.
“Watching younger attorneys grow, mature and become successful in their own practices with their own clients is one of my greatest rewards,” he said.
Kerry Shad calls herself a “practical lawyer” who views her clients’ problems as puzzles to be solved in a way that is efficient, principled and beneficial to their philosophy and values.
Known as a powerful litigator and trusted colleague, Shad’s practice focuses on representing employers in all types of employment-related litigation, and she is often called on to solve her clients’ most pressing and difficult problems.
She is an elected member of her firm’s management committee and co-chairs its diversity and inclusion committee.
Of all her successes, she most appreciates the relationships she has forged with clients and colleagues, and she cites her love of people as motivation for practicing employment law.
“Employment law is all about people, at their best and at their worst,” she said. “Relationships with my clients have provided interesting and challenging work and relationships with my colleagues at Smith Anderson have provided opportunities to be a leader.”
Phil Strach was drawn to employment law because he enjoys helping clients solve real-world problems.
“Whether my work involves handling an employment lawsuit or advising on day-to-day HR legal issues, many of my clients’ problems are unique and call for creative solutions which makes my practice always interesting,” he said.
Strach is a trial lawyer who represents management in labor and employment law, including defending clients in employment discrimination cases. He counsels management on how to prevent or reduce risk.
Strach says being a good listener helps lead to positive solutions for his clients.
“I find that listening helps me assess clients’ issues more thoroughly and develop creative solutions to the legal problems they face,” he said. “Whether I am litigating a case or providing general counseling advice to a client I see myself first and foremost as a problem solver, and active listening is essential.”
Benton Toups’ career was set in motion when he began interviewing for summer clerkships in college. One day, he had two interviews: one with a full-service law firm and the other with a labor/employment firm. He got them mixed up.
During his first interview with the employment law firm, he was asked to explain his interest in working there, and he responded that he looked forward to being exposed to different practice areas.
“When the interviewing attorney responded, ‘That was too bad because all we do is employment law,’ I thought I had blown it,” Toups said. “However, I got the job, enjoyed the work, and have focused my practice on employment law ever since.”
Toups chairs the employment law practice group at Cranfill Sumner and is a certified mediator. He is known for helping clients implement effective policies to avoid litigation and his knack for helping them make rational decisions amidst emotionally charged situations.
Celebrated for his client service and ability to help companies tackle their most difficult and high-profile issues, Travis Vance has established himself as an aggressive advocate and workplace safety thought leader.
Vance, regional managing partner at Fisher Phillips’ Charlotte office, is a workplace safety attorney who has handled Occupational Safety and Health Administration and Mine Safety and Health Administration cases in 40 states, Washington, D.C., and Puerto Rico. He co-chairs the firm’s national workplace safety and catastrophe management practice group and is well known as a dynamic speaker, presenting to organizations across the country on safety-related topics.
Vance credits his parents for sparking his interest in employment and workplace safety.
“Growing up blue-collar with parents who worked hard to give me a decent childhood taught me the important values of honesty, transparency, and a good work ethic,” he said. “It’s one of the things that makes me a successful attorney in the workplace safety space.”
As the founder and CEO of Van Kampen Law, Joshua Van Kampen is devoted to representing victims of employment law violations.
He developed the passion in high school when he participated in an aviation program for at-risk kids.
“I was not an at-risk kid, but I grew up in a diverse town, and wanted to learn to fly planes,” he said. “I was the only white student in the program, and I was treated equally and embraced my African American and Latino counterparts.”
Van Kampen’s aversion to losing has been key to his career success, and he’s at his best when he stops overthinking and just lets his instincts take over.
“I don’t have a photographic memory, and I imagine many of my opponents would test higher if we compared IQ tests,” he said. “However, I have yet to encounter an opposing counsel who outworked me or who was more determined.”
Widely regarded as one of the top management-side employment lawyers and mediators in Charlotte, Angelique Vincent is known for being thorough, tenacious, and tough.
A shareholder at Robinson Bradshaw, Vincent said she loves her practice for the relationships she forges with her clients.
“I enjoy serving as a business partner to my clients,” she said. “Working with many of them year after year allows me to learn about each client’s business, strategy, vision and culture.”
A talented attorney who serves his clients, his colleagues, and his community with distinction, Jonathan Wall’s litigation over non-compete agreements has helped shape the law in North Carolina.
A member in the Greensboro law firm of Higgins Benjamin, Wall has built a significant practice that includes both discrimination employment cases and a focus on non-compete agreements.
Wall says he’s not sure if he chose employment law or if it chose him.
Vincent co-chairs Robinson Bradshaw’s employment and labor practice group and its diversity, equity and inclusion committee. She also serves on the firm’s board of directors.
She is an American Bar Foundation Fellow, serves as outside general counsel for the Economic Development Partnership of North Carolina, and holds a Fostering Inclusion and Diversity Certificate from the Yale School of Management.
She enjoys mentoring young attorneys and watching them succeed.
“I take pride in knowing I was part of their development, and the reality is they were part of mine,” she said.
“I had covered employment law for the legal publications at the association I worked at out of law school,” he said. “When I started practicing law in North Carolina, the other lawyers in the firm did not want employment law cases and I was happy to have cases that were my own.”
Wall enjoys employment law because he finds the facts of his cases intellectually stimulating.
“The law is more fluid and developing than in some other legal pursuits, and interesting legal questions are raised in almost every case,” he said.
With many of your clients and prospects working from home, now is a great time to engage them through a webinar.
Hosting a webinar is a powerful way to connect with your target audience,and with North Carolina Lawyers Weekly - you won’t have to worry about any of the logistics.
Whether you’re looking to move an in-person event online,or just need to generate quality sales leads,our team can help provide turnkey service from marketing to execution!
What is included in your webinar: 45-60 minute webinar
Dedicated project support
• Email marketing
• Social media
• Print ad
For more information,please contact Sheila Batie-Jones at 704.817.1350 or sbatie-jones@nclawyersweekly.com.
With many of your clients and prospects working from home, now is a great time to engage them through a webinar.
Known for her encyclopedic knowledge of employment law, Laura Wetsch literally wrote the book on it. She is the author of the "Practitioner's Guide to North Carolina Employment Law," and for many years she has been the co-author of the North Carolina chapter in "Employment at Will: A State-by-State Survey," co-published by the Bureau of National Affairs and the American Bar Association.
Hosting a webinar is a powerful way to connect with your target audience,and with North Carolina Lawyers Weekly - you won’t have to worry about any of the logistics.
With many of your clients and prospects working from home, now is a great time to engage them through a webinar.
Hosting a webinar is a powerful way to connect with your target audience,and with North Carolina Lawyers Weekly - you won’t have to worry about any of the logistics.
Whether you’re looking to move an in-person event online,or just need to generate quality sales leads,our team can help provide turnkey service from marketing to execution!
Whether you’re looking to move an in-person event online,or just need to generate quality sales leads,our team can help provide turnkey service from marketing to execution!
What is included in your webinar:
• 45-60 minute webinar
What is included in your webinar:
• 45-60 minute webinar
• Dedicated project support
• Dedicated project support
• Email marketing
Email marketing
• Social media
Social media
• Print ad
• Print ad
Over her 30-year career, Wetsch has analyzed and addressed all types of legal dilemmas facing individuals and businesses. She has represented both employers and employees on a wide range of employment law issues.
A tenacious attorney in practice, Wetsch describes herself as a “bulldog” and consistently strives to learn answers, whether in law or in facts. She also cares deeply about her clients and their cases.
For more information,please contact Sheila Batie-Jones at 704.817.1350 or sbatie-jones@nclawyersweekly.com.
For more information,please contact Sheila Batie-Jones at 704.817.1350 or sbatie-jones@nclawyersweekly.com.
“Nothing makes me happier than a day spent going through discovery production and piecing together what happened, especially when it proves that what my client said was true, and what the employer said was not,” she said.
Action: Personal injury
Injuries alleged: One child rendered a quadriplegic; second child required spinal fusion
Case name: Withheld
Court/case no.: Withheld
Mediator name: Withheld
Amount: $7.5 million
Date: April 1, 2023
$2.42 MILLION SETTLEMENT
Attorneys: Fred W. DeVore and William D. Acton Jr. of DeVore, Acton & Stafford, Charlotte (for the plaintiff)
A $7.5 million personal-injury settlement was reached with the city of Durham for critical injuries suffered by two minors in April 2018. One child was rendered a quadriplegic, while the other required a back fusion. The
claim was based on the statutory obligation of Durham to maintain its streets in a safe condition and free from unnecessary obstructions.
The settlement is in addition to an earlier $12.5 million confidential settlement obtained against other defendants.
The identity of the minors, the defendants in the previous settlement and the counsel for the municipality are confidential. ◆
Action: Worker’s compensation
I njuries alleged: Head injury resulting in blindness
Case name: Withheld
Agency: N.C. Industrial Commission
Mediator : Henry Byrum Jr.
A mount: $2.42 million
High-low agreement: No
Date: June 2, 2023
Attorneys: Richard L. Anderson, Sumwalt Anderson law firm of Charlotte (for the plaintiff)
The plaintiff suffered multiple injuries, including a head injury that resulted in blindness, after the tractor-trailer he was operating was involved in a crash. The plaintiff's employer did not have worker's compensation
insurance. After the plaintiff’s counsel determined that the load the plaintiff was hauling was brokered through a national freight broker, he filed and pursued a claim against the freight broker and their carrier. The majority of the settlement was paid by the carrier for the broker; the uninsured employer contributed a small amount toward resolution of the case.
Action: Motor vehicle negligence
Injuries alleged: Torn rotator cuff requiring surgical repair and resulting in permanent impairment.
Case name: Carroll vs. Phoenix Spirit Group
Court/case no.: 21 CVS 1080, Johnston County
Superior Court
Jury and/or judge: Judge Thomas Lock
Highest offer: $100,000
Amount: $235,755.81
Date: April 12, 2023
Most helpful experts: Joseph Barker, MD
Attorneys: Hunt Willis, of Martin & Jones, Raleigh
(for the plaintiff); John Honeycutt of Yates McLamb and Weyher, Raleigh (for the defendant)
The Carroll sisters had stopped on a rural highway in Johnston County for traffic to pass before turning left into their private driveway. Another motorist coming up behind them also stopped to wait for the Carrolls to make their turn.
Moments later, a large truck owned by a traffic safety company, Phoenix Spirit Group, and operated by an employee, Donald Skillman, approached from the rear of the stopped vehicles at a high rate of speed. It struck the back of the second motorist’s vehicle, which
then shot into the rear of the Carrolls’ vehicle.
The plaintiff, who was a passenger in the Carrolls’ vehicle, suffered a serious injury to her rotator cuff, eventually requiring surgery.
The defense admitted to causing the crash but vigorously denied causing the injury and maintained that the property damage photos displayed minimal damage to the vehicle the plaintiff was in.
The surgeon disagreed and gave a full causation opinion during a deposition.
The defense made an offer of judgment of $100,000. The jury returned a verdict of $235,755.81, and the total judgment with interest and costs amounted to $279,939.03. ◆
initiatives and goals that were set in place by our previous chair and to help support our new CEO.”
Legal Aid’s website offers a long list of areas where it helps North Carolinians, ranging from supporting victims of domestic violence to fighting illegal evictions and housing discrimination to representing farm workers in wage, housing and safety matters. While the number of landlord-tenant and domestic-violence cases might be rising, other areas cannot be overlooked.
“In my opinion, not speaking on behalf of the board, we think that all areas that LANC works in are important,” Feliciano says. “I don’t want to single out a particular division of LANC and make it seem more important that another.”
The court agrees with and adopts that well-reasoned proposition,” the judge said.
Here, the retirement comments, without more, didn’t amount to direct evidence of age-based discrimination.
“For starters, the retirement comments were not actually presented to Palmer — rather, they were made by the Dean and by the Provost of Liberty during internal deliberations about how to handle Palmer’s nonrenewal if she brought up the possibility of retirement,” King wrote. “Second, even if those comments had been addressed directly to Palmer, they were devoid of any reference to Palmer’s age.”
Similarly, the resistance to change comment wasn’t connected to Palmer’s age.
“Rather, ‘Liberty believed that Palmer was resistant to change because of her demonstrated failure to develop digital skills after her supervisors repeatedly advised her to do so,’” the judge held.
Legal Aid’s 19 offices cover the state from Wilmington to Boone and Murphy to Ahoskie, its website says. In 2022, it served almost 23,000 clients, providing “the legal and non-legal services they need to live safe, stable, self-sufficient, productive and meaningful lives.”
Finances play a key role — often as a challenge — in the services it can offer.
“The largest hurdle [to Legal Aid’s services], I would say is twofold,” Feliciano says. “One, there might be people who are in need, but they just don’t meet the financial threshold to qualify to get service from Legal Aid. We know the need is great, but LANC can’t serve everybody for that reason.
“The financial resources go to the issue of funding. … The need is great, but the resources are limited compared to
the need.”
As its board’s chair, Feliciano has not yet been involved in fundraising, but she already knows that the issue involves more than dollars.
“Fundraising is something that LANC is working on and seeking to build,” she says, “including creating an awareness and educating the community, not only the legal community but the business community in North Carolina and elsewhere.”
She emphasizes that, though the organization might not be that wellknown, it is well-worthy of the public’s backing.
“I would want to stress the importance of supporting LANC,” she says. “Even I didn’t realize before joining the board just how needed the support is and how much LANC does.” ◆
Palmer insisted that a genuine dispute of fact existed because her promotion “wiped the slate clean,” making any of her pre-promotion evaluations irrelevant.
King said that argument failed for two reasons.
“First, that contention is temporally flawed,” the judge wrote. “That is, Palmer has failed to explain why her performance in October 2016 means that she was performing adequately at the time of her nonrenewal — which was in April 2018.”
Further, King said “Palmer’s ‘clean slate’ contention overlooks the undisputed fact that, after her October 2016 promotion to full professor, Dean Hayes and Department Chair Smith had ongoing concerns about her lackluster technology and digital art skills.”
The court rejected Palmer’s reliance on its 2021 conclusion in Sempowich v. Tactile Systems Technology that a plaintiff with high-performance ratings weeks before an adverse employ-
ment action raised an inference that they were meeting their employer’s legitimate expectations.
“By contrast, Palmer was simply not meeting Liberty’s technology-related expectations up and until the time of her 2018 nonrenewal,” King wrote, noting that she received her “lone accolade” more than a year before her nonrenewal.
Finally, the court pointed out that Palmer’s claim would fail even if she had produced direct or circumstantial evidence of age discrimination.
“Palmer has failed to contend with the fact that the comments she characterizes as evidence of age discrimination — the retirement comments plus the resistant-to-change comment — were made subsequent to the Chair and the Dean having resolved not to renew her teaching contract for the 2018-19 school year,” King concluded. “Thus, it cannot be said that Liberty ‘would not have fired [Palmer] in the absence of age discrimination.’”
Alan Castro has joined Horton & Mendez, a personal injury practice in Wilmington. His experience includes personal injury, employment, business, insurance defense and corporate law and contract public defense work.
Drew Heath has joined Nelson Mullins as a partner and state lobbyist in its government relations group. He formerly served as director of the Administrative Office of the Courts, state budget director, secretary for the Council of State, chairman of the N.C. Industrial Commission and a Superior Court judge.
Sarah Jacobs has rejoined the Charlotte office of Bradley, Arant, Boult, Cummings as a partner in its health care practice group. She represents care providers in regulatory, transactional, value-based and operational matters; advises senior leadership teams; and provides strategic solutions for health care operations.
Sean M. Sullivan has rejoined Williams Mullen’s environment and natural resources group as a partner in the firm’s Raleigh office. He advises clients on major federal environmental programs, with a particular emphasis on hazardous waste, brownfields redevelopment, the Clean Water Act, the Clean Air Act, and emerging contaminants such as PFAS and 1,4-dioxane.
Moore & Van Allen of Charlotte is co-sponsoring the Human Trafficking Pro Bono Project to help trafficking survivors who also were financially exploited return to fiscal stability. The program includes providing credit repair services and connecting survivors to safe banking.
Sixteen lawyers and paralegals
from Wells Fargo's legal staff provided free legal advice as part of Legal Aid of North Carolina’s Lawyer on the Line Program, which connects Legal Aid of North Carolina clients with free legal advice by phone. The volunteers from the bank’s offices in Charlotte helped 13 tenants facing serious problems with their living conditions. Participating in the effort were Craig Baldauf, executive vice president and deputy general counsel; Jose Bermudez, lead counsel; Natali Bollinger, senior paralegal; Loretta Carty, senior counsel; Gloria Fazzolari, lead counsel; Annie George, lead counsel; Sarah Hayden, paralegal; Glenn Huether, lead counsel; David Lamothe, assistant counsel; Ryan Larkin, managing counsel; Mark Metz, deputy general counsel; Brittany Mullen, senior counsel; Kasasira Mwine, e-discovery project manager; Anna O’Neal, managing counsel and senior vice president; Bryan Riddle, senior counsel; and Ben White, senior counsel.
Dr. Amy Clay of Poyner Spruill’s office in Raleigh has been elected to serve on the board of Housing Options for Students Today. The organization addresses housing needs for college students by matching students with volunteer hosts who provide safe, private housing. Clay focuses her practice on education law and is a qualified Title IX investigator and decision-maker. She also holds a doctorate in school psychology from N.C. State University.
Two attorneys for Ward & Smith, Charles Ellis and Hugh Overholt, have been appointed by the U.S. District Court for the Eastern District of North Carolina to the plaintiffs’ leadership team for claims brought under the Camp Lejeune Justice Act. Ellis and Overholt, who also is a retired Army major general, will serve
as liaisons between the court and other attorneys for the plaintiffs. Ellis works in Ward & Smith’s office in Greenville, and Overholt is in its office in New Bern.
Chris Dwight has been elected a partner at Poyner Spruill in its Rocky Mount office. He advises clients on a broad range of corporate and securities matters, including corporate reorganizations, restructurings, commercial contracts, corporate governance, the formation and maintenance of business entities, and securities offerings.
Cranfill Sumner has named Robert El-Jaouhari and Elizabeth Stephens vice chairs of its administrative, regulatory and government law practice group at the firm's Raleigh office. The group advises businesses, individuals, professionals and local governments on trending federal and state regulatory issues. El-Jaouhari, a partner, is a real estate and regulatory litigator whose practice includes defense of real estate industry professionals, multimillion-dollar real estate disputes, regulatory rulemaking and permitting, and 1,4-dioxane regulations. Stephens, who is of counsel, focuses her practice on municipal, labor, employment, regulatory and administrative law. She also has acted as a lobbyist in North Carolina and Wisconsin.
Elizabeth Stephens has been promoted to the position of of counsel in the Raleigh office of Cranfill Sumner. She practices municipal, labor, employment, administrative and regulatory law and represents municipal interests before the North Carolina General Assembly, particularly in regulatory, administrative, and environmental matters.
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Moore & Van Allen and Robinson Bradshaw have announced that Charlotte Legal Initiative to Mobilize Businesses has received the North Carolina Bar Association’s 2023 Filling the Justice Gap Award. CLIMB provides pro bono business law services to historically under-represented entrepreneurs and small business owners of limited means through a network of volunteer lawyers from Charlotte law firms. In its 18-month pilot program, CLIMB volunteer lawyers provided nearly 1,000 hours of direct pro bono services to 54 clients. The program also is supported by the Charlotte offices of eight other law firms: McGuire Woods, Bradley, Alston & Bird, Cadwalader, Hunton Andrews Kurth, Mayer Brown, Parker Poe and Troutman Pepper.
Gene Riddle of Riddle and Brantley’s Raleigh office was recently designated
a “Top 10 Trucking Trial Lawyer” by The National Trial Lawyers. The honor recognizes trial lawyers with vast knowledge and expertise in truck accident cases. Riddle is the founder and managing partner of Riddle & Brantley, and he has represented the victims of truck accidents for almost 40 years.
Alex Riddle of the law firm Riddle & Brantley in Goldsboro has been certified as a member of the Million Dollar Advocates Forum. She was approved for membership based on her performance as lead counsel in a motorcycle accident case that resulted in a seven-figure confidential settlement in favor of her seriously injured client.
Robinson Bradshaw has been named the No. 2 best midsize law firm to work for in Vault Law’s 2024 national rankings. Vault also ranked Robinson Bradshaw first in the nation for career outlook, pro bono and associate satisfaction; second for associate/partner relations, firm culture and selectivity; and third for
quality of work. Robinson Bradshaw is a Carolinas-based law firm with national practices.
The Shumaker law firm and three of its intellectual property partners, Patrick Horne, Alex Long and Jason Smith , have been recognized as among the top patent attorneys in the world with their inclusion in the Patent 1000 attorneys list from Intellectual Asset Management. Horne serves as Shumaker’s intellectual property and technology regional service line leader. Long has been a member of the United States Patent Bar since 2005 and has extensive experience in patent, trademark, and copyright prosecution as well as counseling and licensing. Smith has more than a decade of experience and concentrates his practice in patent application preparation, prosecution, and post-grant proceedings, as well as opinion work and client counseling.
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For a while now, the U.S. Supreme Court has been considered the friend of big business.
Sometimes that characterization holds true. But other times, like in this just completed term, big business was a big loser.
once the court decided to reconsider the issue, the high court threw big business a curveball in an important case on personal jurisdiction, Mallory v. Norfolk Southern Railway
other states. Businesses should expect some states to take the case as a green light for other new legislation.
Harkening back to an era before International Shoe v. Washington and minimum contacts, the court held that a state can force corporations doing business in the state’s borders to consent to being sued for any claims in the state’s courts. That meant a Virginia resident could sue a Virginia corporation in Pennsylvania court for claims having nothing to do with Pennsylvania. It was enough that Pennsylvania requires companies doing business in the state to consent to being sued for anything.
SheltonThe biggest loss didn’t involve any businesses as parties. Nonetheless, in the Students for Fair Admissions v. Harvard and Students for Fair Admissions v. UNC cases, big business came out in droves to support affirmative action through amicus briefing. No businesses filed amicus briefs in opposition to affirmative action, even though popular sentiment is strongly opposed to racial discrimination in college admissions.
The fight over racial preferences will inevitably spill over into employment law. The affirmative action cases were applying not just the U.S. Constitution, but also Title VI of the Civil Rights Act. A key statute for business is just next door — Title VII.
Many private employers tout their diversity, equity and inclusion policies today. The next fight over racial preferences will center on those policies, asking whether they’re being applied to harm or exclude racial groups.
The same is true of the big law firms that service big business. Shortly after the affirmative action cases were announced, U.S. Sen. Tom Cotton, R-Ark., sent letters to 50 of the country’s largest law firms. He warned the firms that their DEI programs might violate Title VII. He quoted the Supreme Court’s admonishment that “eliminating racial discrimination means eliminating all of it.”
While the outcome of the affirmative action cases surprised almost no one
Another loss for big business is probably the most important case of the term that you haven’t heard of: National Pork Producers Council v. Ross. Californians decided to ban the sale of pork from pigs housed in inhumane ways, many of which are generally used throughout the country. What’s the problem with California regulating its own pork? California doesn’t produce any pork. It’s a huge pork consumer, and it imports virtually all of it. Because of California’s market power, this law effectively regulates how pork is produced in other states and raises pork prices for everyone, no matter if other states want their hogs raised humanely.
The pork industry sued, claiming a violation of the dormant Commerce Clause. If California could effectively regulate pork production beyond its jurisdiction, then other large states could exert their market power in yet more novel ways.
Not a problem, the court held. The reasoning is complicated since the justices in the majority don’t share a coherent vision of the dormant Commerce Clause. But the bottom line is straightforward. Large states are sometimes free to project their market power beyond their borders and use that power to increase regulatory burdens on businesses that operate in
A final blow to business interests came in Groff v. DeJoy. A postal worker took a job that wouldn’t require him to work on Sundays because of his Christian beliefs. The post office then changed his duties, requiring Sunday deliveries, after the post office began delivering for Amazon. The employee sought an accommodation, but the post office said it would be a bother to reassign his duties to someone else.
Title VII requires employers to reasonably accommodate their employees’ religious beliefs unless doing so would be an undue burden. Decades ago, the Supreme Court held that an undue burden is anything presenting “more than a de minimis cost.” Lower courts got the message, routinely denying accommodation requests.
Groff asked whether the de minimis test was right. The Supreme Court, 9-0, held that it didn’t mean what it had said. An undue burden is something that imposes a substantial, not trifling, cost on employers. The court spelled out examples of costs that aren’t legitimate excuses for denying accommodation.
This isn’t to say the term was a complete shutout for business. Business scored a big deregulatory win in an environmental case, Sackett v. EPA. There was also the token case favoring arbitration, Coinbase v. Bielski
Still, it was not a stellar record for business interests. Maybe things will go differently in the next term. On the docket so far are cases in which the U.S. Chamber of Commerce is asking the court to defund the Consumer Financial Protection Bureau, prohibit wealth taxes and overturn Chevron deference for agency regulations. Time will tell whether big business has a better run next year.
Troy Shelton is an appellate partner in Raleigh at Fox Rothschild. He works with trial attorneys to win on appeal in state and federal courts. ◆
“This case is about dog toys and whiskey, two items seldom appearing in the same sentence.”
So began the U.S. Supreme Court’s only trademark decision of the 2022-23 term, Jack Daniel’s Properties Inc. v. VIP Products LLC (June 8, 2023).
Parody, trademarks and the First Amendment also were at issue. In a unanimous decision written by Justice Elena Kagan, the court rejected the use of a First Amendment filter to defeat a trademark claim before getting to the question of the likelihood of confusion, provided that the mark is also source-identifying. The court thus declined an opportunity to make an expansive pro-First Amendment ruling. It instead charted a measured course for applying First Amendment concerns to source-identifying parody trademarks.
VIP made a squeaky, chewable dog toy designed to look like a bottle of Jack Daniel’s whiskey. Rather than the name Jack Daniel’s, it used “Bad Spaniels.” Other writing on the bottle was changed to what the 9th U.S. Circuit Court of Appeals called “humorous message[s],” and it displayed a disclaimer of affiliation with Jack Daniel’s.
Jack Daniel’s sued for federal trademark infringement, asserting ownership of various trademark rights in the name and bottle and a likelihood of confusion, as well as trademark dilution by tarnishment. VIP defended on parody grounds.
After a bench trial, it was found, largely based on survey evidence, that consumers were likely to be confused about the source of the toy. In the first appeal, the 9th Circuit reversed and remanded, adopting and expanding the Rogers v. Grimaldi (875 F.2d 994 (2d Cir. 1989)) First Amendment filter test from the 2nd Circuit.
That test originated from Ginger Rogers’ lawsuit against the producers of a Federico Fellini film titled “Ginger and Fred” concerning dancers imitating Rogers and Fred Astaire. Under the federal Lanham Act, Rogers objected to the use of her name. The 2nd Circuit articulated a test that the First Amendment mandated rejection of claims like hers if the title of the artistic work had an expressive element “with at least some artistic relevance” and was not “explicitly misleading as to source or content.”
The 9th Circuit remanded for determination of whether the Rogers test was satisfied and found that VIP defeated the dilution claim without addressing the anti-dilution statute’s exclusion for parody and other fair uses. The 9th Circuit decided that VIP’s parody was noncommercial, even if used to sell a product. After the first remand, VIP won, the 9th Circuit affirmed and certiorari was granted.
The Supreme Court rejected the 9th Circuit’s use of the Rogers test and “any threshold First Amendment filter” (per footnote 1 of the decision). The court wrote that the Rogers test has always been a “cabined doctrine” applicable when the defendant is not using its mark as a source-identifier. The test should not be used to insulate a defendant’s source identification from ordinary trademark scrutiny.
Quoting Mattel Inc. v. MCA Records Inc. (296 F.3d 894, 900 (9th Cir. 2002)), the Supreme Court reasoned that “when a challenged trademark use functions as ‘source-identifying,’ trademark rights ‘play well with the First Amendment’: ‘Whatever First Amendment rights you may have in
calling the brew you make in your bathtub “Pepsi”’ are ‘outweighed by the buyer’s interest in not being fooled into buying it.’”
Since the lower court had already determined that VIP’s alleged parody was source-identifying, the Supreme Court reversed and sent the case back down for consideration of whether there was infringement under standard trademark analysis. But this time in that process, the lower court must consider the attempt to ridicule Jack Daniel’s and arguable parody.
The Supreme Court expressly declined to rule whether the Rogers test should be applied in other, non-source source-identifying contexts. Three of the justices — Justices Neil Gorsuch, Clarence Thomas and Amy Coney Barrett — wrote a concurrence, noting that it was not clear that the First Amendment commanded the Rogers test or whether it was even correct.
With respect to dilution, the Supreme Court also dispatched the 9th Circuit’s analysis. The court wrote that the noncommercial use exclusion “cannot include, as the Ninth Circuit thought, every parody or humorous commentary.” That would reverse the direction of the statute and nullify Congress’ limit on the fair-use exclusion for parody, the court reasoned.
How this decision will play out in other cases will likely be explored over the next few decades. But the Supreme Court has made clear for now that in the context of source-identifying parodies, there is no First Amendment filter prior to considering traditional trademark analysis.
David Sar of Brooks, Pierce, McLendon, Humphrey & Leonard’s Greensboro office is an intellectual property lawyer and is a board-certified specialist in trademark law. ◆
The U.S. Supreme Court’s decisions in Students for Fair Admissions v. University of North Carolina and the sister case against Harvard College have shaken the foundation of higher education admission law and threaten to impair access to opportunity for many highly qualified Black and Brown students. But it doesn’t have to be this way. Despite the ill-reasoned opinion and the undermining of race-conscious admissions, there are fair-minded, lawful policies and practices that universities can engage in to ensure pathways to higher education — and by extension the professional world — remain open to students from all backgrounds.
So, what exactly did the Supreme Court hold? Using a color-blind approach, the court ruled the Constitution prohibits Harvard and UNC’s use of an applicant’s race as a “plus” factor among many other factors — among them legacy status, athletics or military service — in a holistic admission process.
But rather than overrule Grutter v. Bollinger, a critical 2003 case upholding the use of race-conscious admission policies under the Equal Protection Clause, the court undermined affirmative action by revising the Grutter strict scrutiny standard, making it more challenging for universities to create plans that survive that standard. The court also imposed further restrictions on the already limited use of race in admissions: The policy must have a time limit, the goal it pursues must be measurable, and race cannot be used as a “stereotype” or as a “negative.”
Applying this new interpretation, the Supreme Court struck down UNC and Harvard’s policies for failing to satisfy these limitations, but it did not strike down race-conscious policies at large.
By undermining 45 years of precedent authorizing race-conscious admissions under the guise of “equality,” the court disregarded the reason affirmative action policies, like holistic admission plans, were initially created. These policies were born because qualified applicants of color were systematically denied access to professions based on the color of their skin well after the Fourteenth Amendment was adopted.
To help remedy this deeply embedded injustice, former Presidents John F. Kennedy and Lyndon B. Johnson issued executive orders in the 1960s, demanding government contractors begin taking “affirmative action” to ensure meaningful integration in the professional world. Similar race-conscious efforts were already underway in the education context, like race-based K-12 busing in the desegregation era, and the eventual creation of the holistic college admission process in the 1970s — affirmative steps to promote real equal opportunity.
In Regents of University of California v. Bakke (1978), the court rejected the remedial justification for permitting race-conscious admissions (i.e., remedying historical injustice), instead upholding the use of race-conscious admission policies based on student body diversity being a compelling interest for universities to pursue, using narrowly tailored means. For almost five decades, race has been barred from
use in a quota system, to create setasides, to engage in racial balancing or used as the sole reason for an applicant’s acceptance or denial.
Unfortunately, far too many people have the misconception that affirmative action policies benefit “unqualified” applicants of color who “did not get in on their own merit.” This is a gross mischaracterization of the facts in these cases. As Justice Ketanji Brown Jackson pointed out in her dissent, under UNC’s admission policy, some of the more academically successful applicants of color were still denied admission under these policies. This misconception also ignores that white women have been some of the “greatest beneficiaries” of affirmative action policies, as former federal District Judge Shira Scheindlin discussed in her recent New York Times article.
The court’s decision will make it harder for institutions that are subject to its ruling to achieve racially diverse classrooms, forcing them to rely more heavily on race-neutral categories to achieve greater diversity. This reliance wrongly assumes that other factors, like class or hobby, can sufficiently account for race, which dilutes the purpose of affirmative action policies altogether. It also makes it more challenging for universities to use their admission processes to combat the experiences of racial isolation, tokenism and harassment on campus that our clients testified about
As alumni and professionals, we must remind our alma maters and our profession to remain open to future generations of talented, hardworking and resilient students of color. Our nation’s future depends on it.
Continued From Page 33
at trial in federal District Court. As research shows, increased racial diversity on campus correlates to a decrease in the likelihood that a hate crime will occur.
It is critical that all aspects of society remain meaningfully open to people from all racial and ethnic backgrounds. This not only allows them to build trust in our institutions but also promotes cross-cultural understanding, which is necessary to thrive in our increasingly diverse society, as Justice Sonia Sotomayor highlighted in her dissent citing the brief written by the Lawyers’ Committee for Civil Rights Under Law.
Concerningly, the court could be understood as suggesting that racial diversity is only relevant insofar as it relates to national security, by providing an explicit carve-out for military institutions in its decision, on the basis that military academies have “potentially distinct interests” other institutions may not have. However, Chief Justice John Roberts failed to mention what those interests are. This understanding disregards the many ways our nation, professions and institutions have embraced racial diversity, not colorblindness, as a core value since the 1960s along with the understanding that representation matters.
While the court’s majority made it
more difficult to achieve racial integration in higher education, there remain legitimate pathways universities should pursue to ensure their schools remain meaningfully open to students from all backgrounds. For instance, they may continue considering an applicant’s racialized experiences if it is raised in their application. To that end, universities could request diversity essays (similar to a personal statement), which allow applicants to voluntarily discuss different aspects of their identity and how their lived experiences affect their worldview and potential classroom contributions, without taking away from their written application materials.
Universities also can find new, creative ways to attract, recruit and retain students from racially diverse backgrounds, such as using virtual interviews, regional college fairs with on-sight admissions counselors, or even ZIP code-based mailing.
Likewise, law schools and other doctoral programs might start ramping up their pipeline and mentor programs with aspiring students from underrepresented communities. This is particularly true of the legal profession, where the court has long recognized since the Sweatt v. Painter case in 1950 the “practical” importance of making law schools accessible to all segments of society.
Universities can continue to offer scholarship opportunities that might
increase diversity by conditioning those scholarships on an applicant’s desire to work in underserved communities after graduation. Students also might see an increase in private scholarship opportunities offered by institutional donors, alumni affinity groups and civic organizations to support access to higher education for Black or other communities of color. Similarly, Sotomayor cited the brief filed by the Lawyers’ Committee in her dissent, asserting universities can continue and increase support for affinity groups on campus, as well as cross-cultural programming, to help ensure healthier climates.
Although the Supreme Court narrowed universities’ use of race in admissions, affirmative action policies are not dead. Holistic admission plans remain lawful, universities can continue considering a student’s racialized experiences among other experiences when reviewing a student’s application, and affirmative action policies in the employment sector remain untouched. As alumni and professionals, we must remind our alma maters and our profession to remain open to future generations of talented, hardworking and resilient students of color. Our nation’s future depends on it. Taylor Dumpson serves as associate counsel at the Lawyers’ Committee for Civil Rights Under Law. She co-authored the brief for the respondent-students in the UNC affirmative action case. ◆
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