BB&T Loses Fourth Circuit Tax Appeal Over LILO Transaction

Today in BB&T Corp. v. U.S. the Fourth Circuit upheld the IRS's disallowance of deductions that BB&T claimed for a "lease in/lease out" (LILO) transaction. (A LILO transaction involves a taxpayer leasing property from a tax-exempt entity while simultaneously leasing the property back to the owner, enabling the taxpayer to deduct the rental payments on its lease, amortize costs, and possibly deduct interest payments. Many large financial institutions executed LILO transactions in the late 1990s.) Applying the substance-over-form doctrine, the Court held that even though the form of the transaction was a lease and immediate sublease, in substance BB&T didn't acquire a genuine leasehold interest in the property. In substance, it was a financing arrangement, not a genuine lease and sublease, the Court held.

The Court's opinion, authored by Chief Judge Williams, concluded with this closing (citation omitted): "In closing, we are reminded of 'Abe Lincoln's riddle . . . "How many legs does a dog have if you call a tail a leg?"' 'The answer is "four," because "calling a tail a leg does not make it one."' Here, BB&T styled the LILO as a lease financed by a loan, but did not in substance acquire a genuine leasehold interest or incur genuine indebtedness. Accordingly, although we decline to resolve whether the transaction as a whole lacks economic substance — that is, whether it has "reached the point where the tax tail began to wag the dog'", we conclude that the Government was entitled to recognize that tail for what it was, not what BB&T professed it to be."

O'Connor-By-Designation Cases

This past week and a half the Fourth Circuit has begun issuing decisions in cases in which Retired Justice Sandra Day O'Connor sat by designation on the panel--cases argued the week of March 18. Today was the fourth such case issued (this one an unpublished FELA case). Only one has been published. There's no indication that she authored any of these opinions so far (two were pur curiams; the other two were written by other judges).

NC State Held Liable For Professor's Sexual Harassment

Yesterday, in Gonzales v. N.C. State Univ., the Court of Appeals (COA) upheld an order of the Industrial Comm'n finding NC State (NCSU) liable for negligence arising from a professor's sexual harassment of a student.

Although there appeared to be a track record of complaints about him, plaintiff apparently relied heavily on the professor's alleged harassment of another woman at NCSU 10 years beforehand. NCSU argued that because that earlier alleged incident occurred so far in the past and didn't involve a formal complaint (meaning NCSU didn't investigate to determine if the allegations had merit), it was wrong to conclude that NCSU's failure to take action after that incident caused the plaintiff in yesterday's case harm. "We agree that the time lapse is troubling," the COA said, but "the Full Commission found that [the professor] continued to harass female students in the intervening time, listing seven women by name." The COA added, "NCSU is correct that [the professor] might have been exonerated had it conducted a proper investigation" of the earlier incident, but "having failed to take the proper steps to investigate, NCSU should have reasonably foreseen that 'consequences of a generally injurious nature . . . [were] probable under all the facts as they existed.'" The COA held that NCSU couldn't rely on the failure of women to file formal complaints as a basis not to investigate the alleged incidents and then argue that the earlier allegations were never confirmed and thus didn't warrant corrective action.

COA Holds That Stock Analyst's Report Isn't Libelous

Today in Nucor Corp. v. Prudential Equity Group, LLC, the Court of Appeals (COA) affirmed the dismissal of a libel per se action brought by Nucor against Prudential and one of its stock analysts, based on a report written by the analyst, which was distributed to investors. Judge Stroud authored the opinion.

Nucor is a steel manufacturer based in Charlotte, and it's publicly traded on the NYSE. The allegedly libelous portion of the analyst's report:

"Alienated customers may encourage Nippon Steel, Brazil's CSN or some of Nucor's sixteen plant managers to build new steel companies in addition to Thyssen, Severcorr, or reborn Weirton Steel adding ten million tons. Alienated customers may file antitrust lawsuits as has been done in the electrode, container board OSB, or other sectors. A clever attorney could make hay from trebled damages on Nucor's $2.6 billion pre-tax earnings. . . ."

Nucor's complaint alleged that the reference to antitrust lawsuits "in the electrode sector" concerned lawsuits filed by steel manufacturers alleging price-fixing by electrode suppliers, and that the reference to antitrust lawsuits in the OSB sector concerned class-action lawsuits filed by consumers alleging price-fixing by OSB producers and suppliers.

The COA held that, as a matter of law, the statement is not libelous per se, because it doesn't assert any illegal or wrongful activity on the part of Nucor. The statement regarding "alienated customers" states the customers "may file antitrust lawsuits," the COA stressed. "Certainly it is true that alienated customers 'may' file antitrust lawsuits, as presumably anyone can 'file' any lawsuit, although the merits of those lawsuits are a different issue." And, while the statement also referenced lawsuits filed in the "electrode, container board OSB, or other sectors," libel per se can't be based on external explanations, the COA emphasized, but instead must be based on the face of the document; "words which need an innuendo are not libelous per se." As for the analyst's statement that "[a] clever attorney could make hay from trebled damages on Nucor's $2.6 billion pre-tax earnings," the COA didn't find any part of this statement to be defamatory, noting that it doesn't allege specific wrongful conduct by Nucor.

Nucor also challenged this statement in the analyst's report as libelous: "Nucor needs to wake up from its monopoly dreams and get back to reality in our view." The COA held that this was "an opinion statement without any alleged facts on which we could find grounds for a claim of libel per se."

Finally, the COA held that, examining the analyst's report as a whole, the "overall import of the document is not derogatory of [Nucor]," because it also states that "We believe Nucor is a fine company, and we are not aware of any 'company-specific' flaw or blemish,” and because it contains a warning that the report reflected his "personal views."

COA Issues Another Personal Jurisdiction Decision

Today in Eaker v. Gower the Court of Appeals (COA) reversed a trial court's finding of personal jurisdiction.

First, the COA held that the verified complaint's allegation that defendant is a citizen and resident of N.C. was entitled to no deference, because the defendant submitted an affidavit (in support of her motion to dismiss for lack of personal jurisdiction) stating she's a citizen and resident of Florida, and plaintiff didn't counter that affidavit. Therefore, the trial court could properly find only that defendant is a citizen and resident of Florida.

Second, the COA held that defendant didn't have minimum contacts with N.C. to comport with due process. While the verified complaint alleged that defendant is "engaged in commerce within the State of North Carolina," the COA said this statement was a legal conclusion rather than a factual allegation, and plaintiff provided no facts to support the conclusion.

COA Holds Trial Court Erred In Striking Untimely Answer

Today in Carpenter v. Carpenter the Court of Appeals (COA) held that a failure to timely file an answer is not a proper ground for striking a pleading under Rule 12(f).

A week and a half after the deadline passed for filing an answer to her complaint, Plaintiff moved for judgment on the pleadings. Defendant responded by filing an answer two weeks later, which was about four weeks after the deadline, and it raised affirmative defenses and counterclaims. Plaintiff moved under Rule 12(f) to strike the answer as untimely. The motion was granted. Then, on the basis of that ruling, the trial court granted Plaintiff's motion to for judgment on the pleadings. The COA held that the trial court abused its discretion in striking defendant's untimely answer.

COA Excuses Rule Violations

In decisions today the Court of Appeals (COA) excused rule violations, i.e., it didn't dismiss the appeals. In one case the appellant omitted a statement of the standard of review from his brief, thus violating Rule 12(b)(6). In another case the appellant failed to cite an assignment of error after stating the question presented in its argument, in violation of Rule 28(b)(6).

In another case the COA closed with this warning: "In closing, we are constrained to remind counsel that '[t]he Rules of Appellate Procedure are mandatory; an appellant's failure to observe the rules frustrates the process of appellate review and subjects the appeal to dismissal.' Here, our review of the issues raised by this appeal has been impeded andprolonged by a multitude of appellate rules violations, both in the record and in the appellant's brief. While, in this case, 'we elect[ed] to exercise the discretion accorded us by N.C.R. App. P. 2 to consider this appeal on its merits despite appellant's violations of the Appellate Rules,' counsel is admonished to observe the rules in the future." (Citations omitted)

COA Rejects Suit Over Property Sale

Today the COA rejected a lawsuit brought by a development company that had its contracts to purchase and sell property defeated when the sellers decided, unbeknownst to Plaintiff, to negotiate with and sell the property to persons with whom Plaintiff had contracted to sell the property. The case is S.N.R. Mgmt. Corp. v. Danube Partners 141, LLC.

Plaintiff entered into a contract with RBP to purchase property for development. While the property was under contract, Plaintiff discussed selling a portion of the property to Defendant Adams. Plaintiff gave Adams proprietary information to assist his evaluation of the property. Adams then contacted RBP and offered to purchase the property for the same price Plaintiff agreed to pay, but without conditions for which Plaintiff had contracted. RBP sold the property to Adams's company. Then, Plaintiff agreed with Adams on a purchase price for the property, at a time when Plaintiff had a contract with a third-party, NRP, to sell a portion of the property to NRP. But Adams contacted NRP and offered to sell the portion of the property to NRP at a lower price. NRP then terminated its contract with Plaintiff and purchased the property directly from Adams's company.

Plaintiff sued Adams, his company, RBP, and a realtor. Plaintiff alleged claims for fraud, civil conspiracy, tortious interference, and a UDTPA violation. The trial court dismissed the claims under Rule 12. Plaintiff appealed. The COA, in an opinion by Judge Calabria, affirmed.

The COA rejected the fraud claims on the ground that they weren't pleaded with sufficient particularity. Plaintiff accused RBP of engaging in fraud because it indicated to Plaintiff that it would be able to complete the sale without informing Plaintiff that it was in negotiations with Adams and reached an agreement to sell to Adams. Plaintiff accused Adams of fraud for obtaining proprietary information from Plaintiff about the property while concealing that Adams was interested in purchasing the property and was negotiating the purchase. The COA concluded that Plaintiff's allegations lacked particularity: Plaintiff failed to identify sufficiently the content of the alleged misrepresentations; and Plaintiff failed to allege the time or place where the representations or omissions occurred. In addition, with respect to Plaintiff's allegation that Adams obtained proprietary information from plaintiff concerning the property while concealing that he was in negotiations to purchase the property, the COA held that this allegation was also deficient because "[t]he term 'proprietary information' does not state with sufficient particularity 'what was obtained as a result of the fraudulent acts or representations.'"

The COA rejected the tortious interference claim against Adams because the complaint indicated that Adams was competing with Plaintiff to develop the land; therefore, any interference was justified.

The COA rejected the civil conspiracy claim because, while the complaint asserted the existence of a conspiracy, it failed to allege there was an agreement between the defendants to commit the wrongful overt acts.

As for UDTPA claim, the COA held that the complaint's allegations didn't show that defendants engaged in any egregious conduct or conduct amounting to an inequitable assertion of power over Plaintiff. "Rather, defendants' conduct appears to be nothing more than competitive business activities."

COA Splits On Personal Jurisdiction Over Corporate Officer, Upholds Jurisdiction Over Parent On Veil-Piercing Allegations

Today the Court of Appeals, in a significant case, issued a split decision on personal jurisdiction over an officer of a foreign corporation, while unanimously agreeing that personal jurisdiction could be exercised over an affiliated corporation on a veil-piercing theory. The case is Saft America, Inc. v. Plainview Batteries, Inc. Judge Tyson wrote the majority decision, joined by Judge Jackson. Judge Arrowood dissented.

Saft is a N.C. manufacturer. Defendant Plainview is a NY corp which had a business relationship with Saft, purchasing millions of dollars of goods from Saft pursuant to contracts between them. The relationship broke down after a dispute over payments. Saft sued Plainview. But Saft also sued Bernie Erde, an officer of Plainview and owner of 49% of Plainview's stock (I'll refer to Erde as the "CEO"). And Saft also sued another NY corp, Energex, which apparently owned a stake in Plainview, and which had overlapping management and ownership with Plainview (I'll refer to Energex as the "Parent"). Both the CEO and the Parent moved to dismiss for lack of personal jurisdiction.

1. Jurisdiction Over The CEO

Saft alleged that it dealt with the CEO as Plainview's representative and that the CEO had visited N.C. in connection with their business relationship, for purposes of touring Saft's facility and negotiating a contract. The CEO submitted an affidavit admitting he had visited Saft's factory in N.C. in his role as a corporate officer of Plainview, but he contended that any dealings he had with Saft were solely in his capacity as an officer of Plainview. The trial court found he was subject to personal jurisdiction.

The Court split on this issue. The majority held there was no personal jurisdiction over the CEO. Judge Arrowood disagreed.

From the principle that personal jurisdiction over an individual officer of a corporation may not (consistent with due process) be predicated upon the corporation's contacts with the forum, the majority reasoned that contacts undertaken by an officer in his official capacity on behalf of the corporation can't establish personal jurisdiction over the officer. The majority distinguished earlier cases that had found jurisdiction against corporate officers, holding that those cases involved acts taken by the officers in their individual capacities (e.g., signing personal guarantees or a promissory note in their individual capacities). Because Saft failed to allege any act against the CEO that was committed in his individual capacity, the majority held that he was not subject to personal jurisdiction.

Judge Arrowood didn't disagree with the proposition that personal jurisdiction over an officer can't be based merely on the corporation's contacts. But he disagreed that acts taken by an individual as an officer and principal shareholder of a corporation don't count. In his view, the precedents "did not hold either that (1) personal jurisdiction over a defendant may only be based on the contacts he has with the state in the course of his private life; or, conversely, that (2) in assessing personal jurisdiction we may not 'count' a defendant's contacts if they were made as part of his employment." "Indeed," he contended, "relevant precedent consistently interprets the requirement that a defendant act in his 'individual capacity' to mean only that he must personally have minimum contacts with North Carolina, and not that these contacts must arise from his 'personal life.'" As he read the case law, "the determination of whether personal jurisdiction is properly exercised over a defendant does not exclude consideration of defendant's actions merely because they were undertaken in the course of his employment. The corporate actions of a defendant who is also an officer and principal shareholder of a corporation are imputed to him for purposes of deciding the issue of personal jurisdiction." He relied heavily on this statement by the Supreme Court: "We hold that where, as in this case, defendant is a principal shareholder of the corporation and conducts business in North Carolina as principal agent for the corporation, then his corporate acts may be attributed to him for the purpose of determining whether the courts of this State may assert personal jurisdiction over him." United Buying Group, Inc. v. Coleman, 296 N.C. 510, 515, 251 S.E.2d 610, 614 (1979).

2. Jurisdiction Over The Parent

Even though the contracts in question were signed by Plainview, not the Parent, the panel was unanimous in holding that Saft could establish personal jurisdiction over the Parent based on veil-piercing allegations.

Saft's complaint alleged (1) that defendants violated certain corporate laws and formalities; (2) that the CEO and another individual defendant exercised control over the finances, policies, and business practices of both corporate defendants; and (3) that assets were diverted from Plainview to the Parent, leaving Plainview inadequately capitalized. The CEO (who also was an officer and owner of the Parent) submitted an affidavit on behalf of the Parent stating that the Parent "has never had any dealings with the [Saft]"; that all transactions between the parties were made on behalf of Plainview, not the Parent; and that the Parent "is an independent corporation, completely and totally separate from Plainview." But the COA said these generalized allegations had to be ignored because they were conclusions, not facts, and they failed to contradict Saft's allegations on veil-piercing (i.e., its allegations that defendants violated certain corporate laws and formalities, that the individual defendants exercised control over the finances, policies, and business practices of both corporate defendants, and that assets were diverted from Plainview to the Parent, leaving Plainview inadequately capitalized).

Today's NC Court of Appeals Decisions

The NC Court of Appeals (COA) released 20 published opinions today. Six are criminal cases. There are four dissents. Notably, the COA found error (i.e., reversed or vacated) in more than half the cases (11). Another tough day for trial court judges. More on these cases later.

NC SCT Reiterates: No Assignments Of Error Needed From Summary Judgment

On Friday the NC Supreme Court reiterated this: "This Court has long held, and the law has not been changed, that for purposes of an appeal from a trial court's entry of summary judgment for the prevailing party, the appealing party is not required under Rule 10(a) of the Rules of Appellate Procedure to make assignments of error for the reason that on appeal, review is necessarily limited to whether the trial court's conclusions as to whether there is a genuine issue of material fact and whether the moving party is entitled to judgment, both questions of law, were correct."

One can only wonder why, if assignments of error are not required from summary judgment orders, they are required to appeal other types of orders, such as Rule 12(b) orders, Rule 50 orders, etc. Indeed, there is a stronger argument for requiring assignments of error from summary judgment orders compared with, say, a Rule 12(b)(6) order: in an appeal from summary judgment, the appellee may not know whether the appellant is appealing on the basis that there are genuine issues of material fact (if so, which facts?) or on the ground that the claims are foreclosed by law (if so, which claims? which legal principles?), or both.

Hopefully these distinctions will be rendered meaningless, because hopefully the Supreme Court will agree with the pending proposal to eliminate assignments of error.

Divided NC SCT Rejects Suppression Of Evidence

On Friday, in a criminal case implicating the Fourth Amendment's prohibition against unreasonable searches and seizures, the NC Supreme Court split on an issue that had divided the Court of Appeals (COA) below: whether a defendant's 30-second delay at a traffic intersection after the light turned green gave rise to a reasonable, articulable suspicion that the defendant was engaged in criminal activity (namely that he was driving while impaired), thus justifying a traffic stop, which resulted in the police finding drugs. Did the drug evidence have to be suppressed? The COA majority, over Judge Calabria's dissent, said no, holding that the 30-second delay provided a reasonable, articulable suspicion for the stop. On Friday the Supreme Court agreed, in an opinion by Justice Newby. Justices Brady, Timmons-Goodson, and Hudson dissented. Justice Brady accused the majority of having "lowered the threshold of the Fourth Amendment's standard of reasonable, articulable suspicion to an unacceptable level, dangerously exposing the citizens of North Carolina to the potential for unreasonable and arbitrary police practices unchecked by our state's trial and appellate courts." (We originally reported, mistakenly, that Justice Timmons-Goodson joined that dissent. Actually, she didn't. She joined Justice Hudson's separate dissent.)

NC Supreme Court Orders and Opinions Today

The NC Supreme Court released orders and opinions today. There are 8 opinions. Half are per curiams. Among the orders: the Court denied plaintiffs' appeal and PDR in the case brought to challenge the constitutionality of economic incentives received by Dell for locating a new manufacturing facility in North Carolina. (We represented Dell.) More on these cases later.

SCT Decisions This Week

The NC Supreme Court is scheduled to release orders and opinions this Friday April 11.

Summary Judgment During Discovery OK, Attorneys' Fees Using Wrong Legal Standard Not So Much

In Birmingham v. H & H Home Consultants and Design, Inc., the COA held that summary judgment during the pleadings and discovery phase was permissible, but that the award of attorneys' fees to the successful defendants of an unfair and deceptive trade practices claim using the standard for awarding such fees to successful plaintiffs was impermissible.

In Birmingham, the plaintiff bought a house, the defendants allegedly failed to disclose problems with the house before the sale, and plaintiff sued. Third party defendants were brought in, and before their time to respond, and before discovery was completed, the individual seller defendants successfully moved for summary judgment.

On appeal, plaintiff claimed the summary judgment was premature. The COA disagreed, noting that while "ordinarily it is error for a court to hear and rule on a motion for summary judgment when discovery procedures, which might lead to the production of evidence relevant to the motion, are still pending," this "rule presupposes that any information gleaned from the discovery will be useful." Here, the plaintiff failed to show how outstanding discovery would be useful in defending the summary judgment motion. The motion was therefore properly granted.

The plaintiff also appealed the trial court's award of attorneys' fees to the defendants. On this, the COA sided with the plaintiff. The COA noted that the unfair and deceptive trade practices laws, and specifically N.C.G.S. 75-16.1, allow both successful plaintiffs and successful defendants to recover their attorneys' fees. However, the legal standards for those recoveries differ, with plaintiffs' hurdle being unwarranted refusal to settle a willful violation, and defendants' hurdle being that the claim was instituted knowingly maliciously or frivolously. Because the trial judge here mistakenly applied the plaintiffs' standard to the defendants, the fee award was reversed and the issue was remanded for a do-over with the proper standard.

Worker's Intoxication Properly Barred Workers' Comp. Recovery

In Gratz v. Hill, the NC COA held yesterday that an employee's workers' comp. recovery was properly barred because the worker's intoxication was a cause for the injury.

In Gratz, the plaintiff got a beer in the morning while with fellow workers on the way to a job that involved roof work. Due to the windy conditions, the other workers refused to get up on the roof. But the plaintiff hopped up -- and soon fell off. Evidence indicated that the plaintiff's breath smelled of alcohol, that he had elevated blood alcohol levels, and that he had traces of cocaine and cannabinoids in his urine.

The COA noted that generally workers' comp. is intended to eliminate fault on the part of the worker as a basis for denying recovery and that generally workers' comp. law is construed liberally in favor of benefits. However, the COA stated that workers' comp. law expressly relieves employers from paying workers' comp. benefits where the employee's intoxication is a cause (and not necessarily the only cause) of the injury, so long as the employer or its agent didn't supply the intoxicant.

COA Bars Double-Dipping With Admin. Appeal And Civil Suit

The COA yesterday held in Hentz v. Asheville City Board of Education that a party can't have two bites at the apple by bringing a law suit based on an administrative action while also appealing the action in the administrative realm.

In Hentz, the plaintiff sought to challenge the School Board's decision to revoke her children's admission to Asheville's schools. Yet the COA held that the plaintiff had administrative remedies available to her, and that she impermissibly attempted to simultaneously pursue those administrative remedies and her civil law suit without alleging anywhere in her suit that the administrative remedies were in any way inadequate and that the requirement that she exhaust those remedies should therefore be lifted. The superior court where the law suit was filed had only appellate jurisdiction to review the administrative decision, had no subject matter jurisdiction over the law suit, and therefore the suit was properly dismissed.

COA Upholds Contractual Limitation Of Liability

Today the Court of Appeals (COA) upheld a contractual limitation of liability clause which capped damages at $50,000. The case is Blaylock Grading Co., LLP v. Smith. Chief Judge Martin authored the decision.

Defendants, an engineering company and its principal, entered into a contract with plaintiff, a grading company, to provide land surveying services. The contract contained a "Risk Allocation" provision limiting defendants' liability. It said: "[Liability to plaintiff] for any and all injuries, claims, losses, expenses, damages or claim expenses arising out of this agreement, from any cause or causes, shall not exceed the total amount of $50,000, [or] the amount of [defendants'] fee (whichever is greater) . . . . Such causes include, but are not limited to, negligence, errors, omissions, strict liability, breach of contract or breach of warranty."

Defendants negligently surveyed land, requiring plaintiff to import fill to raise the elevation of the site. Plaintiff sued for negligence and breach of contract. Defendants moved for partial summary judgment, claiming the Risk Allocation clause limited damages to $50,000. The trial court denied the motion. A jury found that defendants breached the contract and were negligent and awarded plaintiff $574,714. After the verdict, the trial court held that the Risk Allocation provision was void as against public policy and entered judgment on the jury verdict. Defendants appealed.

The COA reversed, holding that the Risk Allocation clause wasn't void as against public policy. Thus, plaintiff's damages presumably will be capped at $50,000.

The COA relied on Gas House, Inc. v. Southern Bell Tel. & Tel. Co. , 289 N.C. 175 (1976), which upheld a limitation of liability. The COA noted that plaintiff in today's case stipulated that there were no formation irregularities in the contract and that it wasn't unconscionable. "Plaintiff and defendants are sophisticated, professional parties who conducted business at arms' length ...." The COA emphasized that defendants aren't a common carrier or a provider of a public utility, and thus plaintiff couldn't rightly invoke a rule that's sometimes called the "public service exception": a limitation of liability is void if issued by a common carrier or public utility with respect to its provision of public services.

The trial court had mistakenly concluded that the "public services exception" should apply in this case since engineers and land surveyors are regulated and must be licensed. The COA disagreed and made two observations. First, the mere fact that a field (like surveying) is regulated and has a licensure requirement doesn't automatically convert it into a public service. Second, "when a breach of contract between two parties involves only economic loss, as in the present case, the health and safety of the public are not implicated" in an action between the contracting parties.

Today's case is a reminder that limitation of liability clauses in arms' length contracts between commercial organizations (or otherwise sophisticated parties) will be upheld absent the most extraordinary of circumstances.

COA Decisions Today

The Court of Appeals released decisions today. There are 16 published decisions. Half are criminal cases. No dissents. More on these cases later.