By Laura Wetsch and Faith Herndon
Labor & Employment Law Section
“Crossover” day is over, and so far roughly 39 employment-related bills are still in play at the General Assembly, as listed in this spreadsheet, updated April 27, 2017. We will continue to update throughout the remaining 3-plus months of this long session, but you can also check bill status by clicking on a bill’s number on the spreadsheet, or by running a search here. Please let us know if you have any questions, or if we’ve missed a bill that would be of interest to the section.
By Kimberly M. Johnson
Last Saturday afternoon, my friend from college called me. Well into our gabfest, she mentioned that she was apprehensive about starting graduate school.
Let me pause for a moment. The last time we were in school, Bon Jovi was the coolest band around and “LA Law” was the No. 1 TV show. My response was positive. Her reaction was still lackluster. I asked her what was wrong. She lamented, “I have too much on my plate; you know, Andre (her husband), the kids, work, stuff like that. What time and space do I have for studying? Maybe I should put this on hold for semester or two.”
By Joseph S. Murray IV
Does a pre-litigation, unsworn statement constitute “testimony” sufficient to invoke the sham affidavit rule when a party subsequently testifies in an inconsistent manner? Instead of addressing this important question, both the majority and dissent in Wilson v. Gaston County, No. 15-2522 (4th Cir. April 13, 2017) (unpublished), assume that prior written statements of the plaintiff can be considered “testimony” for purposes of invoking the sham affidavit rule. By failing to make this initial inquiry, the court used the sham affidavit rule to sweep away a party’s deposition testimony in favor of two written statements that were not given under oath.
The 4th Circuit first invoked the sham affidavit rule when it stated “[a] genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the [party’s] testimony is correct.” Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984) (emphasis added). The use of the word “testimony” is not by accident and has a specific meaning: “evidence that a competent witness under oath or affirmation gives at trial or in an affidavit or deposition.” Black’s Law Dictionary 1485 (7th ed. 1999). In fact, the 4th Circuit has specifically stated that statements not given under oath and not subject to cross-examination are not equivalent to deposition testimony, and as such, that applying the sham affidavit rule in such contexts is inappropriate. Shockley v. City of Newport News, 997 F.2d 18 (4th Cir. 1993); see also Leslie v. Grupo ICA, 198 F.3d 1152 (9th Cir. 1999). Heeding these principles, virtually all courts have required both versions of the facts to take the form of “testimony,” such as depositions versus affidavits, contradictions within sworn statements, testimony versus sworn EEOC charge, and affidavit versus verified document. But see McDevitt & St. Co. v. Seaboard Sur. Co., 1995 U.S. App. LEXIS 15076 (4th Cir. June 19, 1995) (misquoting Barwick while invoking sham affidavit rule when an affidavit directly contradicted the language in letters between the parties); Williams v. Genex Servs., LLC, 809 F.3d 103 (4th Cir. 2015) (sham affidavit rule invoked when plaintiff’s testimony conflicted with her resume).
By Matthew Ellinwood and Sabrina Leshore
Have you had questions regarding juvenile law that were left unanswered? Have you wondered what the juvenile court judges deem most effective when appearing in their courtrooms? Are you interested in hearing from youth who are directly impacted by the daily decisions made by practitioners and judges on their behalf?
Well, the Juvenile Representation CLE scheduled for Friday, May 12, 2017 at the Cary Bar Center is just for you!!! The first 15 Juvenile Justice & Children’s Rights Section Members who register BEFORE May 5, 2017 will receive an additional rebate which will lower the registration fee.
This CLE will provide attendees with effective strategies for juvenile representation from practitioners in the field, juvenile judges, and youth impacted by contact with the juvenile justice system.
Key topics covered will include:
- Practical suggestions from experienced attorneys handling cases in abuse, neglect, and dependency court
- Judges’ examples of effective advocacy from their experiences in juvenile court
- Perspectives from youth who were formerly involved in the juvenile delinquency and child welfare systems
- A look back at the meaning of In re Gault after 50 years
- Dealing with stress and trauma from handling difficult juvenile cases
Matthew Ellinwood and Sabrina Leshore are co-chairs of JJCR-CLE.
By Ernest C. Pearson
Since the early 1990s, when the use of incentives to stimulate economic growth began to be used more frequently in North Carolina, there has been a question as to whether state or local government incentive programs can and should be used to attract retail projects.
With one exception, at the state level, incentive programs by statute or administrative rules exclude retail projects from incentive support. In the mid 1980s, the General Assembly adopted the first job creation tax credit program. That statute did not exclude retail as a type of project that could obtain the tax credits. After a company that built a fast food restaurant claimed the tax credits, the statute was amended to exclude retail projects. Since then, all state incentive grant and tax credit programs have excluded retail projects from consideration.
By Robert Ward
Our last meeting of the year was held on April 7, 2017, and began with a great presentation about NCCU’s Street Law Program by Professor Page Potter. Professor Potter first provided a historical overview of street law, and she then detailed NCCU’s Street Law Program, which is a course taught by law students on legal topics to Durham public schools middle or high school students in cooperation with their classroom teachers. Topics taught include contemporary law & justice – principally, Constitutional law; the Bill of Rights; landmark U.S. Supreme Court cases; Federal and North Carolina court systems; and criminal law and criminal trial process. Professor Potter’s presentation was interesting and enlightening to the council, particularly to those, including myself, who may not have been aware that a number of law schools have a street law course as part of their curriculum.
By Robert Ward
The council held a brief meeting at 7:30 a.m. on Feb. 9, 2017. John Branch, chair of the Law School Committee, reported on a potential law school forum program which may be considered during the fall of 2017. Colin Shive, editor for our blog, The Constitutionalist, related that there would be forthcoming blog articles. Patricia Perkins presented the treasurer’s report, and a discussion ensued regarding the use of any potential section budget surplus. In this connection, Andi Bradford will consult LRE for recommendations for council consideration at the next council meeting.
As has been the custom, the Annual Meeting of the Constitutional Rights and Responsibilities Section was held in conjunction with the section’s sponsored CLE. The topic this year was North Carolina House Bill 2. At noon, the section meeting convened and for the agenda the nomination committee submitted a slate of officers and members for consideration by the section. The first agenda item was the nomination of Chair Michele Luecking-Sunman and Vice Chair Patricia Perkins to be submitted to and recommended for appointment by NCBA President-Elect Caryn Coppedge McNeill. Second, Secretary Tami Fitzgerald and Treasurer Chris Brook were elected. Third, the section elected four new Council members: Leto Copeley, Scott Gaylord, Ann McColl and Tom Segars. I extend my congratulations to them on their election and commend them for their willingness to serve our section for the upcoming 2017-2018 council year.
By Courtney Dabbiere and Allison Dobson
Under 35 U.S.C. § 325(d), the Patent Trial and Appeal Board has the discretion to deny a follow-on inter partes review petition where multiple petitions are filed against the same patent. In exercising its discretion, the board may consider whether “the same or substantially the same prior art or arguments previously were presented to the Office.” 35 U.S.C. § 325(d). Additionally, the board may consider several factors “including the facts of each case, the burden on the parties and the Board, and the public interest.” See Polygroup Ltd. v. Willis Elec. Co., Ltd., No. IPR2016-00801, Paper No. 8, at 14 (P.T.A.B. Oct. 17, 2016). While the board’s decisions granting and denying follow-on petitions depend on the circumstances of the case, there are several factors petitioners and patent owners can use to assess the likelihood of the board exercising its discretion. We studied the reasoning for grant or denial of 120 follow-on petitions and report our findings here.
The board will typically decline to exercise its discretion when (1) a petition presents new prior art and/or arguments that are substantially different from the previously relied on art and/or arguments; (2) a different petitioner is challenging the previously challenged claims; (3) a petition challenges claims not previously challenged; or (4) the prior petition was denied without substantive evaluation of the prior art or its applicability to the challenged claims, such as when a proceeding is terminated prior to receiving an institution decision or a final written decision, or when the board denied the previous petition without addressing the merits of petitioner’s arguments. The board may also decline to exercise its discretion when the board has instituted proceedings between the same parties on the same or substantially the same grounds because there will be little additional burden to the parties and the board.
Dear IP Section Members:
We are seeking additional volunteers to draft posts for the NCBA Intellectual Property Law Blog. Please electronically forward any submissions to us at MMorlock@kilpatricktownsend.com and LaAnderson@wcsr.com.
Posts can be short and can address any topic related to recent developments in IP Law. Some suggestions include:
- Analysis of recent Federal Circuit Decisions
- Analysis of recent Oral Arguments at the Supreme Court that impact IP Law, e.g., TC Heartland LLC v. Kraft Foods Group Brands LLC
- Analysis of any of the post-grant decisions that the PTAB has identified as precedential
- How Examiners are treating Federal Circuit decisions on 35 U.S.C. 101
These are just suggestions, and you are not limited to these topics. Please let us know if you have an idea for a topic, or have a completed post you would like to submit for publication.
Michael Morlock, newsletter co-editor
Lauren Anderson, newsletter co-editor
By Benita Jones
Thank you to the Education Law Section members who recently participated in panels and networking events at North Carolina Central University School of Law and Campbell University Norman Adrian Wiggins School of Law.
Section members mingled and shared career advice with future attorneys at a networking lunch at NCCU School of Law following the section council meeting on Feb. 2, 2017. During the lunch, law students had the opportunity to pose questions about pathways to practice in the area of education law to a distinguished panel of attorneys, including: Venus Boston, assistant legal counsel, Winston-Salem State University; John Leidy, attorney, Hornthal, Riley, Ellis & Maland, LLP; Kimberly Potter, special deputy attorney general, N.C. Department of Justice; Hope Tyehimba, general counsel, NCCU; Nicole Wiley, equal opportunity investigator, UNC; and Thomas West, vice president for governmental relations and general counsel, N.C. Independent Colleges and Universities. A special thanks to Giovonni Wade, director for career services at NCCU School of Law, for her assistance in coordinating this event.