Author: NCBA BLOG (page 2 of 48)

Air, Water and Soil Impacts of GenX: Health Goals, Ongoing Investigations and the Litigation Front

By Heather S. Kennealy and Edmund Woloszyn

The Chemours Company plant in Fayetteville produces a wide variety of films, fibers, and specialty chemicals at a 2,000-acre facility on the border of Cumberland and Bladen Counties along the banks of the Cape Fear River. E. I. du Pont de Nemours and Company (DuPont) owned and operated the Fayetteville Works Facility from around 1971 until around 2015, when DuPont formed Chemours and transferred ownership to it. DuPont currently leases a portion of the Fayetteville Works Facility from Chemours and has ongoing operations at the Facility.

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The Chair’s Comments: Here’s To Living In Interesting Environmental Law Times

By Stanford Davis Baird

In the last EENR newsletter, I remarked what an interesting time it is to practice environmental law. Evolving environmental policy, changing regulations, and interesting court cases make this a fascinating area of law. Two cases involving North Carolina lawyers that were in the news during the weeks since our last newsletter highlight this fact even more. The decision by the U.S. Court of Appeals for the Fourth Circuit in Upstate Forever v. Kinder Morgan Energy Partners, L.P. appears to break new ground in Clean Water Act jurisprudence and challenges long-held and accepted notions regarding point source discharges. This is an important case that may well be combined with a recent Ninth Circuit case from Hawaii for appeal to the U.S. Supreme Court. In a different case, on April 26, 2018, a federal jury awarded $50 million in punitive damages to neighbors of large-scale hog farms in Eastern North Carolina. Considered by many a landmark test case, this verdict challenges fundamental assumptions regarding hog farm operations in the multi-billion dollar industry in North Carolina. There is certain to be much more activity in the agricultural torts space going forward. These cases are further reminders that there is rarely a dull moment for followers of environmental law.

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In the Environment of Change: EENR Three-State CLE & Annual Meeting

There’s a new twist to this year’s Environment, Energy, & Natural Resources Law Section Annual Meeting and CLE Program in Asheville, May 11-12. It will be the first-ever three-state joint conference bringing together environmental attorneys, regulators, and consultants from Georgia, North Carolina and South Carolina for continuing legal education and professional development. Planners from each state’s Environmental Law Sections have spent the past several months putting together a program of interest and relevance to those under the jurisdiction of Region IV of the U.S. Environmental Protection Agency.

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Board-Led Prayer: Reasons to Beware

By Allison Cooper

Legislative prayer[1] is under attack and the challenges appear far from over. Our Fourth Circuit’s Lund v. Rowan County[2] decision, on rehearing en banc, declaring Rowan County’s[3] prayer practices unconstitutional is a perfect illustration. Despite years of protracted litigation, Lund‘s appellate history and that of its sister cases[4] represent the fundamental difficulty our courts have in evaluating the constitutionality of legislative prayer. Each case requires a fact intensive analysis considering whether the prayer practice is in fitting with historical practices; our nation’s Establishment Clause jurisprudence does not prescribe a particular test.[5]

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When ‘The Mask’ Grows Too Heavy, BarCARES Can Help

By Claudia McClinton

An NCBA member shares her BarCARES story in recognition of Mental Health Month.

Ten years ago I found myself in quite a quandary. My law partner had been appointed to the bench so I was practicing family law and criminal law (his former caseload) at the same time. I was also carrying the financial responsibility of three attorneys (don’t ask).

As you can imagine, I was in court practically every day and yet still barely scraping by financially. Worse, I was chronically stressed, not sleeping much, if at all, and my on-the-go lifestyle had me making poor health choices. One of those poor choices, for me, was the regular consumption of alcohol in an attempt to drown out the day. That choice amplified other poor choices and, in some cases, endangered not only my life but the lives of others.  I was going down a very dark path.

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N.C. Supreme Court Rules That Brokers May Testify on the Issue of Fair Market Value

By Allen N. Trask III

In a recent opinion, the North Carolina Supreme Court expanded the possibilities of allowable testimony about a property’s fair market value. In its decision in North Carolina Department of Transportation v. Mission Battleground Park, DST, 810 S.E.2d 217 (N.C. 2018), the court held that the trial court had improperly excluded the testimony of a commercial real estate broker regarding the fair market value of property condemned by the North Carolina Department of Transportation (“NCDOT”). This article briefly explores the case facts and the reasoning of the decision and also discusses how this ruling affects condemnation or other types of cases.

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Business Section Members: Welcome to Your New Blog

By Stephen Later

This announcement marks a major turning point for the Business Law Section as we transition from our traditional newsletter to our new blog.  Jim Beckwith edited our newsletter for many years and, with his retirement, we decided to switch to a vehicle that will, we hope, offer more frequent delivery of news including updates on caselaw and legislative developments, Section business, and other matters of interest to our members.

The board of editors of our blog—Ben Baldwin, Abbie Baynes, Dave Clement, Ryan Coffield, Jonathan Jenkins, Bob Saunders, Andrew Steffensen, Jennifer Weaver, and Peter Webb—will rotate two-week periods of responsibility for blogs content.  We welcome additions to the board of editors as well as blog posters, so, if you are interested in joining the rotation or contributing an article or have ideas for topics, please reach out to Abbie Baynes, the chair of the board of editors, at Our success will, of course, depend upon the support and engagement of our members, so, if your inner Hemingway is searching for an outlet for expression, please reach out to Abbie or any of the other editors.

Thank you for your membership in the Business Law Section and, again, we welcome and encourage your participation in the blog or on a committee.  Our Section depends upon its members, so we hope that you take the opportunity to participate, and you will not be disappointed.

New ERISA Disability Claims Regulations: Five Things You Need To Know

By Norris A. Adams II
and Caitlin H. Walton

In the second installment of our three-part series on ERISA’s new disability claim-processing procedures, we will focus on what we believe are the five most significant changes to the regulations. Read part one here.

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Law 101: Overview of the Rule 30(b)(6) Deposition

By Michael Cohen

Federal Rule of Civil Procedure 30(b)(6)

Rule 30(b)(6) of the Federal Rules of Civil Procedure, along with analogous rules under state law, provides a tremendous discovery tool for litigators.  Unlike the depositions of named witnesses, depositions under Rule 30(b)(6) require that an organization designate and prepare an individual to testify as to all delineated information “known or reasonably available to the organization” – not merely information personally known to the deponent – and offer testimony that is binding on the organization.  When used properly, 30(b)(6) depositions can render “I don’t know” answers a rarity, while offering an incredibly effective mechanism for fact-finding and efficiently progressing the underlying litigation.  This article is designed to provide a general overview of the 30(b)(6) device, as well as offer insight as to the duties of counsel when proceeding under Rule 30(b)(6), and the distinctions between a 30(b)(6) deposition and a deposition of a named witness.[1]

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MacCord’s List: IP News & Notices From Art MacCord

Art MacCord is a patent attorney with 38 years of experience. He keeps an eye on the U.S. Patent and Trademark Office and the U.S. Copyright Office for new rules and practice tips of interest to intellectual property attorneys. Please see below for the most recent updates.

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