Pending Case Will Answer Questions on Key Antitrust Immunity

By Matthew W. Sawchak

For years, courts have struggled to decide how federal antitrust law applies to regulatory decisions by state agencies. SmileDirectClub v. Battle, a case pending in the U.S. Court of Appeals for the Eleventh Circuit, should offer some answers. SmileDirect is likely to clarify what counts as active supervision that can immunize a state agency from federal antitrust liability.


SmileDirect involves the state-action doctrine, which holds that the federal antitrust laws do not apply to sovereign acts of state governments. Under the doctrine, state statutes and decisions of state supreme courts are absolutely immune. Other types of government actions are immune only under certain conditions.

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A Message From the Chair

By Jenna Fruechtenicht Butler

As I look out the window from my home office, the waters on Masonboro Sound are soothingly calm. There is no hint of the worldwide pandemic raging around us, but then I think back to the email I received last Friday from the wife of a client I had last seen at the end of February. Her life has been turned upside down by her husband’s untimely passing from COVID-19. It’s a lot to digest, and as lawyers, we are dealing with our own situations as well as those of our clients.

Yesterday, I participated in a zoom call with NCBA President, LeAnn Nease Brown, NCBA Executive Director, Jason Hensley, and other bar leaders and section chairs. Our discussion centered on what the NCBA is and can be doing right now for you, its members. Toward that end, I encourage you to visit the NCBA website if you are in need of any COVID-19 resources or updates. The bar is doing an excellent job of staying on top of things, and there is a link that takes you to a lot of useful information.

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Fight Hunger, Help Others in the COVID-19 Pandemic – Participate in the Legal Feeding Frenzy and Support Your Local Food Bank!

Michele Livingstone

Will Quick

By Michele Livingstone and Will Quick

We are in unprecedented times with COVID-19 (Coronavirus).  It is now more important than ever that we help our neighbors and those who are not as fortunate. I am confident that each of you is doing your part.

Even in the best of times, however, over 1.5 Million North Carolinians struggle with hunger—of those, nearly half a million are children. With public schools and many religious and nonprofit organizations that traditionally serve the food insecure in our communities being closed for indefinite periods, and government leaders calling for social distancing to help limit the spread of Coronavirus, that need is never more pressing than now.

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Annual Meeting and Upcoming Event

By John P. Marshall 

Dear Section Members,

The Antitrust & Complex Business Disputes Law Section Annual Meeting and CLE was held on February 13, 2020 at the Bar Center in Cary. As usual, the event was well attended with almost 150 people attending in person or online. Topics included an analysis of the Economic Loss Rule, enforcement of Antitrust laws from those that enforce them, business valuation issues, ethical issues arising in small business disputes and receiverships. The highlight of the day was the Business Court Judges Panel Discussion which was attended by all five of the state’s Business Court Judges.

The CLE was wonderfully planned by Tom Segars of Ellis & Winters, LLP. Special thanks to our presenters and moderators Katie Burchette, Fred Monroe, Greg Skidmore, Catherine Arrowood, Stephen Carey, Sarah Clayton, Vic Domen, George Hawkins, Deborah Hylton, Catherine Lawson, Scottie Lee, Ryan Quillian and George Sanderson. Of course, a big thank you also is extended to Judges Bledsoe, Gale, McGuire, Conrad and Robinson for their always instructive and educational panel discussion on the Business Court. If you missed the CLE, we highly encourage you to catch a replay.

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Pro Bono Initiative – Privacy

By Nathan Chase

Dear Members of the Antitrust and Complex Business Disputes Section:

I hope that everyone enjoyed the Annual Section Meeting and CLE on February 13th—thanks to Tom Segars, Jenna Butler, and everyone else involved in putting on such a great event. As Jenna mentioned at the Meeting, the ACBD Pro Bono Committee is pleased to announce a new initiative to provide resources to help North Carolinians protect their privacy. Privacy issues are an increasingly important topic today and we are excited to do our part in educating the public about how to avoid and deal with this problem.

Our privacy protection initiative involves two parts. First, we have developed a privacy protection brochure that provides information and identifies resources regarding identity theft, unwanted texts and emails, and other privacy issues. Printed copies of the brochure have been delivered to over 120 public libraries and legal aid centers throughout North Carolina. The Committee has received a grant from the North Carolina Bar Foundation to assist with this effort—we greatly appreciate their support.

Second, we have developed a comprehensive presentation regarding identity theft, which can be found here. This presentation is intended to be a resource for use by our members during community events or in other settings where identity theft and privacy issues are discussed.

The ACBD section is excited about continuing its tradition of pro bono involvement. If you would like to learn more about this important initiative or have thoughts on other pro bono efforts, please feel free to contact me at




Sign Up Now for Core Curriculum for Complex Business Litigators!

By Tom Segars

Happy New Year! One special delight of ringing in another year is knowing that the Antitrust & Complex Business Disputes Section Annual Meeting and CLE is right around the corner.  The CLE is always a wonderful opportunity to network with others, to learn about matters that truly affect our practice, and to fulfill any last-minute CLE needs.  This year’s CLE on February 13, 2020, will be no exception.

Core Curriculum for Complex Business Litigators features a lineup of dynamic speakers to present on a broad range of topics.  The agenda includes deep dives into substantive legal areas that many of us encounter regularly:

  • North Carolina’s economic loss rule;
  • Ethical issues that arise in closely-held business disputes; and
  • The law of receivership.

Three exceptionally qualified panels will bring diverse perspectives on areas of practical significance to our Section membership:

  • Arbitration as a means of resolving complex business disputes—with practical tips and empirical data about the process;
  • Developments in recent antitrust initiatives, investigations, theories, and major enforcement actions from the Department of Justice, the Federal Trade Commission, and state attorneys general; and
  • Particularly difficult business valuation issues—with insights for working with expert witnesses from both lawyers and business valuators.

The program will culminate with a “view from the bench” panel presentation of the North Carolina Business Court Judges.  Attendees will have the unique opportunity to have their own questions addressed by the Court.  Anyone who has seen this presentation in previous years will tell you that it is truly a must-attend for those of us who practice before the Business Court regularly.

If you have not yet done so, please sign up here.  I hope to see you there!

A Message from the Chair of the NCBA Antitrust and Complex Business Disputes Section

By Jenna Fruechtenicht Butler

Dear Members of the Antitrust and Complex Business Disputes Section:

Thank you for re-joining and joining the Antitrust and Complex Business Disputes (ACBD) Section of the NCBA for the 2019-2020 bar year.  I am honored to serve as your Chair.  Your leadership team of officers, council members, and committee chairs already are hard at work representing the section and planning activities for the upcoming year.

As many of you are aware, our marquee event is the ACBD annual meeting and full-day CLE regularly held in February and chaired this year by Tom Segars.  We have an exciting program lined up for February 13, 2020 with a wide variety of speakers so I encourage you to please go ahead and mark your calendars so you can attend in person and network with your fellow section members.

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Register Now For ACBD CLE/Annual Meeting Feb. 7 In Cary

The Antitrust & Complex Business Disputes Law Section Annual Meeting and CLE, titled “The Complex Issues Arising in Complex Litigation” will be Thursday, Feb. 7, 2019, at the North Carolina Bar Center.

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Supreme Court May Soon Tell You Whether a Denial Of State Action Immunity Is Immediately Appealable

By Nathan Standley

The U.S. Supreme Court has granted a petition for certiorari in the case of Salt River Project Agricultural Improvement & Power District v. SolarCity Corp., No. 17-368 (U.S. Sept. 7, 2017).  If you advise state agencies or local governments, you will want to take note of what the court determines.

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Save the Date For the ACBD Section Annual Meeting, Feb. 7, 2019

It’s never too early to block off your calendar for the ACBD Annual Meeting. It’s on for Feb. 7, 2019 at the Bar Center in Cary.

That’s the when and where. Details on who and what to come.