McNair RSS Feedhttp://www.mcnair.net/?t=39&format=xml&stylesheet=rss&directive=0&records=20en-us19 Sep 2018 00:00:00 -0800firmwisehttp://blogs.law.harvard.edu/tech/rssDisaster Recovery: A Resource for Property Owners18 Sep 2018 00:00:00 -0800 http://www.mcnair.net/?t=40&an=80417&format=xml&p=5355 <p align="left"><i>Alicia Thompson is a shareholder of McNair Law Firm, and her practice is focused on community association governance and litigation matters. She knows firsthand how to recover from a disaster related situation, in that she is a survivor of Hurricane Katrina and Myrtle Beach&rsquo;s largest tornado strike to date.</i></p> <p align="left">Hurricane Florence was the first major hurricane of the 2018 Atlantic hurricane season and inflicted considerable damage around the border of North Carolina and South Carolina. As property owners look toward recovery from natural disasters, they need a plan of action for assessing damage, communicating with the right entities, and making claims to recover all funds available. The following checklist will better position our clients to be made whole after a casualty occurs, and McNair attorneys are here to walk you through the legal procedures required to restore your property.</p> <p align="left">Recovery Checklist:</p> <p align="left" style="margin-left: 0.5in; text-indent: -0.25in;">1.<span style="font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: &quot;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span><u>Engage</u>.&nbsp;Retain counsel immediately to assist you in the recovery process and to ensure that you are documenting damage, submitting claims, and preserving all rights to available funds.</p> <p align="left" style="margin-left: 0.5in; text-indent: -0.25in;">2.<span style="font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: &quot;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span><u>Contact Help</u>.&nbsp;Consider contacting the entities below to provide notice of damage and to elicit help in recovery.&nbsp;If you&rsquo;re a business, consider delegating communication to trusted employees to expedite the process.</p> <p align="left" style="margin-left: 1in; text-indent: -0.25in;">&middot;<span style="font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: &quot;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span>Emergency Response Agencies and Non-Profits (ex. Fire Department, Red Cross)</p> <p align="left" style="margin-left: 1in; text-indent: -0.25in;">&middot;<span style="font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: &quot;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span>Building Management</p> <p align="left" style="margin-left: 1in; text-indent: -0.25in;">&middot;<span style="font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: &quot;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span>Homeowners Association</p> <p align="left" style="margin-left: 1in; text-indent: -0.25in;">&middot;<span style="font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: &quot;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span>Emergency Response/Management Agencies (ex. FEMA)</p> <p align="left" style="margin-left: 1in; text-indent: -0.25in;">&middot;<span style="font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: &quot;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span>Utility Companies</p> <p align="left" style="margin-left: 1in; text-indent: -0.25in;">&middot;<span style="font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: &quot;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span>Service Providers (Attorneys, Bankers, Vendors to Repair)</p> <p align="left" style="margin-left: 1in; text-indent: -0.25in;">&middot;<span style="font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: &quot;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span>Insurance Agency</p> <p align="left" style="margin-left: 1in; text-indent: -0.25in;">&middot;<span style="font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: &quot;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span>Post Office</p> <p align="left" style="margin-left: 0.5in; text-indent: -0.25in;">3.<span style="font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: &quot;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span><u>Insure</u>.&nbsp;Review your insurance policies, and provide notice to all carriers as soon as practically possible.</p> <p align="left" style="margin-left: 0.5in; text-indent: -0.25in;">4.<span style="font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: &quot;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span><u>Assess</u>.&nbsp;Photograph and videotape all damage as support for any claim filed.&nbsp;Document the damage to the premises with a list of all items/systems affected.&nbsp;Do not throw away any items, as the adjusters may need to evaluate any damage caused.&nbsp;Retain all proof of expenses in connection with the disaster, including receipts of rent/hotel, food, gas, and repair to damage.</p> <p align="left" style="margin-left: 0.5in; text-indent: -0.25in;">5.<span style="font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: &quot;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span><u>Secure</u>.&nbsp;Secure your home and building to avoid any further loss by turning off gas, water and electricity, tarp damaged roofs, and install a temporary barrier around the property to warn individuals not to enter unless authorized. Empty your fridge of any food to avoid spoliation of appliances and mold growth.&nbsp;Board up windows and doors to prevent vandalism and looting.&nbsp;Meet your financial obligations in connection with the property, including mortgage and insurance payments.</p> <p align="left" style="margin-left: 0.5in; text-indent: -0.25in;">6.<span style="font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: &quot;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span><u>Recover</u>.&nbsp;Remove undamaged personal property or office equipment.&nbsp;Secure any electronic data by backing up to a cloud provider or offsite servers.</p> <p align="left" style="margin-left: 0.5in; text-indent: -0.25in;">7.<span style="font-variant-numeric: normal; font-variant-east-asian: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: &quot;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span><u>Mitigate</u>.&nbsp;After claims have been filed, work with adjusters, attorneys, and vendors to secure repairs to your property.&nbsp;Enter into written agreements to ensure that they are enforceable and to protect your property from unnecessary liens in the event of a contractor dispute.</p> <p align="left">We are here to help.</p> <p align="left">&nbsp;</p> <p align="left">McNair Law Firm can assist you in the planning and recovery stage of any natural disaster.&nbsp;Our attorneys know the ins and outs of interpreting homeowners association covenants and insurance policies to best determine who is financially responsible for the damage incurred. McNair attorneys are also well equipped to assist with retaining contractors to complete repairs and handling any transactional matters that are involved with the restoration process.&nbsp;In the event a dispute arises with any third-parties regarding contractual or insurance matters, our litigation attorneys are well positioned to assist.&nbsp;</p> http://www.mcnair.net/?t=40&an=80417&format=xml&p=5355 Event Series: Fourteen Years Later: What is the State of Handbook Law in South Carolina?17 Sep 2018 00:00:00 -0800 http://www.mcnair.net/?t=40&an=79781&format=xml&p=5341 <div>Fourteen Years Later: What is the State of Handbook Law in South Carolina?</div> <div>Recent South Carolina cases and statutes have impacted handbook law in our state. Understanding these changes will assist employers in writing a useful employee handbook and will aid in comprehension and use of the handbook. This event series will focus on changes to your handbook language, specifically the impact of the South Carolina Pregnancy Accommodations Act, and how employers should respond. Key topics include:</div> <ul> <li>Handbooks in South Carolina and case law that impacts their use</li> <li>South Carolina Pregnancy Accommodations Act</li> <li>Non-Compete Agreements</li> <li>Basic IP Strategies for Protecting Ideas</li> </ul> <div>Event schedule is as follows:</div> <div>&nbsp;</div> <div>September 17 - Charleston</div> <div>8:00 - 8:30 am: Registration</div> <div>8:30 - 9:30 am: Program</div> <div>McNair Law Firm</div> <div>100 Calhoun Street, Suite 400</div> <div>Charleston, SC 29401</div> <div>Presenter: Rick Morgan</div> <div><a href="https://www.eventbrite.com/e/employment-event-fourteen-years-later-what-is-the-state-of-handbook-law-in-south-carolina-tickets-48735715838?utm_source=E%26L+LIST_MASTER&amp;utm_campaign=ce310b5fdf-EMAIL_CAMPAIGN_2017_12_18_COPY_01&amp;utm_medium=email&amp;utm_term=0_39d4851266-ce310b5fdf-47847677" target="_blank">REGISTER</a>&nbsp;</div> <div>&nbsp;</div> <div>September 17 - Myrtle Beach</div> <div>11:30 am - 12:00 pm: Registration</div> <div>12:00 - 1:00 pm: Program</div> <div>Myrtle Beach Area Chamber of Commerce</div> <div>1200 N. Oak Street</div> <div>Myrtle Beach, SC 29577</div> <div>Presenter: Jim Gilliam&nbsp;</div> <div><a href="https://myrtlebeachsccoc.wliinc1.com/events/Fourteen-Years-Later-What-is-the-State-of-Handbook-Law-in-South-Carolina--5703/details?utm_source=E%26L+LIST_MASTER&amp;utm_campaign=ce310b5fdf-EMAIL_CAMPAIGN_2017_12_18_COPY_01&amp;utm_medium=email&amp;utm_term=0_39d4851266-ce310b5fdf-47847677" target="_blank">REGISTER&nbsp;</a></div> <div>&nbsp;</div> <div>September 18 - Columbia</div> <div>8:00 - 8:30 am: Registration</div> <div>8:30 - 9:30 am: Program</div> <div>McNair Law Firm</div> <div>1221 Main Street, Suite 1800</div> <div>Columbia, SC 29201</div> <div>Presenter: Rick Morgan&nbsp;</div> <div><a href="https://www.eventbrite.com/e/employment-event-fourteen-years-later-what-is-the-state-of-handbook-law-in-south-carolina-tickets-48735621556?utm_source=E%26L+LIST_MASTER&amp;utm_campaign=ce310b5fdf-EMAIL_CAMPAIGN_2017_12_18_COPY_01&amp;utm_medium=email&amp;utm_term=0_39d4851266-ce310b5fdf-47847677" target="_blank">REGISTER&nbsp;</a></div> <div>&nbsp;</div> <div>September 19 - Hilton Head</div> <div>8:00 - 8:30 am: Registration</div> <div>8:30 - 9:30 am: Program</div> <div>Hilton Head / Bluffton Chamber of Commerce</div> <div>1 Chamber of Commerce Drive</div> <div>Hilton Head Island, SC 29938</div> <div>Presenters: Melissa Azallion and Jon Eggert&nbsp;</div> <div><a href="https://www.eventbrite.com/e/employment-event-fourteen-years-later-what-is-the-state-of-handbook-law-in-south-carolina-tickets-48735472109?utm_source=E%26L+LIST_MASTER&amp;utm_campaign=ce310b5fdf-EMAIL_CAMPAIGN_2017_12_18_COPY_01&amp;utm_medium=email&amp;utm_term=0_39d4851266-ce310b5fdf-47847677" target="_blank">REGISTER&nbsp;</a></div> <div>&nbsp;</div> <div>September 20 - Greenville</div> <div>8:00 - 8:30 am: Registration</div> <div>8:30 - 10:00 am: Program</div> <div>McNair Law Firm</div> <div>104 S. Main Street, Suite 700</div> <div>Greenville, SC 29601</div> <div>Presenter: Reggie Gay&nbsp;&nbsp;</div> <div><a href="https://www.eventbrite.com/e/employment-event-fourteen-years-later-what-is-the-state-of-handbook-law-in-south-carolina-tickets-48734769006?utm_source=E%26L+LIST_MASTER&amp;utm_campaign=ce310b5fdf-EMAIL_CAMPAIGN_2017_12_18_COPY_01&amp;utm_medium=email&amp;utm_term=0_39d4851266-ce310b5fdf-47847677" target="_blank">REGISTER</a>&nbsp;</div> <div>&nbsp;</div> <div>September 21 - Anderson</div> <div>8:00 - 8:30 am: Registration</div> <div>8:30 - 10:00 am: Program</div> <div>Hospice of the Upstate</div> <div>1835 Rogers Road</div> <div>Anderson, SC 29621</div> <div>Presenter: Reggie Gay&nbsp;&nbsp;</div> <div><a href="https://www.eventbrite.com/e/employment-event-fourteen-years-later-what-is-the-state-of-handbook-law-in-south-carolina-tickets-48733099011?utm_source=E%26L+LIST_MASTER&amp;utm_campaign=ce310b5fdf-EMAIL_CAMPAIGN_2017_12_18_COPY_01&amp;utm_medium=email&amp;utm_term=0_39d4851266-ce310b5fdf-47847677" target="_blank">REGISTER&nbsp;</a></div> <div>&nbsp;</div> <div> <div>We hope you can join us! 1.0 HRCI and SHRM credit available.&nbsp;&nbsp;</div> <div>&nbsp;</div> </div> http://www.mcnair.net/?t=40&an=79781&format=xml&p=5341 Non-Competes in the Employment Context Revisited14 Sep 2018 00:00:00 -0800 http://www.mcnair.net/?t=40&an=80376&format=xml&p=5355 <p><i>In 2016 we wrote about a non-compete decision where special referee found that a seller of a business had breached a sales agreement by violating both a non-compete covenant and an exclusive sales provision contained in the agreement. The seller appealed, and the Court of Appeals reversed and remanded, holding the 150-mile territorial restriction in the non-compete covenant was unreasonable and unenforceable. The South Carolina Supreme Court reviewed that Court of Appeals decision and has now issued its decision. Read on to see what the Supreme Court did.</i></p> <p><b>FACTUAL AND PROCEDURAL HISTORY</b></p> <p>The factual and procedural history of this case is very instructive and bears repeating in this article. In the 1980&rsquo;s, Robert Knight (Knight&rdquo;) began operating a mortuary transport business, Knight Systems, Inc. (&ldquo;KSI&rdquo;). KSI eventually expanded to include the manufacturing and sale of body bags. In 2006, Knight decided to sell the mortuary transport portion of its business and approached a broker for assistance. In October 2006, Donald and Ellen Lintal (the CEO and CFO of Palmetto Mortuary Transport, Inc. [&ldquo;Palmetto&rdquo;]) met with a broker to discuss the purchase of Knight's mortuary transport business. From November 2006 to January 5, 2007, the parties and their agents&mdash;including brokers, accountants, and attorneys&mdash;negotiated the terms of an asset purchase agreement (&ldquo;Agreement&rdquo;). During negotiations, Mr. Knight expressed to Mr. Lintal his desire to get out of the mortuary transport business.</p> <p>On January 5, 2007, Knight and Palmetto executed the Agreement. Pursuant to the Agreement, Knight sold various tangible assets, goodwill, and customer accounts&mdash;including body removal service contracts with Richland County, Lexington County, and the University of South Carolina&mdash;to Palmetto in exchange for $590,000.The Agreement included a provision (Exclusivity Provision) requiring Palmetto to purchase body bags from Knight for ten years and requiring Knight to sell body bags to Palmetto for ten years. The Exclusivity Provision became a central issue in the dispute between the parties.</p> <p>A ten-year, 150-mile non-compete covenant was also executed and was included as an exhibit to the Agreement. Although the non-compete covenant restricted Knight from providing mortuary transport services within a 150-mile radius of Lexington County, it placed no restrictions on Knight's ability to continue its body bag manufacturing business. The non-compete covenant also provided that a breach by Palmetto of the Agreement or such other documents ancillary to the sale, shall constitute a breach of the non-compete covenant and shall release Knight from any and all restrictions under the Agreement.</p> <p>During the trial of the case, Mr. Lintal testified the 150-mile territorial restriction extending from Lexington County was included to ensure Knight would not compete with Palmetto in South Carolina for ten years. Mr. Lintal acknowledged that at the time Palmetto purchased the transport business, Knight provided services primarily in Richland and Lexington County. Mr. Lintal testified that at the time the Agreement was executed, &quot;We didn't know where the business was actually going to -- what we were going to -- if we were going to try to expand it at different locations. We wanted to keep our options open if it was doable.&quot;</p> <p>In 2011, Palmetto still held the mortuary transport services contract with Richland County pursuant to the Agreement. Since the original five-year term between Palmetto and Richland County was expiring, Richland County issued a Request for Proposal (RFP) seeking mortuary transport service for the succeeding five years. Palmetto timely submitted its response to the RFP.</p> <p>As noted above, the Exclusivity Provision required Palmetto to purchase body bags exclusively from Knight for ten years. From 2007 through 2011, Palmetto purchased over $45,000 worth of body bags from Knight. Palmetto had also purchased body bags from manufacturers other than Knight in the amount of $884.97. These purchases consisted of thirty-one infant bags ($192.75), four extra-large body bags ($213.72), six heavy duty body bags ($208.50), and six water-retrieval bags ($270.00). Knight became aware of the purchase of infant bags in 2009 or 2010 and immediately considered the purchase to be a breach of the Agreement, but did not confront Palmetto about the supposed breach for almost two years. Mr. Knight testified he did not become aware of the other purchases until discovery was exchanged after litigation began.</p> <p>Palmetto believed the Exclusivity Provision did not require Palmetto to purchase either infant or extra-large bags from Knight. Palmetto agreed it had breached the Exclusivity Provision in purchasing heavy duty and water-retrieval bags from other manufacturers but argued this breach was not material. It argued the remedy for this breach was not cancellation of the Agreement, but rather money damages in the amount of $478.50, the sum it paid other manufacturers for heavy duty and water-retrieval bags. Knight argued the Exclusivity Provision required Palmetto to purchase <i>all </i>of its body bags from Knight and claimed the breach was material and nullified all terms and conditions of the Agreement, including the non-compete covenant.</p> <p>On June 16, 2011, one day prior to the deadline for responses to the RFP, Mr. Knight recorded a conversation he had with Mr. Lintal. During the conversation, Mr. Knight accused Palmetto of purchasing infant body bags from other manufacturers. Mr. Lintal replied he did not believe his purchase of these body bags from other manufacturers was &quot;significant,&quot; and he noted he did not believe &quot;it was anything to break [the Agreement].&quot; As noted above, Mr. Knight was aware of Palmetto's supposedly illicit purchase of infant body bags for almost two years before he confronted Mr. Lintal.</p> <p>Following his conversation with Mr. Knight, Mr. Lintal suspected Knight was going to bid against Palmetto on the Richland County contract. Mr. Lintal's suspicion was correct&mdash;Mr. Knight submitted his own RFP the very next day. Even though Knight had received $590,000 for the sale of the business and an extra $45,000 in body bag purchases from Palmetto, Mr. Knight testified, &quot;I didn't want to get back in the business. I was forced to. . . . I felt like if I didn't take action at that time, I was going to be left out in the cold.&quot; After the RFP deadline passed, Mr. Knight contacted the Richland County Procurement Office and told a Richland County official that Knight should be awarded the contract because it was the sole provider of odor-proof body bags&mdash;a requisite of the RFP. <sup>&nbsp;</sup>Although Palmetto's response to the RFP contained the lowest price for services and received the highest total points from the Richland County Procurement Office, Richland County awarded the contract to Knight the next month.</p> <p>Palmetto sued Knight for breach of the Agreement, alleging Knight violated: (1) the non-compete covenant prohibiting Knight from providing mortuary transport services for ten years within the 150-mile territorial restriction and (2) the Exclusivity Provision, based upon Knight's refusal to supply Palmetto with body bags. Knight answered and counterclaimed, alleging the non-compete covenant was unenforceable because it contained an unreasonable territorial restraint, contained an unreasonable time restriction, and was not supported by adequate consideration. Knight also alleged any breach of the non-compete covenant was excused because Palmetto first materially breached the Exclusivity Provision by purchasing body bags from other manufacturers.</p> <p>The case was tried before a special referee. The special referee found the non-compete covenant was reasonably limited in time and territorial scope and was supported by valuable consideration. The special referee found Knight breached the Agreement by violating the non-compete covenant and by refusing to sell body bags to Palmetto. The special referee determined Palmetto's purchase of heavy duty and water-retrieval body bags from other manufacturers, although a breach, did not constitute a material breach of the Agreement such that Knight was excused from performance of its contractual obligations. The special referee ordered Knight to pay (1) attorneys' fees and (2) damages of $373,264.54 in lost profits resulting from the wrongful competition with Palmetto. The special referee issued a permanent injunction requiring Knight to comply with the terms of the non-compete covenant for a term of five years and seven months following the date of his order, but allowing Knight to complete its performance of the 2011 mortuary transport contract with Richland County. Finally, the special referee awarded Knight $478.50 in damages for Palmetto's breach of the Agreement.</p> <p>Knight appealed the special referee's order to the Court of Appeals, arguing the special referee erred in finding (1) the territorial restriction in the non-compete covenant was reasonable and enforceable, (2) the territorial restriction was supported by independent and valuable consideration, (3) the non-compete covenant was not void as against public policy, and (4) the non-compete covenant was not voided by Palmetto's breach of the Exclusivity Provision. The Court of Appeals reversed the Special Referee and remanded (sent the case back to the Referee), holding the non-compete covenant's 150 &shy;mile territorial restriction was unreasonable and unenforceable. Because South Carolina does not follow the &quot;blue pencil rule&quot; (&lsquo;i.e., rewriting an agreement for the parties) and because the non-compete covenant did not include a &quot;step-down provision (language eliminating grammatically unreasonable provisions, but not adding or rewriting provisions),&quot; the Court of Appeals found it would be impermissible to redraw the Agreement to include a smaller territorial restriction. The Supreme Court granted Palmetto's petition to review the Court of Appeals' decision.</p> <p><b>THE COURT&rsquo;S OPINION</b></p> <p>Palmetto&rsquo;s argument was that the Court of Appeals erred in holding the territorial restriction in the non-compete covenant was unreasonable.</p> <p>The Court first set forth the standards for non-competes - A covenant not to compete is enforceable if it is not detrimental to the public interest, is ancillary to the sale of a business or profession, is reasonably limited as to time and territory, and is supported by a valuable consideration. The Court further stated that the reason why such covenants are held to be unenforceable is that unless they meet certain criteria, they constitute a restraint upon trade which is against public policy. Against this standard the Court then looked at the facts and prior law in the non-compete area.</p> <p>Relying on a 1942 decision, the Court wrote that in determining whether a contract in partial restraint of trade is reasonable, the court will look to the whole subject matter of the contract, the kind and character of business, its location, the purpose to be accomplished by the restriction, and all circumstances which show the intention of the parties and which must have entered into the making of the contract. In determining whether a contract is reasonable in respect to the restraint being challenged the prior case observed that it would seem that the fair and full protection of the business, good will and trade name which the vendee has purchased and paid for, may well be accepted as the test. <i>It follows naturally that each case must be governed in the main by its own facts</i>. The 1942 case had a lifetime restriction for the seller to not re-enter the business.</p> <p>Disagreeing with the Court of Appeals analysis the Supreme Court wrote that an analysis of the reasonableness of a territorial restriction in a non-compete covenant must take into account relevant facts surrounding the making of the agreement.; specifically noting that whether a non-compete covenant is reasonable, the following should be considered: (1) the whole subject matter of the contract; (2) the kind and character of the business; (3) location; (4) the purpose to be accomplished by the restriction; and (5) all circumstances which show the intention of the parties and which must have entered into the making of the contract.</p> <p>In applying these criteria the Court was careful to note that as for the subject matter of the contract, the non-compete covenant between Knight and Palmetto arose out of the sale of a business between two sophisticated parties. Non-compete covenants executed in conjunction with the sale of a business should be scrutinized at a more relaxed level than non-compete covenants executed in conjunction with employment contracts. The Court explained as follows: Non-compete covenants executed in the context of an employment contract are generally disfavored and are strictly construed against an employer. The probability of unequal bargaining power that may exist between an employer and employee is significantly reduced when the restriction arises in the context of a sale of a business between two sophisticated parties. Also, a non-compete covenant executed pursuant to the sale of a business allows the opportunity for a seller to capitalize on the disposition of the business's goodwill and bargain for a higher price.</p> <p>In the context of examining each case on its own facts the Court noted the following facts - the Agreement involved the somewhat complex sale of Knight's mortuary transport business to Palmetto for $590,000. Both Palmetto and Knight are sophisticated parties and were represented by legal counsel throughout the negotiation and execution of the Agreement. Knight necessarily considered the restrictions in the non-compete covenant in making his decision to enter into the Agreement. The non-compete covenant was integral to Palmetto's decision to enter into the Agreement. Mr. Lintal testified about Mr. Knight's &quot;strong reputation&quot; in the business and stated, &quot;[The non-compete covenant] was very important to us because without the non-compete, we wouldn't have bought the business.&quot; Further, the non-compete covenant specifically provided, &quot;[Knight] has agreed to provide such covenants as set forth herein as <i>a material inducement to [Palmetto] </i>to enter into and close the Purchase Agreement.&quot; (emphasis added). It is clear the non-compete covenant was a centerpiece of the Agreement and that both Palmetto and Knight bargained for and intended to benefit from its terms.</p> <p>While the non-compete covenant effected a partial restraint of trade by limiting Knight's ability to provide mortuary transport services, this restraint was offset by Knight's continuation of its body bag manufacturing business and the Exclusivity Provision requiring Palmetto to purchase body bags from Knight throughout the term of the non-compete covenant. Indeed, Palmetto purchased approximately $45,000 worth of body bags from Knight before the current controversy arose. The Agreement did not prohibit Knight from continuing to sell bags to other customers. It is clear that both Knight and Palmetto carefully considered and calibrated their options and best interests in striking their bargain.</p> <p>The Court then considered the kind and character of the business and the location of the business. The territorial restriction in this case consisted of a 150&shy; mile radius surrounding Lexington County. At the time Palmetto purchased Knight's business, the business predominantly serviced Richland and Lexington counties. However, focusing only upon the existing territory of Knight's business and Palmetto's lack of concrete plans for geographical expansion ignores the kind and character of the business. A mortuary transport business necessarily involves mobility of services, and expansion into other areas of South Carolina is certainly foreseeable. This is not a brick and mortar 1950&rsquo;s local retail business. Palmetto, a sophisticated buyer, saw the opportunity for expansion outside Knight's existing business area and thus negotiated the Agreement with Knight, a sophisticated seller, to protect its interests by implementing the 150-mile territorial restriction. At his deposition, Mr. Lintal testified that since the execution of the Agreement, Palmetto has added new customers and &quot;on occasion&quot; provides services for customers outside of the Columbia and Lexington area.</p> <p>After considering the Agreement as a whole, and after giving the non-compete covenant the more relaxed scrutiny it requires, the Court&nbsp;found that the territorial restriction was not greater than what was essential for a reasonable protection of the rights purchased by Palmetto.</p> <p>Further in looking at any potential invalidity on public policy grounds, the Court found that although there may be situations in which this Court may find a restriction of competition between potential competitors for public contracts to be void as against public policy, this case does not rise to such a level. Based on all of the facts in the case including Knight&rsquo;s desire to get out of the mortuary transport business the Court declined to create a blanket rule that a non-compete covenant that restricts competition between potential competitors for public contracts is invalid and void as against public policy.</p> <p>Further, agreeing with the Special Referee, The Court held that while Palmetto breached the Exclusivity Provision by purchasing $478.50 worth of body bags from manufacturers other than Knight this breach was not material and did not nullify Knight's obligation to honor the non-compete covenant.<br /> <br /> The Court reversed the Court of Appeals and reinstated the Special Referee&rsquo;s Order.</p> <p><b>LESSONS FOR EMPLOYERS</b><br /> <br /> A first take-away is that the rigorous application of what is going to be required for an&nbsp;employer/employee non-compete remains. Non-competes in the employment context will still be disfavored and very specific restrictions with limited times and places signed with adequate consideration will still be the norm. Overbroad non-competes in the employment context will likely be struck down by the Courts. The second take-away is that in the business context, the standards will not be as rigorous. The Courts instead, on a case by case basis, will look at the following: (1) the whole subject matter of the contract; (2) the kind and character of the business; (3) location; (4) the purpose to be accomplished by the restriction; and (5) all circumstances which show the intention of the parties and which must have entered into the making of the contract. Be careful not to conflate the standards for the sale of a business in a single stand-alone employer/former employee non-compete issue.</p> http://www.mcnair.net/?t=40&an=80376&format=xml&p=5355 McNair's Grayson Lambert Named to 2019 Leadership South Carolina Class10 Sep 2018 00:00:00 -0800 http://www.mcnair.net/?t=40&an=80135&format=xml&p=5352 <div>McNair is pleased to announce Grayson Lambert has been selected by Leadership South Carolina&rsquo;s Board of Trustees to participate in the Class of 2019.</div> <div>&nbsp;</div> <div>Dedicated to educating and enlightening highly motivated people, Leadership South Carolina chooses participants who have demonstrated commitment and service to their community and strive to reach a higher level of service for the benefit of the state.</div> <div>&nbsp;</div> <div>&ldquo;Leadership South Carolina is an excellent opportunity for me to work with other professionals from around the state to learn more about how we can invest our time and talents for the improvement of South Carolina. I look forward to participating,&rdquo; said Lambert.</div> <div>&nbsp;</div> <div>Lambert is an associate with the firm&rsquo;s litigation section. He assists individual and corporate clients with complex commercial litigation, appeals, and government investigations. He was recently a participant in the South Carolina Bar Leadership Academy, was appointed to the United States Court of Appeals for the Fourth Circuit Advisory Committee, and he is a member of the South Carolina Bar&rsquo;s Trial &amp; Appellate Advocacy Section Council.</div> <div>&nbsp;</div> http://www.mcnair.net/?t=40&an=80135&format=xml&p=5352 Blue Bell Creameries: Dishing Out a New Value Treat for Preference Defendants20 Aug 2018 00:00:00 -0800 http://www.mcnair.net/?t=40&an=79765&format=xml&p=5355 Trying to explain the primary purpose of Section 547 of the Bankruptcy Code to a client that just received a demand letter or complaint to avoid and recover preferential transfers can be a tough sell. Although the Section&rsquo;s goal &ndash; the fair and equitable treatment of creditors &ndash; sounds good, it often loses some of its appeal when the client realizes it might be required to repay amounts it received (for goods or services it actually provided) for that goal to be achieved.<br /> <br /> The saving grace during those early conversations with a client is often found in your explanation of the defenses that might limit your client&rsquo;s preference exposure or except the transfers from avoidance in their entirety. One of the defenses often cited by creditors in response to preferential transfer claims is the &ldquo;subsequent new value&rdquo; defense (or simply, the new value defense) found in 11 U.S.C. &sect; 547(c)(4). Specifically, that section provides that a trustee may not avoid a preferential transfer to the extent that after the transfer was made, the creditor gave new value &ldquo;to or for the benefit of the debtor &ndash; (A) not secured by an otherwise unavoidable security interest; and (B) on account of which new value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor&rdquo;. <br /> <br /> Practitioners and jurists have disagreed over the years on the requirements of the new value defense. Specifically, some courts have required that the subsequent new value that is provided must remain unpaid at the time the bankruptcy case was filed in order to be available to reduce a creditor&rsquo;s preferential exposures. Other courts, including most recently the Eleventh Circuit Court of Appeals, have held otherwise. <br /> <br /> On August 14, 2018, the Eleventh Circuit Court of Appeals issued its opinion in Kaye v. Blue Bell Creameries, Inc. (In re BFW Liquidation, LLC), __ F.3d __, 2018 WL 3850101 (11th Cir. 2018) and held that new value does not need to remain unpaid in order to successfully apply the &ldquo;subsequent new value defense&rdquo;. The Court&rsquo;s holding constitutes a win for creditors and places the Eleventh Circuit in line with similar holdings by the Fourth, Fifth, Eighth and Ninth Circuits. <br /> <br /> The Blue Bell Creameries opinion stems from the bankruptcy filing by Bruno&rsquo;s Supermarkets, LLC (&ldquo;Bruno&rsquo;s&rdquo;) in early 2009. Bruno&rsquo;s was a grocery-store chain that operated in Alabama and Florida and, at the time of its bankruptcy filing, had more than 60 stores. Blue Bell Creameries (&ldquo;Blue Bell&rdquo;) supplied ice cream and other frozen treats to Bruno&rsquo;s on credit. Historically, Blue Bell received payments from Bruno&rsquo;s twice a week. However, in the period leading up to Bruno&rsquo;s bankruptcy filing, payments were only made once a week and Bruno&rsquo;s began stretching out payments to its vendors. <br /> <br /> During the preference period (i.e., the 90 day period prior to a debtor&rsquo;s bankruptcy filing), Blue Bell received more than $560,000 in 13 separate payments from Bruno&rsquo;s (the &ldquo;Preferential Transfers&rdquo;). During that same period, Blue Bell made more than 1,700 deliveries on an almost daily basis supplying Bruno&rsquo;s with more than $435,000 worth of ice cream and other goods.<br /> <br /> In 2011, the trustee for Bruno&rsquo;s liquidating trust (the &ldquo;Trustee&rdquo;) commenced an adversary proceeding to avoid and recover the Preferential Transfers. Blue Bell asserted &sect; 547(c)(2)&rsquo;s ordinary course of business defense as well as the new value defense. The bankruptcy court rejected Blue Bell&rsquo;s ordinary course of business defense which Blue Bell did not challenge on appeal. The bankruptcy court also concluded that Blue Bell could only use the new value defense so long as the new value it sought to apply to offset its preference liability remained unpaid relying on language found in the Eleventh Circuit&rsquo;s earlier opinion in In re Jet Florida System, Inc., 841 F.2d 1082 (11th Cir. 1988). Blue Bell filed a notice of appeal to the district court. However, the parties jointly certified that an immediate appeal of the order to the Eleventh Circuit Court of Appeals would materially advance the case and the Eleventh Circuit granted the petition.<br /> <br /> On appeal, the Court first disposed of the Trustee&rsquo;s argument that Jet Florida and the language found in that opinion about new value having to remain unpaid was binding precedent. The Court concluded that the language the Trustee relied on in Jet Florida was not necessary to the result the Court reached in that case and consequently was dictum. The Court therefore was &ldquo;free to give&hellip;fresh consideration&rdquo; to the issue of whether new value has to remain unpaid in order to offset it against a defendant&rsquo;s preference exposure.<br /> <br /> The Court then turned to the plain language of the statute itself (i.e., &sect; 547(c)(4)). The Court noted that the plain language of the statute does not require that all new value remain unpaid. Rather, &ldquo;the statute simply excludes &lsquo;paid&rsquo; new value that is paid for with &lsquo;an otherwise unavoidable transfer.&rsquo;&rdquo; The Court also noted how its holding helps promote one of the principal objectives of the provisions found in &sect; 547 of the Bankruptcy Code &ndash; namely, encouraging creditors to continue to do business with and extend credit to financially distressed debtors. <br /> <p>Although not as sweet as ice cream, the holding in Blue Bell Creameries is a treat for creditors and helps provide additional clarity for and assurance to those who elect to continue shipping goods and providing services on credit to financially distressed debtors.</p> <p>&nbsp;</p> http://www.mcnair.net/?t=40&an=79765&format=xml&p=5355 Think your evidence is solid? Jury, judge, and appeals court may disagree15 Aug 2018 00:00:00 -0800 http://www.mcnair.net/?t=40&an=79664&format=xml&p=5355 <div><em>We&rsquo;ve often written about the need to have clearly written policies that, once in place, are followed. If a dispute arises and there is any ambiguity in the policies and how the employer interpreted or used them, juries more often than not will end up siding with the employee. The South Carolina Court of Appeals recently had a chance to review that kind of situation. Read on to see how the court analyzed the case.</em></div> <div>&nbsp;</div> <div><strong>Dispute over proper response to classroom emergency</strong></div> <div>&nbsp;</div> <div>William Crenshaw was a tenured professor at Erskine College. On September 24, 2010, a student in his English class who had fallen during an athletic team practice earlier that morning became disoriented and lethargic. Crenshaw, a former paramedic, called Robyn Agnew, Erskine's vice president for student services, to inform her of the situation and ask her to call an ambulance. After the ambulance arrived, Crenshaw and members of the college&rsquo;s athletic training staff disagreed over whether the student should be transported to the hospital.</div> <div>&nbsp;</div> <div>After the incident, Crenshaw and Erskine's head athletic trainer, Adam Weyer, exchanged e-mails. Crenshaw suggested the college should scrutinize the athletic department's protocol for handling emergency medical situations. He asserted that the athletic department's practice of having student athletes report to the trainers before seeing a doctor endangers the students. He further alleged that the trainers erred in delaying emergency medical transport for the injured student in his class. Weyer accused Crenshaw of &quot;taking the matter into his own hands&quot; and not following the department's concussion protocol of contacting athletic training personnel before calling for an ambulance.</div> <div>&nbsp;</div> <div>In the aftermath of the ambulance incident, Weyer filed a grievance against Crenshaw. He accused the professor of violating athletic department protocol and making slanderous remarks both online and in class about the athletic training staff. The grievance was cosigned by Mark Peeler, Erskine's athletic director. Gid Alston, the chair of the college&rsquo;s Department of Health and Human Performance, also filed a grievance against Crenshaw. He accused the professor of potentially harming the athletic training program&rsquo;s image by slandering its trainers.</div> <div>&nbsp;</div> <div>The grievances were forwarded to Erskine's faculty grievance committee to mediate the dispute. After a meeting, the committee determined it could not formulate a mediation plan and sent the grievances to Erskine dean Brad Christie. Weyer, Peeler, and Alston declined Christie's offer to mediate, and the matter was forwarded to the college&rsquo;s president, David Norman, for adjudication.</div> <div>&nbsp;</div> <div>In November 2010, Norman appointed a special faculty grievance committee to help adjudicate the matter. He asked the committee to assess Crenshaw's behavior in handling the emergency situation and his professionalism and collegiality during and after the event. The professor gave a statement to the committee, denied the allegations against him, and agreed to answer any questions. After two meetings, the committee determined it was unable to help resolve the situation and returned the matter to Norman, who then began the process of terminating Crenshaw based on:</div> <div> <ul> <li>Crenshaw's conduct during and after the ambulance incident (i.e., he attempted to take control of a situation in which he was subordinate to the emergency response workers and Christie;</li> <li>Crenshaw's &quot;obstructionist actions&quot; before the grievance committee (Norman found he exhibited &quot;bullying behavior&quot; and &quot;contempt&quot; for the panel); and</li> <li>His disparaging remarks about Erskine on his blog (he encouraged readers to quit donating to the college until after the matter was cleared up).</li> </ul> <div><strong>Steps for terminating faculty member for cause</strong></div> <div>&nbsp;</div> <div>In Erskine's faculty manual, the procedure for terminating a tenured faculty member for cause begins with preliminary proceedings. That is, the college president must try to resolve the matter with the faculty member in private. If the matter can't be resolved by mutual consent, the president then formulates a statement describing the grounds for dismissal.</div> <div>&nbsp;</div> <div>The second step is the &quot;formal proceedings,&quot; which states:</div> <div>&nbsp;</div> <div>The President will inform the tenured faculty member in writing of the dismissal and the grounds for it. The President will also advise the tenured faculty member of the right to a hearing before a faculty committee and will indicate the time and place of the hearing. In fixing the time and place of the hearing, the President will allow sufficient time for the tenured faculty member to prepare a defense. The President will inform the tenured faculty member of the procedural standards set forth here. The tenured faculty member will reply in writing to the President stating whether a hearing is desired, and the reply shall be not less than two weeks before the date set for the hearing.</div> <div>&nbsp;</div> <div>Crenshaw acknowledged the procedures were part of the manual, which constitutes the contract at issue.</div> <div>&nbsp;</div> <div>Crenshaw proceeded to teach during the spring 2011 semester. In August 2011, Norman initiated the termination-for-cause process in the manual. He wrote a letter to the professor on August 5, 2011, introducing the preliminary proceedings. He then met with the professor on August 6 in an attempt to resolve the matter.</div> <div>&nbsp;</div> <div>Norman began the meeting by reading the August 5 letter to Crenshaw, which expressed the president&rsquo;s hope they could resolve the issues by mutual consent. If they could not do so, however, then Norman would provide a statement describing the grounds for Crenshaw's dismissal. Norman offered Crenshaw conditions consisting of three sets of apologies that, if met, would allow him to remain employed. They also discussed severance pay in exchange for the professor&rsquo;s early retirement.</div> <div>&nbsp;</div> <div>Crenshaw and Norman agreed the professor would discuss the early retirement option with his wife and make a decision by 5:00 p.m. on August 8. The meeting ended with Norman outlining the professor&rsquo;s three options: (1) agree to apologize, (2) go to step two, i.e., the formal proceedings for termination at which the college president would outline the grounds for discharge, or (3) accept early retirement.</div> <div>&nbsp;</div> <div>Just before the agreed-upon deadline to decide among the three options, Crenshaw informed Norman that he and his attorney were willing to discuss his early retirement. The president was unsure whether the response was a yes or a no but treated it as acceptance of the offer. He responded he would draft an agreement for early retirement and a proposed announcement for Crenshaw's approval to prompt a commitment from the professor that he was in fact serious about retiring.</div> <div>&nbsp;</div> <div>The next day, Norman sent Crenshaw a draft agreement for an early retirement payment and a proposed announcement of the professor's retirement. Crenshaw responded that announcing his retirement was premature because he was still considering the severance agreement, which allowed up to 21 days to consider. Norman responded that Crenshaw could indeed take the entire 21-day period to consider the early retirement agreement.</div> <div>&nbsp;</div> <div>Because Norman had already informed Crenshaw in the August 6 meeting that he would not be teaching that semester, the college president provided him with an alternative announcement to Erskine's faculty and staff. It would say essentially that Crenshaw would not be teaching in the fall and that he and Norman were discussing his future with the college. Crenshaw responded that he disagreed with being removed from the classroom for the semester. His response also confirmed he hadn&rsquo;t yet made a decision on the options he agreed to in the August 6 meeting.</div> <div>&nbsp;</div> <div>Because Crenshaw failed to choose one of the agreed-upon options by the fourth day after the deadline, Norman moved on to formal proceedings and sent the professor a statement of the grounds for his dismissal on August 12. The letter informed him of his right to a hearing, stating:</div> <div>&nbsp;</div> <div>You have a right under College policy to a full hearing before a faculty committee. Unless you waive your right to a hearing, it shall be held on August 29th at 9 [a.m.] in the Chestnut Room. This schedule is subject to adjustment upon reasonable request. As also stated in the handbook, you will reply to this letter in writing, stating whether this hearing is desired. This reply shall not be less than two weeks before the date set for the hearing.</div> <div>&nbsp;</div> <div>Crenshaw did not request a hearing. Norman never appointed a faculty committee for the termination hearing but waited for the professor at the scheduled time and place for the hearing. He did not appear.</div> <div>&nbsp;</div> <div>While the formal proceedings were ongoing, the timeline for the early retirement offer was also running. The original 21-day consideration period expired on August 30, 2011, without Crenshaw&rsquo;s accepting or rejecting the offer. Norman extended the professor's time to respond to the offer by six days (or until September 5, 2011) and communicated the information to his attorney. The professor did not respond to the offer by that date. After the extended deadline expired, Norman terminated Crenshaw on September 7.</div> <div>&nbsp;</div> <div><strong>Trial court jury awards $600,000 to professor</strong></div> <div>&nbsp;</div> <div>On June 6, 2012, Crenshaw filed a complaint against Erskine and Norman alleging (1) wrongful discharge, (2) breach of contract, and (3) intentional infliction of emotional distress. Erskine and Norman later filed an answer denying the allegations.</div> <div>On March 28, 2014, Erskine and Norman filed a request for summary judgment (or dismissal of the charges without a trial) on all of Crenshaw's claims. The trial court denied the request. Before the trial, Erskine and Norman filed a second request for summary judgment on Crenshaw's wrongful discharge claim. During arguments about the request, the professor conceded his wrongful discharge claim was the same as the breach of contract claim, so the two claims were merged.</div> <div>&nbsp;</div> <div>A jury trial was held on June 8-11, 2015. At the close of Crenshaw's case, Erskine and Norman asked for directed verdicts (i.e., there wasn&rsquo;t enough evidence for a jury to decide the case) on all of Crenshaw's claims. The trial court granted the requests on all claims regarding Norman but denied the requests regarding Erskine. At the close of the college&rsquo;s case, it renewed its calls for a directed verdict, which the court granted for the intentional infliction of emotional distress claim.</div> <div>&nbsp;</div> <div>Finally, the breach of contract claim was submitted to the jury. The jury, by special verdict form, found (1) Crenshaw <em>did not</em> breach his obligation under the contract and (2) Erskine <em>did</em> breach its obligation under the contract. The jury awarded the professor $600,000 in damages.</div> <div>&nbsp;</div> <div><strong>Not so quick, says trial court judge</strong></div> <div>&nbsp;</div> <div>After the verdict, Erskine filed a request for (1) judgment notwithstanding the verdict (JNOV), which allows the judge to say there weren&rsquo;t enough facts on which to base the jury&rsquo;s verdict, or (2) a new trial. After a hearing, the court granted the college a new trial. To preserve the issue for appeal, the college sought clarification on why the court had denied the JNOV request. Crenshaw also filed a request to have the jury's verdict reinstated.</div> <div>&nbsp;</div> <div>On August 24, 2015, the trial court issued an order (1) throwing out its previous order calling for a new trial and (2) granting Erskine's JNOV request. The court found Crenshaw failed to comply with the contract&rsquo;s terms and request a hearing. Therefore, he couldn&rsquo;t recover on a breach of contract claim since he had failed to fulfill the obligations and consequently breached the contract. The court denied the professor&rsquo;s JNOV request, and he appealed.</div> <div>&nbsp;</div> <div><strong>Court of appeals decides not to override jury</strong></div> <div>&nbsp;</div> <div>The court of appeals pointed out the strict standard under which it must review a trial court&rsquo;s JNOV decision. That is, like the trial court, the court of appeals must view the evidence and all reasonable inferences in the light most favorable to the party not making the request. The court also noted that the trial court must deny a JNOV request if the evidence yields more than one reasonable inference or its inference is in doubt. In addition, neither the trial court nor the appellate court has the authority to decide credibility issues or resolve conflicts in the testimony or the evidence. And, finally, the appeals court should reverse the trial court's ruling only if no evidence supports the earlier ruling.</div> <div>&nbsp;</div> <div>On appeal, Crenshaw argued Erskine breached the implied covenant of good faith and fair dealing by (1) suspending him, (2) failing to identify any grounds for firing him during the August 6 meeting, (3) failing to comply with the manual&rsquo;s preliminary proceedings provision, (4) ending the preliminary proceedings before the expiration of the 21-day consideration period for the early retirement offer, (5) failing to comply with the formal proceedings, (6) failing to give him a meaningful opportunity for a fair hearing, and (7) failing to give him enough time to prepare a defense.</div> <div>&nbsp;</div> <div>In addressing the arguments, the court wrote that the jury was asked whether Crenshaw or Erskine breached the contract. The jury found that Crenshaw <em>did not</em> breach his obligation and the college<em> did</em> breach its obligation. Thereafter, the trial court granted the college&rsquo;s JNOV request, finding Crenshaw failed to comply with the contract&rsquo;s terms and request a hearing; therefore, he had breached the contract.</div> <div>&nbsp;</div> <div>The appeals court found that the trial court erred in granting Erskine's JNOV request. By submitting the special verdict form to the jury, without objection, the parties agreed it was a question of fact about whether the contract had been breached. The jury, as fact finders, could have gone in several directions:</div> <ul> <li>The jury could have found the language in the manual and the letter were confusing about whether Crenshaw was specifically required to request or waive a hearing that had already been set.</li> <li>The jury could have determined Crenshaw did not breach his obligations to Erskine because the early retirement offer was still pending when he received Norman's letter and remained pending until the day after the scheduled hearing.</li> <li>Finally, even assuming the contract required a reply from Crenshaw, the jury could have determined his breach was immaterial.</li> </ul> <div>With these assumptions and open questions, the appeals court reversed the trial court's grant of JNOV. In the appeals court's view, the evidence yielded more than one reasonable inference or its inference was in doubt.</div> <div>&nbsp;</div> <div><strong>Lessons for employers</strong></div> <div>&nbsp;</div> <div>We see again the great challenges employers face in being able to prevail in employment law cases. In the first instance, the jury seems to have given greater credibility to the employee, who held tenure at the college. The trial judge who sat through the case did not view the evidence the way the jury did and agreed with the college that the facts did not support the professor&rsquo;s claims. The appeals court, however, indicated that there were questions the jury could have used to decide the case, and it elected not to override the jury verdict.</div> <div>&nbsp;</div> <div>When your attorneys tell you about the vagaries and nuances of what juries do when they look at evidence in a case, listen carefully. This case provides a textbook description of how a jury, the trial judge, and then the appellate court can view evidence that looks good to you as the employer.<br /> <br /> For more information on the BLR, click <a href="https://www.blr.com/" target="_blank">here</a>. For more information on the South Carolina Employment Law Letter, click <a href="http://store.blr.com/scemp?referrer=hrhero" target="_blank">here</a>.&nbsp;</div> </div> http://www.mcnair.net/?t=40&an=79664&format=xml&p=5355 50 McNair Attorneys Named The Best Lawyers in America 201915 Aug 2018 00:00:00 -0800 http://www.mcnair.net/?t=40&an=79673&format=xml&p=5352 McNair is pleased to announce that the following attorneys have been named <em>The Best Lawyers in America&copy;</em> for the 2019 Edition:<br /> <br /> <strong>Charleston, SC</strong><br /> <br /> Jennifer C. Blumenthal<br /> <ul> <li>Commercial Finance Law</li> <li>Corporate Law</li> </ul> J. Sidney Boone, Jr.&nbsp;<br /> <ul> <li>Corporate Law</li> <li>Real Estate Law</li> </ul> Rion D. Foley&nbsp;<br /> <ul> <li>Public Finance Law</li> </ul> James B. Moore, Jr.&nbsp;<br /> <ul> <li>Real Estate Law</li> </ul> George Morrison&nbsp;<br /> <ul> <li>Corporate Law</li> </ul> Lucas C. Padgett, Jr.&nbsp;<br /> <ul> <li>Energy Law</li> </ul> Michael A. Scardato&nbsp;<br /> <ul> <li>Litigation - Real Estate</li> </ul> M. William Youngblood&nbsp;<br /> <ul> <li>Public Finance Law</li> </ul> <br /> <strong>Charlotte, NC</strong><br /> <br /> Lance A. Lawson&nbsp;<br /> <ul> <li>Litigation - Intellectual Property</li> <li>Litigation - Patent</li> </ul> Sherri L. McGirt&nbsp;<br /> <ul> <li>Trusts and Estates</li> </ul> <br /> <strong>Columbia, SC</strong><br /> <br /> Pamela A. Baker&nbsp;<br /> <ul> <li>Environmental Law</li> <li>Litigation - Environmental</li> </ul> Durham T. Boney&nbsp;<br /> <ul> <li>Real Estate Law</li> </ul> M. John Bowen, Jr.&nbsp;<br /> <ul> <li>Energy Law</li> <li>Utilities Law</li> </ul> Sharon C. Bramlett&nbsp;<br /> <ul> <li>Commercial Finance Law</li> <li>Financial Services Regulation Law</li> <li>Real Estate Law</li> </ul> Carl B. Carruth&nbsp;<br /> <ul> <li>Employment Law - Management</li> <li>Labor Law - Management</li> <li>Litigation - Labor and Employment</li> </ul> O. Wayne Corley&nbsp;<br /> <ul> <li>Public Finance Law</li> </ul> M. Elizabeth Crum&nbsp;<br /> <ul> <li>Health Care Law</li> </ul> John W. Currie&nbsp;<br /> <ul> <li>Banking and Finance Law</li> <li>Corporate Law</li> <li>Mergers and Acquisitions Law</li> <li>Securities / Capital Markets Law</li> <li>Securities Regulation</li> </ul> Erik P. Doerring&nbsp;<br /> <ul> <li>Economic Development Law</li> <li>Litigation and Controversy - Tax</li> <li>Tax Law</li> </ul> J. Michael Ey&nbsp;<br /> <ul> <li>Economic Development Law</li> <li>Government Relations Practice</li> <li>Land Use and Zoning Law</li> </ul> James P. Fields, Jr.&nbsp;<br /> <ul> <li>Government Relations Practice</li> </ul> Margaret M. Fox&nbsp;<br /> <ul> <li>Utilities Law</li> </ul> M. Craig Garner, Jr.&nbsp;<br /> <ul> <li>Banking and Finance Law</li> <li>Health Care Law</li> </ul> Joel E. Gottlieb<br /> <ul> <li>Real Estate Law</li> </ul> Paul D. Harrill&nbsp;<br /> <ul> <li>Commercial Litigation</li> <li>Litigation - Banking and Finance</li> <li>Litigation - Real Estate</li> </ul> Francenia B. Heizer&nbsp;<br /> <ul> <li>Government Relations Practice</li> </ul> Dorothy M. Helms&nbsp;<br /> <ul> <li>Real Estate Law</li> </ul> Celeste T. Jones&nbsp;<br /> <ul> <li>Commercial Litigation</li> <li>Criminal Defense: White-Collar</li> <li>Health Care Law</li> <li>Litigation - Antitrust</li> </ul> Judith L. McInnis&nbsp;<br /> <ul> <li>Banking and Finance Law</li> <li>Real Estate Law</li> </ul> Richard J. Morgan&nbsp;<br /> <ul> <li>Employment Law - Management</li> <li>Labor Law - Management</li> </ul> Jonathan H. Nason<br /> <ul> <li>Employee Benefits (ERISA) Law</li> <li>Litigation - ERISA</li> <li>Tax Law</li> </ul> Benjamin E. Nicholson V&nbsp;<br /> <ul> <li>Commercial Litigation</li> <li>Litigation - Construction</li> <li>Litigation - Intellectual Property</li> </ul> Michael J. Seezen&nbsp;<br /> <ul> <li>Public Finance Law</li> <li>Securities / Capital Markets Law</li> <li>Securities Regulation</li> </ul> Robin C. Stanton&nbsp;<br /> <ul> <li>Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law</li> <li>Real Estate Law</li> </ul> Stacy K. Taylor&nbsp;<br /> <ul> <li>Environmental Law</li> <li>Litigation - Environmental</li> </ul> Jane W. Trinkley&nbsp;<br /> <ul> <li>Commercial Litigation</li> </ul> Joseph D. Walker<br /> <ul> <li>Employee Benefits (ERISA) Law</li> <li>Mergers and Acquisitions Law</li> <li>Tax Law</li> </ul> Michael H. Weaver&nbsp;<br /> <ul> <li>Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law</li> <li>Litigation - Bankruptcy</li> </ul> Robert L. Widener&nbsp;<br /> <ul> <li>Appellate Practice</li> </ul> <br /> <strong>Greenville, SC</strong><br /> <br /> Michael W. Burns&nbsp;<br /> <ul> <li>Economic Development Law</li> <li>Public Finance Law</li> </ul> Weyman C. Carter&nbsp;<br /> <ul> <li>Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law</li> <li>Litigation - Bankruptcy</li> </ul> Bernie W. Ellis&nbsp;<br /> <ul> <li>Commercial Litigation</li> </ul> Reginald Gay&nbsp;<br /> <ul> <li>Employment Law - Management</li> <li>Litigation - Labor and Employment</li> </ul> Thomas L. Martin&nbsp;<br /> <ul> <li>Municipal Law</li> </ul> Rita M. McKinney&nbsp;<br /> <ul> <li>Commercial Litigation</li> <li>Employment Law - Management</li> <li>Litigation - Labor and Employment</li> </ul> Daniel R. McLeod, Jr.&nbsp;<br /> <ul> <li>Public Finance Law</li> </ul> <br /> <strong>Hilton Head Island, SC</strong><br /> <br /> Cary S. Griffin&nbsp;<br /> <ul> <li>Real Estate Law</li> </ul> John M. Jolley&nbsp;<br /> <ul> <li>Trusts and Estates</li> </ul> Michael L.M. Jordan<br /> <ul> <li>Tax Law</li> <li>Trusts and Estates</li> </ul> <br /> <strong>Myrtle Beach, SC</strong><br /> <br /> Henrietta U. Golding<br /> <ul> <li>Employment Law - Individuals</li> <li>Employment Law - Management</li> <li>Labor Law - Management</li> <li>Litigation - Labor and Employment</li> </ul> http://www.mcnair.net/?t=40&an=79673&format=xml&p=5352 Seven McNair Attorneys Named "Lawyer of the Year"15 Aug 2018 00:00:00 -0800 http://www.mcnair.net/?t=40&an=79677&format=xml&p=5352 McNair is pleased to announce the legal directory&nbsp;<em>The Best Lawyers in America&copy;</em> has named seven McNair attorneys &ldquo;Lawyer of the Year&rdquo; in its 2019 edition. This honor is limited to only one lawyer in each practice area from each metropolitan area. With resident offices and area of practice, those selected are:<br /> <br /> <strong>Charleston, SC</strong><br /> <br /> Henrietta U. Golding <ul> <li>Litigation - Labor and Employment</li> </ul> <p><strong>Columbia, SC</strong></p> <br /> Celeste T. Jones <ul> <li>Criminal Defense: White-Collar</li> </ul> Benjamin E. Nicholson <ul> <li>Litigation - Intellectual Property</li> </ul> Stacy K. Taylor <ul> <li>Litigation - Environmental</li> </ul> Michael H. Weaver <ul> <li>Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law</li> </ul> <p><strong>Greenville, SC&nbsp;<br /> </strong></p> Michael W. Burns <ul> <li>Economic Development Law</li> </ul> <p><strong>Savannah, GA&nbsp;<br /> </strong></p> John M. Jolley <ul> <li>Trusts and Estates</li> </ul> <br /> http://www.mcnair.net/?t=40&an=79677&format=xml&p=5352 McNair's Peg Fox Appointed Chair of SC Bar Law Related Education Committee14 Aug 2018 00:00:00 -0800 http://www.mcnair.net/?t=40&an=79659&format=xml&p=5352 <div>McNair is pleased to announce that Peg Fox has been appointed Chair of the South Carolina Bar Law Related Education Committee. Peg will serve a two-year term.</div> <div>&nbsp;</div> <div>This Committee directs Law Related Education (LRE) programs, including middle and high school mock trials and other competitions, LRE conferences and teacher workshops; develops LRE materials for elementary grades; provides LRE materials to lawyers and schools; and honors a teacher as the LRE Teacher of the Year and a lawyer as LRE Lawyer of the Year.</div> <div>&nbsp;</div> <div>The South Carolina Bar began in 1884 as the South Carolina Bar Association, a voluntary organization of approximately 200 lawyers. The South Carolina State Bar was created in 1968. The two organizations were merged in 1975. Currently the Bar has a membership of more than 16,000.</div> <div>&nbsp;</div> http://www.mcnair.net/?t=40&an=79659&format=xml&p=5352 Seventeen McNair Attorneys Named Among Legal Elite of Greenville and Columbia02 Aug 2018 00:00:00 -0800 http://www.mcnair.net/?t=40&an=79385&format=xml&p=5352 <p>Seventeen McNair attorneys have been named to Greenville Business Magazine and Columbia Business Monthly&rsquo;s &ldquo;Legal Elite&rdquo; list for 2018. Those selected by their peers as leaders in their respective areas of practice include:</p> <p><b>Greenville</b></p> <ul> <li>Adam Artigliere &ndash; Commercial Real Estate Law</li> <li>Melissa Azallion &ndash; International Law</li> <li>Mike Burns &ndash; Banking &amp; Finance Law</li> <li>Weyman Carter &ndash; Bankruptcy Law</li> <li>Jim Denning, Jr. &ndash; Mergers &amp; Acquisitions Law</li> <li>Bernie Ellis &ndash; Business Litigation Law</li> <li>Hunter Freeman &ndash; Intellectual Property Law</li> <li>Reggie Gay &ndash; Labor &amp; Employment Law</li> <li>Douglas Lineberry &ndash; Intellectual Property Law</li> <li>Rita McKinney &ndash; Labor &amp; Employment Law, Healthcare Law</li> <li>Brandon Norris &ndash; Banking &amp; Finance Law</li> </ul> <p><b>Columbia</b></p> <ul> <li>Sharon Bramlett &ndash; Banking &amp; Finance Law</li> <li>M. Elizabeth (Liz) Crum &ndash; Health Care Law, Government Law</li> <li>Craig Garner &ndash; Health Care Law</li> <li>Joel Gottlieb &ndash; Commercial Real Estate Law</li> <li>Stacy Taylor &ndash; Environmental Law</li> <li>Michael Weaver &ndash; Bankruptcy Law</li> </ul> <p align="left">The &ldquo;Legal Elite&rdquo; are voted on by other attorneys in the area who choose the top lawyers in 20 different practice groups. Winners are nominated and selected by their peers and are regarded as the best and most well-respected attorneys in their fields.</p> http://www.mcnair.net/?t=40&an=79385&format=xml&p=5352