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NC Chamber Legal Institute: Influence and Impact

Cooper v. Berger

In 2017, Governor Cooper’s proposed state budget allocated various federal block grant funds awarded to North Carolina. Those federal block grants included the Community Development Block Grant, the Maternal and Child Health Block Grant, and the Substance Abuse Prevention and Treatment Block Grant. The General Assembly proposed and ultimately passed a budget with different allocations of the block grants, overriding a gubernatorial veto of the budget in the process.

In this case, Governor Cooper asserted that the block grant appropriations made by the General Assembly were unconstitutional. The N.C. Court of Appeals (COA) disagreed, clarifying that those funds are within the “state treasury” and are subject to legislative appropriation. The COA opinion was unanimous, but the N.C. Supreme Court granted a petition for discretionary review on February 28, 2020. The NC Chamber Legal Institute (CLI) voted to file an amicus brief in support of the COA opinion on March 30, 2020, and the brief was filed on June 15, 2020.

This case is of vital importance to the business community because federal grant dollars supplement our state’s job creators, affect the lives of all North Carolinians, and substantially influence our economic competitiveness. The CLI believes the best method for allocating these funds involves following the prescribed practices of good government that allow the General Assembly and the Governor to negotiate the best outcome for their constituents.

Status: Case argued virtually before the N.C. Supreme Court on August 31, 2020. On December 18, 2020, the Supreme Court affirmed the decision of the COA in a 6-1 opinion.


Griffin v. Absolute Fire Control

This case involves a plaintiff who suffered a post-2011 injury and thus the viability of his claim for disability should have turned upon the “suitable employment” definition adopted during the 2011 workers’ compensation reforms effort. The plaintiff had returned to work earning at or above his pre-injury wages, which would ordinarily make it impossible for him to establish disability under the law. The Industrial Commission ruled in favor of the employer, but the N.C. Court of Appeals (COA) reversed. In doing so, the COA continued to rely on pre-reform case law tests for disability and, more importantly, it flipped the burden of proof on the issue of disability from the employee to the employer.

In the words of dissenting Judge Tyson, the COA overruled the Commission’s unchallenged findings and conclusions of law “by asserting a double-negative burden on Defendant to disprove disability through a showing of non-futility.” In other words, the COA ignored that the plaintiff was earning wages at or above his pre-injury wages and then shifted the burden to the employer to disprove disability. Left unchecked, this case has implications not only for ordinary “run of the mill” workers’ compensation cases but could also negatively impact extended benefits cases that are increasingly hitting the 500-week mark negotiated in 2011.

Status: The CLI board voted to join a coalition of employer organizations in filing an amicus brief supporting reversal of the COA’s opinion. The brief was filed on March 17, 2020.


Cowpasture v. U.S. Forest Service

During the spring of 2019, the U.S. Chamber of Commerce and other trade associations filed an amicus brief to this lawsuit in the U.S. Court of Appeals for the Fourth Circuit, which involved a challenge by environmental groups to a permit granted by the U.S. Forest Service for the Atlantic Coast Pipeline (ACP) project.

The permit allowed the ACP to cross through two National Forests maintained by the U.S. Forest Service. Ultimately, the Fourth Circuit ruled against the Forest Service, holding that it lacked authority to grant an easement underneath the Appalachian Trail, which runs through the Forest Service property.

The Forest Service appealed the Fourth Circuit decision to the U.S. Supreme Court, where oral arguments were heard on February 20, 2020. The CLI joined with the U.S. Chamber’s Global Energy Institute to urge the Supreme Court to reverse.

This case demonstrates the potential for anti-business groups to litigate issues they have been unable to advance legislatively and shows how a united business front can effectively secure positive outcomes against attempts to achieve anti-business policy in the courts.

Status: A decision from the U.S. Supreme Court was issued before the 2019-20 term of the Supreme Court ended. The Court reversed the Fourth Circuit.


Saunders v. Hull Property Group

This case involves a trip and fall plaintiff who sued a shopping mall for personal injuries she suffered when she tripped on a vertical step-off surrounding a patch of pavement in the shopping center parking lot. A Henderson County jury found that the plaintiff contributed to her own injuries and that she was therefore ineligible to recover for the defendants’ alleged negligence.

The plaintiff sought to bypass the N.C. Court of Appeals (COA) and have her argument that North Carolina should transition to a comparative negligence state heard by the N.C. Supreme Court. The Supreme Court denied that petition on October 30, 2019.

Status: Monitoring case activity in the COA.


Parkes v. Hermann

This case involves the “loss of chance” doctrine, which North Carolina courts have consistently declined to create judicially. The judges in this case unanimously agreed this was not a doctrine recognized under North Carolina law.

The facts of the case involve a stroke victim who did not, upon presentation in an emergency room, receive a certain drug that would have allegedly given her a 40% chance of improved neurological outcome. The CLI took interest in this case largely because it presents the issue of whether the Supreme Court should create a new standard for potential liability or whether such work should be left to the General Assembly and Governor.

This was a rare case that squarely addressed a question of the difference between Jones and Morgan streets. Notwithstanding the unanimous opinion from the N.C. Court of Appeals (COA) rejecting the plaintiff’s argument, the N.C. Supreme Court granted a petition for discretionary review. The CLI submitted an amicus brief urging the Supreme Court to affirm the COA decision on January 27, 2020.

Status: Oral arguments were conducted before a virtual N.C. Supreme Court on September 1, 2020. On December 18, 2020, the Supreme Court affirmed the decision of the COA in a 6-1 opinion authored by Justice Newby.


Capital Associated Industries v. NC State Bar

In April of 2019, the U.S. Court of Appeals for the Fourth Circuit issued an opinion in a case involving Capital Associated Industries (CAI) and the NC State Bar. At issue was whether CAI, a Raleigh-based nonprofit that provides human resource guidance to its business members, could also employ in-house attorneys to provide employment law advice to its members. The “unauthorized practice of law” statutes in North Carolina prohibit such an arrangement.

The business case for these arrangements is that they are a more cost-effective way to procure legal advice, particularly for routine employment matters, and that such arrangements would ultimately result in greater compliance with state and federal labor laws. The State Bar argued that the state has a legitimate interest in prohibiting the corporate practice of law because the interest of a corporation (or association) that controls an attorney’s employment might conflict with the interests of the attorney’s clients.

In short, the Fourth Circuit sided with the State Bar and ruled against CAI, concluding that CAI did not have a First Amendment “freedom of association” right to employ attorneys to give its members advice. The Supreme Court has previously recognized such a First Amendment right for labor unions and the NAACP. CAI attempted to appeal to the U.S. Supreme Court and the CLI joined an amicus brief, along with several other North Carolina trade associations, urging the Supreme Court to hear the case.

Status: Inactive.


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