Gallivan, White, & Boyd, P.A. – A History

As we recently noted, GWB now has an office in Charleston, South Carolina. With our growth over the last five years, we thought our readers might enjoy a bit of the firm’s history. Gallivan, White, & Boyd, P.A. was founded in Greenville, South Carolina in 1948. The firm practiced general law during this time period and served as the statewide division counsel for Southern Railway Company and general counsel for Woodside Bank. The firm continued as general counsel when a merger created the state’s largest bank known as South Carolina National Bank. Southern Railway Company changed its name to Norfolk Southern Corporation in 1982 and remains a client of the firm today.

In the 1950’s, the small law firm began to grow in number and reputation. The firm expanded to four attorneys and relocated to 128 Boadus Avenue in Greenville in 1958. Greenville mirrored the firm in its growth, becoming known as the textile capital of the world in the 1950’s and 1960’s.

During the 1970’s, the firm continued its steady expansion with the addition of H. Mills Gallivan and Daniel B. White in 1976 and W. Howard Boyd, Jr. in 1977. Mills, Danny, and Howard were the firm’s 7th, 8th, and 9th attorneys. With their arrival, the firm began focusing its practice on business and corporate litigation, trial work, and mass tort litigation, including the defense of personal injury cases arising from exposure to toxic substances, including asbestos.

The firm continued its successes in the 1980’s and 1990’s by steadily increasing its reputation as a leading litigation law firm as well as increasing the firm’s number of attorneys and practice areas. The firm moved its practice to 330 East Coffee Street in Greenville in 1983 and grew to 17 attorneys by 1988. Just a few years later, the firm outgrew its Coffee Street location with its growth to 27 attorneys in 1998. In the early 1990’s, the firm served as lead South Carolina counsel for a chemical manufacturer in the first case multidistricted in South Carolina by the Judicial Panel on Multidistrict Litigation.

At the turn of the century, the firm officially became known as Gallivan, White, & Boyd, P.A., and in 2003, it moved to its current location at Liberty Plaza overlooking downtown Greenville. In 2005, members of GWB’s Commercial Transportation Group served as lead counsel in the emergency response, post-accident investigation, and claims handling for a major railroad company after a train derailment and toxic chlorine release resulted in more than 9 deaths and over 1,000 claims in South Carolina.

Then, GWB represented a Fortune 500 client in class actions brought against it by physicians. GWB was also retained in 2008 to represent this client again in a purported class action of its more than 13,000 policyholders seeking distribution of dividends.

GWB experienced continued growth during this decade, opening its first offices outside of Greenville. While continuing its emphasis on litigation, the firm has also expanded its corporate and commercial transaction practice. GWB grew from 27 attorneys in 1998 to 47 attorneys in 2010, to 61 attorneys in 2015. The firm is one of the Southeast’s leading business and commercial law firms with five offices in the Carolinas located in Greenville, Columbia, Anderson, and Charleston, South Carolina and Charlotte, North Carolina.

The firm operates within four major groups—litigation, business and commercial law, insurance practice and workplace practices. Each group is further organized into practice area teams of lawyers who stay informed of the latest developments that impact their specific clients and the particular industries served.

GWB’s success and longevity are intertwined with its reputation for providing wise legal counsel and first-class client service. The values that have come to define Gallivan, White, & Boyd, P.A. to its clients and the community are the compass that guide the firm into the future.

U.S. District Court For The Western District of North Carolina Dissolves Bryson City Division

If you practice in the U.S. District Court for the Western District of North Carolina, we have some news for you. According to an email sent from the court late last month, the Bryson City division is no more:

Please be advised that the Bryson City Division and case number will be dissolved effective 01/01/2015.

All new cases filed that fall within the counties that were before covered by the BC division: Cherokee, Clay, Graham, Jackson, Macon and Swain now are incorporated into the Asheville Division and will be assigned a “1” at the beginning of the case number. (Example: 1:15-cv-00001)

Update your files accordingly.

The Range Feud 2: The Dueling Dukes

The Range Feud 2

Famed actor John Wayne was born Marion Robert Morrison, but he was perhaps best known for his nickname, “The Duke.”  The Duke personified the American Wild West.  He shot and strung up bad guys, fought his way out of tight spots, and generally exhibited a level of awesome manliness that inspired generations of American men.  The Duke also enjoyed his whiskey, and his family recently launched a “Duke” brand whiskey, “inspired by bottles from John Wayne’s personal whiskey collection, preserved for over 50 years and only recently discovered.”  Sounds great, right?  Well, not to everyone.

Reportedly,  Duke University recently filed objections in the trademark office to prevent the whiskey from using the “Duke” name, alleging that doing so will “’cause confusion and dilution’ that hurts the school’s recruiting and reputation.”  The Duke’s family, which has filed a lawsuit of its own in California, denounces Duke University’s arguments as “ludicrous,” and argues that “[Duke University] ‘has never been in the business of producing, marketing, distributing or selling alcohol,’ [but the school] ‘seems to think it owns the word ‘Duke’ for all purposes and applications.”

It will be interesting to see how this one turns out, as both sides have some interesting arguments.  While the outcome is not clear, one thing is. Duke University should count its lucky stars that it is dealing with the family and not the Duke himself, because the Duke didn’t believe in lawsuits:  “Out here a man settles his own problems.”

Let’s Leave 911 Out Of Our Food Complaints, Shall We?

Product liability suits involving food products are not uncommon. In fact, one of the most famous product cases of all time, Stella Liebeck v. McDonald’s, involves a familiar beverage. (Don’t worry, dear readers, this is not another post about the Liebeck case.). While we here at Abnormal Use may not always agree with the outcome, we at least respect a plaintiff’s right to litigate legitimate matters in court. On the other hand, we have  little use for claimants who choose other means to air their grievances. Case in point: North Carolina woman Bevalante Hall recently used 911 to complain about her Subway order. According to a report from the Gaston Gazette, Hall called 911 after a Subway employee allegedly made her flatbread pizza with marinara rather than pizza sauce. In the 911 call, Hall stated that she wanted to make a report so she could call investigators with a local television news station. Hall didn’t get quite what she requested. As a result of the call, Hall was jailed for three minutes before being released on a $2,000 bond.

Had Hall taken to the court system, her claim undoubtedly would have been criticized (rightly) as frivolous. A marinara-sauced pizza is not exactly a defective product. After all, Subway clearly advertises its “flatizzas” as being made with marinara sauce. If suit had been filed, however, our focus would have at least been on the merits of the claim (or lack thereof). Unfortunately, Hall’s claim appears to be more about garnering publicity than resolving a grievance. Leave it to us to oblige.

Online Dating Site Targeted for Alienation of Affection

Online dating is all the rage these days. No longer is it frowned upon to turn to the interwebs in search of a soulmate. With sites like FarmersOnly.com, ClownDating.com, and SinglesWithFoodAllergies.com, it seems like there is an online dating site for just about everyone. We suppose it is a good thing to help ease the stress of trying to find one’s perfect match. But, what if those online dating sites help those who maybe shouldn’t be looking? Like married folks, for example. At least one North Carolina man finds it to be a problem and has filed suit as a result. According to a report out of the Charlotte Observer, after Robert Schindler’s now ex-wife had an affair with a man she met on AshleyMadison.com back in 2007, he filed suit against the site and the man with whom his wife cheated, alleging an alienation of affections and criminal conversation (a/k/a affair). Schindler alleges the site, whose motto is “Life is short. Have an affair,” worked together with the man to ruin his 13-year marriage. Schindler seeks monetary damages in excess of $10,000 as per the North Carolina pleadings rules. Before we dive into our thoughts on the merits of this claim, it should be noted that North Carolina narrowed its alienation laws back in 2009 to permit claims only against “natural persons.” Schindler’s attorneys have argued that because the affair began in 2007 – two years prior to the law change – he is permitted to file suit against the company. The merits of this argument will have to be played out in the courts. We’ll be watching this one closely, folks.

Alienation law changes aside, this lawsuit seems to defy common sense on its face. Yes, Ashley Madison‘s niche in the marketplace is matching up adulterous individuals. The site, however, doesn’t make anyone actually have an affair. Any affair takes two willing participants. We highly doubt that an otherwise happy spouse casually browses the Internet with a happy marriage, stumbles across Ashley Madison, and decides to pursue an affair. The site is nothing more than the vehicle she used to turn the affair into a reality. Believe it or or not, affairs occurred for years without the assistance of online dating sites. We are guessing any spouse can have an affair even without the assistance of Ashley Madison. We would never condone an extra-marital affair. We here at Abnormal Use just don’t think you should hold an online dating site liable for facilitating one. Sure, Ashley Madison‘s unabashed promotion of affairs looks bad on the surface, but is the site really any more ridiculous than a site like DarwinDating.com with a mission to weed out ugly people through the natural selection process? Online dating is simply doing behind a computer what people have been doing inside a bar for hundreds of years. Oh, well.

(Hat Tip: TortsProf Blog / Overlawyered).

North Carolina Shooting Death Leads To Lawsuit Against Gun Manufacturer

Even though talk of gun control has lessened on the political front, firearms litigation continues.  Last month, the estate of Jasmine Thar filed suit against Remington in Mecklenburg County, North Carolina, arising out of the December 23, 2011 shooting death of the North Carolina teenager.  Thar was shot when 23-year old James Blackwell’s Remington .308 Model 700 rifle allegedly misfired while he was cleaning the gun across the street.   The stray bullet also struck two other persons; however, those persons were not killed.  Blackwell claims he never touched the gun’s trigger.  He was investigated for the incident but cleared of any wrongdoing.  The estate sued the gun manufacturer, claiming the rifle malfunctions and misfires, a problem for which Remington allegedly has received thousands of complaints. Before diving into the merits of this suit, we here at Abnormal Use must admit that something about this incident doesn’t seem right.  In the days after the incident, Thar’s family refused to believe the shooting was accidental, believing it to be racially motivated after a Nazi magazine and Confederate flag were found in Blackwell’s bedroom.  The family went as far as to plan boycotts and rallies in the event the district attorney did not charge Blackwell.  Thar’s mother, Claretta McNeil, claimed:

That’s sending out a really negative message out to America.  That we can shoot people and say it’s an accident and get away with it and it’s okay.

Apparently, the message has now changed. At this point, we know little about the validity of the allegations against Remington.  On its website, Remington claims that the rifle is safe when proper precautions are followed.  The company’s own scientific testing of rifles that supposedly misfired has apparently never recreated the problem.  According to Remington,  malfunctions often involve improper maintenance or alterations to the original mechanisms and settings. Clearly, the key issue is the conduct of Blackwell.  Regardless of any defects with the gun or his own alleged racial motivations, he was clearly negligent in cleaning a weapon while it was loaded.  If this incident was accidental, then it could have been prevented with proper gun safety.  The family, however, no longer holds Blackwell responsible.   According to Bernie Coaxum, Thar’s grandfather, “Mr. Blackwell is the conduit of this tragedy, not the cause.”  Nonetheless, without Blackwell’s intervening act of negligence, the accident clearly could have been prevented.

At the end of the day, we must remember that a young girl was killed through no fault of her own.  Determining the responsible party, however, has been relegated to pointing the finger at the party with the ability to pay.

Stop The Presses! New Laches Case In North Carolina!

Our longtime readers know that we here at Abnormal Use have a favorite affirmative defense: laches. In fact, we love laches, so much so that in March of this year we authored the post “Laches – The Saddest of All Affirmative Defenses.” In that fateful post, we observed:

Just as D minor is the saddest of all keys, laches is the most forlorn of affirmative defenses.  Nevertheless, it has always been our favorite, and our dream is to one day win summary judgment based solely on our invocation of laches. But even after all of these years, we are still waiting for such a victory. Why does laches get no respect in dispositive motions?  As an affirmative defense, it’s something slightly less than the statute of limitations defense, which bars claims based on the passage of a set number of years.  Laches, as we all know, means that a party should be prevented from recovery because he or she has sat on their rights for too long, even though that period of time that they waited, may still be within the statute of limitations.

Well, guess what? Earlier this week, our own North Carolina Court of Appeals released a significant laches opinions.  See John Wm. Brown Co., Inc. v. State Employees’ Credit Union, No. 11-CVS-16809 (N.C. Ct. App. Dec. 3, 2013).but of course, the proponents of laches did not prevail.  The court did not mince words:

On appeal, [Plaintiff] contends the trial court erred in granting [Defendant’s] motion to approve and enforce the Agreement because the doctrines of laches and equitable estoppel bar the enforcement of the Agreement over its objection. We disagree.

Oh, well. Here’s a very, very distilled version of the facts: Plaintiff , a general contractor, appealed the trial court’s order granting the defendant credit union’s motion to enforce a settlement agreement. As per custom and case law, the reviewing court analyzed the motion as if it were a motion for summary judgment. In invoking laches to oppose enforcement of the agreement, the plaintiff argued that an insurance company handling the bonds, with the credit union’s knowledge, “sat on its right of assignment under the Agreement of Indemnity for over a year while litigation commenced” and claimed “it was prejudiced as a result of [the insurance company’s delay because it spent substantial amounts of time and money pursuing the litigation.” After describing the doctrine of laches in some level of detail, the court concluded as follows:

We have been unable to find any case where the doctrine of laches has been applied in a scenario similar to the one now before this Court. Given the unique posture in which the doctrine of laches arises and the fact that [Defendant] was not the cause of the delay, we hold the doctrine of laches has no applicability in the present case and does not bar enforcement of the Agreement by [Defendant]. Nevertheless, assuming arguendo the doctrine of laches may be applied to preclude the exercise of a right of assignment by a third party in order to bar the enforcement of a settlement, the result in the present case would not be different. The language in the Agreement of Indemnity is clear, “[n]o failure or delay by [the insurance company] to exercise any right, power or remedy provided pursuant to this Agreement shall impair or be construed to be a waiver of [the insurance company’s] ability or entitlement to exercise any other right, power, or remedy.”

There you have it. Another defeat for laches. Alas.

There Is Now Federal “Selfie” Authority

Who says the federal courts lag behind technical advances?

Well, thanks to last week’s United States v. Doe, No. 1:12–cr–00128–MR–DLH (W.D. N.C. Aug. 14 2013), we now have a federal definition of “selfie.” Well, kind of.

The opinion arises from a motion to suppress, and since we don’t opine on criminal law, we won’t recite the facts and specific issues.  But check out this footnote:

The term “selfie” is the name given to a self-portrait photograph, “often snapped at odd angles with smartphones[,]” and “typically made to post on a social networking website (or sen[t] in a text message)[.]”

See id. at *8 n.6 (citing Katy Steinmetz, “The Top 10 Buzzwords of 2012,” Time, Dec. 4, 2012, http://newsfeed.time.com/2012/12/04/top–10–news–lists/slide/selfie).

According to our very, very brief Westlaw search, this is the only state or federal court to use the word “selfie.”

Curiously, the link cited in the footnote is no longer active; the correct portion of the cited article can be found here.

The court also noted:

With the popularity of social media sites like Twitter, Facebook, and Instagram, together with cell phones’ capability to send text messages and pictures, common sense would lead a practical person to conclude that human behavior includes the making of flattering or unflattering “selfies.” That the Defendant’s phone probably would contain evidence of the three crimes listed in the warrant application was within the issuing magistrate’s realm of lawful consideration. The issuing magistrate, therefore, had a substantial basis for concluding that probable cause existed.

Id. at *8.

It’s good to see courts catching up to the technological trends, and we hope any selfie-related litigation cites to this opinion.

Teeth Whitening and Antitrust

For some time, the Federal Trade Commission (FTC) has been attempting to limit the scope of anti-trust immunity under the “state action doctrine.”  The state action doctrine provides that states may take regulatory actions that would have otherwise violated federal anti-trust laws.  The FTC recently recorded a big win in this ongoing fight in the matter of  North Carolina State Board of Dental Examiners v. Federal Trade CommissionCase No. 12-1172 (4th Cir. May 31, 2013).  The Fourth Circuit held that the the Board of Dental Examiners improperly expelled non-dentists from the teeth whitening market in North Carolina.

This case focused on actions of the Board, which is a state agency made up of practicing dentists, dental hygienists, and a consumer representative.  While the primary purpose of the Board is to license and discipline dentists, the board had issued dozens of cease and desist letters to non-dentists engaged in teeth-whitening services.  The FTC caught wind of this and issued an administrative complaint alleging improper exclusion of non-dentists from the market.  Of course, the Board responded by claiming that it was covered under the state action doctrine because it was a state entity that was created to regulate the practice of dentistry, which included teeth-whitening.

The Fourth Circuit held that the Board was a private actor because its majority is made up  of members who are participants in the regulated market and who were elected by fellow market participants.   In reaching this decision the Court relied on California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980), which held that private parties can only claim immunity if they act according to express state policy and are actively supervised by the state.  The Board was unable to meet this test because there wasn’t sufficient state oversight.  As such, the Board is subject to anti-trust laws.

For those of you keeping track at home, the NCAA is not subject to anti-trust laws but the actions of the a State Board of Dental Examiners are covered.  Makes sense in the grand scheme of things, right?

The North Carolina Legal Geek Meetups

Not too long ago, friend of the blog, Erik Mazzone of the North Carolina Law Blog, put together what he called a Legal Geek Meetup here in Charlotte.  This event was officially sponsored by the North Carolina Bar Association’s Law Practice Management Section (of which Mazzone is director). Assisting in the arrangements were two local Charlotte lawyers, myself and Ketan Soni.  (You didn’t think they would have a legal geek meeting in Charlotte without having us involved, did you?) The purpose of the first such event was to bring together like-minded young lawyers with an interest in social media and technology.  Here is the official description of the series of events:

Legal Geek events are designed to help lawyers and legal professionals interested in practice management and technology learn from each other. Each meetup focuses on a different topic, and may occasionally involve short presentations. While offered primarily to NCBA members, all local legal professionals are welcome to attend. There is no cost to attend these events.

The event was a success. Held at Charlotte’s new Heist Brewery, the meetup attracted at least 20 or so young lawyers.  (Even fabled North Carolina law blogger Lee S. Rosen made an appearance.). It was a fine – and low pressure – networking event (and by its very nature, it did not include a formal presentation or CLE credit).  Many, but not all, of the discussions had by the participants centered around tech or tech culture: Twitter, blogs, and using same to advance one’s practice. Basically, it was a just a fun get together for folks unafraid to refer to themselves as “legal geeks.”

There are upcoming events in Raleigh/Durham (April 11), Fayetteville (May 14), and, of course, Asheville (June 19).

If you’re interested in becoming a part of the events, see here.