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Summaries of Published Opinions by Business Litigation Practice Group
Antitrust
Windham v. American Brands, Inc., 565 F.2d 59 (4th Cir. 1977). BMSM was local counsel for American Brands, Inc. South Carolina tobacco growers sought a class action under the Sherman Anti-Trust Act against tobacco companies and Secretary of Agriculture. The district court denied the motion and a Fourth Circuit panel reversed. On rehearing, the Fourth Circuit en banc reversed the panel and held that the district court did not abuse its discretion in denying class certification. Henry B. Smythe
Banking
Young v. Federal Deposit Insurance Corporation, 103 F.3d 1180 (4th Cir. 1997). BMSM represented Defendant FDIC in an action where plaintiff attempted to raise $600 million to finance gas and oil investments. When the proposed financing failed, Young sued those involved in the financing arrangement. The district court granted summary judgment in favor of FDIC on all claims. Affirmed by Fourth Circuit. C. Allen Gibson, Jr.
Branning v. Morgan Guaranty Trust Co. of New York, 739 F.Supp. 1056 (D.S.C. 1990). BMSM represented Morgan Guaranty Trust. The district court entered summary judgment for defendants in alleged bank fraud matter on several legal grounds including the preclusive effect of prior adjudications in related cases. Henry B. Smythe, Jr., David M. Collins
Bankruptcy
In re Harborview Development 1986 Ltd. Partnership, 152 B.R. 897 (D.S.C. 1993). BMSM represented the first mortgage lender working with Chapter 11 Trustee in seeking to reject and terminate debtor's insider lease. In a nationally discussed decision, District Judge David C. Norton affirmed the bankruptcy court order rejecting and terminating the lease. Charles P. Summerall, IV
Building Permits
Sunrise Corporation of Myrtle Beach v. The City of Myrtle Beach, 420 F3d 322 (4th Circuit 2005).
The owners of a hotel and surrounding land sought damages against the city for violations of the Due Process, Equal Protection and Takings Clauses of the Constitution after the city denied a permit to build a new hotel. The district court granted defendant’s motions for summary judgment. Sunrise appealed. The Court of Appeals affirmed the district court’s decision stating that Sunrise was not entitled to any remedy. Greg Horton and Adriane M. Belton successfully represented the City.
Commercial Foreclosure
Federal Deposit Insurance Corporation v. Danzig, 10 F.3d 806 (table) (4th Cir. 1993) (Unpublished disposition, full text available 1993 WL 478842). BMSM represented lender in action on note resulting in judgment against debtor. Appellate argument focused on the applicability of the "good cause" requirement of Federal Rule of Civil Procedure 55 and the different standard applied under Federal Rule of Civil Procedure 60(b). The Fourth Circuit upheld the district court's entry of default judgment against Danzig. Morris A. Ellison
SCN Mortgage Corp. v. White, 420 S.E.2d 514 (S.C. Ct. App. 1992), aff'd, 440 S.E.2d 868 (S.C. 1994). BMSM represented borrower, successfully arguing that a contractual waiver of statutory appraisal rights violates South Carolina public policy. Morris A. Ellison,
Osborn v. Chicaro Development Corp., 294 S.C. 129, 363 S.E.2d 108 (S.Ct. App. 1987). BMSM represented Osborn in action on a note. The court enforced the note, holding that Chicaro could not deny the assignment of the note and lacked standing to assert that the assignment was illegal under Florida law. Charles P. Summerall, IV
Contracts
R.E. Phelon Co., Inc. v. Clarion Sintered Metals, Inc., 2006 WL 2573136 (D.S.C., Sept. 05, 2006). This case involved contract issues for the sale of goods under the Uniform Commercial Code. Clarion, represented by Buist Moore, filed a motion for partial summary judgment on counterclaims for breach of contract. The U.S. District Court granted this motion holding that there were valid contracts for the goods. The successful attorneys for the firm were David. B. McCormack, Henry B. Smythe, Jr., Julius H. Hines, and Matthew E. Tillman.
Intellectual Property
Ramada Inns, Inc. v. Apple, 482 F.Supp. 753 (D.S.C. 1980). BMSM represented Ramada in this trade mark claim. The court enjoined Apple from using the Ramada trade mark. Joseph H. McGee
Procedure
In re Federal Deposit Insurance Corporation, 835 F.2d 874 (table) (4th Cir. 1987) (Unpublished disposition, full text available 1987 WL 24496). BMSM represented FDIC. The FDIC requested that the district judge recuse himself pursuant to 28 U.S.C. Section 144 or 455(a) and (b). The Fourth Circuit determined that the FDIC's request was meritorious but permitted the district judge to reconsider his order denying recusal. Benjamin Allston Moore, Jr.
Real Property/Taking
Lindsey v. South Carolina Tax Commission, 395 S.E.2d 184 (S.C. 1990). BMSM represented for Defendant Commonwealth II in a successful effort to change the assessment on an unfinished subdivision. Henry B. Smythe, Jr.
Ballam v. U.S., 747 F.2d 915 (4th Cir. 1984), cert. granted, 474 U.S. 1078 (1986), 806 F.2D 1017 (Fed. Cir. 1986), cert. denied, 481 U.S. (1987): BMSM represented owner of land adjacent to artificial waterway constructed by United States. The owner alleged that erosion to the land constituted a compensable taking under the Fifth Amendment. The Fourth Circuit reversed the district court, holding that erosion damage constituted such a taking. Morris A. Ellison
Mobay Chemical Corp. v. City of Goose Creek, 299 S.E.2d 486 (S.C. 1983). BMSM represented respondents DuPont and General Dynamics in an appeal from an order enjoining the city from annexing the Bushy Park Industrial Park. DuPont and General Dynamics persuaded the South Carolina Supreme Court that the petition for annexation was improper. David B. McCormack; Henry B. Smythe, Jr.
Strickland v. Flue-Cured Tobacco Co-op Stabilization Corp., 643 F.Supp. 310 (D.S.C. 1986). BMSM was local counsel for defendant Phillip Morris. South Carolina tobacco growers challenged the rebate program under the No Net Cost Act. The district court dismissed the case because the growers lacked standing, were estopped from suing, the program was not an unconstitutional taking nor was the statute an unconstitutional delegation of power, and the administrative action was not rule-making pursuant to the Administrative Procedure Act. Henry B. Smythe, Jr.
Securities Litigation
U.S. Fidelity & Guaranty Co. v. Patriot's Point Development Authority, 772 F. Supp. 1565 (D.S.C. 1991) and U.S. Fidelity & Guaranty Co. v. Patriot's Point Development Authority, 788 F.Supp. 880 (D.S.C. 1992). BMSM represented Price Waterhouse in this class action securities litigation. The district court approved certain settlements and ruled that non-settling defendants must pay their proportionate share of any verdict. In the second published opinion, the district court ruled barred claims against Patriot's Point by non-settling defendants. David B. McCormack, Joseph H. McGee
Hunt v. Robinson, 852 F.2d 786 (4th Cir. 1988). BMSM represented defendant in this securities claim. The court held that Hunt did not state a cause of action under Section 10(b) of Securities Exchange Act of 1934. Gordon D. Schreck
Levendag v. Churchill, 623 F.Supp. 620 (D.S.C. 1985). BMSM represented investors in churning suit against brokerage firm under the federal securities laws and state law. After appeal to the Fourth Circuit and remand, District Court granted motions to compel arbitration and a motion to stay judicial proceedings. Morris A. Ellison
Johnson, Lane, Space, Smith & Co v. Howard, 252 S.E.2d 884 (S.C. 1979). BMSM represented Johnson, Lane, Space, Smith & Co., a stock brokerage firm, against a former employee. In this non-jury trial, the trial court found that Johnson, Lane was entitled to reimbursement for shares of stock remaining in its inventory that its employee, was supposed to sell at his own risk. Benjamin Allston Moore, Jr.
Taxation
In re Ryan Investment Co. Inc., 335 S.C. 392, 517 S.E.2d 692 (S.C. 1999). BMSM represented trustee in a corporation filing for bankruptcy. Trustee moved to set aside tax sale on the ground that county treasurer had failed to comply with statutory mailing requirements for notice of redemption. The bankruptcy court invalidated the tax sale. The Supreme Court held that postal regulations did not excuse non-compliance with tax sale statute's restricted delivery requirements. Julius H. Hines
Piercing the Corporate Veil in South Carolina
Hunting V. Elders, 359 S.C. 217, 597 S.E.2d 803 (Ct. App. 2004) produced the first significant change in the piercing of the corporate veil doctrine in South Carolina in a decade. The ability to pierce the veil of a statutory close corporation or as subchapter “S” corporation has become more difficult as a result of the holdings in this case, concepts of which should carry over to a limited liability company. Published in the November 2006 issue of South Carolina Lawyer, this article published by Shawn M. Flanagan provides practical guidance to business lawyers attempting to understand and avoid application of the doctrine.
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