Holding: According to plaintiff, his unjust enrichment claim is in the nature of a failure to pay based on his right, as a purported co-owner of intellectual property, to receive an accounting and share of the proceeds derived from the work.

However, plaintiff’s right to an accounting and share of the proceeds is a claim to be pursued against the co-owner of the copyright. Additionally, the complaint’s allegations indicate that plaintiff’s unjust enrichment claim against defendants arises from their use and distribution of software which was allegedly wrongfully derived from defendants Michael Cale and Utility Partners of America, Inc.’s misappropriation of defendant Utility Software of America, Inc.’s software.

Accordingly, plaintiff’s unjust enrichment claim is preempted by federal copyright law. Defendants’ motion for reconsideration of their motion to dismiss is granted. The court dismisses plaintiff’s unjust enrichment claim against defendants System One Holdings, LLC and UPA Acquisition Co.

Holding: Where bank records of the defendant-attorney’s trust account do not involve confidential communications between the attorney and his clients, the records are not protected by attorney-client privilege.

The attorney’s motion to quash the subpoena of his bank records is denied.

Since the subpoena is limited to (1) the bank account over which the evidence indicates Title Agent Malia McCaffrey had significant control and (2) the year 2008 — the year in which plaintiff alleges it suffered as a result of defendants’ alleged mortgage scam — then the subpoena is not overly broad.

Attorneys for House Speaker Bobby Harrell also argued in papers filed in federal court Monday that the black voters haven’t presented an alternative plan for judges to consider, and some of the plaintiffs don’t live in the districts challenged in the lawsuit.

Harrell is among the defendants in a lawsuit over new district lines, including the state’s new 7th Congressional District along the coast. Six black voters are challenging the plan passed by the Republican-dominated state Legislature, claiming it creates “voting apartheid.”

The Justice Department has said it would not challenge the new layout. The proposed maps for South Carolina and other Southern states require federal approval under the Voting Rights Act because of a history of inequitable treatment of black voters.

The lawsuit asks a three-judge panel to throw out the plan, make lawmakers draw a new one and bar any elections based on the current plan. The trial is set to begin next week.

The voters challenging the lines live in Florence, Sumter, Georgetown, Berkeley, Darlington and Charleston counties. They are suing Gov. Nikki Haley, the Legislature and other state officials and claim a race-based plan for the state’s seven districts “creates a system of voting apartheid in South Carolina that segregates white and black voters into election districts” and packs black voters into one congressional district.

Redistricting is a once-a-decade process to make sure political district lines reflect population changes revealed by the U.S. Census. South Carolina is picking up a seventh U.S. House seat — something the Palmetto State had decades ago, before population fell in 1930. That new district was added to the state’s northeastern corner on the coast, and a multitude of candidates have already announced their decisions to run.

In papers filed Monday, attorneys for the black voters also say that they are dropping their claims over the state’s redrawn state Senate districts. The voters are still challenging the state’s House district plans.

Last week, a federal judge ruled that Harrell and Senate President Pro Tem Glenn McConnell would not have to testify about their redistricting debate. Attorneys for the black voters had argued that state lawmakers like Harrell and McConnell are not protected by the same legislative immunity that Congress members enjoy and should therefore be compelled to testify about how lawmakers arrived at the new map.

Attorney General Alan Wilson says David H. Thompson was arrested last week and charged with two counts of breach of trust and one count of forgery.

Wilson says Thompson sold membership interests totaling at least $360,000 in a corporation called Mossy Development, LLC. Wilson says the money was supposed to be used to develop a North Augusta subdivision called Mossy Oak. But the prosecutor says Thompson used the money for himself.

It wasn’t immediately known if Thompson has an attorney.

As South Carolina Securities Commissioner, Wilson has ordered Thompson to pay a $10,000 fine

The court ruled Wednesday that a judge should not have allowed prosecutors to show seven pictures of the boy taken before his autopsy that showed the extent of his injuries, including how the dogs mauled him so badly his bones were exposed and his ears and nose were gone because they were eaten.

The judges say the pathologist testified to the injuries, so the photos did nothing more than rile the jury’s emotions.

The boy’s body was found in Collins’ yard in November 2006. He was less than a mile from his home.

Lamont D. Terry of Columbia, S.C., was arrested last month and returned to D.C. on Monday, where he was charged with felony murder while armed, police said.

Terry, now 37, was charged in the May 1992 death of Chet Hunter Matthews, who was shot in the chest in Hains Point — the tip of land where the Potomac and Anacostia rivers meet — during a robbery.

The accomplices, whose names were not made public in the affidavit, said they had driven with Terry from Arlington, Va., into Washington late on the night of May 25, 1992. Once at Hains Point, the witnesses said they approached a car with a man and a woman inside and that Terry ordered the man out at gunpoint while they directed the woman onto the ground and searched the car for valuables.

They said Terry shot the man as he was on his knees. The gun was thrown into the river and the group sped away back to Virginia, the witnesses told police. Matthews was pronounced dead at a hospital early the next morning.

Court records show Terry appeared Tuesday in D.C. Superior Court and is being held without bond. A preliminary hearing on the murder charge is scheduled for next month.

The Senate voted 34-10 to kill a proposal requiring the state treasurer to appoint someone in his stead.

The proposed amendment to a government restructuring bill follows Loftis’ public complaints that the portfolio has too many alternative investments and pays excessive fees.

Meanwhile, the State Law Enforcement Division is investigating a report that companies were told they could improve their chances of handling state pension investment work if they paid a friend of Loftis, Charleston investor Mallory Factor. Both deny any wrongdoing and claim politics are behind the allegations.

The treasurer is the only elected official on the six-member panel, and the only one not required to have a background in finance.

Loftis complains that nearly half of the state’s portfolio consists of arrangements outside of cash, stocks and bonds, compared to a national average of less than 15 percent for state pension plans. The state’s investment portfolio earned an 18.3 percent rate of return for the fiscal year that ended June 30, after fees, according to the Retirement System Investment Commission’s annual report.

But that compares with a 21.7 percent median return last year for 91 public pension systems with more than $1 billion in assets, according to Wilshire Trust Universe Comparison Service.

Image from http://www.smartstartinc.com/

Smart Start – also one of two licensed providers in South Carolina – said in a press release that it would “fund, staff and operate multiple installation service centers throughout North Carolina, with nine locations operational by the end of February and a total of 20 locations fully operational by mid-March 2012.”

That’s an ambitious plan, given that the company may have to shut down just as quickly as it started up. Its competitor, Morrisville-based Monitech Inc., has sued the DMV in N.C. state court, claiming that the new standards are invalid. Just days before Smart Start’s announcement, Monitech asked Superior Court Judge James E. Hardin, Jr. to preliminarily enjoin DMV from certifying any providers under those standards pending a ruling on the merits.

“I just think DMV is acting recklessly in what they’re doing,” said Norman Shearin, Monitech’s attorney, referring to the division’s naming of a new provider while the underlying standards are being challenged.

Familiar Foes

The action pending in Wake County is just the latest chapter in a saga of two companies wrestling for a lucrative piece of DMV business – a saga replete with finger-pointing, political innuendo and allegations of backroom dealing.

Monitech was the original – and for many years sole – provider of BAIIDs in North Carolina.   It partnered with the DMV at the start of the ignition interlock system program and has invested millions in growing that business there.  Unlike Smart Start, which provides the devices in 40 states, Monitech operates only in North Carolina.

Though Monitech had long-term contracts in the past, for the last two years it has been operating month-to-month with the DMV while trying to fend off Smart Start.

Smart Start tried unsuccessfully to have its device certified under standards issued in 2008.  It sued the DMV in state court in February 2010, alleging that those standards were skewed in Monitech’s favor and seeking an injunction prohibiting DMV from entering into any new contracts with Monitech. Smart Start also said in that suit that Monitech had an “inappropriate relationship” with the owner of RepCo Marketing, the lab used by the state to evaluate devices for compliance with program standards.

Just before a scheduled hearing on that injunction in March 2010, Commissioner Michael Robertson halted all proceedings under the 2008 standards. The DMV then began rewriting the requirements for certification of the device and the procedures for becoming a provider, overhauling the entire BAIID program and issuing new standards in Feb. 2011.  It also advised Monitech that it would not renew its contract under the old standards.

Monitech then sued the DMV and Robertson in N.C. federal court in August 2011, alleging that the division had violated the company’s due process rights by wrongfully refusing to renew its contract.

In that suit, Monitech noted that its relationship with the DMV began to deteriorate sometime in 2004, coincidentally after it had rebuffed an offer by Law Enforcement Associates Inc. to buy the company. Investors in Law Enforcement Associates allegedly included then-Commissioner George Tatum “and other State government elected and appointed officials able to influence decision making by DMV Commissioner Tatum.”  It was around that same time, Monitech alleged, that DMV began discussions with Smart Start.

U.S. District Judge Terence W. Boyle dismissed that complaint in January, finding that Monitech had no protectable property rights.  “Plaintiff had only a unilateral expectation, albeit based upon past experience, that it would remain a [BAIID] provider for defendant,” Judge Boyle wrote.  “The court cannot find that [the company] has a legitimate entitlement to the enforcement of the 2008 RFC,” Judge Boyle wrote.

Monitech has appealed that decision to the Fourth Circuit Court of Appeals.

Monitech also separately filed a state court action, seeking a ruling that the DMV failed to comply with the state Administrative Procedure Act and that the 2011 standards were thus invalid.

Smart Start intervened in that action, saying through company president Jim Ballard that Smart Start had been in the ignition interlock device business for 20 years and was certified in 40 states, but could not get certified in North Carolina – despite trying for 12 years. It argued that previous standards were geared toward the Monitech device, such that no other vendor could be certified.  The company also once again hinted that Monitech had received favorable treatment as a result of the “suspicious” relationship between its owner, Jerry Mobley, and Repco, the lab used to certify devices.

Though Judge Hardin denied Monitech’s request for a temporary restraining order, he heard arguments for a preliminary injunction on Jan. 30, 2012.  The parties are awaiting a decision.

Meanwhile, the Department of Transportation sent Monitech a letter on Jan. 17, 2012, terminating the company’s contract with DMV as of March 31, 2012.

What’s next?

Despite the legal challenges, Smart Start is moving ahead with its plans to be fully operational in North Carolina by mid-March, according to vice president of operations and marketing, Don Nebhan.  “The plan is to have the state pretty well covered by the middle of March, to have people trained and in place and be able to open our doors at that time,” Nebhan said

That surprises Monitech’s attorney Norman Shearin.  “I’m puzzled that Smart Start would take the risk of getting the infrastructure going [while underlying rules are subject to challenge],” he said. “For example Monitech’s got 30 service centers spread out over the state.  That requires a lot of capital investment.”

But Nebhan is unfazed. “We’ve made a commitment to the state,” Nebhan said.  “Right now we’re focusing on getting shops opened and living up to that commitment, and if something happens to throw a kink in the works because of the lawsuits, then we’ll handle it at that time.”

As for Monitech, after March 31, 2012 it can no longer offer its BAIID in North Carolina, though it can still service devices under contracts existing before that date. But whether the company will be able to continue that service — or at least provide service in all of its locations — is an open question, one that should concern consumers, said Shearin.

“Monitech’s got 10,000 BAIIDs out there that clearly were certified,” Shearin said. “The way this program works, over 80 percent of those BAIIDS are one-year [contracts], and you have about 700 folks or so who apparently come on board each month.  If our folks can’t have the revenue from new people, then at some point, they can’t stay in business doing what they’re doing – not maintaining 30 service centers with all the people that are involved.”

“This has been the state’s program for the past 20 years,” Shearin added. “But now they’ve put their program at risk.” 

“We agree on so much that we need to start working together and speak with one voice,” Attorney General Alan Wilson said during a presentation with State Law Enforcement Division Chief Mark Keel and the directors of the state’s sheriffs and prosecutors associations. “This is what law enforcement as a whole wants for South Carolina. This transcends party.”

Among the proposals that Wilson said carry the support of the state’s sheriffs, prosecutors and local police agencies is a bill that would make a prison sentence of life without parole mandatory for murder cases, including cases of kidnapping, armed robbery or where the victim is a child age 11 or under.

There is also a proposal that would clear up the state’s prohibition on human trafficking, a law Wilson said is needed to bring South Carolina in line with other states in how the problem is handled. If the proposal were to become law, trafficking victims could bring civil lawsuits against their perpetrators and also seek restitution for costs of psychological treatment or court costs.

“There are men and women in your community who are victims and are perpetrators of this heinous crime,” Wilson said. “This is a first step in tightening up those laws.”

The bills, some of which already have legislative sponsors, also include a proposal that would ban more than 100 chemicals that have no medicinal use, in an effort to quash the rise of synthetic drugs including “bath salts.”

Last year, the state Department of Health and Environmental Control announced a ban on the synthetic drugs days after federal officials classified the substances as illegal drugs. Prior to the state ban, some counties and cities across the state had already restricted the sale of synthetic marijuana and similar substances.

That statewide ban was limited, and Keel said more comprehensive action is needed.

Wilson and Keel also talked about the need for more funding for South Carolina’s law enforcement community. To Keel, who has renewed SLED’s mission of assisting local law enforcement agencies, the state’s police force needs more money to adequately respond to those requests.

“We’re trying the very best we can to provide that now,” Keel said. “But we’re 100 or so fewer agents than we were in 2008. The requests are coming in faster than we can handle them.”

Saying Gov. Nikki Haley’s budget includes a request for 30 new agents, Keel also noted that he needs to replace 25 forensic scientists his agency has lost since 2008.

“That has a lot to do with the backlogs that we have,” Keel said. “We have to prioritize things.”

And even if the state prosecutor’s office is well-funded, Wilson said he can’t make cases to the best of his ability without sufficient support for law enforcement.

“It’s got to be comprehensive. If you give them all the funding and don’t give it to us, or vice versa, the system is going to implode,” Wilson said. “There is so much work to be done.”

The maid was working as an independent contractor at the Carolina Lodge in Walterboro when a motel patron raped her. The plaintiff’s identity is being withheld because she was the victim of a sexual assault.

In the days before she was attacked, the plaintiff had several run-ins with her rapist. His flirting soon turned to explicit and vulgar comments about his desire to have sex with her, said one of her attorneys, J. Olin McDougall II of the McDougall Law Firm in Beaufort. Bert Glenn Utsey III of Peters, Murdaugh, Parker, Eltzroth & Detrick in Walterboro also represented the plaintiff.

The frightened plaintiff reported her concerns about the man to the motel’s management on two different occasions, but they did not ask him to leave the property or take any other steps to ensure the woman’s safety, McDougall said.

The harassment continued and the man eventually cornered the plaintiff while she was cleaning a bathroom in a motel room. He entered the room, closed the door behind him and held the plaintiff down. Then he beat and raped her, according to McDougall.

Serving as a special referee, Beaufort lawyer Jared S. Newman determined in July 2011 that the plaintiff was entitled to $1.5 million in damages for physical and emotional injuries, which included major depression, post-traumatic stress disorder and intimacy issues with her husband.

Newman made the damages determination after hearing testimony from the plaintiff and two psychological counselors, who provided evidence of the plaintiff’s emotional suffering. The plaintiff had asked for $2 million.

The motel owners denied liability throughout the litigation, and during the damages hearing they contradicted the plaintiff’s testimony that she had reported her concerns to motel management. The motel owners’ attorney, Benjamin C. P. Sapp of Walterboro, argued that his clients could not have prevented the attack.

Despite the damages judgment, the motel owners lack assets to pay the plaintiff. They are assigning interest in the judgment to the plaintiff so she can pursue a bad faith claim against the motel’s insurer, Sapp said. McDougall was in the process of suing the insurer. “No money’s on the table,” Sapp said. “The insurance company is going to fight this tooth and nail. The odds of [the plaintiff] getting anything out of it are slim to none.”

SETTLEMENT REPORT

Type of Action: Premises liability

Injuries alleged: Sexual assault, physical injuries, post-traumatic stress disorder

Name of case: Withheld to protect identity of rape victim

Court: Hampton County Court of Common Pleas

Verdict or settlement: Verdict

Amount: $1.5 million

Date of verdict or settlement: July 7, 2011

Highest Offer: None

Most helpful experts: Mikka Dutton (Beaufort) and Angie Elliott (Bluffton), psychological counselors who substantiated plaintiff’s damages.

Insurance Carrier: Markel

Attorneys for plaintiff: J. Olin McDougall II (Beaufort) and 
Bert G. Utsey III (Walterboro)

Attorney for defendant: Benjamin C. P. Sapp (Walterboro)

Were liability and/or damages contested? Yes