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ADA claimants find courts less friendly these days (access required)

It’s bad enough for Charlotte’s commercial real estate industry. Lenders aren’t lending. Vacancies are still high. And then there’s the ongoing problem of lawsuits alleging that shopping centers, office buildings and industrial parks are violating the Americans with Disabilities Act. “The way the (federal) statute was set up it was meant to provide a method where it would be easy for plaintiffs to bring these lawsuits,” said John Bowers, a lawyer for Charlotte law firm Horack Talley. “They can sue to have these changes to the properties.” Bowers (pictured) is among attorneys who have been hired to defend two clients in the Charlotte area dealing with ADA lawsuits.

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Abuse victim gets second shot at justice   (access required)

When Kelly Waldron Bowles, 27, finally decided in 2002 to report years of sexual abuse at the hands of her former stepfather, a Dorchester County grand jury indicted Donald A. Baxter with second degree criminal sexual conduct with a minor and committing a lewd act upon a child. Baxter eventually pleaded guilty to the lesser offense of aggravated assault and battery by taking indecent liberties with a minor, and was sentenced to six years in prison, reduced to two years probation. He did no jail time. But in the civil suit that followed eight years later, it took Berkeley County Court of Common Pleas Judge Stephanie McDonald just one day to find for the victim. On November 15, McDonald awarded Bowles $14 million in damages on her claims of sexual assault, sexual battery, intentional infliction of emotional distress and gross negligence. “The award cannot replace the childhood and innocence that Kelly lost,” said her attorney, Joseph P. Griffith Jr. of Charleston (pictured).

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The Achilles heel of e-records   (access required)

In a decision likely to add to the legal woes of beleaguered brokerage firm Morgan Keegan, the North Carolina Court of Appeals upheld a ruling by the state’s Business Court that the firm had failed to establish the existence of an investor’s arbitration agreement. As a result, and barring a reversal on further appeal, the case will proceed to a jury trial. The decision in Capps v. Blondeau is significant for other Morgan Keegan investors, who have largely had to confine their claims to arbitration before the Financial Industry Regulatory Authority (FINRA), with mixed results. It may also have larger implications as it calls into question Morgan Keegan’s record-keeping and document retention practices – which may be common at other brokerage firms.

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North Carolina-based institute to take leadership role in forensics technology  (access required)

Help is on the way as North Carolina’s embattled state crime lab seeks to put more science into its forensic science. Under scrutiny for forensic errors and misconduct, the state crime lab is under new leadership and is overhauling its policies and procedures, and undergoing legal and scientific reviews. By 2012, the lab should gain two accreditations that are recognized by the academic community and most of its forensic scientists should have their skills tested and externally certified, said George McLeod, who as head of the State Bureau of Investigations oversees the crime lab.

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Occupy movement a practice run for next year’s Dem convention (access required)

From the SWAT team raid on protesters in Chapel Hill, N.C., to the sudden crackdown at the State House grounds in Columbia, S.C., to violent riots in California and the clearing of campers at the epicenter of the movement in New York City, the Occupy protest and the government’s pushback is intensifying. Some believe the protests are a preseason tune-up for next year’s Democratic National Convention in Charlotte and the Republican National Convention in Tampa. They expect the already-heated Occupy action to be replicated on a much larger scale during the conventions.

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Family Dollar chain hopes to benefit from Wal-Mart ruling (access required)

A class-action gender discrimination lawsuit against the Carolina-based Family Dollar chain of discount stores has been lingering in the U.S. District Court in Charlotte since 2008, but the case will reach a crossroads this week. At issue is whether the plaintiffs in Scott v. Family Dollar Stores, Inc. should be allowed to change their original complaint in the wake of the U.S. Supreme Court’s landmark ruling earlier this year in Dukes v. Wal-Mart Stores, Inc. Judge Max O. Cogburn Jr. will hear arguments Nov. 22 on the plaintiffs’ motion to amend and the defense’s motion to dismiss the class action. The fate of the case essentially hangs in the balance of Cogburn’s ruling.

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Many questions, few answers in home lawsuit (access required)

Ignorance of the law is no defense. But how about the facts? How long, for example, can a lender feign ignorance of the facts and collect on a mortgage loan after the underlying debt has been satisfied by a deed in lieu of foreclosure? The answer: As long as the borrower continues to pay, U.S. District Judge Joseph F. Anderson Jr. held recently in Martin v. American General Finance Inc., a case that aptly depicts the confusion resulting when a note and mortgage go their separate ways. In 1993, Melinda Martin and her husband bought a three-bedroom house in Winnsboro at a foreclosure sale. In 1996, they took out a mortgage with First Family Financial Services. In 1999 they executed a deed in lieu of foreclosure to First Family, which First Family then filed with the county clerk.

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Drunk-driver monitoring firm inadvertently loses customer information (access required)

Morrisville-based Monitech Inc., North Carolina’s sole provider of the breath alcohol ignition interlock devices used by some drivers convicted of drunk driving, has reported a data breach affecting 49,000 state residents. In a notice mailed to those customers and posted on the company’s website, the company disclosed that a laptop computer had been stolen from a service vehicle in New Hanover County on September 9. The computer contained the names of Monitech customers in North Carolina and other information, including addresses, dates of birth, vehicle identification numbers, and license and plate numbers. It did not, however, contain Social Security numbers, credit card numbers, bank account numbers “or other financial information typically used by identity thieves,” the company said on its website.

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N.C.’s heart-balm torts face constitutional challenge (access required)

North Carolina is one of the last places in the country where jilted spouses can sue home-wreckers, but the state’s controversial torts of alienation of affections and criminal conversation are facing a new constitutional attack. Winston-Salem attorneys John F. Morrow Sr. and John C. Vermitsky of Morrow Porter Vermitsky & Fowler argue in Filipowski v. Oliver that so-called “heart-balm” lawsuits violate the defendant’s right to free speech and privacy, and should be abolished. They represent Melissa Oliver, who is being sued by Veronica Filipowski for criminal conversation for allegedly sleeping with Filipowski’s husband, and for alienation of affections for ruining the marriage.

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4th Circuit upholds blanket ban on political donations (access required)

The 4th U.S. Circuit Court of Appeals has struck down an unprecedented constitutional challenge to a North Carolina law that bars lobbyists from giving money to political candidates seeking state office. The Nov. 7 decision in Preston v. Leake delves into the murky First Amendment implications of political contributions as gestures of free speech and follows in the wake of the U.S. Supreme Court’s landmark ruling last year in Citizens United v. Federal Election Commission.

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