From Russia....with Love

A genius named @1oneclone has made millions of American dreams come true. If only for two minutes. Watch and enjoy! http://pic.twitter.com/KKvhPuA075

— Ava DuVernay (@ava) October 29, 2017

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Tuesday News: It's Mueller time

Tuesday Twitter roundup

Let's get into the Halloween spirit:

Court delivers Halloween trick to N.C. gerrymanderers #ncpol #ncga #ncgov http://pic.twitter.com/cRJv97ehmF

— Progress NC Action (@ProgressNow_NC) October 31, 2017

Say hello to all the other nitwits in Purgatory...

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Paul Manafort and Rick Gates taken into custody

Hopefully this is just the tip of the Trumpberg:

The charges against Mr. Manafort, President Trump's former Campaign Chairman, were not immediately clear but represent a significant escalation in a special counsel investigation that has cast a shadow over the president's first year in office. Also charged was Manafort's former business associate Rick Gates, who was also told to surrender on Monday, the person said.

Mr. Gates is a longtime protege and junior partner of Mr. Manafort. His name appears on documents linked to companies Mr. Manafort's firm set up in Cyprus, to receive payments from politicians and business people in Eastern Europe, records reviewed by the New York Times show. Mr Manafort has been under investigation for violation of federal tax law, money laundering and whether he appropriately disclosed his foreign lobbying.

This is good news, but if Mueller really wants to get into money laundering, he needs to take a look at condos and apartments Trump has been selling to Russian crime-lords. That's a big, stinking mess, and one that should have already gotten Trump put behind bars. *Edited to add* Here's a link to the indictment, and it's a doozy.

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Monday News: Running scared

TRUMP TWEETS OUT DESPERATE ATTACK ON HILLARY AS INDICTMENTS LOOM: President Donald Trump expressed renewed frustration Sunday over the investigations into alleged ties between his campaign associates and Russian government officials, saying on Twitter that the "facts are pouring out" about links to Russia by his former presidential opponent, Hillary Clinton. "DO SOMETHING!" Trump urged in one of five morning tweets. Trump's tweets followed a CNN report late Friday that a federal grand jury in Washington has approved the first charges in a criminal investigation into Russia ties led by special counsel Robert Mueller. In a final tweet on the subject, Trump suggests that Russia's re-emergence into the conversation is no accident. "All of this 'Russia' talk right when the Republicans are making their big push for historic Tax Cuts & Reform. Is this coincidental? NOT!"
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Sunday News: From the Editorial pages

GENE NICHOL: PHIL BERGER RULES BY WHIM TO GAIN PARTISAN OMNIPOTENCE: State Senate leader Phil Berger and his crew have determined, apparently, that -- gerrymandering the judges’ districts; eliminating their primaries; restricting their powers of judicial review; ending public funding for their campaigns; manipulating the size of the Court of Appeals; stacking individual Supreme Court elections; and becoming the first state in a century to demand the partisan election of judges -- isn’t enough to deliver the precise courts the Republicans require. Clearing the whole offending slate and forcing them to run constant, expensive, relentless and hyper-partisan campaigns seems now to be the trick. No matter that judges take oaths to be accountable to the law and the Constitution, not to the voters. Or that our jurists would have little time for their actual work, given the demands of perpetual campaigning. Party fealty, again, is all that matters.
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Solve the mystery: Who will be arrested by Monday evening?

Choices

Paul Manafort

Micheal Flynn

Donald Trump Jr.

Jared Kushner

Smaller fish

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Saturday News: Lock 'em up

MUELLER PROBE INTO TRUMP-RUSSIA COLLUSION YIELDS INDICTMENTS FROM GRAND JURY: The first round of charges in special counsel Robert Mueller's ongoing investigation into Russian meddling in the 2016 U.S. election were approved Friday – but it's still not known what they are or who they target. A federal grand jury in Washington, D.C., approved the charges, CNN reported Friday, citing sources briefed in the matter. The network said plans were being made to take anyone charged into custody on Monday. CNN said a spokesman for Mueller's office declined to comment. The special counsel has been digging into allegations of Russian involvement in the 2016 presidential campaign since May.
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Oregon billionaire's charter school empire invades North Carolina

And Team CFA likes to keep the money in the family:

In fall of 2016 Aristotle Prep -CFA received an F from the state and failed to meet academic growth standards. This year Aristotle Prep – CFA received a D. Last year Aristotle enrollment was 150 students, compared with 550 projected when it received the charter. The Aristotle Prep – CFA and Achievement for All Children contract requires state Board of Education approval. A fundamental problem is that Aristotle’s board did not seek proposals from other management companies. It seems a sweetheart deal for Aristotle Prep-CFA was arranged by a network of TeamCFA members.

In this case, the advisory board requested a three-person panel of state Board of Education members to review the Aristotle Prep -CFA plan. The trio endorsed the plan originally, but conflict of interest concerns moved the full board voted unanimously to defer action and get a ruling from the ethics commission.

That's a pretty sweet deal if you think about it: Screw up the academic status of your school while bilking taxpayers for tuition, which then triggers an "in-house" contract to fix the problem you created. Making money coming and going. Be on the lookout for these charter school pirates sailing into your home town:

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Court appoints Special Master to review gerrymandered Legislative maps

And this isn't the Professor's first rodeo either:

Judge Catherine Eagles informed the attorneys in the order that Nathaniel Persily, who has helped draw districts for New York, Maryland, Georgia and Connecticut, would review North Carolina’s new legislative maps and possibly help the judges draw new lines for 2018. Persily will be paid $500 an hour, which the judges described as half his typical hourly rate. The filing period for state legislative races is set to begin in February.

“If any party has grounds to believe that Professor Persily has a conflict of interest which would disqualify him from serving as Special Master or is otherwise objectionable,” the judges said, the attorneys should file an objection within two business days. Any objectors may suggest a different mapmaker, the judges added.

This article corrects something I've been getting wrong for several weeks: Candidate filing for Legislative races is in February, not December, so we've got more breathing room on that. Also something to keep in mind: Persily's involvement in evaluating and potentially redrawing district lines may be limited to just a handful of races:

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Friday News: The company he keeps

DAN FOREST ATTENDS FUNDRAISER WITH SPINDALE CULT LEADERS: A photo provided to The News & Observer shows Republican Lt. Gov. Dan Forest at a fundraiser with a leader of a western North Carolina church that’s being sued by a former member who says church leaders tried to beat the “homosexual demons” out of him. Forest, who was elected to a second term last year, is a socially conservative Republican who’s expected to run for governor in 2020. The photo shows Forest standing in a living room with Robin Webster, a leader of Word of Faith Fellowship in Spindale in Rutherford County, about 70 miles west of Charlotte. Word of Faith has come under scrutiny in recent months after 43 former members told the Associated Press that church members try to expel demons using “blasting” prayers where congregants were smacked, choked, punched and thrown to the floor.
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Friday fracking video

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Republican woes are getting worse

More evidence emerged this week showing the difficulties Congressional Republicans face as they enter the 2018 cycle. A Fox News poll shows Democrats with a staggering 15-point advantage on the generic ballot (“If the election for Congress were held tomorrow, would you vote for a Democrat in your district or a Republican”). That’s consistent with […]
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Bill Brisson takes off his donkey mask and declares for the GOP

Don't let the door hit you in the ass on the way out:

Democratic Rep. Bill Brisson announced Wednesday he will change his party registration and run for a seventh term as a Republican. Democrats now hold just 45 seats in the 120-member House.

Brisson, 71, represents parts of Bladen, Sampson, and Johnston counties. He has been a Republican ally for years. At times during his career, Brisson provided Republicans with crucial votes on important bills. For example, he and four other Democrats helped Republicans override former Democratic Gov. Bev Perdue’s budget vetoes in 2011.

That tear you see slowly coursing down my cheek is one of joy and relief, so don't fret yourself over my condition.

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Thursday News: Talking trash

Republicans raised your rates

My neighbor got a letter from his insurance company this week telling him that his premium would triple and his deductible would double. He would now be paying $1500 a month for health insurance. He’s not alone. A lot of people got these notices. They can all thank Donald Trump, Congress and the Republicans in […]
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Coal Ash Wednesday: Not-so-sweet home Alabama

Power company informs Wilsonville Council and residents about "cap and leak" plan:

Tensions rose at times during Monday's Wilsonville City Council meeting, as a group of Alabama Power representatives spoke with the council members and Wilsonville residents about the company's plans to cover the 269-acre coal ash pond at the nearby E.C. Gaston Electric Generating Plant.

Wilsonville Mayor Lee McCarty and a handful of audience members asked pointed questions of the Alabama Power delegation, though many in the audience simply listened.

Thanks to an appearance by representatives of the Southern Environmental Law Center (SELC) the day before, some pretty good questions were asked. But the answers they received were somewhere between vaguely misleading and downright lies:

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Wednesday News: Voting matters

DEMOCRACY NC REPORT: 100 MUNICIPAL RACES WON BY JUST A FEW VOTES (OR ONE): A study from nonpartisan voting rights advocacy group Democracy North Carolina shows that just a handful of votes – or in some cases, a single vote – can determine who wins or loses, especially in odd-year municipal elections. Democracy North Carolina has been one of the most active groups in lawsuits and other actions opposing voter ID and other Republican-led election changes, and it also addresses issues of money in politics. It sometimes partners with the North Carolina NAACP. Democracy North Carolina analyzed November 2015 elections in the state and determined that the mayor or a town council member in 69 cities won their election by five or fewer votes.
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NC-09: Bannon’s coming

Steve Bannon is coming to North Carolina. He’s announced that he will jump into the Republican primary in the 9th Congressional District. Bannon will lend his toxic white nationalist politics to the campaign of Mark Harris in his run against Republican incumbent Robert Pittenger. Pittenger’s big mistake, it seems, was having Karl Rove come to […]
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Tuesday News: Entrenched bigotry

BERGER & MOORE REFUSE TO SETTLE LAWSUIT ON HB2.0 OUT OF SPITE FOR LGBT AND COOPER: Gov. Roy Cooper and the plaintiffs in the lawsuit — LGBT citizens and civil rights groups — asked U.S. District Judge Thomas Schroeder last week to approve a settlement that would end the litigation. But the agreement also would make it clear that transgender people can use restrooms aligned with the gender they identify with in state government buildings that Cooper controls. But House Speaker Tim Moore and Senate leader Phil Berger, who worked out a compromise with Cooper last spring on House Bill 2 and are defendants like Cooper, oppose the consent decree and wrote Monday they intend to file a motion to that effect. Meanwhile, they told Schroeder on Monday in a brief that the lawsuit against the replacement law known as HB142 should be thrown out because the plaintiffs haven't shown they've been injured by the new law.
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Tuesday Twitter roundup

This is not a bad idea...

"They should install 'FOR SALE' signs in front of every courthouse and on every judge’s bench." https://t.co/Nx9ecynTDK #ncga #ncpol http://pic.twitter.com/EgjB852oAs

— Democracy NC (@democracync) October 24, 2017

I was at a local candidates' forum last night (I'm not running this year) and four different people asked me something along the lines of, "What's going on with the judges?" I didn't even know where to start, so I covered the making them all run every two years thing, and the possible referendum to get rid of elections and do Legislative appointments. One of those people blew my mind when he said, "So, they're going to make voters struggle through a long list of judicial races, and then ask them if making appointments is a better idea, huh? It will probably work." I hadn't thought of that combination, but it makes perfect sense, considering the GOP's devious nature.

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Monday Numbers: On gold mines and shafts

Chris Fitzsimon exposes the unfairness of GOP tax "reform":

20—amount in dollars of the average federal tax cuts in 2027 for households with children earning less than $75,000 under GOP tax framework released in late September.

230,000—amount in dollars of the average tax cuts in 2027 for households with children earning $1 million or more under GOP tax framework released in late September.

If this issue merely affected income tax rates, it would be bad enough. Even Reagan-era tax cuts gave a nod to the middle class, and his efforts to minimize deficit problems targeted tax shelters for the wealthy, and not deductions everybody used. But these new tax cuts rely heavily on deep cuts to the social safety net, Medicaid in particular:

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A firestorm over nothing

The latest debacle over Trump’s response to Gold Star families illustrates why people hate politics and have lost respect for both our leaders and our institutions. Nobody behaved well, not the president, not the congresswoman, not the press, and not the partisans pushing to score political points. The woman who lost her husband and is […]
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Monday News: Toxic foxes in the hen house

SCOTT PRUITT BRINGS IN CHEMICAL INDUSTRY REPS TO HELP RUN EPA: The chemical, perfluorooctanoic acid, or PFOA, has been linked to kidney cancer, birth defects, immune system disorders and other serious health problems. So scientists and administrators in the EPA’s Office of Water were alarmed in late May when a top Trump administration appointee insisted upon the rewriting of a rule to make it harder to track the health consequences of the chemical, and therefore regulate it. The revision was among more than a dozen demanded by the appointee, Nancy B. Beck, after she joined the EPA’s toxic chemical unit in May as a top deputy. For the previous five years, she had been an executive at the American Chemistry Council, the chemical industry’s main trade association.
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Sunday News: From the Editorial pages

MARCIA MOREY: LEGISLATIVE LEADERS MAKING POWER-GRAB TO CONTROL NC COURTS: This systematic attack on North Carolina’s judiciary by the power hungry oligarchy leading the General Assembly is a disgrace. Even former state Supreme Court Justice Robert Orr, a Republican, labeled this latest initiative a “continued effort to try and intimidate the judiciary,” in an interview with N.C. Policy Watch. He found it repugnant. Step by step, bill by bill, the courts are being dangled and toyed with by legislative puppet masters regardless of the fact that they are a constitutionally separate and co-equal branch of government. This is not about better justice for North Carolinians. It is about the legislative leadership’s anger over recent court decisions declaring many of their laws unconstitutional, particularly a decision that said they were voted into power by illegal, racially gerrymandered districts.
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E.A.T.S. Guidelines for issue advocacy in the Internet age

Notes from a recent class I gave to progressive activists:

EXPOSURE: Try to reach the widest audience possible when you are advocating for a specific issue. Although their circulation has dropped considerably, even small local newspapers will reach thousands of people, and LTE’s are a great communication tool. Social media on the Internet (Facebook, Twitter, etc.) can reach even more if something you write goes viral. But be prepared for pushback.

Follow me below the fold for more discussion on this topic:

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Saturday News: It's popcorn time...

After dark

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Bigoted, uninformed, and irredeemable: The demagogue Dan Forest

He makes Tami Fitzgerald seem reasonable in comparison:

Governor Cooper's Executive Order once again opens the bathroom stall for those who would seek to do women and children harm while falsely claiming they are transgender. While I take at face value the Governor's intent to help transgender people use the bathroom of their identity, his order creates a legal loophole that will be exploited by non-transgender pedophiles, stalkers and perverts. All bathrooms at state rest areas, parks and museums will now be fertile ground for sexual deviants who will falsely claim to be transgender to gain protected access to our women and children.

This is from his official page, not his personal or campaign stuff. In other words, you and I are paying for this hyperbolic nonsense, this monster-under-the-bed immature fear-mongering. James is right, we need to do everything in our power to bring this bible-thumping televangelist down on his knees and out the door.

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Reckless with our democracy

The GOP in North Carolina is in a hurry. You would think people serving in a body that was elected in unconstitutional districts would be cautious about how quickly they move. Not the Republicans in this state. They have all the hubris they brought to power when they first took control with veto-proof majorities in […]
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Friday News: It's called homicide

Friday fracking video

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The dangers of resistance organizing online

Do not allow yourself to be hijacked:

The Russian troll farm suspected of trying to disrupt U.S. elections last year apparently infiltrated Charlotte during racial protests last year, BuzzFeed News reports. The online news site says the St. Petersburg-based Internet Research Agency recruited U.S. activists to help stage protests in order to help divide the nation ahead of the 2016 elections.

Conrad James of the Raleigh nonprofit Living Ultra-Violet was among four activists who told BuzzFeed they never suspected they were being recruited by the Russians.

A good rule of thumb: If something seems too good to be true, it probably isn't true. That goes for fraud in general, and not just political stuff. The weird (and disturbing) part of this story is it wasn't just online shenanigans, there were a couple of flesh and blood perpetrators involved:

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Thursday News: The equality Governor

ROY COOPER TAKES STEPS AGAINST TRANSGENDER DISCRIMINATION: Gov. Roy Cooper said Wednesday that transgender people will be able to use public bathrooms that correspond with their gender identity under a proposed settlement of a lawsuit that originated as a challenge to North Carolina’s controversial House Bill 2. Challengers had continued their lawsuit after legislators passed and the Democratic governor signed a law this spring replacing HB2, the law commonly known as the “bathroom bill.” But now the challengers are willing to drop the suit if a federal judge signs off on the proposed order that they submitted Wednesday along with Cooper, his Cabinet secretaries and state Attorney General Josh Stein. The proposed order says that under House Bill 142, “transgender people are not prevented from the use of public facilities in accordance with their gender identity.”
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Congressional roundup

North Carolina doesn’t like to be left out of the political spotlight, even in years when we don’t seem to have any high profile races. Next year is a blue moon election when we have no statewide council of state or federal races at the top the ticket. Historically, these elections have had record low […]
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Just what we need, another Berger sizzling on the political grill

Wednesday News: Banana Republic

Polls show Democrats in a strong position. What could go wrong?

A new CNN poll shows the political environment getting tougher for Republicans as we head into the final months of 2017. On the generic ballot, Democrats hold a 51% to 37% advantage. Donald Trump is underwater by 20 points with only 37% approving of the way he’s handling the presidency and 57% disapproving. CNN’s headline […]
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Tuesday News: Narcissist-In-Chief

TRUMP'S CLAIM THAT MOST PRESIDENT'S DON'T CALL FAMILIES OF FALLEN SOLDIERS VIGOROUSLY REFUTED: For U.S. presidents, meeting the families of military personnel killed in war is about as wrenching as the presidency gets. President Donald Trump's suggestion Monday that his predecessors fell short in that duty brought a visceral reaction from those who witnessed those grieving encounters. "He's a deranged animal," Alyssa Mastromonaco, a former deputy chief of staff to President Barack Obama, tweeted about Trump. With an expletive, she called Trump's statement in the Rose Garden a lie. Trump said in a news conference he had written letters to the families of four soldiers killed in an Oct. 4 ambush in Niger and planned to call them, crediting himself with taking extra steps in honoring the dead properly. "Most of them didn't make calls," he said of his predecessors. He said it's possible that Obama "did sometimes" but "other presidents did not call."
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Tuesday Twitter roundup

Happening this morning:

.@timmoorenc tells members if vote fails to override, they will visit Senate's extended adjournment. If passes, they go home #ncga #ncpol

— Melissa Boughton (@mel_bough) October 17, 2017

We're almost done with the 6th year of Republican rule in the General Assembly, and the progress they've made in destroying democracy is enough to take your breath away.

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Brainwashed

When I was far too young, I watched The Manchurian Candidate starring Frank Sinatra and Angela Lansbury at a friend’s house back when television didn’t have too many choices and Saturday afternoons showed old movies. The movie disturbed me the rest of my life. One scene, in particular, left me with nightmares. A group of […]
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Monday Numbers: The devastation of Trump's attack on ACA subsidies

No matter how you slice it, this is incredibly bad for most Americans:

25—percentage increase projected by the Congressional Budget Office in health premiums for medium-cost plans on the ACA health exchanges when cost-sharing subsidies under the heath care law are eliminated.

200 billion—amount in dollars of the increase in the federal budget deficit over the next 10 years the CBO projects when cost-sharing subsidies under the Affordable Care Act are ended.

1 million—number of Americans the CBO projects will lose coverage when cost-sharing subsidies under the Affordable Care Act end because of no insurance carriers in their markets.

For every action there's a reaction, and sometimes that reaction is much greater than the action, and not just "equal and opposite." The domino effect from pulling even one of the critical elements out of the ACA could be catastrophic, and you can look to NC's refusal to expand Medicaid as proof if you need it.

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Monday News: Voodoo economics

TRICKLE-DOWN REDUX: TRUMP ADMIN CLAIMS CORPORATE TAX CUT WILL BOOST FAMILIES: By slashing corporate tax rates, the Trump administration said Monday, the average U.S. household will get an estimated $4,000 more a year. This stunning 5 percent increase is likely to be met with skepticism from tax experts and Democratic lawmakers. Separate studies, including a 2012 Treasury Department analysis, found that the vast majority of any savings would go to investors, making it unlikely to push up wages as much as the administration has argued. The administration removed the 2012 analysis from the Treasury Department's website after releasing its tax framework last month with Republican congressional leaders.
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Sunday News: From the Editorial pages

TILLIS' "TRANSFORMED" NORTH CAROLINA A ROSY FANTASY: Sen. Thom Tillis so desperately wants to make North Carolina a red state he’s taken to wearing rose-tinted glasses. Tillis, in an op-ed for the Wall Street Journal, discusses tax cuts he helped ram through the General Assembly while he served as House speaker. Readers perusing the piece could be forgiven if they came away thinking the former state House speaker had paved the streets with gold, made public school teachers’ supply closets overflow with resources, given state workers big raises, ended waiting lines at the DMV, slashed costs for university students and made sure everyone had easy and affordable access to health care. While Tillis claimed he held off hordes of special interest lobbyists seeking special tax breaks in his so-called tax reforms, the truth is he worked hand-in-hand with the business lobbyists to deliver a huge corporate tax cut that hasn’t stimulated the economy, nor led to further investment.
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Saturday News: Justice in action

Dale Folwell jumps on the anti-Obamacare bandwagon

Because of course he did:

The HIT is an Obamacare tax on health insurance premiums designed to help offset the cost of the tax credits for ACA exchange enrollees. Recognizing the negative impact the tax was having across the nation, Congress worked across the aisle in late 2015 to pass a bipartisan one-year moratorium on the tax for 2017, saving the health care system $21.4 billion.

Republicans were expected to tackle the HIT through the repeal of the ACA. The House-approved measure to repeal and replace the failing law and the two main Senate bills all included provisions to end this irresponsible tax. But, unfortunately, congressional lawmakers weren’t able to pass the legislation.

At its core this is a GOP "divide and conquer" tactic. Without the HIT, the funding for subsidies will disappear, immediately followed by the subsidies themselves. And millions of Americans will no longer be able to afford plans offered through the ACA Marketplace. As far as Folwell's grossly inaccurate claim about the ACA being a "failing law," it's actually he and other Republicans who are making it fail. And they will be responsible for the deaths of thousands of North Carolinians in the long run, so before any of you braniacs at SEANC decide to pat him on the back for this, step back and look at the bigger picture.

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School profiteers

Little is more disturbing than watching Republicans privatize public education. They’re turning low-performing schools over to campaign donors. It won’t work out well. The GOP spent years pushing the false notion that our schools are failing. They’re not. Like every state in the nation and probably every country in the world, some schools do better […]
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Meadows attempts to spread his disease to Democrats

And they need to run like scalded dogs:

In a bid to help shape and build support for the tax package, the North Carolina Republican has been reaching across the aisle to a handful of moderate Democrats, he told The Hill in an interview. The outreach includes Rep. John Delaney (Md.), who has said he's running for president in 2020, and Rep. John Garamendi, the former California insurance commissioner and lieutenant governor.

Meadows's top ally, former Freedom Caucus chairman Jim Jordan (R-Ohio), has taken part in many of those informal, bipartisan discussions. A number of skeptical, moderate Republicans could peel off from the GOP tax-reform bill, so Meadows and Jordan are looking to make up for those losses with Democratic votes.

Oh, hell no. If those Democrats truly are interested in coming up with some bi-partisan approach that will give them some leverage on this issue, they need to deal with a genuine moderate Republican (if they can find one) and not a Tea-Party megalomaniac like Mark Meadows. Seriously, this dude would shut down government and throw us into another deep recession if he thought it would give him half a point in the polls and an extra five minutes in front of a camera. And while this idea might look good on paper:

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Friday News: Special Master

JUDGES ASK FOR LIST OF THREE POTENTIAL INDEPENDENT MAP-MAKERS IN GERRYMANDERING CASE: Federal judges on Thursday asked attorneys for North Carolina lawmakers and challengers of election maps adopted last month to agree on a list of three people or organizations who could draw new districts in case they rule against legislators. The order requesting the names by next week came almost an hour after a hearing in which the judges raised many questions about the intent of lawmakers when they adopted new lines for state House and Senate districts last month after being ordered to correct unconstitutional gerrymanders. "In order to avoid delay should the court decide that some or all of the plaintiffs' objections should be sustained, the parties are directed to confer and to submit the names of at least three persons the parties agree are qualified to serve as a special master," the order states.
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Friday fracking video

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NC Business Court Rules On What Constitutes An "Arbitration"

You've probably never had to decide what it means to agree to arbitrate.  Usually, there is a written provision that references the AAA Rules and includes a consent to AAA's procedures as to the appointment of the arbitrator(s) and the conduct of the procedure. And most usually, the word "arbitration" is used in the provision.

Lately, however, the NC Business Court wrestled with two cases in which there was no provision referencing the AAA, no mention of the words "arbitrate" or "arbitration" but only a provision deferring resolution of some financial issues to an accountant.

The more recent one is Martin & Jones, PLLC v. Olson, 2017 NCBC 85.  The earlier case (unpublished) is Post v. Avita Drugs, LLC.  It is worth it to me to point out that I would not have known about the Post decision if it wasn't referenced in the Martin & Jones decision.  Back before the Business Court revamped its filing system, my software program would have caught the Post decision.  Now?  Not possible.  I hate that new filing system.  Maybe those of you filing cases in the Business Court like it.

Anyway, having vented and now feeling a little better, I can turn to the Post decision.  Post had sold his business to Defendant Avita.  The purchase price included an deferred earnout payment based on "six times (6x) the difference between (a) Adjusted EBITDA and (b) $925,000.

After the sale was completed, Post disputed Avita's calculation of Adjusted EBITDA.  He contended that Avita had depressed the amount of the Adjusted EBITDA by using improper accounting standards.

A Dispute Can Be "Arbitrated" By An Accountant If The Procedure Resembles "Classic Arbitration"

The Stock Purchase Agreement specified how a dispute over Adjusted EBITDA should be resolved. It said that:

the determination of Adjusted EBITDA shall be submitted promptly to [an] Independent Accountant for determination in accordance with this Agreement and the determination of the Independent Accountant shall be binding and conclusive for the purposes of this Agreement absent manifest error by the Independent Accountant” (the “Independent Accountant Process”).

After Post sued Avita, Avita moved to stay the case pending the resolution of the "Independent Accountant Process."  It made that Motion per G.S. §1-569.7, which is a motion to compel or stay arbitration.

As Judge Conrad concisely framed the issue, it was "whether [the] independent accountant process is an 'arbitration.'" Order ¶2.  You might think that the Federal Arbitration Act, which governed that issue, would contain a definition of "arbitration,"  but it doesn't.  Judge Conrad, looking to federal court decisions on whether an agreed dispute resolution procedure fit the definition of arbitration, held that:

courts routinely consider 'how closely the specified procedure resembles classic arbitration.' Fit Tech, Inc. v. Bally Total Fitness Holding Corp., 374 F.3d 1, 7 (1st Cir. 2004).  The question is whether the agreement exhibits the 'common incidents of arbitration': a final determination by 'an independent adjudicator,' 'substantive standards,' 'and an opportunity for each side to present its case.' Id. at 7.

Order ¶13 (emphasis added).

Judge Conrad found that the terms setting out the Independent Accountant Process met the standard of "classic arbitration."  The parties had agreed to a "binding and conclusive" determination.  The agreement required the application of "substantive standards" via a definition in the Stock Purchase Agreement of how Adjusted EBITDA should be calculated.  Furthermore each side was afforded the opportunity to present whatever written materials it deemed relevant.  Order ¶¶14-15.

This Procedure Did Not Resemble "Classic Arbitration"

The result was different in the second Business Court decision, Martin & Jones, which was a dispute among former law firm partners regarding the amount to be paid to the Plaintiff for his retirement benefits per the law firm''s Operating Agreement.  That agreement, like the agreement in the Post case, called for the involvement of an accountant if there was disagreement.  It said that:

in the event of a dispute among the Members with respect to the determination of the net cash flow, net profit, net losses or capital account balances of the Law Firm, an independent certified public accountant shall be engaged by the Law Firm at the Law Firm’s expense whose computation of such items shall be binding upon all the Members.

Op. Par. 15.

The two flaws in the argument that this accountant-oriented provision should be treated as an arbitration as pointed out by Judge McGuire were that:

the Operating Agreement does not set forth any 'substantive standards' such as procedural guidance for selecting the independent CPA,or the method by which the independent CPA will make a determination. Furthermore, the Operating Agreement does not state whether, or how, each side will have the 'opportunity  . . .  to present its case.'

Op. Par. 19.

So if you want a CPA to be acting as the arbitrator of a dispute arising under a document that you drafted, set the appropriate rules of a "classic arbitration."

 

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History schmistory: John Grisham gets permission to remove Chapel Hill cottages

Thursday News: Absolutely no shame

TRUMP COMPLAINS ABOUT HAVING TO HELP STORM-RAVAGED PUERTO RICO: President Donald Trump is criticizing hurricane-ravaged Puerto Rico and says the government can't keep federal aid there "forever." Trump criticized the U.S. territory in a series of tweets Thursday. He says there is a "total lack of accountability" and "electric and all infrastructure was disaster before hurricanes." The president adds: "We cannot keep FEMA, the Military & the First Responders, who have been amazing (under the most difficult circumstances) in P.R. forever!" The House is on track to back Trump's request for billions more in disaster aid, $16 billion to pay flood insurance claims and emergency funding to help the cash-strapped government of Puerto Rico stay afloat. Hurricane Maria struck Sept. 20. It has killed at least 45 people, and about 85 percent of Puerto Rico residents still lack electricity.
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Harvey Weinstein and the protected class

Watching the Harvey Weinstein sexual abuse story play out shows what’s wrong with our society. It’s a story of power and corruption to be sure, but it’s also about privilege and elitism. The coverage illustrates an out of touch corporate media and the rush to politicize every aspect of our culture. No wonder so many […]
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Wilmington resident files potential class-action lawsuit over GenX

Sometimes waiting for official actions is not enough:

Filed in Federal District Court in Wilmington on behalf of city resident Brent Nix, the suit seeks health monitoring for illnesses that may be caused by GenX and similar contaminants released into the Cape Fear River from Chemours’s plant 160 km upriver in Fayetteville, N.C. In addition, it seeks compensation for lost property value on behalf of Nix and as many as 100,000 additional plaintiffs should the court certify the case as a class-action suit.

According to the suit, “defendants have negligently and otherwise acted to cause toxic chemicals to be released from the Fayetteville Works Site, which then traveled to and contaminated and damaged the properties and household water supplies of plaintiff and class members, and exposed them to toxic chemicals.”

Go get 'em, Brent. These corporate polluters have been playing (and mostly winning) the game of profits outpacing the legal costs of bad behavior for way too long, and civil court may be the only way to force them into a "Come to Jesus" moment to change their ways.

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On International Day of the Girl, recalibrate your thinking

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Wednesday News: Too close to call?

MCFARLANE LIKELY HEADED TO RUNOFF WITH FRANCIS IN RALEIGH MAYOR'S RACE: Raleigh voters will likely return to the polls next month to elect a mayor. With all precincts reporting, incumbent Mayor Nancy McFarlane leads challenger Charles Francis by about 6,200 votes. But it wasn’t enough to win a majority that is required to avoid the possibility of a runoff Nov. 7. McFarlane won about 48.45 percent of the 52,449 votes cast, while Francis won about 36.67 percent. A third candidate, Paul Fitts, won about 14.76 percent. McFarlane, an unaffiliated candidate who is seeking her fourth two-year term, has won easily in the past, garnering more than 61 percent of the vote in 2011, 72 percent in 2013 and 74 percent in 2015. But this is the first time McFarlane has faced a Democratic challenger. She has been endorsed by the Wake County Democratic Party in previous elections for mayor, but this year the party backed Francis, a registered Democrat.
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North Carolina’s surly electorate

A series of recent polls show a surly electorate in North Carolina. They don’t like Donald Trump and they think the country is heading in the wrong direction. That’s bad news for incumbents, the majority of whom are Republicans. According to polls by Elon University, High Point University and Spectrum News (formerly Time-Warner), Donald Trump […]
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Public Transit Participation Survey

Choices

I ride public transit frequently

I only ride during special events (Eno Festival, State Fair, etc.)

Public transit is not available, but I would ride if I could

Public transit is available, but I don't use it

Public transit is not available, and I wouldn't use it if it were

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Tuesday News: The fix is in

OREGON BILLIONAIRE BEHIND THE PUSH FOR CHARTER SCHOOL TAKEOVERS IN NC: A school network founded by a wealthy Oregon resident is expanding quickly in North Carolina. John Bryan founded the charter network TeamCFA, which has 13 schools in North Carolina – more than in any other state. Arizona has four TeamCFA schools, and Indiana has two. In a letter posted to the network’s website in April, Bryan said his commitment of “significant economic resources” – contributions to politicians and nonprofit “social welfare” groups, and the engagement of investment advisers and others – helped win legislative approval of the controversial North Carolina law that will have charter operators take over up to five low-performing public schools. One goal, he wrote, was to “inculcate my belief in the libertarian, free market, early American Founder’s principles” into both the foundation and the individual schools.
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Tuesday Twitter roundup

The most important thing many of you can do today:

Reminder of local primary elections today. Don't forget to #vote #Durhamvotes #ncpol #Election2017 https://t.co/nMbS52xYyD

— sharlini (@Sharlini_NC) October 10, 2017

I've been following the early vote daily numbers in some of these primaries, and the turnout has been less than stellar. If you don't vote in the primary, you may show up at the general election and *not* see the person or persons you were rooting for. Don't let that happen.

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DEQ rejects permit application for Atlantic Coast Pipeline

Unfortunately, this is just one part of the process:

Gov. Roy Cooper’s administration has rejected an environmental plan by Duke Energy and three other energy companies to build an interstate pipeline to carry natural gas from West Virginia into North Carolina.

The letter of disapproval from the N.C. Department of Environmental Quality is the first decision on the proposed Atlantic Coast Pipeline from any state or federal government agency in the three states the project would traverse. Duke Energy is also expecting a decision this month from the Federal Energy Regulatory Commission as to whether the $5 billion pipeline project is necessary.

If you'll think back to the Stop Titan days, you'll remember their permits were rejected before they were approved, so don't be surprised if this decision gets reversed in the near future. But it does demonstrate that DEQ is closely scrutinizing the issue, and isn't going to lay down and play dead.

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Only fair maps can end the GOP assault on government

The Republicans had barely finished their vote to authorize plastic trash when leadership announced another session. I speak for most of us when I say: Stop. But Berger, Moore and Lewis will not yield to public opinion. Only fair maps can end their long attack on the common good. I hardly need recount what they’ve […]
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Michigan judge awards joint custody to rapist

Rumors of a cease-fire in the War on Women are grossly exaggerated:

Christopher Mirasolo, 27, of Brown City was awarded joint legal custody by Judge Gregory S. Ross after DNA testing established paternity of the child, according to the victim’s attorney, Rebecca Kiessling, who is seeking protection under the federal Rape Survivor Child Custody Act. A hearing is scheduled for Oct. 25.

“This is insane,” said Kiessling, who filed objections Friday with Ross. “Nothing has been right about this since it was originally investigated. He was never properly charged and should still be sitting behind bars somewhere, but the system is victimizing my client, who was a child herself when this all happened.”

I'll have to admit, when I first saw reports of this on Facebook, I assumed it was somewhere between Fake News or a wildly-misleading headline. But it's true. She was only 12 years old when she was raped, and it wasn't simply a statutory thing, she was kidnapped and confined. The strange thing is (okay, the whole damn thing is strange), the rapist didn't file for custody, this massive injustice was the result of conservative efforts to punish those seeking public assistance:

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A brief history of local terror

Civil Rights leader Jesse Jackson was back in North Carolina this week for the NAACP convention. He was student body president at North Carolina A & T, graduating in 1964. Jackson reflected on his time in North Carolina, in the midst of the Civil Rights Movement, in a conversation with News & Observer editor John […]
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Monday News: No refuge here

Sunday News: From the Editorial pages

LEGISLATIVE LEADERS SEEK TO TURN NC INTO BANANA REPUBLIC: There are regimes in the world that, barring disasters, cancel elections. They are derisively called Banana Republics, run by juntas whose strongman rulers aren’t quite sure they’ve rigged the voting to come out in their favor. Unfortunately these days, we don’t have to look beyond our borders – or even our state – to see this kind of undemocratic behavior. Senate Leader Phil Berger, House Speaker Tim Moore, House Rules boss David Lewis are the junta and North Carolina is a banana republic. They are cancelling the 2018 judicial and district attorney primaries because their efforts at rigging the elections through their latest gerrymandering scheme might not completely do the trick. Primaries for state Supreme Court and Court of Appeals will also be cancelled – even though they’re statewide votes and not connected with any redistricting.
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Yes, the Affordable Care Act is still in place

But Trump is making it more difficult to enroll:

You might not know it from the political rhetoric, but the Affordable Care Act is still the law. Every American is still legally required to carry health insurance or face a tax penalty of at least $695. There will still be plans available on the exchanges in every county, and the federal government will still provide the subsidies that help more than 9 million people afford their premiums.

But while much is the same, the actual sign-up process will look very different. The Trump administration has made an array of changes that, taken together, will make the process more rushed and more confusing, consumer advocates and insurance experts told STAT.

And you can bet your bottom dollar Trump and his GOP cronies in Congress will continue to chew on this like rats nibbling on an electric cable. Aside from radically shortening the window of opportunity for enrollment, they're shutting the site down nearly every Sunday during this year's period:

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Saturday News: The real handmaid's tale

TRUMP ALLOWS MORE EMPLOYERS TO NOT PROVIDE BIRTH CONTROL TO FEMALE EMPLOYEES: President Donald Trump is allowing more employers to opt out of providing no-cost birth control to women by claiming religious or moral objections, issuing new rules Friday that take another step in rolling back the Obama health care law. Employers with religious or moral qualms will also be able to cover some birth control methods, and not others. Experts said that could interfere with efforts to promote modern long-acting implantable contraceptives, such as IUDs, which are more expensive. The Trump administration's revision broadens a religious exemption that previously applied to houses of worship, religion-affiliated nonprofit groups and closely held private companies. Administration officials said the new policy defends religious freedom. In addition to nonprofits, privately held businesses will be able to seek an exemption on religious or moral grounds, while publicly traded companies can seek an exemption due to religious objections.
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The damage continues

The General Assembly’s never-ending session continued doing damage to the state this week. Republicans sent unfunded mandates that will hurt counties and schools. They continue  micromanaging the Attorney General’s office to spite Democrat Josh Stein and leave the rest of us less safe. They overrode Governor Roy Cooper’s veto of a pollution protection bill that […]
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Your apt metaphor of the day

Friday News: Democracy on the wane

NC GOP MAY BE PLANNING TO GET RID OF VOTER-ELECTED JUDGES: Not only does the plan do away with primary elections, it delays the period in which judicial candidates would formally sign up to run for office until June — four months after the existing schedule. The plan is included in a bill that mostly deals with easing ballot access requirements for third parties as well as for unaffiliated candidates. It also lowers the threshold for a primary candidate to win his or her party's nomination from 40 percent of the primary vote to 30 percent. But it was the changes to the election schedule that elicited the most comments. “The delay of the primary could indicate a strong possibility that we’ll be voting on whether to have a constitutional amendment to have merit selection of judges in January,” said Morey, who opposed doing away with judicial primaries. “What I think is the merit-based selection is a guise for legislative appointment of judges.”
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Friday fracking video

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The unmitigated arrogance of the power-mad NC GOP

Stripping more authority from Governor Cooper:

NB: #ncga Adj. rez sets date of 10/17/17, giving Cooper 10 days to decide on vetoes instead of 30. https://t.co/rUMJp6yMKd #ncpol #wral

— WRAL Gov't Coverage (@NCCapitol) October 5, 2017

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The voice of conservative rage

Too many Republicans, especially in the South, thirst to restore an intolerant past. Phil Berger gets this, and as he builds toward a possible governor’s run, he’s decided to capitalize on the force of their resentment. Viciousness is hardly new to Berger. Years of rhetoric reveals a figure comfortable with the nastiest impulses of conservatism. […]
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Counting the costs of substance abuse in NC communities

More funding is desperately needed from state government:

The number of children in the Person County foster care system continues to rise, primarily due to substance abuse, county officials said this week. This spring, there were 82 children in the custody of Person County Department of Social Services, and 55 were displaced due to a caregiver’s drug or alcohol use.

“Substance abuse is not just affecting people using drugs,” Person County DSS Director Carlton Paylor said during an event in Roxboro on Tuesday that was billed as a “mental health town hall” and attended by about 40 people. “It’s affecting the kids,” he said. “This is like a generational curse. It keeps going on and on and on.”

For those of you who haven't been touched by this crisis (your numbers are likely dwindling), consider yourself lucky. Most of our 100 counties have little or nothing in the form of treatment facilities for substance abuse, putting even more of a burden on what few rural hospitals still manage to operate. Something as intense as a 4-week rehab program requires a 50+ mile travel, but even worse, waiting several weeks for a bed to become available. And that wait, more than anything else, often ends up being a fatal roadblock. And here's an aspect that needs to be remembered:

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Yes, Roy Moore’s a racist

Alabama GOP Senate nominee Roy Moore is a racist. He doesn’t try to hide it though I’m sure he would deny it. He shared blatantly racist memes on a Facebook page that he and his supporters would probably claim are just legitimate opinions. They’re not. They’re meant to denigrate African-Americans by painting all black citizens […]
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Thursday News: Tying his hands

AFTER DEEP BUDGET CUTS TO HIS STAFF, JOSH STEIN NOW TOLD HE CAN'T SHIFT WORKLOAD: State lawmakers who targeted Attorney General Josh Stein earlier this year with surprise budget cuts now have a proposal to dictate how the Democrat handles appeals of criminal cases. In August, after $10 million was cut from his budget, Stein announced that he had eliminated 45 positions in his office, and because of that he said he would have to shift work on some criminal appeals to district attorneys’ offices across the state. Now a proposed mandate tucked into a larger budget-related bill would prohibit Stein from farming that work out to anyone outside his office, and the Republican lawmakers behind it said on Wednesday that it was because they had heard from many district attorneys that they were not equipped to take on the work. District attorneys and law enforcement organizations urged lawmakers earlier this year to reconsider the cuts to Stein’s office.
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The NRA has invested over ten million in Burr & Tillis

Don't expect any sensible gun regulations any time soon:

NRA groups have spent nearly $7 million on behalf of Burr. That includes $5.6 million that NRA groups spent last year against his Democratic opponent, Deborah Ross. That was more than the NRA spent against any candidate with the exception of Hillary Clinton.

And Tillis has gotten $4.5 million in help, including independent expenditures against his 2014 opponent, then-incumbent Democrat Kay Hagan.

Considering there have been 273 mass shootings (4 or more people shot) in the last year, it's not a huge stretch to describe this as blood money. You know what else this signifies? The NRA was scared shitless they could lose these statewide races in North Carolina. You know, like they did when Roy Cooper retook the Governor's mansion for the Democratic Party. Think on that.

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Pittenger leans on Karl Rove for fundraising shortfall

Brother Jerry Williamson has the low-down:

Pittenger's seat had already been targeted by the Democratic Congressional Campaign Committee (DCCC), and it looks as though solar energy financier and Marine veteran Dan McCready is the DCCC pick (although there are a couple of other Democrats in the race, including the man who lost to Pittenger in the general election of 2016).

The Karl Rove appearance looks like flop sweat to Erik Spanberg. He writes, "A Republican insider told me Tuesday that, while Rove remains a reliable draw for GOP donors, he also represents the anti-Trump wing of the party. He makes it hard for Pittenger to say, ‘I’m a Trump Republican’ because Rove has been so critical of President Trump.” If Pittenger makes it through the primary with Harris, he's going to be potentially damaged goods in the general elections of 2018.

Maybe, but I've got two words that make that last part a little iffy: Luther Strange, who lost the Alabama GOP US Senate Primary by almost ten points, after being endorsed by Trump. Don't get me wrong, I think Dan McCready is a fantastic candidate, and would cut the margin closer than anybody else. But Pittenger beat Christian Cano 58% to 42%, even after a bitter and nail-bitingly close Primary with *reverend* Mark Harris.

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Vietnam and other memories

Watching the Ken Burns and Lynn Novick Vietnam documentary on PBS last week brought back a flood of memories, not just of the war but of that whole disruptive era. As a kid, we only had one TV and every night, it was turned to the news, first the local news on WSOC in Charlotte […]
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Wednesday News: Empty chair speaks volumes

Rep. Jimmy Dixon criticizes DEQ for problems he helped create

Slash their staff, and then blame them for getting behind:

From the get-go, the committee meeting felt contentious and at times, contradictory. Rep. Jimmy Dixon, a Republican from Duplin County, declared there would be no discussion of the Department of Environmental Quality’s financial straits, noting that “the media and other people for political purposes have made funding part of this issue.”

But there’s no getting around the expense and future financial commitment that would be required to monitor and fix the state’s surface water and drinking water pollutions. The budget cuts inflicted upon DEQ are now legendary, although Dixon seemed unfazed by that fact. “There is a 41 percent backlog in permit reviews,” Dixon said, addressing Assistant DEQ Secretary Sheila Holman. “Does the department have an ongoing internal efficiency analysis?” Dixon: “I’m a farmer and know efficiencies.”

Uh, no. If you were that damn efficient, you wouldn't need Federal farm subsidies and fat checks from Big Ag lobbyists and lawyers. I get so tired of these Republicans dodging the questions about their de-funding of DENR/DEQ. If you want a lot of the dirty details, you'll find them in this (massive pdf) Legislative efficiency report from 2014, which explores in-depth many of the lost positions. But it's depressing as hell, so you may want to skip it.

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Stopping the slide from democracy to autocracy

Today, the Supreme Court hears arguments that could change redistricting forever. The court hears a Wisconsin case in which challengers argue that partisan gerrymanders are unconstitutional, while the state says that the redistricting maps are matter that should be left to them. The case affects North Carolina since our state is among the most heavily […]
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Tuesday News: A game-changer

GERRYMANDERING CASE IN FRONT OF U.S. SUPREME COURT COULD ALTER POLITICAL LANDSCAPE: On Tuesday, the U.S. Supreme Court is scheduled to hear arguments in a Wisconsin case that could reshape Congress and state legislatures if a majority of justices embraces a new formula to identify legislative districts that unfairly favor one political party. In Gill v. Whitford, the high court will examine what constitutes partisan gerrymandering in redistricting, the once-a-decade re-drawing of legislative boundaries to reflect demographic changes revealed in the census. With redistricting looming as the 2020 census nears, statehouses nationwide will be watching the case for guidance on how to create electoral maps that pass legal muster while retaining the legislative advantage of the majority party.
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Tuesday Twitter roundup

Obfuscation has a new mascot:

Senator Richard Burr won't release the Russian-linked Facebook ads to the public https://t.co/A5n0Cj5mxq http://pic.twitter.com/dP2C5e2Xko

— CNN Politics (@CNNPolitics) October 2, 2017

It's not about security, it's about trying to minimize the political damage:

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R.I.P. Tom

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Now is exactly when we should talk about preventing gun violence

Contrary to the views of too many pundits, now is exactly the time to talk about gun control. We’ve awakened to the worst mass shooting in American history. At this point we don’t know much about the shooter except that he’s a dead white guy who opened fire on a crowd of concert goers from […]
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Monday Numbers: Taking care of the 1%

Chris Fitzsimon lays bare the highway robbery:

5—number of days since the White House and Republican Congressional leadership released the outline of their major tax reform proposal (“GOP tax plan would provide major gains for richest 1%, uneven benefits for the middle class, report says, Washington Post, September 29. 2017)

30—percentage of taxpayers with annual incomes between $50,000 and $150,000 who would see a tax increase under the plan (Ibid)

80—percentage of tax benefits in the Republican tax reform plan that would go to the top one percent of taxpayers (“A Preliminary Analysis of the Unified Framework, Tax Policy Center, September 29, 2017)

It's quite possible Trump actually believes this will be a net benefit for the middle class, but that's only because he has no idea what the criteria is for that category. He probably thinks the middle class are people who can afford a $200,000 membership fee at Mar-A-Lago, but can't afford more than 5-7 maids and gardeners for their own home. And once again, I find it hard to grasp why people would trust a man who has borrowed a lot more money than he's paid back, and managed to turn filing bankruptcy into an art form. The writing's on the wall with this issue:

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Monday News: Beyond horrific

Sunday News: From the Editorial pages

RICHARD BURR'S OBSTINANCE MAY HELP FARR BUT DOESN'T FURTHER JUSTICE: Burr blocked two very qualified African-American judicial candidates for years. But when Trump was elected, he heartedly backed a lawyer who has defended the most racially segregated legislative and congressional districts in the nation. What does all this say about Sen. Burr’s motivations? What conclusions should we reach? He’s a career politician – 22 years in Congress -- whose profile is so below the radar that last month a quarter of the state’s voters were unable to say if he’s doing a good job or not. During the 2016 campaign Burr announced it would be his last – supposedly signaling that lame-duck status would grant him independence from partisan rigidity and the big-money right-wingers. He’s led us to expect better. But his positions on the Graham-Cassidy health bill and this critical judicial appointment don’t measure up to his own expectation.
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