Sunday News: From the Editorial pages

CONSUMERS SHOULDN'T PAY FOR DUKE ENERGY'S COAL ASH BUNGLES: As a regulated monopoly, Duke Energy has an obligation to produce reliable, affordable and safe power while still being guaranteed a reasonable profit for the company and its shareholders. It is up to the state Utilities Commission to determine that balance. When the company fails to meet one of the three obligations it has to its customers, it isn’t the fault of the ratepayers, nor should it be their responsibility to pay. The Utilities Commission shouldn’t reward Duke for the failure to do its job, nor should its ratepayers, who have no other choice for electric service, be forced to subsidize that failure. No matter what the rate increase the Utilities Commission may approve, it should not include costs of dealing with Duke’s coal ash mistake.
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After dark

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In-depth analysis of Senate GOP Tax Scam

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Saturday News: When fairness hurts the unfair

NC REPUBLICANS NOT HAPPY WITH PROPERLY RE-DRAWN MAPS: The Stanford University professor hired to draw North Carolina election maps for a panel of federal judges weighing a gerrymandering case has submitted a plan that quickly drew criticism from Republican lawmakers and praise from challengers. Nathaniel Persily, a law professor tapped in November to review state House and Senate maps adopted by legislators ordered to correct unconstitutional racial gerrymanders, on Friday submitted proposed election district changes in Cumberland, Guilford, Hoke, Mecklenburg, Wake, Bladen, Sampson and Wayne counties. Persily’s maps only redrew a fraction of the state’s 170 legislative districts, mostly in urban counties that tend to favor Democrats. Most of the districts drawn in August favor Republicans, according to a News & Observer analysis.
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NC Business Court On Conversion Of Electronic Data

The Defendant in SQL Sentry, LLC v. ApexSQL, LLC, 2017 NCBC 105 was alleged to have copied the Plaintiff's software program which was designed to make "resource intensive T-SQL queries. . . in the Microsoft enterprise database platform, SQL Server."  Op. Par. 5.  (Ask your IT person).

Adding insult to injury, the Defendant marketed the program it had copied under the same trademark used by the Plaintiff  to sell its competing program ("Plan Explorer"). 

So, when representatives of this Plaintiff walk into your office, what claims do you fire off in your Complaint against that thieving Defendant?  Trademark infringement, obviously.  How about a claim for conversion?

Maybe.  Electronic data is personal property, so it falls into the category of property which is subject to a claim for conversion.  Op. ¶14.

But the Plaintiff ran into a problem with its conversion claim.  It still had full access to its software, and that killed its conversion claim.

The NC Business Court has repeatedly "held that making a copy of electronically-stored information which does not deprive the plaintiff of possession or use of information, does not support a claim for conversion.” Op. ¶15 (citing RCJJ, LLC v. RCWIL Enters., LLC, 2016 NCBC 44, ¶67; accord New Friendship Used Clothing Collection, LLC v. Katz, 2017 NCBC 71, ¶77; Strategic Mgmt. Decisions, LLC v. Sales Performance Int'l, LLC, 2017 NCBC 68, ¶18; Addison Whitney, LLC v. Cashion, 2017 NCBC 50, ¶39.

Trying to fit a 21st century development like ESI into a tort like conversion, which has been around since the 1500's, is like trying  to fit a round peg into a square hole.

If you are insistent on including a conversion claim in your lawsuit over improper copying of electronic data, you might do better suing in federal court.  The United States District Court for the Western District of North Carolina has recognized such a claim.  Bridgetree, Inc. v. Red F Marketing, LLC, 3:10CV228-FDW, 2013 WL 443698 (W.D.N.C. Feb. 5, 2013).

But avoid the NC Business Court.

 

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Sessions refuses to answer on Trump interference in Russia probe

When the Attorney General of the United States can't be trusted:

"I asked the attorney general whether he was ever instructed by the president to take any action that he believed would hinder the Russia investigation and he declined to answer the question," Rep. Adam Schiff told reporters after the closed-door meeting concluded.

"If the president did not instruct him to take any action that he believed would hinder the Russia investigation, he should say so. If the president did instruct him to hinder the investigation in any way, in my view, that would be a potentially criminal act and certainly not covered by any privilege," the California lawmaker continued.

If you want to know why Jeff Sessions hasn't been fired yet, well there you go. Trump knows removing him won't make his position any safer, and it may actually make it worse, since Sessions would have nothing left to lose by coming clean. But the specter of the highest law enforcement official in the country choosing silence over honesty is about as ugly as it gets. And so is the reluctance of Congressional Republicans to report that silence to the American people:

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Friday News: Word of the day: Triggers

SENATE REPUBLICANS SCRAMBLE TO REFINE TAX CUT BILL: The scramble to alter the bill came after the Senate's parliamentarian ruled that automatic "triggers" designed to guard against big deficits would violate Senate rules. GOP leaders' main concern was winning over the hawks worried about adding more red ink to the mounting $20 trillion deficit. Senate Majority Leader Mitch McConnell, R-Ky., had expressed confidence early in the day, but he has little margin for error with a 52-48 Republican majority. He can afford to lose only two votes while counting on Vice President Mike Pence to break the tie. Sen. John Cornyn of Texas, the No. 2 Republican in the Senate, said the bill will have "alternative, frankly, tax increases we don't want to do" to address deficit concerns. Flake said the "trigger" tax increases would raise about $350 billion over 10 years, though he didn't specify which taxes would go up.
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