Aviation accidents

Although the percentages of death and serious injury caused by plane crashes in New York are small compared to other types of injury accidents, the results are almost always devastating to the victim’s families and oftentimes involve the loss of many lives.

Some of the leading causes of commercial and general aviation accidents are uncontained engine failures, controlled flight into terrain, approach and landing, loss of control, runway incursions, pilot error, improper maintenance, structural defects, and weather conditions including turbulence.

The law governing an airplane crash depends, in part, on whether the airplane accident involved an air carrier (like a commercial commuter or passenger airline) or private civilian accident. If the airplane crash was private civilian accident, then traditional negligence standards of ordinary and reasonable care apply. Thus, an owner of a private airplane involved in an accident or crash may be held legally liable for the negligence of a mechanic or pilot.

Airline carriers, like a commuter or passenger airline, are required to take much greater care than ordinary civilians. Thus, major airlines like Delta, Northwest, United, and American must use the highest care to prevent airplane crashes and aviation accidents.

In airplane crashes involving an air carrier, whether the flight was domestic or international will determine what rights of legal recovery are available. Regarding international flights, two agreements, the Warsaw Convention and Montreal Protocol, limit the amount of damages for which an airline may be responsible unless the accident involves reckless wrongdoing (although some U.S. carriers have agreed to waive these limitations under certain circumstances). Typically, damages in airplane crashes and aviation accidents are not capped.

The National Transportation Safety Board (NTSB) investigates major aviation accidents. Upon notification , NTSB assembles a “Go Team,” which varies in size depending on the severity of the accident and the complexity of the issues involved. This team may consist of experts in many different specialties, and is coordinated by the investigator-in-charge. Depending on the nature of the accident, the team may investigate areas such as structures, systems, powerplants, human performance, fire and explosion, meteorology, radar data, event recorders, and witness statements, among others. After an investigation is completed, a detailed narrative report is prepared that sets forth findings of the investigative team and identifies the probable cause of the accident. More information about NTSB can be found on their website at http://www.ntsb.gov/aviation/aviation.htm.

Additionally, the Office of Accident Investigation (AAI), an organization within the Federal Aviation Administration, investigates aviation accidents to detect unsafe conditions and trends. More information on AAI can be found on their website at http://www1.faa.gov/avr/aai/aaihome.htm

Sexual harassment

Title VII, applies to any company with more than 15 employees when it comes to sexual harassment. The company must also be in an industry affecting interstate commerce.

The United Stated Equal Employment Opportunity Commission (EEOC) defines sexual harassment as:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.

According to the EEOC, sexual harassment can occur in a variety of circumstances, including but not limited to the following:

The victim as well as the harasser may be a woman or a man.
The victim does not have to be of the opposite sex.
The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
The harasser’s conduct must be unwelcome.
Title VII charges must be filed with the South Carolina Human Affairs Commision (SCHAC) within 180 days of the alleged discriminatory act. However, you can still file after 180 days if less than 300 days have passed, in which case the charge will be transferred from SCHAC to the EEOC.

Under New York law, it is against the law for an employer, employment agency, or t is an unlawful employment practice for an employment agency, or labor organization to discriminate against an individual based on their sex.

There are two basic types of sexual harassment:

Quid pro quo sexual harassment – Quid pro quo sexual harassment is when someone with authority over your job, such as supervisor, demands sexual favors from an employee in exchange for assistance in promoting, hiring, or retaining the employee.

Hostile environment sexual harassment – Hostile environment sexual harassment occurs when unwelcome sexual conduct unreasonably interferes with an individual’s job performance or creates a hostile, intimidating or offensive work environment.

If you or someone you know has been discriminated against by an employer, labor union or employment agency when applying for a job or while on the job because of your race, color, sex, religion, national origin, age, or disability call our Law Firm today.

Scutpa Attorneys

As a preliminary matter, persons must be aware that the UTPA, S.C. Code Ann. § 39-5-10 to -160 (1991), is patterned after section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1). Section 39-5-20 (b) of the UTPA states “It is the intent of the legislature that in construing [the Act’s prohibition against unfair and deceptive trade practices] the courts will be guided by the interpretations given by the Federal Trade Commission and the Federal Courts to § 5 (a) (1) of the Federal Trade Commission Act.” To protect consumers and to prevent anticompetitive behavior in the market, the FTC Act prohibits “unfair methods of competition” and “unfair or deceptive acts or practices.” These prohibitions are intentionally broad; “Congress advisedly left the concept flexible to be defined with particularity by the myriad of cases from the business field.”1

Like the FTC Act, the UTPA prohibits “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce” and addresses both consumer protection and anticompetitive behavior in the marketplace. Unlike the FTC Act, the UTPA provides for a private cause of action.2 Moreover, a party may recover attorney fees and treble damages for a “willful” violation of the UTPA.3

The scope of the UTPA is not strictly tied to the FTC Act.4 South Carolina courts, therefore, “`are . . . free to find [violations of the UTPA through] methods, acts or practices not heretofore specifically declared unlawful by the FTC or the Federal courts.'”5

A. Unfair or Deceptive

Our courts define the terms “unfair” and “deceptive” according to the facts of each case.6 Some practices, such as padding repair bills7 or misrepresenting a used car’s history8 or its condition9 are undeniably unfair. In more questionable cases, however, one must consider whether the trade practice is “offensive to public policy or . . . immoral, unethical, or oppressive.”10

Proving deception under the UTPA is easier than proving deception under common law fraud. Rather than show a claim or representation was intended to deceive, a litigant need only show “that it had the capacity, effect, or tendency to deceive.”11 Moreover, the capacity to deceive can be found without a finding that anyone has actually been deceived.12 In fact, “[e]ven a truthful statement may be deceptive if it has a capacity or tendency to deceive.”13

To date, our courts have not decided whether unfulfilled promises or statements regarding future events, which are not actionable under common law are actionable under the UTPA. Nevertheless, given the broad reach of the UTPA as indicated by Young and State ex rel. McLeod, a party may have a valid cause of action under the UTPA regardless of whether the representation in issue relates to a present or pre-existing fact.

Notwithstanding whether a statement has a capacity for deception, if the statement was made negligently, then it is not actionable under the UTPA. “[I]f the fault is negligence or inattention, is simply not the kind of deceptive practice the [UTPA] was intended to reach.”14

B. Public Impact

In addition to establishing that an act or practice is unfair or deceptive, to be successful, a litigant must show the act or practice has an “impact upon the public interest.”15 In other words, “[t]he act is not available to redress a private wrong where the public interest is unaffected.”16

The rationale behind the public impact requirement is two-fold. First, because the UTPA is a derivation of the FTC Act, our courts are mindful that a proceeding by the FTC under the FTC Act must be predicated upon the FTC’s determination that the action would be in the interest of the public.17

Second, the UTPA is limited to unfair or deceptive acts or practices “in the conduct of any trade or commerce.”18 Trade or commerce is defined to include “any trade or commerce directly or indirectly affecting the people of this State.”19 Construing the legislature’s intent, therefore, South Carolina courts have determined the UTPA is enforceable only where there is an effect on the public’s interest.

Proving “public impact” is more difficult than proving deception or unfairness. On the one hand, as previously indicated, our courts have articulated broad standards by which a litigant may establish unfairness or deception. On the other hand, “South Carolina courts . . . consistently reject[ ] speculative claims of adverse public impact and require[ ] evidentiary proof of such effects.”20 One way a litigant may establish an “impact on the public interest” is by showing the unfair or deceptive acts or practices have a “potential for repetition.”21 There is no requirement, however, that the defendant still be engaged in the unlawful practice in order to bring suit.22

In an action between businesses, the potential for repetition must be shown to affect consumers and not just other businesses who are not parties to the suit.23 Further, a showing of public “impact” is necessary whether the claim is either for unfair or deceptive acts or for unfair competition.24 In dictum, the South Carolina Supreme Court recognized public impact may be inherent in unfair methods of competition.25 For example, the Fourth Circuit Court of Appeals stated that “a finding of conspiracy to restrain competition is tantamount to a finding that the underlying conduct has “an impact upon the public interest.”26 Such impact was not inherent, however, where a former company officer formed a competing company and utilized privileged customer information.27

Certain activities do not inherently have an impact on the public interest. For example, a “mere” breach of contract does not violate the UTPA28 because the breach does affect the rights or interests of anyone other than the parties to the contract.29 Case law, however, does not clarify whether “mere” breach of contract means breach without public impact, breach without fraudulent conduct, or breach not affecting trade or commerce.

C. Trade or Commerce

In order for unfair methods of competition and unfair and deceptive acts to be actionable under the UTPA, they must occur “in the conduct of any trade or commerce.”30 Under the UTPA, trade and commerce “shall include the advertising, offering for sale, sale or distribution of any service and any property, tangible or intangible, real, personal, or mixed, and any other article, commodity or thing of value wherever situate, and shall include any trade or commerce directly or indirectly affecting the people of this state.”31 These examples are illustrative and not exhaustive.32 Additionally, the words “trade” and “commerce” are synonymous.33 Thus, trade is defined as both the business of buying and selling.34

Despite the broad scope of the UTPA’s definition of trade or commerce, a party’s noncommercial acts are not within the UTPA’s scope even though they may effect another’s trade or commerce.35 For example, in Sunshine Sportswear & Electronics, Inc. v. WSOC Television, Inc.,36 the plaintiff claimed defendant’s reporting of plaintiff’s alleged deceptive advertising damaged the plaintiff’s reputation and business interests and thus violated the UTPA. The court held the defendant’s statements fell outside the scope of the UTPA because the defendant did not make the statements in the conduct of trade or commerce.37 Logically, although the consumer report may have affected trade or commerce by turning potential customers away from the plaintiff, the defendant was not directly engaged in trade or commerce, rather, it was simply reporting the news.

Arguably, however, WSOC may have engaged in trade or commerce. The definition of trade or commerce includes the providing of services.38 By providing services such as the news, WSOC acquires additional viewers. The more viewers the station can attract through its services and programming, the more profitable it becomes for advertisers to buy air time during the programming, and, consequently, the greater the station’s earnings. Under this analysis, WSOC was engaged in trade or commerce. However, in order to subject the station to liability under the UTPA, the court needed to examine issues of free speech and freedom of the press. Thus, the court may have wished to avoid this difficulty, and hence its decision that WSOC’s actions did not fall under the UTPA.

D. Coverage

Corporate officers are subject to individual liability under the UTPA. For the UTPA’s purposes, a “person” is defined to include “natural persons, corporations, trusts, partnerships, incorporated or unincorporated associations and any other legal entity.”39 This definition encompasses controlling persons in a corporation.40 A controlling person is defined as “one who makes formulates and directs corporate policy or who is deeply involved in the important affairs of the corporation.”41 Under this definition, an upper echelon officer, such as the C.E.O. or secretary, is subject to individual liability under the UTPA.42 Furthermore, unlike common law, a principal can be held liable under the Act for the misrepresentations of his agent regardless of whether the principal had actual knowledge.43 Corporate employees, however, typically are not subject to individual liability.44

The UTPA does not apply to “[a]ctions or transactions permitted under laws administered by any regulatory body or officer acting under statutory authority of this State or the United States or actions or transactions permitted by any other South Carolina State law.”45 The statutory exemption is an affirmative defense, thus, the burden is on the party seeking the exemption to show that one exists.46

Initially the South Carolina Supreme Court utilized the “general activity” test to determine whether the conduct in issue was exempted from the Act.47 Under the “general activity” test, the party claiming the exemption must show that the general activity is regulated by a “regulatory body or officer” and, in response, the opposing party has the burden of proving that the acts are not covered by the exemption.48

As noted by some, “[the general activity test] frustrates the purpose of the UTPA as an act of general application and creates inconsistencies, superfluities, and confusion with the remaining UTPA exemptions.”49 For example, though no banking regulation permitted the activities pursued by the defendant, the defendant bank was held to be exempt from liability under the UTPA in connection with deceptive lending practices because the State Board of Financial Institutions regulates the banking industry.50 Additionally, under the “general activity” test, because a seller of mobile homes was regulated by the South Carolina Manufacturing Housing Board, the seller was exempt from the Act although its conduct was in direct violation of a Housing Board regulation.51

The Court of Appeals recognized the dilemma created by the “general activity” test and stated:

“[I]f the scope of the exemption were a question of first impression, we could only conclude unfair and deceptive acts in connection with the sale of mobile homes are not exempt from the Act because they are not “permitted” actions . . . . Our Supreme Court, however, has already given Section 3-5-40 a broader interpretation.”52

In Ward v. Dick Dyer & Assoc., Inc.,53 the South Carolina Supreme Court recognized that the “general activity” test defeated much of the UTPA’s purpose and overturned its use. Holding the exemption only excludes actions or transactions which are allowed or authorized by regulatory agencies or other statutes, the court stated:

“[t]he purpose of the exemption is to insure that a business is not subjected to a lawsuit under the Act when it does something required by law, or does something that would otherwise be a violation of the Act, but is allowed under other statutes or regulations. It is intended to avoid conflict between laws, not to exclude from the Act’s coverage every activity that is authorized or regulated by another statute or agency. Virtually every activity is regulated to some degree.”54

The statutory exemption does not resolve the issue of preemption by other state or federal statutes. The exemption merely deals with situations or entities that are regulated by other statutory or regulatory schemes. The issue of preemption was addressed in Tousley v. North American Van Lines, Inc.,55 where the court applied traditional preemption doctrine principles. The supremacy clause56 negates state laws that impede or are adverse to the laws of Congress. Where Congress has expressly declared the authority under a statute is exclusive, the state law is preempted.57 In the absence of express language, a two-tier inquiry is made to determine: “(1) whether Congress in passing the statute intended to occupy the field [at issue], or (2) whether the state statute is void because it conflicts with federal regulations.”58 If preemption is not found, the court examines the issue of exemption.59 Thus, the issues of preemption and exemption are issues to be analyzed in a bifurcated approach beginning with preemption.

Despite Tousley, the UTPA should not be preempted by other statutory schemes to the extent the Act provides additional protection for the injured party because the UTPA states “[t]he powers and remedies provided by this article shall be cumulative and supplementary to all powers and remedies otherwise provided by law.”60

E. Damages

Under the UTPA, a private party may recover damages for “any ascertainable loss of money or property . . . as a result of . . . an unfair or deceptive method, act or practice.”61 Additionally, a party may recover attorney fees.62 Actual damage is defined as “the difference in value between that with which the plaintiff parted and that which he received.”63 However, where a UTPA action is based on a fraudulent misrepresentation to induce the plaintiff to enter into a contract, if the plaintiff elects to affirm the contract rather than rescind, the measure of actual damages is “the difference between the value the plaintiff would have received if the facts had been as represented and the value he actually received.”64 If a party alternatively pleads and establishes both fraud and a violation of the UTPA, he or she must elect between the remedies provided by each cause of action.65 Finally, a party may not recover damages for claims of both unfair trade practices and unfair competition in the same suit because such awards would constitute double recovery.66

Where “the unfair or deceptive method, act or practice was a willful or knowing violation of [the UTPA], the court shall award three times the actual damages sustained. . . .”67 Under the UTPA, “willful” does not have the same meaning as in common law. At common law, willful is defined as “a determination to exercise one’s own will in spite of and in defiance of the law.”68 Furthermore, “[c]onduct committed with a deliberate intention under such circumstances that a person of ordinary prudence would be conscious of it as an invasion of another’s rights is ‘willful.'”69

In contrast, “willful” under the UTPA is found where a party “should have known” that his or her conduct violates the UTPA.70 “The standard is not one of actual knowledge, but of constructive knowledge. If, in the exercise of due diligence, persons of ordinary prudence engaging in trade or commerce could have ascertained that their conduct violates the Act, then such conduct is ‘willful’ within the meaning of the statute.”71 To determine willfulness, a court considers only the actions at the time of the sale.72 Thus, parties cannot mitigate the determination of treble damages through good deeds subsequent to their wrongful acts. If a party seeks treble damages, he or she cannot collect punitive damages.73

Although § 39-5-140 states “the court” shall award treble damages for willfulness, the section does not specify whether “the court” consists of a determination of willfulness made by the jury or the judge. The reported cases offer limited guidance on this point due to the procedural posture and scope of appellate review. Nevertheless, in State ex rel. Medlock v. Nest Egg Soc’y Today,74 the South Carolina Court of Appeals found that defendant’s conduct was willful within the meaning of the UTPA. This finding, however, may have been prompted by defendant’s argument that their conduct was not willful as a matter of law.75 It is clear, however, that in Haley Nursery Co. v. Forrest,76 the trial judge ruled there was no willful violation of the UTPA.77


The UTPA itself sets forth certain specific practices which are deemed unfair and deceptive. Given the broad definitions of both deception and unfairness under the UTPA, an examination of the statutory scheme of the UTPA and its corresponding judicial interpretations is necessary in order to categorize what conduct constitutes an unfair or deceptive trade act.

A. Pyramid Schemes

Section 39-5-30 states pyramid schemes are unlawful.78 Section 39-5-30 describes a pyramid as:

“[a]ny contract or agreement between and individual and any pyramid club, or other group organized or brought together under any plan or device whereby fees or dues or anything of material value to be paid or given by members thereof are to be paid or given to any other member thereof, which plan or device includes any provision for the increase in such membership through a chain process of new members and thereby advancing themselves in the group to a position where such members in turn receive fees, dues or things of material value from other members.”79

Despite the extensive description set forth in § 39-5-30, courts have indicated the section’s definition of a pyramid is illustrative rather than all-encompassing.

In State ex. rel. McLeod v. V.I.P. Enterprises, Inc.,80 the Attorney General sought an injunction and civil damages against V.I.P. on the grounds its marketing scheme constituted a pyramid scheme in violation of section 39-5-30. V.I.P. sold “Clout” merchandise discount cards for twenty-five dollars and the right to sell the “Clout” card for fifty dollars. A person could not buy a card without additionally purchasing the right to sell cards. Initially, when a person made a sale on behalf of V.I.P., he or she received commissions directly from V.I.P in the amount of ten dollars for the sale of each card and an additional ten dollars for the sale of the right to sell cards. Later, V.I.P. changed the sale compensation to ten dollars for the sale of each card and “advancement points” from the sale of the right to sell cards. After the seller, his buyers, and the buyer’s buyer accrued 300 “advancement points,” the seller received other commissions.

V.I.P. argued its organization was not a pyramid scheme because members received commissions directly from V.I.P. rather than from “other members.”81 The Court of Appeals disagreed: “Where in all other respects a plan meets the UTPA’s description of a pyramid, the use of a corporation as a conduit will not place the plan beyond the reach of the Act.”82 Further, the court held that V.I.P.’s scheme was unlawful under the FTC’s test for pyramids: [Pyramid schemes] are characterized by the payment of money by participants of money to the company in return for which they receive (1) the right to sell a product and (2) the right to receive in return for recruiting other participants into the program rewards which are unrelated to the sale of the product to ultimate users.83

Because members received value for bringing in new members, the court held the marketing scheme provided rewards unrelated to the sale of the “Clout” merchandise cards.84

B. Required Insurance Coverage

Section 39-5-35 states it is unlawful “for any person engaged in the business of lending money to make it a condition of obtaining a loan for the purchase of an automobile that the borrower carry full coverage comprehensive or fifty dollars collision coverage.”85 Ostensibly, the specific language of the prohibition does not lead to confusion and unwitting transgression and, thus, there are no cases under this section.

C. Related Statutes

A violation of the Business Opportunity Sales Act (BOA)86 results in a violation of the UTPA.87 Under the BOA, a seller of a “business opportunity”88 must provide to the potential purchaser a written disclosure document89 at least forty-eight hours before the purchase is made.90 Further, the disclosure statement must be filed with the Secretary of State.91 The rationale for such disclosure, similar to securities law, is the purchaser is making a decision regarding an investment risk. Thus, fairness and market efficiency dictate that the purchaser must have complete and accurate information in order to make a wise investment decision.92

Similar to section 2(a) of the Clayton Act (the Robinson-Patman Act),93 the South Carolina Merchandising Unfair Trade Practices Act (MUTPA)94 prohibits price discrimination between competitors. Generally, the Robinson-Patman Act states it is unlawful “for any person engaged in commerce . . . to discriminate in price between different purchasers of commodities of like grade and quality . . . where the effect of such discrimination may be substantially to lessen competition . . . or to injure, destroy, or prevent competition.”95 Unlike the Robinson-Patman Act, however, the MUTPA declares certain price setting illegal regardless of whether the effect of such pricing substantially lessens competition. Under the MUTPA, it is an unfair trade practice for any person who is in both the wholesale and retail business to retail merchandise of like grade and quality at a price as low or lower as such person sells the same merchandise at wholesale in the same town or locality.96

Although the MUTPA declares price discrimination “an unfair trade practice,” it does not contain a provision, like section 39-57-80(e) of the Business Opportunity Sales Act stating a violation of the MUTPA results in a violation of the UTPA. Further, there are no reported cases which address this issue.97 Given that the UTPA is patterned after and interpreted by decisions regarding the FTC Act,98 and that a violation of section 2(a) of the Clayton Act necessarily results in a per se violation of the FTC Act,99 price discrimination should be actionable under the UTPA.


Despite the unanswered issue of price discrimination, a violation of the federal antitrust laws is a violation of the UTPA.100 As previously indicated, the purpose of the FTC Act, after which the UTPA was patterned, is to bolster the Sherman and Clayton Acts.101 The Sherman Act states that “[e]very person who shall monopolize or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize . . . shall be deemed guilty of a felony . . . .”102 Thus, attempts to monopolize a market violate the UTPA103 in addition to section 2 of the Sherman Act.

A. Attempts To Monopolize

In Bobcook Outdoor Media, Inc. v. Summey Outdoor Advertising, Inc.,104 Bobcook alleged Summey attempted to monopolize the market for outdoor advertising in Anderson County. At trial, Bobcook offered evidence that: (1) Summey entered into an agreement with a third outdoor advertiser to neither compete in Anderson County nor to hire each other’s employees, (2) Summey paid its employees a three-hundred dollar bonus for each Bobcook billboard face that was removed due to Summey securing a lease from the corresponding property owner, and (3) Summey made several attempts to buy Bobcook. The jury found Summey had violated the UTPA and the Court of Appeals affirmed. Although the court was unable to review the trial judge’s jury charge on the law of unfair competition, the court held “the issue of alleged unfair competition was a matter for the jury to decide based upon its assessment of the testimony.”105

B. Vertical Restrictions

Vertical restrictions are limitations placed on the buyer by the seller.106 Some vertical restrictions violate the antitrust laws and subsequently violate the UTPA. One example is resale price maintenance.

1. Resale Price Maintenance — Resale price maintenance occurs when a manufacturer sets price for the product’s resale and attempts to enforce that price by refusing to sell to transgressors or by terminating their distributorship. It is a per se violation of section 1 of the Sherman Act107 for a seller to contractually set either a minimum108 or maximum price109 at which the buyer can resell the product.

Resale price maintenance cases often involve allegations that a manufacturer terminated a distributor pursuant to an agreement with other distributors. Until Business Electronics Corp. v. Sharp Electronics Corp.,110 vertical non-price restraints were analyzed under the rule of reason (whether there is an anticompetitive effect on the market) whereas vertical price restraints were per se illegal. Although terminating a dealer is a non-price restraint, terminating a “price cutting” dealer was per se illegal because it was in response to and affected price.111

The Court in Sharp found manufacturers frequently are motivated to terminate a “price cutting” dealer to encourage other dealers to provide services for the manufacturer’s products, thus promoting sales and goodwill for the manufacturer.112 This is so because “price cutters” often reduce their prices by sparing the expenses of providing services for the manufacturer’s products and “free riding” on the services and support provided by dealers of the same product. Thus, “free riding” by one dealer becomes a disincentive for other dealers to provide services.113

Ultimately, non-price restraints that prevent “free riding” do not have an anticompetitive effect on the market, rather, they stimulate intra-brand competition.114 Given the pro-competitive effects non-price restraints may have, the Court in Sharp modified the long-standing per se rule and stated that “a vertical restraint is not illegal per se unless it includes some agreement on price or price levels.”115 In the absence of an agreement on price, therefore, the manufacturer’s decision to terminate a dealer will be judged by the “rule of reason” — whether the act has an anticompetitive effect on the defined product market.

To sustain an action for termination, the dealer must prove there was a “contract, combination, or conspiracy” between the manufacturer and other dealers to terminate the party.116 Proof of this combination requires “evidence that tends to exclude the possibility that the manufacturer and non-terminated distributors were acting independently.”117 Manufacturers are free to deal, or refuse to deal, with whomever they chose provided the decision is made independently.118 Thus, evidence of complaints from dealers to the manufacturer regarding the “price cutting” dealer alone is not sufficient to establish a combination.119

In Bostick Oil Co., Inc. v. Michelin Tire Corp., Commercial Div.,120 Bostick alleged that it had been terminated as a dealer of Michelin tires pursuant to complaints from other dealers regarding Bostick’s pricing practices and in the alternative that Bostick was terminated to enforce a resale price maintenance scheme (the National Accounts program). Bostick consistently “price cut” other local Michelin dealers. Bostick supplied tires by “drop-shipping”; Bostick delivered the tires without mounting them or providing any other initial service. Due to Bostick’s “free riding,” other dealers found themselves providing services for Bostick’s customers. Although one dealer testified that customers paid for future service on the tire and that he made substantial profits from the service portion of his dealership, Michelin received complaints from various other dealers regarding Bostick’s price cutting.

Before the renewal date of Bostick’s dealership contract, Michelin encouraged Bostick to enroll in its National Accounts program. Under the National Accounts program, large volume purchasers were billed directly by Michelin while dealers continued to sell and service tires. Also, prices were quoted directly by Michelin. Dealers were not required to enroll in the National Accounts program to maintain their dealerships; they could chose to sell to accounts as they had done in the past or enroll some of them in the program in any combination.

Although Bostick prospered in the National Accounts program, it continued to cut prices by offering program members rebates. Subsequently, Bostick’s dealership was terminated.

The court in Bostick held the plaintiff had stated a cause of action under the UTPA and that “evidence sufficient to withstand a motion for directed verdict on the federal causes of action provides at least as sufficient a basis for also requiring jury determination of the [UTPA] claim.”121 The UTPA does not require a showing of a contract, combination, or conspiracy.122 Moreover, the UTPA is not limited to practices which are unlawful under section 5 of the FTC Act.123 Thus, the burden of proving a UTPA violation is easier than proving an antitrust violation.

2. Consignment Arrangements — A consignment arrangement can be a form of retail price maintenance if it is coercively used to fix prices. As previously noted, vertical price fixing is illegal per se under the Sherman Act. If the arrangement is a true consignment rather than a disguised sale of goods, it is not a price fixing agreement and, thus, despite the broad scope of the UTPA,126 if the consignment arrangement does not violate the federal antitrust laws, the consignment can not be held violate the UTPA.127

3. Exclusive Dealing Arrangements — Another form of vertical restraint is an exclusive dealing arrangement. An exclusive dealing arrangement occurs when a manufacturer requires a dealer to deal exclusively in the products of the manufacturer. Exclusive dealing arrangements are not illegal per se.128 Rather, the Supreme Court has set forth two tests for illegality. The first is the “quantitative substantiality” test — if the manufacturer’s exclusive dealing contracts cover a substantial dollar amount of the market, an anticompetitive effect is presumed.129 The second is the “market share” test — exclusive dealing arrangements violate federal antitrust laws only if performance of the contract will foreclose competing product entries in a substantial share of the market.130

Analyzing an exclusive dealing arrangement under the UTPA, the Fourth Circuit applied the “market share” test:

“[T]he appropriate analysis to apply to an exclusive dealing arrangement under the FTC Act, and therefore under the South Carolina act was well, is as follows. First, the court must determine the nature of the relevant market by identifying the particular type of goods and the geographical area involved. Second, the court must determine how much of that market has been closed off to the products of competing manufacturers because of the exclusive dealing arrangements required by the defendant. In conjunction with this, the court should look at all relevant evidence indicating whether or not competitors have found or are likely to find it difficult to enter or remain in the market. Third, the court should consider any pro-competitive effects of the exclusive dealing arrangements that would justify their use.”131

Presumably, although South Carolina state courts are not constrained to follow the market share approach,132 if a party can show that the manufacturer’s exclusive dealing arrangement foreclosed a substantial share of the product market, the party can sustain a cause of action under the UTPA.


In addition to the statutory prohibitions set out in the UTPA and federal antitrust laws, infractions of other laws, both statutory and common, may result in a violation of the UTPA.

A. Trademark / Copyright

Subject to the requirement of public impact,133 a violation of Federal trademark or copyright law may subsequently result in a violation of the UTPA.134 Significantly, although pecuniary damages may be unavailable under federal trademark or copyright law, they are available under the UTPA135 if such damage is an ascertainable loss within the meaning of the UTPA.136

B. Torts

As previously noted, mere negligence is not a deceptive act under the UTPA.137 Moreover, wrongful discharge in an employer-employee relationship does not violate the UTPA because there is no public impact arising out of a private contractual relationship.138 Various “economic” torts, however, may result in a violation of the UTPA. For example, the UTPA may be violated by either wrongful termination, intentional interference with contractual relations, or fraudulent misrepresentation.139

Wrongful termination involves a relationship between distributors and suppliers. Under South Carolina law, “a dealer terminated in accordance with the terms of the contract has . . . a cause of action only when the supplier act[s] arbitrarily or in bad faith.”140 In other words, in order to sustain an action for wrongful termination, the dealer must show that the supplier acted “maliciously and without reasonable business justification for ending the relationship with the distributor.”141 Although the issue of whether such conduct violates the UTPA is undecided, it is clear that in order to claim a UTPA violation concurrent with a wrongful termination claim, the plaintiff must show public impact.142

In addition to wrongful termination, intentional interference with contractual relations will support a UTPA claim. The elements of a claim for intentional interference with contractual relations are “(1) the existence of the contract; (2) the wrongdoer’s knowledge of the contract; (3) the intentional procurement of its breach; (4) the absence of jurisdiction; and (5) resulting damages.”143 If the conduct in issue amounts to an intentional interference, and meets the UTPA requirements of trade or commerce and public impact, a cause of action under the UTPA exists.144


Although the UTPA does not require proof of common law fraud, negligent misrepresentation is not actionable. Any potential floodgate of consumer actions for merchant misrepresentation has been limited by the public impact requirement for private actions. Despite the fact that the UTPA’s scope is not strictly tied to the FTC Act and that South Carolina courts are free to find methods, acts or practices not previously declared unlawful by the FTC or the Federal courts, the courts have not strayed wildly from FTC Act interpretations. For\ example, in the case of consignment contracts, the courts have declined to find a UTPA violation where the consignment does not violate the federal antitrust laws. The general activity test for statutory exemption under the UTPA has been replaced by the “authorization” test and thus, the exemption only exists where the actions or transactions are allowed or authorized by regulatory agency or statute.

How long does it take to get a divorce in South Carolina?

90 days for a divorce based on fault, or 12 months for one year’s continuation separation. Under South Carolina law, there are several grounds for a divorce:

(1) Adultery;

(2) Desertion for a period of one year;

(3) Physical cruelty;

(4) Habitual drunkenness or drug use; or

(5) Living separate and apart without cohabitation for a period of one year.

For reasons (1) through (4), no final decree of divorce can be granted sooner than 90 days after the case is filed. For reason (5), the divorce may be granted after the defendant has answered the complaint for divorce or the defendant is in default for failing to answer the complaint for divorce.

As a practical matter, it may take months or years before a final divorce is ordered by the court. In cases involving such issues as adultery, physical cruelty, etc., the parties may engage in “discovery” of each other’s cases by taking depositions of each other or witnesses, or obtaining documents or other prepared materials such as photographs, financial records, etc. This process of discovery can take many months before the case is ready to go to trial. Further, even when the parties and their lawyers are ready to go to trial, the court docket is often full of many other cases filed before your case and waiting to be heard by the court. The bottom line is, even in a simple, uncontested case for divorce, it may take many months before you get a final decree.

In divided property in a divorce case, is it true that the court usually splits the property 50/50?
No. Each case is unique in its facts, and therefore it is not possible to determine beforehand what split the court will make. In determining how to divide property between the parties, the court generally looks at the following factors:

(1) the duration of the marriage;

(2) the age of the parties;

(3) the physical and emotional condition of each spouse;

(4) the educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse’s income potential;

(5) the employment history and earning potential of each spouse;

(6) the standard of living established during the marriage;

(7) the current and reasonably anticipated earnings of both spouses;

(8) the current and reasonably anticipated expenses and needs of both spouses;

(9) the marital and non-marital properties of the parties;

(10) custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where the employment must be of a limited nature;

(11) marital misconduct or fault of either or both parties if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage;

(12) the tax consequences to each party as a result of the particular form of support awarded;

(13) the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and

(14) such other factors the court considers relevant (this last factor is a “catch-all” factor that allows the court to consider any matter it deems important and appropriate).

As one can see from the number of factors considered by the court in dividing property, it is no easy task for the court, or for the parties’ attorneys, to determine who should get what and in what amount.

How does the court determine the amount of child support I must pay?
Child support is calculated using the parties’ gross income and certain child-related expenses that are plugged into a mathematical formula which is set forth in the South Carolina Child Support Guidelines. These guidelines, however, are not etched in stone. In other words, upon a showing of special circumstances, the court may order a party to pay more or less than what is calculated under the guidelines. For example, if you do not have custody of your child and you must travel from out-of-state in order to exercise your rights of visitation, the court may order you to pay less than the guidelines due to the extra expense of travel and lodging incurred by you to see your child.

For a detailed explanation of the formula and for a worksheet for calculating support, click the link below to download the guidelines. The file is in Adobe PDF format, thus you will need the Adobe Acrobat Reader to view or print the file. If you do not have the Acrobat Reader, download it from the link below and install it before downloading the guidelines.

Download the S.C. Child Support Guidelines

I want custody of my children in the divorce (or to get custody back from my ex-spouse). How does the court decide who gets custody?
By determining what is in the child’s best interest. Like division of martial property, each case turns on its own set of facts and circumstances. Typically, the court looks at many factors to award custody, such as the child’s wishes (if the child is old enough to convey his or her desires), the needs of the child, the ability of the parents to provide a stable home environment, the child’s educational needs, and the character and fitness of each parent (such as criminal records and a history of drug and alcohol abuse). In making a determination, the court may order that the child be appointed a neutral third party, known as a guardian ad litem, to make a recommendation to the court as to what is in the child’s best interests. The guardian ad litem will meet with the child and each parent, the child’s family members and teachers, and other witnesses. Additionally, the court, the guardian ad litem, or the parties may request that a licensed professional prepare a “custody evaluation” based, in large part, on the psychological profiles of the parents and their motivations for custody. Additionally, the guardian ad litem may request that court appoint an attorney to represent him or her in the trial of the case. Importantly, in addition to paying attorney fees, the parties may be required to split the cost of the guardian ad litem’s fees and the fees of the guardian’s attorney.

If your ex-spouse previously received custody by agreement or by court order, to change custody you must show there has been a material change in circumstances that now impacts on the child’s best interests. For example, if your ex-spouse is exposing the child to a live-in lover, has abused the child mentally or physically, or is abusing drugs or alcohol, the court may determine that a change of custody is in the child’s best interest.

Although obtaining custody may be possible, you must be prepared for the difficulties and expenses that lie ahead. In all, contested custody cases are one of the more complex, time consuming, emotionally draining, and expensive, forms of litigation.

Personal injury

Personal injury refers to the area of New York law that protects victims who have been physically harmed by another person or entity. Personal injury is also known as tort law. A personal injury claim can be filed for physical and mental injuries and can sometimes include damage to personal property. In certain situations, such as in medical negligence or wrongful death cases, a person may bring a personal injury lawsuit on behalf of a spouse, child, or loved one.

Liability and Damages

There are two basic elements in every personal injury case: liability and damages. The first element requires a showing that the person or entity being charged (the defendant) does in fact bear legal responsibility for the injury. Damages refers to the extent or amount of injury or loss that was caused by the defendant’s negligent actions.

Grounds for Personal Injury Claims

Negligence – Typically, in these cases, the defendant is accused of failing to use “due care.” Examples of failing to use “due care” would be causing an accident by failing to stop for a red light. Another example would be allowing a person to slip and fall in a store by not properly following safety regulations such as regularly checking and cleaning the store isles.

Strict Liability – Under strict liability, a company whose defective product is responsible for an injury may be responsible for those injuries regardless of whether the company used “due care” (provided that the product was being used as was intended).

Intentional Wrongs – Intentional wrongs, such as assault and battery, can sometimes be brought as civil, personal injury claims in addition to and separate from any criminal charges the defendant may be facing.

Types of Personal Injury Cases

The following list includes some examples of the types of cases that may be considered personal injury claims.

Slip and fall injury
Nursing home negligence
Automobile accident
Defective product injury
Exposure to toxic material
Medical malpractice
Wrongful death
Drug injury
Job injury (workers compensation)
Dog bite case
Statute of Limitations

Every legal claim, including a claim for personal injury, has a deadline by which the lawsuit must be brought or else the right to sue is lost. Different types of cases have different statutes of limitation. For example, in New York, the statute of limitations for fraud is two years. The statute of limitations for a personal injury case is three years. However, if the personal injury was caused by a governmental entity, then the statute is typically two years (subject to some other factors).

Usually, the statute of limitations begins to run at the time the injury occurs. However, if a person suffers a hidden injury (such as an instrument left in a patient’s body that is discovered long after a surgery or exposure to a chemical or toxin that causes injuries to surface years after the exposure) , then the time begins to run from when the injured person knew, or by the exercise of reasonable diligence should have known, that he or she was injured. This is called the “discovery rule.”

In certain cases, the statute of limitations does not begin to run at the time the injury occurs even though the injury is apparent. This means that the statute is “tolled” for a period of time. For example, if a child is injured, the time does not begin to run until the child turns 18 years old. Also, the statute of limitations may be tolled in cases regarding mentally impaired victims or for persons who leave the state for certain reasons such as military service.

Because calculating the statute of limitations for a particular case can be complex, it is important that you contact an attorney immediately after suffering any injury so that the appropriate statute of limitations can be determined.

What should I do if the police stop me and ask me questions?

Cooperate, but don’t incriminate! As attorneys who practice criminal law in New York, we know that law enforcement officers have a duty to protect the community they serve, its citizens and their property. New York criminal law lawyers are aware that the law gives police certain powers to help them perform that duty. They have the power to approach persons and ask them questions. Simply because you are approached and questioned by the police does not mean you are suspected of having committed a crime. All citizens are encouraged to cooperate with the police to see that those who break the law are brought to justice, and the police rely on law-abiding citizens to do so. But you are not required to incriminate yourself. YOU MAY REFUSE TO ANSWER ANY QUESTION IF THE ANSWER WOULD TEND TO INCRIMINATE YOU.

Suppose you are walking down a street when a police officer confronts you and announces: “Stop. I need to ask you some questions.” A person is “stopped” when an officer uses enough force, or a show of authority, to make a reasonable person feel he or she is not free to leave. In this example, the officer called out for you to stop, and may have used his or her authority to make you do so. If the officer pulled out a weapon or used a threatening tone of voice, it would be even more clear that a stop has taken place. Because the officer is interfering with your liberty to move about, he or she should first have a reasonable suspicion that you have been involved in a crime. This suspicion would need to be supported later (if the matter should wind up in a court) by the officer’s reference to specific facts prompting such a suspicion.

The police do not have to tell you that you are a suspect or that they intend to arrest you, but if they use force or a show of authority to keep you from leaving, it is likely they consider you a suspect. They may consider you a suspect even if you were the person who called the police. If they read or tell you your Miranda rights, they suspect you have committed a crime.

Just as when an officer merely approaches and questions you, you have the right, if you are stopped, to refuse to answer any questions if the answer would tend to incriminate you.

Further, anything you say can be used as evidence against you. Sometimes people think that what they are saying won’t incriminate them, when in fact, what they say provides a link in a chain of information that could incriminate them.

Even if you believe the officer has no grounds to stop and question you, do not argue with or resist the police. Arguing or resisting the police will not help you; it may increase your chances that the police will arrest you and bring criminal charges against you. It will probably also give them grounds to bring even more criminal charges against you, and it may make it harder for you to get out of jail on bail if you are charged. Once officers no longer have grounds to detain you, they should tell you that you are free to go before asking if they can search you or your car.

What are my rights if arrested?
First, you have the right to be told why you are being arrested and the nature of the charges against you (the crime for which you are being arrested). If you are arrested on a warrant, you have the right to see the warrant within a reasonable time after your arrest, to read it and make certain your name appears on it, and to see the charge against you.

Second, you have the right to be told your constitutional rights (commonly called Miranda rights) before you are questioned — not before you are arrested. These constitutional “Miranda” rights are:

The right to remain silent and not answer any questions at all;
The right to know that if you waive (give up) your right to remain silent and do answer questions, the police can use your answers against you in a court to get you convicted;
Even if you begin to answer questions, you have the right to stop answering questions at any time and to speak with an attorney;
You have the right to speak privately with an attorney before you answer any questions or sign anything;
If you cannot afford an attorney and if the crime for which you have been arrested has jail time as a possible penalty, you have a right to have an attorney appointed for you (perhaps a public defender) to represent you at no cost to you before being questioned, and to have that attorney present with you during any questioning to which you may later agree to submit.
Unlike what you may see on television or in the movies, a criminal case is not thrown out of court simply because the police did not read the suspect his or her “Miranda” rights. In fact, the suspected murderer, Mr. Miranda, of the now famous case, did not have his case thrown out because his rights were not read to him; rather, he was retried, convicted, and sent to jail.

Third, you also have the following rights:

The right to contact, by telephone or otherwise, a responsible person, to tell them you have been arrested and what the charges are. You are not limited to one telephone call if more are needed to contact such a person.
The right to refuse any physical or chemical test (such as a polygraph “lie detector,” breathalyzer, intoxilizer, field sobriety tests or physical performance tests such as walking a straight line or making other movements, the look-at-the-pen test, or mental ability tests like reciting the alphabet or doing math), until you can talk to your lawyer.
The right to have your attorney present at any line-up or other identification procedure in which you are viewed by possible eyewitnesses to a crime.
The right to reasonable bail or bond to secure your release from jail unless you are charged with a capital crime. Usually a judge sets the bail or conditions of your release. If you are charged with a misdemeanor, and if no judge is available, the police may, at police headquarters, accept bail in accordance with rules established by the judge.
The right to be brought before a court as soon as is reasonably practicable after your arrest, so that you can request a preliminary hearing to test the basis of your arrest and/or trial to determine your guilt or innocence.
If I am arrested, what will the police do?
If you are arrested, the police will search you for weapons, handcuff you, transport you to jail, and photograph and fingerprint you for identification.

If they don’t have a search warrant (a court order allowing them to search), they may ask you to allow them to search your car, your home and/or your other possessions. You can refuse to consent to these searches.

You have a right to be free from unreasonable searches and seizures; most of the searches for which an officer might ask your consent would require the officer to first obtain a warrant from a judge — unless you consent and give up this right.

You have the right to have a judge decide whether the search is proper before that search is conducted. There is no penalty for exercising your right to have the judge decide whether to allow the search. Your refusal to consent to a search cannot be used against you.

If you are uncertain about how to respond to any request made by an officer, assert your right to counsel and discuss it with your attorney first before taking further action on the officer’s request.

What should I do if I am arrested or in custody?
Do not argue with the police. You cannot talk your way out of being investigated, arrested or prosecuted. Do not try. Any explanation you give the police may give them more information than they already have, so it’s often wise to save your explanation and defenses for court.

Avoid conversing with the police. If you have been arrested, the police believe you committed a crime. Their job is to investigate and gather evidence. Telling the police your side without a lawyer present is usually a bad idea, even if you believe you have done nothing wrong. Only your attorney and the judge have the power to make things easier for you.

Pay attention to what happens when you first encounter the police and afterwards. Try to memorize who was there to see and hear what happened. Sometimes the court needs to look into what happened to you while you were in custody. It will help you if you can later fully inform your counsel about these events, so be observant.

Do not tell your family and friends all about it or ask non-lawyers for legal advice. It is possible they may be ordered to appear at trial to repeat what you said.

Tell your attorney the whole truth. Your lawyer will advise and defend you no matter what you did or did not do.

Can bail be reduced?
Sometimes, depending on the case. Initially, the court sets bail considering several factors, including the severity of the crime and whether the suspect is likely to return to court when the case is called to trial (risk of flight). In deciding whether the suspect is a risk of flight, the court will consider whether the suspect has ties to the state, including whether the suspect is a resident of the state and for how long, whether the suspect has family located in the state, and whether the suspect has other ties such as gainful employment in the state.

In legal theory, a defendant is innocent until proven guilty. However, as a practical matter, the court may set bail so high (or deny bail) such that the suspect cannot afford to get out on bond and will sit in jail until the case is called.

As a general rule, the law presumes that the bail that is originally set by the judge is the correct amount. Thus, it is best to attempt to get the lowest bail possible set the first time the suspect appears before the court. Thereafter, to convince the court to lower bail that was previously set, you generally need to be able to show a “change in circumstances.” In other words, you need to be able to show how the case is different (in your favor) from the time when the judge originally set bail. Other times, bail may be set by the magistrate’s bond court and thereafter reargued before the Court of General Sessions (a higher court). If the bail amount is high and out of proportion to the facts and circumstances of the case, it may violate your constitutional right to reasonable bail. As a cautionary note, in theory the judge redetermining bail may decide that the initial amount was set too low and order that bail be set at a higher amount.

Under what circumstances can I be arrested?
An arrest is different from a stop. A stop involves brief questioning in the place where you were detained. If the officer wishes to hold you for a longer period of time, or decides to take you elsewhere, such as to the police station, he or she is no longer just stopping you, but is arresting you. Because an arrest deprives you of your freedom of movement for an even longer period of time than a stop, the law limits the instances when arrests can be made.

1. You may be arrested by a police officer who personally saw you violate any state statute, city ordinance or federal law. The law may be a serious crime (a felony) or a lesser offense (a misdemeanor). The important thing is that the officer sees the violation.

If the charge is a minor traffic offense, the law requires the officer to just ticket you (that is, give you a citation that orders you to appear in court later), rather than arrest you. However, if you refuse to identify yourself, or if it appears to the officer that you need medical attention, then he or she can arrest you on this minor traffic offense.

2. You may be arrested for a felony, even if the police officer did not personally see you commit the felony, so long as the officer had “probable cause” to believe you committed the crime. Later, the court system (not the police) will determine if the officer’s belief was reasonable and if you are guilty or innocent.

3. You may be arrested when there is a warrant for your arrest, whether or not you are aware of the warrant. The police cannot cancel an existing warrant. They must serve it and arrest the person named on the warrant.

An arrest warrant is a legal document, issued by a judge, directing the police or the sheriff to arrest you and take you into custody. The officer must show the warrant to you within a reasonable time after you are arrested and give you a copy. If the officer fails to do so, tell your attorney later.

Even if you believe the officer has no grounds to arrest you, do not argue with or resist the police. You have no right to argue about why you are being arrested or about your guilt or innocence at the time of the arrest. Arguing or resisting the police will not help you. It will mean the police can bring additional criminal charges against you, and it may make it harder for you to get out of jail on bail if you are charged.

Again, do not argue with the police.
Never resist your arrest. Do not run away.
Never resist the arrest of another person.

Covenants not to compete

Agreement, is an agreement that restrains or prevents a person from performing a profession, trade, or business. Generally speaking, covenants not to compete are disfavored in New York. Essentially, South Carolina’s courts do not like to restrict a person’s ability to earn a living or to restrict a lawful business enterprise from competing in the marketplace. So, in New York, a covenant not to compete may only be enforced if the following five criteria are met:

1) The covenant is necessary for the protection of the legitimate interest of the employer/business:

There is no legitimate interest in simply avoiding competition. However, protecting against loss of existing business contracts and existing customers may be a legitimate interest. Yet, a prohibition which prevents an employee from being associated “in any capacity” with a competing business goes “far beyond the protection of any legitimate business interest [an employer] may be able to articulate.”

2) The covenant is reasonably limited in its operation with respect to time and place:

This is perhaps the most widely discussed of all the requirements. The likely reason for this is that the remaining three requirements are less measurable, and if a covenant is too broad with respect to time or place, it will not be necessary to protect the employer’s interests, will burden the employee, or be against public policy. In other words, the remainder of the factors are encompassed within this one.

(A) Duration:

A covenant that restricts an employee from competing “at any time” will be invalid under most circumstances. However, covenants for a specified reasonable number of years may be permissible. So far, our courts have found covenants ranging from one to three years permissible. That is not to say, however, that a one to three-year restriction will be reasonable in all cases. Overall, such reasonableness depends upon the parties’ business, industry, or profession.

(B) Territorial Limitation:

A territorial limitation may not be broader than necessary to protect the business of employer. A limitation may be considered reasonable if the area covered by the restraint is limited to the territory in which the employee worked or was able, while employed, to establish contact with his employer’s customers. Employers in New York may also validly restrict competition with certain customers, without marking out any territorial restrictions at all.

3) The covenant is not unduly harsh and oppressive in curtailing the legitimate efforts of the employee to earn a livelihood:

Because a covenant not to compete impairs an employee’s ability to make a living, it must not be overly oppressive. In deciding whether such covenant is enforceable, New York courts typically analyze this element by examining the duration and geographic limitations imposed on the employee. Ultimately, whether a covenant not to compete is unduly harsh and oppressive depends upon the facts of each case.

4) The covenant is reasonable from the standpoint of sound public policy:

Public policy in New York requires the enforcement of contracts “freely entered into by the parties.” Thus, in determining this factor, a court must balance the policy against restraints on trade with that of the enforcement of freely negotiated contracts. The argument that a covenant violates public policy is most routinely advanced in cases involving physicians, but this element is typically not one that New York courts use to strike down a non-compete agreement.

5) The covenant is supported by valuable consideration:

“Consideration” is something of value given in exchange as part of an agreement. Thus, the employer must give something of value to an employee in exchange for the employee’s agreement not to compete. In New York, an offer of employment to the employee is sufficient consideration to enforce a covenant not to compete. However, if an employment relationship already exists before the employee is asked to agree to a covenant not to compete, then this agreement must be based upon some new consideration (such as the payment of money) and not simply continued employment. Conclusion

It is difficult for any court to determine whether the above-mentioned factors are reasonable, and there are no “hard and fast” rules regarding covenants not to compete. Courts decide such issues on a case-by-case analysis because each case is unique.

If a court finds that any of the five factors listed above are not satisfied, it will strike the entire covenant. In other words, the court will not rewrite an agreement, or any portion thereof, which was entered into by the parties.

Corporate and commercial law

Complex business and corporate issues. From simple business formations to complex shareholder disputes, our attorneys have the resources and ability to represent our clients in various business-related legal matters. We represent businesses before all state and federal courts, administrative agencies and local governments in New York. Additionally, we represent businesses in all forms of alternative dispute resolution, including arbitration, mediation, and summary jury trials.

The matters we regularly handle include the following:

Corporation formations (S-Corp., C-Corp., LLC’s, LLP’s)
Commercial, business and contract litigation
Contract Negotiations
Breach of Contract Claims
Shareholder and partnership disputes
Shareholder buy/sell agreements
Partnership buy-out agreements
Shareholder and partnership disputes
Mergers and acquisitions and asset sales and purchases
Sale, purchase and leasing of corporate assets
Trade secrets / Trade Names
Unfair Methods of Competition

Construction litigation

We have extensive experience prosecuting and defending all types of disputes at the local, state, and federal court levels, and in arbitration and mediation.

Construction defects, or negligent construction, reduce the value of your residential or commercial property. Construction defects may be immediately obvious or they may not be noticed right away (latent defects). Common construction defects arise from:

Inadequate grading or improper soil preparation or compaction

Faulty drainage or improper landscaping
Cracks in foundations, floors, walls and roofs
Water seepage or improper heating and ventilation (causing dry rot, termites, molds and bacteria)
Defective plumbing or electrical systems
Defective lighting Inadequate security
Substandard building materials
Failure to follow material manufacturer’s installation or application instructions
Failure to meet applicable building codes
Failure to follow engineering or architectural plans or specifications
Faulty engineering or architectural plans or specifications
The victim of construction defects may be entitled to compensation under South Carolina’s laws. Monetary compensation or damages generally include:

Cost of repairs or restoration of the property

Diminution in Value (the difference in market value before and after the injury).
Loss of use of the property during the period of injury and repair
It is important to consult with an attorney as soon as possible in order to preserve your rights in this matter. If you are an owner, it is advisable, when a construction defect is discovered, to provide for testing of the entire facility or building. It may well be that the discovered defect is an indication of the quality of the overall workmanship.

Nursing home abuse

Abuse, neglect, and exploitation of vulnerable adults is a growing concern in New York. Reports of abuse, neglect, and exploitation of people in nursing homes and other institutional settings in New York has increased 25% since 2000. The New York Department of Health and Human Services has received over 5,000 complaints of abuse and neglect within the past year.

Nursing home abuse refers to elder abuse that takes place in a residential, long-term care facility. It is also sometimes referred to as institutional elder abuse. Such abuse includes:

Physical abuse – physical injury from falls, from kicking, hitting, punching, or using physical restraints unnecessarily

Neglect – abandonment, malnutrition or dehydration, bed sores, gangrene, aspiration pneumonia, over-sedation, withholding prescription drugs, or withholding hygienic care

Sexual Abuse – forced sex acts or acts committed with a resident who is physically or mentally unable to grant or deny permission

Mental Abuse – isolation from friends and family or verbal assaults

Financial Abuse – stealing an elder’s money, identity theft, or missing property

The Protection of Our Laws

There are both federal and state laws designed to protect nursing home residents. In New York, it is a crime for certain persons to fail to report abuse, neglect, or exploitation of a nursing home resident, to abuse, neglect, or exploit a nursing home resident, or to interfere with the investigation of a report of abuse, neglect, or exploitation. Further, New York law establishes The Long Term Care Ombudsman Program which is responsible for investigating “reports of alleged abuse, neglect, and exploitation of vulnerable adults occurring in facilities.”

Preventing and Detecting Elder Abuse in Nursing Homes

The following are some steps that residents and families can take to limit the potential for nursing home abuse:

1) Look for Signs of Abuse:

Dehydration or malnutrition;
Bed sores or frozen joints;
Poor hygiene;
Abrupt behavioral changes;
Signs of physical injuries such as bruises, cuts, burns, sprains, or fractures;
Venereal disease or genital infections, vaginal or anal bleeding;
Nursing home resident appears to be over-sedated;
Nursing home resident is not allowed to be alone with visitors;
Large sums of money suddenly withdrawn from resident’s bank accounts;
Wills and/or financial documents are abruptly changed;
Nursing home resident’s possessions are missing; or
Nursing home staff does not allow resident to have visitors or there are delays in allowing visitors to see the nursing home resident.
2) Make frequent visits to the nursing home at various times, including unscheduled visits.

3) Speak regularly with care providers and nursing home staff. Press them for answers to your questions.

4) If you are a resident, build relationships with other residents. If you have concerns about the quality of your care, speak up for yourself.

Premises liability

If so, it may be possible to recover monetary damages, under New York law, from the property owner for medical expenses, lost wages, and pain and suffering.

In premises liability cases, it is important to locate witnesses as quickly as possible. Our lawyers are experienced in identifying and tracking witnesses to make sure that your rights are fully protected.

There are often many different kinds of insurance coverage available in premises liability cases. For example, some insurance coverage may be available to pay for your medical bills regardless of who was at fault. Other kinds of coverage apply only if the property owner is found to be liable for the injured person’s damages.

“Slip and Fall”

Many premises liability cases involve “slip and fall” accidents. In New York, an owner of property owes a legal duty to his guests to keep the property in a reasonably safe condition. If the injured person shows that the owner of the premises either created a hazard on the property or had actual or constructive knowledge of the hazard before the fall occurred and that the hazard caused the injuries, then recovery may be possible. However, such cases become more complicated to analyze when, for example, the person on the property is a trespasser and not a guest, or a salesperson and not a store patron.

Fitness Centers

A fitness center must warn its members of all non-obvious dangers and those dangerous conditions of which the fitness center is aware. Basically, the fitness center must remain reasonably safe.
Unfortunately, some fitness centers fail to adequately maintain their exercise equipment. Such failures can often lead to serious injuries.


With the introduction of “superstore” warehouses, the practice of stacking heavy products on high shelves has resulted in falling merchandise which has caused countless customer injuries and some fatalities. Statistically, most accidents occur between October and January when more merchandise is stacked in anticipation of the holiday rush.

Dog Bites

There are approximately 800,000 dog bite victims per year in the United States. Approximately 60% of these victims are children, and most of them are bitten on the face (77%). Dog bites cause an average of 18 deaths per year.

Pursuant to New York law:

Whenever any person is bitten or otherwise attacked by a dog while the person is in a public place or is lawfully in a private place, including the property of the owner of the dog or other person having the dog in his care or keeping, the owner of the dog or other person having the dog in his care or keeping is liable for the damages suffered by the person bitten or otherwise attacked. For the purposes of this section, a person bitten or otherwise attacked is lawfully in a private place, including the property of the owner of the dog or other person having the dog in his care or keeping, when the person bitten or otherwise attacked is on the property in the performance of any duty imposed upon him by the laws of this State, by the ordinances of any political subdivision of this State, by the laws of the United States of America, including, but not limited to, postal regulations, or when the person bitten or otherwise attacked is on the property upon the invitation, express or implied, of the owner of the property or of any lawful tenant or resident of the property. If a person provokes a dog into attacking him then the owner of the dog is not liable.

Issues regarding insurance coverage can be very complicated. For example, according to the New York Supreme Court, raising and showing purebred dogs was not a “business pursuit” within meaning of a business exclusion in a homeowners’ policy (stated that there is no insurance coverage for injuries “arising out of or in connection with a business engaged in by an insured”) and thus the insureds were entitled to liability coverage for injuries to a professional dog handler who was bitten by one of their dogs, where: (1) the insureds raised and showed the dogs as part-time activity; (2) they had other regular or continuous business engagements; (3) the insureds did not intend raising the dogs to be a means of earning a living; and (4) the income generated from the dogs did not exceed expenses in each year.


Over 223,000 children, ages 14 and under, are injured yearly in playground accidents throughout the United States. Approximately 35% of these injuries are serious. 70% of the injuries occur when children fall to the ground. Indeed, one-third of playground related fatalities are due to falls.


Poolside and other swimming related accidents are the second leading cause of death of children under 15 years of age. Each year, over 1,000 children die in swimming-related accidents and over 5,000 others are hospitalized.

Many adults suffer severe injuries when they combine alcohol and swimming. In fact, alcohol use is involved in 25% to 50% of adolescent and adult deaths associated with water recreation.

Backyard pools equipped with diving boards may pose a serious risk. As reported on CBS’s 60 Minutes II, over 7,000,000 families enjoy backyard pools with diving boards. Unfortunately, many of these pools have been improperly designed and constructed, leaving divers at risk of sustaining serious injuries.

Criminal Attack

Under New York law, a business owner has a general duty to exercise reasonable care in protecting its patrons, but it is not liable for criminal attacks (such as robberies, rapes, or murder) by third parties in the absence of evidence that the owner knew or had reason to know of the attack. In other words, the property owner is not liable for a guest’s injuries unless the criminal attack was foreseeable. “Foreseeability” is oftentimes a difficult matter to prove. Factors regarding foreseeability include: (1) whether the property is in a high crime area; (2) whether the property owner followed its own security guidelines (if any); (3) whether the business is of a type and nature that typically attracts a criminal element (such as a bar or dance club); and (4) the degree of the criminal act’s spontaneity (such as whether the criminal event was unprovoked and sudden outburst or whether the attacker had been physically aggressive and causing trouble prior to the event).