I. GENERAL CONSIDERATION.

Editor's Note. - Some of the following notes were decided under former G.S. 75-5 regarding prohibited acts.

History of Chapter. - See Shute v. Shute, 176 N.C. 462, 97 S.E. 392 (1918).

Common Law. - At common law in England, and later in this country, only combinations or agreements which operate to the prejudice of the public by unduly or unreasonably restricting competition or restraining trade are illegal. Rose v. Vulcan Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973).

Under the common law at a remote period in England, the term "contract in restraint of trade" meant an individual's voluntary contractual restraint on his right to carry on his trade or calling. Rose v. Vulcan Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973).

Federal precedent is instructive in interpreting Chapter 75 due to the similarity between provisions of Chapter 75 and the federal antitrust law. North Carolina Steel, Inc. v. National Council on Comp. Ins., 123 N.C. App. 163, 472 S.E.2d 578 (1996), aff'd in part and rev'd in part, 347 N.C. 627, 496 S.E.2d 369 (1998).

The common law on restraint of trade is determinative of at least the minimum scope of this section. Rose v. Vulcan Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973); United Roasters, Inc. v. Colgate-Palmolive Co., 485 F. Supp. 1041 (E.D.N.C. 1979).

This section was based upon Section 1 of the Sherman Act, 15 U.S.C. § 1 (1971). Rose v. Vulcan Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973); Cameron v. New Hanover Mem. Hosp., 58 N.C. App. 414, 293 S.E.2d 901, cert. denied and appeal dismissed, 307 N.C. 127, 297 S.E.2d 399 (1982).

The North Carolina antitrust enforcement mechanism almost completely mirrors its federal counterpart, especially with respect to the availability of treble damages. Nash County Bd. of Educ. v. Biltmore Co., 464 F. Supp. 1027 (E.D.N.C. 1978), cert. denied, 454 U.S. 878, 102 S. Ct. 359, 70 L. Ed. 2d 188, rehearing denied, 454 U. S. 1117, 102 S. Ct. 692, 70 L. Ed. 2d 654 (1981), aff'd, 640 F.2d 484 (4th Cir. 1981).

This Chapter establishes an action for unfair or deceptive acts or practices in or affecting commerce. The jury determines the facts, and based on the jury's findings of fact the court must determine as a matter of law whether the defendants engaged in an unfair or deceptive trade practice. Strickland v. A & C Mobile Homes, 70 N.C. App. 768, 321 S.E.2d 16 (1984), cert. denied, 313 N.C. 336, 327 S.E.2d 899 (1985).

Unfair or Deceptive Trade Practice Based on Conduct Proscribed by Chapter 95. - Although Chapter 95, relating to labor, is regulatory in nature, this fact does not prevent the finding of an unfair or deceptive trade practice based on the conduct proscribed by Chapter 95. Winston Realty Co. v. G.H.G., Inc., 314 N.C. 90, 331 S.E.2d 677 (1985).

Law Applying Sherman Act Instructive in Determining Full Reach of Section. - The body of law applying the Sherman Act, although not binding upon the Supreme Court in applying this section, is nonetheless instructive in determining the full reach of this section. Rose v. Vulcan Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973); Hester v. Martindale-Hubbell, Inc., 493 F. Supp. 335 (E.D.N.C. 1980), aff'd, 659 F.2d 433 (4th Cir. 1981); Cameron v. New Hanover Mem. Hosp., 58 N.C. App. 414, 293 S.E.2d 901, cert. denied and appeal dismissed, 307 N.C. 127, 297 S.E.2d 399 (1982).

Chapter 75 does not apply to the sale of securities; partnership interests qualified as securities because the investment contracts of plaintiffs (1) involved an investment of money, (2) in a common enterprise, and (3) involved an expectation of profit solely from the efforts of others. Andrews v. Fitzgerald, 823 F. Supp. 356 (M.D.N.C. 1993).

Statutes on monopolies and trusts are addressed to the sale and movement in commerce of goods, wares, merchandise and other things of value. Knutton v. Cofield, 273 N.C. 355, 160 S.E.2d 29 (1968).

And cases arising under such statutes ordinarily involve a vendor and a purchaser. Knutton v. Cofield, 273 N.C. 355, 160 S.E.2d 29 (1968).

Thus, the prohibited acts are usually connected with a purchase and sale. Knutton v. Cofield, 273 N.C. 355, 160 S.E.2d 29 (1968).

Law of Civil Conspiracy Is Applicable. - This State's substantive law of civil conspiracy also applies in the context of this section. Cameron v. New Hanover Mem. Hosp., 58 N.C. App. 414, 293 S.E.2d 901, cert. denied and appeal dismissed, 307 N.C. 127, 297 S.E.2d 399 (1982).

Federal copyright law preemption under 17 U.S.C.S. § 301(a) requires: (1) that state law rights are claimed in works that are within the subject matter of the copyright, and (2) the state law is subject to preemption only if the state law cause of action lacks an extra element that would make the state law action qualitatively different than a federal law copyright infringement claim; therefore, where a copyright holder sued an alleged infringer for its use without prior approval of a certain dragonfly image on its website, the infringer's unfair and deceptive trade practices claim under G.S. 75-1.1 was preempted by federal copyright law because there was no extra element in the G.S. 75-1.1 action that made it qualitatively different from a federal copyright claim. Iconbazaar, L.L.C. v. Am. Online, Inc., 308 F. Supp. 2d 630 (M.D.N.C. 2004).

Preemption by Soft Drink Act. - North Carolina unfair practices laws are preempted by the Soft Drink Act (15 U.S.C. § 3501-03) to the extent that they would proscribe wholesaling restrictions imposed by bottlers to prevent transshipment. Owens v. Pepsi Cola Bottling Co., 330 N.C. 666, 412 S.E.2d 636 (1992).

Federal Law Held to Preempt Plaintiffs' Claim. - The plaintiffs' state claims, alleging that the defendants' filing of each proof of claim, containing a disguised attorney fee, violated the North Carolina Fair Debt Collection Practices Act, G.S. 75-50 to 75-56, and the North Carolina Unfair and Deceptive Trade Practices Act, G.S. 75-1 to 75-35, were preempted by federal law, as obstacles to the accomplishment of the full purposes and objectives of federal bankruptcy law; the plaintiffs' alleged state law causes of action were based on the defendant's choice of process in a federal court proceeding, filing a proof of claim versus a fee application, and involved procedures found in the Code and Part III of the Bankruptcy Rules and of uniquely federal concern. Tate v. NationsBanc Mortg. Corp. (In re Tate), 253 B.R. 653 (Bankr. W.D.N.C. 2000).

Conflict with Admiralty Law. - The standard for awarding treble damages under Chapter 75 conflicts with the requirements for awarding punitive damages under admiralty law. Unlike admiralty law, Chapter 75 does not require a showing of gross negligence, actual malice, or reckless or wanton misconduct. A practice is deceptive and treble damages must be awarded under Chapter 75 if the trade practice has the capacity or tendency to deceive. Chapter 75, therefore, allows recovery under a much lower standard than required by admiralty law. Therefore, subcontractor's punitive damages claim under North Carolina's Unfair and Deceptive Trade Practice Act was dismissed. Delta Marine, Inc. v. Whaley, 813 F. Supp. 414 (E.D.N.C. 1993).

Subject Matter Jurisdiction. - District court had subject matter jurisdiction under 28 U.S.C.S. § 1334, over a borrower's claim that a securitization trustee, who held title to a mortgage loan given by a bankrupt lender to the borrower, violated North Carolina usury law and the Unfair and Deceptive Trade Practices Act; the borrower (1) was an obligor whose claim was barred by the clear terms of the stipulation and consent order of the bankruptcy court, (2) failed to successfully challenge the order in bankruptcy court, and (3) was thus bound by the order establishing that the case was related to the bankruptcy case for purposes of subject matter jurisdiction under 28 U.S.C.S. § 1334(b). Sowell v. U.S. Bank Trust Nat'l Ass'n, 317 B.R. 319 (E.D.N.C. 2004).

Monopoly Defined. - In the modern and wider sense monopoly denotes a combination, organization, or entity so extensive and unified that its tendency is to suppress competition, to acquire a dominance in the market, and to secure the power to control prices to the public harm with respect to any commodity which people are under a practical compulsion to buy. State v. Atlantic Ice & Coal Co., 210 N.C. 742, 188 S.E. 412 (1936).

Elements of Trade Conspiracy. - The substantive law of trade conspiracies requires some consciousness of commitment to a common scheme. Cameron v. New Hanover Mem. Hosp., 58 N.C. App. 414, 293 S.E.2d 901, cert. denied and appeal dismissed, 307 N.C. 127, 297 S.E.2d 399 (1982).

An actionable conspiracy to restrain trade must operate to the prejudice of the public, in keeping with the common law's "Rule of Reason." United Roasters, Inc. v. Colgate-Palmolive Co., 485 F. Supp. 1041 (E.D.N.C. 1979).

Impact on Competitive Conditions Proper Focus. - The proper focus is not whether plaintiff-victim and defendant-conspirator were in actual competition with each other, but is upon the challenged restraint's impact on competitive conditions. United Roasters, Inc. v. Colgate-Palmolive Co., 485 F. Supp. 1041 (E.D.N.C. 1979).

Restraint is unreasonable and void if greater than required for protection of the promisee or if it imposes an undue hardship upon the person who is restricted. Owing to the possibility that a person may be deprived of his livelihood, the courts are less disposed to uphold restraints in contracts of employment than to uphold them in contracts of sale. Starkings Court Reporting Servs., Inc. v. Collins, 67 N.C. App. 540, 313 S.E.2d 614 (1984).

Combination is not objectionable if the restraint is such only as to afford fair protection to the parties thereto and not broad enough to interfere with the interest of the public. Rose v. Vulcan Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973).

The reasonableness of a restraining covenant is a matter of law for the court to decide. Jewel Box Stores Corp. v. Morrow, 272 N.C. 659, 158 S.E.2d 840 (1968).

Reasonableness Depends on Circumstances of Particular Case. - The reasonableness of the restraint depends upon the circumstances of the particular case. Jewel Box Stores Corp. v. Morrow, 272 N.C. 659, 158 S.E.2d 840 (1968).

A contract establishing a price discrimination is not illegal per se. Rose v. Vulcan Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973).

Contracts to Assure Adequate Supply for Definite Price over Specified Period. - Business contracts by which a buyer assures himself of adequate supplies for a definite price over a specified period of time thus providing protection against future price increases are quite common and are not illegal per se. Rose v. Vulcan Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973).

Agreement Not to Sell to Particular Individual. - A complaint alleging that defendants conspired and agreed not to sell plaintiff ice, and that as a result thereof plaintiff 's business was ruined, fails to state a cause of action, this and the following sections not being applicable. Lineberger v. Colonial Ice Co., 220 N.C. 444, 17 S.E.2d 502 (1941).

A contract between public utilities, approved by the Utilities Commission, is not violative of this section, if the Commission could have lawfully made an order to the same effect upon application and after hearing in an adverse proceeding. State ex rel. Utils. Comm'n v. Carolina Coach Co., 260 N.C. 43, 132 S.E.2d 249 (1963).

Partial and Reasonable Restraints Upheld. - Contracts in restraint of trade were formerly held to be invalid as against public policy, but the more modern doctrine sustains them when the restraint is only partial and reasonable. The test is to consider whether it is such only as will afford a fair protection to the interests of the party in favor of whom it is given, and not so large or extensive as to interfere with the interests of the public. Knutton v. Cofield, 273 N.C. 355, 160 S.E.2d 29 (1968).

Contracts tending only to partially restrain trade are enforceable where: (1) They are founded on a valuable consideration; (2) the restrictions imposed are reasonably necessary to protect the legitimate interest of the covenantee; and (3) the limitations or restrictions are reasonable as to time and area. Quadro Stations, Inc. v. Gilley, 7 N.C. App. 227, 172 S.E.2d 237 (1970).

Reasonableness of Restraints As to Time. - Covenants in restraint of trade are not unreasonable as to time if their duration is no longer than reasonably necessary to afford fair protection to the covenantee and not so long as to be injurious to the public. Quadro Stations, Inc. v. Gilley, 7 N.C. App. 227, 172 S.E.2d 237 (1970).

Where the duration of the restraint is limited as to time, the mere length of the period of time during which the restraint is to operate, standing alone, is never sufficient to render the restrictive covenant not to compete ipso facto unenforceable. Quadro Stations, Inc. v. Gilley, 7 N.C. App. 227, 172 S.E.2d 237 (1970).

A period of 25 years is not an unduly long time to expect property purchased for gasoline service station purposes to continue to be applied to such use. Quadro Stations, Inc. v. Gilley, 7 N.C. App. 227, 172 S.E.2d 237 (1970).

Sufficiency of Consideration for Contract in Restraint of Trade. - A contract in restraint of trade, like any other contract, must be supported by a consideration, but, unless the contract be a fraud upon the party sought to be restrained or nudum pactum, courts ordinarily will not inquire into the adequacy of the consideration. It is sufficient that the contract shows on its face a legal and valuable consideration; but whether it is adequate or inadequate to the restraint imposed must be determined by the parties themselves upon their own view of all the circumstances attending the particular transaction. Jewel Box Stores Corp. v. Morrow, 272 N.C. 659, 158 S.E.2d 840 (1968).

Trade Practices Law Has No Application to Labor Contracts. - North Carolina's unfair and deceptive trade practices law regulates conduct between businesses and between sellers or lenders and consumers; it has no application to contracts between employers and employees. Roberson v. Dale, 464 F. Supp. 680 (M.D.N.C. 1979).

Refusal of legal directory publisher to publish attorney's "professional card" and failure of ABA and North Carolina State Bar to prevent publisher from refusing to do so was not in violation of this section and G.S. 75-1.1. See Hester v. Martindale-Hubbell, Inc., 659 F.2d 433 (4th Cir. 1981), cert. denied, 455 U.S. 981, 102 S. Ct. 1489, 71 L. Ed. 2d 691 (1982).

Threats to Retaliate Unless Competition Withdrawn. - Threats by one ice company that it would sell ice in the town of a second ice company, if that company continued to supply ice to a rival of the first company were not prohibited by former G.S. 75-5. Smith v. Morganton Ice Co., 159 N.C. 151, 74 S.E. 961 (1912).

Breach of warranty alone is not a violation of Chapter 75. Warren v. Guttanit, Inc., 69 N.C. App. 103, 317 S.E.2d 5 (1984).

Contributory negligence is not a defense to a Chapter 75 violation, and thus the trial judge did not err in failing to submit that issue to jury considering an unfair or deceptive trade practices claim. Winston Realty Co. v. G.H.G., Inc., 314 N.C. 90, 331 S.E.2d 677 (1985); United States Fire Ins. Co. v. Nationwide Mut. Ins. Co., 735 F. Supp. 1320 (E.D.N.C. 1990).

The provisions of the monopoly statutes apply to railroads just as they do to individuals and other corporations. Bennett v. Southern Ry., 211 N.C. 474, 191 S.E. 240 (1937).

Applicability of Chapter to Unfair Insurance Practices. - This Chapter is applicable to the sale of insurance, as Chapter 58 does not provide the exclusive remedy for those damaged by unfair trade practices in the insurance industry. Phillips v. Integon Corp., 70 N.C. App. 440, 319 S.E.2d 673 (1984).

In an action in which an insured alleged that an insurer failed to pay the full amount due under a commercial insurance policy for damage to property in violation of G.S. 58-63-15(11) and the Unfair and Deceptive Trade Practices Act (UDTPA), G.S. 75-1 et seq., the court analyzed the claim for unfair and deceptive acts or practices in the business of insurance as one brought pursuant to the UDTPA because only the Commissioner of Insurance could pursue an action pursuant to G.S. 58-63-15(11). Amatulli & Sons, LLC v. Great N. Ins. Co., - F. Supp. 2d - (W.D.N.C. Jan. 8, 2008).

Filed rate doctrine was applicable in the context of a suit under G.S. 75-1 et seq.; because the insured could not prove his claim without the rates set by the Insurance Commissioner being questioned, the filed rate doctrine precluded him from collaterally challenging those rates. Stutts v. Travelers Indem. Co., 200 N.C. App. 90, 682 S.E.2d 769 (2009), review denied, 363 N.C. 812, 693 S.E.2d 143, N.C. LEXIS 77 (2010).

Refusal of Insurers to Provide Chiropractic Treatment as Workers' Compensation Coverage. - Plaintiff chiropractors, alleging that defendant insurance companies had interfered with their contractual rights by refusing to honor employers' choices of chiropractors as providers of health care treatment to employees under the Workers' Compensation Act, that defendants had misrepresented to employer insureds that their workers' compensation policies did not provide coverage for chiropractic treatment, and that defendants had conspired among themselves and with members of the medical profession to deprive plaintiffs of business opportunities by refusing to pay for chiropractic services provided in compliance with the Act, an illegal restraint of trade in violation of this section and 15 U.S.C. § 1, could not maintain their action in superior court without first seeking relief from the Industrial Commission. North Carolina Chiropractic Ass'n v. Aetna Cas. & Sur. Co., 89 N.C. App. 1, 365 S.E.2d 312 (1988), remanding case to the trial court for entry of an order staying plaintiffs' action pending a determination of the underlying workers' compensation issues by the Commission.

Insurer's Letter Denying Further Coverage. - Letter in which an insurer, which had paid to an insured an amount that exceeded a jury's determination of the insured's amount of loss, informed the insured that the insured's claim for further payment under a commercial insurance policy for damage to insured property was rejected due to the insured's failure to document its claim properly was insufficient to support the insured's unfair and deceptive trade practices claim under G.S. 75-1 et seq. Amatulli & Sons, LLC v. Great N. Ins. Co., - F. Supp. 2d - (W.D.N.C. Jan. 8, 2008).

A contract whereby plaintiff invested $75,000 and was to receive in exchange, stock in a company to be formed by defendant was not within the scope of Chapter 75. Ward v. Zabady, 85 N.C. App. 130, 354 S.E.2d 369, cert. denied, 320 N.C. 177, 358 S.E.2d 71 (1987).

Grant of Municipal Franchise. - A private sale of public utilities by the city authorities to an electrical power plant with a grant of a municipal franchise does not create or tend towards a monopoly. Allen v. Town of Reidsville, 178 N.C. 513, 101 S.E. 267 (1919).

Cable Television Systems. - Municipal ownership and operation of cable television systems does not violate the provisions of this Chapter. Madison Cablevision, Inc. v. City of Morganton, 325 N.C. 634, 386 S.E.2d 200 (1989).

City's refusal to grant cable television franchises to private applicants did not violate the exclusive emoluments and monopoly clauses of N.C. Const., Art. I, §§ 32 and 34, or the antimonopoly and unfair trade practices provisions of Chapter 75. Madison Cablevision, Inc. v. City of Morganton, 325 N.C. 634, 386 S.E.2d 200 (1989).

Ordinance Restricting Sale of Commodity. - A municipal ordinance prohibiting the sale of milk within the city without a permit is not invalid as tending to create a monopoly although the permit "may be suspended or revoked at any time for cause." State v. Kirkpatrick, 179 N.C. 747, 103 S.E. 65 (1920).

Exclusive Sale for Specified Period. - A contract made in good faith between a vendor and purchaser of a certain particular make or character of a manufactured product that restricts the former from selling articles of the same make or kind to other dealers within the town wherein the purchaser conducts his mercantile business, and which requires the expenditure of large sums of money and much time in advertising the goods and popularizing them on the local market, does not come within the intent and meaning of this Chapter; and in vendor's action for the purchase price the seller may recover damages as a counterclaim for breach of the seller's contract in that respect. Mar-Hof Co. v. Rosenbacker, 176 N.C. 330, 97 S.E. 169 (1918).

The refusal by wholesalers of ice to sell to a retailer on the same terms as those offered to other retailers in the city was not a violation of former G.S. 75-5, it not appearing that the parties were business competitors. Rice v. Asheville Ice Co., 204 N.C. 768, 169 S.E. 707 (1933).

Agreement Contravening Section. - A single instrument whereby the owner of lands leased same to an oil company rent free, and the oil company subleased the property back to the owner rent free, upon agreement that only the petroleum products of the oil company should be sold at the filling station, was held void, since the only consideration was the promise of the oil company to sell its products to the owner and the promise of the owner to handle such products to the exclusion of similar merchandise of competitors, which agreement was in contravention of former G.S. 75-5, and this result was not affected by a recital in the writing that the owner signed same as part of consideration for a deed to the property executed by a third person. Arey v. Lemons, 232 N.C. 531, 61 S.E.2d 596 (1950).

An exclusive dealership in one make of automobile in a particular city, while it necessarily involves a limited monopoly to sell this product of the manufacturer in the area covered thereby, is not invalid as an unreasonable restraint on trade, the agreement not being between competitors but imposing restraint upon a manufacturer and in favor of its dealer. Waldron Buick Co. v. GMC, 254 N.C. 117, 118 S.E.2d 559 (1961).

Charging Wholesale Prices While Fixing Retail Prices. - Evidence presented by plaintiff, to the effect that defendant wholesaler was charging its wholesale prices to plaintiff and at the same time setting plaintiff 's retail prices, thus putting plaintiff at a competitive disadvantage, when viewed in the light most favorable to plaintiff, was sufficient to establish per se violations of both subdivisions (b)(2) and (b)(7) of this section. Baynard v. Service Distrib. Co., 78 N.C. App. 796, 338 S.E.2d 622 (1986).

Terminated Negotiations. - District court declined to reconsider its decision awarding the chemical and oil companies summary judgment on the polymer manufacturer's unfair and deceptive trade practices claim arising from the parties' terminated contract negotiations where the manufacturer failed to establish negligent misrepresentation or any other conduct that was immoral, unethical, oppressive, unscrupulous, or substantially injurious. Tolaram Polymers, Inc. v. Shell Chem. Co., - F. Supp. 2d - (M.D.N.C. Aug. 16, 2002).

Claim Not Outside a Contractual Arbitration Provision. - Court denied a Chapter 7 trustee's motion to reconsider its order granting in part a bank's motion to stay an adversary proceeding in favor of arbitration, as the debtor's claim under the North Carolina Unfair and Deceptive Trade Practices Act, G.S. 75-1, was not constitutionally core, and its potential relationship to the fraud alleged to have occurred in formation of the lending agreements did not exclude it from the claims that had to be referred to arbitration under the arbitration clause in the parties' agreement. TP, Inc. v. Bank of Am., N.A. (In re TP, Inc.), 486 B.R. 698 (Bankr. E.D.N.C. 2013).

Motion for Directed Verdict Properly Granted. - In sublessee's claims of civil conspiracy, unfair and deceptive trade practices, and punitive damages regarding the termination of a lease (1) submission of the civil conspiracy claim to the jury was not justified by the evidence, as the evidence showed only a suspicion or conjecture that a conspiracy in fact existed; (2) submission of the unfair and deceptive trade practices claim was not justified, as the record was devoid of evidence to support the claim; and (3) submission of the punitive damages claims was not justified because the evidence did not support the underlying claims of civil conspiracy and unfair and deceptive trade practices and because there was no evidence to support the sublessee's contentions that the landlords' and the subtenant's actions were fraudulent, willful or wanton, or malicious. Di Frega v. Pugliese, 164 N.C. App. 499, 596 S.E.2d 456 (2004).

Applied in Simmons v. C.W. Myers Trading Post, Inc., 307 N.C. 122, 296 S.E.2d 294 (1982); Angola Farm Supply & Equip. Co. v. FMC Corp., 59 N.C. App. 272, 296 S.E.2d 503 (1982); Williams v. State Farm Mut. Auto. Ins. Co., 67 N.C. App. 271, 312 S.E.2d 905 (1984); Norlin Indus., Inc. v. Music Arts, Inc., 67 N.C. App. 300, 313 S.E.2d 166 (1984); Jennings v. Lindsey, 69 N.C. App. 710, 318 S.E.2d 318 (1984); North Carolina ex rel. Edmisten v. P.I.A. Asheville, Inc., 740 F.2d 274 (4th Cir. 1984); Cooper v. Forsyth County Hosp. Auth., 604 F. Supp. 685 (M.D.N.C. 1985); First Value Homes, Inc. v. Morse, 86 N.C. App. 13, 359 S.E.2d 42 (1987); Southern Pines Chrysler-Plymouth, Inc. v. Chrysler Corp., 826 F.2d 1360 (4th Cir. 1987); Sewell Plastics, Inc. v. Coca-Cola Co., 720 F. Supp. 1196 (W.D.N.C. 1989); Nixon v. Alan Vester Auto Group, Inc., - F. Supp. 2d - (M.D.N.C. Feb. 12, 2009).

Cited in Bennett v. Southern Ry., 211 N.C. 474, 191 S.E. 240 (1937); Patterson v. Southern Ry., 219 N.C. 23, 12 S.E.2d 652 (1941); Harris v. Atlantic-Richfield Co., 469 F. Supp. 759 (E.D.N.C. 1978); Pinehurst Airlines v. Resort Air Servs., Inc., 476 F. Supp. 543 (M.D.N.C. 1979); Ratliff v. Burney, 505 F. Supp. 105 (W.D.N.C. 1981); Stearns v. Genrad, Inc., 564 F. Supp. 1309 (M.D.N.C. 1983); Lloyd v. Carnation Co., 61 N.C. App. 381, 301 S.E.2d 414 (1983); Mackey v. Nationwide Ins. Cos., 724 F.2d 419 (4th Cir. 1984); WCCB-TV, Inc. v. Telerep, Inc., 601 F. Supp. 284 (W.D.N.C. 1984); Evans v. Mitchell, 74 N.C. App. 730, 329 S.E.2d 681 (1985); Cooper v. Forsyth County Hosp. Auth., 789 F.2d 278 (4th Cir. 1986); Newton v. Whitaker, 83 N.C. App. 112, 349 S.E.2d 333 (1986); Olivetti Corp. v. Ames Bus. Sys., 319 N.C. 534, 356 S.E.2d 578 (1987); Sampson-Bladen Oil Co. v. Walters, 86 N.C. App. 173, 356 S.E.2d 805 (1987); Myers v. Liberty Lincoln-Mercury, Inc., 89 N.C. App. 335, 365 S.E.2d 663 (1988); Pelican Watch v. United States Fire Ins. Co., 90 N.C. App. 140, 367 S.E.2d 351 (1988); Carefree Carolina Communities, Inc. v. Cilley, 90 N.C. App. 766, 370 S.E.2d 81 (1988); Iredell Digestive Disease Clinic v. Petrozza, 92 N.C. App. 21, 373 S.E.2d 449 (1988); North Carolina ex rel. Long v. Alexander & Alexander Servs., Inc., 680 F. Supp. 746 (E.D.N.C. 1988); Sandcrest Outpatient Servs. v. Cumberland County Hosp. Sys., 853 F.2d 1139 (4th Cir. 1988); Carefree Carolina Communities, Inc. v. Cilley, 90 N.C. App. 766, 370 S.E.2d 81 (1988); Iredell Digestive Disease Clinic v. Petrozza, 92 N.C. App. 21, 373 S.E.2d 449 (1988); Sewell Plastics, Inc. v. Coca-Cola Co., 720 F. Supp. 1186 (W.D.N.C. 1988); Copley Triangle Assocs. v. Apparel Am., Inc., 96 N.C. App. 263, 385 S.E.2d 201 (1989); Adams v. Moore, 96 N.C. App. 359, 385 S.E.2d 799 (1989); Murrow Furn. Galleries, Inc. v. Thomasville Furn. Indus., Inc., 889 F.2d 524 (4th Cir. 1989); North Carolina ex rel. Long v. Alexander & Alexander Servs., Inc., 711 F. Supp. 257 (E.D.N.C. 1989); Surratt v. Newton, 99 N.C. App. 396, 393 S.E.2d 554 (1990); North Carolina Steel, Inc. v. National Council on Comp. Ins., 123 N.C. App. 163, 472 S.E.2d 578 (1996), aff'd in part and rev'd in part, 347 N.C. 627, 496 S.E.2d 369 (1998); Nursing Registry, Inc. v. Eastern N.C. Regional Emergency Medical Servs. Consortium, Inc., 959 F. Supp. 298 (E.D.N.C. 1997); Pisgah Contractors v. Rosen, 117 F.3d 133 (4th Cir. 1997); North Carolina Steel, Inc. v. National Council Comp. Ins., 347 N.C. 627, 496 S.E.2d 369 (1998); R.J. Reynolds Tobacco Co. v. Philip Morris Inc., 60 F. Supp. 2d 502 (N.D.N.C. 1999); Stephenson v. Warren, 136 N.C. App. 768, 525 S.E.2d 809 (2000); Poor v. Hill, 138 N.C. App. 19, 530 S.E.2d 838 (2000); Lupton v. Blue Cross & Blue Shield of N.C. 139 N.C. App. 421, 533 S.E.2d 270 (2000), cert. denied, 353 N.C. 266, 546 S.E.2d 105 (2000); Burgess v. Busby, 142 N.C. App. 393, 544 S.E.2d 4 (2001); R. J. Reynolds Tobacco Co. v. Philip Morris Inc., 199 F. Supp. 2d 362 (M.D.N.C. 2002); Dash v. FirstPlus Home Loan Trust 1996-2, 248 F. Supp. 2d 489 (M.D.N.C. 2003); Price v. Leasecomm Corp., (M.D.N.C. Mar. 31, 2004); Good Hope Hosp., Inc. v. N.C. HHS, Div. of Facility Servs., 1 74 N.C. App. 266, 620 S.E.2d 873 (2005); Hanamint Corp. v. Alliant Mktg. Group, LLC, 481 F. Supp. 2d 444 (M.D.N.C. 2007); Strates Shows, Inc. v. Amusements of Am., Inc., 184 N.C. App. 455, 646 S.E.2d 418 (2007); Universal Furniture Int'l, Inc. v. Collezione Europa, USA, Inc., 599 F. Supp. 2d 648 (M.D.N.C. 2009); Bumpers v. Cmty. Bank of N. Va., 367 N.C. 81, 747 S.E.2d 220 (2013); Mitchell v. Pruden, 251 N.C. App. 554, 796 S.E.2d 77 (2017).

II. PARTIAL RESTRAINT OF TRADE.

The true test now generally applied to agreements in partial restraint of trade is whether the restraint is such as to afford a fair protection to the interests of the party in whose favor it is given, and not so large as to interfere with the interests of the public. Quadro Stations, Inc. v. Gilley, 7 N.C. App. 227, 172 S.E.2d 237 (1970).

Agreements in Partial Restraint of Trade May Be Upheld. - Agreements in partial restraint of trade will be upheld when they are founded on valuable considerations, are reasonably necessary to protect the interest of the parties in whose favor they are imposed, and do not unduly prejudice the public interest. Waldron Buick Co. v. GMC, 254 N.C. 117, 118 S.E.2d 559 (1961); Quadro Stations, Inc. v. Gilley, 7 N.C. App. 227, 172 S.E.2d 237 (1970).

III. AGREEMENT NOT TO COMPETE.

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An individual's voluntary contractual restraint on his right to carry on his trade or calling is prima facie illegal and must be shown to be reasonable by the party seeking to enforce it. Rose v. Vulcan Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973).

Agreement Not to Compete May Be Forbidden. - Persons and corporations cannot be ordered to compete, but they properly can be forbidden to give directions, or make agreements, not to compete. State v. Craft, 168 N.C. 208, 83 S.E. 772 (1914).

Restraint Must Be Reasonable. - A limitation or restriction upon a person's right to engage in a lawful occupation or business is deemed detrimental to the public interest, unless the restraint imposed is reasonable under the proper tests. Waldron Buick Co. v. GMC, 254 N.C. 117, 118 S.E.2d 559 (1961).

Test as to Reasonableness. - A valid contract in partial restraint of trade, while primarily for the advantage of the purchaser of a business, inures to the benefit of the seller by enhancing the value of the goodwill and enabling him to obtain a better price for the sale of his business, the test as to territory being whether the restraint agreed upon is such as to afford a fair protection to the interest of the party in whose favor it is given, and not so large as to interfere with the interest of the public; and such will not be held to be unreasonable when they do not affect the public and go no further than to remove the danger to the purchaser of competition with the seller. Morehead Sea Food Co. v. Way, 169 N.C. 679, 86 S.E. 603 (1915).

In connection with the sale of a business, including goodwill, the validity of a covenant providing that the seller will not engage in business in competition with the buyer is determinable by these tests: (1) Is it reasonably necessary to protect the legitimate interest of the purchaser? (2) Is the limitation or restriction reasonable in respect of both time and territory? Waldron Buick Co. v. GMC, 254 N.C. 117, 118 S.E.2d 559 (1961).

It is the rule today that when one sells a trade or business and, as an incident of the sale, covenants not to engage in the same business in competition with the purchaser, the covenant is valid and enforceable (1) if it is reasonably necessary to protect the legitimate interest of the purchaser; (2) if it is reasonable with respect to both time and territory; and (3) if it does not interfere with the interest of the public. Jewel Box Stores Corp. v. Morrow, 272 N.C. 659, 158 S.E.2d 840 (1968); Beasley v. Banks, 90 N.C. App. 458, 368 S.E.2d 885 (1988).

Enforceability of Covenant Not to Compete. - To be enforceable, a covenant not to compete must protect some substantial interest of the employer. Wilmar, Inc. v. Liles, 13 N.C. App. 71, 185 S.E.2d 278 (1971), cert. denied, 208 N.C. 305, 186 S.E.2d 178 (1972).

By this section, contracts in restraint of trade are made illegal in North Carolina; however, in this State a covenant not to compete is enforceable in equity if it is (1) in writing, (2) entered into at the time and as a part of the contract of employment, (3) based on valuable considerations, (4) reasonable both as to time and territory embraced in the restrictions, (5) fair to the parties and (6) not against public policy. Forrest Paschal Mach. Co. v. Milholen, 27 N.C. App. 678, 220 S.E.2d 190 (1975); Brooks Distrib. Co. v. Pugh, 91 N.C. App. 715, 373 S.E.2d 300 (1988), rev'd on other grounds, 324 N.C. 326, 378 S.E.2d 31 (1989).

If covenants not to compete are included in contracts of employment, when the employment preexists the execution of the contracts, there must be some additional consideration to the employee to support his covenant not to compete. Wilmar, Inc. v. Liles, 13 N.C. App. 71, 185 S.E.2d 278 (1971), cert. denied, 208 N.C. 305, 186 S.E.2d 178 (1972).

A restrictive covenant not to compete which is the main purpose of a contract and not a subordinate feature is not protected as to enforceability by the exceptions afforded ancillary contracts in restraint of trade permissible in connection with the sale of a going business, a contract of employment, or a lease. Wilmar, Inc. v. Liles, 13 N.C. App. 71, 185 S.E.2d 278 (1971), cert. denied, 208 N.C. 305, 186 S.E.2d 178 (1972).

Since defendant's covenant not to compete lacked an essential element, a statement of any kind of consideration, it was invalid as a matter of law, and the trial court properly dismissed charges as to defendant. Brooks Distrib. Co. v. Pugh, 91 N.C. App. 715, 373 S.E.2d 300 (1988), rev'd on other grounds, 324 N.C. 326, 378 S.E.2d 31 (1989).

Excluded Territory Must Not Be Unreasonably Extensive. - The territory excluded from competition by an agreement such as this one must be no greater than is reasonably necessary to protect the covenantee's business interest, and if it is unreasonably extensive the entire covenant fails since equity will neither enforce nor reform an overreaching and unreasonable agreement. Beasley v. Banks, 90 N.C. App. 458, 368 S.E.2d 885 (1988).

Reasonableness of Restraints as to Time and Area Considered Together. - Although a valid covenant not to compete must be reasonable as to both time and area, these two requirements are not independent and unrelated aspects of the restraint. Each must be considered in determining the reasonableness of the other. Furthermore, neither is conclusive of the validity of the covenant, but both are important factors in settling that question. Jewel Box Stores Corp. v. Morrow, 272 N.C. 659, 158 S.E.2d 840 (1968).

Whether plaintiff's covenant meets the other requisites need not be determined when it is obvious that plaintiff's judgment is invalid and the covenant involved is unenforceable because the territory excluded from competition is unreasonably extensive. Beasley v. Banks, 90 N.C. App. 458, 368 S.E.2d 885 (1988).

Legitimate Business Interest. - In North Carolina a legitimate business interest is a business interest, not fictitious, which, when weighed against the public's interest in a free economic arena, is worthy of protection in order to encourage and stimulate business efforts and innovations. United Labs., Inc. v. Kuykendall, 87 N.C. App. 296, 361 S.E.2d 292 (1987), aff'd in part and rev'd in part, 322 N.C. 643, 370 S.E.2d 375 (1988).

Restrictive Stipulations in Sale of Business Usually Sustained. - Transactions involving the sale and disposition of a business, trade or profession between individuals with stipulations restrictive of competition on the part of the vendor do not, as a rule, tend to unduly harm the public and are ordinarily sustained to the extent required to afford reasonable protection to the vendee in the enjoyment of property or proprietary rights he has bought and paid for, and to enable a vendor to dispose of his property at its full and fair value. Mar-Hof Co. v. Rosenbacker, 176 N.C. 330, 97 S.E. 169 (1918).

A longer period of time in a covenant not to compete is justified where the area in which competition is prohibited is relatively small. Jewel Box Stores Corp. v. Morrow, 272 N.C. 659, 158 S.E.2d 840 (1968).

The modern rule permitting the sale of goodwill recognizes that one who, by his skill and industry, builds up a business, acquires a property right in the goodwill of his patrons and that this property is not marketable unless the owner is at liberty to sell his right of competition to the full extent of the field from which he derives his profit and for a reasonable length of time. Where the contract is between individuals or between private corporations, which do not belong to the quasi-public class, there is no reason why the general rule that the seller should not be allowed to fix the time for the operation of the restriction so as to command the highest market price for the property he disposes of should apply. Jewel Box Stores Corp. v. Morrow, 272 N.C. 659, 158 S.E.2d 840 (1968).

Intention to Sell Goodwill. - Where a person sells a business and in connection therewith agrees not to engage in the same business in the same place, the obvious intention is to sell the goodwill of the business. Jewel Box Stores Corp. v. Morrow, 272 N.C. 659, 58 S.E.2d 840 (1968).

Contracts Not to Compete Held Valid. - A provision of an agreement for the sale of a partner's interest that he would not again engage in the mercantile business in a certain town or near enough thereto to interfere with plaintiff 's business was not in violation former G.S. 75-5. Wooten v. Harris, 153 N.C. 43, 68 S.E. 898 (1910).

Non-competition agreement was valid and enforceable under North Carolina law; information obtained through a salesman's efforts during the course of employment did not belong to employee; furthermore, employee's knowledge about the buying habits of customers, the cyclical nature of their ordering, and the special needs of customers was not generally available to the public. United Labs., Inc. v. Kuykendall, 322 N.C. 643, 370 S.E.2d 375 (1988).

Where employment agreement between parties prohibited employee from working anywhere within North Carolina and where employee's employment contacts were restricted to Wilminston area, employment contract did not restrict all competition between employee and employer throughout North Carolina but rather only prohibited the direct or indirect solicitation of employer's customers and accounts for specified two-year period; therefore, the noncompetition clause was reasonable as to both time and territory and its terms were enforceable. Triangle Leasing Co. v. McMahon, 327 N.C. 224, 393 S.E.2d 854 (1990).

An exchange of the defendant's fish business for stock in the plaintiff company, with an agreement not to engage in similar business for 10 years within 100 miles was valid, and not in violation of former G.S. 75-5. Morehead Sea Food Co. v. Way, 169 N.C. 679, 86 S.E. 603 (1915).

A covenant by the owner of a jewelry store not to engage in jewelry business competition with the purchaser within 10 miles of the city where the seller's jewelry store is located for a period of 10 years, is not void as being unreasonable as to time or territory. Jewel Box Stores Corp. v. Morrow, 272 N.C. 659, 158 S.E.2d 840 (1968).

Where non-competition covenant contained no fixed geographic restriction, but was operative for only six months following resignation or termination of independent contractor relationship and forbade participation only in companies "using a similar matrix marketing structure or handling similar products," it was not unreasonable as a matter of law. Market Am., Inc. v. Christman-Orth, 134 N.C. App. 234, 520 S.E.2d 570 (1999).

Non-competitive clause contained in independent distributor agreement was valid, as a covenant not to compete is enforceable in equity if it is: (1) in writing; (2) entered into at the time and as part of a contract of employment; (3) based on valuable consideration; (4) reasonable both as to time and territory embraced in the restrictions; (5) fair to the parties; and (6) not against public policy; and the court has held that non-competition clauses are applicable to independent contractor relationships. Market Am., Inc. v. Christman-Orth, 134 N.C. App. 234, 520 S.E.2d 570 (1999).

Covenants restricting use of property for purposes competitive with those of the covenantees have generally been held to be enforceable where they involve only partial restraints of trade, are found on sufficient consideration and are reasonably limited as to duration and area covered. Quadro Stations, Inc. v. Gilley, 7 N.C. App. 227, 172 S.E.2d 237 (1970).

Although the courts will not tolerate unreasonable restraints upon trade, and frown upon restrictions upon the free use of land, there is no doubt of the validity, under ordinary circumstances, of a restriction imposed by a lessor, ancillary to a leasing of part of his property, upon the remainder of the property owned or controlled. Quadro Stations, Inc. v. Gilley, 7 N.C. App. 227, 172 S.E.2d 237 (1970).

It appears to be well settled that the seller or lessor of property (as distinguished from business or goodwill) may be a reasonably limited restrictive promise agree to refrain from (1) himself engaging in, or (2) from disposing of his property in such a way that others can engage in, a business which would impair the value of the property to the buyer for the purpose for which he intended to use it. Quadro Stations, Inc. v. Gilley, 7 N.C. App. 227, 172 S.E.2d 237 (1970).

The owner of a business, who also owns land nearby, may sell or lease such land to a buyer or tenant who promises not to use it for business purposes in competition with that of the seller or lessor. Here, the restriction is limited to the use of the land transferred. Or, the owner of a tract of land or business block may sell or lease a portion thereof to one intending to use it for a particular purpose, making to him an ancillary promise not to permit the remaining part of the tract or building to be used for a competitive business purpose. These agreements are usually sustained as being reasonable, even though the purpose is to prevent competition and no business goodwill is being transferred. Quadro Stations, Inc. v. Gilley, 7 N.C. App. 227, 172 S.E.2d 237 (1970).

Agreement by Employee Not to Compete with Employer. - The validity of a covenant in a contract of employment providing that, upon termination of the employer-employee relationship, the employee will not engage in a business in competition with the employer, is determinable by these tests: (1) Is it founded on a valuable consideration? (2) Is it reasonably necessary to protect the legitimate interests of the employer? (3) Is the limitation or restriction reasonable in respect of both time and territory? Waldron Buick Co. v. GMC, 254 N.C. 117, 118 S.E.2d 559 (1961); United Labs., Inc. v. Kuykendall, 87 N.C. App. 296, 361 S.E.2d 292 (1987), aff'd in part and rev'd in part, 322 N.C. 643, 370 S.E.2d 375 (1988).

In North Carolina, agreements between employers and employees which restrain trade are valid and enforceable if they are (1) in writing, (2) made a part of the employment contract, (3) based on valuable consideration, (4) designed to protect the legitimate interests of the employer and (5) reasonable in respect to both time and territory. The question of whether an agreement meets these criteria is a matter of law for the court to decide. United Labs., Inc. v. Kuykendall, 87 N.C. App. 296, 361 S.E.2d 292 (1987), aff'd in part and rev'd in part, 322 N.C. 643, 370 S.E.2d 375 (1988).

Consideration for sale of goodwill and withdrawal from competition may be found in the general consideration for the sale of the business. Jewel Box Stores Corp. v. Morrow, 272 N.C. 659, 158 S.E.2d 840 (1968).

Contracts Not to Compete Held Unenforceable. - Trial court's denial of preliminary injunction for plaintiff doctor who sought enforcement of a covenant not to compete between himself and another doctor would be affirmed where the contract was void as against public policy, since enforcement would leave only one gastroenterologist to serve the community and would negatively impact upon patient consumers. Iredell Digestive Disease Clinic v. Petrozza, 92 N.C. App. 21, 373 S.E.2d 449 (1988), aff'd, 324 N.C. 327, 377 S.E.2d 750 (1989).

Where, among other things, covenant not to compete prohibited employee's association with an employer anywhere in the world if the new employer indirectly competed with employer's company in the Greensboro locale, its practical effect was to limit employee's employment within the solid state electronic equipment industry only to companies that did not compete with the Greensboro branch office and surrounding area in any manner, regardless of how far away employee moved to obtain work, regardless of the position employee accepted and regardless of the protection of the company's interest at the time by the trial court's injunction on employee prohibiting disclosure of information acquired while he worked with the company; therefore, the covenant violated the public's and employee's interest in his earning a living, and the trial judge correctly denied the company's request for a preliminary injunction enforcing the noncompetition clause of the contract. Electrical S., Inc. v. Lewis, 96 N.C. App. 160, 385 S.E.2d 352 (1989), cert. denied, 326 N.C. 595, 393 S.E.2d 876 (1990).

IV. PLEADING AND PRACTICE.

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A general averment without allegation of specific facts is insufficient to constitute a cause of action, under this and the following sections. State v. Standard Oil Co., 205 N.C. 123, 170 S.E. 134 (1933).

Market Power. - Defendants' motion for summary judgment was granted as to plaintiffs' G.S. 75-1 claim because plaintiffs had not presented any evidence that defendants had market power. Oceans One Eleven, LLC v. Beach Mart, Inc., - F. Supp. 2d - (E.D.N.C. Oct. 15, 2008).

Burden of Proving Unreasonableness of Business Practices in Restraint of Trade. - As to business practices, not within the scope of the original common-law rule of restraint of trade but alleged to be in restraint of trade on the ground that they are unreasonable restrictions on competition, the burden is on the one asserting their illegality to prove their unreasonableness. Such restraints are not prima facie illegal and must be shown to be so. Rose v. Vulcan Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973); United Roasters, Inc. v. Colgate-Palmolive Co., 485 F. Supp. 1041 (E.D.N.C. 1979).

Concerted Action Must Be Proven. - The plain language of this section requires that some concerted action in restraint of trade must be proven; unilateral action cannot violate the statute. Cameron v. New Hanover Mem. Hosp., 58 N.C. App. 414, 293 S.E.2d 901, cert. denied and appeal dismissed, 307 N.C. 127, 297 S.E.2d 399 (1982).

In an action that a retailer brought against a manufacturer that refused to sell its new golf products to retailers that discounted prices, a retailer could not show the concerted action necessary to establish a violation of G.S. 75-1 and G.S. 75-1.1(a) because the manufacturer's decision to institute its new product introduction policy was a unilateral action. MD Prods. v. Callaway Golf Sales Co., 459 F. Supp. 2d 434 (W.D.N.C. 2006).

Direct proof of an express agreement is not required. On the contrary, the plaintiff may rely on an inference of a common understanding drawn from circumstantial evidence. Nevertheless, plaintiff has the burden of adducing sufficient evidence from which the jury could find illegal concerted action on the basis of reasonable inferences and not mere speculation. Cameron v. New Hanover Mem. Hosp., 58 N.C. App. 414, 293 S.E.2d 901, cert. denied and appeal dismissed, 307 N.C. 127, 297 S.E.2d 399 (1982).

Evidence of Consideration Inadmissible. - Where agreement not to compete was not internally related to some other writing from which the necessary contract provisions could be determined, did not contain any statement of obligation flowing from the employer to the employee, and contained no reference to consideration whatsoever, evidence to show consideration was inadmissible. Brooks Distrib. Co. v. Pugh, 91 N.C. App. 715, 373 S.E.2d 300 (1988), rev'd on other grounds, 324 N.C. 326, 378 S.E.2d 31 (1989).

Evidence Necessary to Show Contract Violates Rule of Reason. - Without evidence of facts peculiar to the business to which the restraint is applied, its condition before and after the restraint was imposed, the nature of the restraint and its effect, actual or probable, a contract cannot be said to be in violation of the rule of reason. Rose v. Vulcan Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973).

Public damage must be alleged and proven. United Roasters, Inc. v. Colgate-Palmolive Co., 485 F. Supp. 1041 (E.D.N.C. 1979).

Actual Competition Need Not Be Shown. - So long as the defendant in a restraint of trade case willfully engaged in acts that are calculated to destroy competition in a particular market, it is irrelevant whether the defendant is actually engaged in the market. Only an intention and capacity to compete against is essential; actual competition need not be shown. United Roasters, Inc. v. Colgate-Palmolive Co., 485 F. Supp. 1041 (E.D.N.C. 1979).

Reduction of Prices to Consuming Public No Defense. - Plaintiff, a carrier by truck, instituted this action against certain railroad companies, to recover damages to his business, which he alleged resulted from an unlawful conspiracy between defendants to reduce transportation rates in order to eliminate plaintiff as a competitor, with the purpose of raising rates after competition had been removed. Defendants alleged that the reduction in rates resulted in lower prices to the consuming public on the products on which the rates had been reduced. It was held that the matter alleged does not constitute a defense to the action, since the express policy of the State is against both the raising and lowering of prices by unlawful means for an unlawful purpose, and since the law is interested in preserving competition rather than obtaining for the public temporary benefits from price wars in which competition is extinguished. Patterson v. Southern Ry., 214 N.C. 38, 198 S.E. 364 (1938).

Termination of Oral Agreement Unfair. - Where lawn mower company orally agreed to purchase all of its requirements for specially designed footrest pads from manufacturer as long as quality parts were delivered at competitive prices, and defendant, without giving plaintiff an opportunity to meet competitor's lower bid, terminated the agreement and began buying pads from another supplier at a lower price, conduct constituted an unfair and deceptive trade practice. Custom Molders, Inc. v. Roper Corp., 101 N.C. App. 606, 401 S.E.2d 96, aff'd per curiam, 330 N.C. 191, 410 S.E.2d 55 (1991).

For decision using rationale for dismissal under the Sherman Act, 15 U.S.C. §§ 1 and 2, as rationale for dismissal of claims under this section, see Sewell Plastics, Inc. v. Coca-Cola Co., 720 F. Supp. 1196 (W.D.N.C. 1989), aff'd in part and remanded in part, 912 F.2d 463 (4th Cir. 1990).

Class Actions. - Appellate court affirmed a trial court's judgment denying a motion filed by a person who represented a class of consumers to intervene in a class action filed under G.S. 75-1 et seq., where the class representative had already objected to a proposed settlement in a timely manner at a fairness hearing and had the right to appeal the trial court's judgment approving settlement without intervening. Nicholson v. F. Hoffmann-Laroche, Ltd., 156 N.C. App. 206, 576 S.E.2d 363 (2003).

Transfer of claims. - In an action by a patent holder holder against an alleged infringer claiming patent infringement, as well as breach of contract and unfair trade practices under N.C. Gen. Stat. ch. 75, following the transfer of the patent holders' patent claims to a different venue, the breach of contract and unfair trade practices claims were transferred to that venue as well because the convenience of parties and witnesses and the interest of justice were best served by transferring those claims to the same venue that the patent holder's patent claims were transferred to. Carolina Archery Prods. v. Alpine Archery, Inc., - F. Supp. 2d - (M.D.N.C. June 15, 2004).

Standing to Bring Antitrust and Consumer Fraud Action. - Trial court erred in dismissing pursuant to G.S. 1A-1, N.C. R. Civ. P. 12(b)(6) for lack of standing a consumer's action alleging that manufacturers violated G.S. 75-1 and G.S. 75-1.1 by engaging in price fixing of ethylene propylene diene monomor elastomers (EPDM) because the consumer had standing to bring the antitrust and consumer fraud action; if the consumer could demonstrate that the increased EPDM prices affected the price of the goods he purchased, then he would have established the type of injury to indirect purchasers that the General Assembly intended to remedy by allowing indirect purchaser suits, and although a rigorous economic analysis would be required to determine whether increased prices were the result of the alleged price fixing or the result of some other factor, that was not sufficient reason to dismiss for lack of standing. Teague v. Bayer AG, 195 N.C. App. 18, 671 S.E.2d 550 (2009).

Trial court erred in dismissing pursuant to G.S. 1A-1, N.C. R. Civ. P. 12(b)(6) for lack of standing a consumer's action alleging that manufacturers violated G.S. 75-1 and G.S. 75-1.1 by engaging in price fixing of ethylene propylene diene monomor elastomers (EPDM) because the consumer had standing to bring the antitrust and consumer fraud action; the factors the United States Supreme Court identified in Associated Gen. Contractors v. Carpenters, 459 U.S. 519, 74 L. Ed. 2d. 723 (1983) to determine standing under federal antitrust law do not apply in determining which indirect purchasers have standing to sue under the North Carolina antitrust statutes. Teague v. Bayer AG, 195 N.C. App. 18, 671 S.E.2d 550 (2009).

V. AGREEMENT TO FIX PRICES.

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Reasonableness of Agreement to Raise Price Immaterial. - An agreement among dealers in a necessary article of food, to raise its price, is an indictable offense at the common law, and evidence that dealers controlling a large part of the supply of milk in a town having by agreement raised its price, testimony is irrelevant that a dealer not a party to the agreement had also raised the price of his milk to his customers, or whether the agreement was reasonable or necessary for the article to yield a profit in its sale. State v. Craft, 168 N.C. 208, 83 S.E. 772 (1914).

Intent Immaterial. - The intent of milk dealers combining to raise the price of milk is immaterial. State v. Craft, 168 N.C. 208, 83 S.E. 772 (1914).

VI. AGREEMENT NOT TO DEAL WITH SELLER'S COMPETITORS.

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Equipment purchase contract which contained a provision requiring plaintiff to sell only fuel supplied by defendant violated former G.S. 75-5(b)(2) which prohibited a seller from requiring that a purchaser not deal with a computer. Roanoke Properties v. Spruill Oil Co., 110 N.C. App. 443, 429 S.E.2d 752 (1993).

VII. PRICE DISCRIMINATION.

.

Not Illegal Per Se. - A contract establishing a price discrimination is not illegal per se. Rose v. Vulcan Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973).

Former G.S. 75-5(b)(5) was not intended to outlaw price discrimination in the secondary line, and no reasonable construction of the statute produced that result. Rose v. Vulcan Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973).

Discrimination Not Allowed as to Similarly Situated Patrons. - Where a public service corporation has acquired the exclusive right to furnish hydroelectric power and light to municipalities, and to other public service corporations, for distribution to consumers, including subsidiary companies that it controls, it may not discriminate among its patrons under the same or substantially similar conditions as to the rate charged, or select its customers. North Carolina Pub. Serv. Co. v. Southern Power Co., 179 N.C. 18, 101 S.E. 593 (1919), rehearing dismissed, 179 N.C. 330, 102 S.E. 625 (1920).

VIII. DESTROYING OR INJURING COMPETITION IN ORDER TO FIX PRICES.

.

Destruction of Business in This State of a National Concern. - Former G.S. 75-5(b)(3) made unlawful the destruction or attempted destruction of the business, i.e., the commercial activity, within North Carolina of a competitor or business rival, with the purpose of attempting to fix the price of goods when the competition is removed. In other words, it would be unlawful to attempt to destroy the business in North Carolina of a national concern, as well as a local concern unaffected by out-of-state conduct or without out-of-state contacts. American Rockwool, Inc. v. Owens-Corning Fiberglas Corp., 640 F. Supp. 1411 (E.D.N.C. 1986).

"Willful" Defined. - "Willful" means the wrongful doing of an act without justification or excuse. State v. Atlantic Ice & Coal Co., 210 N.C. 742, 188 S.E. 412 (1936).

Opinion Testimony from Dealers. - Where in the prosecution for violation of former G.S. 75-5(b)(3) the State was allowed to introduce the testimony of coal dealers in the same city as to the cost of handling coal, the opinion testimony being based upon complicated and detailed facts relating to costs of buying, shipping, trucking, handling, shrinkage, labor, repairs, etc., the witnesses having had years of experience in operating their respective businesses in the city, it was held that the witnesses were experts and their opinion testimony was competent and was properly received in evidence. State v. Atlantic Ice & Coal Co., 210 N.C. 742, 188 S.E. 412 (1936).

Evidence Was Irrelevant Where Parties Not in Competition. - Where the parties were not in competition in the retail market for 2-liter bottles of soda, evidence that defendant attempted to force plaintiff to raise the retail price of his two-liter bottles, though applicable to plaintiff's unfair practices claim, had no relevance to his claim under former G.S. 75-5. Owens v. Pepsi Cola Bottling Co., 330 N.C. 666, 412 S.E.2d 636 (1992).

IX. DIVISION OF TERRITORY.

.

Division of Territory Held Unenforceable. - Under a contract dividing a county into separate territory, within which each of the respective parties was not to interfere with the business of the other in operating cotton gins, etc., the plaintiff sold the defendant a cotton ginning plant, the latter agreeing to remove the plant and not to again operate one there, the intent of the agreement was a division of territory, with the object to eliminate competition therein, and the agreement will not be enforced. Shute v. Shute, 176 N.C. 462, 97 S.E. 392 (1918).

An agreement that a retailer should handle a certain product upon condition that he should not sell like products of other manufacturers within the same price range was prohibited by former G.S. 75-5. Florsheim Shoe Co. v. Leader Dep't Store, Inc., 212 N.C. 75, 193 S.E. 9 (1937).

X. RESALE PRICE MAINTENANCE.

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Contract to Sell at Label Price. - A contract of sale of merchandise for resale by the buyer, which stipulates that the buyer will not sell the merchandise except at label prices and will not sell or permit the sale of any other similar merchandise, was violative of former G.S. 75-5. Standard Fashion Co. v. Grant, 165 N.C. 453, 81 S.E. 606 (1914), writ dismissed, 239 U.S. 654, 36 S. Ct. 164, 60 L. Ed. 487 (1915).

XI. ELIMINATION OF COMPETITION.

.

Combination of Railroads to Eliminate Motor Truck Competition. - A combination of railroads for the purpose of reducing rates on gasoline transportation within a certain area with the intent to eliminate motor truck competition and with the further purpose of raising and fixing a higher rate on the same commodity after the elimination of competition was a violation of former G.S. 75-5. Bennett v. Southern Ry., 211 N.C. 474, 191 S.E. 240 (1937).

Attempt to Drive Competitor Out of Business. - An indictment charging that the employees of a rival company in the sale of lawful commodities had combined together to break up their competitor's business by systematically following its salesmen from house to house and place to place and to so abuse, vilify and harass them as to deter them in their lawful business and to break up their sales; that they falsely represented that their rival company was composed of a set of thieves and liars, endeavoring to cheat and defraud the people, etc., charges a conspiracy indictable at common law. State v. Dalton, 168 N.C. 204, 83 S.E. 693 (1914).

Severance Agreement. - Former chief executive officer's claim of unfair and deceptive trade practices failed as the CEO claimed that a severance agreement restrained trade; contracts restraining trade were not per se prohibited by G.S. 75-1 and G.S. 75-2, and the severance agreement did not violate common law principles. McKinnon v. CV Indus., 213 N.C. App. 328, 713 S.E.2d 495 (2011).

Question of Fact Shown. - There was a genuine issue of material fact as to whether defendants' act of submitting documents to the county board of commissioners was done in an attempt willfully to destroy or injure plaintiffs' business in county and as to whether company was attempting to eliminate any competition from another company in county, and whether this act constituted an unfair or deceptive trade practice which was in commerce and proximately injured the plaintiffs. Martin Marietta Corp. v. Wake Stone Corp., 111 N.C. App. 269, 432 S.E.2d 428 (1993), aff'd, 339 N.C. 602, 453 S.E.2d 146 (1995).

I. GENERAL CONSIDERATION.

Constitutionality in Application. - The language of this section provides adequate notice that conduct constituting fraud is prohibited. Therefore, this section was not unconstitutional as applied in case involving fraud in a distributor-dealer relationship. Olivetti Corp. v. Ames Bus. Sys., 81 N.C. App. 1, 344 S.E.2d 82 (1986), aff'd in part and rev'd in part on other grounds, 319 N.C. 534, 356 S.E.2d 578 (1987).

Legislative Intent. - It was the clear intention of the General Assembly in enacting this section and G.S. 75-16, among other things, to declare deceptive acts or practices in the conduct of any trade or commerce in North Carolina unlawful, to provide civil means to maintain ethical standards of dealings between persons engaged in business and the consuming public within this State and to enable a person injured by deceptive acts or practices to recover treble damages from a wrongdoer. Hardy v. Toler, 24 N.C. App. 625, 211 S.E.2d 809, modified on other grounds, 288 N.C. 303, 218 S.E.2d 342 (1975).

The intent of the General Assembly in enacting this section was to enable a person damaged by deceptive acts or practices to recover treble damages from the wrongdoer, and to declare deceptive acts or practices in the conduct of any trade or commerce to be unlawful, and to provide civil legal means to maintain ethical standards of dealings between persons in business and the consuming public of North Carolina. State ex rel. Edmisten v. J.C. Penney Co., 30 N.C. App. 368, 227 S.E.2d 141 (1976), rev'd on other grounds, 292 N.C. 311, 233 S.E.2d 895 (1977); Buie v. Daniel Int'l Corp., 56 N.C. App. 445, 289 S.E.2d 118, cert. denied, 305 N.C. 759, 292 S.E.2d 574 (1982).

The North Carolina Legislature must have intended that substantial aggravating circumstances be present before any practice is deemed unfair under this section, since it provided that any damages suffered by the victim are to be trebled. General United Co. v. American Honda Motor Co., 618 F. Supp. 1452 (W.D.N.C. 1985).

Purpose of the statute outlined in subsection (b) of this section makes clear that the act is directed toward maintaining ethical standards in dealings between persons engaged in business and to promote good faith at all levels of commerce in North Carolina. United Roasters, Inc. v. Colgate-Palmolive Co., 485 F. Supp. 1041 (E.D.N.C. 1979).

The apparent purpose behind the enactment of this section was the protection of the consuming public. Lindner v. Durham Hosiery Mills, Inc., 761 F.2d 162 (4th Cir. 1985).

The more recent pronouncements from the North Carolina Supreme Court concerning the applicability of this section emphasize the consumer protection purpose of the statute. Bunting v. Perdue, Inc., 611 F. Supp. 682 (E.D.N.C. 1985).

This section is designed, in part, to address the very real local concern that North Carolina businesses not be victimized by unfair methods of competition. American Rockwool, Inc. v. Owens-Corning Fiberglas Corp., 640 F. Supp. 1411 (E.D.N.C. 1986).

The purpose of this section is to provide a civil means to maintain ethical standards of dealings between persons engaged in business and the consuming public within this State, and it applies to dealings between buyers and sellers at all levels of commerce. United Va. Bank v. Air-Lift Assocs., 79 N.C. App. 315, 339 S.E.2d 90 (1986).

The law was enacted to establish an effective private cause of action for aggrieved consumers in this State, and it was needed because common law remedies had proved often ineffective. Bhatti v. Buckland, 328 N.C. 240, 400 S.E.2d 440 (1991).

Scope of Chapter. - Application of this Chapter is not unfettered. The statute itself exempts both "professional services rendered by a member of a learned profession," and acts by an advertising medium unaware of their "false, misleading or deceptive character." Bhatti v. Buckland, 328 N.C. 240, 400 S.E.2d 440 (1991).

This chapter authorizes the Attorney General to join as party defendants the assignees of sales contracts which were allegedly obtained in violation of it. State ex rel. Easley v. Rich Food Servs., Inc., 139 N.C. App. 691, 535 S.E.2d 84 (2000).

Where the seller was not engaged in the sale of her own home, she did not carry her burden of demonstrating that the transaction was beyond the scope of N.C.G.S. ch. 75. Willen v. Hewson, 174 N.C. App. 714, 622 S.E.2d 187 (2005), cert. denied, - N.C. - , 631 S.E.2d 520 (2006).

The 1977 amendments to this section constituted a substantive revision intended to expand the potential liability for certain proscribed acts. United Roasters, Inc. v. Colgate-Palmolive Co., 485 F. Supp. 1049 (E.D.N.C. 1980), aff'd, 649 F.2d 985 (4th Cir. 1981).

The 1977 amendment to this section, which deleted the term "trade" from the phrase "trade or commerce" and rewrote subsection (b), clearly constituted a substantive revision intended to expand the potential liability for certain proscribed acts. Talbert v. Mauney, 80 N.C. App. 477, 343 S.E.2d 5 (1986).

Legislative Intent of 1977 Amendment. - The courts have interpreted the legislature's action in 1977 of deleting the limiting language of "dealings within the state" as a desire expand the scope of this section to the limits of North Carolina's long-arm statute. Broussard v. Meineke Disct. Muffler Shops, Inc., 945 F. Supp. 901 (W.D.N.C. 1996).

The 1977 amendments to this section are not to be applied retroactively. United Roasters, Inc. v. Colgate-Palmolive Co., 485 F. Supp. 1049 (E.D.N.C. 1980), aff'd, 649 F.2d 985 (4th Cir. 1981).

The 1977 amendment to this section, which deleted the term "trade" from the phrase "trade or commerce" and rewrote subsection (b), clearly constituted a substantive revision intended to expand the potential liability for certain proscribed acts. Talbert v. Mauney, 80 N.C. App. 477, 343 S.E.2d 5 (1986).

Section Not Applicable to Lawyers and Law Firms. - In a suit brought by mortgagors against various defendants alleging various federal and North Carolina state law claims related to a mortgage on their home, a magistrate judge recommended granting the motion to dismiss for failure to state a claim filed by a law firm as to the mortgagors' claims against it under North Carolina Unfair and Deceptive Trade Practices Act, G.S. 75.1.1(b), because professional services, including claims against law firms and lawyers, are excluded under the Act. Bryant v. Wells Fargo Bank, N.A., - F. Supp. 2d - (E.D.N.C. Jan. 24, 2012).

Debt Collection Activities Not Covered by Section Prior to 1977 Amendment. - Under this section as it stood before the 1977 amendment it was held that debt collection activities of a department store chain did not come within this section because such activities are not trade in the ordinary sense although they could be considered a species of commerce. State ex rel. Edmisten v. J.C. Penney Co., 292 N.C. 311, 233 S.E.2d 895 (1977).

Breach of Contract Alone Is Insufficient. - Although a mere breach of contract does not constitute a violation of this section, a breach accompanied with aggravating circumstances, such as an intentional misrepresentation made for the purpose of deceiving another and which has the natural tendency to injure another, can violate the statute. Baldine v. Furniture Comfort Corp., 956 F. Supp. 580 (M.D.N.C. 1996).

A mere breach of contract, even if intentional, is not sufficiently unfair or deceptive to sustain an action under the Unfair Trade Practices; claims regarding the existence of an agreement, the terms contained in an agreement, and the interpretation of an agreement are relegated to the arena of contract law. Broussard v. Meineke Disct. Muffler Shops, Inc., 155 F.3d 331 (4th Cir. 1998).

While under North Carolina law plaintiff may maintain a breach of contract claim and an unfair and deceptive trade practices claim based on the same conduct, plaintiff must allege substantial aggravating circumstances attending the breach of contract to support a claim of unfair and deceptive trade. Charlotte Commer. Group, Inc. v. Fleet Nat'l Bank (In re Charlotte Commer. Group, Inc.), - F. Supp. 2d - (M.D.N.C. Mar. 13, 2003).

Actions for unfair or deceptive trade practices are distinct from actions for breach of contract, and that a mere breach of contract, even if intentional, is not sufficiently unfair or deceptive to sustain an action under G.S. 75-1.1; thus, a plaintiff must show substantial aggravating circumstances attending a breach of contract to recover under the North Carolina Unfair and Deceptive Trade Practice Act, G.S. 75-1 et seq. Watson Elec. Constr. Co. v. Summit Cos., LLC, 160 N.C. App. 647, 587 S.E.2d 87 (2003).

Defendant argued that plaintiff's allegations did not constitute a violation of North Carolina's unfair and deceptive trade practices statute, because a mere breach of contract, even if intentional, was not sufficiently unfair or deceptive to sustain an action. VF Jeanswear Ltd. P'ship v. Molina, 320 F. Supp. 2d 412 (M.D.N.C. 2004).

"Contractual center" of the Trustee's claims in this case closely mirrored the claims of the franchisees in Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331 (4th Cir. 1998). The Trustee failed to allege sufficient and specific facts that would establish "carefully circumscribed" aggravating factors that would give rise to a claim under G.S. ch. 75. NC & VA Warranty Co. v. Fidelity Bank (In re NC & VA Warranty Co.), 554 B.R. 110 (Bankr. M.D.N.C. 2016).

Courts applying North Carolina law have found that a simple breach of contract, even if intentional, does not amount to a North Carolina Unfair and Deceptive Act or Practice Act, G.S. 75-1.1, violation. Champion Pro Consulting Grp., LLC v. Impact Sports Football, LLC, - F. Supp. 2d - (M.D.N.C. July 15, 2015).

To establish a prima facie claim for unfair trade practices, the plaintiff must show: (1) defendant committed an unfair or deceptive act or practice, (2) the action in question was in or affecting commerce, and (3) the act proximately caused injury to the plaintiff. Pleasant Valley Promenade v. Lechmere, Inc., 120 N.C. App. 650, 464 S.E.2d 47 (1995).

Three-Pronged Test. - In order to establish a violation of this section, a plaintiff must meet a three-pronged test: there must be a showing of an unfair or deceptive act or practice, or an unfair method of competition; in or affecting commerce; and proximately causing actual injury to the plaintiff. Peterson v. Bozzano, 183 Bankr. 735 (Bankr. M.D.N.C. 1995).

A party claiming a violation of this section must prove: (1) an unfair or deceptive act or practice, or unfair method of competition, (2) in or affecting commerce, (3) which proximately caused actual injury to the plaintiff or his business. Wysong & Miles Co. v. Employers of Wausau, 4 F. Supp. 2d 421 (M.D.N.C. 1998).

The elements of a claim for unfair and deceptive practices are: (1) an unfair or deceptive act or practice, or an unfair method of competition, (2) in or affecting commerce, (3) which proximately caused actual injury to the plaintiff or to his business. Furr v. Fonville Morisey Realty, Inc., 130 N.C. App. 541, 503 S.E.2d 401 (1998), cert. dismissed, 351 N.C. 41, 519 S.E.2d 314 (1999).

To prevail on a claim of unfair and deceptive trade practices a plaintiff must show: (1) defendants committed an unfair or deceptive act or practice; (2) in or affecting commerce; and (3) that plaintiff was injured thereby. First Atl. Mgt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 507 S.E.2d 56 (1998).

Deliberate Acts of Deceit or Bad Faith Not Required. - To prevail on an unfair and deceptive trade practice claim, deliberate acts of deceit or bad faith do not have to be shown. Edwards v. West, 128 N.C. App. 570, 495 S.E.2d 920 (1998), cert. denied, 348 N.C. 282, 501 S.E.2d 918 (1998).

To prevail on an unfair trade practices claim, deliberate acts of deceit or bad faith do not have to be shown, but rather, the plaintiff must demonstrate that the act possessed the tendency or capacity to mislead, or that it created the likelihood of deception. Boyd v. Drum, 129 N.C. App. 586, 501 S.E.2d 91 (1998), aff'd, 350 N.C. 90, 511 S.E.2d 304 (1999).

Jurisdiction. - G.S. 1-75.4(4), as applied to defining the reach of this section, requires an in-state injury to plaintiff before plaintiff can state a valid unfair trade claim. The 'In' Porters v. Hanes Printables, Inc., 663 F. Supp. 494 (M.D.N.C. 1987).

Construction with Other Provisions. - Violation of any form of conduct listed in G.S. 58-63-15 operates as a per se instance of unfair and deceptive trade practice under this section. Murray v. Nationwide Mut. Ins. Co., 123 N.C. App. 1, 472 S.E.2d 358 (1996).

If a conclusion of law was made that a debt collector violated a provision of G.S. Ch. 75, Art. 2, then that violation could be a violation of G.S. 75-1.1, but a debt collector who violated a provision of G.S. Ch. 75, Art. 2 and thereby violated G.S. 75-1.1 was only subject to the damages and penalty provided for in G.S. 75-56 and was not subject to the damages provisions in G.S. Ch. 75, Art. 1. Friday v. United Dominion Realty Trust, Inc., 155 N.C. App. 671, 575 S.E.2d 532 (2003).

Failure to Prove Unfair Claims Practices Does Not Necessitate Judgment Against Claim for Unfair Trade Practices. - Award of treble damages and attorney fees under the North Carolina Unfair and Deceptive Trade Practices Act was not precluded by earlier summary judgment for the insurer on insured's claim under the North Carolina Unfair Claims Settlement Practices Act; failure to prove unfair claims practices does not independently necessitate judgment as a matter of law against a related claim for unfair trade practices. High Country Arts & Craft Guild v. Hartford Fire Ins. Co., 126 F.3d 629 (4th Cir. 1997).

As an agency of the State, a city may not be sued under Chapter 75. Rea Constr. Co. v. City of Charlotte, 121 N.C. App. 369, 465 S.E.2d 342 (1996).

Section Does Not Cover Every Dispute. - This expansive and somewhat confusing language has, for obvious reasons, made this section a favorite cause of action. Nonetheless, the courts have consistently recognized that this section does not cover every dispute between two parties. Hageman v. Twin City Chrysler-Plymouth Inc., 681 F. Supp. 303 (M.D.N.C. 1988).

Section Inapplicable to Internal Business Operations. - Defendant's action was not in or affecting commerce, as that term was used in G.S. 75-1.1, and such conduct was therefore not a violation of the North Carolina Unfair and Deceptive Practices Act, G.S. 75-1.1, because defendant's unfair conduct was solely within a single partnership and the Act was not intended to regulate purely internal business operations. White v. Thompson, 364 N.C. 47, 691 S.E.2d 676 (2010).

Application of Section to Third-Party Claimants. - North Carolina does not recognize any cause of action under either G.S. 58-63-15 or under this section for unfair or deceptive trade practices by third-party claimants against the insurance company of an adverse party. Lee v. Mutual Community Sav. Bank, 136 N.C. App. 808, 525 S.E.2d 854 (2000).

A third party who was not the insured and who was not in privity with the insurer did not have a cause of action against the insurer under G.S. 75-1.1, based upon G.S. 58-63-15(11). Anderson v. Lancaster Aviation, Inc., 220 F. Supp. 2d 524 (M.D.N.C. 2002).

United States District Court for the Middle District of North Carolina concluded that a student pilot who was injured during a forced landing was in privity with the insurer for purposes of stating a claim under G.S. 75-1.1, based upon G.S. 58-63-15(11), to the extent the student pilot was asserting a claim under a renter pilot extension in an insurance contract; however, the student was not in privity with respect to claims for coverage of medical expenses where the insured were not required under North Carolina law to carry certain specified insurance for their aircraft. Anderson v. Lancaster Aviation, Inc., 220 F. Supp. 2d 524 (M.D.N.C. 2002).

North Carolina did not recognize a cause of action for third-party claimants against the insurance company of an adverse party based on unfair and deceptive trade practices under G.S. 75-1.1; since a passenger brought a claim for personal injuries against a driver's insurer before the driver's liability was established judicially, he was not a third-party beneficiary of the policy, and his claim against the insurer was properly dismissed. Craven v. Demidovich, 172 N.C. App. 340, 615 S.E.2d 722 (2005), cert. denied, 360 N.C. 62, 623 S.E.2d 581 (2005).

Hospital was in privity with an insurer and was permitted to assert a claim for unfair or deceptive trade practices because the insurer was on notice of its duty to settle valid liens before disbursing funds directly to a pro se claimant, and the hospital provided the insurer with the required documentation. Nash Hosps., Inc. v. State Farm Mut. Auto. Ins. Co., 254 N.C. App. 726, 803 S.E.2d 256 (2017), review denied, 370 N.C. 578, 809 S.E.2d 869, 2018 N.C. LEXIS 128 (2018).

Employee stated a viable claim for unfair and deceptive trade practices because under the Workers' Compensation Act, the employee was an intended third-party beneficiary of his employer's insurance contract with an insurer; the insurer had an ongoing legal obligation to pay the employee as required by the Workers' Compensation Commission's opinion and award and the insurer's own insurance policy with the employer. Seguro-Suarez v. Key Risk Ins. Co., 261 N.C. App. 200, 819 S.E.2d 741 (2018).

Subsection (a) is reproduced verbatim from the Federal Trade Commission Act (FTCA), and the legislature adopted this section to parallel and supplement the FTC Act. As is evident from the statutory language, this section prohibits two separate, although related, types of conduct. The statute forbids conduct that is "unfair" and conduct that is "deceptive." Plaintiff herein claims that defendant engaged in deceptive conduct. Hageman v. Twin City Chrysler-Plymouth Inc., 681 F. Supp. 303 (M.D.N.C. 1988).

This Section Is Applicable to Full Extent Permissible. - By deleting the geographic limitation from this section, the General Assembly made this statute available to the full extent permissible under conflicts of law principles and the Constitution. American Rockwool, Inc. v. Owens-Corning Fiberglas Corp., 640 F. Supp. 1411 (E.D.N.C. 1986).

This section is intended to apply to extra-territorial conduct where such application is not constitutionally prohibited. American Rockwool, Inc. v. Owens-Corning Fiberglas Corp., 640 F. Supp. 1411 (E.D.N.C. 1986).

Section Applicable to Trade Secrets Protection Act. - This section is applicable to violations of the Trade Secrets Protection Act (G.S. 66-152 et seq.). Drouillard v. Keister Williams Newspaper Servs., Inc., 108 N.C. App. 169, 423 S.E.2d 324 (1992), cert. denied, 333 N.C. 344, 427 S.E.2d 617 (1993).

Section Inapplicable to Foreign Injuries with Negligible Effect on North Carolina Commerce. - This section is not available to a foreign plaintiff suing a resident defendant over alleged foreign injuries having a negligible effect, if any, on North Carolina trade or commerce. The 'In' Porters v. Hanes Printables, Inc., 663 F. Supp. 494 (M.D.N.C. 1987).

To state a claim for an unfair or deceptive trade practice in or affecting commerce which would fall within the reach of this section, plaintiff must allege a substantial effect on in-state business operations. Merck & Co. v. Lyon, 941 F. Supp. 1443 (M.D.N.C. 1996).

Incidental Interstate Effect Not Excessive. - When applied to concerted multi-state conduct resulting in injury to North Carolina residents, this section may have an incidental interstate effect, but that effect is not excessive in light of the local interests served and its minimal burden upon other states which recognize the common-law action for disparagement as applicable to the operative facts. American Rockwool, Inc. v. Owens-Corning Fiberglas Corp., 640 F. Supp. 1411 (E.D.N.C. 1986).

Application of this section and G.S. 75-5(b)(3) to conduct occurring outside of North Carolina is not preempted by federal statute. American Rockwool, Inc. v. Owens-Corning Fiberglas Corp., 640 F. Supp. 1411 (E.D.N.C. 1986).

Extra-Territorial Product Disparagement. - There is no constitutional prohibition against a private cause of action under this section or former G.S. 75-5(b)(3) for the extra-territorial conduct of product disparagement directed respectively toward a North Carolina competitor or the business in North Carolina of a competitor, North Carolina having a rational interest in each situation. American Rockwool, Inc. v. Owens-Corning Fiberglas Corp., 640 F. Supp. 1411 (E.D.N.C. 1986).

Relation Between This Section and Former G.S. 75-5(b)(3). - Any act which is a violation of former G.S. 75-5(b)(3) would also be considered to be a violation of this section, since former G.S. 75-5(b)(3) simply sets out specific conduct which is considered to be illegal and an unfair competitive act. Unlike the language of this section, however, the statutory language of former G.S. 75-5(b)(3) explicitly delineates the conduct prohibited within the limitations of the statutory language. American Rockwool, Inc. v. Owens-Corning Fiberglas Corp., 640 F. Supp. 1411 (E.D.N.C. 1986).

Effect on Competition Not Required. - By its terms, this section requires that the proscribed unfair methods of competition and unfair or deceptive acts or practices be "in or affecting commerce." Nothing in the statute requires an effect on competition. American Rockwool, Inc. v. Owens-Corning Fiberglas Corp., 640 F. Supp. 1411 (E.D.N.C. 1986).

This section does not define term "deceptive." Accordingly, the North Carolina courts have borrowed the expansive definition of "deception" that the federal courts have traditionally employed in interpreting the FTC Act. Hageman v. Twin City Chrysler-Plymouth Inc., 681 F. Supp. 303 (M.D.N.C. 1988).

An action for unfair or deceptive acts or practices is a distinct action apart from fraud, breach of contract, or breach of warranty. Since the remedy was created partly because those remedies often were ineffective, it would be illogical to hold that only those methods of measuring damages could be used. To rule otherwise would produce the anomalous result of recognizing that although this section creates a cause of action broader than traditional common-law actions, G.S. 75-16 limits the availability of any remedy to cases where some recovery at common law would probably also lie. Bernard v. Central Carolina Truck Sales, Inc., 68 N.C. App. 228, 314 S.E.2d 582, cert. denied, 311 N.C. 751, 321 S.E.2d 126 (1984).

An action for unfair and deceptive trade practices is a distinct action separate from fraud, breach of contract, and breach of warranty. United Virginia Bank v. Air-Lift Assocs., 79 N.C. App. 315, 339 S.E.2d 90 (1986).

And Neither Wholly Tortious Nor Contractual in Nature. - An action for unfair or deceptive acts or practices is the creation of statute. It is, therefore, sui generis, and is neither wholly tortious nor wholly contractural in nature. Bernard v. Central Carolina Truck Sales, Inc., 68 N.C. App. 228, 314 S.E.2d 582, cert. denied, 311 N.C. 751, 321 S.E.2d 126 (1984).

A violation of G.S. 58-63-15 constitutes an unfair and deceptive trade practice in violation of this section as a matter of law. Miller v. Nationwide Mut. Ins. Co., 112 N.C. App. 295, 435 S.E.2d 537 (1993), cert. denied, 335 N.C. 770, 442 S.E.2d 519 (1994).

This section is separate and distinct from any contractual relationship between plaintiff and defendants. United Virginia Bank v. Air-Lift Assocs., 79 N.C. App. 315, 339 S.E.2d 90 (1986).

Statute Inapplicable to Breach of Contract. - A breach of contract, even if intentional, does not fall within the purview of this section. Pappas v. NCNB Nat'l Bank, 653 F. Supp. 699 (M.D.N.C. 1987).

Causes of Action Are Not Assignable. - Causes of action pursuant to this section cannot be assigned. Investors Title Ins. Co. v. Herzig, 330 N.C. 681, 413 S.E.2d 268 (1992).

Because unfair practice claims pursuant to G.S. 75-1-1 could not be assigned, borrowers' claims were properly dismissed to the extent that they concerned the actions of their original creditor, who was not a party to the suit. However, to the extent that the borrowers stated claims against appellees under the Truth in Lending Act, 15 U.S.C.S. § 1601 et seq., and for usury, their unassigned unfair practice claims could proceed. Gilbert v. Residential Funding LLC, 678 F.3d 271 (4th Cir. 2012).

The language of this section closely parallels that of Federal Trade Commission Act, 15 U.S.C. § 45(a)(1) (1973 Ed.), which prohibits "unfair or deceptive acts or practices in commerce." Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342 (1975); State ex rel. Edmisten v. J.C. Penney Co., 30 N.C. App. 368, 227 S.E.2d 141 (1976), rev'd on other grounds, 292 N.C. 311, 233 S.E.2d 895 (1977).

Antitrust Matters. - This section is a comprehensive law designed to include within its reach the federal antitrust laws. L.C. Williams Oil Co. v. Exxon Corp., 625 F. Supp. 477 (M.D.N.C. 1985).

Proof of conduct violative of the Sherman Act (15 U.S.C. § 1) is proof sufficient to establish a violation of the North Carolina Unfair Trade Practices Act. ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42 (4th Cir. 1983), cert. denied, 469 U.S. 1215, 105 S. Ct. 1191, 84 L. Ed. 2d 337 (1985).

The federal decisions construing the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1), may furnish some guidance to the meaning of this section, but federal court decisions are not controlling in construing this section. State ex rel. Edmisten v. J.C. Penney Co., 292 N.C. 311, 233 S.E.2d 895 (1977). See also, Eastern Roofing & Aluminum Co. v. Brock, 70 N.C. App. 431, 320 S.E.2d 22 (1984).

Unlike other state trade regulation statutes, this section does not require or direct reference to the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1), for its interpretation. State ex rel. Edmisten v. J.C. Penney Co., 292 N.C. 311, 233 S.E.2d 895 (1977).

Because of the similarity in language of this section and § 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. § 45(a)(1)), it is appropriate for the Supreme Court to look to the federal decisions interpreting the FTC Act for guidance in construing the meaning of this section. Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 266 S.E.2d 610 (1980); Ken-Mar Fin. v. Harvey, 90 N.C. App. 362, 368 S.E.2d 646, cert. denied, 323 N.C. 365, 373 S.E.2d 545 (1988).

Since the language of subsection (a) of this section is strikingly similar to that of a section of the Federal Trade Commission Act, 15 U.S.C.S. § 45(a)(1), North Carolina courts have held that federal decisions construing that act are instructive upon the meaning of this section. Cameron v. New Hanover Mem. Hosp., 58 N.C. App. 414, 293 S.E.2d 901, cert. denied and appeal dismissed, 307 N.C. 127, 297 S.E.2d 399 (1982).

This section is reproduced verbatim from section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1) (1982), and the courts interpreting and applying this section have deemed it appropriate to look to the federal decisions interpreting the federal act for guidance in construing its meaning. Lindner v. Durham Hosiery Mills, Inc., 761 F.2d 162 (4th Cir. 1985).

Federal Preemption. - National Flood Insurance Act of 1968 (NFIA), as amended, 42 U.S.C.S. § 4001 et seq., preempted plaintiff's state law claim under the North Carolina's Unfair and Deceptive Trade Practice Act relating to defendant flood insurer's claims handling of plaintiff's flood insurance claim; subjecting "write-your-own" flood insurance companies to North Carolina's bad faith statutes would have frustrated NFIA's objectives. Peal v. N.C. Farm Bureau Mut. Ins. Co., 212 F. Supp. 2d 508 (E.D.N.C. 2002).

Motion to dismiss was granted on the state unfair and deceptive trade practices claim because the claim was preempted by the federal copyright act; the state claim elements were not extra elements making it different from the infringement claim. Old S. Home Co. v. Keystone Realty Group, Inc., 233 F. Supp. 2d 734 (M.D.N.C. 2002).

Federal copyright law preemption under 17 U.S.C.S. § 301(a) requires: (1) that state law rights are claimed in works that are within the subject matter of the copyright, and (2) the state law is subject to preemption only if the state law cause of action lacks an extra element that would make the state law action qualitatively different than a federal law copyright infringement claim; therefore, where a copyright holder sued an alleged infringer for its use without prior approval of a certain dragonfly image on its website, the infringer's unfair and deceptive trade practices claim under G.S. 75-1.1 was preempted by federal copyright law because there was no extra element in the G.S. 75-1.1 action that made it qualitatively different from a federal copyright claim. Iconbazaar, L.L.C. v. Am. Online, Inc., 308 F. Supp. 2d 630 (M.D.N.C. 2004).

Defendants' motion to strike references in plaintiff's complaint to G.S. 58-63-15(11) and G.S. 75-1.1 was granted because plaintiff's state claims were preempted by the Employee Retirement Income Security Act, 29 U.S.C.S. §§ 1001-1461; by incorporating those acts specified in G.S. 58-63-15(11), by including any acts considered "unethical" in the insurance industry and by providing trebled damages for violations, G.S. 75-1.1 provided for relief in addition to and outside of that available under 29 U.S.C.S. § 1132(a)(1)(B) and becomes that "separate vehicle" which was completely preempted and not saved under 29 U.S.C.S. § 1144(b)(2)(A). Smith v. Jefferson Pilot Fin. Ins. Co., 367 F. Supp. 2d 839 (M.D.N.C. 2005).

In an action in which a former employee alleged that prospective employers refused to hire her based on information contained in a report that her former employer filed with a consumer reporting agency, the employee's claim for unfair and deceptive trade practices under G.S. 75-1.1 was preempted by 15 U.S.C.S. § 1681t(b)(1)(F) of the Fair Credit Reporting Act because the claim arose under state statutory law and the claim was based on action taken by the former employer while furnishing information to a consumer reporting agency. Joiner v. Revco Disc. Drug Ctrs., Inc., 467 F. Supp. 2d 508 (W.D.N.C. 2006).

With respect to plaintiff's North Carolina Unfair and Deceptive Trade Practices Act (UDTPA), G.S. 75-1.1 et seq., claim, the Fair Credit Reporting Act (FCRA), 15 U.S.C.S. § 1681 et seq., preempted the claim to the extent the claim was based on defendant's alleged reporting of false loan information; to the extent plaintiff alleged a UDTPA claim based on the bank's alleged unfair debt collection practices, plaintiff failed to show that the bank proximately caused her damages. Ross v. Wash. Mut. Bank, 566 F. Supp. 2d 468 (E.D.N.C. 2008), aff'd 625 F.3d 808, 2010 U.S. App. LEXIS 22454 (4th Cir. N.C. 2010).

Consumer's claims under the North Carolina Unfair and Deceptive Trade Practices Act, G.S. 75-1.1, were preempted by the FCRA's preemption provision, 15 U.S.C.S. § 1681t(b)(1)(F), and defendant mortgage company did not act with the malice or willful intent to injure necessary for the § 1681h(e) exception. Ross v. FDIC, 625 F.3d 808 (4th Cir. 2010), cert. denied, 180 L. Ed. 2d 824, 2011 U.S. LEXIS 4520, (U.S. 2011).

The Petroleum Marketing Practices Act, 15 U.S.C. § 2806(a), did not preempt this section or G.S. 25-1-102(3) or the common law duty of good faith dealing as they arose in litigation involving wrongful termination of a franchise. L.C. Williams Oil Co. v. Exxon Corp., 627 F. Supp. 864 (M.D.N.C. 1985).

The provisions of the UCC are not exclusive and do not preclude an action for unfair and deceptive trade practices. United Va. Bank v. Air-Lift Assocs., 79 N.C. App. 315, 339 S.E.2d 90 (1986).

This chapter is applicable to commercial transactions which are also regulated by the UCC. United Va. Bank v. Air-Lift Assocs., 79 N.C. App. 315, 339 S.E.2d 90 (1986).

Relation Between This Section and G.S. 75-16. - As an essential element of a cause of action under G.S. 75-16, plaintiff must prove not only a violation of this section by the defendants, but also that plaintiff has suffered actual injury as a proximate result of defendants' misrepresentations. Ellis v. Smith-Broadhurst, Inc., 48 N.C. App. 180, 268 S.E.2d 271 (1980); Owens v. Pepsi Cola Bottling Co., 95 N.C. App. 47, 381 S.E.2d 819 (1989), modified on other grounds, 330 N.C. 666, 412 S.E.2d 636 (1992).

This section is an act for the protection of consumers and that G.S. 75-16 was intended to create an effective private remedy for aggrieved consumers. American Craft Hosiery Corp. v. Damascus Hosiery Mills, Inc., 575 F. Supp. 816 (W.D.N.C. 1983).

This section and G.S. 75-16 were not intended to apply to cases involving innocent and unintentional infringement of unregistered trademarks. Sideshow, Inc. v. Mammoth Records, Inc., 751 F. Supp. 78 (E.D.N.C. 1990).

To be a prevailing party within the meaning of G.S. 75-16.1, the plaintiff must prove both an actual violation of this section and actual injury to plaintiff as a result of the violation. Evans v. Full Circle Prods., Inc., 114 N.C. App. 777, 443 S.E.2d 108 (1994).

Existing Institutional Health Service Was Exempted As Professional Health Care Provider. - Subsection (b) exempts professional services rendered by a member of a learned profession, and an existing institutional health service was exempted as a professional health care provider. Abram v. Charter Medical Corp. of Raleigh, 100 N.C. App. 718, 398 S.E.2d 331 (1990), cert. denied, 328 N.C. 328, 402 S.E.2d 828 (1991).

Political Advertisement. - Political campaign committee was not insulated from an unfair trade practices claim by a law firm for publishing a political advertisement defaming the firm and one of its members because of the fact that the ad was published during a political campaign. Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25, 568 S.E.2d 893 (2002), cert. denied, - U.S. - , 124 S. Ct. 431, 157 L. Ed. 2d 310 (2003).

Because evidence that creates a genuine issue of material fact as to claims of fraud or negligent misrepresentation also inherently creates genuine issues of material fact sufficient to present a G.S. 75-1.1 et seq. claim to a jury, based on the evidence offered in support of plaintiff's underlying claims of fraud and negligent misrepresentation, the court was not able to conclusively determine that plaintiff could not prevail under any circumstances on its statutory claim; accordingly, genuine issues of material fact existed as to whether defendant's acts constituted a violation of G.S. 75-1.1 et seq. Volumetrics Med. Imaging, Inc. v. ATL Ultrasound, Inc., 243 F. Supp. 2d 386 (M.D.N.C. 2003).

What Must Be Proved to Prevail. - In order to prevail under this section and G.S. 75-16, trustee must show that (1) the acts or practices in question are "in or affecting commerce"; (2) the acts or practices in question had the capacity or tendency to deceive or were unfair; and (3) the debtor suffered actual injury as a proximate result of credit union's acts or practices. Petersen v. State Employees Credit Union (In re Kittrell), 115 Bankr. 873 (Bankr. M.D.N.C. 1990).

Recovery according to this chapter is limited to those situations when a plaintiff can show that he detrimentally relied upon a statement or misrepresentation and he suffered actual injury as a proximate result of defendant's deceptive statement or misrepresentation. Forbes v. Par Ten Group, Inc., 99 N.C. App. 587, 394 S.E.2d 643 (1990), cert. denied, 99 N.C. 587, 402 S.E.2d 824 (1991).

It was for the jury to decide whether sellers of real property who allegedly misrepresented the presence or absence of pollutants on the property had committed fraud, and it was error to grant judgment notwithstanding the verdict on that issue; if the buyers could prove fraud they could prove unfair business practices, and could also claim treble damages. State Props., L.L.C. v. Ray, 155 N.C. App. 65, 574 S.E.2d 180 (2002), cert. denied, 356 N.C. 694, 577 S.E.2d 889 (2003).

Bankruptcy trustee's claim for deceptive practices against a creditor "of last resort" that specialized in high risk loans was without merit where the creditor fully disclosed the terms of the loan and there was no other evidence of misrepresentation. Whitaker v. Mortg. Miracles, Inc. (In re Summit Place, LLC), 298 B.R. 62 (Bankr. W.D.N.C. 2002).

Unfair or deceptive trade practices claim brought pursuant to G.S. 75-1.1 et seq. failed since there was a complete lack of proof as to which parties had contracted and what the terms of any such agreement were. S.B. Simmons Landscaping & Excavating, Inc. v. Boggs, 192 N.C. App. 155, 665 S.E.2d 147 (2008).

Debtors' action seeking disallowance of creditor's claim under Unfair and Deceptive Trade Practices Act (UDTPA) and North Carolina Debt Collection Act (NCDCA) was inappropriate backdoor avenue and debtors were cautioned against reasserting this cause of action in amended complaint unless they had sustained actual and proximate damages compensable under these acts. Batten v. Panatte, LLC (In re Batten), - Bankr. - (Bankr. E.D.N.C. Feb. 22, 2019).

Established Business Relationship Required. - established business relationship between the parties is a factor in evaluating a North Carolina Unfair and Deceptive Act or Practice Act, G.S. 75-1.1, claim because the statute is directed toward maintaining ethical standards in dealings between persons engaged in business. Champion Pro Consulting Grp., LLC v. Impact Sports Football, LLC, - F. Supp. 2d - (M.D.N.C. July 15, 2015).

Egregious or Aggravating Circumstance Required. - Some type of egregious or aggravating circumstances must be alleged and proved before this section's provisions may be applied. Allied Distribs., Inc. v. Latrobe Brewing Co., 847 F. Supp. 376 (E.D.N.C. 1993).

A mere breach of contract, even if intentional, is not sufficiently unfair or deceptive to sustain an action under the Unfair and Deceptive Trade Practices Act. The plaintiff must demonstrate substantial aggravating circumstances attending the breach. Canady v. Crestar Mtg. Corp., 109 F.3d 969 (4th Cir. 1997).

Generally, the type of conduct that has been found sufficient to constitute a substantial aggravating factor under the North Carolina Unfair and Deceptive Act or Practice Act, G.S. 75-1.1, has generally involved forged documents, lies, and fraudulent inducements. Champion Pro Consulting Grp., LLC v. Impact Sports Football, LLC, - F. Supp. 2d - (M.D.N.C. July 15, 2015).

Preemption by the Copyright Act of 1976. - Where plaintiff's claims under this section were based solely upon defendant's copying of plaintiff's designs; therefore, these claims for unfair competition and unfair trade practices were preempted by the Copyright Act of 1976, 17 U.S.C. § 301. Patsy Aiken Designs, Inc. v. Baby Togs, Inc., 701 F. Supp. 108 (E.D.N.C. 1988).

In order to escape preemption under the Copyright Act of 1976, 17 U.S.C. § 301, a state law claim of unfair competition must include some qualitatively different extra element besides copying; a cause of action containing this extra element is not equivalent to any of the exclusive rights within the general scope of copyright within the meaning of G.S. 301, and is therefore not preempted. Patsy Aiken Designs, Inc. v. Baby Togs, Inc., 701 F. Supp. 108 (E.D.N.C. 1988).

The common law provides some guidance in unfair competition cases, but the Unfair Trade Practice Act was enacted in part because common-law remedies had often proved ineffective. Pinehurst, Inc. v. O'Leary Bros. Realty, 79 N.C. App. 51, 338 S.E.2d 918, cert. denied, 316 N.C. 378, 342 S.E.2d 896 (1986).

Common-Law Defenses Are Not Relevant. - An action for unfair deceptive acts or practices is sui generis. Therefore, traditional common-law defenses such as contributory negligence or good faith are not relevant; what is relevant is the effect of the actor's conduct on the consuming public. Concrete Serv. Corp. v. Investors Group, Inc., 79 N.C. App. 678, 340 S.E.2d 755, cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986).

When the same course of conduct supports claims for fraud and for an unfair or deceptive trade practice under this Chapter, recovery can be had on either claim, but not on both. Wilder v. Hodges, 80 N.C. App. 333, 342 S.E.2d 57 (1986).

Actions may assert both violations under this section and fraud based on the same conduct or transaction, and plaintiffs in such actions may receive punitive damages or be awarded treble damages, but may not have both. It would be manifestly unfair to require plaintiffs in such cases to elect before the jury has answered the issues and the trial court has determined whether to treble the compensatory damages found by the jury, and such election should be allowed in the judgment. Mapp v. Toyota World, Inc., 81 N.C. App. 421, 344 S.E.2d 297, cert. denied, 318 N.C. 283, 347 S.E.2d 464 (1986).

To be actionable under this Chapter, an act of deception must have some adverse impact on the individual or entity deceived. Miller v. Ensley, 88 N.C. App. 686, 365 S.E.2d 11 (1988).

A simple breach of contract, even if intentional, does not amount to a violation of the Act; a plaintiff must show substantial aggravating circumstances attending the breach to recover under the Act, which allows for treble damages. Bartolomeo v. S.B. Thomas, Inc., 889 F.2d 530 (4th Cir. 1989).

Plaintiff Need Not Prove Fraud, Bad Faith or Intentional Deception. - To prevail in an action under this Chapter, a purchaser of misrepresented merchandise does not have to prove fraud, bad faith or intentional deception as at common law; it is enough that the goods bought were misrepresented, assuming that the other requisites of the action are proved. Myers v. Liberty Lincoln-Mercury, Inc., 89 N.C. App. 335, 365 S.E.2d 663 (1988).

Under this section, intent of the defendant and good faith are irrelevant. Chastain v. Wall, 78 N.C. App. 350, 337 S.E.2d 150 (1985), cert. denied, 316 N.C. 375, 342 S.E.2d 891 (1986).

Erroneous Interpretation of Law Is Not Unfair Act. - To assert in good faith a claim predicated on an erroneous interpretation of the law is not an unfair act proscribed by this section, as the remedy therefor lies in the law itself, such that such an erroneous view will not prevail. Branch Banking & Trust Co. v. Columbian Peanut Co., 649 F. Supp. 1116 (E.D.N.C. 1986).

The remedies provided pursuant to this section are equitable in nature and should not be frustrated by narrow or strict applications of procedural rules. Moretz v. Northwestern Bank, 67 N.C. App. 312, 313 S.E.2d 8, cert. denied, 311 N.C. 761, 321 S.E.2d 141 (1984).

Treble Damages Required and Attorney's Fees Permissible. - If the trial court finds that a defendant has violated the Unfair and Deceptive Trade Practices Act, it must award treble damages, and it may, in its discretion, award attorney's fees. Canady v. Crestar Mtg. Corp., 109 F.3d 969 (4th Cir. 1997).

Election of Remedies Required. - Pursuant to the doctrine of election of remedies, a party may not recover twice based on the same conduct; a trial court erred in awarding the buyers in a used car purchase transaction treble damages under both G.S. 20-348(a) and again under N.C.G.S., ch. 75. Blankenship v. Town & Country Ford, Inc., 174 N.C. App. 764, 622 S.E.2d 638 (2005).

The presence of other federal or state statutory schemes may limit the scope of this section. Lindner v. Durham Hosiery Mills, Inc., 761 F.2d 162 (4th Cir. 1985).

Securities transactions are not within the scope of this section. Lindner v. Durham Hosiery Mills, Inc., 761 F.2d 162 (4th Cir. 1985); Skinner v. E.F. Hutton & Co., 314 N.C. 267, 333 S.E.2d 236 (1985).

The North Carolina Unfair Trade Practices Act does not apply to securities transactions. City Nat'l Bank v. American Commonwealth Fin. Corp., 801 F.2d 714 (4th Cir. 1986), cert. denied, 479 U.S. 1091, 107 S. Ct. 1301, 94 L. Ed. 2d 157 (1987).

A violation of either or both G.S. 95-47.6(2) and (9) as a matter of law constitutes an unfair or deceptive trade practice in violation of this section. Winston Realty Co. v. G.H.G., Inc., 314 N.C. 90, 331 S.E.2d 677 (1985).

This section applies to disputes between competitors, and not only to dealings between buyers and sellers. Harrington Mfg. Co. v. Powell Mfg. Co., 38 N.C. App. 393, 248 S.E.2d 739 (1978), cert. denied, 296 N.C. 411, 251 S.E.2d 469 (1979).

Disputes between competitors in business fall under the province of this section. McDonald v. Scarboro, 91 N.C. App. 13, 370 S.E.2d 680, cert. denied, 323 N.C. 476, 373 S.E.2d 864 (1988).

This section is applicable to a covenant not to compete or to tortious interference with contract situations; it is not limited to actions involving consumers, or, when used to protect business, to areas involving fraudulent advertising or a buyer-seller relationship. United Labs., Inc. v. Kuykendall, 322 N.C. 643, 370 S.E.2d 375 (1988).

Inapplicability of Chapter to Securities Transactions. - Where plaintiffs' claim of misrepresentation arose from an allegedly fraudulent securities transaction, the claim was not actionable under this chapter. McPhail v. Wilson, 733 F. Supp. 1011 (W.D.N.C. 1990).

The Unfair Trade and Deceptive Practices Act does not apply to the employer-employee relationship. Wilson v. Wilson-Cook Medical, Inc., 720 F. Supp. 533 (M.D.N.C. 1989).

The Unfair and Deceptive Trade Practices Act covers claims arising out of employer-employee relations; therefore, where the plaintiff presented evidence that defendant deceptively used a position of confidence to solicit the plaintiff's customers and to compete with the plaintiff while still in his employment and that he concealed his behavior from the plaintiff, the plaintiff has demonstrated a genuine issue of material fact preventing summary judgment. Dalton v. Camp, 138 N.C. App. 201, 531 S.E.2d 258 (2000).

Hourly production workers made some attempt to establish the viability of their unfair trade practices claim, however, the employer argued convincingly to the contrary; under the North Carolina Unfair and Deceptive Trade Practices Act, G.S. 75-1.1, it was unlawful to engage in unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, G.S. 75-1.1(a). Although the Unfair and Deceptive Trade Practices Act was intended to benefit consumers, its protections extend to businesses in appropriate situations, but the Unfair and Deceptive Trade Practices Act did not normally extend to run-of-the-mill employment disputes and when the Supreme Court of North Carolina has allowed Unfair and Deceptive Trade Practices Act claims in employer-employee disputes, it was in circumstances not present in the instant case: for example, claims brought by employers against employees who engaged in conduct falling squarely within the Unfair and Deceptive Trade Practices Act's intended reach. Anderson v. Sara Lee Corp., 508 F.3d 181 (4th Cir. 2007).

A private vendor of realty cannot be subject to liability under this section, and thus, the judge properly granted defendant summary judgment on this count. Blackwell v. Dorosko, 93 N.C. App. 310, 377 S.E.2d 814, aff'd in part and vacated and rev'd in part, 95 N.C. App. 637, 383 S.E.2d 670 (1989).

Actual Competition Not Necessary. - This section nowhere states a requirement that the plaintiff and defendant be in actual competition with each other in a particular market. Actual competition is not necessary. United Roasters, Inc. v. Colgate-Palmolive Co., 485 F. Supp. 1041 (E.D.N.C. 1979).

Inducing a Sale Not Required. - In order for an activity to be covered by the Unfair Trade Practices Act, it need only "surround" or "affect" a sale; it need not meet the stricter standard of also inducing a sale. United Roasters, Inc. v. Colgate-Palmolive Co., 485 F. Supp. 1041 (E.D.N.C. 1979).

Section Applicable to "Sellers". - The unfair and deceptive acts and practices forbidden by subsection (a) of this section are those involved in the bargain, sale, barter, exchange or traffic. This view is reinforced by subsection (b) of this section, a declaration of legislative intent having no counterpart in the federal act. The General Assembly, thus, is concerned with openness and fairness in those activities which characterize a party as a "seller." Cameron v. New Hanover Mem. Hosp., 58 N.C. App. 414, 293 S.E.2d 901, cert. denied and appeal dismissed, 307 N.C. 127, 297 S.E.2d 399 (1982).

Section Inapplicable to Statements of Medical Professionals. - A statement by a medical professional, criminal or otherwise, is not governed by this section. Gaunt v. Pittaway, 139 N.C. App. 778, 534 S.E.2d 660 (2000), cert. denied and appeal dismissed, 353 N.C. 262, 546 S.E.2d 401 (2000), cert. denied, 353 N.C. 371, 547 S.E.2d 810 (2001), cert. denied, 534 U.S. 950, 122 S. Ct. 345, 151 L. Ed. 2d 261 (2001).

Patient's claim against her doctor for unfair or deceptive trade practices failed because medical professionals were expressly excluded from the scope of G.S. 75-1.1(a). Phillips v. A Triangle Women's Health Clinic, 155 N.C. App. 372, 573 S.E.2d 600 (2002).

Medical professionals are not "sellers" whose unfair and deceptive acts and practices are forbidden by this section. Cameron v. New Hanover Mem. Hosp., 58 N.C. App. 414, 293 S.E.2d 901, cert. denied and appeal dismissed, 307 N.C. 127, 297 S.E.2d 399 (1982).

Medical professionals are not contemplated by North Carolina's prohibition of unfair trade practices. Cohn v. Wilkes Gen. Hosp., 767 F. Supp. 111 (W.D.N.C. 1991), aff'd, 953 F.2d 154 (4th Cir. 1991), cert. denied, 505 U.S. 1230, 112 S. Ct. 3057, 120 L. Ed. 2d 922 (1992).

Application of Section to Advertisements. - Publishing an advertisement which is neither false nor misleading is not an unfair method of competition or unfair or deceptive act or practice within the meaning of this section. Harrington Mfg. Co. v. Powell Mfg. Co., 38 N.C. App. 393, 248 S.E.2d 739 (1978), cert. denied, 296 N.C. 411, 251 S.E.2d 469 (1979).

Whether puffing in the case of particular advertisement exceeds the bounds of fairness must be determined by viewing it against the background of all of the relevant facts of that case. One relevant fact concerns the market which the advertisement is designed to influence. Harrington Mfg. Co. v. Powell Mfg. Co., 38 N.C. App. 393, 248 S.E.2d 739 (1978), cert. denied, 296 N.C. 411, 251 S.E.2d 469 (1979).

Application to Deception in Sale of Goods. - This statute has been construed as directed against deception in connection with the sale of goods. An illustrative list of prohibited conduct was contained in an article, "The People's Advocate in the Marketplace - The Role of North Carolina's Attorney General in the Field of Consumer Protection," 6 Wake Forest Intra L. Rev. 1, 18 (1969). The construction has been substantially adopted by the Supreme Court of North Carolina. Stearns v. Genrad, Inc., 752 F.2d 942 (4th Cir. 1984).

Claims Against State Employees. - The whole thrust of this section as applied by North Carolina courts has been to afford protection from unethical acts by businesses or business persons, not to allow claims against State employees purchasing or leasing equipment for the State. Sperry Corp. v. Patterson, 73 N.C. App. 123, 325 S.E.2d 642 (1985).

Conduct "in or Affecting Commerce" and "Unfair" Conduct. - Where employee who had embezzled money signed a contract, note, and deed of trust in exchange for employer's promise not to pursue criminal action, the contract, note, and deed of trust were void as against public policy and employer's conduct was "in or affecting commerce" and "unfair." Adams v. Jones, 114 N.C. App. 256, 441 S.E.2d 699 (1994).

Employee's actions in misappropriating funds intended for an employer were in or affected commerce for G.S. 75-1.1 purposes as the employer, a North Carolina corporation, and a Korean company that sent the funds were distinct corporate entities, and by misappropriating the employer's funds, the employee interrupted the commercial relationship between the company and the employer. Songwooyarn Trading Co v. Sox Eleven, Inc., 213 N.C. App. 49, 714 S.E.2d 162 (2011), review denied, 718 S.E.2d 396, 2011 N.C. LEXIS 929 (2011).

Withholding money owed from an insurance carrier's settlement payment in order to force the rightful recipient of those funds to resolve other, unrelated business disputes is conduct "in or affecting commerce." Faucette v. 6303 Carmel Rd., LLC, 242 N.C. App. 267, 775 S.E.2d 316 (2015).

Rental of residential property including a house and a trailer space was "in or affecting commerce" for the purposes of liability under this section for unfair or deceptive trade practices. Stolfo v. Kernodle, 118 N.C. App. 580, 455 S.E.2d 869 (1995).

The private sale of a residence by an individual is not an act "in or affecting commerce," and is beyond the purview of this section; therefore, the trial court properly granted summary judgment as to the unfair and deceptive trade practices claim, as well as to plaintiff's request for treble damages, because plaintiff was not engaged in the business of selling real estate. Stephenson v. Warren, 136 N.C. App. 768, 525 S.E.2d 809 (2000).

Debt collection activities of a major retailer are not within the reach of this section, for they are insufficiently related to the sale of goods. Stearns v. Genrad, Inc., 752 F.2d 942 (4th Cir. 1984).

This Chapter applies to the activities of a private personnel service in advertising qualified personnel. Winston Realty Co. v. G.H.G., Inc., 70 N.C. App. 374, 320 S.E.2d 286 (1984), aff'd, 314 N.C. 90, 331 S.E.2d 677 (1985).

Debt Collection Activities by Attorneys - The North Carolina Debt Collection Act (NCDCA) contained within this chapter did not allow for a cause of action against attorneys engaged in collecting debts on behalf of their clients, although the tactics used by defendants in trying to collect delinquent assessments and their refusal to accept any payments less than $1,374 from plaintiffs, two-and-a-half times that which was legally owed, were indefensible, whether done in ignorance of, or disdain for, the law. Reid v. Ayers, 138 N.C. App. 261, 531 S.E.2d 231 (2000).

Sale of Personal Residence. - In order to avoid liability under this section, a defendant must fit under one of the statutory exemptions or the "homeowner's exemption" for a private homeowner selling his or her personal residence recognized by the Court of Appeals. Stolfo v. Kernodle, 118 N.C. App. 580, 455 S.E.2d 869 (1995).

Home sellers were entitled to partial summary judgment regarding the home buyer's unfair and deceptive practices claim against the sellers because private homeowners selling their personal residence were exempt from the purview of the North Carolina unfair and deceptive practices statute and neither the complaint nor the affidavits submitted alleged any facts showing that the sellers were engaged in a business or that the sale was a commercial land transaction that affected commerce. Birmingham v. H&H Home Consultants & Designs, Inc., 189 N.C. App. 435, 658 S.E.2d 513 (2008).

Dismissal of home buyers' cause of action against former homeowners for unfair and deceptive trade practices was appropriate because of the homeowner exception as there was no evidence that the former homeowners were in the business of buying and selling residential property. As private homeowners selling their personal residence, the homeowners were not subject to unfair and deceptive practice liability. Glover v. Dailey, 254 N.C. App. 46, 802 S.E.2d 136 (2017).

Application to Bulk Sale of Business' Assets. - This section would apply to a bulk sale of a business' assets as much as it would to a consumer sale. United Roasters, Inc. v. Colgate-Palmolive Co., 485 F. Supp. 1041 (E.D.N.C. 1979).

Activity Regulated Under Commodity Exchange Act. - This section will not support a cause of action against a commodity broker for activity which is regulated under the Commodity Exchange Act, 7 U.S.C.S. § 1 et seq. Bache Halsey Stuart, Inc. v. Hunsucker, 38 N.C. App. 414, 248 S.E.2d 567 (1978), cert. denied, 296 N.C. 583, 254 S.E.2d 32 (1979).

Recovery for Unfair Methods of Competition Perpetrated by Insurers. - Plaintiff can recover damages under this section even though unfair methods of competition perpetrated by persons engaged in the business of insurance are regulated by the insurance statutes, former G.S. 58-54.1 et seq. (see now G.S. 58-63-1 et seq.), which do not provide for civil damage actions. Ray v. United Family Life Ins. Co., 430 F. Supp. 1353 (W.D.N.C. 1977).

Debt collection activities were not within the purview of this section. American Craft Hosiery Corp. v. Damascus Hosiery Mills, Inc., 575 F. Supp. 816 (W.D.N.C. 1983).

Violation of Internal Business Policies. - North Carolina Court of Appeals has held that a violation of internal business policies and general industry standards does not constitute a per se violation of the North Carolina Unfair and Deceptive Act or Practice Act, G.S. 75-1.1. Champion Pro Consulting Grp., LLC v. Impact Sports Football, LLC, - F. Supp. 2d - (M.D.N.C. July 15, 2015).

Evidence of negligence, good faith, or lack of intent are not defenses to an action under this section. Murray v. Nationwide Mut. Ins. Co., 123 N.C. App. 1, 472 S.E.2d 358 (1996).

Who Are Protected. - This section does not protect only individual consumers, but serves to protect business persons as well. Concrete Serv. Corp. v. Investors Group, Inc., 76 N.C. App. 678, 340 S.E.2d 755, cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986).

Individual consumers are not the only ones protected and provided a remedy under this section and G.S. 75-16. Olivetti Corp. v. Ames Bus. Sys., 81 N.C. App. 1, 344 S.E.2d 82 (1986), aff'd in part and rev'd in part on other grounds, 319 N.C. 534, 356 S.E.2d 578 (1987).

The private homeowner's exemption continues to exist. Davis v. Sellers, 115 N.C. App. 1, 443 S.E.2d 879 (1994), cert. denied, 339 N.C. 610, 454 S.E.2d 248 (1995).

Injury Must Be Proven. - As an essential element of a cause of action under G.S. 75-16, plaintiff must prove not only that defendants violated this section, but also, that plaintiff has suffered actual injury as a proximate result of defendants' misrepresentations. Bailey v. LeBeau, 79 N.C. App. 345, 339 S.E.2d 460, modified and aff'd, 318 N.C. 411, 348 S.E.2d 524 (1986).

Actual Injury. - Although plaintiffs regained the purchase price plus interest and closing costs in a deceptive trade practice claim, a jury could find that plaintiffs' "actual injury" also consisted of the loss of use of the specific and unique property and the loss of the appreciated value of the property. Canady v. Mann, 107 N.C. App. 252, 419 S.E.2d 597, cert. granted, 332 N.C. 664, 424 S.E.2d 905 (1992).

Contributory Negligence. - Contributory negligence is not an absolute defense to an action under this Chapter. Actions under this Chapter are not based upon negligence; they are based upon "unfair or deceptive acts or practices in or affecting commerce," which the General Assembly has made unlawful. Winston Realty Co. v. G.H.G., Inc., 70 N.C. App. 374, 320 S.E.2d 286 (1984), aff'd, 314 N.C. 90, 331 S.E.2d 677 (1985).

The Legislature did not intend for violations of this Chapter to go unpublished upon a showing of contributory negligence. If unfair trade practitioners could escape liability upon showing that their victims were careless, gullible, or otherwise inattentive to their own interests, the act would soon be a dead letter. Winston Realty Co. v. G.H.G., Inc., 70 N.C. App. 374, 320 S.E.2d 286 (1984), aff'd, 314 N.C. 90, 331 S.E.2d 677 (1985).

Officer's Personal Liability for His Tortious Conduct. - A corporate official may be held personally liable for tortious conduct committed by him, though committed primarily for the benefit of the corporation. This is true in trademark infringement and unfair trade practices cases. Polo Fashions, Inc. v. Craftex, Inc., 816 F.2d 145 (4th Cir. 1987).

Violation Shown. - Where plaintiff's evidence showed that defendant repeatedly denied the sale of a bulldozer when he knew it had been sold and that defendant forged a bill of sale in an attempt to extinguish plaintiff's ownership interest in the bulldozer, through his conduct defendant deprived plaintiff for three years of money he was unquestionably entitled to receive. Defendant's conduct was sufficiently aggravating to support the trial court's conclusion that defendant violated this section. Garlock v. Henson, 112 N.C. App. 243, 435 S.E.2d 114 (1993).

Violation Not Shown. - Where plaintiff had been informed that he won a truck and then was later told that he did not win, plaintiff was able to state a cause of action for breach of contract and violation of G.S. 75-32, but was not able to state a claim under this section. Jones v. Capitol Broadcasting Co., 128 N.C. App. 271, 495 S.E.2d 172 (1998).

Insured did not show grounds for reformation of the insured's replacement coverage in the insurance policy covering the insured's home after: (1) the insured's husband oversaw that coverage for many years; (2) the insured asked after the husband died that the insurance company and insurance agent continue the coverage that the husband obtained; (3) they followed the insured's instructions; and (4) the insured sought to reform the insurance policy's replacement coverage provision after fire destroyed the insured's home and the insured felt the policy did not provide sufficient replacement coverage. The insured could not show that the insurance company and insurance agent did anything more than provide the coverage requested, and the insured could not demonstrate any G.S. 75-1.1 unfair or deceptive act or practice that they engaged in. Carter v. West Am. Ins. Co., 190 N.C. App. 532, 661 S.E.2d 264 (2008).

Arbitrator Had Authority to Award Treble Damages. - Although 9 U.S.C.S. § 10(a)(4) of the Federal Arbitration Act applied, where an arbitration provision in a contract between parties was ambiguous, the trial court erred in modifying the arbitrators' G.S. 75-16 award of treble damages to plaintiffs in their deceptive trade practices claim under G.S. 75-1.1; the arbitrators, not the court had the authority to construe that ambiguous provision. WMS, Inc. v. Weaver, 166 N.C. App. 352, 602 S.E.2d 706 (2004), cert. denied, 359 N.C. 197, 608 S.E.2d 330 (2004).

Preemption by Fair Credit Reporting Act. - In a debtor's suit against a creditor based on her inability to obtain credit from a report of a balance due on a credit card account that was obtained by her deceased husband without the debtor's knowledge or permission, the debtor's claim against the creditor for violation of the North Carolina Unfair and Deceptive Trade Practice Act, G.S. 75-1.1 et seq., was preempted by the Fair Credit Reporting Act, 15 U.S.C.S. § 1681t. Johnson v. MBNA Am. Bank, N.A., - F. Supp. 2d - (M.D.N.C. Mar. 9, 2006).

Fair Debt Collection Act as Exclusive Remedy. - In a debtor's suit against a creditor based on a credit card debt from a credit card obtained by her deceased husband without the debtor's knowledge and consent, the debtor's claim for violation of the North Carolina Unfair and Deceptive Trade Practice Act, G.S. 75-1.1 et seq., based on allegedly abusive debt collection conduct failed because the North Carolina Debt Collection Act, G.S. 75-50 et seq., provided the exclusive remedy for such a claim. Johnson v. MBNA Am. Bank, N.A., - F. Supp. 2d - (M.D.N.C. Mar. 9, 2006).

Conclusion of Law Reviewable De Novo on Appeal. - In an unfair trade practices case that certain borrowers filed against a lender for violations of G.S. 75-1.1, an appellate court applied a de novo standard of review to a trial court's decision holding that an arbitration clause in the loan agreement of certain buyers was invalid. The trial court's determination of whether the dispute was subject to arbitration was a conclusion of law that was reviewable de novo on appeal. Tillman v. Commer. Credit Loans, Inc., 177 N.C. App. 568, 629 S.E.2d 865 (2006), rev'd, 362 N.C. 93, 655 S.E.2d 362, Tillman v. Commer. Credit Loans, Inc., 177 N.C. App. 568, 629 S.E.2d 865 (2006).

In an unfair trade practices case that certain borrowers filed against a lender for violations of G.S. 75-1.1, the arbitration clause in the borrowers' loan agreement was not unconscionable for lack of mutuality. Mutuality merely required consideration on each side of a contract, mutuality did not require that each of a contract's terms had to apply equally to both parties to be enforceable, and the consideration was sufficient if it was shown that there was some consideration on both sides of a contract. Tillman v. Commer. Credit Loans, Inc., 177 N.C. App. 568, 629 S.E.2d 865 (2006).

Applied in Smith v. Ford Motor Co., 26 N.C. App. 181, 215 S.E.2d 376 (1975); Harrington Mfg. Co. v. Powell Mfg. Co., 26 N.C. App. 414, 216 S.E.2d 379 (1975); Stone v. Paradise Park Homes, Inc., 37 N.C. App. 97, 245 S.E.2d 801 (1978); Rosenthal v. Perkins, 42 N.C. App. 449, 257 S.E.2d 63 (1979); Kleinfelter v. Northwest Bldrs. & Developers, Inc., 44 N.C. App. 561, 261 S.E.2d 498 (1980); Hester v. Martindale-Hubbell, Inc., 493 F. Supp. 335 (E.D.N.C. 1980); Abernathy v. Ralph Squires Realty Co., 55 N.C. App. 354, 285 S.E.2d 325 (1982); Santana, Inc. v. Levi Strauss & Co., 674 F.2d 269 (4th Cir. 1982); Brenner v. Little Red Sch. House, Ltd., 59 N.C. App. 68, 295 S.E.2d 607 (1982); Hager v. Crawford, 60 N.C. App. 763, 299 S.E.2d 832 (1983); Population Planning Assocs. v. Mews, 65 N.C. App. 96, 308 S.E.2d 739 (1983); Borders v. Newton, 68 N.C. App. 768, 315 S.E.2d 731 (1984); Canady v. Hardin, 71 N.C. App. 156, 321 S.E.2d 474 (1984); Hall v. T.L. Kemp Jewelry, Inc., 71 N.C. App. 101, 322 S.E.2d 7 (1984); North Carolina Nat'l Bank v. Carter, 71 N.C. App. 118, 322 S.E.2d 180 (1984); State ex rel. Edmisten v. Challenge, Inc., 71 N.C. App. 575, 322 S.E.2d 658 (1984); Coble v. Richardson Corp., 71 N.C. App. 511, 322 S.E.2d 817 (1984); Union Carbide Corp. v. Sunox, Inc., 590 F. Supp. 224 (W.D.N.C. 1984); Cotton v. Stanley, 86 N.C. App. 534, 358 S.E.2d 692 (1987); Southern Pines Chrysler-Plymouth, Inc. v. Chrysler Corp., 826 F.2d 1360 (4th Cir. 1987); Russel v. Baity, 95 N.C. App. 422, 383 S.E.2d 217 (1989); Shell Oil Co. v. Commercial Petro., Inc., 733 F. Supp. 40 (W.D.N.C. 1989); Belmont Land & Inv. Co. v. Standard Fire Ins. Co., 102 N.C. App. 745, 403 S.E.2d 924 (1991); Anders v. Hyundai Motor Am. Corp., 104 N.C. App. 61, 407 S.E.2d 618 (1991); John v. Robbins, 764 F. Supp. 379 (M.D.N.C. 1991); Colvard v. Francis, 106 N.C. App. 277, 416 S.E.2d 579 (1992); Martin Marietta Corp. v. Wake Stone Corp., 111 N.C. App. 269, 432 S.E.2d 428 (1993), aff'd, 339 N.C. 602, 453 S.E.2d 146 (1995); Silverman v. Miller, 155 Bankr. 362 (Bankr. E.D.N.C. 1993); Malone v. Topsail Area Jaycees, Inc., 113 N.C. App. 498, 439 S.E.2d 192 (1994); Ace Chem. Corp. v. DSI Transps., Inc., 115 N.C. App. 237, 446 S.E.2d 100 (1994); Pleasant Valley Promenade v. Lechmere, Inc., 120 N.C. App. 650, 464 S.E.2d 47 (1995); Carolina Water Serv., Inc. v. Town of Atlantic Beach, 121 N.C. App. 23, 464 S.E.2d 317 (1995); Carlson v. Branch Banking & Trust Co., 123 N.C. App. 306, 473 S.E.2d 631 (1996); Henderson v. United States Fid. & Guar. Co., 346 N.C. 741, 488 S.E.2d 234 (1997); Van Dorn Retail Mgt., Inc. v. Klaussner Furn. Indus., Inc., 132 N.C. App. 531, 512 S.E.2d 456 (1999); Cash v. State Farm Mut. Auto. Ins. Co., 137 N.C. App. 192, 528 S.E.2d 372 (2000); Llera v. Security Credit Sys., 93 F. Supp. 2d 674 (W.D.N.C. 2000); Davis Lake Community Ass'n v. Feldmann, 138 N.C. App. 292, 530 S.E.2d 865 (2000); Becker v. Graber Builders, Inc., 149 N.C. App. 787, 561 S.E.2d 905 (2002); Tucker v. The Blvd. at Piper Glen LLC, 150 N.C. App. 150, 564 S.E.2d 248 (2002); S. Atl. Ltd. P'ship of Tenn. v. Riese, 284 F.3d 518 (4th. Cir. 2002); Bynum v. Hobbs Realty, - F. Supp. 2d - (M.D.N.C. Apr. 4, 2002); Southeastern Shelter Corp. v. BTU, Inc., 154 N.C. App. 321, 572 S.E.2d 200 (2002); Static Control Components, Inc. v. Darkprint Imaging, Inc., 240 F. Supp. 2d 465 (M.D.N.C. 2002); Collezione Europa U.S.A., Inc. v. Hillsdale House, Ltd., 243 F. Supp. 2d 444 (M.D.N.C. 2003); Cent. Carolina Bank & Trust Co. v. Sec. Life of Denver Ins. Co., 247 F. Supp. 2d 791 (M.D.N.C. 2003); Eli Research Inc. v. United Communs. Group, LLC, 312 F. Supp. 2d 748 (M.D.N.C. 2004); Ramsey Group v. EGS Int'l, Inc., 329 F. Supp. 2d 630 (W.D.N.C. 2004); McDonald Bros., Inc. v. Tinder Wholesale, LLC, 395 F. Supp. 2d 255 (M.D.N.C.
2005); Austin Maint. & Constr., Inc. v. Crowder Constr. Co., 224 N.C. App. 401, 742 S.E.2d 535 (2012).

Cited in Everett v. Continental Bank, 845 F. Supp. 335 (M.D.N.C.); Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E.2d 282 (1976); Powell Mfg. Co. v. Harrington Mfg. Co., 30 N.C. App. 97, 226 S.E.2d 173 (1976); Parsons v. Bailey, 30 N.C. App. 497, 227 S.E.2d 166 (1976); Travelers Ins. Co. v. Ryder Truck Rental, Inc., 34 N.C. App. 379, 238 S.E.2d 193 (1977); Fieldcrest Mills, Inc. v. Mohasco Corp., 442 F. Supp. 424 (M.D.N.C. 1977); Anderson v. Pamlico Chem. Co., 470 F. Supp. 12 (E.D.N.C. 1977); Greenway v. North Carolina Farm Bureau Mut. Ins. Co., 35 N.C. App. 308, 241 S.E.2d 339 (1978); Johnson v. Phoenix Mut. Life Ins. Co., 44 N.C. App. 210, 261 S.E.2d 135 (1979); Fitzgerald v. Wolf, 40 N.C. App. 197, 252 S.E.2d 523 (1979); B.B. Walker Co. v. Ashland Chem. Co., 474 F. Supp. 651 (M.D.N.C. 1979); Pinehurst Airlines v. Resort Air Servs., Inc., 476 F. Supp. 543 (M.D.N.C. 1979); Shields v. Bobby Murray Chevrolet, Inc., 300 N.C. 366, 266 S.E.2d 658 (1980); Shields v. Bobby Murray Chevrolet, Inc., 44 N.C. App. 427, 261 S.E.2d 238 (1980); Burgess v. North Carolina Farm Bureau Mut. Ins. Co., 44 N.C. App. 441, 261 S.E.2d 234 (1980); Taylor v. Hayes, 45 N.C. App. 119, 262 S.E.2d 383 (1980); Twin City Apts., Inc. v. Landrum, 45 N.C. App. 490, 263 S.E.2d 323 (1980); Baylor v. Brown, 46 N.C. App. 664, 266 S.E.2d 9 (1980); Kinnard v. Mecklenburg Fair, Ltd., 46 N.C. App. 725, 266 S.E.2d 14 (1980); Spinks v. Taylor, 47 N.C. App. 68, 266 S.E.2d 857 (1980); Vickery v. Olin Hill Constr. Co., 47 N.C. App. 98, 266 S.E.2d 711 (1980); Hammers v. Lowe's Cos., 48 N.C. App. 150, 268 S.E.2d 257 (1980); CF Indus., Inc. v. Transcontinental Gas Pipe Line Corp., 614 F.2d 33 (4th Cir. 1980); Taylor v. Hayes, 302 N.C. 627, 276 S.E.2d 369 (1981); Gower v. Strout Realty, Inc., 56 N.C. App. 603, 289 S.E.2d 880 (1982); North Carolina Dep't of Cor. v. Gibson, 58 N.C. App. 241, 293 S.E.2d 664 (1982); Vishay Intertechnology, Inc. v. Delta Int'l Corp., 696 F.2d 1062 (4th Cir. 1982); MAS Corp. v. Thompson, 62 N.C. App. 31, 302 S.E.2d 271 (1983); Stearns v. Genrad, Inc., 564 F. Supp. 1309 (M.D.N.C. 1983); Lloyd v. Carnation Co., 61 N.C. App. 381, 301 S.E.2d 414 (1983); Ransom v. Blair, 62 N.C. App. 71, 302 S.E.2d 306 (1983); Rose's Stores, Inc. v. Padgett, 62 N.C. App. 404, 303 S.E.2d 344 (1983); Atlantic Purchasers, Inc. v. Aircraft Sales, Inc., 705 F.2d 712 (4th Cir. 1983); George v. Veach, 67 N.C. App. 674, 313 S.E.2d 920 (1984); Simmons v. C.W. Myers Trading Post, Inc., 68 N.C. App. 511, 315 S.E.2d 75 (1984); Day v. Coffey, 68 N.C. App. 509, 315 S.E.2d 96 (1984); Gillis v. Whitley's Disct. Auto Sales, Inc., 70 N.C. App. 270, 319 S.E.2d 661 (1984); Parks Chevrolet, Inc. v. Watkins, 74 N.C. App. 719, 329 S.E.2d 728 (1985); Childers v. Hayes, 77 N.C. App. 792, 336 S.E.2d 146 (1985); Davidson v. Volkswagenwerk, 78 N.C. App. 193, 336 S.E.2d 714 (1985); Uzzell v. Integon Life Ins. Corp., 78 N.C. App. 458, 337 S.E.2d 639 (1985); John Lemmon Films, Inc. v. Atlantic Releasing Corp., 617 F. Supp. 992 (W.D.N.C. 1985); Weft, Inc. v. G.C. Inv. Assocs., 630 F. Supp. 1138 (E.D.N.C. 1986); Yadkin Valley Bank & Trust Co. v. Northwestern Bank, 80 N.C. App. 716, 343 S.E.2d 439 (1986); Jackson v. Hollowell Chevrolet Co., 81 N.C. App. 150, 343 S.E.2d 577 (1986); Joyce v. Cloverbrook Homes, Inc., 81 N.C. App. 270, 344 S.E.2d 58 (1986); Cherry, Bekaert & Holland v. Worsham, 81 N.C. App. 116, 344 S.E.2d 97 (1986); Northwestern Bank v. Roseman, 81 N.C. App. 228, 344 S.E.2d 120 (1986); Brooks v. Rogers,
82 N.C. App. 502, 346 S.E.2d 677 (1986); Tyson v. Ciba-Geigy Corp., 82 N.C. App. 626, 347 S.E.2d 473 (1986); Moore v. North Carolina Farm Bureau Mut. Ins. Co., 82 N.C. App. 616, 347 S.E.2d 489 (1986); Bailey v. LeBeau, 318 N.C. 411, 348 S.E.2d 524 (1986); Stonewall Ins. Co. v. Fortress Reinsurers Managers, Inc., 83 N.C. App. 263, 350 S.E.2d 131 (1986); Investors Title Ins. Co. v. Herzig, 83 N.C. App. 392, 350 S.E.2d 160 (1986); Austell v. Smith, 634 F. Supp. 326 (W.D.N.C. 1986); Tryco Trucking Co. v. Belk Stores Servs., Inc., 634 F. Supp. 1327 (W.D.N.C. 1986); Dowless v. Warren-Rupp Houdailles, Inc., 800 F.2d 1305 (4th Cir. 1986); Spear v. Daniel, 84 N.C. App. 281, 352 S.E.2d 441 (1987); Hooper v. Liberty Mut. Ins. Co., 84 N.C. App. 549, 353 S.E.2d 248 (1987); Olivetti Corp. v. Ames Bus. Sys., 319 N.C. 534, 356 S.E.2d 578 (1987); United Labs., Inc. v. Kuykendall, 87 N.C. App. 296, 361 S.E.2d 292 (1987); Mosley & Mosley Bldrs., Inc. v. Landin Ltd., 87 N.C. App. 438, 361 S.E.2d 608 (1987); Southern Pride, Inc. v. Turbo Tek Enters., Inc., 117 F.R.D. 566 (M.D.N.C. 1987); United States Hosiery Corp. v. Gap, Inc., 707 F. Supp. 795 (W.D.N.C. 1988); Seafare Corp. v. Trenor Corp., 88 N.C. App. 404, 363 S.E.2d 643 (1988); Taylor v. Foy, 91 N.C. App. 82, 370 S.E.2d 442 (1988); von Hagel v. Blue Cross & Blue Shield, 91 N.C. App. 58, 370 S.E.2d 695 (1988); Simms Inv. Co. v. E.F. Hutton & Co., 688 F. Supp. 193 (M.D.N.C. 1988); First Fin. Sav. Bank, Inc. v. American Bankers Ins. Co., 699 F. Supp. 1158 (E.D.N.C. 1988); Sewell Plastics, Inc. v. Coca-Cola Co., 720 F. Supp. 1186 (W.D.N.C. 1988); Board of Governors v. Helpingstine, 714 F. Supp. 167 (M.D.N.C. 1989); Richmar Dev., Inc. v. Midland Doherty Servs., Ltd., 717 F. Supp. 1107 (W.D.N.C. 1989); Jeske v. Brooks, 875 F.2d 71 (4th Cir. 1989); Tate v. Chambers, 94 N.C. App. 154, 379 S.E.2d 681 (1989); Hajmm Co. v. House of Raeford Farms, Inc., 94 N.C. App. 1, 379 S.E.2d 868 (1989); Alberti v. Manufactured Homes, Inc., 94 N.C. App. 773, 381 S.E.2d 478 (1989); Quate v. Caudle, 95 N.C. App. 80, 381 S.E.2d 842 (1989); Barber v. Woodmen of World Life Ins. Soc'y, 95 N.C. App. 340, 382 S.E.2d 830 (1989); Douglas v. Doub, 95 N.C. App. 505, 383 S.E.2d 423 (1989); Love v. Keith, 95 N.C. App. 549, 383 S.E.2d 674 (1989); Nash v. Motorola Communications & Elecs., Inc., 96 N.C. App. 329, 385 S.E.2d 537 (1989); Murrow Furn. Galleries, Inc. v. Thomasville Furn. Indus., Inc., 889 F.2d 524 (4th Cir. 1989); Nabisco Brands, Inc. v. Conusa Corp., 722 F. Supp. 1287 (M.D.N.C. 1989); Petersen v. State Employees Credit Union (In re Kittrell), 115 Bankr. 873 (Bankr. M.D.N.C. 1990); River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 388 S.E.2d 538 (1990); Mosley & Mosley Bldrs., Inc. v. Landin Ltd., 97 N.C. App. 511, 389 S.E.2d 576 (1990); Osem Food Indus. Ltd. v. Sherwood Foods, Inc., 917 F.2d 161 (4th Cir. 1990); Dayton Progress Corp. v. Lane Punch Corp., 917 F.2d 836 (4th Cir. 1990); W.W. Enter., Inc. v. Charlotte Motor Speedway, Inc., 753 F. Supp. 1326 (W.D.N.C. 1990); Provident Finance Co. v. Rowe, 101 N.C. App. 367, 399 S.E.2d 368 (1991); Shell Oil Co. v. Commercial Petro., Inc., 928 F.2d 104 (4th Cir. 1991); Alberti v. Manufactured Homes, Inc., 329 N.C. 727, 407 S.E.2d 819 (1991); Tomlinson v. Camel City Motors, Inc., 330 N.C. 76, 408 S.E.2d 853 (1991); New England Leather Co. v. Feuer Leather Corp., 942 F.2d 253 (4th Cir. 1991); First Fin. Sav. Bank, Inc. v. American Bankers Ins. Co., 783 F. Supp. 963 (E.D.N.C. 1991); Forsyth Mem. Hosp. v. Contreras, 107 N.C. App. 611, 421 S.E.2d 167 (1992); C.F.R. Foods, Inc. v. Randolph Dev. Co., 107 N.C. App. 584, 421 S.E.2d 386 (1992); Herndon v. ITT Consumer Fin. Corp., 789 F. Supp. 720 (W.D.N.C. 1992), aff'd, 16 F.3d 409 (4th
Cir. 1994); Winant v. Bostic, 5 F.3d 767 (4th Cir. 1993); Coggin v. Sears, Roebuck & Co., 155 Bankr. 934 (Bankr. E.D.N.C. 1993); Smith v. State Farm Fire & Cas. Co., 109 N.C. App. 276, 426 S.E.2d 457 (1993); Andrews v. Fitzgerald, 823 F. Supp. 356 (M.D.N.C. 1993); Mehovic v. Ken Wilson Ford, Inc., 113 N.C. App. 559, 439 S.E.2d 184 (1994); BJT, Inc. v. Molson Breweries USA, Inc., 848 F. Supp. 54 (E.D.N.C. 1994); Jefferson-Pilot Life Ins. Co. v. Spencer, 336 N.C. 49, 442 S.E.2d 316 (1994); Martin Marietta Corp. v. Wake Stone Corp., 339 N.C. 602, 453 S.E.2d 146 (1995); McNeil-PPC, Inc. v. Granutec, Inc., 919 F. Supp. 198 (E.D.N.C. 1995); Henderson v. United States Fid. & Guar. Co., 124 N.C. App. 103, 476 S.E.2d 459 (1996), aff'd, 346 N.C. 741, 488 S.E.2d 234 (1997); North Carolina Steel, Inc. v. National Council on Comp. Ins., 123 N.C. App. 163, 472 S.E.2d 578 (1996), aff'd in part and rev'd in part, 347 N.C. 627, 496 S.E.2d 369 (1998); Richardson v. BP Oil Co., 124 N.C. App. 509, 477 S.E.2d 686 (1996); Helms v. Holland, 124 N.C. App. 629, 478 S.E.2d 513 (1996); G.P. Publications, Inc. v. Quebecor Printing - St. Paul, Inc., 125 N.C. App. 424, 481 S.E.2d 674, cert. denied, 346 N.C. 546, 488 S.E.2d 800 (1997); Broussad v. Meineke Disct. Muffler Shops, Inc., 958 F. Supp. 1087 (W.D.N.C. 1997); Wake County Hosp. Sys. v. Safety Nat'l Cas. Corp., 127 N.C. App. 33, 487 S.E.2d 789 (1997), cert. denied, 347 N.C. 410, 494 S.E.2d 600 (1997); North Carolina Steel, Inc. v. National Council Comp. Ins., 347 N.C. 627, 496 S.E.2d 369 (1998); Ashley Furn. Indus., Inc. v. Sangiacomo N.A. Ltd., 11 F. Supp. 2d 773 (M.D.N.C. 1998); Charles Vernon Floyd, Jr. & Sons v. Cape Fear Farm Credit, 350 N.C. 47, 510 S.E.2d 156 (1999); Republic Mtg. Ins. Co. v. Brightware, Inc., 35 F. Supp. 2d 482 (M.D.N.C. 1999); Dempsey v. Transouth Mortg. Corp., 88 F. Supp. 2d 482 (W.D.N.C. 1999); Llera v. Security Credit Sys., 93 F. Supp. 2d 674 (W.D.N.C. 2000); Marketing Assocs. v. Baker, - F. Supp. 2d - (M.D.N.C. Jan. 21, 2000); Poor v. Hill, 138 N.C. App. 19, 530 S.E.2d 838 (2000); Frost v. Mazda Motor of Am., 353 N.C. 188, 540 S.E.2d 324 (2000); Rowell v. N.C. Equip. Co., 146 N.C. App. 431, 552 S.E.2d 274 (2001); Byrd's Lawn & Landscaping, Inc. v. Smith, 142 N.C. App. 371, 542 S.E.2d 689 (2001); GATX Logistics, Inc. v. Lowe's Cos., 143 N.C. App. 695, 548 S.E.2d 193 (2001); Basnight v. Diamond Developers, Inc., 178 F. Supp. 2d 589 (M.D.N.C. 2001); Bell v. E. Davis Int'l, Inc., 197 F. Supp. 2d 449 (W.D.N.C. 2002); Static Control Components, Inc. v. Darkprint Imaging, Inc., 200 F. Supp. 2d 541 (M.D.N.C. 2002); Gaynoe v. First Union Corp., 153 N.C. App. 750, 571 S.E.2d 24 (2002), cert. denied, 356 N.C. 671, 577 S.E.2d 118 (2003); Voelske v. Mid-South Ins. Co., 154 N.C. App. 704, 572 S.E.2d 841 (2002); Blankenship v. Town & Country Ford, Inc., 155 N.C. App. 161, 574 S.E.2d 132 (2002), cert. denied, appeal dismissed, 357 N.C. 61, 579 S.E.2d 384 (2003); Fisher v. Hous. Auth., 155 N.C. App. 189, 573 S.E.2d 678 (2002), cert. granted, 356 N.C. 670, 577 S.E.2d 117 (2003); Bryan v. Bellsouth Telcoms., Inc., - F. Supp. 2d - (M.D.N.C. Feb. 6, 2003); Greene v. GMC, 261 F. Supp. 2d 414 (W.D.N.C. 2003); Hobbs Realty & Constr. Co. v. Scottsdale Ins. Co., 163 N.C. App. 285, 593 S.E.2d 103 (2004), cert. dismissed, 358 N.C. 543, 599 S.E.2d 47 (2004), cert. denied, - N.C. - , 599 S.E.2d 907 (2004); GE Healthcare Fin. Servs. v. EBW Laser, Inc., 225 F.R.D. 176 (M.D.N.C. 2004); Reinhold v. Lucas, 167 N.C. App. 735, 606 S.E.2d 412 (2005); Moose v. Versailles Condo. Ass'n, 171 N.C. App. 377, 614 S.E.2d 418 (2005); Good Hope Hosp., Inc. v. N.C. HHS, Div. of Facility Servs., 174 N.C. App. 266, 620 S.E.2d 873 (2005); Creekside Constr. Co. v. Dowler, 172 N.C. App. 558, 616 S.E.2d 609 (2005); In re Medley, - Bankr. - (Bankr. M.D.N.C. Nov. 10, 2005); Hurtado
USA, Inc. v. Am. Safety & Indem. Co., - F. Supp. 2d - (M.D.N.C. Nov. 16, 2005); Carroll v. Ferro, 179 N.C. App. 402, 633 S.E.2d 708 (2006), review dismissed, review denied, 361 N.C. 218, 642 S.E.2d 246 (2007); Time Warner Entertainment-Advance/Newhouse P'ship v. Carteret-Craven Elec. Mbrshp. Corp., 451 F. Supp. 2d 736 (E.D.N.C. 2006); Printing Servs. of Greensboro, Inc. v. Am. Capital Group, Inc., 180 N.C. App. 70, 637 S.E.2d 230 (2006), aff'd, 361 N.C. 347, 643 S.E.2d 586 (2007); Williams v. HomEq Servicing Corp., 184 N.C. App. 413, 646 S.E.2d 381 (2007); Blyth v. McCrary, 184 N.C. App. 654, 646 S.E.2d 813 (2007), review denied, 362 N.C. 175, 658 S.E.2d 482 (2008), review dismissed, as moot, 362 N.C. 175, 658 S.E.2d 482 (2008); Tillman v. Commer. Credit Loans, Inc., 362 N.C. 93, 655 S.E.2d 362 (2008); Catawba Valley Bank v. Porter, 188 N.C. App. 326, 655 S.E.2d 473 (2008); Higgins v. Spence & Spence, - F. Supp. 2d - (E.D.N.C. Feb. 21, 2008); PCS Phosphate Co. v. Norfolk Southern Corp., 520 F. Supp. 2d 705 (E.D.N.C. Sept. 28, 2007); Kucan v. Advance Am., 190 N.C. App. 396, 660 S.E.2d 98 (2008); Persis Nova Constr. v. Edwards, 195 N.C. App. 55, 671 S.E.2d 23 (2009); Precision Components, Inc. v. C.W. Bearing USA, Inc., - F. Supp. 2d - (W.D.N.C. Dec. 16, 2008); Atkins v. Peek, 193 N.C. App. 606, 668 S.E.2d 63 (2008); MRD Motorsports, Inc. v. Trail Motorsports, LLC, 204 N.C. App. 572, 694 S.E.2d 517 (2010); Lucas v. Lucas, 209 N.C. App. 492, 706 S.E.2d 270 (2011); Hamilton v. Mortgage Info. Servs., 212 N.C. App. 73, 711 S.E.2d 185 (2011); Keegan v. Am. Honda Motor Co, (Jan. 6, 2012); Hill v. StubHub, Inc., 219 N.C. App. 227, 727 S.E.2d 550 (2012), review denied 366 N.C. 424, 736 S.E.2d 757, 2013 N.C. LEXIS 138 (2013); Misel v. Green Tree Servicing, LLC, - F. Supp. 2d - (E.D.N.C. Mar. 21, 2011); Duncan v. Duncan, 223 N.C. App. 15, 732 S.E.2d 390 (2012), rev'd 742 S.E.2d 799, 2013 N.C. LEXIS 495 (2013); Ramey Kemp & Assocs. v. Richmond Hills Residential Partners, LLC, 225 N.C. App. 397, 737 S.E.2d 420, aff'd, 367 N.C. 118, 748 S.E.2d 143, 2013 N.C. LEXIS 1020 (2013); Hausle v. Hausle, 226 N.C. App. 241, 739 S.E.2d 203 (2013); McKinnon v. CV Indus., 228 N.C. App. 190, 745 S.E.2d 343 (2013); Simmons v. Kross Lieberman & Stone, Inc., 228 N.C. App. 425, 746 S.E.2d 311 (2013); Wilkerson v. Duke Univ., 229 N.C. App. 670, 748 S.E.2d 154 (2013); Equity Solutions of the Carolinas, Inc. v. N.C. Dep't of State Treasurer, 232 N.C. App. 384, 754 S.E.2d 243 (2014); McMillan v. Ryan Jackson Props., LLC, 232 N.C. App. 35, 753 S.E.2d 373 (2014); Torrence v. Nationwide Budget Fin., 232 N.C. App. 306, 753 S.E.2d 802 (2014);.

Stikeleather Realty & Invs. Co. v. Broadway, 241 N.C. App. 152, 772 S.E.2d 107 (2015); Bank of Am., N.A. v. Rice, 244 N.C. App. 358, 780 S.E.2d 873 (2015); E. Brooks Wilkins Family Med., P.A. v. WakeMed, 244 N.C. App. 567, 784 S.E.2d 178 (2016), review denied, 797 S.E.2d 18, 2017 N.C. LEXIS 160 (2017); Lasecki v. Lasecki, 246 N.C. App. 518, 786 S.E.2d 286 (2016); LeCann v. Cobham (In re Cobham), 551 B.R. 181 (E.D.N.C. 2015), aff'd, 2016 U.S. App. LEXIS 18523 (2016); Akshar Distrib. Co. v. Smoky's Mart Inc., - N.C. App. - , 837 S.E.2d 621 (2020).

II. TRADE OR COMMERCE.

Applicability. - This section applies if the plaintiff alleges a substantial injurious effect on plaintiff's business operations in North Carolina. Broussard v. Meineke Disct. Muffler Shops, Inc., 945 F. Supp. 901 (W.D.N.C. 1996).

Debtor was denied a discharge where he admitted transferring property for the purpose of preventing the judgment of his only creditors from attaching to his real property, thus hindering and delaying them in violation of 11 U.S.C.S. § 727(a)(2). A deceptive practices claim under G.S. 75-1.1 et seq., failed, as the transaction did not affect commerce. Perkins v. Arnold (In re Arnold), - Bankr. - (Bankr. M.D.N.C. Dec. 30, 2009).

Trade or Commerce Context Prerequisite. - Before a practice can be declared unfair or deceptive under this section, it must first be determined that the practice or conduct which is complained of takes place within the context of this section's language pertaining to trade or commerce. Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 266 S.E.2d 610 (1980).

On an unfair trade practices claim, the proper inquiry is not whether a contractual relationship existed between the parties, but rather whether defendants' allegedly deceptive acts affected commerce. J.M. Westall & Co. v. Windswept View of Asheville, Inc., 97 N.C. App. 71, 387 S.E.2d 67, cert. denied, 327 N.C. 139, 394 S.E.2d 175 (1990).

The General Assembly amended subsection (b) of this section to define "commerce" inclusively as "business activity, however denominated," limited only by the express exemptions set forth above. The term "business" generally imports a broad definition. Bhatti v. Buckland, 328 N.C. 240, 400 S.E.2d 440 (1991).

"Commerce" Comprehends An Exchange. - The use of the word "trade" interchangeably with the word "commerce" indicates that this section contemplated a narrower definition of commerce which would comprehend an exchange of some type. Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 266 S.E.2d 610 (1980).

Although the statutory definition of commerce is expansive, it is not intended to apply to all wrongs in a business setting. HAJMM Co. v. House of Raeford Farms, Inc., 328 N.C. 578, 403 S.E.2d 483 (1991).

"In or Affecting Commerce". - Where in his answer defendant admitted that he was involved in business activities relating to the buying and selling of residential real estate, there was sufficient evidence that defendant's conduct was "in or affecting commerce" so as to withstand a motion for a directed verdict. Wilder v. Squires, 68 N.C. App. 310, 315 S.E.2d 63, cert. denied, 311 N.C. 769, 321 S.E.2d 158 (1984).

In an action alleging unfair trade practices, alleged misrepresentations of defendant developer's agent to plaintiff supplier relating to the delivery of building materials to a third party (the contractor) at least affected commerce and arguably were also "in commerce" for purposes of this section. J.M. Westall & Co. v. Windswept View of Asheville, Inc., 97 N.C. App. 71, 387 S.E.2d 67, cert. denied, 327 N.C. 139, 394 S.E.2d 175 (1990).

Based on evidence that the defendant solicited plaintiff's customers and obtained their business while on official business for the plaintiff, the court held that the conduct in question was "in or affecting commerce" and thus fell within the scope of this chapter. Dalton v. Camp, 138 N.C. App. 201, 531 S.E.2d 258 (2000).

Where employer tried to prevent salespersons from discovering the amount of money they were owed, and used his position of power to retain the commissions he owed them, but there was no showing that the employer's conduct was "in or affecting commerce," the unfair or deceptive trade practices statute was not violated. Durling v. King, 146 N.C. App. 483, 554 S.E.2d 1 (2001).

Broker and his entities' acts were in or affecting commerce where: (1) the broker had held a real estate license for approximately 30 years, was in the business of real estate financing, and had been involved with approximately 100 seller-financing transactions during that time; (2) the underlying transactions involved the buying, developing, and selling of real estate; and (3) the substitution of collateral agreement's purpose was to complete pending and proposed sales of all or part of the remaining unsold land. Trantham v. Michael L. Martin, Inc., 228 N.C. App. 118, 745 S.E.2d 327 (2013).

Creditor did not commit an unfair or deceptive business practice by filing a bankruptcy proof of claim with bankruptcy debtors' unredacted social security numbers since filing the proof of claim in the bankruptcy court did not occur in or affect commerce. Winter v. Suddenlink (In re Winter), - Bankr. - (Bankr. E.D.N.C. Aug. 26, 2015).

For purposes of plaintiff's claim of unfair and deceptive trade practices, defendants' actions were in or affecting commerce, as the regular business activity for which defendant two was formed was to aid in defeating the use of defendant one's assets for satisfaction of claims of its creditors. General Fid. Ins. Co. v. WFT, Inc., - N.C. App. - , 837 S.E.2d 551 (2020).

Business Activity "In or Affecting Commerce." - Although different from typical North Carolina Unfair and Deceptive Trade Practices Act claims, the allegations advanced by the title insurance company were sufficient to plausibly demonstrate that debtor's actions, which consisted of misrepresenting the validity of the forged deed of trust in order to procure title insurance, involved a business activity constituting "in or affecting commerce" under G.S. 75-1.1(b). Old Republic Nat'l Title Ins. Co. v. Welch (In re Welch), 494 B.R. 654 (Bankr. E.D.N.C. 2013).

Matters of Internal Corporate Management Do Not Affect Commerce - Matters of internal corporate management, such as the manner of selection of and qualifications for directors, do not affect commerce in the context of a claim of unfair and deceptive trade practices; therefore it was proper to dismiss a former employee's action under the statute against a former employer where the employer changed its bylaws to prohibit former employees from applying to serve on its board until six years had elapsed since the date of last employment. Wilson v. Blue Ridge Elec. Mbrshp. Corp., 157 N.C. App. 355, 578 S.E.2d 692 (2003).

While a corporate officer's breaches of fiduciary duty in causing the corporation to transfer funds to the officer based on invalid partnership and employment agreements sufficiently established an unfair or deceptive act or practice, the conduct did not affect commerce as required for liability under G.S. 75-1.1(a) since the conduct related to internal corporate affairs rather than the corporation's regular business activities. Anderson v. Brokers, Inc. (In re Brokers, Inc.), 396 B.R. 146 (Bankr. M.D.N.C. 2008).

It was error to hold a corporation's co-owner violated North Carolina's Unfair and Deceptive Trade Practices Act by misappropriating corporate funds because the co-owner's acts were not "in or affecting commerce," as the co-owner's conduct did not occur in dealings with other market participants, since the acts occurred within a single entity through payments made directly to the co-owner and family members as well as payments made to cover some of the co-owner's own personal expenses. Alexander v. Alexander, 250 N.C. App. 511, 792 S.E.2d 901 (2016).

Subsection (b) of this section is not broad enough to encompass all forms of business activities, but was adopted to ensure that the original intent of this section, as set forth in subsection (b) as originally enacted, was effectuated. Olivetti Corp. v. Ames Bus. Sys., 81 N.C. App. 1, 344 S.E.2d 82 (1986), aff'd in part and rev'd in part on other grounds, 319 N.C. 534, 356 S.E.2d 578 (1987).

Learned Professional. - Claim of unfair and deceptive trade practices could not stand because of the learned professional exception under this section since the action was filed against medical professionals who allegedly made a complaint to a medical board. Wheeless v. Maria Parham Med. Ctr., Inc., 237 N.C. App. 584, 768 S.E.2d 119 (2014).

Business court properly dismissed chiropractors' unfair trade practice claims against a company because the conduct alleged did fall within the "learned profession" exemption; since the basis for the unfair and deceptive trade practices claim was that chiropractors were reducing the level of services patients received, the conduct alleged in the complaint was sufficiently related to patient care to fall within the rendering of professional services. Sykes v. Health Network Sols., Inc., 372 N.C. 326, 828 S.E.2d 467 (2019).

Learned Profession Exception Did Not Apply to Activities Unrelated to Rendition of Professional Services. - It was error not to submit a physician's Unfair and Deceptive Trade Practices Act counterclaim against a hospital to a jury because the learned profession exception did not apply to the parties' negotiation of an employment contract unrelated to the rendition of professional services. Hamlet H.M.A., LLC v. Hernandez, 262 N.C. App. 51, 821 S.E.2d 600 (2018), review denied, 372 N.C. 61, 822 S.E.2d 637, 2019 N.C. LEXIS 102 (2019), review denied, 372 N.C. 61, 822 S.E.2d 640, 2019 N.C. LEXIS 112 (2019), aff'd, 373 N.C. 189, 835 S.E.2d 436, 2019 N.C. LEXIS 1189 (2019).

Learned profession exception to the Unfair and Deceptive Trade Practices Act does not cover claims simply because the participants in the contract are medical professionals. Hamlet H.M.A., LLC v. Hernandez, 262 N.C. App. 51, 821 S.E.2d 600 (2018), review denied, 372 N.C. 61, 822 S.E.2d 637, 2019 N.C. LEXIS 102 (2019), review denied, 372 N.C. 61, 822 S.E.2d 640, 2019 N.C. LEXIS 112 (2019), aff'd, 373 N.C. 189, 835 S.E.2d 436, 2019 N.C. LEXIS 1189 (2019).

The federal Copyright Act preempts any legal or equitable right under state law which is "equivalent" to any of the exclusive rights within the general scope of copyright, so that state law could not in fact make copyright infringement a violation of this act. Nintendo of Am., Inc. v. Aeropower Co., 34 F.3d 246 (4th Cir. 1994).

Bankruptcy court's conclusion of law while granting defendants' motion for judgment on pleadings was proper because plaintiff's complaint did not allege that defendants' actions were in or affecting commerce and did not contain any factual allegations that the defendants were engaged in business and that their actions were part of the manner in which businesses conducted their regular, day-to-day activities, or affairs. Rodgers v. Preferred Carolina Realty, Inc. (In re Rodgers), - F. Supp. 2d - (E.D.N.C. Nov. 26, 2013).

Claims Against Attorney Barred. - The plaintiff's claims of unfair and deceptive trade practices against her attorney could not be brought under this section, which expressly excludes the rendition of professional services "by a member of a learned profession" from the definition of "commerce." Sharp v. Gailor, 132 N.C. App. 213, 510 S.E.2d 702 (1999).

In their debt collection practice, defendants, a law firm and its president, were learned professionals, exempt under the North Carolina Debt Collection Act and the North Carolina Unfair and Deceptive Trade Practices Act; the court was unable to limit the exemption to attorneys licensed in North Carolina and no exception would be made for alleged insufficient supervision in connection with claims brought by plaintiff consumers. Godfredson v. JBC Legal Group, P.C., 387 F. Supp. 2d 543 (E.D.N.C. 2005).

Claims by Law Firm Not Barred. - While professional services rendered by an attorney were not included in the definition of "commerce" in G.S. 75-1.1(b), a law firm was not precluded from pursuing an unfair or deceptive trade practices claim against a political campaign committee which published a political advertisement containing allegedly defamatory statements about the firm and one of its members. Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25, 568 S.E.2d 893 (2002), cert. denied, - U.S. - , 124 S. Ct. 431, 157 L. Ed. 2d 310 (2003).

Claims Against Non-Attorneys Not Barred. - Debtors' claim under North Carolina Debt Collection Act was not barred by learned profession exemption because such exemption did not apply to parties who were not members of learned profession. Huff v. Gallagher (In re Huff), 521 B.R. 107 (Bankr. E.D.N.C. Dec. 5, 2014).

The rental of commercial property is trade or commerce within the meaning of this section. Kent v. Humphries, 50 N.C. App. 580, 275 S.E.2d 176, aff'd and modified, 303 N.C. 675, 281 S.E.2d 43 (1981).

The leasing of just one commercial lot satisfies the requirement of being in or affecting commerce. Wilder v. Hodges, 80 N.C. App. 333, 342 S.E.2d 57 (1986).

The leasing of a piece of real estate for use as a restaurant parking lot is a business activity. Wilder v. Hodges, 80 N.C. App. 333, 342 S.E.2d 57 (1986).

Sale or Lease of Houses as Business or Act Affecting Commerce. - While the mere purchase and sale of a residence is not an act in or affecting commerce, under this section the law is otherwise as to persons who buy, sell, or lease houses as a business. Adams v. Moore, 96 N.C. App. 359, 385 S.E.2d 799 (1989), cert. denied, 326 N.C. 46, 389 S.E.2d 83 (1990).

Where the record revealed that defendant was a licensed contractor and that he built the residence that he sold to plaintiffs, defendant's conduct is within the scope of this section. Rucker v. Huffman, 99 N.C. App. 137, 392 S.E.2d 419 (1990).

The rental of residential housing is trade or commerce under this section. Love v. Pressley, 34 N.C. App. 503, 239 S.E.2d 574 (1977), cert. denied, 299 N.C. 441, 241 S.E.2d 843 (1978).

G.S. ch. 75, regarding consumer protection, applied to residential rentals because the rental of residential housing was commerce pursuant to G.S. 75-1.1. Friday v. United Dominion Realty Trust, Inc., 155 N.C. App. 671, 575 S.E.2d 532 (2003).

Rental of spaces in a mobile home park is "trade and commerce" within the meaning of this statute. Marshall v. Miller, 47 N.C. App. 530, 268 S.E.2d 97, modified and aff 'd, 302 N.C. 539, 276 S.E.2d 397 (1981).

Employer-Employee Relationships. - Unlike buyer-seller relationships, the employer-employee relationships do not fall within the intended scope of this section. Buie v. Daniel Int'l Corp., 56 N.C. App. 445, 289 S.E.2d 118, cert. denied, 305 N.C. 759, 292 S.E.2d 574 (1982); American Marble Corp. v. Crawford, 84 N.C. App. 86, 351 S.E.2d 848, cert. denied, 319 N.C. 464, 356 S.E.2d 1 (1987); Liggett Group, Inc. v. Sunas, 113 N.C. App. 19, 437 S.E.2d 674 (1993).

Employer-employee relationships do not fall within the intended scope of G.S. 75-1.1, and it was undisputed that the employee's claims arose from his employment. Freeman v. Duke Power Co., - F. Supp. 2d - (M.D.N.C. Aug. 15, 2003).

Former Employee's Claims. - The former employee's claim under this section should have been submitted to a jury, where the claims referred to activities after their separation, at which time they became business competitors, and this section declares unlawful unfair methods of competition in or affecting commerce. Ausley v. Bishop, 133 N.C. App. 210, 515 S.E.2d 72 (1999).

The relationship of borrower and mortgage broker and the activities which are appurtenant to it are components of the larger concept of trade or commerce and therefore come within the purview of this section, though no tangible property of any kind moves through commerce because of this relationship, since an exchange of value does occur as a result of the process of securing a broker as the representative of the potential borrower. Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 266 S.E.2d 610 (1980).

Private parties engaged in the sale of a residence are not involved in trade or commerce and cannot be held liable under this section. Robertson v. Boyd, 88 N.C. App. 437, 363 S.E.2d 672 (1988); Johnson v. Beverly-Hanks & Assocs., 97 N.C. App. 335, 388 S.E.2d 584 (1990), rev'd on other grounds, 328 N.C. 202, 400 S.E.2d 38 (1991).

Where the defendant was a private individual who engaged a realtor to auction a residence on his behalf and there was no evidence in the record that defendant was in the business of buying and selling residential real estate, his actions were not in or affecting commerce. Bhatti v. Buckland, 99 N.C. App. 750, 394 S.E.2d 192 (1990).

Home seller was not subject to unfair and deceptive practice liability because nothing in the record suggested that this was a commercial land transaction, and in selling her private residence, the seller was not engaged in commerce. MacFadden v. Louf, 182 N.C. App. 745, 643 S.E.2d 432 (2007).

Actions of father acting as a contractor to build a house for his daughter did not rise to the harm proscribed under this Chapter. Miller v. Ensley, 88 N.C. App. 686, 365 S.E.2d 11 (1988).

Statements and Actions Leading to Job Termination of Project Manager Not in or Affecting Trade or Commerce. - Defendants, an engineering firm and a director of the firm, were entitled to summary judgment as to a project manager's claim of unfair and deceptive trade practices under G.S. 75-1.1, because the project manager failed to show that defendants' statements and actions concerning the project manager's performance had any impact beyond his employment relationship with an agency, and therefore the project manager failed to show that defendants' statements and actions were in or affecting commerce. Esposito v. Talbert & Bright, Inc., 181 N.C. App. 742, 641 S.E.2d 695 (2007), review denied, 362 N.C. 234, 659 S.E.2d 440 (2008).

Referral Fee. - Although persons selling their own private residence are exempt from Chapter 75 liability, where defendant's wife received a referral fee, defendants' transaction was within the scope of this section. Davis v. Sellers, 115 N.C. App. 1, 443 S.E.2d 879 (1994), cert. denied, 339 N.C. 610, 454 S.E.2d 248 (1995).

Expressly Advertising Sale of Residence to Speculators and Investors Held Commercial Transaction. - Sale of residence, lot and outbuildings by defendant who, through his agent, advertised the property by expressly appealing to investors and speculators as well as to homeseekers, was a commercial land transaction that affected commerce in a broad sense and was subject to this section. Bhatti v. Buckland, 328 N.C. 240, 400 S.E.2d 440 (1991).

Defendant had the burden of proving that the sale of a residence was not "in or affecting commerce" within the meaning and intent of this section. Bhatti v. Buckland, 328 N.C. 240, 400 S.E.2d 440 (1991).

Transactions between the debtor, as borrower, and credit union, as lender, constitute acts or practices in or affecting commerce. Petersen v. State Employees Credit Union (In re Kittrell), 115 Bankr. 873 (Bankr. M.D.N.C. 1990).

The parties' agreement, whereby the creditor loaned the debtor funds in exchange for the right to purchase stock in the debtor in the future, was a capital-raising device that did not pertain to trade or commerce, thus disallowing a claim for unfair or deceptive trade practices. Oberlin Capital, L.P. v. Slavin, 147 N.C. App. 52, 554 S.E.2d 840 (2001).

Sale of Van. - Defendants violated this section and G.S. 20-71.4 when they did not give plaintiffs a written damage disclosure statement that the van had been involved in a collision to the extent that the cost of the van's repairs exceeded twenty-five percent of its fair market retail value. Wilson v. Sutton, 124 N.C. App. 170, 476 S.E.2d 467 (1996).

Use of Hidden Cameras for Television Show. - Employees of broadcast television network who secured employment with food store chain in order to wear hidden cameras to tape store practices for "Prime Time Live" network news show were engaged in conduct that was "affecting commerce" and the Unfair and Deceptive Trade Practices Act might apply. Food Lion, Inc. v. Capital Cities/ABC, Inc., 951 F. Supp. 1224 (M.D.N.C. 1996).

Slander Per Se. - Slander per se may constitute a violation of this section. Ausley v. Bishop, 133 N.C. App. 210, 515 S.E.2d 72 (1999).

Securities Transactions - No authority exists for imposing a duty upon securities brokers, to oversee the manner in which the funds in question were invested, and securities transactions were not subject to the UDTPA [G.S. 75-1 et seq.], because such application would create overlapping supervision, enforcement, and liability in an area of law that was already pervasively regulated by state and federal statutes and agencies. Sterner v. Penn, 159 N.C. App. 626, 583 S.E.2d 670 (2003); Allison v. Lomas, 387 F. Supp. 2d 516 (M.D.N.C. Aug. 26, 2005).

Investor's deceptive practices claims, alleging limited liability company managers committed constructive fraud when persuading the investors to invest in and become members of a limited liability company, failed because (1) G.S. 75-1.1 did not apply to securities fraud claims, (2) the constructive fraud claim failed as a matter of law, and (3) the gravamen of the constructive fraud claim was securities fraud. Atkinson v. Lackey, - N.C. - , - S.E.2d - (Feb. 27, 2015).

Question of Fact for Jury vs. Question of Law. - In an action for breach of contract and conversion, the sellers' contention that the district court erred by allowing the jury to decide the commerce element, rather than deciding it as a matter of law, failed because, if error, the sellers invited it. Legacy Data Access, Inc. v. Cadrillion, LLC, 889 F.3d 158 (4th Cir. 2018).

III. UNFAIR AND DECEPTIVE ACTS.

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A. IN GENERAL.

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No precise definition of "unfair methods of competition" as used in this section is possible. Harrington Mfg. Co. v. Powell Mfg. Co., 38 N.C. App. 393, 248 S.E.2d 739 (1978), cert. denied, 296 N.C. 411, 251 S.E.2d 469 (1979); Concrete Serv. Corp. v. Investors Group, Inc., 79 N.C. App. 678, 340 S.E.2d 755, cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986).

"Unfair" and "Deceptive" Practices. - A practice is unfair if it is unethical or unscrupulous, and it is deceptive if it has a tendency to deceive. Polo Fashions, Inc. v. Craftex, Inc., 816 F.2d 145 (4th Cir. 1987).

Consumer Transaction Required. - Since a consumer transaction was required to establish a violation of the North Carolina unfair or deceptive trade practices law under G.S. 75-1.1(a) and (b), a shareholder failed to establish such a violation because the shareholder only alleged actions involving internal corporate relationships, and not actions involving the buyer-seller commercial market. Anderson v. Dobson, - F. Supp. 2d - (W.D.N.C. Nov. 13, 2007).

Trial court properly dismissed a homeowners association's claim against a developer for unfair and deceptive trade practices because the alleged bad acts did not occur in dealings with other market participants and none of the past or present unit owners were parties. Conleys Creek Limited Partnership v. Smoky Mt. Country Club Prop. Owners Ass'n, 370 N.C. 695, 255 N.C. App. 236, 805 S.E.2d 147 (2017), appeal dismissed, 811 S.E.2d 596, 2018 N.C. LEXIS 263 (2018).

Breach of Contract. - Mere breach of contract did not constitute an unfair or deceptive trade practice. Horack v. S. Real Estate Co. of Charlotte, Inc., 150 N.C. App. 305, 563 S.E.2d 47 (2002).

In a case arising from the termination of an employee where the trial judge entered an order finding as a matter of law that, where the jury found that there was a breach of contract by the employer and also found the employer engaged in two of three aggravating circumstances associated with the breach, the employer had engaged in unfair and deceptive trade practices entitling employee to treble damages, the court did not err by refusing to divide the breach of contract claim and the violation of G.S. 75-1.1 for purposes of awarding treble damages. Johnson v. Colonial Life & Accident Ins. Co., 173 N.C. App. 365, 618 S.E.2d 867 (2005).

In a case arising from the termination of an employee, where the evidence showed aggravating factors in addition to a breach of contract, there was sufficient evidence to show a violation of G.S. 75-1.1. Johnson v. Colonial Life & Accident Ins. Co., 173 N.C. App. 365, 618 S.E.2d 867 (2005).

Trial court properly granted a landscaper summary judgment because the act property owners' alleged constituted an unfair or deceptive act or practice never occurred, as required to establish a prima facie claim for unfair and deceptive trade practices; there was no contract for the landscaper to breach because the parties' agreement was not certain and definite as to the price or scope of the work to be completed, and no meeting of the minds occurred. Rider v. Hodges, 255 N.C. App. 82, 804 S.E.2d 242 (2017).

Evidence plaintiff relied upon in support of its argument for the existence of the necessary substantial aggravating circumstances for an unfair and deceptive trade practices claim amounted to nothing more than an assertion that defendants intentionally breached the consent order while knowing of its existence, which alone was insufficient; the trial court did not err by granting summary judgment in favor of defendants on this claim. Scigrip, Inc. v. Samuel B. Osae & Scott Bader, - N.C. - , - S.E.2d - (Feb. 28, 2019).

Determination of Unfairness of Conduct. - Unfair competition has been referred to in terms of conduct which a court of equity would consider unfair. Thus viewed, the fairness or unfairness of particular conduct is not an abstraction to be derived by logic. Rather, the fair or unfair nature of particular conduct is to be judged by viewing it against the background of actual human experience and by determining its intended and actual effects upon others. Harrington Mfg. Co. v. Powell Mfg. Co., 38 N.C. App. 393, 248 S.E.2d 739 (1978), cert. denied, 296 N.C. 411, 251 S.E.2d 469 (1979); General United Co. v. American Honda Motor Co., 618 F. Supp. 1452 (W.D.N.C. 1985).

The determination of whether an act or practice is unfair or deceptive under this section is a question of law for the court. Gray v. North Carolina Ins. Underwriting Ass'n, 132 N.C. App. 63, 510 S.E.2d 396 (1999).

A G.S. 75-1.1 claim failed because a potential property purchaser's allegations did not show any of the other businesses engaged in conduct that amounted to an inequitable assertion of their power over the purchaser, and the complaint did not allege sufficient facts to show any of the businesses engaged in conduct that was so egregious in nature to result in immoral, unethical, oppressive behavior; rather, their conduct appeared to be nothing more than competitive business activities. S.N.R. Mgmt. Corp. v. Danube Partners 141, LLC, 189 N.C. App. 601, 659 S.E.2d 442 (2008).

Trial court did not err by granting summary judgment for a sanitary district on a homeowners association's claim for unfair and deceptive trade practices because the association's complaint alleged that the district misrepresented the expected total cost of a sewer system, but it did did not support its contention with any evidence before the trial court and did not argue on appeal that the district's alleged breach of contract was accompanied by substantial aggravating circumstances. Badin Shores Resort Owners Ass'n v. Handy Sanitary Dist., 257 N.C. App. 542, 811 S.E.2d 198 (2018).

"Unfairness" is broader than and includes the concept of "deception". Overstreet v. Brookland, Inc., 52 N.C. App. 444, 279 S.E.2d 1 (1981); Jennings Glass Co. v. Brummer, 88 N.C. App. 44, 362 S.E.2d 578 (1987), cert. denied, 321 N.C. 473, 364 S.E.2d 921 (1988).

A trade practice is deceptive if it has the capacity or tendency to deceive. Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981); Ken-Mar Fin. v. Harvey, 90 N.C. App. 362, 368 S.E.2d 646, cert. denied, 323 N.C. 365, 373 S.E.2d 545 (1988); Backwell v. Dorosko, 95 N.C. App. 637, 383 S.E.2d 670 (1989); Spartan Leasing, Inc. v. Pollard, 101 N.C. App. 450, 400 S.E.2d 476 (1991); Branch Banking & Trust Co. v. Thompson, 107 N.C. App. 53, 418 S.E.2d 694, cert. denied, 332 N.C. 482, 421 S.E.2d 350 (1992).

Unfair and deceptive acts in the insurance area are not regulated exclusively by Article 63 of Chapter 58, but are also actionable under G.S. 75-1.1; there is no requirement, however, that a party bringing a claim for unfair or deceptive trade practices against an insurance company allege a violation of G.S. 58-63-15 in order to bring a claim pursuant to G.S. 75-1.1. Country Club of Johnston County, Inc. v. United States Fid. & Guar. Co., 150 N.C. App. 231, 563 S.E.2d 269 (2002).

A violation of former G.S. 58-54.4 (see now G.S. 58-63-15) as a matter of law constitutes an unfair or deceptive trade practice in violation of this section. Pearce v. American Defender Life Ins. Co., 316 N.C. 461, 343 S.E.2d 174 (1986); North Carolina Chiropractic Ass'n v. Aetna Cas. & Sur. Co., 89 N.C. App. 1, 365 S.E.2d 312 (1988).

In order to establish a violation of G.S. 75-1.1, a plaintiff must show: (1) an unfair or deceptive act or practice, (2) in or affecting commerce, and (3) which proximately caused injury to plaintiffs; a court may look to the types of conduct prohibited by G.S. 58-63-15(11) for examples of conduct which would constitute an unfair and deceptive act or practice. Country Club of Johnston County, Inc. v. United States Fid. & Guar. Co., 150 N.C. App. 231, 563 S.E.2d 269 (2002).

Acts listed in G.S. 58-63-15(11) constitute a violation of G.S. 75-1.1 without the necessity of an additional showing of frequency indicating a "general business practice," as is required under G.S. 58-63-15(11)(f). Country Club of Johnston County, Inc. v. United States Fid. & Guar. Co., 150 N.C. App. 231, 563 S.E.2d 269 (2002).

Applicability to G.S. 66-291. - Application of G.S. 75-1.1 under the North Carolina Unfair and Deceptive Trade Practices Act was precluded in a case of noncompliance with the escrow deposit requirements of G.S. 66-291 regarding a tobacco product manufacturer selling cigarettes to consumers within North Carolina; there was enough legislative apparatus already in place without also applying the UDTPA. State ex rel. Cooper v. Ridgeway Brands Mfg., LLC, 184 N.C. App. 613, 646 S.E.2d 790 (2007), aff'd in part, rev'd in part, 362 N.C. 431, 666 S.E.2d 107 (2008).

Acts directly prohibited by G.S. 75-51 through G.S. 75-54 in the specific context of debt collection may also be prohibited as general business practices under the North Carolina Unfair and Deceptive Trade Practices Act, G.S. 75-1 et seq. DIRECTV, Inc. v. Cephas, 294 F. Supp. 2d 760 (M.D.N.C. 2003).

North Carolina Debt Collection Act (NCDCA), G.S. 75-50 et seq., applies only when unfair and deceptive conduct occurs in the specific context of debt collection and, if the abusive conduct alleged pertains only to debt collection, the NCDCA provides a claimant's exclusive remedy; claims can only be asserted under the North Carolina Unfair and Deceptive Trade Practices Act, G.S. 75-1 et seq., if there is some abusive conduct alleged to have occurred outside the realm of debt collection. DIRECTV, Inc. v. Cephas, 294 F. Supp. 2d 760 (M.D.N.C. 2003).

Claims for unfair and deceptive trade practices are not assignable. Horton v. New South Ins. Co., 122 N.C. App. 265, 468 S.E.2d 856 (1996), cert. denied, 472 S.E.2d 8 (1996).

Failure to Disclose Unenforceable Lien. - The failure of the seller of a boat to disclose the existence of a lien on the boat of which the seller had knowledge at the time but correctly believed to be invalid and unenforceable, constituted a violation of the act. Standing v. Midgett, 850 F. Supp. 396 (E.D.N.C. 1993).

Unfair competition is that which a court of equity would consider unfair. Pinehurst, Inc. v. O'Leary Bros. Realty, 79 N.C. App. 51, 338 S.E.2d 918, cert. denied, 316 N.C. 378, 342 S.E.2d 896 (1986).

Practice generally unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious. Process Components, Inc. v. Baltimore Aircoil Co., 89 N.C. App. 649, 366 S.E.2d 907, aff'd, 323 N.C. 620, 374 S.E.2d 116 (1988).

One need not show that he was actually deceived to prevail under the Act, as long as the actions complained of possessed the tendency or capacity to mislead, or created the likelihood of deception. Bartolomeo v. S.B. Thomas, Inc., 889 F.2d 530 (4th Cir. 1989).

Proof of actual deception is not necessary; it is enough that the statements had the capacity to deceive. Pinehurst, Inc. v. O'Leary Bros. Realty, 79 N.C. App. 51, 338 S.E.2d 918, cert. denied, 316 N.C. 378, 342 S.E.2d 896 (1986); Ken-Mar Fin. v. Harvey, 90 N.C. App. 362, 368 S.E.2d 646, cert. denied, 323 N.C. 365, 373 S.E.2d 545 (1988).

An act is deceptive if it has the capacity or tendency to deceive, but proof of actual deception is not required. Bailey v. LeBeau, 79 N.C. App. 345, 339 S.E.2d 460, modified and aff'd, 318 N.C. 411, 348 S.E.2d 524 (1986).

But proof of fraud would necessarily constitute a violation of the prohibition against unfair and deceptive acts; however, the converse is not always true. Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342 (1975); La Notte, Inc. v. New Way Gourmet, Inc., 83 N.C. App. 480, 350 S.E.2d 889 (1986); Webb v. Triad Appraisal & Adjustment Serv., Inc., 84 N.C. App. 446, 352 S.E.2d 859 (1987); Bhatti v. Buckland, 328 N.C. 240, 400 S.E.2d 440 (1991).

Proof of fraud necessarily constitutes a violation of the prohibition against unfair and deceptive acts. Olivetti Corp. v. Ames Bus. Sys., 81 N.C. App. 1, 344 S.E.2d 82 (1986), aff'd in part and rev'd in part on other grounds, 319 N.C. 534, 356 S.E.2d 578 (1987).

Where a bankruptcy court denied a debtor's motion for summary judgment on a nondischargeability count under 11 U.S.C.S. § 523(a)(6) because whether the debtor acted with substantial certainty that harm would result or with a subjective motive to cause harm was a question of fact for trial, then the court had to allow the creditors' Unfair and Deceptive Trade Practices Act count to proceed as well because North Carolina courts have held that a plaintiff who proves fraud may thereby establish that an unfair or deceptive trade practice occurred. Fazzari v. Hilbrant (In re Hilbrant), - Bankr. - (Bankr. W.D.N.C. Oct. 24, 2012).

The statement of an intention to perform an act, when no such intention exists, constitutes misrepresentation of the promisor's state of mind, an existing fact, and as such may furnish the basis for an action for fraud if the other elements of fraud are present, and that proof of fraud necessarily constitutes a violation of the statutory prohibition against unfair and deceptive acts. Mapp v. Toyota World, Inc., 81 N.C. App. 421, 344 S.E.2d 297, cert. denied, 318 N.C. 283, 347 S.E.2d 464 (1986).

Factors Determining Unfairness or Deception. - Whether a trade practice is unfair or deceptive usually depends upon the facts of each case and the impact the practice has in the marketplace. Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981); Bernard v. Central Carolina Truck Sales, Inc., 68 N.C. App. 228, 314 S.E.2d 582, cert. denied, 311 N.C. 751, 321 S.E.2d 126 (1984); Concrete Serv. Corp. v. Investors Group, Inc., 79 N.C. App. 678, 340 S.E.2d 755, cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986); Budd Tire Corp. v. Pierce Tire Co., 90 N.C. App. 684, 370 S.E.2d 267 (1988); Ramsey v. Keever's Used Cars, 92 N.C. App. 187, 374 S.E.2d 135 (1988); Spartan Leasing, Inc. v. Pollard, 101 N.C. App. 450, 400 S.E.2d 476 (1991).

In determining whether a violation of this section has occurred, the question of whether the defendant acted in bad faith is not pertinent, and the character of the plaintiff, whether public or private, should not alter the scope of the remedy. Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981).

In order to succeed under this section, it is not necessary for the plaintiff to show fraud, bad faith, deliberate or knowing acts of deception, or actual deception; plaintiff must, nevertheless, show that the acts complained of possessed the tendency or capacity to mislead, or created the likelihood of deception. Chastain v. Wall, 78 N.C. App. 350, 337 S.E.2d 150 (1985), cert. denied, 316 N.C. 375, 342 S.E.2d 891 (1986).

In determining whether a particular act or practice is deceptive, its effect on the average consumer is considered. Petersen v. State Employees Credit Union (In re Kittrell), 115 Bankr. 873 (Bankr. M.D.N.C. 1990).

A party is guilty of an unfair act or practice when it engages in conduct which amounts to an inequitable assertion of its power or position. Petersen v. State Employees Credit Union (In re Kittrell), 115 Bankr. 873 (Bankr. M.D.N.C. 1990).

A practice is unfair when it offends public policy, as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers and if it has the capacity or tendency to deceive; words or phrases, though literally true, may still be deceptive. Petersen v. State Employees Credit Union (In re Kittrell), 115 Bankr. 873 (Bankr. M.D.N.C. 1990).

A practice is "unfair" under the Unfair and Deceptive Trade Practices Act when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. Alternatively, a party is guilty of an unfair act or practice when it engages in conduct which amounts to an inequitable assertion of its power or position. McInerney v. Pinehurst Area Realty, Inc., 162 N.C. App. 285, 590 S.E.2d 313 (2004).

A practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981); Overstreet v. Brookland, Inc., 52 N.C. App. 444, 279 S.E.2d 1 (1981); General United Co. v. American Honda Motor Co., 618 F. Supp. 1452 (W.D.N.C. 1985); Bailey v. LeBeau, 79 N.C. App. 345, 339 S.E.2d 460, modified and aff'd, 318 N.C. 411, 348 S.E.2d 524 (1986); Jennings Glass Co. v. Brummer, 88 N.C. App. 44, 362 S.E.2d 578 (1987); Ken-Mar Fin. v. Harvey, 90 N.C. App. 362, 368 S.E.2d 646, cert. denied, 323 N.C. 365, 373 S.E.2d 545 (1988).

Failure to disclose information may be tantamount to misrepresentation and thus an unfair or deceptive practice. Kron Medical Corp. v. Collier Cobb & Assocs., 107 N.C. App. 331, 420 S.E.2d 192, cert. denied, 333 N.C. 168, 424 S.E.2d 910 (1992), appeal dismissed, 333 N.C. 345, 426 S.E.2d 706 (1993).

The existence of unfair acts and practices must be determined from the circumstances of each case. Goodrich v. Rice, 75 N.C. App. 530, 331 S.E.2d 195 (1985).

Coercive tactics are within the definition of unfair practices as used in this section. Wilder v. Squires, 68 N.C. App. 310, 315 S.E.2d 63, cert. denied, 311 N.C. 769, 321 S.E.2d 158 (1984).

Duress or coercion may take the form of unlawfully inducing one to make a contract or to perform some other act against his own free will and it may be manifested by threats. Wilder v. Squires, 68 N.C. App. 310, 315 S.E.2d 63, cert. denied, 311 N.C. 769, 321 S.E.2d 158 (1984).

An inequitable assertion of power or position may be an unfair act or practice. Libby Hill Seafood Restaurants, Inc. v. Owens, 62 N.C. App. 695, 303 S.E.2d 565, cert. denied, 309 N.C. 321, 307 S.E.2d 164 (1983).

Intent and Good Faith Irrelevant. - If unfairness and deception are gauged by consideration of the effect of the practice on the marketplace, it follows that the intent of the actor is irrelevant; good faith is equally irrelevant. What is relevant is the effect of the actor's conduct on the consuming public. Wilder v. Squires, 68 N.C. App. 310, 315 S.E.2d 63, cert. denied, 311 N.C. 769, 321 S.E.2d 158 (1984).

The question of whether the defendant acted in bad faith is not pertinent. Bernard v. Central Carolina Truck Sales, Inc., 68 N.C. App. 228, 314 S.E.2d 582, cert. denied, 311 N.C. 751, 321 S.E.2d 126 (1984).

It is not necessary to prove bad faith to show an unfair or deceptive trade practice. F. Ray Moore Oil Co. v. State, 80 N.C. App. 139, 341 S.E.2d 371, cert. denied, 317 N.C. 333, 346 S.E.2d 139 (1986).

Plaintiffs need not allege intent in their Chapter 75 claim based on defendants' representations that they would build certain recreational facilities since intent is irrelevant in a Chapter 75 claim and plaintiffs need only show that defendants' actions were "unfair or deceptive acts or practices in or affecting commerce." Leake v. Sunbelt Ltd., 93 N.C. App. 199, 377 S.E.2d 285, cert. denied, 324 N.C. 578, 381 S.E.2d 774 (1989).

The fact that infringing actions were not taken with the intent to deceive the public as to the true origin of the purple dinosaur costumes, that finding alone could not immunize the defendants, costume rental store owners, from a North Carolina Unfair and Deceptive Trade Practices Act claim. Lyons Pshp., L.P. v. Morris Costumes, Inc., 243 F.3d 789 (4th Cir. 2001).

Good faith is not a defense to an alleged violation of this section. La Notte, Inc. v. New Way Gourmet, Inc., 83 N.C. App. 480, 350 S.E.2d 889 (1986), cert. denied and appeal dismissed, 319 N.C. 459, 354 S.E.2d 888 (1987).

Good faith is not a defense to allegations under this section. The effect of the actor's conduct on the marketplace is the relevant gauge as to whether unfairness or deception has occurred in a transaction. Ken-Mar Fin. v. Harvey, 90 N.C. App. 362, 368 S.E.2d 646, cert. denied, 323 N.C. 365, 373 S.E.2d 545 (1988).

In a case in which a creditor appealed a bankruptcy court's award of damages to a debtor in an adversary proceeding for unfair and deceptive trade practices under G.S. 75-1.1, the creditor unsuccessfully argued that his good faith misunderstanding of the law should be a defense to a claim under G.S. 75-1.1. North Carolina courts had made clear that good faith otherwise was not a defense under G.S. 75-1.1 Hancock v. Renshaw, 421 B.R. 738 (M.D.N.C. 2009).

Negligence, good faith, lack of intent, and ignorance are not defenses. That defendants may have made these misrepresentations negligently and in good faith, in ignorance of their falsity, and without intent to mislead, affords no defense to an action under this section. Forbes v. Par Ten Group, Inc., 99 N.C. App. 587, 394 S.E.2d 643 (1990), cert. denied, 99 N.C. 587, 402 S.E.2d 824 (1991).

Fraud, Bad Faith and Intentional Misrepresentations Not Required. - Whether an act or practice is unfair or deceptive is to be determined by all the facts and circumstances surrounding the transaction; a plaintiff under this section is not required to show fraud, bad faith or intentional misrepresentation. Peterson v. Bozzano, 183 Bankr. 735 (Bankr. M.D.N.C. 1995).

Direct Reliance of Plaintiff Required. - Only the direct reliance of the plaintiff is sufficient to support an unfair and deceptive practices claim based on misrepresentation. D C Custom Freight, LLC v. Tammy A. Ross & Assocs., - N.C. App. - , - S.E.2d - (Sept. 1, 2020), review denied, 851 S.E.2d 45, 2020 N.C. LEXIS 1093 (N.C. 2020).

Insurance. - Although it is true that jurisdiction under the Insurance Unfair Trade Practices Act lies in the Commissioner's office, unfair and deceptive acts in the insurance area are not regulated exclusively by G.S. 58-63 (1991), but are also actionable under this section. Golden Rule Ins. Co. v. Long, 113 N.C. App. 187, 439 S.E.2d 599 (1993).

Trial court erred in granting summary judgment to defendant insurer on a plaintiff's cause of action under G.S. 75-1.1 with regard to the insurer's employee misappropriating the plaintiff's annuity funds because the insurer failed to present any evidence that a life insurance policy and annuity constituted securities or other capital-raising instruments that did not fall within the scope of G.S. 75-1.1. White v. Consol. Planning, Inc., 166 N.C. App. 283, 603 S.E.2d 147 (2004), cert. denied, - N.C. - , 610 S.E.2d 717 (2005).

Insurer acted reasonably to investigate a highly unusual and suspicious claim; the fire department found the insured's uncle was the prime suspect in setting the fire and because the policy excluded losses from intentional acts done by the named insured or other insureds (which included relatives living at the house), it was perfectly reasonable for the insurer to take statements from the insured and his mother and uncle/stepfather that lived at the house. It was also reasonable for the insurer to conclude that the insured had made material misrepresentations on his policy application and to thus deny the claim. Riddle v. Auto-Owners Ins. Co., - F. Supp. 2d - (E.D.N.C. July 17, 2009).

Policy misrepresentation is a violation of Section (a) of the insurance regulation, but North Carolina courts have not found it to be an unfair and deceptive trade practices act (UDTPA) as a matter of law, G.S. 58-63-15(11)(a). Riddle v. Auto-Owners Ins. Co., - F. Supp. 2d - (E.D.N.C. July 17, 2009).

In a case in which an insurer filed a motion for summary judgment as to the insured's unfair and deceptive trade practices claims, violations of G.S. 58-63-15 were violations of G.S. 75-1.1 as a matter of law. The insured produced competent evidence to support their claim that the insurer did not commence a timely investigation, and there was a genuine issue of material fact for the jury as to whether the insurer met its statutory duties. Cleveland Constr., Inc. v. Fireman's Fund Ins. Co., - F. Supp. 2d - (W.D.N.C. Apr. 29, 2011).

Practices by Bankruptcy Debtor. - Where a judgment established that a bankruptcy debtor committed unfair and deceptive trade practices in violation of G.S. 75-1.1 by misrepresenting the creditor's expertise and experience and by failing to repair defects in the debtor's construction of improvements at a creditor's residence, res judicata did not apply to establish non-dischargeability of the judgment debt in bankruptcy since the judgment did not establish that the misrepresentations were intentional or that the injury to the creditor was willful and malicious, but the debtor was collaterally estopped from relitigating the findings that the debtor made the misrepresentations and caused the injury. Bennett v. Smith (In re Smith), - Bankr. - (Bankr. M.D.N.C. Nov. 16, 2006).

State court judgment that a Chapter 7 debtor violated the North Carolina Unfair and Deceptive Trade Practice Act, G.S. 75-1.1 et seq., by making false and misleading representations of material fact to the plaintiff with a specific intention that the plaintiff rely thereon collaterally estopped the debtor from relitigating those issues in connection with plaintiff's bankruptcy court complaint for an order that the resulting State court judgment was nondischargeable under 11 U.S.C.S. § 523(a)(2)(A). Floars v. Marshburn (In re Braswell), - Bankr. - (Bankr. E.D.N.C. June 4, 2009).

Judgment that creditors obtained in a North Carolina court, which found that a debtor violated North Carolina's Unfair and Deceptive Trade Practice Act (UDTPA) before she declared Chapter 7 bankruptcy, when she sold a franchise agreement to the creditors, was dischargeable under 11 U.S.C.S. § 523(a)(2)(A) because the evidence did not show that the debtor intended to defraud the creditors at the time she sold them a franchise agreement. Instead, the evidence showed that, at the time the debtor presented the franchise agreement to the creditors, she had a good faith belief that she had a contract with parties who held the right to sell blinds in two counties in North Carolina to release those rights so that the debtor could convey them to the creditors; the State court did not have to decide if the debtor had the intent to defraud to find that she violated the UDTPA, but intent was an element the creditors had to prove to establish that the debt was nondischargeable under § 523(a)(2)(A). Wilson v. Wall-McMahel (In re Wall-McMahel), - Bankr. - (Bankr. E.D.N.C. Sept. 16, 2010).

In a nondischargeability action under 11 U.S.C.S. § 523(a)(2)(A), collateral estoppel applied to all elements of a State court judgment against a debtor for violation of the Unfair and Deceptive Trade Practice Act, G.S. 75-1.1, except for her subjective intent because fraudulent intent was not an element of a violation of G.S. 75-1.1. The court reserved trial on the issue of the debtor's intent, but for summary judgment purposes found that the debtor falsely represented to the creditors when they signed a franchise agreement that required releases had been obtained from existing franchisees, she continued to make false representations about their ability to conduct business, and they reasonably relied on such representations, incurring financial loss. Wilson v. Wall-Mcmahel (In re Wall-Mcmahel), - Bankr. - (Bankr. E.D.N.C. July 22, 2010).

Debtor violated the Unfair and Deceptive Trade Practices Act, G.S. 75-1.1 et seq., when he signed affidavits that falsely stated that no recent construction had occurred on a construction project and that no outstanding bills were owed for improvements to the project in order to obtain title insurance, and the treble damages recoverable were nondischargeable under 11 U.S.C.S. § 523(a)(2)(B). Although the debtor's intent was irrelevant under the UDTPA, the intent element of § 523(a)(2)(B) was satisfied because the debtor's act of signing the affidavits without reading them was reckless, and the consequences of that reckless decision could not be avoided by blaming the attorney who prepared the documents. Lawyers Title Ins. Co. v. Chesson (In re Chesson), - Bankr. - (Bankr. M.D.N.C. Oct. 9, 2012).

Chapter 7 trustee for debtor, a genetic research firm, stated plausible claims for relief for transferee liability under 11 U.S.C.S. § 550(a), consumer deceptive acts and practices, under G.S. 75-1.1, breach of fiduciary duties, under Colo. Rev. Stat. § 7-108-401, and misappropriated claimed trade secrets, under G.S. 66-152(1). Angell v. AccuGenomics, Inc. (In re Gene Express), - Bankr. - (Bankr. E.D.N.C. May 10, 2013).

Chapter 7 debtor's conduct rose to the level of fraud and thus, qualified as a deceptive act under the Unfair and Deceptive Trade Practices Act where his fraudulent statements regarding a real estate project induced the creditors to invest, and it was clear that his actions were made in or affecting commerce and caused injury to the creditors. Thus, they were entitled to damages, which were trebled. Dean v. Brown (In re Brown), - Bankr. - (Bankr. W.D.N.C. Oct. 8, 2013).

Violation of Chapter 58 Article 3A Was Not Required to Prove Chapter Violation. - Excess and umbrella insurers were not required to prove a violation of Chapter 58, Article 3A, The Unfair Trade Practices Article of the Insurance Statutes, in order to show a violation of Chapter 75. United States Fire Ins. Co. v. Nationwide Mut. Ins. Co., 735 F. Supp. 1320 (E.D.N.C. 1990).

As a general rule, a practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. Johnson v. Beverly-Hanks & Assocs., 328 N.C. 202, 400 S.E.2d 38 (1991); Branch Banking & Trust Co. v. Thompson, 107 N.C. App. 53, 418 S.E.2d 694, cert. denied, 332 N.C. 482, 421 S.E.2d 350 (1992).

Tendency or Capacity to Mislead or Likelihood of Deception Required. - To prevail on an unfair and deceptive trade practices claim plaintiffs must demonstrate the act possessed the tendency or capacity to mislead or created the likelihood of deception. Edwards v. West, 128 N.C. App. 570, 495 S.E.2d 920 (1998), cert. denied, 348 N.C. 282, 501 S.E.2d 918 (1998).

The plaintiff need not show fraud, bad faith, deliberate acts of deception or actual deception, but must show that the acts had a tendency or capacity to mislead or created the likelihood of deception. Spartan Leasing, Inc. v. Pollard, 101 N.C. App. 450, 400 S.E.2d 476 (1991).

Breach of Contract. - Actions for unfair or deceptive trade practices are distinct from actions for breach of contract; a mere breach of contract, even if intentional, is not sufficiently unfair or deceptive to sustain an action under this section. Branch Banking & Trust Co. v. Thompson, 107 N.C. App. 53, 418 S.E.2d 694, cert. denied, 332 N.C. 482, 421 S.E.2d 350 (1992).

A plaintiff must show substantial aggravating circumstances attending the breach to recover under the act, which allows for treble damages. Branch Banking & Trust Co. v. Thompson, 107 N.C. App. 53, 418 S.E.2d 694, cert. denied, 332 N.C. 482, 421 S.E.2d 350 (1992).

A mere breach of contract, even if intentional, is not sufficiently unfair or deceptive to sustain an action under this section; rather, substantial aggravating circumstances attendant to the breach must be shown. Computer Decisions, Inc. v. Rouse Office Mgt. of N.C. Inc., 124 N.C. App. 383, 477 S.E.2d 262 (1996).

Effect of Absence of Valid Contract. - Because the buyers to a contract with the seller did not possess any contract rights due to the insufficiency of their consideration, they could not allege damages by virtue of any alleged unfair and deceptive acts of the seller relating to that alleged contract; further, because the buyers did not allege that the seller intended to deceive them from the outset, there was no allegation that an unfair or deceptive act by the seller induced the buyers either to pay the deposits mentioned in the alleged option contract or to leave the deposits with the seller's agent rather than withdrawing them. McLamb v. T.P. Inc., 173 N.C. App. 586, 619 S.E.2d 577 (2005).

Broken Promise. - Appellant's unfair and deceptive trade practices claim failed, as the evidence of the manager's statement that appellee stood behind its product and promised to fix the vibration in the loader showed at most a broken promise; appellant produced no evidence to indicate that appellee did not intend to fix the loader at the time the manager made the unauthorized representation, plus it was contrary to the express terms of the "No Modification or Extension of Warranty" provision in the Case Warranty, which prohibits "any person, dealer or agent to change or extend the terms of [the] warranty in any manner." Hills Mach. Co., LLC v. Pea Creek Mine, LLC, - N.C. App. - , 828 S.E.2d 709 (2019).

"Substantial Aggravating Circumstances" Required. - A mere breach of contract, even if intentional, is not sufficiently unfair or deceptive to sustain an action under this section, and even though unfairness inheres in every breach of contract when one of the contracting parties is denied the advantage for which he contracted, North Carolina law requires a showing of "substantial aggravating circumstances" to support a claim under the Unfair Trade Practices Act. Westchester Fire Ins. Co. v. Johnson, - F. Supp. 2d - (M.D.N.C. Jan. 6, 2000).

If a party engages in conduct that results in an inequitable assertion of his power or position, he has committed an unfair act or practice. Johnson v. Beverly-Hanks & Assocs., 328 N.C. 202, 400 S.E.2d 38 (1991).

Exclusive dealing arrangements and territorial restrictions may constitute unfair trade practices. L.C. Williams Oil Co. v. Exxon Corp., 625 F. Supp. 477 (M.D.N.C. 1985).

In a business dispute involving asserted allegations of breach of a covenant-not-to-compete and other claims, a trial court properly granted summary judgment to plaintiff on defendants' claims asserting violation of the Unfair and Deceptive Trade Practices Act, as the employer/employee relationship does not fall within the intended scope and purpose of the Unfair and Deceptive Trade Practices Act, and a violation of a covenant-not-to-compete, essentially a breach of contract wthin the employer/employee relationship, lies outside the scope of the Unfair and Deceptive Trade Practices Act. Kinesis Adver., Inc. v. Hill, 187 N.C. App. 1, 652 S.E.2d 284 (2007), review denied, appeal dismissed, 362 N.C. 177, 658 S.E.2d 485 (2008)review denied, appeal dismissed, 362 N.C. 177, 658 S.E.2d 485 (2008).

Price discrimination among those similarly situated constitutes a clear violation of North Carolina's unfair trade practice laws. L.C. Williams Oil Co. v. Exxon Corp., 625 F. Supp. 477 (M.D.N.C. 1985), finding no price discrimination to be shown in the case at issue.

Limiting the growth of supply sold to distributors, while not illegal per se, may be illegal if it is used in a discriminatory manner as a means to an improper end. L.C. Williams Oil Co. v. Exxon Corp., 625 F. Supp. 477 (M.D.N.C. 1985).

While a "no growth" designation, used punitively by supplier against distributor to freeze his allocation, could have some effect on a distributor's inclinations toward expanding either its territory or its suppliers, plaintiff distributor had the burden of showing an ability to prove at trial the "substantial" effect on the market necessary for a violation of the antitrust laws incorporated into North Carolina's Unfair Trade Practices Act. L.C. Williams Oil Co. v. Exxon Corp., 625 F. Supp. 477 (M.D.N.C. 1985).

Vertical Restraints. - Normally when a supplier establishes territorial lines, it constitutes a vertical restraint of trade. Because there are legitimate and even beneficial policy reasons for vertical territorial restraints, they are not per se illegal, but instead are examined under a rule of reason analysis. L.C. Williams Oil Co. v. Exxon Corp., 625 F. Supp. 477 (M.D.N.C. 1985).

Horizontal Restraints. - Situation in which competitors at the same market level decide to divide up various territories in order to minimize competition constitutes a "horizontal" restraint, which is per se illegal, even if the supplier actually is the one to implement the territorial plan, if done at the horizontal competitors' insistence. L.C. Williams Oil Co. v. Exxon Corp., 625 F. Supp. 477 (M.D.N.C. 1985).

Unfair and deceptive acts and practices in the insurance industry are not regulated exclusively by the insurance statutes, former G.S. 58-54.1 et seq., (see now G.S. 58-63-1 et seq.) and may constitute the basis of recovery under this section. Ellis v. Smith-Broadhurst, Inc., 48 N.C. App. 180, 268 S.E.2d 271 (1980).

This Chapter is applicable to the sale of insurance. Chapter 58 does not provide the exclusive remedy for those damaged by unfair trade practices in the insurance industry. Phillips v. Integon Corp., 70 N.C. App. 440, 319 S.E.2d 673 (1984).

Fixing of Insurance Rates. - This section has recently been interpreted to provide a remedy for unfair trade practices in the insurance industry. Allegations of unfair fixing of insurance rates should also be permitted to be raised under former G.S. 75-5. Although this section contains a general prohibition of unfair methods of competition and unfair or deceptive practices affecting commerce, former G.S. 75-5 lists particular acts that constitute unfair or deceptive acts. Phillips v. Integon Corp., 70 N.C. App. 440, 319 S.E.2d 673 (1984).

Failure to Settle Insurance Claim. - Defendant/insurer violated this section by "not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear," as well as the provisions of G.S. 58-63-15(11). Gray v. North Carolina Ins. Underwriting Ass'n, 352 N.C. 61, 529 S.E.2d 676 (2000).

Commercial Bribery. - Commercial bribery harms an employer as a matter of law, and the proper measure of damages suffered must include at a minimum the amount of the commercial bribes the third party paid, with the damages trebled based on the unfair and deceptive commercial conduct. Kewaunee Scientific Corp. v. Pegram, 130 N.C. App. 576, 503 S.E.2d 417 (1998).

Trial court properly refused to instruct the jury on defendant's G.S. 75-1.1(a) counterclaim based on the fourth prong of G.S. 14-353 that any person who gave or offered an employee authorized to procure materials by purchase or contract for his employer a commission, discount or bonus was guilty of commercial bribery as the proper title of G.S. 14-353 was "Influencing agents and servants in violating duties owed employers," and the undisputed evidence showed that defendant himself had designed and established the system of payments in question with the explicit purpose of rewarding an employee's diligence, the cooperation of plaintiff in facilitating such a scheme at defendant's request could not constitute "influencing agents" to violate their duties to their employers. Capital Res., LLC v. Chelda, Inc., 223 N.C. App. 227, 735 S.E.2d 203 (2012).

Trial court properly instructed the jury about defendant's G.S. 75-1.1(a) counterclaim based on commercial bribery under the first prong of G.S. 14-353 where: (1) while a defendant's intent need not be established to support most unfair and deceptive trade practices claims (UDTP), where the UDTP claim rested upon an allegation under the first prong of the commercial bribery statute, proof of the defendant's intent to influence the actions of another's employee had to be proven; (2) as reflected by G.S. 14-353's title and the very definition of the term, as well as by common sense, commercial bribery involved an inducement to give the bribe-giver an unfair advantage or benefit in a business relationship; and (3) acts of commercial bribery had to result in or be intended to result in some disloyalty or harm to the employer and some benefit to the bribe-giver. Capital Res., LLC v. Chelda, Inc., 223 N.C. App. 227, 735 S.E.2d 203 (2012).

Vicarious Liability. - Factual allegations in the complaint were sufficient to state, at the very least, a claim for vicarious liability for violations of the North Carolina Unfair and Deceptive Trade Practices Act, G.S. 75-1.1(a) as to the limited liability company (LLC) and the general partnership because the plaintiff alleged that the agents were the authorized agents of the LLC, which allowed the inference that they were marketing and selling the credit restoration and debt invalidation program on behalf of the LLC and the general partnership. Under North Carolina law, a principal generally was liable for the torts of its agent when the torts were committed within the scope of the agent's authority. Southwood v. Credit Card Solution, - F. Supp. 2d - (E.D.N.C. Oct. 23, 2012).

North Carolina does not recognize a cause of action against the insurance company of an adverse party based on unfair and deceptive trade practices under this section. Wilson v. Wilson, 121 N.C. App. 662, 468 S.E.2d 495 (1996).

A private right of action under this section and G.S. 58-63.15 may not be asserted by a third-party claimant against the insurer of an adverse party. Wilson v. Wilson, 121 N.C. App. 662, 468 S.E.2d 495 (1996).

Because the claim under the North Carolina Debt Collection Act failed as a matter of law, the unfair and deceptive trade practices claim necessarily also failed, because the only unfair and deceptive trade practices recognized in the area of debt collection were those practices described in the Debt Collection Act. DIRECTV, Inc. v. Breedlove, - F. Supp. 2d - (E.D.N.C. Mar. 16, 2003).

Sanitary District Cannot Be Sued for Unfair And Deceptive Trade Practices. - Trial court did not err by granting summary judgment for a sanitary district on a homeowners association's claim for unfair and deceptive trade practices; regardless of whether a sanitary district is entitled to sovereign immunity, as a quasi-municipal corporation it cannot be sued for unfair and deceptive trade practices. Badin Shores Resort Owners Ass'n v. Handy Sanitary Dist., 257 N.C. App. 542, 811 S.E.2d 198 (2018).

Unfair and Deceptive Acts Not Shown. - Trial court erred in entering judgment for plaintiffs as to a claim of unfair and deceptive practices as the trial court's findings of fact did not support its conclusion that defendant knowingly participated with a former employee of plaintiff to solicit business, or usurped a business opportunity from plaintiff. Business Cabling, Inc. v. Yokeley, 182 N.C. App. 657, 643 S.E.2d 63 (2007), review denied, 361 N.C. 567, 650 S.E.2d 599 (2007).

Claims by a Chapter 12 debtor that the parent company of a limited liability company had engaged in unfair and deceptive trade practices in violation of G.S. 75-1.1 in connection with the imited liability company's alleged breach of swine production contracts because the record lacked any evidence establishing that the three elements for such a claim had been established. D&B Swine Farms, Inc. v. Brown, L.L.C. (In re D&B Swine Farms, Inc.), - Bankr. - (Bankr. E.D.N.C. May 26, 2010).

Summary judgment for a lender was appropriate in an action by borrowers because the borrowers failed to show that the lender engaged in unlawful activities that constituted a per se violation of the Unfair and Deceptive Trade Practices Act (UDTPA), G.S. 75-1.1, or that the lender's alleged violation of the banking laws, general industry standards, or its own internal policies caused any injury to the borrowers or contravened the UDTPA. In re Fifth Third Bank, N.A., 217 N.C. App. 199, 719 S.E.2d 171 (2011).

Insurer did not engage in unfair claims handling practices under G.S. 58-63-15(11) where, although a court did not condone a 1.5 year delay in the handling of a crop insurance claim, there was no evidence that the delay was willful or caused any loss to a Chapter 12 debtor or that the insurer's actions occurred on such a scale as to constitute a general business practice. Nor was the insurer's delay an unfair and deceptive trade practice under G.S. 75-1.1. M&M Indep. Farms, Inc. v. Rural Cmty. Ins. Agency (In re M&M Indep. Farms, Inc.), - Bankr. - (Bankr. E.D.N.C. Aug. 15, 2012).

Paving company failed to sufficiently plead an unfair and deceptive trade practices claim, G.S. 75-1.1, against a bank because there were no sales proceeds from a certain land transaction to escrow, the bank could not have converted those funds to its own use by deceiving the company about the existence of those funds; the company's exhibits showed that the property at issue was transferred in satisfaction of a debt obligation, not in exchange for money, and because there were no "proceeds," the bank could not be under any contractual obligation to ensure that they were escrowed for the company's benefit. Highland Paving Co. v. First Bank, 227 N.C. App. 37, 742 S.E.2d 287 (2013).

District court adopted the recommendation of the magistrate judge with respect to a mortgagor's claim asserting violations of the North Carolina Unfair and Deceptive Trade Practices Act, G.S. 75-1.1, and dismissed it because allegations that loan documents and assignments were invalid, unauthorized, or otherwise defective, either because of deficiencies in the Mortgage Electronic Registration System or because of the use of rubber stamping, were not sufficient to establish the false statement element of a fraud claim. Joy v. MERSCORP, Inc., - F. Supp. 2d - (E.D.N.C. Mar. 27, 2013).

Trial court properly entered summary judgment in favor of competitors on a limited liability company's unfair and deceptive practices claim because that claims presupposed success of at least one of the LLC's contract claims, and each of those claims failed; therefore, the LLC's unfair and deceptive practices claim also failed. Beverage Sys. of the Carolinas, LLC v. Associated Bev. Repair, LLC, 368 N.C. 693, 784 S.E.2d 457 (2016).

Trial court properly dismissed minority condominium unit owners' unfair trade practices claims because the owners could not establish that the actions of a condominium association, real estate investment trust, and a limited liability company were "in or affecting commerce" since they unfairly and deceptively interacted only with fellow members of the association. Howe v. Links Club Condo. Ass'n, 263 N.C. App. 130, 823 S.E.2d 439 (2018).

Unfair and deceptive trade practices claim, G.S. 75-1.1(a), was dismissed as the petrochemical producer had only alleged that the railway terminal managers failed to negotiate in good faith to reimburse the producer for the costs it incurred in unilaterally choosing to remedy the cross-contamination that occurred when its product was loaded onto a railcar containing another product. No allegations suggested that the managers promised to compensate any costs incurred in remedying the cross-contamination. Total Petrochemicals & Ref. USA, Inc. v. RSI Leasing, Inc., - F. Supp. 2d - (W.D.N.C. Nov. 19, 2020).

Per Se Unfair and Deceptive Trade Practice Not Found. - While a violation of G.S. 143-143.10 and G.S. 143-143.13 may be a violation of G.S. 75-1.1, it is not automatically an unfair and deceptive trade practice, and a violation of 11 N.C. Admin. Code 8.0907, which is based on these statutes, is not necessarily an unfair and deceptive trade practice as a matter of law; however, a manufacturer's violations of the regulation are potentially relevant to a claim under G.S. 75-1.1. Walker v. Fleetwood Homes of N.C. Inc., 362 N.C. 63, 653 S.E.2d 393 (2007).

Unfair and Deceptive Trade Practices Claim Separate and District. - Insurance company which engaged in the act or practice of not attempting in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability had become reasonably clear, G.S. 58-63-15(11)(f), also violated G.S. 75-1.1, as a matter of law, without the necessity of an additional showing of frequency indicating a "general business practice," and allegations to that effect sufficiently stated an unfair and deceptive trade practices (UDTP) claim; while insureds' claims for breach of contract, breach of fiduciary duty, and bad faith were barred by the three-year statute of limitations, their UDTP claim was separate and distinct from the claims on the underlying insurance policy, was thus governed by the G.S. 75-16.2 four-year statute of limitations applicable to such claims, and was therefore timely. Page v. Lexington Ins. Co., 177 N.C. App. 246, 628 S.E.2d 427 (2006).

since the jury found that defendant one did not breach the implied warranty by way of a design defect and the severance saved the parties and the trial court the time and expense that would have been unnecessarily spent prosecuting and defending an unfair and deceptive trade practices claim that would have failed. Muteff v. Invacare Corp., 218 N.C. App. 558, 721 S.E.2d 379 (2012), review denied 365 N.C. 566, 724 S.E.2d 533, 2012 N.C. LEXIS 291 (2012).

Damages. - Discharge was denied under 11 U.S.C.S. § 727(a)(2), (4), and (6) where a debtor impersonated a real estate agent and lawyer in connection with an attempt to obtain money for his personal benefit through a sale of his condominium. Based on the uncertainty regarding whether the condominium was the debtor's residence, the court could not make a determination as to whether the trustee was eligible for treble damages under the Unfair and Deceptive Trade Practices Act, G.S. 75-1.1, but because of the particularly egregious nature of the debtor's acts, as well as the extended duration of his conduct, the trustee, in addition to actual damages, was awarded $10,000 in punitive damages under G.S. 1D-1, as he established that the debtor committed fraud, an aggravating factor under G.S. 1D-15, by clear and convincing evidence. Warren v. Coats (In re Coats), 435 B.R. 915 (Bankr. E.D.N.C. 2010).

Because an employee stated tort claims for malicious prosecution, abuse of process, and unfair and deceptive trade practices sufficient to survive an insurer's motion to dismiss, his allegations of fraudulent, malicious, and willful and wanton conduct on the part of the insurer in perpetrating those acts were sufficient to allege punitive damages. Seguro-Suarez v. Key Risk Ins. Co., 261 N.C. App. 200, 819 S.E.2d 741 (2018).

Attorney Fees. - Attorney fees were properly awarded in favor of an insured where the insurer was found to have engaged in malicious prosecution. N.C. Farm Bureau Mut. Ins. Co. v. Cully's Motorcross Park, 220 N.C. App. 212, 725 S.E.2d 638 (2012), rev'd in part and vacated in part 742 S.E.2d 781, 2013 N.C. LEXIS 491 (2013).

Because the trial court found an additional element, an insurance company's argument that the trial court erred by concluding that an insured suffered separate injuries resulting from the malicious prosecution and from the G.S. 75-1.l claim, because the conduct giving rise to those causes of action was the same, was without merit. N.C. Farm Bureau Mut. Ins. Co. v. Cully's Motorcross Park, 220 N.C. App. 212, 725 S.E.2d 638 (2012), rev'd in part and vacated in part 742 S.E.2d 781, 2013 N.C. LEXIS 491 (2013).

When a patient filed a state suit against a hospital, and, in response to a dismissal motion, moved to voluntarily dismiss and remand to federal court due to ERISA claims, the hospital's motion for attorney fees failed because it was not a prevailing party since the voluntary dismissal did not achieve the necessary material alteration in the parties' relationship. Jenkins v. Moses H. Cone Mem'l Health Servs. Corp., - F. Supp. 2d - (E.D.N.C. Oct. 23, 2015).

B. ILLUSTRATIVE CASES.

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Claims Not Preempted By Depository Institutions Deregulation and Monetary Control Act of 1980. - Customers' unfair and deceptive trade practices claim against a bank was not preempted by § 521 of the Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDA), 12 U.S.C.S. 1831(d)(a), because the customers' claims were not claims for usury but were claims for charging fraudulent fees, specifically discount rate fees although a discount rate was not given; the portion of the customers' claim based upon the charging of a loan discount fee for a discounted interest rate that was in fact never received was not preempted by DIDA. Bumpers v. Cmty. Bank of N. Va., 215 N.C. App. 307, 718 S.E.2d 408 (2011), rev'd 747 S.E.2d 220, 2013 N.C. LEXIS 795 (2013).

Claim Premature. - Lessee's unfair trade practices claim under G.S. 75-1.1(a), against the sellers of the property was properly dismissed as premature where: (1) the lessee remained in possession of the property under terms of the lease; (2) the lessee's purported right of first refusal was void under the common law rule against perpetuities; (3) specific enforcement of the recordation requirement would have had no effect on the lessee's rights under the lease; and (4) the lessee had not yet suffered damages due to any actions or inactions by the sellers. New Bar P'ship v. Martin, 221 N.C. App. 302, 729 S.E.2d 675 (2012).

Software Licensee's Intent to Defraud Licensor And Develop Competing Product. - In a software licensor's fraudulent inducement and breach of contract claim against a United Kingdom licensee that used the software to develop a competing product, the rulings of a United Kingdom court and the European Union Software Directive did not indicate the licensee's employees' state of mind, intent, or understanding of the law at the time they entered into the license agreement, and therefore were excluded as irrelevant under Fed. R. Evid. 401. SAS Inst., Inc. v. World Programming Ltd., - F. Supp. 2d - (E.D.N.C. June 17, 2016).

Fraud on Part of Realtors. - Proof of fraud necessarily constitutes a violation of the prohibition against unfair and deceptive trade practices. Thus, if the plaintiffs could prove fraud on the part of realtors, which they properly alleged, then in such commercial setting they would have proved unfair and deceptive trade practices. Powell v. Wold, 88 N.C. App. 61, 362 S.E.2d 796 (1987).

Business of buying, developing and selling real estate was an activity "in or affecting commerce" for the purposes of unfair or deceptive trade practices claim. Governor's Club Inc. v. Governors Club Ltd. P'ship, 152 N.C. App. 240, 567 S.E.2d 781 (2002), aff'd sub nom., 357 N.C. 46, 577 S.E.2d 620 (2003).

Real estate broker violated the North Carolina Unfair and Deceptive Trade Practices Act because he breached his fiduciary duty and due to his actions, a debtor was injured by not selling a certain store at its full market value. The broker's actions were "in or affecting commerce" for purposes of G.S. 75-1.1 because the broker was engaged in buyer-seller transaction, he was the sole employee responsible for negotiating the sales of the debtor's properties, the debtor relied completely upon the broker's opinion, the broker had the power to execute documents on the debtor's behalf, and the realtor's actions had a tangible effect on the marketplace. In re E-Z Serve Convenience Stores, Inc. v. Florence, - Bankr. - (Bankr. M.D.N.C. Mar. 26, 2009).

Summary Judgment Improper As To Claims Based Upon Closing Fees. - Trial court erred in granting summary judgment to customers on their unfair and deceptive trade practices claims based upon fees charged by a title company because there was a genuine issue of material fact as to whether the company overcharged for its closing fees. Bumpers v. Cmty. Bank of N. Va., 215 N.C. App. 307, 718 S.E.2d 408 (2011), rev'd 747 S.E.2d 220, 2013 N.C. LEXIS 795 (2013).

Amendment of Restrictive Covenants by a Developer. - Developer could not be guilty of an unfair act to support a claim of a violation of the Unfair and Deceptive Trade Practices Act [G.S. 75-1 et seq.] where it amended restrictive covenants regarding homes under terms that the homeowners and the developer had agreed upon. Since the homeowners, when purchasing their property, agreed to the developer's right to amend the restrictive covenants, there was nothing "unfair" in the developer's subsequent exercise of that right. McInerney v. Pinehurst Area Realty, Inc., 162 N.C. App. 285, 590 S.E.2d 313 (2004).

Homeowners' misrepresentation, fraud, and unfair business practices claims against a siding manufacturer did not survive summary judgment because there was no evidence that the siding manufacturer said or did anything, or failed to say or to do something, that influenced the homeowner's decision to clad their home with the company's siding in any relevant way. Wilson v. Dryvit Sys., 206 F. Supp. 2d 749 (E.D.N.C. 2002).

Breach of contract in the context of plaintiff homeowners' claims that defendant manufacturer's window and door trim was defective, even if intentional, was not sufficiently unfair or deceptive to sustain the homeowners' North Carolina Unfair and Deceptive Trade Practices Act, G.S. 75-1.1 et seq., claim, nor was failing to insure that all those later buying a home with the trim received a copy of the warranty. Ellis v. Louisiana-Pacific Corp., 699 F.3d 778 (4th Cir. 2012).

Publishing Employee's Pursuit of Contract During Negotiations. - Employee, who worked for a publisher that under a contract printed a newsletter for a client, did not commit an unfair and deceptive act when he formed a rival publishing company, entered into contract talks with the client after the contract had expired and the publisher was still printing the newsletter on a month-to-month basis while it conducted contract renewal negotiations with the client, entered into a contract with the client for the rival publishing company to publish the client's newsletter, and then terminated his employment with the publisher. Dalton v. Camp, 353 N.C. 647, 548 S.E.2d 704 (2001).

Defendants engaged in deceptive trade practices where plaintiffs signed an offer of purchase on subdivision lot based on representation of plat that the lot was 1.88 acres and defendants then changed the plat to show the acreage as 1.41 acres and recorded it without plaintiff's knowledge. Edwards v. West, 128 N.C. App. 570, 495 S.E.2d 920 (1998), cert. denied, 348 N.C. 282, 501 S.E.2d 918 (1998).

Interference With Employment Contract. - In a data company's action against a competitor that hired its former employee, the court upheld the jury verdict for the plaintiff because punitive damages for an unfair trade practice were warranted because of an unjustified interference with an employment contract and not due to misappropriation of trade secrets. Legacy Data Access, LLC v. Mediquant, Inc., - F. Supp. 2d - (W.D.N.C. Dec. 4, 2017).

Plaintiff could not have recovery on both fraud claim and claim under this section since they would arise from the same course of conduct. Process Components, Inc. v. Baltimore Aircoil Co., 89 N.C. App. 649, 366 S.E.2d 907 (1988).

Allegation of Constructive Fraud Sufficient to Maintain Claim. - Where plaintiff alleged defendants owed him a fiduciary duty and breached that duty when they refused to redeem a revolving fund certificate issued to him in exchange for stock, and the refusal was unreasonable and defendants manipulated the corporation's income to their benefit, plaintiff had alleged a constructive fraud sufficient to maintain a claim of unfair or deceptive trade practice. Wilson v. Wilson-Cook Medical, Inc., 720 F. Supp. 533 (M.D.N.C. 1989).

Broker and his entities' acts constituted unfair or deceptive trade practices as a jury could properly consider a constructive fraud claim since: (1) the broker was a savvy and practiced real estate broker with over 30 years' experience and sellers only completed the seventh and ninth grades; (2) the broker fostered a personal relationship with the sellers and handled all the accounting on the loans; and (3) a substitution of collateral agreement allowed the broker and his entities to make additional gross sales of $ 362,297.00, while not making any payment to the sellers to bring the arrearages current. Trantham v. Michael L. Martin, Inc., 228 N.C. App. 118, 745 S.E.2d 327 (2013).

Allegation of Misrepresentation Sufficient to Maintain Claim. - Claim in complaint that defendant continuously misrepresented its position, by leading the plaintiff to believe the defendant was guarantor on note, and held all the rights and obligations associated with being a guarantor, was sufficiently stated to survive a motion to dismiss. A.C. Monk & Co. v. UBAF Arab American Bank, 875 F. Supp. 311 (E.D.N.C. 1995).

Defendant bank was entitled to summary judgment on plaintiff borrower's Unfair and Deceptive Trade Practices Act claim because, although the borrower alleged that the bank declared the mortgage in default with no notice, the borrower did not dispute that the bank performed an investigation; without any evidence of deception, the borrower could not proceed with the claim. Earhart v. Countrywide Bank, - F. Supp. 2d - (W.D.N.C. Feb. 25, 2009).

Fraudulent Scheme. - Where plaintiff 's evidence showed not just a breach of promise, but a fraudulent scheme, i.e., a contract induced by defendant dealer's promise to allow rescission of the contract by plaintiff, which promise defendant never intended to keep, dealer's conduct clearly supported an award of punitive damages. Mapp v. Toyota World, Inc., 81 N.C. App. 421, 344 S.E.2d 297, cert. denied, 318 N.C. 283, 347 S.E.2d 464 (1986).

Trial court erred in granting a potential buyer's motion to dismiss corporations' counterclaim alleging violations of the Unfair and Deceptive Trade Practices Act, G.S. 75-1.1, because the corporations' claim that the buyer engaged in a fraudulent scheme arising from the sale of corporate assets was sufficient to establish a claim under G.S. 75-1.1; the buyer induced the corporations' owner to sign an employment agreement by promising that all compensation paid to him would be reimbursed upon closing of the asset purchase, but the buyer had no intention of closing on the sale and used the pending sale to induce the corporations to continue paying him a salary and profit-sharing bonuses. Gress v. Rowboat Co., 190 N.C. App. 773, 661 S.E.2d 278 (2008).

Trial court erred in granting a potential buyer's motion to dismiss corporations' counterclaim alleging violations of the Unfair and Deceptive Trade Practices Act (UDTPA), G.S. 75.1.1, because the corporations' allegation that the buyer engaged in a fraudulent scheme arising from the sale of corporate assets was sufficient to establish a claim under G.S. 75-1.1; the general presumption against UDTPA claims between employers and employees did not apply because the facts alleged by the corporations did not establish a true employer-employee relationship but showed a fictitious relationship that would not exist but for the parties' buyer-seller relationship. Gress v. Rowboat Co., 190 N.C. App. 773, 661 S.E.2d 278 (2008).

Unfair and deceptive trade practices (UDTP) judgment against the sole member of a limited liability company (LLC) was not based merely on the breach of contract by the LLC as the jury found that the member and the LLC had made false representations or concealed a material fact and/or were part of a fraudulent scheme in procuring the conveyance of the owners' tracts; the judgment was proper even though the member did not commit fraud and no actual damages were awarded against him, since fraud was not an element of UDTP, and nominal damages were awarded. Estate of Hurst v. Moorehead I, LLC, 228 N.C. App. 571, 748 S.E.2d 568 (2013).

With the exception of claims that were time-barred, there were genuine issues of fact which precluded a bankruptcy court from granting a former employee's motion for summary judgment on Chapter 11 debtors' claims that the employee was liable in damages because he made fraudulent transfers in violation of the North Carolina Uniform Fraudulent Transfer Act, breached his fiduciary duty to the debtors, committed fraud, misrepresentation, negligence, and conversion, and engaged in unfair or deceptive trade practices in violation of G.S. 75-1.1; proof of fraud was sufficient to establish a violation of G.S. 75-1.1, and evidence the debtors submitted to show that the employee committed fraud was sufficient to survive summary judgment. In re Parker, - Bankr. - (Bankr. E.D.N.C. Aug. 10, 2015).

Applicability To Check Cashing Business That Charged Usurious Interest Rates. - Where evidence against a check cashing business established that it executed contracts for usurious loans, it used its alternative business purpose of providing Internet access to consumers as a guise to cover this illegal activity, and no evidentiary basis existed upon which a reasonable fact-finder could reach a contrary conclusion, the State's claims of usury and violations of the Consumer Finance Act were established as a matter of law; moreover, the contracts which customers had with the business were cancelled pursuant to G.S. 75-15.1, requiring all funds collected by the business pursuant to such contracts to be refunded to the customers. State ex rel. Cooper v. NCCS Loans, Inc., 174 N.C. App. 630, 624 S.E.2d 371 (2005).

Debtor was allowed reasonable attorney's fees of $3,000 because the creditor's taking of a security interest in the debtor's motorcycle and charging a 19.742% per annum interest rate on the revolving line of credit exceeded 1.25% per month in violation of G.S. 24-11(c) and was an unfair and deceptive trade practice under G.S. 75-1.1. Worley v. GE Moneybank (In re Worley), - Bankr. - (Bankr. E.D.N.C. June 16, 2008).

Usury. - Reorganized check cashing companies' policy of extending an immediate cash rebate and Internet usage to its customers in exchange for a one-year commitment to make bi-weekly payments in an amount equal to five times the amount of the rebate, violated G.S. 24-2.1, was usurious, and constituted an unfair and deceptive trade practice in violation of G.S. 75-1.1. The fact that the reorganized companies characterized the transactions as rebates or Internet service agreements was subterfuge to conceal the usurious rate of interest. State ex rel. Cooper v. NCCS Loans, Inc., 174 N.C. App. 630, 624 S.E.2d 371 (2005).

Distributor-Dealer Relationship. - This section was applicable to distributor-dealer relationship between defendant and plaintiff, and plaintiff dealer had standing to sue distributor under G.S. 75-16. Olivetti Corp. v. Ames Bus. Sys., 81 N.C. App. 1, 344 S.E.2d 82 (1986), aff'd in part and rev'd in part on other grounds, 319 N.C. 534, 356 S.E.2d 578 (1987).

Conversion Does Not Ipso Facto Constitute Unfair or Deceptive Act or Practice. - In a case in which a creditor appealed a bankruptcy court's award of damages to a debtor in an adversary proceeding for unfair and deceptive trade practices under G.S. 75-1.1, the bankruptcy court operated under the misimpression that the conversion it found by the creditor ipso facto constituted an unfair or deceptive act or practice. Hancock v. Renshaw, 421 B.R. 738 (M.D.N.C. 2009).

Conversion of Business Inventory Held Subject to Security Interest. - Businessman's actions in converting the inventory of a business, when the inventory was subject to a security interest, constituted unfair or deceptive acts or practices pursuant to G.S. 75-1.1 for which the trial court awarded treble damages. United Leasing Corp. v. Guthrie, 192 N.C. App. 623, 666 S.E.2d 504 (2008).

Even if a distributor who split the market area served by a dealership and its owners engaged in an unfair and deceptive trade practice when it sent a letter presenting the dealership and its owners with the option of either relocating their operation or constructing an exclusive facility for the distributor's automobiles, the distributor was not liable under G.S. 75-1.1 because the alleged violation did not proximately cause an injury where nothing obligated the distributor to consider the dealership and its owners for a new dealership point. S. States Imps., Inc. v. Subaru of Am., Inc., - F. Supp. 2d - (E.D.N.C. May 30, 2008).

Allegation that defendant realtor and company preparing termite report knew about termite damage and actively engaged in efforts to prevent plaintiff buyers from learning of the damage, on its face, alleged conduct which, if proved, could be either unfair or deceptive within the purview of this section, and housebuyers' claim against defendants was not barred as a matter of law by their failure to inspect for termite damage. Robertson v. Boyd, 88 N.C. App. 437, 363 S.E.2d 672 (1988).

Deceiving Lessor as to Intent to Vacate Property. - Where the jury found that an advertising company's president deliberately deceived a lessor and potential lessee as to his intent to vacate property and remove his sign, and instead remained on the property, delaying and ultimately preventing the potential lessee from securing a permit for the site and occupying the property, the evidence was sufficient to support the jury's findings that the president committed unfair and deceptive practices. Beroth Oil Co. v. Whiteheart, 173 N.C. App. 89, 618 S.E.2d 739 (2005), cert. denied, 360 N.C. 531, 633 S.E.2d 674 (2006).

Systematically overcharging customer for two years, in the amount of $2,795.30, is an unfair trade practice squarely within the purview of this section. Sampson-Bladen Oil Co. v. Walters, 87 N.C. App. 173, 356 S.E.2d 805, cert. denied, 321 N.C. 121, 361 S.E.2d 597 (1987).

Bank's Conduct Of Overcharging Customers Was Actionable. - Trial court did not err in granting customers summary judgment on their unfair and deceptive trade practices claim because a bank's conduct was actionable as an unfair or deceptive practice under G.S. 75-1.1; the customers' claim was based upon the bank charging them for something that they did not receive, i.e., charging a "loan discount fee" where there was no evidence that they received a discounted interest rate on the loan, and that type of systematic overcharging constituted a violation of G.S. 75-1.1. Bumpers v. Cmty. Bank of N. Va., 215 N.C. App. 307, 718 S.E.2d 408 (2011), rev'd 747 S.E.2d 220, 2013 N.C. LEXIS 795 (2013).

Deception by Vacillating Seller. - The trial court properly concluded that aggravating circumstances necessary to sustain a claim under this chapter against the defendant were present, given the deceptive nature of a letter he wrote the plaintiffs, his imposition of an increased price upon the lots they had contracted on, his entry into sales contracts thereon with third parties, and his improper retention of plaintiffs' earnest money deposits. Poor v. Hill, 138 N.C. App. 19, 530 S.E.2d 838 (2000).

Deception by Investigative Reporter. - The UTPA could not be applied to a case in which a reporter misrepresented her employment experience in order to obtain a job with a food store so as to film and obtain undercover information to discredit the food store chain, because the deception did not harm the consuming public. Food Lion, Inc. v. Capital CitiesBC, Inc., 194 F.3d 505 (4th Cir. 1999).

Automobile Sales. - Defendant dealership's failure to conduct a complete title search of a used vehicle and to apprise plaintiff of the results did not constitute an unfair trade practice. Ramsey v. Keever's Used Cars, 92 N.C. App. 187, 374 S.E.2d 135 (1988).

Where defendant, by its employee, made statements to the plaintiff that led the plaintiff to believe auto had not been wrecked, these statements were material to the parties' transaction and mislead the plaintiff into purchasing the auto, and were an unfair trade practice. Torrance v. AS & L Motors, Ltd., 119 N.C. App. 552, 459 S.E.2d 67 (1995).

Motion to dismiss the vehicle purchasers' fraud and G.S. 75-1.1 claims was properly granted where there were no allegations that the previous owners' lender made any direct statements to the purchasers or that their decision to purchase the vehicle from the seller was based on the lender's actual misrepresentations or omissions. Sain v. Adams Auto Grp., Inc., 244 N.C. App. 657, 781 S.E.2d 655 (2015).

Dismissing the vehicle purchasers' G.S. 75-1.1 claim against the seller was error where the claim was based on the seller's alleged misrepresentation of the vehicle's condition after purchasing it at auction. Sain v. Adams Auto Grp., Inc., 244 N.C. App. 657, 781 S.E.2d 655 (2015).

False Representation as to Condition of Car. - Jury finding that defendant automobile dealer falsely represented to plaintiff that a car was in good mechanical and serviceable condition was sufficient to support the court's conclusion that defendant's actions constituted unfair and deceptive trade practices. Morris v. Bailey, 86 N.C. App. 378, 358 S.E.2d 120 (1987).

Defendants committed unfair and deceptive trade practices where car sold by defendants was severely structurally damaged, was not safe to operate, and plaintiff was misled by defendants into believing otherwise. Huff v. Autos Unlimited, Inc., 124 N.C. App. 410, 477 S.E.2d 86 (1996), cert. denied, 346 N.C. 279, 486 S.E.2d 546 (1997).

Sale of Vehicle with Defective Motor. - Evidence which showed that, in selling a motor vehicle with a motor that was defective and had to be replaced, defendants breached an implied warranty of fitness was not enough to establish an unfair and deceptive trade practice. Whitehurst v. Crisp R.V. Ctr., Inc., 86 N.C. App. 521, 358 S.E.2d 542 (1987).

Dealer's retention of customer's down payment on car for seven months without even attempting to get the car it had promised to obtain, while falsely claiming that the car had been obtained and would be delivered shortly, was some evidence of a deceptive trade practice. Foley v. L & L Int'l, Inc., 88 N.C. App. 710, 364 S.E.2d 733 (1988).

Warranty Exclusions Used in Bad Faith to Avoid Remedy. - Where the defendant realized that the problem with plaintiffs' boat could not be remedied, and seized upon commercial use exclusion in warranty in a bad faith attempt to avoid responsibility for the defective boat, the court properly submitted the issue of unfair and deceptive acts or practices to the jury. Barbee v. Atlantic Marine Sales & Serv., Inc., 115 N.C. App. 641, 446 S.E.2d 117 (1994).

Defective Mobile Home. - Manufacturer's violations of 11 N.C. Admin. Code 8.0907, which was based on G.S. 143-143.10 and G.S. 143-143.13, were not per se an unfair and deceptive trade practice under G.S. 75-1.1, although the violations of 11 N.C. Admin. Code 8.0907 were evidence of an unfair and deceptive trade practice. Walker v. Fleetwood Homes of N.C. Inc., 362 N.C. 63, 653 S.E.2d 393 (2007).

Conduct of residential subdivision developer vis-a-vis plaintiff-purchasers of a lot within the subdivision is within the scope of this section. Opsahl v. Pinehurst Inc., 81 N.C. App. 56, 344 S.E.2d 68 (1986), cert. dismissed as improvidently allowed, 319 N.C. 222, 353 S.E.2d 400 (1987).

Projected Construction Completion Dates. - In light of common knowledge that projected completion dates in the construction industry are often missed for a variety of reasons and may be impossible or impractical to fulfill, and the capacity of consumers to contract with reference thereto, the representation of such dates as firm when in fact they are not, standing alone, does not rise to the level of immoral, unethical, oppressive, or unscrupulous conduct, or amount to an inequitable assertion of power or position. Opsahl v. Pinehurst Inc., 81 N.C. App. 56, 344 S.E.2d 68 (1986), cert. dismissed as improvidently allowed, 319 N.C. 222, 353 S.E.2d 400 (1987).

Purchase and Resale by Brokers. - Evidence that (1) defendant brokers were plaintiffs' agents in looking for a house to buy (2) plaintiffs told defendants they wanted to buy a certain house (3) defendants later took title to the house and deeded it to plaintiffs and (4) defendants did not obtain plaintiffs' informed consent to defendants' purchase from the owners and defendants' sale to plaintiffs, was sufficient to support an unfair or deceptive practices claim, since the evidence also showed that the practice or act affected commerce. Spence v. Spaulding & Perkins, Ltd., 82 N.C. App. 665, 347 S.E.2d 864 (1986).

Failure to Maintain Dwellings. - Where plaintiff failed to maintain dwellings in a safe, fit, and habitable condition and subsequently made demands for payment of rent, his actions constituted an unfair and deceptive trade practice. Creekside Apts. v. Poteat, 116 N.C. App. 26, 446 S.E.2d 826, cert. denied, 338 N.C. 308, 451 S.E.2d 632 (1994).

Tenant was entitled to a verdict in the tenant's favor in the unfair trade practices claim pursuant to G.S. 75-1.1, where the landlord breached the implied warranty of habitability by refusing to repair the leased premises; a residential lease agreement fell under the unfair trade practices statute, and the tenant established that the rental premises was uninhabitable, that the landlord knew that the premises needed to be repaired, and that the landlord refused to make repairs and continued to demand rent payments. Dean v. Hill, 171 N.C. App. 479, 615 S.E.2d 699 (2005).

Failure to Forward Rent. - Where the seller of a shopping center continued to collect rents from its tenants after the sale, and did not forward those rents to the new owner in order to secure the new owner's performance of contractual obligations, a directed verdict against the seller for deceptive practices was appropriate. Lake Mary Ltd. P'ship. v. Johnston, 145 N.C. App. 525, 551 S.E.2d 546 (2001), cert. denied, 354 N.C. 363, 557 S.E.2d 539 (2001).

Sale of Restaurant. - Evidence held sufficient to support findings by the jury from which the trial court could conclude that plaintiff seldom engaged in trade practices incident to the sale of restaurant which were unfair or deceptive in violation of this section. La Notte, Inc. v. New Way Gourmet, Inc., 83 N.C. App. 480, 350 S.E.2d 889 (1986), cert. denied and appeal dismissed, 319 N.C. 459, 354 S.E.2d 888 (1987).

Sale of Credit Insurance in Association with Mortgage Loans. - Because the North Carolina Department of Insurance authorized the sale of single-premium credit insurance (SPCI) in association with mortgage loans sold to borrowers with loans of 15 years or less and because G.S. 58-57-35(b) provided that any gain to a lender from an SPCI sale was not a violation of any other law, SPCI sales by a bank subsidiary for loans of 15 years or less were proper under G.S. 75-1.1(a); however, the sale of unapproved SPCI regarding loans having terms greater than 15 years was an unfair or deceptive act or practice in violation of G.S. 75-1.1(a). Richardson v. Bank of Am., N.A., 182 N.C. App. 531, 643 S.E.2d 410 (2007), petition allowed as to additional issues 361 N.C. 569, 650 S.E.2d 439 (2007).

The "passing off" of one's goods as those of a competitor has long been regarded as unfair competition. Harrington Mfg. Co. v. Powell Mfg. Co., 38 N.C. App. 393, 248 S.E.2d 739 (1978), cert. denied, 296 N.C. 411, 251 S.E.2d 469 (1979).

Where one company used another company's actual product in demonstrations to potential customers, at the same time falsely representing to the potential customers that the product had been manufactured by itself, although such conduct did not fit the mold to which the term "passing off " has traditionally been applied, it did constitute an unfair method of competition within the purview of this section. Harrington Mfg. Co. v. Powell Mfg. Co., 38 N.C. App. 393, 248 S.E.2d 739 (1978), cert. denied, 296 N.C. 411, 251 S.E.2d 469 (1979).

Misbranding Constituted Deceptive Practice as Matter of Law. - Defendant's failure properly to label drums of antifreeze constituted a misbranding under former G.S. 106-571(2), and such misbranding was a deceptive practice within the meaning of this section as a matter of law. State ex rel. Edmisten v. Zim Chem. Co., 45 N.C. App. 604, 263 S.E.2d 849 (1980).

Where it was undisputed that defendant distributed a counterfeit version of plaintiff's software bearing imitations of plaintiff's trademarks, where it was undisputed that defendant distributed a counterfeit version of plaintiff's software bearing imitations of plaintiff's trademarks, defendant committed an unfair or deceptive act that affected commerce and proximately injured the plaintiff. Microsoft Corp. v. Computer Serv. & Repair, Inc., 312 F. Supp. 2d 779 (E.D.N.C. 2004).

Defamation Claim. - Plaintiff's claim for unfair and deceptive trade practices was properly dismissed because that claim necessarily depended on the validity of plaintiff's defamation claim, which had been dismissed for failure to state a claim. Craven v. SEIU COPE, 188 N.C. App. 814, 656 S.E.2d 729 (2008).

Libel Per Se. - A libel per se of a type impeaching a party in its business activities is an unfair or deceptive act in or affecting commerce in violation of this section, which will justify an award of damages under G.S. 75-16 for injuries proximately caused; however, to recover, a plaintiff must have suffered actual injury as a proximate result of defendant's deceptive statement or misrepresentation. Ellis v. Northern Star Co., 326 N.C. 219, 388 S.E.2d 127 (1990).

A libel per se of a type impeaching a party in its business activities is an unfair or deceptive act; however, even if defendant's statements were found to be actionable per se, the law would regard them as privileged. Qualified privilege will prevent liability for a defamatory statement, when the statement is made: (1) on subject matter (a) in which the declarant has an interest, or (b) in reference to which the declarant has a right or duty, (2) to a person having a corresponding interest, right, or duty, (3) on a privileged occasion, and (4) in a manner and under circumstances fairly warranted by the occasion and duty, right, or interest. Market Am., Inc. v. Christman-Orth, 134 N.C. App. 234, 520 S.E.2d 570 (1999).

Builders' Misrepresentation Regarding Homeowners Warranty Program. - Trial judge did not err in concluding that builder's conduct was an unfair and deceptive trade practice where jury found defendants breached an implied warranty of workmanlike quality to plaintiffs regarding construction of house and determined the defendants' misrepresentations to plaintiffs regarding coverage of the house under the Homeowners Warranty Program (HOW) proximately caused damages to the plaintiffs; defendant's statement that he was a HOW builder had the capacity to deceive since all HOW builders are required to place their houses in the HOW Program; furthermore, defendant's statement that the house was or would be insured had the capacity of deceiving the plaintiffs into believing that they would be covered regardless of whether or not defendants effected the required repairs. Love v. Keith, 95 N.C. App. 549, 383 S.E.2d 674 (1989), overruled on other grounds, Custom Molders v. American Yard Prods., 342 N.C. 133, 463 S.E.2d 199 (1995).

Builders' intentional breach of contract and implied warranty of habitability did not constitute unfair and deceptive trade practices. Mitchell v. Linville, 148 N.C. App. 71, 557 S.E.2d 620 (2001).

Builders' failure to notify the buyers that their home would actually be built by another company, and the builders' transfer of the home and lot to the actual builder without notice to the buyers, while potentially misleading and unfair, were not unfair and deceptive trade practices because they did not cause the buyers' damages, which were the result of structural defects in the home. Mitchell v. Linville, 148 N.C. App. 71, 557 S.E.2d 620 (2001).

Exemption Denied. - Day care center was denied a tax exemption because, while some of its activities educated the children enrolled there, substantial evidence supported the tax commission's decision that its property was not wholly and exclusively used for educational purposes, as required by G.S. 105-278.4(a)(4). In re Chapel Hill Day Care Ctr., Inc., 144 N.C. App. 649, 551 S.E.2d 172 (2001), appeal dismissed, 355 N.C. 492, 563 S.E.2d 564 (2002).

Tortious interference with a contract could constitute an unfair method of competition or unfair acts within the meaning of the statute. American Craft Hosiery Corp. v. Damascus Hosiery Mills, Inc., 575 F. Supp. 816 (W.D.N.C. 1983).

Tortious Interference With Noncompete Agreement. - Debtor's competitor was not entitled to summary judgment on a bankruptcy trustee's claim for violation of the North Carolina Unfair and Deceptive Trade Practices Act because the trustee presented evidence that the competitor intentionally induced the debtor's employees to breach their noncompete agreements with the debtor and that this was done with a wrong purpose. Magers v. Holland Group of Tenn., Inc. (In re Griffin Services, Inc.), - Bankr. - (Bankr. M.D.N.C. Mar. 2, 2005).

Staffing company's claim under the Unfair and Deceptive Trade Practices Act against a competitor failed because the non-competition provision in the contracts between the staffing company and its former employees was overbroad as to terms and unenforceable since the covenant not to compete prohibited the former employees from providing any service of any kind to any client of the staffing company anywhere in the world for a period of six months. Clinical Staffing, Inc. v. Worldwide Travel Staffing, - F. Supp. 2d - (E.D.N.C. Oct. 21, 2013).

No Business Relationship Shown as to Allegedly Inducing a Football Player to Terminate Contract. - In a suit alleging a series of actions that violated G.S. 75-1.1, as to a professional football player, defendants were granted summary judgment because there was insufficient evidence to support an inference that the purported runners were working at the direction of the defending agency to induce the player to terminate his relationship with plaintiffs, and there was never an established business relationship between the parties to support a finding that a violation occurred. Champion Pro Consulting Grp., LLC v. Impact Sports Football, LLC, - F. Supp. 2d - (M.D.N.C. July 15, 2015).

Sale of Illegal Agreements. - Summary judgment was not granted to the director of a corporation in a claim under the North Carolina Unfair and Deceptive Trade Practices Act, G.S. 75-1.1 et seq., because there was evidence to show that the director engaged in conduct with the tendency or capacity to mislead when advocating the sale of certain illegal agreements; moreover, the claims were not barred by the four-year statute of limitations. Rich Food Servs., Inc. v. Rich Plan Corp., (E.D.N.C. Nov. 11, 2002).

Activities Insufficient to "Surround" or "Affect" Sale. - Where the actions alleged to be unfair under this section did not change the legal obligations of the parties or cause a change in title to the assets, the activities of defendant would not "surround" or "affect" a sale. United Roasters, Inc. v. Colgate-Palmolive Co., 485 F. Supp. 1049 (E.D.N.C. 1980), aff'd, 649 F.2d 985 (4th Cir. 1981).

An agent employed to sell his principal's property may not himself become the purchaser absent both a good faith full disclosure to the principal of all material facts surrounding the transaction and consent by the principal after receiving full disclosure. Starling v. Sproles, 66 N.C. App. 653, 311 S.E.2d 688 (1984).

A broker can neither purchase from nor sell to the principal unless the latter expressly consents thereto or with full knowledge of all the facts and circumstances agrees to the transaction. Starling v. Sproles, 66 N.C. App. 653, 311 S.E.2d 688 (1984).

Real estate broker committed an unfair or deceptive act in violation of this section by failing to disclose prior to such broker's purchase of listed property that they had an offer to purchase the same property from a third party. Starling v. Sproles, 66 N.C. App. 653, 311 S.E.2d 688 (1984).

Inflating Value to Increase Price for Right of First Refusal. - Defendant oil company's motions to dismiss, for judgment on the pleadings, and to strike certain allegations as irrelevant were denied where plaintiff's complaint stated claims for fraudulent inducement and violation of the Unfair and Deceptive Trade Practices Act, G.S. 75-1. The oil company was alleged to have inflated the value of plaintiff's service station, increasing the price for the operator's right of first refusal. Simaan, Inc. v. BP Prods. N. Am., Inc., 395 F. Supp. 2d 271 (M.D.N.C. 2005).

Partner's Breach of Fiduciary Duty by Self-Dealing and Constructive Fraud. - Partner's actions in self-dealing constituted a breach of the fiduciary duty the partner owed to the two other partners and a constructive fraud upon the two other partners. These actions were sufficient to support the partners' claim for unfair and deceptive trade practices; furthermore, the partner's actions, which revolved around the sale of a business, were in or affecting commerce. Compton v. Kirby, 157 N.C. App. 1, 577 S.E.2d 905 (2003).

Breach of Duties to Partnership by Partner Not Unfair Trade Practice. - Claims relating to breach of duties to a partnership by a son, who was also a partner, which alleged that the son took for himself opportunities that he agreed to pursue with the partnership, did not amount to practices impacting the marketplace, were not unfair trade practices under G.S. 75-1.1, and thus a treble damages award against the son was improper. White v. Thompson, 196 N.C. App. 568, 676 S.E.2d 104 (2009), aff'd by 364 N.C. 47, 691 S.E.2d 676, 2010 N.C. LEXIS 349 (2010).

A bankruptcy debtor's misappropriation of funds from a creditor's limited liability company to pay personal debts, when the debtor only had authority to use the funds to maintain real property held by the LLC, was not participation in unfair and deceptive acts in commerce; the debtor's acts were either between the debtor and the creditor with whom the debtor had a personal relationship or between the debtor and the LLC for which the debtor was an agent, and thus the activities were either personal or internal to the LLC, and were not business activities. Day Care-Sam Furr, LLC v. McKinnell (In re Ross), 478 B.R. 715 (Bankr. W.D.N.C. 2012).

Padlocking Premises upon Failure to Pay Rent. - The practices of defendant landlord in padlocking premises when tenants failed to pay rent did not constitute unfair trade practices under this section. Spinks v. Taylor, 303 N.C. 256, 278 S.E.2d 501 (1981).

Agreement to Prevent Performance of Contract to Purchase Condominium. - Plaintiff 's complaint stated a claim for relief against defendant bank and defendant mortgage lender for civil conspiracy and treble damages under the unfair trade practices statute where it alleged that plaintiffs contracted with defendant bank to purchase a condominium; pursuant to the terms of the contract, plaintiffs applied for a loan to defendant lender to finance the purchase of the condominium; defendant bank thereafter determined it did not want to perform the contract and made an agreement with defendant lender by which defendant lender would not make a loan to plaintiffs to finance the purchase and would not notify plaintiffs of the loan refusal until it was too late for plaintiffs to secure alternate financing; and defendant lender, in furtherance of this agreement, refused to make the loan, not because of a legitimate business reason, but in order to prevent plaintiffs from performing their part of the contract. Pedwell v. First Union Nat'l Bank, 51 N.C. App. 236, 275 S.E.2d 565 (1981).

Sale of Debtor's Assets Deemed Fraudulent Only to Provide An Equitable Remedy. - In an action to collect a debt owed under a contract by setting aside the sale of debtor's assets, where the evidence showed no intent to defraud plaintiff, and transaction was merely deemed fraudulent to provide plaintiff with an equitable remedy, the evidence did not reveal the kind of deceptive or oppressive conduct against plaintiff which would classify defendants' actions as an unfair and deceptive trade practice, and the trial court did not err in concluding that the transaction was not an unfair and deceptive trade practice in violation of this section. Budd Tire Corp. v. Pierce Tire Co., 90 N.C. App. 684, 370 S.E.2d 267 (1988).

Claim Based on Misrepresentation in Insurance Context. - In order to succeed on an unfair and deceptive trade practices claim arising under G.S. 58-63-15(1), a plaintiff must show reliance on the misrepresentation. D C Custom Freight, LLC v. Tammy A. Ross & Assocs., - N.C. App. - , - S.E.2d - (Sept. 1, 2020), review denied, 851 S.E.2d 45, 2020 N.C. LEXIS 1093 (N.C. 2020).

Plaintiff could not show reliance because revised certificates of insurance were never seen by defendant prior to the accident and the only document plaintiff received from defendant provided no representation regarding the insurance coverage in dispute; while plaintiff argued that its rental of trucks from a company showed reliance because the company agreed to rentals on condition that plaintiff have collision coverage, this attenuated connection was insufficient to establish a factual dispute regarding plaintiff's reliance. D C Custom Freight, LLC v. Tammy A. Ross & Assocs., - N.C. App. - , - S.E.2d - (Sept. 1, 2020), review denied, 851 S.E.2d 45, 2020 N.C. LEXIS 1093 (N.C. 2020).

Misrepresenting the terms of an insurance policy is a per se deceptive act satisfying the first element of an unfair and deceptive trade practices claim; the court did not need to weigh factors to determine whether this first element was satisfied, and therefore whether defendant gained an advantage by its misrepresentation was not relevant to the analysis. D C Custom Freight, LLC v. Tammy A. Ross & Assocs., - N.C. App. - , - S.E.2d - (Sept. 1, 2020), review denied, 851 S.E.2d 45, 2020 N.C. LEXIS 1093 (N.C. 2020).

Denial of Insurance Claim. - The record failed to reveal the existence of any facts which would create any genuine issue that the manner in which defendant insurer conducted its investigation, or its subsequent denial of plaintiffs' claim, was unethical, oppressive or deceptive in any way. Marshburn v. Associated Indem. Corp., 84 N.C. App. 365, 353 S.E.2d 123, cert. denied, 319 N.C. 673, 356 S.E.2d 779 (1987).

Insured raised a fact issue for G.S. 75-1.1 and 58-63-15 purposes by alleging that an insurer failed to conduct a reasonable and complete investigation before denying the insured's claim - indeed, before speaking directly to the insured - and continuing to deny the insured's claim after speaking with the insured and receiving an alternate explanation as to why car two was driven to the airport; further, the insured alleged that the insurer failed to follow its claims handling guidelines. Martini v. Companion Prop. & Cas. Ins. Co., 198 N.C. App. 39, 679 S.E.2d 156 (2009), review denied, 363 N.C. 805, 690 S.E.2d 704, N.C. LEXIS 39 (2010), aff'd in part and rev'd in part 2010 N.C. LEXIS 412 (2010).

Jury's verdict that an insurer "improperly" determined that it would deny coverage, "misrepresented" the nature of its investigation to the insured, and "unfairly" and "improperly" cited a policy provision as its basis to send a reservation of rights letter supported the conclusion that the insurer's acts were unethical, involved an unfair assertion of its power, and violated G.S. 75-1.1. Country Club of Johnston County, Inc. v. United States Fid. & Guar. Co., 150 N.C. App. 231, 563 S.E.2d 269 (2002).

Student pilot's claim under G.S. 75-1.1, based upon G.S. 58-63-15(11), survived an insurer's motion to dismiss where the student pilot sufficiently alleged that an insurance policy covered the aircraft in which the student pilot was injured, the insurer committed certain unfair settlement practices, the student pilot's rights were activated by a forced landing, and the student pilot had suffered permanent and severe injuries for which an insurance policy was to afford protection. Anderson v. Lancaster Aviation, Inc., 220 F. Supp. 2d 524 (M.D.N.C. 2002).

When an insured sued an insurer for unfair and deceptive practices for negotiating his premium payment on a life insurance policy and then refunding it, stating that no coverage ever existed, summary judgment was properly granted to the insured, under G.S. 75-1.1, because: (1) the insured showed the insurer committed an unfair or deceptive act as the insurer, despite knowing coverage existed, represented and tried to convince the insured that there had never been coverage under the policy and tried to induce the insured to accept the refund under the false impression that the insurer was correct in claiming that coverage never existed; (2) the insurer's actions affected commerce; and (3) the insured was injured because the insurer represented that no coverage existed, and it was not necessary to show that the insured relied on the misrepresentation. Cullen v. Valley Forge Life Ins. Co., 161 N.C. App. 570, 589 S.E.2d 423 (2003).

Insureds did not show that a homeowner's insurance carrier failed to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies, pursuant to G.S. 58-63-15(11)(c) of the Unfair Claims Settlement Practices statute, N.C. Gen. Stat. Ch. 58, Art. 63, by producing no evidence regarding those practices except for the carrier's two-sentence explanation of its general investigation practices; summary judgment was therefore properly granted to the carrier in the insureds' action under G.S. 75-1.1. Nelson v. Hartford Underwriters Ins. Co., 177 N.C. App. 595, 630 S.E.2d 221 (2006).

Homeowner's insurance carrier did not violate G.S. 58-63-15(11)(e) of the Unfair Claims Settlement Practices statute, N.C. Gen. Stat. Ch. 58, Art. 63, by failing to affirm or deny coverage of insureds' second claim based on mold damage in their house because the re-investigation was carried out in a reasonable amount of time and the insureds filed an action against the carrier shortly after the re-investigation report was concluded, providing little time for the carrier to respond; summary judgment was therefore properly granted to the carrier in the insureds' action under G.S. 75-1.1. Nelson v. Hartford Underwriters Ins. Co., 177 N.C. App. 595, 630 S.E.2d 221 (2006).

Homeowner's insurance carrier did not violate G.S. 58-63-15(11)(d) of the Unfair Claims Settlement Practices statute, N.C. Gen. Stat. Ch. 58, Art. 63, by failing to conduct a reasonable investigation when it commissioned a local engineering firm to report on a mold problem in the home of insureds because the purpose of the report was to determine whether mold was present and not to determine all its possible causes or the types of mold present; summary judgment was therefore properly granted to the carrier in the insureds' action under G.S. 75-1.1. Nelson v. Hartford Underwriters Ins. Co., 177 N.C. App. 595, 630 S.E.2d 221 (2006).

Summary judgment was properly granted to a homeowners' insurance carrier on insureds' cause of action under G.S. 75-1.1 claiming that the carrier violated G.S. 58-63-15(11)(n) of the Unfair Claims Settlement Practices statute, N.C. Gen. Stat. Ch. 58, Art. 63, by failing to provide a reasonable explanation of the basis in the policy for denying their claim; the carrier grounded its denial on exclusions in the policy for mold and faulty workmanship, and the omission of the policy's issuance after the harm occurred as a third ground for denial dd not make the explanation unreasonable, unfair, or deceptive. Nelson v. Hartford Underwriters Ins. Co., 177 N.C. App. 595, 630 S.E.2d 221 (2006).

Summary judgment was properly granted to a homeowners' insurance carrier on insureds' cause of action under G.S. 75-1.1 claiming that the carrier violated G.S. 58-63-15(11)(a) of the Unfair Claims Settlement Practices Statute, N.C. Gen. Stat. Ch. 58, Art. 63, by misrepresenting facts or insurance policy provisions relating to their claim for mold damage in their home; coverages not mentioned in its letter denying the claim were not applicable to the claim, the letter expressly reserved the carrier's right to assert other rights or defenses, and the letter was not unethical or unscrupulous and did not have a tendency to deceive the insureds. Nelson v. Hartford Underwriters Ins. Co., 177 N.C. App. 595, 630 S.E.2d 221 (2006).

Fire insurer was not liable to its insured for malicious prosecution for supplying information regarding ownership of a fire-damaged home to police because, although police used the information to charge the insured with false pretenses, the police officer independently exercised his discretion to bring the charge. The court adopted the formulation of the Restatement (Second) of Torts, § 653 (cmt. g) regarding supplying information to law enforcement. N.C. Farm Bureau Mut. Ins. Co. v. Cully's Motorcross Park, Inc., 366 N.C. 505, 742 S.E.2d 781 (2013).

Insured failed to state an unfair and deceptive trade practices claim against insurance companies and agents; the insured did not make sufficiently specific allegations about allegedly deceptive statements inducing the insured to purchase insurance, and the few specific facts alleged pertained to a failure to pay a claim or defend as required by the insurance contracts rather than an unfair or deceptive trade practice. Forshaw Indus. v. Insurco, Ltd., - F. Supp. 2d - (W.D.N.C. Mar. 4, 2014).

Allegations Against Insurer Improper. - Grant of summary judgment in favor of the insurer and sales person on the insured's claim for unfair and deceptive trade practices was proper because the insured could not claim that the insurer did not conduct a reasonable investigation based upon all the available information under G.S. 58-63-15(11)(d). Further, the insured did not have a private action based upon G.S. 58-3-115. Cobb v. Pa. Life Ins. Co., 215 N.C. App. 268, 715 S.E.2d 541 (2011).

Judgment creditor could not sue judgment debtor's insurer on a default judgment against the debtor for unfair trade practices or bad faith claims settlement because the creditor showed no privity to establish standing, as the creditor was not a third-party beneficiary of the insurer's policy upon entry of the default judgment, since third-party privity with an insurer had to be based on being injured in an automobile accident. USA Trouser, S.A. de C.V. v. Williams, 258 N.C. App. 192, 812 S.E.2d 373 (2018).

Claimed Breach of Asset Purchase Agreement. - Because plaintiff failed to produce evidence that defendants engaged in an unfair or deceptive act, that defendants' violation of the no-shop clause in the parties'; asset purchase agreement (APA) was accompanied by aggravating circumstances, or that plaintiff was harmed by the breach of contract, summary judgment for defendants was proper on plaintiff's Unfair or Deceptive Trade Practices Act claim based on defendants' violation of the no-shop clause; plaintiff failed to explain why its ordinary expenses or hypothetical lost profits were damages resulting from defendants' wrongful act, as the termination of the APA did not result from defendants' breach. Heron Bay Acquisition, LLC v. United Metal Finishing, Inc., 245 N.C. App. 378, 781 S.E.2d 889 (2016).

Intentional Breach of Contract. - In an action for breach of contract alleging unfair competition, the trial court properly denied treble damages where the defendant's violation of its contractual obligation was an intentional breach, but there was neither unfairness nor deception in formulation of the contract; where the jury found no deception in the circumstances of its breach; where the contract was carefully negotiated and drawn by sophisticated parties; and where there was no hint of any unfairness to either party before the defendant's cessation of performance; thus, no unfairness inhered in the circumstances of the breach within the meaning of this section simply because the breach was intentional and not properly disclosed. United Roasters, Inc. v. Colgate-Palmolive Co., 649 F.2d 985 (4th Cir.), cert. denied, 454 U.S. 1054, 102 S. Ct. 599, 70 L. Ed. 2d 590 (1981).

In a manufacturer's unfair trade practice claim against a seller alleging that the execution by the seller of an agreement with the manufacturer with the intention of breaching it, the manufacturer provided evidence that the seller's purchases that potentially breached the agreement occurred very soon after the agreement was executed and that an employee of the seller who participated in such transactions was told nothing of the agreement. Interstate Narrow Fabrics, Inc. v. Century USA, Inc., 218 F.R.D. 455 (M.D.N.C. 2003).

Exercise of a 60-Day Notice for Termination Clause Held Not Unfair. - Where the plaintiff and defendant had a contract for intrastate carriage of yarn and staple fiber, and the contract only required 60 days' notice for either party to terminate the contract, the exercise of the termination clause did not constitute an unfair or deceptive trade practice, and plaintiff could not complain that it should have been informed that the defendant was looking for alternatives to plaintiff's contract. Tar Heel Indus., Inc. v. E.I. duPont de Nemours & Co., 91 N.C. App. 51, 370 S.E.2d 449 (1988).

Failure to comply with a Federal Trade Commission regulation, 16 C.F.R. § 429.1(e), by failing to orally explain to purchasers their rights to cancel at the time the agreement was signed, coupled with defective notice of cancellation, which was incomplete and unattached to the contract in violation of G.S. 25A-40(b) and 16 C.F.R. § 429.1(b), constituted an unfair and deceptive act in violation of this section. Eastern Roofing & Aluminum Co. v. Brock, 70 N.C. App. 431, 320 S.E.2d 22 (1984).

Automobile Sales. - A representation that a car is a demonstrator when it is, in fact, a used car may be inherently unfair to the average consumer, and moreover, such a representation may tend to deceive the consumer. Lee v. Payton, 67 N.C. App. 480, 313 S.E.2d 247 (1984).

The institution of a lawsuit may be the basis for an unfair trade practices claim if the lawsuit is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor. United States v. Ward, 618 F. Supp. 884 (E.D.N.C. 1985).

Intentional Destruction of Documents Subject to Audit. - Summary judgment was denied where defendant's alleged intentional destruction of relevant documents in preparation for an audit by the plaintiff could be viewed as an intentional action to mislead or deceive the plaintiff sufficient to state an unfair trade practices claim under G.S. 75-1.1. N.C. Mut. Life Ins. Co. v. McKinley Fin. Servs., - F. Supp. 2d - (M.D.N.C. Dec. 22, 2005).

Unilateral Right of Withdrawal. - A sophisticated real estate developer such as plaintiff could not possibly have been deceived by bank's insistence upon and use of the unilateral right of withdrawal. United States Dev. Corp. v. Peoples Fed. Sav. & Loan Ass'n, 873 F.2d 731 (4th Cir. 1989).

The average consumer would not have understood the below-quoted statement, included in a letter written by an employee of an insurer in response to an inquiry by an agent of the insured as to the extent of the insured's coverage while he was in military service, to mean that the remaining exception to coverage, including an "air craft except," set out in the "accidental death rider" would no longer be applied: "However, in addition to the basic policy, this accidental death rider would also be payable should his death occur while in the Armed Forces but not as a result of an act of war." Pearce v. American Defender Life Ins. Co., 74 N.C. App. 620, 330 S.E.2d 9 (1985), aff'd in part and rev'd in part, 316 N.C. 461, 343 S.E.2d 174 (1986).

Actions Intended to Deceive Creditors into Extending Credit. - Trial court's conclusion that defendant engaged in actions intended to deceive creditors into extending credit to an individual who was not creditworthy and that these practices were forbidden by this section was amply supported by the findings of fact and the evidence. Concrete Serv. Corp. v. Investors Group, Inc., 79 N.C. App. 678, 340 S.E.2d 755, cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986).

Debt Collection. - Although in the area of debt collection, unfair or deceptive acts in commerce are limited to those acts set out in Article 2 of this Chapter, those specific practices delineated as prohibited are examples of unfair practices within the broader scope of this section. Talbert v. Mauney, 80 N.C. App. 477, 343 S.E.2d 5 (1986).

Chapter 11 debtors' claims alleging that a company that serviced their mortgage loan account and a bank that acquired a note and deed of trust the debtors signed violated the North Carolina Debt Collection Act, G.S. 75-51, when they contacted the debtors in an attempt to collect on the note after the debtors received their discharge were not preempted by the Bankruptcy Code, even though the debtors had a remedy under 11 U.S.C.S. § 524; facts the debtors alleged were also sufficient to state a claim under the Telephone Consumer Protection Act, 47 U.S.C.S. § 227, but did not state a claim alleging that the mortgage servicing company and the bank committed intentional or negligent infliction of emotional distress. Waggett v. Select Portfolio Servicing, Inc. (In re Waggett), - Bankr. - (Bankr. E.D.N.C. Mar. 17, 2015).

Harassing Consumer After Cancellation of Long-Distance Phone Contract. - Trial court erred by granting summary judgment to a telephone corporation on the basis that consumer's claim that telephone corporation violated G.S. 75-1.1 by its actions in harassing the consumer after she had cancelled the contract for services was preempted by federal law; the Federal Communications Act did not preempt such a state claim. Morgan v. AT&T Corp., 168 N.C. App. 534, 608 S.E.2d 559 (2005).

Sending notices to a tenant regarding past due rent was a debt collection practice covered by G.S. Ch. 75, Art. 2 and that article exclusively constituted the unfair or deceptive acts or practices proscribed by G.S. 75-1.1 in the area of commerce regulated by the article, under G.S. 75-56, but the notices were not unfair or deceptive trade practices. Friday v. United Dominion Realty Trust, Inc., 155 N.C. App. 671, 575 S.E.2d 532 (2003).

Foreclosure Proceedings. - Trial court properly granted defendants' motion for summary judgment as to plaintiffs' claim for unfair and deceptive practices because plaintiffs were put on notice at the time of the execution of a forbearance agreement that failure to comply with the specified dates could lead to an automatic initiation of foreclosure proceedings; plaintiffs did not forecast evidence that defendants' actions were immoral, unethical, oppressive, unscrupulous, or substantially injurious to plaintiffs or that their actions had the capacity or tendency to deceive plaintiffs. Harty v. Underhill, 211 N.C. App. 546, 710 S.E.2d 327 (2011).

Even assuming arguendo that defendants failed to strictly follow the terms of their contract by proceeding to foreclosure and breached their contract, plaintiffs had not shown egregious or aggravating circumstances attending the alleged breach of contract to recover under G.S. 75-1.1; defendants offered plaintiffs a second opportunity to avoid foreclosure, delayed the initiation of foreclosure proceedings, and paid plaintiffs' taxes and insurance. Harty v. Underhill, 211 N.C. App. 546, 710 S.E.2d 327 (2011).

Chapter 13 debtors' claim that a bank initiated a foreclosure action against real property they owned while an application they submitted under the Home Affordable Modification Program was pending was sufficient to state a claim alleging that the bank committed unfair and deceptive trade practices in violation of the North Carolina Unfair and Deceptive Trade Practices Act, G.S. 75-1.1. Hinson v. Countrywide Home Loans, Inc. (In re Hinson), 481 B.R. 364 (Bankr. E.D.N.C. 2012).

Mortgagors did not state a sufficient claim under the Uniform Deceptive Trade Practices Act, G.S. 75-1.1, as a counterclaim in a foreclosure, because the mortgagors alleged a mortgagee broke a promise to allow the mortgagors to refinance a loan upon maturity but did not allege the mortgagee intended to break the promise at the time the promise was made. Wells Fargo Bank, N.A. v. Corneal, 238 N.C. App. 192, 767 S.E.2d 374 (2014).

Repossessor Was Liable to Debtor for Perishable Goods. - Evidence supported the finding of an unfair and deceptive trade practice on the part of defendant repossessor with regard to the loss of a debtor's load of watermelons that was being held in a truck that was repossessed, because the repossessor denied the debtor a realistic opportunity to remove the goods at the time of the repossession and failed to respond to the debtor's prompt inquiries to access and remove the watermelons from the repossessor's secured yard. Eley v. Mid/East Acceptance Corp. of N.C. Inc., 171 N.C. App. 368, 614 S.E.2d 555 (2005).

Where plaintiff represented to the State that he had a certain supplier when in fact he was purchasing a large part of his fuel supply from other suppliers at a lower price than the posted price of that supplier, and the State relied on this representation in paying for fuel, there was a misrepresentation upon which the State relied which constituted an unfair and deceptive trade practice. F. Ray Moore Oil Co. v. State, 80 N.C. App. 139, 341 S.E.2d 371, cert. denied, 317 N.C. 333, 346 S.E.2d 139 (1986).

Plaintiffs' allegations of wrongful and intentional harm to their credit rating and business prospects occurring less than four years before the filing date of their complaint were of a character clearly meant to be proscribed by the act and were therefore sufficient to state a claim for which relief could be granted under this section. Talbert v. Mauney, 80 N.C. App. 477, 343 S.E.2d 5 (1986).

Material Issue of Fact Existed That Underinsurance Coverage Was Worthless. - Where plaintiff paid additional annual premiums for underinsured motorist coverage to defendant insurance company, where plaintiff was involved in automobile accident which caused him serious injuries resulting in medical expenses exceeding $100,000, and where after plaintiff settled with driver of other automobile for $25,000, defendant denied liability for any additional expenses under its policy's underinsurance coverage since defendants' responsibility under its $25,000 underinsurance coverage was reduced by plaintiff's $25,000 settlement with the other driver, renewal of plaintiff's minimum limits underinsurance, without disclosing its true value, was evidence of an unfair trade practice, and material issue of fact existed that underinsurance coverage was worthless. Davidson v. Knauff Ins. Agency, Inc., 93 N.C. App. 20, 376 S.E.2d 488, cert. denied, 324 N.C. 577, 381 S.E.2d 772 (1989).

Whether Defendant Explained That Promise Had Conditions Was Question for Jury. - Where defendant testified that he told prospective clients that defendants would build a swimming pool, tennis court, and clubhouse but did not explain to every prospective buyer that the building of these facilities was dependent upon an affirmative vote of the homeowners' association and a concomitant raise in homeowners' association dues, whether defendant explained this to plaintiffs was a question of fact for the jury and that portion of the trial court's order granting summary judgment for defendants on the issue of unfair and deceptive trade practices relating to the recreational facilities was reversed. Leake v. Sunbelt Ltd., 93 N.C. App. 199, 377 S.E.2d 285, cert. denied, 324 N.C. 326, 381 S.E.2d 774 (1989).

Damages Award Justified. - Defendant's contention that there was no likelihood of confusion between his and plaintiff's shirt products because of defendant's label affixed inside the back of the shirt's collar was without merit, where such label was not visible while the shirt was being worn and where the symbol used by defendant on the breast of the shirt was substantially identical to the one used by plaintiff. Polo Fashions, Inc. v. Craftex, Inc., 816 F.2d 145 (4th Cir. 1987).

The court's entry of judgments against manufacturer for treble damages on claim under this section and against seller for breach of implied warranty combined with the order that manufacturer fully indemnify seller allowed plaintiff double recovery. Barbee v. Atlantic Marine Sales & Serv., Inc., 115 N.C. App. 641, 446 S.E.2d 117 (1994).

Trial court's findings of fact supported the conclusion that campground tenants were entitled to treble damages on the tenants unfair and deceptive trade practices claims after the owners rented campground spaces to the tenants on a monthly basis, charged the tenants for electricity, and electrical interruptions caused damage to the tenants' recreational vehicles. These activities constituted business activities; thus, the owners' acts were in or affecting commerce and the owners' acts in interfering with and disconnecting the tenants' electricity were, at a minimum, unfair. Shepard v. Bonita Vista Props., L.P., 191 N.C. App. 614, 664 S.E.2d 388 (2008), aff'd, 363 N.C. 252, 675 S.E.2d 332 (2009).

Cause of Action Justified. - Where alleged fraudulent actions occurred after plaintiffs were no longer employees, and were related to the settlement of the claims, not the accidents, the conduct did not fall within the scope of the Workers Compensation Act and a cause of action existed under this section. Johnson v. First Union Corp., 128 N.C. App. 450, 496 S.E.2d 1 (1998).

Customer's action for unfair trade practices against a casino manager was not actionable under State law because the casino was owned by a federally recognized Indian tribe, the tribe had established procedures for addressing complaints such as the customer's complaint, and the State had very little public policy interest in addressing an issue raised about gaming operations. Hatcher v. Harrah's NC Casino Co., LLC, 169 N.C. App. 151, 610 S.E.2d 210 (2005).

Conduct Amounting to Unfair Trade Practice. - Where a distributor of satellite television signals sought to recover from a defendant for alleged theft of signals using illegal equipment, the defendant properly alleged that the distributor engaged in unfair practices by falsely accusing the defendant of a crime, representing that the distributor had the power of law enforcement, and threatening to take action not permitted by law. DIRECTV, Inc. v. Cephas, 294 F. Supp. 2d 760 (M.D.N.C. 2003).

Debtor who had been a shareholder and manager of a grocery store was personally liable to a creditor for funds that were owed to the creditor under a license agreement that the creditor had with the store and under a guaranty and indemnity agreement that the creditor had with the debtor, to the extent that the amount owed was not covered by amounts turned over by the trustee for the store; because of the debtor's egregious activity in operating the store, including the commingling of funds contrary to the license agreement, the damages owed by the debtor were trebled pursuant to G.S. 75-16. MEMO Money Order Co. v. Davis (In re Davis), 371 B.R. 127 (Bankr. E.D.N.C. 2007), vacated, on other grounds, 381 B.R. 650 (Bankr. E.D.N.C. 2008), MEMO Money Order Co. v. Davis (In re Davis), 371 B.R. 127 (Bankr. E.D.N.C. 2007).

Photographs showed defendant competitor displayed actual pieces from plaintiff copyright holder's furniture line at a furniture market and marketed them as its own, and testimony from the holder's vice president, who took the photographs after learning that the competitor was selling furniture strikingly similar to the holder's line confirmed that the competitor's display samples bore lot control stickers that he had designed for the holder; it falsely designated the origin under 15 U.S.C.S. § 1125(a)(1)(A) for Lanham Act liability and was in contravention of the North Carolina Unfair and Deceptive Trade Practices Act, G.S. 75-1.1. Universal Furniture Int'l, Inc. v. Collezione Europa USA, Inc., 618 F.3d 417 (4th Cir. 2010).

Retailer engaged in unfair and deceptive trade practices as a matter of law because it distributed, marketed, and sold a private-label cookware line that was similar to a line sold by another company in its stores, it did so after receiving product, sales, and market information and images and samples of the other company's product, and it purchased a cookware design from a third party that was similar to the other product event after learning that proposed designs sold by the third party were being sold by another. Belk, Inc. v. Meyer Corp., 679 F.3d 146 (4th Cir. 2012).

Lender continued refusal to postpone the due date for debtors' first payment on their permanent loan formed the basis for the additional violation. Furthermore, (i) because of the builder's late tender of the home for occupancy, the creditor should have extended the due date accordingly, (ii) this unfair and deceptive trade practice fully met the requirements established in Walker v. Fleetwood Homes of N.C. Inc., 362 N.C. 63, 653 S.E.2d 393 (2007), and (iii) moreover, the lender's actions constituted an inequitable assertion of power in their dealings with debtors. In viewing the entirety of the lender's business dealings with debtors, moreover, the court believed these actions rose to the level of injurious conduct as required by case law and constituted sufficiently aggravating circumstances to justify a damage award. McClendon v. Walter Home Mortg. (In re McClendon), 488 B.R. 876 (Bankr. E.D.N.C. 2013).

Plaintiff sports agent sufficiently pled a claim for unfair or deceptive trade practices against defendant sports agents because plaintiff alleged, inter alia, that defendants maliciously planned to extract as much money and services from plaintiff before terminating plaintiff's representation agreement with a football player, and defendants targeted plaintiff in retaliation for him advising student-athletes to avoid entering contracts with defendants. Champion Pro Consulting Group v. Impact Sports Football, 976 F. Supp. 2d 706 (M.D.N.C. Sept. 30, 2013).

Trial court did not err in holding defendants liable for unfair and deceptive trade practices because defendants converted funds belonging to plaintiff by refusing to turn over the $5,000 that defendants owed plaintiff from an insurance settlement; defendants abused their positions of power to withhold payment of the money plaintiff legally was owed, solely to pressure plaintiff to resolve several unrelated disputes between the parties; and defendants' acts were "in or affecting commerce" as one defendant testified that he knew that $5,000 from the condominium association's insurance settlement belonged to plaintiff and that plaintiff had demanded return of the money, but defendants refused to surrender the funds. Faucette v. 6303 Carmel Rd., LLC, 242 N.C. App. 267, 775 S.E.2d 316 (2015).

Trial court correctly denied a collision repair shop's motion for judgment notwithstanding the verdict because the evidence tended to show that the driver suffered damages due to the shop's representations that his vehicle was repaired when the shop knew or should have known that it was not fully or properly repaired; the evidence also tended to show that the shop conducted unauthorized repairs, and its actions had the tendency or capacity to mislead or create the likelihood of deception. Ridley v. Wendel, 251 N.C. App. 452, 795 S.E.2d 807 (2016).

Having found debtor liable under G.S. 1-538.2 for the tort of embezzlement, the court concluded that her conduct fit the description of an unfair and deceptive practice prohibited by G.S. 75-1.1. The action in question was in or affecting commerce, she was not a member of a learned profession under G.S. 75-1.1(b), and plaintiff was injured by her concealment of and ultimate failure to tender amounts owed to it; as such, plaintiff had established the elements for its claim under G.S. 75-1.1. Vector Aerospace Engine Services-Atlantic v. Mason (In re Mason), - Bankr. - (Bankr. W.D.N.C. May 1, 2017).

Trial court properly granted a hospital summary judgment because an insurer's unfair and deceptive conduct arose out of its violation of G.S. 44-50 and 44-50.1 and its repeated failure to settle a medical provider's valid lien upon request; the insurer's failure to notify the medical lienholders of its settlement, and its direction of the hospital for months to seek its recovery from a patient were not only unfair but deceptive. Nash Hosps., Inc. v. State Farm Mut. Auto. Ins. Co., 254 N.C. App. 726, 803 S.E.2d 256 (2017), review denied, 370 N.C. 578, 809 S.E.2d 869, 2018 N.C. LEXIS 128 (2018).

Insurer's violation of G.S. 44-49 and 44-50 and refusal to pay a hospital's lien before disbursing settlement funds to a pro se claimant amounted to an unfair or deceptive act because the insurer repeatedly refused to reissue a check payable solely to the hospital; the hospital presented letters it sent to the insurer requesting payment of the lien, admissions by the insurer of receipt of those letters, and its admission of its failure to respond to the hospital's requests. Nash Hosps., Inc. v. State Farm Mut. Auto. Ins. Co., 254 N.C. App. 726, 803 S.E.2d 256 (2017), review denied, 370 N.C. 578, 809 S.E.2d 869, 2018 N.C. LEXIS 128 (2018).

Trial court did not err in concluding that an insurer committed an unfair trade practice because its failure to withhold funds subject to valid medical liens, including a hospital's lien, prior to its disbursement of funds to a patient resulted in an actual injury to the hospital; the insurer's failure to retain funds delayed the hospital's recovery of funds to which it was legally entitled, and that delay constituted injury. Nash Hosps., Inc. v. State Farm Mut. Auto. Ins. Co., 254 N.C. App. 726, 803 S.E.2d 256 (2017), review denied, 370 N.C. 578, 809 S.E.2d 869, 2018 N.C. LEXIS 128 (2018).

Directed verdict was properly granted to an LLC and its majority shareholder on an unfair and deceptive trade practice claim as the repurchase of the minority shareholder's interest was appropriately classified as an internal conduct between two owners of a single business, and thus, the transaction did not fall within the Unfair and Deceptive Trade Practice Act. Bickley v. Fordin, 258 N.C. App. 1, 811 S.E.2d 671 (2018).

Defendants' motion to dismiss tortious interference with contract, civil conspiracy, negligent misrepresentation, fraud, and N.C. Unfair and Deceptive Acts and Practices claims was granted because the terms of the note did not support the alleged scheme that the true nature of the bank note was insider financing. Ivey v. Around Campus Grp., LLC (in re Univ. Directories, LLC), - Bankr. - (Bankr. M.D.N.C. Feb. 22, 2021).

Conduct Not Amounting to Unfair Trade Practice. - In an action to recover from defendant who had been given the exclusive right to negotiate a permanent loan for plaintiff partners to construct a shopping center, defendant mortgage broker did not engage in any conduct which would amount to an unfair trade practice where defendant was at all times cooperative, doing what it could as an intermediary with defendant lender so as to secure for plaintiff partnership the terms and modifications it desired to have; as a result of defendant broker's efforts there was no difficulty posed in obtaining the consent of defendant lender for substitution of tenants; there was no evidence that defendant broker exerted itself in any manner which would have contributed to the problem of securing tenants for plaintiff 's shopping center; and there was no evidence that defendant broker had anything to do with the construction lender's withdrawal from the shopping center project. Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 266 S.E.2d 610 (1980).

While a territorial restraint at least conceivably could be implied from economic factors, it could not be implied from market factors of plaintiff 's own creation. Thus, where additional expenses which plaintiff distributor faced were caused by his decision to expand into an area in which he would not have access to a nearby supply terminal, and where even if supplier would have preferred that distributor stayed within his original territorial confines there was no evidence that it retaliated against him for not doing so, summary judgment for supplier was appropriate on distributor's Unfair Trade Practices claim. L.C. Williams Oil Co. v. Exxon Corp., 625 F. Supp. 477 (M.D.N.C. 1985).

Defendants' representation to owners that the beetle infestation of ceiling beams being installed in their new house would pose no problems other than a little sawdust did not amount to an unfair and deceptive act. Warfield v. Hicks, 91 N.C. App. 1, 370 S.E.2d 689, cert. denied, 323 N.C. 629, 374 S.E.2d 602 (1988).

Defendant was not a regulated utility in either the market in which the parties competed or the areas of service plaintiff wished to provide for defendant; therefore, defendant's election not to use plaintiff to perform its installation and repair service was not an unfair assertion of any power or position defendant might enjoy as a regulated utility, and it was not unfair for defendant to refuse to employ its competitor for the purposes of this section. Telephone Servs., Inc. v. General Tel. Co., 92 N.C. App. 90, 373 S.E.2d 440 (1988), cert. denied, 324 N.C. 251, 377 S.E.2d 763 (1989).

Defendants' claim that plaintiff submitted low bids for contracts and then later overcharged its customers, that plaintiff secured contracts that defendants also made bids on, and that plaintiff lured away some of defendants' customers with its seemingly lower fees did not provide a cause of action to defendants under this section; the statute is not so inclusive as to permit one competitor to claim unfair or deceptive trade practices on the ground that another competitor successfully bid for a contract. Chesapeake Microfilm, Inc. v. Eastern Microfilm Sales & Serv., Inc., 91 N.C. App. 539, 372 S.E.2d 901 (1988).

The activity complained of in count two of defendants' counterclaim did not state a cause of action for unfair or deceptive trade practice, where defendants asked that plaintiff be subject to the risk of treble damages for continuing to conduct business during the negotiation process for the purchase of plaintiff business. Chesapeake Microfilm, Inc. v. Eastern Microfilm Sales & Serv., Inc., 91 N.C. App. 539, 372 S.E.2d 901 (1988).

Where the evidence presented at trial was insufficient to support the jury's finding that defendant committed an intentional fraud by submitting applications for payment to plaintiff, plaintiff's claim of an unfair trade practice under this section was without basis. Myers & Chapman, Inc. v. Thomas G. Evans, Inc., 323 N.C. 559, 374 S.E.2d 385 (1988), petition for rehearing denied, 324 N.C. 117, 377 S.E.2d 235 (1989).

Where defendant-contractor, which had bid on a public project, informed Department of Transportation (DOT) and plaintiff that plaintiff-subcontractor would be replaced, defendant continued to meet the required DOT goals, regarding the employment of disadvantaged or minority business enterprises and no adverse action was taken against defendant. These facts and the surrounding circumstances did not support a claim for unfair trade practice, which is a practice that is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. Clark Trucking of Hope Mills, Inc. v. Lee Paving Co., 109 N.C. App. 71, 426 S.E.2d 288, cert. denied, 333 N.C. 789, 431 S.E.2d 21 (1993).

In action instituted by boatyard claiming a maritime lien on defendant vessel, where defendants alleged as their second counterclaim that plaintiff engaged in a practice where it would "lure" boat owners into its marina and charge excessively for services rendered, and if those owners refused to pay the bill, plaintiff would threaten seizure and sale of the vessel, defendants failed to show the existence of an act or practice concerning plaintiff's business policies that rose to the appellation "unfair" or "deceptive"; the "threats" of claiming a maritime lien or "papering" any vessel are exercises of valid rights of the plaintiff to assure payment for any services actually performed. Marlen C. Robb & Son Boatyard & Marina, Inc. v. Vessel Bristol, 893 F. Supp. 526 (E.D.N.C. 1994).

Where plaintiff, a graphic artist, had done work on an illustrated city map made by defendant, and where the relationship between the parties deteriorated to the point that a new artist was hired to complete an updated version of the map, as defendant had a copyright in the artwork, his hiring of another artist and his omission of plaintiff's name from the attribution bullet on the map did not amount to an unfair or deceptive trade practice. Armento v. Laser Image, Inc., 950 F. Supp. 719 (W.D.N.C. 1996), aff'd, 134 F.3d 362 (4th Cir. 1998).

Refusal to pay interest on money did not rise to the level of immoral, unethical, oppressive, unscrupulous, or injurious trade practices where bank inadvertently canceled deed of trust and offered to refund the purchase price without interest, as the bank's decision to wait until the bankruptcy trustee decided whether the deed of trust was valid was reasonable. Canady v. Crestar Mtg. Corp., 109 F.3d 969 (4th Cir. 1997).

Plaintiff's complaint lacked sufficient factual allegations to support a claim that defendant engaged in unfair and deceptive trade practices as proscribed by this section. Perry v. Carolina Bldrs. Corp., 128 N.C. App. 143, 493 S.E.2d 814 (1997).

Insured failed to allege that the commercial general liability insurer engaged in any prohibited practices with sufficient frequency to constitute a general business practice for purposes of a claim for unfair and deceptive trade practices. Wake Stone Corp. v. Aetna Cas. & Sur. Co., 995 F. Supp. 612 (E.D.N.C. 1998).

Evidence was insufficient to establish that conduct by the president of a corporation could properly be characterized as deceptive or oppressive conduct in violation of the statute. Norman Owen Trucking, Inc. v. Morkoski, 131 N.C. App. 168, 506 S.E.2d 267 (1998).

Where retail store left plaintiff's mall prior to the expiration of a twenty year contract which provided that lessee could sublet the space at any time, and where the lessor had notice of the defendant's intent to move, the store neither had the tendency to deceive the plaintiff lessor, nor actually did so, and the defendant retail store was entitled to summary judgment on the plaintiff's claim of unfair and deceptive trade practices. Forrest Drive Assocs. v. Wal-Mart Stores, Inc., 72 F. Supp. 2d 576 (M.D.N.C. 1999).

The plaintiffs's claim of unfair and deceptive trade practices pursuant to this section failed where defendants stood to gain very little from misleading the plaintiffs by expanding their existing insurance policy to cover inventory in a basement that was uninsurable under the policy; where the effect of defendants' actions in the marketplace would be negligible; and where the flood insurance sought by plaintiffs was not available among competing insurers so that no unfair advantage was or could be gained from defendants' actions. Erler v. Aon Risks Servs., Inc., 141 N.C. App. 312, 540 S.E.2d 65 (2000).

When a landlord responding to an inquiry from another landlord about a tenant advised the inquiring landlord that the tenant's account was delinquent, this was not an unfair or deceptive practice, under the Unfair and Deceptive Trade Practices Act, G.S. 75-1.1, because, even after deducting certain erroneous charges made by the landlord, the tenant's account was delinquent. Friday v. United Dominion Realty Trust, Inc., 155 N.C. App. 671, 575 S.E.2d 532 (2003).

Nothing in G.S. 1-239(c) required a judgment creditor to file a notice with the clerk that a judgment had been satisfied until a written demand for such a notice had been made; therefore, absent proof that such a demand was made, it was not an unfair or deceptive trade practice for a landlord to fail to file a notice that a judgment against a delinquent tenant had been satisfied. Friday v. United Dominion Realty Trust, Inc., 155 N.C. App. 671, 575 S.E.2d 532 (2003).

Purchasing bank was properly granted summary judgment in a lender's action because the bank, in buying a mortgage that the borrower alleged was improperly obtained in the borrower's name, had no dealings with the borrower and had simply purchased the subject mortgage soon after its execution. Melton v. Family First Mortg. Corp., 156 N.C. App. 129, 576 S.E.2d 365 (2003).

Lender was properly granted summary judgment in a lender's action because the borrower failed to show any improper conduct on its part where there was no requirement for an in-person interview, there was no evidence of a forged signature, the lender disclosed all fees, there was no evidence of harm from allegedly backdated documents, there was no requirement that the lender recommend a reverse mortgage, and there was no violation in the same closing attorney representing both the borrower and the lender. Melton v. Family First Mortg. Corp., 156 N.C. App. 129, 576 S.E.2d 365 (2003).

Injured party's unfair and deceptive trade practices claim against a motorcycle helmet manufacturer failed as a matter of law because the injured party's deposition testimony demonstrated that the injured party did not, in fact, rely on the assumed misrepresentation in purchasing his helmet. Howerton v. Arai Helmet, Ltd., 158 N.C. App. 316, 581 S.E.2d 816 (2003), cert. granted, 357 N.C. 459, 585 S.E.2d 757 (2003).

Trial court erred in awarding a mechanic and lienholder, who performed a diagnostic analysis on an automobile, treble damages when the credit union that financed the purchase of the automobile repossessed the automobile from the mechanic's premises late at night without the mechanic's knowledge or consent as the mechanic failed to show that he suffered an actual injury as a proximate result of the credit union's misrepresentations, instead the mechanic was entitled to the possession of the automobile again. Old Salem Foreign Car Serv., Inc. v. Webb, 159 N.C. App. 93, 582 S.E.2d 673 (2003).

Where a competitor of patentees failed to show that the patentees communicated to the competitor's customers that the competitor infringed the patentees' product, made false and disparaging comments about the competitor's product, or sent infringement notices in bad faith, the competitor failed to show any actionable unfair and deceptive trade practice on the part of the patentees. Vesture Corp. v. Thermal Solutions, Inc., 284 F. Supp. 2d 290 (M.D.N.C. 2003).

Plaintiff's claim that its former customer's employee revealed to plaintiff's competitor confidential information from plaintiff's bid that allowed the competitor to underbid, thereby committing fraud and violating G.S. 66-153 and G.S. 75-1.1, was properly dismissed on summary judgment; plaintiff, by submitting information to its customer and allowing it to use and disclose bid information at its sole discretion, did not act reasonably to maintain the secrecy of its bid information, so that it was not a "trade secret." Area Landscaping, L.L.C. v. Glaxo-Wellcome, Inc., 160 N.C. App. 520, 586 S.E.2d 507 (2003).

Apparel company did not engage in an unfair or deceptive trade practice against an apparel assembler where (1) the company did not breach the parties' contract, (2) the company did not breach its duty of good faith and fair dealing, (3) there was no fiduciary relationship between the parties, (4) the company did not commit constructive fraud with respect to its relationship with the assembler, and (5) there was no other evidence of substantial aggravating circumstances that would have amounted to a violation of the North Carolina Unfair or Deceptive Trade Practice Act. Sara Lee Corp. v. Quality Mfg., 201 F. Supp. 2d 608 (M.D.N.C. 2002).

Automobile dealership was granted summary judgment on a truck purchaser's claim under G.S. 75-1.1 related to the required State taxes where the purchaser failed to present any evidence that he was actually injured by the fact that he had to pay the required State taxes with a cash payment rather than with a financed payment. Comer v. Pers. Auto Sales, Inc., 368 F. Supp. 2d 478 (M.D.N.C. 2005).

Trial court erred in granting judgment as to a services provider's unfair and deceptive trade practices claim as the mere establishment of a subsidiary corporation for the purpose of limiting the parent corporation's liability was not per se an unfair and deceptive trade practice; accordingly, the case was remanded to the lower court for a trial before a jury to determine whether the parent corporation's conduct, as to the provider, constituted an unfair and deceptive trade practice. Excel Staffing Serv. v. HP Reidsville, Inc., 172 N.C. App. 281, 616 S.E.2d 349 (2005).

Dismissal of a patient's lawsuit against a hospital for unfair and deceptive acts regarding the rates charged the patient for treatment which she received at the hospital was affirmed because alleged unfair and deceptive acts committed by a hospital were not included as unfair an deceptive trade practices within the prohibition of G.S. 75-1.1(a). Shelton v. Duke Univ. Health Sys., 179 N.C. App. 120, 633 S.E.2d 113 (2006), cert. denied, 643 S.E.2d 591, 2007 N.C. LEXIS 190 (2007).

Rather than alleging the facts needed to support each element of a trespass claim, the borrower made the conclusory statement that an agent of the lender trespassed upon the parcel and this bare allegation was insufficient to meet the pleading requirements, and therefore the trespass claim failed; the borrower did not allege sufficient facts to state a claim for trespass, so her conclusory allegations likewise did not state a claim for unfair or deceptive trade practices pursuant to G.S. 75-1.1. Booker v. Wash. Mut. Bank, F.A., - F. Supp. 2d - (M.D.N.C. Feb. 9, 2007).

Loan servicing company could not be liable to a debtor for an alleged violation of the North Carolina Unfair Trade Practices Act, G.S. 75-1.1, because the loan servicing company as an agent of a successor mortgage company did not actively participate in the alleged unlawful activities during the execution of the mortgage. Tetterton v. Ocwen Fed. Bank (In re Tetterton), 379 B.R. 594 (Bankr. E.D.N.C. 2007).

Where a home was flooded and the homeowner argued that defendants, an insurer and an adjusting company, allowed the mold problem to go unremediated and become more severe, directed verdict was properly granted as to the unfair and deceptive trade practices claim because defendants' response was not the proximate cause of the damage. Burrell v. Sparkkles Reconstruction Co., 189 N.C. App. 104, 657 S.E.2d 712 (2008).

Where a financial company and an analyst published a company update regarding a manufacturer, the manufacturer's claim for unfair or deceptive trade practices failed because (1) the manufacturer's libel per se claim was properly dismissed, and (2) at most, the manufacturer alleged that its former employee breached a confidentiality agreement with the manufacturer when the employee downloaded confidential data and provided information to the analyst. Nucor Corp. v. Prudential Equity Group, LLC, 189 N.C. App. 731, 659 S.E.2d 483 (2008).

Trial court did not err by refusing to determine that the creditors' and the auctioneer's actions in auctioning off the debtors' cattle herd and not delivering any of the proceeds to the secured creditor constituted unfair and deceptive trade practices under G.S. 75-1.1. Bartlett Milling Co., L.P. v. Walnut Grove Auction & Realty Co., 192 N.C. App. 74, 665 S.E.2d 478, review denied, 362 N.C. 679, 669 S.E.2d 741 (2008).

Where plaintiff alleged that defendants committed trademark infringement, such trademark infringement occurred in the marketing and advertising of defendants' agricultural news program, and the trademark infringement has caused plaintiff damages related to plaintiff's broadcast of agricultural radio, plaintiff had sufficiently alleged a claim under the North Carolina Unfair and Deceptive Trade Practices Act. Ray Communs., Inc. v. Clear Channel Communs., Inc., - F. Supp. 2d - (E.D.N.C. Jan. 19, 2009).

Trial court erred in granting summary judgment on the issue of unfair and deceptive trade practices under G.S. 75-1.1. The wetlands delineations and a Master Wetlands Map were so facially flawed that a real estate acquisition company could not have reasonably relied on them in deciding to purchase a tract; given the company's experience in developing coastal communities and the fact that the company had unfettered access to the tract, the company could not have actually relied on the Master Wetlands Map that was dated more than two years earlier and signed by an individual no longer employed by the United States Army Corps of Engineers. Sunset Beach Dev., LLC v. Amec, Inc., 196 N.C. App. 202, 675 S.E.2d 46 (2009).

Plaintiffs' allegations failed to state a claim under the North Carolina Unfair and Deceptive Trade Practices Act, because under any statement of facts which could be proven, the events that allegedly occurred and defendants' alleged statements and actions did not rise to the level of unfair and deceptive trade practices; the allegations did not affect commerce outside the dealings of the parties' limited business relationship. James R. Carcano v. JBSS, LLC, 200 N.C. App. 162, 684 S.E.2d 41 (2009).

Claim for a violation of the North Carolina Unfair and Deceptive Trade Practices Act, G.S. 75-1.1 et seq., failed to survive a motion pursuant to Fed. R. Civ. P. 12(b)(6) because the account holder's claim that an Internal Revenue Service (IRS) levy on bank accounts was fraudulent was unsupported by any fact. Under 26 U.S.C.S. § 6332(e), the IRS was not required to obtain judicial intervention prior to issuing the levy. Plimpton v. Wachovia Bank, N.A., - F. Supp. 2d - (W.D.N.C. Mar. 24, 2010).

In an action involving the sale of a boat to be used in a charter-for-hire fishing business, while the seller's retention of the buyer's earnest money after termination of the contract clearly supported the buyer's claim for breach of contract, it was not sufficiently egregious or aggravating to support a claim for an unfair or deceptive practice under G.S. 75-1.1. D.G. II, LLC v. Nix, 213 N.C. App. 220, 713 S.E.2d 140 (2011).

Former chief executive officer's claim of unfair and deceptive trade practices failed as the CEO claimed that the employer committed fraud in denying him benefits under a severance agreement, but did not support the fraud claim, or show aggravating circumstances to prevail on an G.S. 75-1.1 claim based on a breach of contract. McKinnon v. CV Indus., 213 N.C. App. 328, 713 S.E.2d 495 (2011).

When a limited liability company (LLC) manager distributed the LLC's assets after terminating a lease with a tenant, the tenant was not entitled to recover damages against the manager for unfair or deceptive trade practices because the tenant failed to identify any record support for the assertion that the manager might be liable, to cite any authority in support of the tenant's position to this effect, or to otherwise explain how the tenant had a viable claim against the manager pursuant to G.S. 75-1.1. Rev O, Inc. v. Woo, 220 N.C. App. 76, 725 S.E.2d 45 (2012).

Decedent's children's claim for unfair and deceptive trade practices under G.S. 75-1.1 failed to state a claim as the children did not cite any authority that established that defendants' failure to place stakes at gravesites to establish proper boundaries, and failure to keep proper records to determine where decedents were buried were sufficient aggravating circumstances in addition to the alleged breach of contract to support the claim. Timothy L. Hardin v. York Mem'l Park, 221 N.C. App. 317, 730 S.E.2d 768 (2012).

Decedent's estate's claim for unfair and deceptive trade practices under G.S. 75-1.1 failed to state a claim as the estate failed to allege any aggravating circumstances related to defendants' alleged breach of contract. Timothy L. Hardin v. York Mem'l Park, 221 N.C. App. 317, 730 S.E.2d 768 (2012).

North Carolina Unfair and Deceptive Practices Act, G.S. 75-1.1, claim failed as it was based transactions between plaintiffs and defendants occurring within the companies' business and based on investments or loans plaintiffs provided for defendants to start the new venture; raising capital was not a business activity contemplated within the Act, and plaintiffs failed to show that the transaction was in or affecting commerce. Green v. Freeman, 222 N.C. App. 652, 733 S.E.2d 542 (2012), review denied, 734 S.E.2d 858, 2012 N.C. LEXIS 991 (2012), rev'd 367 N.C. 136, 749 S.E.2d 262, 2013 N.C. LEXIS 1163 (2013).

Directed verdict for plaintiff on defendant's N.C. Gen. Stat. Ch. 75 counterclaim was proper as; (1) defendant was unaware of marketing allowances and thus could not have intended that they be considered in determining prices to be marked up under the product purchase agreement; (2) marketing allowances were payments for plaintiff's services provided to manufacturers and therefore unrelated to the cost of food products negotiated by plaintiff or directly by its restaurant customers; (3) plaintiff's own cost of food products did not include an offset for marketing allowances, but rather consisted of the cost negotiated with a manufacturer (whether by plaintiff or the restaurants directly); and (4) the negotiated cost for each product listed in the pricing schedules was the proper cost to which plaintiff's markups (as contracted with defendant) were applied. Capital Res., LLC v. Chelda, Inc., 223 N.C. App. 227, 735 S.E.2d 203 (2012).

Trial court's order of dismissal was proper because the owners of a corporation failed to point to any unfair or deceptive act that harmed them because the owners had not shown that they were fraudulently induced to enter into the letter commitment that resulted in their granting the bank an additional deed of trust on the owners' home because a deed of trust authorized foreclosure if the corporation defaulted on a loan other than the promissory note. Hedgepeth v. Lexington State Bank, 228 N.C. App. 49, 744 S.E.2d 138 (2013).

Court declined to reconsider its decision denying a claim that the insurer violated the Unfair or Deceptive Trade Practices Act based on a violation of G.S. 58-63-15(11)(g) because the insured's employee was not compelled by the insurer to file a lawsuit because, in light of the employee's timely settlement with the tortfeasor, the employee satisfied the exhaustion requirement and did not have to sue the tortfeasor in order to preserve his rights to underinsured motorist coverage. Guessford v. Pa. Nat'l Mut. Cas. Ins. Co., - F. Supp. 2d - (M.D.N.C. Oct. 30, 2013).

Chapter 13 debtor's allegations that employees who worked for a bank that serviced a mortgage on her house provided misinformation about her right to apply the proceeds of an insurance settlement she received to arrears she owed on the mortgage, and that she was prevented from taking advantage of the Home Affordable Modification Program because of the error, stated claims for breach of contract and breach of the covenant of good faith and fair dealing that were sufficient to survive the bank's motion to dismiss, but did not state valid claims alleging breach of fiduciary duty, fraud, negligent misrepresentation, and violations of G.S. 75-1.1 and G.S. 75-50 et seq. Rutledge v. Wells Fargo Bank, N.A. (In re Rutledge), 510 B.R. 491 (Bankr. M.D.N.C. 2014).

When sellers sued a bank regarding the fraudulent scheme of the bank's customer, the sellers' unfair and deceptive practices claim failed because the claim was based on an insufficiently alleged conspiracy. Bottom v. Bailey, 238 N.C. App. 202, 767 S.E.2d 883 (2014).

Debtors' evidence was insufficient to show that the creditor's actions constituted an unfair trade practice, since the testimony revealed no evidence that the creditor intended to maliciously defraud debtors or to induce them to make the transfer against their will, and additionally, there was no evidence that the creditor made any false representations to debtors. Instead, debtors offered the creditor security to secure a past debt and so that they could sustain their greenhouse crop; debtors freely entered into this agreement. Creech v. Ormond Oil & Gas Co. (In re Creech), - Bankr. - (Bankr. E.D.N.C. May 28, 2015).

Unfair and deceptive trade practices claim of a town and community board against a hospital for proposing to close a hospital built on land the town granted failed because (1) the hospital's deception was not alleged, and (2) the town and community board had no business relationship with the hospital. Town of Belhaven v. Pantego Creek, LLC, 250 N.C. App. 459, 793 S.E.2d 711 (2016).

Sports agency did not violate the North Carolina Unfair and Deceptive Practices Act, in recruiting a football player as a client, as the allegations did not establish egregious or aggravating conduct; the activities of contract advisors were extensively regulated by the National Football League Players Association, and evidence indicated that a marketing advance paid to the player was a type of payment common in the industry. Champion Pro Consulting Group v. Impact Sports Football, 845 F.3d 104 (4th Cir. 2016).

Homeowners' association's unfair trade practices claim against a declarant and the association's officers and directors failed because the allegations were more properly classified as occurring within a single entity rather than within commerce. Conleys Creek Ltd. P'ship v. Smoky Mt. Country Club Prop. Owners Ass'n, - N.C. App. - , 799 S.E.2d 879 (2017), sub. op., 805 S.E.2d 147, 2017 N.C. App. LEXIS 740 (N.C. Ct. App. 2017).

Insurer was entitled to partial summary judgment on the insured's unfair and deceptive trade practices claim because the insured did not show a misrepresentation by the insurer of any pertinent facts or insurance policy provisions relating to coverages at issue under the homeowner's insurance policy which the insurer issued to the insured, the insured did not show any inducement by the insurer tending to show unfair and deceptive trade practices, and the insurer performed its duties under the provisions of the policy. Buchanan v. N.C. Farm Bureau Mut. Ins. Co., - N.C. App. - , 841 S.E.2d 598 (2020).

Claim Not Established. - Lessee failed to establish the elements required to sustain a claim of unfair and deceptive trade practices by a limited liability corporation (LLC) because the lease agreement provided no warranty protection to the lessee from the lessor, the lessee was not forced to sign the lease agreement but was merely "encouraged" to lease rather than purchase the printer, a representative of the lessee observed a demonstration of the machine in person and even though the machine was not performing satisfactorily, she attributed the problems to user error, and without further confirming the quality or performance of the printer, the lessee entered into the lease agreement with the lessor. Moore Printing, Inc. v. Automated Print Solutions, LLC, 216 N.C. App. 549, 718 S.E.2d 167 (2011).

Award on a borrower's G.S. 75-1.1(a) claim against a lender was improper because the borrower made no allegations or claims for fraud, misrepresentation, or the like on the lender's part; beyond stating that the lender did not have a right to place holds on certain accounts, the borrower did not allege conduct which showed a tendency or capacity to mislead or to create the likelihood of deception. The jury found that the lender did not breach any contract with the borrower, implicitly finding that the lender had the contractual right to place a hold on the account without giving prior written demand for payment in full. Suntrust Bank v. Bryant/Sutphin Prop., LLC, 222 N.C. App. 821, 732 S.E.2d 594 (2012), review denied, 735 S.E.2d 180, 2012 N.C. LEXIS 1035 (2012).

Borrowers were not entitled to summary judgment on their misrepresentation claim against a lender, alleging the lender collected a fee for a discounted loan but did not provide a discounted interest rate, because the borrowers failed to demonstrate actual and reasonable reliance on the lender's alleged misrepresentations regarding the discounted rate; the lender's evidence also raised a genuine issue about whether the borrowers actually did receive discounted loans. Bumpers v. Cmty. Bank of N. Va., 367 N.C. 81, 747 S.E.2d 220 (2013).

Borrowers' excessive pricing claim under the statute prohibiting unfair or deceptive acts, in connection with closing fees, failed because the closing fees paid by the borrowers were not "unreasonably excessive"; the borrowers entered into their loan transactions freely and without compulsion and were aware of other lending and closing options but declined to use them. Bumpers v. Cmty. Bank of N. Va., 367 N.C. 81, 747 S.E.2d 220 (2013).

Conduct of Employee. - Although a genuine issue of material fact existed as to whether defendant breached his duty of loyalty, allegations of defendant's unfair and deceptive trade practices did not come within the purview of this section because his conduct primarily occurred during his employment with plaintiff. Dalton v. Camp, 135 N.C. App. 32, 519 S.E.2d 82 (1999), cert. granted, 351 N.C. 353, 525 S.E.2d 470 (1999).

Conduct of Ex-Employee. - The conduct of defendant, who formed a competing business, obtained financing for that business, and began to solicit plaintiff's clients after she left plaintiff's employment, did not amount to unfair and deceptive trade practices under this section. Dalton v. Camp, 135 N.C. App. 32, 519 S.E.2d 82 (1999), cert. granted, 351 N.C. 353, 525 S.E.2d 470 (1999).

Targeted solicitation, and the use of those targeted employees to solicit other employees with that information, was an unfair trade practice under G.S. 75-1.1; since the corporation also showed that the customers it lost and the geographical areas where it lost business were the same customers and areas of the employees who the LLC hired away from the corporation, the corporation showed a proximate cause connection to its lost profits and those lost profit damages, along with treble damages and attorney fees, were properly awarded. Sunbelt Rentals, Inc. v. Head & Engquist Equip., L.L.C., 174 N.C. App. 49, 620 S.E.2d 222 (2005).

As the evidence supported a determination that a staffing agency and its new manager had misappropriated trade secrets of an agency competitor, which was a violation of the Trade Secrets Protection Act pursuant to G.S. 66-146, such constituted an unfair act or practice pursuant to G.S. 75-1.1. Medical Staffing Network, Inc. v. Ridgway, 194 N.C. App. 649, 670 S.E.2d 321 (2009).

Employer's former employees were properly found to have committed unfair and deceptive acts by disclosing the employees' former employer's trade secrets because (1) the employees' conduct met the three prongs necessary to find liability under G.S. 75-1.1, (2) the employees had ongoing "employment duties" to comply with the terms of the employees' employment contracts, and (3) by willfully violating the terms of those contracts, the employees committed egregious activities outside the scope of those duties. Ge Betz, Inc. v. Conrad, 231 N.C. App. 214, 752 S.E.2d 634 (2013).

Employees Did Not Violate Non-Competition Agreements When Wrongly Separated. - Trial court did not err in granting employees' judgment on the pleadings on a bank's counterclaims of breach of contract, tortious interference with contractual relations, and unfair competition because the employees did not breach their employment agreements when non-competition provisions did not apply to them prospectively following their termination without cause; because the employees were not bound by the non-competition provisions, the employees did not engage in unfair methods of competition with the bank. Washburn v. Yadkin Valley Bank & Trust Co., 190 N.C. App. 315, 660 S.E.2d 577 (2008), review denied, 363 N.C. 139, 674 S.E.2d 422 (2009).

Employee Held Liable. - Defendant engaged in self-dealing conduct and "business activities" which fell squarely within the ambit of the statutory prohibition of unfair and deceptive acts or practices, and the Court of Appeals erred in holding that his employee status safeguarded him from liability under this provision. Sara Lee Corp. v. Carter, 351 N.C. 27, 519 S.E.2d 308 (1999).

Plaintiffs were not entitled to a commission on the sale of defendant's property merely because their prospect ultimately purchased the property; defendant was under no obligation to plaintiffs arising out of the sale after plaintiffs failed to fulfill their obligations under the contract and, therefore, defendant's failure to involve plaintiffs did not create a cause of action under this section. Burge v. First S. Sav. Bank, 114 N.C. App. 648, 442 S.E.2d 552 (1994), cert. denied, 336 N.C. 778, 447 S.E.2d 417 (1994).

Builder's Misrepresentations Through Salesman, etc. - Where defendant builder represented through its salesman, sales brochures, and blueprints that it would build a deck for the new home it was constructing for plaintiffs in a certain location and to certain dimensions, but defendant knew that it was impossible to build the deck in that location, and relocated the site for the deck and built the deck smaller than represented, the trial court did not err in finding that defendant violated this section. Lapierre v. Samco Dev. Corp., 103 N.C. App. 551, 406 S.E.2d 646 (1991).

Structural Defects in Plaintiff's House. - The defendant had engaged in unfair and deceptive trade practices, violating this section, where he concealed material facts relevant to plaintiffs' house from plaintiffs which he knew at the time of purchase that plaintiffs could not discover in the exercise of due diligence, and falsely represented to plaintiffs that plaintiffs' house had been constructed in substantial conformity with plans and specifications approved for the house. Allen v. Roberts Constr. Co., 138 N.C. App. 557, 532 S.E.2d 534 (2000).

Judgment for violation of this section was properly entered against defendant construction company where the trial court based its conclusion of law that defendant had engaged in unfair and deceptive trade practices, in pertinent part, on the judgment for fraud entered against it. Allen v. Roberts Constr. Co., 138 N.C. App. 557, 532 S.E.2d 534 (2000).

Professional Contractor Charged with Certain Knowledge. - Plaintiff, as a professional contractor, was charged with the knowledge that projected completion dates in the construction industry are often missed for a variety of reasons and may be impossible or impractical to fulfill; therefore, general contractor's circulation of an allegedly unrealistic completion date schedule as a basis for bids to plaintiff and other professional contractors did not rise to the level of unscrupulous, immoral conduct. Bolton Corp. v. T.A. Loving Co., 94 N.C. App. 392, 380 S.E.2d 796, cert. denied, 325 N.C. 545, 385 S.E.2d 496 (1989).

Actions Outside Scope of Duties. - Where allegations of fraudulent behavior were supported by evidence that defendant permissibly received information in his public capacity, but then impermissibly used that information to help his girlfriend acquire property while making fraudulent representations to stall plaintiff, the evidence sufficiently established that he was acting outside the scope of his duties and, therefore, was not entitled to immunity under this section. Leftwich v. Gaines, 134 N.C. App. 502, 521 S.E.2d 717 (1999).

Exercise of a 60-Day Notice for Termination Clause Held Not Unfair. - Where the plaintiff and defendant had a contract for intrastate carriage of yarn and staple fiber, and the contract only required 60 days' notice for either party to terminate the contract, the exercise of the termination clause did not constitute an unfair or deceptive trade practice, and plaintiff could not complain that it should have been informed that the defendant was looking for alternatives to plaintiff's contract. Tar Heel Indus., Inc. v. E.I. duPont de Nemours & Co., 91 N.C. App. 51, 370 S.E.2d 449 (1988).

Exercise by Lender of Contractual Right to Withdraw Not a Deceptive Trade Practice. - Where real estate developer conveyed in fee, subject to a buy-back agreement, 17 residential lots in development ("points lots") to lender in payment of $150,000 in discount points on loan and lender, in a later agreement, allowed real estate developer to finance the $200,000 repurchase price through sales of the points lots to individual purchasers, the district court was correct in concluding that lender's exercise of its contractual right to withdraw could not form the basis of a deceptive trade practice claim; real estate developer's position that lender's actions in regard to the later agreement were somehow deceptive was belied by the agreement itself; the agreement was simple and straightforward, and as a result of extensive negotiation a sophisticated real estate developer could not possibly have been deceived by lender's insistence upon and use of the unilateral right of withdrawal. United States Dev. Corp. v. Peoples Fed. Sav. & Loan Ass'n, 873 F.2d 731 (4th Cir. 1989).

Distributor who claimed that he was "deceived" about the status of his distributorship for a period of time prior to its termination, and that this caused him to prepare a market analysis report for defendant muffin company which detailed some proprietary information about his business, could not recover under this section, as he received all the notice of the termination of his distributorship for which he could conceivably have asked, and he failed to show how the supposedly proprietary information that he gave to defendant's representatives was misappropriated to his actual injury. Bartolomeo v. S.B. Thomas, Inc., 889 F.2d 530 (4th Cir. 1989).

Mere Use of Product Identifier Insufficient. - Because plaintiff did not come forward with any facts which suggested that defendant's conduct was unfair or deceptive beyond its mere use of the "walking fingers" logo, which the court held to be a product identifier, rather than a trademark, plaintiff's claim must fail under the common law and statutory claims of unfair competition. BellSouth Corp. v. White Directory Publishers, Inc., 42 F. Supp. 2d 598 (M.D.N.C. 1999).

Misrepresentation as to Ownership of Land Did Not Affect Heating, etc., Contractor. - Fact that defendant, a travel agency owner, entered the home-building arena to help his children build homes, and that in so doing he represented that the land upon which the house would be built was still his, when in fact it was not, had no impact on damages to plaintiff heating, plumbing and electrical contractor, as he was able to protect his rights by a lien under Chapter 44A, and thus there was no deceptive trade practice, as prohibited in this Chapter. Miller v. Ensley, 88 N.C. App. 686, 365 S.E.2d 11 (1988).

Refusal of legal directory publisher to publish attorney's "professional card" and failure of ABA and North Carolina State Bar to prevent publisher from refusing to do so was not in violation of G.S. 75-1 and this section. Hester v. Martindale-Hubbell, Inc., 659 F.2d 433 (4th Cir. 1981), cert. denied, 455 U.S. 981, 102 S. Ct. 1489, 71 L. Ed. 2d 691 (1982).

Attorney's Communication Held Neither Unfair Nor Deceptive. - In view of the strong public policy favoring freedom of communication between parties and their attorneys with respect to anticipated or pending litigation, as a matter of law a communication from defendant's attorney to the attorney for plaintiff's employer, a party involved in the disputed claim, concerning the subject matter of the controversy was neither unfair nor deceptive. Harris v. NCNB Nat'l Bank, 85 N.C. App. 669, 355 S.E.2d 838 (1987).

Plaintiff 's allegations that lessee intentionally caused the burning of a building which he leased from plaintiff failed to state a claim for relief under this section, since the alleged acts of the lessee did not constitute unfair and deceptive trade practices within the intended purpose of the statute. Threatt v. Hiers, 76 N.C. App. 521, 333 S.E.2d 772, cert. denied, 315 N.C. 397, 338 S.E.2d 887 (1985).

Construction of Pond. - This section was inapplicable under the following circumstances: (1) agents for a landowner and a contractor made an oral agreement for the construction of a pond, under which the contractor would receive no funds until the job was complete, unless he experienced cash flow problems, in which case he would ask for an advance for work already performed; (2) after excavating the pond site, the contractor asked for $2,000 to complete repairs on equipment, which was so advanced; (3) no additional work was performed; and (4) the contractor testified that the payment was for work already performed, to which he believed he was entitled. Goodrich v. Rice, 75 N.C. App. 530, 331 S.E.2d 195 (1985).

A misunderstanding between an insured and an insurance agent regarding collision insurance coverage for the insured did not constitute a deceptive representation in violation of this section. Cockman v. White, 76 N.C. App. 387, 333 S.E.2d 54 (1985).

Refusal of Insurers to Provide Chiropractic Treatment as Workers' Compensation Coverage. - Plaintiff chiropractors alleging that defendant insurance companies had interfered with their contractual rights by refusing to honor employers' choices of chiropractors as providers of health care treatment to employees under the Workers' Compensation Act, that defendants had misrepresented to employer insureds that their workers' compensation policies did not provide coverage for chiropractic treatment, that said misrepresentations were unfair and deceptive trade practices in violation of this section, and that defendants had conspired among themselves and with members of the medical profession to deprive plaintiffs of business opportunities by refusing to pay for chiropractic services provided in compliance with the Act, an illegal restraint of trade in violation of G.S. 75-1 and 15 U.S.C. § 1, could not maintain their action in superior court without first seeking relief from the Industrial Commission. North Carolina Chiropractic Ass'n v. Aetna Cas. & Sur. Co., 89 N.C. App. 1, 365 S.E.2d 312 (1988), remanding case to the trial court for entry of an order staying plaintiffs' action pending a determination of the underlying workers' compensation issues by the Commission.

Conduct Amounting to "Pirating" - To undermine a competitor's potentially lucrative business opportunity, by taking its source of a new income from an employee under contract, while at the same time marketing its product as one's own, is both unfair and deceptive. It is akin to the "pirating" of plaintiff's product. McDonald v. Scarboro, 91 N.C. App. 13, 370 S.E.2d 680 (1988).

Willful False Advertising. - In plaintiff buyer's action against defendant supplier under the Lanham Act and G.S. 75-1.1, because the buyer had shown willful false advertising, irreparable harm was presumed; permanent injunction issued prohibiting future trade dress infringement and false advertising, but absent evidence of actual public confusion, requiring corrective advertising was not proper. Irwin Indus. Tool Co. v. Worthington Cylinders Wis., LLC, - F. Supp. 2d - (W.D.N.C. Oct. 1, 2010).

Claim Not Cognizable Under Virginia Law. - In action in which defendants argued that plaintiff committed an unfair trade practice by representing to defendants that they had a buyer who would pay $150,000 for plane upon delivery to Norfolk, Virginia, where the plane was sold in Richmond, Virginia for the sum of $55,000, not $150,000, the last act giving rise to the defendants' claim under this section occurred in Virginia, and the substantive law of Virginia would apply to defendants' counterclaim. Moreover, as a statutory basis for defendants' injury could not be found in Virginia law, defendants' claim would fail. United Va. Bank v. Air-Lift Assocs., 79 N.C. App. 315, 339 S.E.2d 90 (1986).

Violation Not Found. - Non-brokerage restrictions placed upon agents by defendant insurance company merely prevented them from using defendants' resources to promote and sell the products of competitors. The facts disclosed no acts or practices on the part of defendants which could be held to be inequitable, oppressive, offensive to public policy, or substantially injurious to consumers, so as to violate this section. Dull v. Mutual of Omaha Ins. Co., 85 N.C. App. 310, 354 S.E.2d 752, cert. denied, 320 N.C. 512, 358 S.E.2d 518 (1987).

No unfair practices were found and dismissal of the claims under this chapter against the aldermen was upheld where the aldermen complied with the court's judgment by holding "further proceedings," during which additional testimony and newspaper articles about the approved property lease and the construction of the cellular tower not previously considered by the judge were introduced. Stephenson v. Town of Garner, 136 N.C. App. 444, 524 S.E.2d 608 (2000).

Technology company was unlikely to succeed on its claim under the North Carolina Unfair and Deceptive Trade Practices Act, G.S. 75-1.1(a), where a software company who used a similar mark and domain name did not "siphon off" the technology company's customers by using its mark, nor did it intend to do so; thus, the software company did not act deceptively or unfairly in adopting its domain name or its mark. Yellowbrix, Inc. v. Yellowbrick Sol., Inc., 181 F. Supp. 2d 575 (E.D.N.C. 2001).

Tobacco companies' claim that a competitor's retail merchandising program violated G.S. 75-1, 75-1.1, 75-2, and 75-2.1, failed where they did not show any antitrust injury on their federal claims under the Sherman Act, did not show that the competitor possessed market power or that the merchandising program was coercive, and did not present any further evidence of unfair and deceptive trade practices. R. J. Reynolds Tobacco Co. v. Philip Morris Inc., 199 F. Supp. 2d 362 (M.D.N.C. 2002).

Store was entitled to summary judgment on consumer's unfair trade practices claim because the consumer failed to respond or produce any evidence sufficient to show as a matter of law that the store's action in reporting the consumer's non-payment of his store account to a credit reporting agency constituted an unfair or deceptive practice. Butler v. Sears Roebuck & Co., - F. Supp. 2d - (M.D.N.C. Dec. 12, 2002).

A store's reporting to a credit bureau of the customer's failure to pay his account did not constitute a deceptive trade practice under the North Carolina Unfair and Deceptive Trade Practices Act, G.S. 75-1. Butler v. Sears Roebuck & Co., - F. Supp. 2d - (M.D.N.C. Aug. 27, 2003).

Trial court properly granted the owners' summary judgment motion as to a subcontractor's claim for treble damages under G.S. 75-1.1 of the North Carolina Unfair and Deceptive Trade Practices Act [G.S. 75-1 et seq.], as the subcontractor failed to plead a viable fraud claim, and failed to show substantial aggravating circumstances attending to a breach of contract. Watson Elec. Constr. Co. v. Summit Cos., LLC, 160 N.C. App. 647, 587 S.E.2d 87 (2003).

In a claim brought by mobile home owners alleging unfair and deceptive trade practices by the manufacturers of the homes in the manufacturers' recommendations for use of an allegedly defective mobile home tie down system, summary judgment for the manufacturers was proper and was affirmed where, in his deposition, one owner admitted that he did not rely on the manufacturers' recommendation to use the tie-down system at issue when he bought his mobile home, that did not read the manual which specified the system, that the manufacturers did not make any representations about the system before he bought his mobile home, that his home withstood two hurricanes without damage to the system, and that he had not suffered any damages. Belcher v. Fleetwood Enters., 162 N.C. App. 80, 590 S.E.2d 15 (2004).

Trial court did not err by granting a directed verdict motion to a wedding show operator that was sued by a bridal facility owner because the bridal facility owner failed to prove that the declining attendance of vendors at his bridal shows was proximately caused by the wedding show operator, and the bridal facility owner merely speculated as to his lost profits so that the jury could not reasonably calculate the amount of any lost profits by the bridal facility owner. Castle McCulloch, Inc. v. Freedman, 169 N.C. App. 497, 610 S.E.2d 416 (2005), aff'd, 360 N.C. 57, 620 S.E.2d 674 (2005).

In an action that a retailer brought against a manufacturer that refused to sell its new golf products to retailers that discounted prices, a retailer could not show the concerted action necessary to establish a violation of G.S. 75-1 and G.S. 75-1.1(a) because the manufacturer's decision to institute its new product introduction policy was a unilateral action. MD Prods. v. Callaway Golf Sales Co., 459 F. Supp. 2d 434 (W.D.N.C. 2006).

Trial court properly dismissed claim of injured restaurant patrons who contended that the restaurant's service of 58 beers to four persons over five hours and the restaurant's subsequent failure to stop the patrons from leaving in their car constituted an unfair or deceptive act under the Uniform Deceptive Trade Practices Act, G.S. 75-1.1. Violations of G.S. 18B-305(a), 18B-1003, 18B-1005 or 4 N.C. Admin. Code § 2S did not constitute a per se violation of the UDTPA. Noble v. Hooters of Greenville, LLC, 199 N.C. App. 163, 681 S.E.2d 448 (2009), review denied, 363 N.C. 806, LEXIS 322 (2010).

No facts demonstrated that plaintiff manufacturer's attempt to enforce its paper towel dispense leases that required use of its branded paper towels in the dispensers constituted an unfair or deceptive practice, as the manufacturer drafted and entered into lease and sublease agreements with distributors and end-users in good faith, openly, and transparently, no actual injury stemmed from the practice and the competitor competed favorably with the manufacturer in the sale of paper towels for the dispenser, despite the manufacturer's attempt to enforce the lease and sublease agreements. Ga. Pac. Consumer Prods., LP v. Von Drehle Corp., 618 F.3d 441 (4th Cir. 2010).

Plaintiff's claim under G.S. 75-1.1 failed, as plaintiff did not allege facts to suggest defendant was deceptive, unscrupulous, or unethical. Daniel Group v. Serv. Performance Group, Inc., - F. Supp. 2d - (E.D.N.C. Nov. 10, 2010).

Summary judgment for the appraisers on an unfair and deceptive practices claim under G.S.75-1.1 was proper since the investors made their decisions to invest in the development and contracted to do so without any awareness of, much less reliance on, the appraisals; even had the lots been appraised differently, the investors would still have been obligated to purchase the lots at the prices agreed to in the contracts. Williams v. United Cmty. Bank, 218 N.C. App. 361, 724 S.E.2d 543 (2012).

Defendant's summary judgment on a G.S. 75-1.1 claim was proper where: (1) plaintiff alleged that defendant altered the dates on job applications submitted to defendant by plaintiff's employees, making it appear as if the flipped employees began working for defendant before they left plaintiff's employment; (2) defendant billed and collected money from a client for the work performed by the employees while they were plaintiff's employees; and (3) plaintiff did not allege anything other than a noncompetition agreement to show that the billing error constituted egregious or aggravating circumstances. Phelps Staffing, LLC v. C. T. Phelps, Inc., 226 N.C. App. 506, 740 S.E.2d 923 (2013).

Judgment for defendant on debtors' claim for unfair or deceptive trade practices was warranted because debtors' evidence did not support their claim of fraud. Parker v. McClain (In re Parker), - Bankr. - (Bankr. E.D.N.C. May 18, 2017).

Inducement of Salesman. - These acts constituted unfair methods of competition and did not promote good faith dealings between a corporation and its competitor: (a) offering to pay legal fees and costs to induce salesman, in breach of his covenant not to compete, to attempt to divert accounts; (b) inducing salesman to use his relationship with corporation's accounts and knowledge of confidential business information to attempt to divert accounts; (c) offering to subsidize the income, draw and expenses of salesman in the event of an injunction, to induce salesman, to divert accounts; and (d) as a matter of routine practice, offering to pay legal fees and costs to induce experienced sales representatives, in breach of the salesmen's covenant not to compete, to attempt to divert competitor unfairly, the former employer's accounts. United Labs., Inc. v. Kuykendall, 102 N.C. App. 484, 403 S.E.2d 104 (1991), aff'd, 335 N.C. 183, 437 S.E.2d 374 (1993).

Automobile Dealership's Failure to Disclose Damages to Purchaser of Vehicle. - Automobile dealership was denied summary judgment on a truck purchaser's claim under G.S. 75-1.1 related to the condition of the truck where there was sufficient evidence to raise a question of fact as to whether the dealership failed to disclose damages to the truck and fraudulently misrepresented that it was in good condition. Comer v. Pers. Auto Sales, Inc., 368 F. Supp. 2d 478 (M.D.N.C. 2005).

Tortious interference with a restrictive covenant by a competitor constituted a claim for unfair and deceptive trade practices. Roan-Baker v. Southeastern Hosp. Supply Corp., 99 N.C. App. 30, 392 S.E.2d 663 (1990).

Copyrighted furniture manufacturer's claims for unfair competition and unjust enrichment under North Carolina law were dismissed under Fed. R. Civ. P. 12(b)(6) as preempted by the Copyright Act because, despite allegations of deceptive trade practices, the manufacturer had not alleged fraud, and no relationship existed between the parties prior to the acts constituting the alleged infringement; thus, the copyright violation remained the gravamen of these claims. Collezione Europa U.S.A., Inc. v. Hillsdale House, Ltd., 243 F. Supp. 2d 444 (M.D.N.C. 2003).

Primary Insurer Was Not Entitled to Motion for Summary Judgment. - Since failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies and not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear and which are prohibited by Chapter 58 with regard to first party claims, these practices, if found by the jury, could support a finding of unfair or deceptive acts or practices under Chapter 75, therefore, there was a genuine issue as to material fact and primary insurer was not entitled to motion for summary judgment on unfair trade practices claim of excess and umbrella insurers. United States Fire Ins. Co. v. Nationwide Mut. Ins. Co., 735 F. Supp. 1320 (E.D.N.C. 1990).

Borrower Deceived into Thinking Credit Union Had Valid Security Interest in Retirement Account. - Practices and actions of credit union in deceiving borrower into thinking that credit union had a valid, enforceable security interest in his retirement account by inserting the word "retirement" in the "other collateral" block on front of loan documents and having debtor sign documents at the time of making his first loan, which authorized the sending of employee's retirement checks to the credit union and depositing therein and the filing away of these forms and applying them to all loans thereafter made violated public policy of protecting the retirement accounts of teachers and other State employees, and collectively constituted unfair and deceptive trade practices; and as debtor was damaged as a result of such practices in that he lost the ability to use his retirement fund for his own needs, including eventual retirement, he was entitled to recover treble damages and attorney's fees. Petersen v. State Employees Credit Union (In re Kittrell), 115 Bankr. 873 (Bankr. M.D.N.C. 1990).

Landlord's Behavior. - Where landlord was aware of the needed repairs to house but did not honor his promise to correct the deficiencies, where the premises were unfit for human habitation, but landlord himself visited the premises to demand rent for unfit premises, where the conditions complained of throughout tenancy were the same unfit conditions identified by a city inspection report, landlord's behavior was at the very least unfair and fit all the definitions that the courts have used in determining the types of acts prohibited by this chapter. Allen v. Simmons, 99 N.C. App. 636, 394 S.E.2d 478 (1990).

Trial court erred in granting summary judgment to lessors and neighboring used car dealer on the lessee's unfair and deceptive trade practices claim; the lessee alleged all the necessary elements to support his claim by alleging that the lessor and the used car dealer agreed that the used car dealer could park his used cars on lessee's gas station property and permit the used car dealer's customers to park their cars on the lessee's gas station property when the lessee refused to sell his business to the used car dealer, who also leased his property from the lessor. Elec. World, Inc. v. Barefoot, 153 N.C. App. 387, 570 S.E.2d 225 (2002).

Trial court correctly concluded that a landlord's actions in collecting rent after having knowledge of the uninhabitable nature of part of the house, because of the tenant's complaints about significant leaks in the back bedroom and living room for more than two years, constituted unfair trade practices and was thus a violation of G.S. 75-1.1. Pierce v. Reichard, 163 N.C. App. 294, 593 S.E.2d 787 (2004).

Location of Account. - Although none of named plaintiffs had a franchise in North Carolina, where plaintiffs alleged breach of fiduciary duty by the defendants regarding the daily administration of a North Carolina account which franchisees paid into, the wrong occurred in North Carolina and plaintiffs alleged facts sufficient to withstand summary judgment. Broussard v. Meineke Disct. Muffler Shops, Inc., 945 F. Supp. 901 (W.D.N.C. 1996).

Shareholder's Termination of Stock Buying Employees. - The trial court erred in dismissing the plaintiffs' claim for unfair and deceptive trade practices against the defendant's company and manager/controlling shareholder who attempted, in bad faith, to keep the employee group from buying the manager's stock and finally, terminated the plaintiff members of the employee purchasing group. Walker v. Sloan, 137 N.C. App. 387, 529 S.E.2d 236 (2000).

Minority Shareholders Not Liable for Manager's Actions. - The trial court correctly dismissed, as failing to state a claim upon which relief could be granted, the plaintiffs' claim that the defendant minority shareholders violated the prohibition against unfair and deceptive trade practices by ratifying the adverse actions of majority shareholder/manager who had would-be-stock-buyers/employees fired where the defendants continued to try to effectuate the sale, at no time decided not to sell, made no false or misleading statements and caused no injury. Walker v. Sloan, 137 N.C. App. 387, 529 S.E.2d 236 (2000).

Violation of Uniform Fiduciaries Act. - Bank's violation of G.S. 32-9 of the Uniform Fiduciaries Act was held not to constitute an unfair or deceptive trade practice where the breach of fiduciary duty was committed by a trustee, and there was an absence of actual knowledge or bad faith by the bank. Moretz v. Miller, 126 N.C. App. 514, 486 S.E.2d 85 (1997).

Learned Profession Exemption. - Medical practice's unfair and deceptive practices claim against a specialized physician who left the practice fell under the learned profession exemption where there was no dispute that doctors were members of a learned profession, the alleged conduct was the solicitation of patients and the practice of medicine and surgery in North Carolina in violation of a noncompete agreement, and the agreement placed a limitation on the physician's ability to provide medical care and therefore arose from a rendering of professional services. Aesthetic Facial & Ocular Plastic Surgery Ctr., P.A. v. Zaldivar, - N.C. App. - , 826 S.E.2d 723 (2019).

Preparation of Fire Insurance Investigation Report. - This section was inapplicable to a case involving the wrongful death of a child who died as a result of a fire in his home four days after an insurance inspection of damage caused by Hurricane Fran; the actions of defendant-insurer in having a fire investigation report prepared which resulted in the removal of plaintiff's child from her home and her placement with the Department of Social Services did not affect "commerce" as understood by this section; furthermore, plaintiff was not the intended third-party beneficiary of the contractual relationship between defendant-landlords and defendant-insurer. Prince v. Wright, 141 N.C. App. 262, 541 S.E.2d 191 (2000).

Subcontract to Remove Hurricane Debris. - The district court erred in setting aside $100,000 award on the ground that plaintiff subcontractor failed to offer proof of entitlement to damages as the result of the defendant's fraud, where the plaintiff alleged in his amended complaint, and argued in closing, that he reasonably relied upon defendant's fraudulent misrepresentations and concealments to his detriment by fully mobilizing the project, by executing the subcontract, and by performing in good faith his obligations under that subcontract, and where he offered evidence of costs of more than $100,000 that he would not have incurred but for defendant's inducing him to contract. United States ex rel. S&D Land Clearing v. D'Elegance Mgmt., - F.3d - (4th Cir. July 13, 2000).

Construction Project Overseen by Architect. - Plaintiff failed to show sufficient aggravating circumstances to establish a claim for unfair and deceptive trade practice where architect's constant, close involvement in project belied any claim that a "relation of trust and confidence" existed between plaintiff and defendant giving rise to a fiduciary relationship, where a certificate of substantial completion was signed by the architect on March 27, 1996, and where the construction project was subject to local government inspection. Eastover Ridge, L.L.C. v. Metric Constructors, Inc., 139 N.C. App. 360, 533 S.E.2d 827 (2000), cert. denied, 353 N.C. 262, 546 S.E.2d 93 (2000).

The plaintiff-contractor could not maintain an action under this section against defendants-architects who were members of a learned profession and whose alleged conduct - (1) the "solicitation of business at the plaintiff's expense rather than the practice of architecture," and (2) "giving scientific advice outside the scope of any architectural expertise" - qualified as "rendering of professional services" under the learned profession exemption and could not serve as the basis for an unfair trade practices claim. RCDI Constr. v. Spaceplanrchitecture, Planning & Interiors, P.A., 148 F. Supp. 2d 607 (W.D.N.C. 2001).

Medical Professional Wielding Retaliatory Letter Against Former Jurors. - The trial court properly dismissed the plaintiffs jurors' complaint against defendant doctor for unfair and deceptive trade practices where his action - providing a letter to other medical professionals in his county with the alleged intention of discouraging them from providing professional health care to plaintiffs - fell within the exception in subsection (b) of this section. Burgess v. Busby, 142 N.C. App. 393, 544 S.E.2d 4 (2001).

Refusal to Pay Invoices. - Regarding a manufacturer's unfair trade practice claim against a seller and its president, alleging that the seller and the president ordered goods from the manufacturer after deciding that the seller would not pay the manufacturer's invoices, the seller's motion for partial summary judgment was granted as to the seller and the president because the manufacturer pointed to no evidence that could have been used to counter the summary judgment. Interstate Narrow Fabrics, Inc. v. Century USA, Inc., 218 F.R.D. 455 (M.D.N.C. 2003).

Bank Check Fraud - Where the Chapter 7 trustee alleged a check kiting scheme in a complaint under G.S. 75-1.1 against the debtor's bank, whereby a secured creditor wire transferred funds into the debtor's operating account based on the debtor's deposits into the blocked account that was daily swept by the secured creditor, and the debtor then issued "on us" checks from the operating account and deposited them into the blocked account, and the bank had extended provisional credit on the blocked account, since there was evidence to support a finding that the bank was aware of the fraudulent activity that comprised the check kite, the bank was denied summary judgment. Moseley v. Arth (In re Vendsouth, Inc.), - Bankr. - (Bankr. M.D.N.C. Oct. 9, 2003).

Where an oral distributorship agreement between a manufacturer and a distributor was unenforceable based on the statute of frauds, the lack of a contractual relationship between the parties did not preclude the distributor from asserting a proper claim that the manufacturer committed unfair and deceptive trade practices in misrepresenting its intent to enter the agreement and abide by its terms, and by unreasonable increasing sales goals while simultaneously negotiating with a new distributor. Dealers Supply Co. v. Cheil Indus., 348 F. Supp. 2d 579 (M.D.N.C. 2004).

Weight-loss Center. - In an action brought against a weight loss center and other defendants, the trial court erred in granting partial summary judgment against those plaintiffs who did not request their prescription as to a claim brought under the Unfair and Deceptive Trade Practices Act; at a minimum, a jury question existed as to damages. Jacobs v. Physicians Weight Loss Ctr. of Am., Inc., 173 N.C. App. 663, 620 S.E.2d 232 (2005).

Franchisees properly supported their claim against franchisors for unfair and deceptive practices where the evidence showed that franchisors of retail gasoline stations and a putative purchaser of the stations reallocated the value of the stations to inflate the value of the station of franchisees who had a right of first refusal to purchase the station; the franchisors misrepresented the purchaser's offer as the reallocated value and refused to provide the agreement with the purchaser, the franchisees had no choice but to rely on the misrepresentation in order to exercise their right of first refusal, and exercising such right did not constitute a ratification of the transaction since the franchisees were unaware of the true facts. Simaan, Inc. v. BP Prods. N. Am., Inc., - F. Supp. 2d - (M.D.N.C. May 26, 2005).

Claim of Improper Sexual Advances. - Plaintiff's claim that defendants wrongfully induced him to take employment, only to subject him to sexual advances, survived a motion to dismiss because the offending conduct, misleading a prospective employee to induce him to accept employment and face harassment, occurred before the employer-employee relationship existed. Mayes v. Moore, 419 F. Supp. 2d 775 (M.D.N.C. 2006).

Sweepstakes Contestant Not Entitled to Damages. - Under G.S. 75-16, a sweepstakes contestant was not entitled to damages for unfair and deceptive trade practices, pursuant to G.S. 75-1.1 and G.S. 75-32; even if the contest sponsor's actions constituted actionable conduct pursuant to G.S. 75-1.1 and G.S. 75-32, no reasonable person could have relied on the representations contained therein to conclude that he or she would be entitled to the entire contest prize because any actual injury suffered could not have been, as a matter of law, proximately caused by the sponsor's representations. Fozard v. Publrs. Clearing House, Inc., - F. Supp. 2d - (M.D.N.C. Apr. 29, 1999).

Litigation Lending Agreement. - Litigation lender violated G.S. 75-1.1 since it did not inform the injured driver that she was executing a contract that violated the Consumer Finance Act, and the contract for an illegal advance violated the public policy of protecting borrowers. Odell v. Legal Bucks, LLC, 192 N.C. App. 298, 665 S.E.2d 767 (2008).

Since plaintiff buyer's trade dress had acquired distinctiveness through secondary meaning, and defendant supplier had intentionally copied the buyer's cylinder, there was a likelihood of confusion; thus, the jury's finding of willful trade dress infringement under the Lanham Act and G.S. 75-1.1 was supported by the evidence and no judgment as a matter of law under Fed. R. 50(b) was warranted. Irwin Indus. Tool Co. v. Worthington Cylinders Wis., LLC, - F. Supp. 2d - (W.D.N.C. Oct. 1, 2010).

Accounting Actions May Have Been Considered Unfair Trade Practices. - Father was hired to provide accounting services to a partnership, and his actions in improperly keeping and maintaining accounting records may have been considered unfair practices in or affecting commerce; further, because the jury found that the father breached a fiduciary duty, not a mere contractual duty, his contention that mere breach of contract was insufficient to show an unfair trade practice was rejected. A treble damages award against the father was proper. White v. Thompson, 196 N.C. App. 568, 676 S.E.2d 104 (2009), aff'd by 364 N.C. 47, 691 S.E.2d 676, 2010 N.C. LEXIS 349 (2010).

Merger Discussions. - There was a genuine issue of material fact as to whether plaintiff stalled merger discussions to create more time to develop the product and beat defendant's invention to market, and thus summary judgment on defendant's deceptive trade practices claim was denied. Nexus Techs., Inc. v. Unlimited Power, Ltd., - F. Supp. 2d - (W.D.N.C. Nov. 25, 2020).

Because company's conduct during merger negotiations might ultimately served as the basis for a deceptive practices claim, claims asserting that plaintiff's executives committed tortious conduct during those negotiations were allowed to proceed. Nexus Techs., Inc. v. Unlimited Power, Ltd., - F. Supp. 2d - (W.D.N.C. Nov. 25, 2020).

Company design engineer had no role in merger negotiations with defendant and there was no evidence he was involved in the decision to develop, market, and sell the product in question; thus, there was no evidence that the engineer committed any tortious conduct during those negotiations or otherwise and summary judgment was granted on the deceptive practices claim against him. Nexus Techs., Inc. v. Unlimited Power, Ltd., - F. Supp. 2d - (W.D.N.C. Nov. 25, 2020).

College's Failure to Perform Criminal Background Check. - When a student alleged a college failed to perform a contractually required criminal background check of the student, summary judgment dismissing the student's deceptive trade practices claim was not erroneous because the student did not show the college committed fraud by intending to deceive the student, so the student did not show how the college's breach of contract was characterized by egregious or aggravating circumstances. Supplee v. Miller-Motte Bus. Coll., Inc., 239 N.C. App. 208, 768 S.E.2d 582 (2015).

IV. PLEADING AND PRACTICE.

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Jurisdiction. - Bankruptcy court did not have jurisdiction under 28 U.S.C.S. § 157(b)(5) to try plaintiffs' claims alleging that a Chapter 7 debtor committed libel and slander, and it gave plaintiffs the option of dismissing their defamation claims so the court could try their claim alleging that the debtor violated the North Carolina Unfair and Deceptive Trade Practices Act, G.S. 75-1.1, when he allegedly made derogatory comments about plaintiffs, or to ask the district court to remove all of the claims to the district court. Elkes Dev., LLC v. Arnold (In re Arnold), 407 B.R. 849 (Bankr. M.D.N.C. 2009).

Mere allegation of intentional refusal to procure and deliver natural gas, without any suggestion of deception or any claim of injury to competition, does not state a claim under this section. CF Indus., Inc. v. Transcontinental Gas Pipe Line Corp., 448 F. Supp. 475 (W.D.N.C. 1978).

Preemption by ERISA. - Plaintiff was not entitled to amend the complaint and add State claims for unfair settlement practices and unfair trade practices, as such claims were preempted by ERISA. Ward v. Cigna Life Ins. Co., 776 F. Supp. 2d 155 (W.D.N.C. Mar. 9, 2011).

Under this section the only question of fact is whether defendant did what was alleged; the words "unfair" and "deceptive" need never be mentioned to the jury. L.C. Williams Oil Co. v. Exxon Corp., 625 F. Supp. 477 (M.D.N.C. 1985).

Application of statute in private action bifurcated procedure. The jury first decides any factual issues, including whether the allegedly deceptive act proximately caused injury to the plaintiff. The court then determines as a matter of law whether the proved facts amount to a violation of the statute. Hageman v. Twin City Chrysler-Plymouth Inc., 681 F. Supp. 303 (M.D.N.C. 1988).

Notice of Claim. - Trial court was clear that an insured's G.S. 75-1.1 counterclaim arose from the malicious prosecution where, reviewing the colloquy, it was clear that, during the discussion establishing the issues to be decided by the trial court, the insurer was given the opportunity to address the G.S. 75-1.1 claim. N.C. Farm Bureau Mut. Ins. Co. v. Cully's Motorcross Park, 220 N.C. App. 212, 725 S.E.2d 638 (2012), rev'd in part and vacated in part 742 S.E.2d 781, 2013 N.C. LEXIS 491 (2013).

Amendment of Complaint. - Motion to amend the complaint pursuant to Fed. R. Civ. P. 15, to add claims for conversion and unfair trade practices, under G.S. 75-1.1(b), was granted, but the issue whether the claims were barred by applicable statutes of limitations or related back in time was not properly addressable on the motion to amend. Gordon v. Lam (In re Lam), - Bankr. - (Bankr. E.D.N.C. June 8, 2009).

Countercomplaint Held Sufficient to State Claim. - In a pharmaceutical company's suit against a developer for breach of contract, unjust enrichment, and other claims, the company's motion to dismiss for failure to state a claim with regard to the developer's counterclaim for unfair and deceptive trade practices was denied because to the extent that the developer sufficiently alleged a claim for fraudulent concealment or nondisclosure based on the company's alleged failure to disclose information related to an inspection and a warning letter, the developer stated a claim for relief for unfair and deceptive trade practices on the same alleged misrepresentations and omissions. River's Edge Pharms., LLC v. Gorbec Pharm. Servs., - F. Supp. 2d - (M.D.N.C. Apr. 25, 2012).

Plaintiff Estopped in State Deceptive Trade Practices Claim Where Federal Claim Dismissed on Merits. - Family business was collaterally estopped from relitigating the element of causation in its deceptive trade practices claim where it sought damages for the same injuries in a federal action alleging a violation of RICO, and in dismissing the RICO claim, the federal court held that defendants' illegal conduct with respect to a midway contract was not the proximate cause of the business's injury. Strates Shows, Inc. v. Amusements of Am., Inc., 184 N.C. App. 455, 646 S.E.2d 418 (2007).

Jury Decides Facts. - In cases under this section it is ordinarily the province of the jury to find the facts. Love v. Pressley, 34 N.C. App. 503, 239 S.E.2d 574 (1977), cert. denied, 294 N.C. 441, 241 S.E.2d 843 (1978).

In cases under this section and G.S. 75-16 the jury finds facts, and based on the jury's findings, the court then determines as a matter of law whether the defendant's conduct violated this section. Chastain v. Wall, 78 N.C. App. 350, 337 S.E.2d 150 (1985), cert. denied, 316 N.C. 375, 342 S.E.2d 891 (1986).

In cases under G.S. 75-16 and this section, it is ordinarily for the jury to determine the facts, and based on the jury's findings, the court must then determine as a matter of law whether the defendant engaged in unfair or deceptive acts or practices in the conduct of trade or commerce. La Notte, Inc. v. New Way Gourmet, Inc., 83 N.C. App. 480, 350 S.E.2d 889 (1986), cert. denied and appeal dismissed, 319 N.C. 459, 354 S.E.2d 888 (1987); Medina v. Town & Country Ford, Inc., 85 N.C. App. 650, 355 S.E.2d 831 (1987), aff'd, 321 N.C. 591, 364 S.E.2d 140 (1988).

Under this section it is a question for the jury as to whether the defendants committed the alleged acts, and then it is a question of law for the court as to whether these proven facts constitute an unfair or deceptive trade practice. United Labs., Inc. v. Kuykendall, 322 N.C. 643, 370 S.E.2d 375 (1988).

Once the plaintiff has presented evidence in support of each of the three elements in support of its claim of unfair and deceptive trade practices, the question whether the defendants committed the alleged acts is a question of fact for the jury; the court must then determine as a matter of law whether the proven facts constitute an unfair or deceptive trade practice. First Atl. Mgt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 507 S.E.2d 56 (1998).

Summary judgment was improperly granted to a motorcycle helmet manufacturer in a consumer's action alleging a claim for unfair trade practices, because the record revealed a genuine issue of material fact as to the consumer's reliance on the manufacturer's alleged misrepresentations regarding the safety of the helmet, and although the manufacturer presented some evidence calling into question the consumer's reliance on the advertisements, it was for the jury to weigh conflicting evidence of record. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004).

Court Determines Whether Practice Violates Section. - Whether an act or practice is unfair or deceptive within the meaning of this section is a question of law for the court to determine. CF Indus., Inc. v. Transcontinental Gas Pipe Line Corp., 448 F. Supp. 475 (W.D.N.C. 1978); Wachovia Bank & Trust Co. v. Smith, 44 N.C. App. 685, 262 S.E.2d 646, cert. denied, 300 N.C. 379, 267 S.E.2d 685 (1980), overruled on other grounds, Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981); Whitman v. Forbes, 55 N.C. App. 706, 286 S.E.2d 889 (1982); Cathy's Boutique, Inc. v. Winston-Salem Joint Venture, 72 N.C. App. 641, 325 S.E.2d 283 (1985); Pearce v. American Defender Life Ins. Co., 74 N.C. App. 620, 330 S.E.2d 9, aff'd in part and rev'd in part, 316 N.C. 461, 343 S.E.2d 174 (1986); General United Co. v. American Honda Motor Co., 618 F. Supp. 1452 (W.D.N.C. 1985).

Based on the jury's findings of fact, the court must determine as a matter of law whether a defendant's conduct violates this section. Love v. Pressley, 34 N.C. App. 503, 239 S.E.2d 574 (1977), cert. denied, 294 N.C. 441, 241 S.E.2d 843 (1978).

Plaintiff's forecast of evidence was insufficient as a matter of law to show that defendants' actions constituted an unfair trade practice, and was also insufficient to show that plaintiff was actually damaged by defendants' actions. Walker v. Branch Banking & Trust Co., 133 N.C. App. 580, 515 S.E.2d 727 (1999).

Plaintiff Held Not Entitled to Proceed Under This Section. - The trial court did not err in dismissing plaintiff's action where in plaintiff's second action, he alleged insurance company had committed an unfair or deceptive trade practice in violation of this section by alleging in the answer to complaint that plaintiff was intoxicated at the time of the accident since plaintiff's complaint alleged only that insurance company's attorney improperly relied on hearsay statements gathered by accident investigator, and, as a result of his negligent reliance, the insurance company's attorney did not sufficiently investigate the defense before raising it in the answer and these facts were insufficient, as a matter of law, to state a claim entitling plaintiff to proceed under this section. Hoke v. Young, 89 N.C. App. 569, 366 S.E.2d 548 (1988).

Where plaintiff alleged no present monetary injury due to his personal guaranty of loans and where plaintiff's initial investment was provided in exchange for fifty percent of the stock and was thus part of a security transaction, he had no individual grounds to pursue a claim of unfair and deceptive trade practices against defendants. Allen v. Ferrera, 141 N.C. App. 284, 540 S.E.2d 761 (2000).

Buyers who bought a trailer park "as is" failed to establish elements of a claim against the seller for unfair or deceptive trade practices under G.S. 75-1.1 based on buyers' discovery of an illegal diverter pipe in the septic system after purchase; buyers did not explain the factual basis for their unfair and deceptive trade practices claim, but merely incorporated by reference the factual allegations offered in support of the fraud claim, in which they alleged that the seller represented that the property was in compliance with applicable regulations, but failed to disclose the existence of the diverter pipe, thereby deceiving them. RD&J Props. v. Lauralea-Dilton Enters., LLC, 165 N.C. App. 737, 600 S.E.2d 492 (2004).

Manager-member of a limited liability company (LLC) did not state an individual claim for unfair or deceptive trade practices against a comanager-member of the LLC because all of the allegations alleging breach of fiduciary duty, and consequently an unfair or deceptive trade practice claim, related to the parties' relationship through the LLC. Crouse v. Mineo, 189 N.C. App. 232, 658 S.E.2d 33 (2008).

Trial court did not err in dismissing employees' claims that a business associate and a limited liability company (LLC) engaged in unfair and deceptive trade practices because the employees' complaint did demonstrate that they were business partners, rather than mere employees; the employees had no partnership or equity interest in the LLC because they were compensated through a combination of salary and incentives, which were tied to the LLC's profits, and the letters of understanding the employees signed granted no equity interest to them. Schlieper v. Johnson, 195 N.C. App. 257, 672 S.E.2d 548 (2009).

Trial court did not err by granted the motion for a directed verdict filed by a former employer and a supervisor as to a former employee's claim of unfair and deceptive trade practices pursuant to the Unfair and Deceptive Trade Practices Act, G.S. 75-1.1 because the case involved a simple employment dispute and did not fall within the purview of G.S. 75-1.1; there was no evidence presented before the trial court of any conduct that would constitute activity "affecting commerce" between the employee and the employer, and the employee only asserted that he was fired in retaliation for "blowing the whistle" on the employer's practice of not sending out negative balance statements at the end of each month. Combs v. City Elec. Supply Co., 203 N.C. App. 75, 690 S.E.2d 719 (2010), review denied, 706 S.E.2d 492, 2011 N.C. LEXIS 208 (2011).

Purchaser was entitled to attorney's fees under G.S. 75-16.1 where a seller (who assumed certain contracts upon a debtor's default) knew, or should have known, that its claim for unfair or deceptive practices under G.S. 75-1.1 was frivolous and malicious. The record showed that the factual allegations in its verified complaint were completely contradicted by its senior vice president's testimony in a Fed. R. Civ. P. 30(b)(6) deposition, and the record contained absolutely no indication that the purchaser ever represented or implied that it would perform under the contracts in the face of the seller's breach. Waccamaw Bank v. Keystone Builders Res. Group, Inc. (In re Eagle Creek Subdivision, LLC), - Bankr. - (Bankr. E.D.N.C. May 7, 2010).

Survivors' deceptive trade practice claims against cemetery companies were properly dismissed because (1) the survivors failed to establish the existence of contracts between the survivors and the companies and, thus, failed to show a breach of contract, (2) if the companies breached any contracts, a mere breach of contract, even if intentional, was not sufficiently unfair or deceptive to sustain an action under G.S. 75-1.1, and (3) the survivors did not allege substantial aggravating circumstances attending a breach. Birtha v. Stonemor, N.C. LLC, 220 N.C. App. 286, 727 S.E.2d 1 (2012).

Trial court did not err in dismissing plaintiff's unfair or deceptive practices claim against an investment fund manager and its officers where the claim rested entirely upon two letters sent between the parties' counsel, case law concluding that acts engaged in by counsel fell within the learned profession exemption of G.S. 75-1.1, and thus, plaintiff failed to alleged facts to establish that the acts complained of were in commerce as required under G.S. 75-1.1(b). Moch v. A.M. Pappas & Assocs., LLC, 251 N.C. App. 198, 794 S.E.2d 898 (2016).

Trial court properly granted a landscaper summary judgment on property owners' unfair and deceptive trade practices claim because the submission of an invoice or representation that the labor and materials therein were provided caused no proximate injury to the owners; the invoice was not generated for over two years after the owners submitted the last payment for landscaping, and it was indisputably created for them to use in a different lawsuit. Rider v. Hodges, 255 N.C. App. 82, 804 S.E.2d 242 (2017).

Trial court properly granted a landscaper summary judgment because a prima facie case of unfair and deceptive trade practices beyond property owners' breach of contract claim did not exist since the landscaper's alleged acts did not proximately cause injury to the owners. Rider v. Hodges, 255 N.C. App. 82, 804 S.E.2d 242 (2017).

Borrower's G.S. 75-1.1 claim against a bank was dismissed for failure to state a claim where the borrower failed to allege that he had engaged in any type of independent inquiry as to the validity of the appraisal value or that he was prevented from doing so, and thus, he had not sufficiently pled justifiable reliance. Cordaro v. Harrington Bank, FSB, 260 N.C. App. 26, 817 S.E.2d 247 (2018), review denied, 371 N.C. 788, 821 S.E.2d 181, 2018 N.C. LEXIS 1117 (2018).

Borrower's unfair or deceptive trade practices claim was properly dismissed where the permanent loan modification agreement had not commenced, and thus, the lenders and loan servicers could not have committed unfair or deceptive trade practices by refusing to honor the agreement. McDonald v. Bank of N.Y. Mellon Trust Co., 259 N.C. App. 582, 816 S.E.2d 861 (2018).

Defendants' motion to dismiss under Fed. R. Civ. P. 12(b)(6) was denied because plaintiffs had sufficiently stated a claim for breach of contract and for violation of G.S. 75-1.1 when plaintiffs had alleged that defendants had mistakenly placed and omitted their advertisements in the phone book. Rice v. BellSouth Adver. & Publ. Corp, 240 F. Supp. 2d 526 (W.D.N.C. 2002).

Defendant's Motion to Dismiss Was Improperly Granted. - In a case brought by mobile home owners against the manufacturer of those homes, alleging that the manufacturer had engaged in unfair and deceptive trade practices by recommending and selling the owners a defective mobile home tie-down system, the owners' claim that they should be allowed to recover the costs that they incurred to buy and install the defective tie down systems or the costs to retro-fit their tie-down system to one that provided a safe and reliable method to secure the homes in severe weather conditions and met the minimal governmental standards, stated a claim for actual injury sufficient to survive the manufacturer's motion to dismiss; a trial court's dismissal of the owners' claim was reversed. Coley v. Champion Home Builders Co., 162 N.C. App. 163, 590 S.E.2d 20 (2004), cert. denied, 358 N.C. 542, 599 S.E.2d 41 (2004).

Attorney Not Proper Party - Although the General Assembly intended for a party to have standing to sue for a violation of G.S. Ch. 75 where he or she suffered an injury under Ch. 75, regardless of whether that person purchased directly from the wrongdoer, an attorney who claimed that the copier of medical records committed a violation of G.S. 75-1.1 had no standing because he was not an indirect purchaser of the product or service and had not suffered an injury; the attorney merely advanced the costs of the records on behalf of his personal-injury clients, and accordingly, he was not a real party in interest pursuant to G.S. 1A-1, N.C. R. Civ. P. 17(a). Street v. Smart Corp., 157 N.C. App. 303, 578 S.E.2d 695 (2003).

Breach of Contract Insufficient to Support Unfair Practices Claim. - The defendants' claim was properly dismissed for failure to state a claim where their contention that the plaintiff did not follow through on an oral agreement to assist in purchasing a condominium, at most, stated a simple breach of contract, because they failed to allege any substantially aggravating circumstances which would give rise to an unfair or deceptive practices claim under this section. Miller v. Rose, 138 N.C. App. 582, 532 S.E.2d 228 (2000).

Lessee's and sublessee's unfair and deceptive trade practices claim against a lessor was properly dismissed because an allegation that the lessor took a contrary position regarding rent payable during an allegedly void renewal term, after indicating an intent to abide by the lease, stated no required substantial aggravating circumstances and merely alleged breach of contract. Chapel H.O.M. Assocs., LLC v. RME Mgmt., LLC, 256 N.C. App. 625, 808 S.E.2d 576 (2017).

Where action in tort, as in this case, damages must be the natural and probable result of the tortfeasor's misconduct and the measure of damages under this section should also reflect the fact that the cause of action is broader than traditional common law actions. Process Components, Inc. v. Baltimore Aircoil Co., 89 N.C. App. 649, 366 S.E.2d 907 (1988).

Market Power. - Defendants' motion for summary judgment was granted as to plaintiffs' G.S. 75-1 claim because plaintiffs had not presented any evidence that defendants had market power. Oceans One Eleven, LLC v. Beach Mart, Inc., - F. Supp. 2d - (E.D.N.C. Oct. 15, 2008).

Plaintiff Must Show Adverse Effect on Competition. - Where plaintiff made no showing of an adverse effect on competition plaintiff 's claim under this section was insufficient as a matter of law. Sewell Plastics, Inc. v. Coca-Cola Co., 720 F. Supp. 1196 (W.D.N.C. 1989), aff'd in part and remanded in part, 912 F.2d 463 (4th Cir. 1990).

Impact on Commerce or Marketplace Not Shown. - Where a Chapter 11 debtor claimed that the actions of two of its former directors constituted unfair and deceptive trade practices, the directors were entitled to summary judgment because the debtor presented no evidence that their conduct had any impact on commerce or the marketplace. Anderson v. Brokers Inc. (In re Brokers, Inc.), 363 B.R. 458 (Bankr. M.D.N.C. 2007).

Alleged Actions Not "In or Affecting Commerce." - Chapter 7 Trustee pleaded that the individual defendants' actions were related to a limited liability company for which they were legally an agent, and such relationship was internal to a single business; the Trustee pleaded that certain internal business decisions were the basis of the alleged misconduct. Since internal business decisions and internal business operations did not fall under the North Carolina Unfair and Deceptive Trade Practices Act, G.S. 75-1.1, the Trustee had not pleaded facts that could support this cause of action; therefore, defendants' alleged actions were not business activities within the General Assembly's intended meaning of the term and thus were not "in or affecting commerce". Taylor v. Newbold Servs., LLC (In re Newbold Corp.), - Bankr. - (Bankr. W.D.N.C. Nov. 20, 2012).

Allegations Satisfied at Least One of Factors Under Which Business May Maintain Cause of Action. - Assuming the truth of the factual allegations, had a citizen in Bertie County suffered a medical or life-threatening emergency, they could have been deprived of timely emergency medical assistance (but for the temporary restraining order obtained by county officials) as a result of defendants' actions. The allegations as pleaded by the trustee were sufficient to satisfy at least one of the factors under which a business may maintain a cause of action under North Carolina's Unfair and Deceptive Trade Practice Act (UDTPA) - a negative impact on the consuming public. Butler v. Enhanced Equity Fund Fund II, LP (In re Am. Ambulette & Ambulance Serv.), - Bankr. - (Bankr. E.D.N.C. June 16, 2017).

Complaint Held Sufficient to State Claim. - Complaint alleging that at the time of conveyance of 346 acres of land the property was contaminated by certain chemical substances in violation of state and federal laws, that defendant knew or should have known that the land was contaminated but did not disclose that fact to plaintiffs, and that plaintiffs were deceived into purchasing the contaminated land by defendant's misrepresentations alleged facts sufficient to state a claim for unfair and deceptive practices under this Chapter. Cameron v. Martin Marietta Corp., 729 F. Supp. 1529 (E.D.N.C. 1990).

Because plaintiffs' claims for fraud, negligent misrepresentation, and unfair and deceptive trade practices in violation of G.S. 75-1.1, were based on distinct conduct and unique injuries, plaintiffs had standing to pursue these claims, and the claims were not barred by res judicata based on the bankruptcy proceeding; in addition, the claims were sufficiently pled to give defendants notice of the circumstances surrounding the claims. Angell v. Kelly, 336 F. Supp. 2d 540 (M.D.N.C. 2004).

Creditor was not entitled to judgment on the pleadings on a Chapter 11 debtor's unfair trade practices claim where the debtor sufficiently stated a claim for defamation, and defamation could serve as a basis for the unfair trade practices claim. Natural Care Labs, Inc. v. Medline Indus. (In re NCL Liquidation Corp.), - Bankr. - (Bankr. M.D.N.C. Oct. 21, 2005).

A Chapter 7 trustee stated sufficient claims under North Carolina law for deceptive trade practice under G.S. 75-1.1 et seq., and civil conspiracy, to avoid judgment on the pleadings under Fed. R. Bankr. P. 7012(c) and Fed. R. Civ. P. 12(c). Ivey v. McDaniel (In re EBW Laser, Inc.), - Bankr. - (Bankr. M.D.N.C. Apr. 21, 2008).

Trial court erred in dismissing pursuant to G.S. 1A-1, N.C. R. Civ. P. 12(b)(6) for lack of standing a consumer's action alleging that manufacturers violated G.S. 75-1 and G.S. 75-1.1 by engaging in price fixing of ethylene propylene diene monomor elastomers (EPDM) because the consumer had standing to bring the antitrust and consumer fraud action; if the consumer could demonstrate that the increased EPDM prices affected the price of the goods he purchased, then he would have established the type of injury to indirect purchasers that the General Assembly intended to remedy by allowing indirect purchaser suits, and although a rigorous economic analysis would be required to determine whether increased prices were the result of the alleged price fixing or the result of some other factor, that was not sufficient reason to dismiss for lack of standing. Teague v. Bayer AG, 195 N.C. App. 18, 671 S.E.2d 550 (2009).

Trial court erred in dismissing pursuant to G.S. 1A-1, N.C. R. Civ. P. 12(b)(6) for lack of standing a consumer's action alleging that manufacturers violated G.S. 75-1 and G.S. 75-1.1 by engaging in price fixing of ethylene propylene diene monomor elastomers (EPDM) because the consumer had standing to bring the antitrust and consumer fraud action; the factors the United States Supreme Court identified in Associated Gen. Contractors v. Carpenters, 459 U.S. 519, 74 L. Ed. 2d. 723 (1983) to determine standing under federal antitrust law do not apply in determining which indirect purchasers have standing to sue under the North Carolina antitrust statutes. Teague v. Bayer AG, 195 N.C. App. 18, 671 S.E.2d 550 (2009).

Landlord's claims that non-debtor corporations engaged in unfair and deceptive trade practices and committed fraud when they made false representations that a corporate debtor that leased a building from her was on the verge of declaring bankruptcy, in order to exact rent concessions, were sufficient to survive a motion for judgment on the pleadings. Walter v. Freeway Foods, Inc. (In re Freeway Foods of Greensboro, Inc.), 467 B.R. 853 (Bankr. M.D.N.C. 2012).

Airline group's third-party complaint against an aviation services company adequately alleged claims for unfair and deceptive trade practice, under G.S. 75-1.1, because the airline group alleged that representatives of the aviation services company made false statements to induce the airline group to enter into lease agreements which resulted in damages to the airline group. Tradewinds Airlines, Inc. v. C-S Aviation Servs., 222 N.C. App. 834, 733 S.E.2d 162 (2012), review denied, 743 S.E.2d 189, 2013 N.C. LEXIS 531 (2013).

Assertion that defendant instructed its engineer to withhold certification of the work completed to avoid final payment on a contract for site work was particularly egregious and aggravating given that the work had already been certified by the N.C. Department of Transportation and another engineer. These allegations were sufficient to constitute a substantial aggravating circumstance attending the alleged breach of contract and enabled a Chapter 11 debtor to plausibly state a claim for relief under the North Carolina Unfair and Deceptive Trade Practices Act (UDTPA), G.S. 75-1.1. B&K Coastal, LLC v. Promenade at Surf City, LLC (In re B&K Coastal, LLC), - Bankr. - (Bankr. E.D.N.C. May 9, 2013).

Debtor alleged sufficient facts to support a claim of unfair and deceptive trade practices under North Carolina law because the debtor pleaded allegations that a mortgage loan service took actions to obtain the debtor's property for itself, which plausibly gave rise to entitlement to relief. Burcam Capital II, LLC v. US Bank Nat'l Ass'n (In re Burcam Capital II, LLC), - Bankr. - (Bankr. E.D.N.C. Oct. 1, 2013).

Plaintiff pleaded a prima facie case for unfair and deceptive trade practices after the plaintiff alleged that defendants forged his signature on a purchase contract and represented to him that the buyers would sign an offer to purchase the property if he would accede to certain modifications to his original building plans; that defendants proximately caused him harm in the form of incurring costs to make additional improvements to the property; and that the forged contract was an unfair or deceptive act that proximately caused harm in the form of defending against a lis pendens and state lawsuit and entering into bankruptcy. The business of buying, developing, and selling real estate was an activity in or affecting commerce. Rodgers v. Preferred Carolinas Realty, Inc. (In re Rodgers), - F. Supp. 2d - (E.D.N.C. June 24, 2014).

Complaint sufficiently asserted an actionable deceptive and unfair trade practice because supplier asserted that buyer repeatedly promised that it would make supplier its exclusive supplier for a certain product in order to induce the supplier to increase its production capacity to meet the buyer's requirements and provide it with favorable pricing, and that at the same time they buyer secretly made arrangements to replace the supplier and thus, that the buyer had no intention of entering into a supply agreement with the seller, but strung it along in order to ensure that the buyer had sufficient supply of the materials at discounted prices until the buyer was ready to replace the supplier. Celgard, LLC v. LG Chem, Ltd., - F. Supp. 2d - (W.D.N.C. May 21, 2015).

Complaint sufficiently asserted an actionable deceptive and unfair trade practice because supplier asserted that buyer repeatedly promised that it would make supplier its exclusive supplier for a certain product in order to induce the supplier to increase its production capacity to meet the buyer's requirements and provide it with favorable pricing, and that at the same time they buyer secretly made arrangements to replace the supplier and thus, that the buyer had no intention of entering into a supply agreement with the seller, but strung it along in order to ensure that the buyer had sufficient supply of the materials at discounted prices until the buyer was ready to replace the supplier. Celgard, LLC v. LG Chem, Ltd., - F. Supp. 2d - (W.D.N.C. May 21, 2015).

Complaint Held Insufficient to State A Claim. - Because employers failed to state a valid claim for tortious interference with contract or misappropriation of trade secrets, they also failed to adequately allege that a competitor committed an unfair or deceptive act or practice; consequently, the employers not stated a valid claim for unfair and deceptive practices, and their complaint was properly dismissed. Krawiec v. Manly, 370 N.C. 602, 811 S.E.2d 542 (2018).

Business court properly denied chiropractors declaratory relief on their unfair and deceptive trade practices claims because much of the declaratory relief the chiropractors sought came in the form of legal conclusions that had already been addressed in an earlier discussion of their antitrust claims and their claim that a company engaged in unfair trade practices under the statute. Sykes v. Health Network Sols., Inc., 372 N.C. 326, 828 S.E.2d 467 (2019).

Because some of the allegations described the same conduct that was the subject of chiropractors' antitrust claims, to the extent that those allegations overlapped, the supreme court affirmed the business court's dismissal of the chiropractors' unfair and deceptive trade practices claims. Sykes v. Health Network Sols., Inc., 372 N.C. 326, 828 S.E.2d 467 (2019).

Court Order That Seller Pay Off Loan on Defective Car. - Where plaintiff buyer was required to return a defective car to defendant automobile dealer, requiring defendant to pay off the outstanding balance of a loan on the car was an appropriate order for the court to enter. Morris v. Bailey, 86 N.C. App. 378, 358 S.E.2d 120 (1987).

Error Rendered Harmless by Court's Independent Determination. - Court's error in submitting to the jury the question of law as to whether defendant's conduct violated this section was cured or rendered harmless and non-prejudicial by the court's independent determination that defendant's acts constituted unfair and deceptive trade practices. Medina v. Town & Country Ford, Inc., 85 N.C. App. 650, 355 S.E.2d 831 (1987), aff'd, 321 N.C. 591, 364 S.E.2d 140 (1988).

Class Actions Allowed to Enforce Section. - When the General Assembly has wished to prevent class actions to enforce statutory claims for relief where the relief sought was personal and penal in nature, it has said so expressly and unequivocally. The failure of the General Assembly to expressly prohibit class actions to enforce this statute convinces the Supreme Court that it intended to allow them for such purposes. Crow v. Citicorp Acceptance Co., 319 N.C. 274, 354 S.E.2d 459 (1987).

Plaintiff's motion for class certification in an action alleging Unfair and Deceptive Trade Practices Act was denied because the myriad of variations of each plaintiff's situation defeated commonality, and it would have been inappropriate to rule on plaintiff's claims without considering the unique circumstances of individual class members; if a class member understood that the fees initially disclosed were estimates that could have changed before closing, then the claim of "unfair" or "deceptive" act or practice would likely fail, but plaintiff had not articulated a class definition that took into account the understanding of the individuals in each loan transaction. Rose v. SLM Fin. Corp., 254 F.R.D. 269 (W.D.N.C. 2008).

Propriety of Arbitration. - An unfair and deceptive practices claim pursuant to this section is proper for arbitration. Rodgers Bldrs., Inc. v. McQueen, 76 N.C. App. 16, 331 S.E.2d 726 (1985), cert. denied, 315 N.C. 590, 341 S.E.2d 29 (1986).

Bankruptcy court denied a debt counseling company's motion to stay a Chapter 11 debtor's adversary proceeding and compel arbitration under a Debt Mediation and Restructuring Agreement the parties entered before the debtor declared bankruptcy. The debtor's claims under 11 U.S.C.S. §§ 544, 548 and 550, G.S. 39-23.1 et seq., and G.S. 75-1.1, alleging fraudulent conveyance and unfair and deceptive trade practices, were core claims under 28 U.S.C.S. § 157(b)(2), the asset in dispute was the only asset left to be recaptured and redistributed in the debtor's Chapter 11 case, and arbitration under the terms of the parties' agreement would have caused great hardship to the debtor, as the debtor was administratively insolvent and had no available funds to pay counsel or its share of the costs of arbitration. Aeronautical Solutions, LLC v. Commer. Debt Counselling Corp. (In re Aeronautical Solutions, LLC), - Bankr. - (Bankr. E.D.N.C. June 8, 2007).

Arbitrator's award in plaintiffs' unfair and deceptive trade practices claim, G.S. 75-1.1, was properly confirmed under the Federal Arbitration Act, 9 U.S.C.S. § 9, because the arbitrator's consideration of both parties' conduct in the course of calculating the damage award was not a manifest disregard of the law. In re Fifth Third Bank, Nat'l Ass'n, 216 N.C. App. 482, 716 S.E.2d 850 (2011).

Where a debtor brought an adversary proceeding against a creditor and its agent alleging violations of the North Carolina Fair Debt Collection Practices Act, the dispute should have been determined through arbitration because the proceeding was a core proceeding under 28 U.S.C.S. § 157(b)(2)(C) as it was in essence a counterclaim against the claim filed by the creditor, but it was an unconstitutional core proceeding because the claims asserted in the proceeding would not be resolved through the claims allowance process; arbitration was warranted because the arbitration agreement clearly encompassed statutory claims. Edwards v. Vanderbilt Mortg. & Fin., Inc. (In re Edwards), - Bankr. - (Bankr. E.D.N.C. Oct. 21, 2013).

Question of Law. - The determination of whether an act is unfair or deceptive is a question of law for the court. Bernard v. Central Carolina Truck Sales, Inc., 68 N.C. App. 228, 314 S.E.2d 582, cert. denied, 311 N.C. 751, 321 S.E.2d 126 (1984); L.C. Williams Oil Co. v. Exxon Corp., 625 F. Supp. 477 (M.D.N.C. 1985); Concrete Serv. Corp. v. Investors Group, Inc., 79 N.C. App. 678, 340 S.E.2d 755, cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986).

In action brought under this section, while the trial judge erred in submitting the issues of whether defendant's conduct was in commerce or affected commerce to the jury, because it is a part of the court's finding that the acts or conduct proven do or do not constitute an unfair or deceptive act within the meaning of this section, the error was harmless. Chastain v. Wall, 78 N.C. App. 350, 337 S.E.2d 150 (1985), cert. denied, 316 N.C. 375, 342 S.E.2d 891 (1986).

The question of whether conduct constitutes an unfair or deceptive act in violation of the statute is one of law for the court, and the jury has no role in the decision as to whether damages should be trebled for such conduct. Mapp v. Toyota World, Inc., 81 N.C. App. 421, 344 S.E.2d 297, cert. denied, 318 N.C. 283, 347 S.E.2d 464 (1986).

While a court generally determines whether a practice is an unfair or deceptive act or practice based on the jury's findings, if the facts are not disputed the court should determine whether the defendant's conduct constitutes an unfair trade practice. L.C. Williams Oil Co. v. Exxon Corp., 625 F. Supp. 477 (M.D.N.C. 1985).

Whether a commercial act or practice is violative of this section is a question of law. Budd Tire Corp. v. Pierce Tire Co., 90 N.C. App. 684, 370 S.E.2d 267 (1988).

Whether there is a causal relation between the violation of the statute and the injury complained of is an issue of fact for a jury. Ellis v. Smith-Broadhurst, Inc., 48 N.C. App. 180, 268 S.E.2d 271 (1980).

Failure to Submit Issue to Jury Held Error. - Trial court's failure to submit to the jury factual questions in need of resolution concerning widow's claim for unfair and deceptive trade practices relating to an insurance policy was error, and widow was entitled to a new trial on this issue. Barber v. Woodmen of World Life Ins. Soc'y, 95 N.C. App. 340, 382 S.E.2d 830 (1989), cert. denied, 326 N.C. 363, 389 S.E.2d 820 (1990), overruled on other grounds, Jefferson-Pilot Life Ins. Co. v. Spencer, 336 N.C. 49, 442 S.E.2d 316 (1994).

Failure to Cite Proper Claim. - Accident victim failed to cite Chapter 75 in his appellate brief or to present any argument showing that the trial court erred in ruling on the victim's Ch. 75 claim; his discussion of Chapter 58 was therefore insufficient to satisfy preservation of his Ch. 75 claim pursuant to G.S. 58-63-15(11), and his assignment of error was dismissed. Stott v. Nationwide Mut. Ins. Co., 183 N.C. App. 46, 643 S.E.2d 653 (2007).

Court's Calculation of Award Held Proper. - Although one may only recover damages for breach of contract or violation of this section where the same course of conduct gives rise to a traditionally recognized cause of action, where the trial court did not allow damages for both tortious interference with contract and a violation of this section, but rather calculated lost profits and then trebled that amount pursuant to this Chapter, there was no double recovery allowed, and there was no error. American Aluminum Prods., Inc. v. Pollard, 97 N.C. App. 541, 389 S.E.2d 589 (1990).

Stipulated Facts Constituting Violation. - Ordinarily it would be for the jury to determine the facts, and based on the jury's finding, the court would then determine as a matter of law whether the defendant engaged in unfair or deceptive acts or practices in the conduct of trade or commerce. However, where the parties stipulated certain facts, the Supreme Court, based on these facts, held as a matter of law that the false representations made by defendants to plaintiff constituted unfair or deceptive acts or practices in commerce contrary to the provisions of this section, and treble damages should have been awarded as provided by G.S. 75-16 in the amount of $1800. Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342 (1975).

Admitted Facts Constituting Violation. - In an action for damages, by failing to answer requests for admissions, the requests became conclusively established facts by operation of G.S. 1A-1, N.C. R. Civ. P. 36, and, therefore, summary judgment against a rapper was proper on four police officers claims of defamation per se, appropriation, and unfair or deceptive practices under G.S. 75-1.1. Nguyen v. Taylor, 219 N.C. App. 1, 723 S.E.2d 551 (2012).

Tendency or Capacity to Mislead Must Be Shown. - To succeed under this section, it is not necessary for the plaintiff to show fraud, bad faith, deliberate or knowing acts of deception, or actual deception; plaintiff must, nevertheless, show that the acts complained of possessed the tendency or capacity to mislead, or created the likelihood of deception. Overstreet v. Brookland, Inc., 52 N.C. App. 444, 279 S.E.2d 1 (1981).

Constructive Fraud. - Allegations sufficient to allege constructive fraud were likewise sufficient to allege unfair and deceptive trade practices. Governor's Club Inc. v. Governors Club Ltd. P'ship, 152 N.C. App. 240, 567 S.E.2d 781 (2002), aff'd sub nom., 357 N.C. 46, 577 S.E.2d 620 (2003).

But proof of actual deception is not required. Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981).

Burden of Proving Exemption. - Any party claiming to be exempt from the provisions of this section has the burden of proof with respect to such claim. Olivetti Corp. v. Ames Bus. Sys., 81 N.C. App. 1, 344 S.E.2d 82 (1986), aff'd in part and rev'd in part on other grounds, 319 N.C. 534, 356 S.E.2d 578 (1987).

Bald Assertions Insufficient to Withstand Motion for Summary Judgment. - Plaintiffs' bald assertions that defendants engaged in "unfair" and "deceptive" practices were not sufficient to withstand a motion for summary judgment. Team 7, LLC v. Protective Solutions, Inc., - F. Supp. 2d - (E.D.N.C. Dec. 10, 2010).

For a case setting forth the elements of a prima facie case of common-law fraud, see Spartan Leasing, Inc. v. Pollard, 101 N.C. App. 450, 400 S.E.2d 476 (1991).

To prevail on a claim of unfair and deceptive trade practice, a plaintiff must show (1) an unfair or deceptive act or practice, or an unfair method of competition, (2) in or affecting commerce, (3) which proximately caused actual injury to the plaintiff or to his business. Spartan Leasing, Inc. v. Pollard, 101 N.C. App. 450, 400 S.E.2d 476 (1991).

Burden Shifts to Defendant upon Proof of Fraud. - Once the plaintiff has proven fraud, thereby establishing prima facie a violation of this chapter, the burden shifts to the defendant to prove that he is exempt from the provisions of this section. Bhatti v. Buckland, 328 N.C. 240, 400 S.E.2d 440 (1991).

Bifurcated Procedure. - Where the evidence raises material issues of fact concerning negligent misrepresentation, the jury determines whether defendants committed the alleged acts, and if so, the trial court determines whether the proven facts constitute unfair or deceptive trade practices. Forbes v. Par Ten Group, Inc., 99 N.C. App. 587, 394 S.E.2d 643 (1990), cert. denied, 99 N.C. 587, 402 S.E.2d 824 (1991).

Any alleged contributory negligence by plaintiffs is irrelevant in an action governing conduct subject to this chapter. Forbes v. Par Ten Group, Inc., 99 N.C. App. 587, 394 S.E.2d 643 (1990), cert. denied, 99 N.C. 587, 402 S.E.2d 824 (1991).

Trustee as Successor in Interest Was Entitled to Recover Damages and Attorney's Fees. - Where lending and collection practices of the credit union collectively constituted unfair and deceptive trade practices pursuant to this section and where the credit union willfully engaged in unfair and deceptive trade practices, and that the debtor was deceived and damaged as a result thereof, trustee, as the successor in interest of the debtor's claims against the credit union was therefore entitled to recover treble damages and attorneys' fees pursuant to G.S. 75-16 and 75-16.1 on behalf of the debtor's estate. Petersen v. State Employees Credit Union (In re Kittrell), 115 Bankr. 873 (Bankr. M.D.N.C. 1990).

What Law Governs. - The law of the State where the last act occurred giving rise to defendant's injury governs defendant's action under this section. United Va. Bank v. Air-Lift Assocs., 79 N.C. App. 315, 339 S.E.2d 90 (1986).

Trebling of Damages. - Damages assessed pursuant to this section are trebled automatically. Pinehurst, Inc. v. O'Leary Bros. Realty, 79 N.C. App. 51, 338 S.E.2d 918, cert. denied, 316 N.C. 378, 342 S.E.2d 896 (1986).

Once a plaintiff has established the right to recover under this section, the award of treble damages pursuant to G.S. 75-16 is automatic and not discretionary. Peterson v. Bozzano, 183 Bankr. 735 (Bankr. M.D.N.C. 1995).

Where a jury awarded plaintiff $106.25 million in compensatory damages and $45 million in punitive damages for common law fraud, together with $1 million for violation of the North Carolina Unfair and Deceptive Trade Practices Act (UDTPA) [G.S. 75-1 et seq.], the compensatory damages for fraud were subject to trebling under the UDTPA because fraud in connection with commerce constituted a per se violation of the UDTPA; however, plaintiff could not recover both the jury's fraud award and its UDTPA award, as the same conduct gave rise to both claims, nor could plaintiff recover both treble damages and the jury's punitive damages award. Volumetrics Med. Imaging, Inc. v. ATL Ultrasound, Inc., - F. Supp. 2d - (M.D.N.C. July 10, 2003).

Punitive Damages. - Because this section is in derogation of the common law causes of action for unfair or deceptive trade practices and G.S. 75-16 imposes a penalty, strict construction is in order. Thus, absent explicit legislative inclusion, punitive damages should be excluded. Pinehurst, Inc. v. O'Leary Bros. Realty, 79 N.C. App. 51, 338 S.E.2d 918, cert. denied, 316 N.C. 378, 342 S.E.2d 896 (1986).

Where the plaintiff partners alleged and were able to prove both breach of a fiduciary duty by constructive fraud and unfair and deceptive trade practices by defendant partner, the plaintiff partners were entitled to receive either punitive damages on the fraud claim or treble damages on the unfair and deceptive trade practices claim, but had to choose between the awards. Compton v. Kirby, 157 N.C. App. 1, 577 S.E.2d 905 (2003).

Trial court erred in entering a directed verdict on a homeowner's unfair and deceptive trade practices (UDTP) claim against a contractor because the approach the trial court followed in dismissing the UDTP claim but allowing counsel to argue it in connection with punitive damages was in error; because the jury found in favor of the homeowner on her fraud claim, and the contractor made no attempt to argue that it was exempt from the provisions of G.S. 75-1.1, the homeowner was entitled to recover treble damages under G.S. 75-16. Jones v. Harrelson & Smith Contrs., LLC, 194 N.C. App. 203, 670 S.E.2d 242 (2008), aff'd, 363 N.C. 371, 677 S.E.2d 453 (2009).

In a software licensor's suit against a licensee for fraudulent inducement and breach of the license agreement by using the licensor's software to reverse engineer an identical competing software, which the licensee then sold the licensor's customers, a jury's verdict for damages of $26,376,635 and $3,000,000 in punitive damages was upheld. SAS Inst., Inc. v. World Programming Ltd., - F. Supp. 2d - (E.D.N.C. June 17, 2016).

Generally, punitive damages not awarded for violation of this section and where treble damages were awarded for a violation of this section and for that reason punitive damages for fraud could not be awarded even if fraud could be proven since there cannot be a recovery on both claims arising from the same course of conduct. Process Components, Inc. v. Baltimore Aircoil Co., 89 N.C. App. 649, 366 S.E.2d 907 (1988).

Punitive Damages and Attorney's Fees. - To recover punitive damages at common law, a plaintiff must show that the defendant acted in a willful or oppressive manner. To recover attorney's fees for unfair practices, however, the plaintiff must also show that there was an unwarranted refusal by the defendant to fully resolve the matter which constitutes the basis of the suit. Since recovery of attorney's fees requires proof different from that which gives rise to punitive damages, the claims do not arise from the same course of conduct, and plaintiff may recover both. United Lab., Inc. v. Kuykendall, 335 N.C. 183, 437 S.E.2d 374 (1993).

Measure of Damages. - For discussion of measure of damages for fraudulent inducement, see Bernard v. Central Carolina Truck Sales, Inc., 68 N.C. App. 228, 314 S.E.2d 582, cert. denied, 311 N.C. 751, 321 S.E.2d 126 (1984).

The trial court correctly allowed the jury to consider contractual damages as an element of unfair and deceptive trade practices claim, where plaintiff elected to recover under this section. Defendant could not prevent that recovery by stipulating to pay damages for the breach of contract claim; otherwise, defendant could simply take its chances with a jury and then avoid treble damages by stipulating to contractual liability should the jury find for the plaintiff. Vazquez v. Allstate Ins. Co., 137 N.C. App. 741, 529 S.E.2d 480 (2000).

Damages may be recovered either for breach of contract or for violation of this section, but not for both, where the same course of conduct gives rise to a traditionally recognized cause of action as, for example, an action for breach of contract, and as well gives rise to a cause of action for violation of this section. Marshall v. Miller, 47 N.C. App. 530, 268 S.E.2d 97, modified and aff 'd, 302 N.C. 539, 276 S.E.2d 397 (1981).

Tortious Interference and Compensatory Damages. - There is no double redress for a single wrong and no inconsistency when a plaintiff recovers untrebled compensatory damages under this Chapter and punitive damages under a tortious interference claim. United Lab., Inc. v. Kuykendall, 335 N.C. 183, 437 S.E.2d 374 (1993).

Double Recovery by Plaintiff Under This Section and Breach of Warranty. - Court's entry of judgments against defendant for damages on plaintiff's claim under this section and for breach of implied warranty allowed plaintiff double recovery. Barbee v. Atlantic Marine Sales & Serv., Inc., 115 N.C. App. 641, 446 S.E.2d 117 (1994).

Indemnification. - Despite the factual similarity, a claim for unfair trade practices was not a libel claim, and the commercial general liability insurer had no duty to indemnify under a personal injury policy covering slander and libel. Wake Stone Corp. v. Aetna Cas. & Sur. Co., 995 F. Supp. 612 (E.D.N.C. 1998).

Lex loci delicti rule determines choice of law for actions brought under North Carolina's Unfair and Deceptive Trade Practices Act. United Dominion Indus., Inc. v. Overhead Door Corp., 762 F. Supp. 126 (W.D.N.C. 1991).

Inapplicability of Contract Provision as to Choice of Law. - A contractual provision providing that an agreement would be governed by and construed under Texas law may govern the choice of laws as to the interpretation and construction of the contract; however, it does not provide the applicable law for a claim based on unfair and deceptive acts. United Dominion Indus., Inc. v. Overhead Door Corp., 762 F. Supp. 126 (W.D.N.C. 1991).

The nature of the liability under this section is ex delicto, not ex contractu. Therefore, North Carolina courts would ignore the contractual choice of law provision in determining whether this section applied. United Dominion Indus., Inc. v. Overhead Door Corp., 762 F. Supp. 126 (W.D.N.C. 1991).

A clause in the contract for the sale of a tract that included wetlands indicated the parties' intent that issue of environmental law violations affecting the tract would survive closing. Sunset Beach Dev., LLC v. Amec, Inc., 196 N.C. App. 202, 675 S.E.2d 46 (2009).

Reinstatement of Stale Law Claim. - Plaintiff manufacturer's claim under the North Carolina Unfair Trade Practices Act should not be reinstated, even though the defendant changed its position as to the applicability of North Carolina law, where the change of position would not render inaccurate a summary judgment determination, derived from Fourth Circuit case law, that South Carolina law applied. Vanwyk Textile Sys. v. Zimmer Mach. Am., Inc., 994 F. Supp. 350 (W.D.N.C. 1997).

Assessment of damages on both an unfair trade practices claim and odometer statute violations did not amount to a double recovery since an action for unfair or deceptive acts or practices is a distinct action apart from fraud, breach of contract, or violation of state and federal odometer statutes; where jury concluded that plaintiffs had been damaged in the amount of $1,300 pursuant to the unfair trade practices claim and the trial court then trebled this amount and where the trial court then assessed $1,500 on each of the odometer statute violations as required by statute, plaintiffs were not awarded double recovery. Washburn v. Vandiver, 93 N.C. App. 657, 379 S.E.2d 65 (1989).

Statute of Limitations. - Plaintiffs' claims against a trust company and its trustee under G.S. 75-1.1 failed where the statute of limitations for the action began to accrue when plaintiffs closed on their property and as that was more than four years prior to the filing of the action, the statute of limitations in G.S. 75-16.2 had expired. Skinner v. Preferred Credit, 172 N.C. App. 407, 616 S.E.2d 676 (2005).

Expiration of the applicable four-year statute of limitations barred the borrowers' unfair and deceptive trade practices claim; the borrowers conceded that their unfair and deceptive trade practices claim was derived from their usury claim, and therefore because the claim accrued at the date on which the loan at issued closed, the trial court properly dismissed the complaint on this issue. Shepard v. Ocwen Fed. Bank, FSB, 361 N.C. 137, 638 S.E.2d 197 (2006).

Because an unfair or deceptive trade practices (UTDP) claim had to be brought within four years of the accrual of the cause of action, and the first plaintiff's action was initiated on 9 February 2011, applying that limitations period, all UTDP claims based on payment of capital credits prior to 9 February 2007 were time-barred. Lockerman v. South River Elec. Mbrshp. Corp., 250 N.C. App. 631, 794 S.E.2d 346 (2016).

Statute of Limitations Prior to Enactment of G.S. 75-16.2. - See Holley v. Coggin Pontiac, Inc., 43 N.C. App. 229, 259 S.E.2d 1, cert. denied, 298 N.C. 806, 261 S.E.2d 919 (1979).

The doctrine of equitable estoppel did not bar an action by the Attorney General against defendants finance companies who neither participated in the deceptive practices of defendant grocery chain nor were put on notice that the Attorney General was investigating the defendant, from whom they purchased the disputed retail installment sales contracts, for possible violations of this chapter, where they failed to affirmatively plead estoppel as required by G.S. 1A-1, Rule 8(c) and where the delay before the action was filed was attributed to the extensive investigation undertaken by the Consumer Protection Division of the Attorney General's Office, the efforts to obtain information from the defendant grocery chain, and intensive efforts to arrive at a resolution; furthermore, estoppel does not normally operate to bar the actions of the State or its agencies and arises only if such an estoppel will not impair the exercise of the governmental powers of the county. State ex rel. Easley v. Rich Food Servs., Inc., 139 N.C. App. 691, 535 S.E.2d 84 (2000).

Election of Remedies. - In an action under this section based on deceptive sales practices, a plaintiff may allege inconsistent remedies, and need not make its election until either prior to jury instructions or after return of the jury verdict. State ex rel. Easley v. Rich Food Servs., Inc., 139 N.C. App. 691, 535 S.E.2d 84 (2000).

Where a matter had to be remanded for a new trial on the issue of damages, if the property owners were awarded both punitive damages and unfair and deceptive trade practices damages based on a contractor's conduct, they had to elect between the two remedies. Decker v. Homes, Inc./Constr. Mgmt. & Fin. Group, 187 N.C. App. 658, 654 S.E.2d 495 (2007).

Counterclaim Could Not Be Lodged - In an action by a principal against, a developer claiming entitlement to indemnification, and alleging breach of contract and negligent misrepresentation, summary judgment was granted for the principal in part where the developer could not lodge an Unfair and Deceptive Trade Practices Act, G.S. 75-1 et seq., counterclaim against the principal founded on alleged violations of North Carolina's insurance laws, and the developer could not assert a bad faith cause of action against the principal. Cincinnati Ins. Co. v. Centech Bldg. Corp., 286 F. Supp. 2d 669 (M.D.N.C. 2003).

Copyright Act Preemption - Copyright Act, 17 U.S.C.S. § 301(a), preempted a doctor's claim against a hospital and two doctors under the North Carolina Unfair and Deceptive Trade Practices Act (UDTPA), G.S. 75-1.1, for unauthorized use of his copyrighted materials because there were not extra elements for the UDTPA claim, and the identical acts supported both causes of action. Rutledge v. High Point Reg'l Health Sys., 558 F. Supp. 2d 611 (M.D.N.C. 2008).

Default Judgment. - Plaintiff was entitled to entry of default judgment under Fed. R. Civ. P. 55(b) in a trademark infringement action, pursuant to 15 U.S.C.S. §§ 1114(1)-(2), 1125(a) and (c), and G.S. 75-1.1(a), because defendant was properly served with process but had not appeared in the case; defendant had used one or more of plaintiff's trademarks in connection with its automobile repair and body shop business and used the marks in commerce without plaintiff's authorization. AAA v. J & T Body Shop, Inc., - F. Supp. 2d - (W.D.N.C. Oct. 31, 2011).

Opinions of Attorney General

The phrase "learned profession" applies to physicians, attorneys, clergy, and related professions. See opinion of Attorney General to Representative Robert L. Farmer, 47 N.C.A.G. 118 (1977). United Dominion Indus., Inc. v. Overhead Door Corp., 762 F. Supp. 126 (W.D.N.C. 1991).

I. IN GENERAL.

Purpose. - The purpose of the statutory provisions for treble money damages and attorney's fees in this section and G.S. 75-16.1 was to encourage private enforcement in the marketplace and to make the bringing of such suit more economically feasible. Winston Realty Co. v. G.H.G., Inc., 314 N.C. 90, 331 S.E.2d 677 (1985).

Legislative Intent. - It was the clear intention of the General Assembly in enacting G.S. 75-1.1 and this section, among other things, to declare deceptive acts or practices in the conduct of any trade or commerce in North Carolina unlawful, to provide civil means to maintain ethical standards of dealings between persons engaged in business and the consuming public within this State and to enable a person injured by deceptive acts or practices to recover treble damages from a wrongdoer. Hardy v. Toler, 24 N.C. App. 625, 211 S.E.2d 809, modified on other grounds, 288 N.C. 303, 218 S.E.2d 342 (1975); American Craft Hosiery Corp. v. Damascus Hosiery Mills, Inc., 575 F. Supp. 816 (W.D.N.C. 1983).

In enacting this section and G.S. 75-16.1, the legislature intended to establish an effective private cause of action for aggrieved consumers in this State. Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981).

The legislature's intent in enacting this section was to create a new, private cause of action for aggrieved consumers, since traditional common-law remedies were often deficient. Winston Realty Co. v. G.H.G., Inc., 314 N.C. 90, 331 S.E.2d 677 (1985).

The North Carolina Legislature must have intended that substantial aggravating circumstances be present before any practice is deemed unfair under G.S. 75-1.1, since it provided that any damages suffered by the victim are to be trebled. General United Co. v. American Honda Motor Co., 618 F. Supp. 1452 (W.D.N.C. 1985).

By enacting the 1969 revisions to this section, the General Assembly clearly intended to expand the class of persons with standing to sue for a violation of Chapter 75 to include any person who suffers an injury under Chapter 75, regardless of whether that person purchased directly from the wrongdoer. Hyde v. Abbott Labs., Inc., 123 N.C. App. 572, 473 S.E.2d 680 (1996).

Standing of Consumer. - This section allows a suit by an indirect purchaser; thus, consumers who did not buy infant formula directly from the manufacturer had standing to sue. Hyde v. Abbott Labs., Inc., 123 N.C. App. 572, 473 S.E.2d 680 (1996).

Applicability. - Situations where small monetary damages were involved are not the only situations to which this section applies. Mosley & Mosley Bldrs., Inc. v. Landin Ltd., 97 N.C. App. 511, 389 S.E.2d 576, cert. denied, 326 N.C. 801, 393 S.E.2d 898 (1990).

Actions taken by an investment equity and its principals with respect to a software development firm, which it eventually took over from the original shareholders and others, was not within the ordinary conduct that was covered by the North Carolina Unfair and Deceptive Trade Practices Act such that a claim by the shareholders under G.S. 75-16 did not withstand a dismissal challenge; the conduct involved the equity's use of its position as a senior creditor to pressure the development firm into a transaction with terms disproportionately beneficial to the equity. Rhodes v. Silkroad Equity, LLC, - A.2d - (Del. Ch. July 11, 2007).

Section Remedial as Well as Punitive. - This section is partially punitive in nature in that it clearly serves as a deterrent to future violations; but it is also remedial for other reasons, among them the fact that it encourages private enforcement and the fact that it provides a remedy for aggrieved parties. Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981).

This section is both remedial and punitive in nature. Seafare Corp. v. Trenor Corp., 88 N.C. App. 404, 363 S.E.2d 643, cert. denied, 322 N.C. 114, 367 S.E.2d 917 (1988).

But while this section is punitive, it is not a penal statute. United Roasters, Inc. v. Colgate-Palmolive Co., 485 F. Supp. 1049 (E.D.N.C. 1980), aff'd, 649 F.2d 985 (4th Cir. 1981).

Statute Is Not Intended as a Penalty. - It would not be proper for the North Carolina Appeals Court to strain to infer that the General Assembly meant this section to be a penalty where, in the preceding statutory section, the General Assembly has expressly created a "penalty" denominated as such and reserved the authority to enforce the "penalty" to the State's chief law enforcement officer. The language of G.S. 75-15.2 is sufficiently particular for the court to conclude that had the General Assembly intended its sister provision, G.S. 75-16, also to be a "penalty," the General Assembly would have expressly provided for a second "penalty." Holley v. Coggin Pontiac, Inc., 43 N.C. App. 229, 259 S.E.2d 1, cert. denied, 298 N.C. 806, 261 S.E.2d 919 (1979).

Plaintiffs may not utilize the North Carolina Unfair and Deceptive Trade Practices Act to create a private right of action where none exists and thereby circumvent the intent of the legislature to have the honesty requirement in the enforcement section of the North Carolina Clean Water Act enforced as provided for in that section; the Unfair and Deceptive Trade Practices Act was created to regulate, among other things, deceptive behavior in the permitting process under the Clean Water Act, and it provides the exclusive statutory remedy for violation thereof. Brinkman v. Barrett Kays & Assocs., P.A., 155 N.C. App. 738, 575 S.E.2d 40 (2003).

Inapplicability to Cases Involving Innocent and Unintentional Infringement of Unregistered Trademarks. - This section and G.S. 75-1.1 were not intended to apply to cases involving innocent and unintentional infringement of unregistered trademarks. Sideshow, Inc. v. Mammoth Records, Inc., 751 F. Supp. 78 (E.D.N.C. 1990).

Failure to Prove Unfair Claims Practices Does Not Necessitate Judgment Against Claim for Unfair Trade Practices. - Award of treble damages and attorney fees under the North Carolina Unfair and Deceptive Trade Practices Act was not precluded by earlier summary judgment for the insurer on insured's claim under the North Carolina Unfair Claims Settlement Practices Act; failure to prove unfair claims practices does not independently necessitate judgment as a matter of law against a related claim for unfair trade practices. High Country Arts & Craft Guild v. Hartford Fire Ins. Co., 126 F.3d 629 (4th Cir. 1997).

Accrual of Action. - A cause of action for unfair and deceptive trade practices under this section accrues when the right to institute and maintain a suit arises, or when the violation occurs. Hinson v. United Fin. Servs., Inc., 123 N.C. App. 469, 473 S.E.2d 382 (1996).

Postjudgment Interest. - This section provides for postjudgment interest on judgments for money damages generally, including a judgment for treble damages, until the judgment is paid. Custom Molders, Inc. v. American Yard Prods., Inc., 342 N.C. 133, 463 S.E.2d 199 (1995).

If a violation of this Chapter is found, treble damages must be awarded. Bhatti v. Buckland, 328 N.C. 240, 400 S.E.2d 440 (1991).

Interest Included in Costs Trebled. - Where, at the time the contract between the parties was made, it was reasonable to expect that if, as a result of defendant's breach, plaintiff was required to spend an additional $15,727.11 over and above the original contract price to complete the log home, additional financing would be necessary, the interest was part of the cost of negotiating new financing and was foreseeable as a natural and contemplated result of borrowing money; therefore, these costs were a proximate result of defendant's breach and were entitled to be recovered with the principal of the loan and the combined amount trebled pursuant to this section. Quate v. Caudle, 95 N.C. App. 80, 381 S.E.2d 842, cert. denied, 325 N.C. 709, 388 S.E.2d 462 (1989).

Trebling Damages Before Adding Damages for Another Claim. - Plaintiffs who proved that defendant insurer violated both G.S. 75-1.1 and G.S. 58-63-15(11) were entitled to damages for the G.S. 58-63-15(11) claim plus treble damages for the G.S. 75-1.1 claim, not three times the sum of the two claims. Gray v. North Carolina Ins. Underwriting Ass'n, 352 N.C. 61, 529 S.E.2d 676 (2000).

Trebling Damages Before Deducting Set-Off. - Trial court committed no error by trebling the damages awarded before deducting the set-off amount stipulated by the parties as due and owing on defendant's counterclaim. Washburn v. Vandiver, 93 N.C. App. 657, 379 S.E.2d 65 (1989).

Deception of Debtor Who Lost Use of Retirement Fund. - Practices and actions of credit union in deceiving borrower into thinking that credit union had a valid, enforceable security interest in his retirement account by inserting the word "retirement" in the "other collateral" block on front of loan documents and having debtor sign documents at the time of making his first loan, which authorized the sending of employee's retirement checks to the credit union and depositing therein and the filing away of these forms and applying them to all loans thereafter made violated public policy of protecting the retirement accounts of teachers and other State employees, having the tendency to deceive them regarding their rights as to their retirement accounts and collectively constitute unfair and deceptive trade practices; since debtor was damaged as a result of such practices in that he lost the ability to use his retirement fund for his own needs, including eventual retirement, he was entitled to recover treble damages and attorney's fees. Petersen v. State Employees Credit Union (In re Kittrell), 115 Bankr. 873 (Bankr. M.D.N.C. 1990).

Trustee, as Successor in Interest of Debtor's Estate, Could Recover Damages and Fees. - Where lending and collection practices of the credit union collectively constituted unfair and deceptive trade practices pursuant to G.S. 75-1.1 and where the credit union willfully engaged in unfair and deceptive trade practices, and that the debtor was deceived and damaged as a result thereof, trustee, as the successor in interest of the debtor's claims against the credit union was therefore entitled to recover treble damages and attorneys' fees pursuant to this section and G.S. 75-16.1 on behalf of the debtor's estate. Petersen v. State Employees Credit Union (In re Kittrell), 115 Bankr. 873 (Bankr. M.D.N.C. 1990).

Violation of Federal Copyright Law. - The treble damages provision only authorizes the trebling of actual damages found to have resulted from violations of the Unfair and Deceptive Trade Practice Act. It does not purport to authorize trebling of either actual or statutory damages found recoverable for parallel violations of federal copyright law. Nintendo of Am., Inc. v. Aeropower Co., 34 F.3d 246 (4th Cir. 1994).

Insurance Company Violation Shown as a Matter of Law. - Insurance company which engaged in the act or practice of not attempting in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability had become reasonably clear, G.S. 58-63-15(11)(f), also violated G.S. 75-1.1, as a matter of law, without the necessity of an additional showing of frequency indicating a "general business practice," and allegations to that effect sufficiently stated an unfair and deceptive trade practices (UDTP) claim; while insureds' claims for breach of contract, breach of fiduciary duty, and bad faith were barred by the three-year statute of limitations, their UDTP claim was separate and distinct from the claims on the underlying insurance policy, was thus governed by the G.S. 75-16.2 four-year statute of limitations applicable to such claims, and was therefore timely. Page v. Lexington Ins. Co., 177 N.C. App. 246, 628 S.E.2d 427 (2006).

Accounting Actions May Have Been Considered Unfair Trade Practices. - Father was hired to provide accounting services to a partnership, and his actions in improperly keeping and maintaining accounting records may have been considered unfair practices in or affecting commerce; further, because the jury found that the father breached a fiduciary duty, not a mere contractual duty, his contention that mere breach of contract was insufficient to show an unfair trade practice was rejected. A treble damages award against the father was proper. White v. Thompson, 196 N.C. App. 568, 676 S.E.2d 104 (2009), aff'd by 364 N.C. 47, 691 S.E.2d 676, 2010 N.C. LEXIS 349 (2010).

Applied in Mayton v. Hiatt's Used Cars, Inc., 45 N.C. App. 206, 262 S.E.2d 860 (1980); Martin v. Pilot Indus., 632 F.2d 271 (4th Cir. 1980); Kent v. Humphries, 50 N.C. App. 580, 275 S.E.2d 176 (1981); Smith v. King, 52 N.C. App. 158, 277 S.E.2d 875 (1981); North Carolina Nat'l Bank v. Carter, 71 N.C. App. 118, 322 S.E.2d 180 (1984); Coble v. Richardson Corp., 71 N.C. App. 511, 322 S.E.2d 817 (1984); Rodgers Bldrs., Inc. v. McQueen, 76 N.C. App. 16, 331 S.E.2d 726 (1985); Bunting v. Perdue, Inc., 611 F. Supp. 682 (E.D.N.C. 1985); Cotton v. Stanley, 86 N.C. App. 534, 358 S.E.2d 692 (1987); Southern Pines Chrysler-Plymouth, Inc. v. Chrysler Corp., 826 F.2d 1360 (4th Cir. 1987); United Labs., Inc. v. Kuykendall, 102 N.C. App. 484, 403 S.E.2d 104 (1991); Malone v. Topsail Area Jaycees, Inc., 113 N.C. App. 498, 439 S.E.2d 192 (1994); Adams v. Jones, 114 N.C. App. 256, 441 S.E.2d 699 (1994); State Props., L.L.C. v. Ray, 155 N.C. App. 65, 574 S.E.2d 180 (2002), cert. denied, 356 N.C. 694, 577 S.E.2d 889 (2003); DIRECTV, Inc. v. Cephas, 294 F. Supp. 2d 760 (M.D.N.C. 2003); Teague v. Bayer AG, 195 N.C. App. 18, 671 S.E.2d 550 (2009); Noble v. Hooters of Greenville, LLC, 199 N.C. App. 163, 681 S.E.2d 448 (2009), review denied, 363 N.C. 806, LEXIS 322 (2010); MRD Motorsports, Inc. v. Trail Motorsports, LLC, 204 N.C. App. 572, 694 S.E.2d 517 (2010); Tradewinds Airlines, Inc. v. C-S Aviation Servs., 222 N.C. App. 834, 733 S.E.2d 162 (2012), review denied, 743 S.E.2d 189, 2013 N.C. LEXIS 531 (2013).

Cited in Waldron Buick Co. v. GMC, 254 N.C. 117, 118 S.E.2d 559 (1961); Ramsey v. Camp, 254 N.C. 443, 119 S.E.2d 209 (1961); Parsons v. Bailey, 30 N.C. App. 497, 227 S.E.2d 166 (1976); Ray v. United Family Life Ins. Co., 430 F. Supp. 1353 (W.D.N.C. 1977); Travelers Ins. Co. v. Ryder Truck Rental, Inc., 34 N.C. App. 379, 238 S.E.2d 193 (1977); Love v. Pressley, 34 N.C. App. 503, 239 S.E.2d 574 (1977); Anderson v. Pamlico Chem. Co., 470 F. Supp. 12 (E.D.N.C. 1977); Nash County Bd. of Educ. v. Biltmore Co., 464 F. Supp. 1027 (E.D.N.C. 1978); Nash County Bd. of Educ. v. Biltmore Co., 464 F. Supp. 1027 (E.D.N.C. 1978); CF Indus., Inc. v. Transcontinental Gas Pipe Line Corp., 448 F. Supp. 475 (W.D.N.C. 1978); Greenway v. North Carolina Farm Bureau Mut. Ins. Co., 35 N.C. App. 308, 241 S.E.2d 339 (1978); Bache Halsey Stuart, Inc. v. Hunsucker, 38 N.C. App. 414, 248 S.E.2d 567 (1978); Harrington Mfg. Co. v. Powell Mfg. Co., 38 N.C. App. 393, 248 S.E.2d 739 (1978); Burgess v. North Carolina Farm Bureau Mut. Ins. Co., 44 N.C. App. 441, 261 S.E.2d 234 (1980); Wachovia Bank & Trust Co. v. Smith, 44 N.C. App. 685, 262 S.E.2d 646 (1980); Hammers v. Lowe's Cos., 48 N.C. App. 150, 268 S.E.2d 257 (1980); Taylor v. Hayes, 302 N.C. 627, 276 S.E.2d 369 (1981); Old Dominion Distribs., Inc. v. Bissette, 56 N.C. App. 200, 287 S.E.2d 409 (1982); American Travel Corp. v. Central Carolina Bank & Trust Co., 57 N.C. App. 437, 291 S.E.2d 892 (1982); ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42 (4th Cir. 1983); Simmons v. C.W. Myers Trading Post, Inc., 68 N.C. App. 511, 315 S.E.2d 75 (1984); Day v. Coffey, 68 N.C. App. 509, 315 S.E.2d 96 (1984); Lindner v. Durham Hosiery Mills, Inc., 761 F.2d 162 (4th Cir. 1985); Baker v. Log Sys., 75 N.C. App. 347, 330 S.E.2d 632 (1985); Skinner v. E.F. Hutton & Co., 314 N.C. 267, 333 S.E.2d 236 (1985); L.C. Williams Oil Co. v. Exxon Corp., 625 F. Supp. 477 (M.D.N.C. 1985); Pearce v. American Defender Life Ins. Co., 316 N.C. 461, 343 S.E.2d 174 (1986); United Va. Bank v. Air-Lift Assocs., 79 N.C. App. 315, 339 S.E.2d 90 (1986); Ehlenbeck v. Patton, 58 Bankr. 149 (W.D.N.C. 1986); Yadkin Valley Bank & Trust Co. v. Northwestern Bank, 80 N.C. App. 716, 343 S.E.2d 439 (1986); Jackson v. Hollowell Chevrolet Co., 81 N.C. App. 150, 343 S.E.2d 577 (1986); Opsahl v. Pinehurst, Inc., 81 N.C. App. 56, 344 S.E.2d 68 (1986); American Marble Corp. v. Crawford, 84 N.C. App. 86, 351 S.E.2d 848 (1987); Sampson-Bladen Oil Co. v. Walters, 86 N.C. App. 173, 356 S.E.2d 805 (1987); United Labs., Inc. v. Kuykendall, 87 N.C. App. 296, 361 S.E.2d 292 (1987); Mosley & Mosley Bldrs., Inc. v. Landin Ltd., 87 N.C. App. 438, 361 S.E.2d 608 (1987); Robertson v. Boyd, 88 N.C. App. 437, 363 S.E.2d 672 (1988); Miller v. Ensley, 88 N.C. App. 686, 365 S.E.2d 11 (1988); Ken-Mar Fin. v. Harvey, 90 N.C. App. 362, 368 S.E.2d 646 (1988); Taylor v. Foy, 91 N.C. App. 82, 370 S.E.2d 442 (1988); Warfield v. Hicks, 91 N.C. App. 1, 370 S.E.2d 689 (1988); Hajmm Co. v. House of Raeford Farms, Inc., 94 N.C. App. 1, 379 S.E.2d 868 (1989); Overcash v. Blue Cross & Blue Shield, 94 N.C. App. 602, 381 S.E.2d 330 (1989); Shell Oil Co. v. Commercial Petro., Inc., 733 F. Supp. 40 (W.D.N.C. 1989); River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 388 S.E.2d 538 (1990); American Aluminum Prods., Inc. v. Pollard, 97 N.C. App. 541, 389 S.E.2d 589 (1990); Bhatti v. Buckland, 99 N.C. App. 750, 394 S.E.2d 192 (1990); Petersen v. State Employees Credit Union (In re Kittrell), 115 Bankr. 873 (Bankr. M.D.N.C. 1990); Lapierre v. Samco Dev. Corp.,
103 N.C. App. 551, 406 S.E.2d 646 (1991); United Dominion Indus., Inc. v. Overhead Door Corp., 762 F. Supp. 126 (W.D.N.C. 1991); Anders v. Hyundai Motor Am. Corp., 104 N.C. App. 61, 407 S.E.2d 618 (1991); Perry-Griffin Found. v. Proctor, 107 N.C. App. 528, 421 S.E.2d 186 (1992); Ferris v. Haymore, 967 F.2d 946 (4th Cir. 1992); Liggett Group, Inc. v. Sunas, 113 N.C. App. 19, 437 S.E.2d 674 (1993); Jefferson-Pilot Life Ins. Co. v. Spencer, 336 N.C. 49, 442 S.E.2d 316 (1994); Isenhour v. Universal Underwriters Ins. Co., 341 N.C. 597, 461 S.E.2d 317 (1995); Broussad v. Meineke Disct. Muffler Shops, Inc., 958 F. Supp. 1087 (W.D.N.C. 1997); Edwards v. West, 128 N.C. App. 570, 495 S.E.2d 920 (1998), cert. denied, 348 N.C. 282, 501 S.E.2d 918 (1998); Jones v. Asheville Radiological Group, 129 N.C. App. 449, 500 S.E.2d 740 (1998); First Atl. Mgt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 507 S.E.2d 56 (1998); Gray v. North Carolina Ins. Underwriting Ass'n, 132 N.C. App. 63, 510 S.E.2d 396 (1999); Market Am., Inc. v. Christman-Orth, 134 N.C. App. 234, 520 S.E.2d 570 (1999); Jones v. Asheville Radiological Group, P.A., 134 N.C. App. 520, 518 S.E.2d 528 (1999); State ex rel. Easley v. Rich Food Servs., Inc., 139 N.C. App. 691, 535 S.E.2d 84 (2000); Stephenson v. Warren, 136 N.C. App. 768, 525 S.E.2d 809 (2000); Wilson v. Jefferson-Green, Inc., 136 N.C. App. 824, 526 S.E.2d 506 (2000); Byrd's Lawn & Landscaping, Inc. v. Smith, 142 N.C. App. 371, 542 S.E.2d 689 (2001); S. Atl. Ltd. P'ship of Tenn. v. Riese, 284 F.3d 518 (4th. Cir. 2002); Bell v. E. Davis Int'l, Inc., 197 F. Supp. 2d 449 (W.D.N.C. 2002); Anderson v. Lancaster Aviation, Inc., 220 F. Supp. 2d 524 (M.D.N.C. 2002); Blankenship v. Town & Country Ford, Inc., 155 N.C. App. 161, 574 S.E.2d 132 (2002), cert. denied, appeal dismissed, 357 N.C. 61, 579 S.E.2d 384 (2003); Volumetrics Med. Imaging, Inc. v. ATL Ultrasound, Inc., 243 F. Supp. 2d 386 (M.D.N.C. 2003); Wilson v. Blue Ridge Elec. Mbrshp. Corp., 157 N.C. App. 355, 578 S.E.2d 692 (2003); Lippard v. Unumprovident Corp., 261 F. Supp. 2d 368 (M.D.N.C. 2003); Jacobs v. Physicians Weight Loss Ctr. of Am., Inc., 173 N.C. App. 663, 620 S.E.2d 232 (2005); Business Cabling, Inc. v. Yokeley, 182 N.C. App. 657, 643 S.E.2d 63 (2007), review denied, 361 N.C. 567, 650 S.E.2d 599 (2007); Hendrix v. Advanced Metal Corp., 195 N.C. App. 436, 672 S.E.2d 745 (2009); White v. Thompson, 364 N.C. 47, 691 S.E.2d 676 (2010); Caldwell v. Smith, 203 N.C. App. 725, 692 S.E.2d 483 (2010); Bumpers v. Cmty. Bank of N. Va., 364 N.C. 195, 695 S.E.2d 442 (June 17, 2010); Bogovich v. Embassy Club of Sedgefield, Inc., 211 N.C. App. 1, 712 S.E.2d 257 (2011); In re Fifth Third Bank, Nat'l Ass'n, 216 N.C. App. 482, 716 S.E.2d 850 (2011); Bumpers v. Cmty. Bank of N. Va., 215 N.C. App. 307, 718 S.E.2d 408 (2011), rev'd 747 S.E.2d 220, 2013 N.C. LEXIS 795 (2013); In re Fifth Third Bank, N.A., 217 N.C. App. 199, 719 S.E.2d 171 (2011); Simmons v. Kross Lieberman & Stone, Inc., 228 N.C. App. 425, 746 S.E.2d 311 (2013); Akshar Distrib. Co. v. Smoky's Mart Inc., - N.C. App. - , 837 S.E.2d 621 (2020).

II. PRACTICE AND PROCEDURE.

Who May Bring Action. - The contention that an action for the violation of this Chapter resulting in injury to a party's business can only be brought by the Attorney General is contrary to the provisions of this section. Bennett v. Southern Ry., 211 N.C. 474, 191 S.E. 240 (1937).

Daughter had standing to maintain an unfair and deceptive trade practices claim under G.S. 75-16, 143-143.12(c), and 143-143.9(2) against a manufacturer as: (1) her father bought her a defective mobile home, (2) she was the person who selected the interior details for the home, who planned to live in the home, and who was going to make the monthly installment payments, (3) she was a consumer of the mobile home supplied by a manufacturer, and (4) when the manufacturer supplied a defective home, the daughter suffered a resulting injury. Walker v. Fleetwood Homes of N.C. Inc., 362 N.C. 63, 653 S.E.2d 393 (2007).

Trial court erred in concluding that the owners of a corporation lacked standing because the owners fell within the scope of the statute because the owners asserted that they were injured by an unfair and deceptive trade practice directed at the owners. Hedgepeth v. Lexington State Bank, 228 N.C. App. 49, 744 S.E.2d 138 (2013).

Who Are Protected. - Individual consumers are not the only ones protected and provided a remedy under G.S. 75-1.1 and this section. Olivetti Corp. v. Ames Bus. Sys., 81 N.C. App. 1, 344 S.E.2d 82 (1986), aff'd in part and rev'd in part on other grounds, 319 N.C. 534, 356 S.E.2d 578 (1987).

The State of North Carolina is not a person, firm, or corporation within the meaning of this section. Sperry Corp. v. Patterson, 73 N.C. App. 123, 325 S.E.2d 642 (1985).

The State is not a person, firm or corporation that can be sued under this section. F. Ray Moore Oil Co. v. State, 80 N.C. App. 139, 341 S.E.2d 371, cert. denied, 317 N.C. 333, 346 S.E.2d 139 (1986).

But the State as Consumer Can Take Advantage of This Section. - There is no reason why the State as a consumer cannot take advantage of this section if it is the victim of an unfair or deceptive trade practice. F. Ray Moore Oil Co. v. State, 80 N.C. App. 139, 341 S.E.2d 371, cert. denied, 317 N.C. 333, 346 S.E.2d 139 (1986).

Rooker-Feldman prohibited a bankruptcy court from reconsidering whether creditors misrepresented their party-in-interest status under the North Carolina Unfair and Deceptive Trade Practices Act, G.S. 75-16. Almanzar v. Bank of Am., NA (In re Almanzar), - Bankr. - (Bankr. M.D.N.C. Oct. 9, 2012).

Plaintiff Estopped in State Deceptive Trade Practices Claim Where Federal Claim Dismissed on Merits. - Family business was collaterally estopped from relitigating the element of causation in its deceptive trade practices claim where it sought damages for the same injuries in a federal action alleging a violation of RICO, and in dismissing the RICO claim, the federal court held that defendants' illegal conduct with respect to a midway contract was not the proximate cause of the business's injury. Strates Shows, Inc. v. Amusements of Am., Inc., 184 N.C. App. 455, 646 S.E.2d 418 (2007).

Standing of Dealer to Sue Distributor. - G.S. 75-1.1 was applicable to the distributor-dealer relationship between defendant and plaintiff, and plaintiff dealer had standing to sue distributor under this section. Olivetti Corp. v. Ames Bus. Sys., 81 N.C. App. 1, 344 S.E.2d 82 (1986), aff'd in part and rev'd in part on other grounds, 319 N.C. 534, 356 S.E.2d 578 (1987).

Failure to State a Claim. - Bankruptcy court dismissed a Chapter 11 trustee's claim that a bank committed unfair and deceptive trade practices, in violation of G.S. 75-16, when it allowed a corporation that subsequently declared Chapter 11 bankruptcy to carry a substantial loan balance without any repayment of principal, allowed the corporation to make interest only payments after it became insolvent, allowed the corporation to make late loan payments without accelerating the debt it owed or demanding payment, and allowed the corporation to incur more trade debt while simultaneously depleting its assets. Those allegations, even if true, did not establish deceptive acts or practices. Burns v. First Bank (In re Southeastern Materials, Inc.), 452 B.R. 170 (Bankr. M.D.N.C. 2011).

The portion of a Chapter 13 debtor's claim under the North Carolina Unfair and Deceptive Trade Practices Act, G.S. 75-16, that creditors engaged unfair and deceptive trade practices by failing to notify her of the change in loan servicing was not decided by a prior State court action. Thus, the court granted the debtor leave to amend when the complaint failed to establish a prima facie claim. Almanzar v. Bank of Am., NA (In re Almanzar), - Bankr. - (Bankr. M.D.N.C. Oct. 9, 2012).

What Must Be Proved In Order to Prevail. - In order to prevail under G.S. 75-1.1 and this section, trustee must show that (1) the acts or practices in question are "in or affecting commerce"; (2) the acts or practices in question had the capacity or tendency to deceive or were unfair; and (3) the debtor suffered actual injury as a proximate result of credit union's acts or practices. Petersen v. State Employees Credit Union (In re Kittrell), 115 Bankr. 873 (Bankr. M.D.N.C. 1990).

Causal Relation Between Violation and Injury Must Be Shown. - Former G.S. 75-5 condemns a contract of sale only when such sale is made "upon the condition" that the purchaser shall not deal in the goods or merchandise of a competitor of the seller, and in order for a party to recover damages for a breach of the statute under the provisions of this section, he must show a violation of the statute and a causal relation between the violation and injury to his business. Lewis v. Archbell, 199 N.C. 205, 154 S.E. 11 (1930). See Bennett v. Southern Ry., 211 N.C. 474, 191 S.E. 240 (1937).

Because the buyers to a contract with the seller did not possess any contract rights due to the insufficiency of their consideration, they could not allege damages by virtue of any alleged unfair and deceptive acts of the seller relating to that alleged contract; further, because the buyers did not allege that the seller intended to deceive them from the outset, there was no allegation that an unfair or deceptive act by the seller induced the buyers either to pay the deposits mentioned in the alleged option contract or to leave the deposits with the seller's agent rather than withdrawing them. McLamb v. T.P. Inc., 173 N.C. App. 586, 619 S.E.2d 577 (2005).

Borrowers were not entitled to summary judgment on their misrepresentation claim against a lender, alleging the lender collected a fee for a discounted loan but did not provide a discounted interest rate, because the borrowers failed to demonstrate actual and reasonable reliance on the lender's alleged misrepresentations regarding the discounted rate. Bumpers v. Cmty. Bank of N. Va., 367 N.C. 81, 747 S.E.2d 220 (2013).

Summary Judgment Improper. - Trial court erred by granting a seller summary judgment on a buyer's unfair and deceptive trade practices claim because the buyer established the necessary elements; an agent's threat to repossess a car if the buyer did not sign a second contract presented a material question as to whether the seller committed an unfair or deceptive act in or affecting commerce; if so, the resulting harm would be that the buyer was subjected to a subsequent purchase contract on disadvantageous terms. Hester v. Hubert Vester Ford, Inc., 239 N.C. App. 22, 767 S.E.2d 129 (2015).

Trial court erred by granting a seller summary judgment on a buyer's unfair and deceptive trade practices claim because the buyer established the necessary elements; the fact that the seller adamantly denied the existence of the "original" contract created a material issue of fact, and there also remained the question of whether the buyer reasonably relied on the agent's assertions that the terms of the second contract were identical to those in the "original." Hester v. Hubert Vester Ford, Inc., 239 N.C. App. 22, 767 S.E.2d 129 (2015).

Trial court erred by granting a seller summary judgment on a buyer's unfair and deceptive trade practices (UDTP) claim because the buyer established a prima facie UDTP claim regarding the formation of a contract, and the fact that she did not produce the "original" contract and did not read the subsequent contract was not necessarily dispositive; because the UDTP claim did not challenge the enforcement of the subsequent contract, quasi-estoppel did not apply. Hester v. Hubert Vester Ford, Inc., 239 N.C. App. 22, 767 S.E.2d 129 (2015).

Summary Judgment Proper. - Trial court did not err by granting a sales person summary judgment on a buyer's unfair and deceptive trade practices (UDTP) claim because the sales person's act of merely authorizing a subsequent contract alone was insufficient to maintain a UDTP or fraud claim against him; the financing terms in the subsequent contract that the sales person approved were those given to seller. Hester v. Hubert Vester Ford, Inc., 239 N.C. App. 22, 767 S.E.2d 129 (2015).

Determination of Facts and Law. - In cases under G.S. 75-1.1 and this section the jury finds facts, and based on the jury's findings, the court then determines as a matter of law whether the defendant's conduct violated G.S. 75-1.1. Chastain v. Wall, 78 N.C. App. 350, 337 S.E.2d 150 (1985), cert. denied, 316 N.C. 375, 342 S.E.2d 891 (1986).

In cases under G.S. 75-1.1 and this section, it is ordinarily for the jury to determine the facts, and based on the jury's findings, the court must then determine as a matter of law whether the defendant engaged in unfair or deceptive acts or practices in the conduct of trade or commerce. La Notte, Inc. v. New Way Gourmet, Inc., 83 N.C. App. 480, 350 S.E.2d 889 (1986), cert. denied and appeal dismissed, 319 N.C. 459, 354 S.E.2d 888 (1987); Chastain v. Wall, 78 N.C. App. 350, 337 S.E.2d 150 (1985), cert. denied, 316 N.C. 375, 342 S.E.2d 891 (1986); Medina v. Town & Country Ford, Inc., 85 N.C. App. 650, 355 S.E.2d 831 (1987), aff'd, 321 N.C. 591, 364 S.E.2d 140 (1988).

Causal Relation Is Issue of Fact for Jury. - Whether there is a causal relation between the violation of the statute and the injury complained of is an issue of fact for a jury. Ellis v. Smith-Broadhurst, Inc., 48 N.C. App. 180, 268 S.E.2d 271 (1980).

Actual Injury Must Be Proved. - As an essential element of a cause of action under this section, plaintiff must prove not only a violation of G.S. 75-1.1 by the defendants, but also that plaintiff has suffered actual injury as a proximate result of defendants' misrepresentations. Ellis v. Smith-Broadhurst, Inc., 48 N.C. App. 180, 268 S.E.2d 271 (1980); Bailey v. LeBeau, 79 N.C. App. 345, 339 S.E.2d 460, modified and aff'd, 318 N.C. 411, 348 S.E.2d 524 (1986).

Standard of Proximate Cause. - Under this section, the North Carolina courts apply the standard of proximate cause articulated in federal antitrust cases. American Rockwool, Inc. v. Owens-Corning Fiberglas Corp., 640 F. Supp. 1411 (E.D.N.C. 1986).

Statute of Limitations Prior to Enactment of G.S. 75-16.2. - An action under this section to recover treble damages for a violation of the unfair trade practices statute, G.S. 75-1.1, instituted prior to the enactment of the four-year statute of limitations of G.S. 75-16.2 on June 12, 1969, is governed by the three-year limitation of G.S. 1-52(2), not the one-year limitation of G.S. 1-54(2) applicable to actions to recover a statutory penalty. Holley v. Coggin Pontiac, Inc., 43 N.C. App. 229, 259 S.E.2d 1, cert. denied, 298 N.C. 806, 261 S.E.2d 919 (1979).

Accrual of Cause of Action. - Any breach of contract by a trademark licensor first occurred when the third party's interim injunction based on its assertion of a superior registration effectively caused a cessation of performance of the licensor's contractual obligation, which was to continuously provide the trademark for the licensee's use. Any claim for fraud or unfair trade practices also accrued no later than the date of the interim injunction. Rothmans Tobacco Co. v. Liggett Group, Inc., 770 F.2d 1246 (4th Cir. 1985).

State Court Antitrust Consent Decree Res Judicata in Federal Court on Identical Cause of Action. - There was a sufficient identity of causes of action between a state court antitrust action and a federal district court antitrust action to support a finding of res judicata based on the consent judgment in the earlier state court action, where the two suits alleged the same operative facts and the same illegal price-fixing conspiracy, and the state and federal statutes upon which the actions were based were identical except for the interstate commerce requirement of the federal statute. Nash County Bd. of Educ. v. Biltmore Co., 640 F.2d 484 (4th Cir. 1981), cert. denied, 454 U.S. 878, 102 S. Ct. 359, 70 L. Ed. 2d 188, rehearing denied, 454 U.S. 1117, 102 S. Ct. 692, 70 L. Ed. 2d 654 (1981).

Civil Action for Damages and Injunctive Relief. - While conspiracies in restraint of trade, and undertakings to destroy or injure the business of a competitor, with the purpose of attempting to fix the price when competition is removed, are made unlawful, these provisions do not prevent one whose business as a common carrier has been injured and threatened by any of the acts thus denounced from pursuing a remedy by civil action for damages and seeking the interposition of equity, if necessary to restrain wrongful acts which threaten irreparable loss. Burke Transit Co. v. Queen City Coach Co., 228 N.C. 768, 47 S.E.2d 297 (1948).

Proof of fraud would necessarily constitute an unfair or deceptive act or practice; however, the converse is not always true. La Notte, Inc. v. New Way Gourmet, Inc., 83 N.C. App. 480, 350 S.E.2d 889 (1986), cert. denied and appeal dismissed, 319 N.C. 459, 354 S.E.2d 888 (1987).

In a Chapter 11 case, a motion to dismiss a fraud claim brought by a creditor in its individual capacity was not dismissed because the complaint contained sufficient allegations to satisfy the heightened pleading requirements in Fed. R. Civ. P. 9 where the creditor contended that misrepresentations and omissions were made with intent to induce reliance, reliance occurred, and damages were the result; these allegations also supported causes of action for negligent misrepresentation and unfair and deceptive trade practices. TUG Liquidation, LLC v. Atwood (In re BuildNet, Inc.), - Bankr. - (Bankr. M.D.N.C. June 16, 2004).

A libel per se of a type impeaching a party in its business activities is an unfair or deceptive act in or affecting commerce in violation of G.S. 75-1.1, which will justify an award of damages under this section for injuries proximately caused; however, to recover, a plaintiff must have suffered actual injury as a proximate result of defendant's deceptive statement or misrepresentation. Ellis v. Northern Star Co., 326 N.C. 219, 388 S.E.2d 127 (1990).

Conducting Business During Negotiations Not Grounds for Cause of Action. - The activity complained of in count two of defendants' counterclaim did not state a cause of action for unfair or deceptive trade practice, where defendants asked that plaintiff be subject to the risk of treble damages for continuing to conduct business during the negotiation process for the purchase of plaintiff business. Chesapeake Microfilm, Inc. v. Eastern Microfilm Sales & Serv., Inc., 91 N.C. App. 539, 372 S.E.2d 901 (1988).

A mere breach of contract does not constitute an unfair or deceptive trade practice. Southern Bldg. Maintenance, Inc. v. Osborne, 127 N.C. App. 327, 489 S.E.2d 892 (1997).

Plaintiff subcontractor was not entitled to treble the $ 400,000 in compensatory damages that he was awarded for defendant contractor's breach of a hurricane debris removal contract, where there was no basis for the district court to determine that defendant's conduct was unfair or deceptive because the jury made no finding regarding what specific conduct by it gave rise to the $ 400,000 damage award. United States ex rel. S&D Land Clearing v. D'Elegance Mgmt., - F.3d - (4th Cir. July 13, 2000).

Intentional Breach of Contract. - In an action for breach of contract alleging unfair competition, the trial court properly denied treble damages where the defendant's violation of its contractual obligation was an intentional breach, but there was neither unfairness nor deception in formulation of the contract; where the jury found no deception in the circumstances of its breach; where the contract was carefully negotiated and drawn by sophisticated parties; and where there was no hint of any unfairness to either party before the defendant's cessation of performance; thus, no unfairness inhered in the circumstances of the breach within the meaning of G.S. 75-1.1 simply because the breach was intentional and not properly disclosed. United Roasters, Inc. v. Colgate-Palmolive Co., 649 F.2d 985 (4th Cir.), cert. denied, 454 U.S. 1054, 102 S. Ct. 599, 70 L. Ed. 2d 590 (1981).

Insured was properly awarded treble damages against an insured for negotiating the insured's premium payment on a life insurance policy and then refunding it, stating that no coverage ever existed, because: (1) the insurer's negotiation of the insured's payment, after it knew of the insured's health problems, was inconsistent with enforcing a "good health" provision of the policy and waived that provision; (2) the insurer could not claim accord and satisfaction based on the insured's negotiation of the refund check, because that negotiation was based on the insurer's misrepresentation that the insured was never covered, when it knew he was; (3) and this conduct was an unfair and deceptive practice under G.S. 75-1.1 and G.S. 58-63-15(1). Cullen v. Valley Forge Life Ins. Co., 161 N.C. App. 570, 589 S.E.2d 423 (2003).

Breach of Warranties in Sale of House. - Breach of implied and express warranties alone in the sale of a house does not constitute a "violation of the provisions" of this Chapter. Hence, it is inappropriate to treble damages resulting solely from breach of warranties. Stone v. Paradise Park Homes, 37 N.C. App. 97, 245 S.E.2d 801, cert. denied, 295 N.C. 653, 248 S.E.2d 257 (1978).

Relief from Default Judgment. - Guarantor was not entitled to relief, under G.S. 1A-1, N.C. R. Civ. P. 60(b)(6), from a default judgment awarding treble damages on grounds the complaint did not state claims for relief against the guarantor because (1) treble damages were awarded pursuant to the Uniform Deceptive Trade Practices Act, G.S. 75-1 et seq., and (2) the complaint set forth ample allegations supporting the claim against the guarantor. Brown v. Cavit Scis., Inc., 230 N.C. App. 460, 749 S.E.2d 904 (2013).

Claim Not Established. - Borrowers' excessive pricing claim under the statute prohibiting unfair or deceptive acts, in connection with closing fees, failed because the closing fees paid by the borrowers were not "unreasonably excessive"; the borrowers entered into their loan transactions freely and without compulsion and were aware of other lending and closing options but declined to use them. Bumpers v. Cmty. Bank of N. Va., 367 N.C. 81, 747 S.E.2d 220 (2013).

III. DAMAGES.

.

Application of the treble damage penalty provided by this section to extraterritorial conduct violates the Commerce Clause, and is precluded thereby. American Rockwool, Inc. v. Owens-Corning Fiberglas Corp., 640 F. Supp. 1411 (E.D.N.C. 1986).

Treble Damages Not Subject to Judicial Discretion. - The award of treble damages is a right of the successful plaintiff and is not subject to judicial discretion. Atlantic Purchasers, Inc. v. Aircraft Sales, Inc., 705 F.2d 712 (4th Cir. 1983), cert. denied, 464 U.S. 848, 104 S. Ct. 155, 78 L. Ed. 2d 143 (1983).

Damages assessed pursuant to G.S. 75-1.1 are trebled automatically. Pinehurst, Inc. v. O'Leary Bros. Realty, 79 N.C. App. 51, 338 S.E.2d 918, cert. denied, 316 N.C. 378, 342 S.E.2d 896 (1986).

Once a plaintiff has established the right to recover under G.S. 75-1.1, the award of treble damages pursuant to this section is automatic and not discretionary. Peterson v. Bozzano, 183 Bankr. 735 (Bankr. M.D.N.C. 1995).

Chapter 7 debtor's conduct rose to the level of fraud and thus, qualified as a deceptive act under the Unfair and Deceptive Trade Practices Act where his fraudulent statements regarding a real estate project induced the creditors to invest, and it was clear that his actions were made in or affecting commerce and caused injury to the creditors. Thus, they were entitled to damages, which were trebled. Dean v. Brown (In re Brown), - Bankr. - (Bankr. W.D.N.C. Oct. 8, 2013).

Prejudgment Interest Not Trebled. - It is appropriate under this section to treble only the verdict awarded by the jury and not the prejudgment interest assessable pursuant to G.S. 24-5(b). Market Am., Inc. v. Rossi, 104 F. Supp. 2d 606 (M.D.N.C. 2000), aff'd, 238 F.3d 413 (4th Cir. 2000).

Plaintiff whose damages were trebled pursuant to G.S. 75-16 of the North Carolina Unfair and Deceptive Trade Practices Act [G.S. 75-1 et seq.] was awarded prejudgment interest on the amount of compensatory damages, $106.25 million, and postjudgment interest on the trebled amount, $318.75 million. Volumetrics Med. Imaging, Inc. v. ATL Ultrasound, Inc., - F. Supp. 2d - (M.D.N.C. July 10, 2003).

In a case arising from the termination of an employee, pre-judgment interest should not have been awarded based on treble damages arising from a violation of G.S. 75-1.1 due to a breach of contract; rather, the pre-judgment interest should have been awarded on the actual damages for breach of contract. Johnson v. Colonial Life & Accident Ins. Co., 173 N.C. App. 365, 618 S.E.2d 867 (2005).

Because treble damages are both punitive and remedial, a treble damages award of $180,000, which was $70,000 over and above plaintiff's compensatory damages ($60,000) and attorney fees ($50,000), was not an abuse of discretion. Leftwich v. Gaines, 134 N.C. App. 502, 521 S.E.2d 717 (1999).

Plaintiff establishing a violation of G.S. 75-1.1 is not entitled to recover both punitive damages and treble damages under this section. He is entitled to recover actual damages trebled and to an appropriate award of attorney's fees. Jennings Glass Co. v. Brummer, 88 N.C. App. 44, 362 S.E.2d 578 (1987).

Punitive damages may be awarded only where the wrong is done willfully or under circumstances of rudeness, oppression or in a manner which evidences a reckless and wanton disregard of the plaintiff 's rights. Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342 (1975).

Because G.S. 75-1.1 is in derogation of the common law causes of action for unfair or deceptive trade practices and this section imposes a penalty, strict construction is in order. Thus, absent explicit legislative inclusion, punitive damages should be excluded. Pinehurst, Inc. v. O'Leary Bros. Realty, 79 N.C. App. 51, 338 S.E.2d 918, cert. denied, 316 N.C. 378, 342 S.E.2d 896 (1986).

Trial court erred in entering a directed verdict on a homeowner's unfair and deceptive trade practices (UDTP) claim against a contractor because the approach the trial court followed in dismissing the UDTP claim but allowing counsel to argue it in connection with punitive damages was in error; because the jury found in favor of the homeowner on her fraud claim, and the contractor made no attempt to argue that it was exempt from the provisions of G.S. 75-1.1, the homeowner was entitled to recover treble damages under G.S. 75-16. Jones v. Harrelson & Smith Contrs., LLC, 194 N.C. App. 203, 670 S.E.2d 242 (2008), aff'd, 363 N.C. 371, 677 S.E.2d 453 (2009).

Claim based on the Debt Collection Act will not support punitive damages. Holloway v. Wachovia Bank & Trust Co., 339 N.C. 338, 452 S.E.2d 233 (1994).

Bankruptcy court denied creditor's request to strike a treble damages claim from debtors' complaint under the North Carolina Debt Collection Act (NCDCA), finding that the treble damages statute applied not only where damages were awarded under the North Carolina Unfair and Deceptive Trade Practice Act but also under the NCDCA, as an earlier specific prohibition against treble damages had been removed from the relevant statute. Creech v. Ormond Oil & Gas Co. (In re Creech), 513 B.R. 482 (Bankr. E.D.N.C. 2014).

Election Between Punitive Damages and Treble Damages. - Actions may assert both G.S. 75-1.1 violations and fraud based on the same conduct or transaction, and plaintiffs in such actions may receive punitive damages or be awarded treble damages, but may not have both. It would be manifestly unfair to require plaintiffs in such cases to elect before the jury has answered the issues and the trial court has determined whether to treble the compensatory damages found by the jury, and such election should be allowed in the judgment. Mapp v. Toyota World, Inc., 81 N.C. App. 421, 344 S.E.2d 297, cert. denied, 318 N.C. 283, 347 S.E.2d 464 (1986).

The law in North Carolina does not hold that a plaintiff must elect against a Chapter 75 violation in its entirety. It merely holds that plaintiff must elect between punitive damages and compensatory damages that are trebled pursuant to this section. United Labs., Inc. v. Kuykendall, 102 N.C. App. 484, 403 S.E.2d 104 (1991), aff'd, 335 N.C. 183, 437 S.E.2d 374 (1993).

Plaintiffs could have elected to recover trebled $15,000 compensatory reward ($45,000) for defendants' violation of G.S. 75-1.1 and recovered nominal damages of $1.00 for tortious interference claim, or plaintiffs could have elected to take the nominal and punitive damages awarded for the tortious interference claim and the compensatory damages awarded for the violation of G.S. 75-1.1 Plaintiff chose the latter. The trial court properly allowed the election of damages from the allocated award. United Labs., Inc. v. Kuykendall, 102 N.C. App. 484, 403 S.E.2d 104 (1991), aff'd, 335 N.C. 183, 437 S.E.2d 374 (1993).

Election Between Punitive Damages and Treble Damages - Where a jury awarded plaintiff $106.25 million in compensatory damages and $45 million in punitive damages for common law fraud, together with $1 million for violation of the North Carolina Unfair and Deceptive Trade Practices Act (UDTPA) [G.S. 75-1 et seq.], the compensatory damages for fraud were subject to trebling under the UDTPA because fraud in connection with commerce constituted a per se violation of the UDTPA; however, plaintiff could not recover both the jury's fraud award and its UDTPA award, as the same conduct gave rise to both claims, nor could plaintiff recover both treble damages and the jury's punitive damages award. Volumetrics Med. Imaging, Inc. v. ATL Ultrasound, Inc., - F. Supp. 2d - (M.D.N.C. July 10, 2003).

Wrongful Eviction Actions. - The prohibition against punitive or treble damages in wrongful eviction actions contained in G.S. 42-25.9(a) of the Ejectment of Residential Tenants Act does not preclude tenants from recovering treble damages under this section and attorney's fees under G.S. 75-16.1 of the Unfair and Deceptive Practices Act. Stanley v. Moore, 339 N.C. 717, 454 S.E.2d 225 (1995).

Tortious Interference and Compensatory Damages. - There is no double redress for a single wrong and no inconsistency when a plaintiff recovers untrebled compensatory damages under this Chapter and punitive damages under a tortious interference claim. United Lab., Inc. v. Kuykendall, 335 N.C. 183, 437 S.E.2d 374 (1993).

Surety Not Liable for Trebled Portion of Damages. - Where dealer did not pay buyer's monthly car payments as required by agreement, the total of the unpaid payments was the amount "suffered" by the plaintiff; she did not "suffer" further compensatory damages. Thus under G.S. 20-288 the surety was not liable for the trebled portion of damages imposed under this section. Tomlinson v. Camel City Motors, Inc., 330 N.C. 76, 408 S.E.2d 853 (1991).

Measure of Damages. - Where a retailer was determined to have improperly manufactured and sold cookware that was deceptively similar to that of another company, the company's profits on the disputed cookware were properly treated as actual damages subject to trebling. Belk, Inc. v. Meyer Corp., 679 F.3d 146 (4th Cir. 2012).

An action for unfair or deceptive acts or practices is a distinct action apart from fraud, breach of contract, or breach of warranty. Since the remedy was created partly because those remedies often were ineffective, it would be illogical to hold that only those methods of measuring damages could be used. To rule otherwise would produce the anomalous result of recognizing that although G.S. 75-1.1 creates a cause of action broader than traditional common-law actions, this section limits the availability of any remedy to cases where some recovery at common law would probably also lie. Bernard v. Central Carolina Truck Sales, Inc., 68 N.C. App. 228, 314 S.E.2d 582, cert. denied, 311 N.C. 751, 321 S.E.2d 126 (1984).

For discussion of measure of damages for fraudulent inducement, see Bernard v. Central Carolina Truck Sales, Inc., 68 N.C. App. 228, 314 S.E.2d 582, cert. denied, 311 N.C. 751, 321 S.E.2d 126 (1984).

Single-premium credit insurance (SPCI) sold by a bank subsidiary to borrowers with mortgage loans greater than 15 years in length did not have any value because the contracts were void as against public policy, and therefore the subsidiary was not entitled to reduce the amount of damages determined by the trial court by any amount attributable to the sale of the unlawful insurance product; accordingly, to make the borrowers whole, the trial court properly held that the measure of damages was to include the premium, interest, fees, and points associated with the purchase and financing of the SPCI. Richardson v. Bank of Am., N.A., 182 N.C. App. 531, 643 S.E.2d 410 (2007), petition allowed as to additional issues 361 N.C. 569, 650 S.E.2d 439 (2007).

When consumers alleged that a debt collector violated various statutory provisions of G.S. 75-50 et seq., those claims did not have to be dismissed for a failure to state actual damages because a consumer sufficiently offered evidence of injury proximately caused by the collector's harassing telephone calls when the evidence tended to show that the calls caused the consumer emotional distress; the consumer did not have to show out-of-pocket damages, as that would be inconsistent with G.S. 75-16, providing that a person "injured" as a result of conduct violating G.S. Ch. 75 had a right of action on account of such injury done, and if damages were assessed, judgment would be entered for treble the amount fixed by a verdict, so the statute distinguished between "injury" and "damages." Williams v. HomEq Servicing Corp., 184 N.C. App. 413, 646 S.E.2d 381 (2007).

When a co-owner of a corporation was sued for misappropriating corporate funds, it was error to award treble damages against the co-owner under the Unfair and Deceptive Trade Practices Act because the co-owner's actions were not "in or affecting commerce," as the co-owner's conduct did not occur in dealings with other market participants, since the acts occurred within a single entity through payments made directly to the co-owner and family members as well as payments made to cover some of the co-owner's own personal expenses. Alexander v. Alexander, 250 N.C. App. 511, 792 S.E.2d 901 (2016).

Motion to Compel Tax Returns for Purposes of Punitive Damage Award Denied. - Plaintiff failed to overcome the qualified privilege against the disclosure of defendants' tax returns in an action for trademark infringement and violation of the North Carolina Unfair and Deceptive Trade Practices Act and, thus, plaintiff's motion to compel was denied because the returns were not relevant when plaintiff did not assert a punitive damages claim and because the award of damages by a court or jury had nothing to do with defendants' net worth or ability to pay when any enhanced damages in trademark cases and in cases involving unfair and deceptive trade practices are three times the damages award, pursuant to 15 U.S.C.S. § 1117(b) and G.S. 75-16. Water Out Drying Corp. v. Allen, - F. Supp. 2d - (W.D.N.C. June 7, 2006).

Refusal of Partial Refund. - Trial court did not err in calculating damages under G.S. 75-16 and G.S. 66-111 when plaintiff had refused a partial refund proffered by defendant; there was no evidence showing that plaintiff had retained any money in settlement of the matter that could offset any money due to it. Printing Servs. of Greensboro, Inc. v. Am. Capital Group, Inc., 180 N.C. App. 70, 637 S.E.2d 230 (2006), aff'd, 361 N.C. 347, 643 S.E.2d 586 (2007).

Time for Deducting Credit. - Trial court erred by deducting $137,000.00 credit representing the amount plaintiff received from codefendants in exchange for dismissals before rather than after trebling the jury's award of damages. Seafare Corp. v. Trenor Corp., 86 N.C. App. 534, 363 S.E.2d 643, cert. denied, 322 N.C. 114, 367 S.E.2d 917 (1988).

Commercial Bribery Warranted Treble Damages. - Commercial bribery harms an employer as a matter of law, and the proper measure of damages suffered must include at a minimum the amount of the commercial bribes the third party paid, with the damages trebled based on the unfair and deceptive commercial conduct. Kewaunee Scientific Corp. v. Pegram, 130 N.C. App. 576, 503 S.E.2d 417 (1998).

Plaintiff was not entitled to treble damages under section where he sought to rescind the sale of a car and to recover the sale price on the ground the year model of the car had been misrepresented by the seller. Taylor v. Triangle Porsche-Audi, Inc., 27 N.C. App. 711, 220 S.E.2d 806 (1975), cert. denied, 289 N.C. 619, 223 S.E.2d 396 (1976).

Because damages were not assessed, but rescission was elected in action against developers of failed development of ocean front property, the amount awarded to plaintiffs as restitution from defendants should not have been trebled. Winant v. Bostic, 5 F.3d 767 (4th Cir. 1993).

Claims relating to breach of duties to a partnership by a son, who was also a partner, which alleged that the son took for himself opportunities that he agreed to pursue with the partnership, did not amount to practices impacting the marketplace, were not unfair trade practices under G.S. 75-1.1, and thus a treble damages award against the son was improper. White v. Thompson, 196 N.C. App. 568, 676 S.E.2d 104 (2009), aff'd by 364 N.C. 47, 691 S.E.2d 676, 2010 N.C. LEXIS 349 (2010).

Because plaintiff had no actual damages, plaintiff was not entitled to treble damages under state law. Evans v. Sullivan, 928 F.2d 109 (4th Cir. 1991).

Treble Damages Awarded. - Because the jury found that the sale was procured by defendant's fraudulent representation, plaintiff was entitled to treble damages. Bhatti v. Buckland, 328 N.C. 240, 400 S.E.2d 440 (1991).

Plaintiff subcontractor was entitled to an award of $300,000 under this section, where the district court specifically found that defendant contractor's fraud in misrepresenting the scope of a hurricane debris removal contract to induce plaintiff to enter said contract constituted a Chapter 75 violation, and defendant had not challenged that ruling on appeal. United States ex rel. S&D Land Clearing v. D'Elegance Mgmt., - F.3d - (4th Cir. July 13, 2000).

Award to a plaintiff in the amount of $1,365, which represented the trebling of $455, the amount that the plaintiff had paid for watermelons lost due to the defendant's repossession of her truck and the refusal to permit the plaintiff an opportunity to retrieve the perishable melons, was upheld on appeal, because the plaintiff's testimony that she paid $3.50 per watermelon was sufficient to support the amount of damages asserted by the plaintiff. Eley v. Mid/East Acceptance Corp. of N.C. Inc., 171 N.C. App. 368, 614 S.E.2d 555 (2005).

Debtor who had been a shareholder and manager of a grocery store was personally liable to a creditor for funds that were owed to the creditor under a license agreement that the creditor had with the store and under a guaranty and indemnity agreement that the creditor had with the debtor, to the extent that the amount owed was not covered by amounts turned over by the trustee for the store; because of the debtor's egregious activity in operating the store, including the commingling of funds contrary to the license agreement, the damages owed by the debtor were trebled pursuant to G.S. 75-16. MEMO Money Order Co. v. Davis (In re Davis), 371 B.R. 127 (Bankr. E.D.N.C. 2007), vacated, on other grounds, 381 B.R. 650 (Bankr. E.D.N.C. 2008), MEMO Money Order Co. v. Davis (In re Davis), 371 B.R. 127 (Bankr. E.D.N.C. 2007).

Trial court's findings of fact supported the conclusion that campground tenants were entitled to treble damages on the tenants unfair and deceptive trade practices claims after the owners rented campground spaces to the tenants on a monthly basis, charged the tenants for electricity, and electrical interruptions caused damage to the tenants' recreational vehicles. These activities constituted business activities; thus, the owners' acts were in or affecting commerce and the owners' acts in interfering with and disconnecting the tenants' electricity were, at a minimum, unfair. Shepard v. Bonita Vista Props., L.P., 191 N.C. App. 614, 664 S.E.2d 388 (2008), aff'd, 363 N.C. 252, 675 S.E.2d 332 (2009).

Trial court's calculation of damages awarded to a hospital was in error because when trebled based on the trial court's judgment that an insurer engaged in an unfair or deceptive trade practice, the total damages to which the hospital was entitled was $971; a pro rata distribution to lienholders is required in the event that fifty percent of a judgment or settlement amount was insufficient to satisfy all valid medical liens. Nash Hosps., Inc. v. State Farm Mut. Auto. Ins. Co., 254 N.C. App. 726, 803 S.E.2d 256 (2017), review denied, 370 N.C. 578, 809 S.E.2d 869, 2018 N.C. LEXIS 128 (2018).

Findings in Arbitration Award Sufficient to Support Award of Treble Damages. - There was no error in the absence of specific findings in an arbitration award that would justify treble damages as the trial court previously found for plaintiffs on the issue of liability for unfair and deceptive trade practices and found treble damages to be statutorily appropriate; under G.S. 75-16, the arbitrator was bound by law to treble the damages and was not required to make findings already established by the trial court. Linsenmayer v. Omni Homes, Inc., 193 N.C. App. 703, 668 S.E.2d 388 (2008).

Treble Damages Required and Attorney's Fees Permissible. - If the trial court finds that a defendant has violated the Unfair and Deceptive Trade Practices Act, it must award treble damages, and it may, in its discretion, award attorney's fees. Canady v. Crestar Mtg. Corp., 109 F.3d 969 (4th Cir. 1997).

In a specialized construction equipment rental market where customer pricing was highly competitive, a corporation's pricing, customer, and employee salary information met the factors of a trade secret under G.S. 66-152, and those trade secrets were misappropriated when a competing limited liability company (LLC) solicited the corporation's employees who had that information; since the corporation also showed that the customers it lost and the geographical areas where it lost business were the same customers and areas of the employees who the LLC hired away from the corporation, the corporation showed a proximate cause connection to its lost profits and those lost profit damages, along with treble damages and attorney fees, were properly awarded. Sunbelt Rentals, Inc. v. Head & Engquist Equip., L.L.C., 174 N.C. App. 49, 620 S.E.2d 222 (2005).

Demand for Treble Damages Warranted Denial of Motion to Remand to State Court. - District court denied the borrowers' motion to remand, under 28 U.S.C.S. § 1447(c), their action alleging violations of state law by the banks and loan trusts because it found that the amount in controversy exceed $75,000, as opposed to what the borrowers' complaint asserted. The banks and loan trusts pointed to N.C. R. Civ. P. 8(a)(2), which permitted the borrowers to recover more than what they pled in their complaint, and they produced evidence that the actual amount in controversy exceeded $75,000; the borrowers had also requested treble damages under G.S. 75-16. Dash v. FirstPlus Home Loan Trust 1996-2, 248 F. Supp. 2d 489 (M.D.N.C. 2003).

Arbitrator Had Authority to Award Treble Damages. - Although 9 U.S.C.S. § 10(a)(4) of the Federal Arbitration Act applied, where an arbitration provision in a contract between parties was ambiguous, the trial court erred in modifying the arbitrators' G.S. 75-16 award of treble damages to plaintiffs in their deceptive trade practices claim under G.S. 75-1.1; the arbitrators, not the court had the authority to construe that ambiguous provision. WMS, Inc. v. Weaver, 166 N.C. App. 352, 602 S.E.2d 706 (2004), cert. denied, 359 N.C. 197, 608 S.E.2d 330 (2004).

Arbitration award in contract dispute which included treble damages was proper because the arbitration clause at issue stated that arbitration was the proper avenue should any dispute arise relative to the performance of the contract; "any dispute" included plaintiffs' claim that the contractors were liable for unfair and deceptive trade practices, which allowed for an award of treble damages pursuant to G.S. 75-16. Linsenmayer v. Omni Homes, Inc., 193 N.C. App. 703, 668 S.E.2d 388 (2008).

Sweepstakes Contestant Not Entitled to Damages. - Under G.S. 75-16, a sweepstakes contestant was not entitled to damages for unfair and deceptive trade practices, pursuant to G.S. 75-1.1 and G.S. 75-32; even if the contest sponsor's actions constituted actionable conduct pursuant to G.S. 75-1.1 and G.S. 75-32, no reasonable person could have relied on the representations contained therein to conclude that he or she would be entitled to the entire contest prize because any actual injury suffered could not have been, as a matter of law, proximately caused by the sponsor's representations. Fozard v. Publrs. Clearing House, Inc., - F. Supp. 2d - (M.D.N.C. Apr. 29, 1999).

Awarding of Damages Not Invitation for Debtors to Bring Frivolous Proceedings. - Facts in this case were particularly egregious and concerned ongoing, unilateral decisions on the part of the lender to demand the June 1, 2008, mortgage payment before the home was ever tendered to debtors; debtors were in no way responsible for the failed home inspections, and the lender's treatment of the unpaid June 1 payment throughout the mortgage history constituted a violation of N.C. Gen. Stat. Ch. 75. The court will specifically limit judgment in these kinds of actions in the future to instances, like the current case, involving violations solely on the part of a creditor through no fault of the debtor. McClendon v. Walter Home Mortg. (In re McClendon), 488 B.R. 876 (Bankr. E.D.N.C. 2013).