# STATE Ex Rel. COOPER v. McCLURE

> North Carolina Business Court · July 19, 2007 · 2007 NCBC 24

URL: https://www.frixlaw.com/law-library/cases/11057470

## Case

- **Court:** North Carolina Business Court
- **Decided:** July 19, 2007
- **Citations:** 2007 NCBC 24
- **Precedential status:** Published
- **Opinion:** Opinion by Ben F. Tennille
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11057470

## How later opinions describe it (automated extraction)

- applying North Carolina law and noting that “[c]ases applying the Sherman Act stress that the proper focus is upon the challenged restraint’s impact on competitive conditions

## Opinion text

State ex rel. Cooper v. McClure, 2007 NCBC 24

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF WAKE 03 CVS 5617

State of North Carolina, ex rel. Roy )
Cooper, Attorney General, and North )
Carolina Department of Environment )
and Natural Resources, )
)
Plaintiffs, )
)
)
v. )
)
)
Darin M. McClure, Thomas A. Proctor, )
Mid-Atlantic Associates, P.A., )
Catherine A. Ross, CBM Environmental )
ORDER ON PLAINTIFFS’ MOTION FOR
Services, Inc., Keith A. Anthony, Shield )
SUMMARY JUDGMENT AND JUDGMENT
Engineering, Inc., William A. Quarles, )
Matthew R. Einsmann, S&ME, Inc., )
Michael D. Shaw, SEI Environmental, )
Inc., )
the North Carolina Environmental )
Service Providers Association, d/b/a )
NCESPA, James H. Hays, )
Environmental Conservation )
Laboratories, Inc., d/b/a ENCO, Peter I. )
Byer, South Atlantic Environmental )
Drilling and Construction Company, )
Inc., d/b/a SAEDACCO, John A. Hill,
Almes & Associates, Inc., and John Does
1 through 100,

Defendants.

{1} This case arises out of Plaintiffs’ claim that Defendants engaged in illegal
business practices in their efforts to influence prices paid under state contracts for
environmental services. This matter comes before the Court on Plaintiffs’ Motion
for Summary Judgment.
{2} After considering the briefs and oral arguments, the Court GRANTS
Plaintiffs’ Motion for Summary Judgment on the grounds that Defendants
participated in a conspiracy in restraint of trade. Plaintiffs may recover damages in
the amount of $350,434.74 from Defendants.

Office of the Attorney General by K.D. Sturgis and Kimberly W. Duffley for
Plaintiffs State of North Carolina, ex rel. Roy Cooper, Attorney General, and
North Carolina Department of Environment and Natural Resources.

Richard H. Tomberlin for Defendants CBM Environmental Services, Inc. and
Catherine Ross Bateman.

Tennille, Judge.

I.
PROCEDURAL BACKGROUND
{1} This action was filed in Wake County Superior Court on April 28, 2003.
The case was designated “exceptional” under Rule 2.1 of the General Rules of
Practice for the Superior and District Courts and assigned to the undersigned
Special Superior Court Judge for Complex Business Cases by order of the Chief
Justice of the Supreme Court of North Carolina dated August 11, 2003.
{2} The Complaint named the following organizations as defendants: North
Carolina Environmental Service Providers Association (“NCESPA”); Mid-Atlantic
Associates, P.A. (“Mid-Atlantic”); CBM Environmental Services, Inc. (“CBM”);
Shield Engineering, Inc. (“Shield”); S&ME, Inc. (“S&ME”); SEI Environmental, Inc.
(“SEI”); Environmental Conservation Laboratories (“ENCO”); South Atlantic
Environmental Drilling and Construction Company (“SAEDACCO”); and Almes &
Associates, Inc. (“Almes”).

{3} The Complaint named the following individuals as defendants: Darin M.
McClure, president and co-owner of Mid-Atlantic and president of NCESPA;
Thomas A. Proctor, vice president and co-owner of Mid-Atlantic; Catherine A. Ross1 ,
chief executive officer of CBM and vice president and director of NCESPA; Keith A.
Anthony, vice president of Shield and director of NCESPA; William A. Quarles,
assessment and remediation services manager at S&ME and director of NCESPA;
Matthew R. Einsman, environmental engineering manager at S&ME and director of
NCESPA; Michael D. Shaw, senior geologist at SEI and director of NCESPA; James
H. Hays, employee of ENCO and treasurer and director of NCESPA; Peter I. Byer,
president of SAEDACCO and director of NCESPA; and John A. Hill, employee of
Almes and director of NCESPA.

{4} NCESPA, Mid-Atlantic, S&ME, Shield, SEI, ENCO, SAEDACCO, Almes,
McClure, Proctor, Anthony, Quarles, Einsmann, Shaw, Hays, Byer, and Hill all
later entered into consent judgments and dismissals with Plaintiffs. Those
Defendants paid a total of $735,000 to settle the claims against them. Bateman and
CBM are the only remaining Defendants.

{5} In 2004, Bateman and CBM brought motions to dismiss under Rule
12(b)(6) of the North Carolina Rules of Civil Procedure. The Court granted the
motions in part and denied them in part. See State ex rel. Cooper v. McClure
(McClure I), 2004 NCBC 8 ¶ 79 (N.C. Super. Ct. Dec. 14, 2004),
http://www.ncbusinesscourt.net/opinions/2004%20NCBC%208.htm. Plaintiffs
subsequently filed a motion for reconsideration of three rulings in the Court’s
December 14, 2004 Order and Opinion, including (1) the dismissal of Plaintiffs’
claims under section 75-1.1 of the General Statutes of North Carolina; (2) the
dismissal of Plaintiffs’ damages claims against Defendant Bateman on the basis of
nonprofit immunity under section 55A-8-60(a) of the General Statutes for her role
as an officer and director of NCESPA and (3) the dismissal of all damages claims
against Bateman and CBM under section 133-28 of the General Statutes. The
Court denied the motion for reconsideration of the dismissal of all unfair and

1 When the complaint was filed in this action, Defendant Bateman was known as Catherine A. Ross.

She married during the course of the litigation and is now known as Catherine Ross Bateman and
will be referred to as “Bateman” throughout the remainder of this Order.
deceptive trade practices claims, denied the motion for reconsideration of the
dismissal of Bateman under section 55A-8-60(a), and granted the motion for
reconsideration of the dismissal of all claims for damages against Bateman and
CBM based on section 133-28. State ex rel. Cooper v. McClure (McClure II), 2005
NCBC 6 (N.C. Super. Ct. Oct. 28, 2005),
http://www.ncbusinesscourt.net/opinions/2005%20NCBC%206.htm. Following the
Court’s ruling on the motion for reconsideration, discovery proceeded on the section
133-28 claims. Plaintiffs filed a motion for summary judgment on November 13,
2006. The Court heard oral arguments on the motion on January 26, 2007. The
only issues presently before the Court are those related to the section 133-28 claims
for damages against Bateman and CBM.

II.
FACTUAL BACKGROUND
A.
THE PARTIES
{6} Plaintiff Roy Cooper is the duly elected Attorney General of North
Carolina.
{7} Plaintiff North Carolina Department of Environmental and Natural
Resources (“DENR”) administers various programs under North Carolina law to
prevent and cure damage to the environment and natural resources of the state.
{8} Defendant Catherine Ross Bateman was, at times relevant to this action, a
resident of Charlotte, North Carolina. She has subsequently established a
residence in Florida. At times relevant to this action she was owner and chief
executive officer of CBM.
{9} Defendant CBM is a corporation organized and existing under the laws of
the State of North Carolina with its principal place of business located in Fort Mill,
South Carolina. CBM is engaged in the environmental consulting business. It
maintains an office in Greenville, North Carolina.
{10} All other defendants to this action have been dismissed.
B.
BACKGROUND
{11} The facts giving rise to this action were set out as follows in a previous
order:
This case centers on the bidding process between the State of
North Carolina and contractors of environmental services. More
specifically, the matter arises in the context of the statutory
framework created by the North Carolina General Assembly to fund
the cleanup of underground storage tanks (“USTs”). The framework
requires that the North Carolina Department of Environment and
Natural Resources (“DENR”) reimburse tank owners or operators
(“responsible parties”) for the reasonable and necessary costs incurred
in cleaning up the aftermath from leaking USTs. Funds for paying the
cleanup costs come from fees charged to all tank owners. The fund
created by these fees seldom suffices to meet the needs of DENR for
cleanup reimbursements.
As a means of controlling its reimbursement expenses, DENR
sets specific rates for environmental services. Those rates are
published in its Reasonable Rate Document (“RRD”). DENR solicits
the typical billing rates of engineers, geologists and other
environmental consultants in order to calculate the reimbursement
rates for these costs. DENR then issues the RRD providing the
reimbursement rates for the services that the responsible parties
employ in the cleanup processes. While private parties contract for
services at different rates, the rates contained in the RRD have a
significant influence on marketplace pricing. Thus, the rates set in the
RRD affect both DENR reimbursement and nongovernmental
marketplace pricing.
In addition to the reimbursement method, DENR also must
contend with the cleanup of UST leaks on property whose owners
cannot be located. DENR contracts with specific environmental
consultants to carry out the cleanup of these contaminated properties.
These environmental consultants obtain the contracts, referred to as
“state lead work,” through a bidding process in which bidders respond
to a request for proposals (“RFPs”). This process also affects
marketplace pricing. DENR uses information obtained in connection
with these RFPs in setting rates in the RRD.
In 2001 DENR published proposed revisions to the RRD that
potentially would have affected environmental consultants, engineers
and geologists by setting rates paid for environmental services at a
level that was unsatisfactory to defendants. Shortly thereafter, the
State requested RFPs for some state lead work.
In response to the potential changes, a group of environmental
consultants, engineers and geologists created an informal association
referred to in the briefs as the “Stakeholders Group.” In 2002
members of the Stakeholders Group formed a nonprofit corporation
under North Carolina law officially named the North Carolina
Environmental Service Providers Association. NCESPA accordingly
elected a board of directors that included McClure and Hill [and
Bateman].
Defendants are alleged to have taken two specific actions to
cause DENR to raise the rates from those proposed in the 2001
revision. First, the State alleges that defendants provided a
reasonable rate survey that contained false, inflated billing
information. Second, the State alleges that the defendants sought to
improperly influence the prices submitted in RFPs for the state lead
work. The State alleges that defendants believed DENR would use the
information gathered through the RFPs for the state lead work to set
rates in the RRD, and that if inflated bids were submitted, the RRD
rates would be higher.
Before the incorporation of NCESPA, the leader of the
Stakeholders Group, McClure, requested that the persons and entities
associated with the Stakeholder Group complete a “reasonable rate
survey.” Plaintiffs allege that McClure engaged in an e-mail campaign
to inflate the RRD by having the Stakeholders submit artificially
inflated rate information. McClure later stated in text within the
distributed survey, however, that responses to the survey should
include the true and reasonable rates of environmental service
providers so that the revised RRD would reflect the typical industry
billing rates.
The Stakeholder[s] Group . . . then submitted the reasonable
rate survey results to DENR. Contention exists as to whether (1)
NCESPA falsified these surveys and (2) DENR actually considered the
survey in calculating rates that it would pay environmental service
providers. Defendants, however, conceded during oral arguments that
for the most part they knew that the rates they provided on the
surveys were false. . . .
In August 2002, DENR published a[n] RFP for state lead work.
The parties dispute NCESPA’s reaction to the RFP and related
motivations. Plaintiffs allege that McClure and NCESPA responded to
the RFP with a “two pronged course of action.” First, plaintiffs allege
that defendants organized a boycott of the RFP based on the claim that
the request violated the Mini-Brooks Act. Second, defendants
allegedly fixed the bids by having firms submit bids at the rates
determined by NCESPA and its members. Plaintiffs allege that
defendants’ motivation in these two actions was to inflate the rates
paid to the parties to whom the State awarded the contract and to
impact the rate-setting process by preventing the State from using
good faith bid information to set the RRD rate. . . .
Defendants claim that plaintiffs’ allegations misrepresent
defendants’ actions. They claim to have legitimate concerns that
DENR’s RFP did indeed violate the Mini-Brooks Act. NCESPA
members claim that they did not suggest rates to its members but
merely attached the aforementioned reasonable rate survey which
contained artificially inflated prices. Defendants concede that some
NCESPA members submitted responses to the RFP with rates from
the artificially inflated reasonable rate survey, while others did not
respond or submitted rates not based on the survey.
Plaintiffs allege the responses were coordinated and nefarious
and that defendants submitted bids at NCESPA-constructed rates.
CBM, moreover, submitted a bid with NCESPA rates marked up by
20%. Defendants Hill and Almes, Hill’s employer at the time, did not
respond to the RFP. Plaintiffs also assert that bids submitted by
defendants included a certification, under oath, of non-collusion by the
bidders. DENR claimed that the coordinated use of the NCESPA rates
and boycott constituted collusive behavior and hence subjected
defendants to penalties because the signed certification by defendants
violates N.C.G.S. § 143-54.

McClure I, 2004 NCBC 8 ¶¶ 7–18.

III.
MOTION FOR SUMMARY JUDGMENT
A.
LEGAL STANDARD
{12} Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that any party is entitled
to judgment as a matter of law.” N.C.R. Civ. P. 56(c). “It is not the purpose of the
rule to resolve disputed material issues of fact but rather to determine if such issues
exist.” N.C.R. Civ. P. 56 cmt. The burden of showing a lack of triable issues of fact
falls upon the moving party. See, e.g., Pembee Mfg. Corp. v. Cape Fear Constr. Co.,
313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). Once this burden has been met, the
nonmoving party must “produce a forecast of evidence demonstrating that [it] will
be able to make out at least a prima facie case at trial.” Collingwood v. Gen. Elec.
Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). The Court
must exercise caution in granting a motion for summary judgment. N.C. Nat’l Bank
v. Gillespie, 291 N.C. 303, 310, 230 S.E.2d 375, 379 (1976).
{13} In McClure II, the Court set forth its expectations for summary judgment
in this matter:
It will be incumbent on the State to show that the CBM bid was
submitted as part of a conspiracy to permit one of the conspirators to
obtain the contract at an artificially inflated price or for some other
unlawful purpose which injured the State. That determination is best
made at a later stage. Depending on the development of the facts,
there may also be an issue of what DENR can recover under the
statute [N.C. Gen. Stat. § 133-28] even if it is a strict liability statute.
All the other defendants have settled and paid money to the State. If
the monies paid thus far exceed ten percent of the contract price or the
total actual damages, may DENR recover an amount in excess of that
amount? For example, if there are twenty defendants can DENR sue
each one for ten percent and recover two hundred percent of the
contract price? If an amount equal to ten percent has already been
collected, may DENR still recover more from CBM and Ross? Given
DENR’s position that there was price suppression it may well have to
prove that a bid more than ten percent lower than the accepted bid
would have been submitted. It may be able to do so. The
reinstatement of this claim may muddy the waters in other respects.
CBM and Ross could assert contribution rights against the other
named defendants. What will be the result if they have already paid
more than it is determined that CBM and Ross owe? Development of a
record will assist this Court and the appellate courts in addressing
these issues. For the foregoing reasons, the Court believes it erred in
dismissing these claims at this time and will reinstate them.
2005 NCBC 6. Based on the record that has been developed, the Court grants
Plaintiffs’ Motion for Summary Judgment for the reasons explained below.
B.
CONSPIRACY IN RESTRAINT OF TRADE
{14} Section 133-28 of the General Statutes of North Carolina allows “any
governmental agency entering into a contract which is or has been the subject of a
conspiracy prohibited by G.S. 75-1 or 75-2” to sue the conspirators for damages.
The existence of a conspiracy prohibited by sections 75-1 or 75-2 is a prerequisite to
the applicability of section 133-28.
{15} Section 75-1 states that “[e]very . . . conspiracy in restraint of trade or
commerce in the State of North Carolina is hereby declared to be illegal.” Section
75-2 adds that any such conspiracy “which violates the principles of the common
law” is considered a violation of section 75-1. The meaning of the term “conspiracy
in restraint of trade or commerce” is found in judicial interpretations of section 75-1.
{16} First, “it is clear that North Carolina’s substantive law of civil conspiracy .
. . applies in the context of G.S. 75-1.” Cameron v. New Hanover Mem’l Hosp., Inc.,
58 N.C. App. 414, 443, 293 S.E.2d 901, 918 (1982). Civil conspiracy consists of four
elements: “(1) an agreement between two or more individuals; (2) to do an unlawful
act or to do a lawful act in an unlawful way; (3) which agreement results in injury to
the plaintiff inflicted by one or more of the conspirators; and (4) pursuant to a
common scheme.” Privette v. Univ. of N.C., 96 N.C. App. 124, 139, 385 S.E.2d 185,
193 (1989). Injury to the plaintiff is an express element of civil conspiracy. The
mere existence of a conspiracy does not result in civil liability. Rather, “[t]he gist of
the civil action for conspiracy is the act or acts committed in pursuance thereof—the
damage—not the conspiracy or the combination.” Reid v. Holden, 242 N.C. 408,
414, 88 S.E.2d 125, 130 (1955).
{17} To violate section 75-1, the civil conspiracy must be “in restraint of trade.”
In determining whether a conspiracy is “in restraint of trade,” the Court looks to a
body of federal and state cases analyzing the meaning of that phrase. The federal
cases are relevant because the language of section 75-1 is similar to language found
in the Federal Sherman Anti-Trust Act, which states that “[e]very contract,
combination in the form of trust or otherwise, or conspiracy, in restraint of trade or
commerce among the several States, or with foreign nations, is hereby declared to
be illegal.” Sherman Anti-Trust Act § 1, 15 U.S.C.S. § 1 (LEXIS through Pub. L. No.
110-25). The North Carolina Supreme Court has noted that “the body of law
applying the Sherman Act, although not binding [on North Carolina courts] in
applying G.S. 75-1, is nonetheless instructive in determining the full reach of that
statute.” Rose v. Vulcan Materials Co., 282 N.C. 643, 655, 194 S.E.2d 521, 530
(1973). Both the federal and state cases make clear that the Court’s primary focus
in determining whether a conspiracy is prohibited by section 75-1 should be the
impact of the conspiracy on the competitive environment. In Standard Oil Co. of
New Jersey v. United States, 221 U.S. 1 (1911), the United States Supreme Court
construed the Sherman Act to reach the following:
[A]ll contracts or acts which were unreasonably restrictive of
competitive conditions, either from the nature or character of the
contract or act or where the surrounding circumstances were such as to
justify the conclusion that they had not been entered into or performed
for the legitimate purpose of reasonably forwarding personal interest
or developing trade, but on the contrary were of such a character as to
give rise to the inference or presumption that they had been entered
into or done with the intent to do wrong to the general public and to
limit the right of individuals, thus restraining the free flow of
commerce and tending to bring about the evils, such as enhancement
of prices, which were considered to be against public policy.

221 U.S. at 58; see also United Roasters, Inc. v. Colgate-Palmolive Co., 485 F. Supp.
1041, 1049 (E.D.N.C. 1979) (applying North Carolina law and noting that “[c]ases
applying the Sherman Act stress that the proper focus is upon the challenged
restraint’s impact on competitive conditions). As Adam Smith observed, a system of
market exchange is fueled by self-interest:
Give me that which I want, and you shall have this which you want . . .
it is in this manner that we obtain from one another the far greater
part of those good offices which we stand in need of. It is not from the
benevolence of the butcher, the brewer, or the baker, that we expect
our dinner, but from their regard to their own interest. We address
ourselves, not to their humanity but to their self-love, and never talk to
them of our own necessities but of their advantages.

Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations 15
(Edwin Cannan ed., Modern Library 1994) (1776). In a market economy,
individuals and businesses are expected to pursue their own self-interest. When
they do not, expectations are frustrated and competition suffers. The pursuit of
personal interest is an important part of our economy, which the Supreme Court
acknowledged by characterizing it as “legitimate” in the Standard Oil case. See 221
U.S. at 58. The specter of improper anticompetitive behavior is raised when firms
counterintuitively neglect their self-interest.
{18} Standard Oil also reflects the common law “rule of reason” that a
conspiracy to restrain trade must operate to the prejudice of the public in order to
be actionable. Indeed, a “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, 282 N.C. at 656, 194 S.E.2d at 531.
{19} One of the clearest examples of an activity in restraint of trade is an
agreement or conspiracy between competitors in an industry to fix prices. In fact, “a
combination formed for the purpose and with the effect of raising, depressing,
fixing, pegging, or stabilizing the price of a commodity in interstate or foreign
commerce is illegal per se” under the Sherman Act. United States v. Socony-
Vacuum Oil Co., 310 U.S. 150, 223 (1940). The concept of price fixing under the
antitrust laws is very broad. Explicit agreements to fix prices would clearly be
illegal under the Sherman Act, “[b]ut so would agreements to raise or lower prices
whatever machinery for price-fixing was used.” Id. at 222.
C.
ANALYSIS
{20} In this case, the machinery for price fixing came in the form of an
orchestrated effort to submit artificially high bids in response to a solicitation for
bids from a state agency. The factual record developed by the parties shows that
there is no genuine issue of material fact as to whether Defendants engaged in a
conspiracy prohibited by section 75-1. The Court’s conclusion is based on a careful
review of the record before it.
{21} In order for there to be a conspiracy, there must be an agreement to do an
unlawful act. Here, the record demonstrates that Defendants agreed with others to
unlawfully restrain trade. This was accomplished in two ways. First, the
Stakeholders Group submitted an inaccurate reasonable rate survey to DENR.
Second, NCESPA characterized the survey as representing “fair market rates” and
strongly encouraged members to quote those rates to DENR during the RFP.
1.
SURVEY
{22} This Court has already observed that “Defendants . . . conceded during oral
arguments [on the motion to dismiss] that for the most part they knew that the
rates they provided on the surveys were false.” McClure I, 2004 NCBC 8 ¶ 14.
Defendant Bateman was one of nine industry representatives who “agreed to take
the lead in developing proposed new rates and backup that will be presented to
DENR.” (McClure Aff. Ex. 6.) From its earliest days, the leaders of the
Stakeholders Group were concerned that the new rates would adversely affect the
bottom lines of environmental service providers. In a November 28, 2001 e-mail to
the Stakeholders Group, Bateman said “[t]he time has come for us to help ourselves
. . . . In case you haven’t calculated, the new rates [which DENR planned to
implement on January 1, 2002] will result in a net decrease to those who perform
work in the program.” (Bateman Dep. Ex. 10, May 30–31, 2006.)
{23} The leaders of the Stakeholders Group knew that “DENR is required to
consider typical billing rates when determining what is reasonable and necessary.”
(McClure Aff. Ex. 3.) However, Defendants were part of an agreement to use the
survey results not to reflect true market rates, but to present DENR with a set of
rates that were above market. They were of the opinion that “[c]ompetition is
healthy, but in some way this industry’s competitiveness has been destructive.”
(McClure Aff. Ex. 8B.) Defendants sought to curb this destructiveness by
coordinating the industry’s response to the survey and subsequent RFP. While the
survey was out, McClure reminded the Stakeholders that “the reasonable rate
document will be your checkbook for at least a year if not more.” (Bateman Dep. Ex.
9.) When asked if there was “any effort to make sure that the rates that were
reported were genuine market rates,” Bateman responded that “the purpose of the
survey was to find out what the market rates were,” but did not otherwise indicate
that any measures were taken to ensure the accuracy of the survey. (See Bateman
Dep. 38: 7–11.)
{24} After the survey results were returned, representatives of several
environmental consulting firms, including CBM president Ken Czoer, met to review,
compile, and refine responses to the survey. (McClure Aff. ¶ 3.) After removing the
outliers, the group rounded most of the averages upward. (McClure Aff. ¶ 4.) The
survey results were characterized as “fair market rates” and submitted to DENR on
January 11, 2002. (McClure Aff. Ex. 43; Bateman Dep. Ex. 18.) Defendant
Bateman agreed with the characterization of the survey results and the submission
to DENR. (Bateman Dep. 133:5.)
{25} Scott Ryals, an employee of the Trust Fund Branch for the Underground
Storage Tank Section of DENR’s Division of Waste Management testified that “[t]he
rates in the survey provided to DENR in January 2002 were approximately forty
percent (40%) higher than the RRD then in effect,” not including the twenty percent
markup that NCESPA was requesting be added to the rates provided. (Ryals Aff. ¶
8.)
{26} The survey was not what it purported to be. It was presented to NCESPA
members and DENR as a survey of “fair market rates,” but actually presented
above market rates. As shown below, the survey results were attached to an e-mail
sent to NCESPA members in advance of the RFP (McClure Aff. Ex. 43) and were
the basis of bids submitted to DENR by various firms.
2.
BROADCAST E-MAILS
{27} The second aspect of the conspiracy was an agreement and scheme on the
part of Defendants and others to have firms submit bids at the “fair market” rates
determined by NCESPA as a result of the survey. This was accomplished by
sending e-mails to environmental service providers (“ESPs”) in advance of a bidding
process for the state lead contract. Defendant Bateman was part of the group
responsible for drafting these e-mails (see McClure Aff. Exs. 13–42 (series of e-mails
between NCESPA directors discussing the broadcast e-mail)) and ultimately gave
her approval to the final version (McClure Aff. Ex. 42 (stating “I am in, send it”)).
There is ample evidence in the record demonstrating that the intent of the e-mail
was to unite ESPs in an effort to present bids that were driven by the NCESPA
survey, not by market forces or the self-interest of the individual firms competing
for the contract. The board believed that DENR’s ulterior motive in issuing the
RFP was to use the bids as data in creating a new RRD. John Hill stated early on
that “[m]y opinion is they are looking for backup material for STF reasonable rates.”
(McClure Aff. Ex. 9.) McClure agreed that

they will certainly use any rates they receive on this as ammunition
against us for Reasonable Rate Document discussions. It will also
validate their belief that in the end they can divide us by pitting us
against us in a bidding war. In my opinion, the best thing that could
happen would be for noone [sic] to respond to this.

(McClure Aff. Ex. 9.) The first line of the broadcast e-mail seemed to discourage
any response at all by warning ESPs that “the recent solicitation for State lead
contractors (RFP 16-N03001) by NCDENR may be in violation of the Mini-Brooks
Act.” (McClure Aff. Ex. 43.) The Mini-Brooks Act restricts public works contracts
from requiring bids for certain engineering and other work. See N.C. Gen. Stat. §
143-64.31 (LEXIS through 2007 legislation). However, the directors had concluded
prior to sending the e-mail that “[t]he solicitation itself is not in violation of Mini-
Brooks.” (McClure Aff. Ex. 19.) Yet NCESPA never communicated this conclusion
to its members. (Bateman Dep. 104:11–12.) Rather it left them with the
impression that DENR’s solicitation might have been illegal.
{28} NCESPA treated the RFP not as a competitive bidding process, but as an
opportunity to prove itself a formidable organization to DENR. In an August 13,
2002 e-mail to the board, McClure noted that
if any firms responds [sic] to this solicitation and submits prices at or
below the current reasonable rate document, it will begin to undermine
everything we are fighting for. If a NCESPA member firm submits
anything less than what we have proposed as reasonable rates, I think
it severely undermines our position. I think this is one of the first
instances where we will see if NCESPA has any teeth to it. The
response the State gets on this will go a long way in how they view us
as an organization.
(McClure Aff. Ex. 13.) McClure also believed that “[t]he best show of strength for
our organization would be to have multiple firms submit the fair market rates
determined by NCESPA.” (McClure Aff. Ex. 33.) Defendant Bateman also viewed
the RFP as a chance to prove NCESPA’s strength, noting in an August 15, 2002 e-
mail that “I think they are watching to see how strong we will be.” (McClure Aff.
Ex. 32.) The broadcast e-mail ultimately stated that

NCESPA feels that submittal of costs that are below fair market rates
under this solicitation or any similar solicitation could ultimately be
used in development of the reasonable rate document (RRD). When
considering your response to this solicitation, we strongly encourage
our members to keep these points in mind along with the considerable
amount of work performed by NCESPA with respect to the RRD. The
fair market rates researched and developed by NCESPA are attached
to this e-mail.

(McClure Aff. Ex. 43.) The “fair market rates” came from the survey, which had
been manipulated.
{29} The intent of the e-mail was to influence the bids submitted by ESPs to the
State. The NCESPA rates were attached to the e-mail. Language in the e-mail
implied that if a firm pursued its self-interest by bidding lower than the NCESPA
rates, that firm would be hurting the entire industry.
{30} The drafters of the broadcast e-mail knew they were on thin ice and were
aware of the shadow cast by the antitrust laws. At the NCESPA interim board of
directors meeting on May 7, 2002, the group “discussed the need for a disclaimer
about price fixing before each meeting” (Bateman Dep. Ex. 15), but never approved
such a disclaimer (Bateman Dep. 53: 21). An early draft of the broadcast e-mail
stated, “NCESPA advises its non-engineering services providers who wish to
respond to submit the reasonable rates researched and endorsed by NCESPA.”
(McClure Aff. Ex. 16.) John Hill advised the directors to “LET US be very careful.
This is an open bid and we can not [sic] go around talking about rates or how we
should respond.” (McClure Aff. Ex. 10.) Keith Anthony was concerned that “we
might come off as looking like we are all in collusion by all of us (NCESPA) sending
in the same rate structure or even suggesting as much in an e-mail or worse yet the
web site.” (McClure Aff. Ex. 14.) McClure brushed aside these concerns, asking “so
what if we get accused of collusion? Is that a bad thing? It shows that we are
strong and united as a group.” (McClure Aff. Ex. 16.) He went on to say, “I doubt
very seriously that the State will attempt to sue anyone over this.” (McClure Aff.
Ex. 16.)
{31} The language was ultimately softened. The e-mail “strongly encouraged”
members to remember “the considerable amount of work performed by NCESPA
with respect to the RRD.” (McClure Aff. Ex. 43.) Members were reminded that
“[t]he fair market rates researched and developed by NCESPA are attached to this
e-mail.” (McClure Aff. Ex. 43.) Although the final e-mail does not explicitly direct
members to submit the NCESPA rates, the implication is clear. The drafters
intended to imply as much as possible without overtly telling members what rates
to submit, as indicated by the following comment by Pete Byers: “In addressing
John’s comments regarding telling nonengineering firms to respond to the RFP with
the NCESPA rates, I feel we can accomplish this by informing them of these rates
and how they were obtained . . . . However, I would lean away from telling anyone
what rates to submit.” (McClure Aff. Ex. 29.) Defendant Bateman advocated edits
that would “steer us further away from discussing rates, markups, and providing a
fresh copy of the rates.” (McClure Aff. Ex. 34.) It was not necessary to explicitly tell
firms to submit the NCESPA rates because “[t]he work and rates are known by
those to whom we will send this message.” (McClure Aff. Ex. 34.) In the final draft,
McClure “tried to soften this proposal . . . while still getting our point across.”
(McClure Aff. Ex. 33.) The point was to get multiple firms to submit the NCESPA
rates. Overall the board was oblivious to the possible consequences of their actions.
Any concerns over collusive behavior were quickly brushed aside as the board
agreed to transmit the broadcast e-mail.
{32} Bateman approved the final draft of the broadcast e-mail. (McClure Aff.
Ex. 42.) She testified that before she gave her approval, she consulted with Morris
Caddell, a Charlotte attorney who frequently advised CBM on a number of issues,
and forwarded to him a series of e-mails between the NCESPA directors which
included the proposed broadcast e-mail. According to Bateman, “Morris told me
that he saw no problem with what was being proposed as far as sending out . . . the
broadcast e-mail.” (Bateman Dep. 192: 18–20.) She did not approve the broadcast
e-mail until after she heard from Mr. Caddell because she “wanted his opinion
before [she] entered into any discussions related to this or agreed to send out any
broadcast e-mails.” (Bateman Dep. 193: 8–10.) But Mr. Caddell testified that the
purpose of his conversations with Bateman regarding the e-mails was to advise her
on a course of action for CBM alone. (Caddell Dep. 17:2–6.) According to Caddell,

It was more of a conversation about what would be the issues, because
I would have had to do some in-depth research to actually give a legal
opinion, a final yay or nay on whether or not it was legally valid to
send it [the broadcast e-mail] out or not, and I had not done that kind
of research. And I didn’t think I was being requested to, but again, I
think it was more just general sort of bringing me up to speed that . . .
[the broadcast e-mail was] being kicked around, but it probably wasn’t
going to go out.

(Caddell Dep. 16: 15–25.)
{33} Some of the most compelling evidence of the NCESPA board’s agreement
to restrain trade comes after the broadcast e-mail was sent and firms began to
respond to the RFP. First, the board members’ firms submitted the NCESPA rates.
In a September 6, 2002 e-mail to the board, Defendant Bateman notified them that
she was “going to send the NCESPA rates plus 20%.” (McClure Aff. Ex. 55B.)
Keith Anthony responded that “I too am submitting the NCESPA rates plus 20%.”
According to Bateman, she notified the others of the amount of her bid because the
bid was submitted to DENR “for informational purposes only.” (Bateman Dep. Ex.
34.) This informational bid was sent to DENR, but CBM requested that DENR
return it unopened because DENR had clarified issues regarding the Mini-Brooks
Act in the interim. (Bateman Dep. 147: 3–10.) Bateman instructed CBM employee
Kim Freeman “[t]o remove the letter stating that it was a non-bid and re-submit it
in the bid package as required.” (Bateman Dep. 177: 4–9.) The consequence of all
this is that Bateman had informed the other NCESPA board members how CBM
was going to respond to the RFP. (See Bateman Dep. 149: 10–13.)
{34} Other firms clearly got the message that they were to use the NCESPA
rates. Representatives from two firms even called McClure to ask whether to use
the proposed NCESPA rates or the proposed rates plus 20%. (McClure Aff. Ex. 44.)
These inquiries indicate that at least some member firms’ submissions were guided
by the NCESPA rates, rather than their professional judgment as to what rate
would be best for their business and give them the best chance of obtaining the
state lead contract.
{35} The NCESPA board clearly did not want members to pursue their self-
interest as they normally would in a competitive environment. After the bidding
had opened, McClure wanted to obtain the bid results in order to find out what
members had bid. He stated that “[i]f some firms did go in and undermine our
efforts, I think it would be good to know who is ‘on our team’ and in it for the long
haul and who is out for themselves and short term gain.” (McClure Aff. Ex. 57.) In
a competitive market, there are no “teams” of firms. Rather, firms are supposed to
be “out for themselves.” Defendant Bateman agreed with McClure that it would be
a good idea to try and obtain the bids through the Freedom of Information Act or
other public records laws. (Bateman Dep. 164:16 (stating “I did not disagree with
getting the FOI”).) Keith Anthony said that “I submitted the NCESPA rates and I
want to know what members lowballed it.” (McClure Aff. Ex. 63.) Bateman
testified that she believed she was tasked with requesting the bid information
under the Freedom of Information Act, although the actual request may have been
sent in by someone else. (Bateman Dep. 164: 3–6.)
{36} All of this evidence leads to the conclusion that the NCESPA board,
including Defendant Bateman and her company, CBM, entered into an agreement
to restrain trade as that phrase has been defined by the courts. As a result of the
broadcast e-mails, the bidding process for the state lead contract was not
competitive. Firms were essentially told what rates to submit. Those that did not
submit these rates were branded traitors to the cause, and were sought out by the
NCESPA leadership for retribution. The cases make clear that an agreement to
raise or lower prices violates the antitrust laws “whatever machinery for price fixing
was used.” Socony-Vacuum, 310 U.S. at 222. Here, the machinery consisted of an
inflated survey of purportedly “fair market” rates and a coercive e-mail encouraging
members to submit those rates.
{37} The term “restraint of trade” is broad enough to include collusively
providing false market data that will be used to set prices. In Knevelbaard Dairies
v. Kraft Foods, Inc., 232 F.3d 979 (9th Cir. 2000), the plaintiff milk producers
claimed that the defendant cheese makers conspired to depress the prices they paid
for milk produced in California. Id. at 982. In that case, the California Department
of Food and Agriculture used the bulk cheese price from the National Cheese
Exchange in its formula for setting the minimum price for California milk. Id. The
cheese makers allegedly rigged the price for bulk cheese in order to both decrease
the cost of bulk cheese and California milk. Id. The Ninth Circuit reversed the
District Court’s order dismissing the plaintiff milk producers’ claims. The court
noted that “[r]estrictions on price and output are the paradigmatic examples of
restraints of trade that the Sherman Act was intended to prohibit.” Id. at 986
(quoting NCAA v. Board of Regents, 468 U.S. 85, 107–8 (1984)).
{38} In Socony-Vacuum, prices of gasoline sold by major oil companies were
controlled by spot market prices. The oil companies engaged in buying programs
that “at least contributed to the price rise and the stability of the spot markets, and
to increases in the price of gasoline sold in the Mid-Western area during the
indictment period.” Id. at 219. In Socony-Vacuum, “[c]ompetition was not
eliminated from the markets; but it was clearly curtailed, since restriction of the
supply of gasoline, the timing and placement of the purchases under the buying
programs and the placing of a floor under the spot markets obviously reduced the
play of the forces of supply and demand.” Id. at 220. Justice Douglas also noted
that
prices are fixed . . . if the range within which purchases or sales will be
made is agreed upon, if the prices paid or charged are to be at a certain
level or on ascending or descending scales, if they are to be uniform, or
if by various formulae they are related to the market prices. They are
fixed because they are agreed upon. And the fact that . . . they are
fixed at the fair going market rate is immaterial. For purchases at or
under the market are one species of price-fixing.

Id. at 222.
{39} Defendants’ actions are a restraint of trade as that term is defined in the
Knevelbaard Dairies and Socony-Vacuum cases. Defendants participated in
drafting and approving the transmission of an e-mail to a number of ESPs that
were going to be participating in a state lead contract. The intent of this e-mail was
to influence the prices the firms submitted. The evidence shows that a number of
firms, including Defendant CBM, submitted the NCESPA rates, rather than a rate
they determined to be in their best interest. As noted above, the NCESPA rates
were inflated. But as Socony-Vacuum makes clear, Defendants’ acts would still be
in restraint of trade even if the survey was an accurate reflection of the fair market
rates. Competition consists of firms pursuing their self-interest and submitting
bids that will give them the best chance of obtaining the contract. When all firms
get together beforehand and agree to submit similar prices, competition is stifled.
In her deposition, Defendant Bateman noted that CBM submitted a bid because “it
was real prices for real work, and I wanted them to look at it,” not because she
thought CBM would be awarded the contract. (See Bateman Dep. 317:16–17.) One
of her reasons for submitting the bid was so that it would be before DENR in the
event they used the bids to create the new RRD. (Bateman Dep. 317:23–318:1.)
The bid ultimately submitted by CBM was based on the NCESPA rates, rather than
the rates CBM was then charging its customers, as reflected in the following
exchange from Bateman’s deposition:
Q. Why in your second submission did you not submit the CBM rates?
A. Because we submitted the NCESPA rates. They were reasonable for
the work that was going to be done supposedly.
Q. But they were not your rates at the time?
A. That’s right.
(Bateman Dep. 246:15–21.) Here, the State was deprived of competition in the
RFP and provided with inflated bids in order to affect DENR’s determination of the
RRD.
{40} Defendant Bateman was a participant in the conspiracy. Throughout her
deposition, she claims to have disagreed with the thoughts and attitudes of her
fellow board members on many occasions; but on no occasion does she appear to
have made her disagreement known to the board or anyone else. Furthermore, she
was complicit in the board’s actions by assenting to them, giving her seal of
approval, and in some cases helping to carry the board’s plans into action. There
are several examples of this pattern.
{41} On May 17, 2002, Bateman sent an e-mail to the new NCESPA group that
included a letter from NCESPA president Darin McClure (Bateman Dep. Ex. 16.)
In the letter and as noted above, McClure stated that “[c]ompetition is healthy but
in some ways this industry’s competitiveness has been destructive.” (Bateman Dep.
Ex. 16.) The letter was from McClure but also included the names and telephone
numbers of the NCESPA board of directors, including Bateman. When asked
whether the board approved the letter, Bateman responded “I don’t know that we
went through a formal board meeting for approval.” (Bateman Dep. 54: 17–20.)
She also testified that she disagreed with McClure’s choice of words that
competition had been destructive in the ESP industry. (Bateman Dep. 54:25–55:7.)
Bateman testified that she “probably” voiced her concerns, but couldn’t recall
specifically whether she made her concerns known. (Bateman Dep. 55: 8–12.)
Despite “absolutely” disagreeing with McClure’s statement, Batemen sent the e-
mail anyway, with her name and telephone number listed at the bottom. (See
Bateman Dep. 56: 7–11.)
{42} Bateman also testified that she disagreed with a number of things said in
e-mails between NCESPA board members in August of 2002. On August 13,
McClure wrote that

if any firms responds [sic] to this solicitation and submits [sic] prices at
or below the current reasonable rate document, it will begin to
undermine everything we are fighting for. If a NCESPA member firm
submits anything less than what we have proposed as reasonable
rates, I think it severely undermines our position. I think this is one of
the first instances where we will see if NCESPA has any teeth to it.
The response the State gets on this will go a long way in how they view
us as an organization.

(McClure Aff. Ex. 13.) Once again, Bateman testified that she disagreed with these
statements. (Bateman Dep. 119:5–25.) However, the next e-mail in the record
from Bateman to the NCESPA board (Bateman Dep. Ex. 26) contains no
statements that she disagreed with the writings of McClure and others. Bateman
testified that she disagreed with the ideas being discussed in the e-mails, but
couldn’t recall where she voiced her disagreement. (Bateman Dep. 120: 11–19.)
Bateman also testified that she disagreed with Keith Anthony’s statements
reflecting his anger at firms who had “low-balled” the bid. However, she didn’t
know whether she responded to his e-mail or if she communicated her
disagreement to any other members of the board. (Bateman Dep. 169: 4–14.)
{43} Bateman’s counsel asked her, “do you know of any rule or requirement by
NCESPA or any other organization that you belong to that you have to agree or
disagree with statements made by someone else in writing, verbally, or otherwise?”
(Bateman Dep. 186: 18–22.) Bateman responded in the negative. (Bateman Dep.
186: 23.) Although such a requirement may not have been in place, Plaintiffs’
Motion for Summary Judgment requires the Court to evaluate the evidence before
it. Bateman has testified that she disagreed with various acts of NCESPA board
members, but her actions are not in conformity with such disagreement. Bateman
has presented the Court with no documents reflecting her disagreement. In her
deposition testimony, she is unable to specify when or if she made her disapproval
known to the rest of the board. Most troubling of all, Bateman approved the
NCESPA board’s actions in spite of her disagreement. She sent the e-mail to
potential NCESPA members along with the letter from McClure, and allowed her
name to be included on the letter stating that competition in the ESP industry had
been destructive. She approved the transmission of the broadcast e-mail and its
recommendation to use the NCESPA rates despite her concerns about collusion.
She submitted CBM’s bid with the NCESPA rates in compliance with the
conspiracy. She took part in the efforts to locate firms who low-balled the bid. The
record here clearly indicates that Bateman and CBM participated in the conspiracy.
{44} Furthermore, the conspiracy they helped advance injured the public. A
conspiracy to restrain trade must operate to the prejudice of the public in order to
be actionable. In this case, the public was injured because a state agency was
deprived of a competitive bidding process as the result of an agreement between
firms in the environmental services industry. There existed an intent to artificially
inflate the RRD rates as well. According to Dexter Matthews, Director of the
Division of Waste Management of DENR, the agency “was made aware if the
allegations against certain companies surrounding their bids to the August 8, 2002
RFP, but determined that it was in the best interest of DENR to move forward with
the information collected from the RFP, because comparison of the competitive
market data collected from responses to the RFP to the RRD then in effect showed
that the rates needed to be adjusted downward to reflect market prices.” (Matthews
Aff. ¶ 8.) The “competitive market data” was comprised of the bids after the
collusive bids were removed. However, Mr. Matthews concluded that even the
noncollusive bids were skewed upward because “the recipients of the emails who
responded to the RFP knew that there was a concerted effort to get engineering
firms not to respond and to get responding firms to submit inflated bids, and
therefore that competition for the contracts would likely be blunted.” (Matthews
Aff. ¶ 9.) DENR used upwardly skewed numbers to formulate the revised RRD,
and was also damaged by the suppression of competitive bidding on the RFP.
{45} The record also contains sufficient evidence to conclude that there was
injury as a result of the conspiracy. Testimony indicates that a number of firms
would have submitted lower bids in the absence of a conspiracy. McClure stated
that “[i]n the absence of concerns about DENR’s use of the responses to the RFP in
formulating a new Reasonable Rate Document, Mid-Atlantic likely would have
submitted at least some lower figures in response to that RFP than it ultimately
submitted.” (McClure Aff. ¶ 6, Ex. 12.)
{46} In sum, the facts show that there was a conspiracy in violation of section
75-1 and 75-2. Defendants Bateman and CBM have not presented the Court with
any evidence to call these facts into question or to rebut the evidence of their
participation in the conspiracy. The existence of the conspiracy is admitted by the
other conspirators. The goal of the conspiracy was to artificially inflate the market
price information DENR used to set its rates for reimbursement and for state lead
work. In short, the conspirators sought to inflate prices by artificially and
dishonestly manipulating the information used to establish the RRD.

IV.
DAMAGES
{47} Based on the foregoing, DENR entered “into a contract which is or has
been the subject of a conspiracy prohibited by G.S. 75-1 or 75-2 . . . .” See N.C. Gen.
Stat. § 133-28(a). The specific contracts DENR entered into were pursuant to the
RFP, the bids for which were improperly influenced by NCESPA. DENR awarded
two contracts pursuant to the RFP, one to Force Environments Service Company,
LLC and another to Geological Resources, Inc. (Ryals Aff. ¶ 15.) Under section 133-
28(b), DENR is allowed to choose the measure of damages, which “shall be either
the actual damages or ten percent (10%) of the contract price which shall be trebled
as provided in G.S. 75-16.”
{48} In this case, DENR has elected to recover ten percent of the contract price,
trebled. (Mem. Supp. Pls.’ Mot. Summ. J. 23.) The total contract price is equal to
the sum of the amounts paid under the Force Environmental and Geological
Resources contracts:
$852,008.37 Force Environmental Contract
+ 916,107.44 Geological Resource Contract
1,768,115.81 Total Contract Price

Ten percent of the total contract price is $176,811.58. Trebled, this amount comes
to $530,434.74.
{49} Thus, ten percent of the contract price trebled is $530,434.74. This is the
amount owed to DENR under section 133-28. The Court has no discretion to adjust
this amount. Ten percent of the contract price is trebled “as provided in G.S. 75-
16.” N.C. Gen. Stat. § 133-28(b). Section 75-16 states that “if damages are assessed
. . . judgment shall be rendered in favor of the plaintiff against the defendant for
treble the amount fixed by the verdict.” In Marshall v. Miller, 302 N.C. 539, 276
S.E.2d 397 (1981), the North Carolina Supreme Court concluded “that the
Legislature intended trebling of any damages assessed to be automatic once a
violation is shown.” Id. at 547, 276 S.E.2d at 402. Automatic trebling of damages
leaves no room for judicial discretion. Atl. Purchasers, Inc. v. Aircraft Sales, Inc.,
705 F.2d 712, 715 (4th Cir. 1983).
{50} Although the amount of damages is fixed by statute and the State’s
election thereunder, the Court must consider that a portion of the damages has
already been paid by some of the former Defendants in this action. In a Consent
Decree and Order of Dismissal dated December 13, 2004, Defendants McClure,
Proctor, and Mid-Atlantic agreed to pay civil penalties to the North Carolina
Department of Justice and damages to DENR as follows:

Defendant Penalties Damages
Mid-Atlantic $100,000 80,000
McClure 60,000
Proctor 10,000
The damages amount paid by Mid-Atlantic included “$60,000 to resolve DENR’s
statutory damages claims under N.C.G.S. § 133-28.” (Consent Degree and Order of
Dismissal Regarding Darin M. McClure, Thomas A. Proctor, and Mid-Atlantic
Associates, Inc., Dec. 13, 2004 § IV.)
{51} Defendants Shield Engineering and S&ME also entered into consent
degrees and each agreed to pay $60,000 to resolve DENR’s claims under section
133-28. (Ryals Aff. ¶ 16.) Thus the total amount paid so far in satisfaction of the
133-28 claims is $180,000. 2 The amount remaining to be paid is as follows:
$530,434.74 Ten percent of contract price, trebled
- 180,000.00 Already paid in settlement
350,434.74 Remaining to be paid

DENR is entitled to recover this amount from Defendants Bateman and CBM, who
are jointly and severally liable as the only remaining defendants in this action. The
other defendants were free to negotiate settlements with the State. The Mid-
Atlantic group paid a total of $250,000 in settlement of the State’s claims for civil
penalties and damages. Shield and Anthony paid a total of $210,000. S&ME,
Quarles, and Einsman paid a total of $180,000. Other defendants paid a total of
$95,000 in settlement of the State’s claims for civil penalties. The State may
recover the remainder of its statutory damages from Defendants Bateman and
CBM.

V.
CONCLUSION
{52} Based on the foregoing, it is hereby ORDERED, ADJUDGED, and
DECREED that Plaintiffs’ Motion for Summary Judgment is GRANTED. Plaintiffs
may recover damages in the amount of $350,434.74 from Defendants Bateman and
CBM and Judgment is hereby entered in favor of Plaintiff DENR in that amount.

2 In settling its section 133-28 claims with the Mid-Atlantic, Shield, and S&ME for $180,000, the

State ensured it would recover at least ten percent of the contract price.
IT IS SO ORDERED, this the 19th day of July, 2007.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11057470. Public record. Not legal advice.