concluding that there was no claim under N.C. Gen. Stat. § 75-1.1 where employer changes rules governing eligibility for service on employer’s board of directors since “[alteration of [employer’s] by-laws ... is not a day-to-day, regular business activity”
How later courts described this case
- concluding that there was no claim under N.C. Gen. Stat. § 75-1.1 where employer changes rules governing eligibility for service on employer’s board of directors since “[alteration of [employer’s] by-laws ... is not a day-to-day, regular business activity”
- finding that the “defendant was organized to provide electricity to the members of the utility cooperation” and that “alteration of its by-laws by the board of directors is not a day-to-day, regular business activity,” so it does not affect commerce
- stating that “N.C. Gen.Stat. § 75-1.1 was not meant to encompass all business activities or all wrongdoings in a business setting but ‘was adopted to ensure that the original intent of the statute ... was effectuated.’ ”
- finding bylaw change did not affect commerce under section 75-1.1 where “defendant was organized to provide electricity to the members of the utility cooperation” and “alteration of its by-laws by the board of directors is not a day-to-day, regular business activity”
Written by the judges who cited it.
The opinion
HUDSON, Judge,
dissenting.
Because North Carolina follows principles of notice pleading, and because the plaintiff included allegations of all of the essential elements of a claim for unfair and deceptive trade practices, I believe that his complaint is sufficient to survive the motion to dismiss under Rule 12(b)(6). Thus, I respectfully dissent.
*359 In particular, I disagree with the conclusion that the complaint does not allege improper conduct “affecting commerce” of the type intended to be covered by N.C. Gen. Stat. § 75-1.1 . Among the allegations of the complaint are the following:
6. Prior to his termination, Plaintiff Wilson voiced and expressed concerns about the management and delivery of services to the people of Western North Carolina by Defendant Blue Ridge Electric Membership Corporation. These concerns included, but were not limited to, the failure of Defendant to do regular pole counts; and determination by the company of expansion of phone and cable companies on company properties to ensure that the company is collecting all charges due for joint use of poles; and service deficiencies.
8. Plaintiff’s concerns were based on his personal knowledge of the management and delivery of services to the people of Western North Carolina by Defendant Blue Ridge Electric Membership Corporation.
In Paragraph 30 of the complaint, plaintiff specifically alleges that the “Defendant Blue Ridge Electric Membership Corporation engaged in an unfair and deceptive act affecting commerce.” In paragraphs 30 and 31 of the complaint, among others, the plaintiff alleges that the amendment to the defendant’s by-laws kept individuals off the board of directors who “were likely to know of mismanagement and service deficiencies” and “who were likely to act to expose such deficiencies to the people of Western North Carolina.” Further, in paragraphs 32 and 33, the plaintiff alleges that these actions “caused injury to the plaintiff’ and resulted in further injury to “the people of Western North Carolina who are the owners, members, and beneficiaries of Defendant.”
Here, the defendant’s day-to-day business consisted of selling electric power to its members, described in the complaint as “everyone who purchases power.” Thus to the extent that these allegations are of conduct that may affect the charges paid and service received by the consuming public, such conduct is exactly the type of activity that Chapter 75 was enacted to address. In my view, therefore, the complaint contains allegations of conduct affecting commerce as contemplated by N.C. Gen. Stat. § 75-1.1 that are sufficient to withstand scrutiny under Rule 12(b)(6). Accordingly, I respectfully dissent.