udtpa claim in North Carolina

2018App. 645, 654 , 760 S.E.2d 755, 761 (2014) (dismissing plaintiff's UDTPA claim because “defendants’ misconduct within the confines of the partnership was not ‘in or affecting commerce’”). 73.

2018App. 645, 654 , 760 S.E.2d 755, 761 (2014) (dismissing plaintiff’s UDTPA claim because “defendants’ misconduct within the confines of the partnership was not ‘in or affecting commerce . . . .’”). 57.

2018Ct. Aug. 4, 2017) (dismissing UDTPA claim after concluding “that the conduct underlying Plaintiff’s . . . claim constitute[d] an ‘extraordinary event’ tied to the ‘change in ownership of the security [at issue]” (quoting HAJMM Co., 328 N.C. at 594, 403 S.E.2d at 493 )). 146.

2018Ct. Aug. 4, 2017) (dismissing UDTPA claim after concluding “that the conduct underlying Plaintiff’s . . . claim constitute[d] an ‘extraordinary event’ tied to the ‘change in ownership of the security [at issue]” (quoting HAJMM Co., 328 N.C. at 594, 403 S.E.2d at 493 )). 146.

2023Given this conflicting evidence and its bearing on whether Chris breached his fiduciary duty to rFactr, the Court concludes that Defendants’ SJ Motion on this claim must be denied. 59 3. rFactr’s UDTPA Claim Against Both Defendants 40. “[T]o establish a prima facie claim for unfair trade practices [under N.C.G.S. § 75-1.1], a 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.” Dalton v. Camp, 353 N.C. 647, 656 (2001). 41. rFactr bases its UDTPA

2018Dalton, 353 N.C. at 657–58, 548 S.E.2d at 711 (affirming grant of summary judgment dismissing UDTPA claim where alleged conduct and potential unfairness were confined within a single business); JS Real Estate Invs.

2022AUTOMONEY, INC. 2022-NCCOA-498 Opinion of the Court Buckland, 328 N.C. 240, 245 , 400 S.E.2d 440, 443 (1991) (emphasis added) (citing Marshall v. Miller, 302 N.C. 539, 543 , 276 S.E.2d 397, 400 (1981)). ¶ 41 Here, for the purpose of the UDTPA claim, enforcement of the forum selection would defeat the original purpose of the law by requiring aggrieved consumers to bring a cause of action outside of this State.

2022AUTOMONEY, INC. 2022-NCCOA-498 Opinion of the Court Buckland, 328 N.C. 240, 245 , 400 S.E.2d 440, 443 (1991) (emphasis added) (citing Marshall v. Miller, 302 N.C. 539, 543 , 276 S.E.2d 397, 400 (1981)). ¶ 41 Here, for the purpose of the UDTPA claim, enforcement of the forum selection would defeat the original purpose of the law by requiring aggrieved consumers to bring a cause of action outside of this State.

2024In fact, the allegations made pursuant to plaintiffs’ UDTPA claim mirror the allegations made pursuant to their claim of fraud. “[A] plaintiff who proves fraud thereby establishes that unfair or deceptive acts have occurred.” Bhatti v. Buckland, 328 N.C. 240, 243 , 400 S.E.2d 440, 442 (1991).

2024In fact, the allegations made pursuant to plaintiffs’ UDTPA claim mirror the allegations made pursuant to their claim of fraud. “[A] plaintiff who proves fraud thereby establishes that unfair or deceptive acts have occurred.” Bhatti v. Buckland, 328 N.C. 240, 243 , 400 S.E.2d 440, 442 (1991).

2022See Craven v. SEIU COPE, 188 N.C.

2022See Craven v. SEIU COPE, 188 N.C.

2020App. 214, 236 , 752 S.E.2d 634, 650 (2013) (holding that a violation of the TSPA can form the basis of a UDTPA claim); Drouillard v. Keister Williams Newspaper Services, Inc., 108 N.C.

2020App. 214, 236 , 752 S.E.2d 634, 650 (2013) (holding that a violation of the TSPA can form the basis of a UDTPA claim); Drouillard v. Keister Williams Newspaper Services, Inc., 108 N.C.

2014App. 30 , 392 S.E.2d 663 ). {76} There is adequate evidence to defeat Defendants’ Motion as to the UDTPA claim.

2014App. 30 , 392 S.E.2d 663 ). {76} There is adequate evidence to defeat Defendants’ Motion as to the UDTPA claim.

2008App. at 62 , 418 S.E.2d at 700 (stating even intentional breaches of contract are not sufficient to be unfair or deceptive and indicating plaintiff must show substantial aggravating circumstances attending the breach to recover under the UDTPA). {60} In this context, it does not matter that the purported breach resulted from A-1’s alleged accounting irregularities, as that fact alone is insufficient to elevate a contract dispute into an UDTPA claim. {61} Accordingly, the Court GRANTS Plaintiff’s Motion as to that portion of Blount’s Counterclaim purporting to allege a violation of the UDTPA.

2008App. at 62 , 418 S.E.2d at 700 (stating even intentional breaches of contract are not sufficient to be unfair or deceptive and indicating plaintiff must show substantial aggravating circumstances attending the breach to recover under the UDTPA). {60} In this context, it does not matter that the purported breach resulted from A-1’s alleged accounting irregularities, as that fact alone is insufficient to elevate a contract dispute into an UDTPA claim. {61} Accordingly, the Court GRANTS Plaintiff’s Motion as to that portion of Blount’s Counterclaim purporting to allege a violation of the UDTPA.

2025Cf. Krawiec v. Manly, 370 N.C. 602, 613 (2018) (discussing how reliance upon unsuccessful claim underpinning UDTPA claim resulted in dismissal of the UDTPA claim). 71.

2025Cf. Krawiec v. Manly, 370 N.C. 602, 613 (2018) (discussing how reliance upon unsuccessful claim underpinning UDTPA claim resulted in dismissal of the UDTPA claim). 71.

2021Our appellate courts have made clear that where, as here, a plaintiff asserts a misrepresentation-based UDTPA claim, the plaintiff must plead “reliance on the misrepresentation in order to show the necessary proximate cause[,]” Bumpers, 367 N.C. at 88 , and, in particular, that “the plaintiff [has] affirmatively incorporated the alleged misrepresentation into his or her decision-making process[,]” id. at 90 . 51.

2021Our appellate courts have made clear that where, as here, a plaintiff asserts a misrepresentation-based UDTPA claim, the plaintiff must plead “reliance on the misrepresentation in order to show the necessary proximate cause[,]” Bumpers, 367 N.C. at 88 , and, in particular, that “the plaintiff [has] affirmatively incorporated the alleged misrepresentation into his or her decision-making process[,]” id. at 90 . 51.

2024The practice may also be “immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.” Id. (holding that a violation of regulatory statutes regarding warranty repairs for manufactured homes may support a UDTPA claim); see also Morgan v. AT&T Corp., 168 N.C.

2024The practice may also be “immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.” Id. (holding that a violation of regulatory statutes regarding warranty repairs for manufactured homes may support a UDTPA claim); see also Morgan v. AT&T Corp., 168 N.C.

2022See, e.g., Stanley v. Martin, 339 N.C. 717 , 723–25 (1995); Winston Realty Co. v. G.H.G., Inc., 314 N.C. 90 , 97–99 (1985). ¶ 33 Plaintiff’s argument regarding this issue was not argued before, nor considered by, the Court of Appeals, and there is no decision from the lower appellate forum concerning the trial court’s dismissal of plaintiff’s UDTPA claim which was lodged against defendant Midtown Area Partners II, LLC when plaintiff amended its complaint against that party as a matter of right.6 The argument was not referenced in plaintiff’s petition for discretionary review, and thus was not

2022See, e.g., Stanley v. Martin, 339 N.C. 717 , 723–25 (1995); Winston Realty Co. v. G.H.G., Inc., 314 N.C. 90 , 97–99 (1985). ¶ 33 Plaintiff’s argument regarding this issue was not argued before, nor considered by, the Court of Appeals, and there is no decision from the lower appellate forum concerning the trial court’s dismissal of plaintiff’s UDTPA claim which was lodged against defendant Midtown Area Partners II, LLC when plaintiff amended its complaint against that party as a matter of right.6 The argument was not referenced in plaintiff’s petition for discretionary review, and thus was not

2012STAT. § 75–1.1(b) (2011). {62} When alleging a claim under the UDTPA, “proof of an independent tort generally is sufficient to make out a separate UDTPA claim.” Battleground, 2007 NCBC 33 ¶ 75 (citing Sara Lee Corp. v. Carter, 351 N.C. 27 , 31–33, 519 S.E.2d 308 , 311–12 (1999) (holding that the breach of a fiduciary duty by an employee also gave rise to a UDTPA claim); Governor’s Club, Inc. v. Governors Club Ltd.

2012STAT. § 75–1.1(b) (2011). {62} When alleging a claim under the UDTPA, “proof of an independent tort generally is sufficient to make out a separate UDTPA claim.” Battleground, 2007 NCBC 33 ¶ 75 (citing Sara Lee Corp. v. Carter, 351 N.C. 27 , 31–33, 519 S.E.2d 308 , 311–12 (1999) (holding that the breach of a fiduciary duty by an employee also gave rise to a UDTPA claim); Governor’s Club, Inc. v. Governors Club Ltd.

2012P’ship., 152 N.C.

2012P’ship., 152 N.C.

2025See Heron Bay Acquisition, LLC v. United Metal Finishing, Inc., 245 N.C.

2025See Heron Bay Acquisition, LLC v. United Metal Finishing, Inc., 245 N.C.

2022See, e.g., Stanley v. Martin, 339 N.C. 717 , 723–25 (1995); Winston Realty Co. v. G.H.G., Inc., 314 N.C. 90 , 97–99 (1985). ¶ 33 Plaintiff’s argument regarding this issue was not argued before, nor considered by, the Court of Appeals, and there is no decision from the lower appellate forum concerning the trial court’s dismissal of plaintiff’s UDTPA claim which was lodged against defendant Midtown Area Partners II, LLC when plaintiff amended its complaint against that party as a matter of right.6 The argument was not referenced in plaintiff’s petition for discretionary review, and thus was not

2022See, e.g., Stanley v. Martin, 339 N.C. 717 , 723–25 (1995); Winston Realty Co. v. G.H.G., Inc., 314 N.C. 90 , 97–99 (1985). ¶ 33 Plaintiff’s argument regarding this issue was not argued before, nor considered by, the Court of Appeals, and there is no decision from the lower appellate forum concerning the trial court’s dismissal of plaintiff’s UDTPA claim which was lodged against defendant Midtown Area Partners II, LLC when plaintiff amended its complaint against that party as a matter of right.6 The argument was not referenced in plaintiff’s petition for discretionary review, and thus was not

2022See, e.g., Griffith v. Glen Wood Co., 184 N.C.

2022See, e.g., Griffith v. Glen Wood Co., 184 N.C.

2022See Broussard, 945 F. Supp. at 917 .

2022See Broussard, 945 F. Supp. at 917 .

2020App. 773, 776 , 661 S.E.2d 278, 281 (2008) (“This Court has held that ‘it is not necessary for the plaintiff to show fraud, bad faith, deliberate or knowing acts of deception, or actual deception,’ but ‘plaintiff must . . . show that the acts complained of possessed the tendency or capacity to mislead, or created the likelihood of deception [to support a UDTPA claim].’”) (quoting Overstreet v. Brookland, Inc., 52 N.C.

2020App. 773, 776 , 661 S.E.2d 278, 281 (2008) (“This Court has held that ‘it is not necessary for the plaintiff to show fraud, bad faith, deliberate or knowing acts of deception, or actual deception,’ but ‘plaintiff must . . . show that the acts complained of possessed the tendency or capacity to mislead, or created the likelihood of deception [to support a UDTPA claim].’”) (quoting Overstreet v. Brookland, Inc., 52 N.C.

2019App. 520, 526 , 586 S.E.2d 507, 512 (2003) (affirming dismissal of UDTPA claim based solely on defendants’ alleged misappropriation of trade secrets where evidence was insufficient to sustain misappropriation claim).

2017App. at 526 , 586 S.E.2d at 512 (holding that plaintiff’s UDTPA claim based solely on defendants’ alleged misappropriation of trade secrets must fail when summary judgment is granted on the misappropriation claim). 67.

2008Maurer v. SlickEdit, Inc., 2005 NCBC 1, ¶ 40 (N.C.

2008Maurer v. SlickEdit, Inc., 2005 NCBC 1, ¶ 40 (N.C.

2020App. 773, 776 , 661 S.E.2d 278, 281 (2008) (“This Court has held that ‘it is not necessary for the plaintiff to show fraud, bad faith, deliberate or knowing acts of deception, or actual deception,’ but ‘plaintiff must . . . show that the acts complained of possessed the tendency or capacity to mislead, or created the likelihood of deception [to support a UDTPA claim].’”) (quoting Overstreet v. Brookland, Inc., 52 N.C.

2020App. 773, 776 , 661 S.E.2d 278, 281 (2008) (“This Court has held that ‘it is not necessary for the plaintiff to show fraud, bad faith, deliberate or knowing acts of deception, or actual deception,’ but ‘plaintiff must . . . show that the acts complained of possessed the tendency or capacity to mislead, or created the likelihood of deception [to support a UDTPA claim].’”) (quoting Overstreet v. Brookland, Inc., 52 N.C.

2018Mitchell v. Linville, 148 N.C.

2018Mitchell v. Linville, 148 N.C.

2026Ct. Mar. 25, 2015) (holding the learned profession exemption applies where the alleged conduct in support of the UDTPA claim involves the sort of professional services “often carried out by law firms or attorneys” (quoting Reid v. Ayers, 138 N.C.

2026Ct. Mar. 25, 2015) (holding the learned profession exemption applies where the alleged conduct in support of the UDTPA claim involves the sort of professional services “often carried out by law firms or attorneys” (quoting Reid v. Ayers, 138 N.C.

2026Inc., 173 N.C.

2026Inc., 173 N.C.

2026App. 568, 573 (2009), aff'd, 364 N.C. 47 (2010) (rejecting a UDTPA claim against a partner alleged to have breached his duty of loyalty to the partnership and explaining that “this usurpation harmed [the partnership] and Plaintiffs, but had no impact in the broader marketplace”); see also Alexander v. Alexander, 250 N.C.

2026App. 568, 573 (2009), aff'd, 364 N.C. 47 (2010) (rejecting a UDTPA claim against a partner alleged to have breached his duty of loyalty to the partnership and explaining that “this usurpation harmed [the partnership] and Plaintiffs, but had no impact in the broader marketplace”); see also Alexander v. Alexander, 250 N.C.

2020App. 169 , 172–73, 423 S.E.2d 324 , 326–27 (1992) (same); Medical Staffing Network, Inc. v. Ridgway, 194 N.C.

2020App. 169 , 172–73, 423 S.E.2d 324 , 326–27 (1992) (same); Medical Staffing Network, Inc. v. Ridgway, 194 N.C.

2008App. 570, 574 , 495 S.E.2d 920, 923 (1998)). {69} Generally, proof of an independent tort is sufficient to make out a separate UDTPA claim.

2008App. 570, 574 , 495 S.E.2d 920, 923 (1998)). {69} Generally, proof of an independent tort is sufficient to make out a separate UDTPA claim.