Bill Summary for S 648 (2013-2014)

Summary date: 

Jul 31 2014

Bill Information:

View NCGA Bill Details2013-2014 Session
Senate Bill 648 (Public) Filed Tuesday, April 2, 2013
A BILL TO BE ENTITLED AN ACT TO CREATE TRANSPARENCY IN CONTRACTS BETWEEN THE ATTORNEY GENERAL AND PRIVATE ATTORNEYS, TO PREVENT THE ABUSE OF PATENTS, TO ALLOW FOR SHAREHOLDER ASSENT TO EXCLUSIVE FORUM, AND TO LIMIT ASBESTOS-RELATED LIABILITIES FOR CERTAIN SUCCESSOR CORPORATIONS.
Intro. by Jackson, Meredith, J. Davis.

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Bill summary

Conference report makes the following changes to the 6th edition:

Changes the long title.

Adds Part titles to the bill.

Amends proposed GS 114-9.7, concerning oversight of third-party contracting by the Attorney General, to provide clarifying language that the report due by February 1 is only due following a year in which a state agency has entered into a contingency fee contract with a private attorney.

Provides an effective date for proposed GS Chapter 114, Article 2A, and for clarifying language adding to GS 114-2.3, concerning limited use of private counsel, providing that the sections are effective when they become law, applying to any contract to retain private counsel authorized by the Attorney General entered into on or after that date.

Amends GS 75-137 and GS 75-138, concerning patent abuse assertions, making clarifying changes. 

Amends GS 75-141, concerning enforcement, remedies, and damages for patent abuse assertions, providing that persons who have caused another to deliver or send a demand to a target in North Carolina is subject to suit in North Carolina.

Enacts new GS 55-7-50, Exclusive forum or venue provisions valid, providing that a provision in the articles of incorporation or bylaws of a corporation that specifies a forum/venue in North Carolina as the exclusive forum/venue for litigation concerning the internal affairs of the corporation are valid and enforceable. 

Amends GS Chapter 99E by adding new Article 5, Successor Asbestos-Related Liability.

Adds new GS 99E-40 (Definitions), providing the terms and definitions to be used in this Article, including asbestos claimcorporationsuccessor, successor asbestos-related liability, transferor.

Creates new GS 99E-42 (Limitation on successor asbestos-related liability), providing that, except as further limited in the statute, the cumulative successor asbestos-related liabilities of a successor corporation are limited to the fair market value of the total gross assets of the transferor, determined at the time of the merger/consolidation. No successor or asbestos-related liabilities are available in excess of this limitation. If a transferor assumes or incurs successor asbestos-related liabilities in connection with a prior merger/consolidation with a prior transferor, the fair market value of the total assets of the prior transferor determined at the time of the earlier merger or consolidation will be substituted for the limitation described above for purposes of determining the limitation of liability of a successor corporation.

Creates new GS 99E-41 (Applicability), establishing that the limitations in GS 99E-42 apply to any successor except for (1)  certain workers' compensation benefits, (2) claims against a corporation that are not considered a successor asbestos-related liability, (3) any obligation under 29 USC 151 or under any collective bargaining agreement, (4) certain successors that continued in the business of mining asbestos or in named related asbestos businesses.

Creates new GS 99E-43 (Establishing fair market value of total gross assets). Allows a successor corporation to establish fair market value of total gross assets for the purpose of limitations under GS 99E-35 through any one of the following methods: (1) by reference to the going concern value of the assets or to the purchase price attributable to or paid for the assets in an arms-length transaction or (2) in the absence of other readily available information from which the fair market value can be determined, by reference to the value of the assets recorded on a balance sheet.

Provides that total gross assets include intangible assets. Sets other conditions to the extent that total gross assets include any liability insurance that was issued to the transferor whose assets are being valued for purposes of this section, no insurance or other obligations will be affected.

Creates new GS 99E-44 (Adjustment), providing that the fair market value of total gross assets at the time of the merger/consolidation will increase annually at a rate equal to the sum of (1) the prime rate as listed in the Wall Street Journal for each calendar year since the merger/consolidation and (2) 1 percent.

The above calculation is subject to the following limitations: (1) the rate defined above cannot be compounded, (2) the adjustment of the fair market value of total gross assets will continue as provided above until the adjusted value is first exceeded by the cumulative amounts of successor asbestos-related liabilities paid or committed to be paid, and (3) no adjustment can be applied to any liability insurance that may be included in the definition of total gross assets in GS 99E-43.

Creates new GS 99E-45 (Scope of Article; application), providing that the article will be liberally construed with regard to successors and it will apply to all asbestos claims filed against a successor on or after the effective date of this act. 

Provides an effective date of January 1, 2015, for the above asbestos related provisions.

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