South Carolina Business Law Blog

The  South Carolina Insurance Data Security Act  (“Act”), fashioned after the  NAIC Insurance Data Security Model Law  (Model Law), went into effect on January 1, 2019. South Carolina was the first state in the nation to pass this legislation, and others (Ohio, Mississippi), have followed suit. The Act requires that each South Carolina person licensed or authorized by the South Carolina Department of Insurance (DOI) a “Licensee” must implement, no later than July 1, 2019, a “comprehensive written information security program” (“Program”) designed to protect nonpublic information (NPI) and the security of the Licensee’s information system. In addition, the Act requires a Licensee to report to the Director of the DOI within 72 hours following an actual or potential “cybersecurity event.” S.C. Code Section 38-99-40(A) (Section 6(A) of the Model Act). While South Carolina Licensees (hopefully) are well down the path to meeting the Act’s requirements, the...

On December 20, 2018 the Agricultural Improvement Act of 2018  (the "2018 Farm Bill") became law.  Following closely on the heels of the 2018 Farm Bill, on March 28, 2019 the South Carolina Hemp Farming Act  ("S.C. Hemp Farming Act") was signed into law.  The following is a brief overview of the status of hemp (also called "commercial hemp" or "industrial hemp") farming and regulation in South Carolina in the wake of the 2018 Farm Bill and the S.C. Hemp Farming Act. Background The terms "hemp" (which has non-drug connotations and uses) and "marijuana" (no further explanation necessary) describe the same plant genus: cannabis. The difference between the two is generally based on the relative amount of tetrahydrocannabinol (THC) contained in the plant. Hemp plants are cultivated to produce fiber and seeds and very little if any THC. Marijuana plants, on the other hand, are cultivated to produce more THC. THC...

Shoulda' Seen My Servers .... Disputes of all kinds (between individuals, between businesses, between individuals and businesses, etc.) often highlight who said what to whom. In the information age, what better place to look for what has been said than in email communications? And as is often the case in litigation between jilted lovers and former business partners (acting like jilted lovers?), one party either has or can guess the email password of the other. However, attorneys and their clients must be very careful in gaining access to email communications to which they are not a party. The Stored Communications Act (SCA), a 1986 federal statute  prohibiting unauthorized access to emails in certain circumstances, has been given very different readings by the South Carolina Supreme Court and the Fourth Circuit Court of Appeals. The SCA The SCA provides a civil cause of action against anyone who “intentionally accesses without authorization a facility through w...

But Bazzle Keeps Coming Back Up .... Introduction: Class Arbitration Castles Burning ....     Years ago this platform discussed at some length how more than one United States Supreme Court (SCOTUS) decision has considered the South Carolina Supreme Court's decision in Bazzle : in the context of who decides issues of arbitrability, as well as whether arbitration agreements allow classwide arbitration. (For that background, click here . For a broader survey of arbitration and class actions in the context of SCOTUS and South Carolina-- at least at that point in time-- click here ). SCOTUS recently took up the issue of class arbitration again, ruling in Lamps Plus that an ambiguous contract to arbitrate could not authorize class arbitration. Lamps Plus extended the rationale of  Stolt-Nielsen , a 2010 SCOTUS decision concluding that an agreement that is "silent" on the question of class arbitration could not compel the parties to classwide arbitration. As ...

 It is Spring again, and the national pastime is in full swing. This year Spring also brought knowledge of the Heartbleed Bug – another threat to the security of information stored and transmitted online.  And just as baseball is a fixture of the American landscape, so too unfortunately are data breaches and other information security threats. As of April 29 , 2014 , the Identify Theft Resource Center (ITRC) has identified 260 breaches (affecting over 8 million records) that have taken place in 2014 alone. Likewise, the ITRC recorded 614 breaches in 2013, a 30% increase over the 470 breaches it reported in 2012.  Each new major data breach (think Target) is reminiscent of those that have come before it (Citibank, Sony, Heartland, Countrywide, etc.).  MLB Hall of Fame catcher Yogi Berra, during his more than 50 years as a Major League player, manager and coach, offered (unwittingly or otherwise) baseball and its reading and listening public ...

A bill pending in the South Carolina General Assembly that would make "bad faith assertions of patent infringement" an "unfair trade practice" under South Carolina law got a "jurisdictional boost" from a recent Opinion and Order issued by a Vermont Federal Court judge. Background The actions of patent-assertion entities (PAEs) that purportedly own patents and use litigation and the threat of litigation to enforce them are well-documented.  (For a brief description of the topic and some additional resources, click here ). PAEs are referred to by their detractors as "patent trolls." As a general proposition, patent law is exclusively federal in nature.  Congress has given the U.S. district courts original and exclusive jurisdiction, pursuant to 28 U.S. Section 1338 , over any civil action related to patents. As a result, litigation involving the validity, infringement, and enforcement of patents must take place in federal district court. V...

Introduction (This is an adapted version of a presentation made at the S.C Bar Convention). Each passing year brings more appellate court decisions, at the state and federal levels, addressing arbitration.  2013 was no exception. The South Carolina Supreme Court considered several issues of first impression, in the areas of arbitration award confirmation, “manifest disregard of the law,” and “evident partiality.”  And our appellate courts took up questions about whether arbitration claims are subject to the Federal Arbitration Act (“FAA”) , the “unconscionability” of an agreement to arbitrate, waiver of the right to arbitrate, and the scope of an agreement to arbitrate. New Law Confirmation of Arbitration Award   Henderson v. Summerville Ford-Mercury , Supreme Court, September 11, 2013 Takeway Payment of an arbitration award does not prevent confirmation of the award. Background Purchaser and car Dealer arbitrated their SCUT...