Is That Indemnification Provision Enforceable? Lessons From Fifteen Years of Case Law Applying Va. Code § 11-4.1

Wednesday, February 11th, 2026

Article originally featured in the Virginia Lawyer, Vol. 74 No. 5 published by the Virginia State Bar.

It’s Wednesday night, and like most lawyers (perhaps a slight exaggeration), you and your esteemed colleagues are deep in a game of construction law jeopardy. Amid the fervor of the room, and noticing you are only slightly behind the leader, you select your next category—“Contract Terms” for $800. Your friend and moderator, channeling his best Alex Trebek, reads the statement, “a duty to make good any loss, damage, or liability incurred by another.”[1] The familiar melancholic tune begins to play, but it doesn’t matter. You know the answer, smash that red button with confidence, and state in the required interrogatory form: “What is indemnity?” At last, you take the lead, only to squander it on the next question.

For the construction lawyer, indemnification is not something you should gloss over. Rather, the practitioner must have a certain level of mastery over such terms to preserve their enforceability. Similarly, the litigator must understand the current legal landscape and whether an indemnification provision can be enforced or invalidated. For years, Uniwest took center stage in the discussions concerning contractual indemnification and the art of crafting an enforceable indemnification clause in a construction contract. But we now have fifteen years of additional case law to account for, both when negotiating contractual indemnification provisions and when litigating them. So, in the spirit of construction law jeopardy, select “Changes in the Law” for $1000, and let’s dig in.

Virginia’s Anti-Indemnification Statute—Va. Code § 11-4.1

First, a bit of a refresher. Va. Code § 11-4.1 states:

Any provision contained in any contract relating to the construction, alteration, repair or maintenance of a building, structure or appurtenance thereto, including moving, demolition and excavation connected therewith, or any provision contained in any contract relating to the construction of projects other than buildings by which the contractor performing such work purports to indemnify or hold harmless another party to the contract against liability for damage arising out of bodily injury to persons or damage to property suffered in the course of performance of the contract, caused by or resulting solely from the negligence of such other party or his agents or employees, is against public policy and is void and unenforceable.[2]

Most jurisdictions have a similar statute prohibiting certain indemnification provisions, and they usually fall into one of two categories.[3] Some allow indemnification of a party for its own negligence unless the indemnified party was solely negligent. Others prohibit any indemnification of a party for its own negligence, even if the indemnitee was not solely at fault because another party’s negligence contributed to the damage.

One could be forgiven for thinking that Virginia’s prohibition falls into the former category—only prohibiting indemnification where the indemnitee was solely negligent. But in Uniwest, the Supreme Court of Virginia held otherwise.

The Landmark Uniwest Decision

Uniwest Construction, Inc. v. Amtech Elevator Services marked a sea change in the interpretation and application of § 11-4.1.[4] The prime contractor, Uniwest, engaged subcontractor Amtech Elevators to perform the elevator work for the project.[5] During Amtech’s performance of its work, the scaffolding collapsed, leading to one injury and one fatality, both of whom were Amtech employees.[6] Lawsuits ensued.

Among other claims, Uniwest sought indemnification from Amtech pursuant to paragraph 10 of the subcontract, which stated, in pertinent part, “If any claims . . . be made or asserted, whether or not such claim(s) are based upon the negligence of Uniwest . . . , [Amtech] agrees to indemnify and save harmless Uniwest from any and all such claims.”[7] The Supreme Court of Virginia analyzed the indemnification provision through the lens of § 11-4.1 and reasoned that

[the] phrases ‘caused by’ and ‘resulting solely from’ are disjunctive in the statute, [which] voids any indemnification provision that reaches damage caused by the negligence of the indemnitee, even if the damage does not result solely from the negligence of the indemnitee. Thus, the issue is not whether an indemnification provision is written so broadly that it encompasses the negligence of parties in addition to the indemnitee. Rather, the issue is whether the provision is so broad that it indemnifies the indemnitee from its own negligence.[8]

Ultimately, the high Court determined that the indemnification provision obligated Amtech to indemnify Uniwest for Uniwest’s own negligence and “irreconcilably conflict[ed] with the public policy expressed in Code § 11-4.1, which voids any contractual provision ‘which . . . purports to indemnify or hold harmless [Uniwest] against liability for damage . . . caused by or resulting solely from the negligence of [Uniwest].’”[9]

Unpacking Uniwest—Significant Case Law Developments

In the wake of Uniwest, Virginia courts and federal courts applying Virginia law continued to develop the limits of indemnification provisions in construction contracts. Key decisions have fleshed out the permissible scope of indemnification provisions, the effect of other contractual measures like savings clauses, and the types of contract that are subject to § 11-4.1 to begin with.

One of the first decisions applying Uniwest took a permissive approach to the parties’ indemnification provision. In Snyder v. Waterford Falls Church II LLC, the circuit court acknowledged that the indemnification provision in question, like the one in Uniwest, potentially encompassed the indemnitee’s own negligence.[10] However, the court did not treat the provision as facially invalid because it included savings language limiting indemnification “to the fullest extent permitted by law.”[11] But take care—savings clauses like this should be considered unreliable based on more recent case law, as discussed below.

A year later, another circuit court invalidated indemnification provisions in three separate contracts at issue in Supchak v. Fuller Construction Corporation.[12] There, the language of the provision was similar to that in Uniwest and reached indemnification for the indemnitee’s own negligence. The provisions all included the same “fullest extent permitted by law” language that saved the provision in Snyder.[13] Even so, the Supchak court determined that the provisions were invalid. Critically, it did not matter that the damage at issue was not actually caused by the indemnitee; the facial breadth of the provision was fatal all the same.[14]

While the majority of decisions applying Uniwest have come from Virginia courts, the federal district courts sitting in the Commonwealth have also contributed to Virginia’s indemnification landscape. In particular, federal decisions have addressed what contracts fall within what contracts fall within § 11-4.1’s scope. In RSC Equipment Rental, Inc. v. Cincinnati Insurance Co., the district court held that a rental contract for equipment to be used in a construction project was not a “contract relating to construction” for purposes of § 11-4.1.[15] Applying the rationale of an unpublished opinion from the Fourth Circuit Court of Appeals,[16] the district court focused on the nature of the contract at issue, not its ultimate purpose.[17] The equipment might have been destined for a jobsite, but the contract itself was still essentially a rental agreement—not a construction contract. Section 11-4.1 did not apply.[18]

Prum v. Linde Gas North America LLC, another circuit court decision, provides an example of a carefully drafted indemnification provision that withstood Uniwest.[19] The contract required the “Vendor” to indemnify Linde Gas for “any occurrence arising in connection with Vendor’s or its employees’ or representatives’ performance or failure to perform under the Contract, breach of the Contract, violation of any Laws in performing under the Contract, or acts, omissions, or commission of any tort in performing under the Contract.”[20] Accordingly, the provision did not reach the indemnitee’s own negligence.[21]

Hensel Phelps Construction Co. v. Thompson Masonry Contractor, Inc. dealt with a construction contract for a project at Virginia Tech in the late 1990s.[22] The general contractor attempted to use the subcontractor’s alleged breach of indemnification provisions to avoid its breach of contract claims being barred by the applicable statute of limitations.[23] The Supreme Court of Virginia held that the provisions—though drafted before Uniwest—were nonetheless void under Uniwest.[24] The court was unsympathetic to the argument that its decision left contractors without recourse against subcontractors for persisting liabilities.[25]

The federal district court’s decision in Travelers Indemnity Co. v. Lessard Design, Inc. provides an especially helpful framework for analyzing indemnification provisions under § 11-4.1 and Uniwest.[26] In Travelers, an architect’s contract required it to indemnify the owner and developer against “any and all losses . . . relating to the services performed by the Architect.”[27] Travelers cited RSC and Carpenter in support of its argument that the design contract was not a construction contract, but the court determined that § 11-4.1 applied because the contract directly related to the construction of a building and gave the architect a supervisory role in ensuring that his plans were executed during the construction process.[28] The court went on to emphasize that the purpose of § 11-4.1—preventing injuries and keeping contractors from unfairly shifting the cost of the prime’s negligence to subcontractors with less bargaining power—favored voiding the indemnification provision.[29] Travelers instructs that an indemnification provision is void under § 11-4.1 if: (1) the underlying contract is a “contract relating to construction,” (2) the indemnifying party is a “contractor,” and (3) the provision reaches damage caused by the indemnitee’s own negligence.[30]

Soon after Travelers, a circuit court held that an indemnitee cannot rely on an indemnification provision to implead a third party when it is being sued solely for its own negligence. In Morris v. DSA Roanoke LLC, a subcontractor, DSA, was sued exclusively for its own negligence and sought to implead its sub-subcontractor, Thomas Builders, based on an indemnification agreement between them.[31] The court held that allowing DSA to do so would conflict with the spirit of § 11-4.1 because “DSA could only recover through the indemnification provision between it and Thomas Builders for damages caused by DSA’s own negligence.”[32] The issue was not the language of the provision itself, but DSA’s attempt to invoke it under circumstances barred by statute. Even if Thomas Builders had contributed to DSA’s negligence, Uniwest’s broad interpretation of § 11-4.1 prohibits indemnification for an indemnitee’s own negligence, in whole or in part.

Two more recent Virginia federal decisions further illustrate how the level of specificity in an indemnification clause can determine its enforceability. In Hellas Construction, Inc. v. Bayside Concrete, Inc., the plaintiff sought attorneys’ fees from its subcontractor under an indemnification provision.[33] Although the clause’s main text complied with Uniwest, a clarifying subparagraph stated that “provisions of the indemnification provided . . . shall not be construed to indemnify any Indemnitee for its sole negligence.”[34] The district court held that this language did not exclude Hellas’s contributory negligence, rendering the provision void.[35] Although the clarifying language was meant to respect the limits prescribed by Uniwest, it ultimately made the clause overly broad.

On the other hand, Sauer Construction, LLC v. QBE Insurance Corporation demonstrates how a lack of specificity can also invalidate an indemnification clause.[36] There, the provision required indemnification for any damages not arising from the indemnitee’s own “misconduct.”[37] The indemnitor argued that “misconduct” was narrower than negligence, meaning the provision might encompass the indemnitee’s own negligence.[38] The district court agreed, reasoning that there “are at least some types of negligence that would fall outside of ‘misconduct.’”[39] Because the clause did not specifically exclude all the indemnitee’s negligence, the court found it void under § 11-4.1.

Finally, the two most recent decisions address whether a savings clause can rescue an otherwise invalid indemnification provision under § 11-4.1. In Fortune-Johnson, Inc. v. QFS, LLC, the indemnification clause expressly violated § 11-4.1 by including indemnification for “the negligence of any indemnit[ee].”[40] Although the clause included savings language—“to the fullest extent permitted by law”—the Court of Appeals of Virginia rejected the argument that this reflected an intent to comply with § 11-4.1 or authorized reformation.[41] The court “decline[d] to step in and correct the overbreadth” of the contract, emphasizing that “neither Virginia law nor the subcontracts themselves authorize courts to “blue pencil” or otherwise rewrite the parties’ written agreements.”[42]

Conversely, in ZP No. 332, LLC v. Huffman Contractors, Inc., the federal district court allowed a savings clause to preserve the enforceable portions of the indemnification agreement.[43] The contract provided that the indemnitee would be indemnified “regardless of whether such claim, damage, loss[,] or expense is caused in part by a party indemnified hereunder.”[44] Although this blatantly violated § 11-4.1, the court relied on savings language to uphold the rest of the indemnification provision.[45] Specifically, the contract stated that “in a state that prohibits any part of the indemnity coverage contained herein, the Contractor shall provide the maximum indemnity coverage allowed by that state to each of the Indemnified Parties.”[46] It also provided that “[t]he invalidity of any part or provision of the Contract Documents shall not impair or affect in any manner the validity, enforceability, or effect of the remaining parts and provisions of the Contract Documents.”[47] Based on these clauses, the court held “that the voided sentence of the clause does not affect the rest of that clause’s validity, enforceability, and effect.”[48]

Navigating Current Law—Practical Guidance

The application of § 11-4.1, as interpreted by the Supreme Court of Virginia in Uniwest, illustrates the persisting confusion and lurking pitfalls for anyone involved in construction contracts in the Commonwealth. After 15 years, the state of the law continues to evolve. But several practical considerations emerge as common themes in the cases described above.

First, it’s important to recognize that § 11-4.1 only applies to provisions in construction contracts, which includes

any contract relating to the construction, alteration, repair or maintenance of a building, structure or appurtenance thereto, including moving, demolition and excavation connected therewith, or  . . . any contract relating to the construction of projects other than buildings.[49]

This part of § 11-4.1 reads rather broadly, but the case law demonstrates that its practical scope should not be taken for granted. As discussed, federal case law suggests that § 11-4.1 and Uniwest don’t always apply to contracts that might well be thought of as “relating to” construction, such as renting equipment for a construction project. Instead, the nature of the underlying contract and how it interacts with the purpose of § 11-4.1 are key considerations. It remains to be seen whether Virginia courts will adopt the reasoning of their federal counterparts in similar cases.

Assuming the relevant contract falls within § 11-4.1 and reaches an indemnitee’s own negligence, Uniwest and its progeny are lurking. Obviously, drafters who want an indemnification provision to be enforceable must draft with care. But a party more concerned with limiting potential exposure has options when faced with a provision that reaches too far. The party can point out the provision’s invalidity and negotiate more favorable terms; or, more cunningly, it can do nothing, taking some comfort in the knowledge that any attempt to demand indemnity could fail under the prevailing interpretation of § 11-4.1.

One should also consider the effect of a savings clause. If there’s one in the construction contract at issue, could it save an otherwise overbroad indemnification provision? When drafting a construction contract, does savings language provide any extra peace of mind? As the case law illustrates, the answers to such questions elude certainty. It is possible that a savings clause might keep a court from declaring the indemnification provision void, but judges have been more eager to disregard the savings clause and refuse to “blue pencil” the indemnification provision. And, as Hellas teaches, even language meant to be helpful might ultimately doom an indemnification provision if not carefully implemented. If a savings clause provides any security blanket, it’s a thin one.

* * *

Va. Code § 11-4.1, Uniwest, and the litany of relevant cases since make indemnification provisions in Virginia construction contracts an unpredictable landscape. It is essential that practitioners keep a critical eye on the language and scope of contractual indemnification clauses. Word choice and sentence structure are critical to the outcome. Choose wisely.

[1] Indemnity, Black’s Law Dictionary (11th ed. 2019)
[2] Va. Code § 11-4.1 (emphasis added).
[3] See Construction Anti-Indemnity Statutes, Saxe, Doernberger & Vita, P.C. (Sep. 19, 2024), https://www.sdvlaw.com/surveys/construction-anti-indemnity-statutes/.
[4] 699 S.E.2d 233, 280 Va. 428 (2010).
[5] 280 Va. at 435.
[6] Id. at 436–37.
[7] Id. at 441–42 (emphasis added).
[8] Id. at 442 (emphasis added).
[9] Id.
[10] 2012 Va. Cir. LEXIS 429, at *11 (Fairfax Co. 2012).
[11] Id.
[12] 86 Va. Cir. 517, 521–23 (Chesapeake Co. 2013).
[13] Id. at 521–22.
[14] Id. at 522–23.
[15] 321 F. Supp. 3d 631 (W.D. Va. 2014).
[16] Carpenter Insulation & Coatings Co. v. Statewide Sheet Metal & Roofing, Inc., No. 90-2426, 1991 U.S. App. LEXIS 14267 (4th Cir. July 9, 1991) (holding that a sales agreement for roofing materials was not a construction contract within the scope of § 11-4.1).
[17] 321 F. Supp. at 486–87.
[18] Id.
[19] 2016 Va. Cir. LEXIS 106 (Hopewell Co. 2016).
[20] Id. at *8.
[21] Id.
[22] 791 S.E.2d 734, 292 Va. 695 (2016).
[23] 292 Va. at 703.
[24] Id. at 704–06. The court also rejected the contractor’s attempt to characterize as “indemnification” provisions other provisions that might not have been void under Uniwest. Id.
[25] Id. at 706–07.
[26] 321 F. Supp. 3d 631 (E.D. Va. 2018).
[27] Id. at 634.
[28] Id. at 636–38.
[29] Id. at 637–38.
[30] Id. at 636–39.
[31] 102 Va. Cir. 204 (Roanoke Co. 2019).
[32] Id. at 205.
[33] 2019 U.S. Dist. LEXIS 234348 (E.D. Va. Mar. 12, 2019).
[34] Id. at *8 (emphasis added).
[35] Id. at *9–10.
[36] 2024 U.S. Dist. LEXIS 223199 (W.D. Va. Dec. 10, 2024).
[37] Id. at *14.
[38] Id. at *15.
[39] Id. at *15–16.
[40] 2025 Va. App. LEXIS 241093, *6 (Feb. 25, 2025).
[41] Id.
[42] Id. at *9.
[43] 2025 U.S. Dist. LEXIS 114614 (E.D. Va. June 16, 2025).
[44] Id. at *5.
[45] Id. at *5–6.
[46] Id. at *6.
[47] Id.
[48] Id.
[49] Va. Code § 11-4.1 (emphasis added).

2026 Brings Payroll Glitch for Salaried Employees: What All Employers Need to Know

Friday, January 30th, 2026

Many employers pay salaried and hourly employees on a biweekly schedule, which usually results in 26 pay periods per year. In 2026, paying salaried employees on a biweekly schedule, could cause some employers to issue 27 biweekly payrolls, depending on how their payroll calendar falls.

This anomaly occurs roughly every decade due to leap years and the fact that a 365-day year does not divide evenly into 14-day pay cycles. But while the cause is simple, the consequences for employers can be anything but.

If your organization hasn’t considered whether you will have a 27-pay-period cycle in 2026, now is the time to do so.

Why 2026 May Have 27 Pay Periods

Employers that issued a biweekly paycheck at the beginning of the year could include a schedule with a paycheck on Friday, January 2, 2026, and on Thursday, December 31, 2026, because Friday, January 1, 2027, falls on a holiday. That calendar alignment creates 27 biweekly pay dates in 2026 instead of the usual 26.

For hourly employees, this typically does not create major issues as they are paid an hourly rate for all hours worked. However, for salaried, exempt employees who are typically paid a set amount each pay period, the impact can be significant if not addressed correctly.

Here are a few things employers should consider and need to know:

1. Overpaying Salaried Employees

The most common and costly mistake employers can make in a 27-pay-period year is unintentionally overpaying salaried exempt employees.

Here’s an example to demonstrate how this could happen:

• An employee earns an annual base salary of $52,000.
• That salary is typically paid by dividing the salary into 26 paychecks of $2,000 each.
• If the employer issues 27 paychecks without adjustment, the employee will receive $54,000 for the year.

That’s a roughly 3.85% increase in base salary for that employee before accounting for payroll taxes, retirement contributions, bonuses tied to base pay, or other benefit costs. Multiplied across departments or the organization, this can meaningfully affect labor budgets and cash flow.

Just skipping the last pay period and making only 26 payments isn’t the quick solution because once an exempt employee has performed work during a workweek, employers generally cannot withhold or skip a paycheck to “true up” the salary later.

An employer can adjust bi-weekly salary payment amounts to take into account the extra pay period in 2026, but this creates additional considerations as noted below.

2. The Salary Basis Rules Still Apply

Under the Fair Labor Standards Act (FLSA), most exempt employees must be paid on a salary basis, meaning they receive a predetermined amount each pay period regardless of the number of hours worked. That amount generally cannot be reduced below the specified minimum salary threshold except in limited circumstances.

Employers should also remember:

• The federal minimum salary threshold is $684 per week, but state laws may impose higher thresholds or different exemption rules.
• Improper pay reductions can jeopardize an employee’s exempt status and expose employers to overtime liability.

Additionally, any changes in bi-weekly salary payments should be communicated to affected employees in order to explain the rationale for the change.  In some states, prior written notice and acknowledgement may be required.  Regardless, employees will need to understand why this is occurring and that their annual base salary is not being reduced.

3. Benefit Contributions, Deductions, and Annual Limits

A 27-pay-period year can also create complications beyond bi-weekly salary payments, including:

• Over-withholding or over-contributing to benefit programs with annual IRS limits, such as FSAs, HSAs, and 401(k) plans
• Health insurance premium deductions that exceed annual plan amounts
• Payroll system errors that compound across multiple benefit elections

These issues often surface late in the year when corrections are more difficult. Ignoring benefit plan limits can result in compliance or tax issues that no employers want to face.

Conclusion

Even with 2026 already underway, it is not too late to act. Employers should review their 2026 payroll calendar to determine if this issue applies to their payroll cycle.  If yes, employers should decide on an approach that works for their organization, communicate this decision and related actions clearly with affected employees, and audit benefit plans to ensure compliance and annual limits. Addressing the issue early allows organizations to manage costs, maintain compliance, and set clear expectations with employees. If you have questions about how a 27-pay-period year affects your workforce, payroll practices, or wage-and-hour compliance, reach out to our employment team for assistance today.

DOJ Targets Corporate Diversity Programs Via the False Claims Act

Monday, January 12th, 2026

The U.S. Department of Justice (DOJ) issued policy memoranda in May and July of 2025 announcing a stated intent to investigate entities that accept federal dollars via contracts and grants while engaging in “race, ethnicity, or national-origin based preferences” in employment practices. These policies evidence the DOJ’s expanded use of the False Claims Act (FCA) to investigate and, in some cases, take action against companies whose DEI efforts are perceived to violate federal law.

These policies are now beginning to take shape, as the DOJ has recently initiated multiple investigations into the DEI practices of several major companies that contract with or receive funding from the federal government.

The False Claims Act: An Overview and DOJ’s Expanded Use

The False Claims Act is one of the federal government’s primary tools for combating fraud against the United States. The law imposes liability on individuals and companies who defraud governmental programs, and defendants found liable under the FCA may be ordered to pay three times the actual amount of the government loss (i.e., treble damages).  Although FCA matters often arise from claims brought by whistleblowers (usually employees or former employees), the DOJ itself can institute FCA investigations and lawsuits, and it can also intervene in matters brought by private parties.

While the FCA has traditionally been used to target fraud in industries such as healthcare, defense contracting, and government procurement, the DOJ has recently broadened its focus to include corporate diversity programs as potential targets for FCA enforcement. This shift is driven by governmental claims that certain DEI initiatives run afoul of federal anti-discrimination laws, such as Title VII of the Civil Rights Act, or may result in misrepresentations to the government regarding compliance with these laws. The DOJ maintains that if a company certifies compliance with federal equal employment opportunity (EEO) requirements while simultaneously implementing diversity programs that allegedly disadvantage certain groups, such actions could constitute a “false claim” and thus violate the law.

Early cases within this new FCA framework often begin with whistleblower complaints from employees who allege that their companies’ diversity programs result in “reverse discrimination” or otherwise violate federal law. At the close of 2025, DOJ had already begun investigating government contractors’ DEI practices in a wide array of industries, including automotive, defense, pharmaceuticals, technology, telecommunications, and utilities.

Corporate Responses and Legal Uncertainty

The DOJ’s increased scrutiny has prompted many companies to reevaluate their diversity initiatives and compliance policies. Corporate legal departments are now more frequently consulting with outside counsel to ensure that their DEI programs do not inadvertently expose them to FCA liability. Companies have been pressured to re-evaluate their workplace policies, and there is a growing emphasis on documenting the legality of such programs.

Risk Mitigation and Compliance Best Practices

The DOJ’s use of the FCA to target diversity initiatives marks a significant development in the intersection of civil rights and corporate compliance. Companies that do business with the federal government—or that are subject to federal EEO laws—must now navigate a complex landscape in which well-intentioned DEI initiatives could become the basis for costly investigations and litigation. In the short term, businesses can reduce FCA exposure by taking the following precautions:

• Review internal policies and procedures, particularly related to hiring and employment practices.
• Ensure accurate reporting to federal agencies, and document compliance reviews in order to establish a good faith basis for DEI-related certifications to the federal government.
• Review state-level anti-discrimination laws that may complicate compliance with federal law.
• Seek legal guidance to mitigate potential risks.

Bottom Line

The recent efforts by the DOJ to apply the FCA to companies’ diversity hiring and promotion initiatives represent a notable shift in federal enforcement priorities. The evolving legal landscape presents both challenges and opportunities for organizations seeking to balance the goals of diversity and compliance. Going forward, businesses will need to maintain vigilance, transparency, and legal rigor in implementing DEI programs to avoid running afoul of federal law and drawing government scrutiny.

Publicly Available vs. Public Domain: When Are Copyrighted Works Free To Use?

Thursday, January 8th, 2026

While many may think of resolutions, family, friends, a Times Square countdown, or new beginnings on New Year’s Day, January 1 also quietly marks a significant annual event for copyright law. Each year, many previously copyrighted works enter the public domain, eliminating their copyright protection and rendering them available for use and reproduction by the public at large.

Duke University publishes a list of works entering the public domain, and 2026 will see a number of iconic works and characters from 1930 become free for public use and distribution. For example, some works entering the public domain this year include Lewis Milestone’s Academy-Award-winning film, All Quiet on the Western Front, Alfred Hitchcock’s Murder!, William Faulkner’s prized novel, As I Lay Dying, Bertrand Russell’s The Conquest of Happiness, T.S. Eliot’s Ash Wednesday, the musical composition for Dream a Little Dream of Me by Gus Kahn, Fabian Andrew, and Wilbur Schwandt, and nine new Mickey Mouse cartoons previously owned by Disney.

For individual authors, copyright protection lasts for the life of the author and seventy years thereafter, while copyright protection for works made for hire (such as corporate-owned copyright) lasts for ninety-five years from the dates of the works’ publication. See 17 U.S.C. § 302. The basis for copyright protection as we know it today arises from Article I, Section 8, Clause 8 of the United States Constitution and is founded on a principle of incentivizing the progress of knowledge, innovation, and creativity by securing exclusive property rights for authors in certain creative expressions for limited times. Once the term of protection expires, the works are stripped of exclusive property rights and become free for use by the public at large to further innovation and harmonize copyright law with freedom of speech principles. The public domain exists to identify that realm of works available for public use, performance, reproduction, and distribution.

The effectiveness of the public domain can be found in the success of derivative works that are based on defining works of art, literature, and music no longer subject to copyright protection. Consider 2005’s widely praised film adaptation of Pride and Prejudice, Guillermo Del Toro’s 2025 Netflix adaptation of Mary Shelley’s Frankenstein, and Disney’s The Lion King (an anthropomorphic adaptation of Shakespeare’s Hamlet) as just a few examples of creative derivatives based on works within the public domain.

Additionally, it is important to recognize the difference between works that are “publicly available” and works that are within the public domain. Just because a work is readily accessible online or through other means does not mean it is free for the public to consume or use. Many works are still protected by copyright laws and are subject to the author’s exclusive ownership. Federal law grants copyright owners a number of exclusive rights, such as rights to reproduction, public display, public performance, distribution, and the creation of derivative works. See 17 U.S.C. § 106. For example, a photograph may be made generally accessible on Google Images and still may be subject to copyright protection, meaning an unauthorized use of that photo would constitute copyright infringement and could expose the infringing party to monetary and equitable penalties.

A similar principle applies for uses of a protected work that exceed the scope of a consumer’s license. Imagine the owner of a local community center purchases a DVD copy of his favorite movie at retail and wishes to show that film at a promotional event for the center. While he may have purchased the DVD, his license to this copyrighted work likely only extends to personal viewing, not commercial uses or public screenings of the DVD. Similarly, imagine a restaurant owner who uses her personal music streaming account to play atmospheric music at her restaurant. Her streaming account likely only includes a personal-use license, and she would need to obtain a commercial license for the music before using it in her business operations. In each of these cases, the licensee has exceeded the scope of his or her right to use the protected work and tripped into copyright infringement.

The digital revolution has ushered in an age where human beings have greater, more instant access to creative and expressive works than ever before. The advent of machine learning has further promoted artificial intelligence platforms that can instantly create works based on one’s favorite franchises, genres, and art. While the public domain is a vast and beneficial realm, its reach is not unlimited, and consumers should remain diligent in ensuring that the expressive works they use are either part of the public domain or properly licensed from the copyright owners.

If you need assistance with matters involving copyright or intellectual property, Gentry Locke’s experienced IP team is here to help.

Employers Win Round One: Virginia’s Wage Theft Statute Does Not Include Commissions – Will it Last?

Wednesday, January 7th, 2026

Businesses with employees who work in Virginia and are paid by commission received an early New Year’s Eve present when a divided Supreme Court of Virginia overturned a 2024 ruling by the Virginia Court of Appeals that had extended the protections of the Virginia Wage Payment Act beyond wages and salaries to commissions and all other forms of compensation.[1] Groundworks Operations LLC v. Campbell, Record No. 241092 (Va. Dec. 30, 2025)

Justice McCulloch writing for the majority concluded “the language of the [wage theft] statute and its context do not support an interpretation that extends its protections to commissions.”[2]

In 2020, when the General Assembly and Governor were members of the same party, several pro-employee laws were enacted, including an expanded version of the Virginia Wage Payment Act (“Act”), which became commonly known as the “wage theft law.”  This law reinforced and clarified several key protections. First, it ensured that upon termination of employment, an employee “shall be paid all wages or salaries due him for work performed.”[3]  The Act also provided that “no employer shall require any employee… to sign any contract or agreement which provides for the forfeiture of the employee’s wages for time worked as a condition of employment or continuance thereof.”[4]  Under the 2020 changes, a new collective action provision was added that gave new civil remedies to employees who believed their employer had “stolen” their pay.[5]  This new version of Act, with its expanded remedies and the ability to recover attorney fees, has generated hundreds of new lawsuits in Virginia against employers in state court over the past five years.

The Groundworks Operations litigation began in Prince William County in March 2023 when five individuals collectively sued their former employer for failing to pay commissions they had earned prior to leaving employment.[6] The plaintiffs were initially paid pursuant to an oral agreement to sell construction services, and in return for securing new business they were to be paid 10% of gross sales, with one-half being paid once the customer’s three (3) day recission period expired, and the balance was to be paid once the job was complete and the customer made final payment.  There was often a long delay between securing the contract and the conclusion of construction work done by others to finish project.

In the lawsuit the plaintiffs claimed that they had earned the right to be paid the full commission once the customer signed the agreement and failed to revoke acceptance of the contract within the three-day statutory period as they had completed their duties with relationship to that project.  They argued that the commissions due on the new contracts constituted “wages” under the Act for the services rendered.   The company refused, as a matter of policy, to pay commissions owed for jobs that remained unfinished on an employee’s termination date.  For the lead plaintiff, Campbell, this meant he had not been paid more than $30,000 in commissions on the jobs he had secured but had not been completed when he left in June 2021.

Thereafter, in January 2022, the employer required all employees to sign a new written commission policy as a condition of employment.  The written policy under which they agreed that commissions would be paid up to 14 days after the employee no longer worked for the company, but thereafter no further commissions would be paid.  When the others left, each of them claimed to be owed $20,000 in unpaid commissions.

The lawsuit claimed violations of Virginia’s wage theft statute, including: (i) refusing to pay earned commissions upon termination of employment as required, and (ii) requiring them to sign an agreement that resulted in a forfeiture of commissions as condition of employment. The trial court granted the employer’s demurrer and dismissed the claims finding that the term “wages” as used in §40.1-29 did not include “commissions.”

As the Supreme Court noted, the pivotal issue was whether Va Code §40.1-29, which expressly addresses “wages” and “salaries,” but makes no mention of “commissions” still incorporated “commissions.”  The majority found that the statutory language used was plain and was not ambiguous,[7] and that in common parlance, “wages” are “ordinarily” considered to be distinct from “commissions.”  It went on to note that the legislature can and has used the word “wages” to encompass “commissions” in other contexts, either expressly or contextually – but it did neither with this statute.   In this regard,  majority noted that a number of thoughtful policy arguments had been raised by the plaintiffs and amici for why the wage theft statute “should” also cover commissions, but he responded that it was the job of the Court to administer the law as written, and it is “legislature that is the author of public policy.”  Justice McCullough’s opinion plainly invites future legislative action to address this issue.

So, for now, in Virginia no wage theft claim under Va Code §40.1-29 can be brought by an employee seeking to recover unpaid commissions.  There are other potential claims available to employees who believe they are owed commissions, but those claims are much less attractive as they do not include the ability to recover liquidated damages and more importantly attorney fees.  For example, the lack of a clear, written agreement on how and when commissions are earned and become payable can lead to claims for fraud, unjust enrichment, and/or quantum meruit, which if successful will allow the plaintiff to recover reasonable payment for the value of services rendered.   See Fessler v IBM Corp, 959 F.3d 146 (4^th Cir. 2020).  While the likelihood of these types of claims will be less going forward, employers will still be well served to have a written policies and agreements that spell out when a commission is earned, when it is payable, and what will happen upon termination from employment.

The real question is whether the incoming General Assembly will now amend Virginia’s wage theft statute to include provisions that expressly addresses the payment of commissions.  Some states, like North Carolina, require employer to spell out in writing its policies and procedures regarding commissions, and bonuses, and if they are ambiguous the policies will be construed against the employer, and others like Maryland have similar wage theft statutes, and they expressly define “wages” to include a bonus, a commission and fringe benefits, as well as any other renumeration promised for services rendered. Time will tell if last week’s victory for employers is a short-term one, or if it becomes the impetus for legislative action.

If you have questions about how to draft an effective commission agreement or policy, or other issues involving employees, please reach out to any member of our Labor and Employment team.

[1] The earlier decision, which was reversed, is Campbell v Groundworks Operations, LLC, 82 Va. App. 580, 908 SE2d 136 (Nov. 19, 2024).
[2] The Chief Justice and Justice Mann dissented arguing that the “plain and ordinary meaning of the term “wages” includes commission.
[3] Va Code 40.1-29(A) clarifies that such payment must be made on or before the date on which the employee would have been paid for such work had his employment not been terminated.
[4] Va Code 40.1-29(D).  In addition, Section 40.1-29(C) prohibits an “employer from withholding any part of the wages or salaries of any employee, except for payroll… taxes, …., with the written and signed consent of the employee.”
[5] The new civil remedies for employees, which included liquidated damages, plus 8% interest and attorney fees. Va Code 40.1-29(G) and (J).  Further new criminal exposure was added for employers who willfully and with intent to defraud, or refuses to pay wages, which was based on the value of the wages earned but not paid. Va. Code 40.1-29(E).
[6] Campbell was decided by the Circuit Court on demurrer, so the background facts recited are taken from the allegations in the Complaint as if they are true. Four (4) of the plaintiffs were hired to go door to door and sell construction contracts to customers and paid solely on commission. Campbell was paid to perform limited repairs and then also paid a commission to making other sales to the customers. The Supreme Court did not treat Campbell any different from the other plaintiffs and focused only on his unpaid commissions.
[7] Notably, the Court of Appeals found that the statute was ambiguous on this point, and thus considered guidance issued by the Va Department of Labor in its March 2022 Field Operations Manual, which opined without elaboration that the statute use of the word “wages” included “commissions.”   The Supreme Court was “unpersuaded” that this field manual issued by an administrative agency represented a correct statutory interpretation.  It is also worth noting that Chief Justice in dissent, like Justic McCullough, found the meaning of the wage theft statute to be “plain” but concluded that the broad remedial purpose the statute meant that the use of the term “wages” was intended to include “commissions.”

Executive Order Targeting State AI Regulation Shakes Up State Enforcement

Friday, December 19th, 2025

On December 11, 2025, President Trump signed Executive Order 14365, titled “Ensuring a National Policy Framework for Artificial Intelligence.” The order seeks to establish a unified federal approach to regulating artificial intelligence (AI), aiming to prevent what the administration calls a “patchwork” of state laws that could hinder innovation and impose excessive compliance costs. After rescinding the prior administration’s comprehensive 2023 executive order on AI governance, Executive Order 14110 (titled “Executive Order on Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence”), in January, President Trump’s executive order constitutes the current administration’s latest effort to supersede regulation of AI at the state level and was announced despite bipartisan opposition in Congress and among state attorneys general (AGs).

The order directs the Department of Justice to create an AI Litigation Task Force within 30 days to challenge state statutes deemed overly restrictive or inconsistent with federal objectives. It also instructs the Commerce Department to review state AI laws within 90 days and recommend withholding certain broadband funding from states that fail to align with federal standards. The Secretary of Commerce will refer those overly restrictive state laws to the DOJ’s AI Litigation Task Force.

Additionally, the Federal Communications Commission (FCC) must consider whether to develop disclosure and reporting requirements for AI systems and examine whether state mandates on ideological bias or deceptive practices will be preempted by these potential new federal requirements. Any federal disclosure and reporting law for AI systems would, of course, be a game changer in enforcing deceptive or unfair AI output. The FCC must ultimately issue a policy statement explaining that state laws that require the alteration of outputs to comport with pre-determined values or ranges are preempted by the Federal Trade Commission’s prohibition on deceptive practices.

While the U.S. currently lacks a federal AI law, the White House will prepare a recommendation to Congress to establish a “uniform Federal policy framework for AI that preempts State AI laws that conflict with the policy set forth in this order.” While the Trump Administration’s executive order broadly instructs the development of federal AI legislation, it largely focuses on overriding state regulation and does not offer much substantive indication as to what a comprehensive AI framework might look like. Conversely, the now-rescinded 2023 executive order on AI directed federal agencies to designate a Chief AI Officer and comprehensively set forth overarching areas of policy focus, including: safety and security, innovation and competition, worker support, considerations surrounding bias and civil rights, consumer protection, privacy, use of AI by the federal government, and international considerations. With the 2023 order rescinded and the current order’s sparsity regarding federal regulation, the United States still lacks a national framework for AI governance. The latest order does, however, state that states will be permitted by the Federal framework to regulate certain areas involving AI, including those relating to child safety protections, data center infrastructure, and state government AI procurement.

The current Administration contends that these measures are necessary to maintain U.S. competitiveness in the global AI race and to prevent state-level regulations from forcing AI models to produce what it calls “false results.” Critics, however, worry that the order undermines states’ rights and could erode important consumer protections against algorithmic bias, deepfakes, and fraud. Constitutional challenges are likely, particularly around the use of funding conditions and the dormant Commerce Clause, as states like California and Colorado defend their own AI transparency and fairness laws.

For the technology sector, this executive order seeks to promote regulatory clarity and reduced compliance burdens, which major firms such as Google, Microsoft, and OpenAI have publicly supported. Yet advocacy groups argue that the policy favors large corporations at the expense of local innovation and consumer safeguards. The executive order does not directly invalidate state laws but leverages litigation, funding restrictions, and federal rulemaking to pressure states toward conformity. Its long-term impact will depend on how aggressively federal agencies enforce these directives, how courts interpret constitutional limits, and whether Congress steps in to codify a comprehensive AI regulatory framework. In short, the order marks a pivotal moment in the struggle between federal authority and state autonomy in shaping the future of artificial intelligence governance.

Small Business Administration (SBA) Orders 8(a) Firms to Submit Extensive Financial Records

Monday, December 8th, 2025

Overview of the 8(a) Program and Background

The SBA’s 8(a) Business Development Program (the “Program”) supports small businesses owned by socially and economically disadvantaged individuals and certain entities (e.g., Alaska Native Corporations, American Indian Tribes, and Native Hawaiian Organizations).  Eligible firms gain access to set-aside federal contracting opportunities, plus tailored counseling, training, and technical support.

In recent years, the Program has come under much scrutiny.  Beginning in 2023 in response to a challenge in federal court, the SBA ended its practice of providing a “presumption” of social disadvantage to certain identified ethnic groups and has since required all current and new participants to provide narratives proving social disadvantage.  In June of this year, under the current administration, the SBA announced a full-scale audit of the Program to investigate what it perceives as a program rife with abuse and fraud.  Later, the SBA almost immediately suspended ATI Government Solutions (a tribally-owned 8(a) Program participant) after it became aware of alleged widespread, “pass through” fraud in its work.  Following that report, the Department of the Treasury initiated a comprehensive audit of “all contracts and task orders awarded under preference-based contracting, totaling approximately $9 billion in contract value.”

What’s New: Immediate Audit & Production Requirement

The SBA is now carrying out its promised audit of the Program.  On December 5, 2025, SBA announced it would issue letters to all active 8(a) participants requiring financial disclosure for the past three fiscal years, including “bank statements, financial statements, general ledgers, payroll registers, contracting and subcontracting agreements, and employment records.”  The SBA set a deadline to submit all documentation by January 5, 2026.  Failure to comply with this deadline risks loss of 8(a) status or further enforcement actions. Further, contractors that fail to submit accurate, complete, and non-misleading disclosures may face criminal penalties or civil enforcement under the False Claims Act.

Immediate Next Steps for 8(a) Participants

• Confirm Receipt of Audit Notice – Check email spam/junk folders. All too often (even important) government notices are filtered by company IT systems.
• Compile Documentation Quickly – Review SBA’s checklist and begin gathering documents in the requested format.
• Conduct a Proactive Internal Review – Identify inconsistencies before submission to anticipate any potential issues and concerns.
• Respond Thoroughly and Timely – Submit by the January 5, 2026, deadline. The announced scope of the information is broad.  Plan in advance and gather information as quickly but as carefully as possible.
• Prepare for Increased Scrutiny. It is possible that upon review SBA may request more information.  In more serious circumstances, SBA could also respond by issuing investigative demands, initiating suspension or debarment proceedings, or referring matters to the Department of Justice for investigation in connection with the False Claims Act.  If that occurs, counsel should be engaged immediately.

Bottom Line

8(a) participants must treat this audit notice seriously. Collect required documentation now, perform an internal review, and ensure full, timely compliance.  Our Government Contracting and White Collar Defense, Investigations & Compliance teams are standing by to help.

Passenger Rights in Virginia: How Injured Passengers Can Recover After a Car Accident

Wednesday, October 22nd, 2025

Passengers involved in a motor vehicle accident almost always have a “good case” to recover for their injuries received in an automobile accident. So long as the passenger did not contribute to the accident in some way, for example by interfering with the driver, the passenger will likely be able to recover monetary damages.

The passenger’s claim can be against many different defendants, such as another vehicle driver that was involved in the crash or a company/individual who contributed to the crash by setting up a dangerous situation in the roadway or even by the passenger’s driver and their vehicle – even if that driver was related to them by blood or marriage or a friend. More and more frequently these days, the passenger may have been injured by the conduct of a professional driver such as an Uber, Lyft, or similar driver, or even a taxi driver. In any of these scenarios, the injuries can be severely debilitating and result in permanent injuries or perhaps temporary or permanent loss of the ability to earn a living.

Virginia law does impose some requirements on all passengers in the vehicle. Of course, the passenger cannot interfere with the driver’s ability to safely operate the vehicle by actions such as grabbing the wheel, covering the driver’s eyes, or similar conduct. Most recently, the Virginia General Assembly passed a law requiring all passengers to continuously wear a seatbelt throughout their transportation. However, if a seatbelt is not worn, the passenger still has a claim. The lack of use of a seatbelt is not admissible evidence in a civil action against a negligent defendant. If the defendant causes the crash, they cannot try to put the blame back on the plaintiff for failure to wear a seatbelt.

Over the years, we have found many severely injured passengers are, at first, reluctant to “blame” their host driver, particularly when the host driver is a family member or close friend. However, this hesitation is frequently overcome when the passenger realizes that almost in every instance their medical bills, lost wages, etc., are covered by the host driver’s insurance. The passenger does not have to go after the assets of their host driver and rarely does anyone attempt to do so. The point is – we all buy and pay for insurance for exactly this reason! If there is a crash, the insurance policy is supposed to pay for any and all damages created by the driver’s negligence up to the policy limits under the contract.

This is precisely the reason we advise families, business owners, and anyone who is purchasing automobile liability insurance to get as much insurance as they can on their own policy. You cannot control the amount of insurance another person may purchase on their specific vehicle. However, we can all control the amount of insurance we purchase on our own vehicle(s) or our business vehicles. It needs to be an amount which could adequately pay for severe injuries by anyone in our vehicles which often will be family members and friends.

It is important to know and understand that automobile insurance is less expensive the more you buy. For example – the first $250,000 in automobile insurance coverage is the most expensive. As the amounts increase, the premiums go down and everyone should purchase a secondary insurance policy called an “umbrella.” This policy is usually connected to a person’s home or business in the amount of $1 million or more. If drafted correctly, this policy can pull all underlying policies up to the amount of the umbrella. For example – if the driver has a $250,000 liability insurance policy on their vehicle, a $1 million umbrella will provide the driver with an additional $750,000 in coverage. This could be extremely important to a severely injured family member or friend or member of another vehicle or pedestrian.

Passengers can also rely on their own automobile insurance coverage if they are injured while occupying or “using” a motor vehicle at the time of their injuries.

The injured passenger may use or recover from their own insurance policy in several different ways. First, most policies have an important provision called “medical payments coverage.” Each policy is in a specific amount and allows the passenger to contact their own insurance company for help in paying their medical care up to the limits of the medical payments policy.

The passenger may also recover from their own insurance company for underinsured or uninsured situations. For example – if their host driver and his/her vehicle has no insurance coverage or minimal insurance coverage, the passenger can potentially recover from their own insurance company for the inadequate coverage which could potentially mean the difference between getting medical care or not or, even worse, bankruptcy.

If you and your loved one or friend is a passenger in a motor vehicle crash and is injured, make sure to:

1. Immediately contact an experienced and knowledgeable Virginia personal injury attorney to advise them about their rights;
2. Inform their own automobile insurance company about the crash and their injuries; and
3. Carefully follow the medical care recommended by the treating physician throughout the pendency of their case.

Contact Gentry Locke today to schedule a consultation and protect your rights.

Using FOIA to Strengthen Your Personal Injury Case

Wednesday, September 24th, 2025

Article written by Investigator Danny Brabham

It is important to know that if you are involved in a personal injury incident that in any way involves a town, county, city, state or federal agency, the Federal Freedom of Information Act (FOIA) of 1967 and/or the Virginia Freedom of Information Act of 1968 could prove to be extremely beneficial to your case.

Virginia FOIA

The Virginia Freedom of Information Act (FOIA) was established by the Virginia General Assembly and was enacted on July 1, 1968 to ensure that citizens have access to public records and meetings of public bodies.[1]

The Virginia Freedom of Information Act (FOIA), like the Federal Freedom of Information Act, has a number of exemptions. They are as follows:

1. Petit juries and grand juries;
2. Family assessment and planning teams established pursuant to §2.2-5207;
3. Sexual assault response teams established pursuant to § 2-1627.4 and human trafficking response teams established pursuant to § 15.2-1627.6, except that records relating to (i) protocols and policies of the sexual assault or human trafficking response team and (ii) guidelines for the community’s response established by the sexual assault or human trafficking response team shall be public records and subject to the provisions of this chapter;
4. Multidisciplinary child sexual abuse response teams established pursuant to § 2-1627.5;
5. The Virginia State Crime Commission; and
6. The records maintained by the clerks of the courts of record, as defined in § 1-212, for which clerks are custodians under § 1-242, and courts not of record, as defined in § 16.1-69.5, for which clerks are custodians under § 16.1-69.54, including those transferred for storage, maintenance, or archiving. Such records shall be requested in accordance with the provisions of §§ 16.1-69.54:1 and 17.1-208, as appropriate. However, other records maintained by the clerks of such courts shall be public records and subject to the provisions of this chapter.

In most personal injury cases in Virginia that involve a motor vehicle crashes, a simple request made to the investigating agency requesting the information below can be exceptionally helpful to you and your attorney prior to the filing of a lawsuit:

• A copy of the investigation officer’s field notes, including, but not limited to, diagrams, measurements, names and contact information for any witnesses, and statements from all parties, including witnesses;
• All dash cam and/or body worn camera footage relating to the motor vehicle crash;
• All photographs taken at the scene of the motor vehicle crash;
• Any CAD (Computer Aided Dispatch) produced by the investigating agency.

If your motor vehicle crash involves a tractor trailer or a fatality and was investigated by the Virginia State Police, it would be further helpful to also request a copy of  the Virginia State Police Motor Carrier Post-Crash Investigative Report or a copy of any report, notes, photographs or video produced by any member of an accident reconstruction team.

With an incident that was investigated or handled by an agency other than the Virginia State Police, it is recommended that you contact the jurisdiction involved by telephone to determine who the agency’s Freedom of Information officer is and where to send your request for records.

Costs for Virginia FOIA Requests

The Virginia Freedom of Information statute “allows a public body to make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records at the lowest possible costs.

Also, prior to conducting a search for the records requested, agencies may require a deposit if the estimated charges exceed a certain threshold before proceeding with the request.

In Virginia, the Freedom of Information Advisory Council can be contacted for general questions about FOIA.  Their contact information is as follows:

Virginia Freedom of Information Advisory Council
900 E. Main Street
Richmond, VA 23219
804.225.3056

Federal FOIA

The Federal Freedom of Information Act was enacted on July 4, 1966. The Federal Freedom of Information Act mandates all federal agencies to disclose requested information to the public under the FOIA unless it falls under one of the following nine exemptions below that are to protect interests such as personal privacy, privileged communications and law enforcement interests. The following will not be produced:

1. Information that is properly classified under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy;
2. Information related solely to the internal personnel rules and practices of an agency;
3. Information specifically exempted from disclosure by another statute, if that statute either: (1) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (2) establishes particular criteria for withholding or refers to particular types of matters to be withheld. An Exemption 3 statute must also cite specifically to subsection (b)(3) of the FOIA if enacted after October 28, 2009;
4. Trade secrets and commercial or financial information that is obtained from outside the government and that is privileged or confidential;
5. Records exchanged within or between agencies that are normally privileged in the civil discovery context, such as records protected by the deliberative process privilege (provided the records are less than 25 years old), attorney work-product privilege, or attorney client privilege;
6. Information about individuals in personnel and medical files and similar files when the disclosure of that information would constitute a clearly unwarranted invasion of personal privacy;
7. Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:
8. 1. could reasonably be expected to interfere with enforcement proceedings;
   2. would deprive a person of a right to a fair trial or an impartial adjudication;
   3. could reasonably be expected to constitute an unwarranted invasion of personal privacy;
   4. could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution which furnished information on a confidential basis. In the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, it also protects information furnished by the confidential source;
   5. would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law;
   6. could reasonably be expected to endanger the life or physical safety of any individual;

8. Information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of, an agency responsible for the regulation or supervision of financial institutions; and

9. Geological and geophysical information and data, including maps, concerning wells.[2]

Federal Freedom of Information (FOIA) requests should be forwarded to the federal agency that is the “keeper of the record” or the agency responsible for maintaining and managing the record requested. The website https://www.foia.gov allows individuals to search for the correct agency among the four hundred and fifty seven agencies to submit your request to and provides the following information for each agency:

• Agency mission;
• Contact information;
• Average processing time for requests;
• Agency’s website information.

Costs for Federal FOIA Requests

Federal agencies can charge for the direct costs for searching or, reviewing and copying requested records.

The Office of Information Policy at the Department of Justice is the agency responsible to providing government-wide guidance on FOIA. Their contact information is as follows:

Office of Information Policy (OIP)
U.S. Department of Justice
441 G Street NW, 6^th Floor
Washington, DC 20530
Email:  National.FOIAPortal@usdoj.gov

Understanding and utilizing FOIA requests can make a significant difference in the strength of your personal injury claim. From securing crash reports and photographs to obtaining body cam footage and investigation notes, these records often provide crucial evidence that may otherwise be difficult to access. Knowing your rights under Virginia and Federal FOIA is a powerful step toward protecting your interests and achieving the best possible outcome. If you need guidance on your personal injury case, contact our experienced attorneys at today.

[1] The full Virginia Freedom of Information Act (FOIA) statute 5 U.S.C § 552 can be found online at https://law.lis.virginia.gov/vacodepopularnames/virginia-freedom-of-information-act/.
[2] The full Federal Freedom of Information Act (FOIA) statute 5 U.S.C § 552 can be found online at https://www.justice.gov/oip/freedom-act-5-usc-552.

Pentagon Announces Final Rule Implementing CMMC, Effective November 10, 2025

Thursday, September 18th, 2025

On September 9, 2025, the Department of Defense (DoD) released its long-anticipated final rule implementing the Cybersecurity Maturity Model Certification (CMMC) program. After several years of proposals, public comments, and interim measures, the DoD has now solidified the framework for its revamped CMMC program. The goal: ensure contractors in the Defense Industrial Base (DIB) properly protect sensitive information, particularly Controlled Unclassified Information (CUI) and Federal Contract Information (FCI), while clarifying legal obligations, streamlining processes, and providing a phased implementation.

The final rule introduces a phased, three-year implementation period that begins on November 10, 2025. At a basic level, the CMMC program changes the current self-assessment model for certifying cybersecurity readiness to a third-party verification model that will require most defense contractors handling CUI to pass a cybersecurity assessment by a “third party assessment organization” (C3PAO).

Key Takeaways for DoD Contractors:

• Phased Implementation – Contracting officers can begin including CMMC requirements in solicitations and contracts beginning November 10, 2025, but this will be a phased rollout and not all contracts and solicitations will contain CMMC clauses as of this date. The majority of solicitations and contracts will not initially require third-party assessments. So when should contractors complete their third-party assessment and certification?
  • This depends on your business’s perspective on risk and opportunity cost. Prime contractors will apply pressure on their subcontractors to become certified, regardless of the immediate presence of CMMC clauses early on in the phased implementation of the rule. Becoming certified may not be immediately required for compliance during the first year of implementation, but it will provide a competitive advantage.
• Subcontractor Management – Higher-tier contractors must confirm that their subcontractor has a “current CMMC status” at the level “appropriate for the information that is being flowed down to the subcontractor” prior to subcontract award. Prime contractors will be responsible for the compliance of subcontractors.
• Affirming Official– The final rule uses the term “affirming official” to describe the individual who the contractor designates to provide the annual attestation of CMMC compliance. This is consistent with the Title 32 CMMC Program rule, and replaces the previous term “senior company official.” Contractors should contemplate which employee will serve in this role, which carries a risk of liability in the event of a false or misleading compliance affirmation.
• False Claims Act Risk – Contractors will be required to certify that there have been no “changes in compliance” following formal certification, which will likely be one of the most perilous traps for inattentive contractors that fail to appropriately monitor their CMMC compliance following certification. The DOJ’s Cyber Fraud Initiative will likely gain momentum as CMMC requirements increasingly show up in contracts.

Recommendations for Competitiveness and Compliance:

• Level of Certification – Contractors should determine the level of certification they should obtain to remain competitive for contracts based on the awards for which they wish to compete. Contractors should review their current contracts with legal counsel to determine the level of certification that will likely apply to them.
• Subcontractor Scoping – Contractors should also review subcontractor agreements to determine if their subcontractors will be in compliance with CMMC requirements. Again, prime contractors will be responsible for the compliance of subcontractors.
• Schedule C3PAO Certification Assessment – Contractors should schedule their CMMC C3PAO assessment as soon as possible if they have not already done so, as availability of C3PAOs is limited due to demand for these assessments. As CMMC requirements begin to appear in contracts, uncertified contractors will lose opportunities and jeopardize relationships with primes.
• Engage Counsel for Data Protection and Compliance Assessment – Engage legal counsel to conduct a privileged data protection assessment to determine the contractor’s ability to meet CMMC requirements, while shielding the findings of the assessment from disclosure during an investigation or litigation. Contractors that do not require a Level 2 C3PAO assessment should be sure to schedule this self-assessment through counsel to ensure accurate self-assessment scores are submitted to the Government.
• Incident Reporting – Do not ignore the other cybersecurity requirements found in the DFARS, including the cyber-incident reporting requirements of DFARS 252.205-7012. Cyber-incidents must be reported by defense contractors within 72 hours of discovery and images of affected systems must be preserved to be in compliance with DFARS 7012. Notably, the CMMC proposed rule incorporated this 72 hour reporting requirement, but the final rule dispensed with the reporting requirement, noting reliance on the requirements found in DFARS 7012.