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.

Protecting Your Organization: Rules on Attorney Contact with Employees

Wednesday, September 17th, 2025

In Virginia, there is an ethical rule that prohibits attorneys that are representing a client from speaking about the subject of representation with another person that is represented by another attorney for that matter.[1]  For example, say Employee A has hired Attorney A to represent her in a claim against Organization B before the Virginia Workers’ Compensation Commission (“Commission”).  The rule prohibits Organization B’s attorney from talking about the claim with Employee A without either Attorney A’s presence or permission, i.e. Organization B’s attorney could not have an ex parte communication with Employee A.

But what about the reverse?  Does Attorney A have to go through Organization B’s attorney to speak about the claim with every individual associated or employed with Organization B?  The answer is no, but there are categories of individuals associated with Organization B where Attorney A must go through Organization B’s attorney.

Along with the ethical rules that attorneys must adhere to in Virginia, there are comments that help attorneys in interpreting and applying the ethical rules in various cases.[2]  One of the comments to the rule on ex parte communications between attorneys and represented parties deals specifically with represented organizations.[3]  Prior to January 6, 2021, that comment to the rule indicated that it was prohibited for an attorney to communicate with the “organization’s ‘control group’ as defined in Upjohn v. United States, 449 U.S. 383 (1981).”[4]  Essentially, if an organization’s employee could bind the organization based on their status or position, then an attorney could not have an ex parte communication with that employee.[5]

However, the comment on ex parte communications between attorneys and represented parties was rewritten and adopted on January 6, 2021.[6]  The rewritten comment expanded the class of employees that attorneys cannot have ex parte communications with from individuals in the organization’s “control group” to three categories of individuals that either (1) supervise, direct, or regularly consult with the organization’s attorney concerning a represented matter; (2) have authority to obligate the organization with respect to a represented matter; or (3) whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.[7]  Additionally, the employee must still be employed by the organization.[8]

The employees of an organization who use to fit into the definition of “control group,” e.g. officers, directors, and managers, will most likely always fit into of these new three categories, particularly the second or third, based on their inherent authority and the possible imputation of their acts or omissions to the organization.[9]  But, depending on the facts and circumstances of a claim before the Commission, other employees may or may not fit into one of these categories.[10]

Going back to the above example, say another employee, Employee C, who has no managerial duties witnessed the accident where Employee A was injured.  Employee C would most likely not fit into one of the rule’s three categories, so Attorney A would most likely be able to have ex parte communications with Employee C.[11]

However, say a third employee, Employee D, who also has no managerial duties caused in the course of his duties the accident that injured Employee A.  Employee D could possibly fit into the third category of the rule since his act may be imputed to Organization B for civil liability, so Attorney A would likely have to go through Organization B’s attorney to communicate with Employee D.[12]

While the updated comment to the rule provides help in determining whether an attorney is prohibited from ex parte communications with an employee, the analysis to reach this determination can still be tough.  In going through this analysis, there are two questions that can help: (1) does this employee have access and knowledge of privileged communications between the organization and the organization’s attorney that might be revealed in an ex parte communication; and (2) can the statements of this employee in an ex parte communication bind the organization to certain actions regarding a claim before the Commission?  If the answer is yes to either one, the employee is likely one that an attorney prohibited from having ex parte communications.

So what does it mean if an attorney can have an ex parte communication with a particular employee?  In dealing with this issue under the previous version of the comment to the rule, the Commission stated that the organization and its attorneys had to turn over the names, addresses, telephone numbers, and dates of employment to the employee and his attorney that filed a claim so that the employee’s attorney could talk with each of those employees without the presence or permission of the organization’s attorney.[13]  However, in a later case, the Commission ruled that an employer had to turn over this information with respect to employees that worked in close physical proximity and time to the employee that filed a claim.[14]

Therefore, if an employer organization is facing a claim from an employee and is asked to provide contact information from potential witnesses as part of discovery, it is essential to do an analysis under the rule to see whether the organization has to turn over certain employee-witness information.  The employee-claimant’s attorney might not be able to speak with certain employee-witnesses without the presence or permission of the organization’s attorney.

[1] Va. Rule of Professional Conduct 4.2.
[2] See generally Va. Rules of Professional Conduct.
[3] Comment 7 of Va. Rule of Professional Conduct.
[4] See Nava v. Hanover Country Club, VWC File No. 223-30-02 (Mar. 7, 2006) (citing the Note to Rule 4.2 that dealt with represented organizations).
[5] See id.
[6] See Va. Rule of Professional Conduct 4.2.
[7] Comment 7 of Va. Rule of Professional Conduct 4.2.
[8] Id.
[9] See id.
[10] See id.
[11] See id.
[12] See id.
[13] See Nava v. Hanover Country Club, VWC File No. 223-30-02 (Mar. 7, 2006).
[14] See Lynch v. VC Health Sys. Auth., VWC File No. VA000-0017-7807 (Sept. 30, 2010).

When Words Cross the Line: Lessons from a $1 Million Defamation Verdict

Monday, September 15th, 2025

In July 2022, a former Virginia state senator, Brandon Bell, and his wife, Deborah Bell, sent a letter on state Senate letterhead accusing a 15-year-old Cave Spring High School student of sexually assaulting their daughter. Three years later, a Roanoke County jury ruled that the Bells’ accusations were not only false but defamatory per se, and awarded the plaintiff, Jane Doe, $1 million in damages plus pre-judgment interest.

Background: The dispute traces back to 2021, when Jane Doe, then a high school sophomore, and the Bells’ daughter, began a same-sex relationship after meeting in band. Both testified that the relationship involved kissing, hugging, and hand-holding, but no sexual activity.

The Bells’ daughter eventually disclosed the relationship to her parents, who instructed their daughter to break off the relationship. A few weeks later, the Bells’ daughter reported to them that Jane Doe had touched her back because her hands were cold, and Jane Doe had kissed her without asking for consent.

The Bells reported these events to the school principal as sexual assaults. But when the principal spoke to the Bells’ daughter, she did not corroborate the sexual assault allegations and admitted that she had lied to her parents about continuing the relationship with Jane Doe. The principal relayed that information back to the Bells.

Despite this, four months later the Bells drafted a letter, sent on Mr. Bell’s retired Senate letterhead, accusing Jane Doe of sexually assaulting his daughter “on two occasions” at their high school. He copied the entire Roanoke County School Board, the state superintendent of education, the secretary of education, and several state legislators. Jane Doe filed suit for defamation, defamation per se and insulting words.

Defamation Per Se:  Virginia recognizes certain categories of false statements as defamation per se, including false allegations of (1) a crime of moral turpitude; (2) contagious diseases; (3) related to a person’s fitness to perform their job; or (4) that directly harm the person’s ability to earn a living in their profession or trade.

A crime of moral turpitude is a crime involving lying, cheating, or stealing or a crime that is punishable by imprisonment or an act otherwise base and vile and against community standards. The Court ruled that false allegations of sexual assault are defamatory per se – thus damages were presumed.

Jane Doe nonsuited the defamation and insulting words claims and proceeded only on the defamation per se claim.

Qualified Privilege: One of the central legal questions was whether the Bells’ communications were shielded by the qualified privilege. Virginia law recognizes a privilege when a person makes a statement to others who share a corresponding interest or duty in the subject matter — in this case, parents communicating with school officials about their child’s welfare.

The Court ruled that the Bells’ letter initially qualified for this protection.

A plaintiff can overcome the privilege by proving by clear and convincing evidence that the defendants abused the privilege. The defendants abuse the privilege when they make the statement (1) knowing it was false or with a reckless disregard for the truth; (2) to additional persons having no interest or duty in the subject matter; (3) in bad faith; (4) with unnecessarily insulting words or strong language disproportionate to the circumstances; or (5) out of personal ill will, spite or hatred.

At trial, the two main issues on liability were whether the sexual assault allegations were false and whether the Bells abused the privilege. In making the first determination, the jury relied on “the common understanding” in the community. The evidence showed that the cold hand on the back incident was not sexual in nature, and was a joke rather than an intentional, unwanted touching. The evidence also showed that while Jane Doe did not ask permission to kiss the Bells’ daughter, they had previously kissed and the Bells’ daughter wrote Jane Doe a note a couple days before the kiss, saying she could not wait to kiss Jane Doe again.

The evidence also showed that the Bells had no information to suggest either incident was a sexual assault and the principal informed them that their daughter had confessed to lying about continuing the relationship. The Bells never took their daughter to the police until after Jane Doe filed her lawsuit and over 250 days after the alleged assaults occurred. The evidence also showed that the visit was not out of concern for their daughter — but instead to stop the lawsuit.

The Bells tried to frame their actions as simply those of concerned parents. In doing so, they blamed their daughter for lying to them, and they blamed the principal and other school officials for not addressing their concerns in a manner that satisfied them.

After three days of trial, the jury found both of the Bells liable for defamation per se and that both of them abused the privilege. They awarded Jane Doe $500,000 in compensatory damages, $500,000 in punitive damages, and also awarded pre-judgment interest.

Does My Virginia Lawsuit Belong in General District Court, Circuit Court, or Federal Court?

Thursday, September 11th, 2025

As a plaintiff personal injury attorney, clients often wonder which court their case will be filed in. This article will discuss the three trial courts in which a Virginia civil lawsuit can potentially be filed—general district court, circuit court, and federal district court.

General District Court

In Virginia, general district courts have jurisdiction over almost all types of civil claims up to $50,000.[1] In other words, any claim for breach of contract, personal injury, or property damage not exceeding $50,000 can be filed in general district court.[2] If you have a contract, personal injury, or property damage claim for $4,500 or less, then it must be filed in general district court.[3] In general district court, a judge will hear your case—there are no juries. General district court can be an advantageous place to file a lawsuit if you have a small claim. This court is designed to handle a large volume of smaller claims, which means that your case will go to trial much faster than in circuit court or federal court. Additionally, litigation is much cheaper in general district court because the filing fees are lower and the discovery process is very limited.

Circuit Court

In Virginia, circuit courts have jurisdiction over all civil claims exceeding $4,500.[4] This means that if you have a contract, personal injury, or property damage claim between $4,501 and $50,000, then you have a choice of filing your case in either general district court or circuit court. If your claim is for more than $50,000, then you must file it in either circuit court or federal court, but it can only be filed in federal court under certain circumstances, as discussed below.

In circuit court, both judges and juries decide cases, depending on the nature of the dispute and whether a jury trial has been demanded by the parties. In circuit court, parties can conduct a significant amount of discovery by taking depositions and sending written interrogatories, requests for production of documents, requests for admission, subpoenas duces tecum, etc. Due to the higher value of the claims and additional discovery methods, circuit court cases often do not go to trial until a year or two after they are filed. The additional discovery methods also increase litigation costs and attorney’s fees when compared to general district court.

Federal District Court

Certain types of lawsuits can be filed in federal district court. Generally, these lawsuits fall into two buckets: (1) cases involving a federal question, and (2) cases involving diversity of citizenship where the amount in controversy is $75,000 or more.[5] Federal question jurisdiction is when your claim arises under the Constitution, laws, or treaties of the United States.[6] In other words, if you are seeking a court order to hold that a law is unconstitutional or you are suing someone for a cause of action that is provided under a federal statute, then you can file your lawsuit in federal district court.[7] You can also file your case in federal district court if the defendants are citizens of states different from your state of citizenship and the amount in controversy is $75,000 or more.[8] This is called diversity of citizenship jurisdiction.

Federal district court is more like Virginia circuit court than general district court. In federal district court, both judges and juries decide cases, depending on the nature of the dispute and whether a jury trial has been demanded by the parties. Just like circuit court, parties can conduct a significant amount of discovery by taking depositions and sending written interrogatories, requests for production of documents, requests for admission, subpoenas duces tecum, etc. It generally takes a year or more for your case to go to trial. Although there are many similarities between federal district court and Virginia circuit court, there are also many differences. Federal district courts adhere to their own rules of civil procedure and rules of evidence. Additionally, in federal district court, juries are selected from a larger geographic area.

Which Court Do I File My Lawsuit In?

If you file your lawsuit in the wrong court, it will likely be dismissed and depending on whether the statute of limitations has run, you might not be able to refile the lawsuit in the correct court. All three courts have different rules, which can greatly influence your chances of prevailing. Often, claims can be filed in multiple courts, and there are many practical and strategic considerations when deciding where to file. Additionally, sometimes a case can be transferred, appealed, or removed from one court to another. This is why it is imperative to retain a Virginia trial lawyer that handles cases in all three courts. An attorney that handles cases in all three courts will be intimately familiar with the rules of each, and they will be able to properly advise you where your Virginia lawsuit belongs.

If you have questions about where your lawsuit should be filed or need guidance navigating Virginia’s court system, the experienced trial attorneys at Gentry Locke are here to help. Our team regularly represents clients in general district court, circuit court, and federal court, and we understand the strategies and nuances unique to each. Contact us today to discuss your case and learn how we can protect your rights and pursue the best possible outcome for you.

[1] See Va. Code § 16.1-77.
[2] See id.
[3] See id.
[4] See id.; Va. Code § 17.1-513.
[5] See 28 U.S.C. § 1331; 28 U.S.C. § 1332.
[6] See 28 U.S.C. § 1331.
[7] See id.
[8] See 28 U.S.C. § 1332.