Tuesday, May 20th, 2025
Many kinds of incidents can lead to the pursuit of a personal injury claim in Virginia. Recent data from the Centers for Disease Control and Prevention shows that close to 40 million Americans visit the hospital each year due to suffering a personal injury. The Insurance Research Council reports that personal injury settlements were 40% higher when claimants were represented by an attorney.
Situations where a personal injury can occur include the following:
- Car accidents;
- Tractor Trailer Accidents;
- Boating Accidents;
- Slip and fall;
- Dog Bites;
- Household Products Causing Injury;
- Commercial/Industrial Products Causing Injury;
- Medical Malpractice Injury; and
- Medical Drug and Device Injury.
Each of these types of cases is complex and presents specific and unique issues that must be addressed in pursuing a personal injury case. There are also certain requirements and deadlines which must be met. A personal injury attorney’s experience in handling these matters is invaluable.
Case Evaluation
Whether it’s a relatively minor injury from a slip and fall, a significant injury caused by a product defect, or catastrophic injuries caused by a tractor-trailer accident, your personal injury attorney must evaluate your case to determine its value.
An attorney is experienced in gathering all necessary evidence about your personal injury claim. Your attorney can also interview witnesses and hire experts to begin building your case. Your attorney will need to analyze and evaluate liability issues in order to determine who is at fault for causing your personal injury.
Your attorney will also have to assess and determine the amount of your damages. In a personal injury case, your damages include:
- Past Medical Expenses;
- Future Medical Expenses
- Lost Wages;
- Loss of Future Wager;
- Loss of Earning Capacity;
- Pain and Suffering; and
- Emotional Distress.
Negotiations With Insurance Company
Insurance companies are known for being difficult to work with. On your own, an insurance company will have an advantage over you. The insurance company’s goal is to resolve your case for as little money as possible as they put financial interests above all else.
Insurance companies know the law and have experience negotiating with unrepresented claimants. They will make a lowball offer and try to convince you that it is in your best interests to accept it quickly when it clearly is not.
A personal injury attorney has extensive experience in negotiating with insurance companies. Being represented by a personal injury lawyer effectively levels the playing field in dealing with an insurance company.
Once your attorney completes the evaluation of your case and determines its value, it will be time to begin settlement negotiations with the insurance company.
Going to Trial
If the insurance company knows you have an experienced personal injury trial lawyer, they will usually make a fair settlement offer before the trial. If the settlement offer is too low, you should have an experienced lawyer on board to try the case.
The Rules of the Court and the Rules of Evidence are extremely complex when it comes to trying a case. The typical personal injury trial process consists of jury selection, opening statements, witness testimony, cross-examination, closing arguments, jury deliberation, and entering a verdict.
Each of these phases of the trial is complicated and governed by very strict rules of procedure and evidence. Having a personal injury attorney by your side ensures that you will have skilled representation.
Photo from Andrey_Popov/Shutterstock
Thursday, May 15th, 2025
When someone dies, their loved ones are often left overwhelmed. Decisions need to be made. Paperwork needs to be filled out. Funeral and burial arrangements need to be planned. Steps need to be taken to protect the deceased individual’s assets. Of equal importance – especially in cases where the death was caused by another’s negligence – considerations need to be made to protect the interests of the decedent’s statutory beneficiaries. Statutory beneficiaries are the individuals that may have the right to recover damages [CDM1] for their loved one’s wrongful death.
The first question that needs to be determined is this “Who will represent the decedent, the estate, and the decedent’s statutory beneficiaries?” This individual will be the decedent’s voice throughout any litigation related to their death, and they must work to protect the interests of the decedent’s other beneficiaries and loved ones.
Virginia requires that any wrongful death action “be brought by and in the name of the personal representative of [a] deceased person.”[1] Who this “personal representative” should be, how they qualify, and the authority they have when they do qualify are all deeply complicated issues. The answers to each of these questions can be found in the Code of Virginia, but they are often concealed beneath layers of interlocking statutes and complicated legal jargon. Further, there are numerous traps that make it difficult for individuals to figure this process out on their own. For these reasons, it is always advisable to consult with an experienced wrongful death attorney in Virginia as soon as possible after a loved one dies.
It is possible that the decision has already been made for you. If the deceased individual died with a valid will may include within in it a named “executor” of the estate. This executor can simply qualify as the decedent’s personal representative by making an appointment with the Circuit Court Clerk’s office in the appropriate jurisdiction, taking an oath, and complying with the various administrative requirements the clerk imposes.[2]
If the decedent left a will but it fails to name an executor, or the named executor is unable or unwilling to serve in the role, “the court or clerk may grant administration with the will annexed to [another individual] . . . .”[3] Here there is the additional complication that only certain types of individuals can qualify during certain periods of time after the decedent’s death. In the first thirty days any “person who is a residual or substantial legatee under the will, or his designee” may qualify.[4] If no such person qualifies within thirty days after the death, any “person who would have been entitled to administration if there had been no will,” may qualify.[5]
If a person dies without a will (or no one qualifies as an administrator of the estate within thirty days after the death) the Code of Virginia provides an intricate timeline for when different types of individuals can qualify. During the first thirty days after the death, administration may be granted to any “sole distributee, or his designee, or in the absence of a sole distributee, to any distributee, or his designee, who presents written waivers of the right to qualify from all other competent distributes.”[6]
After 30 days have passed, “the court or the clerk may grant administration to the first distributee, or his designee, who applies,” unless more than one distributee declares an intent to apply as administrator. If that occurs, the court or clerk must give each distributee who declared an intent to apply the chance to be heard on the issue.[7]
After 45 days have passed, certain nonprofit entities can be appointed as administrators if they meet certain notice and administrative requirements.[8] Finally, after 60 days, the clerk “may grant administration to one or more of the creditors or to any other person,” provided that they meet certain notice and administrative requirements.[9] Additionally, there is a catch all provision in the Code that allows the clerk to deviate from the provisions of this section if it determines that it is in “the best interests of a decedent’s estate.”[10]
The above provisions grant the appointed personal representative general authority to represent the estate. This means that they can do other necessary things to close out the decedent’s estate in addition to prosecuting a wrongful death action. This is often necessary if the deceased has assets or debts that need distribution or resolution.
There is an additional way that an individual can qualify as the personal representative of a decedent’s estate, however, when there is no need for the administrator to have general authority over the estate. The Code of Virginia allows an individual to qualify “solely for the purpose of prosecution or defense of any [personal injury or wrongful death] actions,” “if at least 60 days have elapsed since the decedent’s death and an executor or administrator of the estate has not been appointed under § 64.2-500 or 64.2-502 . . . .”[11] As the Code suggests, this grant of administration is much more limited than those discussed above. Their only power is to prosecute or defend a personal injury or wrongful death action.
When dealing with the death of a loved one, the last thing you should have to think about is who to qualify as personal representative and how to qualify them. Further, there are traps waiting for the unwary individuals that navigate this process alone. Instead, if you believe that your loved ones death was caused by the improper actions of another, you should consult with an experienced wrongful death attorney as soon as possible. Your loved one needs a voice, and your attorney can help you identify the right person to serve in that important role.
[1] Va. Code § 8.01-50(C).
[2] Id. at § 64.2-501.
[3] Id. at § 64.2-500(A).
[4] Id.
[5] Id.
[6] Id. § 64.2-502(A)(1).
[7] Id. at § 64.2-502(A)(2).
[8] Id. at § 64.2-502(A)(3).
[9] Id. at § 64.2-502(A)(4).
[10] Id. at § 64.2-502(B).
[11] Id. at § 64.2-454.
[CDM1] Cross reference Dec. 2023
Photo from PeopleImages.com – Yuri A/Shutterstock
Monday, May 5th, 2025
On May 1, 2025, the U.S. Department of Labor issued a field assistance bulletin, Wage and Hour Memorandum No. 2025-1, stating that it would no longer apply the 2024 Rule used to determine when workers are independent contractors or employees under the Fair Labor Standards Act. Instead, the DOL said it will enforce the FLSA in accordance with Fact Sheet #13 (July 2008) as informed by Opinion Letter FLSA2025-2, which involves service providers working in a virtual marketplace company.
The Trump DOL did not rescind the regulations that created the 2024 Biden-Era Rule, it simply stated it plans to not to use it. The 2024 Rule had laid out a comprehensive 6-prong economic reality test to determine whether a worker was an employee or an independent contractor. The 2024 Rule contrasted with the 2021 Rule issued during the last days of Trump 1.0 which emphasized two factors: the worker’s ability to control their work and the opportunity for profit as a result of personal investment. Notably, current Trump DOL did not simply revert to the 2021 Rule. Instead, the WHD says that it will enforce the FLSA in accordance with the 2008 Fact Sheet.
The 2008 Fact Sheets requires DOL to consider 7 distinct criteria:
- The extent to which the services provided are integral to the company’s business;
- The permanency of the working relationship;
- The amount of the worker’s investment in facilities and equipment;
- The nature and degree of control of a company;
- The worker’s opportunities for profit and loss;
- The amount of initiative, judgment or foresight in open market competition with others is required for the worker’s success; and
- The degree of independent organization and operation.
The Fact Sheet also notes that some factors are “immaterial” to the determination. For example, the place where the work is performed, the lack of a formal agreement, whether the worker is licensed by the state or local government, and the time or mode of payment for services are said to have no bearing on determinations of whether there is an employment relationship.
Overall, most commentators see the DOL’s position as creating room for future rulemaking and as demonstrating a commitment to protecting flexible and worker freedom.
The announcement that the 2024 Rule was being shelved was not unexpected, but the move to use the 2008 Guidance is somewhat of a surprise. Given that DOL enforcement staff is being reduced as part of the overall Trump initiative to downsize the federal bureaucracy, it seems likely that DOL will have fewer resources to aggressively pursue claims on behalf of workers. However, given Secretary Chavez-DeRemer’s strong labor background it is possible this misclassification issue might be a priority area for enforcement. Once Andrew Rogers is confirmed as the new WHD Administrator we will have a much better sense of how this misclassification issue play out during Trump 2.0.
Since 2020, we have seen a rise in the number of misclassification cases filed by individuals following the passage of the new misclassification rules adopted in Virginia, (Va. Code 58.1-1900, et. seq.) and the new Virginia statute authorizing claims of wage theft by employees (and groups of employees). When employees prevail on these claims the “employer” can be liable for the unpaid wages, 8% pre-judgment interest on those wages, liquidated damages equal to unpaid wages, plus attorney fees (Va. Code 401.-29). Virginia law also provides for civil fines and criminal exposure for willful violations committed with the intent to defraud.
We do not expect this new Trump enforcement guidance to have an impact on the number of misclassifications filed against Virginia companies. If your company or organization has questions about its use of independent contractors or the possible misclassification of certain workers, please contact any member of Gentry Locke’s Employment team for advice on the latest developments and guidance on how to address potential issues in this area.
Photo from Tada Images/Shutterstock
Friday, April 25th, 2025
As Virginia personal injury and wrongful death attorneys, our clients often ask us—how much is my car worth? How do I negotiate the value of my vehicle with the insurance company? Am I still entitled to a rental vehicle from the at-fault driver even if my vehicle is a total loss? Surprisingly, the vehicle/property damage claim is the top priority for many clients and the injury claim is sometimes an afterthought. Even if the client suffers a catastrophic injury, they still worry about how their family will get from place to place without their primary vehicle.
We represent clients who have sustained personal injury or wrongful death due to Virginia car, truck, or motorcycle crashes, but we also regularly provide guidance to our clients who are negotiating their total loss insurance claims. This article provides five tips and tricks and what you need to know when negotiating a total loss insurance claim arising from a Virginia motor vehicle collision.
1: You are entitled to the fair market value of your vehicle immediately before the crash, not what the insurance company says your car is worth.
Under Virginia law, a vehicle is generally deemed a total loss when its “estimated cost of repair exceeds 75 percent of its actual cash value.”[1] “[T]he measure of damages [for a property damage claim] is the difference between the market value of the property immediately before and immediately after the property was damaged.”[2]
First and foremost, to ensure that you get the best offer for your vehicle, it is important to make sure that the insurance adjuster has any and all documentation that supports the value of the vehicle. Take good photographs of the vehicle (including a photograph of the odometer reading). If possible, remove personal items and clean the interior of the vehicle before taking the photographs. If you purchased the vehicle just before the crash, then provide the adjuster with the photographs from the dealer’s listing. Additionally, send the adjuster’s recent maintenance records, recent service records, and any documentation that reflects any upgrades that were made to the vehicle. After providing all of the relevant documentation, you should receive a settlement offer.
To determine whether the total loss settlement offer is fair, a good place to start is by researching the value of your vehicle using an online tool like J.D. Power or Kelley Blue Book. If the offer is above the J.D. Power or Kelley Blue Book range (or at the very high end of the range), then the insurance company’s offer is likely fair, unless you have made significant improvements to the vehicle.
If the offer is below the J.D. Power or Kelley Blue Book value, then you can send the insurance adjuster those values and ask them to increase the offer accordingly. If you receive pushback from the adjuster about the validity of the J.D. Power or Kelley Blue Book value, then send them a copy of Virginia Code § 8.01-419.1, which provides that the “J.D. Power Official Used Car Guide” and “any vehicle valuation service regularly used and recognized in the automobile industry” is “admissible as evidence of fair market value.”
2: Carefully review the market valuation report, and research your own comparables.
Insurance companies hire other companies, such as CCC ONE, to assess your vehicle’s value. Generally, the insurance company will provide you with a market valuation report when they make you an offer to settle the total loss claim. If the insurance adjuster does not provide you with the market valuation report when they make you an offer, then ask them to provide you with documentation supporting the offer, and they should provide the market valuation report. Below is a screenshot of a market valuation report.
It is important to review the market valuation report carefully. Often, the information contained in the report is incorrect. Double-check the report to ensure that all of your vehicle’s information and features are correctly listed in the report.
Most importantly, double-check to make sure the listed mileage is correct because this is one of the main variables that determine your vehicle’s value. Recently, one of our clients received a market valuation report where the mileage listed in the report was more than 100,000 miles over the vehicle’s actual mileage. We reviewed the report for the client and discovered that the appraiser had mistakenly used the number written on the back windshield as the mileage when that number was just a random number the tow yard had written on the vehicle for inventory purposes. If the mileage error was not caught and brought to the insurance adjuster’s attention, then it could have cost our client thousands of dollars.
Often, insurance adjusters are beholden to their market valuation report, and J.D. Power or Kelley Blue Book values do not persuade them to increase their settlement offer. If the adjuster is taking this approach, then you can do your own research using websites like Cars.com or Autotrader. Insert your vehicle’s information and then search for comparable vehicles in your area. After locating the highest valued comparables, write down the VIN number for the comparables and see if they were considered in the original market valuation report. If not, then send the comparables to the insurance adjuster and ask them to be added to the market valuation report. This tactic can help you obtain hundreds or thousands more from adjusters who claim to be bound to the market valuation report.
3: Consider making the vehicle claim through your own insurance company, rather than the at-fault driver’s insurance company.
Let’s say you were involved in a crash where another driver was clearly at fault. If you have been negotiating with the at-fault driver’s insurance company, then consider processing the claim with your own insurance company instead. Generally, your own insurance company has less of an incentive to make you a lowball offer under these circumstances because they are planning to later get reimbursed by the other driver’s insurance company through a legal process called subrogation. I personally took this approach when a drunk driver recently totaled my unoccupied car, and my insurance company offered three thousand dollars more than the drunk driver’s insurance company. If you take this approach, then you may be concerned about your deductible, but in Virginia, 14VAC5-600-80(C) requires your insurance company to include your deductible in any subrogation demand that it makes to the other driver’s insurance company. Therefore, assuming the other driver’s liability is clear, your deductible should be quickly reimbursed by your insurance company (mine was).
4: Consider hiring an independent appraiser, which could increase the offer by thousands.
If the insurance adjuster is still making a lowball settlement offer for the total loss of your vehicle despite taking the approaches listed above, then consider hiring an independent appraiser. Our clients have had tremendous success using independent appraisers, and I have personally seen clients obtain thousands and thousands more for their vehicles by using an independent appraiser (even after considering the cost of the independent appraiser). Independent appraisers can add lots of value if you have a luxury or collectible vehicle.
5: You are entitled to a rental vehicle from the at-fault driver’s insurance company, even if your vehicle is a total loss.
I often hear that property damage adjusters for the at-fault driver’s insurance company are taking the position that they do not have to provide a rental vehicle when the victim’s vehicle was a total loss. In fact, the drunk driver’s insurance company took this position when I recently had to file a claim for my car. This position is incorrect.
Virginia Code § 8.01-66(A) specifically provides as follows:
“Whenever any person is entitled to recover for damage to or destruction of a motor vehicle, he shall, in addition to any other damages to which he may be legally entitled, be entitled to recover the reasonable cost which was actually incurred in hiring a comparable substitute vehicle for the period of time during which such person is deprived of the use of his motor vehicle. However, such rental period shall not exceed a reasonable period of time for such repairs to be made or if the original vehicle is a total loss, a reasonable time to purchase a new vehicle.”
In other words, when your vehicle is a total loss due to a negligent driver, you are entitled to the costs you incurred to obtain a comparable rental vehicle for a reasonable period of time to allow you to obtain a new vehicle. If the insurance company tries to say that you are not entitled to a rental, then cite this code section and also point to Virginia Code § 8.01-66(B), which provides that the insurance company’s failure to provide the rental vehicle in good faith could subject the carrier to a penalty “in the amount of $500 or double the amount of the rental cost [you are] entitled to recover . . . whichever amount is greater.”
Conclusion
If you have a total loss insurance claim arising out of a car crash, then chances are you have a personal injury claim too. Unfortunately, catastrophic injuries often accompany crashes that result in the total loss of a vehicle. It is not uncommon for serious injuries to go unnoticed at the scene of a crash. First responders often assess a crash victim’s ability to breathe, walk, and talk. Obvious injuries, such as broken bones or serious bleeding, are usually assessed and treated appropriately. However, less obvious injuries, such as traumatic brain injury, may not be appropriately assessed because the damage is internal. Adrenaline kicks in after a crash, which can lead a person to decline medical treatment, even if they are confused, disoriented, “out of it,” and have a headache. We have recovered millions of dollars for clients who initially thought they were just a little “shaken up,” but within a few days, they discover that they are suffering from the symptoms of a life-changing traumatic brain injury. This is why it is imperative to seek medical care as soon as you notice any new symptoms after a car crash.
If you think you may have a personal injury claim arising from a car crash, please do not hesitate to contact us for a free consultation. We are passionate about pursuing the maximum available recovery from negligent drivers and their insurance companies. Even if the negligent driver did not have any insurance, you may still have a claim under the uninsured motorist coverage of your insurance policy. Unlike many property damage claims, personal injury and wrongful death cases are complex and necessitate the involvement of an experienced Virginia personal injury or wrongful death attorney.
[1] See Va. Code § 46.2-1602.1.
[2] Averett v. Shircliff, 218 Va. 202, 207 (1977) (emphasis added).
Wednesday, April 23rd, 2025
Contracts are critical to commercial relationships, but unforeseen events, such as high tariffs, can disrupt performance. This article discusses how Virginia courts may handle doctrines like force majeure, commercial impracticability, and frustration of purpose, and explores related issues such as price adjustments, tariffs as taxes, and cost allocation. It includes considerations that apply to contract drafting, contract interpretation and contract litigation.
Doctrines to Excuse Performance Under a Contract in Virginia
Excuse of performance obligations evidenced by a written contract is an option in light of extraordinary circumstances when renegotiation may not be an option. Courts often strictly interpret force majeure clauses and related doctrines based on contract terms and established legal principles:
- Force Majeure: Virginia courts enforce force majeure clauses narrowly. [1] The clause must explicitly list the triggering event or include a category broad enough to encompass it.[2] The unique and dynamic nature of the tariffs being placed on trading partners with the United States may lead to a broadening of force majeure clauses and inspire even primarily domestic entities to consider the impact of tariffs on their business.
- Impossibility: Virginia common law has adopted the modern doctrine where impossibility excuses performance when an unexpected event renders the circumstances so different from what was anticipated that the contract that performance is impossible.[3] Courts require that the event not due to the fault of the non-performing party.[4]
- Commercial Impracticability: Codified under UCC § 2-615(a) and Code of Virginia § 8.2-615, this doctrine applies when unforeseen circumstances make performance excessively burdensome. Virginia courts consider whether the event fundamentally altered the agreement’s assumptions. Failure to deliver under a contract may not be a breach where performance as agreed under the contract is made impracticable by the occurrence of an event that the non-occurrence of such event was a basic assumption of the contract.[5]
- Frustration of Purpose: This doctrine excuses performance when an unforeseen event substantially frustrates the contract’s principal purpose.[6] Virginia courts require proof that the frustrated purpose was central to the agreement.[7]
Can Tariffs Excuse Performance Under Virginia Law?
The impact of tariffs on a business’s ability to perform under a contract will often need to be extreme to justify excuse of performance under Virginia law. For an average business, the increase in operations costs or a manageable increase in the costs to perform under a contract will not rise to the level to excuse performance under a commercial contract. Below are some examples where tariffs may trigger the above doctrines:
- Force Majeure: High tariffs could qualify as force majeure if explicitly included in the clause or if they fall under broad terms like “governmental actions.” However, Virginia courts will not presume their inclusion unless clearly stated. Even where a force majeure clause may list tariffs in the clause, the tariffs will still need to rise to a certain level to justify the application of the force majeure excuse.
- Commercial Impracticability: Tariffs may render performance impractical if they result in significant cost increases that were unforeseeable at the time of contracting. However, mere economic hardship is generally insufficient under Virginia law unless it creates an excessive and unreasonable burden.
- Frustration of Purpose: If tariffs undermine the fundamental purpose of a contract—such as making imported goods prohibitively expensive—this doctrine may apply. Courts will assess whether the frustrated purpose was central to the agreement.
Can Contract Prices Be Increased Due to Tariffs or Force Majeure?
Contract prices can only be increased pursuant to the terms of the contract. Force majeure clauses excuse non-performance rather than allow for price adjustments. Unless a contract explicitly includes a price adjustment mechanism tied to force majeure events or tariffs, parties cannot unilaterally increase prices due to tariffs or other disruptions without facing a potential breach of contract claim.
Is a Tariff Considered a Tax Under U.S. and Virginia Law?
Yes—a tariff is a tax that is applied to the import or export of goods.
Is a Surcharge Considered a Price Increase Under U.S. and Virginia Law?
A surcharge is generally treated as a price increase because it represents an additional charge imposed on goods or services beyond their agreed-upon price. Whether a surcharge constitutes a breach depends on contractual terms governing pricing adjustments. Absent explicit authorization in the contract, unilateral surcharges may expose sellers to liability for breach of contract.
Can Tariff Costs Be Passed Along to Customers?
In the commercial context, passing tariff costs to customers depends on contractual provisions:
- If the contract includes clauses that allow for price adjustments due to external factors like tariffs, sellers can increase prices according to the terms of such clause.
- Absent such provisions, sellers cannot unilaterally pass tariff costs onto customers without risking breach-of-contract claims.
- Whether such provisions exist can be a legal question based on the use of various contractual vessels from terms and conditions attached to purchase orders and confirmations, applicable provisions under the UCC and Virginia equivalent, to whether the parties negotiated the terms of their agreement. It is important to know what terms govern the contractual relationship, and that determination can require legal analysis.
Virginia courts enforce contractual terms and often require clear language in the contract rather than implying rights or obligations. Consumer facing sellers have more flexibility in what prices can be passed on to customers than those business entities contracting with their customers.
What Happens if a Seller Increase Prices Without Justification Under a Contract?
If a seller raises prices without contractual justification in Virginia, customers have several remedies:
- Breach-of-Contract Claims: Customers can sue for damages resulting from unauthorized price increases.
- Specific Performance: While specific performance is typically an uncommon last resort, there are instances where courts may compel sellers to adhere to their contractual obligations.
- Termination Rights: Depending on contract terms, customers may terminate agreements for material breaches and seek damages.
Courts will hold parties accountable for unjustified deviations from contractual obligations.
Conclusion
Virginia law provides clear guidance on excusing performance under contracts through doctrines like force majeure, impossibility, commercial impracticability, and frustration of purpose. However, these defenses are applied narrowly and require careful analysis of contractual language and circumstances. Entities and individuals concerned about the impact of tariffs on their ability to perform under existing contracts should seek legal counsel to determine their options. Furthermore, customers should ensure that sellers are complying with their contractual obligations.
To address tariff-related risks effectively there are several practices to employ going forward:
- Include tailored force majeure clauses or price adjustment mechanisms during contract drafting.
- Engage in early renegotiations when disruptions occur.
- Seek legal advice to navigate disputes while preserving commercial relationships.
By proactively addressing these issues within contracts governed by Virginia law, businesses can mitigate risks while ensuring compliance with legal obligations.
[1] Christopher Assocs., L.P. v. Sessoms, 245 Va. 18, 22 (1993) (where the terms of a contract are clear and unambiguous, the terms will be construed as written).
[2] Id.
[3] Opera Co. of Bos., Inc. v. Wolf Trap Found. for Performing Arts, 817 F.2d 1094, 1101-1102 (4th Cir. 1987)
[4] Id.
[5] See id (impossibility and impracticability have virtually identical elements as a result of the recent adoption of the modern doctrine); see also Code of Virginia § 8.2-615
[6] Drummond Coal Sales, Inc. v. Norfolk S. Ry. Co., No. 7:16CV00489, 2018 U.S. Dist. LEXIS 143047, 2018 WL 4008993, at *15 (W.D. Va. Aug. 22, 2018) (outlining the elements of frustration of purpose).
[7] Id.
Photo from janews/Shutterstock
Tuesday, April 1st, 2025
The Governor took legislative action on over 960 bills laid on his desk from the 2025 General Assembly Session, including the budget. Governor Youngkin vetoed nearly 160 bills and made recommendations to just as many. In the budget bill, the Governor made 205 amendments and 8 vetoes. A complete list of the Governor’s amendments to the budget may be read here.
The General Assembly will have a Reconvene Session on April 2 to respond to his amendments and vetoes. For bills which the Governor vetoed, the threshold for his veto to be overridden is a 2/3 vote of members present. For his recommended amendments to be rejected or accepted, it’s a simple majority.
All laws signed by the Governor will take effect July 1 of this year unless otherwise stated in the legislation. We will provide an additional update on legislative actions following the Reconvene Session.
Artificial Intelligence
- HB2124 (Maldonado)/SB1053(Ebbin): This legislation makes it a Class 1 misdemeanor to use synthetic media for committing a crime offense involving fraud. Also, it allows civil action against the person who violates this code section. Lastly, it calls on the Attorney General to establish a workgroup to study Virginia’s AI laws. Status: Signed into law.
- HB2094 (Maldonado): Regulates high-risk decision-making AI systems private entities use to prevent algorithmic discrimination. This includes disclosure to a consumer when AI is being used, allowing a person to opt out in favor of human review. The bill passed the House 51-47 and the Senate 21-19 with a substitute that added a definition for facial recognition technology. Status: Vetoed by the Governor. In his explanation, the Governor stated that he felt the rigid framework would not adapt to the ever-changing landscape of AI and would harm startups, job creation, and innovation.
Blockchain and Web3
Delegate Dan Helmer introduced legislation, HB1796, to permit Decentralized Autonomous Organizations (DAOs) to operate in Virginia. A DAO is an organization that is managed through computer programs where financial resources and voting are tracked through blockchain. Three states currently recognize DAOs as legal entities: Tennessee, Vermont, and Wyoming. This legislation was passed with a reenactment clause. This means, in its current state, the bill would have to pass the General Assembly again next Session. Status: The Governor made recommendations to the legislation in the nature of a substitute. The new language converts the bill into a study of DAOs.
Cannabis
HB2485(Krizek)/SB970(Rouse): This legislation establishes a framework for creating a retail marijuana market in the Commonwealth, administered by the Virginia Cannabis Control Authority. Status: Vetoed by the Governor. The Governor vetoed this legislation last year as well.
Car Tax
The Governor’s amendments to the biannual budget seek to provide car tax relief. He addresses this issue by creating a $1.1 billion fund for income tax credits—individual taxpayers earning $50,000 or less will qualify for $150 in tax credits. Joint filers will qualify for $300 if their income is $100,000 or less. The final conference report used the $1.1 billion as general tax rebates of $200 for individuals and $400 for joint filers to be issued by October 15, 2025, and increases in the refundable portion of the Earned Income Tax Credit (EITC) to 20% of the federal credit. Status: The final conference report remains unchanged by the Governor.
Data Centers
- HB1601(Thomas)/SB1449(Ebbin) Provides that before any approval of a rezoning application, special exception, or special use permit for the siting of a new high-energy use facility (HEUF) shall collect certain information. Status: The Governor changed requirements on localities to permissive actions they may take and added a reenactment clause, which would require the 2026 General Assembly to pay the same legislation.
- HB2084(Shin) Directs the SCC to determine if the utilities need new and additional classifications for energy customers. Status: Signed into law.
- SB1047(Roem) Directs the Department of Energy to evaluate and asses demand response programs. Status: Vetoed by the Governor. In his explanation, the Governor stated that the SCC currently has this authority, and utilities already offer these programs.
- In his amendments to the budget, the Governor included an extension of the Data Center Sales & Use Tax exemption from 2035 to 2050.
Energy Storage
HB2537(Sullivan)/SB1394(Bagby) Increase the targets for new energy storage capacity in both Appalachian Power and Dominion Energy territories. The legislation defines the differences between short-term and long-term energy storage. The dividing line is at 10 hours of capacity. Status: The Governor provided recommendations that effectively undue Renewable Portfolio Standards in the Commonwealth.
Electric Vehicles
HB1791(Sullivan) passed the General Assembly on largely partisan lines. This legislation creates the Electric Vehicle Rural Infrastructure Program and Fund to assist private developers with non-utility costs for installing electric vehicle charging stations. Status: Vetoed by the Governor. In his explanation, the Governor stated that federal programs and private companies are already developing an EV charging network. Funding for the program has also been removed in his amendments to the budget.
Oak Hill Farm Park
Delegate Lopez introduced legislation, HB2306, to authorize the Department of Conservation and Recreation to acquire Oak Hill Farm as a state park for preservation. This property is 1,240 acres and includes James Monroe’s home. The legislation passed the House 99-0. It was reported after lengthy discussions in Senate Finance and Appropriations regarding the project’s long-term viability. Later, the bill was recommitted to the committee, killing the legislation. Status: The Governor added language in his amendments to the budget, which creates requirements that must be met for the state to establish Oak Hill as a state park.
Renewable Energy
HB1616, introduced by Delegate Feggans, would require the Director of the Department of Energy to identify and develop training resources to advance workforce development in the offshore wind industry in the Commonwealth. Status: Vetoed by the Governor. In his explanation, the Governor indicated that DOE is already addressing workforce development.
HB1779/SB1338 (Del. Rip Sullivan/Sen. Dave Marsden) is legislation that adds fusion energy to the list of generation sources that qualify as clean energy. Status: This legislation passed the General Assembly unanimously and was signed into law.
HB1934/SB1192 (Del. LeVere Bolling/Sen. Creigh Deeds) are bills that would encourage small-scale solar projects for elementary and secondary schools. Status: The Governor made recommendations to the legislation which deletes large portions of the code sections pertaining to the renewable portfolio standards.
HB2024/SB1165 (Del. Holly Seibold/Sen. Saddam Salim) These bill legislation would prevent government entities from prohibiting the use of solar panels that meet EPA standards. Status: Governor Youngkin amended the legislation to prohibit the banning of solar panels manufactured in the United States.
HB2037, introduced by Delegate Bulova, would allow localities to adopt ordinances requiring solar canopies be developed on parking lots with over 100 spaces. Status: Vetoed by the Governor. In his explanation, the Governor stated he had concerns with mandating solar in parking lots and felt it was an expensive form of generation.
HB2090, introduced by Delegate Shin, would make more projects eligible for the multi-family shared solar program, including projects with shared or adjacent substations. Current law requires energy facilities to be onsite or adjacent to the subscriber base. This legislation also created a minimum bill for low-income customers. Status: Vetoed by the Governor. In his explanation, the Governor felt this expansion undermined the original intent of the program and had concerns about the impact of a minimum bill on non-participating customers’ electric bills.
HB2113, introduced by Delegate Charniele Herring, establishes a Solar Interconnection Grant Program. The fund would provide grants to public bodies to offset the costs associated with the interconnection of solar facilities. The legislation passed the Senate 39-0 and the House 65-31. Status: Vetoed by the Governor. In his explanation, the Governor said that numerous funding sources already exist for solar projects, and thus, he felt this legislation was unnecessary.
HB2346/SB1100 (Del. Phil Hernandez/Sen. Ghazala Hashmi) requires Dominion Energy to conduct a pilot program for a virtual power plant. Status: The Governor made recommendations to direct the SCC to conduct a proceeding to review virtual power plants.
HB2413/SB1021 (Del. Mundon-King/Sen. Scott Surovell) were Commission on Electric Utility Regulation recommendations. This legislation would modify the integrated resource plans in numerous ways, including expanding the planning timeline by five years and changing filing to every three years. Status: Vetoed by the Governor. In his explanation, the Governor stated that the SCC has the authority to regulate IRPs and discuss concerns broadly with the Virginia Clean Economy Act.
SB893 was introduced by Scott Surovell. This legislation adds geothermal heating and cooling systems to the renewable portfolio standards. Status: Vetoed by the Governor. In his explanation, the Governor indicated that this was creating a subsidization for HVAC technologies.
Sanctuary Cities
Under budget Item 377 in the Governor’s proposed amendments to the biannual budget, there is language that compels officials to comply with ICE and directs the withholding of payments for failure to comply. This is one of many policy decisions that will nationalize legislative policy discussions during this Session.
F.1. Any Director, Superintendent, sheriff, or other official in charge of a facility in which an alien is incarcerated shall comply with lawful U.S. Immigration and Customs Enforcement detainers and shall provide at least 48-hour prerelease notification to U.S. Immigration and Customs Enforcement.
- If any Director, Superintendent, sheriff, or other official in charge of a facility is in violation of F.1. or if a local law enforcement agency, sheriff’s office, or official in charge of a facility, pursuant to adoption of a local ordinance, procedure, policy, or custom prohibits or impedes communication or cooperation with U.S. Immigration and Customs Enforcement, the Director of the Department of Criminal Justice Services shall withhold reimbursements due to a locality under Title 9.1, Chapter 1, Article 8, Code of Virginia, and the Compensation Board shall withhold per diem payments for financial assistance to local or regional jails.
Status: This language was not included in the budget conference report, but the Governor has reinserted the language into his budget recommendations.
Speed Cameras
Senate Bill 1233 (Williams-Graves) incorporates portions of HB2041 (Seibold). The final version asses a $100 fine regardless of if the pedestrian is properly in a crosswalk. It also permits law enforcement to install recording devices at pedestrian crossings and stop sign violations within previously approved monitoring areas. Lastly, the legislation puts in place a rigorous process for speed cameras to be approved, limits their profitability, and puts a due process framework in place. Status: Vetoed by the Governor. In his explanation, the Governor indicated that he did not feel the bill, as drafted, struck the proper balance between public safety and privacy. Additionally, he mentioned that the legislation did not reflect the consensus of stakeholders.
Standard Deduction
Governor Youngkin has called on the General Assembly to permanently increase the standard deduction from $3,000 for single filers and $6,000 for couples to $8,500 and $17,000, respectively. This change expires on January 1, 2026. As of this posting, Senator Suetterlein introduced SB782 to accomplish this initiative. SB782 failed to report from committee. The final budget conference report increased the standard deduction over the current biennium. The deduction is $8,750 for individuals and $17,500 for joint filers. However, it would expire with the current budget. Status: The Governor’s amendments made these changes to the standard deduction permanent.
Taxes on Tips
Senate Minority Leader Ryan McDougle and Delegate Chad Green have introduced SB763/HB1562. This legislation provides an income tax deduction for cash tips received and is a major initiative in Governor Youngkin’s 2025 Legislative Agenda. This proposal is anticipated to return $70 million annually to taxpayers. The Virginia Department of Taxation and the Virginia Employment Commission estimate that more than 250,000 Virginia workers receive tips as part of their employment. Status: It is not included in the final budget conference report and was not included in the Governor’s amendments.
Virginia Military Survivors and Education Program (VMSDEP)
Following the 2024 General Assembly Session, numerous meetings were held regarding the long-term feasibility of VMSDEP. This program is designed to provide educational benefits to the surviving family members and dependents of military service members who are killed in action, are permanently disabled due to service, or are classified as missing in action. The Governor announced an additional $120 million and long-term sustainable funding from VA529 surpluses. No policy changes on how the program is implemented were presented. HB1694 (Askew) requires the Department of Veterans Services and the State Council of Higher Education for Virginia to coordinate to report no later than December 15 of each year on persons eligible for the program and an estimate of how many enrolled in higher education using the tuition waiver. The bill passed unanimously. There was also $ 100 million in funding provided in the budget conference report. Status: HB1694 was signed into law. The Governor’s budget amendments direct $90 million from the general fund and $60 million in non-general funds to the program.
Photo from Paul Brady Photography/Shutterstock.
Wednesday, March 26th, 2025
Article originally featured in the Legal Backgrounder, Vol. 40 No. 3 from the Washington Legal Foundation
One may have missed the Executive Order issued February 19, 2025, entitled “Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Deregulator Initiative” (“Executive Order”).[1] It orders agency heads to identify regulations to target for deregulatory action. Although that may be a substantial opportunity for certain heavily regulated industries, those same industries and their regulators should be careful that the unintended consequence is not more regulation at the state and local level. The railroad industry is such an industry; the Federal Railroad Administration (“FRA”) is such a regulator.
The Executive Order
The administration previously had announced that an agency may adopt a new regulation only if it repeals ten existing regulations.[2] The Executive Order upped the emphasis on deregulation. Specifically, the Executive Order gave agencies 60 days from the date of the order to identify seven classes of regulations. Those classes included: (i) regulations that impose significant costs upon private parties that are not outweighed by public benefits; (ii) regulations that harm the national interest by significantly and unjustifiably impeding technological innovation, infrastructure development, disaster response, inflation reduction, research and development, economic development, energy production, land use, and foreign policy objectives; and (iii) regulations that impose undue burdens on small business and impede private enterprise and entrepreneurship.[3] Thereafter agency heads and the Office of Information and Regulatory Affairs have 60 days to develop an agenda that seeks to rescind or to modify these regulations.
There are undoubtedly legacy regulations promulgated by the FRA or the Department of Homeland Security (“DHS”) that meet the criteria listed in the Executive Order. The rail industry has long targeted these regulations and may see the Executive Order as the next good opportunity to have the FRA or DHS repeal some of their regulations. But, there is risk that repeal could result in State regulation if done carelessly.
The Federal Rail Safety Act
FRSA contains an express preemption provision that governs the relationship between federal regulation by the two agencies and state regulation of railroad safety.[4] This preemption provision establishes the balance between national uniformity of laws and regulations and state-level regulation in railroad safety matters. FRSA preemption is valuable to the rail industry, which has invoked it successfully to stop state regulation. Based on a variety of existing federal regulations, courts have held that it preempts State attempts to regulate train speeds,[5] warning devices at railroad-highway crossings,[6] and blocked crossings,[7] among others.
Section 20106 of Title 49 provides that laws, regulations, and orders related to railroad safety or to railroad security shall be nationally uniform to the extent practicable.[8] At the same time, it provides that a “State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement.”[9] Additionally, a “State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, regulation, or order— (A) is necessary to eliminate or reduce an essentially local safety or security hazard; (B) is not incompatible with a law, regulation, or order of the United States Government; and (C) does not unreasonably burden interstate commerce.” 49 U.S.C. 20106(a)(2).
If a federal law contains an express preemption clause, it does not immediately end the inquiry because the question of the substance and scope of Congress’ displacement of state law still remains.[10] Congressional intent is determined by the language of the statute itself, and through the structure and purpose of the federal law. Interpreting the language of the FRSA preemption provision, the Supreme Court has observed that the provision does not employ the broad term “relate to” but rather limits preemptive effect to those regulations “covering” the same subject matter as the state law in question.[11] It held that “‘covering’ is a more restrictive term which indicates that the preemption applies only if the federal regulations substantially subsume the subject matter of the relevant state law.”
Does FRSA Preemption Still Apply After a Deregulatory Action?
As the railroad industry considers whether to petition either agency to repeal legacy regulations, a fundamental and unresolved question is whether FRSA preemption will still preempt States from regulating the area that the repealed regulation covered. There are no examples that define the contours of preemption after repeal of a rail safety regulation.
A Ninth Circuit case, in which the FRA and the industry attempted to assert that FRSA preemption applied when the FRA considered regulating but declined to adopt a rule, may be instructive of the risk. When considering and withdrawing a proposal to regulate the size of a train crew, FRA’s Order noted that then “nine states have laws in place regulating crew size” and stated that the Order’s intent is “to preempt all state laws attempting to regulate train crew staffing in any manner.”[12] FRA explicitly intended its “notice of withdrawal to cover the same subject matter as the state laws regulating crew size and therefore expects it will have preemptive effect.”[13]
The Ninth Circuit rejected FRA’s attempt to negatively or implicitly preempt state regulation when withdrawing the proposed regulation.[14] The Court held that “Congress limited the preemptive effect of an FRA order by providing in § 20106(a)(2) that states may ‘continue in force an additional or more stringent law’ that is ‘necessary to eliminate or reduce an essentially local safety or security hazard’ and ‘is not incompatible with a [federal] law, regulation, or order.’” The state regulation “is preempted only when incompatible with the FRA’s decision.” Id. at 1180. “The Order, although declaring it ‘negatively preempt[s] any state laws’ concerning crew staffing, does not address why state regulations addressing local hazards cannot coexist with the Order’s ruling on crew size.” Id.
If a proposed and not adopted rule does not preempt state regulation, how will courts view an instance in which an agency withdraws its regulatory design over a safety issue by repealing an existing regulation? Does a withdrawn regulation still “cover the subject matter”? The risk is that the industry would lose the express preemption of § 20106 when the agency repeals a regulation, and the industry would be left arguing a theory of implied preemption. Such a theory would likely be weaker given the FRSA preemption provision and the legal presumption against preemption.
Thinking Ahead
The industry and the agencies should proceed deliberately and consider steps to reduce the risk of state regulation as an unintended consequence of seeking deregulation at the federal level. First, the rail industry should be sure the targeted legacy regulation is significant enough to justify the legal fight to follow if States step into the area. Second, the industry should propose revisions to regulations that make them less restrictive rather than propose outright repeals. Third, the agency should heed the lessons of the Ninth Circuit case.
[1] https://www.whitehouse.gov/presidential-actions/2025/02/ensuring-lawful-governance-and-implementing-the-presidents-department-of-government-efficiency-regulatory-initiative/
[2] https://www.whitehouse.gov/fact-sheets/2025/01/fact-sheet-president-donald-j-trump-launches-massive-10-to-1-deregulation-initiative/
[3] Of the four other classes two may be potentially relevant here (i) regulations that are based on anything other than the best reading of the underlying statutory authority or prohibition and (ii) regulations that implicate matters of social, political, or economic significance that are not authorized by clear statutory authority.
[4] The Interstate Commerce Commission Termination Act (“ICCTA”) also includes a preemption provision that the railroad industry argues may also apply to certain safety regulations. 49 U.S.C. 10501(b). There may be preemption under ICCTA but it would require a more complex analysis in the safety realm.
[5] See e.g., CSX Transportation v. Easterwood, 507 U.S. 658, 664 (1993) (“Easterwood”); Seyler v. Burlington Northern Santa Fe Corp., 102 F. Supp.2d 1226 (D. Kan. 2000).
[6] See e.g., Armijo v. Atchison, Topeka & Santa Fe Ry., Co., 754 F. Supp. 1526 (D.N.M. 1990).
[7] For a good overview of Section 20106, see People v. Burlington Northern Santa Fe R.R., 209 Cal. App.4th 1513 (2012); Village of Mundelein v. Wisconsin Cent. R.R., 882 N.E2d 544 (Ill. 2008).
[8] See, Frank J. Mastro, Preemption Is Not Dead: The Continued Vitality of Preemption Under the Federal Railroad Safety Act Following the 2007 Amendment to 49 U.S.C. § 20106, 37 Transp. L. J. 1 (2010).
[9] Infermo v. N.J. Transit Rail Operations, Inc., 2012 U.S. Dist. LEXIS 8151 (D. Ct. NJ 2012).
[10] Altria Group v. Good, 555 U.S. 70, 76 (2008).
[11] Easterwood, 507 U.S. at 664.
[12] 84 Fed. Reg. 24,735 at 24,741.
[13] Id. at 24,741. It may be worth considering what would have happened if the FRA has adopted a regulation that said a minimum on one trained crew is required. State regulation would have been preempted.
[14] Transp. Div. of the Int’l Ass’n of Sheet Metal, Air, & Transp. Workers v. FRA, 988 F.3d 1170 (9th Cir. 2021).
Tuesday, March 25th, 2025
On March 21, 2025, the Financial Crimes Enforcement Network (“FinCEN”) issued an Interim Final Rule which serves as an update to reporting requirements under the Corporate Transparency Act (“CTA”). The update revised the definition of “reporting company” to only include entities formed under the laws of a foreign country AND that are registered to do business in the United States. Additionally, U.S. persons that beneficially own foreign entities do not need to report under the CTA. This update removed U.S. entities from the definition of “reporting companies,” removing any obligation of U.S. entities to file beneficial ownership reports under the CTA.
Reporting companies (as updated) registered to do business in the United States prior to the issuance of the Interim Final Rule must file beneficial ownership reports no later than 30 days from March 21, 2025. Reporting companies formed after the issuance of the Interim Final Rule have 30 calendar days from the date their registration is effective.
FinCEN is soliciting comments on the rule and intends to finalize it this year.
For now, U.S. entities are off the hook for beneficial ownership reporting, but until the Interim Final Rule is finalized, former reporting companies should stay apprised of updates as they come.
To view the official notice from FinCEN and stay up to date with CTA developments visit www.fincen.gov/boi.
Tuesday, March 18th, 2025
On March 14, 2025, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit granted the Trump Administration’s motion to stay enforcement of a district court’s preliminary injunction against three aspects of President Trump’s executive orders (EOs) banning “illegal” diversity, equity, and inclusion (DEI) preferences and programs.
Key points of the ruling:
- The stay allows the Trump Administration to resume implementation of certain challenged aspects of EOs 14151 and 14173, i.e., the termination of equity-related grants or contracts, the ability to require certifications from government contractors that they do not operate programs promoting “illegal DEI” and to develop plans for enforcing the provisions related to “illegal DEI.”
- The panel’s order did not provide a detailed explanation for how the administration had made a “strong showing that it is likely to succeed on the merits” in order to justify the stay. To the contrary two of the concurring opinions made it clear they had reserved judgment on the merits until the court received additional briefing and further proceedings could be held.
- Each of the three judges issued concurring opinions with notable remarks:
- Chief Judge Albert Diaz acknowledged the lack of a definition of illegal DEI leaves an unclear scope of programs targeted for elimination and potential Fifth Amendment vagueness concerns, and suggested that the First Amendment should “provide room of open discussion and principled debate about DEI programs,” as well as to “freely consider how to continue empowering historically disadvantageous groups, while not reducing individuals within those groups “to an assigned racial [or sex-based] identity.”
- Judge Pamela Harris cautioned that “what the Orders say on their face and how they will be enforced are two different things,” and that agency actions beyond the Orders’ narrow scope may raise serious First Amendment and Due Process concerns. She also noted that she agreed with Judge Diaz that “people of good faith who work to promote diversity, equity and inclusion deserve praise, not opprobrium.”
- Judge Allison Rushing questioned the scope of the nationwide injunction that seeks to enjoin all federal agencies, even those not named as parties, and expressed his view that the government was likely to succeed in demonstrating that the challenged provisions of the EO do not violate the constitution. He further questioned the case’s ripeness and the plaintiffs’ standing absent any action to implement the provisions in question and argued that a judge’s opinion that “DEI programs ‘deserve praise not opprobrium’ should play absolutely no role in deciding the case.”
- The stay of the injunction will remain in place pending further legal briefs are submitted by the parties and further legal proceedings are conducted by the 4th Circuit Court of Appeals.
Implications for employers and federal contractors:
- Employers should continue to conduct privileged assessments of their employment practices and in particular any DEI-related programs, preferences and initiatives.
- Federal contractors should anticipate potential agency requests for certification on new contracts or grants issued on or after April 21, 2025, regarding compliance with federal anti-discrimination laws. As a reminder, affirmative action plans based on race, color, sex, sexual preference, national origin or ethnicity are no longer authorized under federal law as EO 11246 has been revoked, and the 4th Circuit’s ruling does not alter this change in the law. Likewise, any programs or initiatives provide employment-related preferences based on race, color, sex, sexual preference, nation origin or ethnicity will be subject to close scrutiny under federal anti-discrimination laws.
- The situation remains fluid and in-house attorneys will need to continue to closely monitoring developments in this area.
This ruling represents a significant development in the ongoing legal battle over President Trump’s executive orders targeting DEI programs in the federal government and beyond. The case highlights the complex interplay between executive power, civil rights laws, and constitutional concerns surrounding DEI initiatives.
Gentry Locke attorneys are actively monitoring developments and are ready to assist. Contact us today.
Photo from Dolores M. Harvey/Shutterstock.
Thursday, February 27th, 2025
The Virginia General Assembly Adjourned Sine Die on Saturday, February 22. As the political focus of Virginia shifts to the coming statewide and House of Delegates races, let’s look at significant policy decisions the General Assembly made. Over the coming weeks, Governor Youngkin will take action on the bills sent to his desk. His deadline for action is March 24. The General Assembly will have a Reconvene Session on April 2 to respond to his amendments and vetoes. All laws signed by the Governor will take effect July 1 of this year unless otherwise stated in the legislation. It should be noted that the General Assembly has put in place a Special Session to meet at some point this year to address actions at the federal level that could impact the state budget.
Below are updates on legislative initiatives mentioned in the original Pre-Session Report we released, along with some additional bills that generated robust discussion and interest.
Artificial Intelligence
Over the past year, the Joint Commission on Technology and Science (JCOTS) met to discuss legislation carried over from the 2024 Session. All four of the refined bill concepts were recommended by the Commission.
- HB697(Maldonado)/SB571(Ebbin): This legislation makes it a Class 1 misdemeanor to use synthetic media for committing a crime offense involving fraud. Also, it allows civil action against the person who violates this code section. Lastly, it calls on the Attorney General to establish a workgroup to study Virginia’s AI laws. Status: Concepts reintroduced as HB2124 and SB1053 have passed both chambers with widespread bi-partisan support and are on the Governor’s desk.
- SB164(Reeves): Creates property rights for people to own their digital replications of themselves for commercial use. Allows these digital creations to be licensed and provides a legal framework for unauthorized use. Status: Concepts reintroduced as SB1421. The Senate Bill was passed by indefinitely (8-7). HB2462 (Glass) tackled this issue differently. It passed the House (55-41). HB2462 was put into conference following Senate amendments conforming it to Senator Reeves’ introduced bill but failed to generate a conference report.
- SB487(Aird): Establishes standards for public bodies that use AI systems to make “high-risk” decisions to avoid algorithmic discrimination. A high-risk decision is considered material or legal and impacts education, employment, finance, or housing. The concern is based on fears of biased data that will negatively impact a person because of their gender, race, etc. It also seeks to establish a workgroup to study the impact on local governments. Status: Concepts reintroduced as SB1214 and passed the Senate 40-0. It was later left in the House Appropriations Committee.
- HB747(Maldonado): Regulates high-risk decision-making AI systems private entities use to prevent algorithmic discrimination. This includes disclosure to a consumer when AI is being used, allowing a person to opt out in favor of human review. Status: Concepts reintroduced as HB2094 and passed the House 51-47. This legislation passed the Senate with a substitute that added a definition for facial recognition technology. The legislation passed and is on the way to the Governor’s desk.
Blockchain
Delegate Dan Helmer introduced legislation, HB1796, to permit Decentralized Autonomous Organizations (DAOs) to operate in Virginia. A DAO is an organization that is managed through computer programs where financial resources and voting are tracked through blockchain. Three states currently recognize DAOs as legal entities: Tennessee, Vermont, and Wyoming. Status: This legislation was passed with a reenactment clause. This means, in its current state, the bill would have to pass the General Assembly again next Session. It is on the Governor’s Desk.
Car Tax
The Governor’s amendments to the biannual budget seek to provide car tax relief. He addresses this issue by creating a $1.1 billion fund for income tax credits—individual taxpayers earning $50,000 or less will qualify for $150 in tax credits. Joint filers will qualify for $300 if their income is $100,000 or less. Status: The final conference report used the $1.1 billion as rebates of $200 for individuals and $400 for joint filers to be issued by October 15, 2025, and increases in the refundable portion of the Earned Income Tax Credit (EITC) to
20% of the federal credit.
Data Centers
On December 9, 2024, the Joint Legislative Audit and Review Commission (JLARC) reported on Virginia’s world-leading data center industry and policy options for the General Assembly to consider how best to handle the industry moving forward. Northern Virginia accounts for 13% of global data center operational capacity, the world’s single largest market. Data centers are estimated to contribute $9.1 billion in GDP annually to the Commonwealth’s economy. The most substantial aspect of the report is the impact industry growth will have on energy consumption. The report states that left unconstrained, data center projects will increase energy demand by +183% between now and 2040. Much of the industry’s new site growth is expected along the I-95 corridor. The list of policy options made by the Commission may be read here. Status: Numerous data center bills were introduced during this Session based on the JLARC report. Below are a few of note.
- HB1601(Thomas)/SB1449(Ebbin) Provides that before any approval of a rezoning application, special exception, or special use permit for the siting of a new high energy use facility (HEUF) shall collect certain information. Status: HB1601 Passed the House (57-40). SB1449 Passed the Senate (33-6-1). They were put into conference and passed by the General Assembly. They are on the Governor’s desk.
- HB2084(Shin) Directs the SCC to determine if the utilities need new and additional classifications for energy customers. Status: Passed the House (61-35). It then passed the Senate with a substitute (24-16). Following conference it passed the General Assembly in its House-approved form.
- SB960(Perry) Directs the SCC to initiate proceedings to determine if the current allocation of costs among its customers is appropriate to ensure data centers are not being subsidized. Status: This legislation was put into conference with HB 2084. It did not report from the conference.
- SB1047(Roem) Directs the Department of Energy to evaluate and asses demand response programs. Status: Passed the Senate (21-17). It passed the House (53-44). The bill is on the Governor’s desk.
NOVA Casino
Following extensive legislative actions, studies from JLARC, and referendums by localities, Virginia has five permitted casinos in as many localities: Bristol, Danville, Norfolk, Petersburg, and Portsmouth. During the 2024 Session, Senator Marsden introduced SB675, which enables a casino in Northern Virginia. This legislation failed to pass, but similar legislation was introduced during this Session. Status: SB982 (Surovell) passed the Senate (24-16) but was left in the House Committee on Appropriations.
Oak Hill Farm Park
Delegate Lopez introduced legislation to authorize the Department of Conservation and Recreation to acquire Oak Hill Farm as a state park for preservation. This property is 1,240 acres and includes James Monroe’s home. Status: The legislation passed the House 99-0. After lengthy discussions in Senate Finance and Appropriations regarding the project’s long-term viability, it was reported. It was later recommitted to the committee, killing the legislation.
Rental Algorithm Pricing
Several bills were introduced in this Session to regulate the use of algorithms for setting rental pricing. These bills, HB 1870 (Callsen), HB 2047 Anthony, and SB 1400 (Salim), are looking to address concerns raised from recent federal investigations and lawsuits surrounding this practice. Status: All failed to report but will be studied by the Joint Commission on Technology and Science.
Sanctuary Cities
Under budget Item 377 in the Governor’s proposed amendments to the biannual budget, there is language that compels officials to comply with ICE and directs the withholding of payments for failure to comply. This is one of many policy decisions that will nationalize legislative policy discussions during this Session.
F.1. Any Director, Superintendent, sheriff, or other official in charge of a facility in which an alien is incarcerated shall comply with lawful U.S. Immigration and Customs Enforcement detainers and shall provide at least 48-hour prerelease notification to U.S. Immigration and Customs Enforcement.
- If any Director, Superintendent, sheriff, or other official in charge of a facility is in violation of F.1. or if a local law enforcement agency, sheriff’s office, or official in charge of a facility, pursuant to adoption of a local ordinance, procedure, policy, or custom prohibits or impedes communication or cooperation with U.S. Immigration and Customs Enforcement, the Director of the Department of Criminal Justice Services shall withhold reimbursements due to a locality under Title 9.1, Chapter 1, Article 8, Code of Virginia, and the Compensation Board shall withhold per diem payments for financial assistance to local or regional jails.
Status: This language was not included in the budget conference report.
Solar-Siting
The reconstituted Commission on Electric Utility Regulation took on numerous policy questions impacting the regulation and permitting of Virginia’s energy industry. One prominent question is how to balance the Commonwealth’s renewable energy goals created in the Virginia Clean Economy Act and surging energy demand with local land use decision-making. There has been a sharp decline in solar projects approved by local governments and a sharp increase in onerous zoning ordinances. The CEUR made recommendations on these issues. Status: SB1190 (Deeds) and HB2126 (Sullivan) were introduced to capture the recommendations of CEUR. Both were substantially amended throughout the process. SB1190 failed to report from the Floor. HB2126 failed to report from Subcommittee.
Additionally, there was legislation to set standard ordinances for siting, HB2438 (Mundon King). This legislation passed the House (48-46) but failed to report from Senate Commerce and Labor (7-7-1).
Speed Cameras
Senate Bill 1233 (Williams-Graves) incorporates portions of HB2041 (Seibold). The final version asses a $100 fine regardless of if the pedestrian is properly in a crosswalk. It also permits law enforcement to install recording devices at pedestrian crossings and stop sign violations within previously approved monitoring areas. Lastly, the legislation puts in place a rigorous process for speed cameras to be approved, limits their profitability, and puts a due process framework in place. Status: This legislation is on the Governor’s desk.
Standard Deduction
Governor Youngkin has called on the General Assembly to permanently increase the standard deduction from $3,000 for single filers and $6,000 for couples to $8,500 and $17,000, respectively. This change expires on January 1, 2026. As of this posting, Senator Suetterlein introduced SB782 to accomplish this initiative. Status: SB782 failed to report from committee. The final budget conference report increased the standard deduction over the current biennium. The deduction is $8,750 for individuals and $17,500 for joint filers.
Taxes on Tips
Senate Minority Leader Ryan McDougle and Delegate Chad Green have introduced SB763/HB1562. This legislation provides an income tax deduction for cash tips received and is a major initiative in Governor Youngkin’s 2025 Legislative Agenda. This proposal is anticipated to return $70 million annually to taxpayers. The Virginia Department of Taxation and the Virginia Employment Commission estimate that more than 250,000 Virginia workers receive tips as part of their employment. Status: It is not included in the final budget conference report.
Virginia Military Survivors and Education Program (VMSDEP)
Following the 2024 General Assembly Session, numerous meetings were held regarding the long-term feasibility of VMSDEP. This program is designed to provide educational benefits to the surviving family members and dependents of military service members who are killed in action, are permanently disabled due to service, or are classified as missing in action. The Governor announced an additional $120 million and long-term sustainable funding from VA529 surpluses. No policy changes on how the program is implemented were presented. Status: HB1694 (Askew) requires the Department of Veterans Services and the State Council of Higher Education for Virginia to coordinate to report no later than December 15 of each year on persons eligible for the program and an estimate of how many enrolled in higher education using the tuition waiver. The bill passed unanimously. There was also $ 100 million in funding provided in the budget conference report.
Zach is a part of our Gentry Locke Consulting team that is affiliated with Gentry Locke’s Government & Regulatory Affairs Practice Group. To learn more about Zach and our Gentry Locke Consulting team, check out their website here.
