Advisory Note: Recent Ruling Deems Certain Tariffs Unlawful

Tuesday, September 2nd, 2025

A federal appeals court ruled on Friday that President Trump’s attempt to bypass Congress and impose sweeping tariffs on foreign products was unlawful. The Trump administration had argued that import duties are necessary to strengthen the U.S. economy, but the U.S. Court of Appeals for the Federal Circuit ruled 7-4 that the Trump administration went too far when he declared national emergencies to justify tariffs on other countries writing that “it seems unlikely that Congress intended to… grant the President unlimited authority to impose tariffs.” The ruling did not take effect immediately and provided the administration time to appeal to the U.S. Supreme Court.

Small businesses and Democratic states brought the case challenging the tariffs and argued that the President has exceeded his authority in issuing the import duties. The appeals court’s decision is focused on the tariffs President Trump imposed in April on most trading partners, along with earlier levies on China, Mexico, and Canada. On April 2 — or Liberation Day as it was called — the administration imposed so-called reciprocal tariffs of up to 50% on countries with which the U.S. runs a trade deficit and 10% baseline tariffs on almost everybody else. Many of the tariffs have been on and off again as the administration suspended tariffs from time to time.

The administration justified the taxes under the 1977 International Emergency Economic Powers Act, or IEEPA, by declaring longstanding U.S. trade deficits “a national emergency.” In February, the administration invoked the law to impose tariffs on Canada, Mexico and China, saying that illegal immigration and drug trafficking amounted to a national emergency and that the three countries needed to do more to stop it.

The U.S. Constitution gives Congress the power to set taxes, including tariffs. But lawmakers have gradually let presidents assume more power over tariffs — and President Trump has made the most of it.

The court’s ruling does not encompass the levies on foreign steel, aluminum and autos that the administration imposed under a different regulation after Commerce Department investigations concluded that those imports were threats to U.S. national security. Nor does it include tariffs that President Trump imposed on China in his first term — and President Biden kept — after a government investigation concluded that the Chinese used unfair practices to give their own technology firms an edge over rivals from the U.S. and other Western countries.

On to the Supreme Court.

The President vowed to take the fight to the Supreme Court. The dissenting judges foreshadowed a possible argument for the administration that the 1977 law allowing for emergency actions “is not an unconstitutional delegation of legislative authority under the Supreme Court’s decisions” that have allowed the legislature to grant some tariffing authorities to the President.

If President Trump’s tariffs are struck down, it might have to refund some of the import taxes that it has collected. Tariffs are paid by U.S. importers, such as American manufacturers or retailers that rely on foreign-made products. While the U.S. companies typically swallow some of the cost, they pass on much of the added expenses to consumers in the form of higher prices.

Future Tariffs By Different Authority?

For instance, in its decision in May, the trade court noted that President Trump retains more limited power to impose tariffs to address trade deficits under another statute, the Trade Act of 1974. But that law restricts tariffs to 15% and to just 150 days on countries with which the U.S. runs big trade deficits.

The administration could also invoke levies under a different legal authority — Section 232 of the Trade Expansion Act of 1962 — as it did with tariffs on foreign steel, aluminum and automobiles. But that requires a Commerce Department investigation and cannot be imposed at the President’s sole discretion.

What About the Tariffs That Businesses Already Paid?

If the ruling that the tariffs were unlawful stands, payors or duties will have 180 days to file a claim for duties previously paid. Courts have consistently recognized the right to recover unlawfully collected tariffs, provided claimants adhere to procedural requirements. Administrative remedies must be pursued before initiating litigation, a principle applicable to customs refunds under 19 U.S.C. § 1514 and 19 U.S.C. § 1520.

When a tariff is declared unlawful, importers must pursue administrative remedies through U.S. Customs and Border Protection (CBP) before seeking judicial relief. These remedies are governed by the Tariff Act of 1930:

• 19 U.S.C. § 1514: Allows importers to file a protest against a CBP decision within 180 days of liquidation. This is the primary statutory mechanism to contest the imposition of duties.

• 19 U.S.C. § 1520(a)(4): Permits refunds based on clerical error, mistake of fact, or other inadvertence, but not errors of law. This provision may apply in certain procedural missteps related to entry documentation.

The specific process depends on the liquidation status of the entry, which is the final assessment of the amount due made after payment of the estimated duties. Before liquidation, importers may file Post-Summary Corrections (PSCs) to amend the entry and recover overpaid duties. After liquidation, importers must file a formal protest under 19 U.S.C. § 1514. While protests are generally submitted using CBP Form 19, any signed document that contests a CBP decision may qualify.

If CBP fails to act or denies relief, judicial review is available through the Court of International Trade. Importers should promptly assess the liquidation status of their entries and initiate the appropriate refund mechanism to preserve their rights.

Gentry Locke Can Help.

Spoliation & Preservation of Evidence in Virginia Personal Injury Lawsuits

Wednesday, July 23rd, 2025

Let’s say you were in the unfortunate situation of being involved in a traumatic accident where a lawsuit may be on the horizon. It could be a car wreck, tractor-trailer crash, motorcycle crash, boat crash, plane crash, medical malpractice, slip-and-fall accident, etc. You may be the injured person (potential plaintiff) or you may be the person at fault (potential defendant).

No matter the type of accident, if you are a potential plaintiff or potential defendant and the accident happened in Virginia, then you have “a duty to preserve evidence that may be relevant to reasonably foreseeable litigation.”[1] Failing to follow the law can result in “spoliation” sanctions. But what does this mean? What is spoliation? When does the duty to preserve evidence arise? What are the consequences of failing to preserve evidence? What do you do if the other party destroys evidence? This article will summarize Virginia spoliation law, with a focus on Virginia personal injury lawsuits.

What is Spoliation?

The Supreme Court of Virginia has stated: “[s]poliation of evidence occurs when a party is aware that there is pending or probable litigation involving evidence in the party’s custody or under its control, and such evidence if destroyed or otherwise not preserved will interfere with the ability of the adverse party to establish some element of its claim.”[2] Similarly, federal courts have stated: “[s]poliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”[3] Basically, this means that you must save any and all relevant evidence once litigation is reasonably foreseeable, and if you do not save such evidence, then there may be legal consequences in future litigation.

When Does the Duty to Preserve Evidence Arise?

In Virginia, the judge determines “whether and at what point . . . a duty to preserve arose,” and the court must consider “the totality of the circumstances, including the extent to which the party or potential litigant was on notice that specific and identifiable litigation was likely and that the evidence would be relevant.”[4]

The most obvious form of spoliation is when someone intentionally deletes or destroys relevant evidence (such as documents, emails, etc.) after litigation is pending.[5] However, spoliation may also occur before litigation is instituted.

One way for potential litigants to protect themselves and to ensure that other parties preserve relevant evidence is to send a “litigation hold,” “preservation,” or “spoliation” letter to the other parties as soon as possible after the accident.

Spoliation letters do the following:

1. Inform the other parties that future litigation is likely;
2. Request the preservation of relevant information and documents;
3. Provide information about how to preserve relevant evidence; and
4. Caution the other parties of the potential consequences of their failure to preserve such evidence.

A good spoliation letter will be detailed and specifically list the types of documents and evidence that may be relevant to the contemplated litigation.

We routinely send preservation letters in our catastrophic injury and wrongful death cases. These letters protect a potential plaintiff’s rights. They serve two main purposes: (1) to persuade the other parties to preserve relevant evidence, and (2) to put the other parties on notice of litigation. That way, the highly relevant evidence is preserved, and if it is not, then we can seek a spoliation remedy against the spoliating party in future litigation.

Preservation letters should be sent to other parties as soon as possible and by as many methods as possible, including email, mail, and certified mail. Often, the at-fault parties are the ones in possession of the strongest evidence. For example, let’s say you were injured from a slip-and-fall incident at a retail store. The surveillance camera footage at such stores is often overwritten within 30 days. If the retail store does not receive a litigation hold letter requesting preservation of the footage within that time frame and the surveillance video is lost, then they will likely argue that they were not contemplating the litigation and the footage was overwritten without any fault of their own. However, if you have proof that the store received a preservation letter by certified mail shortly after the accident that specifically requested preservation of the video showing the accident, then you have a much stronger argument for a spoliation remedy. This is why it is important for those injured in traumatic accidents to retain a Virginia personal injury lawyer as soon as possible.

It should be noted that spoliation may even occur before the party receives a preservation letter.[6] The focus is on the “totality of the circumstances.” Obviously, a motorist with a dashcam who runs a red light, T-bones another vehicle, severely injures the occupants, is charged with failure to obey the traffic signal, and reports the crash to their liability carrier should know that they need to save the dashcam footage, even if they have not received a spoliation letter.

Consequences of Spoliation

Under Virginia law, courts may impose spoliation sanctions under Virginia Code § 8.01-379.2:1. Under federal law, “[t]he right to impose sanctions for spoliation arises from a court’s inherent power to control the judicial process and litigation.”[7] Federal Rule of Civil Procedure 37(e) governs spoliation of electronically stored information (ESI) in federal courts. The rationale for remedying spoliation “is the need to preserve the integrity of the judicial process in order to retain confidence that the process works to uncover the truth.”[8]

Virginia Code § 8.01-379.2:1(B) states that if evidence “that should have been preserved in the anticipation . . . of litigation is lost because a party failed to take reasonable steps to preserve it . . . and it cannot be restored or replaced through additional discovery,” then the court can take certain measures to remedy the spoliation of evidence, depending on the spoliating party’s level of intent.

Negligent Spoliation

If the spoliating party negligently failed to preserve the evidence and the court finds prejudice to another party due to the loss of the evidence, then the court “may order measures no greater than necessary to cure the prejudice.”[9] Given that Virginia’s spoliation statute was enacted in 2019, there is limited caselaw on this issue, and attorneys should be creative when arguing for the proper remedy “necessary to cure the prejudice.”

The language of Virginia’s spoliation statute is very similar to Federal Rule of Civil Procedure 37(e).[10] The Advisory Committee Notes to Rule 37(e) state the following:

Once a finding of prejudice is made, the court is authorized to employ measures ‘no greater than necessary to cure the prejudice.’ The range of such measures is quite broad if they are necessary for this purpose. There is no all-purpose hierarchy of the severity of various measures; the severity of given measures must be calibrated in terms of their effect on the particular case. But authority to order measures no greater than necessary to cure prejudice does not require the court to adopt measures to cure every possible prejudicial effect. Much is entrusted to the court’s discretion.

In an appropriate case, it may be that serious measures are necessary to cure prejudice found by the court, such as forbidding the party that failed to preserve information from putting on certain evidence, permitting the parties to present evidence and argument to the jury regarding the loss of information, or giving the jury instructions to assist in its evaluation of such evidence or argument. . . .[11]

However, if the spoliating party was merely negligent, then the court cannot do the following: (1) presume the evidence was unfavorable to the spoliating party, (2) instruct the jury that the evidence was unfavorable to the spoliating party, (3) dismiss the spoliating party’s action, or (4) enter default judgment for the non-spoliating party.[12] Those measures are reserved for a higher level of intent.

Reckless or Intentional Spoliation

If the spoliating party “acted recklessly or with the intent to deprive another party of the evidence’s use in the litigation,” then the court may:

1. “[P]resume that the evidence was unfavorable to the party,”
2. “[I]nstruct the jury that it may or shall presume that the evidence was unfavorable to the party,” or
3. “[D]ismiss the action or enter a default judgment.”[13]

Interestingly, although Virginia’s spoliation statute and Federal Rule of Civil Procedure 37(e) both state that there must be a finding of prejudice for the court to take measures to remedy negligent spoliation, the statute and rule do not specifically require a finding of prejudice when the spoliation was intentional.[14] This contemplates that a non-spoliating party could move for a spoliation sanction in instances where the spoliating party acted intentionally, even if the loss of the evidence was harmless, as long as such evidence “cannot be restored or replaced through additional discovery.”[15] Presumably, the statute and rule are worded in this manner to protect the judicial process by providing extra deterrent measures for intentional spoliation.

Can You Sue Someone For Spoliation?

No, neither Virginia nor federal law allow you to sue someone for spoliation. Virginia’s spoliation statute states: “Nothing in this section shall be interpreted as creating an independent cause of action for negligent or intentional spoliation of evidence.”[16] Caselaw makes it clear that there is no cause of action for spoliation under federal law either.[17] Claims for “spoliation” or “destruction of evidence” will be dismissed.[18]

Although you cannot sue someone for spoliation, if you are injured due to another’s negligence and you believe the other party has negligently or intentionally failed to properly preserve relevant evidence, then contact us today for a free consultation. Our Virginia personal injury and wrongful death attorneys are knowledgeable about Virginia’s spoliation law and we can take proper measures to protect your rights.

[1] Va. Code § 8.01-379.2:1(A).
[2] Emerald Point, LLC v. Hawkins, 294 Va. 544, 556 (2017) (emphasis added).
[3] Silvestri v. GMC, 271 F.3d 583, 590 (4th Cir. 2001) (citing West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d. Cir. 1999)).
[4] Va. Code § 8.01-379.2:1(A).
[5] See, e.g., Atl. Diving Supply, Inc. v. Komornik, 113 Va. Cir. 179, 190 (Norfolk 2024) (“There is also definitive proof that Hanford intentionally destroyed evidence . . . during the course of litigation.”).
[6] See id. at 193 (“The Court is not persuaded by Hanford’s arguments, including but not limited to his assertion that he had no duty preserve evidence prior to the date of the litigation hold letter.”).
[7] Silvestri v. GMC, 271 F.3d 583, 590 (4th Cir. 2001).
[8] Id.
[9] Va. Code § 8.01-379.2:1(B).
[10] Compare Va. Code § 8.01-379.2:1(B) with Fed. R. Civ. P. 37(e).
[11] Fed. R. Civ. P. 37(e) advisory committee’s note.
[12] See Va. Code § 8.01-379.2:1(B).
[13] Id.; see, e.g., Atl. Diving Supply, Inc. v. Komornik, 113 Va. Cir. 179, 194 (Norfolk 2024) (presuming that the evidence the spoliating party failed to preserve was prejudicial to him where he acted in bad faith and failed to preserve material evidence while aware of pending or actual litigation).
[14] See Va. Code § 8.01-379.2:1(B); Fed. R. Civ. P. 37(e).
[15] Va. Code § 8.01-379.2:1(B).
[16] Va. Code § 8.01-379.2:1(C).
[17] Turner v. United States, 736 F.3d 274, 282 n.5 (4th Cir. 2013) (“Spoliation of evidence, standing alone, does not constitute a basis for a civil action under either federal or admiralty law.”); Silvestri v. GMC, 271 F.3d 583, 590 (4th Cir. 2001) (“[T]he acts of spoliation do not themselves give rise in civil cases to substantive claims or defenses.”).
[18] See, e.g., Gill v. Food Lion, LLC, 2025 U.S. Dist. LEXIS 23838, at *27 (W.D. Va. Feb. 10, 2025) (“Because spoliation of evidence is not a recognized cause of action, the court must dismiss this claim as well.”); Mayhew v. Harris, 2023 U.S. Dist. LEXIS 27623, at *9 (E.D. Va. Feb. 17, 2023) (“Because spoliation of evidence is not a cause of action, Count III will be struck.”).

You or Your Loved One Is Scheduled for Surgery: A Checklist of Things to Do Before Admission

Thursday, July 17th, 2025

If you or your loved one is scheduled to have surgery in the near future, there are a number of things that you should do prior to admission to the hospital. Many of these things your attorney can help you accomplish and some you may accomplish on your own.

Investigate the Doctor or Surgeon

First, you should investigate the doctor and/or surgeon that will be the primary caregiver while you or your loved one is hospitalized. Investigation of a healthcare provider is relatively easy and can be accomplished by going on the Virginia Department of Health Professions official website and accessing the Virginia Board of Medicine Practitioner information page at Virginia Board of Medicine.

Once on the webpage, click on the Practitioner Information tab. Scroll to the bottom, where you can enter the name of the doctor or surgeon. After selecting the physician, you will be presented with a menu of available information, including:

• General information
• Education and certifications
• Practice areas
• Insurance
• Honors and awards
• Academic appointments and publications
• Disciplinary proceedings, actions, convictions, and paid claims

All of this information can be very helpful in determining whether you believe that the physician is someone that you would be confident in allowing to provide care to you or your loved one. In particular, you will be able to see whether the doctor has settled any malpractice claims and whether the Board of Medicine has issued any actions or censure for the doctor’s conduct.

Confirm Board Certification

This information is also helpful in confirming whether the doctor has the necessary credentials and experience to render adequate care. For example, is the physician Board certified in their specialty? Board certification is granted after passing a comprehensive exam administered by the relevant medical board to ensure the doctor has sufficient knowledge in their area of practice. Most doctors are required to recertify periodically to maintain their certification.

Arrange for an Advocate

Before admission, it’s wise to arrange for someone to act as an advocate for you or your loved one while in the hospital. It is always a good idea to have someone with you or your loved one when meeting with doctors or other healthcare professionals. This person can ask additional questions and help you or your loved one remember what was discussed with medical personnel. It is always good to take notes during these meetings.

Establish a Power of Attorney (POA)

Another important step is to have a Power of Attorney (POA) in place prior to being hospitalized. A POA allows you or your loved one to give another person the power to make decisions in case you or your loved one is unable to do so. The person appointed as POA should be a person that understands your or your loved one’s wishes and is trustworthy. An attorney can help execute a valid POA.

Consider an Advance Medical Directive

You or your loved one should consider executing an Advanced Medical Directive. People often refer to this document as a living will. An attorney can help do this as well. An Advanced Medical Directive will govern what medical treatments are wanted or not wanted in case you or your loved one are unable to make those decisions. For example, an Advanced Medical Directive will let healthcare providers know of your or your loved one’s wishes concerning being kept alive with article measures such as ventilators or feeding tubes. It will also determine whether you or your loved one wish to be resuscitated.

Your lawyer can help you or your loved one prepare for an admission to the hospital. He or she can prepare the appropriate legal documents and can assist looking into the healthcare provider that will be rendering your or your loved one’s care. If you have questions about preparing for surgery or need assistance with legal documents such as a Power of Attorney or Advance Medical Directive, our experienced attorneys at Gentry Locke are here to help. We can guide you through the process to ensure that you and your loved ones are protected and informed.

EEOC Opens Portal for EEO-1 Filing

Tuesday, May 27th, 2025

On May 20, 2025, the Equal Employment Opportunity Commission (“EEOC”) opened the portal for the submission of the 2024 EEO-1 Component No. 1 Report. All private sector employers with 100 or more employees are required to file their annual workforce demographic report by no later than 11:00pm EDST on June 24, 2025.[1]

The EEOC has a dedicated landing page for this portal, and has provided an updated 2024 EEO-1 Component Instruction Booklet and a host of Fact Sheets, FAQs and other guidance documents to assist with the filing which can be accessed here.

Since 1966, larger employers have been required to submit EEO-1 reports which contain sensitive demographic data (sex and race or ethnicity) on their workforce using 10 job categories set by the EEOC. The report must include the required data on all full-time and part-time employees employed by the company during any part of the “snapshot period” – that is the pay period falling within the 4^th Quarter of 2024 (October 1, 2024 – December 31, 2024) selected by the employer. This means all employees who worked for the company even one day during the snapshot period must be accounted for in the EEO-1 report, as well as those who employment terminated after the snapshot period.

The EEOC uses the information submitted to investigate charges of employment discrimination against employers and to publish periodic reports that use aggregate numbers obtained from the EEO-1’s workforce demographics. Otherwise, EEO-1 reports are confidential and may not be made public by the EEOC unless it files a Title VII claim involving such information.[2] If an employer fails to timely file the 2024 report, the employer will be “out of compliance” with their mandatory filing obligations. No late submissions will be accepted, and the EEOC may file suit to obtain an order requiring the providing of the data.

The same day the portal for 2024 data was opened EEOC’s Acting Chair Andrea Lucas issued a message cautioning employers not to use of the collected and reported demographic data to “facilitate unlawful discrimination” based on race, sex, or other characteristics protected by Title VII. She noted in that in her view “there is no ‘diversity’ exception to Title VII requirements,” and she reminded employers of President Trump decision to “deprioritize disparate impact enforcement.” In closing she made a final cautionary observation to employer by saying “you must not use the information collected and reported in … the EEO-1 report to justify treating employees differently based on their race, sex or other protected characteristic.”  [See full message here.]

KEY POINTS

EEO-1 reports can only be filed electronically through the EEOC’s web-based data collection application referred to as the On-Line Filing System (“OFS”). Reports submitted in paper submission or electronically outside the OFS system will not be accepted.

Some companies may be required to file more than one report based on structure and size. Companies are only required to report on establishments located in the United States, not in foreign countries.

A foreign-owned company that has more than 100 employees working within the US must file one or more reports depending on the establishment structure.

Companies must include remote workers working in the US in the EEO-1, and these employees are to be included in report for the establishment to which that employee reports, or the location where their manager or supervisor is based. The employee’s home address is never to be used.

Employers do not need to use the same workforce snapshot period in this 2024 report that it used when submitting reports in prior years.

EEO-1 reports require employers to submit the demographic data utilizing 10 job categories established by the EEOC. The EEOC has issued a Fact Sheet that helps explain each category to help assist employers to select the category which best reflects the job function performed by its employees. Here is a link to this fact sheet.

The person filing the EEO-1 report must be an employee of the company submitting the report and must have their own user account associated with their email. This person will be the “Certifying Official” who must certify under penalty of law that “the information, including the workforce demographic data, provided is correct and true to the best of my knowledge and was prepared in conformity with the directions set forth in the form and accompanying instructions.”

If you have any questions regarding your company’s obligations to make this type of report and proper means to do so, please do not hesitate to contact any member of Gentry Locke’s Employment Team.

[1] In addition, the EEOC’s 2024 Manual issued on May 20, 2025, indicates that federal government contractors with 50 or more employees and $50,000 or more in contracts continue to be obligated to file an EEO-1 report even though the Ex. Order 11246, which was the legal basis for this filing, was rescinded by President Trump on January 21, 2025.
[2] Additionally, the EEOC may share an EEO-1 report with the OFCCP, federal law enforcement agencies and state agencies under agreements that require protection of confidentiality.

Photo from bangoland/Shutterstock

Should I Hire a Personal Injury Attorney?

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

Speaking for the Dead: Who Can Pursue a Wrongful Death Lawsuit in Virginia

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

Biden-Era 2024 Independent Contractor Rule Shelved

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

What’s My Car Worth? Negotiating Total Loss Insurance Claims in Virginia

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).

Tariffs and Legal Remedies: Excusing Contractual Performance in Virginia

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:

1. 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.
2. 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]
3. 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]
4. 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:

1. Breach-of-Contract Claims: Customers can sue for damages resulting from unauthorized price increases.
2. 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.
3. 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

Post Governor Actions Legislative Update

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.

2. 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.