Monday, September 30th, 2024
Article originally published by Valley Business Front in Issue 193, October 2024: Valley Business FRONT, Issue 193, October 2024.
In the 35 years that I have represented Virginia businesses and executives in workplace matters and litigation, I have lost count as to the number of times I have heard someone say words to the effect that non-compete agreements are “unlawful” in Virginia. (Spoiler alert: they can be lawful.) This article provides answers, and an update.
As a General Statement, Non-Compete Agreements may be Valid in Virginia if Narrowly Tailored to Prevent Direct Competition.
It is true that restraints against competition are not favored in Virginia. They may be enforceable, however, when the agreement is “narrowly drawn to protect the employer’s legitimate business interest, is not unduly burdensome on the employee’s ability to earn a living, and is not against public policy.” Omniplex World Servs. Corp. v. US Investigations Servs., 270 Va. 246, 249 (2005). In evaluating these factors, courts consider the function, geographic scope, and duration of the restriction.
The function element is assessed “by determining whether the prohibited activity is of the same type as that actually engaged in by the former employer.” Home Paramount v. Schaffer, 282 Va. 412, 416 (2011). In other words, where the restriction only precludes the employee from doing competing work (as opposed to doing any work for a competitor), it is generally enforceable. Enforceable restrictions prohibit an employee from engaging in activities that actually or potentially compete with the employee’s former employer.
Courts evaluate these cases on their own merits, equities, and context. But the above concepts provide the framework for the types of non-compete agreements that may be enforceable in Virginia.
But Wait—There is a Virginia Law that Invalidates Non-Compete Agreements with So-Called “Low-Wage Employees.”
I blame Jimmy John’s. In October 2014, the national media reported that Jimmy John’s required all its employees to sign non-compete agreements. “It’s one thing for a high paid exec to be prohibited from working at a competitor. But Jimmy John’s actually imposes non-compete clauses on its low-wage workers.” Jimmy John’s Under Fire for Worker Contracts, CNN Money (October 22, 2014). As the public policy evolved, in October 2016, the Obama Administration issued a “call to action” urging state policy makers to enact reforms to reduce the prevalence of non-compete agreements, especially those imposed upon so called “low-wage workers.” In 2020, Virginia responded. Virginia enacted a law that prohibits employers from entering into, enforcing, or threatening to enforce, a covenant not to compete with a “low-wage employee.” (The law does not apply to agreements in effect prior to July 1, 2020.) A covenant not to compete is defined to include a restriction that would prohibit an employee from providing services or products to a customer post-employment, unless the employee initiates contact with or solicits the customer. There are some limited exceptions, most notably for employees who are “predominately” paid by commission.
“Low-wage employee” is a misnomer. The General Assembly adopted a moving target definition that ties the “low wage” threshold to the “average weekly wage of the Commonwealth.” The practical effect is that a new average weekly wage is calculated each year when, inevitably, the average weekly wage goes up. On January 16, 2024, the Virginia Department of Labor & Industry (“DOLI”) announced that the average weekly wage for the next 12 months had risen to $73,320 annually, or $1,410 per week. (I expect that many persons who earn a salary of $73,000 would be surprised to learn that they are considered “low wage” employees in the Commonwealth.)
The Federal Government is Attempting to Invalidate Non-Compete Agreements.
As you probably heard, on April 23, 2024, the Federal Trade Commission (“FTC”) issued a Final Rule (the “Rule”) that was set to take effect on September 4, 2024. The Rule would have included a “comprehensive ban on non-competes with all workers.” The Rule aimed to prohibit employers from using or enforcing non-compete agreements with employees or independent contractors when their employment ends, in order to address what the FTC deemed “unfair methods of restricting competition.” The Rule was met with substantial criticism from business advocates as being a drastic, and unwarranted, expansion of power by a Federal agency.
On August 20, 2024, a U.S. District Court Judge held that the Rule was “promulgated . . . in excess of [the FTC’s] statutory authority.” Ryan LLC v. Federal Trade Commission, 3:24-cv-00986-E (N.D. Tex. 2024). As a result, the Court held that, the Rule would be “set aside.” Although the decision will likely be appealed, it seems unlikely the Rule will ever take effect. [Full disclosure—when the FTC first announced the proposed Rule in 2023, I was confident that the Rule would never take effect because I was certain the FTC had exceeded its authority. I was surprised that we had to wait until the 11th hour to receive the good news!]
Be aware that in 2023, the General Counsel (“GC”) to the National Labor Relations Board (“NLRB”) opined that an employer who proposes, maintains, or seeks to enforce a post-employment non-compete agreement, even in a separation agreement, has violated Section 8(a)(1) of the National Labor Relations Act (“Act”), except in very limited circumstances. In the GC’s view, most non-compete provisions are overbroad and chill non-supervisory employees in the exercise of their Section 7 rights. This position, if applied and upheld, will be available to any non-supervisory employee, even those without a union, because Section 7 rights apply to non-supervisory employees. Similar to the FTC, it is my judgment that the NLRB lacks the authority to impose this rule upon employers. To my knowledge, however, the courts have yet to rule on the NLRB’s efforts to regulate non-compete agreements.
Employers Seeking to Protect Their Interests Against Unfair Competition Have Other Options.
This article primarily addresses non-compete agreements. It is important to add that employers have other options to protect themselves against unfair competition. As one example, companies are increasingly including separate “non-solicitation” covenants in their agreements with key employees that apply in the post-employment context. Such covenants are well suited to executives, sales personnel, and key employees who are customer-facing. The concept is that departing employees can compete as long as they stay away from certain customers for a period of time. Here’s an example of the concept:
During your employment, you gained access to our trade secrets and other confidential information. If your employment ends, you agree not to solicit, directly or indirectly, or perform work, for any known customer or known active prospect for a period of 18 months.
These “non-solicitation” covenants must also be narrowly tailored. For example, assume a company has thousands of customers, and dozens of distinct product lines in various locations throughout the world. Assume also that a particular sales employee focuses upon a single product line in a limited region with a handful of customers. It would likely be invalid if the non-solicitation covenant could be interpreted to include thousands of customers unknown to this sales employee in other product lines or locations. As another tool, it is well-settled that a company can require that its employees not use, disclose, or otherwise misappropriate the company’s trade secrets, or other information that is confidential or proprietary. Here too, however, companies should not overreach. Not all internal information can be kept confidential. For example, it is a violation of Federal and Virginia law to prevent an employee from discussing or disclosing his or her own compensation.
Final Thoughts and Recommendations
There is much more to say about an employer’s efforts to minimize its risks if a key employee were to leave and seek to compete against their former employer. There is no one-size-fits all solution. I highly recommend that an employer be proactive and strategic well before an employee departs. Business owners should invest the time to evaluate the steps they can and should take. (In 2006, my law partner Greg Haley wrote an article in which he urged employers to cast their nets with a focus upon catching the “whales, not the minnows.” This remains excellent advice.)
Monday, September 30th, 2024
Accidents caused by tractor trailer drivers and others involved in the transportation of goods on interstate highways is a growing concern. Despite the advancement of technology, such as Collision Avoidance Systems, onboard inward and forward-facing video cameras, and electronic driver records of duty status, crashes continue to occur at an alarming rate.
Impact of a Tractor Trailer Collision
The National Highway Traffic Safety Administration (NHTSA) has reported a growing number of deadly truck crashes. In fact, in 2021, there was a 13% increase in the number of deaths caused by tractor trailer crashes. In 2021 alone, there were over 5,600 deaths caused by collisions with tractor trailers in the United States.
Survivors of truck crashes are often badly injured, and many suffer from permanent injuries such as paraplegia, quadriplegia, brain injury, loss of limb, and debilitating back and neck problems.
When a tractor trailer is involved in a motor vehicle accident, the injured individuals or their estate must reach out to an experienced personal injury attorney in Virginia who has extensive knowledge about not only the devastating injuries but also the highly technical statutes, regulations, and standards that apply to truck drivers, motor carriers, and others involved in the transportation of goods on interstate highways. It is imperative that injured individuals and estate representatives do their research to find a personal injury law firm that has the size and strength necessary to investigate, hire experts, and litigate in both state and federal courts.
A recent horrific crash is illustrative of the threat to motor vehicle occupants on Virginia highways when a driver fails to follow safety rules and regulations designed to prevent the exact scenario that ultimately resulted in devastating injuries and death.
On December 16, 2022, a tour bus was traveling east on Interstate 64 near Williamsburg, Virginia. It was past 1:30 a.m. and presumably the innocent occupants of the bus were resting comfortably on their way to their tourist destination. The driver of the tour bus was experiencing a mechanical problem with the bus, which prevented him from going more than 20 mph – 25 mph on the dark highway. The posted speed limit was 65 mph. The bus’s headlights and taillights were functioning properly at the time of the crash.
Unbeknownst to the tourists on the bus, a tractor trailer was approaching them from the rear – travelling between 65 mph and 70 mph. The driver was using his cruise control. Without warning, the tractor trailer collided with the back of the bus, spinning it sideways and knocking it through a guardrail and into the oncoming lanes of travel.
According to the August 12, 2024 NTSB Highway Investigation Report HIR-24-05: “As a result of the crash, three bus occupants died, 9 sustained serious injuries, and 11 sustained minor injuries.”
The NTSB’s investigation revealed: “ . . . The truck driver’s lack of response to the slow-moving vehicle . . . was due to fatigue from excess driving time and lack of sleep . . . The truck’s motor carrier . . . created fictitious driver accounts for its vehicles’ electronic logging device systems that enabled drivers to be operated beyond federal regulations, creating an opportunity for fatigued driving.”
As a result of the crash, the NTSB issued six new safety recommendations and reiterated prior safety recommendations from other crash investigations. Unfortunately, such recommendations are not mandatory and often go unaddressed by state and federal agencies and some motor carriers.
Mitigating Risk
We have all contributed to the high cost of interstate highways and refraining from traveling on them is simply impractical given the growing congestion on secondary roads. However, there are a few things each of us can do to reduce the likelihood of becoming victims of another driver’s negligence.
First, be an alert and conscientious driver, or passenger, at all times. Keep your head on a swivel and look around for potential signs of danger, such as tractor trailers headed in your direction without a clear indication that they are turning away from you or appropriately slowing down. Leave yourself an escape route at all times. Do not get so close to the vehicle in front of you that you cannot escape to another lane or off the highway if necessary. Avoid driving when other drivers are the most fatigued. My father-in-law used to caution me and my wife with the following statement: “Nothing good happens after midnight.” This applies to motor vehicle accidents just like it does other dangerous situations. People in general are programmed to sleep during the night and therefore late-night driving is much more dangerous.
Keep your vehicle in excellent mechanical working order or do not use the interstates. Use your lights, blinkers, horn, flares, triangles, and anything else that will bring attention to your vehicle when you are in any way vulnerable. Preach these things to your loved ones and friends. True – accidents are going to happen.
Financial Impact and Protection
Accidents caused by negligent individuals needlessly burden those who are injured, who must often bear the financial burden of the crash. Trucking companies are only required to carry $750,000 in insurance coverage. Protect yourself and your family by getting your own underinsured or uninsured motor coverage which will be available to you and your passengers should you sustain devastating injuries from the negligence of someone else. Such insurance is relatively inexpensive and easy to purchase. Moreover, everyone should make sure to have an umbrella policy with at least $1 million that includes UM and UIM coverage. If (when) you or a loved one has an accident, you will be thankful you followed this important advice.
Your Personal Injury Lawyers in Virginia
Injured in a crash or have questions on how to keep yourself and your family safe? Contact us today to speak with one of our personal injury attorneys in Roanoke, Lynchburg, Richmond, or Norfolk.
Comments Off on Tractor Trailer Accidents on I-81, I-95 and Other Interstates Involving Cars, Buses and Motorcycles
Category | Tags:
Social Networks : Technorati, Stumble it!, Digg, de.licio.us, Yahoo, reddit, Blogmarks, Google, Magnolia.
Tuesday, September 17th, 2024
You’ve been injured in a Virginia car or truck crash. Let’s say the at-fault driver has the minimum auto insurance coverage under Virginia law, which is currently $30,000 and is set to increase to $50,000 on January 1, 2025.[1] But you have over $110,000 in medical bills. What do you do? Does Virginia law allow you to sue your own car insurance company?
On these facts alone, you cannot sue your own car insurance company. However, under Virginia law, there are two ways you can recover compensation from your own car insurance company: (1) through your auto policy’s uninsured (UM) or underinsured motorist (UIM) coverage, or (2) when your insurance company fails to act in good faith when handling your UM or UIM claim.
Although you cannot generally sue your own car insurance company (unless they fail to act in good faith as discussed below), your insurance company is on the hook for paying claims where the at-fault driver lacks insurance (this is when UM coverage kicks in) or where the at-fault driver does not have enough insurance (this is when UIM coverage kicks in).
Technically, Virginia law requires every motorist to have auto insurance.[2] So theoretically, you should not have to use your uninsured motorist coverage if the at-fault driver’s vehicle is registered in Virginia. However, according to the Insurance Research Counsel, 1 in 8 drivers in the United States did not have car insurance as of 2019.[3] Therefore, the reality is that many drivers do not have insurance, which is why uninsured motorist coverage remains important.
As Virginia car and truck accident attorneys, we commonly see the situation described in the first paragraph of this article—where the at-fault driver has minimum insurance coverage and the injured person’s damages clearly exceed at-fault driver’s liability limits. In this situation, you can make a claim with your own insurance company under the underinsured motorist portion of your policy. When pursuing an underinsured motorist claim, any lawsuit is still against the at-fault driver, but the judgment can be enforced against the underinsured motorist carrier.[4]
If you have a Virginia car insurance policy, you have underinsured motorist coverage in at least the amount of the minimum limits.[5] You may have more underinsured motorist coverage. You can check the amount of your underinsured motorist coverage by requesting a copy of the “declarations page” of your policy from your insurance agent. Generally, you can download a copy of the declaration page from your insurance company’s website or mobile app.
We frequently have to inform catastrophically injured clients that the total insurance coverage available is less than their medical bills. For this reason, we strongly encourage everyone to purchase as much underinsured motorist coverage as they can comfortably afford. Many carriers offer umbrella policies with UM/UIM coverage, which provides significant protection if you or a household relative are involved in a crash caused by a driver who lacks insurance or does not have enough insurance.
There are certain circumstances where you can sue your own car insurance company in Virginia. Let’s say you are T-boned by a driver who ran a red light, and you have $110,000 in hospital bills. The at-fault driver is ticketed for running the red light and prepays his ticket. You hire a personal injury attorney, and your attorney determines that the at-fault driver has $50,000 in liability coverage, and you have $50,000 in UIM coverage. You decide to settle with the at-fault driver for the $50,000 in liability coverage because your lawyer’s investigation reveals that the at-fault driver does not have any significant personal assets.
Your personal injury attorneys then make a settlement demand to your insurance company for the additional $50,000 in UIM coverage. The settlement demand includes the following: documentation of the policy limits settlement with the liability carrier, the crash report, documentation of the driver’s prepayment of the ticket, your medical records, your hospital bills, and photographs of your injuries and the damage to the vehicles involved. The settlement demand gives your insurance company 45 days to respond. Two months go by, and then the UIM carrier sends a letter to your attorney that denies your claim without explanation. Your attorney later takes your case to trial and a jury awards you $215,000.
Under the above circumstances, you likely have a bad faith claim against your car insurance company, meaning you could bring a lawsuit against your own car insurance company. Virginia Code § 8.01-66.1(D)-(F) outlines Virginia’s “bad faith” law when dealing with a UM/UIM carrier. Virginia’s bad faith law applies to any claims for personal injury or wrongful death arising out of a motor vehicle accident that occurs on or after July 1, 2024.
Specifically, Virginia Code § 8.01-66.1(D) requires your car insurance company to act in good faith when handling your UIM claim. In the above example, your car insurance company likely failed to act in good faith by denying the claim without explanation, although your attorney gave them 45 days to respond and provided them with sufficient information and documentation to determine that the other driver was at fault and your damages clearly exceeded the $100,000 in total insurance coverage.
Virginia’s bad faith law allows you to recover the following damages:
1: “[T]he amount due and owing by the insurance company to its insured on the judgment against the tortfeasor;”
2: “[A]n amount up to double the amount of the judgment obtained against the underinsured motorist . . . not to exceed $500,000;”
3: “[R]easonable attorney fees for bringing [the bad faith] claim;”
4: “[A]ll costs and expenses incurred by the insured to secure a judgment against the tortfeasor;” and
5: “[I]nterest from 30 days after the date of such denial or the failure or the date the reasonable settlement demand was submitted in writing.”[6]
Therefore, assuming you can prove that your insurance company failed to act in good faith when handling the claim through either a posttrial motion or a separate lawsuit, your insurance carrier could be responsible for the following damages:
1: $50,000, which represents the UIM coverage that your insurance company owes because your damages exceeded the at-fault motorist’s $50,000 in insurance coverage;
2: $430,000, which represents damages “double the amount of the judgment obtained against the underinsured motorist . . . not to exceed $500,000;”
3: Your attorney’s fees for bringing the bad faith claim;
4: Your costs and expenses incurred to secure the judgment; and
5: Interest from 30 days after the denial, failure to act in good faith, or the submission of the demand.
Due to your insurance company’s failure to act in good faith and failure to pay your valid claim, they have turned your $100,000 case ($50,000 in liability coverage plus $50,000 in UIM coverage) into a case that is likely worth over half a million dollars. For this reason, it is imperative that your Virginia personal injury attorneys are intimately familiar with Virginia’s bad faith law. Your attorney must comply with technical requirements or he or she may give up your ability to sue your insurance company. Specifically, the bad faith law requires your attorney to give the insurance company 45 days’ notice when making a demand and provide them with “information and documentation sufficient for the insurer to assess the liability and damages.”[7]
Our Virginia car and truck accident attorneys are familiar with Virginia’s bad faith law, which can be a powerful tool when negotiating your UM or UIM claim. If you need legal assistance in pursuing an uninsured, underinsured, or bad faith claim, please do not hesitate to contact us.
[1] See Va. Code § 46.2-472.
[2] See Va. Code § 46.2-706.
[3] One in Eight Drivers Uninsured, Insurance Research Council (March 22, 2021), https://www.insurance-research.org/sites/default/files/downloads/UM%20NR%20032221.pdf.
[4] See Va. Code § 38.2-2206(M).
[5] See Va. Code § 38.2-2202(B).
[6] Va. Code § 8.01-66.1(D).
[7] See Va. Code § 8.01-66.1(E)-(F).
Tuesday, September 10th, 2024
Article co-written by Jared Tuck and Paralegal Kelly Hickey
You have been injured in a Virginia car or truck accident. You are probably in pain from your injuries and trying to manage your medical appointments. In addition to your injuries and treatment, you are likely facing increased financial pressure due to medical bills, lost wages, etc. You may be worried about the future. A friend or family member has told you that you should consult a Virginia car and truck accident attorney. So you call an attorney and set up an appointment to meet with him or her. But what’s next? What should you do after scheduling the appointment? What do you need to do to prepare for your initial meeting with a Virginia car and truck accident attorney?
Once your Virginia car and truck accident attorney takes over your case, he or she should do all of the heavy lifting for you and advise you of the legal process and the steps going forward, while you focus on recovering from your injuries and attending your appointments. However, it is critical that you provide your lawyer with any and all information that will help him or her prosecute your personal injury claims.
Here is an ideal list of what you should bring to your initial meeting with a personal injury lawyer (assuming you have access to this information):
1. Your driver’s license;
2. Your health insurance card(s);
-
- Medicare;
- Supplemental Medicare;
- Medicaid;
- Private Health Insurance (Anthem, Aetna, UnitedHealthcare, etc.); and/or
- Tricare;
3. A copy of your health insurance policy from your employer (usually the human resources department can get this for you);
4. Photos of the vehicles involved;
5. Photos of your injuries;
6. A list of all of your injuries;
7. Names and addresses of all of your medical providers (including hospitals, doctor’s offices, physical therapy providers, chiropractors, etc.) and pharmacies;
8. Any medical records and bills received from your medical providers;
9. Any collection notices received from your medical providers;
10. A copy of the “declarations page” of any and all auto insurance policies covering any and all vehicles that are primarily stored at your residence (your auto insurance agent can get this for you or sometimes it can be downloaded from your auto insurance company’s website or mobile app);
11. A copy of the Police Crash Report (accident report) or exchange of information form;
12. Contact information for anyone involved in the crash, the investigating police officer, and witnesses to the crash (names, addresses, and phone numbers);
13. Any diaries, notes, logs, etc., you have made regarding the facts surrounding your car or truck accident and your personal injuries;
14. Any correspondence with any insurance company regarding the accident;
15. Any text messages or other correspondence with others regarding the accident;
16. Any photos/videos you may have in your possession regarding the accident, your injuries, etc.;
17. If you have a dashcam in your vehicle, bring it with you to the meeting;
18. Any information concerning lost wages (employment records, pay stubs, W2s, tax returns, etc.);
19. Any statements you have made to the insurance company regarding the accident;
20. Written narrative of what you recall from the accident and how the effects are impacting you. (The sooner you write down what you remember, the fresher it will be.)
21. Any other documents you feel are related to the accident or the personal injuries you have suffered; and
22. A list of any questions you have for the personal injury attorneys in Virginia.
This is a long list. We do not expect you to provide all of the above information during the initial meeting. Car and truck accidents can be life-changing. Your injuries may prevent you from being able to prepare all of the above information before the initial meeting with your attorney. That’s ok. We are here to help guide you through the process, and we will help you obtain any and all documents and information necessary to successfully prosecute your case.
However, the more information you can provide to your attorney in the beginning, the faster your attorney and his or her team can get working for you. The legal process can be frustratingly slow and unpredictable. Some personal injury cases settle quickly. Other personal injury cases involve protracted litigation that can take years to reach resolution, especially if there is a trial or appeal.
Here at Gentry Locke, we have a team approach. In most cases, you will meet with personal injury lawyers in Virginia or two, a paralegal, and our investigator. Each person will play a critical role in your case. At the initial meeting, your personal injury attorney(s) will explain to you what you should expect from our firm to assist you with your personal injury case. He or she will answer any questions you may have regarding the process. The paralegal will take down all of the pertinent information relating to the crash, your injuries, your treatment, etc. This meeting usually lasts at least an hour, but it may take longer depending on the particular facts and circumstances of your case.
Please do not hesitate to contact one of our Virginia car or truck accident lawyers if you have any questions. We are here to help.
Wednesday, August 28th, 2024
Virginia’s interstates are hotspots for motor vehicle and tractor-trailer collisions. Far too often, these crashes result in catastrophic injury or wrongful death. Presumably, this can be blamed on the speed, congestion, and large number of commercial motor vehicles associated with interstates.
Many of our personal injury cases arise out of motor vehicle or tractor-trailer crashes on Virginia’s interstates. As shown below, there are many Interstates in Virginia: I-64, I-66, I-77, I-81, I-85, I-95, I-195, I-264, I-295, I-381, I-395, I-464, I-495, I-564, I-581, and I-664.
[1]
Interstate 81
The largest portion of our firm’s interstate cases come from Interstate 81. This could be because I-81 is the longest interstate located in Virginia, stretching a whopping 324.92 miles across the Commonwealth. [2] Interstate 81 passes by Bristol, Abingdon, Emory, Chilhowie, Marion, Rural Retreat, Wytheville, Pulaski, Dublin, Radford, Christiansburg/Blacksburg, Salem, Roanoke, Buchanan, Natural Bridge, Lexington, Staunton, Harrisonburg, New Market, Woodstock, Stephens City, and Winchester. “Within Virginia, I-81 connects 30 colleges and universities, 21 cities and towns, and 13 counties.” [3]
Interstate 81 is heavily trafficked by commercial motor vehicles and tractor-trailers because it is a major East Coast thoroughfare, spanning from Tennessee to New York for a total of 855.02 miles. [4] Interestingly, I-81 passes through six states, but approximately 38% of Interstate 81 is located in Virginia. [5] According to the Virginia Department of Transportation (VDOT), “[n]early 50% of the state’s value of goods are transported along the [I-81] corridor, which has the highest per capita truck volume in Virginia. [6] For example, approximately 20% of the vehicles passing by Wytheville on I-81 have trailers, while only approximately 6% of vehicles passing through Richmond on I-95 have trailers. [7]
Given I-81’s heavy tractor-trailer presence, the highway can be extremely dangerous. Legally, commercial motor vehicles may have a maximum gross vehicle weight of 80,000 pounds. [8] On the other hand, sedans, such as a Toyota Camry or Honda Accord, weigh approximately 3,300 pounds. [9] As you can imagine, commercial motor vehicles cause devastating damage and injuries when they impact a small vehicle. Below is a photograph showing the damage that resulted to one client’s vehicle when it was sandwiched between two tractor-trailers.
Interstate 64
Interstate 64 is an east-west highway, running from Missouri to Virginia and spanning six states. [10] The largest portion of I-64 is in Virginia, where the highway spans 297.62 miles. [11] I-64 passes by many Virginia towns and cities, including Covington, Clifton Forge, Lexington, Staunton, Waynesboro, Afton, Charlottesville, Gum Spring, Richmond, Williamsburg, Newport News, Hampton, Norfolk, Chesapeake, and Virginia Beach.
Between Hampton and Norfolk lies I-64’s Hampton Roads Bridge-Tunnel (HRBT), which is a 3.5-mile-long underwater tunnel. [12] The HRBT is traveled by nearly three million vehicles each month. [13] Presumably, due to the HRBT and tourism to the Norfolk/Virginia Beach area, the eastern portion of I-64 is often congested, making it prone to motor vehicle collisions.
Interstate 95
Interstate 95 is a north-south highway along the East Coast, stretching from Maine to Florida and running through 15 states and the District of Columbia. [14] I-95 is another dangerous Virginia highway, which spans 178.73 miles across Virginia and passes by Springfield, Woodbridge, Dale City, Dumfries, Stafford, Fredericksburg, Ruther Glen, Ashland, Richmond, Petersburg, Stony Creek, Emporia, and Skippers. [15]
I-95 in Stafford, Virginia is home to Virginia’s “worst” motor vehicle collision ever, which was a horrific 117-vehicle pileup that killed one person and injured 31 others. [16] I-95 is likely so dangerous because it is heavily trafficked. For example, according to VDOT’s 2022 traffic volume data, the stretch of I-95 passing through Springfield has an average daily traffic volume of 241,000 vehicles; the stretch passing through Woodbridge has an average daily traffic volume of 202,000 vehicles; and the stretch passing by Richmond has an average daily traffic volume of 151,000 vehicles. [17] With the amount of traffic on I-95, it is unsurprising that I-95 is a hotspot for motor vehicle collisions.
Interstate 77
Interstate 77 is a north-south highway running from Ohio to South Carolina and spanning five states. [18] I-77 passes by several towns in Southwest Virginia, including Rocky Gap, Hicksville, Bastian, Bland, Wytheville, Fort Chiswell, Hillsville, and Fancy Gap. Although only 69.4 miles of I-77 is located in Virginia, [19] the roadway is a hotspot for motor vehicle and tractor-trailer collisions.
I-77 is vulnerable to motor vehicle collisions because of its curves, slope, and fog, especially on the southern portion of the roadway near Virginia’s border with North Carolina. On Easter Sunday in 2013, there was a 95-car pileup in the Fancy Gap Mountain area of I-77, which is a location known for dense fog. [20] Three people died and more than 20 were hospitalized from the crash. [21] The crash is known as one of the worst in Virginia’s history.
Interstate 77, like Interstate 81, is heavily frequented by commercial motor vehicles and tractor-trailers. For example, approximately 30% of the vehicles passing by Fancy Gap on I-77 have trailers, and approximately 23% of the vehicles passing by Bland on I-77 have trailers. [22]
Virginia Interstate Crash Attorneys
Injured in an interstate crash? Our Virginia motor vehicle collision attorneys have recovered millions of dollars in settlements and verdicts for clients injured on Virginia’s interstates. Contact us today for a free consultation. We pride ourselves on responsiveness. We have a “Go Team” of personal injury lawyers, paralegals, an investigator, and in-house nurses, who are all ready to act immediately to work for you to maximize your potential recovery.
[1] https://en.wikipedia.org/wiki/List_of_Interstate_Highways_in_Virginia#/media/File:Map_of_Interstate_Highways_in_Virginia.svg.
[2] FHWA Route Log and Finder List, U.S. Dep’t Transp. (Jan. 27, 2022), https://www.fhwa.dot.gov/planning/national_highway_system/interstate_highway_system/routefinder/table01.cfm.
[3] What is the I-81 Corridor Improvement Program?, VDOT (2024), https://improve81.vdot.virginia.gov/.
[4] See FHWA Route Log and Finder List, supra note 2.
[5] See id.
[6] What is the I-81 Corridor Improvement Program?, supra note 3.
[7] Virginia Traffic Volume, VDOT (2022), https://vdot.maps.arcgis.com/apps/webappviewer/index.html?id=35e4c06de0f84a9c9f3fe18e67cd2c92.
[8] 28 CFR § 658.17.
[9] See 2024 Camry Full Specs, Toyota (2024), https://www.toyota.com/camry/2024/features/mpg_other_price/2532/2559/2546; 2024 Accord Sedan Features & Specs, Honda (2024), https://automobiles.honda.com/accord-sedan/specs-features-trim-comparison.
[10] See FHWA Route Log and Finder List, supra note 2.
[11] See id.
[12] See Hampton Roads Bridges and Tunnels, VDOT (2024), https://www.vdot.virginia.gov/about/our-system/bridges-tunnels/hr-bridges-tunnels/.
[13] Id.
[14] See FHWA Route Log and Finder List, supra note 2.
[15] See id.
[16] Melissa A. Winn, Handling the Worst Crash Ever in Virginia, U.S. Dep’t Transp. (May/June 2001), https://highways.dot.gov/public-roads/mayjune-2001/handling-worst-crash-ever-virginia.
[17] See Virginia Traffic Volume, supra note 7.
[18] See FHWA Route Log and Finder List, supra note 2.
[19] See id.
[20] Steven Nelson, 3 Dead After 95-Car Pileup in Virginia (April 1, 2013), https://www.usnews.com/news/newsgram/articles/2013/04/01/three-dead-after-95-car-pileup-in-virginia.
[21] Id.
[22] See Virginia Traffic Volume, supra note 7.
Thursday, August 22nd, 2024
On Tuesday, August 20, 2024, U.S. District Court Judge Ada E. Brown ruled that the FTC’s Final Rule banning non-compete agreements (the “Rule”), which was set to take effect on September 4, 2024, was “promulgated . . . in excess of [the FTC’s] statutory authority.” Ryan LLC, v. Federal Trade Commission, 3:24-cv-00986-E (N.D. Tex. 2024). As a result, the Court held that, consistent with Administrative Procedure Act (“APA”) § 706(2)(A)-(C), the Rule would be “set aside.” Critically, the Court concluded, based on “a couple of recent cases,” that “setting aside agency action under § 706 has ‘nationwide effect,’ is ‘not party restricted,’ and ‘affects persons in all judicial districts equally.’” The full text of the opinion is here. The Court’s ruling comes on the Plaintiff’s Motion for Summary Judgment. Previously, the Court declined to grant a nationwide injunction. While there remains some uncertainty, with the Court’s August 20 ruling, businesses in Virginia should be less concerned about the Rule being enforced in Virginia—at least until an appellate court, or a court in the 4th Circuit, says otherwise.
Tuesday, August 20th, 2024
Article co-written by Jared Tuck and Summer Associate Peyton Edwards
I. The Dangers of Motorcycle Accidents
Motorcycle crashes rarely have a mild impact. This is especially true in motorcycle collisions that involve tractor-trailers. The average motorcycle weighs between 300 and 500 pounds. Meanwhile, federal regulations generally allow a tractor-trailer to weigh up to 80,000 pounds. That is 160 times heavier than a motorcycle. While motorcycle accidents only make up 1.7 percent of all crashes in Virginia, they are responsible for 13.8 percent of all fatalities. Crashes involving passenger vehicles make up 96.8 percent of all crashes, yet only account for 65.9 percent of fatalities. Unfortunately, if a person is involved in a motorcycle crash, then there is a much higher probability of the crash leading to a wrongful death case. Even in motorcycle crashes that do not result in a fatality, approximately 1 in 3 motorcyclists involved in a crash are seriously injured. For these reasons, motorcycle crashes should not be taken lightly.
Further, the routes you would typically think to be the most treacherous are not where a majority of motorcycle accidents happen. Most often, people think of interstates as being the most dangerous place for motorcyclists to drive. While the large number of tractor-trailers on the interstate can lead to more deadly outcomes, only 11.2% of Virginia motorcycle accidents happen on interstates. Many of those motorcycle collisions occur on Interstate 95 near Alexandria.
II. Motorcycle Safety
Given the serious nature of these types of crashes, safety should be the number one priority of those who are riding motorcycles.
There are several important Virginia motorcycle safety rules that all motorcyclists should be aware of:
- In Virginia, both drivers and passengers riding motorcycles are required to wear a protective helmet as mandated by Virginia Code § 46.2-910;
- Section 46.2-910 also requires motorcyclists to: (1) wear a face shield, (2) wear safety glasses or goggles, or (3) have their motorcycle equipped with safety glass or a windshield during operation;
- Virginia Code § 46.2-909 prohibits motorcyclists from having a passenger, unless the motorcycle is designed to carry the passenger; and
- Section 46.2-909 mandates that individuals riding on motorcycles shall be seated and may only stand on both foot pegs if it is necessary for safety.
III. Determining Fault
Defense attorneys and insurance companies often try to blame motorcyclists for their injuries resulting from a crash. They may argue that: (1) the motorcyclist’s clothing made it difficult to see the motorcyclist, (2) the motorcyclist was speeding, (3) the motorcyclist was not properly licensed, (4) the motorcyclist was not wearing the appropriate protective gear, (5) the motorcyclist was hovering in the blind spot, etc. The gist of these arguments is that the motorcyclist was contributorily negligent. Contributory negligence is a term used to describe the situation where a plaintiff fails to exercise reasonable care for his or her own safety. In Virginia, if the defendant can prove that the plaintiff was contributorily negligent, then the plaintiff cannot recover.
However, just because you did not have a license or were wearing dark colored gear, does not mean that you do not have a case. There is an important requirement for contributory negligence to apply—causation. The alleged negligence must actually cause the crash and/or your injuries. For example, if you were driving without a license, but you were driving the motorcycle in a safe manner, just as a properly licensed driver would, then the fact that you did not have a motorcycle license did not actually cause the crash. You could still possibly recover.
IV. Time Limits on Bringing a Claim
It is important to be vigilant after a motorcycle accident. The statute of limitations in Virginia generally provides that a plaintiff cannot bring a claim after two years from the date of the accident. There are certain circumstances in which the statute of limitations tolls. This means that the two-year clock temporarily stops running. One of the times the statute tolls is when the plaintiff is considered an “infant,” which under Virginia law, is a person who is less than 18 years old. If the plaintiff is an infant, then the statute generally does not begin to run until they have reached age 18. Therefore, an infant involved in a motorcycle crash generally can sue for their injuries up until their 20th birthday. However, after the two-year period has run, the claim can no longer be brought. This means it is imperative for a person injured in a motorcycle accident to retain counsel as quickly as possible. The earlier counsel is retained, the more we can help to preserve important evidence, investigate the accident, and provide legal advice as to the best course of action going forward.
Injured in a motorcycle crash? Our Virginia motorcycle accident attorneys have recovered millions of dollars in settlements and verdicts for clients injured in motorcycle crashes. Contact us today for a free consultation. We pride ourselves on responsiveness. We have a “Go Team” of personal injury lawyers, paralegals, an investigator, and in-house nurses, who are all ready to act immediately to work for you to maximize your potential recovery.
Wednesday, August 14th, 2024
Article co-written by Jared Tuck and Summer Associate Emily Brooks
Whether spending time at Smith Mountain Lake, Claytor Lake, South Holston Lake, Lake Anna, Buggs Island Lake, Lake Gaston, or another one of Virginia’s waterways, summer is the perfect time to enjoy a day on the lake with family and friends. While enjoying time on the water can be fun and relaxing, the increased number of boats on the water during the summer means a greater chance that you or a family member could be injured in a boating accident. In 2023, 3,844 boating incidents were reported, with 564 recorded fatalities.[1] This number does not even begin to compare to the 2,126 reported non-fatal injuries that result from these accidents.[2] As these statistics show, boating accidents are extremely dangerous. It is important you take safety precautions and be prepared if an accident does occur.
Given the tragic and serious nature of boating crashes, safety should be the number one priority when operating a boating vessel. Most boating accidents involve collisions during broad daylight with other vessels or objects in the water. Unlike a motor vehicle or motorcycle accident where individuals are presumably protected by safety equipment such as helmets and seatbelts, there is no safety equipment in place on boating vessels that protect passengers from the immediate impact of a collision.
While alcohol does play a significant role in many boating crashes, the top contributing factors of an accident are operator inattention, improper lookout, and operator inexperience. It’s important to navigate waters at a safe speed, be aware of your surroundings at all times, and keep a lookout for other boats, jet skis, canoes, and partially-submerged objects. Additionally, it is imperative that your boat is stocked with enough lifejackets for every person on board. Where the cause of death was known for the 564 reported fatalities in 2023, 75% of boating accident victims drowned. 87% of these individuals were not wearing a life jacket.[3] While boating can be an extremely fun and family-friendly activity, all individuals involved should be aware of the heightened dangers that come with operating and being on a boat. The more precautions you can take ahead of time will decrease the chance that you will end up in an accident.
To avoid a catastrophic accident and potentially decrease the likelihood of injury, you should ensure everyone on board your boating vessel is aware of and complying with the basic boating laws. These are the basic Virginia boating safety rules you should know about.
(1) Ensure the person driving the boat has met the requirements for boating system education and possesses a valid boating license.[4] This is often achieved by taking a proper boating course and passing a comprehensive boating knowledge test.
(2) Refrain from operating a boat while under the influence of alcohol or other intoxicating substances (Virginia Code § 29.1-738(B)). If an intoxicated boat operator is responsible for causing a crash and the evidence shows that the operator’s conduct was so willful and wanton as to show a conscious disregard for the rights of others, then such circumstances may warrant a finding of punitive damages to punish and deter the boat operator’s egregious conduct.
(3) Make sure the vessel’s lights are properly working between sunset and sunrise. Without proper lights, other boating vessels will have difficulty seeing your boat. Having properly functioning navigation lights helps ensure that your vessel remains sufficiently visible at all times.
(4) In the event an accident occurs, stop and render assistance if you can without putting yourself in harm’s way. Give your information to the other parties involved and report the incident promptly. Virginia law requires the operator of vessels involved in a collision to stop and render assistance to a level possible without serious danger to the operator’s own vessel and passengers.[5]
(5) When towing another person on water skis, a surfboard, or a similar tubing device, ensure you have an individual in addition to the boat operator on board to observe the individuals being towed by the boat.[6]
Injured in a boating crash? Our Virginia boating accident attorneys have recovered millions of dollars for clients injured in boating crashes. Contact us today for a free consultation. Our “Go Team” of personal injury lawyers, paralegals, investigators, and in-house nurses are responsive and ready to act immediately for you to maximize your potential recovery.
[1] Department of Homeland Security, Coast Guard releases 2023 recreational boating statistics, United States Coast Guard News (May 28, 2024) https://www.news.uscg.mil/Press-Releases/Article/3788966/coast-guard-releases-2023-recreational-boating-statistics/.
[2] Id.
[3] 2023 Executive Summary, United States Coast Guard (May 2024) https://www.uscgboating.org/library/accident-statistics/Recreational-Boating-Statistics-2023.pdf.
[4] Va. Code § 29.1-735.29(A).
[5] Va. Code § 29.1-739; Va. Code § 29.1-740.
[6] Va. Code § 29.1-742.
Tuesday, August 6th, 2024
Article co-written by Ryan Starks, David Paxton, and Summer Associate Haley Leipzig
On April 23, 2024, the Federal Trade Commission (“FTC”) issued a Final Rule (the “Rule”) that will enact a “comprehensive ban on non-competes with all workers” as of September 4, 2024.[1] The Rule aims to prohibit employers from using or enforcing non-compete agreements with employees or independent contractors when their employment ends, in order to address what the FTC deems “unfair methods of restricting competition.”[2] The full text of the Rule can be accessed here.[3]. If the FTC rule becomes effective, it will supersede and supplant Virginia law that has recognized that reasonably drawn non-compete restrictions are enforceable, with the exception of “low wage” employees.[4]
The implications of the Rule are significant. Indeed, any existing non-compete agreement entered into before September 4, 2024 will no longer be enforceable, and employers will not be permitted to enter into new non-compete clauses with their workers after September 4, 2024.[5] Equally important, once the Rule become effective, employers have a duty to send written notice to each worker who is subject to a non-compete agreement that the provision is not enforceable, and this includes severance agreements. One exception (there are few) is for pre-existing noncompete agreements with senior executives, provided that their annual compensation is more than $151,164. According to the FTC, these senior executives are “less likely to be subject to the kind of acute, ongoing harms currently being suffered by other workers subject to existing non-competes.”[6] For these senior executives, existing non-competes can remain enforceable after the effective date, but companies will be barred from requiring or entering into non-competes with senior executives after September 4, 2024. [7]
Predictably, this proposed ban has caused considerable upheaval in the business community, leading to early legal challenges against the Rule in federal courts in both Texas and Pennsylvania. Among the legal challenges made is the assertion that the FTC does not have the authority to adopt such a nationwide ban, and that the Rule’s attempt to impose this ban is unconstitutional.
In Ryan, LLC v. Federal Trade Commission, Ryan, LLC filed a lawsuit in Texas federal court challenging the FTC’s authority to issue the Rule. Ryan, an international tax firm, and four plaintiff-intervenors, including the U.S. Chamber of Commerce, sought a nationwide preliminary injunction to halt the enforcement of the Rule while the issues are litigated on the merits. The court issued a stay of enforcement until it could rule on the motion for a preliminary injunction, stating that “the FTC lacks substantive rulemaking authority with respect to unfair methods of competition … and thus plaintiffs are likely to succeed on the merits.”[8] However, the court declined to grant a nationwide injunction, limiting the stay to Ryan, LLC and the other plaintiffs named in the case (but not their members). The Texas court stated that it will issue its ruling on the preliminary injunction by August 30, 2024. In its ruling later this month, the Texas federal court is expected to determine whether the FTC ban is enforceable, and whether broader injunctive relief is warranted.
A similar challenge to the FTC’s authority and the enforceability of the Rule was filed by a tree service company in the Eastern District of Pennsylvania.[9] In ATS Tree Services, LLC v Federal Trade Commission, the plaintiff asserted that the FTC ban on non-competes is “unconstitutional and contrary to law”[10] and likewise requested a nationwide injunction that would bar enforcement of the Rule and its ban on non-competes. On July 23, 2024, the court denied plaintiff’s request for an injunction, reasoning that the risk of any harm caused by this ban was too speculative, and that the FTC did, in fact, have the authority to promulgate the Rule.[11]
Because of the contrasting outcomes in these two cases – and these are just the first two cases to render decisions on challenges to the Rule – and the existing patchwork of state laws governing and often limiting the use of noncompete agreements, companies are left without full-proof answers to questions about whether to continue to use of non-compete agreements going forward and what actions to take as of September 4, 2024.
By understanding the implications of the FTC’s Rule and implementing a combination of these strategies, you can better identify the major risks to your business in the absence of an ability to rely on non-competes. During this next month, businesses should consider taking some or all of the following steps to ensure the protection of their trade secrets and other confidential information:
- Non-Disclosure Agreements (“NDAs”): Bind employees with NDAs that clearly protect trade secrets and restricts the disclosure and use of proprietary and confidential information, without making the NDA so broad that it could be considered a non-compete restriction, or that it could construed to prohibit the disclosure of unlawful conduct.
- Non-Solicitation Agreements: Require senior executives and key workers to sign carefully tailored non-solicitation agreements to prevent them from soliciting either the clients they worked with during employment or other company employees for a reasonable period of time after separation from employment.
- Garden Leave: Consider the use of this type of provision in severance agreements with executives and key employees to keep them on the payroll for a restricted period and thereby prevent unwanted competition for a period of time.
- Legal Review: Work with legal counsel to conduct a privileged review of existing agreements to assess potential exposure prior to September 4, 2024.
- Intellectual Property (“IP”) Agreements: Ensure employees have executed Work for Hire Agreements and an agreement to assign any IP they develop to the business and acknowledge the company’s ownership via an IP agreement.
- Tailored Company Policies: Develop company policies and agreements that are specifically tailored to your business needs, avoiding reliance on generic boilerplate language.
- Cloud Services and Data Security: Monitor the Cloud services that employees use to store company data, such as Dropbox, iCloud, or Google Drive. Implement Data Loss Prevention tools that can detect the type of data within files and enforce predefined rules regarding what can and cannot be transferred to a Cloud service.
- Customer Relationship Management Systems: Review the systems used to manage customer relationships and sales. Ensure that access controls and data management settings are tailored to your business needs, specifying who can access what data and for how long.
- Positive Work Environment: Foster a positive work environment that encourages loyalty and reduces the desire for employees to leave and compete. Implementing incentive programs such as profit-sharing, stock options, and bonuses can encourage long-term commitment and reduce turnover.
Absent an unexpected change, it does not appear that a nationwide ban on the FTC’s Rule will be imposed. Each business subject to FTC jurisdiction will need to determine what steps it will take in light of the legal challenges to the FTC’s authority to ban the use of non-compete agreements as well as the exposure to possible enforcement action by the FTC if required notices are not sent by September 4, or banned agreements continue to be required of workers or steps are taken to seek enforcement of a banned agreement.
For legal assistance with navigating these changes and implementing protective measures, reach out to a member of Gentry Locke’s Employment Team who can provide personalized guidance and support to safeguard your business. We can also review any non-compete provisions that your business currently has in place to ensure that they are enforceable under Virginia law.
[1] FTC Non-Compete Clause Rule, 16 C.F.R. § 910 (2024).
[2] Id.
[3] There are limits to FTC’s ban. While the Rule defines non-competes broadly, it does not apply to restrictions that prohibit the solicitation of clients, and the disclosure and use of confidential information/trade secrets. The Rule does not to the following organizations because the FTC has limited jurisdiction: (i) non-profit organizations, (ii) banks, savings and loan institutions, and federal credit unions, and (iii) common carriers, air carriers, and foreign air carriers. Additionally, the Rule, by definition, does not apply to non-competes entered into in connection with a bona fide sale of a business, or to enforcement actions where the cause of action accrued before September 4, 2024.
[4] Assurance Data, Inc. v. Malyevac , 286 Va. 137, 144 (2013); Update Inc, v Samilow, 311 F. Supp.3d 784(ED Va 2018)(granting preliminary injunction on a one-year, 50 mile non-compete agreement). Since July 1, 2020, Virginia has prohibited non-compete agreements with those workers are considered to be “low wage” Va. Code §40.1-27.3.
[5] Id. The Rule makes it clear that it applies to agreements with independent contractors as well as employees, and also applies to severance agreements. In contrast, commentary to the Rule makes it clear that “garden leave” agreements are permissible. Under a garden leave agreement, the worker remains on the payroll for the entire period of the restriction but is required to do little or no actual work.
[6] Id.
[7] 16 C.F.R.§910.2(a)(2). There are also unresolved issues involving the ability to use non-compete provisions and/or forfeiture/claw back provisions in new deferred compensation agreements which are or maybe governed by ERISA.
[8] Ryan LLC v. FTC, Civil Action No. 3:24-CV-00986-E, 2024 U.S. Dist. LEXIS 117418 (N.D. Tex. July 3, 2024).
[9] ATS Tree Services, LLC v. FTC, 2:24-cv-01743, (E.D. Pa. 2024)
[10] Id.
[11] Id.
Comments Off on Federal Lawsuits Challenge, but Do Not Halt, FTC Rule Banning Non-Competes; What Employers Can Do to Protect Information and Talent in the Absence of Non-Competes
Category | Tags:
Social Networks : Technorati, Stumble it!, Digg, de.licio.us, Yahoo, reddit, Blogmarks, Google, Magnolia.
Monday, August 5th, 2024
The Court of Appeals of Virginia overturned a $2.03 billion trade-secrets case judgment, the largest jury verdict in Virginia history. In a landmark ruling that defines contours of the Virginia Uniform Trade Secrets Act (“VUTSA”), the Court held that a “series of errors” required reversal. The unanimous decision issued on July 30, 2024, awarded Pegasystems Inc. (“Pega”), a Massachusetts-based software company, a new trial on all VUTSA issues—both liability and damages. Monica T. Monday and Michael J. Finney led the appellate team from Gentry Locke that assisted in securing this result.
The case was brought by Appian Corporation, a competitor in the business process management software industry. After a seven-week trial in Fairfax County Circuit Court, the jury rendered the unprecedented verdict. The Court of Appeals held that this verdict could not stand. It found that the trial court improperly instructed the jury that Appian’s only causation burden was to show Pega’s total sales over an eight-year period. That flawed instruction, according to the Court, “relieved Appian of its proper burden to prove causation between the alleged misappropriation and any damages.” And that error was compounded when the trial court prevented Pega from presenting evidence that many of its total sales were in areas in which the parties did not compete.
In addition to these prejudicial errors concerning causation and damages, the Court also found that Pega should have been permitted to demonstrate its software to the jury and to introduce the number of people with access to Appian’s platform. These were critical facts to liability issues—namely Pega’s defenses that it did not copy Appian’s software and that Appian did not take reasonable measures to protect its alleged trade secrets. These multiple errors deprived Pega of a fair trial.
Monday and Finney served as embedded appellate counsel for Pega at trial, assisting the trial team from Choate Hall and Offit Kurman with evidentiary issues, preservation-of-error, jury instructions, critical legal issues, and post-trial motions. On appeal before the Court of Appeals of Virginia, Gentry Locke worked alongside an outstanding appellate team from Orrick, including Josh Rosenkranz, Eric Shumsky, and Chris Cariello. Gentry Locke’s appellate team also included partners David R. Berry and Noah P. Sullivan.
The case is Pegasystems Inc. v. Appian Corporation, Record No. 1399-22-4 (Va. Ct. App., July 30, 2024).
