The Library

VDOT will be holding a design public hearing on September 19 from 5 p.m. to 7 p.m. at Lord Botetourt High School (located at 1435 Roanoke Road, Daleville), on an upcoming project to widen I-81 from two to three lanes in both directions along a seven-mile stretch between Exit 143 in Roanoke County and Exit 150 in Botetourt County. The hearing will be an open house format, and VDOT representatives will be present to answer questions. The project is expected to include: The replacement of eight bridges on I-81 The installation of approximately 8,500 feet of sound barrier along the […]

The Surface Transportation Board (“STB”) issued a Notice of Proposed Rulemaking (“NPRM”) in a new sub docket of Ex Parte 711 (Sub. No. 2), regarding open access a.k.a. competitive switching rules. Comments on the proposal are due October 23, 2023; Reply comments are due November 21, 2023. The summary below provides some high-level points, but the decision is lengthy, highly detailed, and subject to further analysis (particularly with respect to the detailed discussion of performance standards). This decision closes Docket No. EP 711 (Sub-No. 1) and proposes, in a new subdocket, a new set of regulations that would provide for […]

By Matthew W. Broughton, Jared A. Tuck, and Summer Associate Joshua R. Justus It can be easy to ignore the worst case scenario until it actually happens, and when it does, you don’t want to be left wondering what you could have done differently. Uninsured motorist coverage (UM) and underinsured motorist coverage (UIM) act like a safety net for you and your family if you are involved in a collision with a motorist who either: doesn’t have any motor vehicle insurance or doesn’t have enough insurance to cover your damages.  It is common for survivors and surviving family members of […]

AI tools undoubtedly offer benefits in the recruitment and hiring process; however, the use of AI screening tools when making employment decisions comes with associated risks. One significant risk is that an employer may unintentionally violate federal anti-discrimination laws if the AI tool disproportionately screens out individuals in protected classes and the employer is unable to justify the exclusion as sufficiently job-related and consistent with business necessity. The increasing popularity and use of AI tools in the recruitment and hiring process has caught the attention of the Equal Employment Opportunity Commission (EEOC), and it has begun to aggressively target AI […]

This article appeared in the Summer 2023 issue of the VBA Young Lawyers Division’s Opening Statement. By Jared A. Tuck[1] The COVID-19 pandemic forced law firms around the world to transition their practices online.[2] Now, although courts have largely resumed their regular, in person proceedings,[3] many lawyers and firms have kept tools from the pandemic in their toolbox. One such popular practice is the continued use of remote platforms for depositions. Recognizing that remote depositions are here to stay, this article provides an overview of the following: (1) the law on remote depositions, (2) the advantages and disadvantages of remote […]

During the 2022 Session, the Virginia General Assembly passed SB 550, which prohibited the application of contingent payment clauses (known as “pay-if-paid” clauses) under most circumstances. The bill also established prompt payment clauses for prime contracts and subcontracts on private projects. Virginia’s Prompt Payment Act was formerly applicable only to public projects. The legislative process during the 2022 session did not result in a consensus among stakeholders concerning the appropriate statutory language. This is a link to the final language of the bill, which was very different from the original bill, or the first substitute presented in committee. The bill […]

From The Fee Simple. Published July 2023.

The Clean Water Act[1] (CWA) prohibits the discharge of pollutants into navigable water, which is defined in the CWA as “waters of the United States” (WOTUS). For decades, the definition of WOTUS has been a moving target. On May 25, 2023, the U.S. Supreme Court (SCOTUS) may have settled this debate in its Sackett v. Environmental Protection Agency decision where the Court narrows the U.S. Army Corps of Engineers (USACE) and Environmental Protection Agency’s (EPA) jurisdiction to regulate wetlands under the CWA.[2] Sackett establishes that in order for the federal agencies to exercise jurisdiction over an adjacent wetland, a party […]

As we have reported over the past five months, read here, the Biden Administration is continuing to orchestrate a frontal assault on noncompete agreements, while at the same time trying to change the rules on a going forward basis.  This article provides a short update on the latest federal agency actions, including a new opinion released by the NLRB’s General Counsel and the status of the FTC’s Draft Rule, recent state law changes, and an important reminder that employment relationships are fiduciary in nature and are supposed be based on “integrity and fairness” which is a concept that swings both […]

The side of righteousness: Cody Arven’s odyssey Cody Arven had to fight from the day he was born, which is hard to do when you can’t walk, talk, see or hear your mother’s voice when she says, “I love you.” His parents did the fighting for him, though. They battled doctors who denied responsibility for the brain injury that occurred during his mother’s labor, when a severe infection wasn’t diagnosed. They sparred with lawyers who rejected the family’s claims for restitution, and they took on the government-created insurance funds in two states that refused to pay their promised share of […]

As we enter the second full year of the Biden Administration, nearly every federal agency that regulates employment in the United States have begun to hit their stride and is hard at work with various initiatives and rulings which seek to expand worker protections and reverse guidance, regulations and decisions issued during the Trump era. This article highlights just a few of these developments. We have previously reported on the “crackdown” actions taken by the Federal Trade Commission (“FTC”) to invalidate the noncompete provisions used by three companies that covered hundreds of employees, not all of whom were “low wage” […]

ROANOKE, Va. — Age is just a number, or so the old saying goes. Even when your law firm turns 100 years old. Gentry Locke is proud to mark a century of serving clients and being one of the most trusted law firms in Virginia. That kind of longevity is a testament to the firm’s skilled lawyers and staff and their ability to foster close relationships with clients and co-workers to deliver results. Tracing its roots to 1923, Gentry Locke has long been a valuable partner and leader for clients, businesses and the community. But in 2023, few people care […]

From Bloomberg Law. Published February 7, 2023. Click here to read this article on bloomberglaw.com.

While most commentary and handwringing has focused on the Federal Trade Commission’s (“FTC”) Notice of Proposed Rulemaking released on January 5, 2023, many are unaware of the FTC actions taken the day before. On January 4, 2023, the FTC announced the successful launch of what it calls an enforcement “crackdown” against noncompete agreements by heralding forced settlements with three (3) different companies that made regular use of noncompete agreements with a broad range of employees, and not just with low-wage or low-skilled workers.[1] Each of the FTC Complaints alleged the “unfair use of noncompetes in violation of Section 5 of […]

On January 5, 2023, the Federal Trade Commission (“FTC”) created a stir when it released a 218-page Notice of Proposed Rulemaking and a Proposed Rule that if implemented will prohibit the use of post-employment, noncompete provisions.  The Proposed Rule extends to all workers, whether paid or not, and would require employers to rescind existing noncompete agreements within 180 days of publication of the Final Rule.[1]  The FTC estimates that approximately 30 million workers are bound by a post-employment noncompete provision. Much has been said about the Proposed Rule, but these are several initial observations in advance of a webinar Gentry […]

From the Journal of Transportation Law, Logistics and Policy, Volume 89, Number 2 © Copyright 2023 ATLP

We all have bad days and even bad weeks, but waiting over a year to serve a defendant in a civil lawsuit in Virginia is just too long—and the rules agree. Rule 3:5(e) of the Rules of the Supreme Court of Virginia (the “Rules”) states that “[n]o order, judgment, or decree will be entered against a defendant who was served with process more than one year after the institution of the action against that defendant unless the court finds as a fact that the plaintiff exercised due diligence to have timely service on that defendant.” When the Advisory Committee on […]

A recent opinion by the United States Court of Appeals for the Eleventh Circuit highlights the importance of obtaining and including a borrower’s correct name in the Form UCC-1 to be filed in the Virginia State Corporation Commission and other jurisdictions with statutory provisions similar to that of Virginia. In the case of 1944 Beach Boulevard, LLC v. Live Oak Banking Company, 2022 U.S. App. LEXIS 27330, the Court found that the Uniform Commercial Code financing statements filed by Live Oak with the Florida Secretary of State was “seriously misleading” because Live Oak listing the Debtor’s Name as “1944 Beach […]

Three attorneys walk into a law firm… It’s not the start of some joke. It’s the beginning of big news for Gentry Locke, which recently welcomed three attorneys as partners whose vast experience in government and the corporate world will help clients navigate issues where the public and private sectors meet. Carlos L. Hopkins, the Virginia Secretary of Veterans and Defense Affairs under former Virginia governors Terry McAuliffe and Ralph Northam, and a legal counsel to McAuliffe; Noah P. Sullivan, also a former counsel to McAuliffe who previously worked in the Washington, D.C. office of Gibson, Dunn & Crutcher LLP; […]

The Virginia Administrative Process Act (“VAPA”) and Part 2A of the Rules of the Supreme Court of Virginia govern judicial review of determinations by certain administrative agencies in Virginia. A party appealing an agency decision under the VAPA must operate within these parameters, and the Court’s review of an agency decision is limited. In this context, the party contesting the agency decision bears the burden to “designate and demonstrate an error of law subject to review by the court.” Va. Code § 2.2-4027. Under the VAPA, an “error of law” contemplates a decision that is not: (1) in accordance with […]

By John G. Danyluk, Erin M. Harrigan and Andrew E. Hayhurst Timely cover story about the data privacy rules that take effect Jan. 1, 2023. Click the below cover to read the full article in the VBA Journal or click here.

Congratulations!  You’ve decided to start a business or to be an entrepreneur.  Or you’ve decided it is time to grow your business further.  Now, if you can just raise the capital to give your business a go… Perhaps you tapped into your savings or nest egg.  Maybe the business is generating enough revenue to get by.  But eventually, you may need outside funding – whether from friends and family or from other investors.  It could come in the form of debt or equity from private or institutional investors.  Today, let’s focus on raising capital. Beware!  Raising capital is fraught with […]

Per-and polyfluoroalkyl substances (collectively, “PFAS”) are a group of nearly 5,000 human-made chemicals that are resistant to heat, water and oil. Due to these “resistance” properties, since the 1940s, PFAS have been used in a broad spectrum of industrial applications and commercial products, including everyday household items and packaging. Some examples of PFAS usage include carpeting, waterproof clothing, upholstery, food paper wrappings, cookware, personal care products, fire-fighting foams, and metal plating. In the environment, PFAS rapidly move through groundwater. Thus, PFAS frequently are found in public and private water sources throughout the United States. Unfortunately, the same resistance to water, […]

During the 2022 Session, the Virginia General Assembly passed SB 550, which, among other things, prohibits the application of contingent payment or condition precedent payment clauses (known as “pay-if-paid” clauses) under most circumstances. The bill also establishes prompt payment clauses for prime contracts and subcontracts on private projects, whereas, Virginia’s Prompt Payment Act was formerly applicable only to public projects. The final language of the bill included a delayed enactment clause so that the statutory changes in SB 550 will not take effect until January 1, 2023. This delay gives project owners, developers, design professionals, general contractors, and subcontractors the opportunity […]

The question regarding whether a worker is properly classified as an independent contractor or employee is fraught with controversy, legal risk and uncertainty.   A recent case illustrates the issue in the trucking world. On June 30, 2022, the U.S. Supreme Court declined a petition for writ of certiorari filed by a group representing California’s trucking industry, California Trucking Association (“CTA”).  CTA’s petition sought to challenge a California worker classification law that will have a devastating impact on the trucking and transportation industries.  These industries are already in the midst of multiple, overlapping crises. The high court denied CTA’s petition challenging the […]

It is the job of the Virginia legislature to make and change the laws of our Commonwealth. Sometimes, these new or changed laws are plastered all over the news. More often than not, new and changed laws are put into effect with little to no publicity. Nevertheless, there they are, ready to be used as a tool, or weapon, when the time presents itself. Despite the world’s reaction to COVID-19, the Virginia legislature was hard at work in 2020. Part of its work included amending an existing law concerning indemnification provisions in contracts with design professionals. Historically, indemnification provisions included […]

In one of the more significant Virginia administrative law decisions in recent years, the Supreme Court of Virginia held that the “harmless error” standard does not apply to most issues in administrative appeals, restricting the standard only to procedural defects.  The decision in Chesapeake Hospital Auth., d/b/a Chesapeake Regional Medical Center v. State Health Commissioner, et al., Record No. 201510 (Va. May 19, 2022) sweeps broadly, impacting judicial review of all agency decisions subject to the Virginia Administrative Process Act (“VAPA”).  The result is likely more delay, more uncertainty, and more litigation in regulatory matters, increasing regulatory risk for clients—particularly […]

Are you naked? Are you fully covered? Look, don’t be embarrassed. I’m talking about insurance. Let me ask again: Are you covered? In my work, I often talk to clients who don’t have enough insurance coverage. The problem is that many of them didn’t know they were naked — that is, they lacked adequate insurance coverage — until it was too late. They didn’t have enough coverage to protect their family or themselves, or enough to cover claims paid to someone they might have injured in an accident. They didn’t have enough coverage to replace a home that might have […]

Cross-examination can determine whether you win or lose your case. It’s a crucial opportunity to reinforce advantageous points and undermine problematic ones. Maintaining control of the process is key. Here are some ways to do so. Know where you are going. Organize your strategy and questions, prepare rigorously, and know what you want to accomplish with each witness. Pay close attention to the order of your questions, because jurors tend to remember the first and last things they hear the most. Always ask yourself: Is it even necessary to cross-examine this witness? Never ask open-ended questions. Ask only questions you […]

Environmental justice is rapidly evolving in Virginia. As a result, regulators are unsure of how to incorporate, or weigh, environmental justice considerations in their decision-making process. However increasingly progressive legislation and landmark judicial decisions that check the power of state’s regulatory bodies have made environmental justice not only a significant but required element in permitting decisions. Gentry Locke Environmental and Government and Regulatory Affairs attorneys Jasdeep Singh Khaira, Patrice Lewis, D. Scott Foster, and Government Affairs Specialist Abigail Thompson provide a legal update on environmental justice in Virginia within the University of Richmond Public Interest Law Review. In general, with […]

On July  15, 2020, Virginia, adopted the first in the nation COVID-19 Emergency Temporary Standard (the “ETS”). The ETS required Virginia employers to take certain actions to mitigate the spread of COVID-19 infections in the workplace. On January 23, 2021, VOSH replaced the ETS with a permanent Standard for Infectious Disease Prevention (the “Permanent Standard”), which it amended in August 2021. On January 15, 2022, Governor Youngkin issued an Executive Order directing the Virginia Safety and Health Codes Board (the “Board”) to convene an emergency meeting to discuss if there is an ongoing need for the Permanent Standard. The Board […]

The story is familiar. Your company has a customer that has been purchasing goods or services from your company for a long time. The customer is exhibiting signs that it is experiencing financial difficulties. The customer’s payments of the company’s invoices become slower and eventually past due.  The business relationship is valuable to both the customer and your company: the customer needs your company’s goods or services and the customer provides important revenue to your company. Neither party wishes to terminate the relationship. The financial condition of the customer continues to deteriorate and the customer resorts to the filing of […]

On July 27, 2020, Virginia was the first state to adopt a COVID-19 Emergency Temporary Standard (the “ETS”), which required Virginia employers to take certain actions to mitigate the spread of COVID-19 infections in the workplace. On January 26, 2021, the VOSH ETS lapsed after its duration of six months. VOSH replaced the ETS with a permanent Standard for Infectious Disease Prevention (the “Permanent Standard”) that took effect on January 27, 2021. In response to CDC guidance issued on July 27, 2021, on August 26, 2021, VOSH adopted amendments to the Permanent Standard. The amended Permanent Standard is currently in […]

As you likely know, Federal OSHA has published its new Emergency Temporary Standard (ETS) that requires private employers with more than 100 employees to mandate COVID-19 vaccines, or require at least weekly COVID testing for unvaccinated employees, among other things.  Here is some preliminary information for employers. Basics:  The ETS was published in the Federal Register on Friday November 5, 2021.  See the link below to the OSHA Website.  OSHA has published several documents to assist including an executive summary, FAQs, and sample policies. https://www.osha.gov/coronavirus/ets2 The ETS requires that employees be fully vaccinated by January 4, 2022 or have a […]

Virginia follows the American Rule regarding attorney’s fees, which provides that parties must typically pay their own fees and costs in litigation; a prevailing litigant cannot collect its fees from the losing litigant. However, there are some exceptions. For example, a governing statute might include a fee-shifting section. Or, the litigants’ contract might include a similar clause. There is also a judicially-crafted exception that can apply in fraud cases. The exception has its roots in the case of Prospect Development Company v. Bershader, a 1999 decision by the Supreme Court of Virginia. There, the Court largely affirmed the trial court’s […]

A coal company makes a promise to a coal miner: “We will pay you $30 per ton of coal you deliver.” The coal miner then delivers the coal, but the coal company pays the miner only $15 per ton. The coal miner then sues the coal company. Does the miner have a claim for breach of contract? For fraud? Or for both? As with so many legal questions, the (maddening) answer is: it depends. Virginia law has strived to draw a distinction between contract and fraud claims, for perhaps obvious reasons. Take the facts above. The company’s failure to fulfill […]

In July of 2020, the Virginia Department of Labor and Industry (“DOLI”) enacted an Emergency Temporary Standard (“ETS”) setting forth workplace safety standards relating to the COVID-19 pandemic. Virginia has now enacted a Final Permanent Standard for Infectious Disease Prevention: SARS-CoV-2 Virus that Causes COVID-19 (the “Permanent Standard”). The 58-page Permanent Standard, set forth in Section 16VAC25-220 of the Virginia Administrative Code, is effective as of January 27, 2021. The Permanent Standard applies to all employers in the Commonwealth, and supersedes the ETS. The Permanent Standard is based in large part on the ETS, and mandates appropriate personal protective equipment, […]

Minutes before midnight on December 21, 2020, in the first major COVID-19 relief bill since this spring, Congress passed a $900 billion COVID-19 relief bill in combination with a $1.4 trillion omnibus government spending bill. Key PPP provisions of the new COVID-19 relief bill include: A new round of PPP loans to small businesses. The new round of PPP loans contains revisions to prior borrower eligibility criteria, so eligibility for this new round should be examined by any interested businesses. Unlike prior rounds, initial language indicates borrowers will need to show a 25% decline in gross revenue for any 2020 […]

A Commercial Landlord’s Guide to Relief when a Tenant Abandons the Property Tenants come and go. Sometimes they go without warning. In an age of remote work, stay-at-home orders, and supply-chain delays, commercial landlords find themselves in a precarious position with tenants who threaten not to return or who just altogether leave. Of course, a landlord has available to it the traditional contractual remedies and those under the Virginia Landlord Tenant Act. However, there is another remedy often overlooked: the distress warrant. Given the severity and unique nature of the distress warrant, it is obvious why landlords infrequently rely on […]

A team of Gentry Locke litigators recently reached a settlement for $8 Million Dollars on behalf of a factory worker who was severely injured when her hair became entangled in the drive shaft and roller of the glue spreading machine she operated. The machine spun her hair around the shaft and roller, ultimately completely scalping her from eyebrows to the back of her neck and from ear to ear. Her life was saved by the Duke Medical Center but her injuries are permanent and debilitating. The claim we asserted on our client’s behalf was initially focused on the way the […]

The COVID-19 pandemic turned the world on its head just days after the 2020 General Assembly adjourned, all but guaranteeing that the General Assembly would reconvene for a Special Session sometime this year to reconcile the state budget and deal with the fallout from the outbreak. Since then, the murder of George Floyd created a sense of urgency around the need for police and criminal justice reform, producing a second set of issues to address. Governor Ralph Northam has now called the General Assembly back to Richmond on August 18 to take up both of these issues. At a broader […]

The 2020 Virginia General Assembly enacted significant changes to Virginia’s most widely used exemption statutes in Title 34. In 2020 Virginia House Bill 790, which becomes effective on July 1, 2020, the legislature expanded both the amount of and procedure for claiming what is commonly referred to as the “Homestead Exemption” by simplifying the procedure for debtors claiming those exemptions in a pending bankruptcy case. Currently the Homestead Exemption under section 34-4 of the Code of Virginia permits an individual (a “householder”) to exempt from creditor process real and personal property up to $5,000 in value (or $10,000 in value […]

Change is coming July 1, 2020. Do you know how Virginia’s new laws impact your business? We do.   Virginia Values Act     Virginia Clean Economy Act   Virginia Whistleblower Protection Law   Virginia Human Rights Act   Virginia Business Returns to Work  

A slim majority of the Supreme Court of Virginia recently affirmed a judgment in favor of a supplier against a general contractor for materials that a subcontractor had ordered from the supplier but not paid for. The case, Davis v. FTJ, is a cautionary tale for those who expect their legal obligations to end with the contracts they make. Under this case, “implied” contracts – i.e., fictional contracts implied by law – may carry those obligations much further. The general contractor in Davis engaged a subcontractor to provide drywall and metal framing for a project in Arlington County, Virginia. The […]

As companies start to reopen and more workers are brought back to the workplace, the federal Occupational Safety and Health Administration (“OSHA”) changed its position and is now requiring businesses to be proactive in determining how workers who test positive for COVID-19 became exposed. The new guidance released on May 19 reversed OSHA’s April directive and now requires all employers with 11 or more employees who must maintain OSHA injury and illness logs to determine if a worker’s COVID-19 case is job-related.[1] This new Guidance can be found here. This requirement applied initially only to health-care employers, emergency-response providers, and […]