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Antitrust, Copyright and Business Tort Basics in Virginia

Sherman Act Restraint of Trade Every contract, combination or conspiracy in restraint of trade or commerce among the States is illegal. 15 U.S.C. Section 1. A restraint of trade cause of action requires showing that: the activities are in or affect interstate or foreign commerce; the activities are performed by two or more persons; the activities are the result of concerted action; the concerted action is a restraint on commerce; and the restraint is unreasonable. See Levine v. McLeskey, 881 F. Supp. 1030, 1044 (E.D. Va. 1995); Estate Constr. Co. v. Miller & Smith Holding Co., 14 F. 3d 213, […]

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Nine Lawyers Named to The Best Lawyers in America

Nine lawyers from Gentry Locke Rakes & Moore were recently selected by their peers for inclusion in The Best Lawyers in America 2005-2006 (Copyright 2004 by Woodward/White, Inc., of Aiken, S.C.).  They are: J. Rudy Austin – Personal Injury Litigation Howard J. Beck, Jr. – Bankruptcy and Creditor-Debtor Rights Law Eugene E. Derryberry – Bankruptcy and Creditor-Debtor Rights Law, Financial Institutions and Transactions Law W. William Gust – Tax Law S. D. Roberts Moore – Personal Injury Litigation G. Michael Pace, Jr. – Corporate, M&A, and Securities Law, Financial Institutions and Transactions Law, Real Estate Law W. David Paxton – […]

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Gentry Locke Lawyers Named to 2004 Virginia Legal Elite

Gentry Locke Rakes & Moore is pleased to announce that fifteen of its lawyers have been named to “Virginia’s Legal Elite 2004” in 11 categories by Virginia Business magazine.   Bruce C. Stockburger – Business Matthew W. Broughton – Civil Litigation Guy M. Harbert, III – Criminal Michael S. Whitlow – Environmental/Land Use Charles L. Williams, Jr. – Environmental/Land Use J. Scott Sexton – Intellectual Property Gregory J. Haley – Legislative/Regulatory Victor S. Skaff, III – Legal Services/Public Service W. David Paxton – Labor/Employment J. Rudy Austin – Real Estate/Construction G. Michael Pace, Jr. – Real Estate/Construction W. William Gust – […]

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DOL Publishes “Safe Harbor” Policy

Prior to issuance of the new overtime regulations, salary deductions often led to “class action” claims where otherwise exempt employees claimed to have been converted to non-exempt workers arguing that the “deductions” meant they were not paid on a “salaried basis.”  The new DOL regulations provide businesses the ability to limit such class actions if a new “safe harbor” is adopted.  Even under the new overtime rules, it continues to be improper for an employer to make “partial day” deductions from a salaried exempt employee’s wages because they are late reporting to work, miss work to attend a parent/teacher conference, […]

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Gentry Locke Partner Named BRBJ’s “20 Under 40”

The Blue Ridge Business Journal named Jim Hale as one of its 2004 “20 Under 40” recipients for his commitment to his profession and community. Excerpt taken from Blue Ridge Business Journal, Vol. 16, No. 17, August 23, 2004. Jim Hale             Age:  38             Business:  Gentry Locke Rakes & Moore             Location:  Roanoke             Type of Business:  Law firm.             Title:  Partner             Background:  Family is originally from Narrows; grew up in Lancaster County, Pa. and in Belgium.             Father was with New Holland Farm Machinery.  Parents back in Narrows on farm that has been in the family since […]

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Labor Issues For Labor Day and Beyond

By Todd A. Leeson   It has been an eventful summer for labor unions.  As we approach Labor Day, this article summarizes several recent developments involving unions.    AFL-CIO Aggressively Supports John Kerry for President    As you probably know, the AFL-CIO and its affiliated unions have been spending millions of dollars in their high-profile support of John Kerry.  According to AFL-CIO President John Sweeney, the “labor movement has never been more united or working harder for a presidential candidate.”  If President Bush is reelected, it will be another defeat for the AFL-CIO.  (Indeed, the AFL-CIO is being criticized by several competing union […]

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Fabricated EEO Charges: What’s A Business To Do?

The full article is available in pre-formatted PDF format under the Additional Reading section. ALFA International Labor and Employment Update, Summer 2004 W. David Paxton, July 23, 2004 Introduction In a recent case out in the Tenth Circuit, two employees sued their former employer for retaliation after they were terminated for making allegations of harassment which the employer concluded were intentionally false. Renner-Wallace v. Cessna Aircraft Co., 2003 U.S. Dist. LEXIS 4134 (D. Kan.), aff’d 95 Fed. Appx. 967 (10th Cir. 2004). The district court granted the employer’s motion for summary judgment holding that the employees had failed to present any […]

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CGL Policy: “Flooding Event” Pollution Exclusion Clause

Published in Virginia Lawyers Weekly, July 19, 2004 The full article is available in pre-formatted PDF format under the Additional Reading section. Introduction Where plaintiffs assert their business and land suffered damage from flooding from a nearby owner’s property after he installed culverts in a stream, which overflowed during a flood, the carrier cannot rely on the “pollution exclusion” clause of a commercial general liability policy issued to defendant property owner’s business to deny a defense.

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Rights of Employee to Demand Representation During Investigatory Interview Limited to Union Settings

In June, the National Labor Relations Board (“NLRB” or the “Board”) overruled its controversial 2000 decision in Epilepsy Foundation and concluded that employees in non-union workplaces are not entitled to request that a co-worker or other representative be present at an investigatory interview conducted by his employer.  As will be further explained below, the so-called Weingarten “right to representation” has traditionally been available to employees in a union setting.  In its 2000 Epilepsy Foundation decision, however, the Board, in a surprising decision, extended “Weingarten rights” to non-union employees.  Last month, in IBM Corporation, 341 N.L.R.B. No. 148 (June 9, 2004), […]

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HIPAA 101: Five Key Concepts Every Virginia Litigator Should Know

Virginia Lawyer, June/July 2004 The full article is available in pre-formatted PDF format by clicking on the “Associated File” link below. Introduction For attorneys practicing health law, consulting the Privacy Standards of the Health Insurance Portability and Accountability Act (“HIPAA”) is almost an everyday event. Since these extensive and complicated rules were published in December of 2000, we have been advising health care providers and health plans (“covered entities” under HIPAA) on the steps they should take to become compliant. For other attorneys, however, HIPAA has become a roadblock to patient information that used to be much more accessible.

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Brett Marston Receives Young Lawyer of the Year Award from Virginia State Bar

K. Brett Marston, partner and co-chair of the construction practice of Gentry Locke Rakes & Moore, has been selected the 2004 recipient of the R. Edwin Burnette, Jr., Young Lawyer of the Year Award from the Virginia State Bar.  Marston received the award at the 66th Annual Meeting of the Virginia State Bar held June 17 through 20 in Virginia Beach. The award was established in 1994 and is named after R. Edwin Burnette, Jr., a General District Court judge and past-president of the Virginia State Bar.  It is given annually to the young Virginia attorney who best represents the […]

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Reflections in the Mirror: Revisiting the Glass Ceiling Phenomenon

W. David Paxton In a combination of reports released, the federal government has made an effort to revive the debate regarding the disparity in pay and position between many men and women which is frequently referred to as the Glass Ceiling phenomenon. [1]  GAO Report. In November, 2003, the General Accounting Office reported that women earn only about $.80 for every $1.00 paid to a man, which is the same pay gap that has persisted for nearly 20 years. The report entitled Women’s Earnings: Work Patterns Partially Explain Differences Between Men and Women’s Earnings. According to this report, several key […]

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Guest Speaker at Firm Overtime Seminar Promoted to Top Wage-Hour Position with DOL

Alfred B. Robinson, Jr. was the special guest speaker at the seminar on May 17, 2004 regarding the new overtime regulations sponsored by Gentry Locke Rakes & Moore and The Roanoke Regional Chamber of Commerce.  Three days later, Mr. Robinson testified in Congress on behalf of the Bush Administration as to the new overtime rules.  On June 2, 2004, the Secretary of Labor Elaine L. Chao announced that Al Robinson was promoted to the position of Acting Administrator of the DOL’s Wage and Hour Division effective June 14, 2004.  The new overtime regulations will take effect August 23, 2004.  For more […]

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HIPAA’s Impact on Litigation

HIPAA’s Impact on Litigation J. Rudy Austin Robyn Smith Ellis Congress enacted the Privacy Standards of the Health Insurance Portability and Accountability Act (HIPAA) to protect patients from unauthorized disclosure of their medical records. HIPAA regulations require healthcare providers to establish policies and procedures that comply with the Privacy Standards. One of the many questions raised by HIPAA is the effect of the Privacy Standards on statutes in many states, including Virginia, that allow lawyers defending claims or lawsuits brought by patients against their own physicians or others, under certain proscribed circumstances, to have ex parte (without the patient or […]

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Seminar Teaches Administrators Ins and Outs of New Overtime Rules

Seminar Teaches Administrators Ins and Outs of New Overtime Rules By Jenny Kincaid, The Roanoke Times May 18, 2004 The meeting resembled a problem-solving session in seventh-grade math class. The problem: Terri works at a convenience store. She takes on some manager’s duties, such as paperwork and hiring. But 75 percent of her duties are basic, such as cooking hamburgers and serving ice cream. Should she be paid by the hour or by salary? Local human resource directors, business executives and others scratched their heads over that question and others Monday. During a seminar at the Hotel Roanoke & Conference […]

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Department of Labor Announces Health Savings Accounts Generally Are Not Covered Under ERISA

Robyn Smith Ellis On April 7, 2004, the U.S. Department of Labor’s Employee Benefits Security administration released Field Assistance Bulletin 2004-1 which provides enforcement guidance to field investigators on health savings accounts (“HSAs”). The guidance is intended to facilitate the adoption of health savings accounts by employers. The Department of Labor believes that HSAs will lead to more choices and lower health care costs for American workers and their families. The Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (“Act”) permits eligible individuals to establish HSAs effective January 1, 2004. Generally, eligible individuals are those who are covered under […]

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Immigration Services Fee Adjustments

Immigration Services Fee Adjustments Take Effect April 30, 2004The U.S. Citizenship and Immigration Services (USCIS) released a new fee schedule for immigration related processing services.  The cost of immigration services and benefits provided by the USCIS is required to be recovered from service fees and not from general revenues.  USCIS has declared that because of new post-September 11 processes, improved security checks, and inflation, the costs of providing these services and benefits have increased.  The agency has also stated its intention to achieve the President’s goal of eliminating the application backlog by FY 2006

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New Overtime Regulations Issued

LEGAL ALERT New Overtime Regulations Issued April 20, 2004   The DOL announced today (April 20, 2004) that the new Final Regulations for overtime exemptions have been issued.  Intended to reduce the confusion that has led to an avalanche of class action wage-hour lawsuits in recent years resulting in dozens of multi-million dollar settlements and verdicts, the DOL issued a comprehensive set of new regulations that will overhaul regulations which have not been significantly changed in more than 50 years.  Barring Congressional action, the Final Regulations will take effect August 23, 2004.    In response to a wave of concerns, […]

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Dominique Dawes Named As Keynote Speaker for the 6th Annual Young Heroes Awards Banquet, May 18, 2005 at the Hotel Roanoke

Young Heroes Awards Banquet tickets are $400 for a table seating ten or $45 for individual tickets. Be sure your organization or business is represented in this important community event. Success is a Journey, NOT a Destination Dominique Dawes won Olympic gold. But, for her, success is so much more than medals and accolades: it’s something she worked hard to achieve everyday en route to Olympic glory. Today she shares her personal and professional philosophy with audiences across the country. Called “D-3” – Determination, Dedication, Desire – it’s what gave her the strength and confidence to handle the professional and personal challenges […]

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Cyberspace Defamation

W. David Paxton While neither the Fourth Circuit nor Virginia courts have yet addressed the issue, the California Court of Appeals has held that current or former employees who post defamatory statements about a business on the Internet can be held legally accountable for such false statements. In Varian Medical Systems, Inc. v. Delfino, H024214 (Cal. Ct. App. 2003), two former employees posted numerous derogatory messages about Varian and two of its executives. A jury found the defendants liable for defamation, invasion of privacy, breach of contract and conspiracy, awarding $425,000 in general damages and $350,000 in punitive damages. On […]

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Gentry Locke’s Healthcare Plan Seminars a Success

On February 24, 25 and 26, 2004 a total of 125 attendees participated in Gentry Locke Rakes & Moore’s first set of morning briefings in Lynchburg, Roanoke and Blacksburg.  In a series of two-hour briefings, Gentry Locke attorneys supplied attendees with information critical to employer sponsored healthcare plans.  Attendees were provided with a key checklist to assist with HIPAA compliance, received an overview of the key provisions of the new Health Savings Act to help determine whether they could be an effective means of reducing employer’s healthcare costs and were provided with a detailed review of the new COBRA regulations […]

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Nine Gentry Locke Lawyers Named to Best in America List

Nine Gentry Locke Lawyers Named to Best in America List   ROANOKE (March 1, 2004) — Gentry Locke Rakes & Moore, LLP is pleased to announce that nine of its lawyers have been named to The Best Lawyers in America list for 2003-2004.  They include:   W. William Gust, Tax Law Bruce C. Stockburger, Tax Law, Trust and Estates Howard J. Beck, Jr., Bankruptcy/Creditors’ Rights Eugene Derryberry, Bankruptcy and Creditors’ Rights, Financial Institutions and Transactions Law Guy M. Harbert, III, Criminal Law William R. Rakes, Antitrust Law, Business Litigation, Corporate/Securities Law S.D. Roberts Moore, Personal Injury Litigation W. David Paxton, Labor/Employment Law […]

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Are Health Savings Accounts Right For You and Your Employees?

Introduction The new Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (“Act”) permits eligible individuals to establish Health Savings Accounts (HSAs) starting January 1, 2004.  HSAs are similar to Archer Medical Savings Accounts (“Archer MSAs”) as well as Individual Retirement Accounts (“IRAs”).  They offer tax-sheltered savings like an IRA, and withdrawals for qualified medical expenses are tax-free.  After a beneficiary attains the age of 65, withdrawals for anything other than qualified medical expenses (which continue to be tax-free) are treated the same as distributions from traditional IRAs. Like an Archer MSA, an HSA is established for the benefit of […]

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Business Valuations in Litigation 101: A Basic Guide

BUSINESS VALUATIONS IN LITIGATION 101: A BASIC GUIDE James C. Joyce, Jr. Kevin W. Holt The need for business valuations arises in a variety of types of litigation from domestic relations to minority shareholder suits, from disputes over the sale of a business to taxation and estate litigation. In all such cases, the basic issue is the same—how much is the business or an ownership interest in it worth and how do you measure it. This article discusses business valuations in litigation.  The article explores general expert witness issues in the specific context of valuations for purposes of litigation.  The article reviews […]

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Paul Klockenbrink and Todd Leeson to Speak at VEC’s Employer Advisory Committee Conference

Paul Klockenbrink and Todd Leeson are scheduled to speak at the Virginia Employment Commission’s 2004 Employer Advisory Committee Conference on September 23, 2004 at the Hotel Roanoke & Conference Center.   Paul Klockenbrink will present a workshop entitled Avoiding Litigation When Downsizing the Workforce.  Paul’s presentation will address the risks that employers encounter and provide practical approaches to reducing or eliminating those risks when implementing a reduction in force. Todd Leeson will present a workshop entitled Technology in the Workplace:  Employment Law Issues, Trends and Advice.  In this workshop Todd will discuss the legal issues raised by the new technologies in the […]

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