The Library

When someone injures you, a family member or your business, your first reactions are often purely emotional. “How could this happen to me, my family member, or my business?” The second reaction is to seek the advice of a healthcare provider or other professional who can help you “fix” the injury or problem. Rarely do people realize that they should SIMULTANEOUSLY be making sure that all evidence in their and other people’s hands is PRESERVED. Preservation of evidence is the subject of many voluminous treatises. However, it is simple. Anything that has to do with the accident or injury should […]

There comes a time for most businesses when a current executive or employee decides to leave and establish a competing business. Like a divorce between husband and wife, there can be significant emotional and financial ramifications. The departing individual has likely spent years with the company developing relationships with co-workers. Such relationships are based on trust, respect, and a degree of dependency. These relationships can extend beyond the workplace and take on a personal nature. When an individual departs to compete against the former employer, those left behind may experience a sense of betrayal. There can also be a significant […]

Most litigators have encountered the situation where their client has “gone off the rails” at his or her deposition. There can be a strong pull to want to rehabilitate or reassure the client during a break or recess, or even request a break for that purpose. But is such conduct ethical? And will attorney-client communications during breaks or recesses in depositions be discoverable by opposing counsel? There is a split of authority on this issue. In one of the seminal cases, the Eastern District of Pennsylvania held that private attorney-client conferences were prohibited both during the deposition and during deposition […]

Much has been written about the expanding role of OSHA in investigating and enforcing the whistleblower protection provisions of 22 federal safety and consumer protection laws and for good reason. In just the past two months, OSHA has issued Interim Final Rules outlining its procedures for processing whistleblower claims arising under the Food Safety Modernization Act (FSMA) and the Consumer Financial Protection Act (CFPA) (collectively the “Interim Rules”).1 In all material aspects, these procedures are consistent with the Interim Final Rules previously issued to process and decide whistleblower complaints made under the Affordable Care Act (ACA), and the Final Rules for […]

The VTLA just wrapped up another terrific annual meeting at the Homestead. I learned many things during the CLE sessions, including that I would like to be Mike Imprevento when I grow up. But one of the absolute highlights of the meeting was a session called “Supreme Court Thoughts and Muses,” in which Jeffrey Breit moderated a panel made up of Justice Lemons, Justice McClanahan, and Justice Powell. One of Breit’s best questions was something along the lines of: “When we are arguing before a writ panel, how do we get the Court to want to grant our appeal?” This […]

When people hear “intellectual property” they often think of complicated software source codes, top-secret formulas or sophisticated patents developed by large tech companies headquartered in the Silicon Valley. What most business owners do not realize is that every company has intellectual property (“IP”) and they do not have to be Google or Facebook to benefit from it. Smaller, closely-held companies of all kinds here in the Roanoke and New River Valleys can, and do, benefit greatly from protecting and taking advantage of their IP. Whether your business is in the market of developing software for use by professional institutions or […]

Dunlap v. Cottman Transmission Systems, LLC — Another Round for Contract v. Tort Claims in Virginia Contracts. Torts. These twin pillars of U.S. jurisprudence are core curriculum at every law school. But just like they are taught separately, courts take pains to keep these theories of liability distinct from one another. The Supreme Court of Virginia is no different. A legion of cases stand for the seemingly straightforward proposition that mere breach of a contract cannot constitute a tort. The practical meaning of this principle, however, continues to be defined and refined. Four years ago, the Supreme Court applied this […]

On March 13, President Obama prominently “used his pen” in a ceremony in which he announced the Administration’s intent to give more Americans the chance to earn the overtime pay that “they deserve.” What the President actually did was sign a memo addressed to the new Secretary of the Department of Labor to consider how the white collar overtime exemptions can be changed in order that more people will be eligible to earn overtime. At present, to qualify for one of three “white collar” exemptions, an employee must be paid at least $455.00 a week on a “salaried” basis and […]

Well, it appears that the Carnell Construction case is not over yet, and it continues to create interesting construction law precedent. The Fourth Circuit is sending the case back down for trial number four! This case is starting to remind me of the famous Zubulake cases, with its several important e-discovery opinions numbered Zubulake I through V. A quick look on Google Scholar shows fifteen Carnell opinions! So, let’s take a look at the latest iteration (perhaps, we should call it Carnell XV) as it relates to construction law. Note that there are many interesting (and apparently controversial – check […]