Tuesday, March 24th, 2020
In the challenging times of COVID-19 related lockdowns and stay at home orders, the occasional good news story is a welcome departure from the daily gloom bombarding your email inbox and the newspaper pages. The Roanoke Times ran an article concerning the status of outdoor construction projects in the region. The article quotes Gordon Dixon, CEO of the AGCVA, and a friend of ours, who reports that as of this week, the AGCVA has not received reports of significant shutdowns. Mr. Dixon also noted that the situation is changing daily, and that contractors remain concerned about the potential unavailability of inspectors to review and approve work. The City of Roanoke’s inspectors continue to carry out inspections, and the article specifically notes that the Fralin Biomedical Research Institute project on the Virginia Tech-Carilion campus is continuing. The article does point out that certain private projects are currently on hold at the request of the project owners, quoting Sam Lionberger, III of Lionberger Construction. VDOT confirmed that its projects in the region are continuing. Also of concern is a note that planning commission activities are suspended, which will delay the commencement of some future projects.
Stay safe and healthy out there.
Wednesday, March 18th, 2020
Last updated: March 18, 2020
Just a little over a month ago, on February 11, 2020, the World Health Organization (WHO) announced a name for the new coronavirus illness: COVID-19. A month later, on March 11, 2020, the WHO characterized COVID-19 as a pandemic.
In the week since the WHO’s announcement that COVID-19 is a pandemic, we have seen restrictions on travel, limitations on gatherings, as well as schools, businesses, and non-essential governmental operations shut down physical offices, moving toward remote work when and where possible. At the local, state, and federal levels, we are seeing an unprecedented response from our government officials in an effort to change the course of this pandemic. On social media #socialdistancing and #flattenthecurve are trending. But what does this mean for you and your business? Will COVID-19 affect your ability, directly or indirectly, to force your vendors and suppliers to perform? What if your supply of goods or workers is interrupted and your performance schedule is shifted or remains up in the air? These are all questions that are facing many of our clients.
If these are questions that you have for your business, we strongly recommend discussing with your attorney. The question of what defenses may be available to excuse nonperformance or delayed performance, through force majeure contractual clauses or other mechanism, such as statutory or common law excusable nonperformance, are largely facts and circumstances driven. An attorney will work with you to gather the necessary information in order to evaluate your situation. For example: Do you have a written contract? If you have a written contract, your attorney will likely need to review the entire agreement, because we need to see not only whether it has a force majeure clause, but other key terms like choice of law, notice requirements, and term and termination provisions. What is the nature of the services or goods that are the subject of the agreement, and how is the current pandemic affecting your or your vendor/supplier/service provider’s ability to perform? How are you working to mitigate losses? Will your business interruption or disruption insurance cover what we are experiencing, or is a viral outbreak excluded from coverage?
Just because you have a force majeure clause in a contract, and it lists epidemic or a pandemic as a possible force majeure event, that does not mean that COVID-19 will automatically excuse nonperformance or delayed performance. Similarly, if you have a force majeure clause that does not specifically list an epidemic or pandemic as a triggering event, if your contract is silent to such events, or if you have no written contract at all, that does not mean that there is no excuse for nonperformance or delayed performance as a result of this pandemic. Particularly when a contract is silent as to force majeure, courts will look at the whether the events were foreseeable or unforeseeable when you entered into the contract, and whether performance is impractical or impossible, all of which can turn on facts and circumstances that are unique to you and your situation.
While writing this news alert, all levels of government are working to address the stresses this pandemic places on our economy, and we can anticipate additional assistance and guidance may be forthcoming. If you have questions or issues regarding what the current pandemic can mean for your business, Gentry Locke attorneys are available to assist. We have implemented our business continuity plan and continue to maintain full operations during this evolving situation, all while we continue to monitor updates from our government officials. Continue to check www.gentrylocke.com for updates to this news alert.
Tuesday, February 18th, 2020
ROANOKE, Va. (February 18, 2020) – The Virginia law firm of Gentry Locke is pleased to announce that Partner Evans G. Edwards has been named the recipient of the firm’s 2019 Pro Bono Promise Award. The award recognizes pro bono work that exceeds the 2% yearly aspirational goal set by the Supreme Court of Virginia, either quantitatively or qualitatively. In 2019, Evans dedicated almost 100 hours to pro bono efforts.
“As a firm, we recognize the importance of making legal representation available to everyone. We are proud of the commitment of Evans and others within the firm to make sure this happens,” said Gentry Locke Managing Partner Monica Taylor Monday.
In 2019, Edwards’ pro bono efforts included representing an individual in the circuit court and Supreme Court of Virginia involving a property rights and trespass issue. The Supreme Court of Virginia has agreed to hear the appeal of the client’s claim.
About Gentry Locke
With more than 60 lawyers practicing across a range of disciplines, Gentry Locke brings uncommon thinking and deep experience to the legal and business challenges of companies, institutions, organizations and individuals—a commitment the firm has met since 1923. Operating from offices in Roanoke, Lynchburg, and Richmond, Virginia, Gentry Locke serves clients in Virginia and across the United States. Meet the firm’s dynamic attorneys and learn more about its fierce drive to achieve success for its clients by exploring www.gentrylocke.com.
Friday, January 24th, 2020
RICHMOND, Va. (January 23, 2020) – The Virginia law firm of Gentry Locke is pleased to announce that Richmond Partner Chip (John G.) Dicks has been inducted into the Virginia Law Foundation Fellows Class of 2020. Inductees were formally honored at the Virginia Law Foundation’s annual dinner on January 23.
The Virginia Law Foundation is the charitable arm of the Virginia Bar Association. Fellows are recognized as leaders in the profession, both in their practices and their communities. They comprise a group of nearly 500 of the best and brightest legal practitioners who are committed to the highest ideals of the law and to the concept of citizen lawyer. Fellows are nominated confidentially by their peers.
“We congratulate Chip on this prestigious distinction, and are grateful for the example he sets through his many contributions to Gentry Locke, the bar and our community,” said firm Managing Partner Monica T. Monday.
Chip is a former member of the Virginia House of Delegates, and served on the Courts and Education committees. Chip also served on the Virginia Housing Commission as a House member. Since leaving the Legislature in 1990, he has represented associations and businesses on administrative, legislative and regulatory matters before state government agencies and the General Assembly. He has experience representing developers on a variety of land use applications across Virginia. He also has experience in the laws and regulations affecting billboard signs, and in the field of landlord tenant and fair housing laws. Chip joined Gentry Locke in 2018 to practice with the firm’s Government & Regulatory Affairs group. He currently belongs to the Virginia Economic Developers Association, Virginia Public Action Project, Virginia Free, The Virginia Bar Association, Virginia Apartment and Management Association, RVA Chamber, Chesterfield Chamber and Virginia Chamber.
Chip joins a group of current and former Gentry Locke attorneys who have been inducted as Fellows, including: Managing Partner Monica Taylor Monday (Class of 2011); Partner K. Brett Marston (Class of 2019); Partner Thomas J. Bondurant, Jr. (Class of 2015); Partner W. David Paxton (Class of 2014); Partner Bruce C. Stockburger (Class of 2013); Partner Glenn W. Pulley (Class of 2012); Partner G. Franklin Flippin (Class of 2000); Retired Partner J. Rudy Austin (Class of 1995); Senior Counsel William R. Rakes (Class of 1993) and Senior Counsel S.D. Roberts Moore (Class of 1989).
About Gentry Locke
With more than 60 lawyers practicing across a range of disciplines, Gentry Locke brings uncommon thinking and deep experience to the legal and business challenges of companies, institutions, organizations and individuals—a commitment the firm has met since 1923. Operating from offices in Roanoke, Lynchburg, and Richmond, Virginia, Gentry Locke serves clients in Virginia and across the United States. Meet the firm’s dynamic attorneys and learn more about its fierce drive to achieve success for its clients by exploring www.gentrylocke.com.
Thursday, January 23rd, 2020
Tuesday, January 21st, 2020
ROANOKE, Va. (January 21, 2019) – The Virginia law firm of Gentry Locke is pleased to announce the appointment of following individuals to serve on the firm’s Management Committee for 2020:
The Management Committee, led by Monica T. Monday, oversees all firm operations and strategies, including decisions involving organizational structure, budget, business development, recruiting and more. Monday has served as the firm’s Managing Partner since 2013.
About Gentry Locke
With more than 60 lawyers practicing across a range of disciplines, Gentry Locke brings uncommon thinking and deep experience to the legal and business challenges of companies, institutions, organizations and individuals—a commitment the firm has met since 1923. Operating from offices in Roanoke, Lynchburg, and Richmond, Virginia, Gentry Locke serves clients in Virginia and across the United States, as well as worldwide as a member firm of the ALFA International Legal Network. Meet the firm’s dynamic attorneys and learn more about its fierce drive to achieve success for its clients by exploring www.gentrylocke.com.
Thursday, January 16th, 2020
Gentry Locke has launched a crucial web page to help people who have suffered a traumatic brain injury. The page is a great resource for victims of traumatic brain injury and their families.
On this web page, you’ll find:
- Video describing how injuries like these are diagnosed, treated, and managed
- Definitions of common medical terms
- Types and causes of traumatic brain injuries
- Symptoms complicating traumatic brain injuries
- Resources to help family members
Traumatic brain injuries are one of the leading causes of disability in the United States, and can be caused by blows or jolts to the head during collisions with trucks or cars, plane or boating accidents, physical assaults, falls, and other incidents.
Non-traumatic brain injuries can be caused by lack of oxygen to the brain, strokes, cardiac arrest or medical errors.
In addition to affecting physical abilities, brain injuries can lead to serious and often permanent changes in personality, mental ability, emotional responses, communication skills and more. Victims may become confused, irritated, depressed or even violent. It can be a very difficult situation for family members.
Depending on the type and severity of the injury, these changes can fade over time or have a lifetime impact.
Gentry Locke’s skilled and experienced attorneys have helped many families work through the issues associated with traumatic brain injuries. They can explain the things you need to consider to help make the “new normal” as successful as possible.
Thursday, January 9th, 2020
ROANOKE, Va. (January 9, 2020) – The Virginia law firm of Gentry Locke is pleased to announce that Partner K. Brett Marston has been selected by the American Arbitration Association (AAA) to serve as an arbitrator on its Construction Panel. In addition to his role at the firm, Marston will handle AAA arbitration on construction-industry disputes.
“Brett has deep experience in construction law and he will be a thoughtful and efficient arbitrator,” said Gentry Locke Managing Partner Monica Taylor Monday.
The not-for-profit American Arbitration Association® (AAA®)-International Centre for Dispute Resolution® (ICDR®) is the largest private global provider of alternative dispute resolution (ADR) services in the world. The AAA-ICDR aims to move even the most complicated, multi-faceted cases through mediation and arbitration fairly and cost effectively, with the goal of getting parties back to business as soon as possible. The AAA-ICDR Roster of Arbitrators and Mediators is composed of distinguished former judges and leaders in the legal and business communities with industry-specific knowledge and expertise.
Marston chairs the firm’s Construction Law practice group and has extensive experience in construction contract negotiations and preparation, payment disputes, mechanic’s liens, bond claims, construction defects, delay claims, insurance and OSHA matters. He handles significant construction matters in federal and state courts, arbitration and mediation for general contractors, subcontractors, owners, design professionals and suppliers. Marston was inducted into the Virginia Law Foundation Fellows Class of 2019, and is consistently selected for inclusion in the annual Virginia Super Lawyers list, has consecutively made their Virginia “Top 10” and “Top 100” lists, and has thrice been named Roanoke Lawyer of the Year for Construction Law by The Best Lawyers in America. Marston was named to the 2018 class of “Leaders in the Law” by Virginia Lawyers Weekly. He earned his B.A. from the University of Virginia and his J.D., with distinction, from the George Mason University School of Law.
About Gentry Locke
With more than 60 lawyers practicing across a range of disciplines, Gentry Locke brings uncommon thinking and deep experience to the legal and business challenges of companies, institutions, organizations and individuals—a commitment the firm has met since 1923. Operating from offices in Roanoke, Lynchburg, and Richmond, Virginia, Gentry Locke serves clients in Virginia and across the United States, as well as worldwide as a member firm of the ALFA International Legal Network. Meet the firm’s dynamic attorneys and learn more about its fierce drive to achieve success for its clients by exploring www.gentrylocke.com.
Tuesday, January 7th, 2020
ROANOKE, Va. (January 7, 2020) – The Virginia law firm of Gentry Locke is pleased to announce the promotions of Andrew M. Bowman, Jennifer S. DeGraw, Evans G. Edwards, Andrew D. Finnicum and Amanda M. Morgan to the partnership, effective January 1, 2020.
“Each of them has unique talents that make us stronger as a firm,” said Gentry Locke Managing Partner Monica Monday. “We congratulate them on this important achievement.”
Bowman is a member of the firm’s litigation practice. He focuses on complex cases, including whistleblower and qui tam litigation, commercial disputes, catastrophic injury cases, and medical malpractice. In 2019, Bowman was a key member of the Gentry Locke trial team that secured a win in one of the largest False Claim Acts cases involving scientific research grant fraud in U.S. history. He joined the firm in 2015 after serving as Law Clerk to the Honorable Patrick R. Johnson. Bowman earned his B.S. degree in Molecular Genetics from the University of Rochester in New York and his J.D. from the University of Richmond School of Law.
Before joining Gentry Locke’s criminal & government investigations practice, DeGraw served as a Special Assistant United States Attorney in the United States Attorney’s Office for the Western District of Virginia. Prior to that, she was an Assistant District Attorney in North Carolina. DeGraw has successfully tried eight federal criminal jury trials and hundreds of federal and state criminal bench trials. Currently, she focuses her practice on defending white-collar criminal matters in federal court. DeGraw earned her B.A. degree from the University of North Carolina at Chapel Hill, and her J.D. from Wake Forest University School of Law.
Edwards is a member of Gentry Locke’s plaintiff’s and worker’s compensation practice groups. In his personal injury practice, he assists individuals who have been harmed due to the negligence or misconduct of others, particularly those injured through medical negligence, defective or unreasonably dangerous products, and in truck and motor vehicle collisions. In his workers’ compensation practice, he has handled hundreds of claims for both employers and injured workers. In both practices, Edwards has helped the Firm’s individual clients obtain judgments and awards in excess of $1 million. He was previously an attorney for the FBI and worked as a professional firefighter-medic for the City of Lexington and in Fairfax County for nearly a dozen years following 9/11. He has a particular interest in the representation of police, fire and EMS personnel. He graduated summa cum laude and salutatorian from Washington & Lee University with a B.A. degree in economics and was also a two-time Academic All-American in football. He earned his J.D. from Yale Law School where he was a judicial intern for the Honorable Ralph K. Winter, U.S. Circuit Court of Appeals for the Second Circuit.
Finnicum, a member of the firm’s plaintiffs practice, helps people who have suffered personal injury due to negligence or workplace accidents. He has recovered millions of dollars for clients throughout Virginia who have been injured or lost their lives in boating, trucking, and motor vehicle crashes, are victims of medical malpractice, or have suffered workplace injuries that entitle them to workers’ compensation benefits. Finnicum has represented clients before the Workers’ Compensation Commission, the General District Courts of Virginia, the Circuit Courts of Virginia, the Court of Appeals of Virginia, the Supreme Court of Virginia, the United States District Courts of the Eastern and Western Districts of Virginia, the United States Court of Appeals for the Fourth Circuit, the Judicial Panel on Multidistrict Litigation, and the United States District Court for the Central District of California. He received his B.S. summa cum laude, from Liberty University Helms School of Government and his J.D. magna cum laude, from Washington & Lee University School of Law.
Morgan is a member of the firm’s commercial litigation practice group where she represents government, corporate and individual clients in a variety of complex matters ranging from business disputes to product and premises liability to estate litigation. She also handles cases in the firm’s personal injury and employment law practice groups. Prior to joining the firm in 2015, Morgan’s practice was primarily dedicated to insurance defense litigation, real estate and local government matters with law firms in Danville and South Boston, Virginia. She received her undergraduate degree from the University of North Carolina at Chapel Hill and received her J.D, magna cum laude, from the University of Richmond.
About Gentry Locke
With more than 60 lawyers practicing across a range of disciplines, Gentry Locke brings uncommon thinking and deep experience to the legal and business challenges of companies, institutions, organizations and individuals—a commitment the firm has met since 1923. Operating from offices in Roanoke, Lynchburg, and Richmond, Virginia, Gentry Locke serves clients in Virginia and across the United States. Meet the firm’s dynamic attorneys and learn more about its fierce drive to achieve success for its clients by exploring www.gentrylocke.com.
Friday, January 3rd, 2020
ROANOKE, Va. (January 3, 2020) — As the rest of the country rang in the new year, Landowners in Virginia who own property on the route of the Mountain Valley Pipeline were hard at work, quietly filing a constitutional case in the U.S. District Court for the District of Columbia.
The lawsuit was filed against the Federal Energy Regulatory Commission (FERC) and the Mountain Valley Pipeline (MVP).
The case centers around three constitutional principles involving delegations of Congressional power:
- A broad delegation of power is unconstitutional
- Delegating delegated power is unconstitutional
- Delegating legislative power to a private entity is unconstitutional
“When it comes to eminent domain, FERC has far too much power and discretion,” said Gentry Locke lawyer Mia Yugo, attorney for landowners.
“The vesting clauses of Articles I, I, and III were designed to uphold the strict separation of powers between the three branches of government,” Yugo said. “Congress, which was entrusted with legislative power, is not permitted to delegate that power to the executive branch or to an unelected regulatory agency without constitutionally adequate limitations.”
If a delegation of power is overly broad, the judiciary has an obligation to reign in Congress’s actions, and the U.S. Supreme Court has recognized as much.
The Complaint is a facial constitutional challenge, which raises three Counts.
Count I is about an overly broad delegation of power by Congress to FERC. When it enacted the Natural Gas Act, Congress delegated to FERC the legislative power to decide who can exercise eminent domain without providing FERC with a test to use when making its decisions. Instead, Congress told FERC to make its own test. In doing so, Congress violated the non-delegation doctrine.
Counts II and III both involve delegations of eminent domain power to a private entity. Count II is premised on the idea that the power went from Congress to FERC and then to the private entity. This violates the prohibition on the sub-delegation of powers.
Alternatively, Count III is premised on a direct delegation from Congress to the private entity. Because eminent domain power is legislative in nature, it cannot be delegated directly to a private entity. This violates the private non-delegation doctrine. The private non-delegation doctrine says that Congress cannot delegate legislative power to a private entity. (“When it comes to private entities, however, there is not even a fig leaf of constitutional justification. Private entities are not vested with ‘legislative Powers.’ Art. I, §1.”) (Alito, J., concurring).
As a result, Plaintiffs are seeking a declaratory judgment declaring that FERC has no authority to issue certificates and that all such certificates already issued are void.
While this theory has been dormant for 84 years, the United States Supreme Court appears ready to revive it.
Lawyers and Law firms involved:
Gentry Locke – Partner Thomas J. Bondurant, Jr. and Mia Yugo
Hafemann, Magee & Thomas, LLC – John R. Thomas, Jr. (D.C. Counsel)
