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  • The U.S. Supreme Court issued a per curiam opinion on November 9, 2015.

    In a per curiam opinion the U.S. Supreme Court reversed a decision of the U.S. Court of Appeals for the Fifth Circuit and held that whether a police officer’s use of force was excessive under the Fourth Amendment is determined through an objective reasonableness standard that is a “pure question of law” that can be resolved on summary judgment. The Court further held that on the facts in this case, the officer did act reasonably in shooting at the subject of a high-speed chase in an effort to disable the vehicle, but instead killed the suspect. The opinion noted that the suspect had been reported to be drunk, had been driving at a high rate of speed for a prolonged period, had threatened to shoot officers, and was approaching an officer who had set out a spike trap, reasoning that in such circumstances the officer’s decision to shoot was not “beyond debate” nor “squarely governed” by precedent, and thus the officer was entitled to qualified immunity. Justice Scalia’s concurrence argued that since the purpose of the shots was to disable to vehicle, not harm the suspect, cases involving the use of deadly force did not apply. Justice Sotomayor, in a solo dissent, argued that it was “clearly established under the Fourth Amendment” that the officer’s “rogue conduct” was unlawful, and that he should have waited until he was given the go-ahead by a superior officer, and allowed the spike trap a chance to work, before shooting. The opinion in Mullenix v. Luna is here.

  • The head of our Tax Practice Group, Nancy O. Kuhn published the following blog post, NBC Subsidiary WRC-TV, LLC v. DC Office of Tax and Revenue

    The D.C. Court of Appeals affirmed the ruling of the Administrative Law Judge of the Office of Administrative Hearings in finding that the DC Office of Tax and Revenue (“OTR”) reasonably interpreted a statute defining “Qualified High Technology Company” for purposes of preferential sales/use tax treatment. Although OTR’s narrow interpretation of the statutory language was challenged, the Court of Appeals held that “this [i]s a case justifying significant deference to OTR’s reasonable understanding of a statute that it administers.” The court held that OTR’s interpretation was reasonable against the legislative background. Thus, the taxpayer, NBC Subsidiary WRC-TV, is liable for sales and use taxes in the amount of approximately $78,000. For more information please contact Nancy O.Kuhn at

  • The head of our Tax Practice Group, Nancy O. Kuhn published the following blog post, Home IRS issues proposed Treasury Regulations regarding the definition of “Marriage” for purposes of Federal taxes.

    On October 21, 2015, the Internal Revenue Service issued proposed amendments to Income Tax, Estate Tax, and Gift Tax Regulations which include the term “marriage” and which describe the marital status of taxpayers. For purposes of all such Treasury Regulations, the IRS verified that it will recognize all legal marriages under any state law. When terms such as husband and wife are used in the Regulations, those terms are to be interpreted without regard to gender. Marriages of same-sex couples are to be treated the same as marriages of couples of the opposite-sex. The IRS further clarified that civil unions, registered domestic partnerships, or similar relationships recognized under state law are not equivalent to “marriage” and the terms “husband”, “wife”, “spouse” do not include individuals who have entered into such relationships. REG-148998-13; 26 CFR Parts 1, 20, 25, 26, 31, and 301. For more information please contact Nancy O.Kuhn at

  • The head of our Tax Practice Group, Nancy O. Kuhn published the following blog post, Home Mortgage Interest: Unmarried Couple Wins With Double Deduction

    Voss v. Commissioner of Internal Revenue, No. 12-73257 and Sophy v. Commissioner of Internal Revenue, No. 12-73261 (9th Cir. August 7, 2015): In a case of first impression, the Ninth Circuit Court of Appeals reversed the Tax Court and held that the limitations on the home mortgage interest deduction apply to each individual owner, with married couples treated as one owner, rather than for each qualified residence. Bruce Voss and Charles Sophy are co- owners of two properties as joint tenants, and are domestic partners registered with the State of California. Accordingly, they file each their tax return with the “Single” filing status. The Ninth Circuit held that each of them could deduct the full amount of the interest they each paid on their jointly owned properties, even though together the deductions were in excess of the $1 million limit on home acquisition debt and $100,000 on home equity debt applied to married couples. The Court analyzed whether the language in the Internal Revenue Code supported an interpretation that the limits applied per residence or per taxpayer. While the Tax Court concluded the language supported an interpretation of applying the limitations “per residence”, the Ninth Circuit concluded the language supported “per taxpayer” and reversed and remanded the Tax Court opinion. While acknowledging that this creates a marriage penalty, the Court noted that taxpayers in the category of “Married Filing Joint” generally have the benefit of a lower tax rate.

  • The head of our Professional Responsibility practice, Arthur D. Burger, published an article in the ABA/BNA Lawyers’ Manual on Professional Conduct™ entitled "Advance Waivers: Be Specific or Don’t Count on Them" Please read the article here.

  • The head of our Professional Responsibility practice, Arthur D. Burger, was quoted in a National Law Journal article about lawyer-discipline by the D.C Circuit Court of Appeals. Please read the article here.

  • When Fidelity First Home Mortgage Company was found liable by a jury under the doctrine of respondeat superior when one of its loan officers engaged in a fraudulent foreclosure rescue scheme, it sued the loan officer seeking indemnification and contribution. The loan officer claimed that Fidelity’s claims were discharged in his prior no-asset Chapter 7 bankruptcy, and that Fidelity’s negligence in supervising him precluded its claims. The circuit court granted summary judgment to Fidelity, and the Court of Special Appeals, in a unanimous panel opinion by Judge Graeff, affirmed. First, noting that the loan officer had failed to list Fidelity as a creditor in his bankruptcy, the Court held that the circuit court therefore had concurrent jurisdiction to determine whether Fidelity’s debt was discharged. It then held that since the loan officer’s conduct involved fraud, Fidelity’s claim was nondischargeable under the fraud exception even though it was seeking indemnification and contribution, as opposed to claiming that it had been defrauded. Finally, the Court held that there was no finding at trial that Fidelity engaged in “active, independent negligence” that would bar it from seeking indemnification against the loan officer. The opinion in Fox v. Fidelity First Home Mortgage Company, issued on July 1, 2015, is here.

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