Recent Articles from All Practice Groups

Federal Arbitration Act Does Not Compel Arbitration For Disputes With Interstate Drivers

In New Prime Inc. v. Oliveira, a driver for an interstate trucking company filed a class action claiming that the company denied its drivers lawful wages. The company, citing the mandatory arbitration provision in the driver’s contract, asked the district court to transfer the case to arbitration. The driver argued that the case was exempt under Section 1 of... Read More >

Are Attorneys Conducting Nonjudicial Foreclosures “Debt Collectors?” U.S. Supreme Court To Decide.

On January 7, 2019, the U.S. Supreme Court will hear argument in Obduskey v. McCarthy Holthus, LLP, in which Wells Fargo, through counsel, conducted a nonjudicial foreclosure on Obduskey’s home after he defaulted on a loan. The foreclosure notice did not request that Obduskey make any payments on the debt—it simply set forth the total amount due under the... Read More >

Court Rejects Cap On Aggregate Attorney Fees Under Social Security Act

Under the Social Security Act, an attorney representing a claimant seeking past-due benefits is limited in the fees he or she may charge. Section 406(a) of the Act capped fees at the lesser of 25 percent of the past-due benefits, or $6,000 in proceedings before the agency. Section 406(b) of the Act capped fees at 25 percent of the... Read More >

Federal Arbitration Act Forbids Courts From Weighing In On Arbitrability

The Federal Arbitration Act permits parties to enter into contracts agreeing that an arbitrator, rather than a court, will resolve disputes arising out of that contract. However, sometimes there are disputes as to whether a particular claim is subject to arbitration under the agreement. Even when contracts delegate the arbitrability question to an arbitrator, some federal courts had reserved... Read More >

Court Upholds Qualified Immunity For Officer Responding To Domestic Dispute

In City of Escondido v. Emmons, Officer Craig and Sergeant Toth responded to a call reporting a domestic dispute at a home. After talking to the occupants from outside the home for a bit, one of the occupants exited and tried to brush past Officer Craig. The officer quickly took the man to the ground and handcuffed him. The... Read More >

Subsequent SCOTUS Decisions Are Not “Clearly Established Law” For Habeas Petitions

After being convicted by Ohio’s state courts for murder and sentenced to death in 1986, Danny Hill challenged the judgment on the basis that the Eighth Amendment prohibits someone who is “mentally retarded” from receiving a death sentence, as established in Atkins v. Virginia, 536 U.S. 304 (2002). When that failed in the state courts, he filed a federal... Read More >

Tax Treaty Interpretation: Nonjusticiable Political Question?

The U.S. Court of Appeals for the District of Columbia reversed and remanded the lower court’s decision in a case involving the interpretation of the US-Switzerland tax treaty. In Starr International Company, Inc. v. United States, No. 1:14-cv-01593  (D.C. Cir. Dec. 7, 2019), Starr sought a tax refund for a portion of the 30 percent withholding taxes automatically... Read More >

Burglary Includes Structures Or Vehicles Adapted To Overnight Accommodation

The criminal defendants in United States v. Sims and United States v. Stitt were both sentenced under the mandatory minimum 15-year prison term provided by the Armed Career Criminal Act, which applies where a defendant had three prior convictions for certain crimes, including “burglary.” Sims and Stitt had each been previously convicted of burglary under state laws, which... Read More >

Court Upholds Challenge To Designation Of A “Critical Habitat”

Under the Endangered Species Act, when an animal is classified as “endangered,” the Secretary of the Interior must then designate the “critical habitat” of that animal for protection. In 2001, the dusky gopher frog was classified as endangered. The Secretary then designated the four areas where the frogs currently lived as critical habitats, along with another area, dubbed “Unit... Read More >

Protect Yourself Against Wire Transfer and Credit Card Fraud

We are seeing two varieties of online fraud, but the good news is securing your information is as easy as a few steps. The first type of fraud involves fake wiring instructions. The criminal learns that a transaction is about to occur and sends an email to a title company, bank, buyer, seller, or real estate agent saying that the wiring instructions... Read More >

Court Rules ADEA Applies To All Governmental Entities Regardless Of Size

When two firefighters were terminated to cut costs, they sued under the Age Discrimination Employment Act, alleging they were discriminated against based on their ages. The fire department argued that it did not have enough employees to qualify as an employer under the Act. The Act provides: “The term ‘employer’ means a person engaged in an industry affecting commerce... Read More >

Are Business Lunches Entertainment?

The new tax legislation, called the Tax Cuts and Jobs Act (TCJA) eliminated most deductions for client entertainment expenses. Prior law allowed a 50 percent deduction for both meals and entertainment expenses, and so there was no need for businesses to differentiate between the two categories. The newly enacted TCJA eliminated deductions for entertainment, amusement, and recreation expenses, but... Read More >

Pending Emergency Legislation to Affect Tax Sales and Recordation Tax on Leases

The Washington, D.C. Council is considering B22-922: Fiscal Year 2019 Budget Support Congressional Review Emergency Act of 2018 which, among many provisions, contains a few changes of interest to real estate practitioners which are found here. Recordation Tax: On leases in excess of 30 years, the Washington, D.C. government may determine the fair market value of the leasehold interest... Read More >

Condo Liens Entitled To Super-Priority Status Regardless Of Number Of Months Sought

Under D.C. Code sec. 42-1903.13, liens imposed by a condominium association for up to six months of unpaid condo fees were entitled to super-priority status ahead of all other liens on the condo. In two prior decisions, the D.C. Court of Appeals held that a foreclosure sale under such a super-priority lien necessarily wiped out all other liens of the... Read More >

D.C. Announces New Tax Rates for First-Time Homebuyer

Washington, D.C.’s innovative First Time Homebuyer’s tax rate reduces the recordation tax to .725 percent. The statute is found at Official Code §42-1101(17). The tax rate and value of the property changes from year to year based upon the C.P.I. Effective on October 1, 2019, the purchase price may not exceed $632,500 and the income for a single-member household may not... Read More >

D.C. Tax Rate Changes Effective October 1, 2018

The District of Columbia’s Office of Tax and Revenue has issued a notification of changes in various tax rates that will become effective on Monday, October 1, 2018. The real property tax for Class 2 properties will increase to $1.65 per $100 of value for properties worth less than $5,000,000; $1.77 from $5 million to $10 million; and $1.89 for... Read More >

Arthur D. Burger to Participate on Panel at the 2018 Judicial Conference of the Occupational Safety & Health Review Commission

On September 13, 2018, Arthur D. Burger will participate on a two-person panel on professionalism and ethics at the 2018 Judicial Conference of the Occupational Safety & Health Review Commission at the Darcy Hotel in Washington, D.C. Assistant Virginia Bar Counsel Kathleen Uston, formerly president of the National Organization of Bar Counsel, is also on the Panel, which... Read More >

Common HIPAA Pitfalls in Health Care Mergers and Acquisitions (and How to Identify Them)

Managing all the moving parts in a health care merger or acquisition is challenging in any transaction. For a small health care provider that does not have multiple attorneys at its beck and call, it can seem downright impossible. In the chaos of a massive exchange of due diligence materials, it is easy to overlook the additional agreements that must... Read More >

New Maryland Statute: Corporate Articles of Transfer No Longer Needed to Transfer Real Property

Until August 2018, Maryland was one of the few states that required a state-based corporation that transfers all of its real property assets to execute and file articles of transfer with the State Department of Assessment and Taxation (SDAT). This regulation is outlined in the Corporations and Associations Article of the Annotated Code of Maryland Section 1-101(y) and 3-109... Read More >

Virginia: No Bona Fide Purchaser of an Easement; Terms of Revocable Trust May Permit Transfer by Non-Trustee

The recent case of Kruck v. Krisak, 2018 WL 2386671 (Fairfax Cir. Ct. 2018) addressed two issues of first impression in Virginia regarding bona fide purchasers and how the transfer of real property to a trust might affect a grant of an easement. The case began with an easement for a septic field that was granted in 1974 by Austin Foster... Read More >

Housing Licensing and TOPA in the District of Columbia

Recent changes to the Tenant Opportunity to Purchase Act (TOPA) in the District of Columbia have had broad repercussions in the single-family rental market. Since TOPA’s inception, the competing purposes of maintaining a rental market and encouraging tenants to leave the rental market and become homeowners have resulted in a structure that is difficult to follow and has... Read More >

Arthur D. Burger to Participate on Panel at the National Legal Malpractice Conference of the American Bar Association

Arthur D. Burger will be a speaker at the National Legal Malpractice Conference of the American Bar Association at Las Vegas on September 27, 2018. He will be joining a panel of legal malpractice experts from the firms of Williams & Connolly, Gibson Dunn, and Lewis Brisbois. The Panel will discuss strategies for defending suits involving allegations against... Read More >

Justice Kennedy Announces His Retirement

After 30 years as an Associate Justice of the U.S. Supreme Court, Justice Anthony M. Kennedy announced his retirement effective July 31, 2018. In a letter to President Trump, Kennedy wrote: “For a member of the legal profession it is the highest of honor to serve on this court. Please permit me by this letter to express my profound gratitude... Read More >

Court Rejects Overly Strict Standard Used By Special Master In State Dispute Over Water Rights

In an original proceeding brought by Florida against Georgia in a dispute over water apportionment from an interstate river basin, the Court referred the matter to a Special Master for evidentiary proceedings. Florida, as the downstream state, argued that Georgia was using more than its fair share of the water from the basin, thereby harming wildlife in Florida. Ultimately the... Read More >

First Amendment Forbids Mandatory Union Fees From Public Sector Unions

Illinois permits public employees to unionize, and Mark Janus was a state employee whose unit was represented by a public-sector union that engaged in collective bargaining on behalf of its members. The union required that Janus pay a union fee, but he objected since he opposed many of the collective bargaining positions the union took. In the previous case of... Read More >

Court Upholds President Trump’s Travel Ban

In 2017, President Trump issued a proclamation restricting entry of people from eight countries, with exemptions for lawful permanent residents and case-by-case waivers under certain circumstances. The stated basis of the travel ban was that the named countries failed to provide the U.S. with sufficient information about the entrants, creating a security threat, although challengers to the ban (except as... Read More >

Court Strikes Down Abortion Notices Under First Amendment

A number of pro-life crisis pregnancy centers mounted a First Amendment challenge to a California law that required licensed medical providers to provide a notice to its patients of the availability of free or low-cost services, including abortions, and required each unlicensed pro-life medical provider to notify patients that it was not licensed. The centers requested a preliminary injunction, which... Read More >

American Express’s “Antisteering” Provisions Survive Antitrust Scrutiny

Like other credit card companies, American Express (AMEX) permits cardholders to purchase things on credit. However, AMEX encourages cardholder spending by providing more benefits to its members, and that results in higher fees charged to merchants. Merchants, in response, sometimes encouraged customers to use other cards, called “steering.” AMEX in turn put antisteering provisions into its merchant contracts. The government... Read More >

Narrow Majority Largely Upholds Texas Redistricting Plan Against Gerrymandering Challenge

Abbott v. Perez presented the third opportunity for the Court to address gerrymandering claims under the Voter Rights Act, this time examining plans approved by the Texas legislature in 2013 that were largely in accordance with interim plans created by a three-judge Texas court. The 2013 plans evolved from earlier 2011 plans that did not meet with any court’s... Read More >