Category Archives: Litigation

SCOTUS Opinion: Virginia’s House of Delegates Lacks Standing To Challenge Redistricting Order

After Virginia redrew its districts following the 2010 census, 11 of those districts were held to be unconstitutionally drawn as being racially gerrymandered. Virginia’s Attorney General, a Democrat, declined to appeal the ruling. However, the Virginia House of Delegates, controlled by the Republicans, chose to appeal that ruling directly to the Supreme Court, arguing that the districts were constitutional. Justice... Read More >

SCOTUS Opinion: Court Retains Dual-Sovereignty Doctrine Exception To Double Jeopardy Rule

Under the Fifth Amendment, defendants may not be indicted for the same crime twice—otherwise known as double jeopardy. However, the Court had, since Heath v. Alabama, 474 U.S. 82 (1985), held that double jeopardy did not occur when the same offense was prosecuted by different sovereigns, thus creating the “dual-sovereignty doctrine.” In Gamble v. United States, Terance Gamble was... Read More >

SCOTUS Opinion: Private Nonprofit Corporation Operating Public Access Channels Not A State Actor Subject To First Amendment

New York City designated Manhattan Neighborhood Network, a privately owned nonprofit corporation, to operate its public access channels on the cable system in Manhattan. Two filmmakers produced a film attacking the Network to be run on the public access channels. The Network aired the film, but then suspended the filmmakers from the Network’s services and facilities. The filmmakers sued, alleging... Read More >

SCOTUS Opinion: Court Upholds Virginia Ban On Uranium Mining

Virginia law flatly bans uranium mining in the Commonwealth. In Virginia Uranium, Inc. v. Warren, a company sought to circumvent that state law by arguing that the federal Atomic Energy Act preempted Virginia’s law, and put the Nuclear Regulatory Commission in charge of uranium mining. The company lost before the district court and the Fourth Circuit. The Supreme... Read More >

SCOTUS Opinion: Court Broadens Definition Of Generic Burglary Under Armed Career Criminal Act

After Jamar Quarles pled guilty to being a felon in possession of a firearm, prosecutors sought to give him an enhanced sentence under the Armed Career Criminal Act because he had at least three prior “violent felony” convictions. The Act defines “burglary” as being a violent felony, meaning “unlawful or unprivileged entry into, or remaining in, a building or structure,... Read More >

SCOTUS Opinion: The Government Is Not A “Person” That Can Institute A Patent Review Under America Invents Act

The Leahy-Smith America Invents Act contains provisions allowing a “person” other than a patent owner to use three types of administrative review to challenge the validity of a patent after it has been issued, with appeal rights to the Federal Circuit. In Return Mail, Inc. v. United States Postal Service, Return Mail obtained a patent for processing undeliverable... Read More >

SCOTUS Opinion: Court Holds Outer Continental Shelf Lands Act Preempts State Employment Law

Brian Newton worked on a drilling platform off the California coast, where his employer paid him for time on duty but not for his time on standby, when he could not leave the platform. He filed a class action in California state court, arguing that state law required the employer pay for standby time. The employer removed the case to... Read More >

SCOTUS Opinion: Court Sets “No Objectively Reasonable Basis” Standard For Violation Of Bankruptcy Discharge Orders

After Bradley Taggart was civilly sued for violating a business operating agreement, but before the case went to trial, he filed for Chapter 7 bankruptcy and received a discharge. After the discharge was granted, the civil suit recommenced and Taggart lost. The winners sought their attorneys’ fees incurred after Taggart’s petition was filed, which normally were discharged unless Taggart had... Read More >

SCOTUS Opinion: Medicare Act Requires Notice And Comment Before Any Changes To “Medicare Fraction”

Under the Medicare Act, the enforcing agency is required to go through a public notice and comment period before changing any “substantive legal standard” affecting Medicare benefits. 42 U.S.C. sec. 1395hh(a)(2). Under Medicare Part A, the federal government paid hospitals who served low-income patients through a “Medicare fraction,” which was calculated by dividing the time spent by a hospital... Read More >

SCOTUS Opinion: Title VII Claims Not Limited To Those Made To Equal Employment Opportunity Commission

In Fort Bend County, Texas v. Davis, Lois M. Davis filed a charge of sexual harassment and retaliation for reporting the harassment with the Equal Employment Opportunity Commission (EEOC). While the EEOC was investigating, the employer fired Davis when she went to a church function instead of work on Sunday. Davis handwrote “religion” on an intake questionnaire to... Read More >

SCOTUS Opinion: Time Served On A New Conviction Tolls The Supervised Release Period

While on supervised release after serving time for violating federal law, Jason Mont was arrested under state law for drug trafficking. He entered into a plea agreement. After his supervised release period expired, he was sentenced in state court, and credited with time served. The federal court then issued a warrant based on his violation of his supervised release. Mont... Read More >

Washington, D.C. Real Estate Update: May 2019

On May 16, 2019, the District of Columbia Court of Appeals issued a new opinion in SJ Enterprises, LLC v. Quander that is of significant importance. In this matter, Dianne Quander leased commercial premises to SJ Enterprises, LLC for an initial term of five years with two additional five year renewal options. The initial term was set to expire on November... Read More >

SCOTUS Opinion: Court Upholds Law Regarding Disposal Of Aborted Fetus Remains

Indiana passed a law preventing abortion providers from treating aborted fetuses as waste that could be incinerated with surgical byproducts, and also barred abortion providers from conducting abortions when the mother’s reason for aborting was sex, race, or disability selective. The Seventh Circuit invalidated both provisions, holding that the first was not rationally related to a legitimate government interest, and... Read More >

SCOTUS Opinion: Third-Party Counterclaim Defendants Cannot Remove State Cases To Federal Courts

In Home Depot U.S.A., Inc. v. Jackson, Citibank filed a state debt-collection action against George Jackson for charges on his Home Depot card. Jackson counterclaimed against Citibank and filed third-party class-action counterclaims against Home Depot and another company, alleging a scheme in which those companies induced consumers to buy water treatment systems at inflated prices. Citibank dismissed its claims... Read More >

SCOTUS Opinion: Probable Cause To Arrest Defeats A First Amendment Retaliatory Arrest Claim

In Nieves v. Bartlett, during a winter sports festival, an intoxicated Russell Bartlett confronted Sergeant Nieves who was talking to other attendees, and told the officer to leave. Nieves backed off, but later Bartlett physically interfered with another officer’s questioning of an attendee, and Nieves initiated arrest. Bartlett was slow to comply and was handcuffed on the ground. Bartlett... Read More >

SCOTUS Opinion: Court Clarifies “Clear Evidence” Standard For Failure-To-Warn Claims

Merck manufactured the drug Fosamax to combat osteoporosis in postmenopausal women. Merck’s scientists theorized that use of Fosamax might cause atypical femoral fractures, but the drug label approved by the Food and Drug Administration in 1995 did not include a warning for those fractures. After 1995, evidence of such fractures started to develop. In 2008, Merck applied to the FDA... Read More >

SCOTUS Opinion: Court Preserves Indian Treaty Hunting Rights

In 1868, the United States and the Crow Tribe entered into a treaty in which the U.S. got most of the Tribe’s land in modern-day Montana and Wyoming, in exchange for hunting rights in unoccupied land. In Herrera v. Wyoming, Tribe member Clayvin Herrera was charged with off-season hunting in the Bighorn National Forest, and Wyoming’s appellate courts affirmed... Read More >

SCOTUS Opinion: Trademark Rights Survive Contract Rejection In Bankruptcy

Under bankruptcy law, a debtor may reject any executory contract, being a contract where performance remains due on both sides. In Mission Product Holdings, Inc. v. Tempnology, LLC, Tempnology entered into an executory contract giving Mission a license to use its trademarks. Tempnology then filed for Chapter 11 bankruptcy, and asked the Bankruptcy Court to allow it to reject... Read More >

SCOTUS Opinion: Court Permits iPhone Customers To Make Monopoly Claim Against Apple For App Store

Since 2008, Apple Inc. has established its App Store as the only lawful location that iPhone users could purchase apps for their devices. In Apple, Inc. v. Pepper, some of those iPhone customers sued Apple, alleging that it was using illegal monopolistic practices to overcharge them for the apps. At the initial stage of the litigation, Apple moved to... Read More >

SCOTUS Opinion: States Are Immune From Private Suits Filed In Other States

Gilbert Hyatt made millions from a technology patent he developed while living in California. Prior to receiving the patent, he moved to Nevada, which has no income tax. The Franchise Tax Board of California thought his move was a sham, and began auditing him. Hyatt sued the Board in Nevada, claiming that the Board had committed numerous torts during its... Read More >

SCOTUS Opinion: Court Expands Limitations Period For Qui Tam Actions

Under the False Claims Act, a qui tam civil action must be brought either within six years of the alleged statutory violation, or three years after the U.S. official charged with responsibility to act knew or should have known the relevant facts, but not more than 10 years after the violation, whichever is later. The issue in Cochise Consultancy,... Read More >

Virginia Supreme Court: Collateral Source Rule Can Apply To Contract Cases

In Dominion Resources, Inc. v. Alstom Power, Inc., the U.S. District Court for the District of Connecticut certified the following question to the Virginia Supreme Court: “Does Virginia law apply the collateral source rule to a breach of contract action where the plaintiff has been reimbursed by an insurer for the full amount it seeks in damages from the... Read More >

SCOTUS Opinion: Federal Tort Claims Act Does Not Shield The Tennessee Valley Authority From Tort Suits

Congress created the Tennessee Valley Authority (TVA) as a wholly owned public corporation of the United States to promote the economic development of the Tennessee Valley, and established that it could “sue and be sued in its corporate name.” One day, TVA workers were raising a power line that had fallen into the Tennessee River when Gary Thacker speedily drove... Read More >

Maryland Real Estate Update: April 2019

On April 19, 2019, Judge Messitte of the United States District Court for the District of Maryland issued an unpublished opinion in Elm Cabin John, LLC v. United Bank that is certainly noteworthy for real estate practitioners. In this matter, Ms. Nancy Long owned three parcels in Montgomery County. As an individual in her 80s during the subject transactions, she is... Read More >

DC Circuit Applies Discovery Rule To Erroneous Land Surveys Of Commercial Land

The case of Commonwealth Land Title Insurance Company v. KCI Technologies, Inc., concerns a title insurance company’s suit against two surveyors whose surveys failed to find a 12-inch encroachment on a parcel of commercial real property. Before purchasing the property, ICG 16th Street Associates commissioned a land survey that found no encroachment. The next year, it purchased the property... Read More >

SCOTUS Opinion: Ambiguous Arbitration Provision Not Sufficient To Compel Class Arbitration

In a 2010 case, the U.S. Supreme Court ruled that a court could not compel class arbitration under the Federal Arbitration Act when the agreement was silent on that issue, since class arbitration was fundamentally different from “traditional individualized arbitration.” In Lamps Plus, Inc. v. Varela, the arbitration provision did not expressly state that the parties agreed to... Read More >

Decisions, March 2019, Volume 5, Issue 2

Christopher P. Ferragamo, a Director in Jackson & Campbell, P.C.'s Insurance Coverage Practice Group, prepares a bi-monthly newsletter that addresses healthcare issues and healthcare coverage issues called Decisions. Read the latest issue here. Please see below for prior issues of Decisions: January 2019 - Volume 5, Issue 1 November 2018 - Volume 4, Issue 6 September 2018 - Volume... Read More >

SCOTUS Opinion: Manufacturers Have Duty To Warn Sailors Of Products That Require Asbestos Parts

In Air & Liquid System Corp. v. DeVries, a company manufactured equipment for three Navy ships that, as shipped, contained no asbestos, but required asbestos insulation or parts to work as intended. The Navy added the asbestos parts later when the equipment was installed on the ships. The equipment was put into use, releasing asbestos into the... Read More >

SCOTUS Opinion: Court Rejects Narrow Reading Of Immigration Detention Statute

Federal immigration law provides that certain criminal aliens may be detained by the Secretary of the Department of Homeland Security and not released until a determination on deportation is made. The statute in question, 8 U.S.C. § 1226(c)(1), directs the Secretary to arrest the alien “when the alien is released” from jail, and Section 1226(c)(2) mandates that the Secretary keep... Read More >

Court Upholds Validity of Foreclosure Sale in Light of Debtor’s Failure to Seek a Stay Pending Appeal

A recent decision issued by the Bankruptcy Court for the Eastern District of Virginia underscores the importance for both debtors and creditors to be especially cognizant of procedural rules when dealing with a property subject to foreclosure. In re: Bobbie Upasna Vardan involved a property that had been affected by four bankruptcies filed by the debtor or members of her... Read More >