Western District of Virginia Law Blog

Fight Over Virginia Tech Sportswriter's Twitter Account: Who Owns Employees' Social Media Accounts?

2018-08-07T13:27:00.000-04:00

Andy Bitter was a sportswriter for the Roanoke Times covering Virginia Tech football. He recently announced on Twitter that he was leaving the Roanoke Times and would become the VT beat writer for The Athletic, a subscription-based, online sports website. He pinned a tweet on his Twitter feed urging followers to subscribe to The Athletic and continue reading his sports journalism.

The problem? The Roanoke Times claims that it owns his Twitter account and that Bitter's refusal to turn over the account constitutes misappropriation of trade secrets.

On August 6, 2018, BH Media, the owner of the Roanoke Times, filed a lawsuit in the U.S. District Court for the Western District of Virginia against Andy Bitter accusing him of misappropriating its trade secrets. The Complaint includes counts under the Defend Trade Secrets Act, 18 U.S.C. 1836, the Uniform Trade Secrets Act, Va. Code 59.1-336, the Computer Fraud and Abuse Act, 18 U.S.C. 1030, the Stored Communications Act, 18 U.S.C. 2070, and the Virginia Computer Crimes Act, Va. Code 18.2-15.2, as well as common law conversion and breach of fiduciary duty.

The Twitter account at issue is not clearly identified in the Complaint. It is simply described as an "account" that was originally created in August 2010 by Kyle Tucker, formerly a staff writer covering VT athletics for the Virginia Pilot, another newspaper that used to share the same ownership as the Roanoke Times. BH Media, the current owner of the Roanoke Times, claims that it obtained ownership of this "account" and its list of followers. BH Media alleges that it provided Bitter with access to the account when he was hired to replace Tucker in 2011.

Based on the description in the Complaint, the Twitter account at issue appears to be @AndyBitterVT. Presumably the name of the Twitter handle has changed over the years, which is easy to do on Twitter.

Who Owns a Twitter Account?

It is common for a businesses to promote itself through social media and encourage its employees to do the same. So when does a social media account belong to the employer and when does it belong to the employee? The answer to this question is not as clear as you might think.

One of the first and most notable cases addressing this question is PhoneDog v. Noah Kravitz. Kravitz worked for PhoneDog, a technology news website, and created the account @PhoneDog_Noah as part of his job. When he left his job, he changed the Twitter handle to @noahkravitz and took his 17,000 followers with him. PhoneDog sued him for misappropriation of trade secrets, which resulted in an out-of-court settlement before the court could address the merits of the case.

One of the interesting aspects of cases like this is whether a public Twitter feed and list of followers (which is also public) can constitute a trade secret.

In the law review article, Who Owns Your Friends?: PhoneDog v. Kravitz and Business Claims of Trade Secret in Social Media Information, Jasmine McNealy writes:

"Unless a [social network site] user takes steps to protect their profile information, all of their postings and connections are available to public scrutiny. But secrecy is one of the main factors in evaluating the existence of a valid trade secret. A question arises, then, as to whether the use of social media to make connections for business purposes can be the subject of a trade secret."

What Can Businesses Do? Develop a Social Media Policy.

So what can a business do to make sure that it retains the benefits of the social media marketing performed by its employees?

Ownership of social media accounts should be agreed to up front, before becoming an issue in post-employment litigation. These issues can be addressed in an employee handbook or a more comprehensive social media policy.

In this helpful article, Orla O'Hannaidh, a Womble Bond Dickinson attorney, discusses what should be included in a social media policy. If a particular social media account is especially important to your business, then the ownership of that account definitely should be specified in writing.

The importance of a clear social media policy is evident in the case Eagle v. Morgan, 2013 WL 943350 (E.D. Pa. 2013). In that case, the founder of a business that was sold to another company created a LinkedIn account to promote the business. She shared the login and password with other employees who helped manage the account. When she was fired, the company changed the passwords and locked her out of her LinkedIn account. She then sued her former employer under a number of different theories, including unauthorized use of name, invasion of privacy and misappropriation of publicity. The court ruled in her favor on several claims, but suggested that the employer may have prevailed if there had been a clearly written social media account that covered ownership of such accounts.

While most businesses do not want to own their employee's personal LinkedIn accounts, there are other types of social media accounts that are much more beneficial to employers -- as demonstrated by the recent lawsuit filed by the Roanoke Times.

Having graduated from the University of Virginia, I am no fan of Virginia Tech football; nevertheless, I am interested in seeing how this case develops. Perhaps it will establish some clarity in this developing area of the law.

Should you need any assistance in matters related to trade secrets or social media policies, please contact Jason Hicks or the Womble Bond Dickinson attorney with whom you regularly work.

Roanoke Is Back On The Map

2016-09-19T15:46:00.000-04:00

Politico Magazine has published a very good story about the rebirth of Roanoke's downtown and its transformation from a railroad ghost town to a vibrant, outdoorsy, high-tech city.

I have commented before about how the changing economy in cities like Charlottesville and Roanoke would change the legal community as well as the reputation and docket in the Western District of Virginia. Just as UVa has played a large role in Charlottesville's "innovation" economy, Roanoke's economic growth is fueled in large part by nearby Virginia Tech and its investment in the new medical school and neuroscience institute. This technology driven growth means that the Western District of Virginia will continue to see more complex business litigation and intellectual property related disputes.

On a personal note, this sentence in the article's lede took me by surprise: "A decade ago, the U.S. Census counted 15 people living in Roanoke's downtown." It seems I was one of those 15 people. Actually, it was more than a decade ago, while clerking for Judge Wilson, I lived in a small apartment a couple blocks away from the federal courthouse, close to Center on the Square. Back then, most people thought I was crazy to live downtown, but now I look like a trendsetter!

Conversation on the Impact Economy at Live Arts on May 25

2016-05-03T22:40:00.000-04:00

For all my Central Virginia friends, you are invited to a discussion about the "Impact Economy" and a follow-on happy hour on May 25 at the Live Arts Center. This topic seems ideally suited for the Charlottesville community. Click here to register for this free event.

Purpose + Profit: An Impact Conversation

The Impact Economy is a new market force underpinned by public and private companies, entrepreneurs and investors striving to achieve a deep connection between profit and purpose. Impact is often called “the intersection of doing good and doing well.” With an increasing number of participants, the idea of "Impact" as an economic force has hit the mainstream. Charlottesville, with its deep sense of history, its firm eye toward the future, and its tremendous sense of community, is the perfect place for the Impact Economy to take hold.

So whether you're an entrepreneur or an academic, an investor or a student, or just interested in learning more about Impact in Charlottesville (and what we can do with it), join us for good coffee, a great conversation, and a follow-on happy hour!

DATE: Wednesday, May 25, 2016

TIME: 3:00 p.m. - 5:00 p.m.
WHERE: Live Arts
Third Floor Lounge 123 East Water Street
Charlottesville, VA 22902
Phone: 434.977.4177

QUESTIONS: Please contact Amanda Ames at AAmes@wcsr.com

Lawsuits Continue Against Central Virginia Regional Jail

2016-03-24T10:57:00.000-04:00

Two federal lawsuits are proceeding against the Central Virginia Regional Jail for civil rights violations of inmates. One case is brought by the mother of an inmate who died in CVRJ custody allegedly due to lack of medical care. Thornhill v. Aylor, et al., Case No. 3:15-cv-00024, (WD.Va.) The other case is brought by a former inmate who claims she had medication withheld while at jail that resulted in a psychotic break and hospitalization at Western State Hospital in Staunton. Jenkins v. Aylor, et al., Case No. 3:15-cv-00046 (W.D.Va.). Both cases are pending before Judge Conrad in the Charlottesville Division of the United States District Court for the Western District of Virginia. The jail, located in the Town of Orange, serves the surrounding counties of Fluvanna, Greene, Louisa, Madison and Orange.

In February 2016, Judge Conrad granted in part and denied in part the defendants' motions to dismiss the Thornhill case. The Court dismissed the class action claim after finding there was insufficient "commonality" among the proposed class members. The Court dismissed the individual claims against some of the defendants, but allowed others to go forward after finding that there was "sufficient factual allegations to support the claim that there was an official policy of deliberate indifference at CVRJ, specifically based on [the Superintendent's] inactions as its policy maker." The Court determined that arguments as to sovereign immunity and qualified immunity would be heard at a later stage of the litigation.

Similarly, in the Jenkins case, the plaintiff brought the suit as a class action, but the defendants have filed motions to dismiss the class action claim and portions of other claims. Those motions were heard by the Court on March 23, 2016. An interesting issue that was argued at the hearing was whether the Central Virginia Regional Jail Authority is entitled to sovereign immunity. Defense attorney argued that the five counties that comprise the authority each have sovereign immunity and would retain sovereign immunity if they operated their own separate jails; therefore, there should be immunity for the regional jail authority. Plaintiff's counsel, however, argued that the authority itself does not meet the all of the standards for sovereign immunity, even thought its constituent members would have immunity. The Court reserved judgment and will issue rulings on the motions at a later date.

You can read more about the lawsuits here and here.

Virginia GOP Settles Copyright Lawsuit Brought By On-Line Publisher

2016-03-23T11:36:00.002-04:00

Valerie Garner, publisher of the Roanoke Free Press website, has settled her copyright lawsuit against the Virginia Republican Party related to the unauthorized use of a photograph she took of Delegate Sam Rasoul. This photograph was the subject of prior litigation between Garner and a political blogger who used the same photograph on his website. In 2015, Judge Conrad issued an opinion denying the blogger's motion to dismiss based on the fair use doctrine. The case settled shortly thereafter. In the most recent case against the Virginia Republican Party, Garner alleged that the GOP use the same photograph in a campaign mailer, without her permission. The GOP had filed a partial motion for summary judgment arguing that Garner was not entitled to statutory damages or attorney fees under the Copyright Act. While that summary judgment motion was pending, the parties settled the case, for $9,000 and a promise not to use the photograph again, according to news reports.

New Website for Womble Carlyle's Charlottesville Office

2016-02-23T11:42:00.000-05:00

Womble Carlyle's Charlottesville Office has a new website. We're still trying to find the perfect photograph to represent Charlottesville's spirit. Something that captures both Charlottesville's rich history and bright future; its pastoral landscapes and burgeoning economic development; its small town feel and world-class research and development. The current picture is the view outside our offices on the Downtown Mall.

Womble Carlyle and Charlottesville are a good fit for many reasons. One of which is our focus on the Impact Economy -- the concept of doing good while doing well. This new market force is underpinned by public institutions and private companies, entrepreneurs and investors, who combine the desire to achieve financial success with social responsibility. Womble Carlyle is the first law firm in the country to launch an integrated, full-service Impact Economy practice that covers virtually all Impact sectors, including housing, environment, education, economic development, healthcare and energy.

The concept of an Impact Economy is readily apparent in Charlottesville's innovation community. The National Venture Capital Association recently ranked Charlottesville as the fastest-growing venture capital market in the United States. Academic research at the University of Virginia is the driving force behind much of this growth. Sean Carr, Executive Director of the Batten Institute for Entrepreneurship and Innovation at UVa explained that "this latest news about growth in funding opportunities in our area provides some early evidence that Charlottesville has the potential to be one of the nation's best environments for starting and developing high-impact and high-growth ventures."

By their very nature, many of these start-ups begin as a good idea to addresses a need or social problem. That idea, often created within an academic environment, is then developed and spun off into a money making venture. The academic or social goal that served as a genesis for the new company need not be abandoned. To the contrary, profit and social responsibility can work together. This is a perfect example of the Impact Economy at work.

Womble Carlyle's Impact Team strives to provide strategic and advisory services to our clients in addition to legal services. We believe that impact-focused businesses can be most effective when they engage trusted advisors to help them creatively respond to the unique challenges presented by the business of addressing and solving social problems. You can read more about Impact issues here and learn more about Womble Carlyle's Charlottesville office here.

Malicious Prosecution Case to Continue Against Patrick Henry Community College Athletic Director

2016-02-05T13:12:00.000-05:00

Historic Henry County Courthouse

An affair between a college coach and a basketball player, a disputed confrontation between parents and a college administrator, accusations of assault and kidnapping, fifteen days in jail, claims of false arrest and malicious prosecution, and a mystery video tape: this case sounds more like a soap opera than a federal lawsuit.

A new opinion from Judge Kiser involving salacious accusations against the Patrick Henry Community College women's basketball team and athletic director is anything but boring. See Robinson v. Davis, Case No. 4:15-cv-00040 (Dec. 30, 2015).

The plaintiffs are the parents of a former female student and basketball player at Patrick Henry Community College. During the 2012 season, the plaintiffs learned that the coach of the women's basketball team was having an affair with another one of the players. As a result, they removed their daughter from the team and confronted the Athletic Director in a meeting at his office. The complaint alleges that the AD became upset, belligerent and verbally aggressive towards the parents--yelling at them to get out of his office and threatening to call the police.

The parents claim they did nothing to physically threaten the AD or basketball coach, but apparently the AD has a different version of the facts because he swore out a warrant against the father for felony abduction, kidnapping and assault, and against the mother for assault. The parents were arrested after their return to their Virginia Beach home. The father was held in jail for fifteen days before being released and the charges against him dropped by the prosecutor. The mother, who was also incarcerated for a time, was found not guilty of the assault charge.

The parents then filed a malicious prosecution and false arrest lawsuit against the Athletic Director and the sheriff's deputy who agreed to file the charges despite, according to the parents, a video tape of the incident "showing no criminal actions." The case was transferred from Virginia Beach to Henry County, where it was then removed to the Western District of Virginia after the parent's filed an amended complaint adding federal question claims under Section 1983.

The case then came before Judge Kiser on a motion to dismiss. The Court denied the motion as to the malicious prosecution and false imprisonment claims because, taking the facts alleged in the complaint to be true, there was no probable cause for the arrests. The Court could not infer, as defendants' requested, that there was more to the altercation than alleged in the complaint because all facts and inferences must be view in the light most favorable to plaintiff on a motion to dismiss.

Similarly, the Court declined to consider the video of the incident -- which defendants claim shows that the parents became irate, blocked the AD in his office and had to be dragged away by their daughter. Although the video was referenced in the complaint, the Court determined that its contents should not be considered on a motion to dismiss because the complaint itself did not rely on what was in the video. (The video will however be considered on any summary judgment motion).

The Court, however, granted the motion to dismiss with respect to the Section 1983 claim against the Athletic Director because his actions were not "under color of state law." Although he was a state employee, nothing suggested that his alleged conduct (trumping up charges against the parents) was made possible because he was a state employee. The Court explained:

To put it another way, anyone can lie to the police Because the [Athletic Director's] actions were no more than what any private citizen could do, there is not a sufficient nexus between [his] actions and the state to convert this private tort into a federal wrong.

The case will now proceed in federal court in Danville, unless somehow the 1983 claim against the sheriff's deputy is dismissed, in which case the case may be remanded back to state court.

Charlottesville as a "Hotbed for Innovation": Fastest Growing Area in US for Venture Capital Funding

2016-02-03T12:57:00.000-05:00

Where a court is located often determines the type of cases that it hears. For example, the "Rocket Docket" of the Eastern District of Virginia hears a large number of patent and technology-related cases both because of the speed at which it dispenses justice and also the many technology companies in Northern Virginia--not to mention that the Patent and Trademark Office is a few blocks away from the Alexandria courthouse.

The Western District of Virginia, however, is not traditionally known for its patent docket or technology-related cases. When I clerked for Judge Wilson in Roanoke, one of the biggest cases the court heard that year was a RICO conspiracy involving (alleged) moonshiners in Franklin County. Growing up in nearby Lynchburg, I often heard Franklin County referred to as the "moonshine capital of world." While the homemade distillation of spirits certainly involves some measure of technology, that RICO trial was certainly not a technology-based case. At the time, it was not surprising that the court heard more moonshining cases than patent cases.

All of that may be about to change, however, given the recent growth of tech start-ups in the region. This growth is largely fueled by the universities--the University of Virginia, Virginia Tech and James Madison University--located in Charlottesville, Blacksburg and Harrisonburg.

According to an article in today's Daily Progress, the Charlottesville area is the fastest growing area in the country for venture capital investment since 2010. The largest investments were in technology companies, many of which got their start from academic research associated with UVa. The article explains:

The Center for Innovative Technology also was involved with most of the companies receiving venture capital funding. The center works to promote the technology industry around the state, and since 2004 it has invested seed money in numerous technology and life-science companies around the state, including local biotechnology and semiconductor companies.
...
As the market in Charlottesville has grown, [the center's investment director] said, word is spreading that it's a good place for tech startups -- it has a high concentration of talented people, a nice location and access to a major university...

The number of local companies receiving venture capital funding has increased 55 percent annually since 2010, and the amount of investment dollars pumped into the Charlottesville market has increased by $157 million.

This type of growth--fueled by the confluence of nearby universities, public-private partnerships, low taxes and livable communities--reminds me of the success of North Carolina's Research Triangle Park. Womble Carlyle's early commitment to technology led us to open an office in RTP in the 1990s. As a law firm, we have seen first hand how a technology driven economy can transform a region, including its courts and legal market. Let's hope the same thing (without the traffic, of course) is happening here in Charlottesville.

To What Extent Can You Use Errata Sheets To Correct Testimony Under Rule 30(e)?

2016-02-02T16:13:00.000-05:00

How many times have litigators said "the witness will read and sign the transcript" at the end of a deposition? But to what extent can a witness actually correct their testimony on an errata sheet?

In a recent decision, Judge Urbanski addressed the scope of the provision in the Federal Rule of Civil Procedure allowing for the reading, correction and signing of a deposition transcript.

This contract dispute involved ant-infested wooden pallets manufactured by plaintiff and sold to defendant. The case was before the court on plaintiff's summary judgment motion and objection to defendant's errata sheets purporting to change the testimony of defendant's witnesses (including its 30(b)(6) witness) which were provided to plaintiff only days before the deadline to file dispositive motions.

Rule 30(e) provides that after a deposition transcript is prepared, the deponent is allowed 30 days "to review the transcript ... [and] if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them." This statement containing those changes is referred to as an "errata sheet."

As noted by Judge Urbanski, courts uniformly allow deponents to make minor form changes and corrections to transcription errors, but the Fourth Circuit has not addressed the outer scope of Rule 30(e) and thus there is a difference of opinion among lower courts regarding the ability to make more substantive changes to deposition testimony.

While the Court noted that there were two general lines of cases--the "traditional" and "modern" approach to Rule 30(e)--, the Court decided instead to adopt the "case-by-case approach" developed by the Third Circuit.

Under the traditional approach, deponents can made substantive--even contradictory--changes to prior testimony. This permissive approach allows almost any change in an errata sheet, although both versions remain available for purposes of cross-examination.

In contrast, the modern approach interprets Rule 30(e) more narrowly and only allows for corrections for errors made by the court reporter. One case, cited by the Court, explained that "[t]he Rule cannot be interpreted to allow one to alter what was said under oath. If that were the case, one could merely answer the question with no thought at all, then return home and plan artful responses.... A deposition is not a take home examination." (quoting Trout v. First Energy Generation Corp., 339 F. App/x 560, 565 (6th Cir. 2009)).

After explaining these two approaches, Judge Urbanksi determined that the Court need not adopt either the permissive traditional approach or the narrow modern approach, because there was a third approach that best addresses the situation before the Court.

As explained by the Court, the Third Circuit's more flexible case-by-case approach "allows deponents to make necessary changes via Rule 30(e) without also 'generat[ing] from whole cloth a genuine issue of material fact (or eliminate[ing] the same) simply by re-tailoring sworn deposition testimony to his or her satisfaction.'" (quoting EBC Inc. v. Clark Bldg. Sys. Inc., 618 F.3d 258, 268 (3d Cir. 2010)).

The case-by-case approach is similar to the "sham affidavit" doctrine, which prevents a party from avoiding summary judgment by submitting an affidavit that contradicts prior testimony. Similarly, under the Third Circuit's flexible approach to Rule 30(e), "the court has discretion to ignore errata sheets that propose 'substantive changes that materially contradict prior deposition testimony, if the party proffering the changes fails to provide sufficient justification.'" Given that the Fourth Circuit has recognized the "sham affidavit" doctrine, Judge Urbanski reasoned that "the Third Circuit's case-by-case approach to Rule 30(e) best accounts for the facts presented here."

Applying this case-by-case approach, the Court determined that defendant's errata sheets should be ignored because they directly contradicted prior testimony, were submitted only days before the deadline for summary judgment motions, were supported by only perfunctory justifications and were focused on the very issues at stake in the summary judgment motion. Thus, the Court held that "[a]bsent a more compelling justification for the abrupt change in testimony, the court will not allow [defendant] to use Rule 30(e) to inject new factual disputes into the summary judgment record that did not exist previously."

The Court went on to grant in part and deny in part the summary judgment motion, and reserved judgment on whether the errata sheet should be stricken for purposes of trial. The Court concluded:

Further, as noted above, the court need not resolve the larger dispute about the proper scope of Rule 30(e) that has thus far divided courts in this circuit. In the situation presented here-where a party changes sworn testimony directly relevant to its potential liability mere days before the deadline for dispositive motions-the court is persuaded that Rule 30(e) does not allow parties to make substantive changes to deposition testimony in an effort to avoid an imminent motion for summary judgment.

Until the Fourth Circuit addresses the issue, Judge Urbanski's opinion will likely be cited in subsequent civil litigation to delineate the scope of errata sheets under Rule 30(e). The Court's full opinion in Grottoes Pallet Company, Inc. v. Graham Packaging Plastic Products, Inc., 2016 WL 93869 (Jan. 7, 2016) is available here.

Judge Moon's Denial of Preliminary Injunction in Route 29 Lawsuit

2015-08-24T17:29:00.000-04:00

Several months ago, business owners on Route 29 filed a lawsuit against federal and state transportation officials challenging the plan to build a grade separated interchange at Route 29 and Rio Road. The plaintiffs claimed that defendants improperly segmented a single construction project into three individual projects in order to avoid the requirements of certain federal environmental regulations. After holding an evidentiary hearing on June 1, Judge Moon denied plaintiff's request for a preliminary injunction. The ruling was based on a finding that plaintiffs were not likely to succeed on the merits of their claim and a balancing of the equities.

Judge Moon began his opinion with the observation that "[t]he question of how to best address congestion on Route 29 in the Charlottesville and Albemarle County areas has long been a source of contention in the area"--quite an understatement! Traffic on Route 29 has been a hot topic of debate since a western bypass was first proposed 36 years ago in 1979.

Judge Moon's opinion is available here. Plaintiffs voluntarily dismissed their lawsuit shortly after Judge Moon denied the preliminary injunction, and construction has been progressing since then.

Judge Moon and Civil Rights Lawsuits Against Bedford County Public Schools

2015-08-11T17:03:00.002-04:00

Judge Moon has ruled on two cases in the past month involving constitutional civil rights issues and public schools.

In L.E.A. v. Bedford County School Board, Judge Moon denied a preliminary injunction prohibiting the School Board from closing Body Camp Elementary School pursuant to its redistricting plan. Plaintiffs argued that the decision to close Body Camp -- which has a higher percentage of African American students than other elementary schools that were not closed -- violated the Equal Protection Clause of the 14th Amendment and Civil Rights Act of 1964.

Judge Moon, however, denied the requested preliminary injunction after determining that plaintiffs failed to establish a likelihood of success on the merits. The Court pointed to evidence

"that the School Board closed Body Camp because the school's long-term maintenance needs were substantially greater than those at Moneta Elementary School [the other school under consideration for closing], which is supported by the findings in [an independent consultant's] review. Moreover, the circumstances surrounding the School Board's decision do not necessarily indicate an intent to discriminate against minority students."

In R.M.B. v. Bedford County School Board, Judge Moon considered another civil rights action brought by a student claiming that his 364-day suspension from Bedford Middle School violated the Due Process Clause of the 14th Amendment.

The student was suspended for possession of marijuana after the assistant principal found "crumpled leaves" and a lighter in his backpack after hearing rumors that the student was bragging about possessing marijuana. A sheriff's deputy and school resource officer field tested the leaves twice and the results were negative for marijuana. Plaintiff claims that he and his parents were not told about the negative test results at the suspension hearing, and only learned about them when the criminal charges were dismissed. Judge Moon denied the defendant's motion to dismiss the student's civil rights case and is allowing the case against some of the individual defendants to proceed to discovery, although the claims against the School Board were dismissed.

I should disclose that my father is a member of the Bedford County School Board and that many years ago, prior to law school and before the age of zero tolerance policies, I was a teacher at Bedford Middle School.

Judge Kiser Dissolves Injunction Allowing Confederate Flag on License Plates

2015-08-03T18:42:00.000-04:00

On Friday, July 31, 2015, in Danville, Virginia -- the last capital of the Confederate States of America -- U.S District Court Judge Jackson Kiser presided over a court hearing about whether the Commonwealth of Virginia could ban the display of the confederate flag on DMV-issued license plates.

The Sutherlin Mansion in Danville, Virginia, the last capital of the Confederacy, is now the Danville Museum of Fine Arts & History and is a short walk down Main Street from the US District Court.

Specifically, the question was whether the U.S. Supreme Court's recent decision allowing Texas to ban the confederate flag from its license plates in Texas also applied to Virginia. Pursuant to an older 2001 decision from the Fourth Circuit, Virginia was prohibited from disallowing an image of the confederate flag on vanity license plates for the Sons of Confederate Veterans. The Fourth Circuit had held that Virginia's rule was an impermissible content-based restriction (viewpoint discrimination) under the First Amendment. Since then, nearly 1602 Sons of Confederate Veterans license plates have been issued for cars and motorcycles.

In March 2015, however, the Supreme Court held that Texas's specialty license plate design constitutes government speech, and therefore content-based restrictions on the design and message of the license plates did not run afoul of the First Amendment. The majority opinion explained that states can use license plate slogans to urge action, promote tourism and tout local industries, and that in doing so, the state can choose to promote some slogans, images and messages, but not others. The Court compared messages on vanity license plates to message-conveying monuments in public parks.

Given this ruling, the Commonwealth of Virginia asked Judge Kiser to dissolve the 2001 injunction that prohibited it from disallowing the confederate flag on its license plates. In his ruling from the bench, Judge Kiser agreed that the recent Supreme Court case effectively overruled the prior Fourth Circuit decision, and thus the injunction would be dissolved when he issues a written order. Judge Kiser rejected the Sons of Confederate Veterans' argument that the process for obtaining a vanity plate in Virginia was so different from Texas that the US Supreme Court case should not apply. A question that still needs to be answered, however, is what will happen to the existing Sons of Confederate Veterans license plates that have already been issued. Judge Kiser's written ruling is expected to address whether his decision applies just to new plates or also retroactively to include the existing plates.

Attorney General Mark Herring said in a statement: "This ruling will allow Virginia to remove a symbol of oppression and injustice from public display on its license plates. Virginia state government does not have to and will not endorse such a divisive symbol. I appreciate Gov. McAulliffe's leadership in calling for the removal of the flag and those on my team who moved quickly to get it done."

Personally, I think that not only was Judge Kiser's ruling the right decision but it was the only decision possible given the Supreme Court's prior ruling in the Texas case.

Court Denies Stay and Revives FCA Claims Based on "Implied Certification" Theory

2015-03-16T16:04:00.003-04:00

In a False Claims Act lawsuit against an armored car manufacturer, Judge Kiser recently denied a motion to stay the case, pending resolution of related criminal charges, and granted a motion for reconsideration, thus reviving FCA claims based on the "implied certification" theory.

The Complaint alleged that defendant, a government contractor, knew that the vehicles for which it was billing the government did not meet the ballistic protection requirements of its contracts with the government; nevertheless, defendant billed and collected for these vehicles it knew did not meet contract specifications. Judge Kiser determined that, under U.S. ex rel Badr v. Triple Canopy Inc., 775 F.3d 628 (4th Cir. 2015), these allegations make out a claim for "implied certification" under the False Claims Act. Judge Kiser had previously granted a motion to dismiss those claims. However, finding that Triple Canopy constituted a "change in the law," Judge Kiser granted the motion for reconsideration, thus reviving Plaintiff's "implied certification" claims.

The Court also denied defendants' motion to stay because, among other things, plaintiff had an interest in proceeding expeditiously, defendants were seeking what could be an indefinite stay, the Western District of Virginia has a strong policy of efficient and expeditious resolution of cases, and the public has an interest in seeing a swift resolution of the matter. The Court explained that since plaintiff was accused of defrauding taxpayer money, the public interest is served by investigating the merits and, if plaintiff is found liable, recovering ill-gotten gains. Likewise, the public interest would be served if plaintiff is not found liable because "[t]he peace of mind that comes with knowing that one has not been defrauded can be just as valuable as recovering any defrauded funds."

The Court concluded: "Considering all of the factors, a stay is not warranted. [Defendant] is free to exercise his Fifth Amendment rights in this case. Doing so places him at no greater disadvantage than every other litigant who wishes to protect his rights."

Former Magistrate Judge Crigler Awarded For Leadership By Virginia State Bar

2015-03-10T10:32:00.001-04:00

Retired Magistrate Judge Waugh Crigler will receive a Leadership in Education award from the Virginia State Bar. The award recognizes individuals for leadership in improving and enhancing legal education and professionalism among the academy, bench and bar.

The Virginia State Bar's announcement explains:

"Crigler has a long and distinguished career as a lawyer, judge, and teacher. He has served as a faculty member for the VSB’s Harry L. Carrico Professionalism Course since 1995. In 1998, he was appointed to the bar’s Standing Committee on Professionalism, and later became its vice chair. He helped to develop a curriculum for a professionalism program that was instituted in all law schools in the commonwealth in 2000. He served as chair or co-chair of the Law School Professionalism program until 2003, and remains an active faculty member for the program.

Crigler has served on the board of governors of the State Bar’s Litigation Section since 2009. In 2006, he was elected to the board of governors of the State Bar’s Section on the Education of Lawyers in Virginia, and has served as vice chair since 2010. While serving on these boards, Judge Crigler has written numerous articles advancing trial skills and professional and ethical practice."

Judge Crigler is currently an alternative dispute resolution facilitator at the McCammon Group.

Ruling in First Amendment Suit Strikes Down Charlottesville Panhandling Ordinance

2015-03-02T13:15:00.002-05:00

My office off of Charlottesville’s downtown mall provides me with a great view of each day’s activities in this lively pedestrian space. On any given day, I can see the street musicians, vendors, or the blindfolded gentleman who gives away free hugs. However, an interesting First Amendment case out of the Western District of Virginia is likely to ensure even more activity on Charlottesville’s downtown mall.

In a recent case, Judge Moon found that a Charlottesville ordinance, which prohibits panhandling on the downtown mall, violates the First Amendment of the Constitution. The challenged ordinance specifically prohibited solicitation in a 50-foot “buffer zone” of portions of the mall. The suit challenging the ordinance was filed in federal court over three years ago on behalf of several homeless Charlottesville residents and was initially dismissed by Judge Moon. But after the Supreme Court struck down a Massachusetts “buffer zone” law last year, localities around the country have seen similar laws overturned by the courts. In this suit, Judge Moon found that the City improperly focused on panhandlers when creating its ordinance and struck down the ordinance because it prohibits a certain type of speech. Free speech advocates seem pleased with the ruling, while downtown business owners seem concerned about aggressive solicitation in areas with high foot-traffic.

For more information on the case, check out a recent Daily Progress article, found here.

Practicing in the Western District of Virginia CLE

2015-01-29T10:00:00.000-05:00

I attended a very informative and enjoyable CLE yesterday regarding practicing in the Western District of Virginia and section 1983 cases. The CLE was put on by the Charlottesville Albemarle Bar Association. Judge Dillon, Magistrate Judge Ballou and Magistrate Judge Hoppe were panelists.

One interesting fact I learned was that 20% of the civil cases filed in the WDVa are 1983 cases or Bivens cases. A significant number of these cases are pro se cases filed by prisoners. Most of those cases are summarily dismissed at the pleadings stage or on summary judgment, but some of them proceed to trial, which can cause problems for the Court. (Imagine a prisoner in shackles questioning a prison guard on the witness stand or giving the closing argument in a civil rights case.) I remember Judge Wilson describing situations like this when I was a law clerk.

The Court wants to create a list of attorneys who would be willing to take on some of these cases pro bono. Sounds like a very good way for young attorneys to get federal court trial experience. I expect that more information will soon be available on the Court's website.

Senate Approves Judicial Nomination of Elizabeth Dillon

2014-12-17T15:02:00.002-05:00

The Western District of Virginia has a new judge.

Yesterday, the US Senate confirmed the nomination of Salem attorney Elizabeth Dillon to replace Judge Wilson, who retired in August. Judge Dillon will be the first female judge in the Western District of Virginia. Like her predecessor and the author of this blog, Judge Dillon is a graduate of Wake Forest University School of Law.

Dillon has been a practicing attorney in the Roanoke/Salem area for many years is also a former city attorney for the City of Roanoke. President Obama nominated Dillon on September 18, 2014, after Virginia's two senators had recommended her and Ward Armstrong for the spot. The Virginia Lawyers Weekly article about the confirmation is here.

The Senate Judiciary Committee has published Judge Dillon's answers to written questions submitted by Senators, including Senator Chuck Grassley and Senator Ted Cruz. Many of the questions are overtly political and most of the answers are boilerplate, but there were some interesting parts. For example, this is how Judge Dillon described the most important attribute of a judge:

"The most important attribute of a judge is to have the utmost respect for the tremendous responsibility of the position. A judge who recognizes and respects the responsibility of the position will respect the rule of law, the litigants, and the lawyers, and will serve with integrity, fairness, and impartiality. I have the utmost respect for the tremendous responsibility of the position and would be honored to serve should I be confirmed."

We are looking forward to Judge Dillon's tenure as the newest federal judge in the Western District of Virginia.

Womble Client Wins Stormwater Case in Charlottesville

2014-12-04T16:54:00.000-05:00

Another victory in Central Virginia for Womble Carlyle. Last week, Albemarle County Circuit Court Judge Cheryl Higgins ruled in favor of the Shops at Stonefield (also known as Albemarle Place), finding the stormwater management plan for the shopping center was reasonable and lawful. In so ruling, the Court denied the requested injunction and is set to dismiss the trespass and nuisance claims filed by a neighboring shopping center. This ruling comes after a week long bench trial before Judge Higgins in June 2014. More information about the case and the real estate development at issue is in the following article from Charlottesville Tomorrow. Womble Carlyle attorneys Paul Kaplan and Jason Hicks represented Stonefield in this matter.

Contaminated Oysters in Virginia Restaurant Enough for Jurisdiction Under "Stream of Commerce" Test

2014-11-13T10:06:00.000-05:00

Contaminated oysters served at a Roanoke restaurant were placed in the "stream of commerce" by a Connecticut seafood supplier, and thus served as the basis for the Western District of Virginia to exercise personal jurisdiction over the out-of-state seafood supplier.

Since the oysters at issue traveled through several different distributors and suppliers before reaching Frankie Rowland's Steakhouse in Roanoke, the original supplier had argued that the was no personal jurisdiction over him given his lack of contacts with Virginia. Judge Conrad, however, held that although the oysters were initially sold outside of Virginia, they were placed in the "stream of commerce" and purposefully availed to the Virginia market. Therefore, it was foreseeable that the oysters would end up in Virginia and the supplier haled into court there.

The obvious lesson to be learned from this case is to eat locally sourced oysters, such as those served in Charlottesville's new Rocksalt restaurant. There will be no jurisdictional issues if you get sick from eating the Olde Salts from Chincoteauge, Virginia or the Rappahannocks from the Middle Peninsula.

Court Declines To Dissolve Prayer Injunction After Supreme Court's Town of Greece Decision

2014-11-07T17:41:00.004-05:00

In March 2013, Judge Urbanski issued an injunction prohibiting Pittsylvania County from opening its board of supervisors meetings with sectarian prayers associated with any one religion as a violation of the Establishment Clause. That case is currently on appeal before the Fourth Circuit.

In May 2014, the US Supreme Court issued a 5-4 decision upholding the constitutionality of non-coercive sectarian invocations by invited clergy and laypeople at city council meetings. See Town of Greece v. Galloway, 572 U.S. ___ (2014). Given this new Supreme Court decision on public prayer, many localities that had been subject to injunctions have petitioned courts to modify those injunctions to conform with Town of Greece.

Pittsylvania County filed a Rule 60(b)(5) motion in Western District of Virginia seeking to modify the Court's prior order. The Court, however, held that it was without jurisdiction to modify its permanent injunction because the matter was on appeal to the Fourth Circuit. There is a limited exception allowing the Court to rule on matters "in aid of the appeal." Under this exception, the Court is permitted to entertain the motion and issue a short order if the Court is inclined to grant the motion, thus allowing the movant to request a limited remand from the Fourth Circuit for that purpose.

After considering the merits of Pittsylvania County's request, Judge Urbanski determined that the Court was inclined to modify the injunction "to a very limited extent, i.e., to make it clear, consistent with Town of Greece, that opening prayers offered at the start of the Pittsylvania County Board of Supervisors meetings need not be generic or nonsectarian." The Court, however, would deny the request to dissolve the injunction altogether because of factual differences between this case and Town of Greece.

First, Pittsylvania County did not invite clergy or laypersons to offer invocations, as was the case in Town of Greece. Instead, the prayers were led by the board members themselves. "Thus, in contrast to Town of Greece, where the town government had no role in determining the content of the opening invocations at its board meetings, the government of Pittsylvania County itself, embodied in its elected Board members, dictated the content of the prayers opening official Board meetings."

Second, the Pittsylvania board of supervisors often directed the public to participate in the prayers by asking them to stand. For example one board of supervisor began his prayer by stating: "If you don't want to hear this prayer, you can leave. Please stand up."

In summary, the Court held that the active role of the board of supervisors in leading the prayers, dictating their content and directing public participation distinguished this case from Town of Greece.

It will be interesting to see how the Fourth Circuit rules in the appeal.

While it must have been irresistible for Pittsylvania County to try to dissolve the permanent injunction order after Town of Greece, given the decision by Judge Urbanski, it would have been better for the County not to have filed the Rule 60(b)(5) motion. The Fourth Circuit can now see that the District Court would have granted the injunction anyway, even after considering the new Supreme Court precedent. Thus, not only does this case involve an interesting constitutional question, but it is also instructive on matters of litigation and appeal strategy.

Fraud Claim Against Lender Dismissed

2014-11-07T15:45:00.002-05:00

"Courts have held that there is no duty on a lender to ensure that a loan is suitable for a borrower," wrote Judge Jones in a recent case dismissing a fraud and misrepresentation claim brought by a home owner against the lender. In this case, the plaintiffs alleged that the loan officer told them that their income qualified them for the loans they were seeking, when in fact plaintiffs' income was not high enough to meet debt to income ratio utilized by mortgage lenders. The Court found that these allegations were not sufficiently specific to meet the heightened pleading standards of Rule 9. "Without more, plaintiffs' allegations essentially amount to an assertion that the lender convinced them to take out a loan they couldn't afford," which is not a basis for fraud.

The Court cited several cases stating that lenders do not act on behalf of borrowers, do not have a duty to determine a borrower's ability to repay a loan, and that borrowers have to "rely on their own judgment and risk assessment to determine whether or not to accept the loan." Alternatively, the Court found that the claims were barred by the statute of limitations. The case, Muncy v. Centex Home Equity Company, LLC, was pending in the Abingdon division of the Western District of Virginia.

This case is another example of the steady stream of cases brought by borrowers against lenders related to lending or foreclosure practices. Most of the cases, like this one, are dismissed in the preliminary stages of litigation. However, there is still a significant cost to lenders in having to defend all cases brought against them, even the most frivolous.

Click here for more information on Womble Carlyle's Financial Services Litigation team.

Legal and Political Controversy Over Proposed Atlantic Coast Pipeline

2014-10-15T11:30:00.000-04:00

The 550-mile Atlantic Coast Pipeline that is projected to run through the heart of Central Virginia has generated much political controversy and is now the subject of a new federal lawsuit.

Although Governor McAuliffe has supported the pipeline, environmental groups and some landowners have been highly critical of the project. Environmental groups have started petitions opposing the pipeline and landowners have raised issues regarding the path of the pipeline and the ability of gas companies to enter and condemn private land for the pipeline.

A recent lawsuit file in the Charlottesville Division of the Western District of Virginia seeks to declare unconstitutional a Virginia statute that allows gas companies the right to enter private property to survey the proposed path for the pipeline. The lawsuit challenges the statute as authorizing an unlawful taking for private purposes and a taking without just compensation in violation of both the United States Constitution and the newly strengthen provisions of the Virginia Constitution. As reported by the newspaper, Dominion says that it will not survey anyone's land without permission from the landowner or a court order affirming Dominion's right to survey.

New Eminent Domain Law May Require Business-Litigation Approach To Condemnation Cases

2014-09-09T17:58:00.000-04:00

The Charlottesville paper recently ran an interesting story about how local road improvement projects will test the limits and scope of the Commonwealth's new eminent domain law. The new laws are comprised of reforms passed in 2007 and a constitutional amendment passed in 2012. State Senator Mark Obenshain is quoted as saying: "Property owners seeking remedies under the new legislation may petition the state for up to three years' worth of future profits" which could be based on lost profits. Previously Virginia's condemnation proceedings measured damage by means of real estate valuations, rather than allowing for recovery of lost profits. This change in the law may turn condemnation cases into something that more resembles business litigation, with competing economic experts analyzing claims for lost profits. Property owners seeking to challenge eminent domain takings under the new statute may want to reassess how they negotiate with the Commonwealth and what kind of evidence, witnesses and attorneys they need to prove their case.

"Happiness Is The Truth"

2014-07-24T10:19:00.000-04:00

Charlottesville, Virginia has been named the happiest city in the United States. It also will be home to the newest (unofficial) office of Womble Carlyle. Coincidence? Yes, probably.

A recent study from a Harvard professor ranked Charlottesville as the happiest city in the US. Just down the road, Richmond was rated the "most contented" metropolitan area with over one million people. Norfolk/Virginia Beach, hometown of the "Happy" songwriter Pharrell, came in second. There must be something about Virginia!

The study suggested that people are willing to sacrifice happiness if the price is right. "Indeed, the residents of unhappier metropolitan areas today do receive higher real wages -- presumably as compensation for their misery." Which explains Northern Virginia. Just kidding!

In unrelated news, I'm happy to announce that Womble Caryle will soon be opening a new office space in Charlottesville to serve as a staging area for Virginia-based litigation outside of the Washington beltway. Charlottesville is one of the headquarters of the Western District of Virginia. Additionally, from this central location, an attorney can travel to just about any courthouse in the Commonwealth in under two hours. The location and opening date for the "Charlottesville office" have not been finalized. I will announce more after the details are worked out.

Judge Turk's Legacy Remembered By Lawyers And Judges

2014-07-08T17:13:00.000-04:00

All of the local papers ran stories this week about Judge Turk's passing and the fond memories that lawyers and judges had of Judge Turk's unique and warm sense of justice. Judge Turk, who was appointed by Richard Nixon, served as a federal judge in the Western District of Virginia for 41 years before passing away Sunday evening at age 91. The News and Advance ran a story with many colorful anecdotes of Judge Turk's merciful rulings and sentencings in criminal cases.

One of his most famous civil cases was a prison literature case in which Judge Turk struck down a policy that denied inmates access to novels "Ulysses" by James Joyce and "Lady Chatterley's Lover" by D.H. Lawrence, which had been banned because of their sexually explicit passages. He also presided over the 1981 libel case Jerry Falwell brought against Larry Flynt of Hustler magazine.

Before becoming a judge, Turk practiced law at the Radford firm of Dalton, Poff and Turk--a firm with three very famous names in the Western District of Virginia. Ted Dalton, known as Mr. Republican, ran unsuccessfully for Governor of Virginia when the Byrd machine still dominated Virginia politics. Dalton later was appointed to the federal bench. His nephew and adopted son, John Dalton, was elected Governor of Virginia in 1977.

Turk's other law-partner Richard Poff served in the House of Representatives for many years, was the author of the 25th Amendment to the United States Constitution, and was considered for the Supreme Court, prior to Nixon's appointment of fellow Virginian Lewis Powell. Poff went on to serve on the Virginia Supreme Court. The federal courthouse in Roanoke, where Judge Turk presided for so many years, was named for Poff.

This legacy continues after Judge Turk's death. His former law clerk, Glen Conrad, was appointed to replace Judge Turk as a federal judge when he took senior status in 2003. Judge Turk has two sons who are prominent in the legal community in Southwest Virginia: Jimmy Turk, a high-profile defense attorney in Montgomery County; and Bobby Turk, a Montgomery County Circuit Court Judge. There are countless members of the legal community in Southwest Virginia that feel a connection to and fondness towards Judge Turk.

Current United States Attorney Timothy J. Heaphy said in a statement: "[Judge Turk's] tradition of shaking hands with defendants after their cases concluded was a perfect manifestation of his essential humanity and his ability to recognize the good in all people, regardless of circumstance."