Litigation
Determining Whether a New Cause of Action “Relates Back” to the Initial Complaint
Occasionally, a plaintiff may file a complaint and later seek an amendment to add a new cause of action. An issue may arise if the statute of limitations as to the new cause of action has expired. However, if the new cause of action “relates back” to the initial complaint, then the date of filing the initial complaint is used for purposes of calculating the ...
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Tweeting Your Way Into A Legally Enforceable Contract
Introduction: If you haven’t heard the news, a recent article published by CNN Business reported that the Director of the United Nations’ World Food Programme (“WFP”), David Beasley, declared that “2% of Elon Musk’s wealth could help solve world hunger.” According to Mr. Beasley, billionaires need to “step up now, on a one-time basis.” Well, Elon Musk, who has a net worth of nearly $289 ...
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Appellate Practice: Standard of Review in Virginia Appellate Courts
As discussed in our recent article, the Virginia General Assembly voted to allow most criminal defendants and civil litigants to have an appeal as of right to the Court of Appeals of Virginia starting on January 1, 2022. This means that Virginia lawyers will spend more time in the Commonwealth’s appellate courts and will need to rely more on appellate specialist attorneys. Vandeventer Black is ...
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U.S. Supreme Court Rules that the NCAA’s Limits on Education-Related Benefits Violate Federal Antitrust Law
In a recent unanimous decision, the Supreme Court of the United States in NCAA v. Alston ruled that the National Collegiate Athletic Association’s (NCAA) limits on education-related benefits are invalid under federal antitrust law. This decision will affect compensation rules for student-athletes and is perhaps a sign of potential changes ahead in the NCAA’s student-athlete compensation model. In Alston, NCAA Division 1 football and basketball student-athletes ...
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Virginia Has Created a New Right of Appeal for Civil and Criminal Litigants
Until this last legislative session, Virginia was the only state in the nation without a right of appeal from civil judgments and criminal convictions. However, the most recent General Assembly session passed, and the Governor signed, perhaps the most consequential piece of legislation affecting the Virginia legal system in many years: the creation of a right of appeal for most litigants, civil and criminal. Historically, ...
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Resolved, yet Unclear: Supreme Court Tightens CERCLA Contribution Claim Requirements
Joseph Romero Appellate Practice, Environmental, Environmental Law Monitor, Government Contracts, Litigation
In a unanimous decision, the Supreme Court ruled that a party’s right to contribution claims under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) after entering into a settlement arises only when the settlement agreement resolves CERCLA-specific liabilities. This decision may call into question the effect of existing settlement agreements, the viability of ongoing contribution cases, and may revive the ability of some parties ...
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In Split Decision, Federal Circuit Affirms Agency Exclusion of Proposals
In U.S. Government procurements, most solicitations specify that noncompliance with its terms and conditions may cause a proposal to be determined unacceptable or be deemed non-responsive and excluded from consideration. However, in some cases, the agency may alter the terms and conditions through pre-award discussions. In Safeguard Base Operations v. United States, the Federal Circuit considered the latitude an agency has to make such alterations ...
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11 tips to survive your freshman year as an associate
Article published by the ABA Journal on April 8, 2021 ...
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Extraordinary Times Call for Extraordinary Force Majeure Clauses
Article published in Virginia Lawyer | April 2021 | VOL. 69 | The Construction Law and Public Contracts Issue | Page 14-17 ...
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In Uninteresting Result, Federal Circuit Leaves Offeror Standing Outside the Courtroom
In order to bring an action in any United States tribunal, a party must have “standing.” “The doctrine [of standing] limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). To establish constitutional standing a “plaintiff must have (1) suffered an injury in fact, (2) ...
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“I Demand a Jury”: No Turning Back
At the beginning of most cases filed in state court, litigants must make up their mind whether they want to exercise their right to a jury trial. This decision requires consideration of multiple factors such as: What kind of case is it? Are the issues complex? Is a jury likely to find one side or another sympathetic? What many clients do not know, and may ...
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Federal Circuit Holds CICA Stay Clock Begins at Time of Debriefing When Disappointed Offeror does not Avail Itself of Right to Ask Additional Questions
No questions, no stay. The United States Court of Appeals for the Federal Circuit recently ruled on the interplay of debriefings and automatic stays.[1] In NIKA Technologies v. United States, the Federal Circuit reversed a Court of Federal Claims (“COFC”) decision requiring an automatic stay of contract performance pursuant to the Competition in Contract Act (“CICA”) that had been previously denied by the Government Accountability ...
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Federal Circuit Adopts Narrow Definition of “Printing” to Avoid Constitutional Separation of Powers Question
The U.S. Court of Appeals for the Federal Circuit recently reversed a bid protest decision appealed from the Court of Federal Claims after the protester raised a constitutional question. In Veterans4You LLC v. United States, the Department of Veterans Affairs (“VA”), an executive branch entity of the United State government (“USG”), sought to procure cable gun locks with information on the VA’s suicide prevention hotline ...
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To Infinity and Beyond Immediate Parties: The Fourth and Ninth Circuit Split on the Enforceability of “Infinite Arbitration Clauses”
Imagine walking into an AT&T store to sign up for a service plan and buy a new cellphone. Perhaps, you are excited to finally get your hands on the latest iPhone. At the same time your new phone is placed into one hand, a pen is placed into the other. You sign the dotted line at the bottom of the consumer service agreement. How carefully ...
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Subpoena Power of Arbitrators Over Non-Party Documents
Arbitration is a means for parties to resolve disputes in a more efficient and less costly manner than seeking recourse through the judicial system. The Federal Arbitration Act empowers the arbitrator to subpoena non-parties and their documents to an arbitration proceeding. However, there is disagreement among the courts regarding the arbitrator’s power to compel pre-hearing document production from non-parties. The federal circuits have approached this ...
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Supreme Court Extends Title VII Protections to LGBTQ Workers
On June 15, 2020, the United States Supreme Court officially declared that LGBTQ persons are protected from discharge or discipline because of sex under the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964. The Court’s landmark decision came as somewhat of a surprise considering that the Court’s current conservative majority was expected to move in the opposite direction. The Court unequivocally ...
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“Zone of Reasonableness” Test Prerequisite Addressed by the Federal Circuit
The so-called “zone of reasonableness” standard has been long applied by federal courts and boards of contract appeals in evaluating contract interpretation when the contract is deemed ambiguous – meaning that it is susceptible to more than one reasonable interpretation. Ambiguity does not exist merely because the parties differ in their respective interpretations of the contract; rather, the parties’ interpretation must be reasonable, with that ...
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Supreme Court Of Virginia Now Requires Votes Of Two Writ Panel Members To Grant An Appeal
Recently, the Supreme Court of Virginia decided to change its practice regarding the requirements for granting a petition for appeal to create a seemingly higher threshold. A party who wishes to appeal a lower court decision to the Supreme Court of Virginia typically may not take the appeal directly before the full Supreme Court. In fact, the majority of cases never reach the stage where ...
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Understanding Spoliation and an Attorney’s Role in Preventing the Destruction of Evidence
Click image for PDF version *This article originally appeared in the Journal of Civil Litigation, Vol. 28, No. 3 (Fall 2016), a publication of the Virginia Association of Defense Attorneys. It appears here with permission. [DISPLAY_ULTIMATE_PLUS] ...
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Federal Aviation Administration Finalizes Rules For Commercial Use Of Drones
[DISPLAY_ULTIMATE_PLUS] LAW TIPS Authored by Attorney Jay Rixey, jrixey@vanblacklaw.com, 757-446-8600 The Federal Aviation Administration (FAA) recently finalized the first operational rules, to be effective on August 29, 2016, governing the routine commercial use of small unmanned aircraft systems (UAS), also known as drones. The new regulations – codified at Part 107 of the Federal Aviation Regulations – are the first major step toward integrating the ...
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