The Lawletter Blog

CONSTITUTIONAL LAW AND CIVIL PROCEDURE: Are Federal District Courts Bypassing the U.S. Supreme Court’s Prohibition Against Nationwide Injunctions?

cjhicks@nlrg.com (Charlene J. Hicks) — Fri, 01 May 2026 13:17:58 GMT

The Lawletter Vol. 51 No. 2

“During the first 100 days of the second Trump administration, district courts issued approximately 25 universal injunctions.” Trump v. CASA, Inc., 606 U.S. 831, 840, 145 S. Ct. 2540, 2550 (2025). A universal injunction refers to the controversial practice wherein a single federal district court judge enters an injunction that takes effect throughout the nation. Not surprisingly, this practice induced chaos. “By the end of the Biden administration, we had reached ‘a state of affairs where almost every major presidential act [was] immediately frozen by a federal district court.’” Id.

In what seemed to be a landmark decision, the United States Supreme Court in CASA ruled that universal injunctions likely exceed the equitable authority that Congress granted to federal courts under the Judiciary Act of 1789. CASA precludes lower federal courts from issuing injunctions that prohibit enforcement of a law or policy against anyone, anywhere in the country. Id. at 837, 145 S. Ct. at 2548.

Even so, CASA did not fully address how the Supreme Court’s decision impacts the long-standing principle that courts of equity have the inherent authority to “fashion a remedy that awards complete relief.” Id. at 850, 145 S. Ct. at 2556. Although the CASA Court emphasized that equitable relief must be limited to providing complete relief to the plaintiffs in the case before it, the Court declined to address what should be done in situations where a nonparty injunction may be necessary for complete relief to be granted. Id. Instead, the Supreme Court left it to the lower courts to determine “whether a narrower injunction is appropriate” in such situations. Id. at 854, 145 S. Ct. at 2558.

Through this means, CASA left the door open for federal district courts to effectively bypass the prohibition against nationwide injunctions (or nonparty relief) through a specific finding that broad nonparty relief is “necessary” under the circumstances of the case. See Shaw v. Smith, 166 F.4th 61, 79 n.11 (10th Cir. 2026) (stating that in CASA, the Supreme Court “left open for lower courts to determine the scope of ‘complete relief’ when granting injunctions”). The district court may find nonparty relief to be “necessary” when the broad nature of the right violated requires the issuance of injunctive relief to persons other than the plaintiff before the court.

Adopting this reasoning, district courts have, for example, issued broad, statewide injunctions in cases involving aggregate group rights, such as voting rights/malapportionment or gerrymandering cases and civil rights cases affecting entire groups of similarly situated persons within a State. See, e.g., Etienne v. Ferguson, 791 F. Supp. 3d 1226, 1249 (W.D. Wash. 2025). In effect, where the district court finds that the injuries to the individual plaintiffs are inextricably connected with the mistreatment of a larger group, the court may reason that CASA does not preclude the issuance of a statewide, nonparty injunction. Moreover, it is not inconceivable that this reasoning could in some cases be extended beyond a single state’s borders.

In this regard, some district courts have noted that CASA does not reference prior Supreme Court precedent holding that when a law is unconstitutionally overbroad, "all enforcement of that law" may be enjoined. Welty v. Dunaway, 791 F. Supp. 3d 818, 843 (M.D. Tenn. 2025). Hence, some lower courts have issued broad—even nationwide—injunctions in the First Amendment context. Id.

Lower courts have also cited the existence of policy arguments that may favor the issuance of broad injunctions. See Shaw, 166 F.4th at 79 n.11. These policies may include the avoidance of piecemeal litigation or aiming for uniformity in a national policy such as immigration law. See generally CASA, 606 U.S. at 837, 145 S. Ct. at 2548.

Although it is clear that CASA largely precludes the former practice of a single district judge from prohibiting enforcement of a law throughout the entire nation, the exact scope of the decision remains uncertain. District judges still have the discretionary authority to fashion equitable remedies to afford complete relief in the case in front of them. This deeply rooted equitable principle could be employed to bypass CASA in ways that remain unseen and unanticipated as yet.

INSURANCE: Bad Faith Insurance Claims and Use of AI

Amy Gore — Fri, 01 May 2026 13:14:56 GMT

The Lawletter Vol. 51 No. 2

Amy Gore—Senior Attorney

With the corporate push to assimilate artificial intelligence (“AI”) into business, the insurance industry has started embracing the use of various AI tools in underwriting and certain claim-handling applications. However, traditional liabilities continue to be a risk to insurance companies.

In Estate of Lokken v. UnitedHealth Group, Inc., 766 F. Supp. 3d 835, 840 (D. Minn. 2025), the claimant alleged that United Health Group, Inc.’s use of AI to deny an insurance claim under a Medicare Advantage policy amounted to a breach of the insurer’s implied covenant of good faith and fair dealing. There, the claimant asserted that the insurance company used a program called “nH Predict” to deny a claim rather than have the submitted documentation reviewed by a physician, and that such reliance on the AI program amounted to common law bad faith. A similar claim was asserted against Humana in Estate of Barrows v. Humana, Inc., Civil Action No. 3:23-cv-654-RGJ, 2025 U.S. Dist. LEXIS 158565, at *1 (W.D. Ky. Aug. 14, 2025). In both cases, the court ruled on procedural grounds without addressing the bad faith accusations, although in Estate of Lokken, the claimants were permitted to proceed with their breach of contract and breach of the implied covenant of good faith and fair dealing claims.

These actions highlight a new area in the field of insurance bad faith litigation. Has the insurer relied on an AI-based program in its underwriting or claims resolution process? Furthermore, if an AI program was used by the insurance company, will it be insulated from a potential bad faith claim? What new discovery requests will be needed? Whether by statutory or common law standards, an insured seeking to recover under a bad faith claim must generally prove that the insurer's conduct was unreasonable, frivolous, or unfounded, and that the breach of the duty owed to its insured caused damages. See generally Fla. Stat. § 624.155; State Farm Mut. Auto. Ins. Co. v. Floyd, 235 Va. 136, 137, 366 S.E.2d 93, 93 (1988). While relying on the use of AI-generated programs may streamline the insurer’s claims-handling process, strict reliance on such programs can open the insurer up to further litigation in much the same manner as attorneys who carelessly rely on AI programs for their briefs. Ford v. Sherwin-Williams, No. 25-1022-DDC-GEB, 2026 U.S. Dist. LEXIS 69427, at *1 (D. Kan. Mar. 31, 2026); Hill v. Auto Club Fam. Ins. Co., No. 2:24-cv-00107-KS-BWR, 2025 U.S. Dist. LEXIS 182282, at *18 (S.D. Miss Sept. 17, 2025); Malone-Bey v. Lauderdale Cnty. Sch. Bd., No. 3:25-cv-380-KHJ-MTP, 2025 U.S. Dist. LEXIS 142684, 2025 WL 2098352, at *3 (S.D. Miss. July 25, 2025).

CIVIL PROCEDURE: Artificial Intelligence and Court Opinions

bturner@nlrg.com (Brett R. Turner) — Fri, 01 May 2026 13:12:21 GMT

The Lawletter Vol. 51 No. 2

Brett Turner—Co-President

Much attention has been paid in recent months to the misuse of artificial intelligence (“AI”) software by attorneys. But what about the use of AI software by judges?

In Payne v. State, No. S26A0459, the Georgia Supreme Court discovered that a trial court order dated September, 12, 2005, contained serious citation errors. Three cases cited in the order did not actually exist; three cases were properly cited, but language which was expressly quoted did not appear in the opinion; and three cases were properly cited, but their holdings were clearly misstated. These sorts of errors are common when AI is used to prepare a document explaining legal reasoning without sufficient human supervision.

The order stated that it was prepared by counsel for the State. Counsel was questioned closely at oral argument, and directed to submit an affidavit providing all information known to her as to how the trial court’s order came to include these citation errors. At least some of the errors were also contained in a series of reply briefs filed by the State in the trial court. Counsel for the State was also ordered to provide copies of the State’s proposed order, and all communications with the court regarding the order.

This overview is based upon a report by Anna Bowers found here. The report contains a copy of the Georgia Supreme Court’s order and a video of oral argument. There are also local media reports indicating that the state’s attorney apologized to the court for the citation errors, which resulted from misuse of AI. See, e.g., https://www.fox5atlanta.com/news/clayton-prosecutor-punished-using-ai-court-filings-citing-fake-cases; https://www.atlantanewsfirst.com/2026/03/30/attorney-with-clayton-county-das-office-apologizes-using-ai-citing-fake-cases-court-brief/.

The outcome of the Payne case remains to be seen. But a series of lessons already present themselves. First, counsel should double-check all legal citations for this sort of error, regardless of where the citations are found. The fact that a citation appears in a court order does not necessarily mean that no citation error is present. The order may be based upon citations submitted by counsel, as appears to have been the case in Payne; and it is far from impossible that the court itself may be responsible. Judges, no less than lawyers, need to be careful to verify all citations suggested by AI.

Second, citations need to checked for error at the time they are submitted, and not weeks or months afterward. It is quite striking that the serious citation issues in Payne were not discovered during post-judgment proceedings in the trial court, and were not discovered in the Georgia Court of Appeals. Only the Georgia Supreme Court discovered the errors. It is scary to think that errors of similar magnitude may well have gone undiscovered throughout the litigation process.

In other words, when litigating a case, and especially when appealing an unfavorable order, citation-checking should be among the first steps taken after an order is issued. Even if there is no time to check the substantive accuracy of citations, it should at least be possible to determine whether the case cited actually exists at the volume and page of the reporter indicated. Indeed, many major citation services provide a product which pulls the case citations out of a legal document and performs basic validation, such as checking whether the case actually exists and whether it has been expressly overruled. These services are not 100% reliable, because cases can be overruled by class or by implication. But they can at least be trusted to find out whether a cited case actually exists.

Third, it can actually be quite difficult to avoid the normal consequences of citing false authority to a court. Even if the trial judge and opposing counsel have a tendency not to double check citations, citations of false authority may be discovered on appeal. For a false citation to escape notice, it must often survive multiple levels of review.

This fact has an important effect upon the cost-benefit analysis involved when AI is used to obtain citations. The chance of submitting n briefs containing false authority is the chance of not getting caught on one brief, raised to the nth power. If the chance of getting caught is even five percent—that is, if the chance of avoiding detection on any one brief containing false authority is 95%—the chance of avoiding detection on 100 independent briefs is 95%, raised to the 100th power. That number is very small—just under 0.6%. And most trial attorneys file 100 briefs within their first few years of practice. Thus, over the long term, if an attorney regularly uses authority produced by AI without checking the citations, the chances of getting caught eventually are very close to 100%.

That fact should have a powerful effect upon the citation-checking process. It is increasingly well understood that AI, left unsupervised, tends to hallucinate. The legal world is slowly gaining experience in discovering hallucinations, and even a small chance of discovery quickly multiplies as the number of times AI is used increases. Against this background, to use AI regularly without checking citations is essentially to guarantee discovery. The only effective strategy for long-term survival is either to carefully double check all citations produced by AI or to refrain from using AI at all.

CIVIL PROCEDURE: Artificial Intelligence and Privilege

bschanz@nlrg.com (Becky Schanz) — Fri, 01 May 2026 13:05:55 GMT

The Lawletter Vol. 51 No. 2

Becky Schanz—Senior Attorney

As recently noted by Judge Jed Rakoff, “[g]enerative artificial intelligence presents a new frontier in the ongoing dialogue between technology and the law.” United States v. Heppner, 25 Cr. 503 (JSR), 2026 U.S. Dist. LEXIS 32697, at *14 (S.D.N.Y. Feb. 17, 2026). Courts are just beginning to wrestle with the use of artificial intelligence (“AI”), but a few recent cases address whether privilege applies to AI use.

In Heppner, the district court held that the defendant’s conversations with an AI platform were not protected as work-product or by attorney-client privilege. Id. at *1. The defendant had been indicted on charges of securities and wire fraud and a search of his home produced his communications with a generative AI platform. Id. at *2-4. The defendant asserted that the communications occurred in preparation for a possible indictment and were privileged because they included information from his attorney, were to prepare for speaking with his attorney, and were ultimately shared with his attorney. Id. at *4-5.

Stating that attorney-client privilege protects "communications (1) between a client and his or her attorney (2) that are intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or providing legal advice,” the court determined that the AI documents failed to meet at least two of the elements for the privilege to apply. Id. at *5-6 (quoting United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011)). The generative AI platform was not an attorney and the communications were not confidential, both because the AI platform collected data on its users that it could disclose to third parties and because the AI platform itself is a third party. Id. at *6-7. The court further determined that the third element is also lacking because the defendant did not intend to obtain legal advice and was not directed by his attorney to use the platform. Id. at *8-9. The court noted that when the “Government asked [the AI platform] whether it could give legal advice, it responded that ‘I'm not a lawyer and can't provide formal legal advice or recommendations,’” before telling the user to consult an attorney. Id. at *9. The court also determined that the work product doctrine did not apply because the AI documents were not prepared by or at the request of an attorney nor did they show the defense counsel’s legal strategy. Id. at *11.

Around the same time, a magistrate judge in Michigan, in an employment discrimination case, denied the defendant’s discovery request for all information on the pro se plaintiff’s use of AI for the case. Warner v. Gilbarco, Inc., No. 2:24-cv-12333, 2026 U.S. Dist. LEXIS 27355, at *11 (E.D. Mich. Feb. 10, 2026). The court determined that the information was prepared in anticipation of litigation and was not discoverable. Id. The court rejected the defendant’s argument that the plaintiff waived her work-product privilege by using AI because the waiver had to be to an adversary and an AI program is not a person, but a tool. Id. at *12. The defendants also had no evidence that the plaintiff had uploaded confidential documents to the AI platform. Id. at *11 n.3.

In another employment discrimination case with a pro se plaintiff, the court held that the pro se plaintiff could protect his AI use, but had to disclose the platform he used to allow the defendant to determine if it provided sufficient protections for confidential information. Morgan v. V2X, Inc., Civil Action No. 25-cv-01991-SKC-MDB, 2026 U.S. Dist. LEXIS 67939, at *1-2 (D. Colo. Mar. 30, 2026). The court noted that both parties were using AI, but they disputed how it should be used with regard to confidential information. Id. at *4. The court distinguished Heppner because it was a criminal case and because the defendant acted on his own, without the advice of his counsel. Id. at *10. The court also reviewed Warner, finding it applicable because the plaintiff could also argue that his AI use was protected by the work-product doctrine. Id. at *10-11. The court found that simply using an electronic third-party system did not automatically waive the expectation of privacy. Id. at *12. Because AI platforms engage with the user, they invite the disclosure of information in a way that a general search engine did not. Id. The court held that the pro se plaintiff’s AI use was entitled to some work-product protection, but he must disclose which AI platform he used. Id. at *14-16.

Taken together, these cases suggest that it is unwise practice to discuss one’s legal problems with AI. The law on this issue is not fully developed, but there is a respectable chance that statements made to AI might be subject to discovery and admissible in court in at least some situations.

EMPLOYMENT: Trump’s DEI Executive Orders Survive Constitutional Attack

Nadine Roddy — Fri, 27 Feb 2026 15:01:12 GMT

The Lawletter No. 51 Vol. 1

Nadine Roddy, Senior Attorney

On February 6, 2026, the U.S. Court of Appeals for the Fourth Circuit vacated a nationwide preliminary injunction blocking key provisions of two Executive Orders (“EOs”) issued by President Trump, finding that they were not facially unconstitutional. Nat’l Ass’n of Diversity Officers in Higher Educ. v. Trump, No. 25-1189, ___ F.4th ___, 2026 WL 321433 (4th Cir. Feb. 6, 2026).

EO 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” and EO 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” addressed diversity, equity, and inclusion (“DEI”) programs of federal agencies, grantees, and contractors. The court had previously stayed the injunction pending appeal. The three-judge panel remanded the case to the U.S. District Court for the District of Maryland for further proceedings, leaving open the possibility of challenges based on individual application of the EOs (“as applied” challenges).

At the outset of his second term, President Trump issued the EOs with the goal of eliminating “illegal” DEI programming in the government and private sectors. EO 14151 ordered each “agency, department, or commission head” to “terminate, to the maximum extent allowed by law, all ‘equity-related’ grants or contracts [the Termination Provision].” EO 14173 ordered agency heads to include provisions in every contract or grant award (1) certifying that the grantee did not operate any programs promoting DEI in violation of federal anti-discrimination laws, and (2) making compliance with federal anti-discrimination laws “material to the government’s payment decisions” for False Claims Act purposes (the Certification Provision). The EO also directed the Attorney General to submit recommendations and a strategic plan for enforcement actions to challenge illegal DEI “programs or principles . . . that constitute illegal discrimination or preferences” in the private sector (the Enforcement Threat Provision).

The plaintiffs—the Mayor and City Council of Baltimore, the National Association of Diversity Officers in Higher Education, the American Association of University Professors, and Restaurant Opportunities Centers United—filed suit against President Trump, Attorney General Bondi, and other federal agency heads, asserting that these and other provisions of the EOs violated the First and Fifth Amendments on their face.

In a decision issued on February 6, 2026, the Fourth Circuit first determined that the plaintiffs had standing to challenge the Termination and Certification Provisions of the Orders. However, they lacked standing to challenge the Enforcement Threat Provision, as that provision was purely intra-governmental, and the plaintiffs did not sufficiently allege an injury-in-fact.

Concerning the facial constitutionality of the Termination Provision, the plaintiffs asserted a Fifth Amendment challenge, arguing that the provision was unconstitutionally vague because it failed to define what constituted “equity-related” grants or contracts. The court disagreed, noting that the provision only “instruct[ed] the President’s subordinates to act, and then only ‘to the maximum extent allowed by law.’” 2026 WL 321433, at *8. Further, courts allow greater latitude for vagueness when the government acts as a funding patron—as in this case—rather than as a criminal or regulatory sovereign. Any uncertainty in how federal agencies apply the directive may give rise to as-applied legal challenges, but it does not render the provision facially invalid, the court concluded.

In its First Amendment challenge to the Certification Provision, the plaintiffs contended that the provision impermissibly discriminated based on viewpoint, and it also chilled protected speech by targeting DEI programs. The court disagreed once again, noting that the provision required only certification of compliance with existing federal anti-discrimination laws—laws with which the plaintiffs already had to be in compliance.

For these reasons, the court concluded that the plaintiffs were unlikely to succeed on the merits of their claims, and thus the permanent injunction would be vacated and the case remanded for further proceedings.

CONTRACTS: SCOVA Fumbles Golden Opportunity to Incorporate Adequate Assurance Doctrine into Virginia Common Law

pferrer@nlrg.com (Paul A. Ferrer) — Fri, 27 Feb 2026 14:55:09 GMT

The Lawletter Vol. 51 No. 1

Paul Ferrer, Senior Attorney

The common law is, by definition, judge-made law. See, e.g., Ballentine’s Law Dictionary (3d ed. 2010) (defining “common law” as “[t]hose principles, usages and rules of action . . . which do not rest for their authority upon any express or positive statute or other written declaration, but upon statements of principles found in the decisions of the courts”). The Supreme Court of Virginia has long expressed that “[o]ne of the great virtues of the common law is its dynamic nature that makes it adaptable to the requirements of society at the time of its application in court.” Surratt v. Thompson, 212 Va. 191, 193, 183 S.E.2d 200, 202 (1971) (quotation marks omitted). The court has consistently expressed this understanding of the protean nature of the common law despite a Virginia statute mandating that “[t]he common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.” Va. Code Ann. § 1-200. Thus, the court has indicated that Code § 1-200 “does not mean that common law rules are forever chiseled in stone, never changing. The common law is dynamic, evolves to meet developing societal problems, and is adaptable to society’s requirements at the time of its application by the Court.” Cline v. Dunlora S., LLC, 284 Va. 102, 106-07, 726 S.E.2d 14, 16 (2012) (quotation marks omitted). And yet, in Under Wild Skies, Inc. v. NRA of AmericaUnder Wild Skies, Inc. v. NRA of Am., 304 Va. 310, 319, 915 S.E.2d 514, 519 (2025), the court declined to incorporate the universally well-regarded doctrine of adequate assurance into the Virginia common law, ostensibly because “[t]he decision to adopt a new doctrine applicable to all contractual disputes is a policy decision that is more appropriately left to the legislature.”

The doctrine of adequate assurance was first adopted in Article 2 of the Uniform Commercial Code (“UCC”), which applies only to contracts for the sale of goods. Section 2-609 of the UCC provides that “[w]hen reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance and until he receives such assurance may if commercially reasonable suspend any performance for which he has not already received the agreed return.” UCC § 2-609(1). If the promisor does not provide the requested assurance within 30 days, then the promisee making the demand may treat it as “a repudiation of the contract.” UCC § 2-609(4). As the court pointed out in Under Wild Skies, while the doctrine of adequate assurance was first set out in UCC § 2-609, it was adopted to address the “dilemma” posed by, among other things, the common-law doctrine of breach of contract by anticipatory repudiation (i.e., before performance is due) when the promisor’s actions are uncertain or equivocal. Under Wild Skies, 915 S.E.2d at 517-18. In that event, the promisee is caught between suspending its own performance, and thereby risking being itself in breach if the promisor is later determined not to have breached by anticipatory repudiation, and continuing with the contract but potentially foregoing damages that could have been mitigated if it is later determined that the promisor had, in fact, committed an anticipatory breach. See id. at 518 (quoting and discussing Gregory S. Crespi, The Adequate Assurances Doctrine after U.C.C. 2-609: A Test of the Efficiency of the Common Law, 38 Vill. L. Rev. 179 (1993)).

Since its adoption, section 2-609 of the UCC has proven to be a “useful and uncontroversial means” of dealing with the dilemma posed by the doctrine of anticipatory repudiation, as well as for implementing in a commercially reasonable manner “both promisors’ duties of good faith and fair dealing and promisees’ mitigation of damages responsibilities.” Crespi, 38 Vill. L. Rev. at 184. In fact, the doctrine of adequate assurance has been so successful that it was applied to all contracts in section 251 of the Restatement (Second) of Contracts (1981) and from there by courts in numerous jurisdictions. See id. at 191-92 & nn. 45, 49-52 (collecting cases); Under Wild Skies, 915 S.E.2d at 518 (same).

In short, courts and commentators have widely agreed that the doctrine of adequate assurance effectively deals with a problem caused for contracting parties by the intersection of three common-law doctrines—anticipatory repudiation, the implied covenant of good faith and fair dealing, and mitigation of damages—all of which are well established in Virginia. See Under Wild Skies, 915 S.E.2d at 517. That makes it all the more puzzling that the Virginia Supreme Court failed to rely on the “dynamic” nature of the common law to solve this “societal problem,” rather than punting and leaving it up to the legislature to fix the dilemma that was created by judge-made law in the first place. Cline, 284 Va. at 107, 726 S.E.2d at 16.

WORKERS’ COMPENSATION: Particular Workplace Conditions and Duties Can Create Risk of Dog Bites So That Injury “Arises” from Employment

tsifka@nlrg.com (Trish Sifka) — Fri, 27 Feb 2026 14:51:20 GMT

The Lawletter Vol. 51 No. 1

Trish Sifka, Senior Attorney

Dog bite injuries do not just occur in neighborhoods. If a dog bites an employee while at work, the Virginia Workers’ Compensation Action may be the plaintiff’s exclusive remedy, even if being a dog trainer, sitter, or other kind of dog care or handling is not the plaintiff’s occupation or primary duty. Generally, the Virginia Workers' Compensation Act (“VWCA”), Va. Code Ann. § 65.2-100 et seq., provides the exclusive remedy for workplace injuries arising out of and in the course of employment. (Emphasis added.) As recently held by the Virginia Court of Appeals, if the work conditions and employee duties create a particular or a peculiar risk of dog bite injury, the plaintiff employee’s personal injury action will be barred. Vidunas v. Camp Mont Shenandoah Ltd., No. 2008-24-3, 2025 Va. App. LEXIS 700, at *9, 2025 WL 3083717 (Nov. 5, 2025).

Plaintiff Catherine Vidunas was the barn manager for Defendant Camp Mont Shenandoah, Limited, "a small, traditional, all-girls camp." Id. at *1. Defendant Ann Warner was Vidunas’s employer and the majority stockholder for the camp. Id. At the time of the injury in the summer of 2021, Vidunas provided horse care and stable maintenance, selected horses, assisted in organizing and planning equestrian events, and responded to any miscellaneous requests from Warner and the riding director. Id. at *2. During that summer, Vidunas knew that Warner would regularly bring her two dogs, Rollin and Otis, and walk them around the campsite with her. It was known that the border collie, Otis, had previously bitten someone when he was a puppy, but had not been a problem until the day in question. The day before a horse show in August 2021, Warner asked Vidunas to “trot” a certain horse to determine potential “lameness.” Id. at *2. Warner showed up with Otis to jog beside the horse during this trot exercise. While the riding director led the horse from the front, “Vidunas followed the horse ‘clucking’ with a ‘raised voice,’ waving and clapping her hands, and smacking the horse's rump,” while running. Id. at *2-3. As Otis witnessed Vidunas running up behind and chasing his owner, Warner, Otis ran over and bit Vidunas in her calf, thereby causing injury necessitating medical attention. Id. at *3.

Vidunas filed a personal injury suit based on the defendants’ negligence causing her injuries. Id. at *3-5. The defendants filed a plea in bar which was later amended in an appeal before the circuit court in August 2024, which asserted that the VWCA barred the action. Id. Notably, the VWCA will not apply unless both conditions of, “arising out of” and “in the course of,” employment are satisfied. Id. at *5-6. "The 'arising out of' requirement focuses on 'the origin or cause of the injury'." Id. at *6. There must be a causal connection between the injury and the conditions of employment “under which the employer requires the work to be performed.'" Id. (quoting Lopez v. Intercept Youth Servs., Inc., 300 Va. 190, 197, 861 S.E.2d 392 (2021) (quoting R&T Invs., Ltd. v. Johns, 228 Va. 249, 252, 321 S.E.2d 287 (1984))). In other words, the actual risk is "'peculiar to the work and not common to the neighborhood.'" Id. (quoting Taylor v. Mobil Corp., 248 Va. 101, 107, 444 S.E.2d 705 (1994) (internal citations omitted)). “The risk ‘need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence’." Id. (quoting Simms v. Ruby Tuesday, Inc., 281 Va. 114, 123, 704 S.E.2d 359 (2011) (quoting Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684 (1938))).

Vidunas claimed that the dog bite injury did not “arise out of" her employment as a barn manager, by relying on Virginia’s Supreme Court decision in Lipsey v. Case, 248 Va. 59, 445 S.E.2d 105 (1994), in which the VWCA did not bar a negligence suit where a dog bit a horse farm employee. However, the similarity between Vidunas’s situation and Lipsey was considered “superficial.” Vidunas, 2025 Va. App. LEXIS 700, at *6-7. Lipsey was an unpaid student horse trainer who was bit by another student’s dog while on her lunch break at the student residence house at the farm. Id. Instead, the unpublished court of appeals decision in Prince William County School Board v. Fogarty, No. 1866-98-4, 1999 Va. App. LEXIS 513 (Aug. 31, 1999), was the most persuasive authority. Vidunas, 2025 Va. App. LEXIS 700, at *7. Fogarty was an assistant principal who was bitten “when her supervising principal thrice instructed her to meet his dog at the school during working hours” Id. (citing Fogarty, slip op. at 2, 1999 Va. App. LEXIS 513, at *2-3).

Moreover, some unpublished spider bite cases further illustrated the distinction. Id. at *7. The VWCA applied especially where the work conditions showed that the employee was regularly subjected to spiders at the workplace due to office construction. Id. at *9 (citing James Madison Univ. v. Housden, No. 1252-19-3, 2020 Va. App. LEXIS 63 (Mar. 10, 2020)). Thus, the court held that “an animal bite arises out of employment if the employer requires the employee to work under conditions where such a bite is peculiarly likely.” Id. Lipsey did not assert that the employer’s work conditions or instructions did not include physical contact with dogs. Id. Yet, “Warner not only instructed Vidunas to trot the horse, she required that Vidunas do so in Otis and Rollins's presence.” Id. at *8. Warner also “required her to run behind a horse, making loud noises and slapping the horse's rump, while the employer ran alongside with her dog. Those were the conditions of Vidunas's employment.” Id. at *9-10. The case was dismissed with prejudice.

CIVIL PROCEDURE: Sanctions for Attorney who Repeatedly Submitted Error-Riddled AI-Generated Briefs

ldunham@nlrg.com (Lee P. Dunham) — Fri, 27 Feb 2026 14:47:20 GMT

The Lawletter Vol. 51 No. 1

Lee Dunham, Senior Attorney

On February 5, 2026, Judge Failla of the United States District Court for the Southern District of New York issued an Opinion and Order in Flycatcher Corp. Ltd. v. Affable Avenue LLC, 24 Civ. 9429 (KPF), 2026 U.S. Dist. LEXIS 23980 (S.D.N.Y. Feb. 5, 2026), imposing severe Rule 11 sanctions on attorney Steven A. Feldman for repeatedly filing apparently AI-generated submissions with false citations, including an initial motion to dismiss and several more briefs in response to the court’s Order to Show Cause why the initial motion should not be dismissed.

The Opinion is notable for its detailed (and often bitingly funny) description of the kinds of outlandish bad-faith shenanigans that will invite the rare remedy of terminal sanctions. It also serves as a warning that, if courts ever considered the novelty of Large Language Models (“LLMs”) to be an excuse or mitigating factor for attorneys who misuse the technology, that kind of leniency can no longer be expected.

The court described Feldman’s initial brief in support of the motion to dismiss as “peppered with false citations,” including “at least thirteen cases that did not exist, and eight cases that did exist but did not contain the quotes . . . attributed to them.” The brief also contained a three-page “introduction” as well as a largely duplicative “preliminary statement,” which made opposing counsel suspicious that Feldman had used an LLM such as ChatGPT to generate the brief. When opposing counsel sent him an email notifying him of the errors and demanding that he withdraw the brief, Feldman offered a “convoluted excuse” and claimed that he would replace the erroneous citations, but offered no timeline to do so. Opposing counsel notified the court by letter when Feldman failed to withdraw or correct the brief, and the court ordered Mr. Feldman to show cause why the brief should not be stricken from the docket and Rule 11 sanctions imposed on him.

Feldman appears to have relied on an LLM again to draft a response to the show cause order, which the court described as being “noteworthy for its conspicuously florid prose,” including “an extended quote from Ray Bradbury’s Fahrenheit 451,” “metaphors comparing legal advocacy to gardening,” and a reference to the “sacred trust” signified by the styluses carried by the scribes of the “ancient libraries of Ashurbanipal.” “Needless to say,” these rhetorical flourishes “raised the Court’s eyebrows.” Astonishingly, the response also contained a misquotation, which appeared to be AI-generated, from Mata v. Avianca, Inc., 678 F. Supp. 3d 443 (S.D.N.Y. 2023), a seminal case about AI-generated “hallucinated” citations. The court scheduled a conference for Mr. Feldman to explain himself, to “give him the opportunity to — as he puts it — ‘prove [himself] worthy to carry the stylus once more in service of justice and truth.’” The court emphasized that all lawyers “must know how to verify that a case exists on Westlaw without the added benefit of AI tools,” and that Feldman was “not excused from this professional obligation by dint of using emerging technology.”

Thereafter, Feldman requested leave to submit a proposed reply brief. Opposing counsel notified the court of yet more citations to nonexistent and apparently “AI hallucinated” cases in the proposed brief.

At the conference, Feldman was evasive and offered convoluted explanations that failed to satisfactorily explain the problematic submissions. The transcript can be found at https://storage.courtlistener.com/recap/gov.uscourts.nysd.633195/gov.uscourts.nysd.633195.223.0.pdf. The court concluded that he “misused AI in three separate filings, which resulted in the submission of nonexistent cases and misattributed quotes.”

The court cited Park v. Kim, 91 F.4th 610, 615 (2d Cir. 2024), for the proposition that Rule 11 requires, at a minimum, that attorneys must “read, and thereby confirm the existence and validity of, the legal authorities on which they rely.” The court also noted that it had inherent authority to impose sanctions for bad faith conduct. Because Feldman “violated Rule 11 repeatedly and brazenly, despite multiple warnings from the Court and fellow counsel,” the court elected to impose terminal sanctions by entering a default judgment as to his client, and ordered opposing counsel to submit an application for attorneys’ fees.

IMMIGRATION LAW: Gang Violence and Relief from Removal Fourth Circuit Update

sbailey@nlrg.com (Suzanne L. Bailey) — Mon, 05 Jan 2026 13:19:07 GMT

The Lawletter Vol. 50 No. 4

IMMIGRATION LAW: Gang Violence and Relief from Removal Fourth Circuit Update

Suzanne Bailey—Senior Attorney

With the widely reported drama surrounding escalated enforcement by Immigration and Customs Enforcement, it is easy to lose sight of the fact that not every apprehension is the end-of-the line for non-citizens who have unlawfully entered the United States. Some non-citizens are permitted by U.S. law to remain in the United States.

A recent decision from the Fourth Circuit Court of Appeals addresses two potential avenues of relief for those for whom a return to their homeland would pose a danger that could not be alleviated by their own governments. See Ramos Marquez v. Bondi, No. 24-1842, ___ F.4th ___, 2025 U.S. App. LEXIS 30262, 2025 WL 3223424 (4th Cir. Nov. 19, 2025).

Carlos Ramos Marquez, a citizen of Honduras, left his country and entered the United States in May 2019. He was put in removal proceedings in 2023. He conceded that he was removable, but filed requests for the relief of (1) withholding of removal, 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.16(b), and (2) protection pursuant to the Convention Against Torture ("CAT"), 8 C.F.R. § 1208.16(c). Withholding of removal is available to a noncitizen who demonstrates a clear probability that, if removed to a particular country, their "life or freedom would be threatened in that country because of [his] race, religion, nationality, membership in a particular social group, or political opinion." Ramos Marquez, 2025 U.S. App. LEXIS 30262, at *14 (quoting 8 U.S.C. § 1231(b)(3)(A)). "Proof of past persecution in the proposed country of removal entitles the applicant to a rebuttable presumption that his life or freedom would be threatened." Id. at *15 (citing 8 C.F.R. § 1208.16(b)(1)(i)). The government can rebut the presumption by demonstrating by a preponderance of the evidence either that "there has been 'a fundamental change in circumstances such that the applicant's life or freedom' would no longer be threatened or that the applicant could avoid future harm 'by relocating to another part of the proposed country of removal.'" Id. (quoting 8 C.F.R. § 1208.16(b)(1)(i)(A)-(B)). Applicants cannot establish a clear probability of future persecution if they could avoid persecution by relocating within their country. 8 C.F.R. § 1208.16(b)(2). Protection pursuant to the CAT requires an applicant to "establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal." Id. at *25 (quoting 8 C.F.R. § 1208.16(c)(2)). The applicant bears the burden of proof. Id. "For purposes of the CAT, torture includes only conduct 'by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity.'" Id. at *25-26 (quoting 8 C.F.R. § 1208.18(a)) (emphasis added).

At the hearing before the Immigration Judge ("IJ"), Ramos Marquez testified to a reign of terror against him and members of his family ("a particular social group") by MS-13[1] members. The gang murdered one of his brothers in 2014 or 2015 in one town in Honduras. Some years later, another brother opened a business in another town, and Ramos Marquez worked there. In 2018, MS-13 members went to the business, threatened Ramos Marquez, and demanded extortion from his brother. The threats continued until the brother closed up shop and moved to yet another town in Honduras. Gang members then focused their attention on Ramos Marquez, trying to extort money from him, to get him to join the gang, and to turn in his brother to them. When he refused to cooperate, they resorted to physical violence on two occasions. The first time, he sought medical attention near his sister's home about 30 minutes from where he had been living and working and was assaulted and ultimately moved in with his sister. After the second serious assault, Ramos Marquez stayed inside his sister's house until he fled to the United States in April 2019. MS-13 members continued to send Ramos Marquez Facebook messages demanding money in 2020, even while he was living in the United States. In August 2021, the MS-13 members killed his other brother. In July 2022, Ramos Marquez's sister fled to the United States after MS-13 members threatened her when they came to her house looking for him. Police reports were filed by others concerning the murders of his brothers and the threat to his sister, but no arrests were made. Ramos Marquez never reported any of the assaults on him by MS-13 to the police because, as he explained at his hearing, the government was corrupt and nonresponsive and the gangs always found out when someone filed a complaint. The IJ found his testimony to be credible. Ramos Marquez, 2025 U.S. App. LEXIS 30262, at *2-7.

Nonetheless, the IJ and, ultimately, the Board of Immigration Appeals ("BIA") denied the application for withholding of removal because they determined that he had not been subject to past persecution by an entity Honduras was "unable or unwilling" to control, i.e., MS-13, and because he had not shown that he could not reasonably relocate to another place in Honduras to avoid future persecution. Id. at *14-16. The BIA affirmed the IJ's denial of protection under the CAT on the ground that Ramos Marquez did not establish that the Government of Honduras would acquiesce in any torture by MS-13. Id. at *26.

The Fourth Circuit reversed the decision of the BIA and remanded for a new hearing, finding that the IJ disregarded credible evidence without explanation, including evidence that Honduras would acquiesce in his torture if he were returned to the country; the evidence in the record compelled a conclusion that Ramos Marquez demonstrated that Honduras is unable or unwilling to control the MS-13 gang; reporting his past persecution to Honduran authorities would have been futile or subjected him to further harm; and he could not have relocated to avoid persecution. Id. at *1-2. The dissent argued that the majority failed to defer to the administrative findings of the IJ and the BIA.

There are several key take-aways from this decision. In the Fourth Circuit, there is no per se requirement to report persecution to the police, and the IJ must carefully weigh credible evidence of futility or danger in reporting such persecution. Token or merely procedural police response to the report of a crime does not, without more, prove that a state is “willing and able” to protect victims from powerful gangs. Once past persecution by a non-state actor whom the government cannot control, such as MS-13, is established, the burden shifts to the government to rebut the presumption of future persecution, including on the issue of relocation within the country. A review of the record requires that the IJ and the BIA meaningfully engage with evidence of conditions within the country, especially in CAT cases where such evidence can be dispositive of governmental acquiescence. Finally, the Fourth Circuit will treat the IJ’s or the BIA's unexplained disregard of credible, unrebutted, legally significant evidence as an abuse of discretion, even under a highly deferential substantial-evidence standard of review.

[1] La Mara Salvatrucha, commonly known as MS-13, a large and violent street gang, is a U.S. export which has spread to Mexico and Central America and is the frequent source of claims of persecution and torture by applicants for relief from removal. Ramos Marquez, 2025 U.S. App. LEXIS 30262, at *2 n.1.

CIVIL PROCEDURE: UFOs, Aliens, and Helicopters: A Study in Improper Parties

mmcdavitt@nlrg.com (Matthew T. McDavitt) — Mon, 05 Jan 2026 12:41:04 GMT

The Lawletter Vol. 50 No. 4

CIVIL PROCEDURE: UFOs, Aliens, and Helicopters: A Study in Improper Parties

Matthew T. McDavitt—Senior Attorney

By federal complaint filed January 9, 2013, plaintiff Shirley Durante—clearly suffering from some unstated mental health issue—sued defendants: (1) Massachusetts real estate broker Todd Sandler, (2) UFOs, (3) Aliens, and (4) Helicopters, alleging that aliens from Jupiter and Mars were harassing her:

Shirley Durante . . . complains that helicopters, UFOs, and aliens have been harassing her with laxatives and bright lights which burn her face and eyes. This harassment is destructive to her property as well, damaging three car mirrors. It appears that in some unspecified way Todd Sandler and family of Randolph, Massachusetts, have something to do with this harassment. Durante has written to the Department of Homeland Security and Senator Susan Collins about this harassment, but apparently has received no assistance. She has also gone to the Maine state courts seeking relief from the harassment. She has now determined that her recourse is to file a federal lawsuit.

Durante v. Sandler, No. 1:13-cv-00009-JAW, 2013 U.S. Dist. LEXIS 16653, at *1 (D. Me. Jan. 9, 2013). Ms. Durante included as exhibits to such complaint: (1) an image of a ghostly alien face; (2) a fake news report she seemingly authored containing the same idiomatic language and frequent misspellings as her complaint stating that “top secret” information confirms that 35,000 aliens are active in the United States abducting people and probing them, evidenced by lights being shone to one’s eyes, objects being surgically implanted into one’s body, the development of anemia, interruption of normal bladder & bowel function, and the presence of mysterious helicopters; (3) a letter she drafted to U.S. Senator Susan Collins seeking assistance in getting the alleged alien harassment to cease; (4) a letter purportedly from a local optometrist informing the judge, the district attorney, and the local police department that Shirley should not have bright lights shone in her face; (5) a letter supposedly from a local family medical practice in support of restraining aliens from harassing her, though again, evidencing her own idiomatic language; (6) a letter purportedly from the U.S. Department of Homeland Security (though incorrectly naming the director of such department) ordering the aliens to refrain from stalking her, damaging her cars, probing her body, causing bodily harm, conducting mind scans, and placing optical sensors in her eyeglasses, windows, and/or vehicle windshield; and (7) a Complaint for Protection from Harassment under 5 M.R.S.A. §§ 4651 et seq. naming as Defendant “Any Alien Life Form involved.”

From a civil procedure standpoint, aside from Defendant Todd Sandler, the three other named Defendants are plainly improper under federal practice, as such parties are by nature non-suable entities, i.e.: (1) UFOs, (2) Aliens, and (3) Helicopters, as vehicles and the alleged extraterrestrial entities are not amenable to receiving service of process because neither vehicles nor purported space aliens are legal “persons” under U.S. law.

In one analogous federal opinion, a prisoner attempted to sue the Devil, “alleg[ing] that Satan has on numerous occasions caused plaintiff misery and . . . placed deliberate obstacles in his path and has caused plaintiff's downfall” and imprisonment. United States ex rel. Mayo v. Satan & His Staff, 54 F.R.D. 282, 283 (W.D. Pa. 1971). The federal district court rejected the plaintiff’s designation of Satan as a proper defendant on the ground that service of process could not be effectuated on an alleged supernatural entity with no fixed address. Id.

In the present matter, Plaintiff Shirley Durante likewise improperly named as party Defendants entities wholly lacking the capacity to be served with process, namely: (1) inanimate vehicles (UFOs and helicopters), and (2) alleged supernatural beings (aliens). Because helicopters, UFOs, and aliens are not legal entities capable of being sued, the complaint claims against such vehicles and purported extraterrestrial beings were dismissed for failing to identify proper parties against whom relief could be granted. It is axiomatic that “[w]hen a party does not have the capacity to be sued, a court lacks personal jurisdiction over it.” Copeland v. Morgan Stanley Cap. Tr., No. CV 23-3536-AB (JPR), 2024 U.S. Dist. LEXIS 155948, at *3 (C.D. Cal. Aug. 29, 2024).

In the Durante v. Sandler suit, the Complaint was summarily dismissed by the United States District Court for the District of Maine by a judgment dated February 6, 2013, on the stated grounds that the action was fundamentally frivolous, as “the plaintiff’s allegations are both irrational and wholly incredible . . . .” 2013 U.S. Dist. LEXIS 16653, at *2 (accepting the Magistrate Judge’s recommended decision filed January 9, 2013).