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.”

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.

Matthew T. McDavitt—Senior Attorney

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

      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.

Paul Ferrer—Senior Attorney

        The United States Supreme Court decided a crucial question concerning a federal court’s removal jurisdiction in Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22 (2025). If a complaint filed in a state court asserts a claim or claims under federal law, then the defendant may remove the case to the U.S. district court for the district and division embracing the place where the state action was filed. See 28 U.S.C. § 1441(a). And if the complaint also asserts a claim or claims under state law arising out of the same facts, then the federal court can exercise “supplemental jurisdiction” over those claims and adjudicate them too. See 28 U.S.C. § 1367(a). But what happens, as the Supreme Court put the question in Royal Canin, “if, after removal, the plaintiff amends her complaint to delete all the federal-law claims, leaving nothing but state-law claims behind? May the federal court still adjudicate the now purely state-law suit?” 604 U.S. at 25.

Paul Ferrer—Senior Attorney

         The United States Supreme Court has limited one of the U.S. Securities and Exchange Commission’s (SEC’s) major tools for penalizing securities fraud by ruling that the Seventh Amendment requires a jury trial when the SEC seeks civil penalties against a defendant. See SEC v. Jarkesy, 144 S. Ct. 2117 (2024). And the decision may have much more far-reaching implications by calling into question the ability of other government agencies to seek civil penalties.

            Three of the primary federal statutes regulating the registration and trading of securities—the Securities Act of 1933, the Securities Exchange Act of 1934, and the Investment Advisers Act of 1940—all contain antifraud provisions that target the same basic behavior: misrepresenting or concealing facts that would be material to an investor’s decision. These statutes are enforced by the SEC, which may bring an enforcement action either (1) in its own forum, an administrative proceeding, or (2) in a federal court action. In federal court, a federal judge presides, a jury decides the facts, proceedings are governed by the Federal Rules of Evidence, and discovery is had under the Federal Rules of Civil Procedure. By contrast, when the SEC adjudicates the matter in-house, its Division of Enforcement prosecutes the case and the SEC presides and finds the facts, although the SEC may delegate its role as judge and fact finder to one of its administrative law judges (ALJs). The SEC or its ALJ decides discovery disputes and determines the scope and form of permissible evidence pursuant to the SEC’s own Rules of Practice. The SEC can, but does not have to, review the ALJ’s findings and conclusions. Judicial review is available but is deferential.

Trish Sifka—Senior Attorney

          It should be no surprise that a federal appellate court generally does not have jurisdiction to review immediate appeals of denials of motions for summary judgment. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949); Iko v. Shreve, 535 F.3d 225, 234 (4th Cir. 2008) (noting this exception to the rule that "interlocutory appeals are generally disallowed"). “But, under the collateral order doctrine, appellate jurisdiction extends to ‘a narrow class of decisions that do not terminate the litigation,' but are sufficiently important and collateral to the merits that they should 'nonetheless be treated as final.'" United States ex rel. Citynet, LLC v. Gianato, 962 F.3d 154, 158 (4th Cir. 2020) (“Gianato”) (citing Will v. Hallock, 546 U.S. 345, 347, 126 S. Ct. 952, 163 L. Ed. 2d 836 (2006) (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S. Ct. 1992, 128 L. Ed. 2d 842 (1994))).  

Lawletter Vol  48 No. 3

The Utility of a Declaratory Judgment Action

Paul Ferrer—Senior Attorney

          Most states, as well as the federal government, have enacted some form of declaratory judgment act, which authorizes courts to declare the rights and other legal relations among parties even though traditional remedies for damages or equitable relief are not yet available. Virginia’s Declaratory Judgment Act is typical. It permits Virginia’s trial courts, “[i]n cases of actual controversy, . . . to make binding adjudications of right, whether or not consequential relief is, or at the time could be, claimed” by the parties. Va. Code Ann. § 8.01-184. Declaratory relief is particularly useful in settling controversies involving the interpretation of written instruments, such as contracts, deeds, and wills, but relief may be sought whenever there is an “actual antagonistic assertion and denial of right.” Ames Ctr., L.C. v. Soho Arlington, LLC, 301 Va. 246, 876 S.E.2d 344, 347 (2022) (quoting Va. Code Ann. § 8.01-184). In Ames Center, the Virginia Supreme Court noted the struggle courts have sometimes faced in finding “the case-specific equilibrium where a declaratory-judgment action serves its intended purpose without going too far or not going far enough.” 876 S.E.2d at 348. That, however, was not one of those cases.

            In that case, the defendant leased hotel property under a long-term ground lease. The lease provided that if any construction was contemplated to be made on adjoining property, the tenant had to afford to the person undertaking the construction the right to enter the hotel property for the purpose of doing such work as the person “shall consider to be necessary to the safety and preservation of any of the foundations, walls or structures of the Building [being leased] from injury or damage and to support the same by proper foundations.” When a developer planning to build two 30-story buildings on adjacent property asserted a right to enter the hotel property pursuant to this provision, the tenant responded, in the strongest possible terms, that the developer was not welcome on the property, “for any reason.” In fact, the tenant threatened to have the developer’s representatives removed for trespassing and subjected to civil and criminal suit if they entered the property. The tenant went so far as to say that even a trespass in the form of a construction crane swinging into its airspace would be met with a damages action.

     Amy Gore, Senior Attorney, National Legal Research Group, Inc.

    Like so many others in today’s society, lawyers are dependent upon electronic forms of communication, including email. The use of electronic communications has raised a plethora of ethical concerns for practitioners. Now, in addition to the previous ethical concerns, the dreaded “Reply All” is added to the list that practitioners must oversee.

     In Formal Opinion 503 (2023), the ABA Standing Committee on Ethics and Professional Responsibility cautions lawyers to not copy their clients on electronic communications to opposing counsel, unless the intended result is a “reply all” response. The Committee cited Model Rule 4.2 which cautions that an attorney, in representing a client, may not “communicate” about the subject of the representation with a represented person absent the consent of that person’s lawyer, unless the law or court order authorizes the communication. When an attorney sends a communication to opposing counsel and includes the client on the email communication, the receiving attorney is likely going to reply all. This would result in opposing counsel communicating with a represented person, and possibly without the consent of the client’s attorney

Paul Ferrer, Senior Attorney, National Legal Research Group, Inc.

        Rule 60(b) of the Federal Rules of Civil Procedure authorizes a court to relieve a party from a final judgment, order, or proceeding for various reasons, including “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). The U.S. Circuit Courts of Appeal have had a “longstanding disagreement whether ‘mistake’ in Rule 60(b)(1) includes a judge’s errors of law.” Kemp v. United States, 142 S. Ct. 1856, 1861 & n.1, 213 L. Ed. 2d 90 (2022). Resolving that question in Kemp, the U.S. Supreme Court held, based on the text, structure, and history of Rule 60(b), that “a judge’s errors of law are indeed ‘mistake[s]’ under Rule 60(b)(1).” Id. at 1860. In so holding, the Supreme Court indicated that the term “mistake” in Rule 60(b)(1) should be given its broadest possible interpretation to include any mistake, including “all mistakes of law made by a judge.” Id. at 1862.

            The Supreme Court specifically rejected the Government’s narrower reading of Rule 60(b)(1) in Kemp that the term “mistake” includes “only so-called ‘obvious’ legal errors.” Id. The Supreme Court’s decision sensibly spared the federal district courts from having “to decide not only whether there was a ‘mistake’ but also whether that mistake was sufficiently ‘obvious,’” since the plain language of Rule 60(b)(1) “does not support—let alone require—that judges engage in this sort of complex line-drawing.” Id. at 1863. Thus, the rule going forward could not be any simpler: relief from a final judgment or order may be granted under Rule 60(b)(1) based on a judge’s “mistakes,” including legal errors.

Paul Ferrer—Senior Attorney, National Legal Research Group

            A question that has long vexed both litigants and courts alike is what constitutes a “final decision” triggering the right to file an appeal under 28 U.S.C. § 1291, which confers jurisdiction on the federal circuit courts of appeals over “appeals from all final decisions of the district courts of the United States.” In a civil case (except where the United States is a party), the notice of appeal from a “final decision” must be filed “within 30 days after entry of the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A). Many an appeal has been lost just by failing to timely file the notice of appeal.

            Making a determination as to when an appeal must be filed to comply with the 30-day time limit is supposed to be relatively easy in light of the procedures specified in Federal Rule of Civil Procedure 58. Rule 58 requires that every judgment generally “must be set out in a separate document.” Fed. R. Civ. P. 58(a). If a separate document is required by Rule 58(a), then judgment is “entered,” and the time to appeal starts running, when the judgment is entered in the civil docket and the earlier of one of these two events occurs: (1) the judgment is, in fact, set out in a separate document, or (2) 150 days have run from the entry of the judgment in the civil docket. Fed. R. Civ. P. 58(c)(2). The second alternative deals with those situations in which the district court, despite the requirements of Rule 58(a), does not set the judgment out in a separate document.