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    The Lawletter Blog

    ATTORNEY AND CLIENT—LEGAL ETHICS: In the Matter of Rudy Giuliani

    CRIMINAL LAW: Ineffective Assistance—Death Penalty

    EMPLOYMENT: Supreme Court Rebuffs Another Challenge to the ACA

    PERSONAL INJURY: Technology Expands Recovery for Negligent Infliction of Emotional Distress

    TAX: Sales Tax Pandemic—Facemasks

    EMPLOYMENT: Title VII and "Supervisors"

    CONTRACTS: An Object Lesson in How Not to Mitigate Damages

    PERSONAL INJURY: Tort Immunity for Nonprofit Volunteers Is Limited to Their Organizational Roles


    CIVIL PROCEDURE: Attorney's Fees as Damages for Breach of Covenant Not to Sue

    PROPERTY: Virginia Civil Forfeiture Eclipsed by Tenancy-by-Entirety Immunity

    EMPLOYMENT: Exotic Dancers—Employees or Independent Contractors?

    GIFTS: Beneficiaries/Disqualification to Take/Ingratitude

    CIVIL PROCEDURE: Responding Competently to Incompetently Drafted Pleadings

    CIVIL PROCEDURE: What Happens to a Derivative Action When the Company Settles a Parallel Lawsuit?

    TAXATION: Taxation of Early Withdrawal from Retirement Account; COVID Exception

    ADMINISTRATIVE/IMMIGRATION LAW: Chevron Deference Does Not Always Result in Support for the Government's Position

    CIVIL PROCEDURE: COVID-19 Venue Issues and Relevant Practical Problems

    ESTATES: Multiple Wills—Reconciliation—Choice of Personal Representative

    EMPLOYMENT: Gay and Transgender Employees Are Protected by Federal Antidiscrimination Statute, Supreme Court Holds

    CRIMINAL LAW: Insanity Defense

    CIVIL PROCEDURE: Maritime Law—Could COVID-19 Cruise Ship Passenger Litigation Sink the Cruise Line Industry?

    PROPERTY: Landlord Liability for Wrongful Death

    CIVIL PROCEDURE: Bid to Recover Picasso Painting Foiled in Rare Case Where Laches Defense Overcomes Express Statute of Limitations

    CORONAVIRUS: Hoarding During the Pandemic

    CONTRACTS: Emergency Orders and Delayed/Excused Action

    FEDERAL TORTS CLAIMS ACT: Feres Doctrine Cracked? Opening of Pandora's Box or Further Encasement in Stone?

    ESTATES: Can Legitimacy of a Putative Heir Be Challenged in an Intestacy Administration?

    INSURANCE: Business Interruption—COVID-19 Claims

    FIRST AMENDMENT/PUBLIC HEALTH: Freedom of Religion During the COVID-19 Pandemic

    PROPERTY: Landlord Tenant/Constructive Eviction and Breach of Covenant of Quiet Enjoyment

    CONTRACTS: Virginia Unconscionability Decision Shows That Extreme Facts May Indeed Make Bad Law

    CONTRACTS:  Contract Excuses and the COVID-19 Pandemic

    FAMILY LAW: Custody, Visitation, and COVID-19

    EMPLOYMENT: Recent Legislation Provides Coronavirus Relief for the American Workforce

    CIVIL PROCEDURE: Effect of COVID-19 Pandemic on Discovery Deadlines

    TRUSTS: Release of Trustee from Liability for Retaining an Investment

    PROPERTY: Court Requires Cemetery to Remove a Decedent Mistakenly Buried in Plaintiff's Gravesite

    EMPLOYMENT: Virginia Values Act—Employment & Public Accommodation Discrimination Against LGBT

    CIVIL RIGHTS: Solitary Confinement of Juvenile Offenders Struck Down in Florida

    CRIMINAL LAW: Fourth Circuit Panel Rules That Probable Cause Is a Mere Click Away

    CONSTITUTIONAL LAW:  Court Upholds Ordinance Prohibiting Discrimination Against Public Assistance Recipients

    CIVIL PROCEDURE:  Is Virginia Inching Toward The Federal Twiqbal Pleading Standards?

    PROPERTY: When Partition by Division of Sale Proceeds Is Appropriate

    PATENTS: A Federal Agency Is Not a "Person" for Purposes of Review of the Validity of a Patent Under the Leahy-Smith Act

    PERSONAL INJURY: Medical Malpractice—Liability Without a Doctor-Patient Relationship

    CIVIL PROCEDURE: Contractual Waivers of the Statute of Limitations Unenforceable in Virginia

    APPELLATE PRACTICE:  Sanctions Including Dismissal and Fines Imposed over Noncompliant Briefs

    TORTS: Immunity of Yelp for Derogatory User Comments

    PROPERTY: Barking Dogs Results in Competing Nuisance Claims Between Neighbors

    WILLS: Succession to the Estate of French Rock Star Johnny Hallyday

    CIVIL RIGHTS: The ADEA's Numerosity Requirement Does Not Apply to Governmental Defendants

    CRIMINAL LAW: Mere Possession of Concealed Firearm Does Not Justify Terry Stop

    CIVIL PROCEDURE: Dismissal of Frivolous Prisoner and In Forma Pauperis Actions in Federal Court

    CONSTITUTIONAL LAW: Requiring Major Political Party Affiliation for State Court Judges Runs Afoul of First Amendment Right of Association

    ESTATES: Gifts Under a Power of Attorney

    FAMILY LAW: Modern Technology and the Definition of "Writing"

    TORTS: Government's Liability for Child Abuse by Foster Parents

    WILLS: Scope of Description "Personal Effects"

    TAX: Minimum Contacts Necessary for Taxation of Trust

    EMPLOYMENT LAW: When Can an Employer Require an Employee to Undergo a Medical Exam Under the ADA?

    CIVIL PROCEDURE: Seeking Appellate Relief Under Mandatory Standard of Review Theory

    EMPLOYMENT: Arbitration—“Gateway Issues”

    CRIMINAL LAW:  No Constitutional Right to Engage in Bestiality

    CIVIL RIGHTS: Noncitizen Charged with Deportable Crime Is Entitled to Jury Trial

    ATTORNEY AND CLIENT: Maintaining Professional Competence in the Digital Age

    FAMILY LAW: Admissibility of GPS Surveillance Data in Civil Cases

    PERSONAL INJURY: Liability for Employer's Failure to Obtain Workers’ Compensation Insurance

    CIVIL PROCEDURE: Facebook's Alleged Intrusion on Users' Privacy Confers Standing to Maintain Class

    BUSINESS LAW: Is Predictive Dialer an Autodialer Subject to the Telephone Consumer Protection Act?

    EMPLOYMENT: Disability Discrimination in Employment—Health-Care Employer

    TORTS: Therapist's Liability for Eliciting False Memories of Sexual Abuse

    TAX: Free Like-Kind Exchanges of Property

    EMPLOYMENT: Age Discrimination—Public Employers

    FAMILY LAW: Role of Assets in Determining Amount of Alimony

    CONTRACTS: Investigating and Defending Against Student Loan Claims

    PRODUCTS LIABILITY: No Due Process Violation in Application of Collateral Estoppel

    ESTATE PLANNING: Lifetime Gifts of Closely Held Business Stock to Family Members

    EMPLOYMENT LAW: EPA Prohibits Using Prior Salary in Establishing Initial Pay

    CREDITOR’S RIGHTS: IRS Form 1099-C—Reporting Requirement or Debt Extinguishment Trap?

    BANKRUPTCY: Reluctant Judicial Enforcement of Prepetition Automatic Stay Waivers

    INSURANCE: Automatic Revocation of Beneficiary upon Divorce

    ESTATES: Succession to the Estate of Charles Manson

    EMPLOYMENT: Breach of Fiduciary Duty and Unfair Competition

    CRIMINAL LAW: Fourth Amendment Applies to Cell Site Location Information

    TAX: Sales and Use Tax: The End of the “Physical Presence” Test

    CONSTITUTIONAL LAW: Convicted Domestic Abuser's Gun Rights Go Up in Smoke

    PROPERTY: Do Short-Term Vacation Rentals Violate Covenant Prohibiting Commercial Activity or Use?

    CIVIL PROCEDURE: Submission of Materials Outside the Pleadings in Response to a Rule 12(b)(6) or Rule 12(c) Motion

    CIVIL RIGHTS: SCOTUS Overturns Lower Courts' Conclusions on Probable Cause And Qualified Immunity

    TORTS: Is Your Computer Tracking You?

    BANKRUPTCY: Effect of Prior Bankruptcies on Civil Litigation

    WORKERS' COMPENSATION: Exclusivity—Employer’s Failure to Obtain Insurance

    PROPERTY/LANDLORD TENANT: Can a Tenant Use the Exclusionary Rule When Fighting an Eviction?

    CRIMINAL LAW:  Second Circuit Upholds Restrictions on Removing "Premises Licensed" Handguns from Premises

    FAMILY LAW: Social Security Dependency Benefits and Alimony

    CONTRACTS: The Importance of Distinguishing a Contracting Party from a Stranger

    PROPERTY:  Landlords' Liability to Guest of Tenant for Dog Bite Injury

    TORTS:  Expanding Virginia's Anti-SLAPP Legislation

    CRIMINAL LAW:  Was Traffic Stop Unlawfully Prolonged in Violation of Rodriguez?

    CONTRACTS:  Obligation to Support Parent Under Taiwanese Law

    CONTRACTS:  Like Oil and Water: Contract and Tort Claims Don't Mix in Virginia

    ESTATES: Removal of an Executor or Trustee

    PROPERTY:  Construction of Structure Blocking a Neighbor’s View Not a Nuisance

    LOCAL AND STATE GOVERNMENT: State Is Immune from Liability for Sexual Abuse by Adopted Child

    Civil Procedure:  Laches in Cases Where Suit Is Commenced

    TORTS: Social Host's Legal Duty to Render First Aid

    PERSONAL INJURY: Comparative Fault in Crashworthiness Cases

    FRAUD: CFTC Sues Bitcoin Ponzi Scheme Operator

    CREDITORS RIGHTS/CONTRACTS LAW: Revoking Contractual Consent to Receive Creditor Phone Calls

    PRODUCTS LIABILITY: Similar Incident Evidence Admissible in Unintended Acceleration Case

    PROPERTY: Expansion of Easements by Necessity in Virginia

    CRIMINAL LAW: No Right to Use Forfeited Substitute Assets to Pay for Appeal Counsel

    Civil Rights Litigation: The Supreme Court Further Restricts Bivens Actions

    TAX: U.S. Tax Court Quotes Show Business Celebrity

    PROPERTY: Landlord's Liability for Collapsed Deck

    EMPLOYMENT DISCRIMINATION: Long-Term Leave Is Not a Reasonable Accommodation

    CRIMINAL LAW: Digital Cameras Held Outside Scope of Search Incident to Arrest Exception

    CIVIL RIGHTS: Third Circuit Joins Sister Circuits in Recognizing Right to Record Police

    PERSONAL INJURY: Suicide as Intervening Event

    CIVIL PROCEDURE: International Service of Process via Twitter

    TRUSTS: Creation/Timing of Self-Proving Affidavits

    CIVIL PROCEDURE: Issue Preclusion Between Claims Arising Under Two Different Statutes

    PERSONAL INJURY: Effect of Injured Party's Immigration Status

    EMPLOYMENT LAW: Are Gay, Lesbian, and Bisexual Employees Protected from Discrimination Under Title VII?

    EDUCATION LAW: Scotus Offers Circuits Guidance as to Scope of 20 U.S.C. § 1415(l) and the Exhaustion of Administrative Remedies

    CONTRACTS: Breach-of-Contract Claims in Medical Malpractice Cases Require Breach of Additional Promise

    TORTS/SOVEREIGN IMMUNITY: Foreign-Country Exception to the Federal Tort Claims Act

    PATENT LAW: Laches Defense No Longer Available in Patent Infringement Cases

    MARITIME LAW: Is Consumption of Fuel Stores During a Hijacking Event Covered by General Average?

    CRIMINAL LAW: Due Process Demands Return of Court Costs, Fees, and Restitution When Conviction is Overturned

    CONTRACTS—Arbitration: Nonexistence of Designated Arbitral Institution at Time of Dispute May Void Mandatory Arbitration Requirement

    CRIMINAL LAW: Texas Good-Faith Exception to Exclusionary Rule Applied to Illegal Drug Sniff

    TAX:  Corporate Income Tax Reform

    ATTORNEY AND CLIENT: Attorneys Must Preserve Confidential Information While Executing Judgment for Fees

    CIVIL PROCEDURE: Effect of Dismissal Without Prejudice in Mortgage Foreclosure Suits

    PROPERTY: Landlord and Tenant: Landlord's Waiver of Right to Charge Penalty for Late Rent Payment

    PROPERTY: Realtor's Written Contract with a Co-Owner Binding on the Other Owners

    CONSTITUTIONAL LAW:  Maryland "Assault Weapon" Ban Upheld by Fourth Circuit

    CIVIL PROCEDURE: Objecting to Requests for Production under the Federal Rules

    Vanguard Profiles NLRG

    Federal Tort Claims Act—Effect of State Time Limitations

    TAX: Legal Issues Arising from Tax-Related Identity Theft

    FAMILY LAW: Custody Is Determined in Child's Home State, Not State Where Divorce Is Filed

    TRUSTS: Charitable Trusts and Bankruptcy Proceedings

    CRIMINAL PROCEDURE: Ninth Circuit Adopts "Plain Hearing" Doctrine

    PROPERTY: Flipper's Folly—Virginia Supreme Court Rules That Buyer Not Entitled to Reimbursement After Improving Wrong Property

    FAMILY LAW: Imputing Investment Income for Purposes of Spousal Support

    CRIMINAL LAW: Sentencing—New Rule in Johnson Was Substantive as Applied to Advisory Sentencing Guidelines

    PROPERTY/MORTGAGES: Implied Duty of Good Faith: Impact of Loan Modification Request

    EMPLOYMENT DISCRIMINATION: Causation in an Equal Pay Act Retaliation Case

    CONTRACTS: Statute of Frauds No Bar to Parent’s Claim for Student Loan Repayment

    CIVIL PROCEDURE: Strictly Construing Service of Process Rules to Devastating Effect

    ESTATES: The Inheritability of Digital Music Files

    PERSONAL INJURY: Hospital's Liability for Malpractice Based on Apparent Agency

    CIVIL PROCEDURE: The Attorney Testimony Rule—Attorney Affidavits and Summary Judgment

    BANKRUPTCY: Puerto Rico Debt Restructuring

    FAMILY LAW: Business Valuation Upon Divorce—Goodwill

    GOVERNMENT CONTRACTS: Supreme Court Decision Aids Veteran-Owned Business

    EMPLOYMENT LAW: NLRB "Search-for-Work" and "Interim Employment"

    TAX: IRS v. Facebook

    FAMILY LAW: Enforcing a Child Support Obligation Through Constructive Trust

    CRIMINAL LAW: Use of Risk Assessment Tools in Sentencing Upheld . . . For Now

    CONSTITUTIONAL LAW: Use of Cell-Site Simulator Constitutes a Search

    PRODUCTS LIABILITY: Manufacturer Not Strictly Liable for Sale of Product Containing Defective Components

    PUBLIC EMPLOYMENT: "A Law" Does Not Include an Agency Regulation

    CIVIL PROCEDURE: Achieving "Proportionality" in Discovery

    BANKRUPTCY: Rejection or Assumption of Executory Contracts Under 11 U.S.C. § 365

    WILLS: Execution Evidence—Testator Incapacity Due to Permanent Mental Impairment

    PERSONAL INJURY: Punitive Damages Awarded Against a Decedent's Estate

    EMPLOYMENT LAW: FMLA: Individual Liability and the Need for Clear Communication

    APPELLATE BRIEF WRITING: Mistakes Can Be Fatal to Your Case

    EMPLOYMENT LAW: Recent Equal Pay Developments

    ATTORNEY-CLIENT: Colorado Retains the "Strict Privity Rule" for Malpractice in Estate Planning

    TAX: Inversions—Apple's Complex Web of Subsidiaries

    CIVIL RIGHTS: Exhaustion of Administrative Remedies for Retaliation Claims

    CRIMINAL LAW: Search and Seizure—Traffic Stop—Length of Detention

    FAMILY LAW: Time Limits on Divorce Hearings

    CIVIL RIGHTS: Help America Vote Act Creates Individual Right Enforceable Through § 1983

    MORTGAGES: Mortgagor Entitled to Truth-in-Lending Disclosures Even if Not Personally Liable on Loan

    TRUSTS: Hostility Between Beneficiary and Trustee as Ground for Removal of Trustee

    CORPORATIONS: Nonresident Trust Company Fiduciary Power Reciprocity Statutes

    CIVIL PROCEDURE: Relief in Federal District Court from a Fraudulently Obtained Remand Order

    TRADEMARKS: The Slants and the Redskins—Federal Circuit Rules That Excluding "Disparaging Remarks" Violates First Amendment

    CIVIL RIGHTS: Pregnancy Discrimination Under PDA: Supreme Court's Interpretation of Same-Treatment Clause in Young v. United Parcel Service, Inc.

    MORTGAGES: A 2009 Amendment to the Truth in Lending Act, 15 U.S.C. § 1641(g), Is Not Retroactive

    PRODUCTS LIABILITY: What Statute of Limitations Governs Breach-of-Warranty Claims for Personal Injury?

    WRONGFUL DEATH: Apportioning Wrongful Death Proceeds Between Decedent's Survival Claim and Beneficiaries' Wrongful Death Claim

    CIVIL PROCEDURE: Scope of the Commercial Activity Exception to the Foreign Sovereign Immunities Act

    PRODUCTS LIABILITY: Strict Liability—Definition of "Product User" Expanded

    FAMILY LAW: Court Obtains Jurisdiction Under UCCJEA When Action Is Filed, and It Can Exercise Jurisdiction Even After All Parties Leave State

    CHURCHES: Constitutional Law—Ministerial Exception

    FAMILY LAW: Constitutionality of Grandparent Visitation Statutes

    CIVIL RIGHTS: Do Termination Reports Constitute "Publication"?

    TAX: Qualified Tuition Plans (QTPs)

    CRIMINAL LAW: Search and Seizure—Medical Marijuana Statute—Probable Cause to Search Based Solely on the Smell of Marijuana

    CONTRACTS: Agreements to Negotiate Distinguished from Agreements to Agree

    PROPERTY: Drafting the Renewal Clause in a Lease

    CONSTITUTIONAL LAW: Involuntary Commitment Scheme Violates Due Process

    PROPERTY: Duty of Mineral Rights Lessee/Purchaser to Inform Lessor/Vendor About Deal in Place to Resell Rights to Third Party for Much Higher Price

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