The Lawletter Vol. 50 No. 1

Matthew T. McDavitt—Senior Attorney

       Under U.S. law, a testator drafting a Last Will and Testament must possess testamentary capacity for the document to be legally valid. Testamentary capacity generally requires that the testator understands the nature of their act, knows the extent of their property, and recognizes the natural objects of their bounty (typically family members or loved ones). However, even when these basic requirements are met, a will may still be invalidated if the testator suffered from an "insane delusion" that materially affected the disposition of their estate.

The Lawletter Vol. 50 No. 1

Robert Westendorf—Senior Attorney

        In Virginia, a statute mandated that drivers lose their licenses when fines or penalties that they owed were not paid. Lackey v. Stinnie, 145 S. Ct. 659, 2025 U.S. LEXIS 866, at *5-6 (Feb. 25, 2025). Drivers whose licenses had been suspended sued and alleged violations of the Due Process and Equal Protection Clauses. Id. at *6. After the district court granted a preliminary injunction against the law, the case was stayed and later dismissed because the Virginia legislature repealed the law. Id.

       The drivers asserted they were entitled to attorney’s fees under 42 U.S.C. § 1988(b), which allows prevailing parties in civil rights cases to receive attorney’s fees. Id. The en banc Fourth Circuit determined that the drivers were entitled to attorney’s fees. Id. at *7. The Supreme Court granted certiorari and reversed the Fourth Circuit by a 7-2 vote. Id. at *8. Chief Justice Roberts started the majority opinion by noting that the general rule in America is that the prevailing party is not entitled to collect attorney’s fees from the loser, and that federal courts can depart from this rule only when there is statutory authorization to do so. Id. at *8-9. At the time that Section 1988 was adopted, “prevailing party” is the party who ultimately prevails at the end of the lawsuit. Id. at *9-10. But preliminary injunctions “do not conclusively resolve legal disputes. In awarding preliminary injunctions, courts determine if a plaintiff is likely to succeed on the merits—along with the risk of irreparable harm, the balance of equities, and the public interest.” Id. at *10. The purpose of preliminary injunctions is to preserve the positions of the parties until a trial and often depends as much on the equities of the case as on the legal issues that are involved. Id. A preliminary injunction has a temporary nature because courts can reach a different conclusion at the permanent injunction stage. Id. at *11. Since preliminary injunctions do not “conclusively resolve the rights of parties on the merits, they do not confer prevailing party status.” Id. at *11.

The Lawletter Vol. 50 No. 1

Anne Hemenway—Senior Attorney

      Over 90,000 individuals have sued Johnson & Johnson and other parties for damages alleging that its talcum powder products—including Johnson's Baby Powder, which has been widely used on babies over the past 50 years—contain asbestos, which causes cancer. While Johnson & Johnson denies that its products contain asbestos, and insists that there is no link between its products and cancer, it has stopped selling talc-based baby powder worldwide.

            Since 2021, Johnson & Johnson has tried to use the bankruptcy courts to settle the tens of thousands of claims against it, without success. The effort failed in 2021 and in 2023, and most recently failed a third time on March 31, 2025. In 2021, Johnson & Johnson created a subsidiary called LTL Management and then pulled all of the baby powder claims into the subsidiary. A day after that was accomplished, LTL Management declared bankruptcy in the Bankruptcy Court for the Western District of North Carolina. The LTL bankruptcy was transferred to the Bankruptcy Court for the District of New Jersey and was ultimately dismissed by the Third Circuit Court of Appeals because the appellate court found that LTL—"a company created to file for bankruptcy"—was not in any financial distress. In re LTL Mgmt., LLC, 64 F.4th 84, 110 (3d Cir. 2023).

The Lawletter Vol. 50 No. 1

Jason Holder—Senior Attorney

    In August 2023, Alice Minium filed a Virginia Freedom of Information Act (“FOIA”) request seeking the name, job title, rank, unit or division, gender, race, as well as hiring and compensation information for each deputy employed by the Hanover County Sheriff's Office. Minium v. Hines, 83 Va. App. 643, 647, 911 S.E.2d 822 (2025). In response, Minium received a spreadsheet with the requested information for a fraction of the Office, with the list excluding the names of all deputies below the rank of Captain. Id. at 648. These exclusions, a note explained, were made pursuant to the provision making discretionary the disclosure of “[t]he identity of any victim, witness, or undercover officer, or investigative techniques or procedures.” Va. Code Ann. § 2.2-3706 (B)(10).

     Unsatisfied with this response, Minium filed for a writ of mandamus and was met with a supplemental list containing “approximately 25 names including those from the original production but fail[ing] to provide the names of all deputies employed by the County, specifically those below the rank of Captain.” Minium, 83 Va. App. at 648. With this second list, Minium was informed “that the reason for withholding the names of the officers below the rank of Captain was due to staffing concerns for undercover operations based on Code § 2.2-3706(B)(8).” Id.; Va. Code Ann. § 2.2-3706(B)(8) (preventing mandatory disclosure of “[t]hose portions of any records containing information related to undercover operations or protective details that would reveal the staffing, logistics, or tactical plans of such undercover operations or protective details”).

Lawletter Vol. 49 No. 4

Anne Hemenway—Senior Attorney

CONSTITUTIONAL LAW/SECOND AMENDMENT: United States Supreme Court Allows Statutory Ban on Possession of Firearms by Persons Subject to Domestic Violence Restraining Order

      In United States v. Rahimi, 144 S. Ct. 1889, 219 L. Ed. 2d 351 (2024), the United States Supreme Court, in an unusual nearly unanimous 8-1 decision, upheld a 1994 federal criminal law, 18 U.S.C. § 922(g)(8), against a challenge that the law violated the Second Amendment. The statute bans the possession of a gun by someone who has been the subject of a domestic violence restraining order or any order that restrains a person from harassing, stalking, or threatening an intimate partner or child of such partner or engaging in other conduct that would place an intimate partner in reasonable fear of injury.

            The statute was originally challenged by Rahimi as violating the Second Amendment, although he conceded that the restraining order against him satisfied the statutory criteria for banning him from possessing a firearm. The federal district court denied Rahimi's motion to dismiss the indictment for possessing a firearm in violation of Section 922(g)(8) on Second Amendment grounds. On appeal, the Supreme Court decided New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022). In light of that ruling, the Fifth Circuit Court of Appeals reversed, holding that the indictment should be dismissed because Section 922(g)(8) does not fit within the “Nation's historical tradition of firearm regulation.” United States v. Rahimi, 61 F.4th 443, 461 (5th Cir. 2023).

Lawletter Vol. 49 No. 4

Paul Ferrer—Senior Attorney

SECURITIES LAW/CIVIL PROCEDURE:  Supreme Court Rules That Jury Trial Is Required When SEC Seeks Civil Penalties for Securities Fraud

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.

The Lawletter Vol. 49 No. 3

Cassidy Crockett-Verba, Senior Attorney

ARTIFICIAL INTELLIGENCE:  ABA Guidance on AI Use for Lawyer

      The American Bar Association (ABA) has recently released Formal Opinion 512 addressing the increased use of Artificial Intelligence (“AI”) programs, specifically Generative AI or “GAI” in the legal profession.[1] A GAI tool that generates text is a “prediction tool[] that generate[s] a statistically probable output.”[2] The Opinion focuses on five major areas—competency, confidentiality, communication, supervisory responsibilities, and fee schedules, highlighting what lawyers can do to protect themselves and their clients.

The Lawletter Vol. 49 No. 3

Paul Ferrer, Senior Attorney

SECURITIES LAW/CIVIL PROCEDURE: Supreme Court Rules That Jury Trial Is Required When SEC Seeks Civil Penalties for Securities Fraud

     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.

The Lawletter Vol. 49 No. 3

Anne Hemenway, Senior Attorney

CONSTITUTIONAL LAW/SECOND AMENDMENT:  United States Supreme Court Allows Statutory Ban on Possession of Firearms by Persons Subject to Domestic Violence Restraining Order

          In United States v. Rahimi, 144 S. Ct. 1889, 219 L. Ed. 2d 351 (2024), the United States Supreme Court, in an unusual nearly unanimous 8-1 decision, upheld a 1994 federal criminal law, 18 U.S.C. § 922(g)(8), against a challenge that the law violated the Second Amendment. The statute bans the possession of a gun by someone who has been the subject of a domestic violence restraining order or any order that restrains a person from harassing, stalking, or threatening an intimate partner or child of such partner or engaging in other conduct that would place an intimate partner in reasonable fear of injury.

      The statute was originally challenged by Rahimi as violating the Second Amendment, although he conceded that the restraining order against him satisfied the statutory criteria for banning him from possessing a firearm. The federal district court denied Rahimi's motion to dismiss the indictment for possessing a firearm in violation of Section 922(g)(8) on Second Amendment grounds. On appeal, the Supreme Court decided New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022). In light of that ruling, the Fifth Circuit Court of Appeals reversed, holding that the indictment should be dismissed because Section 922(g)(8) does not fit within the “Nation's historical tradition of firearm regulation.” United States v. Rahimi, 61 F.4th 443, 461 (5th Cir. 2023).

The Lawletter Vol. 49 No. 3

 Matthew McDavitt, Senior Attorney

ESTATES:  Enactments of the Uniform Electronic Wills Act

        Traditionally, to be valid, a last will and testament had to be executed on paper with the requisite will execution formalities, with the testator and the dual attesting will witnesses physically signing the instrument together at the will execution ceremony. In recent years, however, an increasing proportion of contracts and instruments nationally are executed wholly electronically, wherein the requisite signatures and witness attestations are now often made via digital means. Similarly, in states exacting the Uniform Electronic Wills Act, the testator, attesting witnesses, and notary may now appear via video conference in the “electronic presence” of each other, rather than in person. The Uniform Electronic Wills Act thus empowers testators in jurisdictions that have enacted this model statutory text to execute wills electronically, with the attesting witnesses able to appear and witness the will execution via video conference. Additionally, a valid electronic will under the Act must be a “tamper-evident electronic record” to guard against fraudulent tampering with such digital testamentary instrument post execution. Also, under the model Act, an electronic will, once validly executed, may be revoked via (1) a subsequent inconsistent will, or (2) by “physical act,” which, though not defined, may mean deletion of the authenticated, executed digital will file.