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).

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 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).

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 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.

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.

The Lawletter Vol. 50 No. 4

 Jason Holder—Senior Attorney 

ATTORNEY ETHICS: How to Make a Bad Situation Worse: Court Sanctions Attorney for Using Hallucinated Cases to Defend Himself Against Motion Alleging Prior Use of Hallucinated Cases

       In a cautionary tale for attorneys seeking to use artificial intelligence (“AI”) technology in an effort to save time and money, a New York trial court has sanctioned counsel for relying “upon unvetted AI—in his telling, via inadequately supervised colleagues—to defend his use of unvetted AI.” Ader v. Ader, 2025 N.Y. Misc. LEXIS 7848, at *1, 2025 NY Slip Op 51563(U), 1, 87 Misc. 3d 1213(A), 240 N.Y.S.3d 701 (Sup. Ct. N.Y. County Oct. 1, 2025). The initial offense was brought to the court’s attention when the opposition “identified inaccurate citations and quotations in Defendants' opposition brief that appeared to be ‘hallucinated’ by an AI tool.” Id. at *3. Without admitting or denying the use of AI, the offending attorney initially suggested that the passages cited by the opposition “were intended as paraphrases or summarized statements of the legal principles established in the cited authorities.” Id. Rejecting this argument, the court noted that the “paraphrases” included “bracketed terms to indicate departure from a quotation (not something one would expect to see in an intended paraphrase) and comments such as ‘citation omitted.’” Id. at *4. Compounding matters, the cases cited relied upon for the alleged paraphrases of law “did not stand for the propositions quoted, were completely unrelated in subject matter, and in one instance did not exist at all.” Id.

The Lawletter No. 50 Vol. 3

 Anne Hemenway—Senior Attorney 

        In March 2025, the American Federation of Teachers ("AFT") filed a lawsuit against the United States Department of Education (U.S. Dist. Ct. D.C. Civ. Action 25-802 (RBW)) for denying federal student loan borrowers their rights to an affordable repayment plan and to debt forgiveness opportunities which are mandated in their loan terms. These student loan income-driven repayment plans were mandated by Congress in part by President Biden's Savings on a Valuable Education ("SAVE") Plan, 20 U.S.C. §§ 1070 et seq., and the Department of Education’s revised regulations which provided more generous terms for income-based repayment plans. See Missouri v. Trump, 128 F.4th 979 (8th Cir. 2025) (citing SAVE Rule, 88 Fed. Reg. at 43901-02). Other students represented in the pending AFT class-action lawsuit are seeking relief through the Public Service Loan Forgiveness Buyback program. At the end of August 2025, the Department of Education had a backlog of 1,076,266 income-driven repayment plan applications.

The Lawletter No. 50 Vol. 3

Charlene Hicks—Senior Attorney

      Beginning with the United States Supreme Court’s decision in East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S. Ct. 2295 (1986), courts nationwide have utilized the economic loss doctrine to preclude plaintiffs from obtaining a tort remedy for contract-based claims. In effect, a plaintiff cannot pursue a tort claim to recover purely economic losses.

The Lawletter No. 50 Vol. 3

Robert Westendorf—Research Attorney

      Marlean Ames, a heterosexual woman, was hired as an executive secretary by the Ohio Department of Youth Services in 2004 and was later promoted to program administrator. Ames v. Ohio Dep't of Youth Servs., 605 U.S. 303, 306, 145 S. Ct. 1540 (2025). In 2019, she applied for a newly created management position. Id. Although she was interviewed for the position, a lesbian woman was ultimately hired. Id. A few days after her interview, she was demoted from her program administrator position to her old secretary position. Id. The agency then hired a gay man for the now-vacant program administrator position. Id.