The Lawletter Vol 46 No 2

Suzanne Bailey—Senior Attorney, National Legal Research Group

            It is well-established law that when a federal court reviews a federal agency's construction of a statute it administers, the court will look to whether Congress has addressed the precise question at issue. If the court determines that Congress has not directly addressed the issue, rather than imposing its own construction of the statute, the court will defer to the administrative agency's permissible construction of the statute. This standard of review is called Chevron deference, after the U.S. Supreme Court decision that articulated it. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). While application of Chevron deference frequently results in a decision upholding the agency's interpretation of its own statute, a recent decision from the Fourth Circuit Court of Appeals demonstrates that when the agency's interpretation is unreasonable, its interpretation will not prevail.

The Lawletter Vol 46 No 2         

Anne B. Hemenway—Senior Attorney, National Legal Research Group

            The COVID-19 pandemic has caused many state courts around the country to either close down during parts of 2020 and 2021 or dramatically curtail operations. In many jurisdictions, jury trials have been canceled or postponed for months. The pandemic has resulted in a plethora of federal court cases regarding requests by federal inmates to be released from federal custody and other court-related issues. See Fern L. Kletter, COVID-19 Related Litigation: Effect of Pandemic on Release from Federal Custody, 54 A.L.R. Fed. 3d art. 1 (2020 & Westlaw updated weekly).

            In a case of first impression in the Commonwealth of Virginia, Clarke v. Medical Facilities of America, Inc. , No. CL20-4379, 2020 Va. Cir. LEXIS 493 (Va. Cir. Ct. City of Norfolk Dec. 30, 2020), the court reviewed whether pandemic-related issues were material to a venue dispute. In that case, defendants in a wrongful death action sought to transfer venue from the circuit court in the City of Norfolk, one of the largest cities in Virginia, to a small rural circuit court closer to the rehabilitation center where the plaintiff decedent had been treated.

The Lawletter Vol 46 No 1

Jim Witt—Senior Attorney, National Legal Research Group

            Once in a while, the estate planning steps taken by a decedent make you wonder if he or she was intentionally leaving a mess. When Aretha Franklin, the Queen of Soul, died as a result of pancreatic cancer at age 76 on August 16, 2018, no will was filed. Her family believed that she had died intestate. If that had been the case, her net estate would have simply been divided under Michigan law into four equal shares, one for each of her sons, Clarence, Edward, Ted, and Kecalf. In May 2019, however, the family discovered three wills written by Franklin, two from 2010 were found in a locked cabinet, and one from 2014 was found in a spiral notebook left under a couch cushion. The wills seemed fairly evenhanded as among the four sons, but there were questions raised as to the documents' validity by a number of contradictory provisions and the problem with deciphering some of the writing, not to mention numerous underlinings, strikeouts, and marginal notes; much of the writing seemed to be in a stream of consciousness mode.

The Lawletter Vol 46 No 1

Nadine Roddy—Senior Attorney, National Legal Research Group

            An employer that discharges an individual for being homosexual or transgender violates Title VII of the Civil Rights Act of 1964, the Supreme Court held 6-3 in one of the last decisions of its October 2019 term. Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020). Title VII contains the well-known prohibition of discrimination in employment against an individual “because of” the individual's “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Writing for the majority, Justice Gorsuch explained that an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Thus, sex plays a “necessary and undisguisable role” in such decisions—precisely what Title VII forbids.

            Three cases were consolidated for this appeal. Each one started with an employer discharging a long-term employee soon after the employee revealed that he was homosexual or gender-transitioning—and allegedly for no other reason.

The Lawletter Vol 46 No 1

Mark Rieber—Senior Attorney, National Legal Research Group

            In Kahler v. Kansas, 140 S. Ct. 1021 (2020), the U.S. Supreme Court recently held that the Due Process Clause of the U.S. Constitution does not require a state to adopt a particular formulation of the insanity defense. The ruling came in a case out of Kansas where the state had adopted the "cognitive incapacity" test, which examines whether a defendant was able to understand what he was doing when he committed the crime. The Kansas statute does not incorporate the "moral incapacity" test, which is the inquiry into whether a defendant could not distinguish right from wrong when committing the crime. The defendant contended that the state's failure to allow a defendant to raise a defense based on "moral incapacity" violated due process. The Court rejected such argument, holding that a state's insanity rule was substantially open to state choice.

The Lawletter Vol 46 No 1

Charlene Hicks—Senior Attorney, National Legal Research Group

            The COVID-19 pandemic has proven disastrous for cruise lines and passengers alike, with multiple coronavirus outbreaks and lengthy quarantine periods imposed. The resulting lawsuits have met with mixed results.

            In Weissberger v. Princess Cruise Lines, Ltd., No. 2:20-CV-02328-RGK-SK, 2020 WL 3977938 (C.D. Cal. July 14, 2020), plaintiffs claimed that Princess Cruise Lines was negligent and/or grossly negligent because it had knowledge that a disembarking passenger had symptoms of COVID-19 but it made the conscious decision to continue sailing with 3,000 passengers aboard. The Weissbergers claimed emotional distress damages arising from the ship's quarantine and the associated trauma from fear of developing the virus.

            The court recharacterized the negligence counts as claims for the negligent infliction of emotional distress. Id. at *2. From there, the court invoked the "zone of danger" test applicable to maritime cases, which "limits recovery for emotional injury to two categories of plaintiffs: (1) 'plaintiffs who sustain a physical impact as a result of a defendant's negligent conduct'[;] and (2) plaintiffs 'who are placed in immediate risk of physical harm by that conduct.'" Id. (quoting Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 547-48 (1994)) (Weissberger court's emphasis).

The Lawletter Vol 45 No 6

Brad Pettit—Senior Attorney, National Legal Research Group

            In a very recent ruling that was consistent with prior Virginia state court decisions that favor residential landlords in cases involving personal injury suits by tenants against landlords, a federal district court sitting in Virginia dismissed wrongful death and intentional infliction of emotional distress ("IIED") actions by the plaintiff, a mobile home owner, against a mobile home park lot owner that arose when a decaying tree fell on the plaintiff's mobile home and crushed her son to death. Darlington v. Harbour E. Vill. LLC, No. 3:20cv157-HEH, 2020 WL 3979664 (E.D. Va. July 14, 2020) (slip copy) (only the Westlaw citation is currently available), appeal filed (4th Cir. Aug. 11, 2020). Even though there was evidence that prior residents in the mobile home park had warned the lot owner at least three times about the decaying tree and the dangers that it posed, the Darlington court ruled that, in the absence of a statutory or common-law duty on the part of the mobile home park lot owner/lessor to the mobile homeowner/lot lessee to maintain a safe condition of the lot, the plaintiff could not bring a wrongful death claim against the lot lessor:

The Lawletter Vol 45 No 6

Paul Ferrer—Senior Attorney, National Legal Research Group

            Laches is "a defense developed by courts of equity to protect defendants against unreasonable, prejudicial delay in commencing suit." SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 137 S. Ct. 954, 960 (2017) (internal quotation marks omitted). It is frequently said, however, that laches cannot be invoked to bar legal relief in the face of an express statute of limitations enacted by Congress. Id. at 959. But that is exactly what happened in Zuckerman v. Metropolitan Museum of Art, 928 F.3d 186 (2d Cir. 2019), cert. denied, 140 S. Ct. 1269 (2020).

            In Zuckerman, the plaintiff, Laurel Zuckerman, brought suit to recover a painting—"The Actor" by Pablo Picasso—that had been owned by her great-granduncle and aunt, the Leffmanns. The Leffmanns were German Jews who were forced to flee the country in 1937. They arranged for the painting to be held by a Swiss acquaintance, who sold the painting in 1938 to raise funds for the Leffmanns to relocate to Brazil.

The Lawletter Vol 45 No 6

Jim Witt—Senior Attorney, National Legal Research Group

            While the as yet unexplained hoarding of toilet paper may be thought of as the light side of the coronavirus pandemic, on the not-so-light side is the hoarding of medical supplies, notably drugs and medical equipment such as masks and ventilators. The federal government has taken two steps in this regard—first, an Executive Order from the President, and, second, a warning from the Department of Justice.

            Executive Order No. 13910, 85 FR 17001, "Preventing Hoarding of Health and Medical Resources to Respond to the Spread of COVID-19" (Mar. 23, 2020), was announced under the authority of the Constitution and the Defense Production Act of 1950 (the "Act"), as amended (50 U.S.C. §§ 4501 et seq.).

The Lawletter Vol 45 No 6

Jason Holder—Senior Attorney, National Legal Research Group

     With the spread of COVID-19, most jurisdictions have declared a state of emergency and/or issued executive orders curtailing daily life. See, e.g., Cal. Exec. Order N-33-20 (Californians must "stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors"); D.C. Mayor’s Order 2020-054 (District residents must "stay in their residences except to perform essential activities, engage in essential business, provide or obtain government services, or engage in certain authorized recreational activities not involving close contact with other persons"); N.Y. Exec. Order 202.8 (nonessential businesses and nonprofit entities must "reduce the in-person workforce at any work locations by 100%"); Va. Exec. Order 53 (nonessential "brick and mortar retail business[es] . . . may continue to operate but must limit all in-person shopping to no more than 10 patrons per establishment"). State and federal courts have also been forced to alter procedures, extend deadlines, or even limit court access. An updated list of orders, see https://web.csg.org/covid19/executive-orders/. Court closures and restrictions can be found at https://www.law360.com/articles/1252836.