The Lawletter Vol. 50 No. 3

The Lawletter Vol. 50 No. 3

Brett R. Turner, Senior Attorney

              As I write this note, it is mid-October, there is a crisp cool snap in the air, and the college football season is in full swing. It is a good time to remember that in the United States of America, college football and college sports in general are very big business.

            A reminder of this point in the divorce context is Waldrip v. Waldrip, 2025 Ark. App. 29, 705 S.W.3d 8. The parties in that case were members of the Razorback Foundation, which provides financial support for athletics at the University of Arkansas. The Foundation raises money, in part, by granting donors the right to purchase desirable seating at University sporting events. Those who donate to the Foundation are given priority points, and those with higher amount of points get more priority in purchasing desirable seating.

The Lawletter Vol. 50 No. 2

Nadine Roddy—Senior Attorney

        The 401(k) plan is perhaps the most popular form of tax-advantaged savings and investment vehicle for retirement offered by American employers under the Employee Retirement Income Security Act of 1974 (ERISA). Many plans contain provisions requiring arbitration of all disputes arising from the plan, and some of these provisions limit the rights and remedies of plan participants bringing suits in arbitration. The Sixth Circuit recently declared invalid a 401(k) plan’s “individual arbitration provision” requiring a plan participant to bring suit in arbitration only in their individual capacity, and not in a representative, class, or collective capacity. The provision also limited a participant to seeking remedies for losses to their individual plan account, rather than to the plan itself. The case involved two plan participants who filed in federal district court a putative class action against plan fiduciaries on behalf of the plan, themselves, and all others similarly situated. They claimed breach of fiduciary duties and sought all losses accruing to the plan, disgorgement of all profits, and other injunctive relief. Parker v. Tenneco, Inc., 114 F.4th 786, 792 (6th Cir. 2024).

The Lawletter No. 50 Vol. 2

Lee Dunham—Senior Attorney 

     In the wake of the rise of online vacation rental platforms like Airbnb and VRBO, the modern trend in drafting restrictive covenants for planned communities or condominiums is to include a provision specifically addressing whether, and under what conditions, short-term rentals will be permitted. Older covenants, however, did not contemplate the widespread use of properties as short-term rentals, and typically contain only broad provisions restricting the properties to “residential use,” or limiting “commercial” or “business” use.

The Lawletter Vol. 50 No. 2

Amy Gore—Senior Attorney (agore@nlrg.com)

         Calling a fee payment “non-refundable” is no protection from an ethical violation. The Virginia Supreme Court’s recent decision in Swango v. Virginia State Bar ex rel. Second District, No. 241016, 2025 Va. LEXIS 43, at *1 (July 31, 2025), clarified the differences between a refundable retainer and a non-refundable consultation fees.

The Lawletter Vol 50 No. 2

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.

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”).