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    The Lawletter Blog

    LABOR & EMPLOYMENT LAW: Love in the Time of COVID-19

    Posted by Suzanne L. Bailey on Wed, Mar 16, 2022 @ 11:03 AM

    The Lawletter Vol 47 No 1

    Suzanne L. Bailey—Senior Attorney, National Legal Research Group

                The COVID-19 pandemic has been a fertile source of new litigation: challenges to mask mandates, challenges to vaccine mandates, construction of child custody visitation agreements in light of COVID-19, assertion of the defense of impossibility in response to attempted enforcement of a contract, etc. Recently, a federal district court in Virginia addressed whether an individual stated a cause of action against his employer for firing him after the employer denied the individual’s request to quarantine at home in order to avoid exposing his adult paraplegic brother to the coronavirus. The court in Crawford v. Creative Cost Control Corp., Case No. 7:21-CV-00419, 2021 WL 5049768, 2021 Wage & Hour Cas.2d (BNA) (W.D. Va. Nov. 1, 2021), held that plaintiff Christian Crawford (“Christian”) stated claims for (1) interfering with rights provided under the Family and Medical Leave Act (“FMLA”), and (2) retaliation or discrimination in violation of the FMLA. However, he did not state a claim under the Families First Coronavirus Response Act (“FFCRA”).

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    Topics: employment law, Suzanne Bailey, FMLA, retaliation or discrimination, in loco parentis

    ATTORNEY AND CLIENT: Ethical Considerations in a Virtual Practice

    Posted by Amy Gore on Wed, Mar 16, 2022 @ 11:03 AM

    The Lawletter Vol 47 No 1

    Amy Gore—Senior Attorney, National Legal Research Group

                As the world’s efforts to combat COVID-19 continue, most practitioners have adapted their practice by virtual hearings and meetings. Virtual law practice was clearly contemplated before the pandemic, but health concerns and court closures have dragged many practitioners further into the future than may have been contemplated even five years earlier. These adaptations have permitted attorneys to keep their lights on their virtual practices while providing clients with continued access to legal representation. The ever increasing reliance on technology to deliver legal services, however, carries its own set of ethical concerns that must not be overlooked.

                The traditional ethical obligation of competence set forth in Model Rules of Professional Conduct Rule 1.1 includes the obligation to remain competent in changes in the law and its practice, including the benefits and risks associated with relevant technology. The ethical obligation of communication, usually applied in apprising the client of any developments in representation, includes with it the ethical duty relating to disasters. ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 482 (Sept. 19, 2018). Most attorneys have learned that their ethical obligation of confidentiality includes safeguarding electronic communications. A virtual practice is not inconsistent with these ethical obligations. The practice of law no longer mandates a physical office location.

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    Topics: attorney-client, Amy Gore, virtual office, safeguarding electronic communications, ethical considerations, confidentiality

    CIVIL RIGHTS/CRIMINAL LAW: In Pursuit of Fleeing Misdemeanants: SCOTUS Rejects Categorical Rule of Exigency

    Posted by Jason Holder on Wed, Mar 16, 2022 @ 11:03 AM

    The Lawletter Vol 47 No 1

    Jason Holder—Senior Attorney, National Legal Research Group

         Arthur Lange (“Lange”) drove past a highway patrol officer with his windows down, music blaring, and repeatedly honking on his horn; in short, Lange “was asking for attention.” Lange v. California, 141 S. Ct. 2011, 2016 (2021). The officer followed Lange a short distance before turning on his overhead light and attempting to pull Lange over. Id. Lange was seconds away from his home, however, and chose to continue to his driveway and pull into his garage. Id. The officer continued his pursuit and confronted Lange with the subsequent investigation revealing, perhaps unsurprisingly, that Lange was under the influence of alcohol.See id. (blood test revealed Lange was more than three times the legal limit).

         Upon being charged with driving under the influence as well as a noise infraction, Lange moved to suppress all the evidence obtained by the officer’s warrantless entry into the garage. Id. In response, the prosecution argued that “the pursuit of a suspected misdemeanant always qualifies as an exigent circumstance authorizing a warrantless home entry.” Id. (emphasis added). The state courts accepted this argument and the U.S. Supreme Court granted review to resolve the conflict between the various state/federal courts regarding a categorical rule of exigency when in pursuit of a fleeing suspect. Id. at 2017.

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    Topics: Jason Holder, warrantless home entry, rule of exigency, pursuit of a fleeing misdemeanant

    CIVIL RIGHTS/CONSTITUTIONAL LAW: Pitt Bull Owners’ § 1983 Action May Proceed

    Posted by Trish Sifka on Wed, Mar 16, 2022 @ 11:03 AM

    The Lawletter Vol 47 No 1

    Trish Sifka—Senior Attorney, National Legal Research Group

          In May 2021, the Eighth Circuit affirmed the denial of the City of Minneapolis’s and a police officer’s motion to dismiss dog owners’ unlawful search and seizure claim under 42 U.S.C. § 1983. LeMay v. Mays, 18 F.4th 283 (8th Cir. 2021). Plaintiffs Jennifer LeMay and Courtney Livingston owned two pit bulls named Ciroc and Rocko, which were service animals for members of the family. Id. at 285. Livingston had accidentally triggered the burglar alarm. Officers Michael Mays and Daniel Ledman responded to conduct a residence security check. Officer Ledman went to the front door and Officer Mays climbed over a six-foot fence surrounding the backyard. After encountering Ciroc in the yard, Officer Mays shot him. The other dog, Rocko, walked from the front door near his owner after Ciroc was shot in the yard. Then, Officer Mays shot Rocko several times. Plaintiffs alleged that neither dog approached Officer Mays in a threatening manner. Although the dogs were not killed, both were critically injured enough so they were no longer able to act as service dogs. “LeMay and Livingston sued Mays and the City of Minneapolis under 42 U.S.C. § 1983, alleging Mays unlawfully searched their home and seized their dogs in violation of the Fourth and Fourteenth Amendments of the United States Constitution and the City was liable under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).” Id. at 286. The Monell claim was dismissed. However, the district court denied the government’s assertion that Officer Mays was entitled to qualified immunity against the unlawful search and seizure claim.

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    Topics: Fourth Amendment, search and seizure, qualified immunity, Trish Sifka, imminent danger

    EMPLOYMENT: Title VII Plaintiff May Seek Punitive Damages After Releasing Compensatory Claim

    Posted by Nadine Roddy on Wed, Dec 15, 2021 @ 11:12 AM

    The Lawletter Vol 46 No 7

    Nadine Roddy—Senior Attorney, National Legal Research Group

                Recently, a federal district court sitting in New York held that an employee’s prior release of a claim for compensatory damages for unlawful employment discrimination did not preclude his claim under Title VII for punitive damages arising out of the same conduct. Barker v. Aramark Unif. & Career Apparel, LLC, No. 19-CV-2710, 2021 WL 4859741 (E.D.N.Y. Oct. 18, 2021). The employee in the case filed a charge of race discrimination against his former employer with the State Division of Human Rights. The parties entered into a Settlement Agreement by which the employee “waive[d] and release[d] any and all claims and allegations asserted in” the Division proceeding “arising from or relating to any and all acts, events and omissions alleged or that could have been alleged[.]” Id. at *5. Subsequently, the employee brought a Title VII suit in federal court, seeking punitive damages—a remedy not available in the state agency proceeding. The employer moved for summary judgment, arguing inter alia that because the law does not recognize an independent cause of action for punitive damages, no such right could have been reserved by the Settlement Agreement.

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    Topics: employment discrimination, Nadine Roddy, Title VII punitive damages, no preclusion, no prerequisite for release of compensatory claim

    CONSTITUTIONAL LAW: History and the Application of the Second Amendment

    Posted by James P. Witt on Wed, Dec 15, 2021 @ 10:12 AM

    The Lawletter Vol 46 No 7

    Jim Witt—Senior Attorney, National Legal Research Group

                Historical background has always played an important role in the development of case law under the U.S. Constitution. With the emergence of original-intent theory, history, especially the legal history of England, has become even more influential. This point is exemplified by the continuing questions that arise over the interpretation of the Second Amendment to the U.S. Constitution, "Keeping and Bearing Arms—A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. "

                The case law that has developed under the Second Amendment has largely focused on issues arising in the context of a state's right to raise and maintain a militia, with no U.S. Supreme Court decision dealing with the extent of an individual's right to bear arms. This changed in 2008, however, when Justice Antonin Scalia delivered the majority opinion in the 5-4 decision in District of Columbia v. Heller, 554 U.S. 570 (2008), in which the Supreme Court affirmed the right of an individual to keep arms in the home for self-defense.

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    Topics: constitutional law, James P. Witt, second amendment, individual's right to bear arms, self-defense

    BANKRUPTCY: Damages Awarded for Pursuit of Divorce Case in Violation of Automatic Stay

    Posted by April Wimberley on Wed, Dec 15, 2021 @ 10:12 AM

    The Lawletter Vol 46 No 7

    April Wimberley—Senior Attorney, National Legal Research Group

                A bankruptcy court recently awarded attorney’s fees, compensation for emotional distress, and punitive damages to a debtor whose ex-husband continued litigating their divorce case in violation of the automatic stay. In re Payne, No. 20-30524 (Bankr. E.D. Va. Mar. 22, 2021). On January 15, 2020, the Circuit Court of Chesterfield County, Virginia, entered a final decree in the divorce case between Cynthia Payne and Thomas Payne. Thereafter, on January 31, 2020, Ms. Payne filed a Chapter 13 bankruptcy petition in the Bankruptcy Court for the Eastern District of Virginia. In response to the debtor’s bankruptcy filing, the ex-husband, through his attorney, filed several documents in the divorce case, including a motion to stay and a motion to rehear and reconsider. The respondents maintained that the purpose of the motion to stay was to prevent the expiration of the state court’s jurisdiction due to the debtor’s bankruptcy and to address her alleged failure to disclose the existence of a bank account during the divorce litigation. The motion to rehear and reconsider aimed to have the state court reconsider issues of equitable distribution. The respondents did not seek stay of relief from the bankruptcy court before filing the state court motions.

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    Topics: bankruptcy, April Wimberley, violation of automatic stay, recovery of actual and punitive damages

    CRIMINAL LAW: Sex Offender Registration Requirement

    Posted by Mark Rieber on Wed, Dec 15, 2021 @ 09:12 AM

    The Lawletter Vol 46 No 7

    Mark Rieber—Senior Attorney, National Legal Research Group

                In Doe v. Wasden, No. 1:20-CV-00452-BLW, 2021 WL 4129144 (D. Idaho Sept. 8, 2021), appeal filed (9th Cir. Oct. 1, 2021), the court granted the two offenders' (John Doe and Randall Menges) motion for preliminary injunction challenging the requirement of their registration for the Idaho Sex Offender Registry because of Doe's conviction under a Crime Against Nature statute and Menges's conviction under Idaho's Crime Against Nature statute for engaging in consensual oral or anal sex. The court held that both offenders were likely to prevail on their claims that Idaho was violating their constitutional rights, which included a substantive due process claim, a procedural due process claim, and an equal protection claim. The court found that Idaho could have no legitimate interest in requiring offenders to register as sex offenders for engaging in private, consensual sexual acts and that the offenders had a protected liberty interest in both engaging in private consensual sexual activity and being free from the burdens of sex offender registration.

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    Topics: criminal law, Mark Rieber, sex offender registration, consensual sex

    LANDLORD AND TENANT: Reimbursement of Tenant for Improvements to Leased Premises

    Posted by D. Bradley Pettit on Wed, Dec 15, 2021 @ 09:12 AM

    The Lawletter Vol 46 No 7

    Brad Pettit—Senior Attorney, National Legal Research Group

                Although the general rule is that in the absence of an express agreement between a landlord and a tenant to the contrary, the tenant cannot recover from his or her landlord the costs of improvements that he or she made to the leased residential property, recent decisions by Idaho trial and appellate courts in the same case suggest that a tenant can obtain equitable restitution from his or her landlord on the ground of unjust enrichment for improvements to the leased premises that he or she made while the parties were mutually contemplating a future conveyance of the premises to the tenant as long as the landlord was aware of the improvements and never objected to them.

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    Topics: landlord-tenant, unjust enrichment theory, leased premises improvements, reimbursement contemplating future conveyance

    WILLS: Construction of Survival Clause—Beneficiaries Who Predecease Distribution

    Posted by Matthew T. McDavitt on Mon, Nov 15, 2021 @ 09:11 AM

    The Lawletter Vol 46 No 6

    Matthew McDavitt—Senior Attorney, National Legal Research Group

         In some wills, testators expressly condition the beneficiaries’ receipt of legacies upon their survival to the date of actual distribution of the gift during the estate administration. In such circumstances, the question occasionally arises regarding the propriety of such survival mandate where (1) the administration is delayed beyond the average length due to dilatory conduct by the executor or due to litigation, and (2) one or more legatees survived the testator’s death but died prior to the distribution of the legacy. A handful of courts nationally have addressed this fact pattern, arriving at a logical rule applicable when unusual delay in distribution results in the one or more legatees predeceasing distribution.

         It is well-settled that the “personal representative is under a duty to settle and distribute the estate of the decedent . . . as expeditiously and efficiently as is consistent with the best interests of the estate.” 31 Am. Jur. 2d Executors and Administrators § 686 (2021). As such, a handful of American courts examining the issue have concluded that the equitable rule in this circumstance is that legacies conditioned upon beneficiary survival to the date of distribution vest at the time such legacies could first have been distributed (often a year from when the estate was opened), to protect such gifts when the administration is unduly delayed.

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    Topics: wills, Matt McDavitt, unreasonable delay in distribution, interests vest on undelayed distribution date

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