Recent Articles from All Practice Groups
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National Survey of COVID-19 Medical Malpractice Immunity Legislation
(as of July 17, 2020) [1] The below survey of federal and state legislation, guidance, and executive action provides information regarding enacted and proposed legislation and executive orders issued to provide immunity protections for liability, in certain respects, to health care professionals, facilities, and volunteers in the course of their treatment of individuals during the course of the COVID-19 ... Read More
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SCOTUS Opinion: Narrow Majority Finds Indian Reservation Over Much of Oklahoma
In McGirt v. Oklahoma, a member of the Seminole Nation was prosecuted in Oklahoma state court of serious sexual offenses and sentenced to 1,000 years plus life in prison. He argued that the state court lacked jurisdiction because under the Major Crimes Act, only federal courts had jurisdiction over crimes committed by an Indian on “Indian country,” and he argued ... Read More
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SCOTUS Opinion: Court Sets Forth Standard For Congress To Subpoena President Trump’s Financial Records
Three different House committees issued subpoenas to President Trump’s accountant and two banks seeking information about his finances and his businesses. Trump fought the subpoenas, arguing that the subpoenas violated the separation of powers and were not linked to a valid legislative purpose, but he did not claim executive privilege. The DC and Second Circuits both declined to stop the ... Read More
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SCOTUS Opinion: Court Expands the Breadth of the “Ministerial Exception” to the First Amendment
In prior cases, the Court had held that the First Amendment’s Religious Clauses prevented the courts from adjudicating employment discrimination claims between a church and certain employees, which was dubbed the “ministerial exception.” In Our Lady of Guadalupe School v. Morrissey-Berru, two elementary school teachers at Roman Catholic churches brought employment discrimination claims against their churches. In both cases, the ... Read More
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SCOTUS Opinion: Court Upholds Birth Control Exclusion for Religious Organizations Under ACA
While the Patient Protection and Affordable Care Act required employers to provide coverage for contraceptives, the Government issued rules exempting religious employers from that mandate. After subsequent rulings by the Supreme Court on claims that the rules violated the Religious Freedom Restoration Act and the Free Exercise Clause of the First Amendment, the Government issued new rules expanding the exemption ... Read More
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SCOTUS Opinion: Court Strikes Down Faithless Electors
Instead of voting directly for presidential candidates, voters actually vote for electors appointed by each State, who then vote for the presidential candidate preferred by the voters. In 2016, however, three electors in the State of Washington pledged to vote according to what the voters preferred, but then violated that pledge and refused to vote for Hillary Clinton as they ... Read More
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SCOTUS Opinion: Government Collections Robocalls Violate the First Amendment
The 1991 Telephone Consumer Protection Act originally barred practically all robocalls to cell phones, but in 2015 Congress carved out an exception to allow robocalls solely for the purpose of collecting a debt owed to the Government. Certain political groups filed suit arguing that that exception violated the First Amendment, and thus the entire robocall ban should be invalidated. The ... Read More
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Client Alert: Sweeping Changes to Virginia’s Employment Laws
The Virginia legislature enacted a series of sweeping employment laws, all but one of which went into effect July 1. These changes affect employers and employees in many sectors of the economy, bringing about reforms that have long been sought by progressive activists and labor interests. A primer for Virginia employers is below: Non-Competes Following the lead of its more progressive sister ... Read More
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SCOTUS Opinion: Generic.com Names Can Be Trademarked
In U.S. Patent and Trademark Office v. Booking.com B.V., the Office declined to grant a trademark to “Booking.com,” which was a site that provided travel-reservation services, because, in its view, the name was generic, and generic names are not eligible for trademark protection. The district court disagreed, determining that “Booking.com” was not generic even though the term “booking” was. The ... Read More
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SCOTUS: States Cannot Exclude Religious Schools From Tuition Programs
Montana created a program that granted tax credits to organizations that awarded scholarships for private school tuition. Because Montana’s Constitution expressly prohibits “appropriation or payment” to sectarian schools—a “no-aid clause”—the State issued a rule prohibiting the scholarships from being used toward religious schools. Three mothers who wanted to use the scholarships to send their children to a Christian private school ... Read More
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SCOTUS Opinion: Court Declines to Extend First Amendment Protections to Foreign Corporate Affiliates
The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act was enacted in 2003 as a foreign aid program focused on global health. Congress dedicated billions of dollars in funding to the Act, but required that organizations could only receive funds if they had a “policy explicitly opposing prostitution and sex trafficking.” In Agency for Int’l Development v. Alliance for ... Read More
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SCOTUS Opinion: Director of the Consumer Financial Protection Bureau Is Removable At Will
To ensure that consumer debt products were safe and transparent, Congress created the Consumer Financial Protection Bureau, which had power to investigate and seek relief on behalf of consumers, among other Executive Branch powers. Unlike other independent agencies, the Bureau was led by a single Director, appointed by the President with advice and consent of the Senate for a five-year ... Read More
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SCOTUS Opinion: Narrow Majority Strikes Down Louisiana Abortion Law
The Louisiana law at issue in June Medical Services, LLC v. Russo was practically identical to the Texas law the Court struck down in Whole Women’s Health v. Hellerstedt, 579 U.S. ___ (2016), which required abortion providers to hold active admitting privileges at a hospital within 30 miles of where they perform abortions. Since that time, however, one member of ... Read More
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Client Alert: Dwight Deloatch v. Robin Deloatch
The District of Columbia Court of Appeals recently highlighted a United States Supreme Court decision that went largely unnoticed in the real estate industry. As the highlighted rule stems from the highest court in the land, real estate practitioners in all jurisdictions should take note. In Dwight Deloatch v. Robin Deloatch, Mr. Deloatch noted an appeal nearly four (4) years after ... Read More
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SCOTUS Opinion: Court Upholds Limit on Habeas Corpus Review of Immigration Claim
An immigrant subject to expedited removal can argue for asylum based on a “credible fear of persecution” if they are returned to their country of origin, under the Illegal Immigration Reform and Immigrant Responsibility Act. However, the Act states that federal courts may not review a determination that an immigrant seeking asylum lacks such fear, pursuant to a writ of ... Read More
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SCOTUS Opinion: Disgorgement Is An Equitable Remedy Available To The SEC
The Securities Exchange Act of 1934 permits the Securities and Exchange Commission to seek civil penalties and “equitable relief” in civil suits against those who violate securities laws. In the prior case of Kokesh v. SEC, 581 U.S. ___ (2017), the Court held that disgorgement was a “penalty” under the applicable statute of limitations for SEC enforcement actions, but declined ... Read More
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Face Coverings in the Workplace: 5 Lessons You Need to Know
As more businesses reopen and workers – many wearing face masks – return to in-person interactions with co-workers, customers and clients, here are five things that every worker should know about face masks in the workplace. What are the different types of face coverings and masks? Generally, there are three categories of face coverings and masks: cloth face coverings, surgical masks, ... Read More
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SCOTUS Decision: Court Preserves DACA Program… For Now
The case of Department of Homeland Security v. Regents of the University of California concerned the Trump administration’s decision to end the Deferred Action for Childhood Arrivals program initiated by the Obama administration. DACA was created in 2012 to allow certain children who enter the United States illegally to apply for a two-year forbearance of removal. Approximately 700,000 people had ... Read More
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SCOTUS Opinion: Failure to Elicit Abusive Childhood Constituted Ineffective Assistance of Counsel
In order to prove ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), a defendant must prove by a preponderance of the evidence that his counsel’s representation fell below an objective standard of reasonableness, and there was a reasonable probability that the result of the proceedings would have been different but for counsel’s deficient performance. In Andrus ... Read More
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SCOTUS Opinion: New Gas Pipeline Under Appalachian Trail Allowed To Proceed
In U.S. Forest Service v. Cowpasture River Preservation Association, the issue was whether the U.S. Forest Service had the authority to grant a right-of-way easement about 600 feet underneath a portion of the Appalachian Trail for the construction of a new natural gas pipeline. The Leasing Act gave the Forest Service authority to grant easements over lands that it administrated, ... Read More
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SCOTUS Opinion: Gay and Transgender Employees Are Protected Under Title VII of the Civil Rights Act
Bostock v. Clayton County consisted of several cases in which a long-time employee was terminated solely for being gay or transgender. Those employees sued under Title VII of the Civil Rights Act of 1964, which makes it unlawful to fire an employee “because of such individual’s race, color, religion, sex, or national origin,” arguing that employment discrimination on account of ... Read More
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SCOTUS Opinion: Court Strengthens Prison Litigation Reform Act’s “Three-Strikes Rule”
The Prison Litigation Reform Act of 1995 prevents a prisoner from bringing suit in forma pauperis (“IFP”) after having three or more prior suits dismissed for being frivolous, malicious, or failing to state a claim while he or she was imprisoned—called the “three-strikes rule.” Inmate Arthur Lomax sought IFP status in a fourth suit he brought as an inmate, which ... Read More
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SCOTUS Opinion: Court Declines to Preclude Nonsignatories from Being Able to Enforce Arbitration Provision
At the heart of GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC is a construction contract with an arbitration clause. One of the signatories to that contract engaged a subcontractor to do part of that construction. When the subcontractor’s work allegedly failed, the owner sued the subcontractor. The subcontractor moved to dismiss the case and compel ... Read More
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SCOTUS Opinion: Court Upholds Puerto Rico’s Financial Oversight and Management Board Against Appointments Clause Challenge
After Puerto Rico suffered a fiscal crisis starting in 2006, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act, creating a Financial Oversight and Management Board that would be able to file bankruptcy on behalf of Puerto Rico or its instrumentalities, among other things, to regain financial stability. The members of the Board were to be appointed by ... Read More
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SCOTUS Opinion: Motion to Amend Judgment in Habeas Proceeding is Not a Separate Habeas Petition
After Gregory Banister was sentenced to 30 years in prison in Texas state court, and after he had exhausted his appeals in the Texas courts, he filed a petition for habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996, arguing, among other things, ineffective assistance of counsel. The district court denied the petition. Banister then filed a ... Read More
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SCOTUS Opinion: Beneficiaries Receiving Full Benefits Have No Standing To Challenge ERISA Plan Governance
U.S. Bank maintains a retirement plan for its employees. Two of those beneficiaries, who had retired, were entitled to a fixed payment each month, and received every such payment. Regardless, they sued their former employer under the Employee Retirement Income Security Act of 1974, arguing that the plan had been mismanaged and should be re-payed about $750 million. The Eighth ... Read More
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SCOTUS Opinion: Court Enlarges Scope of Judicial Review of Orders Under the Convention Against Torture
Nidal Khalid Nasrallah received some stolen property, which made him eligible to be removed under federal immigration law. Nasrallah argued to the immigration court that he should not be removed to his home country of Lebanon under the Convention Against Torture because it was likely that, as a member of the Druze religion, he would be tortured upon his return ... Read More
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SCOTUS Opinion: Court Declines to Suspend COVID-19 Restrictions on Church Worship in California
The Governor of California issued an executive order to limit the spread of COVID-19, which in part limited attendance at places of worship to 25% of building capacity or 100 people, whichever is less. Several churches challenged that order, and asked the courts to enter an injunction staying its effect during the course of the litigation due to its First ... Read More
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Client Alert: District Court of the District of Columbia Denies Traditional Legal Defenses Raised by Title Companies
On May 22, 2020, the United States District Court for the District of Columbia issued an important decision denying an early motion to dismiss against a title company for its actions preceding a troubled transaction. The decision is significant in that the District Court denied each of the traditional legal defenses typically raised by title companies at such an early ... Read More
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Client Alert: New York Assembly Bill Would Repeal State’s Healthcare Immunity Statute Passed in Wake of COVID-19 Citing Concerns Over Nursing Home Conduct
A New York Assemblyman has introduced a bill that would repeal Article D-30, Emergency or Disaster Treatment Protection Act of the New York Public Health Law, which was enacted on April 2, 2020, and provides health care facilities, health care providers, and volunteer organizations from immunity from civil or criminal liability for harm or damages sustained as a result ... Read More