Recent Articles from All Practice Groups
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SCOTUS Opinion: Court Rejects Narrow Reading Of Immigration Detention Statute
Federal immigration law provides that certain criminal aliens may be detained by the Secretary of the Department of Homeland Security and not released until a determination on deportation is made. The statute in question, 8 U.S.C. § 1226(c)(1), directs the Secretary to arrest the alien “when the alien is released” from jail, and Section 1226(c)(2) mandates that the Secretary keep ... Read More
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Court Upholds Validity of Foreclosure Sale in Light of Debtor’s Failure to Seek a Stay Pending Appeal
A recent decision issued by the Bankruptcy Court for the Eastern District of Virginia underscores the importance for both debtors and creditors to be especially cognizant of procedural rules when dealing with a property subject to foreclosure. In re: Bobbie Upasna Vardan involved a property that had been affected by four bankruptcies filed by the debtor or members of her ... Read More
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Health Law Practice Group Precludes Untimely Lawsuit
The Health Law Practice Group had a pro se plaintiff’s lawsuit dismissed in the Superior Court of the District of Columbia (Rigsby, J.) for lack of pre-suit notice and a limitations bar. The plaintiff noted a timely appeal, which Jackson & Campbell, P.C. successfully defended. In Waugh v. MedStar Georgetown Univ. Hosp., No. CAM-7381-17 (D.C. Mar. 14, 2019), ... Read More
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Department of Labor Proposes New Overtime Rules
Employers will recall during the Obama administration that the salary threshold for determining overtime eligibility under the Fair Labor Standards Act was changed from $23,660 per year to $47,476.00 per year. Many employers modified their own employment policies to meet the new standard despite the federal regulations never being implemented due to a successful court challenge. The Trump administration has ... Read More
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March Real Estate Update | Cushman & Wakefield of Maryland, Inc. v. DRV Greentec, LLC
The Court of Appeals of Maryland issued two recent decisions impacting landlord/tenant issues. Cushman & Wakefield of Maryland, Inc. v. DRV Greentec, LLC In Cushman & Wakefield of Maryland, Inc. v. DRV Greentec, LLC, filed on March 4, 2019, the Court of Appeals held that a commercial broker could not enforce an obligation to pay a commission against an owner’s assignee. In ... Read More
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SCOTUS Opinion: No Copyright Infringement Suit Until A Copyright Is Registered
In Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, Fourth Estate licensed works to a news website. The parties cancelled the licensing agreement, but the website did not remove the works. Fourth Estate sued for copyright infringement under the Copyright Act, but its lawsuit was dismissed because Fourth Estate had only applied to register the works—the Register of ... Read More
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SCOTUS Opinion: Lost Wages Awarded Under Railroad Retirement Tax Act Are Compensation Subject To IRS Taxation
Michael Loos was injured while working for BNSF Railway Company. He sued his employer, and after trial was awarded $85,000 in pain and suffering, $11,212.78 in medical expenses, and $30,000 in lost wages as a result of him not being able to work from the injury. BNSF then argued that the lost wages award was “compensation . . . for ... Read More
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SCOTUS Opinion: Copyright Act’s Award Of Costs Limited To Those Available Under Typical Bill Of Costs
Oracle accused Rimini Street, Inc. of violating various copyrights, and won at trial. Under the Copyright Act, the district court awarded Oracle $12.8 million in litigation expenses under the Act. The district court acknowledged that it was awarding Oracle costs that were not within the six designated categories set forth under 28 U.S.C. secs. 1821 and 1920, ... Read More
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Revocable Trusts and Real Property in Washington, D.C.
When thinking about transferring a Washington, D.C. real property into a revocable trust, there are several considerations to take into account. Beginning Steps: To ensure the transfer occurs properly, a deed has to be recorded. A transfer is usually exempt from transfer and recordation taxes, provided that the trust is revocable and that the grantor remains the beneficiary. Deductions: In most circumstances, the property ... Read More
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SCOTUS Opinion: Court Limits Immunity Afforded Under The International Organizations Immunity Act Of 1945
Originally, the International Organizations Immunity Act of 1945 (IOIA) granted foreign corporations virtually absolute immunity from suit. In 1952, the State Department adopted a more restrictive view, carving out commercial acts from that immunity. Congress then passed the Foreign Sovereign Immunities Act (FSIA) in 1976, which specifically excepted commercial activity with a sufficient nexus in the United States ... Read More
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SCOTUS Opinion: Eighth Amendment Bars Execution Of Defendant Without “Rational Understanding” Of The Reason For Execution
After he was sentenced to death for killing a police officer, Vernon Madison suffered a series of strokes and was diagnosed with dementia. In a prior series of appeals by Madison, the U.S. Supreme Court held that his mere inability to remember his crime did not establish that Madison was incompetent to be executed. When his execution was rescheduled on ... Read More
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SCOTUS Opinion: Failure To File Appeal Is Constitutionally Deficient Even After Defendant Signs Appeal Waiver
In Garza v. Idaho, Garza signed two plea agreements for state crimes, each of which included a waiver of his appeal rights. After he was sentenced, Garza told his counsel that he wanted to appeal. His counsel did not file any appeal, telling Garza that his waivers made any such appeal “problematic.” After the deadline to appeal passed, Garza ... Read More
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SCOTUS Opinion: Deadline To Appeal Class Decertification Not Subject To Equitable Tolling
Under Rule 23(f) of the Federal Rules of Civil Procedure, a party has 14 days to file with the federal circuit appeals court a petition for permission to appeal an order certifying or decertifying a class action. In Nutraceutical Corp. v. Lambert, when the district court decertified his class action, Troy Lambert chose to file a motion for ... Read More
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SCOTUS Opinion: Judges Cannot Vote On Cases After Death
In Yovino v. Rizo, the Ninth Circuit heard the case en banc (with 11 then-sitting judges) to restate that circuit’s interpretation of the Equal Pay Act. Judge Stephen Reinhardt authored the majority opinion that was joined by six of the judges, including Reinhardt himself. The other five judges filed concurrences that reached a similar result but under different ... Read More
TAGGED: scotus, Yovino v. Rizo, Equal Pay Act, appointed for life
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Eighth Amendment Applies To State Civil Forfeitures
Tyson Timbs pleaded guilty to dealing in heroin in Indiana, for which the maximum fine was $10,000. The State sought to use civil forfeiture to seize his SUV, which Timbs bought for $42,000, which was allegedly used to move the heroin. The state trial court denied the State’s request as violative of the Eighth Amendment’s protection against excessive fines, but ... Read More
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Court Again Finds Man Ineligible For Death Penalty Due To Intellectual Disability
In 2017, the Supreme Court held in Moore v. Texas, 581 U.S. ___ (2017), that the Texas Court of Criminal Appeals used a flawed analysis to determine that Bobby James Moore was not intellectually disabled, and thus eligible to receive the death penalty. In part, the flaw was that the Texas court focused on Moore’s adaptive strengths instead of ... Read More
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Court Applies Intergovernmental Tax Immunity In Favor Of Federal Retirees
In Dawson v. Steager, West Virginia sought to tax a federal law enforcement retiree’s pension. Under 4 U.S.C. §111, the federal government permits this so long as the state tax does not discriminate on the basis of the source of the compensation, otherwise known as the intergovernmental tax immunity doctrine. However, West Virginia, by statute, did not tax ... Read More
TAGGED: scotus, Dawson v. Steager, 4 U.S.C. §111
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Tax Planning for Nonresident Aliens Who Own US Property
Individuals who are not citizens or residents of the United States, known as nonresident aliens (NRA), need to be aware of the U.S. estate and gift taxes that will be applicable to their U.S. fixed assets, for example, U.S. real estate. If an NRA owns fixed assets located in the ... Read More
TAGGED: real estate, irs, nonresident aliens, property, qdot, taxes, trust & estates
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Arthur D. Burger Will Participate on a Panel at this Spring’s American Bar Association’s 34th Annual Intellectual Property Law Conference
On Friday, April 12, Arthur D. Burger will participate in the American Bar Association’s (ABA) 34th Annual Intellectual Property Law Conference in Arlington, Virginia as part of a panel titled, “Rocks and Hard Places for IP Practitioners.” The panel will discuss various ethical issues that IP attorneys need to navigate in order to successfully represent their clients ... Read More
TAGGED: American Bar Association, ABA, Intellectual Property
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In Two Orders, SCOTUS Stays Louisiana Abortion Law, Permits Execution—Both Over Four Dissenters
In June Medical Services, LLC v. Gee, a five-Justice majority (the Chief Justice and Justices Ginsburg, Breyer, Sotomayor, and Kagan) granted a stay of the Fifth Circuit’s mandate upholding a Louisiana law that required abortion providers to have admitting privileges at a hospital. The law is therefore on hold until the Court resolves the petition for certiorari of that ... Read More
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Arthur D. Burger Will Participate on a Panel at the 2019 American Bar Association’s Annual National Conference on Professional Responsibility
On Thursday, May 31, Arthur D. Burger will participate in a risk management panel with colleagues from Aon Risk Solutions and Hogan Lovells. The panel is a part of the American Bar Association’s (ABA) Annual National Conference on Professional Responsibility in Vancouver, British Columbia and will cover how to evaluate and improve a law firm’s risk management standards and how ... Read More
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Excise Tax on Nonprofits: Executive Compensation
Many tax-exempt organizations will now be required to pay an excise tax on any compensation over $1 million paid to each of their top five employees. That amount of compensation, including end-of-career parachute payments, may be subject to the corporate tax rate, which is currently 21 percent. Internal Revenue Code section 4960, enacted as part of the Tax Cuts and Jobs ... Read More
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Once Sold (Even Under Term Of Confidentiality), An Invention May Not Be Patented
Under the Leahy-Smith America Invents Act, an invention may not be patented if it has been “in public use, sold, or otherwise available to the public before the effective filing date of the claimed invention.” In Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., the issue was whether an invention had been “sold” within the ambit of the ... Read More
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Virginia Supreme Court: Newly-Acquired Subsidiary Does Not Receive Coverage Under Owner’s Property Insurance
After EPC MD 15, LLC purchased commercial property fire insurance from Erie Insurance Exchange, it purchased another company that owned a separate building on another property. The new subsidiary was not a named insured under the original policy. When that building sustained fire damage, EPC submitted a claim, claiming that the purchase of the subsidiary made the subsidiary’s property “newly ... Read More
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Robbery Is A “Violent Felony” Under Armed Career Criminal Act
The Armed Career Criminal Act provides a 15-year mandatory minimum sentence for anyone who had previously been convicted of three “violent” felonies. The Act defines a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” ... Read More
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Federal Arbitration Act Does Not Compel Arbitration For Disputes With Interstate Drivers
In New Prime Inc. v. Oliveira, a driver for an interstate trucking company filed a class action claiming that the company denied its drivers lawful wages. The company, citing the mandatory arbitration provision in the driver’s contract, asked the district court to transfer the case to arbitration. The driver argued that the case was exempt under Section 1 of ... Read More
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Are Attorneys Conducting Nonjudicial Foreclosures “Debt Collectors?” U.S. Supreme Court To Decide.
On January 7, 2019, the U.S. Supreme Court will hear argument in Obduskey v. McCarthy Holthus, LLP, in which Wells Fargo, through counsel, conducted a nonjudicial foreclosure on Obduskey’s home after he defaulted on a loan. The foreclosure notice did not request that Obduskey make any payments on the debt—it simply set forth the total amount due under the ... Read More
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Court Rejects Cap On Aggregate Attorney Fees Under Social Security Act
Under the Social Security Act, an attorney representing a claimant seeking past-due benefits is limited in the fees he or she may charge. Section 406(a) of the Act capped fees at the lesser of 25 percent of the past-due benefits, or $6,000 in proceedings before the agency. Section 406(b) of the Act capped fees at 25 percent of the ... Read More
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Federal Arbitration Act Forbids Courts From Weighing In On Arbitrability
The Federal Arbitration Act permits parties to enter into contracts agreeing that an arbitrator, rather than a court, will resolve disputes arising out of that contract. However, sometimes there are disputes as to whether a particular claim is subject to arbitration under the agreement. Even when contracts delegate the arbitrability question to an arbitrator, some federal courts had reserved ... Read More
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Court Upholds Qualified Immunity For Officer Responding To Domestic Dispute
In City of Escondido v. Emmons, Officer Craig and Sergeant Toth responded to a call reporting a domestic dispute at a home. After talking to the occupants from outside the home for a bit, one of the occupants exited and tried to brush past Officer Craig. The officer quickly took the man to the ground and handcuffed him. The ... Read More