Recent Articles from All Practice Groups

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 >

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 >

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 >

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 >

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 >

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 >

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 >

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 >

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 >

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 >

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 >

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 >

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 >

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 >

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 >

Subsequent SCOTUS Decisions Are Not “Clearly Established Law” For Habeas Petitions

After being convicted by Ohio’s state courts for murder and sentenced to death in 1986, Danny Hill challenged the judgment on the basis that the Eighth Amendment prohibits someone who is “mentally retarded” from receiving a death sentence, as established in Atkins v. Virginia, 536 U.S. 304 (2002). When that failed in the state courts, he filed a federal... Read More >

Tax Treaty Interpretation: Nonjusticiable Political Question?

The U.S. Court of Appeals for the District of Columbia reversed and remanded the lower court’s decision in a case involving the interpretation of the US-Switzerland tax treaty. In Starr International Company, Inc. v. United States, No. 1:14-cv-01593  (D.C. Cir. Dec. 7, 2019), Starr sought a tax refund for a portion of the 30 percent withholding taxes automatically... Read More >

Burglary Includes Structures Or Vehicles Adapted To Overnight Accommodation

The criminal defendants in United States v. Sims and United States v. Stitt were both sentenced under the mandatory minimum 15-year prison term provided by the Armed Career Criminal Act, which applies where a defendant had three prior convictions for certain crimes, including “burglary.” Sims and Stitt had each been previously convicted of burglary under state laws, which... Read More >

Court Upholds Challenge To Designation Of A “Critical Habitat”

Under the Endangered Species Act, when an animal is classified as “endangered,” the Secretary of the Interior must then designate the “critical habitat” of that animal for protection. In 2001, the dusky gopher frog was classified as endangered. The Secretary then designated the four areas where the frogs currently lived as critical habitats, along with another area, dubbed “Unit... Read More >

Protect Yourself Against Wire Transfer and Credit Card Fraud

We are seeing two varieties of online fraud, but the good news is securing your information is as easy as a few steps. The first type of fraud involves fake wiring instructions. The criminal learns that a transaction is about to occur and sends an email to a title company, bank, buyer, seller, or real estate agent saying that the wiring instructions... Read More >

Court Rules ADEA Applies To All Governmental Entities Regardless Of Size

When two firefighters were terminated to cut costs, they sued under the Age Discrimination Employment Act, alleging they were discriminated against based on their ages. The fire department argued that it did not have enough employees to qualify as an employer under the Act. The Act provides: “The term ‘employer’ means a person engaged in an industry affecting commerce... Read More >

Are Business Lunches Entertainment?

The new tax legislation, called the Tax Cuts and Jobs Act (TCJA) eliminated most deductions for client entertainment expenses. Prior law allowed a 50 percent deduction for both meals and entertainment expenses, and so there was no need for businesses to differentiate between the two categories. The newly enacted TCJA eliminated deductions for entertainment, amusement, and recreation expenses, but... Read More >

Pending Emergency Legislation to Affect Tax Sales and Recordation Tax on Leases

The Washington, D.C. Council is considering B22-922: Fiscal Year 2019 Budget Support Congressional Review Emergency Act of 2018 which, among many provisions, contains a few changes of interest to real estate practitioners which are found here. Recordation Tax: On leases in excess of 30 years, the Washington, D.C. government may determine the fair market value of the leasehold interest... Read More >

Condo Liens Entitled To Super-Priority Status Regardless Of Number Of Months Sought

Under D.C. Code sec. 42-1903.13, liens imposed by a condominium association for up to six months of unpaid condo fees were entitled to super-priority status ahead of all other liens on the condo. In two prior decisions, the D.C. Court of Appeals held that a foreclosure sale under such a super-priority lien necessarily wiped out all other liens of the... Read More >

D.C. Announces New Tax Rates for First-Time Homebuyer

Washington, D.C.’s innovative First Time Homebuyer’s tax rate reduces the recordation tax to .725 percent. The statute is found at Official Code §42-1101(17). The tax rate and value of the property changes from year to year based upon the C.P.I. Effective on October 1, 2019, the purchase price may not exceed $632,500 and the income for a single-member household may not... Read More >

D.C. Tax Rate Changes Effective October 1, 2018

The District of Columbia’s Office of Tax and Revenue has issued a notification of changes in various tax rates that will become effective on Monday, October 1, 2018. The real property tax for Class 2 properties will increase to $1.65 per $100 of value for properties worth less than $5,000,000; $1.77 from $5 million to $10 million; and $1.89 for... Read More >

Arthur D. Burger to Participate on Panel at the 2018 Judicial Conference of the Occupational Safety & Health Review Commission

On September 13, 2018, Arthur D. Burger will participate on a two-person panel on professionalism and ethics at the 2018 Judicial Conference of the Occupational Safety & Health Review Commission at the Darcy Hotel in Washington, D.C. Assistant Virginia Bar Counsel Kathleen Uston, formerly president of the National Organization of Bar Counsel, is also on the Panel, which... Read More >

Common HIPAA Pitfalls in Health Care Mergers and Acquisitions (and How to Identify Them)

Managing all the moving parts in a health care merger or acquisition is challenging in any transaction. For a small health care provider that does not have multiple attorneys at its beck and call, it can seem downright impossible. In the chaos of a massive exchange of due diligence materials, it is easy to overlook the additional agreements that must... Read More >

New Maryland Statute: Corporate Articles of Transfer No Longer Needed to Transfer Real Property

Until August 2018, Maryland was one of the few states that required a state-based corporation that transfers all of its real property assets to execute and file articles of transfer with the State Department of Assessment and Taxation (SDAT). This regulation is outlined in the Corporations and Associations Article of the Annotated Code of Maryland Section 1-101(y) and 3-109... Read More >