Category Archives: Litigation

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

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

The Court of Appeals of Maryland Clarifies a Receiver’s Ability to Sell Real Property

Similar to other businesses that are slowly beginning to reopen, the appellate courts are increasing the amount of decisions being issued. On May 12, 2020, the Court of Appeals of Maryland issued an important decision which reversed the intermediate appellate court and clarified a receiver’s ability to sell real property. In Mayor and City Council of Baltimore v. Prime Realty Associates, ... Read More

SCOTUS Opinion: No Pre-emption for States to Use Federal Immigration Information to Enforce State Identity Theft Law

Under federal law, employers must verify, through an I-9 form, that they have “verified” that each new employee “is not an unauthorized alien.” In Kansas v. Garcia, three persons who were living in the United States illegally used the same false Social Security number on their I-9 forms, as well as their tax withholding forms, and were prosecuted under ... Read More

SCOTUS Opinion: Court Strictly Interprets “Actual Knowledge” For ERISA Limitations Period

Under the Employee Retirement Income Security Act of 1974, a person with “actual knowledge” of an alleged fiduciary breach by the administrator of a pension plan must file suit within three years of gaining such knowledge—otherwise, a six-year limitations period applies. In Intel Corp. Investment Policy Committee v. Sulyma, Intel argued that its former employee filed such a claim ... Read More

SCOTUS Opinion: Criminal Defendant Preserves Appellate Claim by Arguing for Lesser Sentence

Under Federal Rule of Criminal Procedure 51(b), a criminal defendant wishing to “preserve a claim of error” for appeal must inform the trial judge “of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection.” In Holguin-Hernandez v. United States, when prosecutors sought a sentence of ... Read More

SCOTUS Opinion: Court Declines To Extend Bivens To Allow Suit Against Border Agent For Shooting

U.S. Border Patrol agent Jesus Mesa, Jr. shot 15 year-old Sergio Adrian Hernandez Guereca while Mesa was on U.S. land, and Hernandez had run back across onto Mexican soil. Hernandez's family sued Mesa under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), which permits damages claims against federal agents even though no federal statute authorized the claim ... Read More

Davis v. Echo Valley Condominium Association, 945 F.3d 483 (6th Circuit Court, December 19, 2019)

In a recent case before the U.S. Court of Appeals for the Sixth Circuit, the court heard a matter involving the intersection between fair housing law and community association governance. In this case, Phyllis Davis purchased a second-floor unit in a four-unit condominium building within the Echo Valley Condominium Association in Farmington Hills, Michigan. Davis suffers from asthma and chemical ... Read More

SCOTUS Opinion: ERISA Case Remanded To Consider Alternative Arguments

Retirement Plans Committee of IBM v. Jander concerned a claim by Employee Retirement Income Security Act of 1974 (ERISA) plan beneficiaries that the fiduciaries in control breached their duty of prudence on the basis of insider information. The standard for stating such a claim had been previously set forth by the Court in Fifth Third Bancorp v. Dudenhoeffer, ... Read More

SCOTUS Opinion: Denial Of Request For Relief From Automatic Bankruptcy Stay Is A Final, Appealable Order

After Ritzen Group, Inc. sued Jackson Masonry, LLC over a contract, Jackson filed for Chapter 11 bankruptcy, which immediately halted Ritzen’s litigation. Ritzen moved the bankruptcy court for relief from the automatic stay, which was denied. Ritzen then filed a proof of claim, which was eventually disallowed. Ritzen then opted to file a notice of appeal of the bankruptcy court’s ... Read More

SCOTUS Opinion: Court Enforces The “American Rule” Of Costs Against The Patent And Trademark Office

The Patent Act provides that when an applicant for a patent brings suit against the Patent and Trademark Office (PTO) when the Office rejects the applicant’s patent, the applicant must pay “[a]ll the expenses of the proceedings.” In Peter v. Nantkwest, Inc., a patent applicant sued the PTO under the Act when the PTO denied its application for a ... Read More

SCOTUS Opinion: Court Rejects Discovery Rule For Fair Debt Collection Practices Act Claims

The Fair Debt Collection Practices Act requires that claims be brought “within one year from the date on which the violation occurs.” In Rotkiske v. Klemm, a debt collector filed suit against Kevin Rotkiske, served him where he no longer lived, and obtained a default judgment against him in 2009. Rotkiske learned of the judgment in 2014, and sued ... Read More

December Real Estate Update | Rae Lee Davis v. J. Garnett Davis, Jr.

On December 5, 2019, the Supreme Court of Virginia issued an opinion invalidating three gift deeds executed and delivered in 2013. The decision is significant in that evidence outside of the recorded documents – and, presumptively, outside of the review of any title examiner – was relied upon by the Court in reaching its decision. In Rae Lee Davis v. J ... Read More

Is the Lender’s Title Policy Coverage Triggered in the Underlying Battle Between the Lender and the Homeowners Association in a Super-Priority Lien State?

In Wells Fargo Bank, NA, as Trustee v. Fidelity National Insurance Company, Case No. 3:19-cv-00241-MMD-WGC in the United States District Court for the District of Nevada (decided October 29, 2019), the trial court was recently confronted with an issue which has been brewing over the past several years in those states that provide Homeowners Association (HOA)/condominium liens with a super-priority ... Read More

September Real Estate Update | Loch Levan Land L.P. v. Board of Supervisors of Henrico County

On August 22, 2019, the Supreme Court of Virginia issued an opinion denying a developer’s claim of vested rights in a dedicated road. In Loch Levan Land L.P. v. Board of Supervisors of Henrico County, the Court affirmed the Circuit Court’s judgment and brought major disruptions to plans for development of 1,089 acres of land located only a few miles ... Read More

Supreme Court of Virginia Holds That Insurer is Entitled to Equitable Contribution From Another Covering Insurer and that Consent to Settlement Conditions Are Waived by Denial of Coverage on Other Grounds

In a decision issued on July 18, 2019, the Supreme Court of Virginia vacated a judgment entered in favor of a liability insurer seeking contribution against another liability insurer and remanded the case to the trial court on the grounds that the complaint had stated a claim for equitable contribution. Nationwide Mut. Fire Ins. Co. v. Erie Ins. Exchange, 829 ... Read More

Virginia Code Expands Uses for Discovery Depositions and Affidavits

On July 1, 2019, an amendment to the Virginia Code took effect which allows discovery depositions and affidavits to be “used in support of or in opposition to a motion for summary judgment in any action when the only parties to the action are business entities and the amount at issue is $50,000 or more.” See Va ... Read More

Changes in Legal Landscape That Could Impact Medical Malpractice Risks | August 2019

In researching and reviewing recent legal developments in the medical malpractice field, Jackson & Campbell, P.C. has identified recent changes in the law and the legal landscape that could impact medical malpractice claims and the risk associated with such cases. Below highlights some of these issues. Impact of Increase in Successful Challenges to Caps on Non-Economic Damages Louisiana (October 2016): Supreme ... Read More

July Real Estate Update | Margaret Williams v. James Kennedy | Jane Robinson, Trustee v. Nels Nordquist

The District of Columbia Court of Appeals and the Supreme Court of Virginia have recently issued decisions which are significant for those in the real estate industry. Washington, D.C. On July 11, 2019, the District of Columbia Court of Appeals issued its decision in Margaret Williams v. James Kennedy regarding intra-owner transfers within the context of the Tenant Opportunity to Purchase Act ... Read More

SCOTUS Opinion: Court Decides That Federal Courts Cannot Address Partisan Gerrymandering Claims

The case of Rucho v. Common Cause combined two different gerrymandering claims: one from North Carolina where the claim was that the redistricting plan hurt Democrats, one from Maryland which claimed that the plan hurt Republicans. In both cases, the district courts ruled that the plans violated the Constitution. The Court, in a 5-4 opinion by Chief Justice Roberts, ... Read More

SCOTUS Opinion: Court Blocks The Citizenship Question From The 2020 Census Questionnaire For Now

The Constitution requires a census to be taken every 10 years, and Congress delegated that task to the Secretary of Commerce. In 2018, the Secretary announced that he would reinstate a citizenship question on the 2020 census questionnaire, a question that had been included in almost every census up through 2000. Opposition to the question claimed that the question would ... Read More

SCOTUS Opinion: State Residency Requirement For Liquor Store Licenses Struck Down

Tennessee law required that to get a license to sell alcohol, the seller had to first be a Tennessee resident for two years. The state agency tasked with enforcing the law declined to do so after the state’s attorney general opined that the law violated the Commerce Clause of the Constitution. When two non-resident businesses applied for licenses, a ... Read More

SCOTUS Opinion: Auer Deference To An Agency’s Interpretation Of Its Own Regulations Survives, Barely

In Kisor v. Wilke, the underlying case concerned a Vietnam War veteran’s quest for disability benefits. The Department of Veterans Affairs interpreted its internal rule to deny the veteran benefits going back to when he first applied. The Federal Circuit affirmed the determination using Auer deference, established by the Court in Auer v. Robbins, 519 U.S. 452 (1997), ... Read More

SCOTUS Opinion: Court Strikes Supervised Release Statute That Permitted Additional Prison Time Without A Jury Determination

In United States v. Haymond, Andre Haymond was found guilty by a jury of possessing child pornography, a crime that permitted a prison term of zero to 10 years. After serving his term and while on supervised release, Haymond was found with what appeared to be images of child pornography on his devices. Under 18 U.S.C. sec. 3583(k), a ... Read More

SCOTUS Opinion: Court Strikes Down Violent Felony Residual Clause As Vague

Under 18 U.S.C. sec. 924(c)(3)(B), a defendant may receive a longer prison sentence for using a firearm in connection with a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In prior cases, the Supreme Court struck down residual ... Read More

SCOTUS Opinion: Court Clarifies What “Confidential” Information is not Subject to a Freedom of Information Act Request

In Food Marketing Institute v. Argus Leader Media, a newspaper filed a request under the Freedom of Information Act (FOIA) to the Department of Agriculture requesting information about retail stores who participate in the national food stamp program. The Department declined to provide store-level data on the basis that it was “confidential” and thus precluded from disclosure under ... Read More

SCOTUS Opinion: Court Strikes Down Law Against Immoral or Scandalous Trademarks

The Lanham Act prohibits registration of any trademark that contains “immoral[] or scandalous matter.” In Iancu v. Brunetti, an applicant sought to trademark FUCT (pronounced F-U-C-T), but was denied by the Patent and Trademark Office. The applicant appealed, arguing that the Act’s restriction violated the First Amendment. The Federal Circuit struck down the restriction as unconstitutional. The Court, ... Read More

SCOTUS Opinion: Court Vacates Murder Conviction Under Batson Challenge

In Flowers v. Mississippi, Curtis Flowers, a black man, was tried six times for allegedly murdering four people in a small town furniture store. The first three times, he was sentenced to death but the convictions were overturned. The fourth and fifth trials ended in mistrials. Throughout those trials, the prosecution used their peremptory strikes to remove all black ... Read More

SCOTUS Opinion: Under Due Process Clause, State Cannot Tax Foreign Trust Solely Because A Beneficiary Resides In the State

A family trust was created in New York state, with the trustee also located in New York, to distribute assets to the children of the trust creator under the trustee’s sole discretion. One of those children moved to North Carolina. The trustee then divided the trust into three separate trusts, one for each child, retaining full power and discretion over ... Read More

SCOTUS Opinion: Government Must Prove Immigrant Had Knowledge Of Unlawful Residence For Gun Possession Conviction

Under 18 U.S.C. sec. 922(a)(2), it is illegal for an immigrant “illegally or unlawfully in the United States” to possess firearms and “knowingly violates” that prohibition. In Rehaif v. United States, an immigrant entered the country on a nonimmigration student visa, but was dismissed for poor grades, making his further residence unlawful. He then went to a firing ... Read More