Commercial Litigation Law Blog
Commercial Litigation
Facing the Scam: What to Do If You've Fallen Victim to a NYC Apartment Rental Scheme
There is a horrific scam that preys on the vulnerability of renters in New York City, and it happens more often than you might think. The process of securing an apartment in the city is already difficult enough. It involves gathering numerous documents and endless days and nights of searching. When you find a place you like, you have to move quickly. It’s in the midst of this stressful process that the scam happens. The scam takes many different deceptive forms, but the elements remain the same: someone pretends to be a broker or an agent; that person shows you an apartment, either in person, maybe virtually; acceptance of your security deposit, and perhaps even the first month’s rent and broker’s fee. Then, this person vanishes, leaving you without an apartment and out a lot of money. It turned out that the person wasn’t an agent or broker at all. Maybe they were able to obtain a set of keys to a vacant apartment and show you the place. Or perhaps they assured you they had arranged for the keys to be delivered to you after you paid. There are even some horror stories of the person giving the would-be renters the keys to an apartment, the would-be renters moving in with belongings, and then an actual broker with prospective tenants walking in to find the occupants getting settled. There are many ways to prevent this from happening, and the New York Police Department has given its tips for avoiding the scam. As has StreetEasy. But what do you do if it’s already happened to you? Of course, you can go to the police and see if the scammer can be apprehended and prosecuted, but you also want to get your money back. That’s when having an attorney at your side can make all the difference. Going after the “broker” or “agent” is one strategy. There are some pieces of information that you and your attorney can use to help go after them. Ideally, this is bank account information or actual names and phone numbers. Doing that investigative work with your attorney will go a long way in identifying the individual who scammed you. If you can identify them, you can file a lawsuit against them. Another strategy, depending on the circumstances, is to go after the actual landlord or whoever has the right to be in the apartment. Sometimes, it’s the tenant who is behind on rent and pretending to sublet the apartment. Other times, the landlord has made it just a bit too easy to get the keys to the apartment, and someone saw the opportunity to hatch their scheme. Regardless, going after them for their fault in causing you to get scammed gives you a chance to get your money back.
May 15, 2024
Commercial Litigation
Suing Someone? Five Crucial Factors to Consider Before Proceeding
So, you think you can sue. Maybe you had a contract, and the other side breached it. Or maybe someone owes you money, and you’re ready to go after them. Not so fast. Starting a lawsuit is a big step, and there are many considerations you and your attorney should discuss before you proceed. Here are five crucial things to know and understand before suing someone. Sketch Out a Cost-Benefit Analysis: Lawsuits are expensive. If you’re looking to go after someone for a few thousand dollars, you might want to reconsider it. Attorneys’ fees, court costs, and other expenses quickly add up, and there are no guarantees of success. While the desire for restitution may be strong, avoid rushing into litigation that could potentially worsen your financial position. Assess The Likelihood of Collecting (If You Win): Sometimes, your case is only as good as your adversary’s financial resources. If the other side is going to file for bankruptcy, then it’s likely that even if you win your case, you wouldn’t be able to collect. If bankruptcy is not a possibility and you find yourself among numerous creditors seeking repayment, the probability of receiving the full amount owed to you is notably diminished. Evaluate Your Opponent: If you’re going against a small company or individual, that’s one thing. But if you’re taking on a large corporation, you should assume that they will hire lawyers, pay them well, and make the case a battle of resources. If the amount you’re owed is high enough, this may not be a deterrent, but be prepared to devote a substantial number of resources to the fight. Distinguish Principle from Damages: Many of the most contentious lawsuits are not even that valuable in terms of their outcome. Often, they stem from disputes over what the parties see as right versus wrong or a desire to “send a message” to the other side rather than a clear goal of obtaining damages. There are better ways to achieve these goals than going through the court system. Most lawsuits end in money changing hands rather than the court ordering parties to abide by principles. Although it may be difficult, take a step back from the dispute. Analyze whether there was actual harm for which you can pursue damages. If the dispute primarily revolves around principle, it’s important to reconsider whether a lawsuit will accomplish what you want. Act Quickly: One thing is certain: regardless of the validity of your claims against the opposing party, the clock is ticking. The statute of limitations governing the time frame for filing such claims is running. Once you are out of time to file your claim, you forfeit your opportunity to file your claim. Courts do not make exceptions for late claims, regardless of the circumstances. In conclusion, the decision to pursue legal action through a lawsuit should not be taken lightly. Numerous critical factors must be carefully considered before proceeding, from the financial implications to the likelihood of a successful outcome and collection. As an experienced litigation attorney, I’ve seen firsthand how lawsuits can have significant and far-reaching consequences for the parties involved and their relationships. That’s why it’s essential to approach this decision thoughtfully and in close consultation with legal counsel. Remember, the goal is not to discourage you from seeking justice or the rightful resolution of a dispute. Rather, it's to ensure you make an informed decision that aligns with your best interests and doesn't leave you in a worse position than when you started.
April 17, 2024
Commercial Litigation
Protecting Real Estate Rights - Filing a Lis Pendens in Virginia
In the realm of real estate litigation, securing or defending your interests during a pending legal action is paramount. One tool often utilized is the filing of a lis pendens, a Latin term meaning "suit pending." In Virginia, the lis pendens memorandum serves as a notice to prospective buyers, lenders, or interested parties that a property is subject to a claim involved in litigation. How to file a lis pendens in Virginia: Initiate Legal Action concerning an interest in Real Property: First, a legal action concerning the specific real property must be filed. Common legal actions include claims related to ownership, title defects, construction, or other property interests. Importantly, a party cannot file a lis pendens memorandum unless the action on which the lis pendens is based seeks to establish an interest by the filing party or to enforce a zoning ordinance. Code § 8.01-268. Draft the lis pendens memorandum: Once a legal action is filed, the claimant must draft the lis pendens memorandum and include the following information:the title of the pending legal action the general object of the legal action the court where the legal action is pending the amount of the claim asserted by the plaintiff a description of the real property the name of the person whose estate is intended to be affected by the lis pendens a description of the alleged zoning violation (only in actions to enforce a zoning ordinance) Recording with the Circuit Court Clerk: Once drafted, the lis pendens memorandum must be recorded with the Circuit Court Clerk in the jurisdiction where the property is located. Recording ensures that the memorandum becomes part of the public record and is accessible to anyone conducting due diligence on the property. Maintaining Compliance: Claimants must adhere to all statutory requirements and deadlines associated with filing a lis pendens in Virginia. Failure to comply with these requirements could result in the lis pendens being deemed invalid or ineffective. Why File a Lis Pendens? Preservation of Property Rights: Filing a lis pendens in Virginia allows claimants to preserve their rights and interests in real property during the pendency of litigation. The lis pendens is a publicly recorded document that provides notice to potential buyers, lenders, or claimants and can prevent unauthorized transactions or encumbrances on the property. Protection Against Conveyances: Lis pendens acts as a safeguard against possible fraudulent or voluntary conveyances of property during pending litigation. By alerting third parties to the existence of pending litigation concerning real property, claimants can deter individuals from attempting to transfer or encumber the property in bad faith. Enhanced Negotiating Position: The presence of a lis pendens can strengthen a claimant's negotiating position during settlement discussions. Interested parties may be more inclined to reach a favorable resolution, knowing that the property's status is subject to ongoing litigation. Public Notice: Filing a lis pendens provides public notice of the legal action, thereby reducing the risk of subsequent purchasers or lenders claiming ignorance of the litigation. This transparency promotes fairness and protects the interests of all parties involved. Conclusion Filing a lis pendens serves as a vital tool for claimants seeking to protect their rights and interests in real property during the course of litigation. By following the prescribed process and understanding the strategic advantages of filing a lis pendens, claimants can effectively assert their claims and mitigate the risk of adverse actions against the property. If you or your organization have a real estate-related claim, consulting with a trusted attorney in your area is critical. While outcomes cannot be guaranteed and past performance cannot assure future success, Offit Kurman litigator Anders Sleight | Offit Kurman is available to evaluate your specific situation.
April 11, 2024
Commercial Litigation
Five Things to Know About Hiring a Litigator
Did you get sued for the first time? Then you’ve got litigation on your hands. Litigation is just another word for a court case. Choosing an attorney to represent you in that litigation is tricky — and very important. Here are five things to know about hiring a litigator: 1. Hire Within Your Budget Most attorneys in the New York City area have higher billable rates. This is common across the country — legal services cost more in larger cities. But just because most attorneys have higher billable rates doesn’t mean you can’t afford high-quality representation. Make sure you know your attorney’s billable rate and ask about budgeting for your case. For example: What is your estimated budget for each stage of the case? What can we do to keep costs low in the case? Who will work on my case, and what is each person’s billable rate? 2. Experience vs. Titles Titles vary from firm to firm. What ultimately matters is the experience. An associate at a midsize firm might have more experience than someone who opened their own practice straight out of law school. On top of that, a midsize firm gives you the best of both worlds with experienced associates and significant resources at their disposal — but not at big law firm rates. 3. Seek a Clear Communicator Make sure your attorney tells you what the options are for your case — in detail and in language that you understand. Litigation is stressful, emotional, and expensive. If communication isn’t clear from the outset, it is likely to only add more stress, confusion, and frustration to your case — which may last for months or even years. Many attorneys have poor bedside manners. The term “legalese” exists for a reason. The law can be complex and dense — it’s your lawyer’s role to communicate to you clearly what’s happening. You shouldn’t feel talked down to. If your attorney is an effective communicator, you will receive updates about your case in clear and understandable language, confidently discuss each component of your case, and strategize together about how best to move forward. 4. Hire a Litigator, Not an Attorney Even though all attorneys are admitted to practice law, they’re not all the same. Litigation is a specialty. It requires being familiar with the court rules. More than that, it means having expertise in using the tools available to give you an edge in the case. Find a litigator who knows how to practice in the court your case is in. Even then, litigation is a wide-ranging area with many specialties. Make sure you ask about that attorney’s experience in your case’s area. For example: Have they worked on a case in this area before? What are some of the strategies that work well for this type of case? Do other attorneys in their firm have experience in this area? 5. Act Quickly As soon as a case starts, so do the deadlines. If you delay taking action for too long, the deadlines will pass, and your attorney will have to try to undo the damage by asking the court to give you another chance to make things right. All of this work is likely to result in additional costs and time. It is imperative to move quickly. Reach out to schedule a consultation right away so that you can best protect yourself.
April 2, 2024
Commercial Litigation
Protecting Your Business: Understanding ADA Website Accessibility Lawsuits in New York
Did you receive a complaint alleging that your company’s website violates New York’s equivalent of the Americans with Disabilities Act? Does the complaint allege the website violates New York State Human Rights Law and New York City Human Rights Law? By an individual claiming they tried to purchase goods on your website but could not do so due to accessibility issues? You are far from alone. Court dockets are ballooning in New York with these cases. With the right strategy, you can maximize your chances of greatly reducing the exposure you face and potentially securing the dismissal of the case without paying the other side a dime. Here are five things to know about your case: 1. Your Website Actually May Have Accessibility Issues There are many technical requirements for making your website accessible. It is important to work with a trusted vendor to bring your website into compliance, but that alone won’t cause the lawsuit to be dismissed. 2. Still, the Plaintiff Must Be Able to Prove the Impairment or Disability Even though your website may have been inaccessible to those with an impairment or disability, the plaintiff who sued you still must be able to prove that they are impaired or disabled. The phase of the lawsuit where you can dig into that proof is the discovery phase, and with the right strategy, you may be able to resolve the case during that phase and not have to proceed to trial. 3. A Fast-Paced, Active Approach Tends to Work Best The law firms that file these cases file a lot of them. Managing such a high volume of cases takes time and effort. With so many cases, their attorneys prefer to attack those cases where the other side is asleep at the wheel. Don’t show complacency. Instead, bring the fight to them and put them on their heels. 4. Don’t Expect Immediate Results Depending on which court your case is in, you may be facing a court with a lengthy process to bring your case to its close. The court may take its time to move your case along, and there are ways to nudge it to the next step. Maintaining that proactive approach is best, but be ready for the case to likely last a minimum of several months. 5. Be Ready to Negotiate Settlement talks can happen at any stage of the case. Don’t assume that the first offer you receive will be one you’re ready to take. Often, the attorneys for the other side are anxious to settle the case and will be open to significant negotiation. If you just received a complaint about your website, it is imperative that you act quickly. As soon as a lawsuit starts, so do the deadlines. You don’t want to miss a deadline—especially in this type of case where the other side is waiting for you to slip up.
March 15, 2024
Litigation
How to Avoid Estate Litigation
Trust and estate litigation is an all-too-common outcome for individuals and families in the wake of a loved one’s passing. But why? Is it just about money? Inter-personal and family disagreements? Or something else entirely? The answer inevitably varies. Many, if not most, estate disputes have some underlying familial distrust and disagreement. These family issues can often boil over in the wake of a loved one’s passing. Yet, not all estate disputes arise out of preexisting family issues. It is not uncommon for family dynamics to change and for problems to arise in the face of a loved one’s passing. But how can this be prevented? Communicating with family and planning ahead are just two things to consider when trying to avoid unnecessary estate litigation. Though seemingly insignificant, simply communicating with family, friends, and loved ones that you have an estate plan is vital. Now, this does not mean that you must divulge what your estate plan is, but letting those in your life know that you have one and where and how to access it when the moment comes is important. It aids to remove the element of surprise and ideally with it, the potential for distrust as well. Additionally, letting beneficiaries know who you have chosen to act as your executor is equally important. Informing those affected who will be in charge after your passing again removes the element of surprise, which all too often can breed distrust and discomfort. Planning ahead goes hand in hand with communication. Many Americans put off creating a will or estate plan, seeing it as something to take care of in the future. Something that is not relevant to them today. Yet, this way of thinking is generally an avoidant one. Though it can be difficult to plan for our own passing, doing so can alleviate the myriad of questions and concerns that can occur absent an estate plan. Through developing an estate plan, the execution of your wishes can be better assured and allows for your loved ones to be more informed. This allows for more clarity regarding the wishes and intentions of the deceased and oftentimes makes a meaningful impact in dissuading a loved one’s potential lawsuit. Trust and estate litigation may be common, but through planning ahead and having open communication, it allows for a deeper understanding of our loved one’ wishes and can help prevent minor interpersonal disagreements and familial distrust from devolving into litigation. Seek legal counsel to ensure that your interests are protected. If you have any questions about this or Estate Planning/Estate Litigation topics, please contact me at austin.hinel@offitkurman.com or (703) 745-1899.
January 10, 2024
Litigation
Possession – Is It Really Nine-Tenths of the Law?
What does the expression “possession is nine-tenths of the law” mean? “Possession is nine-tenths of the law” is simply a recognition of presumed ownership. As highlighted recently in an Alexandria federal case over the rightful heirs to four original Norman Rockwell paintings (see Elam v. Early, Case No. 1:23-cv-229), the common law provides that the one possessing property is presumed to own it. On the flip side, one claiming ownership in property possessed by another has one’s work cut out. Why does the common law presume that one in possession is the rightful owner of something? Why does the common law presume that one in possession is the rightful owner of something? Stated alternatively, “Why do we infer ownership from possession?” Because the alternative is too impractical! Imagine a world in which you had to carry or produce receipts or other proof of ownership for anything and everything you own, everywhere, all the time! Absent such proof, you would instead be presumed a thief subject to arrest. One will note that we have developed certain exceptions to the general rule – vehicle registries and cattle branding come immediately to mind. While not expected to produce a car title if stopped by police, drivers are expected to produce proof of registration in part to evidence that the vehicle they are driving isn’t stolen. Similarly, ranchers have a longstanding tradition of uniquely branding their livestock as a means of readily identifying ownership of the animal. The exceptions are generally accepted as appropriate due to the significant value of the items involved. Similar “branding” exists with other items of significant value to which unique identifiers or serial numbers are inscribed or otherwise affixed. While registries and unique identifiers may prove helpful in establishing ownership, however, it must be noted that they, too, merely provide evidence on which one might rely in proving one’s status as the rightful owner. How does one legally challenge the “possession is nine-tenths of the law” presumption? The ability of one not possessing property to establish proof of ownership renders the original presumption rebuttable. One claiming ownership might claim, for instance, that the possessor stole or, in non-criminal terms, “converted” the property. Alternatively, if one had originally come into possession of property legally but subsequently refused to return it, an aggrieved owner of the property might argue that a breach of bailment had occurred. While proof of theft would serve to rebut ownership, it would not necessarily be conclusive in a particular situation where what is ultimately called for is proof of superior title. One might imagine a situation, for instance, where the true owner is shown to have improperly stolen an item back from the original thief. Proof of superior title would prevail as to ownership even if the owner might remain answerable for any legal consequences of the thievery. Establishing proof of a gift of an item is another foreseeable step in a case in which burdens of proof shift back and forth. As a presumption can be rebutted, so too can additional evidence of many kinds serve to support an ownership claim grounded in possession. The challengers in the Norman Rockwell case failed utterly to produce any evidence of superior title such that the party possessing the paintings need not establish, even in the absence of proof that the paintings had been gifted by the decedent prior to death, anything more than unquestioned possession. Proof of a gift is not always impossible, however. Testimony of anyone aware of the gift is generally relevant and admissible, as would be a reference in a gift card (in the event it still existed) to the gift itself. I am reminded of a case of my own early in my career in which my client, for reasons I no longer recall, actually had a Polaroid picture of herself with a gift cuckoo clock and writing from the decedent on the bottom of the frame referencing how pleased he was to have given it to her. Then again, one of my all-time favorite lawyer movies, Legal Eagles (a 1986 romcom starring Robert Redford, Debra Winger, and Darryl Hannah – check out its IMDB), draws a much closer parallel to the Eastern District’s recent summary disposition of the Norman Rockwells. While I’ had not intended this as a movie review or date night recommendation, I can’t help but encourage my fellow law-minded movie lovers to check out this legal classic in which Redford and Winger struggle with proving their non-possessory client’s (Hannah’s) ownership of a valuable painting which ultimately comes down to establishing the existence of a gift inscription on the back of the painting (the fiery pursuit and result of which I wouldn’t dream of spoiling for you!). [You’re welcome in advance for this “oldie but a goodie,” 2-in-1 romcom – “lawyer movie” recommendation, notwithstanding the purposefully only-a-lawyer-could-love, yawnfest of a description! I’ll look forward to reading your critical movie reviews.] Does “nine-tenths of the law” equate to only a 10% chance of successfully challenging one claiming ownership merely by possession? Possession may be nine-tenths of the law, but legally supporting or refuting ownership on behalf of either the one in possession or in favor of the other one-tenth is when you need 100% confidence in the legal advocate you choose to help make your case. Don’t make the mistake of equating “nine-tenths of the law” with a 90/10 probability outcome regardless of who represents you. Good legal representation can increase your odds of success, and indifference in the selection process can lead to unfavorable results. Don’t leave your outcome to chance. Relevant experience matters.
December 13, 2023
Intellectual Property
Are You Properly Licensed to Sing “Happy Birthday”?
Originally posted on 02/20/20, content updated on 11/17/23 It can’t possibly be illegal to sing “Happy Birthday”… can it? We sing “Happy Birthday” about as often as we mow the lawn, fill up the car with gas, or go to the grocery store. Until recently, however, we may have been doing so illegally, depending on the circumstances. It’s easy to forget (if one ever was even aware in the first place!) that someone first wrote a tune and that intellectual property rights might extend to something as basic as “Happy Birthday.” Particularly egregious violations of such IP rights [note tongue firmly in cheek!] might include summer campfire renditions, or worse, heaven forbid (!), posting a YouTube video in blatant disregard for such legally protected rights. Fear not! (well, fearless, at least…) As a result of a major lawsuit involving the copyright’s claimed owner at the time, Warner/Chappell Music, the Happy Birthday tune, written in 1893 by Patty Smith Hill and her sister Mildred J. Hill (originally titled “Good Morning to All”) is now in the “public domain.” Additionally, after the American Society of Composers, Authors and Publishers (ASCAP) threatened years ago to sue the Girl Scouts, among others, the American Camp Association (ACA) and ASCAP reached an understanding costing the ACA thousands of dollars a year to assure legal campfire singing of copyrighted music – the ACA licenses all of ASCAP’s licensed music for all ACA-accredited camps! [Legal disclaimer: Posting a video of your little campfire girl performing even an ACA/ASCAP-licensed tune requires its own special license (available through ASCAP’s Internet Licensing Dept – for a small fee, naturally!). Also, stage production music is licensed by MTI, an entirely separate entity (with no blanket camp licensing deal in place!).]
November 17, 2023
Bankruptcy
The “Omnibus Order” - “Mutually Beneficial ‘Kitchen-sinking’” | Part Two
Originally posted on 05/06/20, content updated on 11/16/23. Read Part One here » If I’ve learned anything over my many years of legal practice, it’s not to under-estimate how much can be achieved in a single Final Order. Having had my eyes opened to the “mutually beneficial kitchen-sinking” concept, I have taken the challenge personally to test the limits of this time-saving, client-cost-saving practice. For instance, in conjunction with a negotiated global settlement on behalf of a multi-million dollar judgment-creditor involving third-party rights in real property in which the judgment-debtor held an interest (and a host of other pending and potential forthcoming creditor’s rights enforcement proceedings), counsel and unrepresented parties managed in a single order to take a pending Circuit Court case from and through a threshold pre-trial stage of amending the Complaint to allow and add an arguably necessary party (and resolving service issues consequent thereto) all the way to a final order of dismissal. With the cooperation of all but the judgment-debtor, counsel for all parties were able to consolidate into a single comprehensive order presented at a short and simple Motions Day docket presentation for the Court, a multi-party settlement of a pending post-judgment creditor’s rights complaint to sell the judgment-debtor’s real property asset. In the omnibus consent order, agreed to and jointly presented by all but the judgment-debtor, the parties managed to cobble together in a manner ultimately found acceptable to the Court, all of the following: (i) allowing intervention and adding parties; (ii) defaulting the judgment-debtor; (iii) amending claims; (iv) accepting/waiving formal service; (v) stipulating to facts; (vi) stipulating to legal and factual findings and conclusions of law (and doing so in the alternative); (vii) making asset value determinations; (viii) allowing and deeming a private sale had and held with credits/setoffs determined and applied (and done in a manner so as to moot the need for otherwise required proceedings); (ix) entering judgment; and (x) awarding fee simple title transferred to the judgment-creditor. There was no need for a sale, public or private; no commissioners needed to be appointed; no valuation hearings needed to be held. In this manner, the time and expense of proceeds allocation arguments or accountings were all avoided along with the potentially substantial expert and legal fees attendant to such procedural requirements. Rather than presume some or all of the foregoing would be necessary hoops through which the parties were required to jump, even if consensually, counsel cooperatively approached the global resolution with a collective eye towards minimizing time and expense for all involved while assuring that procedural corners were cut in such a way that no rights were prejudiced. Faced with having to choose form or substance, sometimes “all of the above” works best!
November 16, 2023
Litigation
Same Material Facts . . . Opposite Results?
The Western District of Virginia's Hartford Life v. Herring case outcome doesn’t track with the Virginia Supreme Court’s Wood v. Martin decision . . . or does it? In a recent decision by the Roanoke Division of the United States District Court for the Western District of Virginia, Hartford Life and Accident Insurance Co. v. Herring, the parties disputed the rightful recipient of insurance policy proceeds but were at least able to agree that the separation and property settlement agreement at issue was governed by North Carolina law. In seemingly all material respects, the facts of the Herring case mirrored those of the Virginia Supreme Court’s 2020 decision in Wood v. Martin. Yet, with the Court’s application of North Carolina law, the outcome of the case is in direct conflict with the Wood v. Martin results. Or is it? In Wood v. Martin, the Court held that by operation of Virginia law, Ms. Martin, as the ex-wife, was the rightful 50% beneficiary of her ex-husband’s life insurance policy. The ex-husband’s beneficiary re-designation days before taking his own life, by which he removed her from the policy, was in direct conflict with his contractual and consensually court-ordered obligation to her. The Court agreed with Ms. Martin that under Virginia law, the terms of the divorced couple’s agreement (as incorporated into their consensual divorce decree) requiring that he designate her as the life insurance policy beneficiary effected a written assignment of his contractual right with the life insurance company to change his beneficiary designation, and, consequently, he remained bound to maintain Ms. Martin as the 50% beneficiary of the policy. In Hartford Life v. Herring, the Western District applied North Carolina law to strikingly similar facts to reach the opposite result. The Roanoke federal court faced the situation in Herring where a divorced couple’s post-nuptial agreement had stated that the ex-husband was to retain ownership of his life insurance policy, free and clear from any claim by his ex-wife, presumably bargained for to afford him carte blanche to designate anyone he wanted as his policy beneficiary. When the ex-husband died a few years later, it was discovered that he had never removed his ex-wife as the primary beneficiary of the policy. The Western District acknowledged that under North Carolina law, the failure of a spouse to change the beneficiary ordinarily indicates that he or she did not intend to effect such a change. The Court found that the separation agreement did not sufficiently clearly express the policy owner’s intention to alter beneficiary status (notwithstanding the language about the policy being consensually free and clear from any claim of ownership by his ex) and, therefore, did not constitute an assignment of such interest. Consequently, the Court refused to “blue pencil” the policy’s beneficiary designation to match the stated intentions of the divorced couple’s post-nuptial agreement. With directly opposing outcomes, in such strikingly similar cases, one might simply presume the results were dictated by differing state assignment laws. On closer inspection, one or more other factors might have led to such seemingly contrary findings and conclusions. One possibility is that, perhaps, both courts simply applied an “ends justifies the means” approach to decision-making to fashion a remedy and result favoring an otherwise aggrieved ex-spouse. While attractive at first, with both cases resulting in arguably otherwise aggrieved ex-spouses awarded the life insurance proceeds, this justification seems unlikely. From all outward appearances at least, the Herring policy designee stood to receive an apparent windfall contrary to the outcome for which she’d bargained in the couple’s post-nuptial agreement. Instead, perhaps the facts of the cases differ materially in a non-obvious way? Perhaps the results were driven by specific language in each of the agreements, highlighting more than an innocuous distinction. As it turns out, ownership of a policy is not synonymous with the right to dictate who receives the proceeds thereof. It is true that legally speaking, one with ownership of a policy generally maintains the right to designate beneficiaries of that policy. The Woods v. Martin court recognized an exception to this general rule when one contractually obligates oneself to maintain a particular designee. The Hartford Life v. Herring court was not asked to consider the same contractual obligation, but rather, the apparently unequivocal waiver by the would-be designee to claim an ownership interest in the policy. Considered from these differing perspectives, ownership of the policies in each case went unchallenged, whereas the obligation to designate a particular someone in the former case contrasted materially from the unfettered right of the owner in the latter case to designate anyone he wanted. Then again, perhaps the differing outcomes can be explained factually but less legalistically. After all, simply stated, in the former case, Ms. Martin was awarded with what her deceased former husband had contractually promised to do for her. In the latter situation in Herring, the court’s decision let stand the decedent’s beneficiary designation, which, despite having negotiated for himself the exclusive right to designate anyone he wanted as his beneficiary -- which right he then could have exercised any time he wanted! -- for reasons he apparently took to his grave, he never did. Perhaps it was merely an oversight by the deceased policy owner, or perhaps it was a conscious decision on his part. We’ll clearly never know. We do know, however, that merely because he could change the policy beneficiary did not legally dictate that he must do so. Without language in the post-nuptial agreement expressly directing him to take particular action regarding the beneficiary designation, as in Woods v. Martin, perhaps this is a sufficiently material factual distinction justifying an opposite result without regard to the law of assignments in either North Carolina or Virginia. Seen in this light, the Woods v. Martin and Hartford Life v. Herring decisions make perfect sense! So, when does it make sense that the same material facts lead to opposite results? Certainly, one option is that the law differs from state to state. In this situation, however, another option appears to be that no matter how strikingly similar the facts of the two cases, they differ materially in more ways than one – sufficiently so much as to dictate opposite results and, consequently, leaving unresolved the issue as to the extent to which the law of assignments in this context actually differs between the two states. Thoughts?
November 9, 2023
Litigation
The “Omnibus Order” - “Mutually Beneficial ‘Kitchen-sinking’” | Part One
Originally posted on 04/23/20, content updated on 11/07/23 “MBKS” or Mutually beneficial “kitchen-sinking.” It’s a thing. . . . No, seriously, it is totally a thing! Well, it should be! I credit opposing counsel in a substantial life insurance claim litigation for having suggested that in a single order we might have the court nonsuit (voluntarily dismiss) some claims; nonsuit some arguably interested parties; allow and approve both interpleading of funds and partial payouts of non-interpleaded funds; conditionally dismiss the interpleading party; and generally streamline the pending case to the core factual/legal issue(s)/matters about which the remaining principal parties would be left to dispute. “Not possible,” I was confident. “No way a judge signs off on all that in a single order.” I was willing to try it, of course,–this “omnibus order” approach, as I had dubbed it, where we would toss in everything but the “kitchen sink”–in hopes of achieving all of the above in inconceivably record time. “Doubting Thomas” that I am, however, I had little expectation of this actually working and was confident it would only end up serving to add costs and delay unnecessarily to all of the procedural and substantive agreements we’d negotiated. I waited for the inevitable call to come from the law clerk informing counsel that there were certain rules and procedures to be followed for these sorts of things, and asking (but not really asking) if I would we be so kind as to file the appropriate multitude of motions to be heard at the proper times on succeeding Fridays, etc. . . . etc. But, as you’ve no doubt already discerned, the call never came. The omnibus order was entered, and, as if having just scored an unexpected “Fast Pass” at Disneyworld, we shot to the front of the litigation roller-coaster line short-circuiting much of the anticipated pre-trial delays. Attorneys, litigators in particular, are typically paid really well to know the law (or at least how to figure it out when and as necessary in a given situation!), and compensated even better if able to apply it effectively to their clients’ advantage. Mutually beneficial “kitchen-sinking” is about saving clients’ time and money. Adversaries willing to resolve multiple substantive and procedural matters in a single omnibus order well-serve their clients and, concomitantly, the legal system (by helping keep dockets unclogged and access unfettered) and themselves, “…to the extent one’s reputation among both future adversaries and potential future clients is immeasurably impacted by one’s own choices.” The best litigators know and apply the law to their clients’ substantive advantage with a time and cost efficiency that avoids results where “only the lawyers win,” because these lawyers understand that a pyrrhic victory is no victory at all. One would be wise to remember that, to one’s client, “winning at all costs”–whether or not one’s client appreciates it at the time!–is typically tantamount to a loss. #MBKS!
November 7, 2023
The Practice of Law
Jury Duty (Part Three): From Voir Dire to Deliberations to . . .
Originally posted on 03/05/20, content updated on 11/07/23 “Ladies and Gentlemen of the jury, please stand and raise your right hand to be sworn. Do you solemnly swear to be fair and impartial to uphold the Constitution and laws of The Commonwealth of Virginia to the best of your ability?” And with a resounding chorus of “I do’s,” we — the chosen few! – are asked to be seated and prepare for what is to be a several-day journey through dramatic opening statements, myriad facts and witnesses, emphatic legal “Objections!” (sustained and overruled), rousing closing arguments, and methodical instructions from the judge, before heading off to what was to become our own special home-away-from-home for the next several days for our “deliberations” as we were to decide the fate of the accused – alleged to have embezzled an insane amount of money from a former employer’s operating account (apparently not as uncommon as you might think! Note to self – review A/P payment approval process!). I had been called to serve – my first time ever! – called for jury duty in Fairfax County Circuit Court. Unlike many of those I’d joined in the jury assembly room that fateful Monday morning, I was excited and hopeful of being selected to serve on a jury. Seeing and experiencing first-hand a juror’s perspective of what it is I do for a living in the courtroom as a trial attorney from the other side of counsel’s table and behind the rostrum is something very few litigators ever get a chance to experience. (I’ve only met two over my career that have shared the experience.) There are any number of big screen and small screen representations of what goes on behind closed doors but, as I’ve previously noted and explained, it is a relative rarity for a litigator to experience the actual inner workings of the jury room. So this was, indeed, an exciting day! “Voir dire,” the part of the pre-trial process where the judge and the attorneys ask potential jurors a bunch of seemingly random unrelated questions designed to help the attorneys decide who the best jurors will be (or at least who they most definitely don’t want on the jury, if they can help it) was surprisingly and disappointingly uneventful. The only real surprise was that neither side felt compelled to dismiss or “strike” me as a juror (each apparently believing that having a civil litigator on the panel would be somehow beneficial to their cause). If you’ve seen the CBS TV show “Bull” for instance, you know there is a whole science (art?) to this evaluative process. There is a large “cottage industry” of jury consultants out there willing to take desperate people’s money to avoid conviction. This, however, was definitely not one of those cases. Opening statements were matter-of-factual and methodical (classic “tell ‘em what your gonna tell ‘em” lead-in’s). Witnesses were relatively “vanilla” providing, mostly at least, “just the facts, ma’am!” There was a big flourish of an “OBJECTION!” at one point after some seemingly irrelevant but salacious testimony, but a quick “Sustained!” from the judge mooted the need for the Commonwealth’s Attorney (the state’s prosecutor) to respond, and she simply continued as if nothing had even happened. Witness after witness, mundane direct exams followed by somewhat more spirited cross-examinations, frequent breaks and lunches (many more than I generally take in a week!), judicial admonitions not to talk to anybody about the case, all culminating in relatively flamboyant, definitely more emotional, closing arguments including the defense attorney’s impassioned insistence that the Commonwealth had failed to prove its case beyond a reasonable doubt and, somewhat surprisingly actually, of his client’s having done nothing wrong, etc. before the judge turned to us to read carefully crafted instructions and sent us out with reminders of our oaths and duty to our fellow citizens and community. We pick a foreman (or forewoman, in this case), take a single unanimous vote; watch the “guilty” verdict get read in open court, watch further as the defendant – clearly shocked by the result – get cuffed and lead by Sheriff’s Deputies (a couple of Fairfax County’s finest!) through a special side door in the courtroom (leading to the special prisoner elevator and back hallway system in the courthouse most people never get to see; receive an appreciative “thank you” from the trial judge; collect all our belongings, shake hands, exchange pleasantries (and a couple business cards!) with fellow jurors, and unceremoniously head back to our respective lives. At least that’s what I had hoped would be my first juror experience. If you remember back to Jury Duty 2, I left off waiting for the Sheriff’s Deputy to come back to bring my group of jurors to our assigned courtroom with me looking forward in anxious and excited anticipation to my first “voir dire” as a prospective juror. In fact, when the Deputy eventually did return, after we were forced to sit and wait in the jury assembly room for nearly another hour or so, he thanked us for our service and summarily dismissed us. That was it. We were done. There would be nothing further required of us. Thanks for playing; there will be no parting gifts, and you won’t be getting a copy of the “home game” (a la television game shows of the ’80s). The Deputy couldn’t tell us how “our” case had been resolved or even the type of case to which we had been assigned – either because he truly didn’t know or simply knew better than to engage us down that path of inquiry. Regardless, there would be no voir dire, not for me . . . not that day. There would be no empaneling, no opening nor closing, no objecting nor sustaining, no deliberating nor convicting. Jurisdictions handle jury service differently with some having continuing obligations in the event one is dismissed as I was that day — not Fairfax County, however. In Fairfax County one fulfills one’s jury duty service by timely presenting at the courthouse and making oneself available to serve just as equally as those fortunate enough to be selected and empaneled on a jury. If you’ve been fortunate enough to have served on a jury, I thank and envy you for your service. You help the legal system function, and it is better because of you. Drop me a line . . . I’d love to hear your story. For me, I fear, it is like the elusive hole-in-one I may never achieve.
November 7, 2023
The Practice of Law
Jury Duty | Voir Dire: “To tell the truth?” - Part Two
Originally posted on 02/13/20, content updated on 11/02/23 Courtroom assigned! One after another, Sheriff’s Deputies come to call out a list of potential jurors to report to various courtrooms. I sit, comparing myself to the Schoolhouse Rock “Bill,” sitting on Capitol Hill, just waiting for the possibility of getting called, only to be “stuck in committee” for who knows how long. For now, it appears I am headed — along with 29 of my community “peers” — to a courtroom to face “voir dire,” which derives, as the Chief Judge so ably explained during the informative orientation video, from an old French term meaning “to tell the truth” – my French is rusty enough that I decide not to challenge the judge on this one! “Wait right here, and I’ll be back to take you to the courtroom,” the Deputy tells us after assuring we are all present and accounted for. One step closer, and my thoughts return to how unlikely it is that, as a trial lawyer myself, I will survive voir dire to make it to one of the comfy seats in the jury box. Telling the truth won’t be an issue, obviously. The threshold question is whether the lawyers on the case like my answers. In the video, Judge White cautioned that one or more of us might be subject to an attorney’s “strike” and not to take it personally or to take offense if that happens. Yeah, right! How else to interpret being stricken other than: “Juror X, you are exactly the kind of person we don’t want deciding the fate of our client. Buh-bye!” Still, we all have our biases, whether we recognize them or not. As trial attorneys, we are called upon to engineer trial scenarios most favorable for our client, including evaluating and striving for the most potentially favorably pre-disposed jury possible – or, in any event, one that is the least unfavorably pre-disposed! But, this day, I am not the one doing the engineering. This day, my own predispositions are subject to being exposed – or worse . . . presumed! . . . guessed at by those who will be forced to consider, as they must with each potential juror, whether having me, a trial attorney, on their jury panel is a pro or a con for their client’s case. When the attorneys “rest” their case and the jury leaves to deliberate the outcome, will my presence in the room help or hurt their chances of success? Essentially, the attorneys on the case must decide whether my professional experience is more or less likely to be a positive factor for them. Will I be open-minded and able to decide the case based only on the evidence presented? Will I influence others on the jury to consider things that perhaps only I observed during the trial because of my own trial experience (evidentiary shortcomings?) or be called upon to explain what something meant (a legal objection sustained or an instruction from the judge), or perhaps even resolve legal questions ordinarily brought to the judge’s attention? And, ultimately, will it be better or worse for their client if I am in the jury room with the possibility of any or all of the above. Whoa! Pump the brakes, big guy! Reality check. We’re still sitting in the jury assembly room, awaiting the Deputy’s return to take us to the courtroom. I wonder what kind of case we’ll be assigned . . . civil or criminal? Will it be an attorney I know? Here comes the Deputy now . . . . Juror 996642 ready for voir dire!
November 2, 2023
The Practice of Law
Jury Duty – A Litigator’s Dream? Part One
Originally posted on 01/30/20, content updated on 10/31/23 Juror 996642 reporting for duty! There I was, responding to my first ever “SUMMONS FOR JURY DUTY.” I’d heard several stories over the years from legal colleagues and friends summoned, voir dire’d, and a couple who actually served on a jury. Not me. Decades of eligibility, but this was my virgin run! Perhaps I filled out the form differently this time? Had I been previously claiming an exemption? Honestly, I’ve no recollection of past years but have a vague recollection of making a conscious decision not to claim an exemption in hopes of serving. Voila! As members of the Bar, especially those of us who spend a substantial time at the courthouse, we appreciate all too well the substantial amount of effort and resources that are required to provide access to justice. Here in Virginia, and Fairfax County, in particular, we are fortunate to have the resources we do (though we could always do more with more!) and an unyielding commitment to timely resolution of cases. To be sure, there will always be opportunities for improvement in the judicial system, many of which we as members of the legal community are uniquely empowered to pursue. Being willing to answer the call to serve and to accept the responsibility of possibly being asked to help decide the guilt/innocence or civil liability of a “peer” is an opportunity too easy not to partake. Each state handles jury duty obligations differently. In fact, with both a federal and state court claiming jurisdiction over you no matter where you live, eligible jurors are at all times subject to multiple selection systems. In Virginia, the selection process differs from county to county. Fairfax County is the largest jurisdiction in the Commonwealth, with the most potential jurors. As a result, one answering the call to serve can anticipate it’s being at least several years before being summoned to serve again. Here in the “land of the free, because of the brave,” where one’s “day in court” comes as a right and privilege for which so many have sacrificed so much, jury duty is really no sacrifice at all. So . . . client obligations, pending deadlines, other work, and family commitments aside . . . along with maybe 100-150 or so fellow Fairfax County residents answering the call, I am Juror 996642 . . . reporting for duty! After the parade is over and all the fanfare and hoopla die down (not!) . . . my I.D. has been verified, and I have made myself comfortable in the assembly room. Polite smiles; quiet as expectations build; we wait. Next time . . . “voir dire.”
October 31, 2023
Litigation
Buyer Beware: What Homebuyers Should Know About Latent Defects
With “home buying season” now firmly in the rearview mirror, first-time home buyers and repeat buyers alike are continuing to settle into their new homes. For first-time homebuyers, in particular, the task of purchasing a home can easily and understandably appear to be a daunting one—to say the least. Many first-time homebuyers have genuine fears about the home-buying process, and repeat home buyers may be increasingly untrustworthy after previous bad experiences. All of this, and more, can easily create a stressful endeavor. Yet the commonly known principle of “Buyer Beware” often casts a shadow of doubt over the entire home buying process. The principle of Caveat Emptor or “Buyer Beware,” as it is colloquially known, is often characterized and maligned as a black-and-white doctrine, yet this is not always the case. Buyers often rely heavily on an inspector to provide a “green light” and/or identify faults in the property—but this process will often fail to detect hidden defects. Inspectors can only do so much during an inspection, and all too often, the “smoking gun” may be hidden from view or easily overlooked. If an inspector does fail to identify a defect or fault in the property, “greenlighting” the buyer to purchase the home, latent or hidden defects often do not become apparent until after moving into the home. The concept of Buyer Beware would lead home buyers to believe that most, if not all, undiscovered defects in their new home is their sole responsibility and that a seller need not remediate any issues. However, that is not always the case. In the event of fraud, a buyer may recover from a seller when the seller actively hid defects in the property or performed deceptive acts that induced the buyer to purchase the home. False assurances and misleading statements regarding the condition of plumbing, electrical, or HVAC systems can amount to fraud in the inducement, leaving the seller open to liability from the buyer. Painting over wood rot, covering water damage and mold with new flooring, and other affirmative acts of concealment open a seller up to liability and provide a lifeline to buyers. When a buyer relies on false or misleading statements in the purchase of their home, they may still be able to recover despite a buyer beware principle. In addition to false or misleading statements, a seller who actively conceals material defects in the property in anticipation of sale will open the seller up to liability.
September 14, 2023
Litigation
Missed a Deadline?
Have you ever received a lawsuit or claim with a time-sensitive deadline? While it may be possible to receive an extension from the court or the opposing party, one should not count on such leniency. In some instances, particularly appeals, the filing deadline(s) are mandatory and jurisdictional. By way of example, the Supreme Court of Virginia recently expedited granting an Offit Kurman team’s motion to dismiss an interlocutory petition for review as untimely. The terse and expedited ruling by the Court upholding a Circuit Court decision to deny a preliminary injunction serves as a cautionary tale for those seeking appellate relief in Virginia as the Court refused the petitioner’s attempt to excuse a one-day late filing.[1] If you or your organization are served with a civil lawsuit or are forced to consider appealing an adverse decision, missing a filing deadline might prove to be outcome determinative. Which rules apply and how much time one has to act in a given situation may not be readily apparent. Consulting with a trusted attorney in your area might prove to be the difference between winning and losing. While outcomes cannot be guaranteed and past performance cannot assure future success, Offit Kurman litigators Thomas W. Repczynski | Offit Kurman and Anders Sleight | Offit Kurman are available to evaluate your specific c situation.[2] _______________________________________________________________________ [1] Case results do not guarantee or predict a similar result in any other case. [2] These materials have been prepared for informational purposes only and are not legal advice. Reviewing this post or contacting Offit Kurman in response does not create an attorney-client relationship. Case results depend upon a variety of factors unique to each case, including the specific factual and legal circumstances of each case. This post may constitute ADVERTISING MATERIAL.
August 17, 2023
Litigation
Creative Lawyering – Property Settlement Agreement as Written Assignment (a Supreme update)
A beneficiary’s interest in a life insurance policy is only as protected as the written assignment securing the interest with the policy issuer. In the right circumstances, a Property Settlement Agreement (PSA) – or other similar agreement! – can double as any number of other useful legal documents. I’ve previously written of trial court successes where PSAs have doubled as a real property deed and, in a more recent case, as an “assignment” (serving to transfer an interest in life insurance policy proceeds). Over the pandemic, I left readers hanging by failing to share the appellate outcome on the “assignment” issue. The Virginia Supreme Court took up a case of mine involving a divorcee whose deceased ex-spouse failed to honor a consensually court-ordered life insurance commitment. Essentially, the divorcing husband had promised to maintain life insurance for the benefit of his soon-to-be ex-wife and later reneged by changing the policy beneficiary designation (a not uncommon occurrence, unfortunately) shortly before committing suicide. The trial court had ruled favorably for the surviving ex-spouse (our client) but had done so on questionable legal grounds – relying on a definition of “creditor,” which I had not even argued to the Court (with good reasons, it turns out!). Suffice it to say, the circumstances in the case required a “written assignment” for the proceeds of the life insurance policy to be rightfully owed to the surviving ex-spouse. The assignment requirement stemmed not from the former couple’s divorce documentation but rather from the contractual arrangement with the life insurance company issuing the policy. Additional details of the case aren’t nearly as significant as the rule of law on which the Supreme Court chose to uphold the trial court’s decision and the impact it ought to have on anyone expecting to benefit from the life insurance policy of another. It turns out the Supreme Court agreed that the language of the couple’s PSA satisfied all the requirements of an assignment sufficient to have effected a transfer of the policyholder’s interest in the proceeds of the policy to his ex-spouse. The appellate victory was sweet – not going to lie. Our client’s win, however, proved a cautionary tale for all future would-be policy beneficiaries (not to mention their divorce attorneys, financial planners, and estate planning counsel!) facing similar circumstances. Our client had lucked out inasmuch as her vengeful ex-spouse hadn’t compounded his in-your-face beneficiary re-designation by pledging or otherwise re-assigning the policy to another in exchange for a financial interest of some kind. According to the Supreme Court, had he done so, he would have successfully cut his ex-spouse out of a substantial portion of the financial consideration negotiated for during the parties’ divorce. Because the PSA/assignment document was not provided to and accepted as an assignment by the insurance company (in lieu of the company’s own form assignment document) prior to the policy owner’s death, any subsequent assignment properly documented with the insurance company would have superseded the PSA’s operative language. In essence, the reach of a PSA’s operative assignment impact only extends as far as the parties to the agreement unless and until either the policy issuer becomes a party to the agreement or the policy owner opts to reassign some or all the same interest in the proceeds. The rationale of the Court’s decision might easily be extended beyond the divorce context to anyone with an expectancy in policy proceeds. I’m speaking especially in this context to anyone who might consider extending credit with the promise of repayment to be backed by policy proceeds. Failing to insist on a written assignment on the insurer’s form and confirmation of the insurer’s acceptance of the assignment unnecessarily affords an unscrupulous borrower the ability to leave you completely unprotected. I welcome opportunities to provide guidance prior to leaving oneself or one’s client unnecessarily exposed and/or counsel when looking to extricate from unanticipated consequences after having failed to protect against them beforehand.
July 25, 2023
Litigation
Virginia Civil Lawsuit Filings Increase in 2022
Civil lawsuit filings in Virginia's General District Courts increased 9% during 2022. The biggest increase? Unlawful detainer (eviction) filings. Meanwhile, civil lawsuit filings in Virginia's Circuit Courts decreased, with domestic case filings (including divorces) seeing a notable decrease. Full data from the Supreme Court of Virginia can be found here & here. If you or your organization are served with a civil lawsuit, don’t make any decisions about how to proceed before talking with a trusted attorney in your area. Offit Kurman attorneys are available to advise and counsel you. Reach out to Anders Sleight | Offit Kurman today to discuss your specific situation.
March 16, 2023
Litigation
Beware Sellers . . . Caveat Emptor May Not Be All You Believe it to Be!
When it comes to buying residential real estate in Virginia, the doctrine of caveat emptor, or “buyer beware,” may not be as onerous as you think. I’ve had numerous potential clients come to me with horror stories of post-purchase discoveries or mishaps occurring shortly after buying a property. Appliances are breaking down, ceilings are collapsing, and water in the basement! – just to name a few. Generally speaking, there’s not a whole lot one can do about it other than get the problem fixed! If you’re smart, you’ve paid for a good homeowner’s insurance (always get an HO policy! and have it in effect the moment you take the title – if not sooner!). If you’re doubly smart, you insisted upon having a pre-purchase inspection (and bordering on brilliant if you did your homework and checked the credentials of your inspector!). You’re atop the smarts pyramid if, in addition to all that, you also managed to sign an agreement with your inspector in which you refused to limit your damages to whatever comparative pittance you might have paid the inspector (g’luck with that one!). Congratulations are still in order if you at least insisted on accompanying the inspector and insisted further that everything gets inspected as thoroughly as possible for the money (to each their own as to how far to take this one, but I suggest you consider the following before you decide the extent to which you take heed . . . . Believe it or not, not every home seller is completely above board when it comes to disclosing shortcomings. This may shock you, but some share less than the full truth about the foibles and/or outright problems with their soon-to-be-someone-else’s-money-pit of a home. In fact, some people lie! NO?! Yes. It’s one thing to be less than completely forthcoming; it is quite another to hide, mislead, deflect, cover-up, and/or outright deny problems that exist. “Have these pipes ever caused you any problems? Have you ever had any water issues in the basement? Any known cracks in the foundation? How’s the roof? Has the place ever been struck by lightning to your knowledge?” How a seller responds to these inquiries may very well provide a future legal cause of action against them, even if they have seen fit to try to protect themselves as sellers with anything and everything from a “caveat emptor” contract condition to an “as is, where is” clause, and a disavowal of any buyer’s reliance on absolutely anything the seller might have said prior to finalizing the deal. In fact, you can take it up another notch (turn the volume up to eleven, if you will!) and find that you might still have a claim against the sellers even if, after signing a contract with all of these seller protections, you only closed on the deal after having a professional inspector look to find any problems and fail to discover anything. Now, in the event of a major “miss” from your inspector, you might certainly want to get your money back for a negligent inspection, for sure! (And, hopefully, you were savvy enough in advance to have negotiated out of your typical “money back” liability cap on the inspection contract). The key to whether you have any reasonable expectation of recovery from the sellers is if they committed fraud in the process. You see, it’s one thing not to discover problems when you are actively looking for them; it’s another thing entirely when a seller purposefully covers them up and/or affirmatively takes steps to prevent the discovery of the problem altogether. In this regard, I was recently surprised to learn that such cover-up actions can themselves satisfy the “misstatement” element required to establish an actionable fraud claim. In other words, a seller need not affirmatively lie about a problem if acts to “put you off your guard,” i.e., to prevent you from discovering the true nature of the condition. Consider in this regard examples such as damage from an active water leak that gets covered up, painted over, re-plastered, etc.; a “new” roof that was cheaply/improperly installed (with no underlayment by unskilled day laborers); denied access to a problem area (a locked entrance to a boiler room where the allegedly/assuredly “brand new” boiler is located); or, perhaps, a covered-up, foundation wall crack (for instance, with water-absorbent, sawdust packed in the newly-walled over “renovations” – yup, it’s been done!). All of these present possible major problems and potentially unmanageable expenses (not to mention frustration and aggravation!) after the purchase. Should you even bother asking the sellers if any of these potential deal-breakers exist? Undoubtedly, yes. Perhaps they respond truthfully when asked. You won’t know if you don’t try. Alternatively, perhaps they lie and deny it. What then? Trust but verify! But if you do get taken for a ride, you may not be a defenseless victim. Fraudulently inducing someone into a real estate purchase may not only be actionable in particular circumstances, it might also include with it the recovery of legal fees – often the difference between being made whole with a successful case and not being able to afford to bring the case in the first place. So, caveat emptor, for sure . . . but to those would-be fraudsters thinking they can hide safely behind this good-faith seller’s protection, I say, “caveat venditor!” And to those believing themselves victimized, I say document the seemingly fraudulent statements and actions and have a qualified legal professional look before you opt to do nothing.
March 8, 2023
Litigation
Virginia’s 2023 Wage Hike – New Year, New Minimum!
Virginia is one of nine jurisdictions en route to a $15 minimum wage (or higher) by 2026. As it is, Virginia is one of nearly 30 states to affect an increase this year. The first of the year saw the Commonwealth’s previous minimum of $11 per hour -- which had only gone into effect at the beginning of 2022! -- bump up by another $1 to $12 per hour. By comparison here in the “DMV,” Virginia continues to lag its neighboring jurisdictions, Maryland and D.C., with the first of the year, Maryland’s minimum jumped from $12.50 to $13.25 per hour (for companies of certain minimum size – i.e., 15 or more employees), while D.C.’s $16.10 hourly rate comes in higher than all fifty states, many of which still abide by the federal minimum of $7.25, which has remained unchanged since 2009. Virginia’s increase is the latest in a series of step-ups scheduled to take effect in the Commonwealth between now and 2026. The minimum wage rate in Virginia recently climbed $1.50 per hour in 2021 and, after this year’s additional $1 per hour, is slated to increase again to $13.50 per hour in 2025 before reaching the targeted $15 per hour in 2026. That is, of course, so long as the most recent changes to Virginia’s Minimum Wage Act are not repealed or otherwise limited by the now Republican-controlled General Assembly. Keep a watchful eye out for attempted changes this legislative session to Code Section 40.1-28.10 as attempts are anticipated to try to walk back the increases or at least to “slow the roll.” Tipped employees, such as restaurant wait staff, continue to face a meager $2.13 per hour minimum but, with tips factored in, must meet the $12 per hour minimum rate. If you are a small business owner with questions about the new laws and your obligations regarding them, Offit Kurman has the resources to help. Not sure whether your workers are independent contractors or employees subject to the minimum wage requirements? Choosing to do nothing is still making a choice – and the wrong one could prove very costly in this context. If you’re uncertain whether and/or how this or any other new law (recreational cannabis, for instance?) might impact you or your business, let me get you connected with someone who can help.
February 15, 2023
Litigation
The Virginia Consumer Data Protection Act: Is your Business Ready?
Following California’s lead, Virginia became the second state to enact a data privacy statute. VA Senate Bill 1392. The Virginia Consumer Data Protection Act (VCDPA) went into effect on January 1, 2023. Here’s what you need to know. Personal Consumer Data Rights Each individual Virginia resident may exercise the following data privacy rights: Confirmation: The right to confirm whether or not an entity or individual is processing your personal information and to access such personal data; Correction: The right to correct inaccuracies in your consumer personal data, taking into account the nature of the personal data and the purposes of the processing of your consumer personal data; Deletion: The right to delete personal data provided by or obtained about you; Copies: The right to obtain a copy of your consumer personal data that you previously provided to a Data Processor in a portable and readily usable format; and Opt-out: The right to opt out of any processing of personal data for (i) targeted advertising, (ii) the sale of personal data, or (iii) profiling in furtherance of decisions that produce legal or similarly significant effects concerning you. Who is Subject to the VCDPA? Controllers: a person or entity that determines the purpose and means of processing personal data Processors: a person or entity that processes personal data on behalf of a controller Data Controller Obligations: Limitations: Must limit collection of personal data to that which is adequate, relevant and reasonably necessary; Disclosure: Cannot collect personal data for purposes inconsistent with the disclosed purposes for which data is collected; Data Security: Must establish and maintain reasonable data security practices Anti-Discrimination: Prohibited from discriminating against consumers in processing data, including a consumer’s exercise of rights under the VDCPA Consent: Obtain consumer consent before processing sensitive data Privacy Policy: must be reasonably accessibly and inform consumers of their rights, among other requirements Online Submission: must establish a system for consumers to submit data rights requests. Appeals: consumers have the right to appeal decisions regarding consumer data rights requests if action is not taken in response to a request. Controllers need to establish a system to determine appeals. How is the VCDPA Enforced? Exclusive enforcement by the Attorney General of Virginia Enforcement actions authorized; damages of up to $7,500.00 per violation No private right of action. Individuals and entities cannot sue under the VCDPA. Exceptions and Exemptions A controller or processor is not subject to the VDCPA unless itControls or processes personal data of at least 100,000 Virginia residents; or Controls or processes personal data of at least 25,000 Virginia residents and derives over 50 percent of gross revenue from the sale of personal. Financial institutions regulated by the Gramm Leach Bliley Act are exempt. These are just a few of the requirements of the VDCPA, which could change as Virginia begins its 2023 legislative season. If you or your organization may be subject to the VCDPA, reach out to Anders Sleight | Offit Kurman today to discuss your obligations and compliance management.
January 16, 2023
Intellectual Property
Defamation: Five Key Questions for Any Potential Claim
Defamation has been in the news lately thanks to the Depp v Heard Trial. But what is defamation exactly? Has someone ever posted an untrue statement about you or your organization online? Untrue statements are published every day but not every untrue statement rises to the level of defamation. Consider the following elements of Defamation: What is defamation? A false, malicious communication of fact to a third-party causing injury to one’s reputation. In Virginia, defamation encompasses libel (written recorded statements) and slander (oral statements). Watch: Spider-Man: The Difference between slander and libel – YouTube What is required to prove defamation? Publication (the statement is seen or heard by a third party); A false statement tending to harm the reputation of another; & The requisite intent. (actual malice for public figures; negligence for nonpublic figures).Gaz, Inc. v. Harris, 325 S.E.2d 713, 725 (Va. 1985). What is a defamatory statement? The statement or communication must be more than an unpleasant statement. The subject of the statement must appear odious, infamous or ridiculous. A statement will not be actionable as defamation unless it has a “sting” injuring the subject’s reputation. However, defamation can be proven by inference, implication or insinuation. Can opinions constitute defamation? No – statements of pure opinion are not defamation. “The First Amendment and the Constitution of Virginia protect the right of every individual to express any opinion or idea, however ill-founded.” Tharpe v. Saunders, 737 S.E.2d 890, 893 (Va. 2013). Note – adding qualifiers such as “in my opinion” will not diffuse an otherwise defamatory statement. How can a statement be published? Any communication by any method to one or more persons who can understand its meaning. Newspaper articles, statements aloud to others, books, Twitter posts, Facebook statements, and other social media mediums. If you or your organization are the subject of a potentially defamatory statement or a defamation lawsuit is threatened against you or your organization, don’t make any decisions about how to proceed before talking with a trusted attorney in your area. Offit Kurman attorneys are available to advise on defamation and other issues. Reach out to Anders Sleight today to discuss your specific situation.
October 6, 2022
