The Virginia Business Litigation Blog

January 31, 2016

New Proportionality Requirement in Rule 26 Not that Big of a Deal

Much has been made of the latest amendments to the Federal Rules of Civil Procedure, effective December 1, 2015, some going so far as to call them “the most significant change to federal civil practice in the last decade.” In particular, Rule 26 has been amended to include a new “proportionality” provision. Rule 26(b)(1) now limits discovery to “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case,” apparently imposing an enormous limitation on the scope of permissible discovery.

The concept of proportionality, however, is nothing new. Even before the 2015 Amendments, Rule 26 provided that discovery should be limited if it “is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of the issues at stake in the litigation.” The Eastern District of Virginia recently had a chance to grapple with the new rule in a defamation case, and the implication of the court’s holding is essentially that not much has changed, but that litigants and the court should pay a little extra attention to proportionality as they deal with discovery issues.

January 25, 2016

Non-Compete Agreements Enforceable Against Independent Contractors

by Lee E. Berlik

Don’t think you can get out of your non-compete agreement just because you’re a contractor and not an employee. While it’s true that independent contractors, unlike regular employees, may not owe a fiduciary duty of loyalty to the party that hired them (hence their independence), a business may legitimately require its consultants and contractors to enter into binding non-compete and non-solicitation agreements that will restrict their right to compete with the business for a reasonable length of time after their contracts end.

A few weeks ago in Newport News, Judge Raymond A. Jackson allowed a case brought by tax-preparation firm Tax International against two of its former independent contractors to go forward, denying the defendants’ motions to dismiss. The litigation involved allegations not only that the defendants had violated their non-compete agreements but also that they committed trade secret misappropriation, tortious interference with business expectancy, copyright infringement, trademark infringement, false designation of origin, and unfair competition. Judge Jackson allowed all claims to go forward, finding the allegations plausible on their face.

January 1, 2016

Non-Compete Agreement Held Unenforceable Against Doctor

by Lee E. Berlik

In Virginia, non-compete agreements are legal but they are not favored and not always enforceable. As restraints on free trade, they will only be enforced if the employer can prove the terms are (1) no broader than necessary to protect the employer’s legitimate business interests, (2) not unduly harsh or oppressive in curtailing the employee’s ability to make a living, and (3) not against public policy. Ultimately, the test is one of reasonableness, considering the circumstances of the business, the nature of the work, and any and all other facts that may be relevant. On December 14, 2015, allergist and immunologist Thomas Fame of Roanoke received some good news: he had been successful in challenging his two-year non-compete agreement, having persuaded the court that it unfairly restricted his right to earn a livelihood by practicing his specialty in his chosen home.

In determining whether a non-compete clause is reasonable, courts examine three factors: (1) the duration of the restriction, (2) the geographic scope of the restriction, and (3) the “function” of the restriction; namely, the precise activities the employee is restricted from engaging in. To be enforceable, the noncompete must be found reasonable as a whole, considering all three elements. If one of the factors is grossly unreasonable, it can invalidate the entire agreement, even if the other two factors are narrowly drawn. (See Home Paramount Pest Control Companies, Inc. v. Shaffer, 282 Va. 412, 419 (2011) (holding that “the clear overbreadth of the function here cannot be saved by narrow tailoring of geographic scope and duration”).

December 31, 2015

The Top 10 Lawyer Types You’re Most Likely to Need

by Lee E. Berlik

Suppose you want to sue a contractor for breaching a contract, or you want to sue a competitor for stealing your employees. What kind of lawyer do you need? Should you just whip out the Yelp app and search for the nearest five-star-rated lawyer? If you’ve tried that, you may have been told by the highly rated lawyer that he or she doesn’t handle the particular legal problem you’re experiencing. There are many types of lawyers, and knowing which kind of lawyer you need is the first step towards hiring the right one. The attorney who did such an excellent job drafting your will may not be the best lawyer to challenge your non-compete agreement. Personally, I get many calls from prospective clients who want me to appeal their criminal conviction, or fight for custody of their kids, or get them out of a traffic ticket, and I don’t do any of those things. And lawyers who do handle such matters typically don’t practice in the sorts of business disputes and defamation matters that my firm typically handles.

So I thought I would offer this quick-and-dirty guide to what I consider to be the ten most in-demand types of lawyers for most individuals and small businesses. If you find yourself in need of legal advice or representation and don’t know what kind of lawyer you need, check out the descriptions below, locate the legal issue you’re experiencing, then narrow your search to focus on the type of lawyer that corresponds to your specific need. Continue reading

December 2, 2015

Use the Courts to Vindicate Rights, Not Intimidate Enemies

by Lee E. Berlik

Litigation tactics designed to bully, harass, intimidate, or embarrass an opponent or opposing counsel are not permitted in Virginia courts. While litigants may gain great satisfaction from the knowledge that their lawsuit or counterclaim is causing the other side a great deal of expense and inconvenience, if the primary goal of the litigation is to cause pain, rather than vindicate legitimate legal rights, courts have the authority to impose sanctions. Notably, this is true even if the claim has merit. So held the Virginia Supreme Court on November 12, 2015, in Kambis v. Considine.

Most lawyers associate Va. Code § 8.01-271.1 (the state-level equivalent of Rule 11 of the Federal Rules of Civil Procedure) with frivolous pleadings – pleadings completely devoid of merit, unsupported by any foundation in law or fact, and having no reasonable chance of success. Lawyers know that if they file a complaint based on fanciful factual allegations and outdated legal citations, they can be sanctioned and ordered to reimburse the other party for legal fees incurred in having to respond. What’s noteworthy about the Kambis case is that it focused on the “improper purpose” prong of the sanctions test and clarified that sanctions may be awarded even if a pleading presents a valid claim fully supported by the facts and the law.

November 6, 2015

Termination for Demanding Payment of Earned Bonus Held Actionable

by Guest Blogger

Here in Virginia, employment is presumed to be “at-will”: an employer can terminate the employment relationship with or without cause, upon reasonable notice, for any reason or no reason at all. Employees have the same right. The employment-at-will doctrine is particularly strong in Virginia, but there are some limited exceptions. An employee cannot be terminated without cause if an applicable employment agreement requires good cause for termination. A termination will also be deemed unlawful if it violates state or federal anti-discrimination laws or if the reason for the termination violates public policy.

Under the public policy exception to the employment-at-will doctrine, an employer may not terminate an employee in violation of explicit statements of public policy or in violation of laws that don’t expressly state a public policy but are designed to protect property rights, personal freedoms, health, safety, or welfare of the people in general and are in furtherance of an underlying and established public policy. Bowman v. State Bank of Keysville, 229 Va. 534 (1985). In practice, courts apply the public-policy exception only in rare circumstances, and not every violation of public policy will give rise to a valid wrongful discharge claim.
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October 30, 2015

Proximate Cause Is Required to Win Your Fraud Claim

by Lee E. Berlik

To state a cause of action for fraud in Virginia, a plaintiff must plead that there was (1) a false representation of (2) a material fact, (3) made intentionally and knowingly, (4) with intent to mislead, and that the plaintiff (5) reasonably relied on that false representation and (6) that his reliance resulted in damages. What lawyers and judges often overlook is that to survive demurrer, a plaintiff must also show (as part of the causation requirement of elements 5 and 6) that the damage was proximately caused by the defendant’s alleged misrepresentation. (See, e.g., Cohn v. Knowledge Connections, Inc., 266 Va. 362, 369 (2003); Murray v. Hadid, 238 Va. 722, 731 (1989)). Not just caused–proximately caused.

The Virginia Supreme Court has defined proximate cause of an event as “that act or omission which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces the event, and without which that event would not have occurred.” Beale v. Jones, 210 Va. 519, 522 (1970). According to the Restatement of Torts, the concept of proximate cause encompasses both (1) causation in fact, which exists where a plaintiff’s reasonable reliance is a “substantial factor in determining the course of conduct” that results in the plaintiff’s loss; and (2) legal causation, which exists where the loss might “reasonably be expected to result from the reliance.” (See Restatement (Second) of Torts §§ 546, 548A). It’s this second element that is most often neglected. Proximate cause is more than simple “but for” causation, which refers only to the first element of the test (i.e., causation in fact).

September 17, 2015

Claim Preclusion, Issue Preclusion, and the Various Forms of Res Judicata

by Lee E. Berlik

This isn’t what I was taught in law school 20 years ago, but res judicata comes in many flavors. I was taught that there were only two doctrines relating to re-litigating civil claims: claim preclusion, known as res judicata, and issue preclusion, known as collateral estoppel. That’s wrong, at least here in Virginia. In an opinion published earlier today by the Virginia Supreme Court, the court describes in detail how there are actually four different types of res judicata: two types of claim preclusion (“bar” and “merger”) and two types of issue preclusion (“direct estoppel” and “collateral estoppel”). All four of these concepts fall under the res judicata umbrella.

The case is Paul Lee v. Lisa Spoden, originally filed in Fairfax County Circuit Court. Lee formed Strategic Health Care Company, Inc. (“SHC”), a consulting company providing services to healthcare organizations and professionals, in 1994, and gave Spoden (his wife–or maybe fiancee–at the time) a 50% ownership interest the following year. When they divorced in 2009, the parties entered into an agreement in which Spoden agreed to give up her 50% interest in exchange for a number of things, including the right to “direct use” of certain real estate owned by the company, and to receive all proceeds when the property was sold. In 2013, Spoden filed an action against Lee for breach of contract and breach of fiduciary duty, claiming that he had listed the property for sale without her knowledge or permission and that he had violated various other provisions of the property settlement agreement, which was incorporated (but not merged) into the final divorce decree.
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August 31, 2015

Newly Released EEOC Directive To Assist Federal Employees Alleging Discrimination When Potential Conflict of Interest Exists

by Guest Blogger

As you may know from past posts, the U.S. Equal Employment Opportunity Commission (EEOC) enforces five federal laws that prohibit employment discrimination against applicants for federal employment, current federal employees, or former federal employees: Title VII of the Civil Rights Act of 1964, as amended (prohibiting discrimination on the basis of race, color, religion, sex, or national origin); the Equal Pay Act of 1963 (prohibiting agencies from paying different wages to men and women performing equal work in the same work place); the Age Discrimination in Employment Act of 1967, as amended (prohibiting discrimination against persons age 40 or older); Sections 501 and 505 of the Rehabilitation Act of 1973, as amended (prohibiting discrimination on the basis of disability); and Title II of the Genetic Information Nondiscrimination Act of 2008 (prohibiting discrimination based on genetic information).

But what if the individual discriminating against a federal employee is the head of the agency or division wielding vast influence not only in the employee’s division but the entire agency? What if the alleged discrimination is inflicted by the head of the EEO office? Federal employees may fear that the EEO office is not investigating thoroughly such claims of discrimination and/or is predisposed not to find that any discriminatory conduct occurred.
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August 17, 2015

Derivative Actions Carry Heightened Pleading Standard

by Lee E. Berlik

Derivative actions are a mainstay of modern business litigation. They allow a shareholder of a corporation to enforce a right the corporation has but is wrongfully refusing to enforce. Normally, corporate management would be responsible for deciding whether to pursue litigation against someone, but sometimes it’s the management itself–such as an officer or director–that is causing the problem. In such situations, the board of directors may be reluctant to initiate a lawsuit against one of their own, so allowing a shareholder to bring the suit in the name of the corporation can be the only practical way to protect the interests of the corporation. Still, derivative suits are considered an extraordinary procedural device, permitted only when it is clear that the corporation will not act to enforce its rights. The pleading requirements are laid out in Federal Rule of Civil Procedure 23.1.

Because it’s normally up to the board of directors to decide whether to pursue litigation in the interest of the corporation or shareholders, it’s necessary to plead both the plaintiff’s demand on the corporation and the corporation’s refusal to comply. Under Rule 23.1, any complaint purporting to be a derivative action must state with particularity (a) any effort by the plaintiff to obtain the desired action from the directors or comparable authority and, if necessary, from the shareholders or members; and (b) the reasons for not obtaining the action or not making the effort. The reason for this requirement is that derivative suits may proceed only if the shareholder shows that the board’s refusal was wrongful. If the board’s refusal to pursue litigation is justified, there will not be grounds for a derivative action.
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