Preface

Preface

The University of Richmond Law Review is proud to present the thirty-fourth issue of the Annual Survey of Virginia Law. Since 1985, the Annual Survey has striven to provide a comprehensive resource detailing recent legislative, judicial, and administrative changes in Virginia. Today, the Annual Survey is the most widely read publication of the University of Richmond Law Review, reaching lawyers, judges, legislators, and students in every corner of the Commonwealth. In continuing the Annual Survey tradition, we have selected pieces we believe are timely, compelling, and useful to staying informed of relevant legal and social issues.

The University of Richmond School of Law is heavily associated with the legal community of Richmond; many alumni begin their careers right here in town, and some spend most, if not all, of their careers in Richmond. This year, the Richmond legal community lost a distinguished defense attorney and University of Richmond School of Law alumnus Michael Morchower. We are proud to help preserve his legacy with an In Memoriam.

This issue of the Annual Survey of Virginia Law further contains seven articles, each providing summaries of changes in the last year to substantive areas of the law. The topics of these updates include Civil Practice and Procedure; Criminal Law and Procedure; Corporate and Business Law; Employment Law; Taxation; Wills, Trusts, and Estates; and Local Government. Additionally, this issue contains two essays focused on narrower topics in the law, including both an analysis of the downfall of Virginia’s Incumbent Protection Act and an exploration of emotional distress claims in the Virginia workplace. Finally, the Law Review is proud to also include a student comment written by a University of Richmond Law Review staff member, which sheds light on a foster-care-to-prison pipeline in Virginia.

The enduring Annual Survey tradition is made possible only by the commitment and talent of our authors, many of whom contribute to the Annual Survey each year. Each unique piece is the culmination of diligence, resounding expertise, and sacrificed time, all in the name of legal scholarship. I am grateful for these authors’ continued dedication to our publication and the furtherance of the Virginia legal community.

I would also like to extend sincerest thanks to the Law Review staff for their careful editing and commitment to our organization, especially by balancing editing duties with associate positions and internships throughout the summer. In particular, the efforts of our Editor-in-Chief, Ashley Phillips; our Executive Editor, Thomas Dorsey; and my fellow executive board members Athena Dufour, Allison Bohan, Jon Roellke, Kellen Shearin, and Grace Nichols have been invaluable over the last several months. I know that no matter what Bluebook problem keeps me up at night, one of you always has the answer.

I also cannot give enough thanks to both Glenice Coombs and Emily Palombo. Glenice, your enduring commitment and sharp wit keep the wind in our sails, and we would surely be lost without you. Emily, your guidance and continued devotion to the Annual Survey tradition has helped me time and time again, something I am ever grateful for.

Finally, thank you to my wonderful and supportive friends and family, especially my parents, Mark and Connie, and my two older brothers, Jacob and Lucas. Thank you all for your unwavering love and encouragement, and especially to Lucas for allowing me the privilege of featuring your work in our publication. And of course, thank you to Marina Batalias for your steadfast support throughout law school, which helped make all of this possible.

We hope you find the 2019 Annual Survey of Virginia Law valuable, helpful, and thought-provoking. As a lifelong Virginia resident, it has been an honor to serve as the Editor of the 2019 Annual Survey of Virginia Law, and I thank you for your continued readership and patronage.

Matthew L. Pangle

Annual Survey Editor

In Memoriam Michael Morchower

John W. Luxton, In Memoriam Michael Morchower, 54 U. Rich. L. Rev. 1 (2019).

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In Memoriam Michael Morchower

John W. Luxton *

October of 1974 brought an offer of employment to work for Michael Morchower as his first legal associate. We met in my last semester of law school when I did an internship with Robert W. Duling[1] of the Richmond Commonwealth’s Attorney Office. Contested cases I observed between the two were spirited. When the case was over, however, the two future legends of the Richmond legal community would congratulate one another in a sincere and thoughtful manner.

Michael took me to the Richmond General District Court on one of my first days of employment. We were late leaving the office as he attended to a variety of matters. We rode in his white two-seater Mercedes-Benz with a license plate MAGIC M. He had a car phone which rang frequently. As we arrived near the Courthouse, parking was scarce. He pulled into a no-parking zone, turned on his emergency flashers, and exited the vehicle.

We took an escalator to reach the building’s lower level where the courtrooms were located. A variety of individuals traveling in the opposite direction greeted him, calling him “Mike” and wishing him well in the day’s cases. As we got to an area outside the courtroom, police officers and detectives acknowledged his presence with a quick “Hey Mike” or a friendly hand signal.

Judge Harold Maurice’s courtroom was always crowded. When Judge Maurice saw my new boss enter the courtroom, he announced for all to hear, “Well if it isn’t Magic Mike Morchower.” The announcement was a regular part of Michael’s appearance in that particular courtroom.

Michael was as magical as any criminal defense attorney could ethically be. I was with him for over thirty-five years. I cannot imagine there will ever be another Richmond criminal defense attorney who will match his courtroom achievements or secure such a loyal base of clientele.

He came to Richmond in 1958 from Bayonne, New Jersey, to play basketball at the University of Richmond. He completed Richmond’s law school, and in 1965 he joined the F.B.I. as an agent. The sixties experienced great social and cultural changes, including the civil rights movement. Michael had a fondness for the disadvantaged and oppressed.

Michael saw a different world when he was assigned to live and work as an agent in Louisville, Kentucky, and New Orleans, Louisiana. He observed local law enforcement were sometimes weak in their investigations and would, on occasion, supplement their work with flavored testimony. His experience helped him hone his instincts at trial to attack testimony he felt suspect.

Two years of being an agent was enough. He joined the United States Attorney’s office in Richmond and learned more of the actual mechanics of trial work. After a couple of years, United States District Court Judge Robert R. Merhige, Jr., recruited him to become the first United States Magistrate in the Eastern District of Virginia. When Michael began his private practice, he had seen the best and worst of investigations, prosecutions, and attorneys trying cases in front of him as a magistrate. He was also armed with a variety of new United States Supreme Court cases defining the Fourth and Fifth Amendment rights of those accused of criminal activity.[2]

The “Magic” legend began when a case would be dismissed despite drugs found in a client’s home and he admitted he was a drug dealer. The magic of the Fourth Amendment protections used at trial got the public’s interest and befuddled the police and prosecutors. Police procedures were slow to change, affording the growth of a legend.

He was not only excellent with constitutional defenses, but he was tremendous with juries. Deceased Circuit Court Judge D.W. Murphy of Chesterfield County remarked in an 1983 interview that Morchower would give the appearance of complete frankness before a jury and that he understood the importance of theatrics—and appropriate humor in a trial. Current Richmond Circuit Court Judge Gregory L. Rupe, in 1983, attributed Michael’s success to his preparation, his knowledge of the law, his “seat of the pants trial ability” and having “been wired” to the Courthouse. Michael made jurors comfortable in returning a non-guilty verdict if the evidence was not sufficient.

In jury trials, he earned high profile acquittals for two Richmond attorneys; a Richmond Judge; a Richmond police officer; a Hanover deputy sheriff; a minister; a Virginia State Police dispatcher; a dentist; an ear, nose, and throat doctor; and a member of a County Board of Supervisors. There were countless regular citizens who were also acquitted of wrongdoing. When I first began working with Michael, I watched him try three jury trials in three consecutive days. Juries related to him and he worked hard for his clients.

Michael was probably most proud of three cases in his jury trial career. He represented Richmond City Council member Chuck Richardson, a Vietnam War Veteran, who had periodic addiction issues. The police had executed a search warrant at Richardson’s house. Richardson led the police to some syringes that had traces of heroin. Despite the evidence, the jury acquitted Chuck.

Michael represented O’Neil Henry in United States District Court in Roanoke. O’Neil was a truck driver with a ton of marijuana in his trailer. A law enforcement officer testified O’Neil admitted knowing the trailer had marijuana in it. O’Neil denied the statement and the jury acquitted.

Michael and I tried what became known as the “Hanover Pot Plane” Case. Two very nice young men from Arizona landed a DC-4 plane containing three tons of marijuana at a tiny rural airport in Hanover County. Hanover was a tough place to try such a case. It took some years, but Michael finally got a Federal Judge to rule the jury selection process had been flawed and the comments by the prosecutor during closing argument were prejudicial. The sentences were substantially reduced and our clients returned home.

Michael loved having his cases covered by the media. When he began private practice, the Rules of Professional Responsibility prohibited lawyer advertising. There was no internet, mass mailing, or television spots. The local newspaper and local television stations covered the courthouses in the Richmond area. He knew the reward of a good news story about his cases. He notified reporters of his trials and offered his position on certain matters in the legal community. Michael was way ahead of most attorneys in realizing how this symbiotic relationship worked. He courted the press with a story and was often given the coverage he wanted to grow his practice and feed his ego.

When his client was absolutely guilty, Michael moved on to the anticipated sentencing event. He regularly had family, employers, psychologists, and drug rehabilitation counselors come forward to give a balanced picture of his clients. When I began working, a courtroom deputy told me Michael would fight harder in a sentencing than any of the other criminal defense lawyers.

Michael often had six or seven cases a day spread over a five hour period in three or four different jurisdictions. He was often late, but rarely drew the wrath of a court. They generally recognized he was not being disrespectful, but was simply doing his job. Most enjoyed his appearance in court as he generally lightened the courtroom mood by his humor.

Michael was restless and competitive. He was ambitious and generally fearless. He was a self promoter and put together a brochure documenting his biggest victories. The book was given to potential clients. The book is amazing to read.

He was kind and generous. Those in need had a friend. People knew they could give a sad story and Michael would assist. He was not worried that some obviously abused his generosity. Some lawyers did not like him because he was outside the lawyer mainstream and did not follow the lawyer norms. A few of the lawyers who may have looked down at Magic, the criminal lawyer, brought their children or friends to the office seeking his help.

Many young lawyers followed my path and began their careers as Michael’s associate. After we graduated from associate status, most of us remained in his office building and developing our own practices. In my thirty-five years, there was never an argument among the attorneys. No one departed in anger, although some did depart to set up their own shop. There is an unusual bond among most of us which includes many staff members who worked with Michael over the years. We enjoy being with each other. Michael would be delighted to know two of his favorites, Lauren Caudill and Sharon Jacobs, were recently sworn in as judges in Henrico County.

Michael loved to talk about the past, including his cases and fun times we had experienced. In the 1980s he was the host of an event for a number of years which will never happen again. He loved to rehash renting Katy O’Leary’s on Staples Mill Road for an annual Christmas party. It was a word of mouth event. Judges, court reporters, clerks, detectives, federal agents, prosecutors from state and federal court, secretaries, and defense attorneys would attend along with a variety of our former clients. It was so unusual but so refreshing for so many polar opposites to gather together and have fun.

Magic Mike was programmed by his experiences to be successful. He fought hard but left his fight in the courtroom. He was innovative, daring, and loved his occupation. Although he retired over seven years ago and recently died, we still get calls from potential clients who want to hire Magic Mike. Now that is a legacy.

 


         *   J.D., 1974, University of Richmond School of Law; B.A., 1971, Hampden-Sydney College.

   [1].    Robert Duling later became revered in the legal community for his service as a Circuit Court Judge.

        [2].    Terry v. Ohio, 392 U.S. 1 (1968); Katz v. United States, 389 U.S. 347 (1967); Miranda v. Arizona, 384 U.S. 436 (1966); Aguilar v. Texas, 378 U.S. 108 (1964).

Civil Practice and Procedure

Civil Practice and Procedure

Christopher S. Dadak, Annual Survey of Virginia Law Civil Practice and Procedure, 54 U. Rich. L. Rev. 7 (2019)

Click here to download PDF.


Christopher S. Dadak *

Introduction

This Article’s focus and analysis encompasses the past year of Supreme Court of Virginia opinions, legislation, and revisions to the Rules of the Supreme Court of Virginia affecting Virginia civil procedure.[1] This Article is not meant to be all-encompassing, but does endeavor to capture the highlights of changes or analysis regarding Virginia civil procedure. The opinions discussed throughout this Article do not all reflect changes in Virginia jurisprudence on civil procedure, but also address clarifications or reminders from the court on certain issues it has deemed worthy of addressing (and that practitioners continue to raise). The Article first addresses opinions of the supreme court, then new legislation enacted during the 2018 General Assembly Session, and finally approved revisions to the Rules of the Supreme Court of Virginia.

I.  Decisions of the Supreme Court of Virginia

A.  Confessed Judgments

In November 2008, Hunter Mill West, L.C. (“HMW”) “executed a deed of trust note . . . in the original principal amount of $1,000,000, payable to BDC Capital, Inc.” (“BDC”).[2]  Full payment of the note was due by November 19, 2009.[3] The regular interest rate for the note was 14% annually, which in the case of a default increased to 24%.[4] The note had “a clause appointing an attorney in fact for HMW and permitting that attorney to confess judgment against HMW for the unpaid balance[,] . . . plus interest, court costs, expenses, and reasonable attorney’s fees.”[5] It also “included a clause providing for compound interest.”[6]Furthermore, “any judgment entered against HMW would bear interest at the highest rate of interest being paid . . . on the date of the judgment.”[7]

As the reader can likely guess, HMW did not repay the note and in September 2010, received a notice of default from BDC.[8]HMW  then filed for Chapter 11 bankruptcy, during which BDC filed a claim for the outstanding balance.[9] The parties “disagreed as to when the interest rate increased to 24%” with BDC claiming it “occurred on the date of maturity” whereas HMW posited it “occurred when BDC sent the notice of default.”[10] “Neither party appeared to dispute the fact that the interest continued to compound monthly after the [n]ote matured.”[11] The bankruptcy court entered an order with interest calculated pursuant to HMW’s position and though “HMW’s bankruptcy petition was ultimately dismissed, the [order] was preserved and remained binding.”[12]

On August 11, 2016, BDC’s successor-in-interest, Catjen, LLC (“Catjen”), through an attorney-in-fact, “confessed judgment against HMW” for the outstanding amount “plus costs and reasonable attorney’s fees.”[13] Just under a month later, HMW “moved to set aside the confessed judgment” on four distinct grounds.[14] It also requested a bill of particulars and to “set the matter on the Court’s docket for trial.”[15] At the hearing on its motion, HMW “abandoned three of the bases . . . in its motion and limited its argument to whether” the interest was correctly calculated “by compounding [it] . . . after the date of maturity.”[16]HMW argued after maturity, “only simple interest applied.”[17] Meanwhile, Catjen argued “that the interest [was] contractual[,] . . . an incident of the debt,” and continued to apply “until the debt was paid.”[18] “After considering the parties’ arguments, the trial court denied HMW’s motion to set aside.”[19]

HMW filed a motion to reconsider again on the basis of incorrectly compounding the interest. It argued that the “extraordinary difference in the amounts . . . clearly raised an adequate defense to the confessed judgment.”[20] Finally, it requested that the court vacate the order denying its motion and hear argument again or that it “enter a remittitur order reducing the confessed judgment amount” to what HMW calculated.[21] The trial court granted HMW’s motion, indicated it would use HMW’s calculated amount, entered an order granting it, and “continued the matter for entry of [an] order regarding interest.”[22] After motions and argument regarding a nonsuit and supplements to the record,[23] “[t]he trial court then entered an order awarding Catjen $1,101,171.75 based on HMW’s calculations.”[24] Catjen appealed.

In its first (and main) assignment of error, Catjen argued that Virginia Code section 8.01-433 “does not permit a trial court to enter a modified confessed judgment over the objection of the party seeking the judgment.”[25] The supreme court examined “the nature of a confessed judgment.”[26] It noted its history, holding that it is “an extraordinary remedy that permits a creditor to obtain an enforceable judgment against a debtor without the need to file suit or to establish any fact other than the existence of a valid instrument permitting the creditor to direct an attorney-in-fact to confess the judgment.”[27] Notably, “[a] fundamental requirement to the entry of a confessed judgment is that the creditor must agree to the amount of the confessed judgment.”[28]However, there is a “limited exception to the finality of a confessed judgment.”[29] A debtor can move to set it aside “on any ground which would have been adequate defense or setoff in an action at law instituted upon the judgment creditor’s note.”[30] If such motion is granted, the statute provides that “the case shall be placed on the trial docket of the court, and . . . be the same as if an action at law had been instituted.”[31] Under the “plain language of the statute,” the “only issue to be determined [by the trial court] is whether the judgment debtor’s pleadings assert a facially adequate defense or setoff.”[32] In other words, once HMW asserted a facially plausible defense, Catjen was entitled to a full trial on the merits.[33]

B.  Default Judgment and General Appearances

Brooks & Co. General Contractors, Inc. (“Brooks”) “leased office and warehouse space to Plastic Lumber & Outdoor, LLC (“Plastic Lumber”).”[34] “Colin McCulley personally guaranteed Plastic Lumber’s lease obligations.”[35] When Plastic Lumber failed to pay, Brooks filed suit against it and McCulley “for unpaid rent, utilities, late fees, interest, and attorney fees and costs.”[36] Brooks obtained posted service on McCulley.[37] Neither party responded to Brooks’s complaint.[38] Brooks requested and received default judgment against the defendants.[39] About a month later, Brooks, through the circuit court clerk, summonsed McCulley “to appear before a commissioner in chancery . . . to answer debtor’s interrogatories.”[40]

 The commissioner, pursuant to a request from McCulley’s counsel, continued the interrogatories to a later date.[41] Before the rescheduled debtor’s interrogatories date, McCulley moved the Richmond City Circuit Court to vacate the default judgment as void because Brooks “had failed to properly serve the complaint, thereby depriving the circuit court of personal jurisdiction over McCulley.”[42] The motion in its heading and conclusion stated that McCulley was making a “special appearance for the sole purpose of contesting this Court’s exercise of personal jurisdiction over him.”[43] McCulley’s and Brooks’s counsel communicated and disagreed on whether the debtor’s interrogatories should be stayed while McCulley’s motion was pending.[44]

The circuit court then heard McCulley’s motion and “ruled that the ‘initial service’ of process on him ‘was defective’ but that ‘McCulley waived any objection to this defect in service by making a general appearance in this case through his post-judgment participation in Debtor’s Interrogatories.’”[45] McCulley appealed and because Brooks “concede[d] that it failed to certify that it had satisfied the mailing requirement of Code § 8.01-296(2)(b)[,] [t]he only issue before [the supreme court] [was] whether McCulley waived his right to challenge the default judgment as void ab initio by participating in the debtor’s-interrogatory proceedings.”[46]

The supreme court analyzed the issue under the principles of waiver by general appearance and ratification by equitable estoppel. The supreme court began by discussing its prior analysis of personal jurisdiction. “The consistent constitutional rule has been that a court has no power to adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant.”[47] The court specifically distinguished that such judgments are void ab initio as opposed to ones that are simply voidable.[48] The court went on to state that while it has “held many times that a party making a general appearance prior to the entry of a final judgment waives any objection to the service of process,”  it  has  “never  held . . . that a general appearance after the entry of a final judgment retroactively waives an objection to the court’s failure to obtain personal jurisdiction prior to the entry of the void judgment.”[49] After all, “[j]ust as medicine may cure a sick man of a fatal disease but not revive him after his burial, a litigant can ‘cure’ the absence of personal jurisdiction by making a general appearance prior to final judgment but cannot resurrect a void judgement thereafter.”[50] The supreme court agreed with other courts and held that “a general appearance after the entry of a final judgment that is void ab initio because of the absence of personal jurisdiction does not, by itself, convert the prior void judgment into a valid one.”[51] The court then analyzed whether McCulley had forfeited his right to challenge the judgment. It stated:

[A] challenge to an “invalid” default judgment, raised for the first time after entry of the judgment, should be denied if (1) the challenger “had actual notice of the judgment” and ratified it by manifesting “an intention to treat the judgment as valid,” and (2) granting relief from the judgment “would impair another person’s substantial interest of reliance on the judgment.”[52]

The issue is analyzed through the lens of equitable estoppel. “[T]he theory is not that a void judgment has somehow become valid[;] . . . rather, as a result of the parties’ conduct in connection with the judgment the judgment debtor is held estopped to assert that invalidity.”[53] However, the court did not “expressly adopt or reject the Restatement’s view . . . because neither of its two prerequisites is present in this case.”[54] The court found that McCulley’s actions and communications regarding the debtor’s interrogatories “did not manifest an intention to accept the validity of the default judgment” nor did it appear that setting aside the default judgment “would impair another person’s substantial interest of reliance on the judgment.”[55] Specifically, there was “no partial enforcement of the void judgment, no sale of debtor assets . . . , no seizure of bank accounts[,] and [t]he contest appeare[d] to be entirely limited to the original parties.”[56] The supreme court reversed the trial court’s ruling and vacated the default judgment.[57]

Interestingly, Justice McCullough’s concurrence raised an area of concern for practitioners. He noted that the majority opinion “does not address, much less resolve, whether an appearance made prior to the entry of judgment before someone who is not a judge constitutes a general appearance that waives any defect in personal jurisdiction.”[58] He noted the “variety of institutional actors [that] perform valuable functions that assist the courts” such as “clerks of court, mediators, commissioners of accounts, and commissioners in chancery.”[59] He concluded that “[a] future case will have to answer th[e] question” of whether “appearing before a person who is assisting the court in the dispatch of judicial business constitutes a general appearance that waives defects in personal jurisdiction.”[60]

The court declined to give explicit future guidance on the main issues. It has made clear that just a general appearance will not cure personal jurisdiction defects after a judgment. However, it declined to adopt the Second Restatement of Judgments’ factors in determining an equitable estoppel of or forfeit of waiving the defect. It also declined to further specify acts that constitute a general appearance. Practitioners should be sure to explicitly and unambiguously note a special appearance if there are any personal jurisdiction issues. They should also be careful to limit any action or communication with third parties (prior to judgment) to minimize the risk of making a general appearance.[61]

C.  Jurisdiction of Juvenile & Domestic Relations Court on Withdrawn Appeal

The court handled a case purely focused on the procedural effect on the jurisdiction of Juvenile & Domestic Relations (“J&DR”) courts. James Spear (“Spear”) and Nawara Omary (“Omary’) divorced in 2010.[62] The Fairfax County Circuit Court entered a final divorce order, by incorporating a written agreement by the parties, providing that Spear pay Omary child support.[63] Later the Department of Social Services, Division of Child Support Enforcement (“DCSE”), moved to “reopen the case, intervene in the matter, and transfer the case to J[&]DR court.”[64] The circuit court granted the motion and ordered “that the establishment, modification and enforcement of child support and maintenance shall be transferred forthwith to the J[&]DR court.”[65]

A couple years later, “Spear noted an appeal to the circuit court” because his motion to modify child support due to a material change was denied.[66] However, he withdrew his appeal and the circuit court’s order provided, “in its entirety, ‘Defendant JAMES B. SPEAR, JR. hereby withdraws his appeal in the above captioned matter; it is therefore ORDERED AND ADJUDGED, that the appeal in the above captioned matter is hereby withdrawn.’”[67]

After another couple years, DCSE this time moved the J&DR court to modify the child support pursuant to a material change in circumstances.[68] This time, the J&DR court “granted the motion and [significantly] reduced Spear’s child support obligation.”[69] Omary appealed to the circuit court on the basis that the J&DR court “never possessed jurisdiction to enter the [order].”[70] The circuit court granted her appeal and vacated the order which meant that Spear was obligated to pay the original higher child support.[71]

The parties agreed that Virginia Code section 16.1-106.1(F) controlled the issue; however, its interpretation was the main issue.[72] The section provides that “when a party withdraws an appeal from the J[&]DR court, ‘unless the circuit court orders that the case remain in the circuit court, the case shall be remanded to the J[&]DR court for purposes of enforcement and future modifications and shall be subject to all the requirements of § 16.1-297.’”[73] The court found that language unambiguous (and not meaningfully impacted by section 16.1-297) in holding that section 16.1-106.1(F) “does not require a circuit court to expressly remand a matter to the J[&]DR court upon a withdrawn appeal.”[74] Because section 16.1-106.1(F) “operates to remand the case by operation of law[,] . . . when the circuit court failed to expressly retain jurisdiction, [the section] operated to remand the case.”[75] The supreme court reversed and remanded the case to the circuit court.[76]

Justice Kelsey and Justice McClanahan dissented.[77] The dissent disagreed with the majority’s holding that “because the remand was supposed to happen, it did happen.”[78] “To be sure, the reason that appellate courts expressly order remands is because remands do not happen automatically.”[79] The justices focused on the grammatical structure of the key sentence in the section. They noted that “‘[s]hall be remanded’ is a passive-voice verb . . . [and] a transitive verb.”[80] “This grammatic structure . . . requires an  actor (the circuit court),  to  perform  the  action (remanding) upon  the  subject  of  the  sentence (the case).”[81] The  section omitted the actor (circuit court), but that did “not mean that the remand occurs automatically.”[82] Simply put, a “case cannot remand itself.”[83]

Unlike the majority, the dissent found two other applicable statutes useful to its interpretation. Pursuant to Virginia Code section 16.1-297, “the circuit court [must] file a copy of its ‘judgment’ with the J[&]DR court within 21 days after the entry of a ‘final judgment upon an appeal from the J[&]DR court.’”[84] Meanwhile Virginia Code section 16.1-106.1(C) “directs the circuit court to ‘enter an order disposing of the case in accordance with the judgment or order entered in the district court.’”[85] The dissent found that the circuit court in this case failed to perform all “the requirements listed in the governing statutes.”[86] The dissent concluded that the remand (just one of the requirements) could not automatically occur.[87]

Both opinions are powerful in their simplicity and they underscore the importance (and complexity) of procedural aspects of appeals between lower courts. However, the dissent’s conclusion does raise unanswered practical issues in terms of next steps. Spear had filed an “uncontested withdrawal request in the circuit court.”[88] Would the dissent’s conclusion simply require Spear to submit a final order that explicitly complied with statutory requirements and would the circuit court have the discretion to enter a different order?[89] The majority’s opinion appears to favor substance over form and provides an expeditious solution to the issue. This case is a useful reminder that even when the other side “withdraws” an appeal, one should not be distracted by the victory but still closely read the proposed order and verify that all results  and  effects  are  to  your  client’s  favor (or at least as you intend).

D.  Personal Jurisdiction

Personal jurisdiction again arose as an issue before the Supreme Court of Virginia in a dispute involving probate matters and a defendant residing in Canada. Victoria Lynn Mercer (“Mercer”) filed suit in Loudoun County against Lori-Belle MacKinnon (“MacKinnon”), a Canadian citizen and resident.[90] “Mercer [was] the daughter of Clifton Wood [(“Clifton”)] and the step-daughter of Eleanor Grace Wood” (“Eleanor”), who were a couple.[91] MacKinnon was Eleanor’s niece.[92]

In 2014, Mercer took care of Eleanor and Clifton who, at the time, resided in Virginia.[93] At the end of the year, MacKinnon came to Virginia and took Eleanor back to Canada “while Mercer was occupied with settling Clifton in a nursing home facility.”[94] Before leaving Virginia, MacKinnon had Clifton endorse a new power of attorney making MacKinnon Eleanor’s new attorney-in-fact.[95] MacKinnon quickly “used this power of attorney to remove Clifton’s name from one or more bank accounts that had been jointly held by Eleanor and Clifton,” which allowed MacKinnon to take “control of Eleanor’s retirement accounts.”[96] She also named herself as “the death beneficiary on at least one of the couple’s bank accounts.”[97]

Subsequently, MacKinnon and Mercer separately “filed petitions with the Prince William County Circuit Court seeking to be appointed as the guardian and conservator for Eleanor.”[98] During the litigation, “Mercer and MacKinnon were required to provide regular accountings to a guardian ad litem appointed by the [circuit court].”[99] “MacKinnon never challenged the [circuit court’s] jurisdiction . . . and appeared in that court regularly, by counsel and in person.”[100]

Following the conclusion of that litigation, “Mercer filed a complaint in the Circuit Court of Loudoun County against MacKinnon” where she “alleged that MacKinnon had illegally used assets from accounts belonging to Eleanor and Clifton to fund . . . litigation in Canada.”[101] In response, MacKinnon argued that the court did not have personal jurisdiction over her pursuant to the Virginia Long-Arm Statute.[102] Mercer disagreed and advanced several arguments in response, including that the court had personal jurisdiction pursuant to Virginia Code section 8.01-328(A)(1) and (A)(3) and “because MacKinnon had voluntarily subjected herself to the jurisdiction of Virginia through her actions in the Prince William County Court.”[103] At the hearing, the circuit court in agreeing with MacKinnon “indicated that Code section 8.01-328.1(A)(4) constituted the only viable ground for personal jurisdiction over MacKinnon,  but . . . concluded that the facts did not support a finding that MacKinnon engaged in a ‘persistent course of conduct in Virginia.’”[104] Mercer appealed but only on the grounds that the circuit court erred in finding that “MacKinnon did not engage in a ‘persistent course of conduct’ in the forum jurisdiction” and abandoned all of her other arguments at the circuit court.[105]

Virginia Code section 8.01-328.1(A)(4) grants a court personal jurisdiction for a cause of action arising from the person’s “[c]ausing tortious injury in this Commonwealth by an act or omission outside this Commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct.”[106] The definition of “persistent course of conduct” was an issue of first impression for the court.[107] It turned to persuasive authority for relevant analysis. It found the analysis in Willis v. Semmes, Bowen & Semmes to be particularly illustrative.[108] “At a minimum, the plaintiff must prove that the defendant maintained some sort of ongoing interactions with the forum state.”[109] In Willis, a Maryland law firm “had represented the plaintiff in a Virginia bankruptcy action.”[110] The plaintiff attempted to sue the law firm for conversion of a note in Maryland.[111]  The court held “that ‘while the defendants’ actions in Virginia during the bankruptcy proceeding satisfied the first three subsections of Virginia’s long arm statute, this limited, discrete quantum of activity does not amount to ‘persistent conduct’ in this state within the meaning of the statute.”[112]

In this matter, “MacKinnon’s pre-litigation contact with Virginia consisted of traveling to Virginia, having certain legal documents drawn up, . . . returning with her aunt to Canada[,] . . . [and] litigating a single case.”[113] These contacts “did not ‘exist for a long or longer than usual time or continuously,’ and they were not ‘enduring’ or ‘lingering.’”[114] The supreme court directly analogized to Willis and found that “MacKinnon’s contacts with Virginia constituted a ‘limited, discrete quantum of activity.’”[115]

As law students can attest, long-arm statute analysis, particularly “persistent conduct,” is highly fact-specific. However, this case has several useful lessons. First, if you have other arguments for personal jurisdiction other than “persistent conduct,” make sure to maintain and preserve those arguments. Second, a useful line seems to be whether the defendant has contacts with the state of some regularity and outside of any actions related to the lawsuit. MacKinnon’s contacts with Virginia were not minimal, but they were undeniably discrete by being limited to actions directly tied to the lawsuit.

E.  Eminent Domain Final Order

The Supreme Court of Virginia addressed how the finality of orders can be different in eminent domain proceedings. A landowner appealed from an “order distributing funds held by the circuit court in th[e] condemnation proceeding.”[116] However, his appeal was filed more than thirty days after the “order confirming the jury’s award of just compensation” and the condemnor, Town of Culpeper (“Town”), argued it was untimely because pursuant to Virginia Code section 25.1-239 that order was a “final order for purposes of appeal.”[117]

The supreme court began by noting the “unique framework by which courts conduct condemnation proceedings,” which “are two-stage.”[118] Because of the two-stage framework, the statutes related to condemnation proceedings are quite specific. The Virginia Code “provides that ‘the order confirming, altering or modifying the report of just compensation shall be final . . . [and] any party aggrieved thereby may apply for an appeal to the Supreme Court.’”[119] The statutes could not have been clearer to the court.[120]

The landowner’s argument focused on the fact that the Culpeper County Circuit Court “specifically retained jurisdiction” in its order.[121] However, this argument was unpersuasive due to the condemnation framework where “[t]he first stage addresses the confirmation, alteration or modification of the report of just compensation” and the “second stage deals with the distribution of the funds paid into circuit court.”[122] Critically (and fatally for the landowner), “[e]ach proceeding is separate and distinct and each provides for an appeal from any decision rendered therein.”[123] The circuit court only retained jurisdiction to accomplish the second stage of the proceeding, which did not affect the finality of its first stage determination.[124] The supreme court dismissed the appeal as untimely.[125]

F.  Commencement of Thirty-Day Appeal Timeline

The Supreme Court of Virginia clarified when the thirty-day timeline to appeal begins in orders granting leave to file an amended complaint. In perhaps a welcome respite to the reader, the underlying facts of this case are not relevant to the analysis. A plaintiff filed a lawsuit against a hospital for a variety of claims.[126] The defendant hospital filed demurrers, which were sustained.[127] The Roanoke City Circuit Court, by order dated October 25, 2016, sustained the demurrers and granted the plaintiff leave to file an amended complaint within twenty-one days.[128] The order stated that if the plaintiff did not timely file the amended complaint, “the case is dismissed with prejudice.”[129] The plaintiff never filed an amended complaint “but instead filed a notice of appeal on December 2, 2016.”[130] The defendant argued that the notice was untimely.[131]

Specifically, the defendant asserted “that Rule 1:1’s definition of when such an order is entered controls for the purpose of the 30-day deadline that Rule 5:9(a) imposes.”[132] Rule 5:9(a) states “[n]o appeal shall be allowed unless, within 30 days after the entry of final judgment[,] . . . counsel for the appellant files with the clerk of the trial court a notice of appeal.”[133] The Court noted it had previously held in Norris v. Mitchell that a similar order did “not become final until the time for amendment lapses.”[134] The analysis in Norris was helpful to the court, because it established that in such orders “there is no dismissal if the plaintiff files the amended complaint before the deadline and the order thus never becomes final.”[135] This is critical because “the commencement of the 30-day period for filing a notice of appeal requires ‘the entry of [a] final judgment.’”[136] Therefore, “an order must be both entered and final before the 30-day period for filing a notice of appeal commences.”[137] The supreme court found that the appeal was timely.[138]

While the procedural aspect of this case is straightforward, there is some uncertainty whether its conclusion still holds true. The court relied in its analysis on its precedent where it “decisively h[e]ld that an order merely sustaining a demurrer without dismissing the case is not final.”[139] As discussed infra Part III.C, subsequent to this matter, the Rules of the Supreme Court were amended to state that “[a]n order sustaining a demurrer . . . is sufficient to dispose of the claim(s) or cause(s) of action . . . even if [it] does not expressly dismiss the [matter].”[140] Until the issue is clarified with the new Rule in place, the safest practice would be to file a notice of appeal within thirty days of the order and not within thirty days of when the deadline to file an amended complaint passed.

II.  New Legislation

It has a been a busy session in the General Assembly with several particularly noteworthy changes.

A.  Motions to Amend Claim Amount and Transfer Jurisdiction

In probably the biggest legislative change related to civil procedure, the Virginia Code was amended to allow a plaintiff to move to amend the ad damnum and then—if applicable and requested—the court must transfer the suit to the court that has jurisdiction over the amended amount.[141] Virginia Code section 8.01-195.4 now provides that:

While a matter is pending in a general district court or a circuit court, upon motion of the plaintiff seeking to increase or decrease the amount of the claim, the court shall order transfer of the matter to the general district court or circuit court that has jurisdiction over the amended amount of the claim without requiring that the case first be dismissed or that the plaintiff suffer a nonsuit, and the tolling of the applicable statutes of limitations governing the pending matter shall be unaffected by the transfer. Where such a matter is pending, if the plaintiff is seeking to increase or decrease the amount of the claim to an amount wherein the general district court and the circuit court would have concurrent jurisdiction, the court shall transfer the matter to either the general district court or the circuit court, as directed by the plaintiff, provided that such court otherwise has jurisdiction over the matter.[142]

Meanwhile Virginia Code section 16.1-77, establishing jurisdiction of general district court, now states:

While a matter is pending in a general district court, upon motion of the plaintiff seeking to increase the amount of the claim, the court shall order transfer of the matter to the circuit court that has jurisdiction over the amended amount of the claim without requiring that the case first be dismissed or that the plaintiff suffer a nonsuit, and the tolling of the applicable statutes of limitations governing the pending matter shall be unaffected by the transfer.[143]

In practical terms, a suit pending in circuit court can now be amended to seek $25,000 or less and transferred to general district court without requiring a nonsuit or dismissal without prejudice.[144]  Meanwhile, a suit pending in general district court can be amended to seek over $25,000, and the suit will be transferred to circuit court without requiring a nonsuit or dismissal without prejudice.[145] Once the transfer is entered and fees paid, the “clerk shall process the claim as if it were a new civil action.”[146]

There are certain restrictions and requirements. In either case, the motion cannot be less than ten days before trial and the moving party must pay all applicable fees, including a filing fee, to the court where the case has been transferred.[147] It is the plaintiff’s responsibility to “prepare and present the order of transfer to the transferring court for entry,” and then suit can be removed from the original court’s docket.[148]

This is a surprising change because the problems it fixes are minor, while the unintended consequences can be significant. One can certainly imagine scenarios where plaintiff’s counsel does not realize the realistic value of a case until it is already pending. However, the plaintiff already has the advantage of choosing the forum. Second, the plaintiff has the extraordinarily powerful ability to nonsuit a matter—a mulligan in litigation, if you will.[149] Therefore, a plaintiff already had the ability to move a case from general district court to circuit court or vice versa via a nonsuit.

Meanwhile, there is a world of issues this change has likely created. First, there is no specified limit on the number of these motions and the court is statutorily mandated to grant one. An easy method to abuse this new power would be to transfer a case from circuit court to general district court and then back to circuit court. These moves could result in a—by all practical terms—nonsuit while still maintaining the right to an official nonsuit. Another area of potential abuse lies in a plaintiff filing a lawsuit in circuit court and “parking” it there for years before transferring it down to general district court. Because the transferred suit is treated as a “new civil action,” it appears this would allow a plaintiff to circumvent the requirement to serve process within a year of filing.[150]

This change certainly provides greater flexibility to plaintiffs. However, if the areas of potential abuse are not addressed, the cure may be worse than the disease.

B.  Use of Depositions and Affidavits in Motions for Summary Judgment

The General Assembly amended Virginia Code section 8.01-420 by adding Subsection (C).[151] The new subsection provides in relevant part that “discovery depositions under Rule 4:5 and affidavits may 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.”[152] This change will have a significant impact particularly on commercial litigation. The inability to use deposition transcripts or affidavits is a significant procedural difference between litigating in state court as opposed to federal court. This change should significantly streamline the litigation of affected cases and, hopefully, decrease the expense of litigation.[153]Perhaps, if this change is a success, it will lead to additional expansions of the ability to use summary judgment in Virginia courts.

C.  Statute of Limitations on Unsigned Contracts

The General Assembly amended Virginia Code section 8.01-246 to clarify the statute of limitations applicable to written but unsigned contracts.[154] Virginia Code section 8.01-246 now provides that any action on a “contract that is not otherwise specified and that is in writing and not signed by the party to be charged, or by his agent” shall be brought within three years.[155] This eliminates ambiguity for contracts that did not fall in the written and signed contract provisions under subsection (2) and the “unwritten contract, express or implied” provision under subsection (4).[156]

D.  Waiver of Process and Determination of Indigency in No-Fault Divorce Actions

The General Assembly made several relatively small but impactful changes to procedures regarding no-fault divorces. Virginia Code section 17.1-606 now specifies that there shall be a presumption that “a person who is a current recipient of a state or federally funded public assistance program for the indigent shall not be subject to fees and costs.”[157] The person must “certify to the receipt of such benefits under oath.”[158] This change should streamline the process to allow such individuals to simply file an affidavit to their receipt of state or federal public assistance.

Additionally, the General Assembly amended Virginia Code sections 20-99.1:1 and 20-106 to significantly simplify the process for no-fault divorces where a defendant executes a waiver of service.[159] Section 20-99.1:1 now provides that in

a suit for a no-fault divorce . . . any such waiver may occur within a reasonable time prior to or after the suit is filed, provided that a copy of the complaint is attached to such waiver, or is otherwise provided to the defendant, and the final decree of divorce as proposed by the complainant is signed by the defendant.[160]

The use of waivers of service for no-fault divorces is not a novelty, particularly to legal aid or pro bono attorneys. Furthermore, this new provision does require that the defendant receive a copy of the complaint and sign the final decree of divorce.[161]However, the amended language in Virginia Code section 20-106 reveals the efficiency of this new provision. Section 20-106 now allows “the plaintiff or his attorney [to] take and file, as applicable, the complaint, the affidavits or depositions, any other associated documents, and the proposed decree contemporaneously, and a divorce may be granted solely on those documents where the defendant has waived service and, where applicable, notice.”[162] In practical terms, practitioners can now prepare the pleadings in one meeting and then file them in one fell swoop. Previously a practitioner would typically need significantly more steps: file the complaint and indigency pleadings; secure a waiver of service and notice; file the waiver; take the necessary depositions or affidavits; and finally file the depositions or affidavits along with the final decree.

E.  Fact-Finding by Juvenile & Domestic Relations Court

The jurisdiction of J&DR courts has slightly increased in Virginia. Pursuant to Virginia Code section 16.1-241(A)(1), J&DR courts can now “[m]ak[e] specific findings of fact required by state or federal law to enable a child to apply for or receive a state or federal benefit.”[163]

III.  Rules of the Supreme Court of Virginia

There have been several changes to the Rules of the Supreme Court of Virginia over the past year.

A.  Limited Scope Appearances

Through amendments to Rule 1:5, the Supreme Court of Virginia created a pilot project to allow attorneys to make limited scope appearances.[164] Rule 1:5 now allows legal aid attorneys[165] to serve notice of a limited appearance in a matter.[166]The legal aid attorney must include in his notice that he has “a written agreement that the attorney will make a limited scope appearance in such action . . . and . . . specify[] the matters, hearings, or issues on which the attorney will appear for the party.”[167] Other attorneys may make a limited appearance only with leave of court, provided that they also comply with the requirements of a written agreement and identifications of the specific matters, hearings, or issues they are handling.[168]Throughout the duration of the limited appearance, the other parties are to serve all documents on both the limited attorney and her client, “who shall be considered an unrepresented party.”[169]

There are several provisions regarding how the limited appearance can end. If the client endorses the attorney’s declaration “that counsel’s obligations under the limited scope appearance agreement have been satisfied,” then the attorney can file “a notice of completion of limited scope appearance” with at least seven days’ notice to her client.[170] If the client “cannot or will not” endorse the declaration, the attorney must file a motion to terminate the limited appearance and “afford seven days for objection.”[171] If the client files an objection, the court may hold a hearing on the issue, but either way it must determine if “the attorney’s obligations under the notice of limited scope appearance have been met” to grant the motion.[172] Finally, if there is no other counsel replacing the limited appearance attorney, then the notice of completion must provide “the address and telephone number of the [client] for use in subsequent mailings or service of papers and notices.”[173]

This pilot program hopefully increases the flexibility of legal aid programs, their pro bono attorneys, and attorneys in general who want to help individuals in certain areas, but for a myriad of legitimate reasons cannot undertake representing the individual through the entire matter.

B.  Citation of Supplemental Authorities

A minor change to Rule 5:6A specifies that supplemental authority to the supreme court must be filed with the clerk’s office.[174] The amendment forbids filing a letter with such authority “directly with any Justice.”[175] While mainly a codification of existing practice among appellate practitioners, this revision makes the procedure clear to less-seasoned practitioners and unrepresented parties.

C.  Finality of Orders

The supreme court has significantly expanded Rule 1:1 addressing final orders, orders on demurrers, orders on summary judgment, and orders on motions to strike. The rule now specifies that a “judgment, order or decree is final if it disposes of the entire matter before the court, including all claim(s) and all cause(s) of action against all parties, gives all the relief contemplated, and leaves nothing to be done by the court except [its] ministerial execution.”[176] The rule then, in separate subsections, provides that orders sustaining or granting demurrers, pleas in bar, and motions for summary judgment are “sufficient to dispose of the claim(s) or cause(s) of action . . . even if the order does not expressly dismiss the claim(s) or cause(s) of action at issue” or “enter judgment for the moving party.”[177] However, an order on a motion to strike that merely grants the motion but does not “enter[] summary judgment or partial summary judgment or dismiss[] the claim(s) or cause(s) of action at issue, is insufficient to dispose of the claim(s) or cause(s) of action at issue.”[178] This rule provides useful clarity in a common area of concern to attorneys and an unnecessary source of litigation.

 


    *    Associate, Guynn, Waddell, Carroll, & Lockaby, P.C., Salem, Virginia. J.D., 2012, University of Richmond School of Law; B.A., 2008, Washington and Lee University. A heartfelt thanks to the University of Richmond Law Review editors and staff for their diligent efforts (and significant patience) on this Article and the entire University of Richmond Annual Survey of Virginia Law.

    [1].    Due to the publishing schedule, the relevant “year” is approximately June 2018 through June 2019.

        [2].    Catjen, LLC v. Hunter Mill West, L.C., 295 Va. 625, 627, 817 S.E.2d 139, 140 (2018).

        [3].    Id. at 628, 817 S.E.2d at 140.

        [4].    Id. at 628, 817 S.E.2d at 140.

        [5].    Id. at 628, 817 S.E.2d at 140.

        [6].    Id. at 628, 817 S.E.2d at 140.

        [7].    Id. at 628, 817 S.E.2d at 140.

        [8].    Id. at 628, 817 S.E.2d at 140.

        [9].    Id. at 628, 817 S.E.2d at 140.

      [10].    Id. at 628, 817 S.E.2d at 140.

      [11].    Id. at 628–29, 817 S.E.2d at 140.

      [12].    Id. at 629, 817 S.E.2d at 140–41.

      [13].    Id. at 629, 817 S.E.2d at 141.

      [14].    Id. at 629, 817 S.E.2d at 141.

      [15].    Id. at 629, 817 S.E.2d at 141.

      [16].    Id. at 629, 817 S.E.2d at 141.

      [17].    Id. at 629–30, 817 S.E.2d at 141.

      [18].    Id. at 630, 817 S.E.2d at 141.

      [19].    Id. at 630, 817 S.E.2d at 141.

      [20].    Id. at 630, 817 S.E.2d at 141 (internal quotation marks omitted).

      [21].    Id. at 630, 817 S.E.2d at 141 (internal quotation marks omitted). Both sides had competing amounts throughout the litigation, however the precise amounts are not germane to the procedural issues analyzed by the Supreme Court of Virginia.

      [22].    Id. at 630, 817 S.E.2d at 141 (internal quotation marks omitted).

      [23].    Id. at 630–31, 817 S.E.2d at 141–42. Neither are relevant to the court’s analysis of confessed judgments.

      [24].    Id. at 631, 817 S.E.2d at 142.

      [25].    Id. at 632, 817 S.E.2d at 142.

      [26].    Id. at 632, 817 S.E.2d at 142.

      [27].    Id. at 632, 817 S.E.2d at 142 (quoting Safrin v. Travaini Pumps USA, Inc., 269 Va. 412, 419, 611 S.E.2d 352, 356 (2005)).

      [28].    Id. at 632, 817 S.E.2d at 142.

      [29].    Id. at 632, 817 S.E.2d at 143.

      [30].    Id. at 633, 817 S.E.2d at 143 (quoting Va. Code Ann. § 8.01-433 (Repl. Vol. 2015)).

      [31].    Id. at 633, 817 S.E.2d at 143 (quoting Va. Code Ann. § 8.01-433 (Repl. Vol. 2015)).

      [32].    Id. at 633, 817 S.E.2d at 143.

      [33].    Id. at 634–35, 817 S.E.2d at 144.

      [34].    McCulley v. Brooks & Co. Gen. Contractors, Inc., 295 Va. 583, 586, 816 S.E.2d 270, 271 (2018).

      [35].    Id. at 586, 816 S.E.2d at 271.

      [36].    Id. at 586, 816 S.E.2d at 271.

      [37].    Id. at 586, 816 S.E.2d at 271.

      [38].    Id. at 587, 816 S.E.2d at 271.

      [39].    Id. at 587, 816 S.E.2d at 271.

      [40].    Id. at 587, 816 S.E.2d at 271.

      [41].    Id. at 587, 816 S.E.2d at 271.

      [42].    Id. at 587, 816 S.E.2d at 271–72.

      [43].    Id. at 587, 816 S.E.2d at 272.

      [44].    Id. at 587–88, 816 S.E.2d at 272.

      [45].    Id. at 588, 816 S.E.2d at 272 (quoting Joint Appendix at 95, McCulley, 295 Va. 583, 816 S.E.2d 270 (2018) (No. 171117)).

      [46].    Id. at 588, 816 S.E.2d at 272.

      [47].    Id. at 589, 816 S.E.2d at 273 (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969)).

      [48].    Id. at 589, 816 S.E.2d at 273.

      [49].    Id. at 589–90, 816 S.E.2d at 273.

      [50].    Id. at 590, 816 S.E.2d at 273.

      [51].    Id. at 590–91, 816 S.E.2d at 274.

      [52].    Id. at 591, 816 S.E.2d at 274 (quoting Restatement (Second) of Judgments § 66 (Am. Law Inst. 1982)).

      [53].    Id. at 592, 816 S.E.2d at 275 (quoting Katter v. Ark. La. Gas Co., 765 F.2d 730, 734 n.8 (8th Cir. 1985)).

      [54].    Id. at 593, 816 S.E.2d at 275.

      [55].    Id. at 593–95, 816 S.E.2d at 275–76 (quoting Restatement (Second) of Judgments § 66 (Am. Law Inst. 1982)).

      [56].    Id. at 595, 816 S.E.2d at 276.

      [57].    Id. at 595, 816 S.E.2d at 276.

      [58].    Id. at 595, 816 S.E.2d at 277 (McCullough, J., concurring).

      [59].    Id. at 595–96, 816 S.E.2d at 277 (McCullough, J., concurring).

      [60].    Id. at 596, 816 S.E.2d at 277 (McCullough, J., concurring).

      [61].    Unless one wants to be the “future case” that Justice McCullough predicts.

      [62].    Spear v. Omary, 297 Va. 251, 251, 825 S.E.2d 288, 288 (2019).

      [63].    Id. at 251, 825 S.E.2d at 288.

      [64].    Id. at 251, 825 S.E.2d at 288.

      [65].    Id. at 251–52, 825 S.E.2d at 288–89.

      [66].    Id. at 251, 825 S.E.2d at 289.

      [67].    Id. at 251–52, 825 S.E.2d at 289 (quoting Joint Appendix at 21, Spear, 297 Va. 251, 825 S.E.2d 288 (2019) (No. 180224)).

      [68].    Id. at 252, 825 S.E.2d at 289.

      [69].    Id. at 252, 825 S.E.2d at 289.

      [70].    Id. at 252, 825 S.E.2d at 289.

      [71].    Id. at 252, 825 S.E.2d at 289.

      [72].    See id. at 252–53, 825 S.E.2d at 289.

      [73].    Id. at 252, 825 S.E.2d at 289 (quoting Va. Code Ann. § 16.1-106(F) (Repl. Vol. 2015)).

      [74].    Id. at 253, 825 S.E.2d at 289.

      [75].    Id. at 253, 825 S.E.2d at 289.

      [76].    Id. at 253, 825 S.E.2d at 289.

      [77].    Id. at 253, 825 S.E.2d at 290 (Kelsey, J. & McClanahan, J., dissenting).

      [78].    Id. at 254, 825 S.E.2d at 290.

      [79].    Id. at 254, 825 S.E.2d at 290.

      [80].    Id. at 254, 825 S.E.2d at 290.

      [81].    Id. at 254–55, 825 S.E.2d at 290.

      [82].    Id. at 255, 825 S.E.2d at 290.

      [83].    Id. at 255, 825 S.E.2d at 290.

      [84].    Id. at 255, 825 S.E.2d at 291 (quoting Va. Code Ann. § 16.1-297 (Repl. Vol. 2015)).

      [85].    Id. at 255, 825 S.E.2d at 291 (quoting Va. Code Ann. § 16.1-106.1(C) (Repl. Vol. 2015)).

      [86].    Id. at 256, 825 S.E.2d at 291.

      [87].    Id. at 256, 825 S.E.2d at 291.

      [88].    Id. at 256, 825 S.E.2d at 291.

      [89].    For example, specifically retaining jurisdiction of the matter.

      [90].    Mercer v. MacKinnon, 297 Va. 157, 159–60, 823 S.E.2d 252, 253–54 (2019).

      [91].    Id. at 159–60, 823 S.E.2d at 253.

      [92].    Id. at 159, 823 S.E.2d at 253.

      [93].    Id. at 159, 823 S.E.2d at 253.

      [94].    Id. at 159, 823 S.E.2d at 253.

      [95].    Id. at 159, 823 S.E.2d at 253.

      [96].    Id. at 159–60, 823 S.E.2d at 253.

      [97].    Id. at 160, 823 S.E.2d at 253.

      [98].    Id. at 160, 823 S.E.2d at 253.

      [99].    Id. at 160, 823 S.E.2d at 253–54.

    [100].    Id. at 160, 823 S.E.2d at 254.

    [101].    Id. at 160, 823 S.E.2d at 254.

    [102].    Id. at 160, 823 S.E.2d at 254.

    [103].    Id. at 161, 823 S.E.2d at 254.

    [104].    Id. at 161, 823 S.E.2d at 254 (quoting Va. Code Ann. § 8.01-328.1(A)(4) (Repl. Vol. 2015 & Cum. Supp. 2019)).

    [105].    Id. at 161, 823 S.E.2d at 254. The reason for abandoning other provisions of the long-arm statute is unclear. Id. at 161, 823 S.E.2d at 254.

    [106].    Va. Code Ann. § 8.01-328.1(A)(4) (Repl. Vol. 2015 & Cum. Supp. 2019)).

    [107].    See Mercer, 297 Va. at 163, 823 S.E.2d at 255.

    [108].    Id. at 162–63, 823 S.E.2d at 255 (citing Willis v. Semmes, Bowen, & Semmes, 441 F. Supp. 1235, 1242 (E.D. Va. 1977)).

    [109].    Id. at 162, 823 S.E.2d at 255 (quoting Willis, 441 F. Supp. at 1242).

    [110].    Id. at 163, 823 S.E.2d at 255 (citing Willis, 441 F. Supp. at 1240–41).

    [111].    Id. at 163, 823 S.E.2d at 255 (citing Willis, 441 F. Supp. at 1240).

    [112].    Id. at 163, 823 S.E.2d at 255 (alteration in original) (quoting Willis, 441 F. Supp. at 1242).

    [113].    Id. at 164, 823 S.E.2d at 256.

    [114].    Id. at 164, 823 S.E.2d at 256 (citing Webster’s Third New International Dictionary (1996)).

    [115].    Id. at 164–65, 823 S.E.2d at 256 (quoting Willis, 441 F. Supp. at 1242).

    [116].    Dwyer v. Town of Culpeper, 297 Va. 204, 204, 825 S.E.2d 79, 79 (2019).

    [117].    Id. at 204, 825 S.E.2d at 79.

    [118].    Id. at 204, 825 S.E.2d at 79–80 (quoting Williams v. Fairfax Cty. Redevelopment & Hous. Auth., 227 Va. 309, 313, 315 S.E.2d 202, 204 (1984)).

    [119].    Id. at 204–05, 825 S.E.2d at 80 (quoting Va. Code Ann. §§ 25.1-239(A)–(B) (Repl. Vol. 2016)).

    [120].    Id. at 205, 825 S.E.2d at 80.

    [121].    Id. at 205, 825 S.E.2d at 80.

    [122].    Id. at 205, 825 S.E.2d at 80 (citing Va. Code Ann. §§ 25.1-239 to -241 (Repl. Vol. 2016)).

    [123].    Id. at 205, 825 S.E.2d at 80 (emphasis added).

    [124].    See id. at 206, 825 S.E.2d at 80.

    [125].    Id. at 206, 825 S.E.2d at 81.

    [126].    Parker v. Carilion Clinic, No. 170132, 2018 Va. LEXIS 211, at *1 (Nov. 1, 2018).

    [127].    Id.

    [128].    Id. at *4.

    [129].    Id. (quoting Joint Appendix at 80, Parker, No. 170132, 2018 LEXIS 211 (Va. Nov. 1, 2018)).

    [130].    Id.

    [131].    Id.

    [132].    Id. at *5.

    [133].    Id. (quoting Va. Sup. Ct. R. 5:9(a) (Repl. Vol. 2019)).

    [134].    Id. (citing Norris v. Mitchell, 255 Va. 235, 239–40, 495 S.E.2d 809, 811–12 (1998)).

    [135].    Id. at *6 (citing Norris, 255 Va. at 239, 495 S.E.2d at 811).

    [136].    Id. at *7 (citing Va. Sup. Ct. R. 5:9(a) (Repl. Vol. 2019)).

    [137].    Id.

    [138].    Id. The rest of the court’s opinion dealt with the merits of the matter and demurrers, which are not relevant to the procedural aspect.

    [139].    Id.

    [140].    Va. Sup. Ct. R. 1:1(c) (Repl. Vol. 2019).

    [141].    Act of Mar. 22, 2019, ch. 787, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. §§ 8.01-195.4, 16.1-77 (Cum. Supp. 2019)).

    [142].    Va. Code Ann. § 8.01-195.4 (Cum. Supp. 2019).

    [143].    Id.  § 16.1-77 (Cum. Supp. 2019).

    [144].    See id. § 8.01-195.4 (Cum. Supp. 2019).

    [145].    See id. § 16.1-77 (Cum. Supp. 2019).

    [146].    See id. §§ 8.01-195.4, 16.1-77 (Cum. Supp. 2019).

    [147].    Id.

    [148].    Id.

    [149].    Id. § 8.01-380 (Repl. Vol. 2015).

    [150].    Id. § 8.01-195.4 (Repl. Vol. 2015). Normally a plaintiff would have to use a nonsuit when faced with a motion to dismiss for untimely or defective service. See id. § 8.01-277(B) (Repl. Vol. 2015).

    [151].    Act of Feb. 13, 2019, ch. 10, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 8.01-420 (Cum. Supp. 2019)).

    [152].    Va. Code Ann. § 8.01-420(C) (Cum. Supp. 2019).

    [153].    However, there remains a tension between this expansion and the generally disfavored nature of summary judgment in Virginia. See, e.g., Slone v. Gen. Motors Corp., 249 Va. 520, 522, 457 S.E.2d 51, 52 (1995) (describing summary judgment as a “drastic remedy”).

    [154].    Act of Mar. 5, 2019, ch. 241, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 8.01-246 (Cum. Supp. 2019)).

    [155].    Va. Code Ann. § 8.01-246(4) (Cum. Supp. 2019).

    [156].    Id. § 8.01-246(2), (4) (Cum. Supp. 2019).

    [157].    Id. § 17.1-606(B) (Cum. Supp. 2019).

    [158].    Id.

    [159].    Act of Feb. 22, 2019, ch. 133, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. §§ 20-99.1:1, -106 (Cum. Supp. 2019)).

    [160].    Va. Code Ann. § 20-99.1:1 (Cum. Supp. 2019).

    [161].    Id.

    [162].    Id. § 20-106 (Cum. Supp. 2019).

    [163].    Id. § 16.1-241(A)(1) (Cum. Supp. 2019).

    [164].    Va. Sup. Ct. R. 1:5(f) (Repl. Vol. 2019). Currently the pilot program is set to expire on January 1, 2022. See R. 1:5(f)(5) (Repl. Vol. 2019). Additionally, the rule specifies that it does apply to nor affect “another attorney appear[ing] in lieu of counsel of record for a particular proceeding or docket call,” i.e., local counsel or docket call coverage. R. 1:5A(f)(6) (Repl. Vol. 2019).

    [165].    Direct employees or attorneys representing a client pro bono pursuant to a referral from legal aid. R. 1:5A(f)(1) (Repl. Vol. 2019).

    [166].    Id.

    [167].    Id.

    [168].    R. 1:5(f)(2) (Repl. Vol. 2019).

    [169].    R. 1:5(f)(3) (Repl. Vol. 2019).

    [170].    R. 1:5(f)(4)(A) (Repl. Vol. 2019).

    [171].    R. 1:5(f)(4)(B) (Repl. Vol. 2019).

    [172].    Id.

    [173].    R. 1:5(f)(4)(C) (Repl. Vol. 2019).

    [174].    R. 5:6A (Repl. Vol. 2019).

    [175].    Id.

    [176].    R. 1:1(b) (Repl. Vol. 2019).

    [177].    R. 1:1(c)–(d) (Repl. Vol. 2019).

    [178].    R. 1:1(e) (Repl. Vol. 2019).

 


Criminal Law and Procedure

Criminal Law and Procedure

Rachel L. Yates, John I. Jones IV, & Brittany Dunn-Pirio, Annual Survey of Virginia Law Criminal Law and Procedure, 54 U. Rich. L. Rev. 31 (2019).

Click here to download PDF.


Rachel L. Yates *

John I. Jones, IV **

Brittany Dunn-Pirio ***

 

Introduction

This Article surveys recent developments in criminal procedure and law in Virginia. Because of space limitations, the authors have limited their discussion to the most significant appellate decisions and legislation.

I.  Criminal Procedure

A.  Continuances

In Reyes v. Commonwealth, the Supreme Court of Virginia was asked to determine whether a trial court erred in denying a defendant a continuance to prepare for sentencing with his new retained counsel pursuant to Virginia Code section 19.2-159.1.[1]At the defendant’s second sentencing date, retained counsel explained that he needed time to prepare and to explore potentially withdrawing the defendant’s guilty plea.[2]

The supreme court explained that the General Assembly enacted section 19.2-159.1 in order to minimize the burden on taxpayers to pay the cost of court-appointed counsel when a defendant could pay for his own attorney.[3] Although the statute provides that the trial court shall grant reasonable continuances to prepare for trial, the supreme court found that this was to aid the primary fiscal purpose of the act and not to confer “a new, statutory right for a criminal defendant.”[4] Reyes made no argument that the trial court’s decision impacted his constitutional right, and the supreme court otherwise determined that the defendant was not entitled to his requested remedy.[5]

B.  Jury Instructions

In Smith v. Commonwealth, the Supreme Court of Virginia addressed whether the defendant waived her arguments challenging the agreed upon jury instructions, which determined the law of the case.[6] A jury found Smith guilty of voluntary manslaughter, and following her conviction, Smith argued that the evidence was insufficient to show any intentional killing or heat of passion.[7]In her motion to set aside, she argued for the first time that her dispute with the victim was “a minor verbal argument,” and that words alone are insufficient to qualify as heat of passion.[8]

The supreme court found that Smith raised the issue that words alone are insufficient too late.[9] Because Smith agreed to jury instructions that omitted the legal principles she relied upon on appeal, those jury instructions became the law of the case, and she accordingly waived that issue.[10] The supreme court concluded the evidence was sufficient to support Smith’s conviction and affirmed the judgment of the court of appeals under the doctrine of “right result for a different reason.”[11]

In Lienau v. Commonwealth, the Court of Appeals of Virginia, sitting en banc, reversed an involuntary manslaughter conviction for the trial court’s failure to provide a self-defense jury instruction.[12] The Commonwealth argued that the defendant, originally charged with first-degree murder, never testified that he was afraid, but instead said that he was “raging” and “saw red.”[13] The court found, however, that there was sufficient credible evidence in the record, viewed in the light most favorable to Lienau, to support his right to a self-defense jury instruction.[14] The court also held that even though Lienau was acquitted of murder when the jury found him guilty of involuntary manslaughter, the error could have affected the verdict and reversed his conviction.[15]

 

C.  Appellate Procedure and Jurisdiction

In Martinez v. Commonwealth, the Supreme Court of Virginia considered an appeal from a deaf and mute inmate originally from El Salvador who was previously found incompetent to stand trial.[16] Martinez had been receiving inpatient treatment to restore his competency under Virginia Code section 19.2-169.2 in order to try him for two counts of capital murder.[17] Martinez appealed directly to the supreme court from the circuit court’s denial of two motions to dismiss the indictments, on the theory that the denials were civil in nature.[18] The supreme court found it lacked subject matter jurisdiction to hear the appeal, holding that an appeal from a competency determination is criminal in nature, and thus may not be considered by the supreme court without first being considered by the court of appeals.[19] The supreme court also declined to transfer the case to the court of appeals, because no final order had been entered in the underlying prosecution, and the court of appeals was thus without jurisdiction to hear an appeal in the matter.[20] The court dismissed the appeal without prejudice because the court found there was no final conviction and no final order.[21]

Ordinarily, an appellant’s failure to invoke the ends of justice exception to Supreme Court of Virginia Rule 5A:18’s preservation requirement precludes the Court of Appeals of Virginia from reaching an issue under that exception.[22] The court held in Merritt v. Commonwealth that even where an appellant does not invoke the ends of justice exception to Rule 5A:18, the Commonwealth may successfully do so on her behalf.[23] Merritt missed a revocation proceeding and was convicted of failure to appear in violation of section 19.2-128(C); however, she did not challenge the section’s applicability to revocation proceedings before either the trial court or the court of  appeals  (despite  the  latter  court’s explicit direction to address the issue in its order granting Merritt’s petition for appeal).[24] The Commonwealth, on brief and at oral argument, conceded that Merritt’s conduct did not fall under her statute of conviction, and contended that though Merritt had not raised the argument, the court could still reach it under the ends of justice exception to Rule 5A:18.[25] The court agreed based on its independent analysis that the Commonwealth’s concession was appropriate, applied the ends of justice exception, and reversed Merritt’s conviction.[26]

D.  Withdrawal of Guilty Pleas

In Brown v. Commonwealth, the Supreme Court of Virginia determined that the defendant failed to demonstrate a sufficient basis to allow her to withdraw a guilty plea under Virginia Code section 19.2-296.[27] The court found that although the defendant raised her motion to withdraw before the trial court entered the written sentencing order, the trial court had pronounced the sentence from the bench.[28] Consequently, the defendant needed to show that there was a “manifest injustice” in order to withdraw her guilty plea.[29] The court determined there was insufficient cause because her defense was not viable.[30] The court also found that her failure to understand the collateral consequences of her conviction did not provide a basis for setting aside a guilty plea.[31]

In Thomason v. Commonwealth, the Court of Appeals of Virginia reviewed a circuit court’s denial of a defendant’s pre-sentencing motion to withdraw his guilty pleas to second-degree murder, possession of a firearm by a convicted felon, and use of a firearm in the commission of a felony.[32] Thomason argued in his motion that he learned of the existence of an exculpatory witness, whose testimony would impeach another witness, after he accepted the plea agreement, and that this discovery constituted a material mistake of fact.[33] The court of appeals affirmed Thomason’s conviction because “potential impeachment of witness testimony does not satisfy the Parris[34] standard.”[35] The court explained that a mere discovery of a conflict of testimony does not establish a “reasonable defense” sufficient to withdraw a guilty plea.[36]

E.  Venue

In McGuire v. Commonwealth, the Court of Appeals of Virginia clarified that venue for the prosecution of making a false report regarding the commission of a crime is proper in either the jurisdiction where the report was made or where it was received.[37]McGuire made a false police report from an unknown location to the Loudoun County Sheriff’s Department, and was subsequently prosecuted for the report in Loudoun County.[38] The court of appeals held that (1) venue is proper in either the sending or receiving jurisdiction; (2) a report must both be sent by the defendant and received by an officer to complete the offense; and (3) once completed, the offense has “occurred” in part in both locations.[39]

F.   Sentencing

In Hall v. Commonwealth, the Supreme Court of Virginia clarified that a defendant’s disclosure supporting his motion for relief under the “safety valve” provision of Virginia Code section 18.2-248(C) is considered timely if it is provided at any time before the commencement of the sentencing hearing.[40] Under the “safety valve” provision, the mandatory minimum sentences provided in section 18.2-248 do not apply if the defendant meets five statutory criteria.[41] The fifth requirement provides that “[n]ot later than the time of the sentencing hearing, the person has truthfully provided to the Commonwealth all information and evidence the person has concerning the offense.”[42] Hall was convicted of three offenses subject to mandatory minimum sentences, and provided a disclosure pursuant to this requirement just before his sentencing hearing commenced.[43]

The trial court held that the disclosure was untimely, but the supreme court reversed, holding that the statute unambiguously provided a deadline of the sentencing hearing’s commencement, and that last-minute disclosures are thus timely.[44]

In Stone v. Commonwealth, the Supreme Court of Virginia clarified a different component of eligibility for the “safety valve” provision of Virginia Code section 18.2-248(C)—the requirement that “[t]he person did not . . . possess a firearm . . . in connection with the offense.”[45] Stone sold cocaine four times during a one-month period to a confidential informant; when police executed a search warrant following the fourth controlled buy, they discovered a loaded AK-47 along with cocaine in Stone’s bedroom.[46] Stone argued that he obtained the firearm for personal protection following an earlier robbery, and that he thus did not own it “in connection” with his drug distribution offenses for “safety valve” purposes.[47]

The supreme court rejected Stone’s arguments, noting that he bore the burdens of production and persuasion to show entitlement to relief under the “safety valve” provision.[48] The court held that the evidence showed Stone constructively possessed the firearm while conducting four drug sales to the confidential informant “at that location,” and that by failing to present any evidence to the contrary, Stone “plainly failed to carry his burden of establishing that he did not possess the firearm in connection with these four . . . offenses.”[49] The court further held that the evidence supported “the affirmative inference . . . that Stone in fact possessed the firearm for the protection of his illegal drug operation being conducted out of his residence.”[50]

In Botkin v. Commonwealth, the Supreme Court of Virginia (1) addressed whether the Court of Appeals of Virginia erred by holding that multiple mandatory minimum terms of imprisonment, imposed for multiple convictions of possession of a firearm within ten years of being convicted as a felon under Virginia Code section 18.2-308.2(A), were required to be served consecutively; and (2) remanded to the circuit court to impose two consecutive sentences.[51] The supreme court explained that section 18.2-308.2(A) specifically states that “[t]he mandatory minimum terms of imprisonment prescribed for violations of this section shall be served consecutively with any other sentence,” and thus Botkin’s sentences must be run consecutively.[52]

In Thomas v. Commonwealth, the Supreme Court of Virginia found that a trial court erred by adding three years, all suspended, after imposing the entire jury sentence as active incarceration.[53] The supreme court explained that the trial court had an obligation under Virginia Code section 19.2-295.2 to impose a term up to three years of post-release supervision under the review of the Parole Board, and was required under “[section] 18.2-10 to impose a linked suspended term of incarceration.”[54]Thomas’s sentencing order “as written” was unlawful, however, because it did not specify that the additional three years of suspended incarceration was imposed pursuant to sections 18.2-10 and 19.2-295.2, nor did it specify that the supervision was subject to the review of the Virginia Parole Board.[55]

In Robinson v. Commonwealth, the Court of Appeals of Virginia found no error in a trial court’s decision not to redact a defendant’s prior conviction order during the sentencing phase of a jury trial, even though it “included information about a charge for which Mr. Robinson was not convicted.”[56] The court found that the plain language of Virginia Code section 19.2-295.1 allows the Commonwealth to introduce conviction orders in their entirety.[57] The court noted that the General Assembly amended the statute in 2007 to allow presentation of a defendant’s prior criminal history, thus broadening what may be shown to the jury.[58] The court found that the statute did not require that the jury be shielded from such information, and that it was admissible regardless as part of the defendant’s criminal history.[59] As a result, the trial court did not abuse its discretion in admitting the unredacted conviction order.[60]

G.  Restitution

In Fleisher v. Commonwealth, Fleisher was ordered to pay restitution for lost cash, to replace the keys and locks on a Hyundai, and to replace the keys and reset the computer system on a Toyota after she stole the victim’s keys and drove the victim’s Hyundai, which contained the victim’s purse.[61] The Hyundai was recovered unlocked but the keys to the Hyundai and the victim’s purse, which had contained cash and keys to the Toyota, were never recovered.[62] In affirming the judgment, the Court of Appeals of Virginia found that the trial court ordered Fleisher “to pay restitution for a loss directly caused by the offense.”[63]The court explained that the new lock and key systems in both cars were not security upgrades, but rather “made the victim whole by returning her to [her] pre-crime status when she controlled access to her cars.”[64]

In Ellis v. Commonwealth, the Court of Appeals of Virginia reversed a trial court’s restitution award.[65] Ellis was initially charged with burglary, grand larceny, larceny of a firearm, and possession of a firearm by a convicted felon.[66] Ellis entered an Alford plea to receiving stolen property, which had been reduced from grand larceny, and the remaining charges were nolle prosquied.[67] The police had only recovered a $450 television from Ellis.[68] The court found the $1500 award improper because “Ellis’s conviction for receiving stolen property preclude[d] him from being deemed the thief,” and the only loss attributable to Ellis was valued  at  $450,  the  value  of  the  property  he  was  convicted of receiving.[69]

H.  Victim Impact Evidence

In Baldwin v. Commonwealth, the Court of Appeals of Virginia affirmed a trial court’s admission at sentencing of victim impact testimony referencing the defendant’s prior criminal offenses.[70] In 2012, Baldwin was sentenced to five years, with four years suspended, for making a written threat to kill his victim, M.T.; he later violated a protective order preventing him from being near her, and had his suspended sentence revoked.[71] Angry about his revocation, Baldwin wrote numerous new letters threatening to kill M.T., and pled guilty in 2016 to a new charge of making a written threat to kill M.T.[72] At his sentencing, M.T. testified regarding Baldwin’s criminal conduct toward her, past and present, explaining the impact of his threats at sentencing.[73] The court of appeals rejected Baldwin’s argument that M.T.’s testimony regarding his past crimes was inadmissible, holding that it was relevant to understanding the impact of his  present crime, and  that he had no right to sanitize the evidence of his “ongoing pattern of threatening and psychologically tormenting this particular victim.”[74]

I.   Batson Challenges

In Hamilton v. Commonwealth, the Court of Appeals of Virginia held that the trial court did not err in denying Hamilton’sBatson[75] motion.[76] At trial, Hamilton asserted that the prosecutor struck three jury pool members because they were black.[77] The court rejected Hamilton’s argument that the prosecutor’s reasoning for striking a juror for not answering any questions was pretextual, because Hamilton did not identify any non-African  American jurors who did not answer any questions.[78]

J.   Fourth Amendment Issues

In Curley v. Commonwealth, the Supreme Court of Virginia rejected the defendant’s challenge to the trial court’s denial of a suppression motion.[79] There, an officer conducted a lawful traffic stop and observed the defendant, the sole occupant of the vehicle, nervously hunched over a backpack, “shaking,” and “breathing heavily.”[80] The officer asked Curley to step out of the vehicle and obtained permission from him to search his person.[81] Officers found a digital scale with “white residue” that was “very consistent” with drug distribution based on the officers’ training, leading them to search his vehicle and find additional evidence.[82]

The supreme court found that the officers had probable cause to conduct a warrantless search of the vehicle.[83] The court held that Curley’s furtive movements, his overly nervous demeanor, and his possession of a digital scale provided sufficient justification for the vehicle’s search.[84]

In Collins v. Commonwealth, on remand from the Supreme Court of the United States, the Supreme Court of Virginia considered whether any exception to the Fourth Amendment’s warrant requirement, other than the automobile exception, justified a search of a motorcycle located within the curtilage of a residence.[85] The court found that the good-faith exception applied, noting that a reasonably well-trained officer at the time of the search could have believed that Scher v. United States[86]authorized his search of the motorcycle.[87] The court moreover held that “a considerable body of caselaw had developed that applied the automobile exception to driveways without considering whether, and if so where, the curtilage boundary might intersect with the driveway,” thereby supporting the search’s reasonableness.[88]

In Brown v. Commonwealth, the Court of Appeals of Virginia held that a trial court did not err by refusing to suppress evidence obtained by warrant, rejecting the appellant’s claim that the affidavit supporting the search warrant did not establish probable cause.[89] Brown was arrested while attempting to purchase more than five pounds of marijuana from his wife’s vehicle, with more than $5000 on his person.[90] Police applied for a warrant to search Brown’s home, representing that information from various sources (including the circumstances of Brown’s arrest) indicated that Brown was using his home as a base of operation for drug distribution activities.[91] A magistrate issued the warrant, and police found 394.55 grams of cocaine and roughly $4500 at Brown’s home.[92] Brown moved to suppress the fruits of the warrant, arguing that the information in the affidavit did not establish a nexus between Brown’s alleged activities and his home.[93] The court of appeals affirmed, finding that the affidavit established probable cause to support a search of Brown’s home.[94]

The Court of Appeals of Virginia reversed the trial court’s denial of a suppression motion on Fourth Amendment grounds in Carlson v. Commonwealth.[95] Uniformed police officers smelled marijuana in a trailer park and walked around individual trailers, sniffing at their doors and windows, until they isolated Carlson’s residence as the probable source of the odor.[96] A detective walked up to the main entrance of the residence, confirmed the odor emanating from the door, and obtained a warrant on the basis of his observations.[97] Carlson was arrested, and police discovered, among other things, a marijuana grow site, a large quantity of harvested marijuana, and a police scanner.[98] Carlson moved to suppress the fruits of the search, alleging that the detective’s presence on his property, and the resulting warrant, were the direct result of the uniformed officers’ illegal initial entry onto his property.[99] Carlson did not challenge the warrant.[100] The court of appeals found the search unlawful, holding that (1) the detective’s search was not an independent source since his presence was a direct result of the uniformed officers’ unlawful entry; (2) nothing occurred to remove the taint of the original illegality of the uniformed officers’ search; and (3) the record lacked any evidence justifying a finding of inevitable discovery.[101]

In Daniels v. Commonwealth, the Court of Appeals of Virginia affirmed the trial court’s denial of suppression motions.[102]Police investigating a heroin overdose found heroin packaged in wax paper bags stamped with the word “Miracle” in red ink.[103] After obtaining a search warrant, police found marijuana, a digital scale, and approximately $1000 in cash in Daniels’s residence.[104] Officers saw a bundle of wax paper bags with red stamps, bound together with a rubber band, in Daniels’s vehicle (which was not covered by the warrant); an investigator believed the bundle to contain heroin, and conducted a search which bore out his suspicion.[105] The court of appeals rejected Daniels’s arguments that (1) the affidavit supporting the search warrant was not filed with the circuit court by the issuing magistrate as required by Virginia Code section 19.2-54; and (2) the search of the vehicle was not a valid plain view search, finding instead that the “notice-based purpose of [section] 19.2-54 was achieved” by the officer’s filing of the affidavit with the circuit court and that the plain view exception supported the vehicle search because the officer had probable cause based on his training and experience.[106]

In Moore v. Commonwealth, Moore refused to comply with a traffic stop by continuing to drive, jumping out of the car while it was still in motion, causing the car to crash into two parked cars, and fleeing the scene.[107] Two officers pursued Moore on foot while a crowd gathered near the crash.[108] Moore had left the driver’s side door open, and a third officer found a firearm near the gas pedal in plain view.[109] He seized the firearm and placed it in his car for safekeeping.[110] The Court of Appeals of Virginia held that the seizure of the firearm did not violate Moore’s Fourth Amendment rights because exigent circumstances allowed the officer to seize the easily accessible firearm to protect officer safety and to protect the safety of officers and the gathered crowd.[111]

K.  Miranda Issues

In Secret v. Commonwealth, the Supreme Court of Virginia affirmed the appellant’s convictions of arson of an occupied dwelling and nine counts of attempted first-degree murder stemming from the appellant’s burning of the “main dormitory” of a communal living facility.[112] Secret argued that admission of evidence related to his confession violated Miranda v. Arizona,[113] as refined by Missouri v. Seibert[114] and Oregon v. Elstad,[115] and further that the evidence was insufficient to show he acted with a specific intent to commit murder.[116] Secret attempted to burn down the occupied building after being informed he was not welcome to remain in the community.[117] Secret confessed to starting the fire in an interview conducted without a Miranda warning, then continued providing inculpatory details after waiving his Miranda rights.[118]

The supreme court affirmed the trial court’s finding that police did not violate Seibert, based on (1) the investigator’s testimony that he did not administer Miranda warnings at first because he did not believe Secret to be in custody until Secret inculpated himself; (2) the lack of coercion in the pre-warning phase of the interview; and (3) the investigator’s unfamiliarity with the two-step interrogation technique.[119] The supreme court likewise rejected Secret’s Elstad-based attack, finding that the totality of the evidence demonstrated that Secret’s inculpatory statements were knowing and voluntary.[120] Finally, the court held that the evidence was sufficient to support the jury’s finding that Secret intended to kill the building’s occupants.[121]

In Tirado v. Commonwealth, the Supreme Court of Virginia considered whether an audiovisual recording of the defendant’s statements made to police officers through an interpreter was properly admitted into evidence, and whether the defendant’s waiver of rights under Miranda was knowingly and voluntarily made.[122] On appeal, Tirado asserted the evidence was insufficient to establish his waiver was knowing and voluntary because it was not in his native language, Mam, and his Spanish comprehension was limited.[123]

The supreme court held that there was an adequate foundation to admit the recording.[124] The supreme court found that the interrogator testified that the recording accurately depicted her interview and that, in and of itself, satisfied Supreme Court of Virginia Rule 2:901.[125] The court also found that Tirado’s waiver was voluntary because it was not the product of “intimidation, coercion, or deception.”[126] The supreme court focused on the fact that Tirado chose to communicate in Spanish, never spoke in Mam, said “Spanish ‘would be fine’” to discuss Miranda, chose to write an apology letter in Spanish, said he understood each Miranda right in Spanish after it was read in Spanish, and responded appropriately in Spanish to the officer’s questions.[127]

In Spinner v. Commonwealth, the Supreme Court of Virginia considered whether the trial court erred when it held that Spinner was effectively advised under Miranda.[128] Police officers approached Spinner in an open carport near a sidewalk the day after a murder to execute a search warrant to obtain a DNA sample.[129] An officer read Spinner his Miranda warnings and included, “And I always caveat that with: ‘If you’re charged with a crime.’ You can decide at any time to exercise any of these rights and stop answering questions.”[130] Later, after his arrest, Spinner was questioned after being read the same Miranda warnings and made incriminating statements.[131]

The supreme court affirmed Spinner’s convictions, holding that Spinner was not in custody the day after the murder, so Miranda warnings were not constitutionally required.[132] The court also held that the warnings read to Spinner on both days met the requirements under Miranda because “Miranda requires ‘only that the suspect be informed . . . that he has a right to an attorney before and during questioning and that an attorney would be appointed for him if he could not afford one.’”[133]

L.   Double Jeopardy

In Severance v. Commonwealth, the Supreme Court of Virginia affirmed Severance’s two convictions for capital murder.[134]Severance killed Ronald Kirby in 2013, then Ruthanne Lodato in 2014; he was convicted under Virginia Code section 18.2-31(8), which classifies the “killing of more than one person within a three-year period,” as capital murder, by killing Kirby within three years of killing Lodato, and by killing Lodato within three years of killing Kirby.[135] On appeal, Severance contended his two life sentences violated the multiple punishment prohibition under Blockburger v. United States.[136]

The supreme court affirmed Severance’s convictions, holding that Blockburger protections are limited to cases where “the same act or transaction constitutes a violation of two distinct statutory provisions.”[137] The court reasoned that the General Assembly set the appropriate unit of prosecution as one murder, and it did not set a temporal restriction on the second murder “within three years” as being before or after the murder that is the subject of a given charge; accordingly, Severance’s two punishments for two murders were permissible.[138]

II.   Criminal Law

A.  Assault and Battery

In Marshall v. Commonwealth, the Court of Appeals of Virginia examined whether all violations of Virginia Code section 18.2-57.2, assault and battery on a family or household member, must be disclosed on mandatory firearm purchase forms.[139] The trial court convicted Marshall of making a false statement on ATF Form 4473 in violation of section 18.2-308.2:2 when Marshall did not disclose that he had been convicted of a “misdemeanor crime of domestic violence,” despite his prior conviction for assault and battery against a family member.[140] The court of appeals found that any conviction under section 18.2-57.2 qualifies as a “misdemeanor crime of domestic violence,” and there was accordingly sufficient evidence to affirm Marshall’s conviction.[141] The court reasoned that domestic violence, as listed in the federal form in question, is defined by federal law, and a recent United States Supreme Court decision held that “the requirement of ‘physical force’ is satisfied . . . by ‘the degree of force that supports a common-law battery conviction.’”[142]

In Kelley v. Commonwealth, the defendant appealed his conviction for misdemeanor assault and battery in violation of Virginia Code section 18.2-57 to the Court of Appeals of Virginia. [143] Kelley contested whether there was sufficient evidence to prove that the appellant committed an assault and battery against his coworker in violation of section 18.2-57.[144] Although Kelley argued that the evidence did not show that he touched his victim or that he intended to do so in a rude manner, the factfinder found the victim’s testimony credible and found that Kelley attempted to kiss his co-worker when he knew she was uncomfortable and tried to pull away.[145] The court held that under the appropriate standard of review, the evidence was sufficient to uphold his conviction and rejected his argument that he had implied consent to touch his victim.[146] The court of appeals found that there was no legal basis to find that holding “the victim’s face against her will, while trying to kiss her, was justified or excused.”[147]

In Lewis v. Commonwealth, the Supreme Court of Virginia clarified the statutory requirements for a felony conviction of assault and battery against a family or household member under Virginia Code section 18.2-57.2(B).[148] Under this section, a defendant is guilty of a Class 6 felony if he or she commits two specified offenses within twenty years.[149] In Lewis, the court made clear that the statute did not require the defendant to have been convicted of the two predicate offenses at the time of this offense; instead,  the  defendant  must  have  been  convicted  as  of  the indictment.[150]

B.  Firearms

In Barney v. Commonwealth, Barney appealed her use of a firearm conviction to the Court of Appeals of Virginia, arguing that the evidence was insufficient and that the trial court erred when it instructed the jury on the definition of a firearm.[151] The court found that a rational trier of fact could have found that Barney had an actual firearm or possessed an object “that gave the appearance of being one” because Barney made statements and gestures to imply she had a firearm.[152] The court of appeals reversed Barney’s conviction and remanded because the jury instruction given did not require proof that Barney possessed either an actual firearm or an object that gave the appearance of an actual firearm.[153] Instead, the trial court incorrectly instructed the jury that it was not necessary for the Commonwealth to prove the item was a firearm so long as the victim reasonably perceived a threat or intimidation by a firearm.[154]

C.  Failure to Appear

In Chavez v. Commonwealth, the Court of Appeals of Virginia found that timely notice is not an element of felony failure to appear under the plain language of Virginia Code section 19.2-128.[155] The court explained that proof that a defendant failed to appear after receiving timely notice of his or her court date is simply one way to prove that the conduct was willful.[156] The court also found the evidence sufficient to sustain Chavez’s conviction because a reasonable factfinder could have determined that when his case was continued, the continuance date was clearly communicated to both Chavez and his attorney, who was present at the next court date.[157] Because there was a sufficient basis to show that Chavez received actual notice and notice through his attorney, the Commonwealth proved that his conduct was willful and the court upheld the conviction.[158]

D.  Property Crimes

In McGinnis v. Commonwealth, the Supreme Court of Virginia reviewed whether the evidence was sufficient to convict McGinnis of three counts of larceny by worthless check.[159] The supreme court held that “larceny by worthless check is not limited to checks passed as present consideration for goods and services” because the General Assembly’s 1978 amendment was intended to expand the reach of the statute to include the use of a worthless check in payment as present consideration for goods and services, rather than to limit its application.[160] The evidence was sufficient because McGinnis knew he did not have enough funds when he issued the checks in hopes of obtaining more credit for his failing business.[161]

In Pittman v. Commonwealth, the Court of Appeals of Virginia rejected the appellant’s arguments that the Commonwealth must prove (1) a fiduciary relationship between the defendant and victim; and (2) the victim’s personal ownership of the allegedly embezzled property.[162] The victim, an acquaintance of Pittman, allowed Pittman to borrow a rental car; Pittman ignored repeated requests that she return the car to the rental company, and the car was eventually towed to a body shop in New York with over $6600 of estimated damage.[163] The court of appeals found the evidence sufficient and reiterated that the Commonwealth need not prove a formal fiduciary relationship, but could rather show that the defendant was “entrusted with the property in question and that the defendant had the specific intent to deprive the rightful owner of said property.”[164] Moreover, the embezzlement statute reaches property “entrusted or delivered” to the defendant, and the car was “delivered” to Pittman regardless of whether it was also “entrusted.”[165] Because the evidence established that Pittman misappropriated the rental car with the requisite intent, the court affirmed Pittman’s conviction.[166]

E.  Forfeiture by Wrongdoing

In Cody v. Commonwealth, the Court of Appeals of Virginia considered whether the trial court violated Cody’s Sixth Amendment confrontation right when it granted the Commonwealth’s motion to admit out-of-court statements of the strangulation victim under the doctrine of forfeiture by wrongdoing.[167] The strangulation victim asserted her Fifth Amendment right against self-incrimination at trial, after Cody violated the protective order five times by calling the victim to ask her to drop the charges.[168]

The court of appeals held that the Confrontation Clause did not apply to the nontestimonial statements made to the 911 dispatcher and nurse, because their primary purpose was not for prosecution.[169] Although the statements made to the police were testimonial, the court found that the forfeiture by wrongdoing exception applied.[170] The court held that “the doctrine of forfeiture by wrongdoing properly applies where a defendant unlawfully contacts a witness with the successful intent to procure that witness’ unavailability, whether such unavailability is the witness’ physical absence from the court or through a witness’ refusal to testify by invoking the Fifth Amendment.”[171]

F.   Murder and Crimes of Violence

In Commonwealth v. Perkins, the Supreme Court of Virginia reversed the Court of Appeals of Virginia’s decision, which found insufficient evidence to support Perkins’s malicious wounding conviction.[172] Perkins hit the victim in the back of the head with a handgun while an accomplice punched the victim simultaneously.[173] The combined blows knocked the victim out and left him with multiple head injuries.[174] The supreme court held that the evidence supported the trial court’s determination that Perkins acted with malice, given Perkins’s unprovoked attack of the back of the defenseless victim’s head, and the fact that the force used was sufficient to render the victim unconscious and to inflict numerous injuries.[175]

In Jones v. Commonwealth, the Supreme Court of Virginia affirmed a conviction for shooting at an occupied vehicle where the appellant and his victim occupied the same vehicle.[176] Jones argued that the statute criminalizes “shooting into an occupied vehicle,” and that it was thus impossible to violate unless the defendant was located outside of the vehicle while shooting in its direction.[177] The court held that the plain language of the statute contains no such requirement, and that the location of the shooter is immaterial to the inquiry directed by the statute.[178]

G.  Driving-Related Crimes

In Chapman v. Commonwealth, the Supreme Court of Virginia summarily affirmed the Court of Appeals of Virginia’s earlier decision, which found no error in Chapman’s conviction of felony reckless driving.[179] Chapman was convicted under Virginia Code sections 46.2-852 and 46.2-868(B), the latter of which requires proof that “as the sole and proximate result of [the defendant’s] reckless driving, [the defendant] caused the death of another.”[180] The court of appeals had held that the victim-passenger’s failure to wear a seatbelt was not a proximate cause of his death, and that Chapman’s reckless driving was the “sole and proximate” cause of the victim’s death within the meaning of the statute.[181]

In Lambert v. Commonwealth, the Court of Appeals of Virginia considered whether the evidence was sufficient to support Lambert’s convictions of driving while intoxicated, in violation of Virginia Code section 18.2-266, and aggravated involuntary manslaughter, in violation of section 18.2-36.1.[182] Lambert was driving a pickup truck shortly after leaving a methadone clinic when he collided with a car driving in the other direction, resulting in the passenger’s death.[183] Forensic evidence showed Lambert was under the influence of methadone, alprazolam (Xanax), and nordiazepam.[184] Lambert claimed on appeal that the Commonwealth failed to prove that (1) the drugs in his blood were “self-administered,” relying on Jackson v. Commonwealth;[185] and (2) he had not consumed the drugs after the time of the accident.[186] The court found that Lambert’s admission that he had visited a methadone clinic shortly before the accident, after he initially denied taking any drugs before driving, entitled the factfinder to conclude that Lambert “had taken the drugs and initially lied about not consuming them to conceal his guilt.”[187]The court further found that circumstantial evidence excluded the possibility that Lambert ingested the drugs found in his blood after the time of the accident, since Lambert was not left unattended from shortly after the accident until his blood was drawn, and since his symptoms throughout that time corresponded with the depressant effects of the drugs in his system.[188]

H.  Probation Violations

In Green v. Commonwealth, the Court of Appeals of Virginia reviewed whether the circuit court had jurisdiction to revoke the appellant’s suspended sentence.[189] In 1993, Green pled guilty to felony arson and was sentenced to ten years of incarceration with nine years suspended in addition to a period of active supervised probation.[190] Green later moved to dismiss a show cause issued for conduct in 2015 on the grounds that his period of suspension had already expired, even though he was in custody for the majority of the time in question due to serving an active sentence for an unrelated crime until his release in 2014.[191]

The court of appeals reversed Green’s violation, finding that the period of suspension was not tolled by his incarceration.[192]The court additionally noted that even though the order provided that supervised probation would not commence until Green’s release from custody, there was no authority to revoke his suspended sentence because the period of probation cannot exceed the period of suspension.[193]

In Johnson v. Commonwealth, the Supreme Court of Virginia was asked to apply the tests outlined in Henderson v. Commonwealth[194] for the admissibility of hearsay in revocation proceedings.[195] The trial court admitted hearsay testimony from two young women who reported that Johnson, who was a sex offender, made inappropriate contact with them.[196] The defendant challenged the veracity of the girls’ allegations, asserting that his Confrontation Clause and Due Process rights were violated.[197]

The supreme court noted that defendants are generally entitled to cross-examine adverse witnesses at revocation proceedings unless there is good cause for not allowing confrontation.[198] Courts are to consider two overlapping tests in order to find the requisite good cause: a reliability test and a balancing test.[199] The supreme court held that the challenged statements were admissible in Johnson because there was sufficient corroboration—there were text messages to and from the defendant, Johnson worked where the girls indicated he did, and he matched their descriptions.[200]

I.   Perjury

In Gerald v. Commonwealth, the Supreme Court of Virginia determined that the evidence was sufficient to support the defendants’ perjury convictions and that Albemarle County Circuit Court was a proper venue.[201] At trial before the general district court, the Commonwealth proved that one co-defendant drove the vehicle when it got into an accident, and the other drove from the scene of the crime.[202] The Commonwealth also proved that shortly after the accident, they told a police officer that one had been driving on a suspended license.[203] However, under oath in their defense, both defendants testified that neither drove the car nor told the police officer that they had been driving or had suspended licenses.[204]

The court affirmed their convictions because

[i]n light of the detailed nature of the evidence of [the defendants’] driving with reference to the accident, it would be unreasonable to conclude that the Geralds’ denials of driving were in response to ambiguous questioning or an inquiry into their driving at a time or place other than what the Commonwealth actually sought to prove.[205]

The court also held that venue was proper because the City of Charlottesville and Albemarle County have joint jurisdiction over county property located within the City of Charlottesville, which is where the crime of perjury was committed.[206]

J.   Sex Offenders

In Turner v. Commonwealth, the Supreme Court of Virginia issued an order clarifying who must register as a sexually violent offender based on an out-of-state conviction.[207] Virginia Code section 9.1-902(F)(ii) classifies an individual as sexually violent for “any offense for which registration in a sex offender and crimes against minors registry is required under the laws of the jurisdiction where the offender was convicted.”[208] Despite Turner’s argument that the legislature did not intend to classify all out-of-state offenders as “violent,” the court found the statutory language clear and unambiguous.[209] The court affirmed his conviction and made clear that all persons convicted of such offenses out-of-state are properly classified as sexually violent within the meaning of the statute.[210]

K.  Sex Crimes

In Commonwealth v. Murgia, the Supreme Court of Virginia explained Virginia Code section 18.2‑374.3(D) requires the intent to use a communications device “for ‘the purpose of soliciting, with lascivious intent, any child [the defendant] knows or has reason to believe is at least’” fifteen, but less than eighteen, years old “‘to knowingly and intentionally’ commit one of the proscribed acts.”[211] The victim and her track coach, Murgia, communicated via text message on three different occasions.[212]During two of the texting conversations, the victim requested assistance from Murgia to improve her high jump, and Murgia responded with sexual references.[213] In the last conversation, Murgia texted her about a graphic dream he had involving her in great detail.[214] The supreme court found the evidence sufficient to show Murgia used a communications device for the purpose of soliciting the victim under those facts.[215]

In Hillman v. Commonwealth, the Court of Appeals of Virginia affirmed Hillman’s conviction for taking indecent liberties with a child.[216] Hillman, a twenty-two-year-old youth pastor, asked A.F., a fourteen-year-old youth group member, to send him a photo of her nude upper body via Snapchat, an “image messaging mobile phone application,” which automatically deletes messages shortly after they are viewed by the recipient.[217] A.F. sent Hillman the requested photo, and in return, Hillman sent A.F. photos of his erect penis via Snapchat.[218] The trial court admitted photographs taken from Hillman’s iPad of male genitalia after A.F. authenticated them as being “similar” to the photos she had received from Hillman via Snapchat.[219] Hillman challenged his indecent liberties conviction, arguing that the trial court abused its discretion by admitting the photographs, and that the evidence did not support a finding that he had exposed himself to A.F. (1) in her physical presence; and (2) contemporaneous (or “live and in real time”) with such physical presence.[220] The court rejected these arguments, finding that the law did not require either physical presence or a contemporaneous exposure, and held that any error in admitting the photos was harmless given A.F.’s testimony, Hillman’s confession, and the properly admitted text messages corroborating the Snapchat conversation.[221]

In Carr v. Commonwealth, Carr challenged the sufficiency of the evidence for his convictions of sex trafficking, conspiracy to commit trafficking, abduction, conspiracy to commit abduction, and the use of a firearm in the commission of an abduction.[222]The Court of Appeals of Virginia held that Carr was a principal in the second degree to abduction because the crime was complete when Carr and his co-conspirators forced the human trafficking victim to return under duress to the hotel.[223] Carr participated in abduction by confronting the victim and encouraging another co-conspirator to threaten her.[224] The court held that the evidence was sufficient to convict Carr of sex trafficking because he benefited from prostitution by knowingly staying in a room paid for by the proceeds of prostitution.[225]

Carr’s convictions for conspiracy to commit abduction and sex trafficking were affirmed because the evidence established that three men, including Carr, went to the hotel room armed with a handgun, confronted and castigated the victim, and forced her to return to the house.[226] The evidence also supported Carr’s conspiracy to commit sex trafficking conviction when he stayed with the group in the hotel room rented with the prostitution earnings, the men told her that “she couldn’t live for free,” the co-conspirators set up the prostitution advertisement, and Carr confronted the victim when she left prostitution and told a co-conspirator to threaten to pistol-whip her.[227] Finally, in affirming the use of a firearm in the commission of an abduction conviction, the court of appeals noted that “it is not necessary for a defendant to physically possess a firearm to be convicted . . . if the defendant was acting in concert with the gunman to commit the underlying felony.”[228]

In Cabral v. Commonwealth, the Court of Appeals of Virginia considered whether a Taser constituted a dangerous weapon under Virginia Code section 18.2-67.3.[229] Cabral used a Taser three times to attack and sexually assault a female jogger causing her injuries.[230] Relying on the plain language of the statute, the court of appeals held that the Taser was a dangerous weapon under the statute and rejected Cabral’s argument that the Commonwealth had to prove the Taser was a deadly weapon.[231]

L.   Felony Child Neglect and Endangerment

In Camp v. Commonwealth, the Court of Appeals of Virginia held that a mother’s decision to drive with her children in her vehicle while she had a blood alcohol content in excess of .25 was sufficient to support a finding that she had “committed a ‘willful act or omission in the care of [her children that] was so gross, wanton, and culpable as to show a reckless disregard for human life,’” supporting her convictions for felony child neglect under Virginia Code section 18.2-371.1(B).[232]

M.  Attempts

In Jones v. Commonwealth, the Court of Appeals of Virginia reversed an attempted robbery conviction for insufficient evidence.[233] Police observed an individual leave a car parked in a housing complex, and then observed two other men exit the car a few minutes later.[234] The individuals fled when the police identified themselves, but were ultimately apprehended.[235]Police recovered a ski mask in the car and another in a street Jones had traveled before being stopped.[236] Police also found a sawed-off shotgun where they saw Jones running.[237] Jones admitted going to the housing complex to make sure that the co-defendant “didn’t get hurt” while he “rob[bed] a known drug dealer.”[238]

The court found that the Commonwealth failed to prove an act in furtherance of criminal intent.[239] The Commonwealth must prove “a direct, but ineffectual, act to accomplish the crime.”[240] Such an act must reach “far enough toward the accomplishment of the desired result to amount to the commencement of the consummation,” or, in other words, an “action that begins (commences) the execution (consummation) of one or more elements of a crime but does not complete all of them.”[241]The court rejected the Commonwealth’s argument that any slight act done in furtherance of a defendant’s criminal intent would be sufficient.[242] The majority found that the overt act, however slight, must still implicate one or more elements of the offense in order to sustain an attempt conviction.[243]

N.  Evidence

In Melick v. Commonwealth, the Court of Appeals of Virginia delineated who may authenticate business records as a hearsay exception.[244] Melick argued that records stored on an online database were improperly admitted.[245] The court found that information stored by an entity other than the one which created it does not alter the “nature of the records.”[246] The character of the information does not change simply because the business records in question were uploaded onto a database, so the creator of the record could still authenticate it.[247] Although the record did not show precisely who uploaded the information or when, the court concluded that there was sufficient evidence that the information came from the clerk who conducted the transaction and there were guarantees of trustworthiness surrounding the information to satisfy the contemporaneousness requirement of the hearsay exception.[248] The court also explained that a custodian of records was not needed for authentication so long as the supporting witness was “qualified.”[249]

O.  Miscellaneous

In Brown v. Commonwealth, the Court of Appeals of Virginia reviewed a defendant’s convictions for use of a firearm, attempted murder, capital murder, and attempted capital murder.[250] Although Brown argued that the trial court erred in denying him access to preceding years’ grand jury lists, the court of appeals determined any error was harmless because a finding of guilt renders harmless any defect in the composition of a grand jury, absent structural constitutional errors.[251] The court explained that no authoritative tribunal has yet held that a defendant may make a Sixth Amendment fair-cross-section challenge against a state’s grand jury procedures, and he otherwise had no right to the information.[252] Moreover, Brown made no attempt to limit or tailor his request to his indictment year, given the valid privacy concerns at play.[253] As a result, given that Brown had no right to receive the information and the relevant issues at trial, the court reasoned that the trial court did not abuse its discretion in denying Brown’s motion.[254]

The court of appeals also affirmed the trial court’s denial of Brown’s motion to change venue, finding that the defendant did not overcome the presumption that he would receive a fair trial in the county he was tried in.[255] The trial court also did not err in denying Brown’s motion to strike prospective jurors for cause because any tentative opinions formed by the jurors were that the appellant shot the victim—which was not a fact in controversy.[256] The court additionally rejected Brown’s argument that the evidence was insufficient to determine that the appellant murdered his victim, a law enforcement officer, with the purpose of interfering with the performance of his official duties.[257] The court further found that there was no error in the denial of Brown’s proffered instruction on second-degree murder  because  “no  evidence . . . support[ed] a finding that appellant acted without willfulness, deliberation, or premeditation.”[258] The court also made clear that criminal discovery requires disclosure of volunteered statements or confessions made to law enforcement only in response to police questions, and not those to a police officer made in open court that the officer only happens to hear.[259]

P.   Affirmative Defenses

In Davis v. Commonwealth, the Court of Appeals of Virginia decided whether a juvenile and domestic relations judge’s statement could give rise to an affirmative defense of reasonable reliance.[260] Davis was the subject of a protective order, which he and his wife believed had been dismissed based on an order dismissing “all petitions.”[261] Later, Davis was stopped while transporting a firearm and was charged with possessing a firearm while subject to a protective order in violation of Virginia Code section 18.2-308.1:4(B).[262] The court reversed the trial court’s decision not to provide a reasonable reliance jury instruction, finding that judges qualify as government officials and have a “duty to interpret and apply the law and therefore their statements can implicate the reasonable reliance defense.”[263]

III.  Legislation

A.  Venue

The 2019 General Assembly expanded venue for the prosecution of certain credit card offenses in Virginia Code section 18.2-198.1 to include the jurisdiction where the cardholder victim resides.[264] The General Assembly also expanded venue for forgery prosecutions to include “any county or city . . . where an issuer, acquirer, or account holder sustained a financial loss.”[265]

The General Assembly additionally modified the transferability of juvenile delinquency cases to the juvenile’s home jurisdiction to allow courts to transfer cases after a finding of “facts sufficient” for a finding of delinquency.[266]

B.  Sex Offenses

The General Assembly passed legislation creating a Class 1 misdemeanor for a travel agent to knowingly promote travel services for the purposes of prostitution or certain sexually violent offenses.[267]

C.  Expungement

The 2019 General Assembly passed new legislation providing for automatic expungement when someone is absolutely pardoned for a crime that he or she has been found to be actually innocent of.[268] The Secretary of the Commonwealth is required to forward a copy of any such absolute pardon to the circuit court where the person was originally convicted.[269]

D.  Bail

The General Assembly passed a bill to address bail determinations on appeal.[270] If a higher court decides bail, the bail determination is to be remanded to the court in which the case is pending for any subsequent enforcement and modification.[271]The lower court, upon remand, may not modify the bail decision of the higher court absent a change in circumstances.[272]Further, if the matter is pending in a court not of record, bond modifications should first be heard in that court unless: (i) the bail decision is on appeal; (ii) the charge has been transferred to a circuit court; or (iii) such charge has been certified by a district court.[273]

E.  Grand Juries

The 2019 General Assembly made clear that any person granted permission to make notes or copy evidence in a multi-jurisdiction grand jury “shall maintain the secrecy of all information obtained” from it, except for necessary disclosures for use in a criminal investigation or proceeding.[274] Prosecutors must notify a defendant indicted by the multi-jurisdiction grand jury that it was used to obtain evidence.[275]

F.   Protective Orders

The 2019 General Assembly created an “acts of god” exception to the requirement that preliminary protective orders be heard within fifteen days of the issuance of the preliminary order, providing that the order shall remain in effect until another protective order is entered.[276] The General Assembly also created a requirement for courts to state the basis for the issuance of preliminary protective orders arising out of ex parte hearings in certain circumstances.[277]

G.  Homicide

The General Assembly created new legislation requiring that anyone who was an adult on their offense date who commits capital murder of a law enforcement officer or certain other public safety officials shall be sentenced to a mandatory minimum term of imprisonment for life.[278]

H.  Traffic Offenses and Driving Under the Influence

The 2019 General Assembly created another class of felony, a Class 6 felony, for when a defendant is guilty of maiming while driving under the influence, and it results in “serious bodily injury.”[279] The act provides that if the driver acts in a manner which is “so gross, wanton, and culpable as to show a reckless disregard for human life,” the individual is guilty even if he or she does not intentionally cause the injury.[280] Serious bodily injury is defined as “bodily injury that involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.”[281]

New legislation makes it unlawful to use a personal communications device when a driver holds such a device in his hand while driving in a highway work zone.[282] A new law also makes a driver’s failure to yield the closest lane to, or slow down for, a stationary vehicle on a shoulder either a traffic infraction or a criminal reckless driving offense.[283]

I.   Drug Offenses

The 2019 General Assembly repealed the requirement that an individual “substantially cooperate” in a criminal investigation in order to be eligible for the affirmative defense for possession crimes under Virginia Code section 18.2-251.03.[284]

The General Assembly also amended several laws governing the minimum age to purchase, possess, or sell tobacco products, nicotine vapor products, and alternative nicotine products, raising the minimum age from eighteen to twenty-one.[285] The amendments exempt active duty military personnel who are eighteen or older from the increased minimum age.[286]

J.   Drones

The 2019 General Assembly added a new subpart to the statute criminalizing drone trespass, making it a Class 1 misdemeanor to take off or land in violation of federal regulations.[287]

The General Assembly also amended the law governing when police officers must obtain a warrant to use a drone, allowing police to use drones without a warrant to (a) aerially survey the primary residence of the subject of an arrest warrant to formulate a plan to execute an existing arrest warrant or capias; or (b) locate a person sought for arrest when law enforcement remains in hot pursuit of the person following their flight.[288]

K.  Animal Cruelty and Related Legislation

The 2019 General Assembly passed several laws protecting animals. It expanded the Class 6 felony for animal abuse to include abuse of a companion animal when the animal is seriously injured but does not die.[289] Additionally, animal control officers are now allowed to confiscate any tethered cock or any other animal that they determine has been used in animal fighting.[290]

L.   Miscellaneous Crimes

The 2019 General Assembly created a misdemeanor for any person who, with the intent to defraud, intimidate, or harass, causes a telephone to ring and engages in conduct resulting in the display of false caller identification information.[291]

The General Assembly added health care workers to the class of victims outlined in Virginia Code section 18.2-60.[292] That section provides that where a person makes an oral threat to kill or cause bodily injury to both school employees and health care workers engaged in the course of their official duties, he or she is guilty of a Class 1 misdemeanor.[293]

The General Assembly also modified the definition of gambling outlined in section 18.2‑325.[294] Illegal gambling now includes betting or wagering of any “consideration” made in exchange for a “chance to win a prize, stake, or other consideration or thing of value” by operating a gambling device “regardless of whether the chance to win such prize, stake, or other consideration or thing of value may be offered in the absence of a purchase.”[295]

Under new legislation, it is a Class 1 misdemeanor to simulate a crime in public, with the intent to mislead police, causing someone who is unaware the crime is fake to call in a report to police.[296]

A new law specifies that failure to appear to court for a criminal offense is punishable under section 18.2-456 and is not punishable under section 16.1-69.24.[297]

M.  Sex Offenders and Registration

The 2019 General Assembly passed a statute prohibiting any person required to register on the Sex Offender and Crimes Against Minors Registry (or its federal equivalent) from operating a taxicab for the transportation of passengers for hire.[298]

 

The General Assembly also changed the timeframe for the re-registration of sex offenders, requiring offenders to re-register according to categories assigned by their birth month and last name.[299]

N.  Sex Crimes

Virginia Code section 18.2-386.2, criminalizing the dissemination of certain nude videos or pictures of another with the intent to coerce, harass, or intimidate, now includes people who modify photos  and  videos  with  the intent  to  depict  the  subject  of  the image.[300]

O.  Child Victims and Abuse

The legislature passed a law adding ministers, priests, rabbis, imam, and other clergy members to the list of people required to report suspected child abuse or neglect, unless the clergy member is required by the doctrine of the religious organization to keep that information confidential, or the information would be subject to certain evidentiary exemptions.[301]

The General Assembly also confirmed child victims of commercial sex trafficking or prostitution will be allowed to testify by a two-way, closed-circuit television.[302]

P.   Elder Abuse

The 2019 General Assembly clarified that the informed consent exemption to elder abuse requires that the incapacitated adult must have given the consent when the adult had capacity.[303]

Q.  Testing

Finally, the 2019 General Assembly created a tracking system for Physical Evidence Recovery Kits (“PERK”).[304] Health care providers are required to inform sexual assault victims of their unique identification numbers and to provide them with information regarding the system, which is otherwise confidential and not subject to disclosure under the Freedom of Information Act.[305]

 


*   Assistant Attorney General, Criminal Appeals Section, Office of the Attorney General, Commonwealth of Virginia. J.D., 2013, University of Richmond School of Law; B.A., 2009, University of Virginia.

  **     Assistant Attorney General, Criminal Appeals Section, Office of the Attorney General, Commonwealth of Virginia. J.D., 2015, Regent University School of Law; B.S., 2009, Central Christian College of Kansas.

***     Assistant Attorney General, Criminal Appeals Section, Office of the Attorney General, Commonwealth of Virginia. J.D., 2016, Washington & Lee University School of Law; B.A., 2013, University of Notre Dame.

        [1].    297 Va. 133, 135–36, 823 S.E.2d 243, 245–46 (2019).

        [2].    Id. at 136–37, 823 S.E.2d at 246.

        [3].    Id. at 140, 823 S.E.2d at 248.

        [4].    Id. at 140–41, 823 S.E.2d at 248.

        [5].    Id. at 141–42, 823 S.E.2d at 249.

        [6].    296 Va. 450, 459, 821 S.E.2d 543, 548 (2018).

        [7].    Id. at 458, 821 S.E.2d at 547–48.

        [8].    Id. at 458–59, 821 S.E.2d at 547–48.

        [9].    Id. at 462, 821 S.E.2d at 549.

      [10].    Id. at 462, 821 S.E.2d at 549.

      [11].    Id. at 463, 821 S.E.2d at 549.

      [12].    69 Va. App. 780, 780–81, 823 S.E.2d 43, 44 (2019) (en banc); Lienau v. Commonwealth, 69 Va. App.  254, 260, 818 S.E.2d 58, 60–61 (2018).

      [13].    Lienau, 69 Va. App. at 263, 268, 818 S.E.2d at 62, 64–65.

      [14].    Id. at 268–69, 818 S.E.2d at 65.

  [15].    I  d. at 269–70, 273, 275, 818 S.E.2d at 65, 67–68.

      [16].    296 Va. 387, 387, 821 S.E.2d 529, 530 (2018).

      [17].    Id. at 387, 821 S.E.2d at 530.

      [18].    Id. at 388, 821 S.E.2d at 530.

      [19].    Id. at 388–89, 821 S.E.2d at 530–31.

      [20].    Id. at 390, 821 S.E.2d at 531.

      [21].    Id. at 390, 821 S.E.2d at 531.

      [22].    See Merritt v. Commonwealth, 69 Va. App. 452, 459–61, 820 S.E.2d 379, 382–83 (2018) (citing Va. Sup. Ct. R. 5A:18 (Repl. Vol. 2019)).

      [23].    Id. at 461, 820 S.E.2d at 383.

      [24].    Id. at 455–56, 820 S.E.2d at 380–81 (citing Lawson v. Commonwealth, 38 Va. App. 93, 561 S.E.2d 775 (2002)).

      [25].    Id. at 456–57, 461, 820 S.E.2d at 381, 383.

      [26].    Id. at 461–62, 820 S.E.2d at 383–84.

      [27].    826 S.E.2d 883, 886, 888 (2019).

      [28].    Id. at 886.

      [29].    Id.

      [30].    Id. at 887.

      [31].    Id. at 887–88.

      [32].    69 Va. App. 89, 92, 815 S.E.2d 816, 817 (2018). The Court also considered whether Thomason’s sentencing was an abuse of discretion and held there was no abuse of discretion because the sentence was within the statutory limitations. Id. at 98–99, 815 S.E.2d at 820.

      [33].    Id. at 93, 815 S.E.2d at 817–18.

      [34].    Parris v. Commonwealth, 189 Va. 321, 52 S.E.2d 872 (1949).

      [35].    Thomason, 69 Va. App. at 96, 99, 815 S.E.2d at 819, 820–21.

      [36].    Id. at 96, 815 S.E.2d at 819 (discussing Williams v. Commonwealth, 59 Va. App. 238, 717 S.E.2d 837 (2011)).

      [37].    68 Va. App. 736, 740–41, 813 S.E.2d 552, 554 (2018).

      [38].    Id. at 738–39, 813 S.E.2d at 553–54.

      [39].    Id. at 741–45, 813 S.E.2d at 555–57.

      [40].    296 Va. 577, 580, 583, 586, 821 S.E.2d 921, 923–24, 926 (2018).

      [41].    Id. at 580, 821 S.E.2d at 923.

      [42].    Id. at 580, 821 S.E.2d at 923 (emphasis omitted).

      [43].    Id. at 580–81, 821 S.E.2d at 923.

      [44].    Id. at 583, 586–88, 821 S.E.2d at 924, 926–27. The court cautioned, however, that trial courts may consider a disclosure’s last-minute nature as an indication that it is not truthful or complete. Id. at 586–88, 821 S.E.2d at 926–27.

      [45].    297 Va. 100, 100–01, 823 S.E.2d 241, 241–42 (2019).

      [46].    Id. at 102, 823 S.E.2d at 243.

      [47].    Id. at 102–03, 823 S.E.2d at 243.

      [48].    Id. at 101–03, 823 S.E.2d at 242–43.

      [49].    Id. at 103, 823 S.E.2d at 243.

      [50].    Id. at 103, 823 S.E.2d at 243.

      [51].    296 Va. 309, 311–13, 318, 819 S.E.2d 652, 653, 656 (2018).

      [52].    Id. at 314–16, 819 S.E.2d at 654–55 (emphasis omitted).

      [53].    296 Va. 301, 303, 819 S.E.2d 437, 438 (2018).

      [54].    Id. at 306–07, 819 S.E.2d at 439–40.

      [55].    Id. at 307, 819 S.E.2d at 440.

      [56].    68 Va. App. 602, 604–05, 811 S.E.2d 861, 862–63.

      [57].    Id. at 607, 811 S.E.2d at 864.

      [58].    Id. at 608, 811 S.E.2d at 864.

      [59].    Id. at 609, 811 S.E.2d at 865.

      [60].    Id. at 609, 811 S.E.2d at 865.

      [61].    69 Va. App. 685, 687–88, 822 S.E.2d 679, 680–81 (2019).

      [62].    Id. at 687, 882 S.E.2d at 680–81.

      [63].    Id. at 690, 882 S.E.2d at 682.

      [64].    Id. at 691, 882 S.E.2d at 682–83.

      [65].    68 Va. App. 706, 708, 813 S.E.2d 16, 17 (2018).

      [66].    Id. at 708, 813 S.E.2d at 17.

      [67].    Id. at 708, 813 S.E.2d at 17.

      [68].    Id. at 709, 710 n.2, 813 S.E.2d at 18, 18 n.2.

      [69].    Id. at 715–16, 813 S.E.2d at 21.

      [70].    69 Va. App. 75, 78–79, 815 S.E.2d 809, 810–11 (2018).

      [71].    Id. at 78, 815 S.E.2d at 810.

      [72].    Id. at 79–80, 815 S.E.2d at 810–11.

      [73].    Id. at 80–81, 815 S.E.2d at 811–12.

      [74].    Id. at 84–89, 815 S.E.2d at 813–16.

      [75].    Batson v. Kentucky, 476 U.S. 79 (1986).

      [76].    69 Va. App. 176, 181, 197–98, 817 S.E.2d 343, 345–46, 354 (2018). The court also considered whether the evidence was sufficient to convict Hamilton of obstruction of justice and whether the trial court erred in issuing a jury instruction. The court held the evidence was sufficient and Hamilton invited error when he requested the jury instruction. Id. at 198, 817 S.E.2d at 354.

      [77].    Id. at 182, 817 S.E.2d at 346.

      [78].    Id. at 190, 817 S.E.2d at 350.

      [79].    295 Va. 616, 618, 816 S.E.2d 587, 588 (2018).

      [80].    Id. at 619, 816 S.E.2d at 588.

      [81].    Id. at 619, 816 S.E.2d at 588.

      [82].    Id. at 619–20, 816 S.E.2d at 588–89.

      [83].    Id. at 623, 816 S.E.2d at 591.

      [84].    Id. at 623, 816 S.E.2d at 590–91.

      [85].    297 Va. 207, 211, 824 S.E.2d 485, 487 (2019) (citing Collins v. Virginia, 138 S. Ct. 1663, 1668 (2018)).

      [86].    305 U.S. 251 (1938).

      [87].    Collins, 297 Va. at 219–20, 224–25, 824 S.E.2d at 491–92, 494–95.

      [88].    Id. at 225, 824 S.E.2d at 495.

      [89].    68 Va. App. 517, 520, 810 S.E.2d 905, 907 (2018).

      [90].    Id. at 521, 810 S.E.2d at 907.

      [91].    Id. at 520–22, 810 S.E.2d at 907–08.

      [92].    Id. at 520–21, 810 S.E.2d at 907.

      [93].    Id. at 520, 810 S.E.2d at 907.

      [94].    Id. at 528–29, 810 S.E.2d at 911. The court of appeals did not make a finding as to whether the good faith exception applied, which was the rationale used by the lower court. Id. at 528–29, 810 S.E.2d at 911.

      [95].    69 Va. App. 749, 753, 823 S.E.2d 28, 30–31 (2019).

      [96].    Id. at 754, 823 S.E.2d at 31.

      [97].    Id. at 754–55, 823 S.E.2d at 31.

      [98].    Id. at 755, 823 S.E.2d at 31.

      [99].    Id. at 755–56, 823 S.E.2d at 31–32.

    [100].    Id. at 755, 823 S.E.2d at 31–32.

    [101].    Id. at 760–65, 823 S.E.2d at 34–36. The court also held that the evidence presented at trial was sufficient to support Carlson’s conviction, and that he was thus entitled to remand for a new trial without the tainted evidence rather than a final judgment of acquittal. Id. at 765–67, 823 S.E.2d at 36–37.

    [102].    69 Va. App. 422, 437, 819 S.E.2d 870, 877 (2018).

    [103].    Id. at 426–27, 819 S.E.2d at 872.

    [104].    Id. at 427, 819 S.E.2d at 872.

    [105].    Id. at 427–28, 819 S.E.2d at 872–73.

    [106].    Id. at 431–36, 819 S.E.2d at 874–77.

    [107].    69 Va. App. 30, 34, 813 S.E.2d 916, 917–18 (2018).

    [108].    Id. at 34, 813 S.E.2d at 918.

    [109].    Id. at 34, 813 S.E.2d at 918.

    [110].    Id. at 35, 813 S.E.2d at 918.

    [111].    Id. at 42, 813 S.E.2d at 921–22.

    [112].    296 Va. 204, 208–09, 819 S.E.2d 234, 237 (2018).

    [113].    384 U.S. 436 (1966).

    [114].    542 U.S. 600 (2004).

    [115].    470 U.S. 298 (1985).

    [116].    Secret, 296 Va. at 208–09, 810 S.E.2d at 237.

    [117].    Id. at 209–12, 810 S.E.2d at 237–39.

    [118].    Id. at 212, 810 S.E.2d at 238–39.

    [119].    Id. at 224, 810 S.E.2d at 245–46.

    [120].    Id. at 225–27, 810 S.E.2d at 246–47.

    [121].    Id. at 227–31, 810 S.E.2d at 247–50.

    [122].    296 Va. 15, 18, 817 S.E.2d 309, 310–11 (2018).

    [123].    Id. at 20, 27, 817 S.E.2d at 312, 316.

    [124].    Id. at 27, 817 S.E.2d at 316.

    [125].    Id. at 27, 817 S.E.2d at 315.

    [126].    Id. at 28–30, 817 S.E.2d at 317.

    [127].    Id. at 29–30, 817 S.E.2d at 317.

    [128].    827 S.E.2d 772, 775 (2019).

    [129].    Id. at 774.

    [130].    Id.

    [131].    Id.

    [132].    Id. at 776.

    [133].    Id. at 777 (quoting Duckworth v. Eagan, 492 U.S. 195, 204 (1989)).

    [134].    295 Va. 564, 567, 816 S.E.2d 277, 278 (2018).

    [135].    Id. at 567–68, 816 S.E.2d at 278.

    [136].    284 U.S. 299, 304 (1932); Severance, 295 Va. at 568, 816 S.E.2d at 278–79.

    [137].    Severance, 295 Va. at 567, 570–71, 816 S.E.2d at 278, 280.

    [138].    Id. at 568, 576, 816 S.E.2d at 279, 283.

    [139].    69 Va. App. 648, 650, 822 S.E.2d 389, 391 (2019).

    [140].    Id. at 650–51, 822 S.E.2d at 391.

    [141].    Id. at 658, 822 S.E.2d at 394–95.

    [142].    Id. at 656–57, 822 S.E.2d at 393–94 (quoting United States v. Castleman, 572 U.S. 157, 168 (2014)).

    [143].    69 Va. App. 617, 621, 822 S.E.2d 375, 377 (2019).

    [144].    Id. at 621, 822 S.E.2d at 377.

    [145].    Id. at 623, 627, 822 S.E.2d at 378–80.

    [146].    Id. at 626, 631–32, 822 S.E.2d at 379–82.

    [147].    Id. at 631, 822 S.E.2d at 381.

    [148].    295 Va. 454, 458, 813 S.E.2d 732, 733 (2018).

    [149].    Va. Code Ann. § 18.2-57.2(B) (Repl. Vol. 2014).

    [150].    Lewis, 295 Va. at 461, 831 S.E.2d at 735.

    [151].    69 Va. App. 604, 606, 822 S.E.2d 368, 369 (2019).

    [152].    Id. at 613–15, 822 S.E.2d at 373–74.

    [153].    Id. at 613, 822 S.E.2d at 373.

    [154].    Id. at 613, 822 S.E.2d at 373.

    [155].    69 Va. App. 149, 156–57, 817 S.E.2d 330, 334 (2018).

    [156].    Id. at 159, 817 S.E.2d at 335 (relying on Thomas v. Commonwealth, 48 Va. App. 605, 609, 633 S.E.2d 229, 231 (2006); Edmonds v. Commonwealth, 43 Va. App. 197, 200, 597 S.E.2d 210, 211 (2004); Hunter v. Commonwealth, 15 Va. App. 717, 721–22, 427 S.E.2d 197, 200 (1993) (en banc)).

    [157].    Id. at 165–66, 817 S.E.2d at 338.

    [158].    Id. at 166, 817 S.E.2d at 338–39.

    [159].    296 Va. 489, 493–94, 821 S.E.2d 700, 702 (2018).

    [160].    Id. at 507, 821 S.E.2d at 709.

    [161].    Id. at 507–08, 821 S.E.2d at 709–10.

    [162].    69 Va. App. 632, 635–36, 638–39, 822 S.E.2d 382, 384–85 (2019).

    [163].    Id. at 633–34, 822 S.E.2d at 383.

    [164].    Id. at 635–36, 638, 822 S.E.2d at 384–85 (citing Rooney v. Commonwealth, 27 Va. App. 634, 644, 500 S.E.2d 830 (1998)).

    [165].    Id. at 636–37, 822 S.E.2d at 384–85 (emphasis omitted).

    [166].    Id. at 638, 822 S.E.2d at 385.

    [167].    68 Va. App. 638, 644, 812 S.E.2d 466, 469 (2018).

    [168].    Id. at 647–51, 812 S.E.2d at 470–72.

    [169].    Id. at 657–62, 812 S.E.2d at 475–78.

    [170].    Id. at 665–72, 812 S.E.2d at 479–83.

    [171].    Id. at 671, 812 S.E.2d at 482.

    [172].    295 Va. 323, 323, 812 S.E.2d 212, 214 (2018) (per curiam).

    [173].    Id. at 325, 812 S.E.2d at 215.

    [174].    Id. at 325, 812 S.E.2d at 215.

    [175].    Id. at 330–33, 812 S.E.2d at 218–19.

    [176].    296 Va. 412, 414, 821 S.E.2d 540, 541 (2018).

    [177].    Id. at 415, 821 S.E.2d at 542.

    [178].    Id. at 415–17, 821 S.E.2d at 542–43.

    [179].    296 Va. 386, 386, 820 S.E.2d 611, 611 (2018).

    [180].    Chapman v. Commonwealth, 68 Va. App. 131, 133–34, 804 S.E.2d 326, 327–38 (2017).

    [181].    Id. at 145, 804 S.E.2d at 333.

    [182].    70 Va. App. 54, 57, 824 S.E.2d 18, 20 (2019).

    [183].    Id. at 57–59, 824 S.E.2d at 20–21.

    [184].    Id. at 59, 824 S.E.2d at 21.

    [185].    274 Va. 630, 652 S.E.2d 111 (2007).

    [186].    Lambert, 70 Va. App. at 63, 65, 824 S.E.2d at 24.

    [187].    Id. at 64, 824 S.E.2d at 24.

    [188].    Id. at 65–67, 824 S.E.2d at 24. The court also rejected Lambert’s argument that the trial court erred by excluding impeachment evidence regarding a police witness’s unspecified criminal charge and suspension from the Virginia State Police (he was subsequently convicted of soliciting a prostitute and dismissed from the force), on the grounds that the proffered evidence was expressly prohibited by Virginia Supreme Court Rule 2:608(b). Id. at 60–62, 824 S.E.2d at 21–22.

    [189].    69 Va. App. 99, 101, 815 S.E.2d 821, 822 (2018).

    [190].    Id. at 102, 815 S.E.2d at 822.

    [191].    Id. at 101–02, 815 S.E.2d at 822.

    [192].    Id. at 104–05, 815 S.E.2d at 823.

    [193].    Id. at 104–05, 815 S.E.2d at 823.

    [194].    285 Va. 318, 327–28, 736 S.E.2d 901, 906 (2013).

    [195].    296 Va. 266, 270, 274, 819 S.E.2d 425, 427, 429 (2018).

    [196].    Id. at 269–70, 819 S.E.2d at 426–27.

    [197].    Id. at 270, 819 S.E.2d at 427.

    [198].    Id. at 275, 819 S.E.2d at 430 (citing Black v. Romano, 471 U.S. 606, 612 (1985)).

    [199].    Id. at 275–76, 819 S.E.2d at 430 (citing Henderson, 285 Va. at 327–28, 736 S.E.2d at 906).

    [200].    Id. at 279, 819 S.E.2d at 432.

    [201].    295 Va. 469, 486, 813 S.E.2d 722, 731–32 (2018).

    [202].    Id. at 480, 813 S.E.2d at 727.

    [203].    Id. at 480, 813 S.E.2d at 727–28.

    [204].    Id. at 480, 813 S.E.2d at 727–28.

    [205].    Id. at 481–82, 813 S.E.2d at 728.

    [206].    Id. at 483–85, 813 S.E.2d at 729–31.

    [207].    826 S.E.2d 307, 308 (2019).

    [208].    Va. Code Ann. § 9.1-902(F)(ii) (Cum. Supp. 2019).

    [209].    Turner, 826 S.E.2d at 309.

    [210].    Id. at 310.

    [211].    827 S.E.2d 377, 383 (2019) (quoting Va. Code Ann. § 18.2-374.3(D) (Repl. Vol. 2014)).

    [212].    Id. at 380.

    [213].    Id.

    [214].    Id. at 380–81.

    [215].    Id. at 384.

    [216].    68 Va. App. 585, 589, 811 S.E.2d 853, 855 (2018).

    [217].    Id. at 589–91 & 589 n.1, 811 S.E.2d at 855–56 & 855 n.1 (quoting State v. Bariteau, 884 N.W.2d 169, 172 n.1 (S.D. 2016)).

    [218].    Id. at 590, 811 S.E.2d at 856. Hillman and A.F. exchanged additional photos and videos showing both persons nude. Id. at 590, 811 S.E.2d at 856.

    [219].    Id. at 590–91, 811 S.E.2d at 856.

    [220].    Id. at 594, 600, 811 S.E.2d at 857, 861.

    [221].    Id. at 594–99, 601–02, 811 S.E.2d at 858–61.

    [222].    69 Va. App. 106, 110, 816 S.E.2d 591, 593–94 (2018).

    [223].    Id. at 115, 816 S.E.2d at 596.

    [224].    Id. at 114–15, 816 S.E.2d at 596.

    [225].    Id. at 117, 816 S.E.2d at 597.

    [226].    Id. at 117–19, 816 S.E.2d at 597–98.

    [227].    Id. at 119–20, 816 S.E.2d at 598.

    [228].    Id. at 120–21, 816 S.E.2d at 599.

    [229].    69 Va. App. 67, 69–70, 815 S.E.2d 805, 806 (2018).

    [230].    Id. at 69–70, 815 S.E.2d at 806.

    [231].    Id. at 72–74, 815 S.E.2d at 808–09.

    [232].    68 Va. App. 694, 701–02, 705­–06, 813 S.E.2d 10, 14, 16 (2018) (quoting Va. Code Ann. § 18.2-371.1(B)(1) (Cum. Supp. 2016)). The court distinguished Camp’s conduct from the result in Coomer v. Commonwealth, finding that while Coomer’s blood alcohol content level (between .09 and .11) did not support conviction standing alone, “[Camp’s] level of intoxication was more than three times the legal limit . . . and approximately two and a half times the level in Coomer” and therefore “sufficient to support [Camp]’s convictions.” Id. at 704–06, 813 S.E.2d at 15–16 (referencing Coomer v. Commonwealth, 67 Va. App. 537, 797 S.E.2d 787 (2017)).

    [233].    70 Va. App. 307, 334, 826 S.E.2d 908, 922 (2019) (en banc).

    [234].    Id. at 312, 826 S.E.2d at 911.

    [235].    Id. at 312, 826 S.E.2d at 911.

    [236].    Id. at 312–13, 826 S.E.2d at 911.

    [237].    Id. at 313, 826 S.E.2d at 911.

    [238].    Id. at 313, 826 S.E.2d at 911.

    [239].    Id. at 331, 826 S.E.2d at 920.

    [240].    Id. at 318, 826 S.E.2d at 914 (quoting Pitt v. Commonwealth, 260 Va. 692, 695, 539 S.E.2d 77, 79 (2000)).

    [241].    Id. at 319, 826 S.E.2d at 914 (quoting Jay v. Commonwealth, 275 Va. 510, 526, 659 S.E.2d 311, 320 (2008)).

    [242].    Id. at 325, 826 S.E.2d at 917.

    [243].    Id. at 326, 826 S.E.2d at 917–18. While the concurrence would also have found the evidence insufficient, it disagreed with the overt act definition provided by the majority, asserting it runs counter to Supreme Court of Virginia precedent. Id. at 335–36, 826 S.E.2d at 922–23.

    [244].    69 Va. App. 122, 135, 816 S.E.2d 599, 605 (2018). The Court also rejected Melick’s sufficiency argument, finding that the victim’s testimony that the stolen items were valued at more than $200 was sufficient. Id. at 147, 816 S.E.2d at 611.

    [245].    Id. at 133, 816 S.E.2d at 605.

    [246].    Id. at 135, 816 S.E.2d at 606.

    [247].    Id. at 135–36, 816 S.E.2d at 606.

    [248].    Id. at 137–39, 816 S.E.2d at 607.

    [249].    Id. at 141–42, 816 S.E.2d at 609.

    [250].    68 Va. App. 746, 757, 813 S.E.2d 557, 562 (2018).

    [251].    Id. at 770, 813 S.E.2d at 568.

    [252].    Id. at 774–75, 813 S.E.2d at 570–71.

    [253].    Id. at 775, 813 S.E.2d at 571.

    [254].    Id. at 776, 813 S.E.2d at 571.

    [255].    Id. at 776, 813 S.E.2d at 571.

    [256].    Id. at 783–86, 813 S.E.2d at 575–76.

    [257].    Id. at 786, 813 S.E.2d at 576.

    [258].    Id. at 789, 791, 813 S.E.2d at 578.

    [259].    Id. at 792–93, 813 S.E.2d at 579–80. The court also found there was no error in the trial court’s denial of Brown’s motion to set aside because the jury was entitled to disbelieve the defense’s expert testimony that he was legally insane at the time of the offense. Id. at 794–95, 813 S.E.2d at 580.

    [260].    68 Va. App. 725, 728, 813 S.E.2d 547, 548 (2018).

    [261].    Id. at 728–29, 813 S.E.2d at 548–49 (emphasis omitted).

    [262].    Id. at 728–29, 813 S.E.2d at 548–49.

    [263].    Id. at 733–34, 813 S.E.2d at 551.

    [264].    Act of Feb. 27, 2019, ch. 177, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 18.2-198.1 (Cum. Supp. 2019)). Previously, venue only lay where any act in furtherance of the crime occurred or where an issuer, acquirer, or an agent sustained a financial loss. Va. Code Ann. § 18.2-198.1 (Repl. Vol. 2017).

    [265].    Act of Feb. 19, 2019, ch. 46, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 19.2-245.1 (Cum. Supp. 2019)).

    [266].    Act of Mar. 5, 2019, ch. 235, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 16.1-243 (Cum. Supp. 2019)).

    [267].    Act of Mar. 18, 2019, ch. 458, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 18.2-348.1 (Cum. Supp. 2019)).

    [268].    Act of Feb. 27, 2019, ch. 181, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. §§ 2.2-402, 19.2-392.2 (Cum. Supp. 2019)). Previously, an individual had to petition for expungement. Va. Code Ann. § 2.2-402 (Repl. Vol. 2017); id. § 19.2-392.2 (Cum. Supp. 2016).

    [269].    Ch. 181, 2019 Va. Acts at __.

    [270].    Act of Mar. 19, 2019, ch. 616, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. §§ 19.2-124, -130, -132 (Cum. Supp. 2019)).

    [271].    Id. ch. 616, 2019 Va. Acts at __.

    [272].    Id. ch. 616, 2019 Va. Acts at __.

    [273].    Id. ch. 616, 2019 Va. Acts at __.

    [274].    Act of Mar. 18, 2019, ch. 522, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 19.2-215.9 (Cum. Supp. 2019)).

    [275].    Id. ch. 522, 2019 Va. Acts at __.

    [276].    Act of Mar. 5, 2019, ch. 197, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. §§ 16.1-253.1, 19.2-152.9 (Cum. Supp. 2019)).

    [277].    Act of Mar. 21, 2019, ch. 718, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. §§ 16.1-112, -253.1, -296, 19.2-152.9 (Cum. Supp. 2019)). If the petition is filed without an affidavit or a form completed by a law enforcement officer which includes the basis for the order, and is instead based upon sworn testimony, the order must state the basis on which it was entered, including a summary of the allegations made and the court’s findings. Id. ch. 718, 2019 Va. Acts at __. The bill further provides that an appeal of a permanent protective order must be docketed within two business days of receipt of such an appeal. Id. ch. 718, 2019 Va. Acts at __.

    [278].    Act of Mar. 21, 2019, ch. 717, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 18.2-31 (Cum. Supp. 2019)). This legislation modified the law following the Supreme Court of Virginia’s holding in Jones v. Commonwealth, which found that courts had the discretion to suspend any or all of the life sentence referenced in Virginia Code section 18.2-31. See 293 Va. 29, 795 S.E.2d 705 (2017).

    [279].    Act of Mar. 18, 2019, ch. 465, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. §§ 18.2-51.4 to -51.5 (Cum. Supp. 2019)).

    [280].    Id. ch. 465, 2019 Va. Acts at __.

    [281].    Id. ch. 465, 2019 Va. Acts at __.

    [282].    Act of Apr. 29, 2019, ch. 849, 2019 Va. Acts. __, __ (codified as amended at Va. Code Ann. § 46.2-1078.1 (Cum. Supp. 2019)).

    [283].    Act of Apr. 29, 2019, ch. 850, 2019 Va. Acts. __, __ (codified at Va. Code Ann. § 46.2-861.1 (Cum. Supp. 2019)).

    [284].    Act of Mar. 19, 2019, ch. 626, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 18.2-251.03 (Cum. Supp. 2019)). The statute provides an affirmative defense for individuals whose possession crimes were only discovered as a result of the individual seeking or obtaining emergency medical attention under certain conditions. Id. § 18.2-251.03 (Cum. Supp. 2019).

    [285].    Act of Feb. 21, 2019, ch. 90, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. §§ 18.2-246.8, -246.10, -371.2 (Cum. Supp. 2019)).

    [286].    Id. ch. 90, 2019 Va. Acts at __.

    [287].    Act of Mar. 19, 2019, ch. 612, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 18.2-121.3 (Cum. Supp. 2019)).

    [288].    Act of Mar. 22, 2019, ch. 781, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 19.2-60.1 (Cum. Supp. 2019)).

    [289].    Act. of Mar. 18, 2019, ch. 537, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 3.2-6570 (Cum. Supp. 2019)).

    [290].    Act. of Mar. 12, 2019, ch. 345, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 3.2-6571 (Cum. Supp. 2019)).

    [291].    Act of Mar. 18, 2019, ch. 476, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 18.2-429.1 (Cum. Supp. 2019)).

    [292].    Act of Mar. 18, 2019, ch. 506, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 18.2-6-60 (Cum. Supp. 2019)).

    [293].    Va. Code. Ann. § 18.2-6-60 (Cum. Supp. 2019).

    [294].    Act of Mar. 21, 2019, ch. 761, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 18.2-325) (Cum. Supp. 2019)).

    [295].    Id. ch. 761, 2019 Va. Acts at __.

    [296].    Act. of Mar. 18, 2019, ch. 471, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 18.2-461 (Cum. Supp. 2019)).

    [297].    Act. of Mar. 31, 2019, ch. 708, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. §§ 16.1-69.24, 18.2-456 (Cum. Supp. 2019)).

    [298].    Act of Mar. 18, 2019, ch. 480, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 46.2-2011.33 (Cum. Supp. 2019)).

    [299].    Act of Mar. 19, 2019, ch. 613, 2019 Va. Acts __, __ (codified at Va. Code Ann. § 9.1-904 (Cum. Supp. 2019)). Previously, offenders registered a specified number of days following their initial registration. Va. Code Ann. § 9.1-904 (2018). This is scheduled to go into effect on July 1, 2020. Ch. 613, 2019 Va. Acts at __.

    [300].    Act of Mar. 18, 2019, ch. 490, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 18.2-386.2 (Cum. Supp. 2019)).

    [301].    Act. of Mar. 18, 2019, ch. 414, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 63.2-1509 (Cum. Supp. 2019)).

    [302].    Act. of Feb. 22, 2019, ch. 146, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 18.2-67.9 (Cum. Supp. 2019)).

    [303].    Act. of Mar. 5, 2019, ch. 234, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 18.2-369 (Cum. Supp. 2019)).

    [304].    Act of Mar. 18, 2019, ch. 473, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 19.2-11.13 (Cum. Supp. 2019)).

[305].    Id. ch. 473, 2019 Va. Acts at __.


Corporate and Business Law

Corporate and Business Law

Laurence V. Parker Jr., Annual Survey of Virginia Law Corporate and Business Law, 54 U. Rich. L. Rev. 73 (2019).

Click here to download PDF.


Laurence V. Parker, Jr. *

Introduction

This year there were a number of significant legislative changes to the Virginia Stock Corporation Act (“VSCA”) and the Virginia Limited Liability Company Act. Part I discusses certain statutory changes related to Virginia Corporations. Part II summarizes the changes to VSCA, including changes related to ratification of defective corporate acts, appraisal rights in asset sale transactions, multiple changes related to interspecies transactions, improving and making the effect of merger, domestication, and conversion language more uniform, refining the process for abandoning fundamental transactions, regulating the second step merger following a tender offer, modifying the corporate opportunity doctrine, allowing for a court to remove directors, permitting officer reliance, revising provisions related to officer and director indemnification, simplifying the voting information required in documents filed with the State Corporation Commission (“SCC”), regulating the use of forum selection clauses in governance documents, modifying cumulative voting, and modifying shareholder information rights. Part III describes the Uniform Protected Series Act, which Virginia adopted this year as an amendment to its Limited Liability Company Act. Part IV reviews a Supreme Court of Virginia case addressing the statutory safe harbor permitting an asset sale without shareholder approval and the ability to amend that safe harbor.

 I. Certain Statutory Changes Related to Corporations

 A. Ratification

In 2014, Delaware added section 204 to the Delaware General Corporation Law, which permits a Delaware Corporation to ratify past actions that may not have been approved in the prescribed manner under the Delaware General Corporation Law or the corporation’s articles of incorporation or bylaws.[1] This year Virginia followed suit and adopted a provision similar to Delaware.

Virginia now has enabling language in VSCA that permits a corporation to ratify any defective corporate action, which includes, “(i) any corporate action purportedly taken that is, and at the time such corporate action was purportedly taken would have been, within the power of the corporation, but is void or voidable due to a failure of authorization, or (ii) an over-issuance of shares.”[2] Over-issuances include issuances in excess of the authorized number of shares, or shares of an unauthorized class.[3]In order to ratify a defective corporate action, the board must adopt a resolution stating:

  1.  The defective corporate action to be ratified and, if the defective corporate action involved the issuance of putative shares, the number and type of putative shares purportedly issued;
  2. The date of the defective corporate action;
  3. The nature of the failure of authorization with respect to the defective corporate action to be ratified; and
  4. That the board of directors approves the ratification of the defective corporate action.[4]

Ratifying defective corporate actions that would have otherwise required shareholder approval also requires shareholder approval under the new Article 1.1 of VSCA (the new Ratification Article).[5]

A defective corporate action that required a filing with the SCC, like an amendment to the articles, a merger, conversion, domestication or dissolution, may also be ratified, and a ratification statement may then be filed with the SCC indicating such action has been ratified.[6] A portion of the ratification statement filed with the SCC includes a description of what has happened, including: (1) the description of the defective corporate action; (2) the date of the defective corporate action; (3) how the authorization failed; and (4) “[a] statement that the defective corporate action was ratified in accordance with section 13.1-614.3. . . .”[7] The remainder of the ratification statement is more specific to the particular defective corporate action and requires specific information: (1) if there was a filing at the time of the defective corporate action and that filing does not need to be corrected; (2) if there was a filing at the time of the defective corporate action and that filing needs to be corrected; or (3) if there was not a filing at the time of the defective corporate action.[8] Where a correction to a prior filing is needed or where no filing was previously made, the filing must include “a statement that a filing containing all of the information required to be included under the applicable section or sections of [VSCA] to give effect  to  such  defective  corporate  action  is  attached  as  an  exhibit . . . .”[9]

How the SCC interprets this somewhat vague language when accepting ratification statement filings will be interesting to see. For example, in the case of a merger, does this just require articles and a plan of merger, i.e., the documents necessary to be filed to bring about the defective corporate action, or does it also require the long form merger agreement, the board resolution, and the shareholder resolution needed to approve the merger originally, along with those needed to ratify it, i.e., the other documents arguably needed to give effect to the defective corporate action?

 B. Appraisal Rights Following Sale of Substantially All Assets

This year Virginia significantly narrowed the availability of appraisal rights following a sale of all, or substantially all, assets. Previously, appraisal rights were available in a sale of substantially all assets if the proceeds, less reasonable reserves, were not entirely distributed to the shareholders pro rata in accordance with their shares within one year.[10] Now, appraisal rights are only available if a corporation consummates a sale of substantially all assets and that transaction is an interested transaction.[11] In this case an “interested transaction” is a sale of all or substantially all assets with an “interested person.”[12] For purposes of appraisal rights, “interested person” means a person who, except in the case of a tender offer within the last year, holds twenty percent of the voting power, has the power to elect more than twenty-five percent of the directors of the corporation, or is a senior executive officer or director receiving a benefit not generally available to shareholders (excluding certain employment and/or retirement benefits put in place  separate  from  the  transaction,  similar  to  what  the  officer had  in  place  before  the  transaction  or  board  position  with  the acquirer).[13]

 C. Interest Holder Liability, Amendments, Mergers, Domestications, and Conversions with Eligible Entities

Significant changes were made throughout VSCA to define the parameters of a Virginia corporation’s ability to engage in interspecies transactions, including amendments to articles of incorporation, mergers, conversions, and domestications. The “eligible entities” that may be parties to these transactions, such as domestic or foreign corporations, nonstock corporations, partnerships, limited liability companies, limited partnerships, or business trusts have not changed,[14] but language was added throughout VSCA to address issues that may arise in connection with these interspecies transactions.

An amendment to a corporation’s articles of incorporation can include “new interest holder liability,” a partnership-like concept where liability is imposed on a shareholder by virtue of the amendment, but only if each shareholder signs a written consent to become subject to the new interest holder liability.[15] This new interest holder liability only applies with respect to liabilities that arise after the date of the amendment, and an amendment does not discharge any prior interest holder liabilities.[16]

New sections 13.1-718(I), 13.1-722.3(7), and 13.1-722.11(B) deal with new interest holder liability incurred in a merger, domestication, or conversion similar to the way the amendment provisions deal with this issue.[17] Each shareholder who becomes bound by a new interest holder liability by virtue of a merger, domestication, or conversion, must sign a written consent to be bound by that new interest holder liability.[18] New sections 13.1-721(C), 13.1-722.7:1(C), and 13.1-722.13(C) to (D), also clarify that following a merger, domestication, or conversion, new interest holder liability only applies with respect to liabilities that arise after the date of the transaction, and a transaction does not discharge any prior interest holder liabilities.[19]

 D. Effect of Merger, Domestication, and Conversion

Significant changes were made to VSCA’s language regarding the effect of merger. Notably, with regard to assignment of contracts, the language arguably forbidding a transfer of a contract by merger where the “assignment would violate a contractual prohibition on assignment by operation of law” was deleted, and language was added clarifying that a merger is not a transfer.[20]Now section 13.1-721(A)(3) reads: “[a]ll property owned by, and every contract right possessed by, each domestic or foreign corporation or eligible entity that merges into the survivor is vested in the survivor without transfer, reversion, or impairment.”[21] Similarly, language was added making clear that  the survivor retains all rights previously held, and all other rights, privileges, franchises, and immunities held by the merging corporations become rights, privileges, franchises, and immunities of the survivor.[22] This change may be an attempt to further clarify that a merger does not bring about a transfer by operation of law and the General Assembly’s intent to overturn caselaw that suggested that certain government-issued franchises may not transfer via merger.[23]

A new section addressing the effect of a domestication and the revisions to the effect-of-conversion statute are largely identical to section 13.1-721(A)(3), except the word “transfer” is strangely omitted from the effect-of-conversion statute.[24]

 E. Abandonment of Fundamental Transactions

Virginia modified VSCA provisions regarding abandonment of a merger before the effective time designated in the certificate of merger,[25] and adopted similar abandonment provisions with respect to amendments to articles of incorporation,[26] the plan of domestication,[27] and the plan of conversion.[28] A merger can be abandoned before the effective time designated in the certificate of merger if a statement signed by all parties is filed prior to the effective time.[29] This statement must include the name of the corporation, the date of the original filing, the original requested effective date, and a statement that the transaction is being abandoned.[30] A similar filing can be made to abandon amendments to articles of incorporation, conversions, or domestications.[31]

 F. Merger Following a Tender Offer

Virginia rewrote VSCA section 13.1-718(G), which had permitted a merger without a shareholder vote following a tender offer.[32] The target corporation no longer has to be a public corporation, at least under VSCA.[33] Several of the previous conditions to not holding a shareholder vote to consummate a merger following a tender offer were rewritten so a purchaser may tender to purchase all shares (other than those held by the purchaser, its parent, subsidiaries, or by the target corporation, which do not need either to be purchased or to receive merger consideration), and if: (1) it acquires enough shares (including those it or its parent or subsidiaries previously held) to approve a merger; (2) the merger offers the same consideration as is offered in the tender offer; and (3) the merger will be consummated promptly following the offeror’s acquisition of a sufficient number of shares via the tender offer.[34] Two new conditions were added: (1) the offer must be held open for ten business days; and (2) the offeror must purchase all tendered shares that are not withdrawn.[35]

 G. Limitations on the Corporate Opportunity Doctrine

Virginia added express enabling language to VSCA that permits a corporation, in its articles of incorporation, to eliminate the duty of a director, or any other person, to present business opportunities to the corporation.[36] For these concepts to apply to officers, the board must approve its application to the specific officer, and the board may  limit  the  application  of  the  provision  to  one  or  more officers.[37]

 H. Court Removal of Directors

Virginia added section 13.1-681.1 to VSCA, which allows a corporation or shareholders in a derivative proceeding to seek the removal of a director if the court finds that:

(i) the director engaged in fraudulent conduct with respect to the corporation or its shareholders, grossly abused the position of director, or intentionally inflicted harm on the corporation and (ii) considering the director’s course of conduct and the inadequacy of other available remedies, removal would be in the best interest of the corporation.[38]

 I. Officer Reliance

Section 13.1-694(B) was added to VSCA to allow officers the ability to rely on others in a similar, but not identical, fashion to the way directors may rely on others under section 13.1-690.B.[39] Officers, but not directors, may rely on responsibilities properly delegated to or information, opinions, reports, or statements made by one or more employees “whom the officer believes in good faith to be reliable and competent” in performing the responsibilities delegated or providing the applicable information, opinions, reports, or statements.[40] Like a director, an officer may rely on information, opinions, reports, or statements from legal counsel, public accountants, or other persons retained by the corporation.[41] However, the officer may only do so if he believes in good faith that the matters are within the person’s professional or expert competence, similar to those directors or those to which the particular person merits confidence, which is different from the director’s standard.[42]

 J. Director and Officer Indemnification

While it was previously clear that for a Virginia corporation, an amendment to its articles of incorporation or bylaws could not alter the corporation’s obligation to indemnify for matters arising prior to the amendment, revisions to VSCA this year made it clear that board or shareholder resolutions also cannot alter the corporation’s obligation to indemnify for matters arising prior to the adoption of those resolutions.[43] In addition, subsection E was added to regulate the indemnification obligations of the survivor of a merger with respect to officers and directors of the non-surviving entity: namely, unless expressly provided otherwise, the survivor is obligated to indemnify the nonsurviving entity’s officers and directors as provided in the nonsurviving entity’s articles of incorporation and bylaws  and not  under  the  survivor’s  articles  of  incorporation  and bylaws.[44]

 K. Voting Information in Filed Documents

Virginia revised provisions of VSCA to simplify and harmonize how shareholder approvals are described in various documents filed with the SCC, including amendments to articles of incorporation, amended and restated articles of incorporation, articles of merger, articles of domestication, articles of conversion, or articles of dissolution.[45] In all instances, filings now require a simple statement that the shareholders approved the action either by unanimous consent or in the manner required by the applicable article, versus the previous requirement, in some instances, to list the total number of shares entitled to be cast by each voting group and either the total votes cast for the transaction by each voting group, or a statement that the votes cast in favor by each voting group were sufficient for approval by that voting group.[46]

 L. Forum Selection

Virginia expanded, or at least clarified, the scope of claims that can be covered in a forum selection bylaw to include all claims that may be brought under the “internal affairs doctrine”; all claims that may be brought under VSCA; a corporation’s articles or bylaws, not just those against the corporation or current or former directors or officers; and claims brought by shareholders regarding any breach of duty.[47] The language also clarified that a bylaw may not confer jurisdiction on any court that did not already have jurisdiction over such claim. So, for example, a forum selection clause requiring all claims to be adjudicated in federal district court, would not always be enforceable as written.[48] If a bylaw provides jurisdiction in a Virginia court that does not have personal or subject matter jurisdiction, the claim may be brought in another court in the Commonwealth that does have personal and subject matter jurisdiction, even if not specified in the bylaw.[49] Finally, a provision in the articles of incorporation or bylaws cannot prohibit an internal corporate claim from being brought in Virginia courts or mandate that such a claim be determined by arbitration.[50]

 M. Cumulative Voting

Cumulative voting for directors, even if authorized by the articles of incorporation or bylaws, is not permitted unless the meeting notice or proxy statement accompanying the notice states conspicuously that cumulative voting will be permitted.[51]

 N. Shareholder Information Rights and Confidentiality Obligations

Virginia corporations may impose reasonable restrictions on the confidentiality, use, or distribution of the subset of records that a shareholder is entitled to receive only if he or she (1) has been a shareholder for more than six months or owns more than five percent of the outstanding shares, (2) makes a demand in good faith and for a proper purpose, and (3) in the demand describes the requested documents with reasonable particularity.[52] Similarly, a Virginia court can impose reasonable restrictions on the confidentiality, use, or distribution of the same category of records.[53] Finally, a court may order that a corporation pay a shareholder’s attorneys fees and other expenses if it determines the corporation imposed unreasonable restrictions on the confidentiality, use, or distribution of demanded records, or refused inspection without a reasonable basis.[54]

 II. Certain Statutory Changes Related to Limited Liability Companies

 A. Series LLCs

In the 2019 General Assembly session, Virginia adopted its version of the Uniform Protected Series Act (the “Series LLC Act”).[55] Most laws passed in the 2019 General Assembly session became effective July 1, 2019; however, the Series LLC Act will not become effective until July 1, 2020.[56] The delayed effective date is likely to give practitioners more time to understand the Series LLC Act and to give the SCC more time to study how it will accept filings under the Series LLC Act. The Series LLC Act roughly tracks the organization of the Uniform Protected Series Act:

  • Sections 13.1-1088 to -1094 correspond to Article 1 of the Uniform Protected Series Act (including Definitions, Nature, Powers, Duration, and Governing Law);
  • Sections 13.1-1095 to -1099 correspond to Article 2 of the Uniform Protected Series Act (Protected Series Designation and Amendment, Name, Registered Office and Registered Agent, Service of Process, Notice or Demand, and Effectiveness of Notice);
  • Sections 13.1-1099.2 to -1099.6 correspond to Article 3 of the Uniform Protected Series Act;
  • Sections 13.1-1099.7 to -1099.10 correspond to Article 4 of the Uniform Protected Series Act;
  • Sections 13.1-1099.11 to -1099.13 correspond to Article 5 of the Uniform Protected Series Act;
  • Sections 13.1-1099.14 to -1099.20 correspond to Article 6 of the Uniform Protected Series Act;
  • Sections 13.1-1099.21 to -1099.24 correspond to Article 7 of the Uniform Protected Series Act; and
  • Sections 13.1-1099.25 to -1099.27 correspond to Article 8 of the Uniform Protected Series Act.[57]

By rough analogy, a “Series LLC” is a Virginia limited liability company that as a parent entity (a Series Limited Liability Company under the Series LLC Act)[58] can form subsidiary limited liability companies (“Protected Series” under the Series LLC Act)[59] that are treated as separate entities for purposes of liability and the allocation of economic rights but that are treated as part of the parent for other purposes (like annual state filing fees).[60] A Series LLC can house multiple Protected Series within one entity that for state law purposes at least are very similar to separate subsidiaries as it relates to liability.[61] The members of the Series LLC can own differing percentages of each Protected Series, and each Protected Series is a separate tax partnership.[62] The advantages of forming a Series LLC over an actual subsidiary LLC are the lack of a separate entity fee and filing requirements for each Protected Series and more flexibility as to some of the limited liability company formalities associated with managing separate entities. The disadvantages include the complexity and uncertainty as to the tax treatment of Series LLCs and their Protected Series, very specific asset-based record keeping requirements,[63] the inability to sell a Protected Series, the inability to merge into another entity, and the inability to engage in any transaction where the result is separation from its parent Series LLC (except a merger with a second Series LLC where the second Series LLC is the survivor).[64]

It is important to note that the National Conference of Commissions on Uniform State Laws designed the Uniform Protected Series Act to function in concert with the applicable state’s Limited Liability Company Act, so for key provisions it “extrapolates” from the underlying Limited Liability Company Act.[65] In other words, the Uniform Protected Series Act draws analogies to the Limited Liability Company Act so, for example, a Protected Series is treated as if it were a separate limited liability company.[66]Since a Series LLC is an entirely new form of business entity and has the potential to be much more complicated than other entity forms, some of the more routine provisions of the Series LLC Act, like the definitions, the nature of a protected series, the powers and duration of a protected series, and the governing law, are more important than usual.

  1. Definitions, Nature, Powers, Duration, Governing Law, Non-Waivable Provisions of the Operating Agreement, and Limitations on the Operating Agreement

Key definitions include “associated asset,” “associated member,” “non-associated asset,” “protected series,” “series limited liability company,” and “protected series membership interest.” An “associated asset” is an asset that has been associated with a Protected Series by satisfying the record keeping requirements in section 13.1-1099.2 of the Series LLC Act.[67] This concept is key to protecting an asset from vertical creditors of the parent Series LLC or horizontal claims by creditors of other Protected Series LLCs parented by the same Series LLC.[68]

An “associated member” is a member of a Series LLC who has a protected series membership interest in a Protected Series.[69] This is one of the most important concepts in the Series LLC Act, allowing the members of the Series LLC to have varying economic rights in the Protected Series.[70] For example, a Series LLC may have varying ownership across the parent Series LLC and its subsidiary Protected Series similar to the table below:

 

Members Ownership In Series LLC Ownership

In Protected Series-1

Ownership

In Protected Series-2

Ownership In Protected Series-3
Member A 33.33% 20% 40% 0%
Member B 33.33% 40% 40% 50%
Member C 33.33% 40% 20% 50%

 

Importantly, you cannot have a member of a Protected Series who is not also a member of the parent Series LLC.[71] As you might expect, a nonassociated asset is an asset that is not associated with either the Series LLC or any Protected Series.[72] As discussed above, a “protected series” is a “person” in the legal sense “established under [section] 13.1-1095” of the Series LLC Act;[73] roughly similar to a subsidiary of its Series LLC parent. A Protected Series is separate from its Series LLC parent and has the capacity to contract in its own name, to sue and be sued in its own name, and the like.[74] In addition to personhood, the Protected Series has all other powers of a Virginia limited liability company, except that it ceases to exist when the parent Series LLC ceases to exist (so, except in the case of a merger, it cannot exist separate from its Series LLC parent), it cannot be a member of its own parent Series LLC, and it cannot establish its own subsidiary Protected Series.[75] Finally, “Series limited liability company” is a Virginia limited liability company with at least one protected series.[76] So, until a Series LLC forms at least one Protected Series, it is no different from any other Virginia limited liability company.

To give the greatest chance that the allocation of vertical liability between the Series LLC and its Protected Series and horizontal liability between the various Protected Series parented by a Series LLC are respected, the Series LLC Act is very specific about how the common law “internal affairs” doctrine should apply.[77] The Series LLC Act specifies that Virginia law governs the internal affairs of a Protected Series.[78] Since a Protected Series is a new concept, the Series LLC Act goes on to provide that its internal affairs include relations between a Series LLC and its various Protected Series; a Protected Series and its associated members; relations between the associated members of a Protected Series, relations among the Protected Series, its manager, its associated members, or associated member assignees (analogous to an assignee under section 13.1-1039(A)); the rights and duties of the manager of a Protected Series; governance of the Protected Series; and the process to become an associated member of a Protected Series.[79] Virginia law governs the relationship between a Series LLC and its Protected Series, its members, the members and managers of its Protected Series, assignees of the Series LLC and of the associated members of its Protected Series.[80] Virginia law governs the liability of a manager, protected series manager, member, associated member, assignee, associated member assignee, or a Protected Series, in such capacities, for any debt or liability of another Protected Series.[81] Virginia law governs the liability of a Series LLC for its Protected Series solely because its Protected Series was formed or modified, by acting as its manager, having a Protected Series act as its manager or owning an interest in a Protected Series.[82] Finally, Virginia law governs the liability of a Protected Series arising from the Protected Series being a Protected Series of its parent Series LLC, acting as a manager of its Series LLC or any other Protected Series, being owned by its Series LLC.[83] The governing law provisions are reinforced by section 13.1-1092, which provides that the Series LLC’s operating agreement governs the internal affairs of the Series LLC and its Protected Series.[84]

Unlike in a typical limited liability company, where the freedom of contract reigns,[85] a Series LLC’s operating agreement is subject to very specific nonwaivable provisions of the Series LLC Act. According to the Series LLC Act:

A. An operating agreement shall not vary the effect of:

  1. Section 13.1-1093 (listing non-waivable provisions);
  2. Section 13.1-1089 (nature of protected series);
  3. Subsection A of § 13.1-1090 (powers and duration of protected series);
  4. Subsection B of § 13.1-1090 to provide a protected series a power in addition to the powers provided to a limited liability company under the other articles of this chapter;
  5. The limitations stated in subsection C or D of § 13.1-1090;
  6. Section 13.1-1091 (governing law);
  7. Section 13.1-1092 (relation of operating agreement, this article, and the other articles of this chapter);
  8. Section 13.1-1094 (rules for applying other articles of this chapter to specified provisions of this article);
  9. Section 13.1-1095 (protected series designation; amendment), except to vary the manner in which a limited liability company approves establishing a protected series;
  10. Section 13.1-1096 (name);
  11. Section 13.1-1099.2 (associated assets);
  12. Section 13.1-1099.3 (associated members);
  13. Subsection A or B of § 13.1-1099.4 (protected series membership interests);
  14. Subsection C, F, or G of § 13.1-1099.5 (management);
  15. Section 13.1-1099.7 (limitations on liability), except to decrease or eliminate a limitation of liability stated in § 13.1-1099.7;
  16. Section 13.1-1099.8 (claim seeking to disregard limitation of liability);
  17. Section 13.1-1099.9 (remedies of judgment creditor of associated member or protected series assignee);
  18. Section 13.1-1099.10 (enforcement of claim against non-associated asset);
  19. Subdivisions 1, 4, and 5 of § 13.1-1099.11 (events causing the dissolution of protected series);
  20. Section 13.1-1099.12 (winding up dissolved protected series; cancellation), except to designate a different person to manage winding up;
  21. Section 13.1-1099.13 (waiver of cancellation upon dissolution; reinstatement of series limited liability company);
  22. Sections 13.1-1099.14 through 13.1-1099.20 (merger);
  23. Sections 13.1-1099.21, 13.1-1099.22, and 13.1-1099.23 (foreign series LLCs);
  24. Sections 13.1-1099.25 (uniformity and construction) and 13.1-1099.26 (effect on certain actions); or
  25. A provision of this article pertaining to:

a. A registered office or registered agent; or

b. The Commission, including provisions pertaining to records authorized or required to be delivered to the Commission for filing under this article or chapter.

B. An operating agreement shall not unreasonably restrict the duties and rights under § 13.1-1099.6 but may impose reasonable restrictions on the availability and use of information obtained under § 13.1-1099.6 and may provide appropriate remedies, including liquidated damages, for a breach of any reasonable restriction on use.[86]

 

These provisions are nonwaivable because a Series LLC, its powers, its governing law, the nature of its interests, and the vertical and horizontal liability protection under state law are all interdependent and permitting the modification of these provisions would, at best, incredibly complicate the interpretation of Series LLC operating agreements and, at worst, defeat the purpose of the Series LLC in the first place.

  1. Protected Series Designation and Amendment, Name, Registered Office and Registered Agent, Service of Process, Notice or Demand, and Effectiveness of Notice

Section 13.1-1095 of the Series LLC Act provides that any Virginia limited liability company may establish a Protected Series by unanimous consent of the Members;[87] however, the unanimous consent requirement can be modified by the Company’s operating agreement.[88] This section also addresses the filing requirements for the series designation and the way in which a series designation can be amended.[89] A series designation functions similarly to the articles of organization for an LLC on behalf of the Protected Series—it gives birth to the Protected Series, defines its name, and the principal office address.[90]However, the registered agent must be the registered agent for the parent Series LLC that formed the Protected Series.[91]

Any Protected Series must include specific identifiers in its name, either “protected series,” or the abbreviations “P.S.” or “PS.”[92] In addition, the Protected Series must include its parent Series LLC’s name in the Protected Series name.[93] So the naming convention could be as follows:

SERIES LLC NAME: Newco, LLC

PROTECTED SERIES NAME: Newco, LLC, PS 1

To keep service and notice simple, sections 13.1-1098 and -1099 provide that service upon or notice to the parent Series LLC or its registered agent                    is service or notice to each of its subsidiary Protected Series.[94] This was intended to avoid disputes about whether or not service on a Protected Series was effective.[95]

  1. Associated Assets, Associated Members, Protected Series Membership Interests, Management, and Rights of Person Not Associated Member of Protected Series to Information Concerning Protected Series

The associated assets and associated member provisions are the guts of the Protected Series LLC Act. The sections dealing with associated assets defines the universe of assets “owned” by a Protected Series and thus reachable by creditors of that Protected Series under state law.[96] This section also defines the universe of assets “owned” by a parent Series LLC and thus reachable by creditors of the Series LLC under state law.[97] For an asset to be an “associated asset” of a Protected Series, the Protected Series must: create and maintain records that identify the asset and distinguish it from other assets of the Protected Series, determine the parent Series LLC, or other Protected Series; determine when and from whom the Protected Series acquired the asset; and, if the asset came from the Series LLC or another Protected Series, determine the consideration paid.[98] Similar record keeping requirements apply to the parent Series LLC with regard to its associated assets.[99] The record keeping requirements are important because any asset that is not an associated asset becomes a non-associated asset, reachable by all creditors of either the Series LLC or its Protected Series, and the burden of proving an asset is an associated asset rests with the applicable Series LLC or Protected Series.[100]

The concept of “associated members” is similarly critical to a Protected Series. This concept allows a person, if a member of the parent Series LLC, to be associated with the subsidiary Protected Series as provided in the operating agreement of the Series LLC, or a procedure established by that document.[101] It also allows for differing percentages to be held in each subsidiary Protected Series, as described above.[102]

Section 13.1-1099.5 creates a management construct for a Protected Series. If there are no associated members, the parent Series LLC is the Protected Series’ manager. It also makes clear that the manager of a Protected Series only owes duties to that Protected Series and its associated members or their assignees.[103] In addition, this section deals with the voting and agency rights of associated members of a Protected Series—they are essentially the same as members of a typical limited liability company.[104]

Section 13.1-1099.6 deals with information rights for a Series LLC. A member of a Series LLC that is not an associated member of the Protected Series has the same information rights, with respect to that Protected Series, as a member of a typical LLC.[105] A former associated member of a Protected Series has the same information rights as a dissociated member of a typical LLC.[106] The personal representative of a deceased associated member of a Protected Series has the same rights as the personal representative of a deceased member of a typical LLC.[107] A manager of a Protected Series has the same information rights as a manager of a typical LLC.[108] However, these information rights can be modified, but only reasonably, by the operating agreement.[109]

  1. Limitations on Liability, Claim Seeking to Disregard Limitation on Liability, Remedies for Judgment Creditor of Associated Member or Protected Series Assignee, and Enforcement of Claim Against Non-Associated Asset

The provisions that describe limitations on liability create roughly the same liability construct as a parent LLC would have with regard to the subsidiary LLCs it forms.[110] The parent Series LLC, its members, its manager, the associated members, and Protected Series manager are not liable solely by virtue of their status for the obligations of its Protected Series.[111] Similarly, one Protected Series is not liable solely by virtue of its status for the obligations of another Protected Series parented by the same Series LLC.[112] However, one substantial difference between the series construct and actual parent and separate subsidiary LLCs is that subsidiary LLCs can avail themselves of bankruptcy protection separate from their parent LLCs while, because the Series LLC Act is an entirely new creature of state law, it is unclear whether a Protected Series can seek bankruptcy protection separate from its parent Series LLC.[113]

Because the Series LLC Act creates a unique entity form, it directly addresses piercing-the-veil-type claims. Section 13.1-1099.8 analogizes Protected Series to subsidiary LLCs and provides that a legal or equitable claim, like a piercing the veil claim against a Protected Series seeking recovery from its parent Series LLC, should be governed by the same principles as a similar claim by creditors of a subsidiary LLC seeking to recover from its parent LLC.[114]

Like a judgment creditor of a member of an LLC, a judgment creditor of an associated member of a Protected Series has only the rights of an assignee.[115] Similarly, a judgment creditor of a Series LLC that is an associated member of its Protected Series only has the rights of an assignee.[116]

Section 13.1-1099.10 reflects the desire to prevent the use of Series LLCs as a way to defraud creditors, and as such, includes the penalties for failing to keep good records identifying assets as “associated assets” of either a Series LLC or a particular Protected Series it parented.[117]  As mentioned above, any asset that is not documented as an “associated asset” becomes a “non-associated asset.”[118] Non-associated assets can be realized upon by the creditors of the parent Series LLC or any Protected Series.[119] Timing is important; an entity cannot simply document an asset as an associated asset after a claim is made or a judgment is entered.[120] On the contrary, any asset that is not an associated asset on the date a Series LLC or Protected Series incurred the applicable liability (presumably, the date the breach of contract, tort, or other claim giving rise to liability arose) or the date the applicable judgment is enforced is protected from enforcement by a creditor.[121] As mentioned above, the party seeking to claim an asset is an associated asset bears the burden of proof.[122]

  1. Events Causing Dissolution of Protected Series, Winding Up Dissolved Protected Series, Voluntary Cancellation, Waiver of Cancellation Upon Dissolution, and Reinstatement of Series Limited Liability Company

A Protected Series is dissolved if its parent Series LLC is dissolved, if any trigger provided in the Series LLC’s operating agreement occurs, if all members consent, if a court orders dissolution on application by an associated member or manager (same grounds are available to a member for an LLC), if a court orders dissolution on application by the Series LLC, if the Protected Series is engaged in illegal conduct, if a court orders dissolution on application by the Series LLC or a member of the Series LLC, or if the Protected Series or its parent Series LLC is automatically or involuntarily cancelled.[123] A Protected Series can voluntarily wind up its affairs or have a court-supervised wind up in the same way as an ordinary LLC.[124] Once its voluntary or court-supervised wind up is completed, a Protected Series files a statement of designation cancellation to terminate its existence.[125] A Protected Series that has dissolved can be reinstated in a similar way that a typical LLC can be reinstated.[126] However, it is important to note, unlike a typical LLC, a Protected Series cannot exist separate from its parent Series LLC; if the parent Series LLC terminates or dissolves, the Protected Series ceases to exist.[127]

  1. Entity Transactions and Merger

Unlike most other entities, a Protected Series cannot engage in most fundamental transactions. For example, a Protected Series may not be a party to a merger, convert to a different entity type, redomesticate, or engage in any similar transaction.[128] A Series LLC is also constrained from engaging in several fundamental transactions.[129] A Series LLC cannot convert to a different type of entity, redomesticate, or be a party to a merger with any form of entity other than a limited liability company.[130]

  1. Foreign Series LLCs

Sections 13.1-1099.21 to -1099.24 cover in detail how Virginia law will apply to Series LLCs formed in other states. In particular, Virginia will apply the laws of the state of formation to the internal affairs of a foreign Series LLC.[131] Virginia will require foreign Series LLCs and Protected Series transacting business in Virginia to register in the Commonwealth.[132]However, the activity of a particular Protected Series will not confer jurisdiction over or require the parent Series LLC or other Protected Series to register to do business in Virginia, and the activity of the parent Series LLC will not confer jurisdiction over or require its subsidiary Protected Series to register to do business in Virginia.[133]

III. Selected Case Affecting Corporate and Business Law

 A. May v. R.A. Yancey Lumber Corporation

In May v. R.A. Yancey Lumber Corp., the Supreme Court of Virginia addressed whether a corporation can modify the safe harbor in section 13.1-724(A) of VSCA in its bylaws.[134]

R.A. Yancey Lumber Corporation (“Yancy Lumber”) was a Virginia corporation that owned 2500 acres of real estate containing timber (the “Timber Business”) and a mill business that processed raw lumber into a finished product (the “Mill Business”).[135] In its bylaws, Yancy Lumber attempted to modify the safe harbor in section 13.1-724(A) of VSCA (italicized below):

A. A sale, lease, exchange or other disposition of the corporation’s assets, other than a disposition described in § 13.1-723, requires approval of the corporation’s shareholders if the disposition would leave the corporation without a significant continuing business activity. Unless the articles of incorporation or a shareholder-approved bylaw otherwise provide, if a corporation retains a business activity that represented at least 20 percent of total assets at the end of the most recently completed fiscal year, and 20 percent of either (i) income from continuing operations before taxes or (ii) revenues from continuing operations for that fiscal year, in each case of the corporation and any of its subsidiaries that are consolidated for purposes of federal income taxes, the corporation will conclusively be deemed to have retained a significant continuing business activity.[136]

This language is frequently referred to as the “safe harbor” language—if it fits within the safe harbor, the transaction does not require approval of shareholders holding two-thirds of the outstanding shares.[137] The board of Yancey Lumber included the following provision in its bylaws which was approved by shareholders holding a majority of the shares outstanding on December 16, 2015:

Notwithstanding anything herein or any non-mandatory provisions of the [Virginia Stock Corporation Act] to the contrary, either the Mill Business or the Timber Business alone, without the other or any other business activity, shall constitute a significant continuing business activity in the event such business is retained by the Corporation following the sale, lease, exchange or other disposition of the Corporation’s other assets if the fair market value of the retained business assets constitutes at least twenty-five percent (25%) of the fair market value of all of the Corporation’s assets in the aggregate prior to such sale, lease, exchange or other disposition, excluding for all purposes hereunder cash and cash equivalents. For purposes hereunder, the most recent assessed value for local tax purposes of real property owned by the Corporation shall be considered its fair market value, absent the existence of a fair market value determination by a qualified real estate appraiser made within one year prior to the relevant determination date, in which case the most recent of such determinations shall be used to establish fair market value. This Article XII is intended to operate in lieu of the definition of “significant continuing business activity” set forth in Section 13.1-724(A) of the Code of Virginia (which statutory definition is provided for use in the absence of a defined term in the applicable articles of incorporation or bylaws).[138]

Subsequently, the board recommended that the third sentence above be amended to read as follows:

For purposes hereunder, the most recent . . . gross land and improvement values determined by local tax authority for local . . . taxation of real property owned by the Corporation, irrespective of any land use deferral, shall be considered . . . such real estate’s fair market value, absent the existence of a fair market value determination by a qualified real estate appraiser made within one year prior to the relevant determination date, in which case the most recent of such determinations shall be used to establish fair market value.[139]

A pair of minority shareholders, Sarah Yancey May and her ex-husband, Bill May, who collectively owned slightly more than one-third of the stock, voted against the first amendment.[140] Sarah also objected in writing to the first amendment.[141] Bill, along with all shareholders other than Sarah, agreed to the second amendment on March 25, 2016, so the second amendment technically received approval of shareholders holding two-thirds of the outstanding shares.[142]

In May  2017, Yancey Lumber executed a letter of intent to sell the assets of the Mill Business.[143] Sarah objected to the letter of intent and a subsequent amendment that added a $250,000 break up fee in the event the sale of the Mill Business did not close.[144] On August 11, 2017, Sarah filed a complaint in the Circuit Court of Albemarle County seeking a declaratory judgment that the first amendment and second amendment could not modify section 13.1-724.A of VSCA, and thus, the sale of the Mill Business required shareholder approval.[145]

The trial court, relying on the following phrase, “unless the articles of incorporation or a shareholder-approved bylaw otherwise provide,” found that the bylaw amendments could modify section 13.1-724.A of VSCA, noting the statute did not say a bylaw approved by two-thirds of the shareholders, and entered judgment in favor of the Corporation.[146] Sarah appealed, and the Supreme Court of Virginia granted four assignments of error, one of which was

[t]he trial court erred in granting the Company’s Special Plea in Bar and entering judgment against Sarah on the ground that a mere majority of the Company’s shareholders may not amend or redefine the statutory safe harbor of [Virginia] Code § 13.1-724, nor create its own safe harbor, through the amendment of the Company’s bylaws.[147]

Yancey Lumber argued the position that a bylaw approved by shareholders, holding a majority of the shares present, was sufficient to modify the safe harbor given that the introductory language to the safe harbor appeared to allow modification and did not require a vote of two-thirds of the outstanding shares.[148] In its analysis, the court stated:

The plain language of the statute does not support the Corporation’s claim that the exception in the safe harbor provision permits a corporation to adopt a bylaw that redefines the meaning of “significant continuing business activity” to be anything that the majority designates it to be. The safe harbor provision simply states a default threshold, and the plain language of the statutory exception to the application of that threshold only allows a corporation to accept or reject that threshold.[149]

The court reasoned that another interpretation could render the requirement that two-thirds of the outstanding shares approve a sale of substantially all assets meaningless.[150] The court noted that section 13.1-724(E) of VSCA only permits a modification of the two-thirds vote requirement in the articles of incorporation.[151]

Yancey Lumber also argued that because Bill May approved the second amendment, he implicitly approved the first amendment, and thus the applicable bylaw amendment was approved by two-thirds of the outstanding shares.[152] The court found that argument flawed, reasoning that the two-thirds vote requirement only applies to the asset sale, and that a vote for the second amendment could not ratify the entire bylaws.[153]

It is possible following this case that a corporation cannot modify the safe harbor in its articles of incorporation or bylaws, even to make it harder for the corporation to satisfy, for example, by increasing the percentage of total assets and either income or revenue to be maintained. Courts may end up interpreting this case to permit a corporation to make the safe harbor harder to satisfy with an amendment to its articles of incorporation that is approved by shareholders holding at least two-thirds of the outstanding shares. The case does make it clear that an amendment to the bylaws or articles of incorporation may approve or reject the safe harbor.[154] Perhaps the legislature will clarify whether the safe harbor can be modified, and if so, the vote necessary to do so.

Conclusion

The General Assembly made notable changes to VSCA and the Virginia Limited Liability Company Act this year. In VSCA this included addressing myriad issues from ratification of defective corporate acts, to improving and making the effect of merger, domestication, and conversion language more uniform. Virginia also this year became one of the earliest states to adopt the Uniform Protected Series Act, a fascinating innovation in business entity law. Finally, the Supreme Court of Virginia interpreted the safe harbor in section 13.1-724(A), which if satisfied, permits a sale of assets outside the ordinary course of business without a shareholder vote.


*  Shareholder, Williams Mullen, Richmond, Virginia. J.D., 2003, University of Richmond School of Law; M.B.A., 2003, The Robins School of Business, University of Richmond; B.A., 1995, University of Virginia.

[1].    Del. Code Ann. tit. 8, § 204 (2017); 79 Del. Laws ch. 72, § 22 (2013).

        [2].    Act of Mar. 21, 2019, ch. 734, 2019 Va. Acts __, __ (codified at Va. Code Ann. § 13.1-614.1 (Cum. Supp. 2019)).

        [3].    Id. ch. 734, 2019 Va. Acts at __.

        [4].    Id. ch. 734, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-614.3(A) (Cum. Supp. 2019)).

        [5].    Id. ch. 734, 2019 Va. Acts at __ (codified at Va. Code Ann. §§ 13.1-614.3(C), -614.4 (C)–(D) (Cum. Supp. 2019)).

        [6].    Id. ch. 734, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-614.7(A) (Cum. Supp. 2019)). Amendments to the articles, a merger, conversion, domestication, and dissolution are only some of the actions that require a filing with the SCC. See Va. Code Ann. §§ 13.1-710, -720, -722.5, -722.12, -743 (Cum. Supp. 2019).

        [7].    Ch. 734, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-614.7(B)(1)–(4) (Cum. Supp. 2019)).

        [8].    Id. ch. 734, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-614.7(C)(1)–(3) (Cum. Supp. 2019)).

        [9].    Id. ch. 734, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-614.7(C)(3) (Cum. Supp. 2019)).

      [10].    Va. Code Ann. § 13.1-730(A)(3) (Repl. Vol. 2016).

      [11].    Ch. 734, 2019 Va. Acts at __ (codified as amended at Va. Code Ann. § 13.1-730(A)(3) (Cum. Supp. 2019)).

      [12].    Id. ch. 734, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-729 (Cum. Supp. 2019)).

      [13].    Id. ch. 734, 2019 Va. Acts at __ (codified as amended at Va. Code Ann. § 13.1-729 (Cum. Supp. 2019)).

      [14].    Compare id. ch. 734, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-603 (Cum. Supp. 2019)), with Va. Code Ann. § 13.1-603 (Repl. Vol. 2016).

      [15].    Ch. 734, 2019 Va. Acts at __ (codified as amended at Va. Code Ann. § 13.1-707(E)–(F) (Cum. Supp. 2019)).

      [16].    Id. ch. 734, 2019 Va. Acts at __; id. ch. 734, 2019 Va. Acts at __ (codified at Va. Code Ann. §§ 13.1-721(C), -722.7:1(C), -722.13(C)–(D) (Cum. Supp. 2019)).

      [17].    Ch. 734, 2019 Va. Acts at __ (codified as amended at  Va.  Code  Ann.  §§  13.2-718(I), -722.3(7), -722.11(B) (Cum. Supp. 2019)).

      [18].    Id. ch. 734, 2019 Va. Acts at __ (codified as amended at Va. Code Ann. §§ 13.1-718(I), -722.11(7), -722.11(B) (Cum. Supp. 2019)).

      [19].    Id.  ch.  734,  2019  Va.  Acts   at __   (codified   at   Va.  Code    Ann.   §§  13.1-721(C),  -722.7:1(C), -722.13(C)–(D) (Cum. Supp. 2019)).

      [20].    Id. ch. 734, 2019 Va. Acts at __ (codified as amended at Va. Code Ann. § 13.1-721 (Cum. Supp. 2019)).

      [21].    Id. ch. 734, 2019 Va. Acts at __ (codified as amended at Va. Code Ann. § 13.1-721(A)(3) (Cum. Supp. 2019)).

      [22].    Id. ch. 734, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-721(A)(9)–(10) (Cum. Supp. 2019)); see also id. ch. 734, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-721(F) (Cum. Supp. 2019)) (stating that a merger does not trigger a dissolution, liquidation, or winding up of the nonsurviving corporation).

      [23].    See, e.g., Metro Van & Storage Co. v. Commonwealth, 216 Va. 544, 221 S.E.2d 127 (1976) (holding that a merger caused the nonsurviving entity to cease to legally exist, requiring revocation of a government-issued certificate).

      [24].    Compare ch. 734, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-722.7:1 (Cum. Supp. 2019)) (“All property owned by, and every contract right possessed by, the domesticating corporation are the property and contract rights of the domesticated corporation without transfer, reversion, or impairment.”), with ch. 734, 2019 Va. Acts at __ (codified as amended at Va. Code Ann. § 13.1-722.13 (Cum. Supp. 2019)) (“All property owned by, and every contract right possessed by, the converting entity remains the property and contract rights of the converted entity without reversion or impairment.”).

      [25].    Id. ch. 734, 2019 Va. Acts at __ (codified as amended at Va. Code Ann. § 13.1-721.1 (Cum. Supp. 2019)).

      [26].    Id. ch. 734, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-712.1 (Cum. Supp. 2019)).

      [27].    Id. ch. 734, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-722.6(B)–(C) (Cum. Supp. 2019)).

      [28].    Id. ch. 734, 2019 Va. Acts at __ (codified as amended at Va. Code Ann. § 13.1-722.12:1(B)–(C) (Cum. Supp. 2019)).

      [29].    Id. ch. 734, 2019 Va. Acts at __ (codified as amended at Va. Code Ann. § 13.1-718(G) (Cum. Supp. 2019)).

      [30].    Id. ch. 734, 2019 Va. Acts at __.

      [31].    See supra notes 26–28 and accompanying text.

      [32].    Va. Code Ann. § 13.1-718(G) (Repl. Vol. 2016).

      [33].    Ch. 734, 2019 Va. Acts at __ (codified as amended at Va. Code Ann. § 13.1-718(G) (Cum. Supp. 2019)) (deleting “[t]he corporation is a public corporation”). Whether a tender offer is feasible under state and federal securities laws is beyond the scope of this Article.

      [34].    Id. ch. 734, 2019 Va. Acts at __.

      [35].    Id. ch. 734, 2019 Va. Acts at __.

      [36].    Id. ch. 734, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-619(B)(5) (Cum. Supp. 2019)).

      [37].    Id. ch. 734, 2019 Va. Acts at __.

      [38].    Id. ch. 734, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-681.1(A) (Cum. Supp. 2019)).

      [39].    Id. ch. 734, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-694(B) (Cum. Supp. 2019)).

      [40].    Id. ch. 734, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-694(B)(1)–(2) (Cum. Supp. 2019)).

      [41].    Id. ch. 734, 2019 Va. Acts at __.

      [42].    Id. ch. 734, 2019 Va. Acts at __.

      [43].    Id. ch. 734, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-704(D) (Cum. Supp. 2019)). Delaware adopted a similar provision in title 8, section 145(g) of the Delaware General Corporation Law in 2009 after Schoon v. Troy Corp., 948 A.2d 1157 (Del. Ch. 2008). See Del. Code Ann. tit. 8, § 145(g) (2019).

      [44].    Id. ch. 734, 2019 Va. Acts at __ (codified as amended at Va. Code Ann. § 13.1-704(E) (Cum. Supp. 2019)).

      [45].    Id. ch. 734, 2019 Va. Acts at __ (codified as amended at Va. Code Ann. §§ 13.1-710(A)(5), -710(A)(5), -711(C)(6)–(8), -720(A)(3), -722.5(A)(4), -722.12(A)(4), -743(A)(3) (Cum. Supp. 2019)).

      [46].    Id. ch. 734, 2019 Va. Acts at __.

      [47].    Id. ch. 734, 2019 Va. Acts at __ (codified as amended at Va. Code Ann. § 13.1-624(C)(2) (Cum. Supp. 2019)).

      [48].    See id. ch. 734, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-624(D) (Cum. Supp. 2019)).

      [49].    Id. ch. 734, 2019 Va. Acts at __.

      [50].    Id. ch. 734, 2019 Va. Acts at __.

      [51].    Id. ch. 734, 2019 Va. Acts at __ (codified as amended at Va. Code Ann. § 13.1-669 (Cum. Supp. 2019)) (deleting clause giving shareholders the right to opt into cumulative voting outside of the meeting notice).

      [52].    Id. ch. 734, 2019 Va. Acts at __ (codified as amended at Va. Code Ann. § 13.1-771(D)–(E) (Cum. Supp. 2019)).

      [53].    Id. ch. 734, 2019 Va. Acts at __ (codified as amended at Va. Code Ann. § 13.1-773(C) (Cum. Supp. 2019)).

      [54].    Id. ch. 734, 2019 Va. Acts at __.

      [55].    Act of Mar. 19, 2019, 2019, ch. 636, 2019 Va. Acts __, __ (codified at Va. Code Ann. §§ 13.1-1088 to 1099.27 (Cum. Supp. 2019)); see also Nat’l Conference of Comm’rs on Unif. State Laws 2017, Unif. Protected Series Act, https://www.uniformlaws.org/HigherLog ic/System/DownloadDocumentFile.ashx?DocumentFileKey=2ddffb95-cb77-2bfb-f952-bdc26  0051563&forceDialog=0 [https://perma.cc/N4XE-Y5LS].

      [56].    Ch. 636, 2019 Va. Acts at __.

      [57].    See supra note 55.

      [58].    Ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1002 (Cum. Supp. 2019)).

      [59].    Id. ch. 636, 2019 Va. Acts at __.

      [60].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1089 (Cum. Supp. 2019)).

      [61].    See Jay Adkisson, Understanding the Protected Series Act: Liability Limitations and Claims, Forbes (Oct. 21, 2018, 12:38 PM), https://www.forbes.com/sites/jayadkisson/2018/ 10/21/understanding-the-protected-series-act-liability-limitations-and-claims/#bfc358946a d6 [https://perma.cc/57WD-JBQM].

      [62].    See ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. §§ 13.1-1089, -1099(A), -1099.5(C) (Cum. Supp. 2019)); see also Terence Floyd Cuff, Delaware Series LLCs and Transactional Practice—Part I, 38 Real Est. Tax’n 118, 120–21, 124 (2011); Allen Sparkman, Tax Aspects of Series LLCs, Bus. L. Today (Feb. 28, 2013), https://www.american bar.org/groups/business_law/publications/blt/2013/02/03_sparkman/ [https://perma.cc/K4 72-N7RX].

      [63].    See Cuff, supra note 62, at 119–20.

      [64].    Unif. Protected Series Act, supra note 55, at § 104(6) cmt.

      [65].    Id. at Prefatory Note pt. 6(A).

      [66].    Id.

      [67].    Ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1088 (Cum. Supp. 2019)).

      [68].    See id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.10(B) (Cum. Supp. 2019)).

      [69].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1088 (Cum. Supp. 2019)); id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.3 (Cum. Supp. 2019)).

      [70].    Id. ch. 636, 2019 Va. Acts at  __  (codified  at  Va.  Code  Ann.  §§  13.1-1094(14)(2) -1099.3, -1099.4(A), -1099.5(C) (Cum. Supp. 2019)).

      [71].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.3(A) (Cum. Supp. 2019)).

      [72].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1088 (Cum. Supp. 2019)).

      [73].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1002 (Cum. Supp. 2019)).

      [74].    See id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. §§ 13.1-1089 to -1090 (Cum. Supp. 2019)).

      [75].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1090 (Cum. Supp. 2019)).

      [76].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1002 (Cum. Supp. 2019)).

      [77].    See id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1091 (Cum. Supp. 2019)).

      [78].    Id. ch. 636, 2019 Va. Acts at __.

      [79].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1091(1) (Cum. Supp. 2019)).

      [80].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1091(2) (Cum. Supp. 2019)).

      [81].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1091(3) (Cum. Supp. 2019)).

      [82].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1091(4) (Cum. Supp. 2019)).

      [83].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1091(5) (Cum. Supp. 2019)).

      [84].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1092 (Cum. Supp. 2019)).

      [85].    See Va. Code Ann. § 13.1-1001.1(C) (Repl. Vol. 2016).

      [86].    Ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1093 (Cum. Supp. 2019)).

      [87].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1095(A) (Cum. Supp. 2019)).

      [88].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1093(A)(9) (Cum. Supp. 2019)).

      [89].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1095(B) (Cum. Supp. 2019)).

      [90].    Id. ch. 636, 2019 Va. Acts at __.

      [91].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1097(A) (Cum. Supp. 2019)).

      [92].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1096(B)(2) (Cum. Supp. 2019)).

      [93].    Id. ch. 636, 2019 Va. Acts __ (codified at Va. Code Ann. § 13.1-1096(B)(1) (Cum. Supp. 2019)).

      [94].    Id. ch. 636, 2019 Va. Acts __ (codified at Va. Code Ann. §§ 13.1-1098, -1099 (Cum. Supp. 2019)).

      [95].    See id. ch. 636, 2019 Va. Acts at __.

      [96].    See id. ch. 636, 2019 Va. Acts  at  __  (codified  at  Va.  Code  Ann.  §§  13.1-1099.2, -1099.10 (Cum. Supp. 2019)).

      [97].    See id. ch. 636, 2019 Va. Acts at __.

      [98].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.2(A)–(B) (Cum. Supp. 2019)).

      [99].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.2(C) (Cum. Supp. 2019)).

    [100].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. §§ 13.1-1088, -1099.10 (Cum. Supp. 2019)).

    [101].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.3 (Cum. Supp. 2019)).

    [102].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.4 (Cum. Supp. 2019)).

    [103].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099(C)–(D) (Cum. Supp. 2019)).

    [104].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099(E)–(F) (Cum. Supp. 2019)).

    [105].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.6(A) (Cum. Supp. 2019)).

    [106].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.6(B) (Cum. Supp. 2019)).

    [107].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.6(C) (Cum. Supp. 2019)).

    [108].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.6(D) (Cum. Supp. 2019)).

    [109].    See id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1093 (Cum. Supp. 2019)).

    [110].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.7 (Cum. Supp. 2019)).

    [111].    Id. ch. 636, 2019 Va. Acts at __.

    [112].    Id. ch. 636, 2019 Va. Acts at __.

    [113].    See Adkisson, supra note 61.

    [114].    Ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.8 (Cum. Supp. 2019)).

    [115].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.9(1) (Cum. Supp. 2019)).

    [116].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099(2) (Cum. Supp. 2019)).

    [117].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.10 (Cum. Supp. 2019)).

    [118].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1088 (Cum. Supp. 2019)).

    [119].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.10 (Cum. Supp. 2019)).

    [120].    See id. ch. 636, 2019 Va. Acts at __.

    [121].    Id. ch. 636, 2019 Va. Acts at __.

    [122].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.10(D) (Cum. Supp. 2019)).

    [123].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.11 (Cum. Supp. 2019)).

    [124].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.12(A) (Cum. Supp. 2019)).

    [125].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.12(B) (Cum. Supp. 2019)).

    [126].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.13 (Cum. Supp. 2019)).

    [127].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.12 (Cum. Supp. 2019)). But see id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.19 (Cum. Supp. 2019)) (allowing a Protected Series of a nonsurviving Series LLC to become a relocated Protected Series of the surviving Series LLC).

    [128].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.14 (Cum. Supp. 2019)).

    [129].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.15 (Cum. Supp. 2019)).

    [130].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. §§ 13.1-1099.15, -1099.16 (Cum. Supp. 2019)).

    [131].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.21 (Cum. Supp. 2019)).

    [132].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.23 (Cum. Supp. 2019)).

    [133].    Id. ch. 636, 2019 Va. Acts at __ (codified at Va. Code Ann. § 13.1-1099.22 (Cum. Supp. 2019)).

    [134].    297 Va. 1, 822 S.E.2d 358 (2019).

    [135].    Id. at 6, 822 S.E.2d at 361.

    [136].    Va. Code Ann. § 13.1-724(A) (Cum. Supp. 2018); May, 297 Va. at 7, 822 S.E.2d at 361–62.

    [137].    May, 297 Va. at 10, 822 S.E.2d at 363.

    [138].    Id. at 7, 822 S.E.2d at 361–62.

    [139].    Id. at 8, 822 S.E.2d at 362.

    [140].    Id. at 8, 822 S.E.2d at 362.

    [141].    Id. at 8, 822 S.E.2d at 362.

    [142].    Id. at 8, 822 S.E.2d at 362.

    [143].    Id. at 8, 822 S.E.2d at 362.

    [144].    Id. at 8, 822 S.E.2d at 362.

    [145].    Id. at 9, 822 S.E.2d at 362.

    [146].    Id. at 10, 13, 822 S.E.2d at 363–64.

    [147].    Id. at 11–12, 822 S.E.2d at 364.

    [148].    Id. at 13, 822 S.E.2d at 364.

    [149].    Id. at 16, 822 S.E.2d at 366.

    [150].    Id. at 16, 822 S.E.2d at 366.

    [151].    Id. at 16, 822 S.E.2d at 366.

    [152].    Id. at 13, 822 S.E.2d at 364–65.

    [153].    Id. at 17, 822 S.E.2d at 364–65.

    [154].    Id. at 16, 822 S.E.2d at 366.

Employment Law

Employment Law

Bret G. Daniel and Erin B. Edwards, Annual Survey of Virginia Law Employment Law, 54 U. Rich. L. Rev. 103 (2019).

Click here to download PDF.

Bret G. Daniel *

Erin B. Edwards **

Introduction

Virginia has historically been regarded as an employer-friendly jurisdiction. However, in recent years, the Fourth Circuit Court of Appeals has issued an increasing number of opinions that tend to favor employees. With a state legislature largely reluctant to interfere in the employer-employee relationship, developments in employment law generally occur via Fourth Circuit jurisprudence. Given the predominance of federal employment law in Virginia, the following discussion regarding developments in this practice area focuses less on state statutes and courts, and more on decisions handed down from the federal bench.

This Article provides an update on recent developments in employment law in Virginia.[1] It does not attempt to capture every change in the law, but instead focuses on significant developments in this arena. Part I of the Article discusses noteworthy shifts in Fourth Circuit jurisprudence regarding: the Equal Pay Act, Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Fair Labor Standards Act. Part II of the Article contains a brief update on state-specific statutory and case law developments regarding military leave, data privacy, employee access to personnel records, and Virginia’s unique flavor of wrongful termination—Bowman claims.

 I. Developments in Fourth Circuit Jurisprudence

 A. Pay Equity and the Equal Pay Act

Pay equity is a central issue affecting women’s rights in the workplace and has become a point of particular focus for state lawmakers,[2] the United States Congress,[3] and the Equal Employment Opportunity Commission (“EEOC”), which now requires some EEO-1 filers to report pay data for all employees by sex, race, and ethnicity, as discussed in more detail further on in this Article.[4] In Virginia, Democrat members of the General Assembly have proposed pay equity legislation for the last five sessions running.[5] But, like the majority of employment laws in Virginia, the Commonwealth currently adheres to federal standards under the Equal Pay Act (“EPA”).[6]

To prevail on an EPA claim, a plaintiff must demonstrate that her[7] employer paid her “different wages . . . for equal work in [a] job[] which require[d] equal skill, effort and responsibility and which [was] performed under similar working conditions.”[8]The “equal work” component of a prima facie case requires work “substantially equal in skill, effort and responsibility.”[9]Although jobs need not be identical, they should be “virtually identical.”[10] Merely identifying other male employees with similar titles or the same general responsibilities is insufficient to state a claim.[11] The requirement that a plaintiff must compare her pay with that of another employee performing substantially equal work distinguishes the EPA from Title VII of the Civil Rights Act (“Title VII”). The EPA “creates a sort of ‘strict liability’ for discrimination on the basis of sex” when such a comparison can be made, whereas Title VII requires a showing of “discriminatory intent.”[12] Accordingly, although the EPA eliminates the need to demonstrate intent, establishing a prima facie case entails a heightened comparator analysis—an issue the Fourth Circuit recently addressed in the context of higher education in Spencer v. Virginia State University.[13]

If a plaintiff establishes a prima facie case, then the burden shifts to the employer to show that any pay differential resulted from a permissible exception: “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.”[14] If the employer can establish one of these affirmative defenses, then the burden falls on the plaintiff to rebut the employer’s evidence.[15] It is this fourth “catch-all” affirmative defense that has drawn the ire of the plaintiff’s bar and come under scrutiny by state legislatures that have passed their own versions of the EPA.[16] Indeed, proposed amendments to the Virginia Equal Pay Act,[17] which did not pass committee during the 2019 session, narrow the catch-all defense by requiring the employer to show that the factor is: (1) job related; (2) consistent with business necessity; and (3) “not based on or derived from a protected class-based differential in compensation.”[18] Employers would lose the defense if the employee can prove the existence of an alternative practice that would meet the same business purpose.[19] Although these amendments did not pass, Virginia nevertheless saw a significant narrowing of an employer’s ability to assert affirmative defenses at summary judgment in a recent case decided by the Fourth Circuit, EEOC v. Maryland Insurance Administration.[20]

  1. EEOC v. Maryland Insurance Administration

In January 2018, the Fourth Circuit articulated a new summary judgment standard for EPA cases, stating that the “burden of ultimate persuasion” is on the employer such that once an employee establishes a prima facie case of pay discrimination, the employer must prove that the pay disparity was based on a factor other than sex “so convincingly that a rational jury could not have reached a contrary conclusion.”[21] In other words, a merely plausible explanation for the pay disparity is insufficient if the employer does not carry its burden to prove that the proffered reason does “in fact explain the wage disparity.”[22] In so holding, the Fourth Circuit joined the Third and Tenth Circuits.[23]

The EEOC brought this action on behalf of three female fraud investigators who alleged that male fraud investigators were paid more for performing equal work.[24] The district court granted summary judgment, holding that the four male fraud investigators identified by the EEOC were not proper comparators, and even if they were, the pay disparity was due to the comparators’ credentials and prior work experience, not their sex.[25]

The comparators’ credentials and prior work experience were—in the district court’s opinion—legitimate factors other than sex that explained the pay differential.[26] Indeed, the Maryland Insurance Administration (“MIA”) had a defined salary schedule consisting of twenty separate steps, and new hires’ step placement was based on prior work experience, relevant professional designations, licenses and certifications, and prior years of service in state employment.[27] MIA presented evidence that the male comparators were placed at higher steps due to their relevant experience, certifications, and years of prior service.[28]

The Fourth Circuit, however, held that MIA could not “shield itself from liability under the EPA solely because [it] uses the state’s Standard Salary Schedule and awards credit for prior state employment or a lateral transfer within the state employment system.”[29] While the salary schedule may have been facially neutral, the court noted that “MIA exercise[d] discretion each time it assign[ed] a new hire to a specific step and salary range based on its review of the hire’s qualifications and experience.”[30] In sum, although MIA offered a facially gender-neutral reason “other than sex” for the pay disparity, the court held that the job-related distinctions between the female fraud investigators and alleged comparators, including prior state employment, must “in fact” motivate the pay decision such that no reasonable jury could reach a contrary conclusion.[31] Such a standard is a high bar for any defendant to clear on summary judgment and a prime example of how the Fourth Circuit is trending in a more plaintiff-friendly direction.

  1. Spencer v. Virginia State University

Decided in March 2019, Spencer v. Virginia State University is the most recent in a series of higher education EPA claims filed in the Fourth Circuit.[32] Spencer followed the Fourth Circuit’s decision in Maryland Insurance, and it appears the court viewed it as an opportunity to take a step back from the hardline summary judgment standard articulated in that case. In a unanimous decision, the court reinforced the plaintiff’s burden of establishing a prima facie case of wage discrimination and identified at least one “factor other than sex” that would warrant summary judgment, affirming the district court’s grant of summary judgment in favor of defendant Virginia State University (“VSU”).[33]

Zoe Spencer, a sociology professor at VSU, alleged that the university violated the EPA and Title VII by paying her less than two male professors: Michael Shackleford and Cortez Dial.[34] Both Shackleford and Dial were former administrators.[35]Spencer earned approximately $70,000 per year, while Shackleford and Dial earned over $100,000 per year.[36] Spencer attributed the pay differential to her sex, but the Fourth Circuit determined that a number of other factors rendered Shackleford and Dial improper comparators. The court’s analysis in this regard reinforced the “demanding threshold requirement” that “requires a comparator to have performed work ‘virtually identical’ (or the apparent synonym, ‘substantially equal’) to the plaintiff’s in skill, effort, and responsibility.”[37] The court explained that “[i]n alleging this necessary equality, a plaintiff may not rely on broad generalization at a high level of abstraction,” and went on to scrutinize the differences between the professorial duties and responsibilities of Spencer, Shackleford, and Dial.[38]

Spencer argued that all VSU professors, regardless of department or college, “perform equal work because they all perform the same essential tasks: preparing syllabi and lessons, instructing students, tracking student progress, managing the classroom, providing feedback, and inputting grades.”[39] In her view, these essential tasks required the same skills, such as “studying, preparing, presenting, discussing, and so forth.”[40] The court disagreed, aptly observing that the same tasks are shared by “middle-school teachers and law-school professors, pre-algebra teachers and biomedical-engineering professors.”[41]

As a starting point, the court noted that Spencer was a sociology professor in the Department of Sociology, Social Work, and Criminal Justice, while Shackleford and Dial taught in different departments.[42] Shackleford was a professor in the Department of Doctoral Studies.[43] And Dial served as a professor in Mass Communications.[44] The Fourth Circuit has long recognized that “differences between academic departments generally involve differences in skill and responsibility,”[45] but has not entirely foreclosed the possibility that a professor-plaintiff could establish sufficient evidence to show that work in one department is substantially equal to work in another.[46] Spencer, however, failed to overcome the tall task of demonstrating equality of work between professors in different departments.[47] Among some of the more significant differences between Spencer, Shackleford, and Dial, the court highlighted the fact that the three professors taught different class levels; Spencer taught mostly undergraduate level courses, while the two men taught mostly graduate students.[48] Additionally, unlike Spencer, Shackleford supervised doctoral dissertations.[49] Overall, the record showed that Shackleford and Dial generally worked more hours than Spencer, despite Spencer’s attempt to demonstrate that she actually did more work than her comparators.[50]

Notably, the court found this particular argument—that Spencer performed more work due to research and publishing responsibilities that Shackleford and Dial did not share—“paradoxical[]” inasmuch as she was only “piling on differences.”[51] In a remarkable departure from other circuit courts, the Fourth Circuit held in a footnote, “[p]iling on differences—even those suggesting that Spencer did better or more work—does nothing to prove equality of work.”[52] The court conclusively stated that Spencer had not adduced any evidence to demonstrate that she and her comparators performed equal work, and therefore failed to establish a prima facie case under the EPA.[53]

The court further held that even if the comparators were sufficient to state a prima facie case, the university proffered an unrebutted “factor other than sex” that did in fact explain the wage disparity.[54] VSU utilized a reduction in administrator salaries of nine-twelfths (or seventy-five percent) for all administrators transitioning to faculty positions, regardless of sex.[55]Although Spencer attempted to argue that the policy was erroneously applied, the court stated, “such an imprudent decision would still serve as a non-sex-based explanation for the pay disparity.”[56]

This case served as an opportunity for the Fourth Circuit to reinforce the high standard for establishing equality of work under the EPA and to take a step back from Maryland Insurance. The Maryland Insurance case ostensibly made summary judgment less attainable by setting a more stringent standard for establishing an affirmative defense. However, in Spencer, the Fourth Circuit made it a point to temper its previous analysis, stating,

The Equal Pay Act is a powerful tool, permitting an employee to prevail on a wage discrimination claim with no evidence of intentional discrimination. But this tool must be tempered by adherence to its provisions. Doing so requires that the work performed by the plaintiff and her comparators be equal and that the wage disparity not be based on a factor other than sex.[57]

Spencer failed on both counts.

  1. EEO-1 Pay Data Collection

Of particular note in the world of pay equity, the EEOC began collecting pay data for the first time in March 2018 in an effort to improve investigations of pay discrimination.[58] For decades, the EEOC has required private employers with 100 or more employees and certain federal contractors with fifty or more employees to file the Employer Information Report EEO-1 (“EEO-1”).[59] Component 1 of the EEO-1 requires covered employers to report aggregate data about employees’ ethnicity, race, and sex by job category.[60] In 2014, the Obama administration directed the Secretary of Labor to develop a pay data collection program.[61] Two years later, in 2016, after the Office of Management and Budget (“OMB”) approved the program, the EEOC announced that it would begin collecting summary pay data from EEO-1 filers beginning in March 2018.[62] In its press release, the EEOC stated the purpose of the data collection program was to “improve investigations of possible pay discrimination, which remains a contributing factor to persistent wage gaps.”[63] In August 2017, however, following the election of President Donald Trump, the OMB “initiat[ed] a review and immediate stay of the effectiveness of the pay data collection aspects of the EEO-1 form”—effectively staying the collection of pay data indefinitely.[64]

On March 4, 2019, Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia issued an order vacating the stay of the pay data component (“Component 2”) of the EEO-1.[65] Judge Chutkan held that the OMB’s decision to stay implementation of Component 2 was invalid on two grounds: (1) it violated OMB regulations; and (2) it was arbitrary and capricious because the decision “lacked the reasoned explanation that the [Administrative Procedure Act] requires.”[66] The court vacated the OMB’s stay and further ordered that the OMB’s previous approval of the revised EEO-1 form, including Component 2, shall be in effect.[67] Judge Chutkan’s order was not clear on whether she intended the EEOC to immediately begin collecting pay data (EEO-1 reports were due in less than ninety days—May 31, 2019), or whether the change would take effect with a later EEO-1 filing cycle.

On April 25, 2019, Judge Chutkan provided more clarity, ruling that covered employers must submit Component 2 pay data by September 30, 2019.[68] Subsequently, on May 3, 2019, the EEOC issued a notice advising EEO-1 filers to begin preparing pay data for calendar years 2017 and 2018 for submission by the court-ordered deadline.[69] The notice further stated that the EEOC would begin collecting pay data in mid-July of 2019.[70]

Now, Virginia employers and federal contractors with 100 or more employees[71] must report pay data by sex, race, and ethnicity, as well as job category. For each job category and protected class, employers must sort and tabulate income by “pay band,” of which there are twelve.[72] In addition, employers must calculate and report total hours worked by all employees in each pay band.[73] For exempt employees, filers may report forty hours per week for full-time employees, twenty hours per week for part-time employees, or the actual number of hours worked by such employees.[74]

In sum, the flurry of activity spurred by Judge Chutkan’s March 4, 2019 Order has set in motion the EEOC’s first full-scale collection of pay data from covered employers.

 B. Title VII of the Civil Rights Act

Title VII prohibits discrimination because of—or on the basis of—“race, color, religion, sex, or national origin.”[75] There are two ways to plead a claim of Title VII discrimination: “either with direct evidence or through the ‘prima facie’ method (also called ‘burden shifting’ or the McDonnell Douglas framework).”[76] Under the “direct” method, a plaintiff must provide: “(1) direct or indirect evidence of intentional discrimination (2) against plaintiff for belonging to a protected class, which motivated (3) an adverse employment action.”[77] Indirect evidence is routinely considered “to be tantamount to circumstantial evidence.”[78]To utilize the burden-shifting framework established in McDonnell Douglas Corporation v. Green,[79] a plaintiff first establishes a prima facie case by demonstrating: “(1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class.”[80]

  1. Exhausting Administrative Remedies

Traditionally, courts in the Fourth Circuit have treated as jurisdictional the requirement that a plaintiff file a charge of discrimination with the EEOC before filing a federal lawsuit.[81] If jurisdictional in nature, a failure-to-exhaust defense could be raised at any point during litigation.[82] In Fort Bend County v. Davis, the Supreme Court of the United States unanimously agreed that the requirement of filing a charge with the EEOC, while still a mandatory processing rule, is procedural in nature and, thus, not jurisdictional.[83] The Court did not specify precisely how early a failure-to-exhaust defense must be raised, but indicated that the requirement is “properly ranked among the array of claim-processing rules that must be timely raised to come into play.”[84] This recent development represents a change in how courts will analyze failure-to-exhaust defenses moving forward, and it remains to be seen how jurisdictions will determine when the defense is timely raised. But for practitioners, the message is clear: raise such a defense at the earliest possible opportunity.

  1. LGBTQ Protections

Since 2015, the American LGBTQ community has enjoyed the right to marry,[85] but they are not necessarily protected from discrimination in the workplace. Although the EEOC treats sexual orientation and gender identity as protected classes under Title VII,[86] federal courts differ on the question of whether the term “sex” under Title VII encompasses these characteristics.[87]

On April 22, 2019, the Supreme Court granted certiorari in two companion cases, Bostock v. Clayton County and Altitude Express, Inc. v. Zarda, to decide whether Title VII provides protection against discrimination based on an individual’s sexual orientation.[88] The Court also granted certiorari in R.G. and G.R. Harris Funeral Homes, Inc. v. E.E.O.C. to determine whether Title VII prohibits discrimination against transgender individuals based on (1) their status as transgender; or (2) sex stereotyping under Price Waterhouse.[89] These decisions will affect how Virginia treats both sexual orientation and transgender status under Title VII. Until those decisions are released, the cases discussed below govern treatment of LGBTQ discrimination in Virginia.

 a. Hinton v. Virginia Union University

As recently reaffirmed by the Eastern District of Virginia in Hinton v. Virginia Union University, the Fourth Circuit does not recognize sexual orientation as a protected class.[90] Terry Hinton, an openly gay man, was a longtime administrative assistant at Virginia Union University (“VUU”).[91] In 2013, VUU declined to raise Hinton’s pay after Hinton pointed out that he was paid less than four female administrative assistants with comparable duties and lengths of service.[92] Later in 2013, after Dr. Latrelle Green became Hinton’s direct supervisor, Hinton was twice reprimanded for, and asked to cease, engaging in “drama and recurring gossip.”[93] Soon after the second reprimand, Green put a letter containing multiple examples of alleged “unprofessional misconduct” in Hinton’s personnel file.[94] When Hinton later requested to take classes at nearby Virginia Commonwealth University, which other VUU employees had previously done, Green denied Hinton’s request.[95] Nearly two years later, when Green was no longer Hinton’s supervisor, Green allegedly told Hinton that the President of VUU had told her to give him his reprimand letter “because he had a problem with Hinton’s sexual orientation.”[96]

Hinton urged the district court to depart from the Fourth Circuit’s position that no cause of action exists for discrimination on the basis of sexual orientation, articulated in Wrightson v. Pizza Hut of America, Inc.,[97] because the relevant portion of the opinion was dicta and “the case actually turned on issues of same-sex sexual harassment.”[98] The court held that the Fourth Circuit’s stance on sexual orientation under Title VII, while it began as dicta in Wrightson, is substantively treated as the rule in the Fourth Circuit.[99] The court further explained that Wrightson remains the rule in the circuit notwithstanding the July 2015 EEOC policy that Title VII prohibits discrimination on the basis of sexual orientation.[100]

 b. Grimm v. Gloucester County School Board

In an education case brought under Title IX and on remand from the Supreme Court of the United States, the Eastern District of Virginia held that discrimination on the basis of transgender status constitutes gender stereotyping and is per se actionable sex discrimination under both Title VII and Title IX.[101] Gavin Grimm, a transgender man who had started the transition process at the end of his freshman year of high school, met with the Principal of Gloucester High School, along with his mother, to explain that he would be attending school as a boy.[102] Grimm provided a treatment documentation letter from his medical providers that indicated he should “be treated as a male in all respects—including restroom use.”[103] After initially using the isolated and inconveniently located restroom in the nurse’s office, Grimm sought permission to use the boys’ restroom—which the Principal approved.[104]

While Grimm experienced no incidents for nearly two months, adults in the community eventually learned of his use of the boys’ restroom and demanded the Gloucester County School Board put an end to the accommodation.[105] After weeks of negotiation, the Board passed a policy to restrict restroom usage to a student’s biological sex.[106] Grimm soon stopped using the restroom at school, which caused him to develop “a painful urinary tract infection” and led to “difficulty concentrating in class because of his physical discomfort.”[107] Grimm sued the School Board under Title IX alleging that the Board’s policy discriminated on the basis of sex.[108]

Courts “may ‘look to case law interpreting Title VII’ . . . which prohibits employment discrimination on the basis of . . . sex—‘for guidance in evaluating a claim brought under Title IX.’”[109] In Grimm, the court examined the Price Waterhouse holding that “Title VII barred discrimination not only based on the plaintiff’s gender, but based on ‘sex stereotyping’ because the plaintiff had failed to act in accordance with gender stereotypes associated with women.”[110] Following the District of Maryland, the Eastern District of Virginia concluded that “discrimination on the basis of transgender status constitutes gender stereotyping because ‘by definition, transgender persons do not conform to gender stereotypes.’”[111] The Court further concluded “that based on the gender-stereotyping theory from Price Waterhouse, claims of discrimination on the basis of transgender status are per se sex discrimination under Title VII or other federal civil rights laws.”[112] Finding gender stereotyping actionable under Title VII, the court extended the rule to Title IX, denied the motion to dismiss, and allowed Grimm’s claim to move forward.[113]

  1. Sex Discrimination

The social media #MeToo movement has brought sexual harassment to the forefront of discussion in our workplaces, legislatures, and federal agencies.[114] Between October 2017 and October 2018, #MeToo was used an average of 55,319 times a day on Twitter alone.[115] Forty-four percent of the United States Congress addressed sexual misconduct on their official Facebook accounts between October 1 and December 30, 2017.[116] The number of EEOC charges alleging sexual harassment increased by 13.6% between 2017 and 2018, following a downward trend in such charges from 2010 to 2017.[117] In 2018, charges of discrimination containing allegations of sexual harassment were the highest since 2011.[118] Despite the swift social and political implications, the full extent of the movement’s legal impact is yet to be determined.

 a. Parker v. Reema Consulting Services, Inc.

In Parker v. Reema Consulting Services, Inc., a recent “watercooler” case, the Fourth Circuit recognized that an employer who participates in circulating a false rumor, sexual in nature, may be liable under Title VII.[119] Soon after Evangeline Parker was promoted for a sixth time, male employees circulated a rumor that she obtained the promotion because she had engaged in a sexual relationship with a higher ranking manager.[120] The day after the highest-ranking manager at the facility, Larry Moppins, discussed the false rumor at a meeting (one in which Parker did not participate), Moppins met with Parker.[121] During the meeting, Moppins blamed Parker for “bringing the situation to the workplace” and told her that he “could no longer recommend her for promotions or higher-level tasks because of the rumor,” nor would he “allow her to advance any further.”[122]

After another meeting with Moppins where he “lost his temper and began screaming” at her, Parker filed a sexual harassment complaint with human resources.[123] Several weeks later, Moppins “simultaneously issued [Parker] two written warnings and then fired her.”[124]

While Reema argued that employment action was taken because of the “rumored conduct in sleeping with her boss to obtain [a] promotion,” the Fourth Circuit concluded that the allegations sufficiently alleged discrimination on the basis of sex because male employees started and circulated the false rumor which furthered “traditional negative stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior.”[125] Acknowledging that these stereotypes “stubbornly persist in our society” and “may cause superiors and coworkers to treat women in the workplace differently from men,” the court held that Parker had sufficiently pled gender-based harassment.[126] The court further concluded that “the dichotomy that [Reema], as well as the district court, purports to create between harassment ‘based on gender’ and harassment based on ‘conduct’ is not meaningful in this case because the conduct is also alleged to be gender-based.”[127]

 b. Ray v. International Paper Company

Overturning the district court’s grant of summary judgment in favor of the employer, the Fourth Circuit decided that the alleged withholding of voluntary overtime hours could constitute a “tangible employment action” under Title VII.[128] Around one year after International Paper hired Tamika Ray, her supervisor, Johnnie McDowell, started asking Ray for sexual favors, offered to pay her for those favors, and grabbed her thigh.[129] Even though Ray “repeatedly refus[ed] his advances and ask[ed] him to stop,” McDowell continued the behaviors.[130] More than ten years after Ray began working at International Paper, she reported McDowell’s continued conduct to other company supervisors.[131] After learning that Ray had reported the conduct, McDowell informed Ray “that she could no longer perform ‘voluntary’ overtime work before the beginning of her regular work shifts.”[132]

In a sexual harassment case, “[w]hen a supervisor is the harasser and the ‘harassment culminates in a tangible employment action, the employer is strictly liable.’”[133] Because McDowell’s decision to withhold voluntary overtime hours “negatively affected her income,” the court concluded that Ray presented evidence of a tangible employment action sufficient to survive summary judgment.[134]

 c. Bauer v. Lynch

In a case challenging the physical fitness test utilized by the Federal Bureau of Investigation (“FBI”), the Fourth Circuit adopted the rule that “an employer does not contravene Title VII when it utilizes physical fitness standards that distinguish between the sexes on the basis of their physiological differences but impose an equal burden of compliance on both men and women, requiring the same level of physical fitness of each.”[135] After a new agent trainee, Jay Bauer, fell one push-up shy of the thirty required push-ups for male trainees, Bauer filed a sex-based discrimination suit under Title VII because the FBI required female trainees to complete only fourteen push-ups.[136] The FBI designed the trainee test requirements based on a study of trainees and their reasoning that, due to physiological differences, “equally fit men and women would perform differently in the same events.”[137] The test utilized a “gender-normed framework” that had “the complementary benefits of allowing the measurement of equivalent fitness levels between men and women while also mitigating the negative impact that would otherwise result from requiring female Trainees to satisfy the male-oriented standards.”[138]

The court acknowledged that “physical fitness standards suitable for men may not always be suitable for women, and accommodations addressing physiological differences . . . are not necessarily unlawful.”[139] Since men and women “demonstrate their fitness differently,” the test for whether or not physical fitness standards discriminate on the basis of sex “depends on whether they require men and women to demonstrate different levels of fitness.”[140] The Fourth Circuit vacated the district court’s decision to award summary judgment to Bauer “on the basis of an erroneous legal standard” and remanded the case.[141] Because the FBI’s test imposed equivalent burdens on both men and women in assessing physical fitness, the Eastern District of Virginia granted summary judgment to the FBI on remand.[142]

  1. Title VII Retaliation

In Hernandez v. Fairfax County, the Fourth Circuit held that the proportionality of a disciplinary reprimand to an incident of employee misconduct can factor in determining whether the employer was retaliating against the employee for an earlier sexual harassment complaint.[143] Magaly Hernandez worked for more than ten years as a female firefighter for Fairfax County, Virginia.[144] Soon after she transferred to a different station, the station captain, Jon Bruley, “engaged in inappropriate conduct toward her, including blocking her path in the hallway, placing his chin on her shoulder, and positioning his body ‘right up against’ her.”[145] Despite Hernandez’s repeated requests for Bruley to stop, he continued making inappropriate sexual comments, which led Hernandez to report Bruley’s behavior to his supervisor, Cheri Zosh.[146] Bruley stopped making inappropriate comments after Zosh confronted him, but he “began monitoring and tracking [Hernandez’s] activities and movements at work” for several months, which prompted Hernandez to file a formal complaint with Fairfax County.[147] Once Hernandez was transferred to a different fire station, “she was involved in a verbal confrontation with a male firefighter during a basketball game at the station.”[148] After an investigation, the County issued Hernandez “a written reprimand for workplace violence and unbecoming conduct.”[149]

The Fourth Circuit found that Hernandez had engaged in protected activity by making an initial report to Zosh regarding Bruley’s conduct towards her and by filing an official complaint with the County before she was transferred.[150] After the “brief, non-physical altercation” at the basketball event, the County’s written reprimand disqualified Hernandez from any promotions for at least one year.[151] The court held that the reprimand could constitute an adverse employment action because of the disproportionality between the severity of the reprimand and the minor nature of the altercation.[152] Based on the fact that only four months had passed between Hernandez’s official complaint and the County’s investigation of the basketball incident, together with the relative severity of the reprimand, the court held that a jury could conclude that the County had retaliated against Hernandez.[153] The Fourth Circuit, therefore, reversed summary judgment and remanded to the district court for further proceedings.[154]

  1. Title VII Joint Employer Liability

The Fourth Circuit expressly defined joint employer liability under Title VII in Butler v. Drive Automotive Industries of America, Inc.[155] Recognizing “the reality of changes in modern employment,” the court adopted the hybrid test, because it “best captures the fact-specific nature of Title VII cases.”[156] While acknowledging that the common law element of control “remains the ‘principal guidepost’ in the analysis,” the court articulated nine factors for courts to consider when determining whether there is a joint employer relationship:

(1)  authority to hire and fire the individual;

(2)  day-to-day supervision of the individual, including employee discipline;

(3)  whether the putative employer furnishes the equipment used and the place of work;

(4)  possession of and responsibility over the individual’s employment records, including payroll, insurance, and taxes;

(5)  the length of time during which the individual has worked for the putative employer;

(6)  whether the putative employer provides the individual with formal or informal training;

(7)  whether the individual’s duties are akin to a regular employee’s duties;

(8)  whether the individual is assigned solely to the putative employer; and

(9)  whether the individual and putative employer intended to enter into an employment relationship.[157]

The court specified that the first, second, and third factors are the most important, although “no one factor is determinative.”[158] The factors are not inflexible, as courts within the circuit are able to “modify the factors to the specific industry context” and should consider each factor in relation to the particular employment relationship at issue.[159]

 C. The Americans with Disabilities Act

With education around mental health issues on the rise, recent Fourth Circuit decisions have considered the extent to which alleged disabilities related to mental health are covered under the Americans with Disabilities Act (“ADA”). In addition, as a matter of first impression, the Eastern District of Virginia recently held that compensatory and punitive damages are not available forms of relief for ADA retaliation claims.

  1. Mental Health

 a. Jacobs v. North Carolina Administrative Office of the Courts

In 2015, the Fourth Circuit held that a social anxiety disorder may qualify as a disability under the ADA.[160] Christina Jacobs alleged that she suffered from social anxiety and requested, as an accommodation for the alleged disability, to be reassigned from her front counter job to a role that involved “less direct interpersonal interaction.”[161] After Jacobs disclosed her disability on two separate occasions and officially requested an accommodation, she was terminated “because she was not ‘getting it’” and the employer did not have a place for her services.[162]

While the district court found that Jacobs, as a matter of law, was not disabled, the Fourth Circuit disagreed.[163] Although Jacobs had previously attended outings with coworkers and attempted to perform her front counter job duties, these facts did not establish that she was not “substantially limited” in interacting with others.[164] The court deemed that “[a] person need not live as a hermit in order to be ‘substantially limited’ in interacting with others,” and overturned the district court’s grant of summary judgment to the employer.[165]

 b. Maubach v. City of Fairfax

Another recent Fourth Circuit decision emphasized the importance of the employee participating in the interactive process.[166] Stefanie Maubach, who suffered from panic attacks, requested permission to bring her emotional support dog, Mr. B, into the workplace as she performed her dispatcher duties.[167] Her employer, the City of Fairfax, allowed her to bring Mr. B to work on a trial basis.[168] After her supervisor experienced allergy issues caused by Mr. B, Maubach refused the City’s request that she bring a hypoallergenic dog in place of Mr. B.[169] She also refused to change shifts so that she would not have to leave her dispatcher post uncovered when she needed to take Mr. B out for a walk.[170] Ultimately, the court ruled against Maubach because she failed to participate in the interactive process in good faith.[171] Where “an employee causes the interactive process to break down by insisting on a particular accommodation, an employer cannot be held liable under the ADA.”[172]

 c. Hannah P. v. Coats

The Fourth Circuit also clarified that an employer is permitted to consider an employee’s attendance issues when making employment decisions, even where the employee’s attendance issues stem from an alleged disability—in this case, depression.[173] Hannah was diagnosed with depression only a few months into her five-year term with the Office of the Director of National Intelligence.[174] She did not immediately request any accommodations, but she did notify at least two supervisors of her condition.[175] Two years after Hannah started working, her schedule was “erratic,” she came into work very late, she was “unreachable” for hours, and she had “numerous unplanned absences.”[176] After meeting with a supervisor to make an attendance plan “to reconcile Hannah’s depression with [the employer’s] staffing needs,” Hannah continued to have issues that did not comport with the attendance plan and negatively impacted her co-workers’ and supervisors’ workloads.[177]

The employer rejected Hannah’s application for a permanent position because her “recent performance [was] not consistent with a potentially good employee.”[178] Despite intracompany memoranda discussing Hannah’s medical condition, the court found that the attendance issues were not pretext for discrimination because the focus of the employer’s decision was on the frequency of the attendance issues and its impact on Hannah’s performance.[179]

  1. ADA Retaliation

On a question of first impression, the Eastern District of Virginia held that compensatory and punitive damages are not available forms of relief for ADA retaliation claims.[180] The Fourth Circuit had twice held that compensatory and punitive damages were not available, but neither decision was binding precedent.[181] Because compensatory and punitive damages are unavailable, plaintiffs are not entitled to a jury trial and can seek only equitable relief.[182]

D. The Fair Labor Standards Act

In April 2017, the Fourth Circuit established a new test for joint employer liability under the Fair Labor Standards Act (“FLSA”).[183] The standard articulated in Salinas v. Commercial Interiors, Inc. is unique among the circuits, and a challenging one for employers to overcome. Unlike the test under Title VII, discussed supra, the Salinas test focuses on the relationship between the putative joint employers, rather than the relationship between the worker and each company.

The plaintiffs in Salinas were drywall installers employed by J.I. General Contractors, Inc., a subcontractor, providing services to a general contractor, Commercial Interiors, Inc.[184] Plaintiffs filed claims for unpaid wages and overtime against both J.I. General Contractors and Commercial Interiors.[185] The District of Maryland held that Commercial Interiors was not a joint employer and dismissed it from the case.[186] On appeal, the Fourth Circuit overturned the decision, holding that

joint employment exists when (1) two or more persons or entities share, agree to allocate responsibility for, or otherwise codetermine—formally or informally, directly or indirectly—the essential terms and conditions of a worker’s employment and (2) the two or more persons’ or entities’ combined influence over the terms and conditions of the worker’s employment render the worker an employee as opposed to an independent contractor.[187]

Under the first part of the test, the court enumerated six, non-exhaustive factors:

(1) Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate the power to direct, control, or supervise the worker, whether by direct or indirect means;

(2) Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate the power to—directly or indirectly—hire or fire the worker or modify the terms or conditions of the worker’s employment;

(3) The degree of permanency and duration of the relationship between the putative joint employers;

(4) Whether, through shared management or a direct or indirect ownership interest, one putative joint employer controls, is controlled by, or is under common control with the other putative joint employer;

(5) Whether the work is performed on a premises owned or controlled by one or more of the putative joint employers, independently of or in connection with one another; and

(6) Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate responsibility over functions ordinarily carried out by an employer, such as handling payroll; providing workers’ compensation insurance; paying payroll taxes; or providing the facilities, equipment, tools, or materials necessary to complete the work.[188]

Applying these factors, the court found that Commercial Interiors and J.I. General Contractors “were not completely disassociated”—that the relationship was one of “one employment”—and next considered whether the plaintiffs were employees or subcontractors.[189] The court held that the plaintiffs were “economically dependent on Commercial and J.I. in the aggregate” and were therefore employees of both companies.[190]

The most striking element of this new test is the focus on the relationship between the putative joint employers, instead of the relationship between the worker and each company individually. Rejecting common law agency principles, the court instead held that the “combined influence over the terms and conditions of a worker’s employment may give rise to liability under the FLSA if the entities are ‘not completely disassociated’ with regard to the worker’s employment.”[191] Therefore, any degree of cooperation between the putative joint employers—even if one of the companies does not exercise direct control over the worker—may be enough to establish joint employer liability.[192]

 II. State Law Update

As discussed, supra, Virginia employment laws generally mirror federal law. To the extent the Commonwealth supplements federal law, the distinctions are relatively minor, but in recent years there have been a handful of noteworthy developments on topics such as military leave, data privacy, employee access to personnel files, and wrongful termination claims.

 A. Military Leave

On March 9, 2018, the Virginia General Assembly amended the state’s military leave laws to provide protections for members of the Civil Air Patrol and all persons employed in Virginia who serve in the National Guards of other states.[193] Previously, only residents of Virginia who served in the National Guards of other states were afforded leave and reemployment rights.[194]

 B. The Virginia Data Breach Notification Act

Effective July 1, 2017, Virginia expanded employers’ notification obligations under the Virginia Data Breach Notification Act.[195] Employers and payroll service providers must notify the state’s attorney general, without unreasonable delay, when a covered employer discovers unauthorized access and acquisition of unencrypted or unredacted computerized data containing a taxpayer identification number, in combination with that taxpayer’s income tax withholding.[196]

Covered employers must report a breach if it: (1) compromises the confidentiality of the data; and (2) causes identity theft or fraud, or the employer reasonably believes it has caused or will cause such harm.[197] Covered employers must notify the attorney general even if the breach does not otherwise trigger the statute’s notification obligations to affected individuals.[198]

 C. Personnel Files

Historically, Virginia employers were under no obligation to produce personnel files or employment records to employees or former employees, absent a subpoena. But as of July 1, 2019, all employers in Virginia must, upon written request,

furnish a copy of all records or papers retained by the employer in any format, reflecting (i) the employee’s dates of employment with the employer; (ii) the employee’s wages or salary during the employment; (iii) the employee’s job description and job title during the employment; and (iv) any injuries sustained by the employee during the course of the employment with the employer.[199]

Employers have thirty days to respond to the request.[200] A willful failure to respond may render the employer liable for all expenses incurred by the employee in trying to obtain the records, including attorneys’ fees and court costs.[201]

The statute contains one narrow exception: if the employer has a written statement from the employee’s treating physician or clinical psychologist that providing the employee with his or her employment records may endanger the life or safety of the employee or of another person, then the employer must provide the records to the employee’s attorney or authorized insurer, rather than directly to the employee.[202]

 D. Bowman Claims

Since its inception in Bowman v. State Bank of Keysville,[203] Virginia’s common law cause of action for wrongful termination has lacked a clearly defined scope. Recent guidance from the Supreme Court of Virginia, such as in Francis v. National Accrediting Commission of Career Arts & Sciences, Inc.,[204] has added some clarity to an area of Virginia employment law lacking in predictable black letter law.

Virginia adheres to the employment at-will doctrine.[205] Under that doctrine, either the employee or the employer may end their employment relationship for any reason or no reason.[206] In Bowman, the Supreme Court of Virginia recognized an exception and created a common law cause of action in those instances where the termination of an employee violates Virginia law.[207] In the decades that followed Bowman, the court offered occasional guidance on what constitutes actionable wrongful termination.[208] The result is a patchwork of cases attempting to define several distinct scenarios that may form the basis of a Bowman claim. In Francis, the court’s discussion clarifies the state of the law for those navigating the wrongful termination landscape.[209]

Noemie Francis was terminated after she obtained a preliminary protective order against a co-worker.[210] Following her termination, Francis filed suit alleging wrongful discharge in violation of public policy under Bowman.[211] The trial court sustained the employer’s demurrer and the Supreme Court of Virginia affirmed.[212] In doing so, the court articulated the three “scenarios” available to Bowman plaintiffs.[213] Although the three scenarios are not new concepts, the court’s summary of viable Bowman claims provides a road map for those litigating these types of cases.[214] The court noted that the exception to the employment at-will doctrine is “narrow” and limited to only three circumstances:

(1) When an employer violated a policy enabling the exercise of an employee’s statutorily created right.

(2) When the public policy violated by the employer was explicitly expressed in the statute and the employee was clearly a member of that class of persons directly entitled to the protection enunciated by the public policy.

(3) When the discharge was based on the employee’s refusal to engage in a criminal act.[215]

The third scenario was not at issue, and the court ultimately held that Francis did not state a claim for wrongful termination under scenarios one or two because her termination did not itself violate the public policy stated in the protective order statutes, which is to protect the health and safety of the petitioner or any family or household member of the petitioner.[216] The court reasoned that the termination did not prevent Francis “from exercising her statutory rights under the Protective Order Statutes” nor did it violate the express statutory public policy of protecting her public safety.[217]

The precise limitations of the “public policy” exceptions remain somewhat open, but the court appears resistant to claims of wrongful termination where the statute does not clearly contemplate some form of relief for retaliation or expressly recognize a right exercised by the terminated employee that directly results in her termination.[218]

Conclusion

The employment law landscape in Virginia has changed in recent years, largely due to shifts in the Fourth Circuit’s interpretation of federal law. Because most employment laws in Virginia mirror federal law, the more significant developments in this practice area occur via the federal bench. Notwithstanding that reality, the Virginia legislature has tinkered at the margins of laws regarding military leave, data privacy, and access to personnel records. In addition, the Supreme Court of Virginia recently clarified the standard for wrongful termination claims. Even if state law remains somewhat static, federal employment laws will continue to evolve as courts in Virginia interpret and apply those laws in this jurisdiction.


*      Associate, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Richmond, Virginia. J.D., 2017, University of Richmond School of Law; B.S., 2010, Florida State University.

**   J.D. Candidate 2021, University of Virginia School of Law; M.Ed., 2015, Clemson University; B.S., 2013, University of Virginia’s College at Wise.

[1].   The Article encompasses developments occurring between approximately 2015 and 2019.

 [2].    See, e.g., Women’s Bureau, U.S. Dep’t of Labor, Pay Transparency and Equal Pay Protections, https://dol.gov/wb/EqualPay/equalpay_txt.htm [https://perma.cc/YT95-A8E5] (summarizing state laws around pay transparency and equal pay).

        [3].    Paycheck Fairness Act, H.R. 7, 116th Cong. (as passed by House of Representatives, Mar. 27, 2019).

        [4].    See infra Part I.A.3.

        [5].    See S.B. 1636, Va. Gen. Assembly (Reg. Sess. 2019); H.B. 1089, Va. Gen. Assembly (Reg. Sess. 2018); S.B. 1080, Va. Gen. Assembly (Reg. Sess. 2017); S.B. 221, Va. Gen. Assembly (Reg. Sess. 2016); S.B. 772, Va. Gen. Assembly (Reg. Sess. 2015).

        [6].    See Equal Pay Act of 1963 § 1, 29 U.S.C. § 206(d) (2012); Va. Code Ann. § 40.1-28.6 (Repl. Vol. 2013).

        [7].    Both men and women are protected from discriminatory pay practices under the EPA, but for the purposes of this section of the Article, we use female pronouns throughout.

        [8].    Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 343 (4th Cir. 1994).

        [9].    Strag v. Bd. of Trs., 55 F.3d 943, 950 (4th Cir. 1995) (emphasis added).

      [10].    Wheatley v. Wicomico Cty., 390 F.3d 328, 333 (4th Cir. 2004) (quoting Brennan v. City Stores, Inc., 479 F.2d 235, 238 (5th Cir. 1973)).

      [11].    See Noel-Batiste v. Va. State Univ., No. 3:12cv00826-HEH, 2013 U.S. Dist. LEXIS, 16875, at *17 (E.D. Va. Feb. 6, 2013) (“It is insufficient that Plaintiff and other male [employees] have similar titles and similar generalized responsibilities; the skills, effort and responsibility must be substantially equal.”).

      [12].    Hassman v. Valley Motors, Inc., 790 F. Supp. 564, 569 (D. Md. 1992) (quoting Brewster v. Barnes, 788 F.2d 985, 993 n.13 (4th Cir. 1986)).

      [13].    919 F.3d 199, 203 (4th Cir. 2019); see discussion infra Part I.A.2.

      [14].    29 U.S.C. § 206(d)(1) (2012).

      [15].    See Strag v. Bd. of Trs., 55 F.3d 943, 948 (4th Cir. 1995).

      [16].    See, e.g., Cal. Lab. Code § 1197.5 (West 2019); N.J. Stat. Ann. § 10:5-12 (West 2019); N.Y. Lab. Law § 194 (Consol. 2019) (effective Oct. 8, 2019).

      [17].    S.B. 1636, Va. Gen. Assembly (Reg. Sess. 2019). Notably, this bill would have expanded the definition of “protected class” under the Virginia Equal Pay Act to include “persons distinguished by race, color, religion, sex, sexual orientation, gender identity or expression, political affiliation, national origin, marital status, veteran status, disability, or age.” Id.

      [18].    Id.

      [19].    Id.

      [20].    U.S. Equal Emp’t Opportunity Comm’n v. Md. Ins. Admin., 879 F.3d 114, 121 (4th Cir. 2018).

      [21].    Id. (emphasis added).

      [22].    Id. (emphasis omitted).

      [23].    Id. (citing Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1312 (10th Cir. 2006); Stanziale v. Jargowsky, 200 F.3d 101, 107–08 (3d Cir. 2000)).

      [24].    Id. at 117–18.

      [25].    See U.S. Equal Emp’t Opportunity Comm’n v. Md. Ins. Admin., No. 15-1091, 2016 U.S. Dist. LEXIS 142701, at *1–2 (D. Md. Oct. 14, 2016), vacated and remanded, 879 F.3d 114, 124 (4th Cir. 2018).

      [26].    Id.

      [27].    Md. Ins. Admin., 879 F.3d at 116–17.

      [28].    See id. at 118–19.

      [29].    Id. at 122–23.

      [30].    Id. at 123.

      [31].    Id.

      [32].    See, e.g., Earl v. Norfolk State Univ., No. 2:13cv148, 2016 U.S. Dist. LEXIS 35171, at *2–3 (E.D. Va. Mar. 17, 2016); Noel-Batiste v. Va. State Univ., No. 3:12cv00826-HEH, 2013 U.S. Dist. LEXIS 16875, at *1, *7–8 (E.D. Va. Feb. 6, 2013).

      [33].    Spencer v. Va. State Univ., 919 F.3d 199, 202, 208–09 (4th Cir. 2019).

      [34].    Id. at 202.

      [35].    Id.

      [36].    Id.

      [37].    Id. at 203–04 (citing Wheatley v. Wicomico Cty., 390 F.3d 328, 332–33 (4th Cir. 2004)).

      [38].    Id. at 204 (citing Wheatley, 390 F.3d at 332–33).

      [39].    Id.

      [40].    Id.

      [41].    Id.

      [42].    Id. at 202.

      [43].    Spencer v. Va. State Univ., No. 3:16cv989-HEH, 2018 U.S. Dist. LEXIS 15773, at *11 (E.D. Va. Jan. 30, 2018), aff’d, 919 F.3d 199 (4th Cir. 2019).

      [44].    Id. at *9.

      [45].    Spencer, 919 F.3d at 205 (citing Strag v. Bd. of Trs., 55 F.3d 943, 950 (4th Cir. 1995); Soble v. Univ. of Md., 778 F.2d 164, 167 (4th Cir. 1985)); see also Earl v. Norfolk State Univ., No. 2:13cv148, 2016 U.S. Dist. LEXIS 35171, at *14–15 (E.D. Va. Mar. 17, 2016) (“[R]are would be the case where a university professor can demonstrate that a professor from a different department is a valid EPA comparator . . . .”).

      [46].    See Spencer, 919 F.3d at 204–05 (“While comparisons might be drawn between some departments, any such comparison requires the plaintiff to articulate with specificity why the work performed and skills needed by a professor in one department are virtually identical—and not just generally related or of comparable worth—to those in another.”).

      [47].    See id. at 204–06.

      [48].    Id. at 205.

      [49].    Id.

      [50].    Id.

      [51].    Id. at 205, n.2.

      [52].    Compare id., with Blackman v. Fla. Dep’t of Bus. & Prof’l Regulation, 599 F. App’x 907, 918 (11th Cir. 2015) (“If an employer could circumvent the protections of the EPA by merely piling more work onto its female employees than its male employees, the EPA would be meaningless.”), and Riordan v. Kempiners, 831 F.2d 690, 699 (7th Cir. 1987) (“[A]n employer cannot avoid the [EPA] by the simple expedient of loading extra duties onto its female employees—unless it pays them more.”).

      [53].    Spencer, 919 F.3d at 203, 206.

      [54].    Id. at 206.

      [55].    Id.

      [56].    Id.

      [57].    Id. at 207.

      [58].    See Press Release, Equal Emp’t Opportunity Comm’n, EEOC to Collect Summary Pay Data (Sept. 29, 2016), https://www.eeoc.gov/eeoc/newsroom/release/9-29-16.cfm [https: //perma.cc/FF3A-PHKG].

      [59].    See 29 C.F.R. § 1602.7 (1967); 41 C.F.R. § 60-1.7 (1978).

      [60].    Agency Information Collection Activities: Revision of the Employer Information Report (EEO-1) and Comment Request, 81 Fed. Reg. 5113, 5113 (Jan. 21, 2016).

      [61].    Memorandum from the White House to the Sec’y of Labor (Apr. 8, 2016), https://ob amawhitehouse.archives.gov/the-press-office/2014/04/08/presidential-memorandum-advan cing-pay-equality-through-compensation-data [https://perma.cc/FF3A-PHKG].

      [62].    Press Release, Equal Emp’t Opportunity Comm’n, supra note 58.

      [63].    Id.

      [64].    What You Should Know: Statement of Acting Chair Victoria A. Lipnic About OMB Decision on EEO-1 Pay Data Collection, U.S. Equal Emp’t Opportunity Comm’n, https:// www.eeoc.gov/eeoc/newsroom/wysk/eeo1-pay-data.cfm [https://perma.cc/RQU7-45SZ].

      [65].    See Nat’l Women’s Law Ctr. v. Office of Mgmt. & Budget, 358 F. Supp. 3d 66, 93 (D.D.C. 2019).

      [66].    See id. at 90.

      [67].    Id. at 93.

      [68].    Order at 2, Nat’l Women’s Law Ctr. v. Office of Mgmt. & Budget, 358 F. Supp. 3d 66 (D.D.C. Apr. 25, 2019) (No. 17-CV-2458), Document 71.

      [69].    EEO-1 Pay Data Collection for 2017, 84 Fed. Reg. 18,974 (May 3, 2019).

      [70].    Id.

      [71].    See Agency Information Collection Activities, 81 Fed. Reg. 45,479, 45,484 (July 14, 2016).

      [72].    Frequently Asked Questions (FAQs), U.S. Equal Emp. Opportunity Comm’n, https://eeoccomp2.norc.org/faq [https://perma.cc/G2G8-WB8Z].

      [73].    Id.

      [74].    Id.

      [75].    42 U.S.C. § 2000e-2(a)(1) (2012).

      [76].    Hinton v. Va. Union Univ., 185 F. Supp. 3d 807, 817 (E.D. Va. 2016).

      [77].    Id.

      [78].    Id. (quoting Lee v. Wade, No. 3:15CV37, 2015 U.S. Dist. 115660, at *3 (E.D. Va. Aug. 31, 2015)).

      [79].    411 U.S. 792, 802 (1973).

      [80].    See, e.g., Hinton, 185 F. Supp. 3d at 817–18 (quoting Goode v. Cent. Va. Legal Aid Soc’y, Inc., 807 F.3d 619, 626 (4th Cir. 2015)).

  [81].    See Fort Bend Cty. v. Davis, 139 S. Ct. 1843, 1848 (2019) (citing Jones v. Calvert Group, Ltd., 551 F. 3d 297, 300 (4th Cir. 2009)).

      [82].    See id. at 1849–50.

      [83].    Id. at 1845, 1850–51.

      [84].    Id. at 1846.

      [85].    See Obergefell v. Hodges, 135 S. Ct. 2584, 2607–08 (2015).

      [86].    What You Should Know About EEOC and the Enforcement Provisions for LGBT Workers, U.S. Equal Emp’t Opportunity Comm’n, https://www.eeoc.gov/eeoc/newsroom/ wysk/enforcement_protections_lgbt_workers.cfm [https://perma.cc/RF76-VM36].

      [87].    Compare Bostock v. Clayton Cty. Bd. of Comm’rs, 723 Fed. App’x 964, 964 (11th Cir. 2018) (per curiam) (confirming that there is no cause of action for discrimination on the basis of sexual orientation under Title VII), cert. granted, 139 S. Ct. 1599 (U.S. Apr. 22, 2019) (No. 17-1618), with Zarda v. Altitude Express, Inc., 883 F.3d 100, 112 (2d Cir. 2018) (holding that Title VII protects against discrimination on the basis of sexual orientation), cert. granted, 139 S. Ct. 1599 (U.S. Apr. 22, 2019).

      [88].    Bostock v. Clayton Cty., 139 S. Ct. 1599 (2019) (granting petition for writ of certiorari); Altitude Express, Inc. v. Zarda, 139 S. Ct. 1599 (2019) (granting petition for writ of certiorari).

      [89].    R.G. & G.R. Harris Funeral Homes, Inc., v. Equal Emp’t Opportunity Comm’n, 139 S. Ct. 1599 (2019) (granting petition for writ of certiorari); see Price Waterhouse v. Hopkins, 490 U.S. 228, 250–51, 258 (1989).

      [90].    185 F. Supp. 3d 807, 814–15 (E.D. Va. 2016).

      [91].    Id. at 812.

      [92].    Id.

      [93].    Id.

      [94].    Id.

      [95].    Id. at 812–13.

      [96].    Id. at 813.

      [97].    99 F.3d 138, 143 (4th Cir. 1996).

      [98].    Hinton, 185 F. Supp. 3d at 815.

      [99].    Id. See Murray v. N.C. Dep’t of Pub. Safety, 611 Fed. App’x 166, 166 (4th Cir. 2015) (per curiam); Wrightson, 99 F.3d at 143.

    [100].    See Hinton, 185 F. Supp. 3d at 815, 817 (explaining that EEOC rulings have “the power to persuade” but protecting on the basis of sexual orientation is ultimately within the purview of Congress).

    [101].    Grimm v. Gloucester Cty. Sch. Bd., 302 F. Supp. 3d 730, 738, 746–47 (E.D. Va. 2018).

    [102].    Id. at 736–37.

    [103].    Id. at 736.

    [104].    Id. at 737.

    [105].    Id.

    [106].    Id. at 737–38.

    [107].    Id. at 738.

    [108].    Id.

    [109].    Id. at 144 (citing G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 718 (4th Cir. 2016)).

    [110].    Id. (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 250–51 (1989)).

    [111].    Id. at 745 (citing M.A.B. v. Bd. of Educ., 286 F. Supp. 3d 704, 714 (D. Md. 2018)).

    [112].    Id. at 746.

    [113].    Id. at 746, 748, 752.

    [114].    See Monica Anderson & Skye Toor, How Social Media Users Have Discussed Sexual Harassment Since #MeToo Went Viral,  Pew  Research  Ctr.  (Oct. 22, 2018), https://pewre search.org/fact-tank/2018/10/11/how/how-social-media-users-have-discussed-sexual-harass ment-since-metoo-went-viral/ [https://perma.cc/K98B-HEEM]; Charges Alleging Sexual Harassment FY 2010–FY 2018, Equal Emp’t Opportunity Comm’n, https://www.eeoc.gov /eeoc/statistics/enforcement/sexual_harassment_new.cfm [https://perma.cc/9Q4S-MTBA] [hereinafter Sexual Harassment Charges].

    [115].    Anderson & Toor, supra note 114.

    [116].    Id.

    [117].    See Sexual Harassment Charges, supra note 114.

    [118].    Id.

    [119].    915 F.3d 297, 299–300, 305 (4th Cir. 2019), petition for cert. filed, 87 U.S.L.W. 3457 (U.S. May 9, 2019) (No. 18-1442).

    [120].    Id. at 300.

    [121].    Id.

    [122].    Id.

    [123].    Id. at 300–01.

    [124].    Id. at 301.

    [125].    Id. at 302–03.

    [126].    Id. at 303 (quoting Spain v. Gallegos, 26 F.3d 439, 448 (3d Cir. 1994)).

    [127].    Id. at 304.

    [128].    Ray v. Int’l Paper Co., 909 F.3d 661, 668, 671 (4th Cir. 2018).

    [129].    Id. at 665.

    [130].    Id.

    [131].    Id.

    [132].    Id.

    [133].    Id. at 667 (quoting Vance v. Ball State Univ., 570 U.S. 421, 424 (2013)).

    [134].    Id. at 668.

    [135].    Bauer v. Lynch, 812 F.3d 340, 351 (4th Cir. 2016).

    [136].    Id. at 342.

    [137].    Id. at 343.

    [138].    Id.

    [139].    Id. at 350.

    [140].    Id. at 351.

    [141].    Id. at 351–52.

    [142].    See Bauer v. Sessions, 254 F. Supp. 3d 809, 819 (E.D. Va. 2017).

    [143].    See 719 F. App’x 184, 189 (4th Cir. 2018) (per curiam).

    [144].    Id. at 185–86.

    [145].    Id. at 186.

    [146].    Id.

    [147].    Id.

    [148].    Id.

    [149].    Id.

    [150].    Id. at 189.

    [151].    Id.

    [152].    Id.

    [153].    Id.

    [154].    Id. at 190.

    [155].    793 F.3d 404, 408 (4th Cir. 2015).

    [156].    Id. at 410, 413.

    [157].    Id. at 414.

    [158].    Id. at 414–15 (quoting Cilecek v. Inova Health Sys. Servs., 115 F.3d 256, 260 (4th Cir. 1997)).

    [159].    Id. at 414–15.

    [160].    Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 570 (4th Cir. 2015).

    [161].    Id. at 565.

    [162].    Id. at 566–67.

    [163].    Id. at 570.

    [164].    Id. at 574.

    [165].    Id. at 573, 582.

    [166].    Maubach v. City of Fairfax, No. 1:17-cv-921, 2018 U.S. Dist. LEXIS 73815, at *12–14 (E.D. Va. Apr. 30, 2018).

    [167].    Id. at *3–4.

    [168].    Id. at *4.

    [169].    Id. at *5, 9–10.

    [170].    Id. at *5–6, 8.

    [171].    Id. at *19.

    [172].    Id. at *17.

    [173].    Hannah P. v. Coats, 916 F.3d 327, 344 (4th Cir. 2019).

    [174].    Id. at 333.

    [175].    Id.

    [176].    Id. at 334.

    [177].    Id. at 334–35.

    [178].    Id. at 343.

    [179].    Id.

    [180].    Akbar-Hussain v. ACCA, Inc., No. 1:16cv1323 (JCC/IDD), 2017 U.S. Dist. LEXIS 6472, at *11–13 (E.D. Va. Jan. 17, 2017).

    [181].    Id. at *11 (citing Rhoads v. Fed. Deposit Ins. Corp., 94 Fed. App’x 187, 188 (4th Cir. 2004) (per curiam); Bowles v. Carolina Cargo, Inc., 100 Fed. App’x 889, 890 (4th Cir. 2004) (per curiam)).

    [182].    See id. at *13.

    [183].    Salinas v. Commercial Interiors, Inc., 848 F.3d 125, 140 (4th Cir. 2017).

    [184].    Id. at 129.

    [185].    Id. at 131.

    [186].    Id. at 132.

    [187].    Id. at 151.

    [188].    Id. at 141–42.

    [189].    Id. at 150.

    [190].    Id. at 150–51.

    [191].    Id. at 137–38.

    [192].    Id. at 150–51.

    [193].    Act of Mar. 9, 2018, ch. 216, 2018 Va. Acts __, __ (codified as amended at Va. Code Ann. §§ 44-93.2 to -93.4 (Cum. Supp. 2019)).

    [194].    See Va. Code Ann. §§ 44-93.2 to -93.4 (Repl. Vol. 2013).

    [195].    See id.

    [196].    Id.

    [197].    Id.

    [198].    See id.

    [199].    Va. Code Ann. § 8.01-413.1(B) (Cum. Supp. 2019).

    [200].    Id.

    [201].    Id. § 8.01-413.1(D) (Cum. Supp. 2019).

    [202].    Id. § 8.01-413.1(E) (Cum. Supp. 2019).

    [203].    See 229 Va. 534, 535, 540, 331 S.E.2d 797, 798, 801 (1985).

    [204].    See 293 Va. 167, 174, 796 S.E.2d 188, 192 (2017).

    [205].    Id. at 171, 796 S.E.2d at 190.

    [206].    Johnston v. William E. Wood & Assocs., Inc., 292 Va. 222, 225, 787 S.E.2d 103, 105 (2016) (quotation marks omitted).

    [207].    Bowman, 229 Va. at 540, 331 S.E.2d at 801.

    [208].    See, e.g., Mitchem v. Counts, 259 Va. 179, 187–91, 523 S.E.2d 246, 250–53 (2000) (explaining that terminating an employee for refusing to engage in criminal activity is grounds for a wrongful termination suit); Bailey v. Scott-Gallaher, Inc., 253 Va. 121, 125–26, 480 S.E.2d 502, 504–05 (1997) (holding that terminations which violate a statutory public policy give rise to a wrongful termination suit).

    [209].    See Francis, 293 Va. at 172–73, 796 S.E.2d at 190–91.

    [210].    Id. at 170, 796 S.E.2d at 189–90.

    [211].    Id. at 171, 796 S.E.2d at 190.

    [212].    Id. at 171, 175, 796 S.E.2d at 190, 192.

    [213].    Id. at 172–73, 796 S.E.2d at 190–91.

    [214].    See id. at 173–75, 796 S.E.2d at 191–92.

    [215].    Id. at 172–73, 796 S.E.2d at 190–91 (quotation marks omitted).

    [216].    Id. at 173–75, 796 S.E.2d at 191–92.

    [217].    Id. at 174–75, 796 S.E.2d at 191–92.

    [218].    See id. at 173–75, 796 S.E.2d at 191–92.

 


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