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What is the Standard for Obtaining a Preliminary Injunction in Virginia?

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What is the Standard for Obtaining a Preliminary Injunction in Virginia?

A perception exists that the Supreme Court of Virginia has not articulated the legal standard for adjudicating preliminary-injunction motions in Virginia circuit courts. For decades, lawyers and legal scholars have advocated that Virginia trial judges borrow the federal preliminary-injunction standard applied in the United States Court of Appeals for the Fourth Circuit. Virginia trial courts have generally followed that advice. Virginia courts at first applied the Fourth Circuit’s Blackwelder test, which called upon judges to balance the four traditional factors and allowed a stronger balance of-hardship showing to offset a weaker showing of likely success on the merits. After the 2008 decision by the Supreme Court of the United States in Winter, the Fourth Circuit overruled Blackwelder in 2009 in Real Truth About Obama. The Real Truth test requires all four preliminary-injunction factors to be independently satisfied. Since then, Virginia circuit courts have generally applied the Real Truth standard.

This Article shows that ample Virginia precedent and English precedent support the consideration of the four traditional factors, making it unnecessary to rely on federal precedent. Under existing Virginia law, a plaintiff seeking a preliminary injunction must show a likelihood of irreparable harm (absent a statute that provides for an injunction). Beyond that, Virginia cases have balanced the factors. The Supreme Court of Virginia has also allowed a preliminary injunction without a showing that the plaintiff was likely to succeed on the merits, provided the plaintiff demonstrated a “prima facie case.” Whether that showing must be a “fair” prima facie case or “strong” prima case will require further development. But this existing Virginia precedent provides a superior basis for evaluating preliminary-injunction motions in Virginia trial courts than the Fourth Circuit’s Real Truth standard.

Stuart A. Raphael *

*Judge, Court of Appeals of Virginia.

Banning Noncompetes in Virginia

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Banning Noncompetes in Virginia

The past decade has seen a nationwide wave of reform in noncompete law, specifically the limitation of noncompete agreements. Since 2016, ten states—including Virginia in 2020— banned the use of noncompete agreements against certain “lowwage” employees. In order to stay ahead of this curve and ensure Virginia remains and grows as one of the top states to do business, this Article suggests that Virginia—like its neighbor, the District of Columbia, initially did in 2021—pass a complete ban of all noncompete agreements in the employment context. Such a ban would make Virginia a lucrative destination for entrepreneurs and startups by maximizing the job and employee market and keeping the best business opportunities for employers and employees alike in-state. The Article forecasts this effect by examining the rise of California’s Silicon Valley, where employee noncompete agreements are banned, and the converse decline of innovation in Michigan since 1985, when the state accidentally repealed its noncompete ban. Virginia would specifically benefit from a ban of employee noncompetes because its current noncompete law is inadequate. This Article argues that Virginia courts’ longstanding three-prong test weighing legitimate business interest, undue hardship, and public policy is dangerously unpredictable—so much so that the Supreme Court of Virginia once upheld and struck down the exact same noncompete agreement in two different cases—resulting in legal guesswork and unfair bargaining power between employer and employee. This Article also suggests that Virginia’s 2020 “low wage” ban insufficiently addresses the issues at hand and even further adds to the burden of deciphering the law. While some may claim employee noncompete agreements are necessary to protect legitimate business interests and advance the freedom of contract, this Article responds that such business interests are already adequately protected by other, less problematic provisions—namely, confidentiality and nonsolicitation agreements—and that the freedom of contract is not any less valuable than the freedom of trade, which employee noncompete agreements severely restrain. Finally, this Article proposes model legislation to aid the Virginia General Assembly, and other jurisdictions who may follow suit, in passing such a ban.

Christopher J. Sullivan *

Justin A. Ritter **

*Associate, Ritter Law PLLC, Charlottesville, Virginia. J.D., 2022, University of Richmond School of Law. Editor-in-Chief, University of Richmond Law Review, Volume 56.

**Founder, Ritter Law PLLC, Charlottesville, Virginia. J.D., 2011, Penn State Dickinson Law.

Acknowledgements

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Acknowledgements

Over the past year serving as Editor-in-Chief of the University of Richmond Law Review, I have read over 1,400 pages of legal scholarship. I have reviewed over 8,500 footnotes and even more sources. I have opened the Bluebook to consult the Table 6 abbreviations more times than I can count—or would ever want to admit. Nothing, however, has posed a more daunting challenge in my tenure than finding the right words to leave in these few pages here. After all Volume 56 and I have been through, after all we have accomplished, where does one even begin to completely yet briefly acknowledge the moments, memories, and people who brought this journal to where it is today?

Christopher J. Sullivan *

*Editor-in-Chief, University of Richmond Law Review Vol. 56. J.D., 2022, University of Richmond School of Law.

A Music Industry Circuit Split: The De Minimis Exception in Digital Sampling

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A Music Industry Circuit Split: The De Minimis Exception in Digital Sampling

When hip-hop icon Biz Markie released his album “All Samples Cleared!” he joked of the end of what was known as the “Golden Age” of digital sampling in the hip-hop and rap music industry. The Golden Age began in the late 1980s, and because there was no regulation of the practice, it was a period of musical enlightenment in which musicians could freely utilize digital sampling without legal repercussion. However, in 2005, the United States Court of Appeals for the Sixth Circuit handed down an opinion that sent shock waves across the music industry. In Bridgeport Music Inc. v. Dimension Films, the Sixth Circuit cracked down on digital sampling when it ruled that any use of a copyrighted sound recording amounted to copyright infringement, no matter the size of the sample taken. Although the opinion was staunchly criticized, it remained the only digital sampling case decided by the federal court of appeals for over ten years. Yet, in 2016, the United States Court of Appeals for the Ninth Circuit formalized the divide when it held that the de minimis defense—the rule that a small amount of copying is permitted—does, in fact, apply to sound recordings. This opinion stands in direct opposition to the Bridgeport holding, thereby creating a circuit split on the issue of de minimis use of digital sampling. If this rift remains unresolved, it will continue to send a wave of unpredictability across the music industry that will both chill artistic creativity and stifle the judicial economy.

Michaela S. Morrissey *

*J.D., 2022, University of Richmond School of Law.

Humanize, Don’t Paternalize: Victim-Offender Mediation After Intimate Partner Violence

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Humanize, Don’t Paternalize: Victim-Offender Mediation After Intimate Partner Violence

Retributive legal systems fail survivors of intimate partner violence. In criminal cases, when the government and the offender are the parties to the matter, the legal status of a survivor is reduced to that of a mere witness. Survivors then must surrender their agency in the fight against their own trauma. Survivors of intimate partner violence (“IPV”) who turn to civil litigation to recover after their experiences may experience further trauma as a result of time-consuming, extensive, and often invasive contact with the legal system. Even restitution, a largely restorative remedy, lacks the agency, finality, and emotive opportunities that IPV survivors in particular often desire. The retributive legal system displays a critical gap in addressing the needs of survivors. Restorative justice methods showcasing victim-offender mediation (“VOM”) can fill that gap for a substantial number of survivors.

A truly just—a truly fair—society benefits everyone. In order to benefit everyone, the corresponding just legal system should include emphatic consideration for the needs of the survivors and offenders of those crimes in order to encourage healing on all sides, including that of the community at large. Restorative justice principles and methods, commonly including victim-offender conferencing, have been successfully implemented in numerous settings, including in juvenile cases, drug crimes, and sexual assault and rape cases. Courts should consider balancing various positive and negative factors in each case of IPV to determine whether survivors, offenders, and the community at large would benefit better from restorative victim-offender conferencing than from traditional retributive justice practices.

Ren Warden*

*J.D., cum laude, 2022, University of Richmond School of Law.

Movement Lawyers: Henry L. Marsh’s Long Struggle for Educational Justice

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Movement Lawyers: Henry L. Marsh’s Long Struggle for Educational Justice

Born in 1933 in Richmond, Virginia, Henry Marsh was a protégé of legendary Virginia civil rights attorney Oliver Hill, who was a member of a civil rights legal team with Spotswood Robinson and commissioned by Charles Hamilton Houston to investigate school inequalities and prepare a legal strategy for dismantling segregationist laws. Growing up in Virginia during the 1930s, 40s, and 50s, Marsh was reared in the apartheid culture of Jim Crow society. Later, under Oliver Hill and Samuel W. Tucker’s mentorship, Marsh studied Virginia’s legal and educational systems and learned how to navigate Virginia’s seemingly tranquil Jim Crow politics called “the Virginia Way.” Marsh is an ideal figure for offering insight into how a movement lawyer and politician navigated the Virginia Way because his career intersected law, politics, and Black leadership in Virginia from the 1950s into the early years of the twenty-first century.

Danielle Wingfield-Smith*

*Visiting Assistant Professor of Law and Fellow, Gonzaga University School of Law,
Center for Civil and Human Rights.