Criminal – Photo Lineup – Robbery Victim IDs 
By Deborah Elkins
Published: July 28, 2008
The Court of Appeals affirms defendant’s convictions for several robberies that occurred over a two-day period in Alexandria based on identifications of defendant by robbery victims who viewed a booking photo of defendant in a photo lineup.
Defendant contends showing the photos simultaneously to the victims was unduly suggestive and the trial court erred in refusing [...]
Criminal – Request For Counsel – Continued Questioning
By Deborah Elkins
Published: July 28, 2008
A defendant who came to the police station for questioning about a B&E in Pittsylvania County clearly invoked his right to counsel when he told the investigator, “I want a lawyer, you know what I’m saying?” and “my moma said that if I get in any more trouble, I need a lawyer,” and defendant’s burglary [...]
Domestic Relations – Custody Order – Basis For Decision
By Deborah Elkins
Published: July 28, 2008
The Court of Appeals reverses a decision awarding primary physical custody of the parties’ young son to mother, as it agrees that the trial court did not adequately communicate the basis for its custody award as required by Va. Code § 20-124.3.
At the conclusion of the trial, the trial court stated orally that it found [...]
Products Liability – Medical Device – Preemption – Manufacturer Rep Presence
By Deborah Elkins
Published: July 28, 2008
A woman’s products liability warranty and design claims against the manufacturer of a NovaSure device used during endometrial surgery are preempted under the 1976 Medical Device Amendments, but she may amend her complaint to state a negligence claim against the manufacturer based on allegations that the manufacturer’s rep was in the OR and negligently directed [...]
Tort – Defamation – Law School Letters – Nevada Divorce Case
By Deborah Elkins
Published: July 28, 2008
Letters written by Nevada divorce lawyers to Washington & Lee Law School accusing a W&L law student whose wife they represented of “kidnapping, passport fraud, felony non-support of children and violation of RICO” were defamatory per se, but a jury will have to decide whether the divorce lawyers lost their “public record” privilege by substantially [...]
Employment Discrimination – Exhaustion – Failure To Promote – Sexual Harassment
By Deborah Elkins
Published: July 28, 2008
A former female employee of the Department of Defense has her complaint alleging sexual harassment and failure to promote in violation of Title VII dismissed by a Richmond U.S. District Court.
The court finds plaintiff has failed to show that her administrative complaint was timely filed, that she fails to state a cognizable claim under Title [...]
Intellectual Property – Lanham Act – Mattress Labels – ‘Royal Heritage’ Product Line
By Deborah Elkins
Published: July 28, 2008
A Richmond U.S. District Court holds that plaintiff Power Marketing Direct Inc., which distributes mattresses to independent, licensed dealers, can sue defendant manufacturer under the Lanham Act, 15 U.S.C. § 1125(a), and on a Virginia claim of unfair competition, for continuing to use plaintiff’s distinctive “Royal Heritage” labels on mattresses distributed to dealers not licensed [...]
Employment – ERISA – Pension Benefits – Exhaustion
By Deborah Elkins
Published: July 28, 2008
A participant in the Boeing Company’s pension plan who sought benefits in the form of a surviving spouse option and who objected to a reduction in his benefits for the pension fund’s collection of an alleged overpayment of benefits, cannot pursue his ERISA claim because he failed to exhaust his administrative remedies, an Alexandria U.S. [...]
Contract – Government Contract – UCITA – Pay-If-Paid Clause
By Deborah Elkins
Published: July 28, 2008
A government subcontractor cannot collect for software it marketed to the National Security Agency and tried to get the agency to buy through defendant prime contractor, under either the controlling “pay if paid” language of the subcontract, or under the Uniform Computer Information Transaction Act, Va. Code § 59.1-501.3, an Alexandria U.S. District Court holds.
Plaintiff [...]
Commercial – Loan Guaranty – Arbitration – Demand By Party
By Deborah Elkins
Published: July 28, 2008
A borrower and the guarantor of its $1.1 million loan from Wachovia Bank lose their demand that the Richmond U.S. District Court dismiss Wachovia’s suits to enforce the promissory note and the guaranty because the promissory note and guaranty require a party to demand arbitration, and neither party has made such a demand.
Wachovia acknowledges that [...]
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