No Consent to Tax on Flood Insurance Premiums

Fraud Claim Not Preempted by HOLA

By Deborah Elkins
Published: March 27, 2013
Tags: 4th U.S. Circuit Court of Appeals, Judge Allyson K. Duncan, Real Estate

A plaintiff who defaulted on her home loan and complained about an inflated appraisal, unfair loan terms and a rushed loan closing may sue the lender for fraud under state law, as that claim is not preempted by the federal Home Owners’ Loan Act, but her unconscionability claim is preempted under 12 C.F.R. § 560.2 [...]

Fired for False Records, Retaliation Claim Fails

By Deborah Elkins
Published: March 20, 2013
Tags: 4th U.S. Circuit Court of Appeals, Employment Discrimination, Judge Allyson K. Duncan

A woman terminated for falsifying time records cannot win her Title VII case alleging she was fired in retaliation for complaining about not being allowed to wear ripped jeans, although men could wear ripped jeans; the 4th Circuit also says her supervisor’s thank-you hug for Christmas cookies she gave him was not assault and battery. [...]

No Amendment of Dismissed Complaint

By Deborah Elkins
Published: March 20, 2013
Tags: 4th U.S. Circuit Court of Appeals, Civil Procedure, Judge Paul V. Niemeyer

A church that filed a lawsuit challenging a city’s denial of a special use permit to allow it to expand its child-care program could not amend its complaint because the complaint already had been dismissed by the district court; the 4th Circuit says there simply was no complaint pending to amend. The church wanted to [...]

Defendant Missed Three Chances to Amend

By Deborah Elkins
Published: March 20, 2013
Tags: 4th U.S. Circuit Court of Appeals, Civil Procedure, Judge Barbara Milano Keenan

In this trademark infringement case, the defendant waived its affirmative defenses of claim preclusion and issue preclusion by waiting three months to ask to amend its answer to include these defenses, and the district court erred in setting aside the jury verdict for plaintiff and entering judgment for defendant, based on these preclusion defenses; the [...]

Va. Anti-Sodomy Statute Overturned

By Deborah Elkins
Published: March 20, 2013
Tags: 4th U.S. Circuit Court of Appeals, Criminal, Judge Robert B. King

A 47-year-old man convicted of criminal sexual solicitation of a 17-year-old woman based on his solicitation of an act of sodomy under Va. Code § 18.2-361(A) wins habeas relief in the 4th Circuit, as the federal appellate court declares Virginia’s anti-sodomy statute unconstitutional. Defendant pursues both facial and applied due process challenges to the anti-sodomy [...]

Amendment 750 Sentence Reduction Upheld

By Deborah Elkins
Published: March 14, 2013
Tags: 4th U.S. Circuit Court of Appeals, Criminal, Judge Diana Gribbon Motz

The 4th Circuit upholds reduction of a sentence for a defendant convicted in 1998 of intent to distribute crack cocaine and distribution of powder cocaine, as the district court did not clearly err in holding that it had not originally made a finding that rendered defendant ineligible for the reduction. We review a district court’s [...]

New Trial Ordered in Carjacking Case

By Deborah Elkins
Published: March 14, 2013
Tags: 4th U.S. Circuit Court of Appeals, Criminal, Judge William B. Traxler Jr.

In a carjacking prosecution that turned on identification of defendant as the dreadlocked offender who stole the victim’s car, the government’s error in misrepresenting the date on a photo of a different suspect without dreadlocks, who was seen driving the vehicle three days after the carjacking, means defendant is entitled to a new trial based [...]

Investors Not ‘Customers’ for FINRA Arbitration

By Deborah Elkins
Published: March 14, 2013
Tags: 4th U.S. Circuit Court of Appeals, Contract, Judge J. Harvie Wilkinson III

Investors who purchased allegedly fraudulent securities directly from a business on the recommendation of a lawyer who was working with a broker for a financial services company were not “customers” of the company entitled to FINRA arbitration; the 4th Circuit says that to compel arbitration in this case, in which the investors did not buy [...]

Medicaid Recipients Win Injunction With Remand

By Deborah Elkins
Published: March 14, 2013
Tags: 4th U.S. Circuit Court of Appeals, Administrative, Judge Henry F. Floyd

The 4th Circuit says a district court did not err in granting a preliminary injunction to a class of Medicaid recipients challenging the state legislature’s decision to limit their access to in-home Personal Care Services, but the case is remanded for the district court to spell out details – including the need for security – [...]