Theme for 2014’s cases: Time and money

So often, it all comes down to time and money. A lawyer selling time for money, a client wanting to win or avoid paying money, a client trying to avoid time spent in custody. These shifting aims and inducements that take people to court are the common themes in this year’s case highlights.

ATTORNEY’S FEES

Fee awards always draw notice. Judicial decisions offer concrete guidance on requesting and winning fees and a check on billing rates in different parts of the commonwealth, not to mention a little gossip.

A Richmond federal court awarded $354,127 in attorney’s fees in a former CFO’s Sarbanes-Oxley whistleblower suit against a video game developer ordered to pay the plaintiff $693,000 of a $1 million jury award. The trial judge in Jones v. Southpeak Interactive Corp. (VLW 014-3-336) endorsed the 250 hours the plaintiff’s lawyers spent preparing to try the novel case in the rocket docket.

In an Alexandria bankruptcy court, an investment firm asked for $28,748.95 in fees for winning a motion to compel production of investor information in its suit against a real estate fund, but the judge said counsel’s rates were outside the local range for what was reasonable, and some of the time spent was unnecessary. He knocked the fee down to $4,815 in Acadia Investments LC v. UBS Real Estate Opportunity Fund III (VLW 014-4-006).

Even though the petitioning lawyers had been replaced in In re:Outsidewall Tire Litigation (VLW 014-3-521), they still picked up nearly $2 million in fees under a Virginia law that protects a law firm’s right to quantum meruit compensation when a client changes attorneys.

In Caner v. Autry, (VLW 014-3-335), Lynchburg U.S. District Judge Norman K. Moon tossed a Baptist minister’s copyright infringement claims and ordered him to pay $34,262.50 in attorney’s fees for frivolous arguments and delaying tactics in Caner’s suit against a Virginia man who posted YouTube videos of the plaintiff minister’s speeches recounting his conversion from Islam to Christianity.

DEFAMATION

Bad-mouthing service providers, online and offline, prompted litigation in state and federal court this year.

Still pending in the Supreme Court of Virginia is a Northern Virginia carpet-cleaning company’s claim that the consumer-review website Yelp defamed it by posting negative reviews that allegedly could not be confirmed as coming from actual customers. The Court of Appeals said in Yelp Inc. v. Hadeed Carpet Cleaning Inc. (VLW 014-7-001), that Hadeed had made a sufficient showing to require Yelp to identify anonymous posters, and in October, Yelp asked the high court to overturn that decision.

Two lawyers went to court to complain about defamatory online reviews, but met with little success. A law firm sued Yelp in state court after a former divorce client posted unflattering comments, but the lawyer’s efforts in Westlake Legal Group v. Schumacher (VLW 014-3-557), to collect on a state court default judgment faltered, as an Alexandria federal court dismissed the defamation claims as time-barred and barred under the Communications Decency Act of 1996.

In Geloo v. Doe (VLW 014-8-065), a Fairfax Circuit Court refused to allow a plaintiff lawyer to discover the identity of an online poster who allegedly used an ethnic slur and called her a “run of the mill court appointed attorney” on a local-affairs website.

And a bit of good news for those facing a website defamation claim: An Alexandria U.S. District Court said in State Farm Fire & Cas. v. Franklin Ctr. for Gov’t (VLW 014-3-196), that a “Businessowners Policy” required the carrier to defend tort and defamation claims against a government policy center, which did not become a “publisher” excluded from coverage by posting content online.

CONTEMPT

Courts reversed trial judges’ contempt findings in several cases.

A Norfolk general district court fined a prosecutor $250 for making the court and everyone else wait while the prosecutor handled a matter in circuit court, allegedly having admitted to “double-booking.” The Norfolk Circuit Court was quick to dismiss the criminal contempt charge in Paxson v. Commonwealth, reportedly calling it “unusual, to say the least.”

In Heffernan v. Commonwealth (VLW 014-7-333(UP)), the Court of Appeals overturned a woman’s summary contempt conviction for threatening a lawyer in the courthouse corridor before returning to court. Her alleged conduct occurred outside the judge’s presence, so summary contempt was inappropriate, the appeals panel said.

But the Court of Appeals upheld contempt findings in two divorce cases: in Kernback v. Kernbach (VLW 014-7-017(UP)), against a husband who failed to list the marital home for sale, as required under the final decree, and in Quinn v. Irons (VLW 014-7-341), against a wife who withdrew funds from her children’s college savings accounts in violation of a settlement agreement.

CRIMINAL/TRAFFIC

That first stop by police can start it up, so criminal defense lawyers work hard to undermine the basis for a stop. Sometimes they win.

The Court of Appeals said an officer was not justified in stopping a car because of a five-inch dangling parking pass on the driver’s rear-view mirror. Without evidence that the parking pass obstructed the driver’s view of the road, the officer’s suspicions about a law violation did not support the stop, a split panel said as it reversed a drug conviction in Mason v. Commonwealth (VLW 014-7-246).

In Minter v. Commonwealth (VLW 014-7-356(UP)), the initial detention passed muster but the Court of Appeals threw out a weapons conviction, saying police were not justified in conducting a pat-down search of a nervous man who couldn’t keep his hands out of his pockets when he was spotted by police crossing a public parking lot in the early evening.

There seemed to be no doubt a stop was covered in Maness v. Commonwealth (VLW 014-7-168(UP)), as the defendant wore only skimpy thong underwear as he rode his bicycle down a street in Newport News. Although the cyclist claimed he had done legal research to make sure his breezy bike ride was not indecent exposure, the Court of Appeals took another view, and upheld his conviction under Va. Code § 18.2-387.

In a 4-3 decision in Sarafin v. Commonwealth (VLW 014-6-081), the Supreme Court of Virginia decided a Charlottesville man was properly convicted of DUI after he was found asleep in his car, parked in his private driveway, with the radio playing. The Virginia DUI statute has no requirement that a driver be “on a highway” to be considered in operation of a motor vehicle, the majority said in an Oct. 31 opinion authored by Justice Donald W. Lemons.

CONSUMER PROTECTION

Consumers – and their lawyers – continue to notch wins under federal consumer protection laws.

The Fair Credit Reporting Act has provided fertile ground for consumer protection lawyers this year, with a Richmond U.S. District Court awarding $5.3 million in fees in a consumer class action, Berry v. LexisNexis Risk & Information Analytics Group Inc. (VLW 014-3-476). The plaintiffs alleged LexisNexis sold a brand of credit report to debt collectors without treating the reports as “consumer reports” under the FCRA.

A Richmond federal court entered final judgment in another FCRA case, Ellis v. Swift Transportation Co. of Arizona LLC (VLW 014-3-632), in which a national trucking company agreed to pay $4.4 million to settle claims that it failed to comply with federal law in conducting background checks on potential employees. The court awarded $1.5 million in attorney’s fees and costs.

Still pending is a class action complaint against a Virginia Beach law firm based on a collection letter sent to a borrower who defaulted on a home mortgage loan. A Richmond federal court refused to dismiss the homeowner’s suit alleging violation of the Fair Debt Collection Practices Act. The complaint in DeCapri v. Law Offices of Shapiro Brown & Alt LLP (VLW 014-3-490) is the second suit in recent months allowing FDCPA claims advance against a law firm.

EMPLOYMENT

Legal disputes between employers and employees continue to keep courts busy, and some of the litigants even hire lawyers.

Employees made some advances this year. A Fairfax Circuit Court said a supervisor’s comments within the organization on a plaintiff’s job performance were “published” for purposes of her defamation claim. That case is Kuley v. Fayez (VLW 014-8-098). An Abingdon U.S. District Court said in Altizer v. Town of Cedar Bluff (VLW 014-3-299), that a state whistleblower statute supported a town clerk’s Bowman claim for wrongful discharge in violation of Virginia public policy. The 4^th U.S. Circuit Court of Appeals said in Freeman v. Dal-Tile Corp. (VLW 014-2-080), that an employer can be liable for a hostile work environment created by a third party – for instance, a customer of the business – who is not under the employer’s supervision.

Good news for employers came in EEOC v. Propak Logistics Inc. (VLW 014-2-062), when the 4^th Circuit upheld an award of attorney’s fees to an employer after the agency’s investigation dragged on for six years before it filed its losing lawsuit. The trial judge did not abuse its discretion in holding that the agency acted unreasonably in initiating litigation against the employer. In a concurring opinion, one appellate judge said most private parties “would not dream of trying to excuse the excessive delays here with the explanation that they were otherwise burdened” by being understaffed.