The Virginia Business Litigation Blog

September 17, 2012

Attorneys’ Eyes Only Expert Reports Sealed From Public Scrutiny

The law presumes that the public should have access to judicial records. This presumption stems from both common law and First Amendment concerns and may be abrogated only in unusual circumstances. Fourth Circuit case law indicates that a district court can seal court documents if competing interests outweigh the public’s right to access.

When faced with a request to seal documents, a court must first determine the source of the right to access in order to weigh the competing interests. The court must then (1) give notice of the request to seal and allow interested parties a reasonable opportunity to object; (2) consider less drastic alternatives to sealing the documents; and (3) provide specific reasons and factual findings supporting its decision to seal the documents. A local rule in the United States District Court for the Eastern District of Virginia requires the party moving to seal documents to provide (1) a non-confidential description of the documents to be sealed; (2) a statement as to why sealing is necessary; (3) references to governing case law; and (4) a statement as to the period of time the party seeks to have the matter sealed and as to how the matter is to be handled upon unsealing.

In a recent case in the Eastern District of Virginia, East West, LLC v. Rahman, the plaintiff sought to seal four exhibits relating to the parties’ expert reports. The reports were designated “Attorney’s Eyes Only” under a confidentiality order entered during discovery that allowed the parties to so designate documents that contained highly sensitive business or personal information, the disclosure of which might cause significant harm.

September 5, 2012

Trying to Get Someone Fired: A First Amendment Right?

by Lee E. Berlik

It is not an uncommon sentiment to want to “get someone fired” by conveying unflattering and possibly damaging information to another person’s employer. Most litigation attorneys will tell you that such conduct can put you at risk for a claim for tortious interference with the employee’s employment contract or business relationship. The Minnesota Court of Appeals, however, has held that claims for tortious interference based on truthful, non-defamatory statements made to another’s employer may be constitutionally protected, regardless of the speaker’s motivation.

Moore v. Hoff involved certain statements made by John Hoff (a.k.a. “Johnny Northside”) on his blog, “The Adventures of Johnny Northside.” When Hoff learned that former community council director Jerry Moore was working for a University of Minnesota group studying foreclosure issues, Hoff wrote in his blog that Moore had been fired from his position as executive director of a local community council due to misconduct and that court evidence showed Moore had been involved in a high-profile fraudulent mortgage. Hoff’s friend, Donald Allen, then sent an email to the university, linking Moore to someone under indictment for mortgage fraud, accusing him of a questionable deal, and warning the university it could face a “public relations nightmare” by employing Moore. Allen included a link to Hoff’s blog in the email. The University fired Moore immediately.

Moore sued Hoff for defamation, intentional interference with contract, and interference with prospective advantage. Moore was deemed a “limited purpose public figure” because he’d assumed a prominent role in a public controversy as director of the community council and the alleged defamation related to that controversy. A jury found Hoff interfered with Moore’s contract and prospective business advantage and awarded Moore $60,000. But it also found Hoff’s statements were “not false.” Hoff appealed.

August 27, 2012

Virginia Court Allows Corbin Bernsen Lawsuit to Proceed

by Lee E. Berlik

Innovative Legal Marketing, LLC, a Virginia Beach company, provides attorney and law firm marketing through various media. In 2009, the company entered into a spokesperson agreement with actor Corbin Bernsen, one of the stars of the popular television series, L.A. Law. The agreement gave Innovative the right to use Bernsen’s likeness, voice and image to market the company and its clients. Innovative was to pay him $1,000,000 over five years in increments of $200,000 annually under a defined formula.

The parties fulfilled their advertising roles for almost two years with Innovative paying a total of $331,818.12 to the actor. But in June 2011, Bernsen said Innovative’s managing director orally terminated the contract. The company stopped paying Bernsen but, as late as September 2011, continued airing certain Bernsen television commercials and featuring his photographs, recorded messages and video clips on the internet.

Bernsen sued the company for breach of contract and unjust enrichment, seeking the remaining balance, $668,181.88, along with incidental and consequential damages, interest, fees and costs.

August 20, 2012

Virginia Technology Firm Sued for Trademark Infringement

by Lee E. Berlik

Vienna, Virginia-based Immersonal, Inc., a consumer software and technology services company, has been sued for trademark infringement and related claims in Virginia federal court. Radio and Podcast personality, Ira Glass, and Chicago Public Media say Immersonal’s new “This American Startup” podcast infringes on their award-winning “This American Life” radio and podcast programs. The suit includes counts for trademark infringement and dilution, unfair competition and fraud, and violation of the Virginia Consumer Protection Act.

According to the complaint, Mr. Glass has produced, aired, promoted and distributed the radio show, “This American Life,” since 1996. The show is part of the lineup of Chicago Public Media, an Illinois not-for-profit corporation, which has owned and operated a radio station since 1990. “This American Life” is a Peabody award-winning syndicated program on contemporary American culture, including fiction and nonfiction and original monologues, mini-dramas, documentaries, music and interviews. It is also available on the internet as a podcast and is downloaded about 700,000 times per week. In many weeks, it is the most popular podcast in the country. The program was turned into a television show between 2006 and 2008 and garnered several Emmy awards.

The plaintiffs allege further that the mark, “This American Life,” has been in continuous use since 1996 in entertainment and in connection with the audio program. The plaintiffs co-own this and related marks and have expended significant money and air time to promote and advertise their marks in various media. They say these efforts, combined with quality programming, have led consumers to associate “This American Life” with quality service. In turn, this acceptance and good will has opened the door to additional business opportunities associated with the marks. The plaintiffs claim the mark is famous given its duration of use, reach, extensive consumption and recognition.

August 13, 2012

Trademark Infringement Claimed by Christian Rockers

by Lee E. Berlik

The Newsboys, a Christian rock music group, has filed a trademark infringement lawsuit against the New Boyz rap duo, claiming that despite the contrasts in musical styles and lyrics, the similarity in the bands’ names will cause confusion among its fans. Sounds legit, right?

Actually, as ill-advised as this lawsuit may seem at first, the Newsboys may have a valid concern. To their credit, they registered “Newsboys” as a trademark in 1994 and have used the name continuously since then. According to the complaint, the Newsboys have had 28 number-one singles and produced four albums since 2008. One of their earlier albums was entitled, “Boys will be Boyz.”

In 2011, Warner Brothers began promoting New Boyz. In contrast to the wholesome lyrics favored by the Newsboys on tracks such as “He Reigns” and “In Christ Alone,” the New Boyz favor a raunchier style, rapping lyrics like “You’re a jerk! Jerk Jerk Jerk!” and “Tell all the homies she got bunz, bunz, bunz.”

August 1, 2012

An Agreement to Agree is not a Binding Contract in Virginia

by Lee E. Berlik

A “letter of intent” which recites the terms of a transaction contemplated in the future, or which sets forth terms to be embodied in a more formal agreement to be executed at a later time, is presumed to be a non-binding “agreement to agree” rather than an enforceable contract. In Virginia, unlike some other jurisdictions, a letter of intent, reflecting each party’s commitment to negotiate open issues in good faith to reach a contractual objective within an agreed framework, will not be construed as a binding contract absent circumstances suggesting the parties intended to bind themselves. The Eastern District of Virginia recently dealt with this issue in Virginia Power Energy Marketing, Inc. v. EQT Energy, LLC.

EQT contracted with a pipeline to buy natural gas once the pipeline completed its expansion. The purchase was subject to the pipeline’s FERC (Federal Energy Regulatory Commission) gas tariff and applicable laws, orders, rules and regulations. EQT then sought to sell some of the excess capacity to VPEM, a distributer, in a non-biddable release. By regulation, a non-biddable release must use the maximum applicable rate. The parties signed a letter of intent (LOI) for 30,000 dekatherms per day with the rate to be paid as the lesser of $0.84 per dekatherm or the rate applicable to EQT under the NLRA (the negotiated rate letter agreement between the pipeline and EQT). Subsequently, the applicable rate was set at $0.88 so either the LOI rate had to be revised or EQT was free to release the capacity to the highest bidder.

The letter of intent stated EQT “propose[d] to release a portion of (the pipeline’s capacity) to VPEM.” Before the pipeline completed its expansion, however, gas prices rose and the value of EQT’s capacity increased. EQT received bids that exceeded VPEM’s and asked VPEM to pay an additional $12 million for the capacity. VPEM refused and EQT abandoned the transaction. VPEM then sued EQT in the Eastern District of Virginia for breach of contract.

July 30, 2012

Without Proof of Meritorious Defense, Default Stands

by Lee E. Berlik

A defendant who failed to timely answer a complaint was recently rebuffed in his attempt to set aside the ensuing entry of default. Magistrate Judge Davis of the Eastern District of Virginia found that a brief filed by defendant’s counsel, which consisted of a single page referring the Court to an affidavit filled with grammatical errors and incoherent statements, failed to meet a “minimum threshold of proficiency” and demonstrated “a lack of respect for this Court.” The court found that the defendant failed to show “good cause” under Rule 55(c) for setting aside the default in that he failed to establish the existence of a meritorious defense.

MSSI Acquisition (“MSSI”) sued Tariq Azmat for breach of a financing contract in December 2011. Process was served (and later mailed) on Azmat’s cousin at Azmat’s residence on December 7, but Azmat claimed to have not come across the notice until February 2012 because he was on multiple trips and did not have a chance to check his mail until then. When Azmat failed to respond in a timely manner, MSSI filed for a default judgment on February 17, 2012. Azmat promptly reacted and filed a motion to set aside the default entered against him on March 12, 2012, asserting that he was fraudulently induced into making the financing contract with an insolvent corporation and that the contract in question had been rescinded anyway.

In Virginia, fraudulent inducement exists where a party intentionally and knowingly makes a false representation of a material fact and the other party suffers damages as a result of relying on that misrepresentation. In this case, the court found that Azmat could not have reasonably relied on any alleged misrepresentations as to MSSI’s solvency because the contract language drafted by Azmat’s own attorney referred to MSSI’s bankruptcy reorganization and Azmat had access to MSSI’s financial information, since the company was publicly traded. Moreover, the court pointed out that Azmat failed later to disavow the contract, even though he clearly knew about MSSI’s insolvency by that point, thus suggesting he did not rely on the misrepresentation that MSSI was solvent in deciding whether to enter into the financing contract.

July 23, 2012

Retaliation Claim Dismissed for Failure to Exhaust Administrative Remedies

by Lee E. Berlik

The exhaustion of remedies doctrine requires parties to initiate and follow administrative procedures before seeking relief from the courts. The rationale behind the doctrine is that administrative agencies have specialized personnel, experience, and expertise to handle matters that arise under their jurisdiction. Additionally, an administrative complaint puts parties on notice of alleged wrongdoing, and administrative proceedings allow parties to resolve their disputes in a more efficient and less formal manner.

To allege discriminatory employment practices in a deferral state like Virginia, prior to filing any lawsuit, an aggrieved employee must exhaust administrative remedies by initiating an EEOC charge. Otherwise, the claim will be forever barred. The United States District Court for the Western District of Virginia recently addressed the exhaustion of remedies requirement in Kerney v. Mountain States Health Alliance.

Keltie Kerney was the Home Health Director at Norton Community Hospital (“NCH”) when she began having medical problems with her eye. She informed NCH that her medical problems would require medical leave and possibly future accommodation in order to continue her employment. NCH granted Kerney medical leave from August 19, 2010 through December 14, 2010 when her physician released her to return to work “with accommodations.” Upon her return to work, the hospital terminated Kerney. Kerney claims that the hospital discriminated against her on the basis of her age and disability and that it retaliated against her for her request for medical accommodations. Kerney brought suit against NCH and its owner, Mountain States Health Alliance (“MSHA”) under the Age Discrimination in Employment Act of 1967 (“ADEA”) and the Americans with Disabilities Act (“ADA”).

July 13, 2012

No Trademark for WAGGIN’ STRIPS

by Lee E. Berlik

Midwestern Pet Foods, Inc. (Midwestern) applied for a trademark on its dog treat product, WAGGIN’ STRIPS. The Societe des Produits Nestle S.A. (Nestle), which holds the trademark on a similar dog treat, BEGGIN’ STRIPS, challenged the application, claiming Midwestern’s proposed mark would infringe on its mark. The Trademark Trial and Appeal Board found Nestle failed to prove its BEGGIN’ STRIPS mark was famous enough that the WAGGIN’ STRIPS mark would dilute it. But it found the proposed WAGGIN’ STRIPS mark would likely confuse consumers because “the goods are identical, the channels of trade and classes of purchasers are the same, and the marks are similar in appearance, sound, connotation and commercial impression.” It denied the application.

Midwestern appealed on several bases. It argued that Nestle should not have been allowed to introduce evidence of the BEGGIN’ STRIPS mark’s fame that postdated the WAGGIN’ STRIP’s application because such evidence must predate an applicant’s filing date to be used to analyze the likelihood of confusion. The Federal Circuit rejected this assertion as a misreading of the law.

Though not relevant to the question of dilution, evidence of post-application fame is relevant when considering likelihood of confusion. To show dilution, Nestle had to show its mark was famous before Midwestern filed its intent-to-use application. Failing that, however, Nestle could still use evidence of the BEGGIN’ STRIPS mark’s strength in showing likelihood of confusion, even if that strength (fame) occurred later.

July 9, 2012

Liquidated Damages Affirmed for Breach of Non-Solicitation Agreement

by Lee E. Berlik

The Fourth Circuit Court of Appeals has affirmed a Western District of Virginia ruling upholding a non-solicitation clause in a contract for trained personnel. ProTherapy Associates, LLC contracted with nine nursing homes to provide and train licensed physical and occupational therapy and speech/language pathology personnel. To protect its interests, it included in each contract a restrictive covenant precluding the nursing homes from “directly or indirectly” soliciting or hiring Pro Therapy employees:

“Non-Solicitation. During the term of this Agreement and for one year thereafter, [the nursing home] shall not, directly or indirectly, for [the nursing home] or on behalf of any other person or business entity for the benefit of [the nursing home]: (a) solicit, recruit, entice or persuade any Therapists or other employees or contractors of [ProTherapy] who had contact with [the nursing home] pursuant to this Agreement to become employees or contractors of [the nursing home] responsible for providing services to Patients like the Services hereunder; or (b) employ or use as an independent contractor any individual who was employed or utilized as a contractor by [ProTherapy] for the provision of Services at any time during the twelve (12) months prior to such proposed employment or contracting. Recognizing that compensatory monetary damages resulting from a breach of this section would be difficult to prove, [the nursing home] agrees that such breach will render it liable to [ProTherapy] for liquidated damages in the amount of ten thousands dollars ($10,000) for each such individual.”

When the nursing homes asked for a rate reduction, ProTherapy provided a new contract with the same clause. The contract also permitted either party to terminate the contract with 90-days’ notice. Just weeks later, the parent company of the nursing homes gave ProTherapy 90-days’ notice and hired Reliant Pro Rehab, LLC to do the same job at a lower cost. During the remaining 90-day period, Reliant began recruiting ProTherapy’s personnel who were still working in the nursing homes. Reliant was able to meet with them because the nursing homes provided lists of the ProTherapy personnel and helped make them available. As a result, Reliant hired sixty four of the ProTherapy therapists for its contract.

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