Senate Approves Judicial Nomination of Elizabeth Dillon

The Western District of Virginia has a new judge.

Yesterday, the US Senate confirmed the nomination of Salem attorney Elizabeth Dillon to replace Judge Wilson, who retired in August.  Judge Dillon will be the first female judge in the Western District of Virginia.  Like her predecessor and the author of this blog, Judge Dillon is a graduate of Wake Forest University School of Law.

Dillon has been a practicing attorney in the Roanoke/Salem area for many years is also a former city attorney for the City of Roanoke.  President Obama nominated Dillon on September 18, 2014, after Virginia's two senators had recommended her and Ward Armstrong for the spot.  The Virginia Lawyers Weekly article about the confirmation is here.

The Senate Judiciary Committee has published Judge Dillon's answers to written questions submitted by Senators, including Senator Chuck Grassley and Senator Ted Cruz.  Many of the questions are overtly political and most of the answers are boilerplate, but there were some interesting parts.  For example, this is how Judge Dillon described the most important attribute of a judge:

"The most important attribute of a judge is to have the utmost respect for the tremendous responsibility of the position. A judge who recognizes and respects the responsibility of the position will respect the rule of law, the litigants, and the lawyers, and will serve with integrity, fairness, and impartiality. I have the utmost respect for the tremendous responsibility of the position and would be honored to serve should I be confirmed."

We are looking forward to Judge Dillon's tenure as the newest federal judge in the Western District of Virginia.

"Happiness Is The Truth"

Charlottesville, Virginia has been named the happiest city in the United States.  It also will be home to the newest (unofficial) office of Womble Carlyle.  Coincidence?  Yes, probably.

A recent study from a Harvard professor ranked Charlottesville as the happiest city in the US.  Just down the road, Richmond was rated the "most contented" metropolitan area with over one million people.  Norfolk/Virginia Beach, hometown of the "Happy" songwriter Pharrell, came in second.  There must be something about Virginia!

The study suggested that people are willing to sacrifice happiness if the price is right. "Indeed, the residents of unhappier metropolitan areas today do receive higher real wages -- presumably as compensation for their misery."  Which explains Northern Virginia.  Just kidding!

In unrelated news, I'm happy to announce that Womble Caryle will soon be opening a new office space in Charlottesville to serve as a staging area for Virginia-based litigation outside of the Washington beltway.  Charlottesville is one of the headquarters of the Western District of Virginia.  Additionally, from this central location, an attorney can travel to just about any courthouse in the Commonwealth in under two hours.  The location and opening date for the "Charlottesville office" have not been finalized.  I will announce more after the details are worked out.

Judge Urbanski Awards Attorney Fees in Breach of Consent Injunction

Judge Urbanski recently issued an interesting opinion that highlights one of the difference between litigation in the Eastern District of Virginia and Western District of Virginia.

The case involved the defendant's breach of a non-disparagement clause in a consent injunction.  The plaintiff rented vacation cabins in the Shenandoah Valley and had previously sued defendant over certain online advertising for its vacation rentals.  That case ended with a consent injunction that required defendant to provide ads for plaintiff on its travel websites.  The injunction also included a non-disparagement clause, which plaintiff claimed defendant violated by posting an ad that advised users to beware of hidden fees and charges for plaintiff's rental property.  Judge Urbanski agreed that this ad violated the non-disparagement clause, but rejected other arguments (i.e., that defendant violated the consent order by not placing ads at the top of the webpage).

Judge Urbanski also awarded attorneys fees to plaintiff, but reduced the hourly billing rate from $650 to $350.  Plaintiff's lawyer, from Washington DC, stated that his normal billing rate was $720 per hour, which he reduced to $650 for this matter.  The court, however, stated "while an hourly rate of $650 (or $720) may be well and good for Washington, D.C., and lawsuits involving multinational corporations, it is simply an enormous rate for Harrisonburg, Virginia and and a case involving two local small businesses."  The court also reduced the fee request by one-third because plaintiff had only prevailed on one-third of its arguments in the motion to enforce.

Judge Urbanski's approach to attorney fees stands in stark contrast to some of the recent attorney fees that have been awarded by the Eastern District of Virginia.  As recently reported by Virginia Lawyers Weekly, "[a]ttorneys handling complex civil litigation in Northern Virginia are making use of a new benchmark to win higher fee awards from federal judges."

The case is Allstar Lodging Inc. v. Rookard, No. 5:13cv53 (W.D. Va. Nov. 12, 2013)

Summary Judgment Hearing On First Amendment Challenge To Charlottesville's Panhandling Ban

On Thursday, November 21, Judge Moon heard arguments on summary judgment motions in a case challenging Charlottesville's panhandling ban under the First Amendment.  Judge Moon had originally dismissed the case, but the Fourth Circuit reversed that decision in February.

The arguments during the summary judgment hearing focused on whether the City targeted a specific form of speech or whether the City regulated speech in a neutral way, and whether the ban was broader than reasonably necessary.  The ordinance bans panhandling within 50 feet of two vehicle crossings on the Downtown Mall.  The City justifies the ban as a content-neutral regulation that protects public safety.

The Daily Progress quotes Judge Moon as saying: "The way I see this case, frankly, is whether 50 feet, on either side is too much....  I thought the big problem would be the distraction to divers and the danger to pedestrians."

Counsel for the plaintiffs -- a group of homeless men who want to panhandle on the Downtown Mall -- argued "Panhandlers, for the most part, including my clients, sit passively with a sign along the walls of the Downtown Mall.  They don't stop people."

The attorney for the City of Charlottesville argued that the 50 foot ban was reasonable, especially given the other areas where panhandling is allowed: "What we are dealing with is 200 feet total ... on two crossings on a mall that is one-third of a mile long and 60 feet wide."

Judge Moon is not expected to rule for another two months.  Trial is scheduled in the Western District of Virginia for March 3, 2014.

21 People Apply For Magistrate Judge Position

As noted earlier this week, Magistrate Judge Crigler is going to step down from the bench at the end of this month, and the Western District of Virginia has solicited applications to find a replacement.  Virginia Lawyers Weekly reports that twenty-one attorneys have applied for the job.  A 10-member advisory panel has been appointed and will review the applications in the next 45 to 60 days.  The advisory panel will recommend the five most qualified candidates.  According to Chief Judge Glen Conrad, the district judges will interview those five candidates and select one to serve the eight year term for the federal court.  Other judges will cover Judge Crigler's workload until a new magistrate judge is selected.  Although Judge Crigler's offices were in Charlottesville, the new magistrate judge will be based in Harrisonburg.

Magistrate Judge Crigler to Retire September 30

Earlier this year, Magistrate Judge Waugh Crigler announced that he would be retiring at the end of his term in September 2013.  First appointed in 1981, Judge Cigler has served as a magistrate judge for over 30 years and was a mainstay in the Charlottesville and Harrisonburg divisions.  Judge Crigler grew up in Culpeper, graduated from Washington & Lee University in Lexington, and was an attorney in Virginia and Tennessee before becoming magistrate judge.  

According to a press release about his retirement, “some of his most memorable civil cases have involved landfill, water supply and trash disposal disputes in both Charlottesville other communities in the Western District, the anti-trust action between the Daily Progress and the Charlottesville Area Association of Realtors, and the bitter dispute over customers between the area’s two early cable television providers.”

Judge Cigler announced his retirement in advance in order to allow a replacement to be selected.  Earlier this year, the Western District of Virginia issued a Public Notice of Appointment of a New Magistrate Judge, which sought applications for full-time magistrate judge for the Harrisonburg Division.

Mandatory Minimum Sentences for Drug Cases in the Western District of Virginia

Although the focus of this blog is civil litigation, I read an interesting story in the Roanoke Times about mandatory minimum sentencing in the Western District of Virginia.  In a recent speech to the American Bar Association, Attorney General Eric Holder announced that he was directing US Attorneys to change the way they charged certain non-violent, low-level drug offenses in order not to trigger the "draconian" mandatory minimum sentences.

According to Timothy Heaphy, the US Attorney for the WDVa, no major change is needed for the Western District of Virginia because drug offenders are not being subject to the harsh measures that concerned Attorney General Holder.  For the most part, Heaphy said that he has already been operating as Holder requested, stating: "This is an evolutionary step, not a new thing for us."  The Roanoke Times also quotes Chief Judge Glen Conrad as saying "This United States Attorney's Office has been fair in the way it charges individuals."

The article contained some interesting statistics that appear to show that, as a percentage, there are more criminal drug cases in the Western District of Virginia than the national average.  And that the average drug-related sentence (91 months) was higher in the WDVa than the national average (72 months).  Heaphy explained that this was because he has focused on major drug cases: "We probably more than some places around the country have already changed our approach to drug charging... We have pivoted toward charging only folks that are more sophisticated," with the rest being charged in state courts.

When drug cases are broken down by drug type, the statistics show that there are fewer marijuana and cocaine cases in WDVa than in the rest of the country, but more meth and "other" cases.  I suspect a good portion of the "other" category is Oxycontin, given the history of that drug's abuse in Southwest Virginia.  In 2011, the kingpin of a multi-state OxyContin distribution ring was convicted and sentenced to 10 years imprisonment in the Western District of Virginia.

Heaphy said that he plans to further tighten charging and sentencing practices, by bringing charges that would impose mandatory minimums only in cases in which there are certain aggravating circumstances.  One interesting statistic that was not available in the article is the percentage of cases in which defendants were subject to mandatory minimums in the Western District of Virginia as compared to the national average.

Lawsuit Seeks to Block Merger Between StellarOne and and Union First Bankshares

The Charlottesville Daily Progress reports that a class action lawsuit has been filed in the Western District of Virginia to block the proposed merger between StellarOne and Union First Bankshares.  Richmond-based Union First announced plans to acquire StellarOne on June 10, 2013.  StellarOne's holding company is located in Charlottesville, while its bank headquarters are located in Christiansburg, Virginia.  The lawsuit, filed four days after the announcement, alleges that the proposed acquisition would "unfairly deprive" StellarOne's shareholders of potential investment value and allegedly constitute a breach of fiduciary duty.  The defendants have filed a motion to dismiss arguing, among other things, that the plaintiffs lack standing to challenge the merger.  The case, which was filed in the Charlottesville division, is being heard by Judge Moon.  I have two minor interests in this case.  First, I have a mortgage with StellarOne.  And second, I used to work with the attorneys for some of the defendants when I practiced law in Richmond.

Magistrate Judge's Opinion Prompts Inspector General Investigation Into Attorney General's Office

An article in yesterday's Daily Progress stated that "Virginia' inspector general is still investigating whether an attorney general staffer wrongfully advised energy company lawyers in a on going federal court battle with regional landowners seeking natural gas royalties."

The federal lawsuit is a class action between landowners and two energy companies regarding $28 million in natural gas royalties which are currently held in escrow accounts by the State of Virginia.  Virginia law allows energy companies, in some circumstances, to siphon natural gas below multiple tracts of land.  The royalties are then placed in escrow pending a determination of who owned the gas and who is entitled to the royalties.  The Attorney General's office is involved to defend the constitutionality of the Virginia Gas and Oil Act.

The investigation into the Attorney General's office appears to have been prompted by a comment from Magistrate Judge Pamela Meade Sargent expressing shock that an attorney from the AG's office was "actively involved in assisting" the energy companies "with the defense of these cases, including offering advice on and providing information for use on the motions before the court."  This comment was made in the Magistrate Judge's Report and Recommendation granting in part Plaintiff's motion for class certification.

This story has been the subject of numerous newspaper reports and editorials.

It will be interesting to see the inspector general's report.  It is not uncommon for lawyers representing different parties in a case to share information with each other, especially if their interests align.  Yet, the criticism in this case seems to be that the AG's office was improperly taking sides in a civil case and the suggestion (by some) that the AG's office was being influenced by campaign contributions to current Attorney General and gubernatorial candidate Ken Cuccinelli.