Flying Dog Brewery is known for its unique beer names and labels, which are often provocative and eye-catching. After North Carolina rejected one of Flying Dog’s labels, Flying Dog sued and prevailed on First Amendment grounds. Analyzing constitutional protections for commercial speech, the court ruled that North Carolina’s regulation was an impermissible infringement on Flying Dog’s First Amendment rights.

The 4th Circuit Court of Appeals, interpreting West Virginia law, recently took up an insurance coverage issue that arose from COVID-related shutdowns. Like many others, the insured claimed business-related losses from the closure of two of its locations. As with these other cases, the insurance policy did not cover the claims due to the physical loss requirement in the policy.

The implementation of the District of Columbia’s ban on most non-competition agreements has been delayed by the District of Columbia Council until October 1, 2022.

Maryland recently took the first step in enacting a comprehensive biometric data privacy law. On March 13, 2022, the Maryland House of Delegates passed the Biometric Data Privacy Act. The Act now goes to the Maryland Senate for review and potential passage into law. Maryland joins the growing number of states that are strengthening their data protection laws. The new Act introduces a number of requirements for biometric data (i.e. fingerprint, voiceprint, retina scan, etc.) and prohibits certain practices.

Judicial review of an arbitration decision is extremely limited. An arbitrator misapplying the law, misunderstanding the facts, or misconstruing a contract all fail to meet the high burden a litigant must meet to set aside a decision. Likewise, the arbitrator, not a reviewing court, decides the preclusive effect of a prior decision.

On December 17, 2021, the Sixth Circuit, in a 2-1 ruling, dissolved the Fifth Circuit’s stay of OSHA’s Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to mandate either (a) employee vaccinations or (b) that unvaccinated employees wear protective face coverings with weekly COVID tests. The ETS permits employers to choose the compliance method, and does not apply to workers who exclusively work outside or from home.

This post is a short Q & A with Matt Smith, who is a relationship manager with Consilio, an eDiscovery, litigation support, and alternative legal service provider for law firms and corporations. In addition to discussing the benefits Consilio can provide, Matt also shares his thoughts on the consolidation in the legal industry, alternative legal services and Brazilian Jiu Jitsu.

Federal contractors and subcontractors should be aware that the minimum wage for workers on many Federal contracts increases to $15 per hour on January 30, 2022 for new contracts (which includes renewals, extensions, and options).

Much like judicial conflicts of interest, arbitrators must avoid even the perception of bias or partiality. Just as important, both parties have a significant interest in ferreting out any possible appearance of an arbitrator’s partiality prior to an arbitration. Even without actual bias, perceived partiality can support a court vacating a significant award and requiring the parties to go through the process a second time.

Litigants should remember that they typically cannot immediately appeal an order denying a motion to compel arbitration. More importantly, they should require plaintiffs to submit a claim to arbitration since it is their claim and not leave it up to the parties to fashion an arbitration process. The default should be in the absence of an arbitration claim, the court proceedings should be dismissed.

The Court found that the terms of a construction subcontract conflicted with the prime contract and applied the subcontract’s order of preference clause. The main takeaway, however, is that subcontractors should apprise themselves of any flow-down provisions contained in their subcontracts.

On July 9, 2021, President Biden issued an Executive Order that seeks, among other things, to ban or limit non-competition agreements. Many states already limit such non-compete agreements, as opposed to non-solicitation or confidentiality agreements that are usually enforced.

In a recent decision, the Fourth Circuit reaffirmed a constitutional right to informational privacy and joined other circuits in rejecting a private cause of action for violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

In a recent case from the Maryland Court of Special Appeals, an LLC operating agreement provided that the members could designate a successor to their membership interests. However, the provision called into question Maryland’s testamentary and probate laws. The Court ruled that the membership interest was probate property and because the successor provision did not comply with Maryland’s statute of wills, it conveyed the LLC interest to the member’s estate, not his chosen successor.

FinCEN has now received public comment to the Corporate Transparency Act, found in National Defense Authorization Act for Fiscal Year 2021 (NDAA). The Act affects certain limited liability companies and corporations (especially those that are closely held) and requires disclosure of certain beneficial owners of the entities.

On April 27th, 2021, President Biden issued an Executive Order raising the minimum wage to $15 per hour for all federal contractors. Contractors must incorporate the higher wage in new contract solicitations starting January 30th, 2022 and implement the new wage by March 30th, 2022.

In a matter of first impression in the Fourth Circuit, the Court made clear that parties may waive in their arbitration agreement appellate review of an arbitrator's decision. While initial review of the decision in order to confirm or vacate the award may be made by a District Court, the parties may agree to foreclose further appellate review. If so, that choice will be honored.

In the wake of Virginia passing its own privacy statute, Representative Suzan DelBene (D-Wash.) introduced the Information Transparency and Personal Data Control Act in the House. The proposed legislation would preempt conflicting state laws and provide for an opt-in requirement for sensitive personal data.

On March 2nd, 2021, Virginia Governor Ralph Northam signed into law the Virginia Consumer Data Protection Act (CDPA). In doing so, Virginia became the second state (after California) to implement a comprehensive data privacy scheme. The new law takes effect January 1, 2023. Those businesses that operate in Virginia or target Virginia residents and fall within the statute’s scope should begin assessing what data they collect and the statute’s effect on such data collection.

Trade secret practitioners know that in order for information to constitute a trade secret under either federal or state law, it usually must not be known outside of the company and subject to reasonable methods to protect its secrecy. Notwithstanding, many trade secret lawsuits contain just a conclusory allegation that the information constitutes a “trade secret” with very vague allegations that the company employed reasonable measures to ensure secrecy. They should contain more, or risk dismissal.