Saturday, August 13, 2005

Interesting case under the Virginia Uniform Trade Secrets Act

In Check 'n' Go of Virginia, Inc. v. Laserre, Magistrate Judge Urbanski opined that the plaintiff had proved misappropriation of its trade secrets, but failed to prove any damages. The plaintiff is in the paycheck loan business. The company's parent had paid Deloitte Touche to develop a policies and procedures manual. The defendant hired away the company's manager, who cribbed from the plaintiff's manual in writing an 18-page manual for her new employer.

My favorite sentence was this: "For some inexplicable reason, Eleanor Anderson, then manager of [the defendant's] Lynchburg store . . . faxed Saunders’ 18-page document to [the plaintiff]." This was not helpful.

The conclusion that the manual included protectable trade secrets seems iffy to me (it's not like it contained the secret formula for Kentucky Fried Chicken or Coke or even Gatorade), but then again the opinion does not give away the secrets, and so the reader can't quite evaluate whatever was in there.

On damages, it appears that the Court agreed that "a reasonable royalty be calculated based on an estimate of the percentage of the development costs incurred to create the 18 pages that it proved were misappropriated," but concluded that since the parent rather than the plaintiff had paid to develop the manual, the plaintiff was not entitled to any recovery.

On Raising Kaine

Bitter of the, uh, BGs has decided that the Raising Kaine blog is out of control, concluding that "politically speaking, it's not wise to flip off your readers who may have been looking for an alternative, but will now support the more civilized Republican."

More on presumptions and the Virginia DUI ruling

This DUI Blog post tries to provide some context to the news of the Virginia GDC judge who says the presumption of intoxication in the Virginia DUI law is unconstitutional.

Operation Cruise Control begins on Interstate 81

It is reported here that on Friday, the Virginia State Police started a program to increase the visibility of patrolling on Interstate 81, courtesy of an extra $100,000 approved by the last session of the General Assembly.

Friday, August 12, 2005

The multi-jurisdictional building

Leesburg2Day reports here that the controversial day laborer facility is on land partly in the Town of Herndon and partly over into Loudoun County, and so the county may have some say over the facility.

Better not drop money in the hat or you might get a subpoena

As various other bloggers have noted, the Washington Post is reporting here that the insurance company for the Virginia Republican Party has issued subpoenas to find out where and why the money was supplied that paid for the settlement in the cellphone eavesdropping case.

The insurer's theory is that the party had no loss, if people gave them the money for the settlement. Is this a "collateral source" rule issue - meaning that the recovery from the insurer is not barred because of money received from other sources? Does the collateral source rule even apply in a contract case? Even if the donations are no bar to the recovery against the insurer, is the discovery still proper? The limits on discovery are not the same as the limits on relevant evidence at trial.

I don't know the answers, but I suspect there will be a hearing to find out. I also suspect that the insurer's counsel, whatever his legal theories, is not oblivious to the fact that discovery of this kind will generate publicity and pressure on the Republicans to abandon or settle their claim on the cheap, to get it out of the newspapers - which is their own fault for filing the stupid claim at this time, a decision which has yet to be explained.

More on eminent domain in the Commonwealth

Jerry F. and the Roanoke paper are in rare agreement that it seems hard to justify Franklin County's plans to take land by condemnation for a new airport.

Gourmet beer festival in Roanoke

Completely unrelated to the last post, this weekend Roanoke is hosting southwestern Virginia's only micro and craft beer festival, called Microfestivus.

General district court judge finds Virginia DUI law unconstitutional

Here is the AP story which begins: "A Fairfax County judge has ruled that key components of Virginia's drunken driving laws are unconstitutional, citing an obscure, decades-old U.S. Supreme Court decision that could prompt similar challenges nationwide."

The lawyer who raised the issue explained that "O'Flaherty's ruling is based on a 1985 U.S. Supreme Court case called Francis v. Franklin, which deals with prosecutors' obligation to prove all elements of a crime beyond a reasonable doubt." She said that "Virginia's law is problematic not just because of the presumption of intoxication at 0.08, but also a presumption in the law that the blood-alcohol level at the time the test is taken is equal to the level at the time of the offense, even if the test occurs hours after police make a stop."

Thursday, August 11, 2005

The ferry-riding dog

Waldo links to this delightful photograph of the dog who rides the ferry, which is deserving of the widest possible circulation.

School opens in old Pittston office building

The Lebanon News Online, such as it is, leads with the re-opening of the building transformed in the past year from the former Pittston headquarters to an elementary school.

Local government liability issue unique in Virginia to the Southwest

Here in the Coalfield Progress is a report of the case of coal mining at the Wise County fairgrounds, where construction of a new road led to what was deemed the illegal mining of 170 tons of coal. The County, however, was not held responsible.

$25 million patent infringement verdict for AFG in Greeneville

This report describes a $25 million jury award for AFG and its parent company in a patent infringement case in the E.D. Tenn. at Greeneville.

Lyle Denniston (and others) on the Fourth Circuit's Pledge of Allegiance decision

SCOTUSBlog's Lyle Denniston has this interesting analysis of the Fourth Circuit opinion(s) in the Virginia Pledge of Allegiance case. He says, in part:

"It is impossible to get into the real motivations of the Fourth Circuit judges in writing their opinions in this case. But they no doubt were aware of the firestorm of criticism that arose after the Ninth Circuit had ruled the Pledge, as written, invalid when recited by public school students (a decision set aside by the Supreme Court's Newdow ruling). It would hardly be surprising if there was some hesitancy to kindle those still-hot embers. The federal courts now know, even more than they could see at the time of the reaction to the Ninth Circuit, how much trouble their substantive decisions on deeply controversial social issues can cause in Congress, the White House, and American politics."

The Leesburg paper has this article with quotes from Myers and AG Jagdmann.

Wednesday, August 10, 2005

Daubert opinion and other matters in long-running Lone Mountain case

In Magistrate Judge Sargent's lengthy opinion in the case of Lone Mountain Processing, Inc. v. Bowser-Morner, Inc., her recommendations included the denial of a motion in limine to exclude expert testimony (see pp. 28-33) related to why and how the coal slurry went bad and leaked into an abandoned mine shaft, an issue which lies at the heart of this long-running litigation between the coal company and the outfit that designed the pond.

Fourth Circuit upholds Virginia law on the Pledge of Allegiance against Establishment Clause challenge

In Myers v. Loudoun County Public Schools, the Fourth Circuit panel of Judges Williams Motz, and Duncan affirmed the District Court's decision that the Virginia statute (Va. Code § 22.1-202) providing for voluntary, daily recitation of the Pledge of Allegiance does not violate the rights of the plaintiff because "the Pledge is not a religious exercise and does not threaten an establishment of religion." The Court also concluded that the plaintiff as a non-attorney could not litigate pro se the constitutional claims of his minor children.

Judge Williams wrote the opinion for the Court, Judge Duncan wrote a separate concurring opinion, and Judge Motz wrote a separate opinion concurring in the judgment.

The case was argued on March 18, 2005, which was the first time, as best I can tell, that oral argument was heard before an all woman panel of the Fourth Circuit.

On proper football-watching attire

This column asks the question: "Should Wahoos wear the traditional shirt-and-tie or sundress-and-pearls that have been staples of Virginia football for years, or should they, as coach Al Groh wishes, infect themselves with 'Orange Fever' and trade in their blue button-down for a titian t-shirt?"

Another good reason to root for Sean O'Hair

From, Sean O'Hair explains here why he makes his autographs legible: "Someone mentioned that I had really good handwriting. I told them that I read a Q&A with Peter Jacobsen where he said Arnold Palmer chastised him about how you couldn't read his name -- and he's been careful ever since when he signed autographs. A buddy of mine, Dave Woods, from back home sent that to me and said that it was kind of food for thought. You know, there's nothing wrong with emulating Arnold Palmer. So that's definitely something I pay attention to now. I used to just put O'Ha and then a line and now I'm starting to really make sure you can read it."

On wearing a tie from Grandma

Today I picked out from the tie rack one that I got from Grandma Minor, and took the time to look up the following from the e-mail archives, about three years ago:

From: Steve Minor
Sent: Thursday, August 15, 2002 11:02 AM
Subject: Elizabeth Minor

My grandmother's obituary is in today's Bristol paper.

Grandma was fun. She saw the ocean for the first time at age 75 and New York City at 85. She laughed all the time and never worried about anything but her children. She spoke her mind, read the National Enquirer and watched C-SPAN, told off all her doctors, and made sure that every one of her grandchildren knew that she thought they were the greatest.

She gave everyone a little present every year for Christmas - a hat or an umbrella or a candy dish or monogrammed towel. For a long time, she sent me a dollar every year for my birthday, even after I was a lawyer, with a note remembering how happy she was when she heard I was born and how proud she was that I was her grandson.

Whenever Grandma heard something amazing, she said, "law, law."

Tuesday, August 09, 2005

Somebody's tax dollars at work

This story says with respect to the still kind of new Interstate 26 in Tennessee that authorities have now decided that the zero mile marker will be located at the Virginia line, whereas before it was at the North Carolina line, and so all the markers in between will have to be redone.

This reminds me of one of those countries where they decided to change driving from one side of the road to the other effective on some specific date, which was surely a good day to stay home if ever there was one.

No laughing matter

This editorial about the Virginia Indigent Defense Commission says, among other things: "Virginia's much-reviled, lowest-in-the-nation mandatory compensation caps for court-appointed attorneys remain a joke."

Islam on Virginia campuses

This Discriminations post links to articles about efforts by Virginia Tech and VCU to accommodate (or at least to avoid mayhem arising from) Islamic views on matters of gender.

More on Judge Combs

The Richlands paper has this article on Judge Fred Combs.

On the passing of Professor Evans

Here is the obituary in the Washington Post of Professor Robert Henry Evans, former chairman of what was the Department of Government and Foreign Affairs when I was an undergraduate at the University of Virginia. In those days, I think one of the requirements for a government degree was a "comparative government" course, and so I had a semester listening to Professor Evans hold forth on the state of democracy as he saw it in England, France, Italy, and Germany. In particular, I recollect his description of "the French peasant" as a factor in elections there - "the one with the beret and the B.O.," he said.

The obituary has an interesting typo, suggesting that Professor Evans was associated with the "Nitzke" school of international relations, which suggests something in between the well-known diplomatists Paul Nitze and Ray Nitschke.

Monday, August 08, 2005

Not really a football story

This story tells of the illness and recovery of the young daughter of former U.Va. assistant coach Mike London, now with the Houston Texans. It ends with this:

The doctors warned Mike and Regina that for one year Ticynn could reject the transplant.

The Londons changed their lifestyle. Ticynn couldn't be around large crowds. She couldn't go to school. And even in quick trips to the grocery store, Ticynn had to wear a mask.

She stunned doctors with her recovery. Instead of being forced to take a year off of school, doctors let her return in January.

She still had restrictions. If a classmate started coughing excessively, Ticynn would place a mask over her face. She had to skip school assemblies and field trips.

On the first anniversary of the transplant, Ticynn threw the masks in the garbage, and the entire family celebrated what they called her "New Life Birthday." They made a pact to celebrate it every year.

Ticynn wasn't the only one whose life changed during the past five years. In the dim light of Mike London's office, the tears return as he thinks back. But these are tears of disbelief and wonder, hope and love.

"When you look at her, you look at life," London said. "You look at a gift that was given to her through me. She's literally a part of me.

"I've always been full of energy, but I wear my emotions on my sleeve, and that's just the way it is. I was worried about that, being a college guy and coming here. But I'm not going to change because there's too much for me to celebrate. I celebrate life every day now."

On improving the Virginia Supreme Court rules

I got an e-mail asking for ideas about improving the ways of the Virginia Supreme Court, and wrote this:

1. there should be permissive electronic filing and mandatory digital filing (like the 7th Cir. Rule 31),

2. the appendix should be deferred in every single case (like the 6th Cir. Rule 30),

3. transcripts (if not audio files) of all oral arguments should be available online (like the U.S. S.Ct. and others),

4. there should be better scheduling of oral argument - under the old Va. S.Ct. practice (as I recall it, perhaps times have changed) the whole week is held hostage until the end of the week before and then you find out at the last minute when you have to be in Richmond, which is a day's drive from here (and another day's drive back)

5. absolutely all orders and opinions by the Virginia Supreme Court should be published and accessible to the world on the judiciary's website, except by special order in extraordinary circumstances - and should be citable where it makes sense that they should be citable, in the manner of the proposed FRAP 32.1 (discussed in this report)

1, 3, and 5, I don't see these just as lawyering issues, they are open government issues.

On the perils of e-filing

Tom Mighell (of all people) writes here that mandatory e-filing is not a good idea, not yet.

Tom, is it not mandatory just about everywhere now? The e-filing blog thinks mandatory e-filing is a good idea, and so do I.

Let us on the train

This commentary titledWanted: Rail, statewide from the Daily Press is timely - every year, when my in-laws drive down here in August, they talk about how they wish they could have come by train.

If there was statewide passenger rail reaching to Bristol, oh, the places we would go. Or so I think.

On the passing of Judge Combs

Here is the very substantial obituary in the Bristol paper for Judge Fred Combs, who died over the weekend in a farming accident. He was general district court judge in the Dickenson/Buchanan/Tazewell/Russell and sometimes Bland district from 1985 until his retirement on June 30.

Here is a version of the report from the Bluefield paper.

Sunday, August 07, 2005

Brian Peterson asks: Is ranch dressing the universal hillbilly condiment?

This post explains that the stuff works on pizza and spaghetti. It also goes well with both the chicken strips and the potato wedges from KFC, and most of the appetizers at Damons.

Virginia tech engineering Ph.D. among the Discovery crew

Last week, the Collegiate Times had this profile of the Discovery crew member with a degree from Virginia Tech.

On checkbook zoning

In this commentary, the Williamburg paper criticizes proffers of cash for rezoning in James City County, where the cost of rezoning for a new house is evidently $4,000 to the county.

Virginia law was amended in 2005 to expand the possibility of cash proffers in the statutes dealing with conditional zoning. Included with this change was some kind of requirement that the localities have to spend the money within seven years or lose it to the Commonwealth Transportation Board. See Acts 2005, cc. 552 and 855.

Atkins' execution date set for December

The Williamsburg paper has this report on the verdict in the case of Daryl Atkins, who might be executed because his IQ went up while his case went to the U.S. Supreme Court and back (that and the fact he shot and killed a man).

Staunton paper full of superlatives about Kilgore campaign

The Staunton paper declares here that "his campaign staff and Kilgore himself are the rudest, most discourteous, arrogant bunch of people we've ever had the misfortune to encounter in politics."

Doing away with the elected school board?

This AP story says that some Portsmouth residents are trying to get the City to revert back to appointing rather than electing the members of its school board, which would be a first in Virginia.

Height and weight of gubernatorial candidates revealed

This bizarre column from the Washington Post was, if nothing else, entertaining, in its attempt to describe the meanness of this year's race for Governor in Virginia.

A few nuggets: that Kilgore said Kaine has more flip-flops than a giftshop, and that Potts claims to be friends with Lefty Driesell. Geez, that ought to win him a few votes with the old Maryland Terrapin segment of the Virginia electorate. It must be true, however, because who would make up such a thing.

The oddest fact - they put ice cream on cantaloupe at the Cantaloupe Festival. Ice cream?

SW Virginia losing Greyhound connection?

Rex Bowman for the MG papers writes here: "Plagued by a paucity of riders in the Shenandoah Valley and western Virginia, Greyhound is calling it quits for its oanoke-to-Washington run, ending decades of service and leaving residents in a string of small communities without a bus connection to the nation's capital -- and, for that matter, the rest of the nation."

I rode the bus a few times when I was a first year (with no car) at the University. Included among these is what I recall as the first trip home from Charlottesville to Abingdon. Dad was right there by the door when the bus stopped. I think he secretly wondered whether I'd make it alive through the first couple of months at school.

One bodacious lawyer

Here I read for the first time that Democratic AG candidate is questioning how his opponent Bob McDonnell "supports tort reform when his legal specialty is personal injury law."

I thought Steve Baril said McDonnell's specialty was representing individuals before state agencies. He must get around.

Would family court plan cost money to rural counties and eliminate elected circuit court clerks?

The circuit court court clerk in Floyd County seems to be saying in this article that the revived plan for family courts in the Commonwealth would be bad financially for Floyd County and has something to do with the desire to eliminate elected clerks in favor of appointed clerks.

I'm not sure that I understand either point, both of which are extremely interesting if true.

Seminole nickname may be chopped

On reading that Florida State vows to keep its mascot, I thought of the Supreme Court's decision in NCAA v. Tarkanian, 488 U.S. 179 (1988), in which the split Court held that the NCAA was not a "state actor" for purposes of 42 U.S.C. § 1983.

So, FSU even it is an "expressive association" within the meaning of FAIR v. Rumsfeld (the Solomon Amendment case, now before the Supreme Court) would not have a constitutional remedy against the NCAA.

By contrast, I suspect that following Brentwood Academy v. TSSAA, 521 U.S. 288 (2001), a state high school athletic association could be sued under 42 U.S.C. § 1983, if it took on the naming of mascots.

A welcome to the University of Appalachia College of Pharmacy

The University of Appalachia College of Pharmacy opens this week at Grundy, another amazing project by a bunch of people including Frank Kilgore, who provided the photographs for a page on the school's website, titled See why Southwest Virginia is beautiful all year long!