(703) 369-4738

27
Jun
2022

Prince William Chamber 2022-2023 Annual Meeting

The Prince William Chamber of Commerce (PWCC) had a great day at its Annual Meeting on June 16th, hosted at the Farm Brewery at Broad Run! Rick Nishanian is the new Chairman of the Board for the PWCC and the fourth VFN partner to serve in this role. Please congratulate Rick on this great accomplishment.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

31
May
2022

Beware of Office Birthday Parties!

Written by: Monica Munin, Esq.

One Kentucky employer got a nasty surprise after inadvertently hosting a birthday party on behalf of an employee who requested that his birthday not be observed due to social anxiety. Kevin Berling, a former employee of Gravity Diagnostics, sued the Company after he was fired for behavior, he exhibited in response to an unwanted birthday party.

Berling had approached his office manager to request that the Company not throw him an office birthday party. He explained that he had an anxiety disorder as well as a propensity for panic attacks that becomes exacerbated when he is the center of attention. Berling also indicated he had accumulated “bad memories” associated with his birthday that made parties upsetting to him. The Office Manager inadvertently forgot to pass on the information to the rest of the company and was out of the office on Berling’s birthday.  As a result, a birthday party, including balloons and a banner, was set up for Berling in the office break room. When Berling heard about the party, he suffered a severe panic attack and went to his car to hide from the celebration.  The next day Berling was called into a meeting to discuss the incident where his managers allegedly scolded and belittled him for his reaction to the unwanted birthday party.  Berling indicated one manager accused him of “stealing his co-worker’s joy.”  The meeting led to another panic attack with Berling clenching and unclenching his fists as instructed by his therapist to try and mitigate his panic symptoms. His behavior further alarmed his managers who asked him to immediately leave the property and assumed he was on the verge of a violent outburst.  Later that week Berling was terminated “because of the events of the previous week.” Berling then brought suit alleging discrimination under a Kentucky disability law similar to the Americans with Disabilities Act (ADA) and retaliation for exercising his rights. The Company asserted that Berling had been fired due to a legitimate fear of violence rather than because of his anxiety. A jury sided with Berling and found that the Company violated Berling’s disability rights, awarding him $450,000. The jury essentially held that Berling’s reaction was a reasonable mitigating measure to control his panic attacks and that the manager’s assumption Berling was on the verge of violence was discriminatory. Berling’s attorney, Anthony Bucher, summarized the incident to the British Broadcasting Company by stating:

“He had a panic attack. That is all. And, because representatives from Gravity Diagnostics did not understand his panic response and were unnerved by his response, they assumed he was a threat. Assuming that people with mental health issues are dangerous without any evidence of violent behavior is discriminatory.”

The incident serves as a reminder to employers that mental disabilities can qualify for protection under disability discrimination statutes and that employees are not required to file a formal request for accommodations in order to be entitled to those protections. Here, the jury found that Berling’s request was an exercise of his right to a reasonable accommodation under Kentucky disability law even though he did not explicitly refer to the law or use the phrase “reasonable accommodation.” Federal and Virginia state disability statutes have also been interpreted by courts as providing expansive rights to eligible employees. Employees do not need to use specific “buzz words” in order to be entitled to protections under the statutes. It is vitally important that employers ensure their supervisors and staff are familiar with employee rights under disability law and that they receive training regarding what a request for an accommodation can look like. Further, training should be sure to include general information regarding mental disabilities. While the facts in Berling’s case are unique, we can be sure that disability cases involving mental health disorders are likely to continue to evolve as courts attain a better understanding of the nature of such disabilities.

Need supervisor training? Unsure about a disability matter or other employment law issue? Contact Monica Munin, Esq. at mmunin@vfnlaw.com for answers.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

20
May
2022

Rising Star Super Lawyer

Brett Callahan
Civil Litigation

We are pleased to announce for the second year in a row, our very own Brett Callahan has been selected as a Rising Star Top Rated Business Litigation Attorney in Virginia by Super Lawyers.  Super Lawyers is a research-driven, peer-influenced rating service of outstanding lawyers who have attained a high degree of professional achievement and peer recognition.  Each year no more than 5 percent of the attorneys in the state are selected for the Super Lawyers list, and no more than 2.5 percent for the Rising Stars list.

Brett_Rising-Star
18
May
2022

A Day of Service Supporting Our Community!

Written by: Tyler Blaser, Esq.

This past Saturday, VFN business counsel, Tyler Blaser, engaged in a day of service to benefit Carried to Full Term, a 501©(3) providing long-term housing to pregnant and homeless women, alongside his Leadership Prince William 2022 classmates. Carried to Full Term is a place of hope for women who find themselves in a crisis pregnancy situation. Their home is located in the heart of the Town of Haymarket, providing housing, counseling, social service contacts, and postpartum support in an independent living environment.

Over 75 volunteers participated in this year’s class project, beginning at 6 a.m. and lasting well into the afternoon. Inside the home, volunteers cleaned, painted, and decorated a community room, office, bathroom, and various bedrooms, while installing new curtains, rugs, lamps, and appliances. On the outside of the facility, community members built a gazebo, picnic table, and playhouse. We also weeded, mulched, and planted gardens. Multiple members of the Prince William County Board of Supervisors spoke at the event to recognize the hard work and spirit of our Prince William community.

If you need me or just want more information, please give me a call at 703.479.3181, send an email to tblaser@vfnlaw.com, or visit my Attorney Page.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

16
May
2022

Abandoned Permits

Written by: Guy Jeffress

On April 25, 2022, Prince William County Development Services, Building Development Division, issued Policy 1.03 entitled Abandoned Building Permits and Applications, and is in the process of auditing and revoking “abandoned” permit applications and issued permits. In general, an issued permit may be revoked if work on the site authorized by the permit is not commenced within six months after the issuance of a permit, or if the authorized work on the site is suspended or abandoned for a period of six months after the permit is issued; however, permits issued for plumbing, electrical and mechanical work shall not be revoked if the building permit is still in effect.

If current events including supply chain disruptions have delayed your project be sure to check the status of your permit applications and permits. The full policy along with a process flow chart can be seen below and found here https://www.pwcva.gov/department/building-development-division/abandoned-building-permits-applications.

Call one of the attorneys at Vanderpool, Frostick & Nishanian, P.C., or email and let us see if we can assist you.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

12
May
2022

Prince William County Is Totally Awesome And VFN Is More Gooder Than Other Firms

Written by: Guy Jeffress

In April 2022, the Commercial Real Estate Development Association (aka “NAIOP”), released the results of their national Developer Approvals Index study. The results of the study ranked Prince William County, Virginia in sixth place nationally, with an overall weighted score of 51, and attained a category-leading score of 75 points for “Consistency.” Consistency metrics covered code and ordinance updates, time frames for completed reviews, approval processes, feedback across different organizational levels and functions, including published approvals for project phases, and staff-based results, such as tenure, training, and their ability to handle complex projects. In short, Prince William County, Virginia is open for business.

For the attorneys at Vanderpool, Frostick & Nishanian, P.C., the study reiterated what we already knew, i.e., that Prince William County, Virginia, is a national leader when it comes to the provision of building development services and the approval of innovative projects including world-class data center infrastructure, bio/life science incubators, and higher education. Nor was the result of the study a surprise to some of our county’s most well-known business residents which include Amazon Web Services and the microchip manufacturer Micron.

If you are considering a project in Prince William County, Virginia, or any of the surrounding jurisdictions, the attorneys at Vanderpool, Frostick, & Nishanian, P.C. are able to bring their 80+ years of combined experience and community involvement to mitigate the legal risks and challenges related to your real estate development projects.

Call one of the attorneys at Vanderpool, Frostick & Nishanian, P.C., or email and let us see if we can assist you.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

3
May
2022

New District Court Case Limits Application of Attorney-Client Privilege in Workplace Investigations Conducted by Counsel

Written by: Monica Munin, Esq.

The United States District Court for the Western District of Virginia released a published opinion granting (in part) a plaintiff’s motion to compel seeking the release of an employer’s communications and investigation report with counsel regarding a complaint of sexual harassment.  The motion also sought information from counsel regarding what advice the employer received from counsel regarding “how to structure” the plaintiff’s termination. The motion was denied with respect to the attorney’s communications with counsel regarding the plaintiff’s termination and granted with respect to the communications relating to the investigation of the plaintiff’s sexual harassment claims.

The case involves a woman employed by the Town of Front Royal, Virginia (“the Town”) who complained of repeated instances of sexual harassment perpetrated by a colleague, William Sealock.  According to the plaintiff, she met with the Human Resources Department in August of 2019 to discuss her complaint following conversations she had had with other Town employees regarding repeated instances of unwanted touching and inappropriate remarks despite telling Sealock that the comments and touching were unwanted. Human Resources told the plaintiff she would hear back within two weeks following the completion of an investigation. The plaintiff did not hear from Human Resources or anyone from the Town, however, until November 2019. According to the plaintiff she had to repeatedly request updates on the status of the investigation and sought help from the Town to alleviate the harassment and retaliatory conduct she was suffering since reporting the sexual harassment. The plaintiff alleges that the investigation report in the matter was “wholly dismissive of her complaints (to the extent they were investigated at all) and [was] indicative of a sham investigation.” The plaintiff went on medical leave in December 2019 and was terminated upon returning to work on January 30, 2020. The plaintiff alleges that the Town’s stated reason for her termination, that her job was subject to “right-sizing” was a pretext for sex-based discrimination and retaliation. The plaintiff initially filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) before bringing suit against the town for violations of the Family Medical Leave Act (“FMLA”), as well as violations of Title VII of the Civil Rights Act of 1964.

Specifically, the plaintiff alleged sex-based discrimination, unlawful retaliation, and retaliatory hostile work environment in addition to her allegations that FMLA was violated. Shortly thereafter, the plaintiff filed a motion to compel, claiming that the Town had put the advice provided by the attorney hired to conduct the investigation in issue, thereby waiving attorney-client privilege over the communications. During depositions, the Town’s representative testified that Julie Judkins was hired “to make sure that everything in the investigation, and later in the firing of [the plaintiff] was done to ensure it was legal.” The plaintiff’s motion sought the release of “information and documents underlying Ms. Judkin’s involvement in both the investigation of [the plaintiff’s] harassment and retaliation complaints and in the termination of [the plaintiff’s] employment.” During depositions, the Town’s attorney had refused to allow Ms. Judkin (the Town’s counsel) to respond to a question asking if “Ms. Judkin’s advised the town how to end the plaintiff’s employment with the Town.” When asked why the Town had hired Ms. Judkins, the Town’s reply was “to advise Town council as it relates to a complaint that was made by [the plaintiff].” The Town representative’s deposition indicated that the investigation into the plaintiff’s allegations was “conducted by [Human Resources] and counsel” and that “if legal counsel and the [Human Resources] Department had concluded that there was sexual harassment or retaliation or a hostile work environment, he without a doubt…would have encouraged Council to take all the appropriate action afforded to us by law.” The Town’s representative further testified (after being asked to opine if the plaintiff’s allegations, assuming they were true, violated the company’s sexual harassment policy) “that would be up to the investigative body, in this case, it was the [Human Resources] Director in conjunction with legal counsel, to draw that legal conclusion of what that was harassment or not…” The Town had asserted privilege over its communications with the attorney that conducted the investigation as to the communications regarding the investigation, any advice sought regarding how to structure the plaintiff’s termination, and any advice regarding the conclusions of the investigation and remedial action recommended thereafter. The Town’s argument against waiving privilege is that it had not raised “reliance on the advice of counsel” as a defense in the case.

The Court held that the Town “put Ms. Judkin’s involvement in the investigation of [the plaintiff’s] internal complaints at issue but had not put ‘at issue’ her advice regarding Brown’s termination.”  In granting the plaintiff’s motion with respect to the attorney’s involvement in the investigation, the Court noted “[the Town] essentially turned the investigation of the plaintiff’s charges over to the attorney, and it was counsel who assembled the facts, drew the conclusions, and constructed the remedial response…under those circumstances, to prevent plaintiffs from discovering what was done by counsel and why, would be tantamount to giving the defendants both the ‘sword’ (i.e. the argument ‘that we were reasonable because we had our attorneys investigate the charge and craft a response’) and the ‘shield’ (i.e. what our attorneys did and why they did it, is privileged’).”  The Court found that the information sought by the plaintiff was “likely to speak directly to whether the defendants had actual knowledge of all the circumstances surrounding the allegations and whether their response to such allegations was clearly unreasonable.” It was the town’s reliance on the attorney to assist with the investigation and advice about what remedial measures were necessary, if any, that put the Town’s communications with counsel at issue in the case. The Court thereafter permitted the plaintiff to depose the Town’s counsel to an inquiry “[limited to] knowledge concerning the investigation and actions taken by the defendant in response to plaintiffs’ allegations.”  With respect to the plaintiff’s assertion that the Town had put communications with counsel at issue regarding the plaintiff’s termination and had waived privilege by stating in its EEOC position statement that counsel was hired to “ensure compliance with the law,” the Court found that attorney-client privilege had not been waived and the plaintiff could not depose the town’s counsel regarding that issue.”

The case underscores the delicate balance clients and attorneys must strike when seeking to investigate and address allegations of discrimination in the workplace.  It is vitally important to work with an attorney knowledgeable not only about the employment law statutes at issue but also skilled in ensuring that protected communications are not put into an issue where an employer would prefer to maintain confidentiality. 

Questions or concerns about this case? Please feel free to reach out by way of phone or email Monica Munin for guidance.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

21
Apr
2022

“Go-To Lawyer” in Business Law 2022

V. Rick Nishanian
V. Rick Nishanian
Managing Partner

Congratulations to Rick Nishanian for being named a “Go-to Lawyer” in Business by Virginia Lawyers Weekly (VLW). This program recognizes the top lawyers across the commonwealth in a given practice area, and the first field of practice is business law.

Rick handles complex business matters, mergers and acquisitions, and structuring business and real estate transactions with an emphasis on business and real estate finance.

A “Go-To Lawyer” is defined as:

  • A lawyer who is an expert in his or her field, well-versed in the nuances of the case law, statutes, and regulations clients will encounter.
  • A lawyer who is experienced and enjoys a record of success, with many cases and/or transactions that give testimony to the quality advice he or she can provide.
  • A lawyer to whom other lawyers make referrals because of his or her expertise and accomplishments.
  • A lawyer who can think creatively and identify all options for a client.

A full profile, highlighting Mr. Nishanian’s achievements in business law, is featured on the Virginia Lawyers Weekly Site HERE.

19
Apr
2022

Dealing with Disputes

By Brett Callahan

People often want to know what the difference is between mediation and arbitration.  It all comes down to who makes the final decision on how to resolve the issue, you or someone else. “Traditional” litigation often presents the same two options: do you want to settle the case, giving you some control over how things come out or do you want to go before a judge or jury and let them decide?

            There are benefits and risks to each approach.  In situations like mediation and settlement negotiations, you have control over the outcome, but so does the opposing party, since they also have to agree.  You would not be in a dispute with the other side if both were 100% in agreement, so to come up with something you will both agree on, neither of you are going to get 100% of what you want.  Also, there are often times when coming up with a compromise does not seem to be an option.  Perhaps the other party isn’t willing to consider a compromise or is being nonresponsive.  Perhaps they say they are willing to compromise, but mostly they just seem to be asking you to compromise.  Perhaps there simply doesn’t appear to be any room to compromise, because there are only two options.

            If the parties cannot come up with a solution themselves, they have to turn to a third party to make the decision for them, which is where lawsuits and arbitration come in.  Because both parties do not have to agree with whatever decision the judge, jury, or arbitrator makes, there is a chance you might get everything you ask for.  However, there is also a chance you get nothing you ask for.  That is where the risk comes in for both sides.  There is no such thing as a “slam dunk” case, no matter how much the facts and law appear to be on your side and no matter how brilliant and qualified you and your litigation team may be.  Any experienced litigator will tell you there is always a risk for you when someone else makes the decisions.

            So if mediation and arbitration are the same as settlement or going to trial, why are they called “alternative dispute resolution”?  The goal of mediation and arbitration is to speed up and reduce the cost of reaching a resolution.  Additionally, you generally have to agree to participate in arbitration or mediation, unlike in litigation where you can find yourself a party before a court without wanting to be there.  You also usually have to pay the mediation/arbitration company and mediator or arbitrator hourly out of pocket yourself or split the costs between the parties.  Courts usually have some set fees, but they also receive governmental funds, and you aren’t directly paying the judge hourly for their time.  That variability in mediation and arbitration costs means that there are times when mediation and arbitration are not necessarily going to be a less expensive option than more traditional litigation.

            Deciding what path to take to resolve your dispute is complicated as there are usually a number of options in any case.  Additionally, as the matter evolves, that analysis can change, so it is important to be prepared to revisit these decisions regularly to make sure you are still on the best path to reach your goal outcome.  The exact wording and use can vary, but below is a very basic glossary of “dispute resolution” terminology, which will hopefully help you have those discussions with your attorney.

Arbitration – In arbitration, the parties present their dispute to an arbitrator, who decides the resolution.  The parties must agree to arbitrate before arbitration, but most often this agreement is found in a contract the parties entered into before the dispute arose.  Arbitration is generally faster and less formal than proceeding before the courts.  However, because arbitrators’ decisions are legally binding, there are also appeals processes, in the event, that one party wants to contest the outcome.

Demand Letter – A demand letter is often the first “formal” action in a dispute.  One party or their attorney will generally summarize in writing the dispute, from that party’s perspective, and make a “demand” of what they want the other party to do to resolve the matter.  A demand letter may be a legal prerequisite under a contract or statute to taking further legal action, in some cases.  If a demand letter is a legal prerequisite, there are usually other specific requirements of what the demand letter must contain or how the demand must be made to qualify as that legal prerequisite.  If the other party complies with whatever is demanded in the letter, that may be the end of the matter, or, if not, the parties may move into pre-litigation settlement negotiations, file a lawsuit, or seek arbitration or mediation. 

Dispositive Motion – Not all contested lawsuits go all the way to trial.  Sometimes there are legal reasons why the court can “dispose” of the case, or parts of the case, before a full trial.  Even if a portion of the case will have to go to a full trial, partial dispositive motions are used to streamline the case.  The outcome of a dispositive motion can have a big impact on the strength or weakness of a party to negotiate a settlement on favorable terms.

Judicial Settlement Conference – A judicial settlement conference is similar to a mediation.  However, unlike mediation, judicial settlement conferences are generally only available to parties when a lawsuit has already been filed.  Judicial settlement programs are run through the courts, so there is often not a significant additional cost to participate in one.  In a judicial settlement conference, the neutral third party attempting to negotiate a resolution between the parties is generally a judge, although not the same judge who would proceed over a trial in the case.  As with mediation, the parties must ultimately agree upon the terms of the resolution, which are written as a legally enforceable agreement between the parties.

Mediation – In mediation, a trained neutral third party is involved to facilitate a resolution, similar to arbitration or litigation. However, unlike in litigation and arbitration, it is still the parties, not the third party who decides the final outcome.  If mediation is successful, the agreement between the parties is written as a legally enforceable agreement.

Settlement Conference – A settlement conference can be an umbrella terms for a meeting between the parties to try to resolve the dispute.  A settlement conference need not be facilitated by a third party and may just consist of the parties and their counsel.  However, in other cases, the term settlement conference may be used in the context of a third-party facilitated negotiation.  As with the other forms of dispute resolution between parties, if successful, the terms of the settlement are written as a legally enforceable agreement between the parties.

If you find yourself in a legal dispute with another party and want to review your options and determine the best path forward to meet your goals, the attorneys of Vanderpool, Frostick & Nishanian, P.C. may be able to help.  Please contact our office to speak with someone to discuss if we can assist you.

FOR MORE INFORMATION ON A SPECIFIC SITUATION, PLEASE CONTACT:

Brett Callahan is a shareholder at Vanderpool, Frostick & Nishanian, P.C. She is leading the firm’s litigation department. If you have additional questions or concerns contact brett Callahan at  bcallahan@vfnlaw.com or call us at 703-369-4738.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer