News

Jim Chapman inducted as a Fellow in the Virginia Law Foundation

Posted on February 3, 2016

CWM is proud to announce that Jim Chapman has been inducted as a Fellow in the Virginia Law Foundation, the philanthropic arm of the Virginia bar.Each year the Foundation selects  a group of top lawyers and retired judges for their integrity, character, and legal excellence. With his induction in 2016, Jim joins three other CWM attorneys, Guilford Ware, Howard Martin and Tim Coyle, and continues a path for CWM that started more than 30 years ago with Frank Crenshaw. Jim heads the firm’s litigation section and chaired its Admiralty & Maritime Law practice group for more than a decade.…

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EDVA Judge dismisses case against parent company after finding parent was not “Alter Ego” of Virginia subsidiary

Posted on January 28, 2016
Posted in Cases, Updates

Piercing corporate structures remains tough in Virginia, even if only to show jurisdiction. In a discrimination case brought by an employee of a Virginia-based subsidiary against his employer, its controlling mid-level subsidiary, and the Indiana parent company of both, Judge Conrad of the Western District of Virginia granted the parent company’s motion to dismiss for lack of personal jurisdiction, finding that (1) the nonresident parent had no direct contacts with Virginia and (2) the jurisdictional contacts of the subsidiaries could not be imputed to the parent. Bennett v. OmniSource Corp., No. 7:14-cv-309 (W.D. Va. Nov. 4, 2015). The Court specifically found that plaintiff failed to satisfy the standard in the Fourth Circuit to show that either the lower-level or mid-level subsidiary was the parent’s “alter ego.” Plaintiff, a sorter in a metal processing facility, did not offer any evidence to rebut affidavits from the parent company indicating that it has no direct contacts with Virginia. Instead, plaintiff argued that the mid-level subsidiary’s contacts with Virginia could be imputed to the parent because the companies share corporate officers and work facilities in Indiana, and because the parent provided guarantees to certain vendors. Under Virginia case law, the Court found such evidence insufficient to show that the parent exercised extraordinary control over the subsidiary, or that the parent was a separate entity in name only. The lesson? Proving alter ego status is fact intensive in Virginia, and merely sharing corporate officers and work facilities may not be enough without other indicators of control.…

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Virginia Federal court allows jury in trademark case even where demand came 5 months too late

Posted on January 28, 2016
Posted in Updates

In a Lanham Act case involving pharmaceutical products, Judge Conrad of the Western District of Virginia granted plaintiff’s motion for a jury trial, even though it was made only four months before trial and outside the time prescribed by Rule 38. In Concordia Pharm. Inc. v. Method Pharm. LLC, No. 3:14-cv-16 (W.D. Va. Nov. 4, 2015), exercising discretion under Rule 39(b), the Court found that the Fourth Circuit’s four-factor test had been met: the issues were not so complex that a jury would be incapable of understanding them; granting the motion would not significantly prejudice the defendants; the timing of the motion did not warrant denial since there were still seven weeks to conduct discovery and defendants failed to show how trial preparation would be effected; and a jury trial would not burden the Court’s docket substantially more than a bench trial. The lesson? The standard for granting a party’s untimely jury demand is relatively low in the Fourth Circuit, despite the explicit waiver language in Rule 38.…

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Disappointed that PTAB declined inter partes patent review? Tough, EDVA Judge rules

Posted on January 28, 2016
Posted in Updates

The Patent and Trademark Board’s decision on whether to grant inter partes review cannot be challenged in court. In Medtronic, Inc. v. Lee, 1:15-cv-946 (E.D. Va. Jan. 21, 2016), after the PTAB terminated an inter partes review seeking to determine the validity of two patents, the petitioner appealed the decision to federal court. But Judge Lee of the Eastern District of Virginia granted defendant’s motion to dismiss, holding that the court lacked subject-matter jurisdiction to hear the appeal because § 314 of the America Invents Act (AIA) precludes judicial review. The case began with a patent infringement suit against Cardiocom, LLC, which prompted Cardiocom to file a petition for an inter partes review. Medtronic acquired Cardiocom while the petition was pending, and after the PTAB declined to grant Cardiocom’s petition, Medtronic filed its own petition to review the very same patents. The PTAB initially granted Medtronic’s petition, but after further discovery and briefing, determined that Cardiocom should have been named as a real party in interest in Medtronic’s petition and terminated the inter partes review proceedings. Medtronic challenged the PTAB’s decision in federal court under the Administrative Procedure Act, claiming that 5 U.S.C. § 704 allows judicial review of an agency action when no other adequate remedy exists. But the district court held that, while the AIA evinces a strong presumption of judicial reviewability, that presumption is rebutted when a statutory provision explicitly precludes such review. Here, § 314 of the AIA expressly provides that the PTAB’s decision whether to institute inter partes review “shall be final and nonappealable.” The district court further held that it makes no differences whether the PTAB makes its decision at the outset of a request for inter partes review or, as in this case, after previously instituting review proceedings. The lesson? While the AIA allows appeals of final decisions on the merits by the PTAB, it bars review of PTAB determinations at the decision-to-institute stage.…

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Date of Mailing Doesn’t Save Payment Bond Claim

Posted on December 17, 2015
Posted in Updates

In a case of first impression in Virginia, the circuit court in Norfolk confirmed that the date of mailing is meaningless to satisfy notice requirements on a state law payment bond claim. The date that matters is the one on which the general contractor receives the notice. Under the Little Miller Act in Virginia, a supplier or subcontractor who asserts a payment bond claim must give “written notice” to the general contractor within 90 days of the last day of work for which payment is sought. Failure to do so bars the claim. In R. T. Atkinson v. Archer Western Construction, the supplier mailed notice of its claim before the 90-day deadline, but the general contractor received it two days after the deadline. Citing similar federal precedent, the state court held that notice is not “given” until the general contractor receives it, so a payment bond claim that is only mailed before the deadline is ineffective. The lesson? Don’t wait until the last minute to assert your bond claim. You just might lose it all. © Crenshaw, Ware & Martin, P.L.C.   This information is educational only; it is not legal advice. CWM attorneys represented the general contractor and surety in the case.…

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Court Orders Arbitration of Patent License Dispute

Posted on December 17, 2015
Posted in Updates

Virginia federal courts still err in favor of arbitration in business cases, even where parties take measures to avoid it. In University of Virginia Patent Foundation v. DynaVox, where a patent licensee refused to pay royalties on grounds that its products were not covered by the patent, a Virginia federal court held that the dispute must be arbitrated, notwithstanding that the parties excluded from their arbitration clause all controversies concerning the “scope of the patent.” The case involved eye-tracking technology that the UVA Patent Foundation licensed to a predecessor of DynaVox. DynaVox introduced a line of eye-tracking technologies that the Foundation claimed fell within the definition of “Licensed Product.” When the Foundation initiated arbitration, DynaVox denied that it made, used or sold any products covered by the patent. Citing this denial, the Foundation filed a Complaint in Virginia federal court, arguing that DynaVox had put the “scope of the patent” at issue. The federal court rejected the argument, holding that the breadth of the arbitration clause, coupled with strong federal policyfavoring arbitration, required it to stay the case. The lesson? Be as precise as possible if you plan to carve out claims from an arbitration clause, particularly in Virginia. © Crenshaw, Ware & Martin, PLC.   This information is educational only; it is not legal advice.…

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Best Law Firm Ranking by U.S. News

Posted on December 1, 2015

CWM earned a Tier 1 Metropolitan Ranking for the 2016 listing of “Best Law Firms” by U.S. News & World Report and Best Lawyers in three practice areas: Admiralty & Maritime Law, Eminent Domain & Condemnation Law, and Project Finance. The firm also received a Tier 2 Ranking in Bankruptcy & Creditors’ Rights Law, Bankruptcy Litigation, Public Finance Law, and Real Estate Law.…

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Virginia Business 2015 Legal Elite

Posted on December 1, 2015

The following attorneys have been named “Legal Elite” for 2015 by Virginia Business magazine. C. Wiley Grandy, Young Lawyer Under 40 Elaine Inman Hogan, Labor/Employment Amy Taipalus McClure, Construction W. Ryan Snow, Construction Donald C. Schultz, Bankruptcy/Creditors’ Rights…

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Tidewater Arts Outreach Adds New Board Member

Posted on December 1, 2015
Posted in Community News

CWM attorney Steven M. Stancliff has been elected to serve a three year term on the Board of Directors for Tidewater Arts Outreach. Steve chairs CWM's Admiralty & Maritime Law practice group. He is an avid supporter of the arts community.…

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CWM Welcomes Steven L. Brinker

Posted on December 1, 2015

Crenshaw, Ware & Martin, P.L.C. is pleased to announce that Steven L. Brinker has joined the firm as chair of its Business Law Group. Steve focuses on formation, financing and development of business entities, including complex mergers and acquisitions.  He also advises clients on the tax consequences of business transactions and strategies to address or mitigate negative impacts.  He counsels tax-exempt entities in all aspects of federal and corporate tax law, including obtaining and retaining tax-exempt status. Steve holds an LL.M. in tax from Georgetown University, a J.D. from Washington & Lee University, and a B.A. from the University of Virginia. Contact him at (757) 623-3000 or sbrinker@cwm-law.com.…

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