South Carolina Lawyers Weekly May 2023

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COVER STORY:

p4 | A 4-day workweek is amazing — in theory

COURTS

p10 | Federal court reverses employee’s sex bias verdict

OPINIONS

p17 | Roundup of recent South Carolina decisions

VERDICTS & SETTLEMENTS

p19 | The latest results on South Carolina legal action

LAWYERS IN THE NEWS

p22 | New associations, promotions and honors

CAROLINA PARALEGAL NEWS

p24 | New Legal Support Center responds to concerns

COMMENTARY

p31 | The sun sets on a takings clause claim

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A 4-day workweek is amazing — in theory

In the world’s largest pilot project testing the four-day workweek, most employers and employees agree that the reduced schedule — responsible for more sleep, less stress, and an improved personal life — is king.

But that trial took place in the United Kingdom. In the Carolinas, the concept is receiving no such royal treatment.

“I really haven’t had any clients even ask about converting to a fourday workweek, so I haven’t given much thought to the issue from a legal or practical perspective,” says Stacy K. Wood of Parker Poe in Charlotte.

Likewise, no one has sought the expertise of David E. Dubberly of MaynardNexsen in Columbia.

“No one has asked me about that, and I can’t imagine anyone asking me about that,” Dubberly says. “That would be like giving workers a big pay increase, and that would make inflation even worse than it is now.”

The results of the United Kingdom project, which included more than 2,900 employees and 61 companies, were released in February. Fifty-six companies plan to consider the four-day workweek further, while 18 plan to reduce their weekly work hours permanently (but not pay or benefits). Fifteen percent of participating employees indicated that no amount of money could lure them back into showing up to work five days a week.

Another recent study in Iceland suggests that employees working

four-day weeks are happier and more productive. Employers said their goal is to improve productivity by providing a better work-life balance.

Columbia attorney M. Malissa Burnette, a certified employment and labor law specialist with Burnette Shutt McDaniel, says a shorter workweek could provide enough time for employees to truly rest and take care of personal matters.

“Employees may be more productive after being rested and knowing they only have to work four days,” Burnette says. “Work-life balance could improve.”

Dubberly says that while he can see potential benefits in a perfect world, he questions the concept’s

feasibility, particularly in industries such as retail, manufacturing and health care. After all, when a customer, client or patient needs help, someone has to be on the clock.

“I’m assuming this is a fad with tech employers where they’re trying to recruit people in a tight labor market,” Dubberly says. “I think it might be more of a pitch than how things would really work. At the end of the day, an employer needs a certain amount of work done.”

The experiment was expected to be groundbreaking labor research at a state level, but the bills were ultimately withdrawn as its sponsors opted to seek money in the state budget for Maryland’s Department of Labor to study four-day workweeks. One sponsor told news outlets that the concept is just too new for many to embrace fully.

Coordination not culture

Where the 40-hour workweek was

to be open 40 hours, you’ve got to go out and hire somebody else.”

Other considerations

Robin E. Shea of Constangy, Brooks, Smith & Prophete in Winston-Salem agrees with the inflation risk and notes other concerns. For instance, there’s the question of whether employees would be expected to perform 40 hours’ worth of work in their abbreviated time in the workplace.

“If so, the four-day workweek may be more of a burden to employees than a boon,” she says.

And if the employer is looking only for four days’ worth of work, “will the reduced work schedule allow the employer to meet its legitimate business needs?”

Shea also notes that under some circumstances, a four-day workweek could make it more difficult for employees to coordinate with other important schedules, such as appointments or picking up children from school.

Burnette says a few clients, including a couple of law firms, have talked with her about implementing a four-day workweek. Those firms, however, imagined staff compressing 40 hours into four days.

Maryland trial on hold

Although the more successful trials of the four-day workweek have been conducted abroad, it has not been without its due consideration in the United States. Just last year, Maryland lawmakers looked to subsidize employers that agreed to make 32 hours on the job the norm without reducing their employees’ pay or benefits.

Maryland Delegate Vaughn Stewart, a lead sponsor of the bill, told news outlets that working through the pandemic has shown that “how we work is not set in stone, but it’s something that we as citizens can control.”

codified into U.S. law in 1938, one might conclude that it is too deeply ingrained in American culture to tamper with. But some, like Dubberly, believe it’s more a matter of common sense than culture.

“A good employer isn’t going to do something just because it’s been done that way for a long time,” Dubberly says. “So, I don’t think it’s so much culture as employers have to get a certain amount of work done, and if they could get it done in 32 hours, I’m sure they would. People who work a part-time schedule are not going to get paid a full-time compensation package — that’s just not realistic.”

Dubberly adds that if an employer pays a full-time salary to what amounts to a part-time employee, it’s going to “put a real strain on the budgets of companies.”

“If your employees are working just 32 hours a week, but you’ve got

“On the positive side, the idea of a four-day workweek seems to be popular with employees, and it might be a good recruitment tool for employers,” she says. “It might also result in some cost savings — for example, being able to turn off the air conditioning in the building for three days instead of only two.”

That aligns with a Japanese trial that Microsoft said resulted in a nearly 40 percent increase in productivity while electricity costs decreased by 23 percent. Workers also printed out nearly 60 percent less.

Burnette notes that while there is nothing wrong with hard work, the notion that lawyers must constantly be bustling has driven the industry to one of the highest rates of depression and substance abuse of any profession.

“Many other countries learned

See Page 6

“It would make inflation even worse than it is right now. If your employees are working just 32 hours a week, but you’ve got to be open 40 hours, you’ve got to go out and hire somebody else.”

— David E. Dubberly, MaynardNexsen

COVER STORY

Continued From Page 5

long ago the value of time off for renewing the soul, for parenting, and for taking care of one’s health,” Burnette says. “We could work smarter and with far less anxiety but for the false narratives we tell ourselves.”

Shea points to surveys indicating that employees enjoy the benefits of a four-day workweek, noting that they report being less stressed, sleeping better, and more efficiently managing their non-work-related responsibilities.

“Employers should also be cautioned, though, that any advantages associated with the improved employee satisfaction and better recruiting will fade if the majority of employers go to a four-day workweek model,” she says.

Another option emerges

Another option has emerged between the standard five-day and four-day workweek: the 9/80 schedule providing every other Friday off.

Shea says the 9/80 schedule allows employees to work full time and maintain full pay and benefits while having an extra day off every other week. It takes place over two weeks rather than one week.

In a 9/80 schedule, employees work nine hours daily, Monday through Thursday, in week one. They work eight hours on Friday, but four are charged to week 1, and four are charged to week 2. They then work nine hours a day the following Monday through Thursday — for a total of 80 hours — and have Friday off.

“In other words, the employee gets a three-day weekend every two weeks,” Shea says.

Shea notes potential risks under the Fair Labor Standards Act for non-exempt employees, as they would technically work more than 40 hours in the first week of the 9/80 schedule.

“So, if the employee is non-exempt, the employee would have to receive overtime pay for the hours worked in excess of 40 hours in a given workweek, even though the employee is working fewer than 40 hours the following week,” she says.

Legal translation

While the jury is out on whether a modified work schedule is appropriate for many industries, it seems

“Americans — and especially lawyers — cling to the notion that the harder and longer you work, the more happiness, success and wealth you will earn,” Burnette says. “The law firms who requested advice envisioned a four-day, 10-hours-per-day workweek for staff. Likely the lawyers are already working 10-hour days five or more days per week.”

For years now, employment attor-

more established that it would not work well across the legal field. Dubberly makes clear that firms are sensitive to the needs of their lawyers, willing to modify schedules and work models when necessary, but that being an attorney is not a part-time gig.

“If you’re in private practice, you’re available 24/7 if you’re a good lawyer,” he says.

Shea points out that litigators are somewhat at the mercy of the court.

“If a case is scheduled for a oneweek trial, counsel could not very well tell the judge, ‘We have to adjourn on Friday because we only work a four-day workweek,’” she says.

Shea believes that attorneys in more advisory or counseling roles could potentially manage a four-day workweek. And Dubberly concedes that staff or in-house counsel might also be able to make the jump. But don’t expect to see lawyers moving to part time anytime soon.

neys have counseled clients regarding alternative work schedules and models, primarily due to circumstances presented by COVID-19. The pandemic and advancing technology have helped create a climate in which many employers have become more accommodating and trusting of their employees. Workfrom-home and hybrid models have allowed business to be conducted even under unprecedented circumstances, but paying full-time compensation for part-time work might be more than employers are willing to do at this point.

“Most employers are not quite sold on the idea yet,” Burnette says. Especially those who employ attorneys.

“Since many clients expect their lawyers to be available for legal advice 24/7, it’s hard for me to envision a scenario where a law firm could legitimately say to those clients, ‘We’re here for you, but only Monday to Thursday,’” Wood says. •

“Since many clients expect their lawyers to be available for legal advice 24/7, it’s hard for me to envision a scenario where a law firm could legitimately say to those clients, ‘We’re here for you, but only Monday through Thursday.’”

— Stacy K. Wood, Parker Poe

Danny Crowe Jon Austen

Theron Cochran

Ellen Adams

Sam Clawson

Anne Culbreath

Bob Calamari Kevin Barth Kip Darwin

Eric Englebardt Karl Folkens

Earl Ellis Vernon Dunbar

Amy Gaffney

Rob Hassold Mills Gallivan

Mitch Griffith

Harry Goldberg

Richard Hinson

Bill Lyles

David McCormack Ben McCoy Regina H. Lewis

Stuart Mauney

Becky Laffitte Marvin Infinger Anthony Livoti

John Moylan

Walter B. Todd, Jr.

Tom Stephenson Lee Plumblee Franklin Shuler Lana Sims, Jr. Ronald Stanley Darren Sanders Matt Story

Thomas Wills Brad Waring Ned Tupper Derrick Williams

Bo Wilson

QUESTIONS WITH...

Despite the federal government stepping in to save members of recently collapsed banks, including the Silicon Valley and Signature banks, many remain anxious and question if their money is safe in their financial institutions. They wonder, in light of the ripple effect created on major banks and smaller, regional banks alike, what the failures mean to their businesses, the economy, and the government.

Some strategists expect more issues — but not a full-blown crisis — in the banking sector. Andrew C. “Drew” English III, a member with Callison Tighe in Columbia, recently spoke with Lawyers Weekly about these issues and more.

English focuses his practice on com-

mercial real estate acquisition and development, representing developers in all aspects of their projects. He also represents lenders in purchase money financing, refinancing of existing loan facilities, and workouts of nonperforming loans.

English graduated from Wofford College in 1995 with a bachelor’s degree in finance before earning his J.D. from the University of South Carolina School of Law in 1998.

Q. What concerns have you heard from your clients in light of the collapse of Signature Bank and Silicon Valley Bank?

A. No specific concerns relative to

SVB or Signature Bank from my transactional clients, but there is concern generally in the market as to the safety — perceived or actual — of smaller banks.

Q. What advice are you giving those clients?

A. I have not seen panic in my commercial clients, and that is what my advice would be: Don’t panic, your bank is very likely safe, and panicked bank runs will only lead to more failures. No bank has enough cash on hand to handle a run where all depositors take their cash. Most commercial clients are focused on rates, as trillions of dollars of loans will mature over the next 12 to 18 months, and they will not be refinanced

Drew English

B y H eatH H aMacHer

at rates anywhere near what they had. That means cash flows such as rents will not support the new, higher debt service payments. It’s not hard to see the vicious cycle. Rates go up, loan payments go up, rents go up, and finally prices go up and unemployment could follow. Or if rents do not go up, or tenants don’t or can’t pay, the foreclosure rate will inevitably increase.

Q. What type of ripple effect do you believe the collapses have had on major U.S. banks and smaller, regional banks?

A. Mainly fear, fear of the unknown. Strangely, it can be like a reverse FOMO [fear of missing out]; that is to say, if I don’t get my cash out, there may not be any left tomorrow. I feel like we have moved past that initial shock of SVB and Signature Bank, but there are plenty of worried folks still out there.

ness of the borrowers, equity, cash flow, etc.; and lending at lower loan to value ratios, which means that borrowers will have to inject more equity in the deal. All of these might sound good in theory, but they will be much more difficult to implement in the real world as they will further burden struggling borrowers. Banks can’t just stop lending, which is essentially what happened in the late 2000s in the real estate world. The net income of banks

A. Technically, no, but practically, probably yes. I say probably because I can’t see the government allowing one of the “Big Five” banks — Chase, B of A, Wells, U.S. Bank or Citigroup — to fail. However, if two of those are in trouble or throw in another large bank such as PNC, Truist or BNY Mellon, then all bets are off, and all we will be able to do is hold on.

Q. The current administration has indicated that it would ask Congress and banking regulators to “strengthen the rules for banks” to reduce the risk of bank failure. What might this look like?

A. A new model for lending. Examples may be a requirement to have more cash reserves on hand; implementation of tighter lending practices such as underwriting requirements which look more closely at the value of the assets and collateral, creditworthi-

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Q. Is there such a thing as a bank being too big to fail?

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Federal court reverses employee’s sex bias verdict

Adistrict court clearly erred when it assumed that an inference of sex discrimination necessarily followed when an employee proved a prima facie case of disparate treatment and their employer’s explanation wasn’t credible, the 4th U.S. Circuit Court of Appeals has held.

While the district court was entitled to substantial deference, the key evidence showed the employee was fired by a woman and replaced by a woman and there was no suggestion that gender “was even remotely a factor in [the defendant’s] decision,” Fourth Circuit Judge Paul V. Niemeyer pointed out.

“On this record, while we conclude that [the employee] made a persuasive case that firing her was probably an unfair business decision, she nonetheless failed to present evidence sufficient for a factfinder to conclude that it was the product of discrimination based on sex,” Neimeyer wrote. “Accordingly, we reverse.”

Judges Julius N. Richardson and

U.S. District Judge Michael S. Nachmanoff of the Eastern District of Virginia, sitting by designation, joined Neimeyer’s decision in Balderson v. Lincare Inc.

‘Cloned’ notes Florida-based Lincare, a supplier of respiratory-therapy products and services, sells an in-home mechanical ventilator that physicians can order for patients. The company’s sales representatives work with physicians, offering guidance on the necessary information for their patients to get coverage for the devices from their insurers or Medicare.

All Lincare employees were required to comply with the company’s Corporate Health Care Law Compliance Program and Code of Conduct. Examples of prohibited conduct included “‘[m]isrepresenting a diagnosis for the patient to justify the services or equipment furnished,’ and ‘[o]ffering or giving valuable property, equipment, services, gifts or other

benefits to a person in exchange for the referral of patients to the Company.’”

Chandra Balderson was hired as a sales representative in 2015, becoming a top-10 performer and earning significant commissions. She was responsible for reviewing sales orders, partly to ensure that doctors’ progress notes contained all information necessary to obtain insurance coverage. Her manager, Chad Brady, could review sales orders, but he had no sales responsibility and earned no commissions.

During a 2019 compliance audit, Lincare found signed doctor’s notes in 19 ventilator orders that were nearly identical. They identified different patients but “the body of each note appeared to be ‘cloned’ or a ‘template,’” of why the ventilator was medically necessary, per the opinion.

Lincare’s Chief Compliance Officer Jennifer Pedersen investigated and

See Page 12

COURTS

Continued From Page 10

found that Balderson faxed an unsigned, handwritten template note to a doctor with instructions to use an attached statement to fill in the notes. The statement essentially matched the cloned notes.

The doctor signed the template, added the patient’s identifying information, revised the order form with Balderson’s statement and faxed them back with the patient’s recent office records.

Realizing that diagnostic codes on some orders didn’t match patient records, Pedersen concluded that Balderson violated Lincare’s compliance program by suggesting that doctors sign template progress notes that contradicted their diagnoses.

Termination

Balderson admitted using the template to make it easier for doctors to get coverage; she turned over 17 more signed doctor’s notes, each containing the same generic language.

Pedersen also learned that Brady had provided “coaching” or “leading” information to doctors by sending three examples of statements sufficient to support a ventilator order. Brady also provided free equipment to a patient who lost theirs in a fire.

During a meeting that included Brady, Lincare’s corporate counsel and health care services manager, Pedersen informed Balderson that she was fired for “leading” doctors. Lincare eventually hired a woman to replace Balderson.

Pedersen gave Brady a “final written warning” for his conduct because his violation “did not rise to the magnitude” of Balderson’s as he only provided guidance about what information doctors should include.

Balderson sued Lincare in a West Virginia state court for statutory violations. After the case was removed to federal court, Balderson added a claim under West Virginia’s Human Rights Act for discrimination on the basis of sex.

The district court dismissed all of

Balderson’s claims except discrimination which proceeded to a bench trial.

Entitled inference

Pedersen explained at trial why Balderson’s conduct was a serious infraction, saying Medicare cautions that using templates to support reimbursement “can ‘put a physician’s practice at risk’ and can result in ‘contradictory information’ being introduced into a patient’s medical record.”

Balderson testified that she believed Lincare discriminated against her because she and Brady “were doing the same thing.”

The district court said that was enough to establish a prima facie case and that the Lincare’s reason for firing Balderson was “simply not credible.”

Finally, and most critically, the district court found that pretext was demonstrated by Brady’s lighter punishment despite his conduct being “at least comparable” to Balderson’s.

After the district court granted judgment to Balderson and awarded her compensatory and punitive damages, Lincare appealed.

Reversed

The West Virginia Human Rights Act’s prohibition of employment discrimination is governed by the same analytical framework and structures developed under Title VII of the Civil Rights Act, including its burden-shifting framework for analyzing pretext claims, Niemeyer explained.

He noted that the district court failed to follow 2000’s Reeves v. Sanderson Plumbing Products, Inc. ruling from the U.S. Supreme Court.

The Reeves court specifically addressed “whether a plaintiff’s prima facie case of discrimination …, combined with sufficient evidence for a reasonable factfinder to reject the employer’s nondiscriminatory explanation for its decision, is adequate to sustain a finding of liability for intentional discrimination,” Niemeyer said. “The Court’s conclusion was that such a showing may be sufficient but that it is not necessarily so – it depends on the circumstances.”

Rather, the Reeves court said “there will ‘[c]ertainly … be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant’s explanation, no rational factfinder could conclude that the action was discriminatory.’”

Niemeyer then looked to the instant case.

“The district court failed to recognize this possibility and to address it in light of the circumstances presented,” he said. “Had it done so, it would have been compelled to conclude that Balderson’s case was one of the type recognized in Reeves, in which a prima facie showing of a similar comparator, combined with reasons to doubt the employer’s explanations, is not sufficient to support a finding on the ‘ultimate’ issue — the employer’s discriminatory intent.” •

“There will ‘[c]ertainly … be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant’s explanation, no rational factfinder could conclude that the action was discriminatory.’ ”

4th

U.S. Circuit

Judge Paul V. Niemeyer

purpose’ not ‘sole purpose’

The 4th U.S. Circuit Court of Appeals has upheld the dismissal of a military servicemember’s claim that the financing of additional insurance as part of his car loan wasn’t for “the express purpose” of purchasing the car and, thus, was subject to the Military Lending Act, or MLA.

On appeal, the servicemember argued that the MLA’s car-loan exception applied only if “the express purpose,” rather than “an express purpose,” of the loan was to finance the purchase of a car.

Fourth Circuit Judge Julius N. Richardson disagreed.

“Is the statute’s exception contingent on the loan financing solely the purchase of the car — i.e., is the dual-purpose loan no longer offered for the express purpose of financing the car? The district court said no and we agree,” Richardson wrote. “If a loan finances a car and related costs, then it

is for the express purpose of financing the car purchase and the exception can apply.”

Judge Stephanie D. Thacker joined Richardson’s decision in Davidson v. United Auto Credit Corporation

Judge J. Harvie Wilkinson III dissented.

“It is a form of stealth financing for lenders to impose higher prices on service members — who just need a car — through add-ons on top of add-ons,” he noted. “The MLA was supposed to forestall this practice. But the majority gives it new life.”

Car loan

While on active duty with the U.S. Army, Jerry Davidson financed the purchase of a car with a loan from United Auto Credit Corporation. The loan included the cost of Guaranteed Asset Protection, which is extra insurance to cover the unpaid loan if

the car is totaled or stolen.

Davidson sued United Auto in the Eastern District of Virginia, alleging that the lender violated the Military Lending Act because the loan agreement mandated arbitration and failed to disclose certain information.

U.S. District Judge Leonie M. Brinkema dismissed the case, saying the loan wasn’t covered by the MLA. The act only applies to “consumer credit” loans; Davidson’s loan wasn’t “consumer credit” because it satisfied the MLA’s carloan exception, the judge reasoned.

Davidson appealed.

‘Express purpose’

The MLA regulates lenders when they extend “consumer credit” to members of the military. However, an exception applies for car loans.

Under § 987(i)(6) of the MLA, a

loan isn’t “consumer credit” if it was “procured in the course of purchasing a car … when that loan is offered for the express purpose of financing the purchase and is secured by the car.”

Here, Davidson’s appeal depends on whether United Auto’s loan was “offered for the express purpose of financing the purchase” of his car.

“So we must interpret the phrase ‘for the express purpose,’” Richardson said. “If that phrase, as used in the Act, means merely ‘for the specific purpose,’ United Auto wins. If it means ‘for the sole purpose,’ Davidson wins.”

Conditional statement

Richardson first examined dictionaries published close in time to the MLA’s enactment; support for both positions was found.

However, when read in context, the judge held that “Section 987(i) (6) uses ‘for the express purpose’ to set a condition. This context informs what we, the reviewing court, ask when applying the exception.”

Richardson said conditional statements have a condition and a conclusion.

“If you do this (the condition), then you get that (the conclusion),” he explained. “When the condition is met — for our purposes — the conclusion must follow.”

The judge said that the “this” in § 987(i)(6) was three separate items on a tick list to be checked off when evidence shows they were done.

“When we hit three marks, you get ‘that.’ No matter what else you may have done,” Richardson said.

Here, for the court’s purposes, the relevant conditional statement was: “If a loan is given for the express purpose of financing the purchase of a car, then it is not covered by the Act.’”

Not a directive

Two U.S. Supreme Court opinions showed “for the express purpose” meant for the specific — not the sole — purpose when used as part of a condition, the judge wrote. When used as a directive, on the other hand, the phrase typically means for the sole purpose.

Richardson said the provision here is not a directive.

“Our provision doesn’t order anyone to do anything” he wrote. “It lays out definitional elements to be checked rather than commands to be followed. Thus, we read ‘for the express purpose’ to mean ‘for the specific purpose’ rather than ‘for the sole purpose.’”

Davidson contended that the provision used “the express purpose,” not “an express purpose,” meaning that to qualify for the carloan exception, a loan must have a single purpose: financing the purchase of a car.

Richardson disagreed.

“Congress has specifically instructed that, when we are performing statutory interpretation, courts should assume that ‘words importing the singular include and apply to several … things,’ ‘unless context indicates otherwise,’” he explained. “So we must assume that, when § 987(i)(6) asks whether

a loan is offered ‘for the express purpose’ of financing a car purchase, it allows the loan to be made for multiple purposes unless context dictates otherwise. And as already explained, here it does not.”

Even if Davidson were correct that the “the” in § 987(i)(6) was an affirmatively singular modifier, the judge said the conclusion wouldn’t change.

“‘The’ express purpose the exception cares about is financing the purchase of a car,” Richardson wrote. “It says nothing about other express purposes the loan might have. So Davidson’s argument fails.”

Finding that the United Auto loan satisfied all three conditions under § 987(i)(6), Richardson said it was irrelevant that it also financed GAP protection.

“The loan is exempted from the Act,” Richardson concluded, “no matter what else it financed.”

Dissent

Wilkinson penned a lengthy dissent, saying the majority “undermines the Act by blessing hybrid loans and product bundles as exempt.”

These “are financings in which the lender packages non-exempt

“We must assume that, when § 987(i)(6) asks whether a loan is offered ‘for the express purpose’ of financing a car purchase, it allows the loan to be made for multiple purposes unless context dictates otherwise. And as already explained, here it does not.”

4th Circuit Judge Julius N. Richardson

financial products with a vehicle or personal-property loan,” the judge noted.

“By carving out such amalgamations from the MLA, the majority invites lenders to market financial products — that would otherwise be subject to the Act — through an unregulated back door,” Wilkinson

wrote. “The end result is to ‘open a loophole allowing easy evasion of the statutory provision’s basic purposes.’”

Rather than engage in “purposive inquiry,” Wilkinson maintained that the text of the MLA speaks plainly enough: “exempt loans must be made for ‘the express pur-

pose’ of financing a car.”

“This language, read in the context of the Act, does not refer to an ‘explicitly stated’ or ‘related’ purpose, as the majority lets on,” he wrote. “Rather, it refers to a purpose that is specific, precise, and exact — in short, ‘the express purpose.’” •

Striking of unvaccinated jurors didn’t violate Sixth Amendment

Afederal district court didn’t violate the Sixth Amendment right of criminal defendants to a jury of their peers when it struck potential jurors who were unvaccinated against COVID, the 4th U.S. Circuit Court of Appeals has held.

The defendants — unvaccinated due to sincerely held beliefs — objected that striking jurors based on vaccination status wouldn’t produce a representative sample of their peers. The district court overruled their objection.

Judge A. Marvin Quattlebaum Jr. affirmed the district court’s ruling.

“The fair-cross-section requirement applies to jury venires, not petit juries,” the judge explained. “And the district court’s decision to strike unvaccinated jurors based on their perceived inability to serve without creating unnecessary safety risks affected the composition of the petit jury for this particular case, not the individuals represented in the venire from which the petit jury is selected. So, we affirm.”

Judges G. Steven Agee and Allison Jones Rushing joined Quattlebaum in United States v. Cruz-Colon

COVID concerns

Jose Cruz Colon and his wife, Natassja Lopez-Alvarado, were indicted for drug trafficking and money laundering in the Eastern District of Virginia. Their

September 2021 trial coincided with the emergence of the Delta variant of COVID.

Concerned about safety in advance of trial, U.S. District Judge David J. Novak ordered the defendants to file a joint position as to their own COVID vaccination status and whether they would agree to strike unvaccinated jurors.

The defendants said they were unvaccinated due to their “sincerely held beliefs” but they agreed to be tested before and during trial. They also objected to striking unvaccinated jurors for cause. The government took no position.

The court sent a questionnaire to a venire of 110 prospective jurors for the parties to make strikes without having the individuals physically present. In addition to background and case specific questions, there were eight questions related to COVID risk and vaccination.

Neither defendant objected to the vaccination questions. At a pretrial conference, the parties discussed which prospective jurors to strike for cause based solely on the questionnaires. The stricken jurors wouldn’t be required to appear for jury selection.

Novak struck all potential jurors who weren’t vaccinated, as well as several others for typical reasons, such as the

burden on a single parent with children. The judge found alternative reasons to strike all but one of the unvaccinated individuals for cause.

Given an opportunity to explain their objection to striking jurors based solely on vaccination status, defense counsel explained that “[t]he thought process is that it may [not] include a representative sample of the jury. For instance, in this case, our clients are not vaccinated.”

The jury wouldn’t know whether the defendants were vaccinated, Novak responded. Defense counsel said the issue was “whether there was a jury of their peers,” which Novak construed to be a Batson challenge for discriminatory strikes.

After pointing out that being vaccinated isn’t a protected class, Novak explained that he would strike unvaccinated jurors due to the COVID risk with the Delta variant and jurors eating lunch together without masks.

They weren’t raising a Batson challenge, the defendants clarified. Instead, they argued that striking unvaccinated individuals excluded a section of potential jurors and pointed out that the court didn’t know whether vaccinated individuals interacted with the unvaccinated.

Overruling the defendants’ objection, Novak cited statistics showing that unvaccinated people were 11 times more likely to die from COVID that the vaccinated. Another unvaccinated juror was discovered and struck during voir dire over the defendants’ objections.

After ultimately being convicted of multiple crimes, the defendants appealed.

Shared attitudes

The defendants said the district court’s use of for cause strikes to exclude unvaccinated jurors established a prima facie violation of their Sixth Amendment right to have their case heard before a “fair cross section of the community.”

Before addressing the defendants’ prima facie case, however, Quattlebaum focused on a threshold issue — whether the Sixth Amendment’s fair-crosssection requirement applied to the district court’s decision to strike the unvaccinated potential jurors for cause related to COVID safety risks.

“We hold that it does not,” the judge wrote.

The U.S. Supreme Court “ha[s] never invoked the fair-cross-section principle to invalidate the use of either for-cause or peremptory challenges to prospective jurors, or to require petit juries, as opposed to jury panels or venires, to reflect the composition of the community at large,” Quattlebaum noted, cit-

ing the 1986 holding in Lockhart v. McCree.

He added that “Lockhart explained that ‘any … group defined solely in terms of shared attitudes that render members of the group unable to serve as jurors in a particular case, may be excluded from jury service without contravening any of the basic objectives of the fair-cross-section requirement.”

And, looking to 1990’s Holland v. Illinois, Quattlebaum said the Supreme Court rebuffed an attempt to extend “the fair-cross-section requirement from the venire to the petit jury.”

In the instant case, the district court’s use of voter registration lists to choose a venire has been expressly approved by the Fourth Circuit, the judge wrote. The master jury wheel included the unvaccinated individuals, as did the qualified jury wheel and the list of prospective jurors used to assemble the jury venire.

Qauttlebaum acknowledged that the lower court’s “categorical strikes” of jurors who hadn’t been vaccinated took place in a fairly unusual manner.

“In order to limit the number of individuals in the courtroom, the district court struck the jurors at a pre-trial conference after the venire was assembled but before the clerk of court assembled panels from which the parties conducted voir dire,” Quattlebaum wrote. “That, however, does not mean the ‘limited scope’ of the fair-cross-section requirement applies to the use of strikes for cause based on vaccination

status.”

Again, citing Lockhart, the judge said the “fair-cross-section requirement applies only where groups are excluded ‘for reasons completely unrelated to the ability of members of the group to serve as jurors in a particular case.”

The jurors in Lockhart were excluded based on their view of the death penalty, rather than “immutable characteristics” — such as race, gender or ethnic background — and historically disadvantaged groups weren’t deprived of their right to serve.

The same was true here, Quattlebaum wrote.

“While the district court’s strikes of unvaccinated jurors were based on COVID-19 safety risks rather than strongly held views about the subject matter of the case, those safety reasons related to the potential jurors’ ability to serve in this particular case,” he explained. “More specifically, the court felt that seating unvaccinated jurors in the midst of a global pandemic unnecessarily jeopardized the safety of the parties, the witnesses, the jurors and court personnel.”

Because the for-cause strikes affected the petit jury, not the venire, the Fourth Circuit held that the Sixth Amendment’s fair-cross-section requirement didn’t apply. •

“More specifically, the court felt that seating unvaccinated jurors in the midst of a global pandemic unnecessarily jeopardized the safety of the parties, the witnesses, the jurors and court personnel.”

Fourth Circuit Judge A. Marvin Quattlebaum Jr.

Administrative SSDI – VA Disability Ruling – SSA Rules vs. Court Precedent – Residual Functional Capacity

In the context of a disability claim, this court’s precedent would require a Social Security Administration administrative law judge to accord substantial weight to a disability determination by the Veterans Administration unless the record before the ALJ clearly showed some lesser weight was appropriate. However, new SSA rules do not require the ALJ to even consider the VA’s disability determination, though the ALJ is required to consider the evidence underlying the VA’s determination. Since the Social Security Act does not address other agencies’ disability determinations, and since Congress has granted the SSA Commissioner exceptionally broad rule-making authority, we agree with the district court that the new SSA rules supersede our precedent.

While we agree with the district court’s ruling as to the new SSA rules, we nevertheless vacate the order upholding the denial of benefits and remand for reconsideration of medical evidence that is not mentioned in the ALJ’s decision.

After the VA declared her 100 percent

disabled, plaintiff sought disability benefits from the SSA based on depression, anxiety and post-traumatic stress disorder related to a sexual assault she suffered while she was in the U.S. Army in the late 1980’s/early 1990’s. The SSA denied her claim, and the district court affirmed.

We apply the standard from Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), to determine whether our prior judicial construction of the Social Security Act trumps the SSA’s rules. We must assess whether our precedents “hold[] that [their] construction follows from the unambiguous terms of the [Social Security Act] and thus leaves no room for agency discretion.” Quite clearly, our precedents do not so hold. And that makes sense, in that the Act itself does not address how or even if the SSA must deal with another agency’s disability determination.

Next, then, we assess under the Brand X standard whether the new SSA rules are “otherwise entitled to Chevron deference.” See Brand X, 545 U.S. at 982 (referring to Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc ., 467 U.S. 837 (1984)). Where, as here, “the statute is silent or ambiguous with respect to the specific issue,” Chevron identifies “the question for the court” as being “whether the agency’s answer is based on a permissible construction of the statute.”

The new rules are a type that Congress empowered the SSA Commissioner to adopt, they are not manifestly contrary to any provision of the Social Security Act, and they do not strike us as arbitrary and capricious in any way. Notably, it matters not that the new rules constitute a reversal of prior SSA directives, for as Brand X explains, “[a]gency inconsistency is not a basis for declining to analyze the agency’s interpretation under the Chevron framework.” So long as “the agency

adequately explains the reasons for a reversal of policy” — as the SSA has done here — “change is not invalidating, since the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency.”

We conclude that, under Brand X, our precedents do not trump the new SSA rules. The new rules supersede our precedents and thus apply to claims filed on or after March 27, 2017. We also must agree that the SSA ALJ applied the correct legal standards and committed no error in adhering to the new rules and declining to accord substantial weight to the VA’s determination that plaintiff is 100 percent disabled.

However, the record includes medical evidence that the ALJ either ignored or discounted for reasons that were not explained. Plaintiff’s medical records reflect that “her menstrual cycle continues to be a trigger for her”; that her “[f]lashbacks [have become] more intense and more frequent, especially during [menstruation]”; and that menstruation “is alarming to her,” in that she “associate[s] the si[ght] of blood with [her] rape that happened in the Army.”

The ALJ was compelled by Social Security Ruling No. 96-8p to consider the menstrual cycle evidence, as it obviously is relevant to plaintiff’s ability to do sustained work-related activities on a regular and continuing basis. And because of the significance of that evidence, it should have been addressed in the ALJ’s decision so that there could be appropriate judicial review.

Vacated and remanded.

Rogers v. Kijakazi (Lawyers Weekly No. 001-036-23, 18 pp.) (Robert King, J.) No. 22-1264. Appealed from USDC at Charlotte, N.C. (Robert Conrad, J.) George Piemonte and Michel Phillips for appellant; David Nathaniel Mervis,

OPINIONS

Continued From Page 17

Samantha Zeiler and Dena King for appellee. 4th Cir.

Criminal Practice

CSC – Evidence of Evasiveness –Consciousness of Guilt – Insufficient Nexus

At defendant’s trial for criminal sexual conduct in the third degree, the state introduced a police detective’s testimony that defendant was evasive in response to her attempts to get him to come in for an interview. Because the state did not establish a nexus between defendant’s conduct and a consciousness of his guilt, the trial court erred in overruling defendant’s relevance objection.

We reverse and remand for a new trial.

About three hours after the victim left an office party – because she was too drunk to stay – defendant went to the victim’s hotel room, and they engaged in sexual relations. According to defendant, their encounter was consensual; according to the victim, she was raped.

The state first argues that its detective’s testimony about defendant’s evasiveness was relevant to show consciousness of guilt. However, for an act to be relevant as consciousness of guilt, there must be a nexus between the conduct and the offense charged.

At the time the detective in this case sought an interview with defendant, he had not been indicted and there was no warrant for his arrest. Defendant was free to refuse to meet with the detective if he so chose.

Unlike in our other consciousness-of-guilt cases, defendant’s failure to show up for voluntary interview appointments and his delay in giving a statement to the detective were primarily inaction, rather than action.

Furthermore, at the time of defendant’s interview—and presumably beforehand as well—he did not contest he was with the victim and had intercourse with her on the night of December 14, 2013. We can hypothesize several reasons defendant may have wanted to avoid discussing with the detective—or anyone— even the innocent ver-

sion of what happened the night of December 14. Perhaps he wanted to keep his wife or a girlfriend from knowing about it, or he may simply have been embarrassed that he had even consensual sex with a coworker.

Defendant’s “guilt” depended not on whether he had sex with the victim, but on whether she remained too intoxicated to consent to having sex and, if so, whether defendant knew or should have known that.

It is difficult to discern a nexus between defendant’s inaction and a consciousness that the victim had been too drunk to consent to sex weeks earlier.

Missing voluntary appointments to speak to the police under these circumstances is not easily analogized to evidence of guilt. Therefore, the detective’s testimony that defendant missed two scheduled appointments with her, she had “such a difficult time getting him to actually stick to an appointment and come in,” and he delayed 17 to 20 days before meeting with her for an interview was not relevant to show a consciousness of guilt.

The state also argues the evidence was relevant to explain the process and direction of the investigation. However, the detective was asked to explain only the delay between her request for an interview on February 3 and the occurrence of the interview on February 20. The detective was not asked to explain why she did not contact the suspect in a December 14 rape until February 3. As the detective was not asked to explain this much larger portion of the delay, we discount the importance of explaining how any portion of the delay in the investigation was supposedly attributable to defendant.

Although defendant did not object when the detective said he was “ducking and dodging” her, this comment did not render harmless the trial court’s error in overruling defendant’s relevance objection. There is no contention that defendant was literally “ducking” or “dodging” the detective. Rather, the comment was a clearly improper and inadmissible characterization of the fact that defendant did not keep two appointments for an interview. Thus, the comment cannot be “cumulative” in the sense it rendered the direct testimony not prejudicial. Rather, it made the prejudicial testimony

from direct more impactful by spinning defendant’s actual conduct as evasive when it was not necessarily so.

The detective’s testimony that defendant missed two scheduled appointments for an interview, she had “such a difficult time getting him to actually stick to an appointment and come in,” and he delayed 17 to 20 days before meeting with her was not relevant. The trial court should have sustained defendant’s relevance objection.

Reversed and remanded.

State v. Middleton (Lawyers Weekly No. 010-018-23, 11 pp.) (John Few, J.) Appealed from Charleston County Circuit Court (J. C. Nicholson, J.) Robert Michael Dudek for petitioner; Alan McCrory Wilson, William Blitch and Scarlett Anne Wilson for respondent.

S.C. S. Ct.

Insurance

Auto – UIM – Stacking – ‘Involved’ –Remote Unlocking

Plaintiff was struck by an underinsured vehicle while he was walking to his own vehicle; however, at the time of the accident, plaintiff had not yet reached his vehicle or physically engaged with it besides unlocking it remotely from across the parking lot. Consequently, plaintiff’s vehicle was not “involved in” the accident within the meaning of S.C. Code Ann. § 38-77-160 as that term was defined in Merck v. Nationwide Mut. Ins. Co., 455 S.E.2d 697 (S.C. 1995): “To relate to or have an effect on . . . to draw in as a participant . . . [to] implicate, include, affect.”

We affirm the district court’s grant of summary judgment for the defendant-insurer on plaintiff’s declaratory judgment claim, in which he sought a declaration that he could stack his underinsured motorist coverage.

Since plaintiff was not “in, on, getting into or out of” his vehicle at the time of the accident, he was also not entitled to relief under the occupancy provision of his policy.

Mims v. USAA Casualty Insurance Co. (Lawyers Weekly No. 003-008-23, 5 pp.) (Per Curiam) No. 21-1654. Appealed from USDC at Florence, S.C. (Joseph Dawson, J.) Thomas Rode for appellants; John Robert Murphy for appellee. 4th Cir. Unpub.

EDITOR’S NOTE: Lawyers Weekly publishes verdict and settlement reports submitted by both plaintiffs’ lawyers and defense counsel. The information published here is taken directly from the submitting lawyer’s summary.

$3.3 MILLION VERDICT Insurer liable for breach, bad faith after roof collapse

Action: Breach of contract, bad faith

Injuries alleged: Property damage

Case name: One to One Ministries, Inc. v. Penn-America Insurance Company

Court/case no.: Orangeburg County Circuit Court/No. 2020-CP-38-01274

Jury and/or judge: Jury/Judge Maite Murphy

Amount: $3.3 million

Date: March 23, 2023

Attorneys: Justin Lucey of Lucey Law in Mount Pleasant (for the plaintiff)

One to One Ministries, located at 1396 Russel Street in Orangeburg, suffered a partial roof collapse on May 20, 2020, and filed a claim with Penn-America Insurance Company.

$1.225 MILLION SETTLEMENT Head-on collision result of dump truck’s failed brakes

Action: Premises liability

Injuries alleged: Broken left hip, left arm and right leg

Amount: $1,225,000

Date: April 18, 2023

Attorneys: Kenneth Berger and Brad Lanford of the Law Office of Kenneth Berger, Columbia (for the plaintiff)

On Aug. 29, 2022, Ard’s Trucking Service employee Eddie Barber crossed the centerline in a loaded dump truck and hit Joseph “Joey” Kane head-on.

Kane had recently purchased his vehicle, which came with a dashcam that captured the moments leading up to the collision. The video footage showed Barber ap -

Penn-America denied the claim and One to One filed a breach of insurance contract and bad faith claims processing and denial action.

At the time of the collapse, the building was insured for $560,000 and $50,000 in business personal property coverage.

One to One alleged that Penn-America refused to share its coverage concerns during the investigation and then denied the claim even though Penn-America’s engineering report contained facts which indicated that the roof collapse claim should be covered under the policy.

One to One also asserted that without the insurance funds, it was unable to rebuild the sanctuary or protect the rest of the property, which suffered further damage as it

proaching from the opposite direction, then swerve into Kane’s lane to avoid hitting the car in front of him from behind.

The video and crash site evidence confirmed that Barber was going too fast for the conditions and a vehicle inspection revealed the dump truck’s brakes were badly in need of repair.

The force of the collision broke Kane’s left hip and right leg, as well as his left arm and three toes. Jaws of life were used at the scene and multiple surgeries involving hardware had to be performed by trauma surgeons.

At the time of the crash, Kane was serving in the armed forces and living with his wife on Shaw Air Force Base. The crash and resulting injuries put his military career in doubt; he also faces concerns

lay open to the elements.

One of the issues in the case was the role of a truss which had been modified in the partial roof collapse. One to One was able to show that the modified truss had lasted 30 years before it failed, and that it was the progressive deterioration of the roof structure that had caused the collapse. A collapse due to construction activities and deterioration was covered under the policy.

One to One also demonstrated that Penn-America failed to consider several other causes contributing to the cause.

After a four-day trial, the jury sided with One to One, awarding $1 million on the breach of insurance policy claim, $300,000 on the bad faith claim and $2 million in punitive damages.

about future medical needs, including a hip replacement.

Barber claimed that the brakes on the truck failed, which led him to being unable to stop for traffic in front of him or slow down before hitting Kane head-on.

During company owner Stephen Ard’s deposition, he admitted the truck’s brakes were scheduled to be replaced the day before the crash. Unfortunately, the brake work never took place, and instead the truck was loaded up and sent out.

Ard’s Trucking Service’s liability carrier paid their policy limits after the company owner’s deposition. The underinsured motorist carrier paid the combined bodily injury and property damage limits based in large part on the motor carrier’s recklessness.

DEFENSE VERDICT

Ousted retail business tenant loses at trial

Action: Breach of contract

Injuries alleged: Failure to cure

Case name: Joaquin Ramirez v. Sar International, Inc. Court/case no.: Forsyth County Superior Court/No. 19-CVS-7296

Jury and/or judge: Judge Susan Bray

Amount: $0

Date: Feb. 14, 2023

Attorney: Elliot Fus of Blanco Tackabery in WinstonSalem (for the defense)

In 2017, Joaquin Ramirez entered into a lease purchase agreement (LPA) to rent a former gas station property in Davie County from Sar International, Inc. Pursuant to the agreement, Ramirez was to receive title to the property after making

$1.08 million settlement

Driver T-boned at intersection has hip, pelvic fractures

Action: Motor vehicle accident

Injuries alleged: Multiple hip and pelvic fractures

Amount: $1,080,000

Date: August 2022

Attorneys: David Yarborough and Alexandra Heaton of Yarborough Applegate Law Firm in Charleston (for the plaintiff )

$500,000 VERDICT Driver struck by truck suffers spine, brain injury

Action: Motor vehicle negligence

Injuries alleged: Worsening of herniated discs in the spine and mild traumatic brain injury

$180,000 in rental payments over approximately six years.

The LPA required Ramirez to “occupy and use the Premises as a retail business.”

Ramirez took possession of the property, paid monthly rents and began renovations, but never opened for business.

In February 2019, the parties had further discussions and signed a handwritten building purchase agreement (BPA) stating that Ramirez “is going to buy this property for $100,000.00” and that closing “will” occur within 60 days.

Ramirez did not buy the property but kept making rent payments.

In or about July 2019, Sar allowed a new tenant/prospective buyer to assume possession of the premises. In August 2019, Sar sent

The plaintiff was traveling on Highway 521 in Williamsburg County on Feb. 7, 2022, when the defendant, traveling on Highway 52, ran a red light and T-boned the driver side of the plaintiff’s vehicle at the intersection of the two highways.

The plaintiff was taken via EMS to McLeod Regional Medical Center and admitted to the ICU. Two days later, she underwent an extensive, complex surgery to repair the fractures to her hip and pelvic region. She spent three weeks in

Case name: Patricia Julian Britton v. Eric Degar Roberts and Intermodal Bridge Transport, Inc.

Court/case no.: York County Court/No. 2020-CP-4603066

Jury and/or judge: Judge William McKinnon

Highest offer: $250,000

Amount: $500,000

Date: March 6, 2023

a notice of default, in accordance with the terms of the LPA, advising that the LPA would be terminated upon Ramirez’s failure to cure breaches of the LPA within 10 days.

The breaches included not opening for business as well as not paying property taxes and obtaining insurance, as required by the LPA.

Sar ultimately sold the property to the new tenant/prospective buyer for a higher price. Ramirez alleged breach of the LPA by “locking out” Ramirez prior to giving the required notice to cure. He sought damages including $17,221 for renovations and $53,600 for rental payments made.

Following a bench trial, the judge held that the LPA was extinguished by novation when the parties entered into the BPA.

an inpatient rehab facility before being discharged home to continue a long rehabilitative program through a home health service.

From the time of the collision through May 2022, the plaintiff was non-weight bearing.

Pre-suit demands were made for the per person bodily injury and property damage limits from the liability carrier and the available underinsured motorist (UIM) bodily injury coverage.

Both the liability and UIM carriers tendered their policy limits

Attorney: Sydney Lynn and Milton (“Milt”) Stratos II of the Joye Law Firm, Columbia and Charleston (for the plaintiff )

A tractor trailer turning left failed to yield the right of way at the intersection of Highway 321 and Ridge Road, causing a T-bone collision with the plaintiff, who was lawfully traveling through the intersection.

The Verdicts & Settlements page is a forum for lawyers in South Carolina to share results of recent cases. It is intended as a tool to help in determining case values for trial or settlement. Submissions are provided by one of the lawyers in the case. South Carolina Lawyers Weekly reserves the right to edit submissions for style, language and length.

NFL union head brings lawyerly stories to Lathrop event

DeMaurice “De” Smith describes his role as the primary check on the power of the National Football League — or, as he puts it, “a $20 billion unregulated industry” — in a way only a lawyer could.

“You don’t file a 10-K, you don’t file a 10-Q,” Smith said. “You have no public board of directors, you have no SEC oversight, you have no Department of Justice oversight, you have no state authority oversight whatsoever. You only answer to yourselves. What would you do? You could do whatever you want.”

Smith, the executive director of the National Football League Players Association, was the keynote speaker at Lathrop GPM’s annual “State of Litigation” event on April 13. Held in a ballroom at Arrowhead Stadium, home of the Kansas City Chiefs, the annual event — held in person this year for the first time since the pandemic

began — drew more than 200 attendees from Missouri and beyond for seminars ranging from cybersecurity to government investigations.

Before becoming head of the players union in 2009, Smith was a trial lawyer in Washington, D.C. and part of the U.S. Department of Justice. He joked that bringing a lawyer into the role caused the players’ collective bargaining agreement to quadruple in size, but he was hardly dismissive of the role that attorneys can play in keeping the sport morally and ethically grounded.

“Something has to be more meaningful than just having some sort of injury-laden game where we can watch from afar and take joy or pity or whatever from whatever is happening to somebody else on the field,” he said.

Smith described the ins and outs of the 2011 players’ lockout, defend-

ing Tom Brady in “deflate-gate” and helping current Baltimore Ravens quarterback Lamar Jackson negotiate a new contract as a free agent, as well as his fights with NFL Commissioner Roger Goodell.

“It’s ‘Roger,” Smith said when moderator Eric Yaffe, a Lathrop partner in D.C., made the mistake of referring to him as Commissioner Goodell. “Nobody calls me ‘Director Smith.’”

The Lathrop event’s football theme also was a nod of the NFL draft scheduled to take place in Kansas City later in April. Just before Smith spoke, Kansas City Mayor Quinton Lucas made a special appearance at the event to tout the draft and the 2026 World Cup as evidence that the city is “a place that’s walking and chewing gum.”

The draft, Lucas noted, would be held “down the street from Lathrop GPM.”

“I’m sure it was intentional,” he said. •

Kansas City Mayor Quinton Lucas made a special appearance at the event.

DeMaurice “De” Smith, the executive director of the National Football League Players Association, was the keynote speaker at Lathrop GPM’s annual “State of Litigation” event on April 13, 2023 at Arrowhead Stadium in Kansas City. Behind him is Lathrop partner Eric Yaffe, a Lathop partner who moderated the discussion. Photos by Scott Lauck

New associations

Stephen Atkinson has joined D’Alberto, Graham & Grimblsey in West Columbia, where he specializes in representing small to mid-sized business owners who are either selling their business to an outside or internally transitioning ownership to the next generation.

Kelli Sanders has joined Barnwell, Whaley, Patterson & Helms as the chief operating officer. Based in the Charleston office, she leads all firm operations.

Brian Critzer has joined Wyche as a litigation associate in the Columbia office, where he will focus on appeals and complex litigation.

The Greenville office of Haynsworth, Sinkler, Boyd had added Ayla G. Luers Connor as special counsel. Her practice concentrates on representation of hospital systems and health care providers with medical malpractice and insurance defense claims.

Nicholas Felix has joined the commercial litigation practice group in the Charleston office of Butler Snow. He represents individual and corporate clients in complex commercial and catastrophic injury matters.

Trial attorney Deon Tedder has joined Rogers, Patrick, Westbrook & Brickman, where he will focus on personal injury, mass torts and criminal defense work out of the firm’s Mount Pleasant and Columbia offices.

Law firms

The merger of Maynard, Cooper & Gale and Nexsen Pruet is complete, with the creation of a national firm now known as Maynard Nexsen. The firm has offices in Charleston, Columbia, Greenville, Hilton Head/Bluffton and Myrtle Beach, as well as Washington, D.C.

Employment law firm Gignilliat, Savitz & Bettis has moved to new office space in Forest Acres, located at 3700 Landmark Drive in Columbia.

Butler Snow has expanded its presence with a new office in Huntsville, Alabama. The new office has 23 attorneys, bringing the total number of attorneys to 404 firmwide.

Anastopoulo Injury Lawyers opened a new office in Orangeburg. Located at 235 Elliot St., the attorneys focus on personal injury, wrongful death and workers’ compensation.

Promotions

Six lawyers have been appointed as diversity and inclusion partners at Shumaker, including Laura Johnson Evans in the Charleston office. Evans is a health law national service line leader and health care business sector chair.

Tim Mercer has been named a partner with Bluestein Attorneys. Mercer is licensed in both New York and South Carolina. He focuses his practice on veterans’ disability.

Honors

Moore & Van Allen was recognized as a Global Competition Review 2023 Behavioural Matter of the Year –Americas award winner. The firm received the award for securing complete acquittals in a high-profile U.S. Department of Justice criminal antitrust prosecution of executives in the chicken industry. Attorneys on the winning trial team include John A. Fagg Jr., Frank E. Schall, James P. McLoughlin Jr., Kaitlin M. Price, Catherine R. Prater, Katherin Clarke McDiarmid, Fielding E. Huseth and Alexis T. Narducci.

The American Bar Association’s Section of Litigation has awarded Baker Donelson the 2023 John Minor Wisdom Public Service and Professionalism Award. In addition to its global pro bono work, the firm was recognized for creating Free Legal Answers in 2010 and its efforts to provide access to legal representation for those experiencing homelessness. FLA is a website on which anyone can receive pro bono legal advice from a volunteer lawyer.

Professional groups

Haynsworth, Sinkler, Boyd partner Mary Caskey has been appointed to the Bankruptcy and Debtor-Creditor Law Specialization Advisory Board for the South Carolina Supreme Court. Caskey chairs her firm’s bankruptcy and recovery practice group.

List of bar passers

APPLICANTS RECEIVING SCALED SCORE OF 266 OR HIGHER ON THE FEBRUARY 2023 UNIFORM BAR EXAMINATION

The Supreme Court of South Carolina congratulates the applicants listed below who have received a scaled score of 266 or higher on the February 2023 Uniform Bar Examination administered in South Carolina.

ATodd Carlton Alley

Morgan Marie Ames

GDonald Lloyd Garbade

Alexander Blovin Gerred

James Lee Goldsmith III

Tyra Sa’Dae Greene

Joseph Tyler Guerriero

PMichael Harrison Phillips

Nelson Dion Post

Robert Laurence Poston

John Joseph Prell

Eliza Lowry Marshall Presson

BFrank Shouse Beal III

Buck Stephen Beltzer

Sharmane Monique Bennett

Matthew James Blewitt

Brandon Joseph Boyle

Charles William Branham III

Andrew Carson Brehmer

Jaela Ellise Brown

Parker Wayne Lee Brown

Erica Simone Burkhardt

HShanice Michelle Hagood

Joseph Alexander Hale

David Allen Harris

Joseph Cantey Heath

Katherine Ririe Heath

Meredith Adelaide Hodges

Payne Whitlow Hoy

Mark Anthony Husted

QKelsey Jo Queen

RDaniel Lawson Revan

Scott Mason Richmond

Anna Stroman Rittgers

CJessica Brooke Cabaniss

Jessica Thomason Carroll

Austin John Ciuffo

Lesley Mark Collins

Brian Alexander Coverdale

Kimberly Michele Cunningham

ISamantha Carole Iannarilli

SJonathan Bryant Salmons

Daisha Nicole Catherine Schwear

Eric Thomas Schweitzer

Millie Emma Shaw

DTaylor Wilkins Davis

Davis Jaren Andrew Diethrich

Campbell Thomas Douglas

Michael LaRue Downing Jr.

Aspen Brianne Durham

KKelly Patrick Kanapaux

Jessica Nicole Karikas

Amanda Pennington Keen

Leacy Ann Kelley

Chase Bronson Kinsey

LEdward Peter Lapine

MMichalla Nicole Magaard

John Frederick Marra

Kevin Andrew McKibbin

FJames K Fisher

Rebecca Elizabeth Fisher

Allison M Foster

Brian Raymond Francis

Meghan Danielle Francis

Brittany Dixon Fulcher

Kevin Francis McNiff

James Chandler Miller

Danielle Dakota Murphy

Diana Lee Murray

OAlexandra Wiggins Olivetti

Mary Ellen Shuman

Robin Rae Slikker

Andrew Michael Smalley

Lexus Jean Smith

Gerald John Sufleta II

TElizabeth Connor Tingen

Lauren Ashley Trigleth

VAllison Leigh Vaughn

Irina Elena Vogt

WKyle Brandon Waddell

Danielle Marie Walker

Spencer Thomas Wiles

ACCESSING J USTICE

New Legal Support Center responds to concerns raised in UNC-G’s Legal Needs Assessment study

n BY TERI SAYLOR

Navigating the court system can be daunting for people who are neither legal professionals nor able to pay for an attorney.

But in North Carolina, getting help is a little easier these days at the new Wake County Legal Support Center, which opened last January.

At its ribbon-cutting ceremony January 13, Chief N.C. Supreme Court Justice Paul Newby described the need to provide assistance and tools for lower income people to have access to justice when they can’t a ord an attorney. e Legal Support Center lls that role.

“To have a resource like this to help individuals in situations where it is generally pretty emotionally charged to help them navigate, not just the physical location but certainly the challenges of a lay person encountering the legal world, it is vital to the citizens of Wake County,” he said.

On a spring morning in April, a line of people had formed outside the Legal Support Center, housed just o the lobby in the Wake County

Courthouse. Inside, a four-person sta prepared for a busy day.

e Center is open from 9 a.m. until 1 p.m. and during those four hours, the team would help at least 30 people with civil law issues ranging from family law matters to landlord-tenant disputes.

ey would provide information about how the legal system works, describe relevant laws, explain what people can expect throughout the legal process, what deadlines might apply, and answer a myriad of questions.

If that sounds daunting, it is just business as usual for the county’s newest e orts to help people access justice.

e Legal Support Center is a partnership with Wake County government, the Wake County Bar Association, the North Carolina Judicial Branch, the N.C. Equal Access to Justice Commission and the City of Raleigh.

For years, Wake County District Judge Ashleigh Parker Dunston had been exploring the idea of establishing a self-help legal services center like

the SelfServe Center in the Mecklenburg County Courthouse that has been in place for 24 years. Her desire was strong, but there were roadblocks.

“ e issue was one of sustainability due to the lack of funding, so creating a legal support service was not possible at that time,” she said in a recent Zoom interview.

But a er the University of North Carolina at Greensboro released its comprehensive 2021 North Carolina Legal Needs Assessment, Dunston’s idea became a mission.

“ e report absolutely demonstrated exactly what we saw, which was the acute need for legal services across the state for people who are unable to a ord them,” said Dunston, who served on the Legal Needs Assessment Steering Committee. It was the rst North Carolina assessment in almost 20 years.

e study showed that over 70% of low-income families encounter at least one legal issue a year with 91% of those families listing cost as a top barrier.

District Court Judge Ashleigh Parker Dunston speaks at the ribbon cutting for the Wake County Legal Support Center on Jan. 13. From left: N.C. Supreme Court Chief Justice Paul Newby, Wake County Manager David Ellis, Wake County Commissioners Chair Shinica Thomas, Commissioner Matt Calabria, Dunston, Commissioner James West. Photos courtesy of Wake County Government.

Judges and Wake County commissioners cut the ribbon on the new Wake County Legal Support Center on Jan. 13. From left: Wake County Manager David Ellis, N.C. Supreme Court Chief Justice Paul Newby, Wake County Commissioner Matt Calabria, District Court Judge Ashleigh Parker Duston, Wake County Commissioners Chair Shinica Thomas and Commissioner James West.

Legal Aid is overwhelmed

With its 23 o ces and 500 sta across the state, Legal Aid of North Carolina helps thousands of low-income victims of abuse, families facing homelessness and others in crisis gain access to housing, education, healthcare, employment, and other safety essentials.

According to statistics provided by Legal Aid of North Carolina, 25% of the state’s population struggles to make ends meet, and in three-quarters of civil cases, at least one party is not represented by an attorney.

Even with its statewide reach, Legal Aid can’t help everyone. e 2021 Assessment showed that need has outpaced resources over the past two decades.

“Some people don’t meet the low-income requirements, or people want to represent themselves because they don’t trust the system,” Dunston said. “We have always known that there are obvious barriers, and the Legal Needs Assessment was able to statistically prove that was true.”

e Legal Needs Assessment came about in 2020, when UNC Greensboro’s Center for Housing and Community Studies partnered with the N.C. Equal Access to Justice Commission and the Equal Justice Alliance to study the scope of need in North Carolina and the factors a ecting the depth and types of civil legal problems people experience.

e study showed that family law, immigration, and housing are the most underserved practice ar-

eas. Poverty drives a large percentage of this need. For Dunston, these results were all she needed to continue seeking support for ways the court system could help.

“In 2022, we began meeting with the Wake County Commissioners and Chief Justice Newby about creating a Wake County Legal Support Center, and that’s how it started,” she said.

Program coordinator S.M. Kernodle-Hodges helps a client complete paperwork at the Wake County Legal Support Center.

Wake County Legal Support Center clerk Julissa Corporan consults with a client

JUSTICE / New center addresses concerns

n Continued from Page

Serving hundreds of people

Since the Center opened on January 9, over 1,400 people have received services. e Center is open four hours a day, 5 days a week, and serves an average of 30 people each day.

For visitors to the Center, access is easy. e o ce is clearly visible in the main lobby of the Wake County Courthouse and o ers a welcoming environment. Its centerpiece is a repurposed magistrate’s bench, and beyond that, lies a bright, spacious room, with rows of carrels holding laptop computers. A private conference room sits next to the main facility.

One thing is clear - clients do not receive legal services or legal advice at the Center. Rather, they can get information about their issues and learn how to navigate the justice system, said Anh LyJordan, the Center’s program director.

“We do help people get to the heart of their problems, and in some cases, we learn that their issues may not need resolution through the law, and they can nd answers from various agencies and nonpro ts in the area,” said LyJordan, who is also a sta attorney with the North Carolina Pro Bono Resource Center.

Program coordinator S.M. Kernodle-Hodges enjoys the simple acts of making people’s lives easier and empowering people to solve their own problems.

“It feels great to see the impact of our interactions with clients when we are able to help them resolve their hardships,” she said. “While we are limited in the scope of what we can do, sometimes it’s just the little things, like printing out documents, doing international mailings, and referring them to agencies that can help.”

e Center also depends on a myriad of vol-

unteers ranging from pro bono paralegals, to volunteer attorneys and law students from Campbell University and UNC.

e students’ work at the Legal Support Center teaches them real life lessons, and Dunston says the Campbell Law students have already provided over 60 volunteer hours since the Center opened.

Campbell Law School Dean J. Rich Leonard is a “huge believer in experiential education,” he says, and he is convinced there’s no better way for students to gain experience than by volunteering at places like legal clinics and the Legal Support Center.

“I’ve tried to grow our experiential education signi cantly since I have been here, but the need is enormous,” he said as he sat in his o ce on the Campbell Law School building.

“A student’s ability to sit with a client, listen to them carefully, understand what they are saying, and telling them in plain language what their rights are and what might happen in their case is a huge skillset..

Volunteering in the clinics also gets students excited about practicing law.

Study examines need for legal services

In 2021, the South Carolina Access to Justice Commission, the South Carolina Bar, and the Nelson Mullins Riley & Scarborough Center on Professionalism at the USC School of Law partnered with the UNCG Center for Housing and Community Studies to perform a legal needs assessment in South Carolina.

e ndings were similar to those in North Carolina.

In addition to concerns about cost, o en people don’t realize there may be legal remedies for their problems, or they may not realize they have legal rights, and the lack of knowledge of available resources is also a major obstacle, said Bruce Rich, director of the UNCG Center for Housing and Community Studies.

South Carolina Legal Services has nine o ces across the state. Charleston is a hub for services, including the South Carolina Legal Aid O ce, Charleston Pro Bono Legal Services and Charleston Legal Access, but in the rural areas of the state, resources are not as convenient.

“People may not know that free or low-cost legal help is available or even if they know, they have no idea where to look,” he said. “ e study found that in both states, for some people, particularly in rural communities, o en the distance to get to a legal services lawyer can be 50 or 100 miles.”

Despite reports that there are too many lives in crisis and too many people needing civil legal services for the meager legal resources to handle, Rich pointed to a glimmer of hope and good news. e Justice System is paying attention.

“ e Access to Justice Commissions in both North Carolina and South Carolina, which are created by their respective Supreme Courts are using these studies to marshal tremendous resources in the legal community, local governments, legislators and philanthropic organizations,” he said. “ eir voice of support is very powerful.”

In North Carolina, the proof is in the number of people already receiving help in Raleigh.

Since its opening, the Wake County Legal Service Center has done no advertising, but the word has spread, said LyJordan.

“ e Center’s location within the sight of everyone entering the courthouse through the main entrance helps,” she said. “ e Clerk of Court’s o ce also makes referrals, but the largest spread of information has come when people we have helped tell their friends about us, and that’s the best kind of advertising.”

e Center’s creation and funding came largely through the Administrative O ce of the Courts from interest earned on pooled trust accounts IOLTA. e Wake County Commissioners provided funding and support, along with the City of Raleigh. e Center also received some grant funding.

Dunston is working to ensure the Legal Services Center has a bright future and has her sights set on possible expansion. She acknowledges that ongoing nancing will always be a challenge, but she continues to stay positive and motivated, always seeking new ways to help those who need it the most.

“An educated community is an empowered community,” she said. “And if we want to see change, we have to be the change.”

Wake County Legal Support Center director Anh LyJordan greets visitors at the repurposed magistrate's bench that serves as the Center's front desk.

LeGrand finds joy in helping others succeed

Charleston native Cheryl LeGrand is so passionate about her local Guardian ad Litem program, she even has a long-term goal to volunteer full-time in the eld a er she retires.

LeGrand is a paralegal at Haynsworth Sinkler Boyd in Charleston, where she works with civil and defense litigation cases, including personal injury, dram shop litigation, employment and defamation.

“I have also worked in other legal areas in the past, including workers’ compensation, construction defects, residential real estate, trucking and even a little probate and estate law,” she says.

She studied business at Mans eld Business College and in 2020, she completed a paralegal certi cate course at the University of South Carolina.

Career path: I chose the paralegal career path because I nd this type of work so interesting and rewarding. I am intrigued by the details and preparation involved in investigating the facts of a case and determining the best possible outcome for all parties. I have been watching online trials in recent years and nd them interesting and exciting. I also love taking continuing legal education courses not only in this eld, but just about any area.

What motivates me: I feel blessed to work with the best attorneys in the Charleston area and in

such an interesting eld. I enjoy being part of a team and helping attorneys succeed in obtaining the best results and outcomes for their clients. I also love to learn, and there is no lack of educational opportunities in this line of work. I am the person that gets excited about the successes of others, and you can o en hear me “woo-hooing” upon receipt of good news. It is a satisfactory feeling to know I play a role in working for the common good.

My job: e question “if there is a such thing as a typical day” pretty much says it all. e work and technology are constantly changing. I focus on helping our litigation team make sure all we meet all deadlines, and I concentrate on pristine case management and organization.

Time management tips: Reviewing all correspondence in detail and making notes of what needs to be done. I create and use a lot of indexes and charts. I use technology to track tasks and create follow-up reminders. I also try to be exible to best serve our attorneys and clients because on some days priorities can change quickly. e keys are focus, attention to detail, and willingness to serve.

Advice to teenaged self: Keep grounded in the goal to be the best you can be. Stay focused, be yourself, stay on the narrow path, and practice

CAROLINA PARALEGAL NEWS BRIEFS

n Eileen Schnur elected vice president of RALLA

Eileen Schnur, Ward and Smith’s library and research services manager, has been elected vice president of the Raleigh Area Law Librarians Association. RALLA represents professional law librarians from Raleigh and surrounding areas. is organization fosters collaboration among its members and engages them in career-focused professional development opportunities.

Drawing from her background in library & information science, Schnur focuses on ensuring

that the rm’s legal researchers have access to cutting-edge resources and innovative technology.

n LSPSC elects officers at annual conference

positive thinking.

When I’m not at work: I enjoy spending time with my miniature dachshunds. I love working decorating my home, doing yardwork, gardening, spinning, reading, volunteering in community and church, walking in scenic areas, and trying di erent recipes for church and other special events.

The Legal Staff Professionals of South Carolina held its 58th Meeting and Educational Conference at the Holiday Inn and Suites in Beaufort, S.C. Participants celebrated food, fun and friendship, while support professionals also earned CLE hours, elected new officers, and presented Schnur

LeGrand

Eason’s life in the law a dream realized

Jennifer Eason has always been fascinated with law and justice, and in her role as paralegal, she is living her dream.

A lifelong resident of Durham, Jennifer Eason earned bachelor’s degrees in psychology and American studies at UNC-Chapel Hill. As a student, she worked an internship with the Durham County District Attorney’s o ce, which cemented her lifelong interest in law and shaped her ambition to pursue a career as a paralegal.

A er graduating from college, she landed a job at Smith Debnam and attended Durham Technical Community College where she received her associate degree in applied science, focusing on paralegal technology. She also served as a Durham County Guardian Ad Litem and experienced rsthand the rewards that come along with using law to help others.

“Volunteering as a Guardian Ad Litem allowed me to advocate for abused and neglected children,” she said. “It was rewarding to stand up for those who didn’t have a voice.

A er becoming a certi ed paralegal through NALA, Eason was promoted to assistant paralegal supervisor at Smith Debnam, and she credits that role with giving her management experience.

In 2016, she joined Allscripts Healthcare. In 2022, when Allscripts sold its Hospitals and Large Physician Practices business segment to

the Harris Corporation and rebranded it as Altera, Eason was promoted to senior paralegal.

She has served on the board of the Raleigh-Wake Paralegal Association since 2013.

Career choice: As a child I enjoyed watching television shows involving court hearings and investigations. I currently focus on medical so ware contracting. I enjoy this job because I know the so ware provided by our company helps the doctors and hospitals give their patients the best care possible. Our motto at Altera is “Ascending to a new era of healthcare”. Our company embraces the concept of teamwork and being willing to help others, whether in the workplace, or by donating time to help others in our communities. I enjoy being a part of a work environment that truly cares about others.

Source of pride: From a personal standpoint, I am proud of my family, my husband and our sons Asher, 7, and Jackson, 5. Without a doubt, being a mother is my biggest accomplishment. Professionally, I am most proud I pursued my goals to become a legal professional and I really enjoying what I do each day.

You didn’t know: Paralegals must be willing to multi-task, be organized and exible. One second, I may need to be on a call and the next I’m being asked to dra a contract that is deemed urgent and needs to be nalized ASAP.

Childhood goals: I wanted to either be a teacher or to work with the law in some form or fashion.

Relaxation strategies: I enjoy exercising. I like to ride my Peloton bike and go for walks. Being in nature is always a good de-stressor for me. It allows me to slow down and be thankful for what is around me. I am also a Believer, so praying is a way for me to de-stress, focus, let things go, and give them to God.

Favorite vacation spots: Jamaica, England and France. I enjoy traveling and learning about the di erent cultures and the food.

CAROLINA PARALEGAL NEWS BRIEFS

awards. Angel S. Jackson, a junior majoring in criminal justice at South Carolina State University received the LSPSC’s annual Norma F. George scholarship, valued at $1,000.

LSPSC, a NALS statewide chapter, is on a growth spurt, with 99 members.

New LSPCS officers, from left: Traci B. Wolfe, president; Meredith Lazarski, president-elect; Cassandra Furtick, functional director of membership and marketing; Ann Marie Minerva, functional director of certification and education; Stephanie A. Jones, secretary; Tara Jean Brown, treasurer and Katherine R. Helms, immediate past president.

Eason

n N.C. Advocates for Justice Annual Convention

The N.C. Advocates for Justice is hosting its 2023 Annual Convention at the Omni Charlotte Hotel June 15-17. The association offers a special registration fee for legal assistants and encourages them to attend. https:// www.ncaj.com/convention-2023

n NALS 2023 education conference set in Houston

The National Association for Legal Support Professionals will host its 2023 Legal Education Conference Aug. 21-23 at the Hotel Derek in Houston. The association is also seeking speakers for the event. Visit www.NALS.org for information.

n NCADA 46th Annual Meeting

The North Carolina Association of Defense Attorneys will hold its 46th Annual Meeting and Seminar June 8-10 at Hilton Head Island, S.C. The theme is “New World Order: The Industry & Juries Have Never Looked So Different.”

The meeting looks at the New Law Firm Model which is imperative for anyone seeking to understand how firm structures are changing. For the first time in history, law offices are employing attorneys and staff representing four different generations with contrasting work styles together in one office. Learning to navigate and manage multi-generational work issues will help law firms succeed in this new era. https://www. ncada.org/event-5084951

(We are always looking for news about paralegals and law rm support sta . From activities, to promotions, to awards and honors, we want to know about it. Send your news to terisaylor@hotmail.com)

Jackson

n Continued from Page

online calendaring service is entirely free, funded by members of the Academy in North and South Carolina.

The sun sets on a takings clause claim

B y a L exis N arducci

An important question when asserting a constitutional claim against a government is when to file the claim, especially when the filing may have consequences for the plaintiff’s ongoing relations with the government or might result in government action to derail a project or practice.

Further, there is often the desire to wait until the injury has actually occurred to plead a tangible injury with specific and incurred losses to avoid a claim of speculative injury.

However, the March 23 decision of the 4th Circuit is a reminder that time and certainty are often luxuries that are not available in lawsuits challenging government policies or practices.

In Epcon Homestead, LLC v. Town of Chapel Hill, the 4th Circuit affirmed the District Court’s denial of Epcon Homestead’s six-figure claim against the town of Chapel Hill because Epcon failed to bring suit within the applicable statute of limitations. The case re-establishes that a 42 U.S.C. §1983 claim challenging the constitutionality of a land use condition under the Takings Clause accrues when the plaintiff knows, or has reason to know, of the injury and not when the injury is fully felt.

Epcon, a housing developer, made a payment of $803,250 to the town under its Inclusionary Zoning Ordinance. In June 2010, the town had enacted the Inclusionary Zoning Ordinance to meet its goal of preserving and promoting a culturally and economically diverse population.

The ordinance requires owners to set aside a certain number of affordable housing units for low-income households at below market prices in all development projects. In the alternative, an owner may pay the town a fee per unit, with the fee used for affordable housing.

In 2014, Epcon’s predecessors in interest submitted and received a special use permit for a development. The permit permitted Epcon to make the fee payment in lieu of setting aside units for affordable housing under the Inclusionary Zoning Ordinance. The fee totaled $803,250, made payable to the town in pro rata payments.

Following approval of the special use permit, Epcon acquired the real property and began the project in 2015.

Epcon made its final fee payment on March 20, 2019. On October 24, 2019, Epcon filed suit, seeking return of the $803,250, plus interest and attorneys’ fees.

The town argued Epcon’s state and federal claims were barred by a threeyear statute of limitations. Section 1983 does not contain a statute of limitations, so federal courts borrow the statute of limitations from the most analogous state law cause of action. Owens v. Balt. City State’s Att’y’s Off., 767 F.3d 379, 388 (4th Cir. 2014).

The most analogous North Carolina statute of limitations has been held to be N.C. Gen. Stat. §1-52(5), which applies to any action for an injury to the person or rights of another, not arising on contract and not otherwise enumerated in the general statutes. Nat’l Advert. Co. v. City of Raleigh, 947 F.2d 1158, 1161-62 (4th Cir. 1991).

In support of its statute of limitations argument, the town maintained the issuance of the October 2014 special use permit triggered the statute of limitations because the permit was conditioned on Epcon’s commitment to pay the fee. Thus, the town argued the statute of limitations period for the claim expired in October 2017.

Epcon argued the limitations period did not start until it began making

the fee payments in July 2017 because those payments began the tangible intrusion on its constitutional right. Accordingly, Epcon maintained it brought a timely action within the three-year statute of limitations period.

Relying on National Advertising Company v. City of Raleigh and Halle Development, Inc. v. Anne Arundel County, the 4th Circuit panel concluded the §1983 Takings Clause claim began accruing when the town issued Epcon’s special use permit.

In National Advertising Company, the court found an advertiser’s claim began accruing upon enaction of an ordinance and not when the grace period ended five years later. 947 F.2d at 1160-61 (4th Cir. 1991).

In Halle Development, the court held a developer’s claim began accruing when the county provided notice that it would not provide fee credits in exchange for the developer’s conveyance. 121 F. App’x 504, 505 (4th Cir. 2005) (unpublished).

Similarly, the 4th Circuit here found that upon issuance of the special use permit, Epcon knew or had reason to know of the imminent payments giving rise to injury; thus, the court held Epcon’s Taking Clause claim began accruing at that time.

In an alternative argument, Epcon asserted its complaint did not allege a regulatory taking, but rather alleged an unlawful exaction. Epcon argued the claim did not accrue upon issuance of the special use permit because the exaction could not occur unless and until Epcon actually changed the

See Page 32

Narducci

use of the property to the use approved in the special use permit, and Epcon had the option not to go forward with the newly permitted use.

That argument did not sway the court: “The fact that the special use permit did not require and simply permitted Epcon to develop the land for the use described in the application (subject to the condition at issue) is hardly noteworthy … when Epcon learned of the special use permit condition on its recently acquired land, its takings claim become actionable.”

Finally, Epcon argued that under the continuing wrong doctrine, each payment constituted a “continuing wrong” that tolled the statute of limitations. Because state rules on toll-

ing apply when a state statute of limitations is borrowed in a federal questions case, the 4th Circuit turned to North Carolina law on the continuing wrong doctrine. North Carolina law states that for each unlawful act, the applicable limitations period starts anew. Under Epcon’s theory, that would mean that the statute of limitations period started over with each payment Epcon made to the town.

The court found Epcon conflated its state and federal law claims, ruling that Epcon’s state law claim is arguably the unlawful fee payments exacted, but the issuance of the special use permit inflicted the §1983 injury; therefore, the federal cause of action occurred prior to when Epcon actually paid the fee installments.

The 4th Circuit dismissed Epcon’s

42 U.S.C. §1983 Takings Clause claim. The court also declined supplemental jurisdiction and dismissed the state law claims without prejudice, so Epcon can refile its claim in state court.

In dismissing these claims, the 4th Circuit warns plaintiffs who wish to file a Takings Clause claim that they must calculate the relevant statute of limitations period when the clock begins to tick upon the plaintiff’s knowledge of the injury.

The decision is reported at Epcon Homestead, LLC v. Town of Chapel Hill, 62 F.4th 882 (4th Cir. 2023). •

Alexis Narducci practices at Moore & Van Allen, where she represents clients in a variety of litigation matters, government and corporate investigations, and financial services matters.

A roadmap to attracting, developing, retaining amazing associates

Our industry has seen concerning associate attrition over the past few years, highlighting associate retention as a significant market pressure on firms going forward.

Law firms are struggling to attract and retain dedicated, motivated, reliable associates who are truly ready for practice. Adding to the frustration of many firm leaders: increased compensation and bonuses are ineffective in solving the associate retention puzzle.

Meanwhile, our industry is experiencing time management, work-life balance, and mental health crises. Associates are barely able to keep up with client work and billable-hour expectations. They have no remaining time for the building blocks of a successful practice life, including time to

rest and refresh, collaborate fully with others, participate in business development, fuel their professional growth through intentional self-development, and explore their leadership potential.

Today’s associates do not learn the skills or receive the crucial support necessary to build an effective, efficient, focused, fulfilling approach to practice. Law schools do not teach those skills, and it’s challenging for law firms to provide effective associate support, given pressures on partner time, not to mention lack of insight and teaching experience at most firms.

New lawyers are not developing into the experienced lawyers and practice leaders capable of fueling not only their own success, but the success of their firms and clients.

Instead, associates are overwhelmed, burning out, and walking away, all because they do not receive the right skills and support at the right time.

Firms that solve this problem by investing in associate support are well-positioned to succeed, not only in associate retention but in other key goals.

First, when law firms invest in or build effective training and support for their associates, they are better able to attract, develop and retain top associate talent, and their associates grow into fulfilled, valuable, industry-leading lawyers.

In addition, supporting associates starts a potential cascade of wins for law firms, because investing in such support is strongly connected to a firm’s effectiveness in reducing attor-

ney burnout; increasing attorney well-being; increasing the firm’s diversity, equity and inclusion efforts by retaining and advancing women and other marginalized lawyers; and boosting the firm’s innovation in practice by retaining and advancing innovative lawyers who tend to look for supportive law firm environments.

Law firms can unlock these wins by building or investing in support for their associates in the following three areas:

Time management training

Foundational time management skills are crucial for associates to thrive in modern practice.

Unfortunately, today’s early-career lawyers do not learn these skills and as a result are unprepared for the pressures and complex moving parts of law practice. Even top law students struggle in practice for lack of an effective time management strategy.

Simply put, we are facing a time management crisis in our profession, and it is lurking behind the many frustrations shared with me by law firm partners and other legal supervisors, as well as by associates themselves.

Without these skills, associates are unable to keep up with their work, meet deadlines, or predict and communicate how long matters will take to complete. Instead, they turn in projects at the last minute, leaving little time for others to review their work, and they constantly scramble to get work done yet still struggle to keep up. They do not have time to rest, consider their own development, participate in marketing efforts, or contribute to their own growth as leaders in the practice.

Lawyers need to understand how to use an effective time management strategy to support their priorities, i.e., what is most important, what they value, where they want to steer their life and career. When lawyers do not learn to identify and focus on their priorities as a starting point, time management skills will only

expedite overwhelm and burnout, rather than help avoid those issues.

Feedback management training

Early-career lawyers need not only mentoring (ideally by experienced mentors outside of the firm to avoid internal relationship limitations) but training in feedback management.

Rather than pushing feedback out at associates, firms can invest in feedback management training for their associates, empowering associates to manage their own self-development.

In doing so, firms can trade awkward, forced (or, let’s face it, often nonexistent/entirely lacking) partner-initiated feedback conversations for targeted, clear, focused, associate-initiated feedback conversations that supercharge associate development.

New lawyers are capable of managing their own progress and better suited than partners to do so. When associates manage their own feedback, they will rightfully feel more confident and in control of their own development.

Practice-ready skills training

New lawyers I work with typically struggle to independently produce the type of counseling and work product actually valuable to clients. (Don’t worry, there’s a cure for the long, accurate-but-useless memos and the vaguely relevant, legalese-filled contracts you’re recalling with frustration right now.)

Many law firms assume training associates in practice-area-specific technical skills, documents and procedure will produce practice-ready associates. Other firms assume associates need years of practice experience before they’re able to offer effective solutions, documents and counseling that fits a client’s goals, situation and industry. Great news: neither of those assumptions is true!

Instead, the real magic happens when new lawyers are guided through

a shift in thinking to quickly transform the substantive knowledge and analytical ability gained in law school into practical, practice-ready lawyering.

With a simple shift in thinking, not only new lawyers but even law students I work with are able to take a minimal amount of recently learned, foundational substantive knowledge and produce effective, real-client counseling rivaling results produced by lawyers with years of practice experience.

This kind of practical skills training quickly and effectively bridges the gap from law school to practice, but sadly is rarely offered to associates.

Rethinking associate support

We easily can, and certainly should, do much better for the next generation of lawyers. Associates not only crave but desperately need practical training and support in the three areas above. Firms providing that support can produce practice-ready associates, valued counselors, and indispensable colleagues who find fulfilment in their practice.

Your firm can get started by:

• Identifying the gap between your current approach to supporting your associates and your new approach including the three areas above.

What will you need to add to, or change about, your existing program? Will you need to build a new program from scratch?

• Deciding whether your firm has the knowledge, experience and time to create trainings and support in the above areas in-house, or whether your firm will need to invest in external support.

If you invest in external support to build a training program, what is your firm’s associate support budget? Who is responsible for reaching out to get started with external support? What is your target timeline for starting your new associate training and support program?

If you build a training program on See Page 34

your own, which partners/administrators will play a role? Who will take the lead? Exactly what will you include and how will you structure and deliver your program? How will you measure if it’s working?

• Calculating the current cost to your firm of each associate leaving the firm.

Calculate this number as concretely as possible to get a better sense of how an investment in associate support to improve retention aligns with your firm’s finances. For example, it can cost firms as much as $500,000 to lose an associate. Firms lose money in re-training associates, in recruiting new talent, in billable hours, and in additional signing

bonuses, as well as on extra human resources, partner and administrative time.

• Identifying the benefits to your firm of investing in associate training and support.

Remember, supporting associates can boost retention but also contribute to attorney well-being, diversity at your firm, and innovation in your firm’s approach to practice and business development. How might these additional benefits impact your firm, colleagues and clients?

Today’s early-career lawyers are talented in myriad ways but also fully capable of outstanding practice, valued client work, leadership in the profession, and directing their own career progress. They just need the right support to unlock the results for their cli-

ents, their firms and themselves.

Please feel free to reach out to me at kate@kateunfrazzled.com to talk about your options for investing in a curated external associate support program or for support in building a customized internal support program for your amazing associates. I’m cheering you on as you lead our industry in providing the support today’s early-career lawyers need to flourish in practice! •

Kate Ahern of Unfrazzled, LLC, guides lawyers on time management, priorities management, burnout, and the related impact of gender bias and other external pressures. She also helps law firms support associate development and retention. Ahern is a law professor, former AmLaw200 attorney, and transactional lawyer. She can be contacted at kate@kateunfrazzled.com.

Supreme Court to review South Carolina congressional map

WASHINGTON (AP) — The Supreme Court has agreed to decide whether South Carolina's congressional districts need to be redrawn because they discriminate against Black voters.

The justices said May 15 they would review a lower-court ruling that found a coastal district running from Charleston to Hilton Head was intentionally redrawn to reduce the number of Democraticleaning Black voters and to make it more likely Republican candidates would win.

The case probably will be argued in the fall, and decided in the run up to the 2024 elections, when all the seats in the closely divided House of Representatives, now under Republican control, will be on the ballot.

The three-judge court that ruled in favor of civil rights groups that challenged the congressional map said in its opinion in January that the districts violated the federal Voting Rights Act by unfairly diluting the power of Black voters.

The Supreme Court has cut back on the reach of the landmark voting rights

law, and is now weighing an Alabama case that could make it still harder to win lawsuits claiming racial discrimination in redistricting.

Republican Rep. Nancy Mace currently represents the 1st District. She narrowly beat Joe Cunningham in 2020 after Cunningham became the first Democrat to flip a U.S. House seat in South Carolina in 30 years.

In the round of redistricting that took place following the 2020 census,

Republicans who control the state government redrew the district. Mace won by 14 percentage points in November.

Republicans defending the map have said partisan considerations, the desire to maintain the 6-1 Republican edge in the state's congressional districts, drove their decision, not race.

Civil rights groups quickly sued, labeling the plan the Legislature adopted "perhaps the worst option of the available maps" for Black voters.

U.S. Supreme Court. AP Photo/Patrick Semansky, File

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