Docket – October 29, 2018

4th U.S. Circuit Court of Appeals

In re: Murphy-Brown LLC (P), 4th Cir. (Wilkinson) from EDNC at Wilmington (Britt).

The district court must vacate a gag order imposing stringent restrictions on participants and potential participants in a series of nuisance suits brought against the hog industry in North Carolina.

Plaintiffs claim that hog farms give rise to undue amounts of odors, insects, and pests, not to mention the noise and debris generated by raising hogs and shipping them for sale. During a jury deliberation, the court issued a sweeping gag order on grounds that “the volume and scope of prejudicial publicity observed” led to a “substantial risk of additional publicity tainting or biasing future jury pools.” After this court ordered expedited review of the plaintiffs’ petition for mandamus relief, the district court granted the respondents’ motion to vacate the gag order.

First, the August 31 order vacating the gag order exceeded the trial court’s authority vis-à-vis the court of appeals. Allowing rescission of the gag order to stand would invite district courts to track cases on the appellate court’s docket, and when a reversal seemed possible or imminent, to pull the rug out from under the appellate court and the parties.

On the merits, the gag order doesn’t pass strict scrutiny. If judges can guide the jury to an impartial verdict, then no gag order may issue. Here, the trial court assembled impartial juries each time it needed to do so. The gag order should not have come before less restrictive alternatives including voir dire were somehow found or proven to be ineffective.

The gag order also included no findings specific to the various individuals it restricted. It treated lawyers no differently from parties, who in turn were treated the same as potential witnesses. Moreover, the gag order applied blanket restrictions to more than twenty cases that will be tried over a period of years. Individuals and organizations were led to guess whether they were “potential witnesses,” a term the gag order does not even define.

All these people care. This case is about their lives and their livelihoods. Whatever differences the parties and their supporters have, they possess in common a passionate First Amendment interest in debating their futures. It seems very wrong that a court would take that from them.

Petition granted.

U.S. District Court – Virginia Eastern

Los Amigos Five Inc. v. Canopius US Ins. Inc., EDVA at Richmond (Lauck).

The court declined to remand a declaratory-judgment action regarding an insurer’s duty to indemnify the plaintiff in a separate personal-injury suit. Although attorneys’ fees generally do not contribute to the $75,000 threshold for federal diversity jurisdiction, they do in this case because litigation fees are covered by the parties’ insurance contract. Therefore, the jurisdictional threshold is met.

Motion to remand denied.

U.S. District Court – Virginia Western

Nat’l Labor Relations Bd. v. Cobalt Coal Ltd., WDVA at Abingdon (Jones).

After failing to produce documents until the court granted a motion to compel, the defendant must pay the National Labor Relations Board’s attorneys’ fees related to the motion to compel. The amount is based on the fee matrix used by the U.S. Attorney’s Office in Washington D.C., which resulted in a fee award of approximately $7,500.

Colley v. Dickenson Cty. Sch. Bd., WDVA at Big Stone Gap (Jones).

In a case alleging gender-based pay discrimination, the School Board’s disclosure of privileged information wasn’t followed by steps to prevent waiver or rectify disclosure. Therefore, the School Board is required to produce otherwise privileged documents created before the litigation commenced, but the waiver doesn’t extend into this litigation itself.

Virginia Circuit Courts

Commonwealth v. NC Fin. Servs. of Utah LLC, Fairfax Cir. (Bernhard).

In state consumer-protection litigation against an internet lender, venue in Fairfax is proper based on affected consumers and loans extended in the county, and the subject loan agreements’ choice of Utah law is unenforceable due to lack of nexus with Utah and strong public policy in favor of enforcing the Virginia Consumer Protection Act. The VCPA’s exception for “small loan companies” doesn’t apply to the defendant, which is not registered in Virginia and not regulated and supervised by the State Corporation Commission or a comparable federal entity.

Motion to transfer denied; demurrer overruled.

Categories: Daily Dockets

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