Supreme Court to Review VA Transgender Bathroom Case

Transgender individual’s rights have become a headline issue in civil rights law. At the forefront of these often controversial discussions is the Gloucester County School Board case about a transgender high school student’s right to use the bathroom matching his gender identity. This case has spent the last year going back and forth between the U.S. District Court in Norfolk and the Fourth Circuit Court of Appeals, finally making its way to the United States Supreme Court earlier this month. While the case concerns a local school board’s bathroom policy, it’s outcome will likely be felt throughout the Fourth Circuit (including Virginia, Maryland, West Virginia, and the Carolinas), and perhaps throughout the country, in a wide range of public and professional circumstances.

An article discussing the history of the case, written by DiMuroGinsberg attorney Rachael Loughlin, appears in the July 2016 issue of the Virginia Employment Law Letter and on the Diversity Insight website. Click here to read Rachael’s article.

Ben DiMuro and Jonathan Mook are co-editors of the Virginia Employment Law Letter, a newsletter specifically designed for employers and HR professionals in Virginia. For more information about the Virginia Employment Law Letter or to subscribe, please email Michele Kraftschik.

DiMuroGinsberg Secures Victory for Client in the Federal Circuit

InvestPic and the inventor, Samir Varma, appealed the PTAB’s decisions in two related re-examination proceedings, one initiated by IBM Corp. and SAS Institute Inc. and the other by SAS alone. The Federal Circuit agreed that the board erred regarding two claim phrases.

For more information on the Court’s ruling, click here.

Sedona Conference proposes heightened pleading standards in patent litigation

For many years, Form 18 of the Federal Rules of Civil Procedure provided a very basic format for pleading claims of direct patent infringement. The bright line standard provided by Form 18 largely avoided controversy over the level of detail required to plead a claim for patent infringement. The Federal Judicial Conference, however, repealed Form 18 effective December 1, 2015, opening the possibility for disputes over how much more information is required to plead claims for direct patent infringement under the Supreme Court’s Iqbal and Twombly decisions.

This Chapter on Heightened Pleading Standards provides guidance as to the level of detail to be now included with the pleadings, both from the perspective of the minimum requirements set by Iqbal/Twombly as applied to patent infringement suits, and also from the perspective of what additional information should be further encouraged from both parties to promote the efficient administration and resolution of patent disputes. All parties and the courts have an interest in avoiding extensive satellite litigation regarding the sufficiency of the pleadings, and, if adopted, the Principles and Best Practice recommendations presented in this Chapter will help streamline the pleadings process in patent cases.

Please review and send comments on this Chapter on Heightened Pleading Standards to by August 15, 2016. This is an essential part of the process in making our Sedona commentaries true consensus and non-partisan documents representative of the viewpoints of all stakeholders in patent litigation today, so please lend us your time and expertise!

For more information on the proposed pleading standards, you may contact DiMuroGinsberg lawyer, Cecil Key, a member of The Sedona WG10 Heightened Pleading Standards team, at

Virginia Supreme Court upholds Thorsen v. RSPCA

On June 2, 2016 the Virginia Supreme Court affirmed a $603,409.90 verdict that DiMuroGinsberg obtained for its client in Thorsen v. Richmond Society for the Prevention of Cruelty to Animals. DiMuroGinsberg, P.C. represented the Richmond Society for the Prevention of Cruelty to Animals in this legal malpractice dispute against Richmond lawyer James Thorsen. In 2003, Mr. Thorsen drafted a will for Alice Louise Cralle Dumville. Ms. Dumville’s intention was for her property to pass to her elderly mother, or if her mother had already died, to the RSPCA. After Ms. Dumville’s death, it was determined by the Chesterfield County Circuit Court that the will had not been written as Ms. Dumville intended and only passed Ms. Dumville’s tangible personal property to the RSPCA instead of her entire estate. DiMuroGinsberg, P.C. represented the RSPCA asserting that the RSPCA was a third party beneficiary of the contract between Ms. Dumville and Mr. Thorsen and was therefore permitting to file a legal malpractice claim against Thorsen and his firm based upon the oral retainer agreement between Thorsen and Ms. Dumville. While permitted in other states, third party actions against attorneys for legal malpractice are rarely, if ever, successful in Virginia.

In a six to one decision, the Virginia Supreme Court found that the RSPCA could maintain its malpractice suit against Thorsen even though the claim was based on an oral contract, finding for the first time in this context that the common law permits such lawsuits by a third party beneficiary. The Court also held that RSPCA had met Virginia’s stringent standard to maintain a third party beneficiary claim in a legal malpractice setting. Indeed, the Court noted that the standard “has proved so difficult that this Court has not seen another such case in the nearly three decades” since setting forth the standard. Finally, the Court rejected Thorsen’s argument that the statute of limitation should have been calculated based upon the date the will was drafted as opposed to the date of Ms. Dumville’s death. The Court explained that a third party beneficiary does not suffer injury until the decedent dies because wills can be changed up until the death of the testator and that a third party beneficiary only has a bare expectancy until that time.

DiMuroGinsberg P.C. attorneys Michael Lieberman and Ben DiMuro represented the RSPCA during the Virginia Supreme Court arguments.

Click here to read Court’s Opinion

Fourth Circuit Ruling Favors Transgender Student

Public restroom use by transgender individuals has become a highly publicized and controversial issue. Public interest groups, social media, and law makers at all levels of government are weighing in on restroom policies and laws popping up across the country. The situation is no different here in Virginia, where the Fourth Circuit Court of Appeals recently ruled in favor of a transgender student seeking to use the school restroom that corresponds with his gender identity. While the case concerns a local school board’s restroom policy, it’s outcome will likely be felt throughout the Fourth Circuit (including Virginia, Maryland, West Virginia, and the Carolinas) in a wide range of public and professional circumstances.

Click here for the full article about the Fourth Circuit’s ruling

What does the new Defend Trade Secrets Act mean for your business?

DiMuroGinsberg attorneys discuss how the new Defend Trade Secrets Act offers important protections for your company’s intellectual property.

On May 11, 2016, President Obama signed into law the Defend Trade Secrets Act, 18 USC § 1831 et seq. (“DTSA”), which contains important provisions affecting companies and employers of all sizes. The DTSA amends the Economic Espionage Act of 1996 to authorize private companies to bring (and be subject to) suit in federal court for trade secret misappropriation, including misappropriation occurring outside the U.S., and to obtain a broad array of remedies. The DTSA also includes important provisions governing the obligations of employers and the rights of employees with respect to trade secrets, and extends those obligations and rights beyond traditional employees to contractors and consultants working for the employer.

Salient features of the DTSA are:

  • Provides a federal cause of action for trade secret misappropriation in addition to, but not in place of, the traditional state law trade secret protections. Private parties now can bring trade secret claims in a federal civil action, as opposed to being limited to criminal actions brought by the U.S. Attorney General, as was the case under the prior act.
  • Defines a trade secret as information in any form that derives independent economic value from not being generally known or ascertainable by others who can obtain economic value from it, and that is the subject of reasonable efforts to maintain its secrecy. A trade secret is covered by the DTSA if it is “related to a product or service used in, or intended for use in, interstate or foreign commerce.” Misappropriation means acquisition of the trade secret by improper means where the acquirer knows or has reason to know that the information is a trade secret.
  • Applies to conduct occurring not just in the U.S., but outside the U.S. if the offender is a natural person who is a citizen or permanent resident alien of the U.S., or is an organization organized under the laws of the U.S., including a U.S. state or territory.
  • Exempts employees, including contractors and consultants from liability for certain disclosures of trade secrets, such as to law enforcement, a government official, a court, or attorney, if to report or assert a violation of law, including whistle-blower actions, provided the disclosure is confidential. The employer is required to inform the employee of this immunity in an employment agreement or by cross-referencing a policy document, such as an employee manual, which sets forth practices and procedures the employee must follow.
  • Expands remedies for a DTSA violation to include seizure of property (subject to compliance with several procedural requirements); an injunction; an award of damages for actual loss and unjust enrichment (e.g., the offender’s profits), which can be calculated as a reasonable royalty for use of the trade secret; and exemplary damages up to 2 times the amount of actual or unjust enrichment damages for willful and malicious misappropriation. Where there is a threatened misappropriation of trade secrets by a former employee, a court may issue an injunction imposing restrictions on employee’s present or future employment.
  • Provides for an award of attorney’s fees to the prevailing party for willful and malicious misappropriation for bad faith assertion of misappropriation or for bringing or opposing a motion to terminate an injunction.
  • Increases criminal sanctions for trade secret theft, by increasing the fine for organizations to the greater of $5,000,000 or 3 times the value of the stolen trade secret, including expenses for research, design, and other costs of reproducing the trade secret that the organization has avoided as a result of the theft.

In a business environment that is substantially international, and becoming increasingly more so even for smaller companies and employers, the DTSA provides a significant tool for protecting intellectual property in the U.S. and abroad. However, the DTSA also places potentially significant obligations on employers to ensure that their agreements with employees, contractors and consultants comply with the requirements of the Act.

DiMuroGinsberg has an experienced team of lawyers who regularly help clients navigate the legal issues impacting their businesses, such as those raised by the DTSA. For further information, contact Cecil Key or Jonathan Mook.



JSR Mechanical, Inc. v. Aireco Supply, Inc.

On April 21, 2016, the Virginia Supreme Court handed down an important opinion on Va. Code § 8.01-335(B).  The Court held that a trial judge does not have discretion when a plaintiff seeks reinstatement of his or her case within a one-year time period.  The Court was persuaded by the intended purpose of the statute, due process arguments, and the legislative history.

The Virginia Trial Lawyers Association wrote an amicus brief in support of this decision, and the Court concluded, “This understanding is consistent with the general purpose of the statute: to allow courts to periodically purge their dockets of actions not being actively prosecuted. Because the statute does not provide for notice or an opportunity to be heard before such cases are discontinued or dismissed, liberally granting motions to reinstate comports with notions of due process and access to the justice system.”

Personal injury attorney, Nathan Veldhuis, notes the importance of this opinion in personal injury cases. “There are times, for a variety of reasons, that cases can lie dormant for a long period of time.  Applying the purpose of the statute and other factors, the Virginia Supreme Court has made it clear that if a personal injury plaintiff desires to reinstate her case within a one year time period, after a case has been struck after three years of inactivity, a trial court judge has no discretion to deny it.”

Read Justice Millette’s opinion here.

Business attorney, Milton B. Whitfield joins firm

DiMuro Ginsberg proudly announces that Milton B. Whitfield has joined the firm. Milton is an experienced corporate, transactional and contracts lawyer who has extensive background in representing companies in complex corporate and technology transactions, including licensing and outsourcing of business processes, information technology, and related sourcing services. He advises clients on various government contracts, energy, regulatory, and transaction matters.

Milton received his law degree from Georgetown University Law School. He also has an MBA from George Washington University and undergraduate degrees in Chemical Engineering and Applied Mathematics from the University of Virginia. Prior to entering law practice, Milton served as a Special Assistant to Admiral H.G. Rickover, Director of the Division of Naval Reactors in the Department of Energy. He also led, in conjunction with private industry, the development, implementation and operation of a $100 million steam generator chemical cleaning program for the Nuclear Navy.

Milton’s corporate, government contracts, outsourcing and technological expertise enhances DiMuro Ginsberg’s current business and corporate law practice. The firm stands ready to assist companies of all sizes with their business needs, including such matters as organizational structure, corporate governance, government contracts, mergers & acquisitions, technology transactions, outsourcing, corporate finance, dispute resolution, and general debt and financing needs.

Kendall Almerico to present at the 2016 DC Wharton Summit

The DC Wharton Summit is the premier event for entrepreneurs, innovators and key leaders in DC.  Register for Kendall’s workshop, “Can New SEC Regulations Boost Your Startup Funding?”

For companies that need funding (and who doesn’t?) the JOBS Act and crowdfunding seem like the magic answer to many capital raising problems. Are these new securities laws and SEC regulations right for your company? And if so, how can your company utilize these groundbreaking capital raising regulations safely, legally, effectively and affordably?

In Kendall’s workshop, you will learn the nuts and bolts about Regulation A+ which allows companies to raise up to $50 million in a “Mini-IPO” online, with anyone (not just rich and well-connected folks) being allowed to invest. You will get a sneak preview of the new “equity crowdfunding” law, Title III of the JOBS Act, that goes into effect on May 16, 2016 and will allow start-ups to raise up to $1 million online through a “funding portal” that sells stock in your private company to the general public. You will also hear about “accredited investor crowdfunding” where your company can use online methods and marketing to raise money from wealthy investors through Section 506(c) – Title II of the JOBS Act.

Kendall, who was named one of the top crowdfunding and JOBS Act lawyers in the country by Forbes Magazine, will also participate in a panel on crowdfunding.  “Crowdfunding: Latest Developments and Pros and Cons” will be held at 1:15pm on Day 2 of the conference.

Register for the Wharton DC Summit here.  As a friend of DiMuroGinsberg, you are eligible for a $200.00 discount on the summit by signing up under the “Strategic Partnership” category and listing Kendall’s name in the “Special Instructions” box.

For more information on the Summit or Kendall’s practice areas, contact him at