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September 2003
Volume XXIX, Number 6 (PDF version)

President’s Page:
The One-on-One Approach
Frank A. Thomas III

Legal Focus/Civil Litigation:
Still Waters for Wrongful Discharge
James M. Johnson
Employment Background Checks in an Insecure World
Attison L. Barnes III, Charles C. Lemley and Emily J. Christiansen
Venue in Virginia: Putting the ‘Where’ in Wherefore
David N. Anthony and R. Johan Conrod Jr.

Young Lawyers Division:
VBA/YLD Continues Tradition of Success in ABA Awards of Achievement
Stephen D. Otero

Across the Commonwealth
Robert Grey becomes ABA president-elect • VBA’s 114th Annual Meeting planned for January 15-18 in Colonial Williamsburg • John Marshall’s descendants gather for a grand weekend reunion later this month • Marbury v. Madison bicentennial to be observed September 27 at The Library of Virginia

News in Brief

Professional Announcements

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VBA Membership Benefits

President's Page:
The One-on-One Approach
Frank A. Thomas III

For years our Association took membership for granted. In many firms, large and small, in locations throughout the state, it was a foregone conclusion that all of their lawyers would be members of The Virginia Bar Association. While this still holds true in a number of firms, it is no longer the widespread practice it once was. There are a number of reasons for this situation. Budgetary concerns are one obvious issue in many firms. The influx of out-of-state firms and the growth of new firms which are not steeped in Virginia traditions adds to the problem. As a result, it has become apparent to our Board that the issue of membership needs to become a more compelling priority of the Association.

Membership is important to our Association in a number of respects. There is, of course, the obvious connection between members and revenue. While the VBA has traditionally been an overachiever, obtaining results on a par with much larger associations on a smaller budget, the simple fact is that it costs money to do our work. Membership dues and the contributions of our Patrons are the lifeblood of our Association.

As a volunteer organization, members represent our capital. They are the source of all of our good works from the idea stage through implementation. Without them, we would be powerless. The willingness of members to become involved in activities is almost as important to the life of our organization as the dues income from memberships themselves. Even those members not directly involved in ongoing activities give embodiment to the VBA mission and values that remind us that it is indeed something special to be a lawyer in their everyday lives and practices.

Thirdly, membership is important as a value to the members themselves. Professionalism and the other values of the VBA creed make us better lawyers. There are tangible benefits as well. Our Association has a number of efforts to make VBA membership something of value to VBA members. We have expanded the activities of the Law Practice Management Division to provide practical information on practice techniques and management. We have discounts available to VBA members on insurance products purchased through the Virginia Barristers Alliance and on books from the American Bar Association through the Law Practice Management Division. The educational and networking opportunities though sections and committee work are yet other examples.

As usual, the Young Lawyers Division has led the way in the membership effort. It has implemented a series of lunch programs for young lawyers introducing them to the Association and the YLD. This program was received well in the Richmond area and is now branching out into the Northern Virginia and the western part of the state. As with most YLD programs, it is a well-thought-out, enthusiastic effort that is yielding good results.

We have also formed a new Board-based membership committee, as some of you may have heard. This committee is chaired by Greg St. Ours and reports directly to the Board. It is in the process of establishing Regional Advisory Committees throughout the state to implement membership efforts at a grass roots level.

Last year, we also began visiting law firms to discuss with them issues regarding VBA membership. This effort started in Richmond and this year moved into Tidewater. These visits have been both to thank firms for support of the VBA as well as to find out what the VBA could do better in the area of membership. These meetings have been constructive and the information we have learned from them will be very helpful in our membership efforts.

In some quarters outside the VBA, there is a commonly perceived stereotype of the VBA member as a gregarious lawyer, usually from a large firm, who likes to go to the Greenbrier and Homestead for summer meetings and for whom the Association is largely a social experience. My involvement with the Association’s membership activities has led me to conclude that nothing could be further from the truth. A majority of the Association’s members come from small firms or are solo practitioners. The social aspects of the Association’s activities are not a priority for them. For the most part, they have made a calculated decision to become involved in the Association because of the value they derive from membership. In some cases, these values are tangible – the educational and practice management opportunities noted above, for example. In other cases, it is seen as an essential part of practice development through the networks that are established through membership. In yet other cases, getting involved in the Association and its good works is seen as a fundamental part of satisfying one’s responsibilities to society and the profession. While some may balk at the sticker price of a summer meeting at The Greenbrier, there seems to be widespread support for the proposition that VBA membership dues are worth the cost in the value they provide.

I have also learned that our members are good lawyers. While this becomes apparent in discussions with them across the table, it is also clear to their peers. Seventy-two percent of the Virginia lawyers listed in the Best Lawyers in America 2003-04 edition are VBA members. Eighty percent of the “Virginia Legal Elite” from the December 2002 issue of Virginia Business are VBA members. I cannot help but think these statistics are more than coincidence. There is a clear correlation between VBA values and the values that make them good lawyers.

Our problem is that is very easy not to be a member of the VBA. It can be as simple as tossing the dues statement into the trash can. It can also take more subtle forms such as firms constricting or eliminating the reimbursement of voluntary bar dues as part of a cost cutting effort. As an Association, we need to be in a position to continually make the case for membership. It is, like it or not, an issue of marketing.

There are a number of possible ways to make a case for VBA membership. Advertisements, direct mail, telephone solicitation (God forbid) are among some of the tools others have used in marketing campaigns. We do not intend to use them. They would be costly, of dubious effect and would be contrary to the expectations of our existing members. In point of fact, our work indicates that our most effective marketing tools are simple one-on-one retail “sales” where one lawyer encourages another to become involved in the VBA because of the benefits the encouraging lawyer has gotten from the Association or because of the value the other lawyer might be able to bring to the VBA.

Our inquiries have also shown us that the one-on-one retail work is at its most effective when the encouraging lawyer is in the position of a mentor, supervisor or similar relationship to the other lawyer. It is hard to disregard your boss when he or she tells you it is a good idea for you to become involved in the VBA. It is almost as hard to disregard the admonitions of a lawyer whom you respect because of his or her personal achievement and professionalism. Lawyers are emulators. Each of us has mentors or role models. We are also role models for others and can use that status to pass on the value and the values we have gotten from the VBA.

We have reached the conclusion that membership is the job of each of us. While the Association can have a membership committee and widespread support in the form of regional advisory committees and other similar groups, at the end of the day, it will come down to each of us, one on one, encouraging others to become involved in the Association and its good work. This is particularly true in the case of us who are in the position of authority over other lawyers and who, because of mentoring or other relationship, can influence the activity of other lawyers. Each of us is a member of the VBA because of the value we receive from that membership. Our Association and the profession in general will benefit when that value is passed on to others.

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Legal Focus/Civil Litigation:
Still Waters for Wrongful Discharge
by James M. Johnson

In 1985, the Virginia Supreme Court launched the Commonwealth’s legal system on a voyage of discovery. By announcing that year that common-law wrongful discharge claims existed in Virginia,1 the Court effectively commissioned itself to explore and name the boundaries of a new tort.

The voyage has been rough. But now, 18 years and at least 10 relevant Supreme Court cases (with a remarkable number of dissents) later, wrongful discharge has arrived in calmer, charted waters.

The marker for the less turbulent waters is Rowan v. Tractor Supply Company, decided March 1, 2002. In Rowan, the Court unanimously rejected the idea that Virginia’s obstruction of justice statue provided the victim of a crime with a right to sue her employer for terminating her employment. The employee alleged she was fired for refusing to “drop” the prosecution of her supervisor, the alleged perpetrator of the crime against her.

To understand why the Rowan decision marks arrival in calmer waters, it is necessary to retrace the voyage to Rowan.

History of Wrongful Discharge in Virginia
Virginians, it’s true. In Bowman v. State Bank of Keysville, decided in 1985, the Virginia Supreme Court followed a trend begun in California. In 1959, a California appeals court decided that a common-law, public-policy exception existed to employment-at-will.2 The California court recognized a claim for the termination of an employee who refused to commit perjury in defense of his employer.

This original paradigm for common-law wrongful discharge remains perhaps the most widespread. Many state supreme courts have recognized the tort in the context of retaliatory discharge for refusing to commit an illegal act.3 Virginia did not have occasion to give formal recognition to this strain of the tort until Mitchem v. Counts,4 decided in 2000.

In Mitchem, a female employee stated a claim by alleging she was terminated for rejecting sexual advances by her boss. Since she was not married to her boss, acceding to his advances would have violated criminal statutes against fornication and lewd and lascivious conduct.

A bonus feature of Mitchem for plaintiffs was that a wrongful discharge claim is available to alleged victims of sexual harassment who work for employers too small for coverage by Title VII of the Civil Rights Act. In fact by operation of statute, if Title VII does apply to a plaintiff’s situation, she has no wrongful discharge claim.5

Bowman, however, covered factual situations different from the original paradigm. To state a claim on the Bowman model, a plaintiff must be able to identify an express right given to her by a state statute. The public policy she identifies to support her wrongful discharge claim must enable the exercise of the express right.

To illustrate, Betty Bowman was a bank bookkeeper. The employer bank directed her to vote stock she owned in the bank in favor of a proposed merger. She refused and the bank allegedly fired her for that reason.

The Court reasoned that a Virginia statute6 gave Betty Bowman the express right to vote her stock shares. A public policy barring duress and intimidation in the voting of stock shares must exist to enable the free exercise of the express statutory right. The alleged violation of the public policy by the employer founded the claim.

Following Bowman, the Court necessarily refined its application over the years. In 1996, the Court made clear that only a Virginia statute can provide the public policy basis for a claim.7 Federal statutes or regulations, and state regulations do not suffice.

In 1999, the Court held that the common-law exception to employment-at-will did not extend to “whistleblower” claims.8 “Whistleblower” claims are employee allegations of termination as retaliation for reporting to outside authorities illegal conduct by an employer. This decision was significant since other states have recognized the tort in this paradigm.

Practitioners should be aware that a Virginia statutory framework protects whistleblowers who report health and safety violations, but only in the manner provided by the statutory scheme.9 The employee must report violations to the Commissioner of Health before proceeding to court. The fact that the General Assembly has provided statutory relief for some whistleblowers supports the Court’s determination that a generalized whistleblower remedy did not exist in common law.

The General Assembly has also enacted anti-retaliation statutes protecting employee activities other than whistleblowing. For example, retaliatory discharge is statutory grounds for a lawsuit when an employee alleges retaliation for filing a worker’s compensation claim.10 Retaliatory discharge is also forbidden by statute when an employee misses work due to jury duty or court appearance under compulsory process,11 and when employees complain to, or cooperate with, authorities administering lead or asbestos remediation.12

Where there is a statutory remedial scheme for addressing an employment action adverse to an employee, the Court likely will hold that the statutory scheme is exclusive, and there is no common-law claim. Whether this principle would affect decisions where an employee has access to non-statutory employer grievance policies remains to be seen. At a minimum, the Court likely will require that an employee tried in good faith to use the employer-provided process. Certainly the more formalized, used and recognized the policy is, the better the odds an employee’s failure to adequately use it will adversely affect her claim.

From 1994 to 1999, interplay between the General Assembly and the Virginia Supreme Court on the reach of Bowman in discrimination cases became the focal point of wrongful discharge claims. In 1994, the Court held that common-law claims existed for race and gender discrimination based on the public policies set forth in the Virginia Human Rights Act (VHRA).13 In response to this case, the General Assembly in 1995 passed the “Lockhart Amendments” to the VHRA, named for the plaintiff in the 1994 case.

In 1997, the Court affirmed that the Lockhart Amendments prohibited state common- law discrimination claims based on the public policies of the VHRA.14 In 1999, the Court further stated that the Amendments prohibited state common-law claims not expressly based on the VHRA, but nonetheless reflecting the policies contained in the VHRA.15

The end result of the five-year repartee over state discrimination claims is that plaintiffs alleging gender, race, age, disability and other forms of discrimination articulated in the VHRA and the Virginians with Disabilities Act (VDA) have only the statutory remedies available to them under the terms of federal civil rights laws, the VHRA and the VDA.

Federal courts in Virginia not infrequently encounter state wrongful discharge claims. State claims are often asserted with federal claims and are thus removable to federal court based on the federal questions. Even when there is no federal component, many large Virginia employers are foreign corporations who can remove to federal court based on diversity. Of course, federal courts are bound to apply Virginia law in Virginia wrongful discharge claims.

The federal approach to Bowman claims has been to decipher an overall analytical pattern to the many cases since 1985. The best, and most-often employed, federal “handle” on the state cases has been that the “plaintiff must have either (i) a statutorily-created right which the termination interferes with or violates…or (ii) a statutorily-imposed duty which the employee is terminated for refusing to violate.”16

This analytical model is clearly consistent with two wrongful discharge paradigms approved by the Virginia Supreme Court: Bowman (express right to vote stock shares) and Mitchem (express duty not to engage in criminal violation). It is also consonant with the Court’s refusal to accept the whistleblower paradigm. In the cases before the Court, there has been no statutorily-imposed duty on employees to report violations of law by employers to outside authorities.

Current Status of Wrongful Discharge
Analytical models like the federal approach can be helpful to practitioners for their predictive value in untested factual scenarios. Whatever the predictive value of the federal approach, the Virginia Supreme Court has not adopted it.

What the Court did do in Rowan, however, was to offer what in effect is a three-part predictive test for a viable claim. The Court simply identified three sets of “circumstances” in which it approved claims: (i) the Bowman paradigm, where the discharge violated a public policy enabling the exercise of the employee’s statutorily created right, (ii) the Mitchem paradigm where the discharge was retaliation for the employee’s refusal to engage in violation of a criminal statute, and (iii) the Lockhart paradigm, where the General Assembly expressly recited the public policy of the Commonwealth in the statute and the plaintiff was “clearly a member of the class of persons directly entitled to the protection enunciated by the public policy.”

While the Court did not expressly foreclose other species of wrongful discharge claims in Rowan, the case and its predecessors contain multiple indicators that the Court has fully encompassed the bounds of the tort. The Court began its discussion of the three paradigms with the observation that public policies evident in many statutes do not give rise to wrongful discharge claims. The Court further emphasized that the public-policy exception to employment-at will is “narrow,” and that the Court has recognized the tort in “only” the three existing forms. In addition, the Court has already rejected the whistleblower type of wrongful discharge claim elsewhere prevalent, and it has limited public policies underlying claims to only Virginia statutes.

Finally, and perhaps most significantly, Rowan may have settled the waters at a level the Court will be comfortable with for the long term. Rowan may signal that the Court is not comfortable with labeling employer conduct as immoral or wrong, leaving that judgment to the General Assembly. Only where state law declares an express policy, or labels conduct criminal, or grants an express right, has the legislature spoken with sufficient clarity to forewarn employers that a discharge may be wrongful. The Court’s line is now bright, and anything less may not justify expansion of the tort.

Practical Tips
Plaintiffs’ lawyers should fashion their pleadings to fit within one of the three classes of claims identified in Rowan. If they have difficulty doing so, the odds are long that a claim exists.

Conversely, defense counsel should strive to show how a claim does not fit within one of the classes.

Both sides must pay attention to other make or break issues. If the claim cannot be based on express language in a specific section of the Virginia Code, there is no claim. If the claim is in effect a discrimination claim for any policy found in the VHRA or VDA, there is no wrongful discharge claim. If the claim is in effect a whistleblower claim, there is no claim.17 If there is a statutory remedial scheme for dealing with the public policy issue, it is exclusive. If there is an employer or third- party provided remediation policy, the employee may be required to exhaust it. If the employee seeks to use the public policy to advance her purely private agenda, she may not be able to assert the claim.18

In the only post-Rowan reported case to date, Judge Payne of the Federal District Court for the Eastern District of Virginia, used Rowan to analyze claims just as suggested here.19 First, the Court weeded out all claims except for those based on Virginia statutes. Then the Court analyzed the terms of each Virginia statute with the facts alleged to see if a claim could be fashioned fitting into one of the three classes. Finding no claim fitting within the three classes identified in Rowan, the Court dismissed the plaintiff’s wrongful discharge count.

Wise counsel for both plaintiffs and defendants will be following Judge Payne’s lead in the days ahead. While counsel will no doubt make waves over the proper outcome of a Rowan-based analysis, the availability of the analysis should significantly quiet the waters.

About the Author: James M. Johnson is a graduate of Yale and the University of Virginia Law School. He practices labor and employment law in the Charlottesville office of McGuireWoods, LLP. He was defense counsel in the Virginia Supreme Court case Rowan v. Tractor Supply Company.

NOTES
1. Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985).
2. Petermann v. International Brotherhood of Teamsters, 174 Ca. App. 2d 184, 344 P.2d 25 (1959).
3. Employee Rights Litigation, Pleading and Practice § 6.03, Matthew Bender & Company, Inc. (2002).
4. Mitchem v. Counts, 259 Va. 179, 523 S.E.2d 246 (2000).
5. Va. Code § 2.2-2639; see also Doss v. Jamco, 254 Va. 362, 492 S.E.2d 441 (1997).
6. Va. Code § 13.1-32, now § 13.2-662.
7. Lawrence Chrysler Plymouth Corp. v. Brooks, 251 Va. 94, 465 S.E.2d 806 (1996).
8. Dray v. New Market Poultry Prod., Inc., 258 Va. 187, 518 S.E.2d 312 (1999).
9. See Va. Code § 40.1-51.2 et seq.
10. Va. Code § 65.2-308.
11. Va. Code § 18.2-465.1.
12. Va. Code § 54.1-515.
13. Lockhart v. Commonwealth Education Systems Corp., 247 Va. 98, 439 S.E.2d 328 (1994).
14. Doss v. Jamco, 254 Va. 362, 492 S.E.2d 441 (1997).
15. Conner v. National Pest Control Assn., 257 Va. 286, 513 S.E.2d 398 (1999).
16. Anderson v. ITT Industries Corp., 92 F.Supp. 2d 516, 520 (E.D. Va. 2000).
17. Sexual harassment claims are an exception. In Mitchem, the Court held that the public policies in the state criminal statutes involved in that case were independent of the public policies in the VHRA; therefore, a wrongful discharge claim could exist for conduct which might amount to sexual harassment.
18. See City of Virginia Beach v. Harris, 259 Va. 220, 523 S.E.2d 239 (2000).
19. Storey v. Patient First Corp., 207 F.Supp. 2d 431, 449-255 (E.D. Va. 2002).

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Legal Focus/Civil Litigation:
Employment Background Checks in an Insecure World
by Attison L. Barnes III, Charles C. Lemley and Emily J. Christiansen

Questions and concerns about background checks for employment applicants have increased as a result of the war on terrorism and the Homeland Security Act. Many clients are concerned that the new laws – or at least the new public concerns – may mandate background checks in more situations than ever before. The ultimate question is whether the General Assembly should act sooner rather than later to protect employers grappling with this thorny issue.

This area of the law is unsettled and has become even more so given recently heightened interest in national security on the one hand and personal privacy on the other. The White House recognized the problem employers face every day in its July 16, 2002, National Strategy for Homeland Security (“National Strategy”), in which it called for a panel “to examine whether employer liability statutes and privacy concerns hinder necessary background checks of personnel with access to critical infrastructure facilities or systems.” National Strategy at 34. We will first examine briefly some of the circumstances in which background checks may be required. For those who have a choice, we will discuss the litigation risks employers may want to weigh in deciding whether or not to conduct employee background checks. We will conclude by proposing a legislative solution to give employers much-needed comfort in making that decision.

Background checks are required only in certain circumstances
The law does not generally require an employer to perform background checks on its employees or job applicants.1 Nor does the law generally impose any presumption of negligent hiring or shift the burden of proof based upon an employer’s decision not to perform background checks.2 Both federal and Commonwealth law do impose background check requirements for certain types of employees, primarily those in fields that are highly regulated, involve supervision of children, or implicate public health or safety. If your client operates in any industry like those discussed below, you should check federal and state law for possible background check requirements. Even if no specific statute applies to your client’s business, the fact that your client is operating in a field similar to those in which background checks are mandated may inform your advice as to whether they should conduct background checks voluntarily.

Homeland Security requirements
Many employers today ask what requirements the Homeland Security Act, 6 U.S.C. § 101 et seq., places on private employers to perform background investigations on their employees. The Homeland Security Act does not currently require across the board background checks, but recent developments suggest that private companies whose business relates to our country’s security will soon be required to conduct background checks of employees in sensitive positions. President Bush sent early signals to this effect in the National Strategy, which called for a panel of government and private-sector experts to evaluate legal guidelines for background checks for private-sector personnel in industries including agriculture, public health, energy, transportation, banking and finance and telecommunications.3 National Strategy at 30, 34.

The USA Patriot Act4 has also resulted in mandatory background checks for certain private-sector employees. New regulations issued by the Transportation Security Administration and the Department of Transportation pursuant to Section 1012 of the Patriot Act, for example, require that the 3.5 million truck drivers certified to haul hazardous materials undergo rigorous background checks, including fingerprinting, to ensure they are not security threats.5 The Centers for Disease Control and Prevention (“CDC”) has issued regulations under the Select Agent Program requiring certain checks for employees of laboratories registered to work with dangerous biological agents, including those at state and private universities throughout the country.6 In addition, several versions of the Chemical Facilities Security Act of 2003, recently proposed in Congress, identify employee background checks as one of the Security Measures that chemical manufacturers would be required to take to protect against terrorist access to hazardous chemicals. More federal requirements are sure to come.

Requirements under Virginia law
Virginia law currently imposes background check requirements for certain types of employees. For example, the law requires background checks for a wide array of employees in fields related directly or indirectly to gambling, including state lottery employees7 and virtually anyone associated with horse racing and pari-mutuel betting.8 Background checks are required for virtually all law-enforcement officers,9 including special police officers,10 and may be required for certain individuals involved in private security service businesses.11 The Virginia Code also requires background checks in various health and safety related fields, including certain individuals involved in manufacturing, storing, selling or handling explosives,12 employees of hospital pharmacies,13 many public and private school employees,14 and employees or volunteers at licensed children’s residential facilities.15

Again, this list is not exhaustive, and many of these required background checks are done by the Commonwealth, not individual employers. Nonetheless, if your client operates in a field similar to those listed above, you should investigate background check requirements.

For those who have a choice, litigation risks exist whether or not background checks are conducted
For those who have concluded that background checks are not required, congratulations! You are now faced with a Hobson’s choice: whether you choose to conduct background checks or not to, that decision raises a host of potential litigation risks.

Litigation risks of conducting employee background checks
Employers face statutory and common-law litigation risks if they decide to conduct background checks. The most important federal statutory provision governing employee background checks is the Fair Credit Reporting Act (“FCRA”).16 Though the title refers to “credit” reports, the FCRA governs general consumer reports or investigative consumer reports on employees when that information is used or collected to be used for “employment purposes.” The FCRA provides for a private right of action that includes punitive damages and attorneys’ fees;17 consequently, employers face serious litigation risks if they do not comply with the FCRA.

Generally, employers must follow four steps in order to comply with the FCRA. First, employers must give the applicant or employee notice that it intends to request a report and must obtain written authorization.18

Second, the employer must certify to the investigation company that it will comply with federal and state laws.19 Third, a copy of the report must be provided to the applicant or employee if the employer is contemplating adverse action.20 The employer must include a summary of the individual’s rights under the FCRA, and must wait a reasonable amount of time before taking any adverse action (including a decision not to hire the applicant) to allow the applicant or employee to correct any mistakes in the
report.

Finally, if the employer takes adverse action, it must send a notice to the applicant or employee that states the consumer reporting agency contact information, a statement that the agency is not the decision maker, a statement of right to obtain a free copy of the report, and a statement of right to dispute the contents of the report.21

Employers must also be mindful of state and federal anti-discrimination laws in implementing employee background checks. For example, courts have found unlawful discrimination where the use of background checks resulted in disproportionate impact on minorities.22 Similarly, the EEOC released its “Policy Guidance on the Consideration of Arrest” in 1990, taking the position that an employer’s reliance on records of arrest without conviction could exclude individuals from consideration in violation of Title VII.23 These concerns are especially relevant in the post-9/11 era, as evidenced by the “Joint Statement Against Employment Discrimination in the Aftermath of the September 11 Terrorist Attacks” issued on November 19, 2001, by the EEOC, the Department of Justice and the Department of Labor. Employers must therefore be careful to avoid background checks that single out individuals based upon their race or national origin.
30
Other claims may arise from the way in which information is collected or disseminated. If deceptive tactics are used in collecting the information, employers may be held liable for fraud or negligent misrepresentation.24 Potential claims arising from dissemination of information include invasion of privacy and defamation for sharing information with other prospective employers.25

Litigation risks of not conducting employee background checks
Serious litigation risks may also arise from a decision not to conduct background checks. Knowledge of these risks can help counsel and the employer craft an effective employee background check policy, which may in turn dramatically reduce the employer’s potential liability.26

In Virginia, plaintiffs have brought claims of negligent hiring for failing to conduct adequate background checks. These claims, unlike those brought under respondeat superior, make “the employer principally liable for negligently placing an unfit person in an employment situation involving an unreasonable risk of harm to others.”27 To demonstrate negligent hiring, the plaintiff must show that the employee had a propensity for the conduct that ultimately resulted in injury, that knowledge of that propensity was reasonably discoverable, that the employer failed to inquire, and that if the employer had inquired, it would not have placed the employee in that position.28 While courts have held consistently that the absence of a background check does not prove liability for negligent hiring,29 they have not ruled out the possibility that a plaintiff might prove an employer liable for failing to perform a “reasonable” background check. Similarly, failure to conduct a “reasonable” background investigation may result in claims against employers including intentional or negligent infliction of emotional distress,31 negligent failure to warn, breach of express or implied contract (if the employer has expressly or impliedly contracted to provide a safe place of employment).32

Some authorities suggest that the employer has a duty to make a reasonable investigation into the background of employees who come into contact with the public, but that probably overstates the case and begs the question of what is “reasonable.” What will be held “reasonable” in any given situation depends upon the employee’s duties and responsibilities. For example, an employee hired to do outside work at an apartment complex required little in the way of a background check, but the employer was held liable for failing to conduct a more thorough background check when the employee was moved to a job with access to residents’ apartments.33 Courts will also consider whether, in hindsight, a background check would have revealed information showing the employee was unfit for the job.34 The bottom line is daunting from the employer’s perspective – you may not know what is “reasonable” until the jury verdict comes in.

Conclusion: a legislative solution
Deciding whether and how to conduct employee background checks requires an employer to walk a dangerous tightrope between competing litigation concerns. That tightrope might be impassable in some situations, as the White House apparently recognized in the National Strategy. Unfortunately for employers in Virginia, the White House has not solved the problem. Perhaps the General Assembly should.

As noted above, most states, including Virginia, have enacted reference check immunity statutes that limit an employer’s liability for good-faith disclosures of information to prospective employers. A few states have also enacted statutes that limit an employer’s liability for negligent hiring where the employer takes statutorily defined steps to check an applicant’s background. Florida’s law is perhaps the most comprehensive.35 Passed as part of a major tort-reform initiative, the Florida statute creates a rebuttable presumption that an employer was not negligent in hiring if it conducted an appropriate pre-employment background check as defined in the statute.36 In order for the presumption to apply, the background investigation must include the following:37

(a) Obtaining a criminal background investigation on the prospective employee under subsection (2);
(b) Making a reasonable effort to contact references and former employers of the prospective employee concerning the suitability of the prospective employee for employment;
(c) Requiring the prospective employee to complete a job application form that includes questions concerning whether he or she has ever been convicted of a crime, including details concerning the type of crime, the date of conviction and the penalty imposed, and whether the prospective employee has ever been a defendant in a civil action for intentional tort, including the nature of the intentional tort and the disposition of the action;
(d) Obtaining, with written authorization from the prospective employee, a check of the driver’s license record of the prospective employee if such a check is relevant to the work the employee will be performing and if the record can reasonably be obtained; or
(e) Interviewing the prospective employee.

The Florida legislature’s use of the word “or” has generated some confusion as to whether the employer has to take all of these steps or only one of them.38 The courts have not yet addressed the issue, but it seems unlikely the legislature intended that any one of these steps alone would suffice. If a similar statute were proposed in Virginia, it should clarify this point.

Enacting such a statute in Virginia would serve at least two purposes: First, it would create a “safe harbor” for employers who wish to conduct background checks, but are unsure what checks would be required to avoid a negligent hiring action. Second, without explicitly saying so,39 it would establish a standard for background checks, which should be helpful for an employer defending a claim of discrimination or invasion of privacy arising out of its background checks. In that regard, it would go a long way toward answering the question the White House asked in the National Strategy, i.e., does the law hinder employers’ ability to conduct necessary background checks? If the Virginia General Assembly would adopt a statute like this one, the answer here would be “no.”

About the Authors: Attison L. Barnes III is a partner in Wiley Rein & Fielding’s Washington, D.C. office and a member of the firm’s Employment & Labor, Intellectual Property, and Litigation Practices. A member of the District of Columbia and Virginia Bars, Mr. Barnes received his undergraduate degree from the University of Virginia and a J.D. from the T.C. Williams School of Law, where he serves on the Board of the Law School Association. A longtime VBA volunteer and the recipient of the 1996 Spies Award and the 1999 Fellows Award, he currently serves on the VBA Civil Litigation Section Council.
Charles C. Lemley is an associate in Wiley Rein & Fielding’s Washington, D.C., office and a member of the firm’s Employment & Labor, Health Care and Litigation Practices. A member of the District of Columbia and Florida Bars, He received his B.A. degree summa cum laude from the University of North Florida and his J.D. degree magna cum laude from the Georgetown University Law Center. He is an adjunct professor at the George Mason University School of Law, and also coached the school’s undefeated mock trial team in national competition.
Emily J. Christiansen is an associate in Wiley Rein & Fielding’s Washington, D.C., office and a member of the firm’s Employment & Labor and Litigation Practices. She received her undergraduate degree from Williams College and her J.D. degree from the University of Chicago Law School, where she was the recipient of the Thomas M. Mulroy Prize for Excellence in Appellate Advocacy and the Llewellyn Cup for Excellence in Brief Writing and Oral Argument. She is a member of the Virginia bar.

NOTES
1. See Majorana v. Crown Central Petroleum Corp., 260 Va. 521, 531, 539 S.E.2d 426, 431 (2000) (cited in Interim Personnel of Central Va., Inc. v. Messer, 263 Va. 435, 440, 559 S.E.2d 704, 707 (2002)).
2. Id.
3. Ironically, the Department of Homeland Security recently placed its deputy CIO on leave after questions surfaced about her academic qualifications, leading members of Congress to question the department’s own background check policies. “Deputy CIO at Homeland Security Department Placed on Leave,” Computerworld, June 6, 2003.
4. The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, P.L. 107-56.
5. Interim Final Rule 68 FR 23844.
6. Policies enacted at various universities generally refer to the Patriot Act in general and to CDC regulation 42 CFR 72.6, “Additional requirements for facilities transferring or receiving select agents.”
7. Va. Code Ann. §58.1-4008.
8. Va. Code Ann. §59.1-371 (requiring background checks for licensees and permit holders and their employees, owners, trainers, jockeys, apprentices, stable employees, managers, agents, blacksmiths, veterinarians, and others) (cited in Virginia Jockey Club, Inc. v. Virginia Racing Comm., 36 Va. Cir. 366 (Cir. Ct., City of Richmond 1995)).
9. Va. Code Ann. §15.2-1705.
10. Va. Code Ann. §15.2-1737.
11. Va. Code Ann. §9.1-142.
12. Va. Code Ann. §27-97.2.
13. Va. Code Ann. §32.1-126.02.
14. Va. Code Ann. §22.1-296.1 et seq.
15. Va. Code Ann. §63.2-1726.
16. 15 U.S.C. §§ 1681-1681(t). Many states, including Maryland, impose additional restrictions by statute. See, e.g., Md. Code Ann., Com. Law §14-1202.
17. 15 U.S.C. §1681(n).
18. 15 U.S.C. § 1681(b)(b)(2).
19. 15 U.S.C. § 1681(b)(b)(1)(A)(ii).
20. 15 U.S.C. § 1681(b)(b)(3)(A).
21. 15 U.S.C. § 1681(m)(a).
22. See, e.g.,Green v. Missouri Pacific RR Co., 523 F.2d 1290 (8th Cir. 1975) (finding discrimination under Title VII where employer’s prohibition on hiring any individual convicted of an offense had disproportionate impact on minority applicants); similarly, a court held that an employer could violate civil rights laws by taking actions based upon adverse credit actions, which could disproportionately impact racial minorities. Johnson v. Pike, 332 F. Supp. 490 (C.D. Cal. 1971). Note that Virginia law restricts a prospective employer’s ability to inquire about criminal convictions that were expunged, or charges that did not result in conviction. Va. Code Ann. §19.2-392.4.
23. EEOC N-91 5.061. Conviction records may be used, however, where a legitimate business necessity is shown. Id. (citing “Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964,” issued February 4, 1987).
24. See, e.g. Unruh v. Truck Ins. Exch., 7 Cal. 3d 616 (1972). Though this case was brought as a workers’ compensation claim, it does confirm the viability of claim against investigative company for deceitful conduct.
25. Defamation concerns may be overstated, especially if the information being conveyed is true. Most states have enacted job reference immunity statutes, which generally immunize employers acting in good faith and conveying truthful information or an honest opinion. BNA Individual Employment Rights manual ¶515.101. See also 8 Employ. Coordinator ¶EP-22935. Virginia has such a statute. Va. Code Ann. §8.01-46.1.
26. For example, the Virginia Supreme Court set aside a plaintiff’s verdict for negligent hiring of a maintenance man who sexually molested a resident. Southeast Apartments Mngmt., Inc. v. Jackman, 257 Va. 256, 513 S.E.2d 395 (1999). The employer had obtained a detailed application, checked references and conducted an unspecified “background check” prior to hiring the employee, but had not checked the applicant’s criminal record. 257 Va. at 259. The court held that the employer exercised reasonable care and was not obligated to conduct a criminal background check. 257 Va. at 261. The court noted that a criminal background check of this particular applicant would not have revealed any propensity to engage in criminal sexual activity, as his only history of criminal activity involved bad checks. Id. It is not clear whether the result would have been different if the maintenance man’s criminal record had revealed a history of sexual assault.
27. J. v. Victory Tabernacle Baptist Church, 236 Va. 206, 211, 372 S.E.2d 391, 394 (1988) (citations omitted); Interim Personnel of Central Va., Inc. v. Messer, 263 Va. 435, 440, 559 S.E.2d 704, 707 (2002) (citation omitted).
28. Courtney v. Ross Stores, Inc., 45 Va. Cir. 429, 430 (citing Davis v. Merrill, 133 Va. 69, 78-81 112 S.E. 628, 631-32 (1922)).
29. Note 1, supra.
30. See Majorana, 260 Va. at 531-32.
31. See Stires v. Carnival Corp., 243 F.Supp.2d 1313 (M.D. Fla. 2002). In this case, the court held that the plaintiff, a passenger on the cruise ship who was sexually assaulted by an employee, made sufficient allegations to support a claim for intentional infliction of emotional distress against the cruise line.
32. See Rattey v. Tri-County Metropolitan Transportation Dist., 2000 WL 1335052 (D. Ore. Aug. 31, 2000). In this case, the court allowed plaintiff, a disabled woman raped by a bus driver, to bring a claim for breach of contract against the transportation authority and their agent, the bus company. The court found that plaintiff had standing to sue as a third party beneficiary on the contract between the transportation authority and the bus company to provide “proper screening for drivers.”
33. Williams v. Feather Sound, Inc., 386 So.2d 1238 (Fla. Dist. Ct. App. 1980).
34. Compare Ponticas v. K.M.S. Invest. 331 N.W.2d 907 (Minn. 1983) (employer found liable where background check would have revealed several convictions of violent crimes, as well as other clues to the employee’s unfitness) with Jackman, supra (employer not liable for employee’s sexual assault where background check would only have revealed conviction for writing bad checks).
35. Fla. Stat. Ann. §768.096.
36. “State Laws: Civil Reform Bill Provisions now Strengthen Employers’ Defense in Negligent Hiring Suits,” Daily Labor Report News, October 4, 1999.
37. Note that the statute specifically states that failure to conduct such a background check does not create a presumption of negligence. Fla. Stat. Ann. §768.096.
38. 6 Fla. Prac., Personal Injury & Wrongful Death Actions §1.13 (2002-2003 ed.)
39. The statute limits liability only for civil actions for the death of, injury or damage to, a third person. Fla. Stat. Ann. §768.096(1).

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Legal Focus/Civil Litigation:
Venue in Virginia: Putting the ‘Where’ in Wherefore
by David N. Anthony and R. Johan Conrod Jr.

The choice of venue is one of the most significant issues affecting a lawsuit. Differences in likely jury pools, jury awards, judges and court management systems dramatically affect litigation strategy and potential outcomes for the case. For instance, a case filed in a particularly plaintiff- friendly jurisdiction may force a defendant to settle a case to avoid the risk of a large jury award. Similarly, a pro-defendant venue provides a defendant with significant advantages such as an increased probability of a judge granting a demurrer or motion for summary judgment or a jury returning a defense or modest verdict, which may not justify the time and expense of trial. This article discusses the basics of venue and an overview on how to determine the proper venue for lawsuits.

THE BASICS
Venue Versus Jurisdiction
Jurisdiction and venue are distinct concepts.1 “Jurisdiction” concerns the court’s power to hear and determine a specific cause or controversy.2 A court without jurisdiction has no inherent power to decide the case, and court action under such circumstances is a nullity.3 In contrast, “venue” is a matter of choosing a convenient forum for a case where the court has jurisdiction.4 Virginia Code Ann. § 8.01-258 states that “[t]he provisions of this chapter relate to venue – the place of trial – and are not jurisdictional.” In other words, “jurisdictional rules tell us where a party may be sued, while venue rules tell us where such suit ought to be conducted.”5

Venue is Governed by Statute
Common law determined venue based upon where the “principal fact [of the case] occurred.”6 The rationale for this approach was that juries were comprised normally of people most knowledgeable with the facts of the case.7 Today, venue is prescribed by statute for all categories of lawsuits in Virginia.8 In general, venue is controlled by Virginia Code Ann. §§ 8.01-257 to -267 with a few exceptions.9

Improper Venue Typically Does Not Result in Dismissal
Virginia Code Ann. § 8.01-264 states that “no action shall be dismissed solely on the basis of venue if there be a forum in the Commonwealth where venue is proper.” Thus, improperly laid venue will not result in the dismissal of a lawsuit unless no proper forum exists within Virginia. As the Virginia Code states:

[T]he court wherein an action is commenced may . . . dismiss an action brought by a person who is not a resident of the Commonwealth without prejudice under such conditions as the court deems appropriate if the cause of action arose outside of the Commonwealth and if the court determines that a more convenient forum which has jurisdiction over all of the parties is available . . . .10

Such conditions include the defendant’s agreement to waive any statute of limitation defense if the action is brought in a more convenient forum.11

Curing Venue Defects
Venue may be cured in three ways:12 (1) the court may transfer the case to the proper or a more convenient forum within Virginia on a defendant’s motion under the factors justifying transfer discussed below;13 (2) the court may retain the case because the proper forum is inconvenient;14 or (3) a party may waive improper venue. As the Supreme Court has noted, venue “is a privilege which may be waived, and which, if about to be denied must, in Virginia, be claimed . . . otherwise it will be lost . . . .”15 In General District Courts, a venue objection must be raised before the trial date.16 In Circuit Courts, a defendant must file its objection within 21 days after service of process commencing the action or within such other time as is fixed for filing responsive pleadings.17

Consequences for Improperly Brought or Objected to Venue
The Virginia Code specifically provides consequences for plaintiffs who attempt to improperly lay venue and for defendants who attempt to improperly transfer venue.18 The court may award costs and attorney’s fees against a plaintiff who files in an improper venue or a defendant who files a frivolous motion to transfer.19 Virginia courts retain the power to award sanctions for motions or pleadings filed for an improper purpose, including to cause harassment, unnecessary delay or needless increase in litigation costs.20

Norfolk & Western Railway Co. v. Williams
Any Virginia lawyer dealing with venue issues needs to be familiar with the decision of Norfolk & W. Ry. v. Williams.21 In Norfolk & W. Ry., the plaintiff sustained injuries when he fell backwards in a chair in the defendant’s Roanoke office. The plaintiff filed a suit under the Federal Employer’s Liability Act in Portsmouth, which was a permissible venue under Virginia Code Ann. § 8.01-262. The defendant moved to transfer the case to Roanoke – the site of the accident and the location of a majority of the witnesses. The trial court refused to transfer the case, and a jury returned a substantial verdict in plaintiff’s favor.

The Supreme Court found that the trial court abused its discretion in refusing to transfer the case to Roanoke.22 The Court ruled that “[t]he trial court was presented with sufficient information to show good cause to transfer, including substantial inconvenience to the parties and witnesses, as well as indications of a forum originally selected for ‘not simply justice, but perhaps justice blended with some harassment.’”23 Thus, the Court set aside the jury verdict and ordered a new trial in Roanoke.24

WHERE VENUE MAY BE PROPERLY LAID
Properly laid venue depends upon whether the forum is preferred, permissible, convenient or dictated by contract.

Preferred Versus Permissible Venue
The Virginia Code specifies two broad categories of venue – preferred and permissible, referred to as Category A and Category B venue.25

Category A: Preferred Venue
Generally, if preferred venue applies, the case must be filed in the forum specified by Virginia Code Ann. § 8.01-261. Section 8.01-261 identifies 20 categories of Category A or preferred venue.26

Some examples include the following:

· Actions involving a state regulatory agency action for private plaintiffs prefer venue where the aggrieved party or plaintiff resides, regularly or systematically conducts affairs or business, or has property affected by the action.27
· When the Commonwealth is the plaintiff, the preferred venue is where the defendant resides, conducts affairs or business, or has property affected by the agency’s action.28
· Cases involving land, such as ejectment actions and actions for unlawful detainer, should be brought in the city or the county where the land is situated.29
· Actions to impeach or establish a will should be brought in the county or city where the will was probated, or if not yet probated, where the will may be properly offered for probate.30
· Claims brought under the Virginia Tort Claims Act should be filed where the claimant resides, where the act or omission at issue occurred, or if the claimant resides outside Virginia and the act occurred outside Virginia, then in the City of Richmond.31

Category B: Permissible Venue
All other cases provide for Category B or permissible venue.32 Plaintiffs should recognize that the rules regarding permissible venue generally relate to the defendant’s location and activities with two limited exceptions.

The first exception appears in actions to recover or partition personal property.33 In such cases, if the property is not physically located in Virginia or the evidence of such property is not located in Virginia, the case may be brought where the plaintiff resides.34 The second exception is where the plaintiff resides if all of the defendants are either unknown, not residents of Virginia, or if no other venue provision applies.35

With these exceptions in mind, the application of the permissible venue provisions is fairly straightforward. Venue is permissible anywhere the defendant resides (for corporations this is where the mayor, rector, president or other chief officer resides),36 has his principal place of employment,37 has a registered office or agent,38 or regularly conducts affairs or business activity.39 Venue also is permissible where the cause of action, or any part thereof, arose.40

In actions for breach of contract, venue is permissible either where the contract was formed or breached.41 In actions based on the delivery of goods, venue is permissible where the goods were received.42 For actions relating to construction contracts, the proper venue is either where the construction project is located or any other proper venue designation in Chapter 5 with the exception of any location outside of Virginia.43

Meyer v. Brown
A hotly disputed issue involving permissible venue has been the interpretation of “regularly conducts affairs or business activity” under Virginia Code Ann. § 8.01-262(3). In Meyer v. Brown, the Supreme Court addressed this issue in ruling that visiting a forum seven times per year on business-related trips was not sufficiently regular to confer venue under this section.44 In Meyer, the defendant insurance manager visited Richmond approximately seven times per year to meet with insurance brokers regarding his business. The defendant also attended business seminars in Richmond approximately three times per year.45

The Court ruled that these visits were not sufficiently “regular” to make venue proper in Richmond.46 The Court held that “[t]he evidence shows that defendant’s activity within the City of Richmond . . . was merely casual or occasional, and not conducted in an orderly, methodical way.”47 In addition, the Court found that visits of a personal or recreational nature were not relevant for purposes of Virginia Code Ann.§ 8.01-262(3).48

The Doctrine of Forum Non Conveniens
Despite a plaintiff’s choice of venue, a defendant still may move to transfer a case to a different forum under the doctrine of forum non conveniens. The doctrine of forum non conveniens originated as a creation of common law,49 but since has been codified in Virginia.50 Section 8.01-265 states that a motion to transfer should be granted upon a showing of “good cause.”

What is ‘Good Cause?’
“[T]here is no clear formula which can be mechanically applied” to determine if there is “good cause” to transfer a case for forum non conveniens grounds.51 However, Virginia venue statutes provide some guidance as to the factors considered when analyzing whether a transfer is appropriate. Virginia Code Ann. § 8.01-257 indicates that the convenience of the parties and witnesses and the administration of justice without prejudice or delay are factors to be considered by the court. Section 8.01-265 also states that “the avoidance of substantial inconvenience to the parties or the witnesses” is a factor which should be considered by courts dealing with forum non conveniens motions. Moreover, a plaintiff’s choice of forum should be considered as it has historically been entitled to “great deference;”52 however, this presumption is not absolute.53 When “considerations are equal or even close, the plaintiff’s choice of forum must prevail.”54

Virginia courts also have relied on the factors established by the United States Supreme Court in Gulf Oil Corp. v. Gilbert to evaluate forum non conveniens motions.55 These factors include: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process for attendance of the unwilling; (3) the cost of obtaining attendance of willing witnesses; (4) the possibility to view the premises, if applicable; and (5) “all other practical problems that make trial of a case easy, expeditious and inexpensive.”56

Virginia Electric & Power Co. v. Dungee
The Supreme Court’s most recent discussion of forum non conveniens is Virginia Elec. & Power Co. v. Dungee.57 In Dungee, the plaintiff, a minor, sustained severe burns when he came in contact with 13,000 volts of electricity while playing in an electric company’s substation. The plaintiff claimed that the electric company was negligent in maintaining the fence surrounding the substation. A jury awarded the plaintiff $20 million. The defendant appealed several of the trial court’s rulings, including its refusal to transfer venue.

The electric company argued that the test for good cause was not exclusively that of “substantial inconvenience.”58 In addition, the defendant contended that the Norfolk & W. Ry. decision held that a court abuses its discretion when “it declines to transfer venue from a forum with no practical nexus to the cause of action to a more convenient forum with a strong nexus.”59 The Supreme Court agreed with the defendant that substantial inconvenience was not the only factor to consider when analyzing whether to grant a forum non conveniens transfer; however, the Court rejected the electric company’s assertion that “transfer is required based solely on the lack of a practical nexus of the venue with the litigation.”60 The Court affirmed the trial court’s venue decision.61

Venue by Contractual Agreement
Historically, American courts took a dim view of forum selection clauses, finding they violated public policy because they attempted to “oust the jurisdiction” of the courts.62 However, following the United States Supreme Court’s decision in M/S Bremen v. Zapata Off-Shore Co.,63 the Supreme Court of Virginia adopted a more “modern view” in ruling in Paul Business Systems v. Canon U.S.A., Inc.64 that forum selection clauses are enforceable “unless the party challenging the enforcement establishes that such provisions are unfair or unreasonable, or are affected by fraud or unequal bargaining power.”65 The circumstances to ignore a forum selection clause are unusual, and few Virginia courts have invalidated forum selection clauses.66

CONCLUSION
Four general rules provide guidance to litigators regarding the application of venue to civil litigation: 67

1. If the venue chosen is not proper, the case should be transferred to a proper forum (assuming the defendant does not waive its objection or no proper forum exists within Virginia).
2. If the venue is permissible but a preferred venue applies, the case should be transferred to the preferred venue.
3. If the venue is permissible, the court may order transfer if another forum is more convenient upon a showing of good cause.
4. If venue is preferred, transfer cannot occur unless the parties consent or another preferred venue is more convenient.68
Trial lawyers should consider carefully these general rules to all lawsuits. After all, the issues surrounding venue selection and transfer are numerous, and an understanding of these key concepts is critically important to maximizing litigation success.

About the Authors: David N. Anthony is a partner with the Litigation Section of Kaufman & Canoles, P.C., and he heads the firm’s Richmond office. His civil litigation practice focuses on commercial disputes, construction law and local government law. Mr. Anthony is a graduate of the Washington & Lee University School of Law, and he clerked for The Honorable William T. Prince, Magistrate Judge for the United States District Court for the Eastern District of Virginia. He is a member of the VBA Civil Litigation Section Council and served as Chair of the Young Lawyers Division in 2001.
R. Johan Conrod Jr. is a litigation associate in the Norfolk office of Kaufman & Canoles, P.C. He is a graduate of the University of Virginia School of Law where he served on the Managing Board of the Virginia Law Review. Following graduation, Mr. Conrod served as a law clerk to The Honorable B. Waugh Crigler, Magistrate Judge for the United States District Court for the Western District of Virginia.
The authors extend their appreciation to J.C. Chenault V, for his research and invaluable contributions to this article. Mr. Chenault is a law student at the T.C. Williams School of Law at the University of Richmond.

NOTES
1. See United Coal Co. v. Land Use Corp., 575 F. Supp. 1148, 1159 (W.D. Virginia 1983).
2. See County of Bedford v. City of Bedford, 243 Va. 330, 334, 414 S.E.2d 838, 841 (1992) (citing Murray v. Roanoke, 192 Va. 321, 327, 64 S.E.2d 804, 808 (1951)); Brown v. Commonwealth, 215 Va. 143, 145, 207 S.E.2d 833, 835 (1974) (stating that “[j]urisdiction may be generally defined as the power to hear and adjudicate a case on its merits”).
3. See Brown 215 Va. at 145, 207 S.E.2d at 836 (citing S. Sand & Gravel Co. v. Massaponax Sand & Gravel Co., 145 Va. 317, 323-24, 133 S.E. 812, 813-14 (1926)).
4. Leroy v. Great W. United Corp., 443 U.S. 173, 180 (1979); see also S. Sand, 145 Va. at 323-24, 133 S.E. at 813-14 (stating that “venue has to do with geographical or territorial considerations . . . .” (emphasis in original)).
5. NTN Bearing Corp. of Am. v. Charles E. Scott, Inc., 557 F. Supp. 1273, 1277 (N.D. Ill. 1983) (paraphrasing Leroy, 443 U.S. at 180).
6. W. Hamilton Bryson, Bryson on Virginia Civil Procedure 145 (3d ed. 1997) (“Bryson”); Martin P. Burks, Common Law and Statutory Pleadings and Practice § 37 (4th ed. 1952) (“Burks”).
7. See Burks § 37.
8. See Dowdy v. Franklin, 203 Va. 7, 9, 121 S.E.2d 817, 818 (1961); Burks § 37.
9. See, e.g., Va. Code Ann. § 8.01-259 (excluding habeas corpus proceedings, tax proceedings other than those listed in Title 58.1, juvenile and domestic relations proceedings concerning children, and adoptions from the provisions of Chapter 5, Venue).
10. See Va. Code Ann. § 8.01-265.
11. See id.
12. See Burks § 37.
13. See Va. Code Ann. § 8.01-264. Presumably, a court can transfer an action sua sponte.
14. See Va. Code Ann. § 8.01-265; see discussion infra on Forum Non Conveniens.
15. Texaco, Inc. v. Runyon, 207 Va. 367, 370, 150 S.E.2d 132, 135 (1966) (quoting Burks supra); see also Decker v. Decker, 12 Va. App. 536, 539, 405 S.E.2d 12, 13 (1991) (citing Va. Code Ann. § 8.01-264 for the proposition that a “venue irregularity shall be deemed to have been waived unless the defendant objects to venue.”).
16. See Va. Code Ann. § 8.01-264.
17. See id.
18. See Va. Code Ann. § 8.01-266.
19. See id.
20. See Va. Code Ann. 8.01-271.1; Kent Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure § 6.8 (3d ed. 1998) (explaining that Va. Code Ann. § 8.01-271.1 mirrors Fed. R. Civ. P. 11) (“Sinclair”).
21. 239 Va. 390, 389 S.E.2d 714 (1990).
22 Id. at 396, 389 S.E.2d at 718.
23. Id. (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947)).
24. The Williams. decision reiterates that courts will look beyond a plaintiff’s choice of forum and consider the convenience to the parties.
25. See Va. Code Ann. §§ 8.01-261-262.
26. See Va. Code Ann. § 8.01-261.
27. See Va. Code Ann. § 8.01-261(1)(a).
28. See Va. Code Ann. § 8.01-261(1)(b).
29. See Va. Code Ann. § 8.01-261(3).
30. See Va. Code Ann. § 8.01-261(7).
31. See Va. Code Ann. § 8.01-261(18).
32. See Va. Code Ann. § 8.01-262.
33. See Va. Code Ann. § 8.01-262(5)(c).
34. See id.
35. See Va. Code Ann. § 8.01-262(10).
36. See Va. Code Ann. § 8.01-262(1).
37. See Va. Code Ann. § 8.01-262(1); Smith v. Williams, 2 Va. Cir. 479, 482 (Richmond 1979) (holding that venue was appropriate in Richmond where the defendant’s principal place of employment was located in Richmond even though the accident occurred in Henrico County and all interested parties resided in Henrico County).
38. See Va. Code Ann. § 8.01-262(2); Byrd v. Halpert, 38 Va. Cir. 234 (Richmond 1995) (holding that Richmond was a permissible venue when the defendant was served through the Secretary of the Commonwealth); Wray v. Floyd & Beasley Transfer Co., 29 Va. Cir. 126 (Richmond 1992) (stating that venue is proper in Richmond pursuant to Va. Code Ann. § 8.01-262(2) because the defendant was served through the Secretary of the Commonwealth).
39. See Va. Code Ann. § 8.01-262(3); Meyer v. Brown, 256 Va. 53, 500 S.E.2d 807 (1998) (holding that visiting a forum seven times per year on business-related trips was not sufficiently regular to confer venue under this section); Hooker v. Brown, 41 Va. Cir. 336, 337 (Richmond 1997) (holding that visiting siblings in Richmond two or three times a month did not constitute regularly conducting affairs); Morey v. McDonald, 36 Va. Cir. 511 (Richmond 1995) (holding that venue is improper in Richmond where the defendant only comes to Richmond once a month to eat).
40. See Va. Code Ann. § 8.01-262(4); Faison v. Hudson, 243 Va. 413, 417, 417 S.E.2d 302, 303-04 (1992) (quoting Va. Code Ann. § 8.01-262(4) for the proposition that venue is proper where the cause of action arose).
41. See Big Seam Coal Corp. v. Atl. Coast Line R.R. Co., 196 Va. 590, 593, 85 S.E.2d 239, 241 (1955); Rector v. Approved Fin. Corp., 48 Va. Cir. 329, 330 (Richmond 1999) (reiterating that a cause of action arises either “where the contract is made or where any breach takes place.”); Dean Steel Erectors v. Virginia Steel Erectors, 35 Va. Cir. 346 (Rockingham County 1995) (holding that venue was proper in Rockingham County because the “to pay” doctrine dictates that a debtor is obligated to seek out a creditor to make payment and failure to seek out the creditor results in a default where the creditor is located).
42. See Va. Code Ann. § 8.01-262(8).
43. See Va. Code Ann. § 8.01-262.1(A).
44. See Meyer, 256 Va. at 57, 500 S.E.2d at 810.
45. Id.
46. Id.
47. Id.
48. Id.
49. See Norfolk & W. Ry., 239 Va. at 392, 389 S.E.2d at 715.
50. See Va. Code Ann. §§ 8.01-257, -265; see also Dungee, 258 Va. at 246, 520 S.E.2d at 170 (noting that in Williams, the Supreme Court “concluded that the litigation had ‘no practical nexus’ with Portsmouth but had ‘a strong nexus’ with Roanoke”) (citing Williams, 239 Va. at 396, 389 S.E.2d at 717)
51. Norfolk & W. Ry., 239 Va. at 393, 389 S.E.2d at 716; Wray, 29 Va. Cir. at 130.
52. Norfolk & W.Ry., 239 Va. at 394, 389 S.E.2d at 716.
53. Id. at 394, 389 S.E.2d at 717 (citing Piper Aircraft v. Reyno, 454 U.S. 235 (1981)).
54. Grubbs v. S. Ry., 19 Va. Cir. 367, 368-69 (Richmond 1990)
55. See Norfolk & W. Ry., 239 Va. at 393, 389 S.E.2d at 716 (quoting Gulf Oil Corp., 330 U.S. at 508)
56. Id.
57. 258 Va. 235, 520 S.E.2d 164 (1999).
58. Id. at 245, 520 S.E.2d at 170.
59. Id.
60. Id.
61. Id.; see also Champigny v. Bayly, 55 Va. Cir. 381, 384-85 (Norfolk 2001) (citing Virginia Elec. & Power for the proposition that a lack of a practical nexus alone was not sufficient to show good cause for a transfer).
62. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972).
63. See id.
64. Paul Bus. Sys. v. Canon U.S.A., Inc., 240 Va. 337, 342, 397 S.E.2d 804, 807 (1990).
65. Id.
66. However, in one specific circumstance, forum selection clauses are invalidated by statute. See Va. Code Ann. § 8.01-262.1 (invalidating forum selection clauses in actions under a contract for construction if the clause mandates a venue outside of Virginia and the construction project is physically located in Virginia).
67. See generally Sinclair §§ 6.1-6.11.
68. See Va. Code Ann. §§ 8.01-261, -265; Virginia Civil Benchbook for Judges and Lawyers 1-35 (The Bench Book Committee ed. 2002).

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Young Lawyers Division:
VBA/YLD continues tradition of success in ABA Awards of Achievement
Stephen D. Otero

Every summer, the ABA Young Lawyers Division conducts an Award of Achievement competition for the young lawyer divisions of state and local bar associations. One purpose of the awards is to identify and recognize quality bar projects developed by state and local bar affiliates in a variety of categories, such as Service to the Public and Service to the Bar. Another purpose of the awards is to encourage the duplication of successful bar projects developed by state and local affiliates in other parts of the country.

The VBA/YLD has enjoyed more than its fair share of success in the Awards of Achievement. Typically, the Division submits a single project in the Service to the Public category, a single project in the Service to the Bar category and a Comprehensive application, which is comprised of about 15 projects serving either the public or the bar. For at least the past eight years, the VBA/YLD has received a first or second place award in its division for at least one of its submissions in these three categories.

In addition, on occasion, VBA/YLD projects have been singled out for special awards, as with the Pro Bono Hotline’s receipt of the ABA’s Harrison Tweed Award in 1995, and the Disaster Legal Assistance Program’s receipt of the American Bar Endowment’s Most Outstanding Public Service Project award in 2000.

This year’s ABA Awards of Achievement were announced in August during the ABA Annual Meeting, and I am pleased to report that the VBA/YLD enjoyed unprecedented success:

•The YLD Video Series project, which produced a 25-minute video production on the requirements of reporting child abuse and neglect, received first place in its division in the Service to the Public category.
•The YLD’s New Lawyers’ Survival Guide, a 48-page handbook of “dos and don’ts” for entry-level attorneys, received first place in its division in the Service to the Bar category.
•The YLD’s Comprehensive Application, representing a combination of 15 significantly expanded and ongoing projects, also received first place in its division.

In short, the VBA/YLD received first place in its division for each of its three submissions in the ABA Awards of Achievement.

The VBA/YLD also received some recognition outside of its division in the ABA Awards. We can take pride in the fact that the Virginia State Bar Young Lawyers Conference received special recognition in their division for the Wills for Heroes project, a joint effort of the VSB/YLC, the VBA/YLD and other organizations.

Lastly, and perhaps most significantly, the YLD Video Series project was recognized among all public service projects for all divisions of bar affiliates across the nation as the single Most Outstanding Public Service Project!

Although it would be difficult to identify all of the VBA/YLD members who have volunteered their time to contribute to these projects over the past year, I hope that you will join me in congratulating and thanking the following volunteers for their considerable efforts:

•Video Series project: Mike Walton of Hunton & Williams, who chaired the committee that developed the video; Vaughan Gibson Aaronson of Troutman Sanders, who was instrumental in obtaining grant funding for the project and made it a priority during her year as VBA/YLD Chair; and Erica Beardsley of Watt, Tieder, Hoffar & Fitzgerald and Kathy Harman-Stokes of Hogan & Hartson, who helped to develop the idea for the project and assisted in its implementation.

•New Lawyers Survival Guide project: Erica Beardsley, who chaired the committee that drafted the Guide; Renee Esfandiary of the U.S. Securities and Exchange Commission, Chris Ashby of Troutman Sanders, Chris Boynton of the Virginia Beach City Attorney’s Office, Heather Dawson of Odin, Feldman & Pittleman and Sharon Thaler Cox, all of whom assisted Erica in drafting the Guide; and Matt Cheek of Williams Mullen and Vaughan Gibson Aaronson, who helped to revise the Guide.

•Lori Thompson of Gentry Locke Rakes & Moore, who spent countless hours collecting and organizing information and drafting the Division’s applications for the ABA Awards of Achievement.

•Comprehensive application: John Bristow of Troutman Sanders and Heather Dawson, who co-chair the VBA Wills for Heroes committee; Ashley Taylor of Troutman Sanders, who drafted the Special Education Handbook; Rebecca Kuehn and Marc Bergoffen of LeClair Ryan, who co-chair the Nonprofit Legal Support Project; Rudene Mercer Bascomb of Hunton & Williams, Caroline Browder of Williams Mullen, and Andy Sherrod of Troutman Sanders, who co-chair the Richmond Mentor Program; Agustin Rodriguez of Philip Morris, Cyane Crump and Coby Beck of Hunton & Williams, Renee Esfandiary, Dinny Skaff of Gentry Locke Rakes & Moore, Webb King of Woods, Rogers & Hazlegrove, Beth McMahon of Kaufman & Canoles, and Brian Sykes and Jim Harvey of Vandeventer Black, each of whom co-chairs regional Pro Bono Hotlines; Cathryn Le of Troutman Sanders and Kim Welsh, who co-chair the Immigrant Assistance project; Melissa Amos Young of Gentry Locke Rakes & Moore and Nicole Daniel of Albemarle Corporation, who drafted and revised the Working Parents Handbook; Kathy Harman-Stokes and Susanne Carnell of Hogan & Hartson, Marli Kerrigan of the Federal Bureau of Prisons, Erin McDonald Fratkin of LeClair Ryan and Sharon Thaler Cox, who co-chair the Domestic Violence project; Chris Petersen of Shaheen & Shaheen and Bryson Hunter of Gentry Locke Rakes & Moore, regional chairs of the DMV Project; Brian Greene and Henry Willett of Christian & Barton, Chris Boynton, Darren Marting of Taylor & Walker, Dan Collins and Jeff Harvey of Troutman Sanders, and Jim Cowan of Flippin Densmore Morse & Jessee, who are regional chairs of the Town Hall Meeting committee; David Ervin of Collier Shannon Scott and Dan Campbell of Willcox Savage, who co-chair the Model Judiciary project; and Turner Broughton and Lorie Helmuth of Williams Mullen, who co-chair the Child Support Enforcement Project.

Each of these young lawyers should be commended for volunteering their time, despite busy law practices and other personal commitments, to make a difference in their profession and their communities through these VBA/YLD projects.

The VBA has a proud history of accomplishment in the areas of service to the bar and the public at large. The VBA/YLD’s success in this year’s ABA Awards of Achievement is but the latest proof that a new generation of lawyers has taken the VBA’s mission to heart.

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Across the Commonwealth

VBA member Robert Grey of Richmond becomes ABA president-elect
Richmonder and VBA member Robert J. Grey Jr. became president-elect of the American Bar Association on August 12.
He made ABA history in 1998 when he became chair of the association’s policy-making House of Delegates, the second-highest ranking office in the association. Grey was the first African-American to rise to such prominence within the ABA and has chaired the ABA Committee on Research about the Future of the Legal Profession. He has also served on the ABA Board of Governors, Governance Committee, Standing Committee on Legal Aid & Indigent Defendants, Committee on Strategic Planning and Priorities, and Advisory Council on Diversity in the Profession, and has been active in the Section of State and Local Government Law.

Grey is a partner in the Richmond office of Hunton & Williams and a graduate of Virginia Commonwealth University and the Washington and Lee University School of Law.

Grey’s presidency will begin in August 2004 at the end of the term of former Detroit mayor Dennis Archer, the ABA’s first African-American president.

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114th VBA Annual Meeting will be January 15-18 in Williamsburg
Even though January is still a few months off, it’s time to mark your calendar for the 114th Annual Meeting of The Virginia Bar Association, to be held January 15-18 in Colonial Williamsburg. Plans for the winter meeting — which was initiated in 1964 and thus celebrates the 40th anniversary of that first meeting this year — are underway and will be announced later this fall.

[NOTE: This meeting will not be the 40th meeting in Williamsburg; in 1966, the Annual Meeting was held in Arlington just as a major blizzard hit the area, resulting in attendees being snowed in at the hotel for several days. Since then, all winter VBA meetings have been held in Williamsburg, despite occasional bouts with snow, ice or cold rain.]

As usual, the meeting will include a host of continuing legal education seminars, business meetings, social events and networking opportunities. Exhibitors will also be on hand to show the latest in law-related products and services.

The Williamsburg Lodge & Conference Center books to capacity well in advance of our meeting, so you’ll want to confirm your early room reservations for arrival on Thursday, January 15, and departure on Sunday, January 18. Call toll-free at 1-800-261-9530.

More details and meeting registration information will be mailed in November, published in the December issue of VBA News Journal, and posted at www.vba.org. Winter is a great time to enjoy the beauty of Williamsburg without the crowds of other seasons, and the VBA Annual Meeting is a wonderful time to spend in camaraderie with fellow Association members. We hope to see you there!

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Marshall descendants gather in Richmond for family reunion
The world knows John Marshall as “The Great Chief Justice,” but a group of more than 700 people know him simply as their grandfather, albeit a few times removed.

They are descendants of Marshall and his wife Polly Ambler, and they will gather for a grand reunion, six months in the making, September 26-28 in Richmond.

Festivities will begin on Friday, September 26, with an optional tour of “John Marshall’s Washington,” featuring the DACOR-Bacon House in which Marshall resided during his later years in Washington and a special tour of the Supreme Court Building and its John Marshall exhibit. Later, family members will gather for a welcoming reception, to which Gov. Mark Warner has been invited.

On Saturday, September 27, the day will begin with introductions and video segments from Mister Chief Justice, the JMF-funded film about Marshall. Walking tours of “John Marshall’s Richmond” will visit the State Capitol, the Governor’s Mansion (if available), the Wickham-Valentine House, Monumental Church and the John Marshall House, while buses will shuttle groups to and from the Marshall burial site at Shockoe Cemetery.

That afternoon, a special observance of the bicentennial of Marbury v. Madison will be held at The Library of Virginia. (See related story.)

Later, a gala barbecue for family members and special invitees will evoke Marshall’s famed hospitality with an array of dishes and beverages, Marshall’s favorite sport of quoits, special children’s displays and music.

Sunday’s schedule features an optional tour of Marshall-related sites in Fauquier County.

Members of the Marshall Family Reunion Steering Committee are Thomas M. deButts, Eleanor Lewis Douthat, Anne Hobson Freeman, Frere S. French, Thomas Cary Gresham, Robin Sands Guerry, Ralph Higgins, The Rev. Randolph Marshall Hollerith, Bruce Marshall, John R. Marshall, Hatley Norton Mason III, Marshall L. Smith, Fielding Lewis Tyler and Elizabeth Wilson Woodruff.

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Marbury v. Madison bicentennial observed this month at Library of Virginia
This year marks the 200th anniversary of Marbury v. Madison, the landmark U.S. Supreme Court decision that extended the principle of judicial review to the federal courts, making the U.S. Constitution the supreme law of the land. A special program held at the Library of Virginia on Saturday, September 27, will focus on the issues that led up to Marbury v. Madison and its lasting impact on the nation.

The program will begin with a lively “living history” debate between two Virginia cousins—President Thomas Jefferson and Chief Justice John Marshall—that will dramatize the personal conflict underlying the court’s decision. Then Professor R. Kent Newmyer, author of the award-winning book John Marshall and the Heroic Age of the Supreme Court, will speak on “Marbury v. Madison: John Marshall and the American Judicial System.” The Honorable Donald W. Lemons, Justice of the Supreme Court of Virginia, will close with a talk on “John Marshall: The Character of the Man.” The moderator for the program will be John Barr of Richmond, president of The John Marshall Foundation and chair of the VBA Committee on Honoring Members and Judges.

This special event is co-sponsored by The Library of Virginia, The John Marshall Foundation, and the APVA’s John Marshall House. The program begins at 2 p.m. at The Library of Virginia and concludes with a tour of the John Marshall House and refreshments in the garden. This program is free and open to the general public.

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News in Brief

Three VBA members were among the attorneys honored during the Virginia State Bar Annual Meeting in June. They are Hon. J. Dean Lewis of Spotsylvania, who received the VSB Family Law Section’s Lifetime Achievement Award; Louis A. Mezzullo of Richmond, recipient of the Gardener G. DeMallie Jr. Award from Virginia CLE; and Richard H. Ottinger of Norfolk, who received the R. Edwin Burnette Jr. Young Lawyer of the Year Award from the VSB Young Lawyers Conference.
Several VBA members were recently appointed by Gov. Mark Warner to university boards of visitors around the Commonwealth. They include former VBA President Anita O. Poston and Henry C. Wolf, both of Norfolk, and former State Senator Hunter B. Andrews of Hampton, the College of William and Mary; Thomas G. Slater of Richmond, Virginia Military Institute; former Delegate Ralph L. Axselle Jr. of Richmond, Virginia Commonwealth University.
Hon. George D. Varoutsos of Arlington recently received the Arlington County Bar Association’s 21st Annual Robert J. Arthur Distinguished Service Award.
Best wishes to VBA Board of Governors member Marilynn C. Goss of Richmond and Isaac Lee Thornton Jr., who were married on July 26.
VBA Legislative Counsel Robert B. Jones Jr. of Richmond has been appointed to serve as the interim Fourth District representative on the Richmond City Council, completing the term of the late Joseph E. Brooks.
VBA Director of Communications Caroline Cardwell has received a second place for still illustration (books@vba.org, the logo for the VBA/LPMD Book Program)and a third place for nonprofit website (www.vba.org) in the 2003 Communications Competition of the National Federation of Press Women.

Lawyers Helping Lawyers, which offers confidential, nondisciplinary help for lawyers, judges, law students and their family members with substance abuse or mental health problems, is now located at 700 East Main Street, Suite 1501, in downtown Richmond, phone (804) 644-3212 or 1-800-838-8358, e-mail info@valhl.org.
Does the VBA have current contact information for you? Please let us know if you have moved and/or changed employment by sending your information to Judy King at the VBA office, jking@vba.org.
The Virginia Lawyer was first published in 1966 by the VBA Young Lawyers Division. In 2000, Virginia CLE and the VBA/YLD joined in a cooperative effort to produce a new version of the two-volume guide for practitioners designed to assist attorneys in dealing with unfamiliar areas. Details are available on the Internet at http://www.vacle.org/wn111.htm#valawyer.

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Professional Announcements

Keeler Obenshain PC is pleased to announce the addition of three attorneys to the firm’s practice. “The exceptional credentials and varied backgrounds of these attorneys advance our commitment to providing superior legal representation and services to businesses and individual clients throughout Virginia and West Virginia,” said President John W. Flora.
Brian K. Brake joins the litigation team at Keeler Obenshain, with particular experience representing health care providers as well as handling personal injury claims. Mr. Brake’s success in obtaining a substantial judgment under the Federal Fair Debt Collection Practices Act recently received statewide attention in Virginia Lawyers Weekly. Mr. Brake relocated to the Shenandoah Valley in 2000 where he first practiced law with Wharton, Aldhizer & Weaver, PLC. Previously, he had been associated with the Richmond office of Wright, Robinson, Osthimer & Tatum, P.C., and earlier with Hunton & Williams LLP. Mr. Brake earned his law degree 1991 from Case Western Reserve University where he was inducted into the Order of Barristers and participated on the National Moot Court Team.
Daniel J. Smith brings Keeler Obenshain a strong combination of regulatory, technical, and general business experience. His practice focuses on assisting companies, from high tech start-ups to established operations, develop and grow their businesses in a complex environment. He is an active member of the Virginia Piedmont Technology Council and serves on the Board of Directors of the Thomas Jefferson Area United Way. Mr. Smith most recently practiced with Woods, Rogers & Hazlegrove in its corporate section, and, previously, with Wiley, Rein & Fielding in Washington, DC, in that firm’s Business and Telecommunications Groups. Mr. Smith holds a master’s degree in National Security Studies from Georgetown University. After serving seven years in the United States Air Force as an intelligence officer, he earned a law degree from the University of Virginia.
Julie A. King focuses her practice on estate planning and administration, probate and chancery litigation, closely-held business planning, tax-exempt organizations and charitable giving. She represents individuals, business owners and corporate fiduciaries throughout Virginia. Ms. King has published articles in regional and national trust and estate publications and has spoken on various estate planning and administration topics to banks, accountants, and attorneys. Ms. King began her law practice with McGuireWoods, LLP, following a law clerkship with Chief Justice Harry L. Carrico of the Supreme Court of Virginia. She earned her law degree from the University of Richmond where she served on the Law Review.

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