South Carolina Lawyers Weekly April 11, 2022

SCLAWYERSWEEKLY.COM VOLUME 20 NUMBER 8 ■

Part of the

APRIL 11, 2022 ■ $8.50

network

LARGEST LAW FIRMS S ee Page 6 ►

Q&A: Tapping the mind of a beverage lawyer ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com Brook Bristow hopped out of litigation after nearly a decade, exhausted and looking for a new craft. So he poured himself into his passion and an entirely new practice area, and in 2016 founded Bristow Beverage Law in Charleston. Today, he says that life has never tasted better.

The self-proclaimed “attorney-atlager” recently spoke with Lawyers Weekly reporter Heath Hamacher about a large selection of topics, including his practice and the “street cred” he earned serving as a certified beer server and craft beer master.

That conversation has been slightly edited for clarity and brevity.

When did you first realize that a change from defense litigation was brewing?

One day after work, I was exploring the beer label on whatever I was enjoying at the time, and reading some of the legal copy, and thought to myself, ‘I wonder if this could be a thing in South Carolina.’ It turns out, yes, it could. Once I had that ‘aha’ moment, I started a beer news blog as I got more interested in craft.

I then went to work for a wonderful law firm in Greenville, Bradford Neal Martin & Associates, who focused on small business law. It was an amazing environment for me to grow as a person and a lawyer. Getting to work with small businesses gave me many of the tools and confidence I needed to strike out on my own in 2016. During that time, I authored two pieces See Beer Law yer Page 5 ►

4th Circuit makes new law on class objectors ■ BY CORREY E. STEPHENSON BridgeTower Media Newswires A district court properly approved the settlement of a long-running class action lawsuit brought by life insurance policyholders, the 4th U.S. Circuit Court of Appeals has ruled, rejecting the objection by a single policyholder and laying down for the first time clear rules about who bears what burdens when a class member objects to a proposed settlement.

A proposed class of life insurance policyholders sued Banner Life Insurance Company and the William Penn Life Insurance Company of New York in

2016, alleging that, as former policyholders, they paid an excess premium to accrue a higher cash value in their account. They claim that the “cashstrapped” insurers increased their cost-of-insurance (COI) charges to prompt policyholders to move more money into their accounts, then “raided” the cash value and attempted to force policyholders to surrender their policies in an effort to solve the insurers’ liquidity problems.

Years of litigation followed, and the parties reached a settlement agreement in October 2019.

Pursuant to the deal, the insurers would refund class members a portion of the money they’d paid,

with a minimum of $100 per class member and a total value of $40 million. In return, class members released the insurers from liability for any and all claims arising out of or relating to COI rate increases.

The district court judge in Maryland preliminarily approved the settlement. In response, 89 policyholders—less than one percent of the class—opted out. A single policyholder, the 1988 Trust for Allen Children Dated 8/8/88, filed an objection, alleging that the class members hadn’t given sufficient See Objection Page 3 ►

INSIDE VERDICTS & SETTLEMENTS

VERDICTS & SETTLEMENTS

COMMENTARY

Default judgment of $5M for victims of fiery crash

Wrongful death suit settles for $1.8M

Fighting stigma: A lawyer’s mental health journey

Page 3

Page 3

Page 4

2 / NEWS

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Apr il 11, 2022

NEWS BRIEFS USC leaps 12 spots in latest law school rankings The latest U.S. News & World Report Best Law School rankings, released on March 29, saw the University of South Carolina School of Law significantly distance itself from its 2021 position.

USC has moved into a tie for No. 84, after having been ranked No. 96 each of the previous two years. The school’s dean, William Hubbard, said he was pleased with the double-digit jump.

“We clearly have momentum here at the law school,” Hubbard said. “It was a real team effort.”

Hubbard said that the school significantly improved in a few areas, including its LSAT profile and scholarship production, and in assessments from judges and lawyers, and its peer reputation.

“Those were big drivers … but also, improving our bar passage, improving our employment and graduation and employment 10 months out—all of those are improved metrics that we can control,” Hubbard said.

As has been the case in all previous years, Charleston School of Law was unranked.

Staff reports

High court opens door wider to malicious prosecution claims WASHINGTON (AP) — In a victory for people falsely accused by police of crimes, the U.S. Supreme Court has removed a barrier to lawsuits against law enforcement for malicious prosecution.

The 6-3 ruling handed down April 4 means that some malicious prosecution lawsuits that had previously been thrown out at an early stage will instead be allowed to move forward. The ruling was joined by both liberal and conservative justices.

Justice Brett Kavanaugh wrote for the majority of the court that a person seeking to sue for malicious prosecution under a federal civil rights law has to prove that the case brought against him “ended without a conviction.” The justices rejected a higher bar that federal appeals courts in much of the country had adopted that said the person had to show their case ended because they were innocent.

Justice Samuel Alito wrote in a dissent that his colleagues’ decision “has no basis in the Constitution and is almost certain to lead to confusion.” He was joined by two other conservative justices, Justice Clarence Thomas and Justice Neil Gorsuch.

The case before the justices involved the 2014 arrest of Brooklyn resident Larry Thompson who sued for malicious prosecution after charges against him resulting from a scuffle with police were dropped.

Lower courts ruled against Thompson saying it wasn’t enough that the case against him ended without a conviction. They said he had to show it ended with “affirmative indications of innocence” such as an acquittal or a dismissal by a judge along with a statement that the evidence was insufficient.

The Supreme Court disagreed.

Thompson’s lawyer Amir Ali of the MacArthur Justice Center said in an interview he was “very pleased with the court’s decision” and that it was “welcome and needed.” Ali said that prior to the court’s decision there was a “completely unjust and really senseless barrier to bringing these lawsuits” and that the court had “removed that unjust barrier.” Ali said his client will now “have his day in court” and get the opportunity to prove his malicious prosecution claim.

The case against Thompson began when authorities were called to his apartment. Thompson’s sister-in-law, whom Thompson’s lawyers said has “cognitive delays,” called 911 to report Thompson was sexually abusing his infant daughter. Initially two EMTs arrived and Thompson, not knowing his sister-in-law had called, told them they had the wrong apartment.

After the EMTs left, police officers arrived and Thompson refused to let them in without a warrant. After a scuffle, Thompson was arrested and charged with resisting arrest and obstructing governmental administration. He was held two days, but the charges against him were dropped.

The baby was examined at the hospital and no evidence of abuse was found, only diaper rash.

Thompson’s lawsuit followed.

The Biden administration had urged the court to side with Thompson as did the American Civil Liberties Union and NAACP, among other organizations.

$14M jury award for protesters could resonate around U.S. DENVER (AP) — A federal jury’s $14 million award to Denver protesters hit with pepper balls and a bag filled with lead during 2020 demonstrations over the police killing of George Floyd in Minneapolis could resonate nationwide as courts weigh more than two dozen similar lawsuits.

The jury found police used excessive force against protesters, violating their constitutional rights, and ordered the city of Denver to pay 12 who sued.

Nationwide, there are at least 29 pending lawsuits challenging law enforcement use of force during the 2020 protests, according to a search of the University of Michigan’s Civil Rights Litigation Clearinghouse.

The verdict in Denver could give cities an incentive to settle similar cases rather than risk going to trial and losing, said Michael J. Steinberg, a professor at the University of Michigan Law School and director of the Civil Rights Litigation Initiative. It could also prompt more protesters to sue over their treatment at the hands of police.

“There’s no doubt that the large jury verdict in Denver will influence the outcome of pending police misconduct cases brought by Black Lives Matter protesters across the country,” said Steinberg, whose law students have been working on a similar lawsuit brought by

protesters in Detroit.

Lawyers for the claimants argued that police used indiscriminate force against the nonviolent protesters, including some who were filming the demonstrations, because officers did not like their message critical of law enforcement.

“To the protest of police violence they responded with brutality,” one of their attorneys, Timothy Macdonald, told jurors.

People who took part in the protests have already made similar allegations in lawsuits filed across the country.

In Washington, D.C., activists and civil liberties groups sued over the forcible removal of protesters before then-President Donald Trump walked to a church near the White House for a photo op. The claims against federal officials were dismissed last year but a judge allowed the case against local police to continue.

Several lawsuits alleging protesters were wrongfully arrested or that police used excessive force have been filed against New York City and its police department, including one brought by New York Attorney General Letitia James that claims police used excessive force and wrongfully arrested protesters. In Rochester, New York, people who protested the death of Daniel Prude, a Black man who lost consciousness after being pinned to the street by officers during a mental health call in 2020, claim police used extreme force against them in a lawsuit that also alleges city officials have allowed a culture of police brutality against racial minorities to fester.

One of their attorneys, Donald Thompson, said he plans to raise the Denver award in settlement talks with the city and note that unlike most of the Denver protesters, some of his clients suffered lasting injuries including the loss of an eye and scarring from being hit in the face with a tear gas canister. Thompson also thinks the Denver verdict shows that the public, in the age of cellphone and body camera videos, is not as willing to give police the benefit of the doubt anymore.

“Now people see how this policing really works. You can’t be naïve,” he said.

A spokesperson for Rochester, Barbara Pierce, declined to comment, saying the best forum to discuss its legal position was through the litigation process. When the case was filed, the city said it had already revised the way police responds to protests.

Over the last two months, the city of Austin, Texas has agreed to pay a total of $13 million to four people who were hit in the head with bean bag rounds fired by police.

Even before the Denver ruling last week, the police department made some changes in response to criticism that arose from the protests, including eliminating the use of 40mm foam rounds for crowd control and changing the way officers are permitted to use pepper balls.

Denver’s Department of Public Safety, which includes the police department, said in a statement

that the city was not prepared for the level of sustained violence and destruction. During the trial, lawyers and witnesses said over 80 officers were injured as some in the crowds hurled rocks, water bottles and canned food at them.

The department said it continues to evaluate its policies to “better protect peaceful protestors while addressing those who are only there to engage in violence.”

Still, the large award is not expected to lead to an overhaul of how officers respond to what experts say are inherently chaotic situations that are difficult to prepare for.

Ed Obayashi, a use-of-force consultant to law enforcement agencies and a deputy sheriff and legal adviser in Plumas County, California, said society may have to bear the cost of such settlements because innocent people can be injured during protests as outnumbered police try to react on the fly, including to people intent on violence.

“It really goes south in an instant because there are individuals out there who want to cause chaos,” he said.

Obayashi said there is not much police training for protests, which have been relatively rare.

He said it would be prohibitively expensive to have officers practice deploying equipment such as tear gas canisters. Because projectiles used in crowds and considered “less lethal” by police, such as rubber bullets and pepper balls, have less velocity and less power to hurt people, it is harder to ensure they hit their intended target, he said.

Lawyers representing people who have also alleged police misconduct and violation of their constitutional right to protest can now use the Denver damage award as part of their own settlement negotiations, said Mark Silverstein, legal director of the American Civil Liberties Union, which represented some of the winning Denver protesters.

The decision came nearly two years after thousands of people angry about Floyd’s death took the streets nationwide, a relatively quick result for the legal system and soon enough for others who allege misconduct by police to file a claim. In Colorado and many other states, there is a two-year statute of limitations for such lawsuits Silverstein said, leaving only a few months for others to sue.

The city attorney’s office said it has not decided whether to appeal the verdict, but appeals in such big cases are common, said Gloria Browne-Marshall, a professor at John Jay College of Criminal Justice. Outside lawyers will also scrutinize the case to try to determine if there are unique circumstances that may have led to a “lightning in a bottle” verdict that is less likely to be repeated.

However, she thinks the verdict sends a significant message that regular people respect the right of protest and demand change from the government, which she believes police and prosecutors have been undermining.

“It should send a message to both, but whether or not they listen is a different issue,” BrowneMarshall said.

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ap ri l 11, 2022

VERDICTS & SETTLEMENTS / 3

Default judgment of $5M for victims of fiery crash ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com A Charleston County judge has awarded $5 million to the estate of a man who was killed in a fiery crash caused by a drunk driver who was also killed.

Jai’von Pelzer was a passenger in a vehicle that was passing through the intersection of Rivers Avenue and Remount Road in John T. Charleston around 2 a.m. on Feb. Mobley 4, 2018 when Antwan Haskell ran the stoplight and crashed his car into their vehicle. Haskell, who was reportedly under the influence of illegal drugs and alcohol and driving approximately 100 mph without headlights, was driving a Camaro he had rented from Enterprise Rent-A-Car. Pelzer’s vehicle exploded on impact and was broken in half, with the front end coming to rest in the grass median and the rear landing on top of other parked vehicles, according to reports. Two other people in the vehicle, including the mother of Pelzer’s minor daughter, were also killed in the crash.

Mobley said that Pelzer’s child has suffered incomprehensible emotional and economic loss due to the death of both her parents.

The personal representative of the Haskell’s estate was notified of the damages but failed to appear or otherwise respond, according to court documents.

“The defense tendered the policy limits to [the estate of the mother of Pelzer’s child], and once they did so, refused to defend the claim,” Mobley said.

Mobley said that his client is also pursuing a bad faith lawsuit against ELCO Administrative Services, a third-party administrator for Enterprise, which is self-insured.

“I contacted them and said, ‘Hey, you forgot about this other horrific death over here’ and they kind of said, ‘We already paid all the money to [the other estate],’” Mobley said.

In his order awarding damages on March 25, 9th Judicial Circuit Judge Roger Young wrote that it is hard to imagine “more reprehensible conduct” by a defendant.

“Antwan Haskell drove his car drunk and high with no headlights at speeds in excess of 100 mph down Rivers Avenue with no regard for the safety of others,” Young wrote.

Young awarded the estate $2.5 million in actu-

VERDICT REPORT — MOTOR VEHICLE CRASH

Amount: $5 million Injuries alleged: Death, emotional and economic loss Case name: Pelzer v. Haskell Court: Charleston County Circuit Court Case No.: 2019-CP-10-05767 Judge: Roger Young Date of verdict: March 25 Highest offer: None Insurance carrier: GEICO (for the driver of the victim’s vehicle) and ELCO Administrative Services (administrator for self-insured Enterprise Leasing) Attorney for plaintiff: John T. Mobley of Columbia Attorney for defendant: None al and punitive damages in both the survival and wrongful death causes of action.

Wrongful death suit settles for $1.8M ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com The estate of a man who died when an impaired driver broadsided his vehicle has settled its wrongful death suit for $1.8 million, the estate’s attorney reports.

Mark Bringardner represented the estate of 49-year-old David Watson, who was drivMark ing his SUV on Shiloh Road in Bringardner Anderson County on August 21, 2021, when a sedan driven by Deonte Lowery plowed into the driver’s side of his vehicle at approximately 90 mph. Bringardner said that Watson was attempting to turn left onto U.S. 29 when the crash happened, and that the impact caused both vehicles to ignite.

Bringardner said that Watson died at the

scene. According to police reports, Lowery was injured and taken to a hospital. He was later charged with felony driving under the influence resulting in death, court records show.

Bringardner said that Watson, who left behind a wife and teenage daughter, was a pianist, composer, church music director, and educator whose loss is “incalculable.”

Dalton Barfield and Peggy Urbanic of Clawson and Staubes in Greenville represented insurers State Farm and USAA, respectively. Both attorneys declined to comment on the matter, which was settled on March 30.

“Thankfully, the insurance carriers and defense counsel were very cooperative through the process and the settlement amount reflects a full tender of all liability and UIM bodily injury and property damage insurance policy limits,” Bringardner said.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $1.8 million Injuries alleged: Wrongful death and survival Case name: Estate of David Watson v. Deonte Lowery, et al.

Court: Anderson County Circuit Court Case No.: 2022-CP-04-00577 Date of settlement: March 30 Insurance carrier: State Farm (liability) and USAA (Uninsured/underinsured motorist insurance) Attorney for plaintiff: Mark Bringardner of Charleston Attorneys for defendant: Dalton Barfield and Peggy Urbanic of Clawson and Staubes in Greenville

OBJECTION / Court explains who should bear what burdens C o nt inu e d f r o m 1 ►

weight to the specific allegations it had made while the class was negotiating the settlement.

The district court continued its final fairness hearing and allowed the Allen Trust to conduct discovery. Following the interim discovery, the court concluded the hearing and overruled the Allen Trust’s objection, certifying the class for purposes of settlement as fair, reasonable and adequate.

The Allen Trust appealed. Writing for the 4th Circuit in its March 15 opinion, Judge Diana Gribbon Motz affirmed, finding that the district court didn’t abuse its discretion either in certifying the class or approving the settlement. “‘Because a district court possesses greater familiarity and expertise than a court of appeals in managing the practical problems of a class action, its certification decision is entitled to ‘substantial deference,’ especially when the court makes ‘well-supported factual findings supporting its decision,’” Motz wrote. “This case, chockfull of the most esoteric principles of life insurance accounting imaginable, could be the poster child for that rule.

The district court did a commendably careful job in evaluating the Allen

Trust’s arguments and determining that they did not justify refusing to certify the class. It did not abuse its discretion in doing so.”

Motz took the opportunity to explain “who bears what burdens when a class member objects to a proposed settlement,” something that had not been previously done by the 4th Circuit.

An objector to a class settlement must state the basis for its objection with enough specificity to allow the parties to respond and the court to evaluate the issues at hand, Motz said. Next, the parties propounding the settlement—in addition to bearing the initial burden to satisfy the Rule 23(a) and (e)(5) requirements—must show that the objection doesn’t demonstrate that the proposed settlement fails one of those requirements.

At all times the district court remains a fiduciary of the class, Motz said, and must protect the class’s interests, both from parties and counsel overeager to settle, and also from frivolous objectors.

“Upon a review of the record, we do not understand the district court to have done anything different than what we have just outlined,” Motz wrote. “The court required the Allen Trust to specify and support its ob-

jection, while keeping the ultimate burden on the proponents of the settlement to demonstrate its fairness.

Thus, the Allen Trust’s argument that the court improperly placed upon it the burden of overcoming the settlement provides no basis for reversal.”

Motz then addressed the Allen Trust’s argument that the district court abused its discretion by certifying the class. The Allen Trust contended that its allegations against Banner were different enough to defeat the requirement all class members’ claims must generally involve common questions of fact and law.

“But upon closer examination, the Allen Trust’s and [class] claims are two sides of the same coin,” Motz wrote.

“The difference, such as it is, turns on when the plaintiffs would have to pay the allegedly unlawful charges. The [class] had been paying them on a rolling basis, going above and beyond the guaranteed minimum payment during the first twenty years. The Allen Trust may have to pay these charges all at once, in year 21. But the COI charges themselves are the same.”

Nor had the district court abused its discretion when it found the settlement fair, reasonable and adequate, Motz said. The parties litigated their claims through motion practice, dis-

covery, dispositive motions and protracted mediation; settlement was reached after multiple discussions and hearings.

The Allen Trust’s contention that it was giving up its claims against the insurers in the settlement for nothing also failed to pass muster.

“The district court found that at this time, the Allen Trust did not have much of a claim at all, and so was not really giving up very much,” Motz wrote, noting that the trust’s concerns were not widespread, as it was the only class member to object to the settlement.

Further, the district court carefully weighed the size of the proposed settlement against the claims at issue and found that it compared favorably to similar deals.

Neither Jeven Robinson Sloan of Loewinsohn Flegle Deary Simon in Dallas, Texas, who represented the trust, nor George Walton Walker III of Boles Holmes White in Auburn, Alabama, who represented the insurer responded to requests for comment.

The 25-page decision is The 1988 Trust for Allen Children dated 8/8/88 v. Banner Life Insurance Company (Lawyers Weekly No. 001-056-22).

The full text of the opinion is available online at sclawyersweekly.com.

4 / COMMENTARY

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Apr il 11, 2022

Fighting stigma: A lawyer’s mental health journey ■ BY WENDY TANIS ROBBINS BridgeTower Media Newswires Anxiety is the most common mental health issue among the general population. Anxiety can range from being a protective response to a potential threat to being an overwhelming impediment that can lead to feeling overwhelmed or paralyzed. One factor that exacerbates the experience of unhelpful anxiety is being afraid to talk about it and feeling alone in the struggle.

A powerful tool to fight that stigma is hearing real stories from lawyers who have felt that fear of stigma, persisted through it, and come out stronger on the other side. One such story is from Wendy Tamis Robbins.

— Shawn Healy, Lawyers Concerned for Lawyers I don’t remember living without anxiety. As a child, my first memories are of a world that was unsafe and unstable. I had my first panic attack when I was just 6 years old.

As I grew, so did my fear and isolation as the anxious thoughts became more intrusive and difficult to manage.

So, I started running and hiding. I ran as fast I could toward the achievements and accomplishments that would prove I was not broken. I thought external validation would calm the storm inside of me. I sprinted to outrun the dark ruminations in my mind and the physical toll they took on my body.

And I hid. I hid my broken pieces from others with destructive perfectionism, people-pleasing, and disordered eating. And I hid them from myself with disordered drinking and over-working.

The most obvious place I hid was right in broad daylight as a lawyer.

No one looked at lawyers as broken.

They were superheroes and saviors.

They sought truth and found justice for what was broken: broken lives, broken companies, broken vows.

At first, these self-preservation practices worked to my advantage.

I was a four-sport all-star athlete with straight A’s and recruited to an Ivy League college.

After successfully hiding my intrusive thoughts, bouts of depres-

sion and suicide ideation, I entered law school. There I found others hiding just like me. We showed up early to spaces that would later be too populated for us. We sat in the back of class or at the end of the row near the door. We avoided eye contact with each other and professors.

We were the first to leave class and the last to leave the bar. At the time, we didn’t understand or appreciate the support we could have provided each other. Instead, we all made an unspoken pact to hide this dirty secret and avoid each other.

Because each one of us was a reminder of the unbearable anxiety brewing just below the surface.

I hit a handful of rock-bottoms before joining my first law firm. Therapy and medication were making my life manageable while still accommodating my anxiety daily. So, I kept running and pushing it away, convinced that when I reached my goal—the big law firm—I would be better.

But it was the opposite. When I hit the next rock bottom I became agoraphobic. Leaving the house, my safe place, became excruciating. I struggled to hide my condition at work, exacerbating my anxiety that much more. I could barely survive the commute on public transportation or in traffic, having several panic attacks before arriving to the office exhausted.

I panicked in meetings with clients and lunches with partners. I panicked in my office, alone with my own thoughts.

I remember as a second-year associate when the partner I worked closely with in the office next to mine committed suicide. No one discussed it openly or asked how we were doing. It was acknowledged with “God, how awful!” in the hallway, and then we walked back to our offices and kept working. The message was crystal clear.

So, I just kept running—to the next law firm, the better law firm, always looking outside of myself for a cure when it was inside of me all along. It wasn’t until I stopped running and started writing that I found my freedom and chronicled that journey in my bestselling book, “The Box: An Invitation to Freedom

from Anxiety.”

Now, as a speaker, coach and advocate within our industry, I’m painfully aware of the fact that I was never alone in this struggle. We, as lawyers, are riddled with anxiety, depression and addiction because external success and achievements don’t make us impervious to the highly competitive, stressful and destructive environment we have cultivated. In fact, this environment creates and exacerbates our mental health issues at an alarming rate.

Because of the stigma surrounding mental health, I couldn’t ask for the help I needed within my law firms, so I found it without them.

My story had a happy ending.

But many do not. If we are providing support that no one dares ask for because we are not promoting help-seeking behaviors without judgment or consequences, we are failing our people.

I’ve been a lawyer for 24 years now, and I hid my mental illness for 23 of them. In 2021, I came out to my colleagues and clients not knowing what the response or reaction would be. I had found my freedom and there was no going back. I was prepared to face the consequences.

To my surprise and delight, I was met with overwhelming support and compassion. And the doors I imagined shutting started opening all around me, with people on the other side who wanted to listen and share their own stories. With every person I spoke to, either they suffered, a loved one did, or they feared for the well-being of their teams and fellow attorneys.

The last year of my journey has made it clear that people are desperate to talk about their struggles and find the support they need.

As I continue working with law firms to chip away at the stigma surrounding mental illness that is so engrained in our culture, my focus is to emphasize the need for more empathy, education and empowerment. Not just for those struggling, but for those who are not—the stakeholders and leaders who have the power and authority to make the changes we desperately See Page 5 ►

"Helping lawyers practice better, more efficiently, and more profitably."

■ PUBLISHER Liz Irwin lirwin@bridgetowermedia.com ■ EXECUTIVE EDITOR Andy Owens aowens@scbiznews.com ■ EDITOR IN CHIEF David Donovan ddonovan@sclawyersweekly.com ■ EDITORIAL Heath Hamacher, Reporter hhamacher@sclawyersweekly.com Scott Baughman, Digital Media Manager sbaughman@mecktimes.com ■ ADVERTISING Sheila Batie-Jones, Advertising Account Executive sbatie-jones@sclawyersweekly.com ■ ACCOUNTING & ADMINISTRATIVE Michael McArthur, Business Manager mmcarthur@bridgetowermedia.com ■ CIRCULATION Disa Ehrler, Audience Development Manager dehrler@bridgetowermedia.com Circulation: 1-877-615-9536 service@bridgetowermedia.com ■ PRODUCTION & OPERATIONS Bradley Redmond, Director of Production Ryan O’Shea, Production Supervisor John Reno, Production Specialist

©2022 BridgeTower Media.

Material published in South Carolina Lawyers Weekly is compiled at substantial expense and is for the sole and exclusive use of purchasers and subscribers. The material may not be republished, resold, recorded, or used in any manner, in whole or in part, without the publisher’s explicit consent. Any infringement will be subject to legal redress.

South Carolina Lawyers Weekly (USPS #020216) is published biweekly every other Monday with General Statewide Circula-

All you can do is be the best lawyer you can be ■ BY JESSICA MARKHAM BridgeTower Media Newswires I seem to recall litigating cases when I was a less seasoned attorney, and I took the losses much more to heart than I do now. You would think it would be the opposite, because now I am the first chair and the one that is responsible for strategy and execution.

However I felt every loss, however small, very deeply in the early years.

Losing a motion would quite literally keep me up at night, staring at the ceiling, unable to sleep. It would take a long time to shake even the smallest loss. It was even worse when I had a long winning streak that was suddenly and unexpectedly broken.

I think the reason this has changed is because I have realized how diffi-

cult it is to predict success in the beginning of a case. Moreover, you have little control over whether you get the “winning” party or the “losing” party as your client. Yes, of course, you can screen out people that seem completely unreasonable; however, by and large when you take a new client you probably have a 50-50 chance of ending up with the party who will not prevail at trial.

Sometimes the facts just aren’t on your side. Sometimes they are, and you lose anyway.

A colleague once gave me great advice that has stuck with me and I have often repeated it to my associates. He told me the best you can do is be the best lawyer you can be, do your job to the best of your ability and after that it is out of your hands.

I think that is true.

You have no control over the facts, the law and limited control over the judge’s interpretation of them, among other things. Sometimes the facts, however much you prepare, change or evolve up to the trial date.

As much as you will prepare, research and toil over a case, it is not your life, these are not your decisions or your consequences. Sometimes your client has made missteps and hurt their own case. Again, that’s out of your hands.

Do the best within the bounds of your job and ethical duties. If you have done that, even if you lost your case you should be able to go to sleep soundly that night. The sooner you realize this, the better off you’ll be.

Jessica Markham is the managing attorney at Markham Law Firm in Bethesda, Maryland.

tion by South Carolina Lawyers Weekly at 130 N. McDowell St. Unit B, Charlotte NC 282042411. (919) 829-9333, (800)-876-5297. Periodicals postage paid at Charlotte, NC 28228-9998.

Subscriptions Rates: $369 per year.

Website: www.sclawyersweekly.com POSTMASTER: Electronic Service Requested, send address changes to South Carolina Lawyers Weekly, Subscription Services, P.O. Box 1051 Williamsport, PA, 17703-9940 service@bridgetowermedia.com South Carolina Lawyers Weekly is a publication of BridgeTower Media, 222 South Ninth Street, Suite 900, Minneapolis, MN 55402.

NEWS / 5

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ap ri l 11, 2022

BEER LAWYER / Having as much fun as the law allows C o nt inu e d f r o m 1 ►

of legislation that really opened up the doors for South Carolina breweries. By then, the industry was growing, and I was able to go out on my own. I had enough business where I thought, ‘Well, maybe this can work.

But if it doesn’t, I’m sure someone will come get me.’” But I’m still here.

Beverage lawyers don’t appear to be that plentiful. How many do you figure practice it exclusively?

While there are certainly a good number of attorneys who might touch the industry a little bit through various practices, there are very few nationally who do it exclusively. A lot of us do know each other, as the club is small, and do often collaborate on questions as many lawyers would in a single office.

Your website is colorful. Did your advertising degree from the University of South Carolina help you make it so?

I still think my undergraduate degree does give me some perspective in how I want things to be seen. I was always a copywriter though, and not a designer or art director. But I still love to see some pops of color, while keeping a relatively simple design scheme.

I think some bright and brash appeal is needed in web design, particularly amongst law firms, when nine out of 10 websites look the exact same.

I see your paralegal and office manager have the titles “chaos coordinator” and “smooth hoperator.” How’d that come about?

They came up with them on their own, and I think they’re great. Jamie [Abodeely] was originally going to be the Office Ninja but decided due to her having to be the gatekeeper of communications, Smooth Hopera-

C o nt inu e d f r o m 4 ►

need.

This topic needs to be moved from behind closed bathroom doors to the boardrooms where decisions are being made. When policies and practices are not only endorsed, but embraced and modeled from the top down, we will see a shift in

tor made more sense. In Jennifer’s [Hladek] case, her resume said “chaos coordinator.” And I absolutely loved it, because that does often describe what she has to do as our paralegal and licensing coordinator.

What’s the attraction to beer, particularly craft beer?

For me, it was something that I just always had a taste for once I was of age. And my palate has evolved over time in terms of what I enjoy.

But, for me, a lot of what makes beer great are the people. I’ve made some of the most wonderful friends who are in the industry. We often say that beer people are good people. And in my experience, for the most part, that’s most definitely been true.

Is there a typical day in the life of what some dub a “beer lawyer”?

To be fair, we do wine and spirits as well. In fact, these days, spirits is slowly creeping up in terms of what I work on most days. It has gone from 2 percent of my practice in 2020 to 20 percent in 2021, and is still growing.

No day is really the same, especially given my schedule. I have a 1-yearold son, who I watch in the mornings a few days a week and have since he was born, so I’m not grinding all of the time. In starting this law firm, it was important to me to have what I never had at bigger offices: a better worklife balance.

As to work, I generally answer email in the morning, but the calendar is usually set a day or so before.

The last few weeks were dedicated to hustling through alcohol licensing renewals for Charleston County and Dorchester County businesses. Yesterday, it was doing compliance filings across the country for two larger companies that we work with. Tomorrow, it’ll be research projects. Today,

this culture of silence.

Because only when we shine a light in the darkness can we ensure all of our people are supported in becoming the best versions of themselves both personally and professionally. These should not only be human values, they should be our corporate, firm and professional values.

it’ll be trying to solve some licensing issues for a few businesses who need assistance. Later in the week, we’ll be working on helping a client merge with another company and working on some federal label approvals for another. It really is a nice blend of work, so variety is never an issue.

Sounds like you’re a jack of many trades.

We’re Swiss army knives, not butter knives. For most of our clients, we’re effectively their in-house counsel. We have to at least know a little about a lot, because the number of issues that will need to be covered is fairly immense. Generally speaking, we work in about six different areas: business and corporate, intellectual property, licensing and compliance, operations and trade practices, contracts, and labels and formulas. And all of those areas have many different components, so it’s always interesting. But, once in a while an issue pops up that doesn’t fit into any of those boxes—like the time I was asked by a client if he could have free-range chickens roaming his brewery property. That was a very interesting bill entry.

Do you think some clients find you more credible because of this “street cred” you earned working in the beverage industry?

Absolutely, yes. There is no doubt that knowledge is power. That is one thing I can appreciate about any type of law—whether traditional or not— is that you are constantly learning how to be an expert on any number of topics. For me, I never set out to be a beverage attorney. There wasn’t any book or treatise I could read about how to do this. It just happened and I learned as I went. As legislation was being passed, I started to be contacted by various brewers who were

If you need help

For information on available resources and support to the legal community, contact Virginia Judges & Lawyers Assistance Program at (877) 545-4682 or visit http://www. valhl.org/.

Programs nationwide can be found here: https://www.americanbar.org/groups/litigation/commit-

looking to start up and wondering how they would be impacted and if I could help them. And because alcohol is a fairly small industry, it snowballed from there. Now we represent hundreds of clients from small startups to national brands, which is still pretty crazy to me. I think being able to build relationships and speak the language of your clients are of utmost importance to anyone building a practice, particularly in a niche area like mine. Then again, maybe they just like my beard.

Is it fair to say that you’re having as much fun at work as the law allows?

I think for me, that’s the best compliment someone can give me working in law, and a law school classmate actually did say that. Something like “You’re the most successful person in our class.” I’m thinking, how is that possible? I’m not the richest. I’m not a partner. I’m not arguing at the Supreme Court. I drive a Kia. And he said, “You’re the most successful, because it looks like you’re having the most fun.” So true.

tees/professional-liability/lawyerassistance-programs/.

Wendy Tamis Robbins is senior counsel at Holland & Knight in Boston, and also works with individuals as an anxiety and wellness coach and provides programming and workshops for law firms dedicated to attorney well-being and ending the stigma surrounding mental health.

Judge Michelle Childs honored by SCAJ COLUMBIA (AP) — Michelle Childs, the South Carolina federal judge recently under consideration for a slot on the U.S. Supreme Court, has received a top award from a trial lawyer group in her home state.

Childs has been named the recipient of the Outstanding Contribution to Justice Award, the South Carolina Association for Justice announced on April 4. According to the organization, the award is “given to individuals who have demonstrated exemplary leadership from the bench and ongoing contributions to the legal profession.”

Bert “Skip” Utsey, president of the attorney group, said Monday that attorneys across the state had “mixed emotions” when Childs

was being considered for the high court, saying that South Carolina’s legal community feared losing one of the country’s “most respected jurists and top legal minds” to Washington.

Childs, who has been a federal judge on South Carolina’s District Court for more than a decade, was on a shortlist of candidates being considered by President Joe Biden for an upcoming vacancy on the U.S. Supreme Court, given the pending retirement of Justice Stephen Breyer. She had a litany of high-profile advocates, including U.S. House Majority Whip Jim Clyburn, on whose advice Biden pledged during the 2020 campaign to nominate a Black woman to the high court.

Childs’ supporters also includ-

ed Republican U.S. Sen. Lindsey Graham, who said he was certain Childs “would have been a reliable vote for the liberal bloc of the Court” but applauded her “open mind and balance that all Americans are looking for.”

Graham, who went on to oppose eventual nominee Ketanji Brown Jackson in a party-line Judiciary Committee vote, added that he felt Childs “would have received a strong bipartisan vote in the Senate.” Three other GOP senators have come out in favor of Jackson’s nomination, all but assuring her eventual confirmation as the high court’s first Black female justice, assuming unified Democratic support.

A graduate of the University of South Carolina School of Law,

Childs, 56, practiced employment law at Nexsen Pruet, where she became the firm’s first Black female partner, before serving as deputy director of South Carolina’s labor department and four years on the state Worker’s Compensation Commission.

She was a state trial court judge for five years before President Barack Obama nominated her for a position on South Carolina’s federal court.

Last year, Biden nominated Childs for a slot on the U.S. Court of Appeals for the District of Columbia Circuit. A hearing had been scheduled earlier this year but was postponed while she was also under consideration for the Supreme Court.

6 / LARGEST LAW FIRMS 2022

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Apr il 11, 2022

Largest Law Firms 2022: Headcounts slide for second straight year ■ BY TERI SAYLOR

S

outh Carolina Lawyers Weekly’s annual ranking of the Largest Law Firms in South Carolina shows a small but steady drop in the population of attorneys in the state’s 26 largest law firms over the past two years.

The report shows 2,303 attorneys are working at these firms in 2022, compared to 2,358 in 2021.

These headcounts show a waning number, compared to the 2,372 South Carolina attorneys reported in 2020, just before the COVID-19 pandemic sent the workforce into quarantine and caused major business disruptions. It’s impossible to say whether the pandemic is chiefly responsible for the decline, or if other factors are in play, but in all, it’s a 3 percent drop in the span of two years.

Each report is a snapshot of a moment in time, tabulating the number of South Carolina licensed lawyers as of January 1 each year. While the profession still remains healthy, we note that several law firms reported a decreased number of attorneys.

With 188 attorneys in South Carolina, Nelson Mullins continues to hold onto its spot as the largest

#1 Nelson Mullins

law firm in the state, even after a decrease of 16 attorneys over the last year.

A large gap separates the state’s largest law firm from the second-largest.

Nexsen Pruet added three attorneys this year, boosting the firm’s headcount to 123 and solidifying its second-place ranking. It’s the second straight year that Nexsen Pruet has posted a net gain of three attorneys.

Reporting 117 attorneys, the third-largest firm, Haynsworth, Sinkler Boyd, has been consistent for three years in a row.

McAngus Goudelock Courie has also held steady over the past three years, leaping into the fourth spot with 90 attorneys and displacing Motley Rice, which dropped to fifth place with 78 attorneys. Motley Rice reported 101 attorneys in 2021.

Rounding out the 10 largest law firms are Burr and Forman (73), Gallivan White & Boyd (59), Parker Poe (59), Womble Bond Dickinson (58) and Willson Jones Carter and Baxley (54).

Altogether, the 10 largest law firms in South Carolina recorded a drop in attorney headcounts since 2020, when those firms reported a total of 940 South

Columbia, SC 29201 803.779.3080

(Nelson Mullins Riley & Scarborough LLP)

www.hsblawfirm.com

1320 Main Street, Meridian,17th Floor

Partners: 79 Associates: 22 Of counsel: 16

Columbia, SC 29201 (803) 799-2000 www.nelsonmullins.com

188 ATTORNEYS Partners: 134 Associates: 43 Of counsel: 11

117 ATTORNEYS

SOUTH CAROLINA OFFICES: Greenville (45), Columbia (26), Charleston (26), Florence (6)

#4 MGC (McAngus Goudelock & Courie)

SOUTH CAROLINA OFFICES: Columbia (100), Greenville (40) Charleston (36), , Myrtle Beach (12)

1320 Main Street, Floor 10

#2

(803) 779-2300

Nexsen Pruet 1230 Main St, Suite 700 Columbia, SC 29201 (803) 771-8900 www.nexsenpruet.com

123 ATTORNEYS Partners: 74 Associates: 21 Of counsel: 2

Columbia, SC 29201

www.mgclaw.com

90 ATTORNEYS Partners: 48 Associates: 42 SOUTH CAROLINA OFFICES: Columbia (37) Greenville (19), Charleston (17), Myrtle Beach (9), Florence (4), Summerville (2), Northeast Columbia (1), Irmo (1)

#5 Motley Rice 28 Bridgeside Blvd.

SOUTH CAROLINA OFFICES: Columbia (69), Greenville (24), Charleston (23), Myrtle Beach (4), Hilton Head (3)

#3 Haynsworth Sinkler Boyd 1201 Main Street, 22nd floor

Carolina licensed attorneys. In 2022, that number fell to 899, meaning that those 10 firms accounted for more of the decline in headcount than all of the remaining firms on the list did.

The annual survey of South Carolina’s Largest Law firms is based on the self-reported number of South Carolina licensed lawyers practicing in firms across the state. The information was gathered over the past month, using email and digital survey questions to put together an up-to-date list from information from all the firms that appeared in the 2021 survey and others who wanted to submit data about their firm.

In compiling the 2022 survey of South Carolina’s largest law firms, we have made every effort to provide complete and accurate information. If we have inadvertently left out a firm or incorrectly reported information, or if you would like for your firm to be tabulated for the 2023 list, please contact us at editor@sclawyersweekly.com.

Lawyers Weekly would like to thank all of the firms that agreed to participate in our report. We will begin collecting data for the 2023 issue of South Carolina’s Largest Law Firms next January.

Mount Pleasant, SC 29464 (843) 216-9315 www.motleyrice.com

78 ATTORNEYS Partners: 27 Associates: 33

LARGEST LAW FIRMS 2022 / 7

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ap ri l 11, 2022

Senior counsel: 8 Staff attorneys: 9 Project attorneys: 1

https://www.womblebonddickinson.com/us

58 ATTORNEYS

SOUTH CAROLINA OFFICES: Mount Pleasant (78)

#6 Burr and Forman 1221 Main Street, Suite 1800 Columbia, SC 29201

Partners: 39 Associates: 9 Of counsel: 4 Other: 6

SOUTH CAROLINA OFFICES: Charleston (39), Greenville (15), Columbia (4)

(803) 799-9800

#10

www.Burr.com

WJCB

73 ATTORNEYS

(Willson Jones Carter & Baxley)

Partners: 47 Associates: 11 Of counsel: 13 Staff attorneys: 2

325 Rocky Slope Road, Suite 201

SOUTH CAROLINA OFFICES: Columbia (31), Greenville (13), Hilton Head (13), Charleston (9), Myrtle Beach (5) Bluffton (2)

#7 (tie) Gallivan White & Boyd 55 Beattie Place, Suite 1200 Greenville, SC 29601 (864) 271-9580 www.gwblawfirm.com

59 ATTORNEYS Partners: 30 Associates: 26 Of counsel: 3

SOUTH CAROLINA OFFICES: Greenville (30), Columbia (18), Charleston (11)

#7 (tie) Parker Poe

Greenville, SC 29607 (864) 272-2667 https://www.wjcblaw.com

54 ATTORNEYS Partners: 19 Associates: 35

SOUTH CAROLINA OFFICES: Greenville (26), Charleston (15), Columbia (12), Myrtle Beach (1)

#11 (tie) Turner Padget

(Turner, Padget, Graham & Laney, PA) 40 Calhoun St. #200 Charleston, SC 29401 (843) 576-2800

(Parker Poe Adams & Bernstein)

https://www.turnerpadget.com/

1221 Main Street, Ste 1100

53 ATTORNEYS

Columbia SC 29201 (803) 255-8000 www.parkerpoe.com

Partners: 33 Associates: 13 Of counsel: 7

SOUTH CAROLINA OFFICES: Columbia (29), Charleston (9), 59 ATTORNEYS

Greenville (6), Myrtle Beach (5), Florence (4)

Partners: 27 Associates: 18 Of counsel: 14

#11 (tie)

SOUTH CAROLINA OFFICES: Charleston (23), Columbia (21)

(Ogletree, Deakins, Nash, Smoak & Stewart)

Greenville (13) Spartanburg (2)

Ogletree Deakins The Ogletree Building

#9

300 North Main Street

(Womble Bond Dickinson US)

(864) 271-1300

Greenville, SC, 29601

www.ogletree.com

(864) 255-5400

53 ATTORNEYS

Womble Bond Dickinson

Greenville, SC 29601

8 / LARGEST LAW FIRMS 2022

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Apr il 11, 2022

Partners: 26 Associates: 12 Of counsel: 11 Counsel: 4

#16

SOUTH CAROLINA OFFICES: Greenville (32), Columbia

200 Broad St., Suite 400

(16) Charleston (5)

#13 SCLS (South Carolina Legal Services) 2109 Bull Street Columbia, SC 29201

Wyche Greenville, SC 29601 864-242-8200 www.wyche.com

35 ATTORNEYS Partners: 23 Associates: 5 Of counsel: 7

SOUTH CAROLINA OFFICES: Greenville (28), Columbia (6) Spartanburg (1)

(803) 799-9668 www.sclegal.org

48 ATTORNEYS (SCLS is a non-profit law firm)

#17 Clawson and Staubes 126 Seven Farms Drive, Suite 200 Charleston, South Carolina 29492

SOUTH CAROLINA OFFICES: Greenville (10), Charleston (10), Columbia (8), Florence (4), Spartanburg (4), Rock Hill (4), Conway (3), Orangeburg (3), Greenwood (2)

(843) 577-2026 www.clawsonandstaubes.com

34 ATTORNEYS

#14 (tie) Clement Rivers

Partners: 15 Associates: 12 Of counsel: 7

SOUTH CAROLINA OFFICES: Charleston (21),

25 Calhoun Street, Suite 400

Columbia (7), Greenville (6)

Charleston, SC 29401 (843) 577-4000

#18 (tie)

www.ycrlaw.com

K&L Gates

39 ATTORNEYS

134 Meeting Street, Suite 500

Equity partners: 14 Non-equity partners: 9 Associates: 8 Of counsel: 1 Senior counsel: 2 Special counsel: 5

Charleston, SC 29401

SOUTH CAROLINA OFFICES: Charleston (39)

Partners: 14 Associates: 10 Of counsel: 2 Special projects attorney: 1 South Carolina offices: Charleston (27)

#14 (tie) Richardson Plowden (Richardson Plowden & Robinson) 1900 Barnwell Street Columbia, SC 29201 (803) 771-4400 www.RichardsonPlowden.com

39 ATTORNEYS Partners: 27 Associates: 11 Of counsel: 1

SOUTH CAROLINA OFFICES: Columbia (27), Charleston (8), Myrtle Beach (4)

(843) 579-5600 www.klgates.com

27 ATTORNEYS

SOUTH CAROLINA OFFICES: Charleston (27)

#18 (tie) CSKL - Copeland, Stair, Kingma & Lovell (Copeland, Stair, Kingma & Lovell) 40 Calhoun Street, Suite 400 Charleston, SC 29201 (843) 727-0307 www.cskl.law

27 ATTORNEYS Partners: 15

Capable. Committed.

Experienced. Invested.

• Real-time underwriting support • Timely & relevant education • Best-in-class technology • Superior claims services • Excellent financial stability • Commercial Services Division • ClientCONNECT Software Integrations • SearchCONNECT Search Services • iTracs Trust Account Reconciliation Services • §1031 Exchange Services 803.799.8650 | southeast@invtitle.com

invtitle.com

10 / LARGEST LAW FIRMS 2022 Associates: 11 Of counsel: 1

SOUTH CAROLINA OFFICES: Charleston (27)

#20 Murphy & Grantland 4406 B Forest Dr. Columbia, SC 29206 803-782-4100 www.murphygrantland.com

26 ATTORNEYS Partners: 10 Associates: 13 Of counsel: 3

SOUTH CAROLINA OFFICES: Columbia (26)

#21 (tie) RPWB Law Firm

(Rogers, Patrick, Westbrook & Brickman) 1037 Chuck Dawley Blvd.

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Apr il 11, 2022

(803) 327-7800 www.mcgowanhood.com

23 ATTORNEYS Partners: 4 Associates: 19

SOUTH CAROLINA OFFICES: Columbia (9), Rock Hill (7), Charleston (4), Greenville (2), Pawleys Island (1)

#24 Fox Rothschild 2 W. Washington St., Suite 1100 Greenville SC 29601-2784 (864)751-7800 https://www.foxrothschild.com/

20 ATTORNEYS Partners: 12 Associates: 6 Of counsel: 2

SOUTH CAROLINA OFFICES: Greenville (20)

(843) 727-6500

#25

www.rpwb.com

Collins & Lacy

23 ATTORNEYS

1330 Lady Street

Partners: 18 Associates: 4 Of counsel: 1

Columbia, SC 29201

Mount Pleasant, SC 29464

SOUTH CAROLINA OFFICES: Mount Pleasant (18), Aiken (2), Charleston (2), Columbia (1)

#21 (tie) Moore & Van Allen 78 Wentworth Street

(803) 256-2660 www.collinsandlacy.com

18 ATTORNEYS Partners: 9 Associates: 6 Special counsel: 3

SOUTH CAROLINA OFFICES: Columbia (17), Myrtle Beach (1)

Charleston, SC 29401 (843) 579-7000 www.mvalaw.com

23 ATTORNEYS

#26 Barnwell Whaley

(Barnwell Whaley Patterson & Helms, LLC)

Members: 17 Associates: 3 Of counsel: 3

211 King St., Suite 300

SOUTH CAROLINA OFFICES: Charleston (23)

(843) 577-7700

Charleston, SC 29401

https://barnwell-whaley.com/

#21 (tie) McGowan Hood Felder & Phillips

17 ATTORNEYS Partners: 10 Associates: 5 Special counsel: 2

1539 Health Care Dr. Rock Hill, South Carolina 29732

SOUTH CAROLINA OFFICES: Charleston (17)

OPINION DIGESTS / 11

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ap ri l 11, 2022

Opinions S.C. COURT OF APPEALS

11

4TH U.S. CIRCUIT COURT OF APPEALS

S.C. COURT OF APPEALS

Arbitration Contract Formation – Car Purchase Financing – Special Delivery Agreement When they bought a car from the appellant-dealership, the respondent-buyers signed a stack of agreements, including a special delivery agreement. The special delivery agreement states that the dealership will attempt to assign the parties’ retail installment sales contract (RISC) on terms satisfactory to the dealership and, if the assignment is successful, “the [RISC] (and all other documents executed

by Buyer) shall be deemed delivered and fully binding.” Because the assignment never occurred, the parties never became bound by any of the other documents, including the arbitration provisions of the RISC and the dealership’s Arbitra-

tion Policies and Procedures.

We need not consider the trial court’s additional finding that the entire contractual arrangement was illusory. As modified, we affirm the trial court’s denial of the dealership’s motion to compel arbitration.

We have held car transactions like the one structured by the documents here— whereby the consumer accepts conditional delivery of the car but the entire deal is expressly conditioned on the dealer’s satisfactory assignment of the financing—do not amount to enforceable contracts if the assignment fails. While it may seem everyone to the transaction was nodding about arbitration, in the end no one agreed to it.

Simmons v. Benson Hyundai, LLC (Lawyers Weekly No. 011016-22, 6 pp.) (Garrison Hill, J.) Appealed from Spartanburg County Circuit Court (Derham Cole, J.) Bradford Neal Martin and Laura Wilcox Howle Teer for appellant; Warren Moise for respondents. S.C. App.

12 Domestic Relations Parent & Child – Custody – Mother’s Fitness – Deceased Parent’s Widow Where the defendant-Mother refused to believe her sons’ allegations that her husband hurt them, she minimized her husband’s conduct, and she had a pattern of failing to comply with the no-contact provisions of a DSS safety plan, Mother was not a fit parent due to her inability to care for the children’s well-being.

Because the children were not in the plaintiff-Stepmother’s sole custody for one year prior to the commencement of this litigation, in light of the controlling language in S.C. Code Ann. § 63-15-60(A)(2), we vacate the family court’s de facto custodian finding. Otherwise, we affirm the family court’s award of custody to Stepmother and its award of visitation to the children’s paternal grandparents.

The children’s Father was a police officer who was killed in the line of duty less than a year after he was awarded full custody. Nevertheless,

even before he was awarded full custody, Father consented to and fostered Stepmother’s parent-like relationship with the children. He worked long hours, and Stepmother acted as a caregiver during Father’s visitation periods.

The children have been residing full-time with Stepmother since at least 2015. Stepmother assumed the obligations of parenthood without expectation of financial compensation.

Finally, Stepmother has been in a parental role long enough to establish a bonded, parent-like relationship with the children. We agree with the family court’s finding that Stepmother was the children’s psychological parent.

The paternal grandparents have played an active role throughout the children’s lives, but certain instances in the record can be construed as unreasonably denying visitation because they demonstrate the inability of Mother to be flexible in rearranging the visitation schedule, even for events or trips that would be beneficial to the children. Providing a set schedule for the paternal grandparents’ visitation mitigates the risk of future litigation

SOUTH CAROLINA CHAPTER Check AVAILABLE DATES for the State’s Top-Rated Mediators at www.SCMEDIATORS.org

Ellen Adams Columbia (803) 255-0426

Jon Austen Charleston (843) 727-2271

Bob Calamari Myrtle Beach (843) 946-5660

Sam Clawson Charleston (800) 774-8242

Theron Cochran Greenville (864) 298-2721

Danny Crowe Columbia (803) 888-3936

Anne Culbreath Greenville (864) 672-3713

Cynthia Dooley Columbia (803) 227-4209

Vernon Dunbar Greenville (864) 239-6735

Earl Ellis Columbia (803) 260-0235

Eric Englebardt Greenville (864) 232-2329

Karl Folkens Florence (843) 665-0100

Amy Gaffney Columbia (803) 790-8838

Mills Gallivan Greenville (864) 271-5341

Harry Goldberg Columbia (803) 765-2935

Jack Griffeth Greenville (864) 349-2600

Mitch Griffith Beaufort (843) 521-4242

Rob Hassold Greenville (864) 325-7467

Richard Hinson Florence (843) 799-5599

Becky Laffitte Columbia (803) 231-7831

Regina H. Lewis Columbia (803) 790-8838

Bill Lyles Charleston (843) 696-6294

Stuart Mauney Greenville (864) 271-5356

David McCormack Charleston (843) 789-9153

Ben McCoy Columbia (803) 758-6000

Lee Plumblee Greenville (864) 235-2600

Darren Sanders Mt. Pleasant (843) 714-7661

Franklin Shuler Columbia (803) 227-4242

Lana Sims, Jr. Columbia (803) 995-4342

Ronald Stanley Columbia (803) 799-4700

Tom Stephenson Greenville (864) 370-9400

Matt Story Charleston (843) 577-2026

John Tiller Charleston (843) 722-3366

Walter B. Todd, Jr. Columbia (803) 753-7952

Ned Tupper Beaufort (843) 524-1116

Brad Waring Charleston (843) 277-3700

Derrick Williams Columbia (803) 929-0029

Thomas Wills Charleston (843) 727-1144

Check your preferred available dates online or schedule appointments directly with Academy Members, for free.

www.SCMediators.org

Need a top rated mediator or arbitrator outside of South Carolina? Please visit NADN’s free National Directory at www.NADN.org

12 / OPINION DIGESTS over visitation in this case, which has been in almost constant litigation for the majority of the children’s lives.

Affirmed in part and vacated in part.

Jacobs v. Zarcone (Lawyers Weekly No. 011-017-22, 22 pp.)

(Stephanie McDonald, J.) Appealed from Greenville County Family Court (Alex Kinlaw, J.) Bruce Byrholdt, Sarah Ganss Drawdy and Jeffrey Alton Phillips for appellant; Bruce Wyche Bannister, Luke Anthony Burke, James Calmes, Amanda Morris Gallivan and Robert Steve Ingram for respondents. S.C. App.

Criminal Practice MAR – Joint Trial – Unrelated Crimes – Exploitation of a Minor Petitioner was charged with several crimes relating to his interactions with a 12-year-old girl (Child). While law enforcement officers were executing a warrant related to those crimes, they discovered photos of underage girls on petitioner’s computer, including one of a child being anally assaulted. Petitioner’s trial counsel provided ineffective assistance when he failed to move to sever the charges related to Child from the charge of exploitation of a minor, which arose from the photos found on petitioner’s computer, which were not alleged to have been shown to Child.

We reverse the lower court and remand for a new trial.

Petitioner took photographs of Child and her family, none of which were alleged to be criminal in nature, and drafted text messages on his phone in which he inappropriately professed his feelings for her. Such conduct was most definitely “odd” and “creepy,” as described by trial counsel in his closing argument. However, the state’s introduction of the photograph from petitioner’s computer depicting an unrelated young girl being anally assaulted emphasized petitioner’s behavior was not just “odd” or “creepy,” but that of a sexual predator.

Petitioner’s substantive rights were violated because trying the charges together created the risk that the jury would wrongfully convict him on one set of charges based on evidence admissible only as to the other. Such prejudice could have been avoided had trial counsel sought a separate trial of petitioner’s exploitation charge because the highly prejudicial evidence—the photo and other provocative images from petitioner’s computer—would not have been admissible in a trial on the three charges related to Child and the information found on a cell phone that petitioner allowed Child to play with and that he later gave to Child’s cousin.

Although providing a phone with bikini and Speedo pictures to the Child and her younger sister was inappropriate, the photos did not depict “sexually explicit nudity” or “sexual activity.” Thus, it appears the jury’s guilty verdict on the charge of disseminating harmful material to a minor was likely based on the evidence admitted on the sexual exploitation charge.

At least one of the photos recovered from petitioner’s computer and email account most certainly depicted sexually explicit nudity or sexual activity, but there is no evidence that those photos were ever disseminated to Child or her sister. For these reasons, trial counsel’s failure to move for a separate trial on the sexual exploitation charge constituted deficient per-

formance that prejudiced petitioner.

Reversed and remanded.

Tyler v. State (Lawyers Weekly No. 011-018-22, 16 pp.) (Stephanie McDonald, J.) Appealed from Darlington County Circuit Court (Thomas Cooper, J.) Victor Seeger for petitioner; Alan McCrory Wilson, Megan Harrigan Jameson and Johnny Ellis James for respondent. S.C. App.

4TH U.S. CIRCUIT COURT OF APPEALS

Criminal Practice Prior drug convictions don’t qualify as ACCA predicate offenses Where the defendant was deemed a career offender based on three prior South Carolina convictions for possession of marijuana, but the state’s statute defined marijuana more broadly than Congress did, the district court erred in finding the state offenses qualified as predicate offenses.

Background

Soterio Lamar Hope pled guilty to one count of knowingly possessing a firearm and ammunition. The presentence report determined that Hope qualified for a mandatory minimum sentence under the Armed Career Criminal Act or ACCA, based on three prior South Carolina convictions for possession of marijuana with intent to distribute in proximity of a school.

Hope argued that his prior South Carolina convictions were not predicate offenses under the ACCA. The district court overruled Hope’s objection and imposed a minimum sentence of 15-years’ incarceration, followed by three years of supervised release.

Standard

The government alleges that Hope did not object during sentencing to the determination that his predicate offenses qualified as a “serious drug offense” under the ACCA. Thus, the government argues that Hope forfeited his ACCA claim and that the court is limited to plain error review.

The court disagrees and reviews the issue de novo because Hope properly and timely objected at sentencing that his prior South Carolina convictions were not serious drug offenses as a matter of law under the ACCA. Even if the court found that plain error review is appropriate here, moreover, the outcome would be the same as the court would correct the district court’s error.

Analysis

To prove that Hope committed an offense under S.C. Code § 44-53445(A), South Carolina had to establish: “(1) the defendant had actual control, or the right to exercise control over the [marijuana]; (2) he knowingly distributed or delivered the [marijuana]; (3) the substance upon analysis was, in fact, [marijuana]; and (4) the distribution occurred within a onehalf mile radius of the grounds of an elementary, middle, secondary or vocational school; public playground or park; or college or university.” At the time of Hope’s state convictions in May 2013, South Carolina defined marijuana as “all species or variety of the marijuana plant” and did not exempt hemp or differentiate marijuana by its THC levels.

Hope argues that the “controlled substance” element of his South Carolina offense, under § 445, is broader

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Apr il 11, 2022

than the federal definition of “controlled substance” because, after the 2018 Farm Bill and at the time of his federal sentencing, Congress did not define marijuana plants or its parts with less than 0.3% THC as marijuana. Second, Hope argues that the court should not use the modified approach because § 445 is indivisible as to drug type. The court agrees.

After concluding that § 445 is indivisible as to drug type, the court must determine whether South Carolina’s definition of “a controlled substance” matches the federal definition of “controlled substance” for purposes of qualifying as “a serious drug offense” under the ACCA. Since the court previously determined that § 445 is divisible as to drug conduct, then it stills employ the modified categorical approach to compare the South Carolina controlled substance schedule with the federal schedule.

As the government concedes, the federal drug schedules and South Carolina drug schedules plainly do not match. Since, at the time of Hope’s state convictions, South Carolina defined marijuana as “all species or variety of the marijuana plant,” and did not exempt hemp or differentiate marijuana by its THC levels, and because at the time of his federal conviction, Congress defined marijuana as not including hemp, the court holds that the South Carolina statute is broader than the federal definition. Thus, the court holds that the district court erred in finding that Hope’s state offenses qualified as predicate offenses for the ACCA enhancement.

Though the court’s categorical analysis could end here, it notes that even if § 445 were divisible by drug type, the modified categorical approach would yield the same outcome: there is no match. Finally, as noted above, even if the court were to adopt plain error review, the outcome would be the same.

Vacated and remanded.

Dissent

(Thacker, J.): I agree with the majority that the district court erred when it sentenced Hope pursuant to the ACCA. However, because in my view, we review for plain error, and the district court’s error was not plain, I would affirm the district court.

United States v. Hope (Lawyers Weekly No. 001-051-22, 44 pp.) (Roger Gregory, C.J.) (Stephanie Thacker, J., dissenting) Case No. 20-4420, March 9, 2022. From D.S.C. at Rock Hill (Mary G. Lewis, J.) Paresh S. Patel for Appellant. Thomas Ernest Booth for Appellee. 4th Cir.

Criminal Practice Conviction for co-conspirator’s use of gun during robbery stands Where the defendant could not be convicted under 18 U.S.C. § 924(c) for personally carrying a gun during a Hobbs Act conspiracy, his conviction for carrying a firearm during a crime of violence nevertheless stood because he was liable for his co-conspirator’s use of a firearm during a Hobbs Act robbery.

Background

A jury convicted Darrell Gillespie of various offenses stemming from a series of armed home-invasion robberies. On appeal, he challenges one of his convictions for carrying a firearm during a crime of violence in violation of § 924(c) and argues that his sentence was substantively unreasonable.

Hobbs Act

Gillespie’s primary contention on appeal is that his § 924(c) conviction for carrying a firearm during the robbery of Theodore Dues should be reversed because the district court incorrectly instructed the jury that Hobbs Act conspiracy constituted a crime of violence. This argument is reviewed for plain error because Gillespie did not object to the instruction before the district court.

Because this court held in United States v. Simms, 914 F.3d 229 (4th Cir. 2019) (en banc), that Hobbs Act conspiracy does not constitute a crime of violence, the district court’s contrary instruction was plainly erroneous.

But this is of no moment for Gillespie because the special verdict form affirmatively demonstrates his conviction was based on a valid Pinkerton theory under which he is liable for his co-conspirator’s use of a firearm during the Dues robbery, not a direct Hobbs Act conspiracy predicate.

A defendant cannot be convicted under § 924(c) for personally carrying a gun during a Hobbs Act conspiracy.

But if a conspirator commits a Hobbs Act robbery while carrying a gun, the conspirator has violated § 924(c). And under Pinkerton, their co-conspirators can be held vicariously liable for the § 924(c) violation so long as the robbery and use of the firearm were reasonably foreseeable to the defendant and in furtherance of a conspiracy. The defendant would still be liable even if, unlike Gillespie, the defendant was not present at the robbery and never touched a gun.

In United States v. Woods, 14 F.4th 544 (6th Cir. 2021), the Sixth Circuit addressed the same confusion between Pinkerton as a theory of vicarious liability and conspiracy as a predicate crime of violence and came to the same conclusion: “a theory of Pinkerton liability is still permissible as long as the underlying predicate offenses qualify as crimes of violence under the § 924(c) elements clause.” And each circuit to address the issue agrees.

It was precisely this still-valid theory of Pinkerton liability that the jury embraced when finding Gillespie guilty of the challenged § 924(c) conviction. Throughout the trial, the government alleged that Gillespie violated § 924(c) on two theories—first, that he had personally used a firearm during a Hobbs Act robbery; and second, that he was liable for his co-conspirator’s use of a firearm during a Hobbs Act robbery under Pinkerton. The jury instructions and special verdict questions likewise distinguished between these twin theories of liability. The special verdict form demonstrates that the jury selected the Pinkerton theory, foreclosing a finding of prejudice. The evidence at trial overwhelmingly supported this Pinkerton theory and demonstrated that Gillespie repeatedly participated in violent armed robberies of drug dealers as part of an extensive conspiracy.

Sentencing

Gillespie next argues that his bottom-of-the-guidelines-range sentence was substantively unreasonable because it resulted in a longer sentence than that received by his co-conspirators who opted to plead guilty and cooperate with the government. Gillespie’s argument fails for two reasons. First, a sentence is not “unreasonable under § 3553(a)(6) merely because it creates a disparity with a co-defendant’s sentence.”

Second, individuals who opt to go to trial are not similarly situated to those who plead guilty and cooperate

OPINION DIGESTS / 13

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ap ri l 11, 2022

with the government for purposes of § 3553(a)(6).

Affirmed.

United States v. Gillespie (Lawyers Weekly No. 001-052-22, 18 pp.)

(J. Harvie Wilkinson III, J.) Case No. 21-4146. March 8, 2022. From S.D. W.Va. at Charleston (Frank W. Volk, J.) John Hampton Tinney Jr. for Appellant. Monica D. Coleman for Appellee. 4th Cir.

Immigration No en banc hearing on Board of Immigration case Where a majority of the judges voted against rehearing en banc a case involving whether to grant Chevron deference to the Board of Immigration’s recent interpretation of § 1101(a)(43)(S), the motion for rehearing en banc was denied.

Background

A requested poll of the court failed to produce a majority of judges in regular active service and not disqualified who voted in favor of rehearing en banc. Chief Judge Gregory, Judge King and Judge Wynn voted to grant rehearing en banc.

Judge Wilkinson, Judge Niemeyer, Judge Motz, Judge Agee, Judge Diaz, Judge Thacker, Judge Harris, Judge Richardson, Judge Quattlebaum, Judge Rushing and Judge Heytens voted to deny rehearing en banc.

Rehearing en banc denied.

Dissent

(Gregory, C.J.): I respectfully dissent from this court’s denial of rehearing en banc on the issue of whether to grant Chevron deference to the Board of Immigration’s recent interpretation of § 1101(a)(43)(S), providing that an aggravated felony under the Immigration and Naturalization Act is “an offense relating to the obstruction of justice, perjury or subornation of perjury, or bribery of a witness.”

Pugin v. Garland (Lawyers Weekly No. 001-053-22, 10 pp.) (Per curiam) (Roger Gregory, C.J., dissenting) Case No. 20-1363. March 7, 2022. From the Board of Immigration Appeals. 4th Cir.

Insurance COVID-related business losses are not ‘physical loss’ Where a West Virginia business closed two of its art studio locations because of the governor’s COVID-19 executive order, its claim for lost business income and other expenses was denied because there was no material destruction or harm to its covered premises.

Background

In March 2020, Uncork and Create LLC operated a “creative events” business at two art studio locations, in Barboursville, West Virginia and in Charleston, West Virginia. On March 23, 2020, the West Virginia governor issued an executive order requiring that non-essential businesses in West Virginia “temporarily cease operations.”

In compliance with the closure order, Uncork closed its two art studios.

These closures caused Uncork to suffer “a substantial loss of business income” and other unspecified financial losses. When permitted to do so, Uncork re-opened its Charleston studio on June 11, 2020. However, Uncork permanently closed its Barboursville studio on April 24, 2020.

Uncork sought coverage for lost business income and other expenses resulting from The Cincinnati Insurance Company. In response, Cincinnati issued a letter denying Uncork’s claim, stating that there was no evidence showing a “direct physical loss or damage” at Uncork’s covered property.

Following this denial of coverage, Uncork filed a class action complaint against Cincinnati on behalf of itself and similarly situated plaintiffs. The district court granted Cincinnati’s motion to dismiss, reasoning that neither the closure order nor the Covid-19 virus caused a “physical loss or physical damage” to the covered property under the terms of the policy. The court concluded that although the pandemic and the closure order adversely affected businesses, “the unambiguous terms of the policy do not provide coverage for solely economic losses unaccompanied by physical property damage.”

Uncork later filed a motion to amend the judgment, or alternatively, certify the issue to the Supreme Court of Appeals of West Virginia. The district court denied the motion and the certification request. Uncork now appeals.

Analysis

Uncork contends that, pursuant to West Virginia law, Uncork’s inability to operate its art studios as intended due to the closure order and the COVID-19 virus qualifies under the policy as a “physical loss” to the covered property. Relying on Murray v.

State Farm Fire & Casualty Co., 509 S.E.2d 1, 17 (W. Va. 1998), Uncork asserts that “physical loss” can “exist in the absence of structural damage to the insured property.” According to Uncork, the district court misapplied the decision in Murray, erroneously concluding that the policy language unambiguously requires that the loss result from a physical alteration to the covered property. The court disagrees with Uncork’s position.

The policy language is plain and unambiguous. The need to repair, rebuild, replace or expend time securing a new, permanent property is a precondition for coverage of lost business income and other expenses. Any alternative meaning of the terms “physical loss” or “physical damage” that does not require a material alteration to the property would render meaningless this precondition to coverage for business income loss.

Contrary to Uncork’s contention, this plain understanding of the terms “physical loss” or “physical damage” is consistent with the West Virginia court’s decision in Murray. Nothing appearing in that court’s analysis suggests that a “physical loss” to property can occur without existing or impending “material destruction” or “material damage” to the covered property.

To the extent that the state court addressed the plaintiffs’ inability to use their homes, that loss inextricably was tied to the impending physical damage to all three homes.

Here, neither the closure order nor the COVID-19 virus caused present or impending material destruction or material harm that physically altered the covered property requiring policy’s coverage for business income loss and other expenses does not apply to Un-

cork’s claim for financial losses in the absence of any material destruction or material harm to its covered premises. The court notes that this holding is consistent with the unanimous decisions by other circuits, which have applied various states’ laws to similar insurance claims and policy provisions.

Affirmed.

Uncork and Create LLC v. The Cincinnati Insurance Company (Lawyers Weekly No. 001-054-22, 14 pp.) (Barbara Milano Keenan, J.) Case No. 21-1311. March 7, 2022. From S.D. W.Va. at Charleston (Irene C. Berger, J.) James Christopher Martin for Appellant. Daniel G. Litchfield for Appellees. 4th Cir.

Civil Practice Party can withdraw consent without showing good cause Where a party consents to the jurisdiction of the magistrate judge, but then seeks to withdraw it before any other party consents, it need not show good cause to withdraw its consent.

Background

A district court may refer a case to a magistrate judge if all parties consent. Malcolm Muhammad at first consented to the referral of his case to a magistrate judge in his suit against state prison officials for violating his constitutional rights. But before the defendants consented, Muhammad sought to withdraw that consent. The district court rejected Muhammad’s efforts, finding first that he needed good cause to withdraw his consent and second that Muhammad failed to show good cause.

Good cause

This appeal boils down to whether a party, who previously consented to a referral to a magistrate judge, must show good cause to withdraw that consent when the other parties have not yet consented to the referral. If the answer is yes, the district court’s determination that Muhammad failed to show good cause is reviewed for abuse of discretion. But if the answer is no, the court must decide whether Muhammad should have been allowed to withdraw his consent to magistrate jurisdiction.

LAWYER TO LAWYER / Directory

MEDIATIONS: TOM MILLIGAN

• OVER 30 YEARS OF EXPERIENCE • TRIAL LAWYER WHO HAS TRIED OVER 200 JURY TRIALS • CERTIFIED ARBITRATOR SINCE 1999 • CERTIFIED MEDIATOR SINCE 2001

PROFESSIONAL

CONVENIENT

OBJECTIVE

MILLIGAN & HERNS, PC

721 Long Point Road, Suite 401 Mt. Pleasant, SC 29464 843-971-6750 ❘ tom@milliganlawfirm.com

14 / OPINION DIGESTS The statute does not address a party’s withdrawal of consent before a transfer. Thus, it certainly does not impose a good cause standard for withdrawing consent. The only mention of good cause in 28 U.S.C. § 636 comes in subsection (c)(4). That subsection provides that a district court may vacate the transfer “for good cause shown on its own motion, or under extraordinary circumstances shown by any party.”

But § 636(c)(4) only applies once a case has been transferred to the magistrate judge. It does not apply to one party’s consent to referral when the other parties have not also consented.

That there is a good cause requirement to vacate a referral once the case has been transferred and not before is significant. Congress knew how to impose a good cause requirement in connection with its control over magistrate judge jurisdiction. Yet it did not impose that requirement for a party’s withdrawal of his or her consent before the other parties consented to magistrate judge jurisdiction. The court declines to judicially create a requirement Congress did not impose.

While there is limited authority on a party’s withdrawal of consent to the jurisdiction of a magistrate judge, two other circuits have addressed similar issues in different cases. Each supports the conclusion that good cause is not required. In sum, a party like Muhammad, who previously consented to the jurisdiction of the magistrate judge, but who sought to withdraw such consent before any other party consented, need not show good cause.

The district court erred in requiring Muhammad to show good cause to withdraw his consent.

Merits

Without a good cause requirement, the court sees no reason Muhammad should not have been allowed to withdraw his consent to the jurisdiction of the magistrate judge. Section 636(c) imposes no limitations on withdrawal before all parties consented. And Muhammad filed his motion well before the defendants consented and well before the court ordered the referral.

While difficult to imagine, perhaps there might be extraordinary circumstances when a party should not be allowed to withdraw its consent to magistrate jurisdiction before the other parties exercise their right to consent.

But none are presented here.

As a final matter, the court notes that Muhammad’s apparent rationale for withdrawing his consent—to avoid a particular magistrate judge— does not justify denying Muhammad’s withdrawal. While phrases like “judge-shopping” sound sinister, Muhammad had every right to withhold consent to the jurisdiction of a magistrate judge based on the risk of being assigned to a judge with whom he had a negative experience.

What’s more, the defendants are not, as they suggest, on higher ground.

They did not consent to the jurisdiction of the magistrate judge the first three times the district court issued a notice of their right to such a referral.

Then, the fourth time the notice was issued, they failed to consent within the prescribed time. In fact, the defendants waited almost nine months before consenting and then only did so after the magistrate judge issued a report and recommendation favorable to them. Pot, meet kettle.

Vacated and remanded.

Muhammad v. Fleming (Lawyers Weekly No. 001-055-22, 14 pp.)

(A. Marvin Quattlebaum Jr., J.) Case No. 20-6068. March 16, 2022. From

W.D. Va. at Roanoke (Pamela Meade Sargent, M.J.) S. Blake Davis for Appellant. Rohiniyurie Tashima for Appellees. 4th Cir.

Civil Practice Process for objection to proposed settlement explained Where a class member objects to a proposed settlement, it must first state its objection with specificity.

Then the settling parties must demonstrate that the proposed settlement satisfies the requirements of Fed. R. Civ. P. 23(a). The district court must balance both the class’s interests and the interests of objectors.

Background

After the district court preliminarily approved a settlement of a yearslong class action suit, one class member objected. The court delayed approval of the settlement and permitted the objector substantial discovery. Upon completion of that discovery, the court overruled the objection and approved the settlement. The sole objector now appeals.

Burden of proof

This court has never clearly described who bears what burdens when a class member objects to a proposed settlement. It does so now.

First, an objector to a class settlement must state the basis for its objection with enough specificity to allow the parties to respond and the court to evaluate the issues at hand. Second, the parties propounding the settlement, in addition to bearing the initial burden to show that the proposed class meets the Rule 23(a) requirements for certification and that a proposed settlement is fair, reasonable and adequate, must show that the objection does not demonstrate that the proposed settlement fails one of those requirements.

Third, the district court must protect the class’s interests from parties and counsel overeager to settle (who may deny absent class members relief that they would otherwise receive) and frivolous objectors (who may impede or delay valuable compensation to others). The district court may, in its discretion, grant an objector discovery to assist the court in determining an objection’s merit.

Here, the district court required the objector to specify and support its objection, while keeping the ultimate burden on the proponents of the settlement to demonstrate its fairness.

Thus, the objector argument that the court improperly placed upon it the burden of overcoming the settlement provides no basis for reversal.

Commonality

Pursuant to Rule 23(b)(3), the district court found that common questions “clearly ... predominate ... because the central question to be decided here is whether Banner and William Penn’s implementation of the COI rate increases breached the standardized policy language.” After the Allen Trust objected to these preliminary findings, the district court took the unusual step of permitting discovery.

After reviewing the information revealed in discovery, the district court stated at the final approval hearing: “it’s clear to me that the Allen Trust is within the ambit of the class,” and that “questions of law, in fact, are common to the class.” Moreover, “the common questions predominate over

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Apr il 11, 2022

any questions affecting only individual members.” This finding, made after the grant of discovery to the Allen Trust, did not constitute an abuse of discretion.

Typicality

At the preliminary approval hearing, the district court held “that the Plaintiffs’ fraud claims are typical of [the] settlement class because their claims arise from the Defendants’ same conduct.” And the court reiterated that holding at the final approval hearing, concluding that the Allen Trust’s claim did not defeat typicality because its asserted harm, the year-21 balloon payment, turned on unlawful COI charges—just like the Dickman class’s claims. The district court did not abuse its discretion in doing so.

Adequacy

The Allen Trust asserts that a conflict arises from the fact that, in the future, it may need to make a year-21 balloon payment if it wants to prolong its policy. But as the Dickman parties argue and as the district court found, this is entirely speculative. Because the notion that the Allen Trust does (or will ever) have a distinct claim is “merely speculative or hypothetical,” it cannot defeat adequacy.

Rule 23(e)(2)

In addition to its challenge to the district court’s decision to certify the Dickman class under Rule 23(a), the Allen Trust also argues that the court erred in approving the settlement under Rule 23(e)(2). The court disagrees.

Affirmed.

Concurrence

(Rushing, J.): On appeal, the Allen Trust argues that the Dickman plaintiffs, as former policyholders, cannot adequately represent the interests of current policyholders like the Allen Trust because their remedial goals are not aligned. But the Allen Trust did not advance this argument in the district court. I would hold the Allen Trust’s adequacy challenge forfeited and would not address its merits.

The 1988 Trust for Allen Children Dated 8/8/88 v. Banner Life Insurance Company (Lawyers Weekly No. 001-056-22, 25 pp.) (Diana Gribbon Motz, J.) (Allison Jones Rushing, J., concurring in part and concurring in the judgment) Case No. 20-1630. March 15, 2022. From D. Md. at Baltimore (Richard D. Bennett, S.J.) Jeven Robinson Sloan for Appellant. George Walton Walker III and Timothy J. O’Driscoll for Appellees. 4th Cir.

Civil Rights Student’s First Amendment suit reinstated Where a high school student alleged that he was suspended after expressing non-threatening factual views about a school shooting in Florida, the district court erred in dismissing his First Amendment claim. Schools cannot silence such student speech simply because it communicates controversial or upsetting ideas.

Background

Jonathan Starbuck brought this 42 U.S.C. § 1983 action against the Williamsburg James City County School Board asserting that his public high school suspended him in violation of the First, Fifth and 14th Amendments. The district court dismissed Starbuck’s complaint for failure to

state a claim on which relief could be granted.

Monell

The district court held that Monell v. Department of Social Services, 436 U.S. 658 (1978), limited municipal liability to occasions when the municipality’s express policy allegedly violated a constitutional right. However, the Supreme Court also explained in Monell that “local governing bodies ... can be sued directly under § 1983 ... where ... the action that is alleged to be unconstitutional implements or executes a ... decision officially adopted and promulgated by that body’s officers.”

Under Virginia law, the school board has final policymaking authority over short-term suspensions. This means that the school board’s actions regarding student suspensions can serve as “policies” for the purpose of municipal liability under Monell.

Moreover, when a final policymaker has the authority to review the decision of a subordinate, its approval of that allegedly unconstitutional decision can also give rise to liability under section 1983. Under this theory of liability, if the school board ratified the suspension of a student by subordinates, the school board would be liable for any deprivation of constitutional rights caused by that suspension.

The school board asserts three arguments in support of its view that Monell bars Starbuck’s claim. First, the board contends that Starbuck failed to raise this theory of municipal liability in his complaint and that he cannot do so for the first time on appeal. But examination of Starbuck’s pro se complaint reveals that he sufficiently set forth the facts that provided the basis for the legal theory he asserts against the school board.

Second, the board argues that Starbuck cannot rely on the board’s ratification of subordinate officials’ conduct to hold the board liable here because the board “did not simply ‘ratify’ the actions of the school employees who suspended” him. Whether it ratified the suspension or independently imposed it, however, the board’s act was sufficient to hold the school board liable for constitutional violations resulting from that act.

The board finally argues that its act ratifying Starbuck’s suspension does not constitute “the moving force” behind the constitutional violation. Neither the Supreme Court nor this court has ever held that initial involvement is required to hold officials with final policymaking authority liable as the “moving force” for ratification of the decisions of subordinates. Here it is clear that the school board’s act did constitute the moving force behind the asserted constitutional violation— the alleged punishment of protected speech.

First Amendment

According to his complaint, Starbuck only engaged in a factual conversation with his peers about a current event that is uniquely salient to the lives of American teenagers, a school shooting. Schools cannot silence such student speech on the basis that it communicates controversial or upsetting ideas.

The board relies on cases in which courts have “agreed that language reasonably perceived as threatening school violence is not constitutionally protected.” But Starbuck’s remarks, as described in his complaint (which must be viewed in the light most favorable to him), were non-threaten-

In your world – details matter.

At First Indemnity we understand that lawyers need a reliable partner in the insurance industry to provide the best possible defense against claims.

Our Lawyers Professional Liability Program is a proven leader in national specialty insurance.

Other law firm coverages include: • Lawyer’s Malpractice

• Cyber Liability

• Umbrella Coverage

• Surety Bonds

Your defense is our focus.

• Copyright, Patent & Trademarks

“Our business is to underwrite and bind PL policies for lawyers in partnership with prime carriers.”

– Andrew Biggio, CEO First Indemnity

Lawyers Professional Liability

See Video u email: abiggio@firstindemnity.net

fax: 781.595.2279

www.First Indemnity.net 781.581.2508 Boston • New York • Tampa • Chicago • Dallas • Los Angeles • Philadelphia

16 / OPINION DIGESTS ing statements about the tragedy that any student could have uttered in response to the news. Starbuck’s amended complaint states a First Amendment claim.

Fifth Amendment

The Fifth Amendment’s Due Process Clause does not apply to municipalities, but only to federal actors.

Moreover, to the extent that Starbuck seeks to invoke the protections of the Fifth Amendment’s Self-Incrimination clause, he has not alleged that school officials “compelled [him] in those proceedings to furnish testimonial evidence that might incriminate [him] in later criminal proceedings.”

And to the extent Starbuck invokes the Fifth Amendment’s Double Jeopardy Clause, that clause applies to criminal cases, not school discipline proceedings.

14th Amendment

Starbuck argues that the board’s shift in its description of the reason for his suspension (from self-protection and threats to the prevention of classroom disturbance) violated his 14th Amendment right to due process. But that is not what happened here.

The board did not even attempt to change the factual basis for the suspension—it just used slightly different words to describe that basis. There is no unconstitutional bait-and-switch here because both parties always understood what particular speech constituted the basis for Starbuck’s shortterm suspension. Moreover, the board gave Starbuck “an opportunity to explain his version of the facts” and “to characterize his conduct and put it in what he deem[ed] the proper context.”

Affirmed in part and reversed in part.

Starbuck v.

Williamsburg James City County School Board (Lawyers Weekly No. 001-057-22, 14 pp.) (Diana Gribbon Motz, J.) Case No. 20-2334. March 15, 2022. From E.D. Va. at Newport News (Mark S. Davis, C.J.) Benjamin Lerman and Jacob Larson for Appellant. Jeremy David Capps for Appellee. 4th Cir.

Constitutional Denial of church’s zoning requests didn’t violate law Where a church was aware of zoning restrictions when it purchased property, it could not have had a reasonable expectation of religious land use, dooming its claim under the Religious Land Use and Institutionalized Persons Act or RLUIPA. Because the land use restrictions were rationally related to the government’s interest in protecting the region’s watershed, the church’s free exercise claim was rejected.

Background

The court addresses whether Montgomery County, its council and its chief executive complied with the RLUIPA and the Free Exercise Clause of the First Amendment when it denied water and sewer category change requests or WSCCRs, submitted on behalf of Canaan Christian Church, when Canaan sought to purchase and develop five neighboring pieces of land from the landowners. The district court denied appellants’ motion for summary judgment and granted summary judgment to appellees.

Substantial burden claim

The court utilizes a two-step analysis to determine whether or not a

substantial burden is imposed: (1) whether the impediment to the organization’s religious practice is substantial and (2) whether the government or the religious organization is responsible for the impediment.

There is undisputed evidence of an unmet religious need. The burdens described by appellants are an overcrowded facility, the need for multiple services to accommodate the number of members and a lack of space for programs. And it is uncontested that if Canaan wishes to build a church of this size with public sewer access, it would need to find a different property.

However, appellants have not presented evidence that the restriction on religious use is absolute. To the contrary, the county indicated during and after its review of the Canaan WSCCRs that alternatives might have been more successful. Nonetheless, appellants argue the restriction on religious use in this case is absolute despite the fact that the county considered and approved a smaller facility serviced by septic on the property.

The fact that there are practical and legal restrictions preventing a larger development on the property does not amount to a RLUIPA substantial burden violation. Therefore, appellants do not demonstrate that they satisfy the first step in the analysis.

Appellants also cannot demonstrate they had a reasonable expectation of religious land use. Because appellants knowingly entered into a contingent sale agreement for property that was expressly excluded from receiving public sewer access under the master plan, they could not have had a reasonable expectation of the county approving their WSCCRs for public sewer access.

Equal terms claim

The 11th Circuit has held that “a plaintiff bringing an as-applied Equal Terms challenge must present evidence that a similarly situated nonreligious comparator received differential treatment under the challenged regulation.” This “similarly situated nonreligious comparator” analysis has been favored by several other circuits, “with most holding that a comparator for an equal terms claim must be similarly situated with regard to the regulation at issue.” The court finds this reasoning persuasive.

Appellants fail to identify a comparator subject to the BCNP that was treated more favorably than Canaan. The history of denied or deferred WSCCRs for both religious and secular developments on the property demonstrate the county’s consistency in applying the master plan when reviewing applications for water and sewer extensions.

Free exercise claim

The BCNP is facially neutral and generally applicable, and appellants fail to offer evidence that the county had a discriminatory motive that would trigger strict scrutiny. Therefore, rational basis is the appropriate level of review here.

Appellants have not shown that BCNP is not rationally related to a legitimate governmental interest. To the contrary, as the district court concluded, the county’s plan to protect the “sensitive” “tributary headwaters, which originate in the [property]” is a legitimate interest and the BCNP furthers that interest by restricting development to prevent damage to the watershed. Thus, the county’s actions withstand rational basis review.

Affirmed.

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Apr il 11, 2022

Concurrence

(Richardson, J.): I write separately for two reasons. First, to point out a few minor concerns with the majority’s reading of the equal terms provision of the RIULPA. Second, to expand on the Free Exercise analysis because I believe there is a complication that makes this a closer question than it may at first seem. Neither difference changes my view of the outcome, and I agree that all of Canaan’s claims were properly dismissed.

Canaan Christian Church v.

Montgomery County Maryland (Lawyers Weekly No. 001-058-22, 44 pp.) (Stephanie Thacker, J.) (Julius N. Richardson, J., concurring in the judgment) Case No. 20-2185. March 22, 2022. From D. Md. at Greenbelt (Thedore D. Chuang, J.) Roman Paul Storzer for Appellants. Howard Ross Feldman for Appellees. 4th Cir.

Criminal Practice Record supported ‘course of conduct’ sentence Where the record showed the defendant was guilty of being a felon in possession of firearms three times over the course of nine months, the district court did not err when it concluded the three incidents qualified as the same course of conduct and were thus relevant for sentencing purposes.

Background

Justice McDonald challenges his 162-month sentence for possessing with the intent to distribute cocaine base and being a felon in possession of ammunition.

Possession

The district court concluded that McDonald possessed a firearm during each of the incidents based on a preponderance of the evidence. Starting with the gas station shooting, McDonald expressly admitted at sentencing that he was the individual pictured in the video surveillance footage possessing and discharging the firearm.

As such, the district court did not clearly err when determining that he possessed a firearm on this occasion.

Next, as for the fleeing-on-foot incident, the firearm was discovered in a dry, clean and rust-free state—which is particularly instructive considering it had rained earlier that day—approximately five to 7 feet from where McDonald was apprehended and near a cellphone and key to the vehicle he had been driving. Based on these facts, the district court did not clearly err when finding that McDonald possessed the firearm.

Finally, during the Taco Bell episode, officers recovered a firearm in the glove compartment of a vehicle in which McDonald was a passenger. He subsequently claimed possession of the firearm, accurately described it to officers and continued to claim ownership of it during the booking process.

Although he later denied ownership at sentencing, the district court found that testimony not credible. Based on these facts and the district court’s credibility determination, the court did not clearly err when concluding that McDonald possessed this firearm.

Course of conduct

Offenses may qualify as the “same course of conduct” “if they are sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses.”

This court has previously recognized (albeit in unpublished precedent) that “a defendant’s repeated possession of uncharged firearms during a brief period of time supports a ‘relevant conduct’ enhancement.” Several other circuits have also persuasively arrived at the same conclusion under similar circumstances.

The events here were both regular and sufficiently connected temporally, as McDonald engaged in a particular pattern of behavior over a limited period of time: three instances of felonin-possession conduct over the course of nine months. Accordingly, the district court did not err when concluding that the three incidents qualified as the same course of conduct and thus relevant conduct for sentencing purposes.

Sentencing

McDonald first contests his base offense level under U.S.S.G. § 2K2.1(a) (3), which provides for a base offense level of 22 if the offense involved a “semiautomatic firearm that is capable of accepting a large capacity magazine ... and the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense.”

McDonald contends that the district court erred by referencing the photograph of the video surveillance footage from the gas station shooting to find that the firearm he utilized had a large capacity magazine.

But McDonald’s understanding of § 2K2.1(a)(3) is too narrow. The district court was not required to find that the firearm from the gas station shooting utilized a large capacity magazine for this base offense level to apply. Rather, the court was required to find only that at least one such firearm was present during McDonald’s offense in toto, which included all instances of relevant conduct.

The record demonstrates that two firearms with large capacity magazines were involved in McDonald’s offense: the firearm recovered during the fleeing-on-foot incident and the firearm discovered during the Taco Bell episode. Accordingly, the district court did not clearly err when applying a base offense level of 22.

Next, McDonald challenges the enhancement he received “if the offense involved” three to seven firearms. Based on this court’s foregoing analysis, it is apparent that McDonald’s offense involved three firearms.

Finally, McDonald contests the connection-with-another-felony-offense enhancement, which provides for an enhancement “if the defendant used or possessed any firearm or ammunition in connection with another felony offense.” The firearm assisted McDonald in facilitating the drug trafficking offense. Accordingly, the court finds no error in the application of this enhancement.

Section 3553(a) factors

McDonald’s remaining argument is that the district court failed to adequately address the sentencing factors under § 3553(a), namely his history and characteristics as related to his upbringing. The record directly refutes this argument.

Affirmed.

United States v. McDonald (Lawyers Weekly No. 001-059-22, 28 pp.) (G. Steven Agee, J.) Case No. 204262. March 21, 2022. From M.D.N.C. at Greensboro (William L. Osteen Jr., J.) Amos Granger Tyndall for Appellant. Julie Carol Niemeier for Appellee. 4th Cir.