South Carolina Lawyers Weekly November 22, 2021

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VOLUME 19 NUMBER 24 ■

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NOVEMBER 22, 2021 ■ $8.50

Same-sex couple didn’t form common law marriage

IN MEDIATION, NIGHT TIME CAN BE THE RIGHT TIME

■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com Ask any mediator and they’ll tell you that being the third wheel in a party of (at least) two is not always easy. It’s their job to get the party started and keep the party going, even when the ones they

showed up with might be tired of dancing.

On occasion for mediators, that means dancing until they almost drop.

“Sometimes, mediations break down or maybe they settle before lunch,” said Tom Traxler of Carter, Smith, Merriam, Rogers & Traxler

■ BY DAVID DONOVAN david.donovan@sclawyersweekly.com

in Greenville. “Sometimes they go into the night. When I leave the house in the morning, I tell my wife, ‘I have a mediation today and I will see you when I see you.’”

Suppositional overtime notwithstanding, facilitating anoth-

A same-sex couple that ended their relationship before the U.S. Supreme Court struck down South Carolina’s law prohibiting same-sex marriage lacked the requisite intent and mutual agreement to enter a legally binding common-law marriage, the South Carolina Supreme Court has ruled, affirming the result of a 2020 decision by the state’s Court of Appeals on slightly different grounds.

Common-law marriages themselves have since been abolished in South Carolina, after the state’s Supreme Court ruled in July 2019 that the state’s relationship with them had run its course and the arrangement wasn’t working anymore. That ruling was strictly forward-looking and didn’t disturb any common-law marriages that had previously been created, but the latest ruling means that very few same-sex couples will be able to prove the existence of a common-law marriage in South Carolina.

Cathy Swicegood filed an action in March 2014 seeking an order recognizing the existence of a common-law marriage with Polly Thompson, equitable division of marital property, and other relief. Swicegood alleged that she and Thompson cohabited as sole domestic partners for over thirteen years until December 2013, agreed to be married, and held themselves out publicly as a married couple.

Thompson moved to dismiss, arguing that the parties lacked the capacity to marry because South Carolina had had forbidden same-sex marriage for the entirety of their relationship.

A Greenville County Family Court

See Dance Page 8 ►

See Marriage Page 8 ►

Exemplary Evidence: Exciting advances in IP theft investigations ■ BY JOHN J. CARNEY AND KEVIN V. BLUML BridgeTower Media Newswires Are you concerned your company’s intellectual property or proprietary data may have been misappropriated or otherwise lost or shared with unauthorized parties, intentionally or negligently?

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Three scenarios for proving IP theft

Documents must be copied or sent somewhere to make unauthorized use of them. This can be done in a variety of ways from simple printing of documents and taking the paper copies to copying the documents to several devices or storage options including, but not limited to: USB removable storage devices such as thumb/ See IP theft Page 7 ►

INSIDE VERDICTS & SETTLEMENTS

VERDICTS & SETTLEMENTS

CASE LAW

Judge awards $32.4M in RICO, defamation case

Defective tire leads to $2M settlement

S.C. court can hear worker’s suit despite forum selection clause

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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 N ove m be r 22, 2021

NEWS BRIEFS

Greenville may buy new home for municipal court GREENVILLE (AP) — Authorities in Greenville are looking at the possibility of buying and renovating a large building as a new home for its police and fire departments and municipal court.

Greeneville’s city spokesperson says in an emailed new release that the building is now owned by the Daniel International Corporation.

The Greenville News reports that the cost is $27 million.

The release cites several reasons for the proposed move, with officials pointing to the age of current facilities shared by city and county departments, as well as the need for more space for city and county facilities.

For instance, the release notes that Greenville’s Municipal Court building is more than 80 years old and in poor condition. It lacks parking and it flooded in August as a result of a sewer backup.

“It’s as much about more space for us as it is about improving the quality of the space,” said Judge Matthew Hawley. “This building was constructed right after World War II. We have two courtrooms here on this property and an administrative wing. We’ve been successful in using the two courtrooms, but we can use a small third room courtroom for a jury panel, sequestration and jury selection.”

Man’s death penalty appeal may turn on photos of 5 dead kids COLUMBIA (AP) — South Carolina Supreme Court justices questioned whether a prosecutor offered to show photos of five dead children to a jury to unfairly upset them so they would sentence the children’s father to death.

The photos of the children were entered as court records at the last moments of the trial just to shock jurors, argued attorney Robert Dudek, who wants Jones’ 2019 conviction on five counts of murder and death sentence overturned. The images were taken nine days after the children were killed and after Timothy Jones tried to hasten their decomposition.

“I’ve done this for over 30 years and those are about impossible to look at.

They are horrific under any definition.

Here you have 12 jurors off the street seeing photographs of dead children,” said Dudek, who is chief appellate defender for the South Carolina Commission on Indigent Defense.

Solicitor Rick Hubbard, making a rare appearance by a trial prosecutor before the state’s highest court to justify his own actions in Jones’ trial, said he has learned jurors lose trust in a prosecutor when he shows them horrific photos on his terms.

That’s why Hubbard said he told them in his closing statement if they needed further proof, the envelope with the photos of the children in garbage bags were in the jury room and “if you have any doubt for the appropriate sentence for that man, look in the bag!”

“They get offended at me when I hold up photos that are hard,” Hubbard said. “So I let them do it on their time.”

The justices will rule at a later date.

Jones killed his five children, ages

1 to 8, in their Lexington home in August 2014. He had custody of them after divorcing his wife.

Prosecutors said after he killed his 6-year-old son, Nahtahn, for defiance, he decided to kill the rest of the family to cover up the crime.

Jones drove around the Southeast with their bodies for nine days before dumping them in garbage bags on the side of an Alabama dirt road.

Jones’ lawyers argued he was not guilty by reason of insanity. They said he didn’t know right from wrong either morally or legally because his brain was broken by undiagnosed schizophrenia amplified by stress from a failed marriage and struggling to raise his children alone.

The photos were just one of a halfdozen reasons Jones’ lawyers want his conviction and sentence tossed out.

They also said a judge should have told jurors that being found not guilty by reason of insanity didn’t mean Jones would walk out of the courthouse a free man. Instead, he would be kept in custody for several months or up to the rest of his life if his mental condition never improved.

Attorneys for Jones said a judge should have allowed jurors to see a videotape of Jones’ mother, who had been ordered to remain in an out-ofstate mental hospital for decades because of her schizophrenia, a diagnosis her son was aware of and made him angry and nervous.

Jones’ lawyers also said the case should be overturned because Circuit Judge Eugene Griffith refused to allow testimony from a defense expert witness who planned to say a prosecution witness erred when scoring a physiological test that found Jones was exaggerating his symptoms of mental illness.

But much of the arguments on Nov. 9 centered around the photos of the dead children. Defense attorneys tried to show them to the jury before they found Jones guilty, saying the condition of the bodies helped show he was insane. Prosecutors objected, and the judge agreed.

Dudek said the defense lawyers also figured prosecutors would wait and use the photos in final moments before the jury started deliberating whether Jones should die for his crimes and wanted to lessen their impact by using them earlier in the trial.

Justices asked Hubbard why he asked to include the photos after having Dr. Janice Ross testify in grim detail to the conditions of the bodies — including saw marks on his 2-year-old son’s leg — and what Jones had done to try and hasten their decomposition.

“The way he treated those bodies with contempt. We had Dr. Ross say here was a disarticulated leg, referring to bag three with Gabriel, the 2-yearold,” Hubbard answered. “But you had to look to see what she meant.”

Before Hubbard spoke, Associate Justice John Kittredge wondered aloud why the prosecutor risked what appeared to him to be an airtight case. Kittredge cited a 2010 ruling by the state Supreme Court where they warned prosecutors that submitting photos of a Spartanburg couple who were beaten to death and burned by a man pushed the outer limits of what judges should allow.

“Stop it! Stop this nonsense,” Kittredge said. “The pathologist testified in great detail as to what the pictures depicted, but we just got to throw the autopsy pictures in there to stir the pot. I don’t know what it is going to take to stop this.”

BAR DISCIPLINE

ROUNDUP Attorney: William E. Hopkins Jr. Location: Pawleys Island Bar membership: Member since 1993 Disciplinary action: An order disbarring Hopkins was withdrawn, and a substitute order suspending him from the practice of law for three years was entered on Nov. 10. The suspension is retroactive to July 7, the date of the now-withdrawn order.

Background: Hopkins admitted that he transferred money from his trust account to cover payroll and operating expenses for his law firm from Nov. 30, 2017, to July 13, 2018, in the total amount of $95,981.46. Hopkins acknowledged that he was using client money to keep his law firm afloat and states he always intended to repay the money. He began to repay the trust account on June 26, 2018, and completely repaid the account on Sept. 30, 2018. The trust account has been reconciled, and all monies are accounted for. Hopkins was disbarred on July 7, but the South Carolina Supreme Court granted his petition for rehearing following the discover y that his disbarment was ordered without the benefit of existing mitigating evidence, which was submitted to the Office of Disciplinary Counsel but which ODC

Inmate serving life gets $10K payout for chemical deluge ST. GEORGE (AP) — An inmate serving a life sentence has received a $10,000 settlement in a lawsuit alleging he “unjustifiably suffered” while jailed in 2013 at the Lieber Correctional Institution in South Carolina.

The lawsuit, filed in 2016, alleges that “without cause or provocation” corrections Officer Grealin Frazier fired chemical munitions through the lunch-tray flap of a holding cell, after an inmate asked him for lunch, WCSC-TV reported.

Michael Gibert, who was also in the holding cell at the time along with two other inmates, claims Frazier’s action unleashed a “toxic gas similar to, but stronger, than mace,” burning the eyes, noses, mouths and lungs of all four inmates inside.

Gibert claims due to Frazier’s actions he required both medical testing and psychological counseling.

Court records indicate he requested the $10,000 settlement check, distributed earlier this year by the South Carolina Insurance Reserve Fund, be given to his mother. Gibert is currently serving his sentence in another state prison in Marlboro County.

According to the South Carolina Criminal Justice Academy, Frazier is no longer employed by the South Carolina Department of Corrections. The department accused him of misconduct in 2015, although it’s unclear if that accusation is related to the matter alleged in the lawsuit. The misconduct accusation was expunged in 2019.

Hugh Leatherman, stalwart state senator, dies at 90 COLUMBIA (AP) — State Sen. Hugh Leatherman, South Carolina’s oldest and most powerful state lawmaker, died on Nov. 12 at the age of 90.

failed to provide to the Commission on Lawyer Conduct or to the Supreme Court.

Previous discipline: None Attorney: Elizabeth Jean Stanley Location: Conway Bar membership: Member since 2017 Disciplinary action: Suspended from the practice of law until further order on Nov. 15 Background: The Office of Disciplinary Counsel asked the Supreme Court to place Stanley on interim suspension pursuant to Rule 17(c) of the Rules for Lawyer Disciplinary Enforcement, and the court ordered that Stanley’s license to practice law in the state be suspended until further order. It was further ordered that a special receiver be appointed to assume responsibility for her client files and law office accounts to protect the interests of her clients.

Previous discipline: None All information contained in the Bar Discipline Roundup is compiled and edited

by Lawyers Weekly editor in chief David Donovan. He can be reached at david. donovan@sclawyersweekly.com.

Leatherman died at his home in Florence, his office said, after being diagnosed with an inoperable cancer.

As he entered hospice care last month, Leatherman’s staff began notifying lawmakers that the nonagenarian Republican had been hospitalized with severe abdominal pain, and that doctors discovered the cancer while removing parts of his intestine.

“Ever the stubborn optimist,” Leatherman continued to work, drafting legislation and receiving budget briefings for the upcoming legislative session, according to a family statement.

“While his passing brings us great sorrow, we take solace and joy knowing that up until his last days, he was active in the Florence community and continued serving the people of Florence and South Carolina,” they wrote.

Calling Leatherman “a powerful force for the progress and prosperity of our people,” Gov. Henry McMaster said in a statement he would order flags lowered in Leatherman’s honor as soon as funeral arrangements were announced.

Leatherman was in his 11th term and among the longest-serving lawmakers in South Carolina’s Legislature. First elected to the Senate in 1980 as a Democrat, he later ran unsuccessfully for governor before switching parties in the 1990s, one of a number of lawmakers who did so as Republicans gained dozens of seats in Congress.

Leatherman soon assumed the chairmanship of the Senate Finance Committee, and in a state where the governor has less control, Leatherman was long considered South Carolina’s most powerful politician for his dominance over the state budget.

Leatherman also sat on a number of fiscal oversight boards, including the State Fiscal Accountability Authority and the Joint Bond Review Committee. A new port terminal in Charleston bears his name.

Leatherman played a key role in S e e N e w s b r i e f s P a g e 10 ►

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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 Novem ber 22, 2021

Judge awards $32.4M in RICO, defamation case ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com A man who alleges that he was extorted and defamed by a Slovak businessman has been awarded $32.4 million default judgment by a federal judge who found the businessman liable on two counts of violating the Racketeer Influenced and Corrupt Organization (RICO) Act and one count of defamation.

The plaintiff, Zdenek Bakala, is a dual citizen of the Czech Republic and the United States and owns a home in Hilton Head. Bakala contends that his fight against illiberalism and corruption in his home country has made him a target for harassment by reactionary forces.

In a Sept. 20 order, U.S. District Judge David Norton wrote that Pavol Krupa, a close ally of the Czech President Miloš Zeman, had perpetuated an “international smear campaign” against Bakala in an “undisguised attempt to extort money” from him.

Norton found that Krupa began his campaign of “harassment, defamation, and malicious interference” with Bakala’s family and his commercial and philanthropic relationships in 2016 in Europe.

In 2017 he offered to cease the campaign if Bakala paid him the equivalent of around $23 million in U.S. dollars and threatened to intensify and escalate the campaign by bringing it to the United States if Bakala didn’t meet his demands.

When Bakala refused to pay, Krupa made good on his threats, enlisting the aid of Crowds on Demand, a California-based company that employs paid actors to stage “protests” on clients’ behalf.

The actors appeared at Bakala’s home on Hilton Head Island and outside of the school attended by his children there, carrying signs and chanting slogans accusing Bakala of being a criminal, a fraud, and the “Scammer of the Decade.” Similar performances were staged near the offices of businesses with which Bakala was affiliated in New York and Nebraska.

Krupa’s campaign also included publishing numerous false allegations in Europe and the U.S. that Bakala was a criminal and a scammer, inciting threats of violence against Mr. Bakala and his family, and filing baseless criminal complaints against Bakala, Norton Marshall Winn wrote.

The harassment stopped after Bakala filed his lawsuit. Krupa was initially represented by U.S. attorneys, but later fired his lawyers and proceeded pro se. Eventually, Krupa, who “treated this Court and the rules of procedure with the same disdain and contempt he showed for the rights of Mr. Bakala … appears to have Wallace simply lost interest,” Norton wrote, Lightsey leading to the default judgment against him. The judgment included $25,906,146.94 in actual damages, including trebled damages and attorneys’ fees and costs under RICO, plus $6,500,000 in punitive damages.

Marshall Winn, Wallace Lightsey, and Rachael Anna of Wyche in Greenville, Spartanburg, and Rachael Anna Columbia represented Bakala, along with Andrew Shapiro, Carl Hennies, and Margaret Haas of Quinn Emanuel in Chicago and Houston. Winn, Bakala’s lead counsel, said that he was pleased with the order.

“We view it as a positive step in repairing the damage inflicted by Krupa’s years-long campaign to intimidate, defame and extort our client,” Winn said.

Winn said that a lengthy investigation by Czech authorities also found that Krupa’s allegations that

Defective tire leads to $2M settlement ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com A family that suffered a host of serious injuries in a rollover crash that was caused by a defective tire on a recently purchased used SUV has settled a lawsuit for $2 million, the family’s attorneys report.

Ray Doumar and Bettis Rainsford of Doumar Rainsford in Augusta, Georgia, and Austin Crosby of Peters Murdaugh Parker Eltzroth & Detrick in Hampton represented the plaintiffs, a family of six including two adults and four minor children who were injured in the crash, which hapRay Doumar pened on Interstate 20.

Pursuant to a confidentiality agreement, many details of the case, including the names of the parties and the venue and the identities of the defendants’ attorneys, were withheld.

The attorneys said that their clients purchased the used Ford Explorer just three months beBettis fore the crash and that they had Rainsford no idea that one of the tires contained manufacturing defects, design defects, and was “too old to still be in operation.”

“SUVs are particularly susceptible to rollovers as the result of tread separations,” Crosby said.

The attorneys said that several occupants were ejected when the tire’s tread separated, but Crosby Austin Crosby declined to comment on the cause of the tread separation, citing ongoing cases related to the crash.

The plaintiffs, Crosby said, are pursuing cases against the tire and vehicle manufacturer.

Most of the family’s policy-limit settlement will

SETTLEMENT REPORT — NEGLIGENCE/BREACH OF WARRANTY

Amount: $2 million Injuries alleged: Traumatic brain injury, post-traumatic stress disorder, and multiple orthopedic injuries Case name: Withheld Court: Withheld Date of settlement: September 2021 Attorneys for plaintiff: Ray Doumar and Bettis Rainsford of Doumar Rainsford in Augusta, Georgia, and Austin Crosby of Peters Murdaugh Parker Eltzroth & Detrick in Hampton Attorneys for defendant: Withheld go toward its medical bills, which total more than $1.5 million.

The 38-year-old father suffered a traumatic brain injury (TBI) that has severely affected his mental and motor function.

The 36-year-old mother suffered a severely broken elbow that required several surgeries, screws, and a plate. She has permanent loss of range of motion and psychological trauma.

The 17-year-old son suffered abrasions and road rash and has undergone extensive psychological treatment for post-traumatic stress disorder (PTSD).

The 13-year-old daughter suffered a fractured sternum, compression fractures to her spinal column, lacerations, and has undergone counseling for PTSD. The 5-year-old daughter suffered a TBI, lacerations, and insomnia and anxiety arising from PTSD. “All six family members are still treating and are expected to do so into the foreseeable future,” the plaintiffs’ attorneys wrote in an email to Lawyers Weekly.

VERDICT REPORT — RICO/DEFAMATION

Amount: $32.4 million Injuries alleged: Damage to professional reputation, costs of litigation, emotional distress Case name: Zdenek v. Pavol Krupa, Adam Stewart, and Crowds on Demand Court: U.S. District Court for the District of South Carolina Case No.: 9:18-cv-02590 Judge: David Norton Date of verdict: Sept. 20 Attorneys for plaintiff: Marshall Winn, Wallace Lightsey, and Rachael Anna of Wyche in Greenville, Spartanburg, and Columbia, and Andrew Shapiro, Carl Hennies, and Margaret Haas of Quinn Emanuel in Chicago and Houston Attorneys for defendants: None Bakala had bribed officials to purchase a major state-owned asset and bilking investors out of their money were “entirely baseless.”

“Collectively, these outcomes vindicate Mr. Bakala while exposing the lengths to which Krupa was willing to go,” Winn said. “Mr. Bakala can take comfort from the fact this ruling will surely prevent others from falling prey to these sorts of tactics.”

The firm said that it intends to pursue collection in both the U.S. and in Europe and believes that Krupa has assets that Bakala will be able to reach to collect on the judgment.

According to court records, Bakala reached a settlement with Crowds on Demand, which was represented by Amanda Bradley of McAngus Goudelock & Courie in Greenville and Trudy Robertson of Moore & Van Allen in Charleston. Neither attorney immediately responded to a request for comment.

S.C. court can hear worker’s suit despite forum selection clause ■ BY DAVID DONOVAN david.donovan@sclawyersweekly.com An employment contract that gave Texas’s courts jurisdiction over any disputes between a Greenville man and his employer didn’t require the employee to bring his dispute over unpaid wages in Texas’s courts or preclude him from filing suit in South Carolina for alleged violations of state law, the South Carolina Court of Appeals has ruled.

Matthew Rowe formed Covalent Chemical, which was incorporated in Texas and headquartered in North Carolina. In 2015 Rowe offered Glenn Howell, who lived in Greenville, a job as a sales representative. The two men signed an employment contract which provided that the contract would be governed by the law of Texas, and that parties agreed to the jurisdiction of that state’s courts.

During his employment at Covalent, Howell’s primary sales territory was South Carolina, and he never traveled to Texas except to attend a single trade show.

In 2018, Howell sued Rowe and Covalent in Greenville County Circuit Court seeking relief under South Carolina’s Payment of Wages Act, alleging that the company had failed to pay him compensation he was owed. Letitia H. Verdin granted the defendants’ motion to dismiss on the grounds that South Carolina was an improper venue.

Howell appealed, arguing that the plain language of the forum selection provision didn’t require the parties to litigate their contractual See Forum Page 7 ►

4 / 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 N ove m be r 22, 2021

Reexamining retention strategies in the ‘Great Resignation’ era ■ BY KAREN NATZEL BridgeTower Media Newswires There’s considerable consternation around the “Great Resignation.”

This past spring, we witnessed job openings at an unprecedented 9.3 million. In August, the U.S. Bureau of Labor Statistics announced that “4.3 million Americans, or 2.9 percent of the entire workforce, quit their jobs,” according to National Public Radio.

One common thread in this workforce movement is a need to reassess what matters most. The pandemic and the rise of remote work have altered how we view our lives, UC Berkeley economist Ulrike Malmendier writes. This kind of revolutionary soul searching demands our attention and shapes our choices.

People are leaving their jobs for a variety of reasons—sometimes toward what might be, other times away from what is. Stagnation—in compensation or scope of work—has made people restless. Recently a client shared that the business nearly lost a good employee who felt underpaid and burned-out.

The employee sought relief via a new career path elsewhere, and one that the HR director knew was not a good fit. After extended conversations with the team member, the HR director was able to retain the employee by addressing compensation and revising the role to meet both the individual’s needs and the organization’s needs. She approached the issue with what was first and foremost in the best interest of the employee.

What sustains a person in the topsy-turvy times in which we live?

For many, it’s the choice of quality of life over the perceived stability of the status quo. There’s a sense that one’s

In August, the U.S. Bureau of Labor Statistics announced that “4.3 million Americans, or 2.9 percent of the entire workforce, quit their jobs,” according to National Public Radio. well-being needs to be prioritized over participation in the daily grind.

Understandably, many employers are struggling with how to address the retention issue. Business leaders are churning over which strategies might preserve their teams. Rather than grasping, handwringing or lamenting, consider this workforce shift a necessary disruption to building a stronger, healthier culture.

Think of it as an opportunity to deepen your understanding of team members and your connection to them.

Do you know what they care about? Do you know how they feel respected? Do you know their struggles? People flourish when there is purpose and a sense of belonging.

If work is meaningful, and contributions are appreciated, you have a foundation for a more satiated staff.

However, in today’s environment, more may be required. The prevalent idea for some professionals that work is the centerpiece of their identity is starting to rival the notion that meaning might be found elsewhere. Employers who understand that, make room for that, and create workplaces that honor that, will be rewarded.

Nurture a “work community.”

Whether our work is a means to an end or a cultivated identity, it can be made richer if the relationships are authentic, supportive and trusted.

Relationships are nurtured with real conversations about what really matters, by investing time and energy to get to know each other, by respecting our differences, and by keeping our agreements. Healthy team dynamics shape a sense of community that feeds the human need for connection.

An investment in people’s abilities to communicate, connect and grow is an investment in a work community.

Build in flexibility. Working from home has unearthed the possibilities of prioritizing our non-work life.

Taking care of ourselves, our families, our friends and community has emerged as essential to our wellbeing. Having flexibility in how we structure our days, how we contribute to a project, or how we deliver on our accountabilities has become an alluring approach to employee happiness. Often, this will require leaders to get clear on roles, responsibilities, deliverables, workflow and priorities so flexibility is achievable. As organizations build flexibility into their DNA, they may also gain the added benefits of being nimble and creative in their work product.

Invite engagement for your team’s sake, not the bottom line. Yes, you are in business to serve your mission and make money.

If, however, you understand what team members value and where they find meaning, you are making space for the whole person. And that whole person is more likely to feel inspired to show up in an engaged manner.

As you deepen your understanding of what makes your team tick, you are better positioned to build on See ‘Great Resignation’ Page 5 ►

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How to show team members you really do care about them

at substantial expense and is for the sole and

■ BY CHRISTOPHER F. EARLEY

consent. Any infringement will be subject to

“The leaders who get the most out of their people are the leaders who care most about their people.”

— Simon Sinek The success of any law firm hinges on its people. No successful law firm was ever built on the backs of average team members. If team members know that you truly care about them, they can flourish. When that happens, a law firm can truly accomplish great things.

Here are some ways to show your team that you truly care about their success.

Treat your staff like gold and do nice things for them. These things do not need to be expensive. A small thing I do each Friday is buy lunch for the office. They really appreciate this.

On a “workiversary,” we will celebrate the team member to show them they are appreciated. On their birthdays, we have a party and celebrate them. These little things are so very important and make people feel really good.

Ask them how they are doing. I have quarterly conversations with each team member, rather than have the dreaded review. I take this opportunity to really dive deep to find out how the team member feels about their given role.

Show them you care by asking questions, and then listen carefully to what they say. Ask them if they feel their work makes a difference to the clients and to the world. Ask them if they feel utilized in their current role.

Find out from them if there are other ways they can be challenged.

Their responses will reveal so much that you may not even be aware of.

Give them shout outs. At our daily morning huddle, if a team member had a win the day before, I make a point to highlight it in front of the group. It brings an instant smile. People want and need to feel appreciated.

Receiving praise in a group setting can really make a team member’s day and make them feel special.

Pay them what they deserve. Never, ever be cheap with great employees.

If you have someone who is doing a really good job, pay them enough so

that they don’t leave you for someone else who is willing to pay them what they are worth.

You get what you pay for. If you want to get the very best out of someone, you need to show them you care about them by compensating them well.

Coach them up. You want to get the very best out of each team member. That does not happen by hope or by chance, but by intention. The only way to get team members to reach their full potential is by coaching them up.

This is an ongoing effort. Show them you care and that you want them to always succeed, and that you see their true potential (which they may not see themselves). If they do something great, tell them what they did right. If they do something wrong, tell them how to do it right the next time, while reminding them how good a job they do overall.

Christopher F. Earley is a Boston attorney and author who concentrates his practice on the representation of the seriously injured and their families.

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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 Novem ber 22, 2021

Greenville entrepreneur helps police bring down $4.5M scam ■ BY MOLLY HULSEY mhulsey@scbiznews.com A scam run out of a Latvian apartment bilked American companies for millions of dollars, but less than $2,000 taken from a Greenville entrepreneur ended the scheme and landed the suspect in an American prison.

Julie Maddox, the Greenville founder of the diabetic-friendly Benji Bars, was one of 2,900 businesses that investigators say were swindled in a $4.5 million scheme by Latvian Viktors Suhorukovs. He was sentenced to more than four years in federal prison on Sept. 14 for tricking trademark holders into sending him trademark renewal fee payments that victims thought were going to the U.S. Patent and Trademark Office.

For Maddox the scam threw her exclusive ownership of her product name and tagline, “Make it Better,” into jeopardy, she told GSA Business Report.

Since she could not afford to renew the trademark after mailing Suhorukovs, 37, a check that she thought was bound for the U.S. Patent and Trademark Office, her brand is up for grabs. If she sells any of her trademarked products after the trademark’s expiration, she is committing an act of fraud, according to intellectual property attorney Santucci Priore.

“Every hard thing that I have come across in the business, I have overcome,” Maddox said. “COVID didn’t shut me down, but this person who perpetuated this scam did shut me down.”

For Maddox, it started on a July day in 2019, when she pulled an invoice from the mailbox.

Maddox has invested seven years into her startup, which she launched after developing a recipe for low-sugar protein bars for her son Benjamin after he was diagnosed with Type 1 diabetes. Even before the snacks hit local shelves, she made sure to obtain a federal trademark for the brand.

So when the renewal date for the Benji Bars trademarks rolled around, Maddox received exactly what she was prepared for: two invoices that appeared to be from the U.S. Patent and Trademark Office requesting $1,850 with a trademark ID number matching her own.

She made sure to scan the QR code on the invoice, which linked her to the official U.S. Patent and Trademark Office site, before sending off the check.

A bitter aftertaste

Months down the road, she opened mail to find what appeared to be the same invoice from the real U.S. Patent and Trademark Office, and she felt sick to her stomach.

She saw a notice on the U.S. Patent and Trademark Office’s website that warned trademark owners about a nationwide renewal scam that matched her experience.

“I realized after some digging that I had absolutely been deceived, that I

Julie and Benji Maddox pose with a few of her bars, which she took off her website marketplace and out retail stores in the period of trademark uncertainty following her realization that she had sent her renewal payments to a fraudster instead of the U.S. Patent and Trademark Office. (Photo/Molly Hulsey)

had been scammed, and it was so disheartening because I didn’t have any money to actually renew my trademarks,” she said.

Maddox felt almost too ashamed to tell anyone she had sent checks to a fraudulent trademark office, but she knew she had to take action, because, as she said to herself at the time, “If you can’t make something better, at least don’t make it worse.”

“So I did the only thing that I felt like I could do, and I contacted local law enforcement and got the most wonderful detective,” she said.

Greenville Police Department’s John Dempsey, a former detective, took on the case. He recognized the brand right away, Maddox said, since she had donated bars to first responders over the years.

Recipe for disaster

Dempsey, now a sergeant at the Greenville Police Department, said he sent a search warrant to the Bank of America account where the check had been deposited along with $42,265 under the name of the Patent and Trademark Office LLC, based in Washington, D.C. The sole signer of the account was a Victor Suhorukovs with a Staten Island, New York, address, according to court documents. Suhorukovs’ account information included a Latvian passport number.

Suhorukovs based his operations in an apartment complex in Riga, Latvia’s capital, according to records from the Spartanburg County Sheriff’s Office.

“This young man had every advantage in the world,” Maddox said after hearing his defense in court. “He was affluent. He was not someone who couldn’t do better.”

In early 2020, Dempsey said he had requested copies of all checks attached to Suhorukovs’ account and received a stack sourced from business owners across the country.

Funds from the cashed checks were wired to Latvia, he said.

After speaking with Immigration and Customs Enforcement and the Department of Homeland Security, he discovered the person who took Maddox’s money could also be behind a nationwide trademark scam DHS had been investigating.

An agent with the DHS based in Greenville tracked down two additional accounts connected with Suhorukovs at United Bank in Washington, D.C. The bank closed the accounts in January 2020 under suspicion of fraud and mailed Wright 916 deposit slips and checks that Suhorukovs had tried to cash into the closed accounts.

The deposit slips and undeposited checks from the closed accounts totaled $1.2 million, according to court documents.

One check originated from the S.C. Farm Bureau Federation for the trademark “South Carolina Farmer” after the Cayce-based insurance company reported it had accidentally sent two checks to what they believed to be the U.S. Patent and Trademark Office.

Another came from the Emerson Rose Heart Foundation in Clemson, a nonprofit that supports congenital heart defect research and the families of children suffering from the condition. Piedmont steel fabricator QSM Inc. had also received an invoice from Suhorukovs, according to court documents.

Investigators brought copies of the checks to the U.S. Attorney’s Office for South Carolina, who took up the case, according to Dempsey.

Dempsey charged Suhorukovs with obtaining money under false pretenses, while the DHS unfurled a record of frequent flights made by the Latvian between Eastern Europe and the United States.

So when Suhorukovs left Moscow for John F. Kennedy Airport in New York on Feb. 7, 2020, according to court documents, officers with Homeland Security Investigations were waiting for him. As was a lawsuit from the United States.

The U.S. Attorney’s Office for the District of South Carolina indicted Suhorukovs for the checks forwarded to his closed accounts, and Suhorukovs found himself on a carousel of court proceedings in New York, Greenville and Spartanburg from Feb. 10, 2020, to Sept. 20, 2021.

Suhorukovs pled guilty to mail fraud in January 2021 and appeared for a final sentencing before District Judge Donald Coggins on Sept. 14 at Spartanburg’s federal courthouse.

Coggins sentenced the Latvian citi-

zen to 52 months in federal prison and ordered him to pay more than $4.5 million in restitution to the victims.

“Trademark filing scams are a growing international problem with foreign entities increasingly targeting U.S. citizens with misleading solicitations,” David Gooder, commissioner for trademarks, said in a statement following the sentencing.

Make it better

The case is now closed but the story is not yet over for the victims.

“A lot of the trademark holders were charitable organizations. They were nonprofits doing really great work, and it really has had an impact on those people,” said Winston Marosek, the assistant U.S. attorney who prosecuted the case.

The COVID-19 crisis interrupted court proceedings time and again over the past two years, but it also pummeled the small businesses and sole proprietorships like Benji Bars LLC who were unable to renew their trademark in time and lost ownership of their brand.

At least three binders full of testimonies were presented during the hearings.

Some victims have received notice that their trademarks are expiring, Maddox said, but so far, she has not.

According to Upcounsel, re-registering cancelled trademarks can be more costly than an annual renewal and often requires the services of a trademark attorney.

“I’m not going to go into debt,” she said. “I would have to get a lawyer to help me work through all of this, and at some point, you just have to say it’s easier to start over.”

Especially when some, like Dempsey, question whether victims will ever see any portion of the $4.5 million Suhorukovs owes in restitution.

According to court documents, $2.4 million was seized from Suhorukovs’ accounts at Wells Fargo Bank, Capital One and JP Morgan Chase & Co., leaving $2.1 million still owed to victims.

“Once it goes across, it’s gone,” Dempsey said of the funds wired to Latvia. “A lot of times, people just lose the money. The time I did white collar [investigations as a detective], I rarely, if ever, saw any restitution at all.”

Keep on keeping on

Even if Maddox may not own the “Make it Better” tagline anymore, it’s still a motto she lives by.

“He’s a relatively young person,” she said of Suhorukovs, “I hope that he’ll go on and do better things; I certainly hope that, because that’s certainly what I’m going to do.”

The mother of two is in the process of launching a keto version of the protein snack under a new brand name.

She has received high praise during a taste testing held in Nebraska.

“In my mind, I say my trademarks were victims but I wasn’t,” Maddox said. “Because I’m going to keep going.”

‘GREAT RESIGNATION’ / An invitation to think differently C o nt inu e d f r o m 4 ►

their strengths and invoke their best selves.

None of this negates the value in making work meaningful. And it is still essential to find the right fit, to cultivate potential, and inspire excellence. These strategies will likely

never go out of vogue. It simply acknowledges the reality that work alone neither defines nor satiates someone.

Derek Thompson of The Atlantic writes that the Great Resignation is ushering in “a centrifugal moment in American economic history.” He believes it’s needed.

“Gimme an economy with more quits, more migration, and more entrepreneurship,” he writes. “It will be better for workers, for families, for productivity, and for technological development and innovation.”

If organizations embrace the shifting landscape of the workplace and the needs of its people, the conversa-

tion of retention will change fundamentally. The invitation is to think differently, and to think in terms of what will make life better.

Karen Natzel is a business therapist who helps leaders create healthy, vibrant and high-performing organizations. Contact her at 503-806-4361 or karen@natzel.net.

6 / 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 N ove m be r 22, 2021

U.S. SUPREME COURT BRIEFS High court skeptical of Texas death row inmate prayer demand WASHINGTON (AP) — Conservative Supreme Court justices expressed skepticism about a Texas death row inmate’s demand that his pastor be allowed to pray out loud and touch him during his execution.

Executions in Texas, the nation’s busiest death penalty state, have been delayed while the court considers the question. The outcome won’t take anyone off death row but could make clear what religious accommodations officials must make for inmates who are being put to death.

Members of the court’s conservative majority suggested during arguments on Nov. 9 that requiring Texas to grant the inmate’s request could lead to a string of cases asking for other accommodations. A lawyer for the inmate said the man would be content to have his pastor touch his foot during his execution, but justices questioned what requests might come next.

“What’s going to happen when the next prisoner says that I have a religious belief that he should touch my knee. He should hold my hand. He should put his hand over my heart. He should be able to put his hand on my head. We’re going to have to go through the whole human anatomy with a series of cases,” Justice Samuel Alito said.

Chief Justice John Roberts and Justice Brett Kavanaugh also expressed concerns about what a ruling for the inmate would mean for requests in the

future, with Kavanaugh asking whether all states would have to offer equivalent accommodations.

What if, he asked, one state “allows bread and wine in the execution room right before the execution” or allows the minister to “hug the inmate.” Do other states have to do the same?

The case before the justices involves John Henry Ramirez, who is on death row for killing a Corpus Christi convenience store worker during a 2004 robbery. Ramirez stabbed the man, Pablo Castro, 29 times and robbed him of $1.25.

Ramirez’s lawyers sued after Texas said it would not allow his minister to pray audibly and touch him as he is being given a lethal injection. Lower courts had sided with Texas, but the Supreme Court halted his Sept. 8 execution to hear his case.

Texas says an inmate’s spiritual adviser may pray with and counsel him until he is taken into the execution chamber and restrained on a gurney.

But Texas says that after that, while the spiritual adviser is nearby, he can’t speak to or touch the inmate.

“An outsider touching the inmate during lethal injection poses an unacceptable risk to the security, integrity, and solemnity of the execution,” Texas told the justices in briefs filed with the court.

Arguing for Texas, state Solicitor General Judd Stone II also told the justices that Ramirez’s request is just an attempt to delay his execution. Justice Clarence Thomas seemed to agree, asking what the justices should do if they believe Ramirez has “changed his requests a number of times” and “filed

last minute complaints” and “if we assume that’s some indication of gaming the system.”

Ramirez’s attorney Seth Kretzer told Thomas that is not the case. He has argued that a federal law that protects the religious rights of prisoners requires the state to accommodate Ramirez’s requests.

The court’s three liberal justices seemed more open to Ramirez’s arguments, with Justice Sonia Sotomayor suggesting that where Ramirez wants his spiritual adviser to stand is far away from the restraints Texas uses or IV lines for the lethal execution drug. And both Justices Elena Kagan and Stephen Breyer noted Texas had allowed chaplains to touch inmates in the past.

The justices also heard from a lawyer for the Biden administration about the experience of the federal government in carrying out a number of executions recently. Under the Trump administration the federal government resumed executions for the first time in 17 years, carrying out 13 of them at the federal execution chamber in Terre Haute, Indiana. During 11 of those executions, which also made news for likely acting as coronavirus superspreader events, religious advisers were present and sometimes prayed aloud with inmates.

In at least one case there was brief physical contact before the administration of the lethal injection drug.

Arguing for the government, Eric Feigin told the justices that the federal government believes Texas has a strong argument for not allowing a spiritual adviser to touch an inmate during the administration of the lethal injection

drug itself. He said federal officials had not allowed that and it would likely give them “very, very substantial concerns.”

He also said it’s hard to know how a spiritual adviser might react during that time. That person could faint or stumble and jostle the IV lines, he said.

“Anything going wrong here would be catastrophic,” he said.

Feigin also said spiritual advisers stood about 9 feet away as the lethal injection drug was being administered during recent executions. And he noted that the federal death chamber is about twice the size of the one in Texas.

As the court has grown more conservative in recent years it has been less open to last-minute challenges to death sentences. But issues surrounding ministers in the death chamber have been one area where the justices have had some openness to stopping an execution.

In 2019, two inmates asked the justices to halt their executions over states’ refusal to allow their spiritual advisers in the execution chamber. Wrestling with the issue, the high court let one execution go forward but blocked the other, of Texas inmate Patrick Murphy.

At the time of Murphy’s scheduled execution, Texas allowed state-employed religious advisers to be present in the execution chamber but only employed Christian and Muslim advisers, not anyone who was Buddhist, Murphy’s faith. Kavanaugh wrote that Murphy wasn’t being treated equally.

Texas responded by barring all clergy from the execution chamber, but inmates filed additional lawsuits. Texas S e e P a g e 10 ►

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NEWS / 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 Novem ber 22, 2021

IP THEFT / ‘Thou shalt not stomp all over the evidence’ C o nt inu e d f r o m 1 ►

it is attached.

flash drives that easily slip into a pocket or purse, to larger removable disk drives commonly used for backups.

Emailing the documents to a personal email account, or a competitor’s email address.

“Cloud” or online storage accounts such as Dropbox, Google Drive, Microsoft OneDrive and many others.

Let’s look at what we can determine from each of the above scenarios.

Email accounts

Removable storage devices

One of the most common ways documents are taken or misappropriated today is by removable storage devices.

Most computers do a good job of tracking the use of removable devices, especially the first and most recent time a device is connected to the computer.

Information such as the actual or a virtual serial number of the device is recorded along with known manufacturer data such as the name and model number, when it was attached to the computer, and what drive letter was assigned. Other metadata that may be available includes file names and original locations of files, the location documents were copied (on the removable device), the size and date and time stamps associated with the original document and its copy.

Any device can contain data, and not just the data you might expect. A camera could have an email file on it.

A music player could have photos or documents on it. A phone could store any type of data from documents, pictures, spreadsheets, emails, to AutoCAD drawings. Anything digital can reside on most any device. Even file names can be misleading or intentionally hiding something. Who would expect an email file to be called “hello.txt” or a confidential business spreadsheet to be called “ourhouse. jpg”? Changing the name of the file does not change the data in the file, but it does change a specific date and time stamp that could be helpful in creating a timeline.

If a removable device is found to have been connected to a former employee’s computer on his or her last day in the office, it’s probably a cause for concern. If the device can be recovered, it is straightforward to determine if the device recovered is the actual device at issue and then to identify which documents reside on the device.

For example, if you see an executive connected a USB backup device to his or her computer on the last day in the office and you find evidence that shows a file called “FullBackup. bkf” was on that device, you will most likely want to consult with your internal counsel. Hint; FullBackup.bkf is a common name for, you guessed it, a full backup of the computer to which

Email is ubiquitous and used by nearly everyone these days particularly in the business world. Its widespread use makes it a prime avenue for data theft, often without the realization of the many ways that email is tracked and audited.

Businesses should have robust tools and practices in place to constantly track and document any email activity, especially email to or from external email addresses. Auditing should be enabled and routinely backed up to allow extended lookback if needed. In Microsoft Office 365 for example, default auditing is only retained for 90 days. This limited amount of time can be problematic if an issue is not discovered soon enough to be examined while logs are still available.

There are several Data Loss Prevention (DLP) options available that can help prevent or at least alert staff to potential proprietary data loss via email. Determine the most at-risk data and develop rules or criteria that can be checked against any outgoing email to help stop this theft or inadvertent loss of important data. Simple checks for identifiers like Social Security numbers, credit or debit card numbers, driver’s licenses, medical ID numbers, or passports are other examples to watch.

DLP solutions can even check more broadly for emails with attachments, or specific types of attachments such as Excel spreadsheets or Zip files.

DLP can also check for or limit destination addresses. For example, is there any business reason to send emails to a Gmail or Hotmail or Yahoo email address? (There may be, but it is something to consider.)

Investigating deleted email

Typical business email systems will usually contain an email server that does the bulk of the work regarding sending and receiving email messages and the related artifacts. This server will be one of the primary places to look for evidence. This will include logs, potential drafts of messages, copies of the actual messages and potentially any replies or responses to the messages, or even failure notices if there was a problem with the original message.

Deleted email may be recoverable depending on the specific circumstances and the type of email system.

Server based email is usually backed up regularly so if backups exist, the email may be on one or more backups.

Also, if setup properly, email servers can be configured to require an email to be backed up prior to allowing any deletion of the message. Even if the email was deleted, it is very similar to regular files in that the data itself

may still be there even if it is not readily visible to the normal user.

As part of an ongoing investigation or if you have reason to be concerned about email message deletion, another option may be available to help limit that concern. Using Microsoft Office 365 as an example, within that system, administrators can implement legal hold functionality that will prevent the user from deleting or otherwise tampering with any current or future email messages or activity.

Email can also be found on the user’s local system either due to the way it was configured or to allow “offline” viewing of email (useful for times when either out of the office or away from a stable network for example, on a plane). Also, if the recipients of the message of concern are known and cooperative, you may obtain a copy of the message from them, either voluntarily or via legal means such as a subpoena or document request.

If the email of concern went to a large online email provider like Google or Microsoft, it may also be possible to request copies of the email from them via subpoena or a preservation order.

This same idea can be used if the email went to another company. Odds are good that their email system still has evidence of the email activity, at least in logs, even if the email itself is no longer readily available.

Cloud service accounts

The best and simplest explanation we have heard for “cloud” services and what it means is “someone else’s computer”.

Evidence of cloud service use is usually apparent. The specific website with some associated history of recent activity or the cloud application may be found on the computer. Logs of what was recently done with that service may exist either on the subject computer or the cloud service provider’s systems. Other artifacts may exist within the computer that show recent activity or files involved with the service. There is often a folder structure with associated files for the cloud service on the local computer. With the appropriate authority or permission, a forensic collection of the actual cloud account at issue is possible. The service provider may also provide other artifacts or evidence of recent or historical activity on the subject account.

The account holder’s cooperation is needed for the cloud service provider to inform a third party. An appropriate legal request such as a subpoena or preservation order may be used.

Starting the investigation

When an investigation is warranted, often the first thought goes to how to quickly and cost effectively it can be performed.

It is common to think that handling things in-house will be the most cost-

effective way to accomplish the investigation, especially if you have an investigative team already in place.

The biggest caveat with that plan is that it will succeed only if the team has the proper training and tools needed to perform the highly technical and process critical investigation in a forensically sound manner.

Digital forensics is a highly specialized field, one with new forms of evidence to recover and new methods and tools to do it. Think of the number of updates that occur with a computer system, sometimes dozens of changes in a month or even more often. Or, a cellphone with new model is coming out regularly besides the monthly updates, as just a couple examples.

Each new update or version of new software brings new challenges, potentially new artifacts to learn about and recover, even new logs or data locations that must be understood to take advantage of the plethora of information that must be analyzed.

First commandment of electronic evidence

The first of the 10 commandments of electronic evidence by Sharon D. Nelson, Esq. and John W. Simek of Sensei Enterprises, Inc. states, “Thou shalt not stomp all over the evidence.” As digital forensics experts they opine, “When computer forensics specialists get together and swap war stories, one recurrent theme is the unbelievable number of times that clients have fouled themselves up by trampling electronic evidence.

Typically, as soon as a potential legal matter is recognized, a law firm or corporation authorizes someone from its IT department to ‘look through’ the evidence. Unbeknownst to them, while their IT staff is busy finding golden nuggets of evidence, they are also changing the dates and times of the files they are accessing and possibly altering information that indicates which user ID did what. While it may not entirely discredit the case, you have now given fodder to opposing counsel at the very least—and you will have to spend more money on the forensic examination because unraveling dates and times and explaining ‘the stomping’ effect is now part of the examiner’s job.”

Nelson and Simek conclude with this sage advice for clients and lawyers, “It is a very foolish client that contaminates evidence by having inhouse folks look at it — from a judge’s point of view, the client has a vested interest in that evidence. Far more credible is an initial, independent forensic examination by a certified third party.”

John J. Carney, Esq., is chief technology officer, and Kevin V. Bluml is chief computer forensic examiner with Carney Forensics, www.carneyforensics.com.

FORUM / Clause was permissive rather than mandatory C o nt inu e d f r o m 3 ►

disputes exclusively in Texas because it contained no mandatory language.

In a Nov. 3 opinion written by Judge John D. Geathers, the Court of Appeals agreed and reversed and remanded the case.

Under Texas case law, if a forum selection doesn’t clause expressly provides for a forum’s exclusive jurisdic-

tion, the courts won’t assume that the parties intended to submit to exclusive jurisdiction in that forum.

In Howell’s case, the language in the forum selection clause at issue was clearly permissive rather than mandatory, Geathers wrote, and a permissive forum selection clause doesn’t justify dismissal on the grounds that the plaintiff filed suit in a forum other than the one specified

in the clause.

Since the case was reversed on those grounds, the court declined to consider Howell’s argument that the employment agreement’s choice of law provision violates the South Carolina policies expressed in the Payment of Wages Act, which prohibits private contracts from attempting to set aside its provisions.

David Eliot Rothstein of Green-

ville represented Howell. Joseph Owen Smith of Smith Hudson Law in Greenville represented Covalent Chemical and Rowe The seven-page decision is Howell v. Covalent Chemical, LLC (Lawyers Weekly No. 011-087-21). The full text of the opinion is available online at sclawyersweekly.com.

Follow David Donovan on Twitter @SCLWDonovan

8 / 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 N ove m be r 22, 2021

DANCE / You don’t do justice to the process if you rush it C o nt inu e d f r o m 1 ►

er’s dispute and helping to fashion a resolution through one’s acute legal prowess and sheer tenacity can have its upside.

While part of an adversarial system, many say that mediating is more collaborative and allows for more creative legal remedies than those found in a courtroom.

And rather than fighting for a specific cause or advocating for a specific outcome, mediators are looking to get all parties on the same sheet of music—even if they aren’t singing the same tune.

“It’s very uplifting to help people solve a problem and see the sigh of relief that it is finally over,” Traxler said.

Of course, exactly when the afterparty can begin is anyone’s guess.

Dancing their troubles away

One key to getting mediation off on the right foot is being familiar with the routine but preparing for improvisation.

“That can mean a lot of reading and a lot of talking to the lawyers beforehand, and it can mean early morning work, but there is no typical day,” Traxler said.

As a former plaintiffs’ attorney whose dance card now stays full with alternative dispute resolution, certified mediator Asa Bell of Raleigh said that one way that he helps choreograph a smooth conciliation and save negotiation time is to request a pre-mediation statement from all parties to help identify and target issues.

Similar to dancers in sync, communication, trust, and flexibility are paramount to successful mediation.

Bell said that developing a rapport with each party can help guide them (albeit slowly sometimes) toward the center of the dance floor.

“You seek to allow the process to work whatever amount of time that takes,” Bell said. “You really don’t do justice to the process if you rush the process.”

Traxler agrees, saying that meeting with each side, exploring common

ground, and discussing their stance can help foster trust and solutions.

He fully subscribes to Bell’s philosophy regarding due diligence and patience, and is no stranger to working all night long.

“We push through however we have to because momentum can be lost if we adjourn,” Traxler said. “If parties can’t talk, they can’t begin to settle. Sometimes things take time to ripen.”

It can be a slow dance

Certified mediator Steve Dunn of Miles Mediation in Charlotte has orchestrated hundreds of settlements in his day and said that despite the trials of harmonizing opposing parties until the proverbial curtain closes, mediation offers the joys of lawyering without the ongoing responsibility for the case.

But mediation day is every bit as “tiring and taxing” as taking a deposition or being in trial, Dunn said, because few cases, predictably, “have an easy and obvious solution.” And while it’s business up front for mediators,

constantly waltzing from room to room and interposing themselves into the affairs of another, the parties can party in the back while spending half the day “just chilling.”

After litigating for more than 20 years, Dunn said that he enjoys the ability to control his own calendar, though he can no longer anticipate leaving the job when court adjourns.

“The latest that I’ve gone is 3 in the morning and I’ve had several go until 2 in the morning,” Dunn said. “But an important part of the job is you’re the person who has got to cheerlead that thing across the finish line. And if that means going late, we’re going late.”

Bell said that he once believed that one should say what they mean and mean what they say, a stance that has since been refashioned.

“When I began practicing, I realized that negotiations are a dance,” Bell said. “The process of mediation … helps walk the parties through this dance.”

Sometimes, that means dancing the night away.

MARRIAGE / Statute could not serve as legal impediment C o nt inu e d f r o m 1 ►

judge agreed, and in 2020 the Court of Appeals affirmed.

Swicegood petitioned for the Supreme Court to review the decision.

In a two-page per curiam opinion handed down on Nov. 10, the Supreme Court granted the petition, dispensed with further briefing, vacated the decision in part, and affirmed the decision in its result.

The Court of Appeals had based its decision on its findings that the now-obviated state law prohibiting same-sex marriage had operated as an impediment to the formation of a common law marriage between same sex couples, and that Swicegood and Thompson had lacked the requisite intent and mutual agreement to enter a legally binding common law marriage as a matter of law.

Although the Court of Appeals recognized that Obergefell v. Hodges, a 2015 U.S. Supreme Court decision striking down all state laws prohibiting same-sex marriage, must be applied retroactively, it nevertheless held that the state statute constituted “a preexisting, separate, independent rule of state law, having nothing to do with retroactivity,” which formed an “independent legal basis” for its finding.

The Supreme Court disagreed with, and vacated, the portion of the court’s ruling holding that the statute constituted an impediment, but it affirmed the ultimate result reached by the appeals court that no common law

marriage was established.

“In [Obergefell], the Supreme Court held ‘same sex couples may exercise the fundamental right to marry,’ and all state laws challenged in that case were ‘invalid to the extent they exclude same sex couples from civil marriage on the same terms and conditions as opposite sex couples,’” the court’s opinion reads. “Our state’s restriction on same sex marriage … was rendered void ab initio by Obergefell and, therefore, must be treated as though it never existed … Accordingly, the statute cannot serve as an impediment to the recognition of a same sex marriage predating Obergefell.”

Margaret Chamberlain of Greenville and Melissa Hope Moore of Fountain Inn represented Thompson. She could not be reached for comment in time for the print edition of this story.

John Reckenbeil of Mauldin and Jeff Wilkes of Greenville represented Swicegood. Reckenbeil said that while the practical impact of the decision may be limited because the state has now abolished common law marriage, the Supreme Court’s decision to vacate part of the Court of Appeals’ reasoning was nevertheless important because of the constitutional principles at issue.

“Whenever we say that something is unconstitutional, we always say that it’s to be applied retroactively,” Reckenbeil said. “If this decision was based on an impediment that Ms. Thompson could not have intended to be common law married, that’s giving

“Whenever we say that something is unconstitutional, we always say that it’s to be applied retroactively. If this decision was based on an impediment that Ms. Thompson could not have intended to be common law married, that’s giving credence and credibility to an unconstitutional provision.”

John Reckenbeil of Mauldin and Jeff Wilkes of Greenville

credence and credibility to an unconstitutional provision.”

Reckenbeil said that Swicegood has already filed a petition for a rehearing with the Supreme Court.

The two-page decision is Swice-

good v. Thompson (Lawyers Weekly No. 010-066-21). The full text of the opinion is available online at sclawyersweekly.com.

Follow David Donovan on Twitter @SCLWDonovan

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10 / 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 N ove m be r 22, 2021

NEWS BRIEFS / Leatherman was controversial power broker C o nt inu e d f r o m 2 ►

building up the state’s business economy, including backing a massive tax incentive package that helped lure Boeing to the state. For years, the longtime lawmaker fielded criticism for how much state funding was directed toward his home district, as well as millions in state contracts given to the concrete company he founded, and from which he continued to draw a salary.

“He got criticized some for taking the bacon home to Florence,” former Sen. Larry Martin, a Pickens Republican who served nearly four decades with Leatherman, told The Associated Press on Friday. “But if you look at the totality of his service, his heart was in moving South Carolina forward.”

Never shy to skirmish with those in his own party, Leatherman had contentious relationships with Republican governors and others seeking to rise in the GOP.

C o nt inu e d f r o m 6 ►

ultimately changed its policy in 2021 to allow both state-employed chaplains and outside spiritual advisers who satisfy certain screening requirements to go into the execution chamber.

The current Supreme Court case has delayed the final two executions scheduled this year in Texas.

Last month judges rescheduled the executions of Kosoul Chanthakoummane, who was to die Nov. 10, and Ramiro Gonzales, who was set for Nov. 17. Gonzales’ new execution date is July 13 of next year, while Chanthakoummane’s is Aug. 17.

Approximately 2,500 people are on death rows nationwide according to the Death Penalty Information Center. A total of 17 people were put to death by five states and the federal government last year. The Biden administration announced earlier this year it would halt federal executions while the Justice Department conducts a review of its policies and procedures. Still, just last month the administration argued before the Supreme Court for the reinstatement of the death penalty in the case of convicted Boston Marathon bomber Dzhokhar Tsarnaev.

Justices struggle with government secrets case WASHINGTON (AP) — The Supreme Court struggled with whether to allow a lawsuit by Muslim men claiming religious bias by the FBI to go forward despite the government’s objection that doing so could reveal national security secrets.

The case the high court was considering involves a group of three men from Southern California. They filed a class action lawsuit claiming the FBI spied on them and hundreds of others in a surveillance operation that began several years after the Sept. 11, 2001, attacks. The men, represented by lawyers from the American Civil Liberties Union and others, claimed religious discrimination and violations of other rights, saying they were spied on solely because of their faith.

A lower court dismissed almost all their claims after the government said allowing the case to go forward could reveal “state secrets” — whom the government was investigating and why.

But an appeals court reversed that de-

When Gov. Mark Sanford in 2009 threatened to reject hundreds of millions of dollars in federal stimulus money, or use it to pay down state debt, Leatherman wrote that he hoped the governor “will understand the seriousness of the damage to our people if we don’t get that money” and called the debt substitution request “foolish.”

In 2016, Gov. Nikki Haley actively campaigned against Leatherman, endorsing his GOP primary opponent and saying “there is not a tax that he hasn’t tried to raise.”

Two years later, he became a frequent target for GOP gubernatorial contender John Warren, who criticized Leatherman as not being conservative enough for the state. In a runoff debate against McMaster — whom Leatherman ultimately endorsed — Warren referred to the longtime lawmaker as among the “rotten apples” he would work to root out of the Legislature if elected.

Sen. Tom Davis, who was serving as

Sanford’s chief of staff when he first got to know Leatherman over clashes in state budget funding, said the “adversarial nature” of their initial rapport bled over into Davis’ 13 years of service with Leatherman in the Senate.

“I butted heads with him a lot,” the Beaufort Republican told the AP, saying he admired Leatherman’s “hard-nosed, pragmatic considerations,” particularly on budget reconciliation. “I really enjoyed working with him, in the end.”

For a time, Leatherman presided over his chamber as Senate president pro tempore. Some fellow Republicans, including Sen. Shane Massey, said that role combined with Leatherman’s committee leadership posts put “way too much power” in the hands of a single lawmaker.

Leatherman briefly stepped away from that position in 2017 when McMaster — then lieutenant governor — was elevated to the governorship following Haley’s departure to join the

Trump administration.

As Senate leader, Leatherman would have been next in line to assume the state’s No. 2 position, according to the state constitution. But, opting not to take on what then was a largely ceremonial role, he stepped down from the post, allowing another lawmaker to become lieutenant governor before reassuming the president pro tem slot a day later.

Massey called the move “a shameless and obvious game of musical chairs.”

After a 2018 rule change meant that a lawmaker couldn’t lead the chamber and also chair a committee, Leatherman opted to keep his Finance chairmanship rather than seek the new post of Senate president, setting down the presiding gavel for good.

“This state is steeped in tradition,” he said in 2019, reflecting on the continuity of the chamber in which he had sat for more than four decades. “We don’t change often.”

cision in 2019, saying the lower court first should have privately examined the evidence the government said was state secrets.

The Biden administration, like the Trump administration before it, told the justices that decision is wrong.

A number of the justices suggested during arguments on Nov. 8 that they were inclined to agree with the government but also seemed to favor sending the case back to a lower court for additional proceedings. That could give both sides something of a win because it would allow the lawsuit to continue, as the group that sued wants.

Justice Brett Kavanaugh suggested that sending the case back to a lower court would let issues be “fleshed out and come back” to the Supreme Court later.

Justice Elena Kagan seemed to agree, saying the lower court’s decision was “in some important way premised on an incorrect understanding of when dismissal is appropriate in a state secrets case.” Justices Stephen Breyer, Sonia Sotomayor and Neil Gorsuch also asked about sending the case back at various points in the arguments, which lasted two hours.

The case involves a confidential informant, Craig Monteilh, the FBI used from 2006 to 2007. Monteilh pretended to be a new convert to Islam as a way to become part of Southern California’s Muslim community.

Monteilh told people he was a fitness consultant, but he was really working as part of a surveillance program known as Operation Flex. Monteilh regularly attended the Islamic Center of Irvine in Orange County and has said that he was told to collect as much information on as many people as possible. He gathered names and phone numbers and secretly recorded thousands of hours of conversations and hundreds of hours of video using a camera concealed in a shirt button.

Ultimately Monteilh’s handlers told him to ask about jihad and express a willingness to engage in violence. Those questions caused members of the community to report him to the FBI and other authorities and seek a restraining order against him.

The FBI has acknowledged Monteilh was an informant, and the story was covered in the news media including on the National Public Radio show “This American Life.”

Three of the men Monteilh allegedly recorded sued, seeking damages and

asking the government to destroy or return the information it had gathered.

This is the second case the court has heard involving the state secrets privilege since beginning its new term in October. Last month the court heard a case involving a Guantanamo Bay detainee that also involved the states secrets privilege.

ists of Alabama clinic and a pharmacy.

The two doctors wrote 66,892 prescriptions in 2014, investigators said.

They grossed $20 million between 2012 and a raid in 2015, prosecutors said.

Kahn was convicted of conspiracy to unlawfully distribute and dispense controlled substances resulting in death, including oxycodone, an opioid pain reliever, and fentanyl, a synthetic opioid.

Jessica Burch, of Lake Havasu City, Arizona, was a patient of Kahn’s who died from an overdose in 2015.

He wrote nearly 15,000 prescriptions for controlled substances between 2011 and the end of 2016, totaling nearly 2.2 million pills and of which nearly half were oxycodone, prosecutors said.

In their appeals, both doctors said they acted within professional norms and that they were prevented from mounting a “good faith” defense that they did not intend any harm to patients.

The Justice Department said in Ruan’s case that there was overwhelming evidence that Ruan and his partner acted “as a large-scale pusher — not as a physician.”

Court to hear cases of docs convicted in pain pill schemes WASHINGTON (AP) — The Supreme Court has agreed to hear appeals from two doctors who were convicted of illegally distributing pain medication after writing thousands of prescriptions in short periods.

The court will take up the case of Xiulu Ruan of Mobile, Alabama, and Shakeel Kahn, who practiced medicine in Ft. Mohave, Arizona, and Casper, Wyoming.

Ruan and a partner, James Couch, were convicted of overprescribing medications at their Physicians Pain Special-

LAWYER TO LAWYER / Directory

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 Novem ber 22, 2021

Opinions S.C. SUPREME COURT

11

S.C. COURT OF APPEALS

4TH U.S. CIRCUIT COURT OF APPEALS

S.C. SUPREME COURT

Attorneys Discipline – Definite Suspension – Borrowing from Trust Account – Undiagnosed Medical Conditions Over the course of eight months, the respondent-attorney took $95,981.46 from his client trust account to cover payroll and operating expenses for his law firm. He has repaid the money and taken steps to safeguard client funds going forward. At the time of the misconduct, respondent was suffering from undiagnosed ADHD, an unspecified neurocognitive disorder secondary to B12 deficiency, pernicious anemia, hypothyroidism, and depression; re-

13

12

U.S. DISTRICT COURT

12

4TH U.S. CIRCUIT COURT OF APPEALS UNPUBLISHED

15

spondent has received and continues to receive treatment, and a psychiatrist testified that respondent’s neurocognitive impairment likely contributed to his poor judgment and decision-making. Given these mitigating circumstances, respondent’s expression of remorse, and his character references, we conclude the appropriate sanction for his misconduct is a three-year definite suspension from the practice of law.

In re Hopkins (Lawyers Weekly No. 010-064-21, 5 pp.) (Per curiam) (George James, J., not participating) Substituted opinion. S.C. S. Ct.

pension from the practice of law, the respondent-attorney was reprimanded for violating the North Carolina Rules of Professional Conduct. Although respondent argues that a private reprimand is the appropriate sanction given his lack of “intent to defraud,” we find that a public reprimand is the appropriate sanction as none of the reasons set forth in Rule 29(d), RLDE, exist to justify different discipline in this matter.

Public reprimand.

In re Haley (Lawyers Weekly No. 010-065-21, 3 pp.) (Per Curiam) Substituted opinion. S.C. S. Ct.

Attorneys

Domestic Relations

Reciprocal Discipline – Public Reprimand

Common-Law Marriage – Same-Sex Couple – Pre-Obergefell Separation

After seeking to be admitted pro hac vice without revealing a prior sus-

Obergefell v. Hodges, 576 U.S. 644

(2015), requires that we treat S.C. Code Ann. § 20-1-15, which prohibited same-sex marriage, as though the statute never existed. We vacate our Court of Appeals’ ruling that § 20-1-15 constituted a basis for finding that the parties did not establish a common-law marriage. However, we affirm in result the Court of Appeals’ decision, which also held that the parties lacked the requisite intent and mutual agreement to enter a legally binding common-law marriage as a matter of law.

Swicegood v. Thompson (Lawyers Weekly No. 010-066-21, 2 pp.)

(Per curiam) Appealed from the Family Court in Greenville County (Marsh Robertson, J.) On writ of certiorari to the Court of Appeals. John Reckenbeil and Falkner Wilkes for petitioner; Margaret Chamberlain and Melissa Hope Moore for respon-

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12 / OPINION DIGESTS dent. S.C. S. Ct.

S.C. COURT OF APPEALS

Contract Venue – Forum Selection Clause – Permissive Language – Choice of Law In the parties’ employment contract, the forum selection clause provides, “The parties agree to the jurisdiction of the state and federal courts located in Harris County Texas, and waive any right available to a trial by jury.” Under Texas law, this language is permissive rather than mandatory because the language does not expressly provide for Texas to have exclusive jurisdiction.

We reverse the circuit court’s dismissal of this action on the ground that venue is improper. Remanded.

The appellant-employee argues that the contract’s choice of law provision will preempt application of the Payment of Wages Act, S.C. Code Ann. § 41-10-100, or the entirety of this action. We disagree. The choice of law provision says, “Interpretation of this agreement shall be governed by and construed in accordance with the local, internal laws of the State of Texas, United States of America.”

The plain language of this provision requires the application of Texas law to contract interpretation only.

Howell v. Covalent Chemical, LLC (Lawyers Weekly No 011-08721, 7 pp.) (John Geathers, J.) Appealed from Greenville County Circuit Court (Letitia Verdin, J.) David Eliot Rothstein for appellant; Joseph Owen Smith for respondents. S.C. App.

Real Property Easements – Public Utilities – Archeological Site Destruction When the defendant-city’s agents destroyed stone bridge abutments that had been built in the 1700’s, the agents were acting with the sole, legitimate purpose of clearing the sewer easement on plaintiffs’ land to allow the city to repair the sewer line. Thus, the city’s destruction of the alleged archaeological resource, although unfortunate, did not violate S.C. Code Ann. § 16-11-780 because no evidence showed that the city did so “for the purpose of” destroying an archaeological resource.

We affirm summary judgment for the city.

Section 16-11-780(C) provides, “It is unlawful for a person to willfully, knowingly, or maliciously enter upon the lands of another or the posted lands of the State and disturb or excavate a prehistoric or historic site for the purpose of discovering, uncovering, moving, removing, or attempting to remove an archaeological resource.

Each unlawful entry and act of disturbance or excavation of a prehistoric or historic site constitutes a separate and distinct offense.”

To violate the statue, a person must desire the result of moving or removing an archaeological resource.

The desire to accomplish such a result necessarily requires knowledge of the existence of an archaeological resource, and the city could not have desired the result of moving or removing an archeological resource without such knowledge. When the incident occurred, the city and its contractors

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 N ove m be r 22, 2021

were attempting to clear the easement to provide access to the sewer lines.

Regardless of whether any preservation or conservation authorities designated the objects as archaeological resources, plaintiffs failed to demonstrate that the city was or should have been aware of such designation.

Thus, no evidence showed the city had either actual or constructive knowledge of the existence of archaeological resources on the property.

Affirmed.

Brinkman v. Weston & Sampson Engineers, Inc. (Lawyers Weekly No. 011-088-21, 8 pp.) (James Lockemy, J.) Appealed from the Circuit Court in Richland County (Thomas Cooper & Jocelyn Newman, JJ.) John Adams Hodge, Sharon Hodge and Geoffrey Kelly Chambers for appellants; William Michael Hemlepp and Dana Thye for respondent. S.C. App.

U.S. DISTRICT COURT

Labor & Employment Families First Coronavirus Response Act – Diagnosis Sought – FLSA – Tip Pool Plaintiff, a restaurant server, came to work despite the fact that his housemate had symptoms of COVID-19. An hour into his shift, plaintiff developed symptoms, tried to tell his manager, told an off-duty supervisor, and left work to seek a diagnosis. Despite the fact that plaintiff was later diagnosed with an anxiety attack, he has met his burden of showing that his departure from work was protected activity under the Families First Coronavirus Response Act. Defendants’ motion for summary judgment is denied.

The Families First Corona Virus Response Act (FFCRA) prohibits retaliation by employers against employees who took leave under the FFCRA. Caselaw on the FFCRA is scant.

The court takes plaintiff’s suggestion to apply the same legal framework used to analyze retaliation claims under the Fair Labor Standards Act (FLSA), which, in turn, uses the framework applicable to Title VII cases. Plaintiff has elected to pursue his retaliation claim via application of the McDonnell Douglas burden-shifting framework.

Plaintiff claims he “engaged in protected activity according to FFCRA by complaining that he was unwell and that he was leaving work to seek medical treatment.” Defendants contend that plaintiff “abandoned his job, not because he was experiencing COVID-19 symptoms, but rather because he was unhappy that he was assigned the job of an expo [i.e., expediter] instead of a fry cook.” Defendants further aver that, on the day plaintiff left the job, he had his temperature checked and confirmed in writing that he was not experiencing any COVID-19 symptoms.

Even if plaintiff signaled that he was not experiencing COVID symptoms when he arrived for his shift, it is possible that he believed he developed those symptoms later. 29 C.F.R. § 826.20(a)(1)(iii) protects employees who are experiencing symptoms, it does not merely protect an employee if they are, in fact, sick with COVID-19.

Moreover, at the time in question, May 2020, many individuals had a hyperawareness of potential CO-

VID-19 symptoms. Coupled with the lack of available testing, it was reasonable that one would wish to seek a diagnosis, even as a precaution.

Although plaintiff went home rather than to a doctor’s office, he immediately left a message for his doctor in which he said he thought he needed to get tested. The fact that his doctor later diagnosed him with an anxiety attack is not germane to the conclusion that plaintiff exercised his protected right to take leave and seek a diagnosis. There is a genuine issue of material fact as to whether plaintiff was qualified for leave for the hourlong period while he was waiting for his doctor’s diagnosis.

Defendants’ termination of plaintiff’s employment can be considered adverse employment action.

While defendants suggest that plaintiff’s mid-shift departure was a last straw, a reasonable juror could conclude that plaintiff’s termination was causally connected to his leaving to seek medical treatment and that defendants’ assertions about other problems with plaintiff’s job performance were mere pretext to fire him for leaving to seek medical treatment.

Defendants are not entitled to summary judgment on plaintiff’s claim under the FFCRA.

The court denies defendant’s motion to dismiss plaintiffs’ negligence and gross negligence claims. The court grants defendant’s motion to dismiss plaintiffs’ negligence per se and unjust enrichment claims.

FLSA

In Shaw v. Psychemedics Corp., 826 S.E.2f 281 (S.C. 2019), the South Carolina Supreme Court held that the contractual relationship between an employer and a drug-testing laboratory created a special circumstance to support the imposition of a duty of care owed by the laboratory to employees who were subject to testing.

Defendant’s customers use its services to collect and protect information of third parties, including plaintiffs.

Therefore, defendant’s contracts with the social good entities support recognition of a duty to plaintiffs.

Although there is no general duty to control the conduct of another— like the cybercriminals who stole plaintiffs’ data—or to warn a third person or potential victim of danger, there are exceptions to this general rule. One such exception arises when the defendant negligently or intentionally creates the risk.

Plaintiffs sufficiently allege facts supporting the application of this exception, based on their assertion that, despite defendant’s acknowledgement of the risk of cyberattacks and repeated notifications of the inadequacy of its systems, defendant failed to correct, update or upgrade its security protections. The court declines to dismiss plaintiffs’ general negligence claims based on their failure to allege a duty.

Because the court finds that plaintiffs have sufficiently alleged a duty and because defendant has not challenged plaintiffs’ gross negligence claims on any other basis, the court also declines to dismiss plaintiffs’ gross negligence claims.

Plaintiff contends the defendantemployer owes him back wages because plaintiff was paid only four dollars per hours and ineligible employees, known as expediters, were included in the tip pool to which plaintiff was required to contribute.

There is conflicting evidence as to how much interaction expediters had with customers; moreover, expediters were paid eight to twelve dollars per hour. The determination of whether expediters are the type of employees who customarily receive tips hinges on genuine issues of material fact, making summary judgment inappropriate.

Plaintiff concedes he has not shown a willful violation, so his recovery under the Fair Labor Standards Act is limited to two years. However, defendants have failed to clearly show their actions were in good faith and reasonable. They are not entitled to summary judgment on the remedy of liquidated damages under the FLSA. Motion denied.

Mackie v. Coconut Joe’s IOP LLC (Lawyers Weekly No. 002-01721, 25 pp.) (David Norton, J.) 2:20-cv02562. Marybeth Mullaney for plaintiff; Lindsey Cooper, Nicholas Paul Tierney, Alice Fountain Paylor and Lorene Stuhr Dukes for defendants.

D.S.C.

Tort/Negligence Data Breach – Social Good Entities – Members’ Personal Information – Common Law Claims According to the complaint, plaintiffs are patrons of social good entities, those entities contracted with defendant to collect and store personally identifiable information (PII) and protected health information (PHI) from the entities’ patrons, and cybercriminals infiltrated defendant’s systems and stole plaintiffs’ PII and PHI. Despite the lack of a direct relationship between the parties, plaintiffs have sufficiently alleged that defendant owed them a duty based on assertions that defendant’s own negligent conduct created the risk by failing to use reasonable security measures.

Choice of Law

In this multidistrict litigation, the parties have stipulated that South Carolina choice of law principles will apply. Therefore, with respect to plaintiffs’ negligence claims, the court would normally apply the law of the place in which the event occurred that created the right on which plaintiffs bring suit. However, to determine the place of wrong, the court would need to determine where the breach occurred. Because it is unclear at this stage where the breach occurred, the court will apply South Carolina law to plaintiffs’ negligence claims.

With respect to plaintiffs’ unjust enrichment claims, the choice-of-law focus is on the place where the benefit was received. Defendant’s headquarters and principal place of business are in South Carolina. Since defendant received any alleged benefit in South Carolina, South Carolina law applies to plaintiffs’ unjust enrichment claims.

Negligence - Duty

Negligence Per Se

Plaintiffs cannot base negligence per se claims on the Healthcare Insurance Portability and Accountability Act of 1996 because HIPPA was enacted for the protection of the public and not with the protection of an individual private right in mind.

Under South Carolina law, to base their negligence per se claims on the Federal Trade Commission Act, plaintiffs must show that the statute was designed to protect a particular individual or group of people and that they are members of that group.

Plaintiffs have not done so, so that

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 Novem ber 22, 2021

have not alleged a claim for negligence per se based on the FTCA. Even if the court were to find the Children’s Online Privacy Protection Act was an appropriate basis for a negligence per se claim, plaintiffs have not adequately alleged they are within the class the statute seeks to protect. Only plaintiff Coty Martin makes claims regarding minor children; however, plaintiff Martin does not allege that defendant operated a commercial website or online service directed to children under the age of 13 or that defendant collected information from his minor child as defined by 16 C.F.R. § 312.2. Plaintiffs have not sufficiently alleged a cause of action for negligence per se based on a violation of the COPPA.

Negligence - Damages

Plaintiffs assert they have suffered injuries arising from defendant’s negligence in the form of risk of extortion, unauthorized disclosure of their private information to cybercriminals, loss of value in their private information, risk of future identity theft or fraud, and out-of-pocket mitigation expenses. Every named plaintiff maintains that they have spent time and money to mitigate their exposure to identity theft or fraud as a result of the ransomware attack.

Further, plaintiffs have sufficiently alleged a causal link between the ransomware attack and their damages to survive a motion to dismiss. Plaintiffs plausibly allege that defendant had custody of their private information, that defendant’s systems were hacked, that these hackers obtained plaintiffs’ private information, and that as a result of the ransomware attack, plaintiffs suffered identity theft and other fraudulent activity. These allegations are sufficient at this stage to establish that the ransomware attack was the cause of these injuries.

Therefore, plaintiffs have alleged cognizable injuries.

Unjust Enrichment

Plaintiffs have not alleged that they provided their private information “in consideration for” defendant’s services. Instead, plaintiffs allege they provided their private information to the social good entities for the use of their services or for the purpose of donating to these organizations. Furthermore, plaintiffs do not allege that they chose to use defendant’s services in the first place, nor have they alleged that they would not have sought or purchased defendant’s services had they known its data se-

curity was inadequate. Additionally, the complaint does not put forth any allegations that plaintiffs paid for defendant’s services or directly provided their information to defendant.

Actually, plaintiffs gave their private information to the social good entities who in turn sought out, paid for, and used defendant’s services. Consequently, plaintiffs have not stated a claim for unjust enrichment.

Motion granted in part, denied in part.

In re Blackbaud, Inc. (Lawyers Weekly No. 002-018-21, 28 pp.)

(Michelle Childs, J.) 3:20-mn-2972.

Harper Todd Segui for plaintiffs; Celeste Tiller Jones, Joshua Davey and Rutledge Young for defendant. D.S.C.

4TH U.S. CIRCUIT COURT OF APPEALS

Administrative Denial of church’s zoning application violated RLUIPA Where Prince George’s County denied a church’s application for a legislative amendment to the county’s water and sewer plan, that contravened the Religious Land Use and Institutionalized Persons Act, or RLUIPA, because the amendment was a land use regulation subject to the RLUIPA and there were less restrictive means of furthering the county’s interest in traffic safety.

Background

After a bench trial, the district court concluded that Prince George’s County, Maryland denial of The Redeemed Christian Church of God (Victory Temple) Bowie, Maryland’s application for a legislative amendment to the county’s water and sewer plan contravened the RLUIPA. On appeal, this court must decide whether the legislative amendment to the county’s water and sewer plan sought by Victory Temple constitutes a land use regulation subject to RLUIPA? If it does, then the court must assess whether the county’s denial of Victory Temple’s application for the legislative amendment violated RLUIPA’s substantial burden provision.

Application

The court must first ask whether, in denying the application, the coun-

ty made “individualized assessments of the proposed uses for the property involved.” There is no question that, when the county council and other county entities evaluated the application, they made individualized assessments of Victory Temple’s proposed uses of the property. The denial resulted from a “parcel-by-parcel” evaluation and plainly constituted an individualized assessment of Victory Temple’s proposed use of the property.

Second, the court must ask whether the requested legislative amendment constitutes a “land use regulation.” For the requested water and sewer legislative amendment to constitute a “land use regulation,” it must be “a zoning ... law or the application of such a law, that limits or restricts a claimant’s use or development of land.” Although the county contends that “zoning” should be interpreted under Maryland state law, the court rejects that contention. It is obligated to construe federal statutes under federal law, unless Congress has clearly mandated otherwise.

Because RLUIPA does not contain a “plain indication” that state law should govern its interpretation, the court is satisfied that federal law applies here.

The rationale for applying federal law in construing a federal statute is particularly clear in disputes under RLUIPA. The purpose of RLUIPA, which is readily discernable from the plain language of the statute, is to prevent governments, including state and local governments, from burdening religious exercise by “[imposing] or [implementing] land use regulations.” That goal could be undermined if a state’s own definition of a “land use regulation” controlled.

Under both a definition applied by the Second Circuit and a definition from a legal dictionary, the legislative amendment to the county’s water and sewer plan sought by Victory Temple constitutes zoning. Of importance, that the legislative amendment sought by Victory Temple constitutes a land use regulation that is subject to RLUIPA finds strong support in prior decisions in this circuit.

Substantial burden

In analyzing whether the county’s denial of Victory Temple’s application contravened RLUIPA’s substantial burden provision, the court first asks whether the land use regulation imposes a substantial burden. If the answer to that inquiry is in the nega-

tive, RLUIPA is not contravened. If the answer is yes, however, the court must decide whether the land use regulation satisfies strict scrutiny review.

The district court ruled that the county’s denial of the application constituted a substantial burden.

Because the county does not challenge that ruling on appeal, it must now show is that its denial of the application withstands strict scrutiny review. Although the county identified “traffic safety” as its compelling governmental interest, it was also obliged to show that its denial of the application was the least restrictive means of furthering its interest in traffic safety.

The district court ruled that the denial of the application did not constitute the least restrictive means because the county “wholly [failed] to link its compelling interest to the denial of Victory Temple’s application for an amendment.” The court agrees.

It is apparent from the record that a less restrictive means was available to the county when it considered and denied the application.

Affirmed.

The Redeemed Christian Church of God (Victory Temple) Bowie, Maryland v. Prince George’s County, Maryland (Lawyers Weekly No. 001-181-21, 28 pp.)

(Robert Bruce King, J.) Case No. 202125. Nov. 3, 2021. From D. Md. at Greenbelt (Deborah K. Chasanow, S.J.) Donald A. Rea for Appellant.

Meghan K. Casey for Appellee.

Civil Practice Virginia eluding statute qualifies as crime of moral turpitude Where the Virginia eluding statute’s mens rea required at least recklessness, and vehicular flight from law enforcement has been consistently found to involve sufficient risk and danger to be morally reprehensible, the statute qualified as a crime of moral turpitude.

Background

Jose Neftaly Canales Granados challenges an order of removal based on his conviction for two crimes involving moral turpitude, or CIMTs. At issue is whether the phrase “crime involving moral turpitude” is either unconstitutionally vague or violative of the non-delegation doctrine, and whether Virginia’s felony eluding statute qualifies as such an offense.

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14 / OPINION DIGESTS Vagueness

A law is only unconstitutionally vague in contravention of the Due Process Clause if it “fails to give ordinary people fair notice of the conduct it punishes, or [is] so standardless that it invites arbitrary enforcement.” Because the CIMT definition provides “ordinary people fair notice of the conduct it” encompasses, both the Supreme Court and Fourth Circuit have made clear that the CIMT definition passes constitutional muster.

Nondelegation

Canales Granados next argues that the statutory phrase “crime involving moral turpitude” impermissibly delegates a legislative function to the executive branch.

The Supreme Court has held that “[a] statutory delegation is constitutional as long as Congress lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.”

The CIMT statute satisfies the intelligible principle test. This court has interpreted the phrase “moral turpitude” to require “two essential elements: a culpable mental state and reprehensible conduct.” A culpable mental state requires at least criminal recklessness, while reprehensible conduct must “independently violate[] a moral norm” and “shock[] the public conscience as being inherently base, vile, or depraved.” Because the meaning of “moral turpitude” is at least as clear as past acceptable delegations, Congress has sufficiently articulated an intelligible principle circumscribing executive discretion.

Felony eluding

The third question is whether Virginia felony eluding constitutes a CIMT. In analyzing whether an offense is a CIMT, courts “apply the categorical approach, which looks to the elements of the crime rather than the particular conduct underlying the conviction.”

The statute’s text indicates that it contains two elements: (1) the defendant received a visible or audible signal from a law enforcement officer to bring his motor vehicle to a stop and (2) the defendant drove his motor vehicle in a willful and wanton disregard of such signal so as to interfere with or endanger the operation of the law enforcement vehicle or a person. These elements satisfy the mental state requirement for a crime to qualify as a CIMT. Virginia felony eluding’s statutory “willful and wanton” mens rea requires at least recklessness, and thus satisfies the CIMT culpability prong. Canales Granados contends, however, that the willful and wanton mens rea applies only to part of the statute’s second element. This approach seeks to divvy up the statute into constituent parts at the expense of the whole of the conduct at issue. That is to say, the willful and wanton flight of a motor vehicle in a manner that endangers people or interferes with law enforcement vehicles. The court declines to engage in the minute parsing of the statute that petitioner suggests.

Moreover, Canales Granados’ argument also fails even on its own terms. To commit felony eluding, an offender must drive his motor

vehicle “in a willful and wanton disregard of [a law enforcement] signal so as to interfere with or endanger the operation of the lawenforcement vehicle or endanger a person.” Canales Granados argues that the willful and wanton mens rea applies to disregarding a law enforcement signal, but not to the interfering or endangering language. The court rejects this interpretation.

Next, Canales Granados cites the statutory affirmative defense available where “the defendant shows he reasonably believed he was being pursued by a person other than a law-enforcement officer.” Canales Granados claims that this defense demonstrates that ignoring the law enforcement signal requires a mens rea of only negligence. The court rejects his argument because affirmative defenses are not considered under the categorical approach. And even if the affirmative defense were considered, it does not demonstrate that the statute can be violated through mere negligence.

Turning to the reprehensible conduct requirement, for a crime to involve sufficiently reprehensible conduct to constitute a CIMT, it must “independently violate[] a moral norm” and “shock[] the public conscience as being inherently base, vile, or depraved.” Since vehicular flight from law enforcement has been consistently found to involve sufficient risk and danger to be morally reprehensible, the court finds that Virginia felony eluding requires reprehensible conduct.

Denied.

Canales-Granados v. Garland (Lawyers Weekly No. 001-182-21, 17 pp.) (J. Harvie Wilkinson III, J.) Case No. 20-2028. Nov. 4, 2021.

From the Board of Immigration Appeals. Samantha Hsieh for Petitioner. Allison Frayer for Respondent.

Tort/Negligence Student claims school officials failed to stop harassment, abuse Although the defendants argued a student’s use of a Jane Doe pseudonym without court permission was a jurisdictional defect, that argument failed because her complaint alleging she was harmed by the school’s failure to end the sexual harassment and abuse she suffered in middle school showed an actual case or controversy with real impact on a real person.

Background

A female plaintiff commenced this action by filing a complaint in which she referred to herself by the pseudonym Jane Doe. In her complaint, she detailed multiple acts of sexual harassment and sexual abuse, including rape, that were directed against her over the course of several months when she was a student at a middle school in Fairfax County, and the school’s inaction to end the offensive conduct when it was ongoing, all of which caused her serious injury. She claimed that the defendants violated her rights under Title IX of the Education Amendments of 1972 and other laws. And she explained that she was using a pseudonym to protect her privacy and health.

Defendants filed motions to dismiss on the ground that the plain-

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 N ove m be r 22, 2021

tiff’s failure to provide her true name to the court had deprived it of subject-matter jurisdiction and that this jurisdictional flaw could no longer be remedied because the statute of limitations for the plaintiff’s federal claims had lapsed a few days after she filed her complaint.

In response, the plaintiff disclosed her true name to the court and requested that she be allowed to proceed under a pseudonym.

The district court denied the defendants’ jurisdictional motions, and, because the sensitive nature of the allegations warranted “the utmost level of privacy,” it allowed the action to proceed pseudonymously. The court explained that while the plaintiff had not adhered to Federal Rule of Civil Procedure 10(a), which requires that the title of a complaint include the names of all parties, that failure was immaterial to the court’s subject-matter jurisdiction.

On the defendants’ motion, the district court included in its order a 28 U.S.C. § 1292(b) certification to enable the defendants to seek permission from this court to appeal “the question of whether a plaintiff’s failure to obtain leave of court to file a complaint pseudonymously is a jurisdictional defect such that a later order granting leave to proceed pseudonymously does not relate back to the original filing for purposes of the statute of limitations.” By order dated Jan. 5, 2021, the court granted the defendants’ motion for permission to appeal that issue.

Analysis

The cases and controversies that Article III assigns to federal courts refer to real disputes among real persons, involving actual or threatened injuries that can be redressed in a judicial proceeding. It follows therefore that Article III does not assign to federal courts any power to address hypothetical circumstances, give advisory opinions or resolve abstract disputes.

Based on these principles, the court has no difficulty concluding that when Kate filed her complaint in July 2019, her civil action qualified as a “case” or “controversy” within the meaning of Article III. While she did not include her real name in the complaint as required

by Federal Rule of Civil Procedure 10(a) — explaining that she used a pseudonym for privacy and health reasons — everything else about what she alleged was real. She alleged a “real controversy with real impact on real persons.”

Kate’s dispute with the defendants therefore was a real case, a real controversy, that federal courts have jurisdiction to resolve.

And, when measured against what constitutes Article III standing, her allegations showed that she possessed the kind of “personal stake” necessary for standing — i.e., that she suffered “a concrete and particularized injury caused by the defendant[s] and redressable by the court.” Thus, when considering the components of what constitutes an Article III case or controversy, it is evident that a plaintiff’s initial failure to tell the court her name in no way detracts from them. Stated otherwise, a plaintiff’s failure to disclose her name to the court at the time she files a complaint is immaterial to whether that civil action qualifies as a case or contro-

versy.

The defendants’ principal and perhaps only argument to counter this conclusion focuses on historical pleading practice. The court is not persuaded by the defendants’ additional argument that a plaintiff’s disclosure of her identity to the court should be treated as jurisdictional because it is necessary to ensure that a real person, not a phantom, stands behind the complaint.

Affirmed.

B.R. v. F.C.S.B. (Lawyers Weekly No. 001-183-21, 18 pp.)

(Paul V. Niemeyer, J.) Case No. 211005. Nov. 2, 2021. From E.D. Va. at Alexandria (Rossie David Alston Jr., J.) Elbert Lin for Appellants.

Tejinder Singh for Appellee.

Criminal Practice Police had reasonable suspicion to search defendant’s car Where the defendant, who appeared to be sleeping or unconscious in a running car that was positioned erratically in a school parking lot, began driving away when the police arrived, there was reasonable suspicion search his vehicle.

Background

A federal grand jury indicted Devon Scott Coleman after a deputy sheriff conducted an investigative stop and subsequently discovered a firearm and drugs, among other items, in his vehicle. Coleman moved to suppress those items and his attendant statements, arguing that the deputy did not have reasonable suspicion to perform the investigative stop. The district court denied that motion. Coleman proceeded to trial, and a jury convicted him. The court sentenced him to 211 months’ imprisonment. Coleman timely appealed.

Analysis

Coleman challenges the validity of the investigative stop, arguing that Deputy Johnson did not have reasonable suspicion that he was engaged in criminal activity because possessing a crossbow on school property is not illegal under Virginia law and, in any event, Deputy Johnson’s mistake of law on that point was unreasonable.

However, even if Coleman had not possessed the crossbow, Johnson would have had reasonable suspicion to conduct an investigative stop. This is because a reasonable officer could conclude based on the totality of the circumstances that Coleman was engaged in various unlawful activities, namely, trespassing on school grounds, commission of a parking violation and unlawfully operating a vehicle under the influence.

Removing the crossbow from the calculation, Johnson, who primarily served as a school resource officer, was dispatched to the high school to investigate a school administrator’s report to law enforcement that, as students were arriving that morning, a sleeping or unconscious unidentified man (who was plainly a nonstudent) was parked erratically in the school parking lot. This setting is a factor in evaluating the stop.

The fact that school grounds constituted the location of the un-

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known individual’s suspicious activity would immediately heighten a reasonable officer’s concern, particularly that of a school resource officer. The circumstances Johnson encountered upon arriving at the school reinforced the “unusual and alarming” nature of Coleman’s presence on the campus. After Johnson arrived and the school administrator identified Coleman’s vehicle, Johnson observed that the vehicle, which was running and had its brake lights engaged, was haphazardly positioned and impeding a travel lane. Johnson’s initial on-scene observations thus added to his calculation that something was awry.

After pulling his police cruiser behind the vehicle, Johnson opened his door to exit, but Coleman started to drive away. This, too, understandably aroused Johnson’s suspicion because such a maneuver is often considered evasive. These facts are sufficient to support a finding of reasonable suspicion for an investigative stop because a reasonable officer could suspect that Coleman was trespassing on school grounds, in violation of the school board policy and Virginia Code section 18.2-128(b). Quite simply, Johnson acted appropriately “to investigate why [Coleman] was at the HS” under the circumstances Further, the circumstances of Coleman’s presence on the school campus suggested other illegal activity. For instance, given Coleman’s markedly lopsided parking, a reasonable officer could determine

that Coleman was committing a parking violation. Moreover, a reasonable officer could suspect that Coleman was unlawfully operating his vehicle under the influence, as he remained “asleep or passed out” during the bustling morning hours at the school Alternatively, the court would reach the same conclusion even if it was to consider Coleman’s crossbow possession, whether in isolation or as part of the totality of the circumstances. That is to say, a reasonable officer could conclude that, though it may have been lawful, Coleman was in possession of a dangerous weapon on school grounds, which could be used to harm students, faculty and/or staff at the school.

Affirmed.

United States v. Coleman (Lawyers Weekly No. 001-184-21, 18 pp.) (G. Steven Agee, J.) Case No. 20-4093. Nov. 9, 2021. From W.D. Va. at Abingdon (James P. Jones, S.J.) Michael Allen Bragg for Appellant. Jean Barrett Hudson for Appellee.

4TH U.S. CIRCUIT COURT OF APPEALS, UNPUBLISHED

Criminal Practice Sentencing – Career Offender – S.C. Conviction – Modified Categorical Approach In United States v. Furlow, 928

F.3d 311 (4th Cir. 2019), we applied the modified categorical approach to assess whether S.C. Code Ann. § 4453-375(v) (which is almost identical to the statute under which defendant was convicted, S.C. Code Ann. § 44-53-370(a)(1)), constitutes a controlled substance offense under the U.S. Sentencing Guidelines. Furlow was vacated on other grounds, and, following the U.S. Supreme Court’s decision vacating Furlow, we have again held that § “44-53-375(B) is a divisible statute subject to the modified categorial approach.” United States v. Williams, 997 F.3d 519 (4th Cir. 2021). Accordingly, defendant’s sole argument on appeal—that his South Carolina drug conviction was improperly considered as a predicate offense for his career offender designation under the modified categorical approach—fails.

We affirm defendant’s 120-month sentence entered upon his guilty plea to a crack cocaine conspiracy and possession with intent to distribute crack cocaine.

United States v. Scott (Per curiam) Case No. 20-4536. Nov. 3, 2021. From D.S.C. at Charleston (Richard Mark Gergel, J.) Mario Pacella for appellant; Rhett DeHart and Christopher Schoen for the United States. 4 pp.

Criminal Practice Sentencing – Intervening Precedent – Career Offender Status Where defendant’s offense of

conviction—a drug conspiracy offense in violation of 21 U.S.C. § 846—is no longer considered a “controlled substance offense” under USSG § 4B1.2(b), defendant no longer qualifies as a career offender under USSG § 4B1.1.

We vacate defendant’s sentence and remand.

The district court plainly erred by failing to correctly recalculate defendant’s guidelines range “in light of intervening case law.”

United States v. Lancaster, 997 F.3d 1716 (4th Cir. 2021).

Had the district court applied relevant intervening precedent, it would have been obliged to conclude that defendant no longer qualifies as a career offender after our decision in United States v. Norman, 935 F.3d 232 (4th Cir. 2019).

We recognize that at the time of the district court’s decision, Lancaster had not been decided.

Our analysis of whether an error is plain, however, looks to the settled law at the time of appellate consideration, not at the time of the district court’s decision.

Accordingly, the district court’s ruling that defendant remains a career offender under the guidelines is plainly erroneous.

United States v. Landrum (Per curiam) Case No. 20-7252. Nov. 1, 2021. From D.S.C. at Spartanburg (Henry Herlong, S.J.) Christopher Frank Landrum, pro se; Maxwell Cauthen for the United States. 4 pp.

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