It is common in commercial litigation for a company to offer an employee as a witness to testify about the design, capabilities and features of the company’s products or services. Usually, such a witness testifies as a fact witness offering testimony based on his or her personal knowledge under Fed. R. Evid. 602, rather than as an expert witness offering opinion testimony under Fed. R. Evid. 702.
In an August 11 decision, Judge Henry Hudson of the EDVA conditionally certified a class of food service workers employed by a federal contractor at Fort Pickett who sued for unpaid overtime pay under the Fair Labor Standards Act (FLSA). Hernandez v. KBR Servs., LLC, Civil Action No. 3:22CV530-HEH, 2023 U.S. Dist. LEXIS 140795 (E.D.Va. Aug. 11, 2023). The ruling highlights a split among EDVA judges as to the correct procedure for handling collective actions under the FLSA that mirrors a three-way split among the federal courts.
On June 12, Judge Hudson granted an emergency motion to stay arbitration proceedings, pending the court’s resolution of the issue of arbitrability in a case pending in the U.S. District Court for the Eastern District of Virginia, Richmond Division. See Sauer Brands, Inc. v. Polytrade Int’l, Inc., No. 3:23-cv-181-HEH, 2023 U.S. Dist. LEXIS 135786 (E.D. Va. June 12, 2023). As getting a case in or out of arbitration may be critical in pursuing a merits-based strategy or mitigating against excessive costs, this case provides several key considerations in structuring arbitration agreements and how to procedurally maneuver when one party proceeds to arbitration unilaterally over the other party’s objection.
In significant and hard-fought litigation, it is not uncommon for parties to reach a settlement that includes an agreement to jointly move the court to vacate earlier rulings on key motions in the case. For a settling plaintiff that lost the earlier ruling, vacatur can be important to preserve potential claims against other defendants. Likewise, vacatur of an adverse ruling against a defendant allows that defendant to contest the issue in future cases. For the party that prevailed on the motion, there is often little incentive to oppose an agreement to request vacatur if it is part of an otherwise favorable settlement agreement.
We recently posted about the seeking preliminary relief under the Rocket Docket’s procedures. A recent decision from Judge Alston in the Alexandria Division is a good example of the speed in which the court acts in the context of the unique circumstances of a private litigant seeking a preliminary injunction against the U.S. government. CACI, Inc. v. United States Navy, Civil Action No. 1:23CV478 (RDA/IDD), 2023 U.S. Dist. LEXIS 88297 (E.D. Va. May 19, 2023).
The decision touches on a host of issues ranging from the law of trade secrets to the many procedural hurdles a party faces when asserting a claim against the government, while also illustrating how the fight over preliminary relief can, as a practical matter, be case dispositive.