Which of these people would you describe as having a disability: 1) a former athlete with occasional, but severe, back pain; 2) a college graduate with dyslexia; or 3) a forty year old middle manager who just can’t fall asleep at night without taking something “to help him wind down.” According to recent amendments to the Americans with Disabilities Act (the "ADA"), all of them may be properly classified as disabled.

On January 1, 2009, the “ADA Amendments Act of 2008” (the “Act”) became effective. The Act was intended to “restore the intent and protections of the ADA.” In addition to clarifying the types of conditions and individuals covered by the ADA, the Act also significantly expanded the types of disabilities covered by the ADA’s protective scope. For example, the Act confirmed that the impairment of several enumerated “major life activities” gives rise to ADA coverage. These major life activities include, “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.” See 42 U.S.C.A. §12102(2)(A). Previously, covered major life activities were described by either Equal Employment Opportunity Commission regulations or local jurisprudence. As a result, there were stark contrasts between jurisdictions as to the nature and extent of the ADA’s coverage.

Power of Attorney May Be Difficult to Revoke

Taneeb v. Branch Banking & Trust Co., Inc., Action No. 7:08CV00439, 2008 WL 5262374, 1 (W.D.Va. Dec. 18, 2008)- Recently a federal court denied a wife’s efforts stop a bank from foreclosing on her home. Her ex-husband has used a power-of-attorney to get a loan secured by the home without her knowledge. Moreover, the wife had expressly revoked her ex-husband’s power-of-attorney. The bank did not know about this revocation. When he secured the loan, the ex-husband executed an affidavit indicating that the power-of-attorney was valid. Relying upon Va. Code Ann. § 11-9.2(b), the Court held that since the bank did not have actual notice of the revocation and the ex-husband executed an affidavit affirming his authority, the foreclosure could not be stopped. While the court conceded that the wife was an “innocent party” her only remedy was in a suit asserted against the husband.

ISPs can not be forced to give out electronic data on their customers

In Re: Subpoena Duces Tecum to AOL LLC, 550 F.Supp 2nd 606 (E.Va. 2008) – In this case, the Court for the Eastern District of Virginia confirmed that electronic data maintained by an internet service provider may not, as a general rule, be produced in response to a third party’s discovery request. Relying on the Electronic Communications Privacy Act, 18 U.S.C. §§2701-2703, the District Court for the Eastern District of Virginia noted that internet service providers are obligated to protect their customers’ information from public disclosure. Since the Electronic Communications Privacy Act does not exclude from its coverage disclosures made pursuant to a subpoena, the disclosure of these materials may not be compelled and may in fact be prohibited.

We are at the time of year when our thoughts turn to giving—of thanks and more tangible items. The musings here will not reflect upon charitable giving--that is for a later entry. Rather it will deal with the more mundane and practical aspects of gifts to individuals, typically (but not necessarily) family members.

We first note the personal gratification of gift-giving and the generous impulses that inspire it—but there are also tax considerations.

If income-producing assets, e.g., corporate stock with dividend potential, are the subjects of gifts, income can be “split” among family members thereby reducing the overall income tax burden on the family. Also, property that is the subject of a gift is removed from the donor’s estate for estate tax purposes.

The District Court for the Western District of Virginia recently issued a ruling that clarifies a party's obligation to provide a knowlegable and prepared corporate designee in resposne to a Rule 30(b)(6) deposition notice. Below is a brief summary of this ruling.

Litigation

Spicer v. Universal Forest Products, Civil Civil Action No. 7:07cv462, 2008 WL 4455854, 1 (W.D.Va. Oct. 1, 2008)- In what may prove to be a significant memorandum opinion, Judge Michael J. Urbanski struck an employer’s defense of financial necessity because of its failure to designate an informed and sufficiently prepared deposition witness. The court’s decision to impose such a harsh sanction was influenced by the defendant employer’s repeated failure to provide appropriate responses to several of the plaintiff employee’s discovery requests. For example, the defendant employer failed to identify at least three employees with significantly knowledge about the facts of the case. Additionally, the defendant employer failed to produce hundreds of pages of relevant documentation obtained from various third parties. Finally, the defendant employer repeatedly produced belated discovery responses.