Silverman Thompson had written about Rochkind in its Maryland Litigation Lawyer Blog: Weird Science: Maryland’s New Test for the Admissibility of Expert Testimony (Oct. 1, 2020), available at https:/perma.cc/49A5-N9Z4. The Court of Appeals cited to that blog in the opening page of its Matthews decision in the context of the considerable comment that Rochkind generated when it issued.

Silverman Thompson’s lawyers have considerable experience handling expert testimony at both the federal and state levels in Maryland. For more information about our Business Litigation group or the contents of this post, please contact Bill Sinclair (bsinclair@silvermanthompson.com) or Todd Hesel (thesel@silvermanthompson.com) at 410.385.2225.

Silverman Thompson regularly handles licensure matters at the administrative level as well as appeals to Maryland’s states courts of adverse administrative decisions. For more information about this case, or how our Business Litigation department might be able to help you, please contact practice group chair Bill Sinclair (who argued the matter in the circuit court) at bsinclair@silvermanthompson.com or at 410.385.9116.

Addressing both counts, the Circuit Court first concluded that summary judgment was proper for both defendants on the invasion of privacy claim as the supposedly confidential facts were already in the public domain and, in any event, their disclosure would not be considered “highly offensive” to a reasonable person and were of legitimate public concern. Turning to the negligence count, the Court concluded that neither defendant owed plaintiff a duty to keep the information at issue confidential and thus summary judgment was warranted on that count. The court further concluded that an absolute privilege applied to the statements made at the Liquor Board hearing, further shielding defendants from liability.

Silverman Thompson regularly defends businesses and individuals in Maryland’s state courts. For more information about this case, or how our Business Litigation department might be able to help you, please contact practice group chair Bill Sinclair (who argued the summary judgment motion at issue) at bsinclair@silvermanthompson.com or at 410.385.9116.

STSW lawyers have been involved in numerous Bivens actions over the last two decades. To learn more about the Annappareddy/Lating matter; our experience with Bivens actions, or our general experience with complex federal criminal and civil litigation, please contact Andy White (awhite@silvermanthompson.com), Jodie Buchman (jbuchman@silvermanthompson.com), Chris Macchiaroli (cmacchiaroli@silvermanthompson.com), or Bill Sinclair (bsinclair@silvermanthompson.com) at 410.385.2225.

Firms included in the 2021 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.

The 2021 Edition of “Best Law Firms” includes rankings in 75 national practice areas and 127 metropolitan – based practice areas. To be eligible for a ranking, a firm must have one or more lawyers listed in The Best Lawyers in American.

Ranked firms, presented in tiers, are listed on a national and/or metropolitan scale. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism, and their integrity.

Silverman Thompson Slutkin & White LLC received the following rankings in the 2021 U.S. News – Best Lawyers “Best Law Firms”:

• Regional Tier 1
  • Baltimore
    • § Arbitration
    • § Mediation
• Regional Tier 2
  • Baltimore
    • § Criminal Defense: White-Collar
    • § Family Law
    • § Medical Malpractice Law – Plaintiffs/li>
• Regional Tier 3
  • Baltimore
    • § Appellate Practice

In their Second Amended Complaint, Appellants sought declaratory relief of the rights, title and interests of appellants and appellees in the real property, fraudulent transfer involving the real property, and other claims. Burkard Homes, led by Jodie E. Buchman of STSW, moved to dismiss on grounds that the Second Amended Complaint failed to state a claim upon which relief could be granted. The Circuit Court for Howard County granted that motion with prejudice. Appellants contended on appeal that the Circuit Court for Howard County erred in granting the motion without giving appellants a hearing, explanation or leave to amend. The Court of Special Appeals (Wilner, J.) affirmed the dismissal of Burkard Homes on grounds that the Circuit Court for Howard County did not abuse its discretion “in putting an end to those amorphous claims.”

For more information on this case, please contact Jodie E. Buchman. For more information on STSW’s real estate litigation practice, please contact Jodie E. Buchman or Avery B. Strachan, or its appellate practice, contact Joe.

Last month, though, one small business won an early battle in this war. The case is Studio 417 Inc., et al. v. Cincinnati Insurance Company, and remains pending in federal court in Missouri.

Although this decision did not resolve the entire case, rather merely allowed Studio 417 to survive a motion to dismiss and proceed to discovery, its discussion provides an important prism through which to consider the scope and importance of this issue.

What is Business Interruption Insurance?

Business interruption coverage allows a business to recoup certain losses in the event it cannot normally function no fault of its own. For example, let’s say you run a small print shop in downtown Baltimore. You finish for the day, lock up the store, and go home for the evening. But that night, a massive storm suddenly rips through downtown. When you arrive back at your store in the morning, you find that the storm caused massive damage to your shop and, as a result, all of your print machines are destroyed. To add insult to injury, a notice has been posed on your front door that reads: “PUBLIC NOTICE. THIS PROPERTY IS CONDEMNED. DO NOT ENTER UNTIL RESTRICTION LIFTED. BALTIMORE CITY BUILDING OFFICIAL.”

Now what? Well, assuming you have business interruption coverage, you call your insurance agent and file a claim against that coverage to cover your financial losses and your anticipated lost income.

Business Interruption Insurance After COVID19

Now, let’s change the facts slightly. What happens if you find out on March 23, 2020 that the Governor proclaimed that your business was deemed “non-essential” and must shut down operations at 5pm? Nothing about your business operations had changed from the prior day – the building remained intact and your equipment ran as well as ever. The only difference is that due to the public health emergency, you can’t operate or even open your shop to the public. Shouldn’t this shutdown in operations also qualify for coverage under your business interruption policy?

Since March, many insurance companies said “no,” asserting that such coverage only applies when a business owner claims a “physical injury or damage” to the premises where the business operates. In other words, losses stemming from the storm damages would be covered, but losses caused by the COVID-19 shutdowns are not. Insurance companies have alternatively pointed to exclusions in their policies for losses caused by “viruses” to deny coverage.

Under the Studio 417 Decision, Losses Caused By Closure Due To COVID-19 May Be Entitled To Business Interruption Coverage

Back to the plight of Studio 417, which was one of a group of hair salons shut down by proclamation of Missouri’s Governor due to COVID-19. After its insurer, Cincinnati Insurance, denied its claim business interruption coverage, Studio 417 sued. Cincinnati Insurance moved to have the case dismissed.

In reviewing Cincinnati Insurance’s motion to dismiss, the Court noted that Studio 417’s policy did not have an exclusion for viruses. Furthermore, it determined that Studio 417 adequately alleged that they sustained a “direct physical loss” as required by the policy because it alleges that its premises had become “uninhabitable or unusable.” Moreover, because the policy did not define what is meant by a “direct physical loss,” the Court found that Studio 417 adequately alleged that such a “loss” resulted from the fact that COVID-19 is a “physical substance” that was “emitted into the air” and “infected the premises.” Finally, the Court found that Studio 417 sufficiently alleged that the Governor’s proclamation closing their operations fell within the provisions of the business interruption policy allowing coverage when access to the business is denied by civil authority or that there is no ingress or egress from the premises.

This decision thus provides small businesses with a ray of light as they emerge from months of economic turmoil. If anything, the decision provides yet another example why you should never take your insurance company’s denial of your claim as the “final word.” It may be possible, given the specific coverage provided under your business interruption policy, and the specific facts of your loss, that relief is possible. Should you have any doubt, the attorneys at SILVERMAN THOMPSON collectively have years of experience navigating clients through these disputes. Please call us at 410.385.2225 and ask to speak with Ned Parent.

The court had dismissed Aberdeen’s second amended complaint last August, at which time, Aberdeen took an appeal to the Fourth Circuit. However, in October and November of 2019, new evidence came to light that the United States Justice Department and the SEC had been investigating Under Armour for essentially the same conduct as was at issue, and pled, in the second amended complaint. Aberdeen thereafter sought an indicative ruling from Judge Bennett that he would grant relief from the final judgment previously entered, and Judge Bennett granted that motion, causing the Fourth Circuit to remand the case.

In the interim, several other putative class actions were filed.

After a hearing, Judge Bennett reaffirmed that Aberdeen would serve as lead plaintiff, consolidated all other actions, and provided Aberdeen with the opportunity to file a third amended complaint.

Silverman Thompson serves as local counsel to Aberdeen. For more information, contact Bill Sinclair at 410.385.9116 or bsinclair@silvermanthompson.com.

One of STSW’s lawyer this year also received “Lawyer of the Year:” Andrew G. Slutkin for Medical Malpractice Law – Plaintiffs.

The following four STSW lawyers also have been recognized in 2021 Edition of Best Lawyers – Ones to Watch: Mark Edelson, Ethan Nochumowitz, and Kerri L. Smith.

Recognition by Best Lawyers is based entirely on peer review. It reflects consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. Additional recognitions are also awarded to individual lawyers with the highest overall peer-feedback for a specific practice area and geographic region. Only one lawyer is recognized as the “Lawyer of the Year” for each specialty and location.

The study committee will consider the need for one or more uniform laws addressing the authority of state governments to respond to epidemics, pandemics and other public health emergencies. In particular, the committee’s scope of review and recommendation includes

1. the authority of state governments to order individual and area quarantines, isolation, social distancing and other restrictions on travel and gatherings, including enforcement powers such as surveillance, search and seizure, criteria for issuance of such orders, notice requirements, procedures and penalties;
2. the authority of state governments to order closure of non-essential businesses, and the criteria for determining which businesses are essential;
3. state government acquisition of critical resources through collective purchasing mechanisms, the need to comply with federal antitrust law, or through commandeering private property with just compensation; and
4. rules for medical practice, including crisis standards of care, licensure reciprocity, and information sharing.

The study committee’s work is guided by a determination whether these subjects are appropriate for state legislation and uniformity among the states, whether there is a need for an act to address specific issues, whether a uniform act would provide significant benefits to the public through improvement to existing law, and whether a uniform act would maintain the integrity of well-balanced and well-settled law in areas traditionally governed by the states.

The Uniform Law Commission has a record of responding quickly to large-scale emergency events. For example, in 2006 the ULC adopted the Uniform Emergency Volunteer Health Practitioners Act. Drafted in the wake of Hurricane Katrina (2005), the Act allows state governments during a declared emergency to give reciprocity to other state’s health services licensees so that covered individuals may provide emergency health services without first being required to satisfy the disaster state’s licensing requirements. The goal of the Act is to speed medical help to those in need by removing administrative and bureaucratic hurdles, and by managing liability and risk to covered volunteer healthcare providers. The law has been enacted in 17 states, the District of Columbia and the US Virgin Islands. The COVID19 pandemic presents new and even more challenging issues in crisis response.

Mr. Leitess serves as chair of the Maryland Commission on Uniform State Laws, which is a member of the ULC. Since 1892, the ULC has provided states with non-partisan, carefully conceived uniform laws. The ULC’s work simplifies life for people who live, work, or travel in multiple states and improves local economies by facilitating interstate commerce. Each uniform act is drafted in an open and deliberative process that draws on the expertise of state-appointed commissioners, legal advisors and observers.

STSW’s client, a West Point graduate and a contracting officer on several large engineering programs at the Aberdeen Proving Grounds, steered several very large sub-contracts to an engineering company started by his close friend (and also a fellow West Point graduate) in exchange for 50% of the profit on the contract.

Both the client and his wife pleaded guilty to bribery in the United States District Court in Maryland before Judge Catherine Blake. At a sentencing hearing, federal prosecutors argued that the client should be ordered to pay all of the monies received as a result of the scheme to the United States as restitution. Prosecutors argued that the kickbacks paid by the engineering company proved that the company would have agreed to perform work on the contract at that reduced rate. They argued that the government should get the benefit of that reduced rate and they cited to several Circuit Court rulings agreeing with their position.

STSW partner Andrew White argued that the monies paid to the client should not be considered as actual losses to the government because the government negotiated the rates on the prime contract and received exactly what it bargained for in terms of work from that company. Mr. White argued that there could be no actual loss to the government in cases like this where the government has received the benefit of its bargain under the contract.

After conducting a full day motions hearing, Judge Blake, in a written ruling, agreed with STSW that the government does not suffer any actual loss in situations where a contractor kicks money back to a government official but otherwise fully complies with all of the work requirements of the contract.

Judge Blake noted that there were several Circuit Court rulings siding with the government’s position, but ultimately the Judge reasoned that her ruling was consistent with cases in the Fourth Circuit and was the correct result in any event.

In Pettiford v. Next Generation Trust Service (No. 34, Sept. Term 2019), the Court of Appeals was tasked with deciding whether the Court’s prior holding in McDaniel v. Baranowski, 419 Md. 560 (2011), should be extended to require residential landlords in Baltimore City to affirmatively plead that they possess a use and occupancy permit before utilizing summary ejectment procedures (rent court).

Before deciding this case, the Court invited MMHA to submit a brief on this issue. On behalf of MMHA, Ms. Strachan and Ms. Smith argued that if the Court extended McDaniel it would needlessly impose an onerous burden on residential landlords who seek to file Nonpayment of Rent actions in Baltimore City without any resulting public health or safety benefit.

On March 26, 2020, the Court issued its Opinion, holding that it would not extend McDaniel to apply to use and occupancy permits, adopting the reasoning set forth in the MMHA Brief of Amicus Curiae written by Silverman Thompson attorneys.

The federal matter, styled Baehr v. the Creig Northrop Team, P.C., traveled a longer and more circuitous route, with retired Judge Quarles certifying a class early in the matter only to have Judge Bennett dismiss the matter at summary judgment. In a unanimous, published opinion dated March 13, 2020, the United States Court of Appeals for the Fourth Circuit affirmed that decision, finding the plaintiffs lacked standing to sue and thus dismissal of the case was warranted. Baehr v. The Creig Northrop Team, P.C., et al., — F.3d – (4^th Cir. Mar. 13, 2020).

STSW attorneys Andy White and Bill Sinclair litigated both matters on behalf of Lakeview Title.