Labor and Employment
When Does the Commute Count? What Two New DOL Opinion Letters Mean for Flexible Schedules
Employers have been asking a version of the same question for years: If we let employees split their day between home and the office, or let a field employee handle calls before getting in the car, are we suddenly on the hook to pay for the drive? On August 6, 2026, the Department of Labor's Wage and Hour Division answered that question twice, in two opinion letters (FLSA2026-9 and FLSA2026-10) that reach opposite conclusions on similar facts. Read together, they give employers a genuinely useful roadmap for structuring flexible and hybrid schedules without accidentally converting an employee's commute into paid working time under the Fair Labor Standards Act. The Employee's Choice: Mid-Day Commuting Stays Unpaid The first letter deals with a familiar hybrid-work scenario. Employees want to work part of the day from home and part from the office, timing their drive to dodge rush hour rather than sitting in traffic during the worst of it. The employer worried that under the FLSA's continuous workday doctrine, once an employee clocks in for the day, any travel before clocking out again becomes compensable, even if it is really just a commute that happens to fall in the middle of the day rather than at the beginning or end. WHD said no. When the employee decides when to travel and that decision is driven by personal preference rather than any work demand, the trip remains what it has always been: an ordinary commute. It does not matter that it happens mid-shift. The agency went further and effectively created a third bucket of non-compensable time that exists alongside off-duty periods and bona fide meal breaks: voluntary, employee-driven travel that falls inside the continuous workday but outside the definition of "hours worked." This is a meaningful win for employers trying to offer real flexibility. It confirms that letting people avoid gridlock, or duck out mid-afternoon to handle something at home before logging back in later, does not by itself create new wage exposure. The Employer's Control: Travel Bookended by Required Work Gets Paid The second letter tells a different story, and the contrast is the point. Here, a field service engineer with no fixed office spends up to an hour most mornings on the phone, fielding pages, and scheduling appointments with clients and colleagues, before ever leaving the house in a company vehicle to reach the first job. WHD found that the scheduling calls themselves are compensable because they are integral to the engineer's actual job of installing and servicing equipment. More importantly for scheduling purposes, the drive that follows is compensable too, because the employer requires substantial work immediately before and immediately after the travel, and because the employer, not the employee, controls when and how that travel occurs. Notably, WHD drew a line even within this letter. Simply receiving pages during the drive was treated as incidental to using an employer-provided vehicle and did not, by itself, trigger compensability. The dividing line the agency keeps returning to is not the mere presence of a phone or a laptop during the commute; it is whether the employer is dictating the timing of the trip and sandwiching it between required work. Reading the Two Letters Side by Side Both opinion letters apply the same "primary beneficiary" framework that has guided FLSA travel-time analysis for decades, and both reach different results because of who is actually calling the shots. Where the employee sets the schedule, and the travel serves the employee's own convenience, the trip stays an ordinary, unpaid commute even if it happens smack in the middle of a workday. Where the employer sets the schedule and requires real work on both ends of the drive, the travel loses its status as an ordinary commute and becomes paid time. What This Means for Employers Right Now For employers running hybrid schedules, offering flexible start and end times, or managing a field-based workforce, these letters offer something rarer than most agency guidance: a clear, factor-based test that can actually be built into policy. The safest ground is genuine employee choice over the timing of travel, paired with no requirement to perform work immediately before or after the drive. The moment an employer starts dictating when someone has to leave, or requiring calls, paperwork, or scheduling tasks right up against the commute, the analysis shifts and the travel time risk goes up. It is worth remembering that opinion letters are not binding law, but they do carry real practical weight. An employer who structures a policy consistent with an opinion letter and later faces a Fair Labor Standards Act claim on the same facts has a strong argument against a finding of willfulness, which can matter enormously for liquidated damages and the statute of limitations. It is also worth remembering that these letters interpret federal law only. A number of states impose stricter rules on what counts as compensable travel time, so any policy built around this guidance still needs to be checked against state law before it is rolled out. Employers revisiting hybrid work policies, flexible scheduling, or field employee protocols in light of this guidance should take a close look at who actually controls the timing of the commute and what, if anything, employees are required to do immediately before or after they get in the car.
August 14, 2026
Commercial Litigation
Data Center Developers Take Note: Virginia Court Allows Nuisance Suit Against Amazon to Proceed
Virginia's booming data center industry received an important legal reminder this summer. In Newsom v. Amazon Data Services, Inc., a federal court in Virginia allowed a neighboring property owner's nuisance lawsuit against Amazon to move forward, overruling, in part, Amazon's motion to dismiss. Newsom v. Amazon Data Services, Inc., W.D. Va. No. 3:25-CV-00074, 2026 WL 1993954, at *1 (W.D. Va. July 10, 2026). The landowner and business tenant plaintiffs alleged that construction of Amazon's Louisa County data center created excessive noise, bright lights, dust, flooding, water-quality issues, vibrations, structural cracking to the plaintiffs’ property, and disruptions to the plaintiffs’ business. The court found the plaintiffs’ allegations sufficient to withstand a motion to dismiss. The case will now proceed, and discovery can begin. Why This Matters The decision is significant because it reinforces a growing trend of opposition and resistance to data center developments. Even if a project is properly permitted, it can still face nuisance claims from neighboring property owners or occupants. Virginia courts have long recognized that lawful development activities can become actionable if they unreasonably interfere with a neighbor's use and enjoyment of property. Bowers v. Westvaco Corp., 244 Va. 139, 147, 419 S.E.2d 661, 667 (1992). Just as importantly, the court refused to analyze each complaint in isolation. Instead, it looked at the alleged impacts collectively, considering the combined effects of noise, dust, lights, vibrations, flooding, and other conditions on the neighboring property. For data center developers, that approach creates risk. A complaint that might appear manageable when viewed issue-by-issue can look much different when all alleged impacts are bundled together into a single nuisance claim. A Growing Challenge for Large-Scale Projects The ruling comes as data center development continues to expand beyond Northern Virginia into communities such as Louisa County and elsewhere across the country. These projects often involve years of construction activity, extensive grading, heavy truck traffic, large-scale utility work, and around-the-clock operations. As a result, developers should expect increased scrutiny from nearby residents and businesses, particularly when projects are located near existing homes or commercial properties. Key Takeaways for Developers Developers should view this decision as a reminder to focus not only on regulatory and permitting compliance but also on neighboring-property impacts. Some practical lessons include: Document noise, dust-control, and stormwater-management efforts Investigate complaints from neighboring property owners and occupants promptly Engage with neighboring property owners early in the development process Recognize that tenants and occupants, not just property owners, may have standing to bring nuisance claims in certain circumstances Bottom Line Newsom is only an initial procedural ruling, not a determination that Amazon is liable. But it sends a clear signal that Virginia courts are willing to entertain nuisance claims arising from large-scale data center construction when neighbors plausibly allege substantial interference with their property rights. For developers, owners, and contractors, the case is a reminder that successful projects require more than permits and approvals. Managing the impact on neighboring properties may be just as important as managing the project itself.
August 13, 2026
Family Law
High-Risk Protection Reform: Rethinking Orders of Protection in High-Risk Domestic Violence Cases
Every day, judges in New York issue Temporary Orders of Protection to help prevent domestic violence. These orders play a crucial role. They can remove an abuser from the home, prohibit contact, require surrender of firearms when permitted, and give law enforcement clear authority to act if the order is violated. Just as paper cannot refuse ink, the order itself cannot stop physical violence. The order can ban violent acts and punish violations, but it cannot physically stop someone determined to cause harm. This is not meant as a criticism of courts or judges. It simply shows that orders of protection should be the first step in keeping victims safe, not the last. Unfortunately, that is often the case. The order is issued, but the abuse continues – because it cannot be stopped without putting the offender in jail. And on many occasions, the offender does more than just continue the abuse. Most domestic violence homicides come with warning signs. These can include increasing control, stalking, threats to kill, strangulation, access to guns, prior assaults, and violations of court orders. The period immediately after separation or a court action is especially dangerous, as abusers may feel they are losing control. The main question, therefore, is not whether New York should continue issuing orders of protection — they are clearly needed. The real issue is whether a Temporary Order of Protection in high-risk cases should automatically trigger additional protective measures. This issue is not theoretical. In April of this year, Tomeka Kamwani, a 41-year-old New Jersey nurse and mother of four, reportedly obtained a temporary restraining order after her former fiancé followed her to a friend’s residence. According to her family, he repeatedly violated the order. Court records reported by NJ.com indicate that he was subsequently charged with burglary, terroristic threats, criminal mischief, and simple assault after allegedly breaking into her home and assaulting her. A request to detain him pending trial was denied. Weeks later, according to her family, he entered her home, shot her three times, and then killed himself while two of her children were present. See Matt Gray, N.J. Nurse Killed by Ex-Fiancé in Murder-Suicide Weeks After Getting Restraining Order, Family Says, NJ.com (Apr. 2, 2026), republished by Yahoo News; Shawnette Wilson, Vigil Held for Swedesboro Nurse and Mother of Four Killed in Suspected Domestic Violence, FOX 29 Philadelphia (Apr. 3, 2026). In another case in April of this year, Victoria Alexander, also a New Jersey nurse, was killed at her workplace in Egg Harbor Township. Prosecutors report that her estranged husband blocked her car, left suicide notes, pursued her into her workplace, shot her multiple times, and then took his own life. The Atlantic County Prosecutor described the incident as “a tragic and deliberate act of domestic violence.” See Stephen Sorace, New Jersey Nurse Gunned Down at Work by Estranged Husband in Murder-Suicide: Police, Fox News (Apr. 14, 2026); EHT Nurse Killed in “Tragic and Deliberate Act of Domestic Violence,”, BreakingAC (Apr. 14, 2026). Despite differences in location and procedure, both cases reveal a common failure: warning signs were evident before the fatal incidents. New York’s Strong but Reactive Framework New York law gives Family Court and Criminal Court substantial authority to protect victims of domestic violence. Article 8 of the Family Court Act authorizes orders of protection that may include stay-away directives, no-contact provisions, and other restrictions to prevent further abuse. Courts may consider prior abuse, threats, substance abuse, access to weapons, and related risk factors when determining appropriate conditions. See N.Y. Fam. Ct. Act § 842 (McKinney 2026). It is also important to distinguish a Temporary Order of Protection from a Temporary Restraining Order. A Temporary Restraining Order, or TRO, is generally a civil litigation tool used to preserve property, assets, contractual rights, or the status quo while a lawsuit is pending. In New York, TROs may arise in Supreme Court commercial or matrimonial matters, Surrogate’s Court estate disputes, federal intellectual-property or business cases, and certain civil matters involving property or contractual interference. By contrast, a Temporary Order of Protection, or TOP, is directed at personal safety and behavior. It is issued by courts with authority over family offenses, criminal charges, or matrimonial proceedings, most commonly Family Court, Criminal Court, and Supreme Court when connected to a divorce action. For the public, the difference is practical: a TRO may freeze a bank account, stop a sale, or preserve business rights, whereas a TOP is the court order meant to protect a person from abuse, threats, stalking, harassment, or violence. That distinction matters because the article’s focus is not ordinary civil restraint; it is whether personal-safety orders in high-risk domestic violence cases provide sufficient immediate protection beyond the paper order itself. New York has also strengthened firearm surrender provisions. Family Court Act § 842 -a requires an inquiry into firearm access when a temporary order is issued and authorizes the suspension, surrender, seizure, and related protections in specified circumstances. Criminal Procedure Law § 530.14 provides parallel firearm-surrender authority in criminal cases. See N.Y. Fam. Ct. Act § 842-a (McKinney 2026); N.Y. Crim. Proc. Law § 530.14 (McKinney 2026). These provisions are not symbolic; they recognize that domestic violence can become lethal quickly when threats, weapons, and separation converge. The case law underscores both the power and the limits of orders of protection. In People v. Wood, 95 N.Y.2d 509, 511–12, 742 N.E.2d 114, 115–16, 719 N.Y.S.2d 639, 640–41 (2000), the Court of Appeals described New York’s parallel civil and criminal protective-order statutes as designed to “stem the tide of domestic abuse between people locked in destructive relationships.” Id. at 516, 742 N.E.2d at 119, 719 N.Y.S.2d at 644. The decision arose in a double-jeopardy context, but its premise remains important: orders of protection constitute a broader public response to domestic abuse, not simply private paperwork between litigants. These laws matter and have saved lives. But they are not enough if the legal system treats issuing an order as the last step. A court order tells someone what not to do, but it does not track their actions, verify that guns are removed, coordinate agencies, assist with emergency moves, or ensure that safety plans continue. For many people, the risk of arrest is enough to stop them. But for the most dangerous offenders, this is not always true. Sometimes, the first time they violate the order is the last warning before a tragedy occurs. The Warning Signs Are Known Research shows that requesting an order of protection often indicates that the danger is higher, not that the order does not work. The warning signs are clear, but the main problem is the lack of an automatic, coordinated response when these signs appear. Those indicators include: Threats to kill the victim, children, others, or the offender himself Prior strangulation or attempted strangulation Access to firearms or other deadly weapons Stalking, surveillance, or obsessive jealousy Escalating violence, forced sexual conduct, or violence during pregnancy Recent or anticipated separation Repeated violations of prior orders of protection Statements suggesting the offender has “nothing left to lose” When several risk factors are present, the danger is real and predictable, not merely a possibility. These situations require more than a written warning. Lessons from Australia Australia offers useful models because several jurisdictions treat high-risk domestic violence as a continuing public-safety emergency, not merely a court case. Victoria’s Multi-Agency Risk Assessment and Management Framework (MARAM) provides a shared structure for identifying, assessing, and managing family violence risk across agencies. It emphasizes coordinated safety planning, information sharing, and keeping perpetrators “in view” rather than placing the burden of safety solely on victims. See State Gov’t of Victoria, Family Violence Multi-Agency Risk Assessment and Management Framework (updated July 27, 2023). New South Wales offers another example through Safer Pathway. Its Domestic Violence Safety Assessment Tool evaluates threats to victim-survivors’ life, health, and safety. Cases deemed to pose a serious threat may be referred to Safety Action Meetings, where police and government and non-government service providers share relevant information and develop coordinated steps to reduce risk. See N.S.W. Dep’t of Communities & Justice, General Information About Safer Pathway (Oct. 6, 2023); N.S.W. Dep’t of Communities & Justice, Domestic Violence Safety Assessment Tool (Apr. 29, 2026). No system can promise complete safety, but these approaches are based on the right idea: high-risk cases need a team response that goes beyond just giving an order. A New York High-Risk Protection Protocol New York should improve its system by establishing a statewide High-Risk Domestic Violence Protection Protocol. This protocol should not depend on the decisions of individual courts, prosecutors, police, or service providers. Instead, it should activate automatically when a Temporary Order of Protection is issued and there are clear signs of serious danger. At minimum, the protocol should include: Mandatory lethality assessment at the time emergency relief is considered, including the victim’s perception of danger Automatic referral of serious-threat cases to a multidisciplinary high-risk team Immediate firearm verification, including confirmation of surrender and access to unregistered weapons, ammunition, and third-party firearms Emergency practical protection, including relocation, secure communications, transportation, workplace and school safety planning, and technology-stalking assessment Continuing judicial review to confirm service, firearm compliance, violations, changes in risk, and implementation of the protection plan Carefully limited information sharing with confidentiality, due process, privilege, medical privacy, and record-security safeguards in place The aim is not to take away judicial discretion or weaken due process. People must still receive notice, a meaningful opportunity to be heard, decisions tailored to their situation, fair conditions, set time limits, and regular reviews. But due process does not mean courts and agencies should ignore real evidence of deadly risk. The Required Shift: From Paper Protection to Real Protection This reform is both urgent and about changing how we think. New York should look beyond just past violations and focus on taking action to prevent deadly harm to those who need protection. A Temporary Order of Protection remains important. However, when there are clear signs of possible homicide, it should prompt risk assessment, teamwork, firearm checks, safety planning, and continued oversight. A written order by itself cannot stop violence. But if the legal system treats a high-risk protection order as an urgent warning rather than the last resort, it could help prevent future harm. New York should adopt this approach.
August 12, 2026
Intellectual Property
Pop Art Time Bomb: The Second Circuit's Ruling in Hayden v. Koons
In the late 1980s, American artist Michael Hayden created a Styrofoam serpent sculpture for Ilona Staller, the Italian adult film actress and parliament member better known as Cicciolina, to use as a prop during her live erotic performances. Hayden sold the work to Staller's production company in 1988 for approximately $900. A year later, Staller’s husband, American artist Jeff Koons, posed with Staller for a series of erotic photographs that would become Koons’ Made in Heaven series. Three of those works depicted Koons and Staller atop Hayden's sculpture, and they debuted at the 1990 Venice Biennale to what Hayden himself described in his complaint as a "media sensation and scandal" that "launched Koons into the art world's stratosphere." Hayden claims he did not discover any of this until 2019, when a news article about an unrelated Staller lawsuit caught his attention. He registered his copyright and sued Koons in December 2021. The case never reached the merits. The Copyright Act requires that infringement claims be filed within three years of when the copyright owner discovers, or reasonably should have discovered, the infringement. The Second Circuit affirmed dismissal on statute of limitations grounds, rejecting Hayden's argument that constructive discovery requires a plaintiff to have actual knowledge of specific triggering facts before the clock starts running. The court clarified that constructive discovery turns on a fact-intensive, objective inquiry into whether a reasonably diligent copyright holder, given all the surrounding circumstances, should have uncovered the infringement. Applying that standard, the panel found the answer here was obvious: Hayden lived in Italy for nearly three decades, was fluent in Italian, consumed Italian news daily, had a direct professional relationship with Staller, and was present in Italy during the very Biennale that made Koons internationally famous, with Staller prominently featured. The court was careful to note that its ruling does not create a "celebrity privilege" that automatically starts the limitations clock whenever a famous artist is involved. Fame is one factor among many, not a categorical rule. The practical lesson for copyright owners is sobering. A rights holder who ignores widespread, international coverage of allegedly infringing work does so at significant legal peril, regardless of whether they actually saw that coverage. Hayden's claim failed not because he sat on a known injury, but because the court concluded a reasonably diligent person in his position could not plausibly have missed it.
August 11, 2026
Family Law
Should the Future of Frozen Embryos Be Addressed in a Prenuptial Agreement?
When couples are planning a wedding, conversations about finances, property, and future goals are common. For couples who are considering in vitro fertilization (IVF), have already created frozen embryos, or anticipate using assisted reproductive technology in the future, there is another important topic that deserves careful discussion: What happens to embryos if the marriage ends? While no one enters a marriage expecting divorce, addressing these issues in a prenuptial agreement can provide clarity, reduce conflict, and protect both parties from emotionally and financially costly disputes. Unlike bank accounts or real estate, frozen embryos occupy a unique legal and ethical space. They represent both reproductive potential and significant emotional investment. When a relationship ends, former spouses may disagree about whether embryos should be used to attempt a pregnancy, donated to another individual or couple, donated for scientific research, or destroyed. These disagreements can become some of the most difficult issues courts face in divorce proceedings because they involve competing interests in reproductive autonomy. A carefully drafted prenuptial agreement may include provisions that outline the parties' intentions regarding embryos created before or during the marriage. For example, the agreement may specify: Who will have decision-making authority if the marriage ends Whether embryos may be used only with the consent of both parties Whether one spouse waives any future claim to use the embryos Whether the embryos will be donated or discarded if the parties cannot agree How expenses related to storage will be handled Although the enforceability of these provisions depends on state law and the specific facts of the case, documenting the parties' intentions before a dispute arises can be valuable. Divorce often involves heightened emotions. Without prior agreement, decisions about frozen embryos may become lengthy and expensive legal battles. Discussing these issues before marriage offers several benefits: It encourages open communication about future family planning It helps both parties understand each other's expectations It reduces uncertainty if circumstances change It may minimize litigation and legal costs Having these conversations while both parties are working together is often far easier than attempting to resolve them during a divorce. Laws governing embryo disputes vary significantly from state to state. Some courts place substantial weight on prior agreements between the parties, while others balance competing constitutional and public policy interests. In addition, fertility clinic consent forms may also play an important role in determining what happens to stored embryos. Because the legal landscape continues to evolve, couples should work with an experienced family law attorney and, when appropriate, coordinate with their fertility clinic to ensure their agreements are consistent and as effective as possible under applicable law. A prenuptial agreement is more than a tool for protecting financial assets. For couples pursuing or anticipating assisted reproductive technology, it can also provide a thoughtful framework for addressing one of the most personal decisions they may ever face. Planning for the future does not reflect a lack of commitment to the marriage. Instead, it reflects careful communication, informed decision-making, and respect for each person's reproductive rights. By addressing the disposition of embryos before conflict arises, couples can reduce uncertainty and focus on building their future together with greater confidence.
August 11, 2026
Family Law
Determining the Matrimonial Property Regime in an International Marriage: A U.S. Perspective
International marriages can create complex questions about which country’s laws govern the spouses’ property rights. A couple may marry in one country, live in another, and acquire assets across several jurisdictions. In such cases, the place of marriage alone does not necessarily determine the applicable matrimonial property regime. In the United States, matrimonial property is primarily governed by state law, rather than a single federal regime. States generally follow either a community property or equitable distribution system. Therefore, the first step is to identify the court hearing the dispute and examine that state's choice-of-law rules. Those rules determine whether the court will apply its own law or the law of another state or country. Factors that may be relevant include the spouses' domicile, matrimonial residence, the place where property is acquired, the location of the property, and the parties' intentions. After identifying the potentially applicable law, the assets must be classified. Property may be treated as separate property or marital/community property depending on the governing law. Important questions include: Was the asset acquired before or during the marriage Where were the spouses domiciled when it was acquired Where is the asset located Was it inherited or received as a gift Was separate property mixed with marital funds Is there a prenuptial or postnuptial agreement Real estate can require particular attention because the law of the property's location may have a significant role. In a community-property state, qualifying property acquired during marriage is generally treated as belonging to the marital community, subject to state-specific exceptions. In an equitable-distribution state, marital property is divided according to principles of fairness rather than necessarily divided equally. Some community-property states also recognize concepts such as quasi-community property, which can affect property acquired while the spouses were living elsewhere. A valid prenuptial or postnuptial agreement can significantly affect the analysis. Such an agreement may specify how property will be characterized and may contain a choice-of-law provision. However, the agreement must satisfy applicable requirements for validity and enforceability. In an international marriage, it is therefore important to consider not only where the agreement was signed, but also which jurisdiction's laws may govern it. Determining the matrimonial property regime in an international marriage is essentially a choice-of-law and property-classification exercise. The place of marriage is only one consideration. Domicile, the matrimonial home, the location and timing of asset acquisition, applicable state conflict-of-laws rules, and marital agreements may all influence the result. Because U.S. matrimonial-property law varies significantly from state to state, an international couple should identify the potentially applicable jurisdictions and obtain advice before assuming that one country's or state's property regime governs the entire marital estate.
August 11, 2026
Intellectual Property
Why Trademark Issues Slow Deals and Launches More Than the USPTO Ever Will
When a trademark timeline slips, the U.S. Patent and Trademark Office is often the first to receive the blame. Applications take months before they are examined. Office Actions interrupt momentum. Publication introduces another waiting period. If an opposition is filed, the timeline extends even further. Those delays are real, but in my experience, they are rarely the reason a transaction stalls or a product launch is postponed. More often, the real delay occurred months, or even years earlier, when important trademark decisions were deferred because they did not seem urgent at the time. By the time financing, acquisition, product launch, or national expansion is on the calendar, those unresolved issues have become immediate business problems. The trademark process itself has not changed. What has changed is the company's tolerance for uncertainty. For in-house counsel, recognizing this distinction is important. The USPTO follows a predictable process. Internal decision-making often does not. Understanding where delays truly originate allows legal teams to identify and eliminate bottlenecks before they jeopardize business objectives. Trademark Problems Rarely Appear Overnight Most trademark issues do not emerge suddenly. They develop gradually. A company may know that a registration does not cover a new product line but decides to revisit the issue later. A clearance search may identify a potentially conflicting mark, but the business concludes that expansion into that market is still years away. A brand may be used inconsistently across websites, packaging and marketing materials without anyone viewing it as a pressing legal concern. Individually, these decisions often seem reasonable. Resources are limited, business priorities shift, and not every trademark issue requires immediate action. The problem is that unresolved issues rarely disappear. They simply remain dormant until another business event makes them impossible to ignore. When that event arrives, the timeline has already become compressed. Transactions Have a Way of Exposing Trademark Weaknesses Corporate transactions are particularly effective at bringing trademark issues into focus. During due diligence, buyers, investors, and lenders expect intellectual property to be organized, documented, and defensible. Questions that may never have been raised internally suddenly become central to the transaction. Who owns the trademark registrations? Are key brands properly assigned? Do registrations cover the products and services that generate the company's revenue? Are there unresolved Office Actions, opposition proceedings, or coexistence agreements that affect the strength of the portfolio? Has the company consistently used its marks in a way that preserves their distinctiveness? These are not obscure legal questions. They directly affect the value of the business being acquired or financed. The important point is that these issues almost never originate during the transaction itself. They simply become visible because someone outside the organization is evaluating the portfolio with fresh eyes and a lower tolerance for uncertainty. The due diligence process does not create trademark risk. It reveals trademark risk that already existed. Product Launches Create the Same Dynamic Product launches create a similar form of pressure, although the audience is different. Early in the branding process, changing a proposed product name is usually inexpensive. Marketing materials have not been finalized. Packaging has not been printed. Domain names can still be secured, and advertising campaigns have not yet begun. As the launch progresses, those options become more expensive. Eventually the company reaches a point where significant investments have already been made. Packaging is in production. Retail partners have committed shelf space. Sales teams have begun customer outreach. Digital marketing campaigns are scheduled to go live. At that stage, even a relatively modest trademark issue can disrupt the entire launch. Leadership is no longer asking whether the legal risk exists. Instead, the discussion becomes whether the company is willing to absorb the cost of changing course or accept the risk of moving forward. Neither option is ideal. Had the trademark issue been identified and resolved earlier, the same legal analysis could have been completed with far less business disruption. The Real Bottleneck Is Usually Internal Alignment One of the more interesting aspects of trademark practice is that the USPTO is often the most predictable participant in the process. The agency publishes examination timelines. Filing procedures are well established. Office Actions follow defined rules, and applicants generally know the deadlines for responding. Internal decision-making rarely operates with the same level of predictability. Trademark issues often require input from legal, marketing, product development, executive leadership, and sometimes outside agencies or investors. Each group may view the issue through a different lens. Marketing may prioritize brand recognition. Product teams may prioritize launch dates. Business leaders may focus on revenue targets. Legal may focus on protecting long-term brand value and reducing litigation risk. None of these perspectives is wrong, but reaching alignment can take far longer than preparing and filing a trademark application. When no clear decision-making framework exists, each trademark issue becomes an individual negotiation. Time is spent identifying stakeholders, gathering information, evaluating alternatives, and revisiting questions that could have been addressed months earlier. That is where many delays occur. Earlier Conversations Matter More Than Earlier Filings The solution is not necessarily filing trademark applications earlier in every circumstance. Rather, it is beginning the strategic conversations earlier. Regular trademark portfolio reviews can identify gaps before they affect a financing or acquisition. Consistent clearance procedures can reduce the likelihood of late-stage naming disputes. Periodic reviews of ownership records, assignments, and registrations help ensure that documentation is complete when diligence begins. Equally important is establishing clear escalation procedures. When a significant trademark issue arises, decision-makers should understand who needs to be involved, what level of risk requires executive attention, and how competing business objectives will be evaluated. Organizations that have these processes in place generally make trademark decisions more efficiently because they are not creating the decision-making structure while simultaneously facing a business deadline. Trademark Strategy Is Really Business Strategy It is easy to think of trademarks as a legal compliance issue or simply another filing obligation. In reality, trademarks support some of a company's most valuable business assets: its brand identity, customer recognition, goodwill, and market reputation. When those assets are managed proactively, transactions tend to proceed more smoothly, product launches face fewer last-minute obstacles, and business leaders have greater confidence in the decisions they make. Conversely, when trademark issues remain unresolved until a deal or launch forces action, legal teams often find themselves responding under compressed timelines with fewer practical options available. The trademark process itself is usually not what slows the business. More often, the delay results from waiting too long to make decisions that were always going to have to be made. The companies that move fastest are not necessarily the ones that file the most trademark applications. They are the ones that treat trademark strategy as an ongoing business function rather than a task reserved for moments of crisis. By addressing issues before they become urgent, they preserve flexibility, reduce transaction friction, and keep important business initiatives moving forward.
August 6, 2026
Mergers and Acquisitions
The Earnout Trap: Hidden Post-Closing Risks in M&A Transactions
Earnouts are often presented as a solution that can help get a deal across the finish line. If a buyer and seller disagree on valuation, an earnout can help bridge that gap by tying a portion of the purchase price to the future performance of the company post-closing. It’s a simple concept in theory. If the company performs as expected, the seller will receive additional payments. If the company does not meet the established metrics, the buyer pays less. However, in practice, earnouts can introduce a significant layer of complexity, and they are one of the most heavily litigated provisions in M&A transactions. Why does this happen? Because after closing, the seller is no longer in control of the business – something that is often seriously underestimated during negotiations. Founders generally have a belief that the company they created and built is poised for substantial growth. And while that might have been true pre-sale, once there is an ownership transfer, things can change significantly. The seller no longer has the ability to make decisions to achieve growth targets. Hiring decisions, sales strategy, marketing budgets, staffing levels, pricing models, operational priorities, and integration efforts are all solely in the hands of the buyer once the deal is done. To further complicate matters, the acquired company may be integrated into a larger platform business or combined with another portfolio company. Revenue streams may be reallocated, expenses may be shifted, and key employees may choose to leave. Long-term integration might also be a higher priority for the buyer as opposed to short-term profitability. Each of these decisions can directly impact whether earnout metrics are achieved. And this is where disputes arise. Sellers must carefully negotiate earnout provisions to avoid losses or even the courtroom down the road. Establishing Clear Standards One of the biggest mistakes sellers make when negotiating earnouts is agreeing to vague or subjective standards. The more discretion the buyer has post-closing, the greater risk to the seller that they will never receive their full earnout payment. This is why sellers should work with legal counsel to establish objective, clearly measurable performance metrics. For example, revenue-based earnouts are typically easier to evaluate than EBITDA or profitability metrics because profit calculations can be heavily influenced by post-closing decisions. And even the most straightforward revenue metrics need to be carefully drafted. Sellers must understand exactly what counts toward the target, how revenue is recognized, whether certain contracts are excluded, and how deferred or recurring revenue will be treated. Properly Structuring Earnouts The structure of earnouts also matters, because when these are not structured properly, a seller could forfeit millions in earnout consideration if targets are barely missed. Therefore, the following provisions must be heavily negotiated or there can be a dramatic sway in the ultimate economics of the transaction: Is the earnout all or nothing? Will missing the target by a small margin result in no payment at all? Is there a sliding scale that allows for partial payments if performance reaches certain thresholds? If the company exceeds projections, does the seller benefit from that upside? Post-Closing Information and Enforcement Rights Another critical factor to consider are the seller’s post-closing information and enforcement rights. Sellers should negotiate their access to financial information, reporting obligations, audit rights, and dispute resolution procedures before signing any deal documents. Without having these kinds of protections in place, it becomes increasingly difficult to determine whether a buyer appropriately calculated the earnout or if operational decisions unfairly impacted performance. The Broader Financial Risk It is common for sellers to underestimate the broader financial risk that is tied to variable consideration structures such as earnouts and rollover equity. These can be extremely valuable tools in the right transaction, but they also shift risk back to the seller. The more price is tied to future performance, the less certainty the seller has regarding their proceeds from the sale. This is why legal counsel and deal advisors encourage sellers to limit the percentage of total deal value that is tied to earnouts whenever possible. Cash at closing equals certainty. While earnouts can provide an upside, they can also establish a continued dependency on a business that the seller no longer controls. These risks do not mean earnouts should be avoided in every situation. They do have value in their ability to bridge valuation gaps, align incentives, and move deals forward that otherwise would have stalled out. But sellers must approach earnouts with caution and a clear understanding of these risks. In M&A transactions, much of the important negotiations center on the purchase price. But remember, the most important disputes occur post-closing, with earnouts being at the center of them. Negotiate earnouts wisely.
August 3, 2026
Intellectual Property
Danger Zone: Top Gun Heirs Ask Supreme Court to Rewrite the Rules on Copyright Similarity
When Ehud Yonay wrote "Top Guns" for California Magazine in 1983, an 11-page account of the Navy's elite fighter pilot training program, Paramount Pictures came calling almost immediately, licensing the rights, and using the article as the springboard for the 1986 blockbuster Top Gun. After Yonay's death in 2012, his heirs attempted to exercise a powerful but often-overlooked copyright tool: statutory termination rights under 17 U.S.C. § 203, which allow an author's heirs to reclaim copyright grants made during the author's lifetime after a statutory period has elapsed. When Paramount released Top Gun: Maverick in 2022 without compensating or crediting the Yonay estate, the heirs promptly sued for copyright infringement and breach of contract. A district court disposed of the case in 2024, granting Paramount’s motion for summary judgment. The Ninth Circuit affirmed in January 2026, holding that Maverick did not infringe the article because every meaningful similarity between the two works, the shared setting, the fighter-pilot culture, aerial training sequences, etc., reflected unprotectable facts about the real Top Gun program rather than any protected original expression from Yunay’s work. While courts ultimately resolved the § 203 claim forming the basis of the suit in the Yonay’s favor, confirming that the rights to the initial article reverted to them, the central legal battleground became "substantial similarity,” the established standard that copyright plaintiffs must satisfy to show that a defendant copied their original creative expression, as opposed to the underlying facts or ideas, which lie in the public domain. The Ninth Circuit applies a two-step approach to determine substantial similarity. First, an "extrinsic test" that dissects a work into its component parts, filters out unprotectable elements like facts and generic ideas, and compares what remains piece-by-piece. Only works that clear this analytical gauntlet proceed to an "intrinsic test,” a holistic, ordinary-observer assessment of overall similarity. The Yonays argued that the article's vivid language, innovative structure, and the distinctive way Yonay wove those elements into a coherent portrait of a fighter pilot’s life were all protectable, including under a "selection-and-arrangement" theory, which recognizes that an original combination of otherwise unprotectable elements can itself merit copyright protection. The Court disagreed; every similarity, the Court stated, either dissolved into uncopyrightable facts about the real program or evaporated into abstract narrative ideas too general to be owned (the "redemption of a hero," beauty and terror juxtaposed in aerial sequences). Thus, the Yonays' selection-and-arrangement theory failed because the narrative patterns they identified were storytelling conventions, not Yonay's original contribution. The Yonays are appealing the Ninth Circuit’s decision and are applying for certiorari to make their case before the Supreme Court, basing their appeal on a new theory highlighting a significant circuit split. While the Ninth Circuit requires plaintiffs to clear the extrinsic-dissection test before any holistic similarity assessment, the Second, Third, Fifth, Seventh, and D.C. Circuits consider overall similarity without the threshold hurdle. Should SCOTUS grant certiorari and find for the Yonays, the result may be a sea change in the way copyright analysis is handled in one of the busiest jurisdictions for such cases. The Second and Ninth Circuits handle the heaviest copyright dockets in the country, covering the publishing and entertainment capitals. Yet, rights holders face materially different legal standards depending on which coast their lawsuit lands. The Yonays’ petition frames this as a $2 trillion problem, invoking copyright-intensive industries' contribution to the national economy, and argues that the Ninth Circuit's approach effectively strips protection from works like Yonay's, where original expression is inseparable from journalism about real events. Whether the Court grants certiorari remains to be seen, but the petition puts a consequential question about how courts measure creative similarity directly on its radar.
August 3, 2026
Estates and Trusts
Why a Trust Can Be Essential When Planning for a Family Vacation Home
A family home often carries value far beyond its market price. It may be the place where generations gathered for holidays, summers, milestones, and ordinary moments that became family memories. But when that property is transferred without careful estate planning, even a well-intentioned decision can produce a result no one expected. Consider the following real-life example. Jane owned a home at the Jersey Shore that had been in her family for more than 100 years. She viewed herself as the steward of the property and wanted it to remain available for future family gatherings. Her only daughter, Rachel, was close to Jane and seemed like the natural person to take over that role someday. Jane asked her former estate planning attorney whether she should transfer the shore house to a trust for Rachel’s benefit. She was told that a trust might create additional administrative burdens and expenses. Instead, Jane signed a deed transferring the property directly to Rachel during Jane’s lifetime. At the time, the direct transfer appeared simple, inexpensive, and practical. That decision created two significant issues. First, it created a tax issue: because Rachel received the property as a lifetime gift, Rachel generally took Jane’s carryover basis in the property rather than receiving a new basis equal to the property’s fair market value. Second, it created a control issue: once the property was titled in Rachel’s individual name, Jane no longer controlled what would happen to the shore house if Rachel died, changed her estate plan, married or divorced, encountered creditor issues, or simply made different decisions about the property. For the next few years, the family carried on as though nothing had changed, leaving Jane with the comfort of believing she had made the right decision. Sadly, a little more than five years later, Rachel died. Rachel had lived modestly, rented an apartment, and accumulated only limited savings. Under Rachel’s Last Will and Testament, she left her estate to her close friend, Michael. Jane initially did not focus on that provision because she did not think of the shore house as part of Rachel’s estate in any meaningful way. The following spring, Jane drove to the shore house, as she had done every year, with her car packed for the start of the summer season. When she arrived, her key no longer worked. A car she did not recognize was in the driveway. Confused, Jane knocked on the door. Michael answered and explained that he now owned the shore house because Rachel had left all of her assets to him. Jane then realized the critical consequence of the earlier deed: by transferring the house outright to Rachel, Jane had made the property part of Rachel’s estate. Rachel’s Will controlled where the property went next. Of course, Jane had not intended to give Michael the family shore house. Rachel likely had not intended that result either. But because the property had been titled in Rachel’s individual name, and because Rachel’s Will left her assets to Michael, Jane no longer had any legal right to the property. The outcome was devastating. Jane had lost a home that generations of her family had cherished. She also faced the difficult task of explaining to her siblings, nieces, and nephews how a property entrusted to her care had passed outside the family. When Jane contacted us to see if we could help, unfortunately, there were few viable solutions. This is exactly the kind of problem thoughtful trust planning can help prevent. Jane could have transferred the shore house to a trust for Rachel’s benefit, with clear instructions about who could use the property, who would manage it, how expenses would be paid, and what would happen at Rachel’s death. Depending on the structure, a properly drafted trust may also be designed to avoid unnecessary administrative complexity. In many estate plans, a trust is a control, continuity, and protection tool. It can help keep property within the family, protect beneficiaries from unintended consequences, address creditor and divorce concerns, and provide a structure for long-term management of emotionally significant assets. Key planning lesson: transferring property outright is not always the simplest solution when the goal is to preserve a family asset. Before signing a deed, families should consider what happens if the recipient dies, divorces, has creditor issues, changes their estate plan, or simply has different ideas about the property’s future. They should also understand the income tax consequences. A lifetime gift of appreciated real estate generally does not produce the same step-up in basis that may be available when property is inherited at death. As a result, the recipient may take the donor’s low basis and face greater capital gains tax exposure if the property is later sold. For families with vacation homes, inherited real estate, or other legacy assets, the right plan should address legal ownership, family expectations, and tax basis. That may include a revocable trust, irrevocable trust, limited liability company, use agreement, maintenance fund, buyout mechanism, or other planning structure tailored to the family’s goals. The best solution depends on the family’s objectives, the property’s appreciation, creditor and divorce concerns, administrative tolerance, and desired tax result.
July 30, 2026
Commercial Litigation
Defending Property Managers Against Expanding Debt Collection Claims in Maryland
Over the last several years, plaintiffs' lawyers have increasingly attempted to repackage routine landlord-tenant disputes as violations of Maryland consumer protection and debt collection statutes. What historically would have been lease disputes, rent collection matters, or disagreements over fees are now being asserted as claims under the Maryland Collection Agency Licensing Act ("MCALA"), the Maryland Consumer Debt Collection Act ("MCDCA"), and related consumer protection statutes. Frequently, these claims are brought as putative class actions seeking relief on behalf of thousands of current and former tenants. For property managers, owners, and multifamily housing operators, the stakes can be significant. These cases often seek not merely individual damages, but class-wide relief, disgorgement of rent, restitution, attorneys' fees, declaratory relief, and injunctions affecting ongoing business operations. As a result, the costs and disruption associated with defending such claims can be substantial, even where the underlying legal theories are ultimately unsuccessful. Why These Claims Matter The modern wave of debt collection litigation against property managers often starts with a deceptively simple premise: that because a property manager receives rent payments or communicates with tenants regarding payment obligations, it must be acting as a debt collector subject to Maryland debt collection licensing requirements. From that premise, plaintiffs frequently attempt to build far-reaching claims asserting that: A property manager operates as an unlicensed collection agency Rent accepted by the property manager must be disgorged or refunded Consumer protection statutes have been violated Lease provisions are unlawful Entire classes of tenants are entitled to restitution or statutory remedies. These theories can create enormous exposure if allowed to proceed, particularly in the class action context. Even weak claims can generate significant litigation costs through class certification proceedings, electronic discovery, expert witness expenses, and settlement pressure. For that reason, early strategic evaluation is critical. The Threshold Question: Is the Property Manager Actually Acting as a Debt Collector? In many of these cases, the central legal question is not whether rent was collected. Rather, the question is whether the challenged activity constitutes debt collection as defined by Maryland law. Property management companies perform a broad range of functions that extend far beyond collecting rent. Depending on the management arrangement, they may: Market and lease units Execute leases Manage maintenance and repairs Supervise vendors and contractors Coordinate utilities and common-area operations Handle tenant communications Manage compliance obligations Administer financial aspects of the property The mere fact that rent collection is one component of those responsibilities does not necessarily transform a property management company into a regulated collection agency. Equally important, many management companies collect rent pursuant to direct contractual authority granted in the lease itself. When a tenant agrees to pay rent directly to a property manager or a management entity acting on behalf of ownership, the legal significance of that relationship may differ substantially from the activities of a third-party debt collector whose sole function is collecting delinquent debts. These distinctions have proven critical in recent Maryland litigation. Why Early Motions to Dismiss Matter One of the most effective defense tools in these cases is a carefully crafted motion to dismiss. Too often, defendants approach these cases as if discovery is inevitable. In many instances, however, the central disputes are legal rather than factual. Questions concerning: The meaning of MCALA Whether a statutory exemption applies Whether a property manager falls within a statutory definition Whether a claim for unjust enrichment is available Whether lease provisions are lawful as a matter of law Whether a plaintiff has adequately alleged damages may be resolved at the pleading stage An early dismissal can eliminate the need for class certification proceedings, extensive document production, expensive depositions, expert testimony, and protracted litigation. In recent cases, some Maryland courts have dismissed challenges to routine property-management practices before discovery began, recognizing that statutory interpretation questions often can and should be resolved on the pleadings. Other Maryland courts have allowed these claims to proceed, thereby forcing property management companies and property owners to incur significant litigation expenses and the risk of an adverse judgment. Common Claims and Defense Themes Consumer Protection and Debt Collection Claims Many complaints rely on the assumption that collecting rent is synonymous with debt collection. A successful defense often requires careful examination of: The statutory definitions The nature of the defendant's business The relationship between the parties Any applicable exemptions Whether the challenged conduct falls within the intended scope of consumer debt collection statutes Frequently, plaintiffs focus on labels rather than conduct. Courts, however, can be persuaded to look beyond labels and examine the actual role performed by the defendant. Unjust Enrichment and Restitution Claims Another common theory seeks restitution of rent on the ground that the defendant allegedly lacked authority to collect it. Maryland law provides substantial defenses to these claims, particularly where a written lease governs the relationship, the tenancy was fully performed, the tenant received possession and use of the property, and the tenant obtained the benefit of the bargain. These principles can provide a powerful basis for dismissal at an early stage. Lease-Based Claims Plaintiffs also increasingly challenge lease provisions governing fees, notice requirements, holdover language, liability provisions, or other operational terms. Again, many of these claims present legal questions suitable for resolution through motion practice. A careful analysis of the lease language, applicable statutes, and governing case law can often narrow or eliminate these claims before substantial litigation costs are incurred. Practical Recommendations for Property Managers and Owners Although these lawsuits are often driven by aggressive legal theories, there are practical steps property managers and owners can take now, before they are sued, to reduce risk. Maintain Clear Contractual Authority Review management agreements and leases to be sure they clearly define the property manager's role and authority, including authority relating to rent collection and tenant communications. Review Collection and Communication Practices Evaluate whether rent demands, notices, and tenant communications are consistent with applicable law and internal policies. Understand Vendor Relationships Confirm whether outside vendors involved in collection activities require licensing or other regulatory approvals. Document the Basis for Charges Maintain complete records regarding rent, fees, utility allocations, and other assessments. Strong documentation can be critical when defending statutory or class-action claims and may help avoid unnecessary disputes. Engage Experienced Counsel Early The expression an ounce of prevention is worth a pound of cure applies here. Counsel familiar with these emerging debt-collection theories can help identify and address potential vulnerabilities before litigation arises. Once a lawsuit has been filed, opportunities to shape the facts and contractual framework are often limited. Early reviews of leases, management agreements, collection practices, and vendor relationships can place property managers and owners in a far stronger position if challenged later. Experience Matters in Developing Areas of Law The legal landscape surrounding rent collection and debt collection statutes continues to evolve. Several trial courts have rejected expansive theories seeking to treat routine property management activities as debt collection, while other cases continue to work their way through Maryland's courts. In developing areas of law, results frequently depend on identifying the dispositive legal issues early and presenting them in a way that allows courts to address them before litigation spirals into costly discovery and class certification battles. For property owners, managers, and housing providers, the goal is not simply to win eventually. The goal is to win efficiently, before litigation costs and business disruption overwhelm the practical value of the defense. Because Maryland courts have reached differing conclusions in some of these cases, the law remains developing. Property managers and owners should assume that these theories will continue to be tested until the appellate courts provide further guidance.
July 29, 2026
Business
Pennsylvania Supreme Court Narrows Scope of Workers’ Compensation Anti-Referral Provision: Implications in Light of Federal Physician Self-Referral Law
On June 16, 2026, the Pennsylvania Supreme Court issued a significant decision interpreting Section 306(f.1)(3)(iii) of the Workers’ Compensation Act (the “Act”), commonly known as the Anti-Referral Provision. The Court held that the placement of the phrase “goods or services” following a list of enumerated medical services does not operate as a broad catch-all prohibition on physician self-referrals. Instead, the Court concluded that the statutory prohibition is limited strictly to the specifically enumerated services that precede that phrase. As a result, physician self-referrals to pharmacies in which they hold a financial interest (e.g., ownership interest or compensation arrangement) fall outside the scope of the Act’s anti-referral restriction. Employers and insurers are therefore required to reimburse for reasonable and necessary prescriptions, even where the prescribing physician has a financial interest in the dispensing pharmacy. This ruling represents a major shift in the interpretation of Pennsylvania’s healthcare cost-containment framework and invites comparison to the federal Ethics in Physician Self-Referral Law, 42 U.S.C. § 1395nn (“Stark Law”) enacted in 1989 and later expanded in 1993. Background The case arose from multiple consolidated claims involving two (2) physicians who issued prescriptions filled by 700 Pharmacy, an entity in which they held a financial interest. When the State Workers’ Insurance Fund (“SWIF”) denied payment for those prescriptions, the pharmacy filed Medical Fee Review Applications seeking reimbursement. The applications were denied at the administrative level, when the hearing officer concluded that the prescriptions constituted unlawful self-referrals under the Act. The Commonwealth Court affirmed that determination, relying on what it viewed as the plain language of the statute. In its view, the phrase “goods or services” reflected a deliberate legislative choice intended to broadly encompass all forms of medical care, including pharmaceuticals and pharmacy services. Supreme Court Opinion The Pennsylvania Supreme Court reversed. The majority applied a textualist approach, concluding that the statutory language does not extend beyond the specific categories of medical services expressly listed in the provision. Because prescription drugs and pharmaceutical services are not included among those specified categories, the Court held that they fall outside the scope of the Anti-Referral Prohibition. In doing so, the Court rejected the argument that “goods or services” should function as a residual clause capturing all forms of medical treatment. Instead, it interpreted the statute as intentionally limited, declining to expand its reach based on broader policy considerations. Two dissenting opinions highlight the stakes of that interpretive choice. Justice McCaffery emphasized that the Anti-Referral Provision was enacted to prevent financially motivated medical decision-making and argued that the phrase “goods and services” should be read broadly to effectuate that purpose. Justice Wecht, in a separate dissent, challenged the majority’s textual analysis, suggesting that the statutory language more naturally supports a broader interpretation. Legislative Context and Comparison to Stark Law The Anti-Referral Provision was enacted as part of Pennsylvania’s workers’ compensation reform efforts in 1993 (Act 44), legislation designed to control rising system costs and curb perceived abuses. Its purpose closely parallels that of the federal Stark Law, which Congress enacted in 1989 to address the risks posed by physician self-referrals and the resulting overutilization of healthcare services. The difference lies in execution. The Stark Law is deliberately expansive, covering a wide range of “designated health services,” including outpatient drugs, and imposing strict liability for prohibited referrals unless a regulatory exception applies. It is grounded in the premise that financial incentives can distort clinical judgment and therefore must be tightly regulated. By contrast, the Pennsylvania Supreme Court’s decision reflects a narrower, text-driven interpretation of state law. Rather than extending the Anti-Referral Prohibition to align with its underlying purpose, the Court confined its application to the statute’s enumerated categories. The result is a regulatory gap: a set of financial relationships that would raise significant concerns under federal law now fall outside the scope of Pennsylvania’s workers’ compensation anti-referral framework. Practical Implications for Healthcare Providers The Court’s decision opens the door for physicians to more freely integrate ancillary services into their practices, particularly in the area of pharmacy ownership. Physicians may now prescribe medications that are filled by a pharmacy in which they have a financial interest without violating the Anti-Referral Provision. This flexibility brings with it clear financial opportunities. Providers now have the ability to capture additional revenue streams tied to prescription medications, including dispensing margins and pharmacy-related services. Given the frequency with which injured workers require ongoing medication management, particularly in chronic or complex cases, this development may have a meaningful economic impact on certain practices. At the same time, the decision does not eliminate compliance risk; rather, it shifts the focus of that risk. Providers remain subject to the Act’s cost-containment measures, including fee schedules and utilization review. Prescribing decisions must still be medically necessary and defensible, and patterns of overutilization or unusually high-cost prescribing are likely to draw scrutiny. In practice, the question is no longer simply whether a referral is permitted, but whether it can be justified. It is also critical to recognize that this ruling is limited to Pennsylvania’s workers’ compensation system and does not alter obligations under federal law. The Stark Law and the Anti-Kickback Statute continue to impose strict limitations on financial relationships tied to referrals in Medicare, Medicaid, and other federal healthcare programs. As a result, providers must take care not to conflate what is permissible in the workers’ compensation context with what is allowed elsewhere. Maintaining clear compliance boundaries between these regulatory frameworks will be essential. From a strategic standpoint, the decision is likely to prompt providers to reconsider how they structure ownership and referral relationships. Investments in pharmacies, compounding operations, and related ancillary services may become more attractive, particularly where those services can be aligned with workers’ compensation patients. The ruling effectively invites more deliberate planning around the integration of care delivery and revenue generation. At the same time, providers should expect increased scrutiny from insurers and payers. Carriers are unlikely to accept this shift passively and may respond by intensifying utilization review and monitoring prescribing patterns more closely. High-cost medications, unusual prescribing volumes, or patterns suggesting financial motivation may face heightened challenge. In that sense, while the legal restriction has narrowed, the practical oversight surrounding these arrangements may increase. Conclusion The Pennsylvania Supreme Court’s decision represents a significant narrowing of the Workers’ Compensation Act’s Anti-Referral Provision, grounded in a strict textual reading of statutory language. While the ruling is consistent with principles of statutory interpretation, it departs from the broader policy approach embodied in the federal Stark Law and from the apparent cost-containment objectives underlying Act 44 of 1993. By excluding pharmaceuticals from the anti-referral framework, the Court has created a gap between legislative intent and statutory reach. For healthcare providers, the decision presents both opportunity and risk: new flexibility in structuring business relationships, coupled with continued regulatory oversight and the possibility of future legislative correction. Whether the General Assembly will act to close that gap remains to be seen, but the decision has already reshaped the compliance landscape for provider self-referrals in Pennsylvania’s workers’ compensation system.
July 28, 2026
Labor and Employment
Three Workers' Compensation Mistakes Small Businesses with Independent Contractors Can Avoid
Many business owners assume that once they've purchased a workers' compensation policy, they've adequately managed their risk. Unfortunately, some of the most significant exposures arise not from the absence of insurance, but from misunderstandings about who is covered, whether independent contractors are properly classified, and whether coverage remains in place when an injury occurs. A workplace injury can quickly lead to disputes over worker status, insurance responsibility, and employer liability. The good news is that many of these risks are preventable. A few proactive steps can significantly reduce your company's legal and financial exposure. Don't Assume Your Independent Contractors Have Workers' Compensation Coverage Many businesses hire independent contractors with the expectation that the contractor is responsible for maintaining their own workers’ compensation insurance. That assumption can become costly. If a contractor is injured and does not maintain valid workers' compensation coverage, the hiring business may face more than a dispute over insurance obligations. In some cases, the injured worker may contend that he or she was actually an employee rather than an independent contractor. If a state’s Workers' Compensation Commission agrees, the business may become responsible for a workers' compensation claim despite having treated the individual as an independent contractor. The business may also face additional insurance premiums, audits, and scrutiny regarding worker-classification practices. Just as importantly, insurance status and worker classification are separate issues. A signed independent contractor agreement and a contractor's certificate of insurance do not necessarily determine whether the individual will be treated as an independent contractor under a state’s workers' compensation law. When evaluating workplace injuries, agencies and commissions often look beyond labels and examine the actual working relationship, including the degree of control exercised by the hiring entity. Businesses should periodically evaluate contractor relationships to ensure the classification remains defensible and consistent with day-to-day operations. Build a Process to Verify and Continuously Monitor Coverage Insurance verification should be an ongoing process, not a one-time administrative task. Many businesses obtain a certificate of insurance when a contractor is first engaged and never look at the file again. Months later, the policy may have expired without anyone noticing. Consider implementing a standard contractor onboarding and renewal process that includes: Obtaining current proof of workers' compensation coverage, including declarations pages or other documentation confirming active coverage Collecting certificates of insurance for applicable policies Recording policy effective and expiration dates Calendaring renewal dates and requesting updated documentation before policies expire Requiring contractors to notify your business if coverage is cancelled or allowed to lapse Periodically auditing contractor files to confirm documentation remains current Verifying coverage before work begins is an important first step, but it should not be the only step. Businesses should also periodically evaluate whether the contractor relationship is structured and administered in a manner consistent with independent contractor status. An expired policy creates risk, but so does a contractor relationship that may not withstand scrutiny if an injury occurs. Workers' compensation should not be reviewed in isolation. Where appropriate, contractor agreements should also require commercial general liability coverage naming your business as an additional insured. While workers' compensation policies generally do not provide additional insured status in the same manner, verifying both types of coverage helps create a more comprehensive risk-management program. Contracts Matter, Too Insurance verification works best when paired with well-drafted contractor agreements. Depending on your business and industry, contracts should address insurance requirements, require contractors to maintain coverage throughout the engagement, obligate them to provide updated proof of insurance upon renewal, require notice of any lapse or cancellation, and include appropriate indemnification provisions where legally appropriate. While strong contracts are important, they do not guarantee that a worker will be treated as an independent contractor following an injury. Courts and administrative agencies generally examine the substance of the relationship rather than the title used in the agreement. For that reason, businesses should view a contractor agreement as just one component of a broader compliance strategy. Don't Overlook Owner Coverage Elections Another frequently overlooked issue involves business owners themselves. Whether an owner is automatically covered under a workers' compensation policy, or may exclude themselves from coverage, often depends on the state law’s requirements, the company's legal structure, and the owner's role. Depending on the state, sole proprietors, corporate officers, LLC members, and partners may be treated differently. As your business grows or ownership changes, it is worth confirming that your insurance policy accurately reflects your intentions. At least annually, review: Whether owners are currently included in the policy Whether any available elections or exclusions have been properly completed Whether changes in ownership or business structure require updates to your coverage A short annual review can help prevent misunderstandings after a workplace injury. A Five-Minute Annual Compliance Check Once a year, ask yourself: Have I verified that every contractor currently maintains workers' compensation coverage Do I have current declarations pages or other proof of active coverage on file Am I tracking policy renewal dates Do my contractor agreements require continuous insurance coverage Have I confirmed appropriate commercial liability insurance and additional insured endorsements where applicable Have I reviewed whether owner coverage elections still reflect my business structure Have I evaluated whether each independent contractor relationship remains properly classified Are my managers treating contractors differently from employees in day-to-day operations Would the facts of the relationship support independent contractor status if reviewed by my state’s Workers' Compensation Commission If any answer is "no," now is the time to update your procedures. Not after someone gets hurt. In sum, workers' compensation risk management with your independent contractors is more than just collecting certificates of insurance. Businesses should verify contractor coverage, maintain current insurance documentation, periodically review worker classifications, and use carefully drafted agreements that align with actual business practices. Taking these steps can help reduce the risk of unexpected workers' compensation liability, classification disputes, insurance audits, and related litigation.
July 24, 2026
Real Estate
Why Delaware Legal Opinions Matter – Part 4: The Practical Value of Delaware Opinion Counsel
No one enjoys explaining to a client that a closing has been delayed. Yet many closing delays have little to do with negotiating business terms or obtaining financing. Instead, they stem from issues that are entirely preventable: organizational documents that were never located, governing agreements that contain unexpected approval requirements, or entity issues that surface only days before funding. These are precisely the types of issues that experienced Delaware opinion counsel can help identify before they become problems. The Opinion Letter Is the End Product, Not the Entire Service Clients often view a Delaware legal opinion as another closing deliverable. In reality, the opinion process begins long before the opinion letter is signed. Preparing a Delaware opinion requires reviewing the entity's formation documents, governing agreements, certificates from the Delaware Secretary of State, authorizing resolutions, and the transaction documents themselves. During that review, counsel frequently identifies issues that deserve attention before closing. Sometimes those issues are minor and easily resolved. Occasionally they are significant enough that addressing them early prevents a much larger problem later. In that respect, the opinion process serves as another layer of transaction diligence. Small Issues Can Become Big Delays Most transactions do not encounter major legal defects. Instead, they are slowed by relatively routine issues such as: Missing or outdated organizational documents Governing agreements requiring approvals that were overlooked Inconsistencies between the entity documents and the loan documents Administrative issues affecting an entity's status or authority Last-minute changes to transaction documents that require additional review None of these issues are unusual. The challenge occurs when discovering them the day before closing instead of several weeks earlier. Include Delaware Opinion Counsel Early One of the easiest ways to keep a transaction moving is to involve Delaware opinion counsel early. When opinion counsel is brought into the transaction after documents are substantially complete, there is generally sufficient time to review organizational records, request missing information, coordinate with transaction counsel, and resolve any questions without disrupting the closing schedule. When the opinion request arrives only a day or two before funding, even relatively minor issues can create unnecessary pressure for everyone involved. Early coordination almost always produces a smooth closing. A Collaborative Transaction Process Preparing a Delaware legal opinion is rarely done in isolation. Successful transactions require coordination among lender's counsel, borrower's counsel, local counsel, company representatives, lenders, and title companies. Clear communication allows questions to be answered early, documentation to be gathered efficiently, and expectations to remain aligned throughout the transaction. Like many aspects of commercial lending, the opinion itself is only one part of a much larger collaborative process. More Than an Opinion The best Delaware opinion engagements rarely attract attention. Documents are reviewed, issues are addressed, questions are answered, and the transaction closes on schedule. That is precisely the point. An effective opinion process reduces uncertainty, identifies issues while they are still manageable, and helps clients, lenders, and transaction counsel move confidently toward closing. When handled thoughtfully, Delaware opinion practice is not simply about producing a legal opinion. It is about helping transactions succeed.
July 23, 2026
Labor and Employment
The Hidden HR Issues Lurking in Union Labor Relations
Most labor relations playbooks focus on the visible stuff: election timelines, bargaining sessions, grievance procedures. But the issues that may actually blindside HR teams tend to be the ones nobody charts. Here are five worth a second look. Your frontline managers are the real early-warning system — and they're the least prepared Supervisors are usually the first to notice organizing chatter among employees. Their reactions in the first 48 hours often determine whether a campaign fizzles or accelerates. Yet most manager training still treats labor relations as an infrequent compliance issue rather than a live skill. A supervisor who issues a threat, a promise, or a surveillance-related comment can hand a union an unfair labor practice charge that reshapes the entire election. The fix isn't more policy, it's rehearsed, scenario-based manager readiness training before there's any sign of activity, not after. The captive audience meeting is becoming a legal minefield Thirteen states have now banned mandatory "captive audience” meetings in which company executives speak to groups of employees about the disadvantages of union organization and advantages of company policies. Even more legislation is pending, and litigation is still working through the courts. For any employer operating across state lines, this means the standard anti-organizing company speech playbook — one script, rolled out everywhere — no longer holds. HR needs a jurisdiction-by-jurisdiction approach to employee communication during organizing campaigns, which is a heavier lift than most labor relations budgets currently assume. Organizing is happening somewhere HR can't see it Social media has quietly become the default organizing channel, letting employees coordinate, compare notes, and build momentum well before any petition reaches HR's desk. By the time a campaign becomes visible internally, it may already have the signatures it needs. That shifts the real work upstream, toward genuine listening infrastructure and manager relationships, rather than reactive monitoring once cards start circulating. The NLRB Cemex decision hasn't gone anywhere Despite a more employer-friendly NLRB following recent appointments, the NLRB’s Cemex decision framework, which allows a union to immediately gain recognition via signed authorization cards and can strip an employer of its right to an election if it commits unfair labor practices during a campaign, remains in force. Employers who assume the board's new composition has quietly reset the rules are operating on outdated assumptions. Until Cemex is formally revisited, a single misstep during organizing can still mean losing the election process entirely. Grievance and arbitration data is now a data privacy problem As more states expand employee data protection statutes, the systems HR uses to store grievance files, arbitration records, and investigation notes are coming under new scrutiny. Unionized workplaces generate an unusually sensitive paper trail — medical details, disciplinary history, witness statements — and that data often sits in older case management tools never built with today's privacy requirements in mind. This is quietly becoming as much a compliance exposure as the labor relations issues the data documents. The common thread None of these issues show up on a standard labor relations checklist, and that's the point. They sit at the intersection of HR, legal, IT, and frontline management, which means they tend to fall through the cracks between departments rather than getting owned by any one of them. The employers managing labor relations well in 2026 aren't necessarily the ones with the toughest anti-union posture. They're the ones who've mapped these blind spots and assigned someone to actually watch them.
July 23, 2026
Business
Search Funds, Independent Sponsors, and CCVs: Choosing the Right ETA Model
Entrepreneurship through acquisition has moved well beyond the traditional search fund. Today, ETA buyers can pursue small business acquisitions through several different capital models, each with different implications for fundraising, governance, control, and post-close operations. For emerging searchers, search fund entrepreneurs, and acquisition-minded operators, that creates both opportunity and confusion. The same target company may attract interest from a traditional searcher, a self-funded buyer, an independent sponsor, a committed capital vehicle, a family office, or a holding company. Each buyer may describe itself as part of the ETA ecosystem. But each model raises acquisition capital differently, allocates economics differently, and creates different expectations around governance, speed, control, and post-close operations. That matters because the structure you choose does more than affect fundraising. It affects: how sellers view you how lenders underwrite you how investors control decisions how much equity you may own after closing, and whether your structure works for one acquisition or a multi-acquisition platform For most emerging searchers, the first structure does not need to solve every future problem. It needs to fit the buyer’s current stage, capital access, risk tolerance, and first acquisition strategy. That distinction matters. A buyer may eventually want to build a roll-up, raise committed capital, or create a long-duration holding company. Those goals can inform the strategy, but they should not automatically dictate the structure for acquisition number one. Overbuilding the structure too early can create unnecessary legal expense, investor complexity, governance friction, and fundraising burden before the buyer has proven the core thesis. It can also push the searcher into a model that requires capabilities the buyer has not yet developed. In many cases, the better approach is to choose the simplest structure that supports the first credible acquisition while preserving room to evolve. A searcher who has not yet operated one business usually benefits more from building the foundational operator skills than from designing a vehicle for acquisition number five. The question is not only, “Where do I want to be in five years?” It is also, “What structure gives me the best chance to close and operate the first deal well?” The ETA Market Is Becoming More Fragmented Traditional search funds remain the most recognized and studied model. They have a long track record, a familiar investor base, and a relatively standardized playbook. For many first-time searchers, they remain the cleanest path into ETA. But they are no longer the only serious option. Self-funded search has become increasingly common, particularly among buyers who want more control, more ownership, and the ability to pursue small business acquisitions using SBA financing or smaller investor syndicates. Independent sponsors have also become one of the most active buyer categories in the lower middle market M&A ecosystem, especially for experienced operators and executives with investor relationships. Family offices continue to deploy more direct capital into private companies, sometimes backing searchers and sometimes acquiring companies directly. At the same time, committed capital vehicles and long-duration holdcos have become more visible. These structures are not entirely new, but their use within the ETA ecosystem appears to be accelerating. They reflect a shift from the classic idea of buying one company toward a broader effort to build repeatable acquisition infrastructure. That is the key development. ETA is no longer a single path. It is a group of related acquisition models that sit along a spectrum between individual entrepreneurship, lower middle market M&A, family office direct investing, and institutional private equity. Traditional Search Funds The traditional search fund is still the baseline model for many emerging searchers and search fund entrepreneurs. In a traditional search fund, investors provide capital to fund the search phase. The searcher uses that capital to source, evaluate, and negotiate the acquisition of a single target company. Once a target is identified, the same investor group typically has the right to participate in the acquisition financing. After closing, the searcher usually becomes the CEO or operating leader of the acquired business. This model works particularly well for first-time buyers who want structure, mentorship, and investor support. Many traditional search investors have seen dozens of transactions and can help a searcher evaluate industries, negotiate LOIs, manage acquisition diligence, structure financing, and prepare for post-close operations. The benefit is credibility and support. The tradeoff is control. Traditional searchers usually have investors deeply involved from the beginning. Those investors may have approval rights over the acquisition, the financing, the governance structure, major post-close decisions, and the searcher’s ongoing role. That involvement can be valuable, especially for a first-time operator, but it also means the searcher is not operating independently. Economically, traditional search funds usually give the searcher meaningful upside if the acquisition closes and performs well. The searcher typically receives a salary during the search phase, then earns equity through a combination of closing, time-based vesting, and performance-based vesting. While structures vary, many traditional search economics are designed to give the searcher a meaningful minority ownership position over time rather than majority control. The model is best understood as an apprenticeship into ownership. It is often a strong fit for a searcher who wants to buy and operate one good company with investor backing, guidance, and a known playbook. It may become less efficient if the searcher’s goal is to pursue serial acquisitions, build a multi-company platform, or retain more control over long-term capital allocation. Self-Funded Search Self-funded search is different in both psychology and economics, and it has become one of the most discussed alternatives to the traditional search fund. In a self-funded search, the buyer does not raise a formal search fund at the outset. Instead, the buyer funds the search personally or with limited outside support. Once the buyer identifies a target, the buyer raises capital for that specific transaction. In many small business acquisition strategies, SBA financing plays a central role. This model appeals to buyers who want more autonomy. A self-funded searcher usually has more freedom to define the target profile, negotiate directly with the seller, select investors later, and structure the deal around the specific opportunity. The model can also allow the buyer to retain substantially more equity than a traditional searcher, particularly in smaller transactions where debt financing (usually in the form of a SBA loan) covers a large portion of the purchase price. That ownership upside is one of the main attractions. But the model also places more risk on the buyer. Self-funded searchers often pay search expenses themselves. They may sign personal guarantees, especially in SBA-financed transactions. They may have fewer institutional resources during diligence. They may also have a thinner advisory network unless they intentionally build one. The economics can be attractive, but they are less standardized. The buyer may retain a large common equity stake, raise preferred equity from a small group of investors, and personally guarantee a portion of the acquisition debt. In a successful transaction, that can create better ownership economics than a traditional search fund. In a difficult transaction, it can create greater personal exposure. Self-funded search is often well suited for smaller acquisitions, local service businesses, business services companies, light industrial businesses, trades, healthcare services, and other lower middle market companies where SBA financing and hands-on operation can support the acquisition. The model is strongest when the buyer wants to own and operate a business with meaningful personal control. It becomes harder when the buyer wants to pursue larger targets, institutional equity, multiple add-on acquisitions, or a more formal acquisition platform. Independent Sponsors The independent sponsor model sits closer to private equity than traditional search and has become an important part of the lower middle market acquisition landscape. An independent sponsor typically sources a deal first, signs or negotiates the LOI, conducts diligence, and then raises equity for that specific acquisition. Unlike a committed fund or committed capital vehicle, the independent sponsor usually does not have fully committed capital available before the transaction is identified. This model works best for people with prior operating, investing, industry, or transaction experience. The independent sponsor must persuade three groups at once: the seller, the lender, and the equity investors. The seller wants confidence the buyer can close. The lender wants confidence in the sponsor, the capital stack, and the operating plan. The investors want confidence that the sponsor found a good deal and can manage it after closing. The model provides flexibility. The sponsor can choose different investors for different deals, customize governance, structure economics around the specific acquisition, and pursue opportunities that do not fit a traditional search fund profile. But the main weakness is capital certainty. Because the sponsor often raises equity after signing the LOI, sellers and intermediaries may worry about whether the buyer can actually close. That concern becomes more significant in competitive processes or situations where the seller wants speed and certainty. Economically, independent sponsor structures often include a mix of transaction fees, direct equity, management fees, and carried interest or promote. A sponsor might receive a closing fee, a minority equity position, and a promote above a preferred return to investors. The precise terms vary widely because independent sponsor economics are negotiated deal by deal. That variability is both a strength and a weakness. It gives the sponsor flexibility, but it also means the sponsor must negotiate economics repeatedly. If the sponsor lacks a strong investor base, the economics can compress quickly. The independent sponsor model is often a strong fit for a more experienced buyer who has deal access, sector knowledge, and investor relationships, but does not yet have a committed capital vehicle or fund. Committed Capital Vehicles Committed capital vehicles, or CCVs, are becoming increasingly relevant in ETA, especially for searchers and operators who want to move from one-off acquisitions toward a repeatable acquisition platform. A CCV generally refers to a structure where investors commit acquisition capital before a specific acquisition is identified or before a series of acquisitions is completed. The vehicle may be designed to acquire one platform company, pursue multiple acquisitions, or build a long-duration holding company. The basic appeal is straightforward: capital certainty. A buyer with committed capital can often move faster than a buyer who must raise equity after signing an LOI. That matters to sellers, lenders, brokers, and investment bankers. It also matters in fragmented industries where add-on acquisitions may become part of the strategy. This is why CCVs are gaining attention among more sophisticated searchers, acquisition entrepreneurs, independent sponsors, and operators. They are not simply trying to buy one company. They are trying to create a structure that can support multiple acquisitions, longer hold periods, and more repeatable capital deployment. The economic terms of CCVs usually look more like a small private equity or holding company structure than a classic search fund. The buyer often becomes an operator-sponsor and may receive management company economics, carried interest, direct co-investment rights, transaction-related fees, or long-term incentive economics tied to the performance of the vehicle. Investors may receive a preferred return, priority distributions, approval rights over major decisions, and protections around leverage, concentration, conflicts, related-party transactions, and sponsor removal. In many CCVs, the sponsor’s upside comes primarily through carry or promote after investors receive agreed economic thresholds. The model can create meaningful upside for a sponsor who builds a durable platform. But it also increases complexity. The sponsor is no longer just a searcher or operating CEO. The sponsor becomes a capital allocator, investor relations manager, acquisition strategist, governance manager, and platform builder. That is a different job. For emerging searchers, this distinction matters. A CCV may sound attractive because it offers more capital certainty and a more scalable structure. But it also requires a more developed investment thesis, stronger investor relationships, better governance design, and a clearer plan for how capital will be deployed. A CCV is usually more appropriate when the buyer has a repeatable acquisition thesis, a credible capital partner, a reason to pursue more than one acquisition, and the experience or support needed to manage a more institutional structure. It is usually less appropriate for someone who simply wants to buy one small business and operate it directly. Long-Duration Holdcos Long-duration holdcos overlap with CCVs but are not always identical. A holdco is usually designed to own operating companies over a long period of time. Instead of buying one company with the expectation of selling it in five to seven years, the holdco may be built around long-term compounding, cash flow reinvestment, and permanent or semi-permanent ownership. This model has become increasingly attractive to investors and operators who dislike the forced exit pressure of traditional private equity. For sellers, the holdco model can also be attractive. Founder-owned businesses often care about what happens after closing. They may prefer a buyer who plans to hold the business, retain employees, preserve culture, and invest in long-term operations. Economically, holdco structures can vary substantially. Some resemble private equity funds with preferred returns and sponsor carry. Others give the sponsor direct equity in the holding company. Some include management fees or shared services fees. Others rely more heavily on long-term equity appreciation. The central economic question is how value gets allocated between the capital providers and the operator-sponsor building the platform. That question can become complicated because the sponsor may be doing several things at once: sourcing acquisitions, managing executives, building systems, allocating capital, and creating the broader platform value. Holdcos can be powerful structures when the sponsor has a long-term vision and a patient investor base. They can also become difficult if investors want liquidity sooner than expected, if governance is unclear, or if the sponsor lacks the operational infrastructure needed to manage multiple companies. Family Office Direct Acquisition Models Family offices play several roles in the ETA ecosystem and broader lower middle market M&A market. Some invest in traditional search funds. Some back self-funded searchers. Some provide equity to independent sponsors. Some anchor CCVs or holdcos. Others acquire privately held companies directly. This makes family office capital both important and hard to categorize. In direct acquisition models, a family office may use its own balance sheet or investment vehicle to acquire a privately held company. It may install an operator, partner with a searcher, back an industry executive, or manage the company through an internal team. The main advantage is patient capital. Many family offices do not face the same exit pressure as private equity funds. They may be willing to hold a business for a longer period, prioritize cash flow, and structure a transaction around seller concerns, employee continuity, and long-term stewardship. But family offices vary dramatically. Some are highly institutional, with formal investment committees, detailed diligence processes, and experienced deal teams. Others are relationship-driven, informal, and dependent on a small number of family decision-makers. That variation affects everything: speed, governance, reporting, decision-making, and post-close expectations. Economically, operators working with family offices may receive salary, bonus, direct equity, phantom equity, profit participation, or equity vesting tied to long-term performance. The terms depend heavily on whether the operator is functioning as an employee, partner, sponsor, or acquisition entrepreneur. For emerging searchers, family office backing can be valuable, but it requires clarity. The searcher should understand whether the family office expects control, what decisions require approval, how future acquisitions will be funded, how economics vest, and whether the searcher is building personal ownership or merely operating a family-owned asset. Comparing the Models The models differ less by label than by what they are built to accomplish. A traditional search fund is designed to help a searcher find, acquire, and operate one company with investor support. A self-funded search is designed to give the buyer more control and potentially more ownership, usually in a smaller transaction with more personal risk. An independent sponsor model is designed to let an experienced buyer pursue deals without a committed fund, but it requires the sponsor to raise capital transaction by transaction. A CCV is designed to provide more capital certainty and support a broader acquisition strategy. A holdco is designed for long-duration ownership and compounding across one or more operating businesses. A family office model depends on the family office itself, but often emphasizes patient capital, direct ownership, and flexibility. The right model depends on the buyer’s objective. If the goal is to buy one strong business and become CEO, a traditional search fund or self-funded search may be the better fit. If the goal is to pursue larger or more complex deals with customized capital, the independent sponsor model may fit. If the goal is to build a repeatable acquisition platform, a CCV or holdco may make more sense. If the goal is to partner with patient capital and operate over a longer horizon, family office backing may be attractive. Economic Terms Matter Because They Shape Behavior Emerging searchers often focus on headline ownership percentage. That is understandable, but incomplete. The more important question is how the economic structure shapes behavior after closing. A buyer with too little equity may lose motivation. Investors with too much control may slow decisions. A sponsor with carry but no real capital at risk may create alignment concerns. A structure with no liquidity path may create investor tension. A self-funded searcher with too much personal guarantee exposure may become overly conservative after closing. The economics are not just financial terms. They are governance terms. We've discussed the importance of negotiating a governance structure in prior editions of Search Fund Operate. These terms influence who makes decisions, who bears risk, who receives upside, and how the company responds when post-close reality differs from the acquisition model. This is why vehicle selection matters before the LOI. By the time a buyer is under LOI, the structure has already started shaping the deal. A Practical Way to Think About Model Selection For an emerging searcher, the best starting point is not the structure. It is the strategy. If you want mentorship, institutional backing, and a proven path into operating one business, traditional search remains highly relevant. If you want control, ownership concentration, and are comfortable with personal risk, self-funded search may fit. If you have deal experience and investor relationships but no committed fund, independent sponsor may be viable. If you want to pursue multiple acquisitions under a repeatable thesis, a CCV or holdco may be appropriate. If you have access to a family office that understands your operating thesis, family office backing may provide patient and flexible capital. The mistake is choosing the model because it sounds more sophisticated. The better approach is to choose the model that matches the buyer’s actual capabilities, capital relationships, risk tolerance, and acquisition plan. ETA has become more institutionalized, but the core issue remains simple. The buyer has to close the deal, operate the company, and live with the acquisition structure after closing. That is where the differences between these models become real.
July 21, 2026
Intellectual Property
How the Trademark Registration Process Actually Works — and Where Companies Get Stuck
Many companies describe the trademark registration process as slow, unpredictable, or unnecessarily complicated. While the process does take time, much of the frustration comes from misunderstanding how it works and where meaningful decisions actually occur. From an in-house counsel's perspective, the registration process is less about waiting on the USPTO and more about managing internal expectations, coordinating stakeholders and making timely business decisions. Companies that understand the process tend to move through it with far less frustration than those that assume registration is a simple administrative exercise. Understanding what happens at each stage allows legal and business teams to anticipate issues instead of reacting to them. Filing Is Only the Beginning Submitting a trademark application is an important milestone, but it is only the first step. Once an application is filed, it enters the USPTO examination queue, where it typically waits several months before an examining attorney reviews it. This waiting period often creates confusion. Business teams may assume the application is actively moving toward approval when, in reality, nothing substantive has happened yet. The delay is not unique to a particular application; it is simply how the examination system is structured. This is an excellent opportunity for in-house counsel to set expectations. Filing secures a filing date and begins the registration process, but it does not mean the government has approved the mark or even evaluated it. Managing expectations early helps prevent unnecessary status inquiries and allows the business to focus on preparing for the next meaningful stage. Examination Is the First Real Decision Point Once an examining attorney reviews the application, the USPTO determines whether the mark satisfies the legal requirements for registration. If issues are identified, the USPTO issues an Office Action explaining the concerns. These may involve: Likelihood of confusion with an existing registration Descriptiveness Identification of goods or services Specimen deficiencies Procedural issues Many applicants view an Office Action as a setback. In reality, Office Actions are a routine part of the registration process, and many applications receive one. What often delays the process is not the Office Action itself but the company's response. Legal may need input from marketing. Marketing may want to preserve branding. Business leadership may need to evaluate whether to narrow the application, adopt a consent agreement, or consider a new mark altogether. These internal discussions frequently consume far more time than preparing the legal response. The organizations that move efficiently are those that have already identified who makes these decisions before an Office Action arrives. Internal Alignment Matters More Than USPTO Timelines The USPTO controls its examination schedule, but companies control how quickly they respond. Trademark issues often require input from multiple departments: Marketing Product teams Executive leadership Outside counsel In-house legal Without clear ownership, simple decisions can remain unresolved for weeks or months. For example, if a refusal raises concerns about the scope of goods or services, someone must decide whether narrowing the application affects future business plans. If a conflict with another mark exists, leadership must determine whether coexistence, rebranding, or enforcement makes the most business sense. These are business decisions with legal implications — not merely legal questions. Organizations that establish decision-making procedures before problems arise consistently move applications forward more efficiently. Publication Is Not the Finish Line Once an application overcomes any examination issues, it is published in the USPTO's Official Gazette. Publication allows third parties to oppose registration if they believe the mark would harm their existing rights. Many applications pass through publication without incident, leading businesses to believe registration is virtually guaranteed. While that is often true, publication remains a meaningful risk period. Competitors, trademark owners, or other interested parties have an opportunity to challenge the application. If an opposition is filed, what appeared to be a straightforward registration can become a contested proceeding before the Trademark Trial and Appeal Board. For in-house counsel, publication should be viewed as another governance checkpoint. If an opposition arises, the company must evaluate the business value of the mark, litigation costs, settlement opportunities, and long-term branding objectives. The legal question is only part of the analysis. Registration Begins a New Phase Receiving a registration certificate is an important accomplishment, but it is not the end of trademark management. Trademark rights must be maintained. That includes monitoring renewal deadlines, maintaining proper use of the mark, updating ownership records when necessary, and ensuring that marketing teams use the trademark consistently. Companies should also monitor the marketplace for potentially conflicting marks. Failure to enforce rights can weaken the distinctiveness of a brand over time. As businesses grow, trademarks often become more valuable. New product lines, international expansion, acquisitions, and licensing arrangements all create additional trademark considerations. Registration establishes a foundation, but protecting brand value requires ongoing attention. Where Companies Commonly Create Delays While the USPTO's examination schedule cannot be accelerated, many delays originate inside the organization. Common causes include: Waiting too long to conduct trademark clearance Delaying difficult branding decisions Unclear ownership of legal decisions Late involvement of executive leadership Inconsistent communication between legal and marketing Assuming registration is a one-time administrative task Each individual delay may appear minor, but collectively they can add months to the overall timeline. The most successful trademark programs rely on predictable internal processes rather than last-minute decision-making. What In-House Counsel Can Control In-house counsel cannot shorten the USPTO's review queue, but they can significantly improve how the organization experiences the registration process. Setting realistic expectations from the outset helps business teams understand where delays are normal and where prompt action is required. Establishing clear decision-makers before issues arise allows Office Actions to be addressed efficiently. Developing standard procedures for trademark clearance, filing, enforcement, and maintenance reduces uncertainty and improves consistency across the organization. Perhaps most importantly, in-house counsel can help leadership view trademarks as strategic business assets rather than isolated legal filings. A well-managed trademark portfolio supports product launches, marketing investments, licensing opportunities, acquisitions, and long-term brand value. Final Thoughts The trademark registration process is rarely as unpredictable as it seems. The major milestones: filing, examination, publication, and registration, are well established, and each presents its own set of business decisions. Companies that anticipate these decision points generally experience fewer surprises and less frustration. Those that wait until each issue arises often perceive the process as slower and more burdensome than it actually is. While no one can accelerate the USPTO's timeline, organizations can improve their own by establishing clear responsibilities, aligning stakeholders early, and treating trademark management as an ongoing component of business strategy. In many cases, the biggest obstacle to registration is not the government. It is the company's own decision-making process.
July 21, 2026
Estates and Trusts
Identity, Martyrdom, and Surviving the Sandwich Generation
July is National Sandwich Generation Month. For those of us “in it”, it is a time to acknowledge the nearly 70 million of us simultaneously caring for aging parents while still raising children, supporting adult children, or both. While conversations about the Sandwich Generation often focus on the practical challenges of caregiving, finances, legal documents, and time management, there is another issue that receives far less attention: the gradual shift of identity. During my recent conversation with Jonathan Fields, host of the Good Life Project podcast, we explored something I see every day in my law practice and experience in my own life. Long before the legal documents, the estate plans, and the difficult healthcare decisions, there is a deeply personal transformation taking place. The roles that once defined us begin to shift, often without our realizing it. There emerges a realization that you are no longer simply someone's child. You have become their decision-maker. Their advocate. Their organizer. Their emergency contact. The one everyone calls when something goes wrong. And, at the very same time, your children need you in ways every bit as demanding. Younger children need your time, attention, and physical care. Indeed, our older children still need us, and often their problems become bigger, more expensive, and emotionally much more complicated. Somewhere in the middle of caring for everyone else, many begin to wonder where they went. I know I did. The identity crisis of the Sandwich Generation is rarely dramatic. It happens gradually. It is built one doctor's appointment at a time. One delayed carpool line that derailed yoga class. One PTA meeting that replaced a celebratory meeting with a client. One tension-filled conversation with your sibling that ruined date night with your spouse. One telephone call with a health insurance company about a denial leaving you $2,500 poorer than anticipated. One appointment with the lawyer talking about dying and disability. One weekend spent cleaning out a parent's home instead of brunch with your girlfriends. The accumulation of responsibility slowly crowds out the person you used to be. Many caregivers tell me they no longer recognize themselves. The career they once loved has taken a back seat. Friendships have become difficult, if not impossible, to maintain. Hobbies disappear. Vacations feel impossible. Their calendars become filled with everyone else's obligations until there is no space left for their own. Even more confounding is that our society celebrates self-sacrifice. We praise the caregiver who "does it all." We admire the proverbial selfless daughter who smiles, nods, and never complains. We applaud the parent who always puts everyone else first. What we rarely discuss is the cost of this martyrdom. The emotional exhaustion of caregiving and being everything to everyone is not a story of physical fatigue or a time-management problem to solve. Rather, it is the gradual erosion of the parts of ourselves that provide us with a sense of self-before-caregiving eclipsed our identity. As an estate planning attorney, I meet families during moments of transition. Parents are aging. Adult children are stepping into new responsibilities. Difficult conversations are happening around illness, incapacity, and mortality. While my role is to help families prepare for the legal and logistical aspects of this transition, I learned that the legal planning is the easiest part. The harder work is bearing witness to it all and helping families acknowledge that everyone involved is experiencing change. The parent is struggling with identity and the erosion of their independence, too. The adult child is struggling with a role reversal and becoming the decision-maker. Neither role feels comfortable. The result is grief in both directions. One of the most surprising aspects of the Sandwich Generation is that these identity shifts occur during what many expected would be their most rewarding years of adulthood. After decades spent building careers and raising families, many imagine they will finally have the freedom to focus on themselves. Instead, we discover that a second chapter of caregiving is just beginning. It becomes clear that the time to focus on oneself is really just an elusive goal. This is why planning matters. Planning is not just about the documents. It is about establishing clarity before the crisis. When families have conversations early, appoint decision-makers, organize important information, and communicate their wishes and expectations, they reduce unnecessary stress during already emotional moments in the future. They avoid family conflict and even fractures. Planning cannot eliminate the sadness of watching a parent age or the speed at which your children grow up. It can, however, mitigate the chaos that often accompanies it. Equally important is recognizing that preserving your own identity is not selfish. It is essential. The best caregivers are not the ones who never ask for help. They are the ones who understand that they cannot pour endlessly from an empty cup. They make space for friendships. They protect small moments that belong only to them. They allow themselves to say no without guilt. They allow themselves to grieve, and they remember that they are more than the sum of their responsibilities. The good news is that the blurred identity of those of us in the Sandwich Generation is not permanent: perhaps that is the greatest lesson of the Sandwich Generation. We are constantly becoming new versions of ourselves. We are no longer the children our parents once raised, nor are we only the parents raising our own children. We are translators and conduits between generations. We are witnesses, preserving our family stories, lore, and history. We are advocates fiercely protecting our loved ones. We are decision-makers, making difficult choices with love, respect, and compassion. These roles are important, meaningful, and sometimes all-consuming, but they do not have the power to replace the person shouldering these roles. As we recognize Sandwich Generation Month, I encourage you to ask yourself a simple question: Who am I outside of the people who need me? The answer may not be obvious. It may bloom and float to the surface after you take the time to rediscover interests that have been put on hold or dreams that have been postponed. Making space for that question is one of the most meaningful investments you can make—not just for yourself, but for the people who depend on your well-being. Because the strongest caregivers are not the ones who are relegated to the roles within the Sandwich; they are the ones who remember that they are their own selves first. Your identity is worth protecting.
July 16, 2026
Estates and Trusts
Estate Planning Essentials for Maryland’s Unmarried Couples
A shared home, shared finances, and years of mutual commitment may look indistinguishable from a legal marriage. In the eyes of the law, however, the differences can become apparent at exactly the moment when legal protections matter most. For more than a decade, marriage equality has been the law nationwide. Many couples, including those in the LGBTQ+ community, have taken advantage of the legal and financial benefits that marriage provides. Still, a significant number of couples, both gay and straight, remain happily partnered but legally unmarried. Some feel their relationships are too new; others prefer to avoid the legal and financial entanglements of marriage. For some, family dynamics, prior marriages, or personal beliefs play a role. Whatever the reason, unmarried couples do not receive the automatic legal, financial, and estate-planning protections granted to married spouses. But thoughtful planning can close much of that gap. While a set of legal documents cannot fully replicate the benefits of marriage, it can provide essential safeguards, especially in times of crisis. This planning is especially important for blended families, where one or both partners may wish to provide for both a surviving partner and children from a prior relationship. Six Key Steps to Consider Register as Domestic Partners Maryland law now allows unmarried couples to register as domestic partners with the Register of Wills. Registration can provide important legal protections that were previously unavailable to couples who chose not to tie the knot. One of the most significant benefits arises at death. If a registered domestic partner dies without a will, the surviving partner is entitled to inherit a share of the decedent’s estate under Maryland’s intestacy laws, similar to the rights of a surviving spouse. A registered domestic partner also has priority to serve as personal representative (executor) of the deceased partner’s estate. Registration provides substantial tax savings. Property left to a surviving domestic partner is exempt from Maryland’s 10% inheritance tax. This is true whether the transfer occurs under a will or trust, or through a beneficiary designation on a retirement account or “transfer on death” provision on a bank account. For couples with significant assets, this exemption alone can save thousands of dollars in taxes. Registration is available to both same-sex and opposite-sex couples and is a relatively simple process. By registering, unmarried couples can obtain many of the protections traditionally associated with marriage, including inheritance rights, exemption from Maryland inheritance tax, and greater legal recognition of their family relationships. Registration is not, however, a substitute for estate planning. Couples who register should still have wills, powers of attorney, and advance medical directives in place. Prepare Wills for Both Partners Having wills is essential for unmarried couples. Without them, state intestacy laws will apply, and those laws do not recognize unmarried partners unless they have registered under Maryland law. This means your partner could receive nothing from your estate and would have no priority to serve as your personal representative. Beyond providing for a surviving partner, a will is especially important for couples with children. A will can nominate guardians for minor children, create trusts to protect a child's inheritance, and name trustees to manage assets until children are mature enough to handle them responsibly. Without these provisions, important decisions about the care of your children and management of their inheritance may be left to the courts. A properly drafted will ensures that your partner inherits according to your wishes, can serve as your personal representative if you choose, and can administer your estate efficiently. A professionally drafted and executed will is one of the most important protections you and your partner can put in place. Consider How Assets Are Titled For unmarried couples, the way assets are titled can be just as important as having a will. Certain forms of joint ownership allow property to pass automatically to the surviving partner without probate. For example, a home owned as joint tenants with right of survivorship will generally pass directly to the surviving owner upon the death of the first partner. Likewise, joint bank accounts may allow the surviving partner immediate access to funds needed to pay household expenses and other bills. Proper asset titling can simplify estate administration, reduce delays, and provide financial security for the surviving partner during a difficult time. However, adding a partner as a joint owner is not always the right solution. In some cases, joint ownership may expose assets to a partner's creditors, create unintended tax consequences, or conflict with other estate-planning goals. Before changing title to real estate, financial accounts, or other assets, couples should consult an estate-planning attorney to ensure that ownership arrangements are consistent with their overall estate plan and financial objectives. Review and Update Beneficiary Designations Certain assets, such as life insurance policies, retirement accounts, and pay-on-death bank accounts, pass outside of your will. Instead, they transfer directly to the beneficiary designated on the account or policy, regardless of what your will may say. It is critical to review these designations periodically to ensure that they reflect your current intentions. Outdated beneficiary forms are one of the most common estate-planning mistakes and can easily undermine even a well-drafted will. Execute Durable Powers of Attorney If one partner becomes incapacitated, the other has no automatic authority to manage financial affairs. A durable power of attorney allows you to grant your partner legal authority to access financial accounts, pay bills, manage investments, handle real estate transactions, and communicate with tax authorities or government agencies. Without this document, your partner may be forced to pursue guardianship, a costly and time-consuming court process. Prepare Advance Medical Directives An advance directive enables you to appoint your partner as your health care agent in case you are ever unable to make medical decisions for yourself. This document authorizes your partner to speak with your doctors, review your medical records, and make decisions on your behalf. It also enables you to name backup decision-makers and to express your wishes regarding end-of-life care. A properly executed advance directive may be recognized in other states, making it especially important for couples who travel or relocate. Protect the Life You’ve Built Together In most cases, unmarried couples should have six key protections in place: domestic partnership registration (when appropriate), wills, proper asset titling, updated beneficiary designations, durable powers of attorney, and advance medical directives. Even couples who plan to marry in the future should consider putting these protections in place now. Legal uncertainty can arise at any time, and having these documents prepared helps ensure that both partners are protected in the interim. After marriage, the documents can be reviewed and updated to reflect the couple's new legal status and expanded rights. Whether you choose marriage or a lifelong partnership, protecting the life you have built together requires intentional planning. Consult with an experienced estate-planning attorney to help protect your relationship and your assets for the future.
July 9, 2026
Labor and Employment
No Standard, Still Liable: How OSHA Regulates Ergonomics Without an Ergonomics Rule
Ask most employers what OSHA requires on ergonomics, and you will get one of two wrong answers. Some assume there is a detailed federal rulebook governing chair height, lifting limits, and keyboard angles. Others assume that because no such rulebook exists, ergonomics is purely voluntary, a wellness perk, not a legal exposure. Both are mistaken, and the gap between them is exactly where liability lives. Musculoskeletal disorders (MSDs), otherwise known as the strains, sprains, carpal tunnel cases, and back injuries that come from repetition, force, and awkward posture, remain one of the largest single categories of workplace injury, accounting for roughly a third of serious cases and costing employers billions each year in workers’ compensation, lost productivity, and medical expenses. Yet the federal framework governing them is defined more by what is absent than by what is written down. Understanding that absence is the whole game. Ergonomics Program Standard For one decade-spanning moment, federal ergonomics regulation was real. OSHA promulgated a comprehensive Ergonomics Program Standard at the end of 2000, requiring covered employers to identify and control MSD hazards. It survived a matter of weeks. In early 2001, Congress invoked the Congressional Review Act and passed a joint resolution rescinding the rule, which the President signed. The CRA repeal did more than erase the standard. By its terms, the Act bars an agency from reissuing a rule in “substantially the same form” without fresh congressional authorization. That single procedural feature is why, a quarter-century later, there is still no federal ergonomics standard — and why one is unlikely to appear through ordinary rulemaking. OSHA did not decline to regulate ergonomics. It was statutorily disarmed from doing so the conventional way. The General Duty Clause What is left in OSHA’s arsenal is Section 5(a)(1) of the OSH Act, the General Duty Clause, which requires every employer to furnish a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The clause is OSHA’s catch-all: it reaches recognized, serious hazards for which no specific standard exists. Ergonomics is the textbook example, sharing that territory with heat illness, workplace violence, and combustible dust. For a labor and employment audience, the operative point is that a General Duty Clause citation is not a free-floating accusation that a workplace felt unsafe. OSHA must establish four elements: A condition or activity in the workplace presented a hazard to employees The employer or its industry recognized that hazard The hazard was causing, or was likely to cause, death or serious physical harm A feasible and useful means existed to materially reduce the hazard Each element is a defense opportunity, and the second and fourth are where ergonomics cases are usually won or lost. “Recognition” can be proven through the employer’s own injury logs, prior complaints, internal ergonomics assessments, or industry consensus materials and NIOSH guidance. “Feasibility” turns on whether a workable engineering or administrative control (i.e., job rotation, lift assists, workstation redesign, or pacing changes) actually existed and was reasonably available. An employer that can show it identified its risks and was implementing reasonable controls in good faith is in a fundamentally different posture than one that did nothing. The Quieter Enforcement Levers The General Duty Clause is the headline mechanism, but it is not the only one, and it is important not to overlook the supporting cast. Recordkeeping obligations under 29 C.F.R. Part 1904 require accurate logging of work-related MSDs. A failure to record can be an independent citation, and an inaccurate log undercuts the credibility of every other defense an employer might raise. The hazard alert letter deserves particular attention because of how it compounds. When OSHA observes ergonomic risk that it is not prepared to cite outright, it may issue a hazard alert letter — a "no-impact" document carrying no fine and no immediate citation history. It is tempting to file and forget. That is a trap. If the agency returns and finds the flagged hazards unaddressed, the prior letter supplies the knowledge element that can elevate a later citation to willful. There is no formal mechanism to contest the letter’s findings, so the practical response is to treat it as a litigation exhibit in waiting: conduct a documented assessment, implement corrective action, and preserve proof of both. What Is Actually Changing in 2025–2026 Two developments make this an unusually live area rather than a settled one. First, in July 2025, OSHA proposed narrowing its own General Duty Clause interpretation, carving out hazards that are “inherent and inseparable from the core nature of a professional activity or performance” —aimed at inherently risky pursuits like certain entertainment and athletic work. The comment period drew enough interest that OSHA extended it and scheduled a public hearing. For ergonomics specifically, the early read from the defense bar is that this changes little: the MSD hazards in warehousing, healthcare, meatpacking, and manufacturing are not “inherent and inseparable” from the core work in the way the proposal contemplates, so robust General Duty Clause enforcement in those sectors is expected to continue. Still, the proposal signals a broader judicial and administrative skepticism toward expansive use of catch-all clauses — a theme worth tracking in any 5(a)(1) defense. Second, and more consequential, the states are filling the federal vacuum. Roughly five states now maintain ergonomics standards of some form, including California, Oregon, Washington, Michigan, and Minnesota, and the recent activity is concentrated in the last two. Minnesota's statute (Minn. Stat. § 182.677) is the one to know. Effective January 1, 2024, it requires covered employers in three high-MSD sectors (warehouse distribution centers, meatpacking and poultry processing sites, and licensed health care facilities), each above defined headcount thresholds, to maintain a written ergonomics program with risk assessments, training, and early-reporting procedures. It layers on a five-year first-aid log requirement and ties enforcement into the state's existing AWAIR safety-program framework, with safety committee obligations triggered above certain incidence rates. This is precisely the kind of prescriptive, documentation-driven mandate the repealed federal rule once contemplated, now operating at the state level. Washington is moving more incrementally but deliberately. Its Department of Labor & Industries regained authority to issue ergonomics rules and may promulgate one rule per year, targeting industries whose workers’ compensation MSD claim rates run at more than twice the statewide average, with effective dates from mid-2026 onward. Multi-state employers can no longer assume a single national compliance posture; the obligations now vary materially by where the work is performed. Enforcement at the federal level, meanwhile, has not gone dormant. OSHA’s high-profile resolution with Amazon, which included committing to facility-wide ergonomic abatement including adjustable workstations, anti-fatigue flooring, and job rotation, demonstrated the agency’s willingness to pursue ergonomic hazards against even the largest employers through the General Duty Clause, and effectively set a reference point for what “feasible controls” look like in high-throughput logistics. The Practical Takeaway The recurring misconception is that “no standard” means “no duty.” It never did. The combination of an active General Duty Clause, recordkeeping obligations, hazard alert letters that ripen into willful-violation predicates, and a growing patchwork of state mandates produces a real and enforceable framework, just one assembled from parts rather than handed down as a single rule. For employers, the defensive posture writes itself: identify ergonomic risks proactively, prefer engineering and administrative controls over PPE, document assessments and corrective action contemporaneously, and respond to hazard alert letters as if they were citations-in-waiting. Good-faith, documented effort is not merely good safety practice: under the four-element test, it is the difference between a defensible record and a willful citation. The federal government may not have written the ergonomics rulebook. But it has built, piece by piece, a regime that holds employers to one all the same.
July 9, 2026
Family Law
Saying “I Do” Without Saying Goodbye to Family Wealth
For high‑net‑worth individuals, trusts and family wealth structures are often central to long‑term financial planning. A common question in divorce is whether these assets can be protected from equitable distribution, particularly when a prenuptial agreement (“prenup”) is in place. The answer is nuanced and depends on several interrelated factors, including how the trust is structured, how it is used during the marriage, and the strength of the prenup itself. A well-drafted prenuptial agreement is one of the most effective tools for shielding trust assets from division. Prenups can clearly define: 1) what constitutes separate vs. marital property, 2) how trust interests are treated, and 3) whether income or distributions from a trust remain separate or become marital. If the agreement explicitly identifies trust assets, and any appreciation or income derived from them, as separate property, courts are often inclined to enforce those provisions, provided the prenup is valid (i.e., entered into voluntarily, with full disclosure, and without unconscionability). However, a prenup is not absolute. Courts may scrutinize it carefully, especially in long-term marriages or where enforcement would produce a significantly unfair outcome. Even with a prenup, courts look beyond the document to how the trust functions in practice. Discretionary trusts (where distributions are controlled by a trustee) are more likely to remain protected because the beneficiary spouse does not have a guaranteed right to the assets. Mandatory or vested interests (where the beneficiary has a clear right to receive income or principal) are more vulnerable to being considered marital property. If a spouse has significant control over the trust, such as serving as trustee or having the power to direct distributions, courts may view the trust as a personal asset rather than a protected structure. Even protected assets can lose their separate character if they are commingled with marital property. Examples include: Using trust distributions to fund joint accounts or marital expenses Retitling assets into joint names Relying on trust funds to support the marital lifestyle A prenup can mitigate this risk by specifying that commingling does not convert separate property into marital property, but courts may still examine the facts closely. If trust income is regularly used to support the couple’s lifestyle, a court may consider that income, if not the principal, when determining: spousal support (alimony), child support, overall fairness in property division. Even when a prenup successfully shields trust principal from division, there are important limitations: Support Obligations: Courts may still consider trust income or access to funds when setting alimony or child support. Public Policy Considerations: A court may refuse to enforce provisions that would leave one spouse in extreme financial hardship. Validity Challenges: Prenups can be challenged on grounds such as insufficient disclosure or coercion. To increase the likelihood that trusts and family wealth structures will be shielded: Draft a detailed prenuptial agreement that clearly addresses trust assets, income, and appreciation Maintain strict separation between trust assets and marital property Avoid excessive control over trusts where possible (e.g., consider independent trustees) Document intent and usage of trust distributions carefully Coordinate estate planning and family law strategy, ensuring consistency between trust documents and the prenup A prenuptial agreement can significantly enhance the protection of trusts and family wealth structures in the event of divorce, but it is not a guarantee. Courts look at both the legal framework and the real-world handling of assets during the marriage. For wealthy individuals, the most effective strategy is a combination of careful drafting, disciplined asset management, and aligned legal planning across trust and marital agreements.
July 8, 2026
Landlord Representation
HUD’s Assistance Animal Reset: Where is Federal Enforcement Heading?
If there is one fair housing topic that has generated a disproportionate amount of litigation, complaints, training questions, and frustration over the past decade, it is assistance animals. For years, housing providers operated under HUD guidance that recognized both trained service animals and untrained emotional support animals (ESAs) as qualifying for reasonable accommodation under the Fair Housing Act (FHA). However, that framework has now been disrupted. HUD's May 22, 2026, enforcement memorandum represents the most significant federal policy shift on assistance animals in a decade. But perhaps even more importantly, it signals where HUD appears to be headed next. Looking Back: HUD’s Trajectory Before May 2026 To understand the significance of HUD's recent actions, it is helpful to review the prior trajectory. In 2013, HUD issued guidance clarifying that untrained assistance animals (specifically, ESAs) should be treated as reasonable accommodations under the Fair Housing Act, even though ESAs were not recognized under the Americans with Disabilities Act (ADA). In 2020, HUD issued detailed guidance on how to evaluate assistance animal requests. This guidance became the primary resource used by housing providers, disability advocates, attorneys, and fair housing investigators. That guidance expressly recognized that assistance animals were not limited to trained service animals and could include emotional support animals that provided therapeutic benefit to a person with a disability. In direct response to HUD’s guidance, housing providers revised policies, created accommodation procedures, waived animal fees, and trained staff based on HUD’s framework. By 2024, the prevalence of quick and cheap online certifications for animals to be considered ESAs exploded. Fraud and misuse escalated, and it became increasingly difficult to verify the authenticity of a resident’s request for a reasonable accommodation to allow an ESA, which created ambiguity for both landlords and tenants. Then, in September 2025, HUD abruptly rescinded its prior 2013 and 2020 guidance documents. While the agency did not replace those materials with a new substantive framework, the rescission served as an early indicator that HUD was reconsidering its position on assistance animals and the applicability of ESA-related accommodations. HUD’s New 2026 Enforcement Standard In May 2026, HUD's Office of Fair Housing and Equal Opportunity (FHEO) announced that it would immediately change how it investigates and prosecutes animal-related accommodation complaints. According to the new memorandum, HUD will pursue FHA enforcement actions only when the animal has been “individually trained to perform work or perform tasks directly related to the complainant’s disability.” HUD explicitly adopted the ADA analysis that the assistance animal must be a trained service animal; however, HUD clarified that, unlike the ADA, the animal need not necessarily be a dog. In a shocking overhaul of prior guidance, HUD indicated that it is unreasonable to require a housing provider to waive pet policies for an untrained ESA. Source: AS-Trainor-Enforcement-Guidance-Assessing-Requests-for-the-use-of-an-animal-as-a-reasonable-accommodation-under-the-fair-housing-act.pdf This is not a reinterpretation of past guidance. It is a substantial policy shift that narrows the scope of consideration when an animal-related reasonable accommodation request is received. Indeed, the agency expressly stated that comfort, companionship, emotional support, and similar therapeutic benefits do not constitute disability-related work or tasks. This shift means that untrained emotional support animals no longer fall within HUD’s enforcement priorities. Source: AS-Trainor-Enforcement-Guidance-Assessing-Requests-for-the-use-of-an-animal-as-a-reasonable-accommodation-under-the-fair-housing-act.pdf Looking Ahead: What HUD Appears Likely to Do Next The May 2026 memorandum may ultimately be remembered not for what it did immediately, but for what it foreshadowed. HUD has publicly announced its intention to engage in formal notice-and-comment rulemaking regarding assistance animals under the Fair Housing Act. The agency specifically indicated that it is considering regulatory changes that would align the FHA assistance-animal framework with the ADA’s service-animal model. If HUD follows through, the rulemaking process would represent the first significant regulatory overhaul of these standards in decades. While predicting agency action is always risky, HUD’s direction appears clear. This administration has repeatedly emphasized concerns regarding fraudulent ESA documentation, inconsistent standards, and the growing number of fair housing complaints involving emotional support animals. FHEO made a point of appending to its memo two examples of no reasonable cause determinations issued in April 2026 for complaints involving untrained ESAs. Whether the proposed regulation survives public comment, litigation challenges, and eventual judicial review remains to be seen. What About DOJ? Housing providers should be cautious about assuming that the Department of Justice (DOJ) will immediately mirror HUD's new position. Historically, DOJ has continued pursuing FHA disability-discrimination cases involving assistance animals and accommodation requests. In August 2024, DOJ entered a significant settlement involving allegations that a cooperative housing provider refused to accommodate a resident's emotional support animals and retaliated after she sought assistance. The resulting consent decree included substantial monetary relief and ongoing compliance obligations. Source: Southern District of New York | U.S. Attorney’s Office Obtains Settlement Of Fair Housing Act Case Compensating Discrimination Victim Threatened With Eviction For Maintaining Support Animals | United States Department of Justice More broadly, DOJ continues to emphasize accommodations for ESAs in housing and pursue disability-discrimination enforcement cases (including those involving ESAs). Although DOJ may eventually align more closely with HUD's regulatory direction, we have not yet seen any comprehensive DOJ announcement signaling a wholesale abandonment of ESA-related FHA enforcement. A Local and Regional Focus Matters More Than Ever HUD's enforcement priorities, guidance, and interpretation of the regulation have changed. However, the Fair Housing Act itself has not changed. Congress has not amended the statute, and HUD has not yet completed the formal rulemaking process required to create binding regulations. Complainants remain able to bring private lawsuits, and courts across the country remain free to interpret the FHA differently. In other words, reduced HUD enforcement risk does not necessarily mean reduced litigation risk. The greatest mistake a housing provider can make right now is adopting a nationwide policy based solely on HUD's memorandum. Many state and local fair housing laws contain stricter disability protections than federal law. State agencies, local human rights commissions, and fair housing organizations are not bound by HUD's internal memorandum and may continue pursuing ESA-related claims. This means a policy that presents relatively little risk in one jurisdiction could create substantial exposure in another. For multifamily operators, developers, and housing providers, the best approach is to analyze assistance-animal requests through both a federal and local-law lens and on a case-by-case basis. HUD has made its position increasingly clear. The agency appears committed to aligning FHA assistance-animal standards with the ADA's trained-service-animal model. But until rulemaking is complete and courts weigh in, housing providers should focus less on what HUD hopes the law will become and more on what the law requires today in the jurisdictions where they operate.
July 7, 2026
Family Law
When One Parent Refuses: Getting a Child’s Passport for Summer Travel
Planning international travel with your child can quickly become complicated if your ex-partner refuses to consent to a passport. Under U.S. law, children under 16 generally need both parents’ permission to obtain a passport. Without it, the application is typically denied. What Happens When a Divorced Parent Says No? If parents share joint legal custody, one parent cannot usually get their child a passport. Both parents must consent, however, when disagreements arise, the issue often requires court intervention. A parent seeking travel can file a motion asking the court to: allow the passport application without the other parent’s consent, require the other parent to sign, and/or approve specific travel plans. How Courts Decide Judges focus on the child’s best interests, considering factors like: The purpose and length of the trip The destination and safety concerns Whether travel interferes with the other parent’s time Risk the child may not return Whether reasonable details and safeguards are in place If the trip is well-planned and low-risk, courts often allow it. Courts may order the non-consenting parent to cooperate or permit the passport application without them. The court may also require travel details in advance or adjust parenting time to compensate the other parent. Planning Ahead These disputes can take time to resolve, so early planning is critical. Providing detailed information and attempting to work things out before going to court can sometimes avoid litigation altogether. While one parent’s refusal can delay travel, it doesn’t always stop it. Courts have the authority to step in and allow a passport when international travel is appropriate and in the child’s best interests.
July 7, 2026
Labor and Employment
Virginia’s Non-Compete Restrictions Are Now in Effect: What Employers Need to Do Now
Virginia Governor Abigail Spanberger signed Senate Bill 170 on April 13, 2026. In the weeks that followed, however, Virginia’s non-compete landscape shifted even further. On May 14, 2026, Governor Spanberger also signed SB 128, which expands restrictions on non-competes by prohibiting such agreements altogether for healthcare professionals. Both laws took effect on July 1, 2026. What initially appeared to be a targeted modification to enforceability now operates as a broader restructuring of how non-competes function in Virginia. Non-Competes Are Now Conditional Under SB 170, a non-compete is unenforceable if an employer terminates an employee without cause unless the employer provides severance or other monetary consideration that was disclosed at the time the agreement was executed. Notably, the statute does not define “cause” or establish a minimum severance amount. The legislation expands upon Virginia’s existing restrictions on non-competes for low-wage and non-exempt employees. The statute applies broadly to all employers and reflects a continued state-led shift away from treating non-competes as baseline protections for employers. Instead, Virginia employers must plan, price, and document non-competes at the outset of the employment relationship. In practice, employers must determine at the time of hire whether a particular role justifies a post-employment restriction and whether they are prepared to commit financially to preserving that restriction in the event of a no-cause separation. If that determination is not made and documented from the beginning, the restriction may be unenforceable. Termination Decisions Now Control Enforceability One of the most consequential effects of SB 170 is that enforceability is no longer determined solely by the language of an agreement. It is now directly tied to how the employment relationship ends. A without-cause termination without the required pre-disclosed payment will render a non-compete unenforceable. A for-cause termination, by contrast, may preserve enforceability, but it also creates the potential for disputes over whether the termination was properly classified as for cause. This creates a direct connection between contractual terms, defined standards for “cause,” and actual termination practices. As a result, even carefully drafted agreements may fail if operational decisions are not aligned with the terms of the restriction. Healthcare Non-Competes Are Also Eliminated At the same time, SB 128 imposes a near-total prohibition on non-competes for healthcare professionals, broadly defined as “any person licensed, registered, or certified by the Board of Medicine, Nursing, Counseling, Optometry, Psychology, or Social Work.” Employers who violate this prohibition may face civil penalties, fee exposure, and private enforcement risk. While confidentiality agreements and limited non-solicitation provisions remain available, non-competes are no longer a viable tool in this sector. This development reflects a broader willingness to restrict non-competes not only by circumstance, but by industry. A Broader Shift Toward Data Protection These developments build on a broader trend: courts and legislatures are placing less emphasis on where employees work and greater emphasis on whether employers are meaningfully protecting legitimate business interests. Virginia’s framework reflects that shift. While it limits and conditions non-competes, it leaves intact protections for confidential information and trade secrets, making information access, use, and safeguarding the primary battleground. Employers that rely solely on restrictive covenants, without corresponding data protection efforts, may find those agreements increasingly insufficient. Bottom Line Non-competes in Virginia remain viable, but they are no longer passive protections. They must be deliberate, supported, and aligned with business decisions from hiring through separation. At the same time, SB 170 and SB 128 shift the focus toward information governance and fundamentally change how non-competes operate in practice. Employers that pair narrowly tailored agreements with strong data protection practices will remain well-positioned. Those that do not risk discovering that their protections are unenforceable.
July 6, 2026
Mergers and Acquisitions
Breaking Down Rollover Equity: Why Buyers Love It and What Sellers Need to Know
For many business owners, the goal of selling their company is turning their years, and often decades, of hard work into liquidity. But in some cases, retaining a stake in the company could prove to be fruitful for both the buyer and the seller. That is where rollover equity comes into play. Below is a breakdown of the benefits and risks of rollover equity, and what sellers need to know. Rollover Equity Explained The concept of rollover equity is simple. Instead of paying a seller entirely in cash, a buyer acquires 100% of the target company while allowing founders and key shareholders to retain a stake in the new ownership structure. The seller still receives some immediate liquidity at closing, exchanging the remaining portion for equity in the post-transaction business. This is certainly not a new concept and has been common in private equity transactions for some time. However, it is becoming an increasingly important tool today as buyers and sellers work to bridge valuation gaps and align their incentives in today’s more cautious deal environment. The Benefits of Rollover Equity One of the most obvious benefits of this deal structure is that it reduces the amount of cash required to close a transaction. This is a significant benefit for buyers who are motivated to preserve capital whenever possible, particularly in today’s market when financing costs are elevated, and lenders are scrutinizing leverage more carefully. Buyers do not have to fully fund a transaction with cash, but they still obtain full control of the entire company. Additionally, when founders remain involved, there is an increased confidence that the management team and employees will remain motivated and stay onboard. Continued seller participation can also help to preserve relationships, maintain operational continuity, and retain institutional knowledge after the deal closes. These non-economic factors can be critical to the company’s future success. Rollover equity can also be a tool to bridge valuation disagreements between a buyer and seller. A frequent issue that arises is a seller’s belief their business deserves a higher valuation based on its growth potential vs. the buyer’s hesitation to fully underwrite those projections in cash. A rollover structure provides a bridge for both sides to move forward despite the disconnect on valuation. The seller gets to walk away with immediate liquidity while still retaining the opportunity to benefit from the upside if the company continues to grow. That second bite at the apple can prove to be extremely valuable for a seller if the company later sells at a higher valuation. They can see returns that far exceed anything they would have generated from an all-cash transaction up front. This makes rollover equity particularly attractive for sophisticated sellers who see the opportunity to continue participating in value creation alongside the buyer. The Risks of Rollover Equity While there are many upsides to rollover equity, it is not without risk. Most importantly, sellers must fully understand what they are receiving in exchange for the portion of the sale they are not receiving in cash. The rolled equity is typically a minority stake in a buyer-controlled entity. The seller will have minimal control over future decisions, including exit timing. Therefore, the rights associated with the rollover are incredibly important and should be carefully negotiated. Rollover equity can also include some restrictions for the seller. For example, there can be mandatory hold periods, drag-along provisions, or other limitations that can affect how and when the seller can monetize their investment. The capital structure of the post-closing entity also matters. If the new entity is highly leveraged, the seller may face a very different set of risks than they did as the original owner. As with any transaction structure, a rollover transaction comes with its own set of tax considerations as well. When structured properly, rollover equity can come with the added benefit of tax deferral in certain instances for sellers, but the rules here are complex and highly dependent on deal structure. It is essential to bring in legal and tax counsel early on to ensure everything is structured appropriately and aligns with the seller’s financial goals. Rollover equity can be a highly beneficial tool for both buyers and sellers, and it will no doubt continue to be increasingly used in today’s M&A environment. But there are many considerations, especially on the sell side, that must be addressed from the start. Working with effective legal counsel throughout the process can help to reduce the risk, increase the benefits, and set up sellers for even greater success in the future.
July 6, 2026
Labor and Employment
Three Jurisdictions, Three Timelines: What the DMV’s Shifting Leave Laws Mean for Employers
For years, employers in the Washington metropolitan area could treat paid family and medical leave as a “somewhere else” problem, an issue for companies with workforces in California, New York, or New Jersey. That era is over. As of this spring, an employer with even a handful of employees spread across Maryland, Virginia, and the District of Columbia is now managing three separate leave regimes, each built on a different funding model, each carrying different obligations, and, perhaps most challenging of all, each operating on its own clock. The result is a compliance puzzle that a single, one-size-fits-all leave policy simply cannot solve. Below is a snapshot of where each jurisdiction stands and what the calendar looks like heading into 2027 and 2028. Washington, D.C. The Established Program You Cannot Put on Autopilot Of the three jurisdictions, the District's program is the most mature, and, for that reason, the one employers are most likely to take for granted. D.C.’s Paid Family Leave program has been paying benefits since 2020 and is administered by the Office of Paid Family Leave within the Department of Employment Services. A few features distinguish it from its neighbors. First, D.C.’s program is funded entirely by employers; there is no employee payroll deduction. The current contribution rate is 0.75% of each covered employee’s gross wages, remitted quarterly through the Employer Self-Service Portal, with payments due at the end of the month following each quarter (April 30, July 31, October 31, and January 31). Second, eligible employees can access up to 12 weeks each of family, medical, and parental leave, plus two weeks of prenatal leave, with partial wage replacement up to a weekly maximum that the District adjusts periodically. The compliance trap here is complacency. The contribution rate has changed more than once in recent years, the maximum weekly benefit is adjusted over time, and the D.C. PFL statute itself does not provide job protection, that has to be layered in through the D.C. and federal FMLA. Employers who set up their payroll years ago and stopped paying attention are the ones most likely to be out of step. Ongoing obligations still require ongoing attention: timely quarterly filings, current rate application, and the required employee notice. Maryland A Long-Delayed Launch That Is Finally on the Horizon Maryland’s Family and Medical Leave Insurance (FAMLI) program has been a moving target in the region. Enacted in 2022, its implementation dates have been repeatedly pushed back; most recently, in response to federal actions affecting the timeline. For employers who tuned out during the delays, now is the moment to tune back in, because the runway is getting short and the final regulations took effect March 30, 2026. Here is the current timeline that matters: Fall 2026: Employer registration opens. Any employer with at least one employee in Maryland will be required to register (there are no exceptions) and will need to designate an Authorized Officer and decide between the State Plan and an approved private plan. January 1, 2027: Payroll contributions begin. The total contribution rate is 0.9% of covered wages, split evenly between employer and employee (0.45% each). Small employers with fewer than 15 employees are exempt from the employer share, but their employees still contribute. January 3, 2028: Benefits become available. Eligible employees (generally those who have worked at least 680 hours in Maryland over the prior four quarters) can receive up to 12 weeks of paid leave (with the possibility of an additional 12 weeks for parental bonding in certain circumstances), capped at $1,000 per week. The practical takeaway for Maryland employers is that the meaningful work happens well before benefits ever get paid. Registration this fall, payroll-system readiness for the January 2027 contribution start, the State-Plan-versus-private-plan decision, and employee notices all land in the next several months (and not in 2028). Virginia The Newcomer That Changes the Regional Calculus The biggest development of 2026 came out of Richmond. In April, Virginia became the first state in the South to enact a statewide paid family and medical leave program, and it paired that with a significant expansion of paid sick leave. Employers who have long viewed Virginia as the “light touch” jurisdiction in the region will need to recalibrate. Paid Family and Medical Leave. Administered by the Virginia Employment Commission, the PFML program will begin collecting payroll contributions on April 1, 2028, and will begin paying benefits on December 1, 2028. When it takes effect, eligible employees may receive up to 12 weeks of leave per year with wage replacement of 80% of average weekly wages, subject to a cap tied to the statewide average weekly wage (roughly $1,500 per week under current figures, adjusted annually). Contributions are shared between employers and employees; employers with 11 or more employees must remit both portions (deducting up to half from employees), while employers with 10 or fewer are not required to pay the employer share. The program includes job-protection and benefit-continuation rights for employees who have been on the job at least 120 days, and it offers a private-plan alternative for employers who prefer to self-administer. Contribution rates have not yet been set—the VEC must finalize regulations and rates before the program launches—so the exact cost remains to be seen, though early estimates put it under 1% of wages. Paid Sick Leave—and this one comes sooner. Just as important for planning purposes, Virginia’s new paid sick leave mandate takes effect July 1, 2027. It expands the state's existing sick-leave requirement (which previously reached only certain home health workers) to nearly all private-sector employees and state and local government employees. Employees will accrue at least one hour of paid sick leave for every 30 hours worked, and the law expressly covers “safe leave” for employees dealing with domestic violence, sexual assault, or stalking. Notably, the enforcement provisions have teeth: aggrieved employees may recover double the amount of any unpaid sick leave plus actual damages, and the law prohibits retaliation. Because the sick-leave obligation arrives in mid-2027 (well before the PFML program goes live), Virginia employers effectively have two distinct deadlines to manage, not one. Why the Differences Are the Whole Point It would be convenient if these three programs converged. They do not. Consider just a few of the fault lines a multi-jurisdiction employer has to navigate: Who pays. D.C. is employer-funded only. Maryland and Virginia split contributions between employer and employee, but with different rates, different small-employer carve-outs (fewer than 15 in Maryland, 10 or fewer in Virginia), and different wage caps. Job protection. Maryland and Virginia build reinstatement rights into their statutes. D.C.'s PFL does not, leaving job protection to the FMLA framework. Timing. An employer running payroll across all three is looking at ongoing quarterly obligations in D.C. right now, Maryland contributions starting January 2027, Virginia sick leave in July 2027, and Virginia PFML contributions in April 2028. State plan versus private plan. Both Maryland and Virginia allow approved private plans as an alternative to the state program. That decision, which carries cost, administrative, and renewal implications, needs to be made deliberately, not by default. Layered on top of all this is the coordination problem: each of these programs interacts with the federal FMLA, with existing employer PTO and short-term disability policies, and with one another. Getting the concurrency and stacking rules wrong is where liability tends to accrue. What Employers Should Be Doing Now The through-line across all three jurisdictions is that the compliance work front-loads. Waiting until benefits start paying is waiting too long. In the coming months, employers with a regional footprint should be inventorying which employees fall under which program, confirming payroll readiness for the Maryland and Virginia contribution start dates, evaluating private-plan options, updating handbooks and leave policies to reflect the new entitlements, preparing the required employee notices, and training HR and managers on the accrual, coordination, and anti-retaliation rules.
July 6, 2026
Estates and Trusts
Using Charitable Remainder Trusts to Reduce Income Tax Inefficiency in Retirement Accounts and Give More
The Federal estate and gift tax exemption is at a historically high level. In 2026, only individuals who make taxable gifts during their lifetime, combined with assets that pass through their estate, in excess of $15 million, will be liable for any tax. As such, much of the focus of estate planning has shifted from reducing estate tax liability towards creditor protection and succession planning. However, many individuals with significantly less than $15 million in assets may still leave their beneficiaries with significant tax liability if their assets are held in qualified accounts, such as individual retirement accounts (IRAs) and 401(k) plans. Trillions of dollars are currently accumulated within these tax-advantaged qualified retirement accounts. For many families, their IRA or 401(k) represents their most significant appreciated assets. Retirement Accounts do not receive a “Step-Up” in Basis Most appreciated assets receive a "step-up” in capital tax basis at the owner’s death. The “step-up” means that the decedent’s heirs inherit these assets with a capital gains tax basis reset to the fair market value as of the date of the decedent’s death. For example, if an individual acquires a stock at $100 and later sells it for $1,000, the individual is liable for capital gains tax on the appreciation in the stock. However, if the individual dies owning the stock and his heirs sell it immediately, there will be zero capital gains tax liability. This step-up can effectively wipe out thousands of dollars in capital gains tax liability. Unfortunately, IRAs and 401(k)s are an exception to this rule. They do not receive a “step-up” basis. Instead, every single dollar of appreciation in these assets, once distributed from an inherited IRA to an individual beneficiary, is taxed as ordinary income at the beneficiary’s income tax bracket. Before the enactment of the SECURE Act, beneficiaries of inherited IRAs were permitted to "stretch” these taxable distributions over their lifetime by taking required minimum distributions (RMDs) based on their life expectancy. A beneficiary younger than the original account owner would have much smaller RMDs, allowing inherited IRA assets to appreciate over a long period of time, income tax-deferred. This strategy reduced or eliminated the “income tax bracket creep” that may occur when significant distributions are made from the inherited IRA that would push the beneficiary into a higher income tax bracket and increase the amount of the income taxes that were ultimately paid. The SECURE Act largely eliminated this strategy. Under current law, most non-spousal beneficiaries must liquidate their inherited IRA within ten years of the death of the original account holder. This is commonly referred to as the “ten-year rule.” The compressed time frame reduces the time that the assets within the inherited IRA can continue to grow without the tax drag. It makes it much more likely that the distributions will push the beneficiary into a higher tax bracket. To make matters worse, most beneficiaries of qualified accounts will be in their peak earning years. Distributions from a modest one-million-dollar inherited IRA will be reduced by hundreds of thousands of dollars after the payment of federal and state income taxes. Using a Charitable Remainder Trust to Restore Tax Efficiency Fortunately, there is a solution to replicate the “stretch” and reduce this income tax inefficiency. The account holder can name a charitable remainder trust (CRT) as the designated beneficiary of the IRA. The CRT can be established during the account holder’s lifetime or may be designated under the account holder’s will or revocable trust (a “testamentary CRT”). A CRT is a split-interest, tax-exempt vehicle. One or more income beneficiaries receive an annual payment for a set term of years (a “CRAT”), or an amount based on a percentage of the trust at the end of the year (a “CRUT”). At the end of the term, which could be as long as the income beneficiary's lifetime, the remaining trust assets are distributed to one or more qualified charities. In this way, the original account owner can support their philanthropic goals and ensure their families are provided for. When a CRT is designated as the beneficiary of an IRA, the entire IRA balance is transferred directly to the trust upon the account holder’s death. Because a CRT is a tax-exempt entity, no income tax is recognized or paid upon the liquidation of the IRA. The full, undiminished account remains intact within the trust. The income beneficiary is guaranteed to receive a predictable flow of income. Because the distributions are made slowly over time, it reduces the likelihood that the distributions will push the income beneficiary into a higher tax bracket. As such, the beneficiary is likely to pay less overall income tax liability than if they had been named the outright beneficiary of the IRA. In addition, because the CRT is a tax-exempt trust, the assets in the CRT will continue to appreciate tax-deferred. If the CRT is structured to last for the duration of the income beneficiary’s life, the time horizon from which the distributions must be made from the account has effectively been increased from ten years to as much as several decades or longer. This creates significant potential that the total distributions to the income beneficiary will exceed what they would have received had they been named the outright beneficiary of the account. Finally, the estate of the original account holder benefits from an estate tax deduction equal to the actuarial value of the interest that passes to charity. In states such as New York, Washington, or Oregon, where the state estate tax exemption amount is much less than the federal estate tax exemption amount, this may be a valuable deduction. Key Considerations and Conclusion It is important to note that pursuant to Section 664 of the Internal Revenue Code, a CRT must distribute at least 5% (but no more than 50%) of its value annually to the income beneficiary. In addition, at least 10% of the actuarial value of the account must ultimately pass to the charitable remainder beneficiary. This can mean that naming very young income beneficiaries, such as grandchildren, may not satisfy the actuarial test. Although estate tax concerns have diminished for many individuals, the income tax exposure their heirs will face, with even modestly valued inherited IRAs, remains a significant challenge for wealth transfer. The SECURE Act forces beneficiaries to recognize substantial taxable income in a compressed time frame. For the right client, a charitable remainder trust offers a compelling solution, providing tax-efficient income deferral and reducing overall tax drag while supporting philanthropic goals. A CRT transforms a tax-inefficient asset into a powerful tool for preserving wealth and legacy. In today’s environment, proactive income tax planning is not optional; it is essential.
July 2, 2026
Property Management Playbook
Offit Kurman's Landlord Representation group is launching a new video series: the Property Management Playbook. Hosted by Billy Cannon alongside colleagues Brian Dorwin, Jennifer Jean-Gilles, and Gwen Roye-Harrison, this series digs into the real-world scenarios property management clients face every day. Topics include handling argumentative tenants, maintenance best practices, and fair housing dos and don'ts. Watch the full series to get practical guidance straight from Offit Kurman's landlord representation attorneys.
July 1, 2026
Estates and Trusts
Top Five Probate Litigation Trends: What Estate Planners and Trust Practitioners Need to Know
The United States is in the midst of a historic generational transition. The so-called “Great Wealth Transfer” is estimated to exceed $84 trillion in assets passing from Baby Boomers and the Silent Generation to their heirs over the coming decades. This wealth transference is reshaping the landscape of estate administration and trust practice. Against this backdrop, an aging population, the rising complexity of blended family structures, and the rapid proliferation of digital assets are combining to produce unprecedented levels of estate probate and trust litigation. Courts across the country are contending with both more numerous and meaningfully more complex disputes than those of prior generations. Much like the Midwest’s flat dustbowl lends itself to more frequent tornadic activity than elsewhere in the country, here in the “DMV” (D.C./Maryland/Virginia), home to a dense concentration of federal employees, government contractors, military families, and high-net-worth households, conditions are particularly ripe for contested estate and trust dispute activity. It shouldn’t be a surprise, therefore, that Virginia's and Maryland’s Circuit Courts, and D.C.'s Probate Division are all experiencing a meaningful uptick in contested proceedings. The five trends identified below reflect the most consequential litigation developments that estate planners and trust practitioners in this region should be tracking in 2026. UNDUE INFLUENCE CLAIMS ARE SURGING Caregiver-beneficiary relationships, late-in-life marriages, and deathbed changes to estate plans are generating a wave of undue influence claims across the DMV region consistent with the nationwide trend. And with statutory changes favoring the challengers, such claims are only likely to continue to increase. Virginia's multi-part undue influence test and shifting evidentiary burdens, nominally at least, favor challengers of wills, see § 64.2-454.1. and, with a newly-enacted equivalent governing the trusts context, effective as of July 1, 2026, of trusts as well, see § 64.2-724.1. In situations where undue influence may be presumed from basic circumstances, often easily established by the challenging plaintiff, cases of late have become more about an accused’s needing to disprove wrongdoing than about the skeptical plaintiff’s duty to prove the contrary. Alleged influencers who occupied a position of trust or physical dependency should presume a legal challenge when changes to testamentary planning result in a plan favoring the one in that position for the decedent. In Maryland, the Court of Appeals (FKA the Court of Special Appeals) has affirmed that undue influence may be proven through cumulative inference, permitting plaintiffs to build their cases through patterns of conduct rather than direct evidence. In D.C., the Probate Division has demonstrated a notable willingness to allow contested matters to reach trial based on affidavit evidence alone, lowering the practical threshold for advancing such claims. For the devoted family member who has done only right by their deceased parent(s) while asking or expecting nothing in return, a parent’s reward of a greater than equal distributive share may result in little more than authorized judicial scrutiny and second-guessing of actions taken when t-crossing and i-dotting were not the primary (or even secondary) priority. These shifted burdens may operate unfairly to the detriment of the selfless doting loved ones their dying parents saw fit to reward, but we have decided societally to err in favor of protecting against overriding our elders’ testamentary intentions over the perceived substantially more limited likelihood that the decedent independently intended and resolved to recognize and reward their loved one’s selfless kindness. We have effectively shifted the presumption in this context to one of expected wrongdoing by anyone rewarded by a dying loved one. Practice Tip: Document the testator's independent judgment at every planning stage, especially for any amendment in contemplation of more imminent death. Consider independent counsel for vulnerable clients and retain contemporaneous notes of all meetings. LACK OF TESTAMENTARY CAPACITY CHALLENGES Dementia diagnoses are rising in lockstep with an aging client base, and contests premised on lack of testamentary capacity are becoming more common and considerably more sophisticated. The classical four-pronged capacity standard, i.e., requiring that a testator understand the nature of the testamentary act, the character and extent of their property, the natural objects of their bounty, and the nature of the will itself, remains the legal benchmark across the DMV jurisdictions, but the evidentiary battles to establish or defeat capacity have grown considerably more technical. Plaintiffs now routinely retain geriatric psychiatrists and forensic neurologists as expert witnesses, and the battle of the experts has become a defining feature of capacity litigation. Virginia Code §§ 64.2-403 and -404 govern will execution formalities (and/or the excusability of noncompliance therewith), and courts scrutinize compliance with these requirements closely when capacity is disputed, particularly regarding the role of attesting witnesses and notaries. Practice Tip: Consider recommending a contemporaneous medical assessment for clients with any documented cognitive impairment; consider a "golden period" video execution for “high-risk” matters, but recognize the “red flag” signal such a step may suggest and/or the potentially disproportionate impact of even the most minor lapses or misstatements. Likewise, a capacity assessment memorandum prepared by the drafting attorney at the time of execution might be invaluable in future litigation but is not without its own caveats. DIGITAL ASSETS AND CRYPTOCURRENCY DISPUTES The valuation, access, and proper distribution of digital assets, including, as relevant examples, cryptocurrency wallets, non-fungible tokens (NFTs), online brokerage accounts, and internet-based business interests, are creating novel litigation flashpoints that earlier probate frameworks were not designed to address. Virginia has enacted the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”) (Va. Code §§ 64.2-116 et seq.) to provide fiduciaries with clearer statutory access rights, but significant disputes persist around the possession of private cryptographic keys, the policies of third-party exchange platforms, and the correct estate-date valuation methodology for inherently volatile assets. Maryland and D.C. have enacted comparable RUFADAA statutes, yet litigation in all three jurisdictions reveals that statutory authorization and practical access remain separated by a significant gap, particularly where a decedent leaves no organized record of digital holdings or credentials. Practice Tip: Ensure all estate plans include a digital asset inventory and an explicit fiduciary authorization clause; counsel clients to use platform legacy contact and beneficiary designation tools where available. A securely stored credentials memorandum, separate from the will, can prevent years of unnecessary litigation. ELDER FINANCIAL EXPLOITATION AND CONSERVATORSHIP LITIGATION Adult protective services referrals, emergency guardianship petitions, and civil claims for financial exploitation of vulnerable adults are rising sharply across all three DMV jurisdictions. Virginia's Adult Protective Services statutes (Va. Code §§ 63.2-1600, et seq.) and the Commonwealth's criminal elder abuse statutes are being deployed with increasing frequency in tandem with civil probate remedies, including claims for constructive trust, disgorgement, and punitive damages. Contested guardianship and conservatorship matters in Virginia Circuit Courts seem to have grown substantially in both volume and procedural complexity, with courts appointing guardians ad litem (“GALs”) with greater frequency to safeguard the interests of alleged incapacitated persons. In Maryland, the intersection of the Health Care Decisions Act with surrogate decision-making disputes has generated a distinct body of contested proceedings, particularly where family members disagree about the scope of an agent's authority under a durable power of attorney. Practice Tip: Counsel aging clients to establish durable powers of attorney, advance medical directives, and revocable trusts proactively BEFORE capacity becomes an issue. Encourage regular monitoring of financial accounts for irregularities and consider the use of trusted contact designations with financial institutions. TRUST MODIFICATION, DECANTING, AND NO-CONTEST CLAUSE DISPUTES Irrevocable trusts formed decades ago are being challenged, modified, or decanted with growing frequency as family circumstances evolve and tax laws change. Virginia's Trust Decanting Act (Va. Code §§ 64.2-779.1, et seq.) provides a statutory mechanism for trustees to distribute assets from one irrevocable trust to a second trust with more favorable terms (a process that is itself a growing trend), but this power is increasingly being contested by remainder beneficiaries who argue that decanting impermissibly alters their vested interests. No-contest (or in terrorem) clauses, long regarded as effective deterrents to meritless litigation, are being strategically challenged as beneficiaries weigh the financial calculus of contesting large estates and assess the likelihood of clause enforcement. Maryland courts have historically enforced in terrorem clauses with relative strictness, while D.C. courts have applied them more flexibly, creating meaningful jurisdictional variation within the same metropolitan region. Practice Tip: When drafting no-contest clauses, consider including explicit carve-outs for good-faith challenges based on capacity or undue influence and/or gross mismanagement or self-dealing. Blanket clauses discourage otherwise meritorious litigation. Review irrevocable trusts periodically for decanting candidacy, particularly those with outdated distribution standards or unfavorable trustee succession provisions. Conclusion The litigation trends documented here share a common thread: each is, at its core, a failure of planning, whether a failure to document, communicate, update, or anticipate. Proactive, well-documented estate planning remains the most reliable and cost-effective litigation prevention tool available to practitioners and their clients. Comprehensive planning that accounts for cognitive vulnerability, digital asset complexity, blended family dynamics, and evolving trust structures will materially reduce the risk of costly, protracted disputes. Practitioners serving clients in the DMV region are well-served by engaging colleagues who bring broad, multidisciplinary expertise to complex estate matters. If you do not believe you are equipped to navigate the generational, jurisdictional, and asset-class complexity that defines modern estate and trust practice, seek help. Remember, it is not failure to admit you don’t know it all, rather consider it more of a professional imperative.
June 30, 2026
International
International Trade: Service of Process and Default Judgments Can Reach You in Unexpected Ways
A recent Second Circuit decision offers a valuable lesson for foreign companies dealing with U.S. counterparties: a plaintiff may effect service of process through a collection agent, even if that agent was not expressly authorized to accept service of process on the company’s behalf. Ryniker v. Sumec Textile Co. Ltd., 177 F.4th 365 (2d Cir. 2026). The Second Circuit reinstated a default judgment against a Chinese creditor, Sumec Textile Company Limited, following a convoluted procedural path from bankruptcy court to district court, then bankruptcy court again and a rare direct appeal to the Second Circuit. As they say, the devil is in the details. A closer look at the background helps explain why the court reached that result. Décor Holdings, Inc. and its affiliates were sellers of decorative fabric that filed voluntary Chapter 11 petitions on February 12, 2019. They listed Sumec Textile Company Limited, a Nanjing, China-based textile manufacturer, as their second-largest unsecured creditor. Sumec Textile Company Limited held an export credit insurance policy with China Export & Credit Insurance Corporation, known as Sinosure, and submitted an insurance claim to Sinosure for the unpaid balance owed by the debtors. Before Sinosure paid on the insurance claim, Sumec Textile Company Limited executed a Collection Trust Deed authorizing Sinosure to collect, “on our behalf,” the “full amount” of the debt owed by the debtors, $3,029,719.52, and granted Sinosure “full power” to exercise collection rights and remedies in Sumec Textile Company Limited’s name or Sinosure’s own name. Sinosure then hired Brown & Joseph, LLC, a U.S. collection agency, to collect the debt. Sinosure’s instructions to Brown & Joseph granted it “full power” to exercise collection rights and remedies for “amicable debt collection.” The Collection Trust Deed, however, did not authorize Sinosure to accept service of a summons or complaint on Sumec's behalf or act in any way for Sumec. To assist in debt collection, Sinosure hired the Detroit-based collection agency Brown & Joseph LLC (“B&J”). The scope of B&J's authority and services was set forth and limited by a Trust Deed and Letter of Instruction dated March 4, 2019. There is no language in the Trust Deed and Letter of Instruction that authorizes B&J to accept service of process on behalf of Sumec. B&J filed a proof of claim in Décor Holdings, Inc.’s bankruptcy on behalf of Sumec. The dispute arose when a litigation administrator later commenced an adversary proceeding seeking to recover payments made to Sumec and to disallow Sumec’s claim. The summons and complaint were mailed to Sumec “in care of Brown & Joseph” at the address listed on the proof of claim. Brown & Joseph engaged with the plaintiff after service, stating it was reviewing the matter with “our client and the creditor,” referencing an ordinary course defense, and noting that Sumec believed the payments “were made in the ordinary course of business.” Despite these communications, Sumec never appeared, and a default judgment was entered. The central issue on appeal was whether Brown & Joseph qualified as an “agent authorized by appointment or by law to receive service” under Bankruptcy Rule 7004, even though the governing documents did not expressly authorize it to accept service of process. The Second Circuit answered yes, holding that Brown & Joseph had implied actual authority to accept service on Sumec’s behalf. The Court emphasized that actual authority is not limited to what is expressly stated. It includes authority “to perform acts necessary or incidental to achieving the principal’s objectives, as reasonably understood from the principal’s manifestations.” Here, Sumec had authorized Sinosure to collect the “full amount” of the debt, and Sinosure had in turn authorized Brown & Joseph to do the same. By filing a proof of claim in Sumec’s name and designating itself as the recipient for notices, Brown & Joseph positioned itself as the functional representative of the creditor in the bankruptcy case. Critically, the adversary proceeding did not exist in isolation. It sought not only to recover alleged preferences but also to disallow the very claim Brown & Joseph had been authorized to pursue. In that context, they rejected the argument that express authorization to accept service was required. Instead, it reasoned that authority to recover the “full amount” necessarily included authority to receive notice of litigation that could reduce that recovery. As the Court put it, actual authority may be implied from the principal’s objectives, and here those objectives made service on Brown & Joseph appropriate. The Court therefore reinstated the default judgment. For foreign creditors, the implications are significant. This decision underscores that delegating collection authority and allowing a default to be entered may carry material negative consequences that extend beyond simple debt recovery. Even where agency documents state that the agent does not have authority to accept service, a court may find otherwise based on the scope of the assignment and the surrounding circumstances. Interestingly, in this case, the creditor had posted a bond to stay enforcement during the appeal process and the reinstatement of the default judgment clears the path to satisfying the judgment quickly. The takeaway is straightforward but important: foreign companies should carefully define and, where appropriate, limit the authority granted to insurers, factors, and collection agents. Absent clear boundaries and active oversight, service of process on a U.S. agent may be sufficient to bind a foreign creditor even where the creditor has not expressly authorized the agent to accept service and the agent has affirmatively informed the plaintiff that it lacks such authority.
June 29, 2026
Offit Kurman Blogs
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